MENTEŞ AND OTHERS v. TURKEY
Doc ref: 23186/94 • ECHR ID: 001-45807
Document date: March 7, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23186/94
Azize Mentes
Mahile Turhalli
Sulhiye Turhalli
Sariye Uvat
against
Turkey
REPORT OF THE COMMISSION
(adopted on 7 March 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-24). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-19) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 20-24). . . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 25-142). . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 26-44). . . . . . . . . . . . . . . . . . .4
B. The evidence before the Commission
(paras. 45-124) . . . . . . . . . . . . . . . . . .6
1) Documentary evidence
(paras. 45-71) . . . . . . . . . . . . . . . . .6
2) Oral evidence
(paras. 72-124). . . . . . . . . . . . . . . 13
C. Relevant domestic law and practice
(paras. 125-142). . . . . . . . . . . . . . . . . 24
III. OPINION OF THE COMMISSION
(paras. 143-227) . . . . . . . . . . . . . . . . . . . 28
A. Complaints declared admissible
(para. 143) . . . . . . . . . . . . . . . . . . . 28
B. Points at issue
(para. 144) . . . . . . . . . . . . . . . . . . . 28
C. The evaluation of the evidence
(paras. 145-181). . . . . . . . . . . . . . . . . 28
D. Concerning the applicants Azize Mentes, Mahile Turhalli
and Sulhiye Turhalli
1. As regards Article 8 of the Convention
(paras. 182-185) . . . . . . . . . . . . . . 37
CONCLUSION
(para. 186). . . . . . . . . . . . . . . . . 38
2. As regards Article 3 of the Convention
(paras. 187-190) . . . . . . . . . . . . . . 38
CONCLUSION
(para. 191) . . . . . . . . . . . . . . . . 39
3. As regards Article 5 para. 1 of the Convention
(paras. 192-196) . . . . . . . . . . . . . . 39
CONCLUSION
(para. 197). . . . . . . . . . . . . . . . . 39
4. As regards Articles 6 para. 1 and 13 of the Convention
(paras. 198-208) . . . . . . . . . . . . . . 40
CONCLUSIONS
(paras. 209-210) . . . . . . . . . . . . . . 42
5. As regards Articles 14 and 18 of the Convention
(paras. 211-214) . . . . . . . . . . . . . . 42
CONCLUSIONS
(paras. 215-216) . . . . . . . . . . . . . . 43
E. Concerning the fourth applicant, Sariye Uvat
(paras. 217-218). . . . . . . . . . . . . . . . . 43
CONCLUSION
(para. 219) . . . . . . . . . . . . . . . . . . . 43
F. Recapitulation
(paras. 220-227). . . . . . . . . . . . . . . . . 44
PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . 45
DISSENTING OPINION OF MR. I. CABRAL BARRETO . . . . . . . . 50
PARTLY DISSENTING OPINION OF MR. N. BRATZA. . . . . . . . . 51
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . 52
I.INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Turkish citizens who were residents of the
village of Saggöze (Riz) in the Genç district of the province of
Diyarbakir. They were born in or about 1967, 1948, 1940 and 1961
respectively. They were represented before the Commission by
Professor K. Boyle and Ms. F. Hampson, both teachers at the University
of Essex.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. B. Çaglar.
4. The applicants allege that their homes were burnt and that they
were forcibly and summarily expelled from their village by State
security forces on 25 June 1993. They invoke Articles 3, 5, 6, 8, 13,
14 and 18 of the Convention. The fourth applicant, Sariye Uvat, invokes
Article 2 of the Convention in relation to the death of her twins who
were born prematurely after the expulsion from her home.
B. The proceedings
5. The application was introduced on 20 December 1993 and registered
on 11 January 1994.
6. On 5 April 1994, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 8 September 1994,
after the expiry of the time-limit fixed for this purpose. The
applicants replied on 2 November 1994.
8. On 9 January 1995, the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 19 January 1995 and they were invited to submit such
further information or observations on the merits as they wished. They
were also invited to indicate the oral evidence they might wish to put
before delegates.
10. On 20 May 1995, the Commission decided to take oral evidence in
respect of the applicants' allegations. It appointed three delegates
for this purpose: Mrs. G.H. Thune, Mrs. J. Liddy and Mr. N. Bratza. It
notified the parties by letter of 22 May 1995, proposing certain
witnesses and requesting the Government to identify certain security
force personnel and two public prosecutors. The Government were also
requested to provide the contents of the investigation files of the two
public prosecutors involved in investigating the alleged incident.
11. By letter dated 31 May 1995, the applicants' representatives
requested a further witness to be heard.
12. By letter dated 3 July 1995, the Commission's Secretariat
requested the Government to provide the outstanding information in
regard to the identities of relevant witnesses and the contents of the
investigation files.
13. On 6 July 1995, the Government submitted further comments on the
facts of the case, with annexed documents relating to terrorist
activities in the area.
14. By letter dated 7 July 1995, the Government requested that two
witnesses be heard by the Delegates.
15. Evidence was heard by the delegation of the Commission in Ankara
from 10 to 12 July 1995. Before the Delegates the Government were
represented by Mr. B. Çaglar, Agent, assisted by Mr. T. Özkarol,
Mr. O. Someren, Ms. B. Pekgöz, Mr. A. Kurudal, Ms. S. Eminagaoglu,
Mr. M. Kilic, Ms. T. Toros and Mr. A. Kaya. The applicants were
represented by Professor K. Boyle and Ms. F. Hampson, counsel, assisted
by Ms. A. Reidy and Ms. D. Deniz (interpreter). Further documentary
material was submitted by the Government during the hearings. At the
conclusion of the hearings, and later confirmed by letter of
24 July 1995, the Delegates requested the Government to provide certain
documents and information concerning matters arising out of the
hearings and again requested to be provided with the contents of the
investigation files of the two public prosecutors. The applicants were
also requested to provide certain information and documents.
16. On 31 August 1995, the applicants' representative provided the
information and documents requested. On 5 September 1995, the
Government provided some of the documents requested.
17. On 9 September 1995, the Commission decided to invite the parties
to present their written conclusions on the merits of the case. By
letter dated 9 October 1995, the Secretariat reminded the Government
of the information and documents, requested in the earlier letter of
24 July 1995, which had still not been provided.
18. On 23 November 1995, the applicants submitted their final
observations on the merits. On 1 December 1995, the Government
submitted comments and factual information relating to the applicants'
relatives.
19. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
20. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
21. The text of this Report was adopted on 7 March 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
22. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
23. The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
24. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
25. The facts of the case, particularly concerning events in or about
25 June 1993, are disputed by the parties. For this reason, pursuant
to Article 28 para. 1 (a) of the Convention, the Commission has
conducted an investigation, with the assistance of the parties, and has
accepted written material, as well as oral testimony, which has been
submitted. The Commission first presents a brief outline of the events,
as claimed by the parties, and then a summary of the evidence submitted
to it.
A. The particular circumstances of the case
1. Concerning the alleged events in the village of Saggöze (Riz)
26. The village in which the alleged events took place has been
referred to in documents and by witnesses as both Saggöze and Riz. As
with many of the villages in the south-east, it has an older, Kurdish
or Ottoman name and a newer, official Turkish name. For the sake of
convenience, the report refers throughout to the former, which it
appears is the name of official usage.
a. Facts as presented by the applicants
27. The various accounts of events as submitted in written and oral
statements by the applicants are summarised in Section B below. The
version as presented in the applicants' final observations on the
merits is summarised here.
28. The applicants, Turkish nationals, all lived in hamlets of the
village of Saggöze, in the Genç district of the province of Bingöl in
South-East Turkey. The applicants, Azize Mentes, Mahile Turhalli and
Sulhiye Turhalli lived in the lower neighbourhood in Saggöze village
and the applicant, Sariye Uvat, lived in Piroz, a separate hamlet of
the village.
29. On 23 June 1993, an attack was carried out by the PKK (Kurdish
Workers' Party), an armed terrorist group, on Üçdamlar gendarme
station. On the evening of the same day, the security forces stopped
a minibus belonging to Naif Akgül, which regularly took people between
Diyarbakir and the Lice area, as it approached the gendarme station.
The security forces set fire to the minibus. The security forces
carried out a follow-up operation in pursuit of the PKK who had
attacked the station. On 24 June 1993, security forces came to the
Pecar (Güldiken) village and burned some of the houses.
30. On the evening of 24 June 1993, security forces arrived in the
area surrounding Saggöze village by helicopter. On the morning of 25
June 1993, gendarmes entered the village and gathered people from the
upper neighbourhood in the area in front of the school. Gendarmes in
the lower area carried out a search and then proceeded to burn houses
in the lower neighbourhood of Saggöze village. Villagers pleaded with
the gendarmes not to burn their houses but were told to remain quiet
or they too would be thrown on the flames. When asked why they were
burning the houses, the gendarmes told the villagers that it was a
punishment for helping the PKK.
31. The house where Azize Mentes lived (which probably belonged to
her father-in-law) was burned completely, along with her furniture,
firewood, barn and a shed with winter feed for the animals. Mahile
Turhalli's house was burned and the gendarmes threatened to throw her
into the burning house if she tried to retrieve some of her children's
clothes. Sulhiye Turhalli's house was burned, after she and her
children had been thrown out and she had been kicked, cursed at and a
gun put to her face. In all, ten to thirteen houses in the lower
neighbourhood were destroyed. The soldiers told the applicants that
they were burning their houses because they helped the terrorists.
32. The intention of the gendarmes in Saggöze village appeared to
have been to burn the whole village in revenge for the attack by the
PKK on the gendarme station. However, the arrival of a commanding
officer at midday, a colonel who ordered the burning to stop, saved the
upper village.
33. The house of the applicant, Sariye Uvat, in the hamlet of Piroz
was burned by the security forces in a separate incident.
34. The applicants were forced to leave Saggöze and now live
elsewhere.
35. Later, in the autumn of 1993 the remaining population of the
village left and in March 1994 the remainder of the village was burned
down. By this date in 1994, the entire area seems to have been burned,
devastated and depopulated.
36. The burning of the applicants' homes is consistent with a
practice of burning houses as part of the policy by the security forces
to combat the PKK, especially where the authorities view villages as
giving support to the PKK.
b. Facts as presented by the Government
37. The Government have not presented any written submissions on the
merits regarding the assessment of the oral evidence and other material
before the Commission. In their observations on admissibility, they
submitted as follows concerning the facts of the case.
38. Since 1983 the PKK has sought to use the applicants' village as
a place of shelter and supply base. The villagers under the incursions
of the terrorists were forced to leave the village. The terrorists used
the houses from time to time and when the security forces took action
against them, the terrorists fled setting the houses on fire.
39. There were no operations by the security forces in the area on
25 June 1993. In fact, the applicants had been absent from the village
for 6-7 years by that point. They are the close relatives of six named
individuals who are suspected of being members of the mountains branch
of the PKK.
40. The Government have provided further factual information relating
to relatives of the applicants (see Evidence before the Commission) who
have been detained on charges alleging, inter alia, that they have
aided and abetted the PKK terrorist organisation. They further submit
that other members of the applicants' families are currently working
for the PKK in rural areas. They submit that it is not a remote
probability that the applicants have been subject to pressure by their
relatives who aid and abet and work for the PKK.
2. Proceedings before the domestic authorities
41. Following the communication of this application by the Commission
to the respondent Government on 15 April 1994, it appears that the
Ministry of Justice (International Law and External Relations General
Directorate) contacted the public prosecutors' office in Genç informing
them in two separate notifications (one letter dated 9 May 1994) of the
complaints made by the applicants.
42. On 25 April 1994, a public prosecutor at Genç, Ata Köyçü, issued
his decision that there was no ground to prosecute the security forces
in relation to the applicants' allegations. The decision was based on
four statements from persons taken on 21 April 1994 (Selahattin Can,
Omer Yarasir, Mehmet Yolagelen and Ekrem Yarar) and concluded that
there was no operation on the day of the incident, though clashes had
taken place in the area from time to time in respect of nearby PKK
camps, and that the villagers had evacuated the village as a result of
persecution by the terrorists.
43. On 30 May 1994, another public prosecutor at Genç, Kadir Karaca,
issued a decision that there was no ground to proceed in respect of the
complaints, referring to the previous decision above and with further
statements taken from three persons on 27 May 1994 (Selahattin Can,
Omer Yarasir and Ekrem Yarar). He found that the applicant villagers
had left the village 6-7 years previously due to the threats of the
terrorists, that the houses had been destroyed by terrorists fleeing
from security forces and that the applicants were close relatives of
PKK militants in the mountains.
44. Following further contact by letter dated 2 January 1995 by the
Ministry of Justice with the Genç prosecutors' office concerning the
subject-matter of the application, a third decision not to prosecute
was issued on 17 February 1995 by public prosecutor, Selik Sözen. It
referred to the findings of the previous two investigations and
explained that two investigations had been undertaken on the earlier
occasion following the principle of division of work applied by public
prosecutors. According to that principle, since two documents, bearing
different reference numbers and dates, had been received, it was
necessary for two different prosecutors to carry out separate
investigations, notwithstanding the similarity of the subject-matter.
The decision stated that the reason it was not possible to hear the
applicant complainants was that they were no longer in the village and
it was not possible to establish their exact addresses with a view to
continuing the investigation. It concluded that there had been no
military personnel in the village and that no offence, or offender, had
been identified.
B. The evidence before the Commission
1) Documentary evidence
45. The parties submitted various documents, photographs and maps to
the Commission. The documents included reports about Turkey, reports
concerning terrorist activity in the region, and statements from the
applicants and witnesses concerning their version of the events in the
case.
46. The Commission had particular regard to the following documents:
a) General reports and official documents
Report of 8 August 1994 from Ministry of Justice to Ministry of
Foreign Affairs
47. The report, issued by the Directorate General for International
Law and External Relations of the Ministry of Justice, refers to the
information which had been received relating to the applicants'
complaints and to the decisions not to prosecute issued by the Genç
public prosecutors' office. It concludes that the events alleged did
not take place, that no operation was carried out in Saggöze on the
date in question, that the complainants had left the village 6-7 years
previously and that the villagers had left the village as the result
of terrorism. It lists the names of fourteen individuals, members of
the applicants' families, who are alleged to be PKK sympathisers. It
states that following an operation in June 1991 when 20 members of the
PKK were killed, two leaders of the PKK, "Amed" Zeki Parmaksiz and
Sakik Semdin, held the local villages responsible and decided that the
villages should be evacuated. The villagers from Geyikdere left, but
when the villagers of Saggöze did not, the PKK put pressure on them and
set fire to their houses. The report includes the details of the
applicants' addresses and personal circumstances, the source of which
is given as a letter dated 1 July 1994 from the Head of Public Order
Branch of the Diyarbakir Police Headquarters. The police source is also
cited as stating that Azize Mentes left the village to live in
Diyarbakir in 1987, Mahile Turhalli in 1990, and Sulhiye Turhalli
fifteen years before and that Sariye Uvat left her village in 1990.
Decisions of public prosecutors concerning relatives of the
applicants
48. The Government have provided three decisions of non-jurisdiction
concerning relatives of the applicants who have been detained on
suspicion of terrorist-related activities, namely decisions dated
19 October 1994 concerning Bahri Mentes, dated 28 October 1994
concerning Mehmet Gündogan and dated 25 November 1994 concerning
Abdurrahman Turhalli. Since the offences charged concern aiding and
abetting the PKK terrorist organisation, the decisions indicate that
the Genç public prosecutors lacked jurisdiction and the cases had been
transferred to the Chief Prosecutor's Office attached to the Diyarbakir
State Security Court.
b) Statements by applicants
Azize Mentes
Statement dated 22 July 1993 taken by the Human Rights
Association, Diyarbakir
49. At about 6.00-7.00 hours on 25 June 1993, 500-600 soldiers,
gendarmes and special team members carried out a raid on Saggöze
village. Many of the young men and old men had left the village before
this occurred, since they guessed a raid would take place when soldiers
began blockading the mountain.
50. The soldiers carried out a search and then surrounded the
village. In the lower neighbourhood of about ten houses, where the
applicant lived, the soldiers shouted at the women and children. They
said, "Where are the terrorists? You are all helping them, we'll burn
down all your houses and burn you alive inside them." The soldiers set
the houses on fire with a "lav" weapon. The applicant was unable to
salvage anything from her house. She lost all her property, including
3 tons of wood, 25 poplar trees in the garden and all the winter
foodstores in the barn. After the houses were burned, the gendarme
commander told them to leave the village.
51. The applicant went to live with her husband, three children,
mother-in-law, father-in-law, sister-in-law and two brothers-in-law in
Diyarbakir, where they live in a house with two bedrooms in a shanty
town area. They used to earn their living with agricultural farming but
now could not get any work or bring in any income.
Mahile Turhalli
Statement dated 14 July 1993 taken by the Human Rights
Association, Diyarbakir
52. At about 6.00-7.00 hours on 25 June 1993, 500-600 soldiers
blockaded the village of Saggöze. About 16 helicopters flew over the
village and landed on one side of the village and another 15
helicopters landed on the other side. The soldiers carried out a search
of the village, which they repeated. They found nothing. The young men
of the village had left the village the day before as they had received
word of the raid. The soldiers took the old men, including her husband,
to the space in front of the school and made them lie on their faces
in the sun from 7.00 to 12.00 hours, beating and swearing at them. The
women and children were held in the inner part of the village.
53. The soldiers poured petrol over the houses in the neighbourhood
where the applicant lived and burned them down, not allowing any
possessions to be removed. The soldiers said that they were doing these
things since the villagers helped the terrorists by sheltering them in
their homes and giving them food. They threatened to burn them alive
and kill them if they saw the villagers again. Before the soldiers
left, they shouted to the villagers to leave. After they left, they
surrounded the mountains around the village and kept it under
surveillance for three days. The villagers whose houses were burnt
down, including the applicant, walked ten hours to the Diyarbakir road
and reached Diyarbakir by hitching rides in passing vehicles. The
applicant now lives with her husband and children with relatives in
Diyarbakir. Before they had worked in their fields and orchards and now
they were unable to secure an income.
Sulhiye Turhalli
i. Statement dated 16 July 1993 taken by the Human Rights
Association, Diyarbakir
54. On 25 June 1993, helicopters of the Turkish security forces began
arriving in the mountains around the village. At about 6.00 hours, the
security forces, consisting of about 400-500 men, mostly special team
members, carried out a raid on the village. 16 helicopters landed in
front of the village and 15 behind. The soldiers began searching the
village neighbourhood by neighbourhood, and repeated the process twice.
The soldiers took the old men (the young men were not in the village)
to the area near the school and made them lie face down in the sun from
7.00 to 12.00 hours.
55. The women and children were ejected from their houses by the
soldiers, who set the houses on fire with "lav" weapons. The children
fainted from fear. The soldiers beat and swore at the women and
children and threatened to throw them on the fires. The soldiers began
to leave at about 16.00 hours. The applicant and the other villagers
whose houses had been burned could not leave the village immediately
as the village vehicle (bus) had been destroyed. They sheltered for a
while in houses which had not been burned and then the applicant, with
a few of her women neighbours walked for ten hours to the Diyarbakir
road and from there, were given rides in passing vehicles. All the
applicant's possessions were burned and she now lives with her 7
children in very bad conditions in Diyarbakir.
ii. Statement dated 2 November 1994 taken by the Human Rights
Association, Diyarbakir
56. This applicant gave a further statement, with Mahile Turhalli and
Sariye Uvat, in response to statements from other villagers submitted
by the Government.
57. The applicants were not related to Selahattin Can, Omer Yarasir,
Mehmet Yolagalen or Ekrem Yarar. Can, Yarasir and Yarar lived in a
hamlet called Mordaglik at least 7 km away from them, at a distance of
two hours walk. Yolagalen lived in Xizginosk hamlet at least 10 km
away. These men were not present in the village on the day of the raid.
58. These other villagers blamed the applicants for the operations
against the village, since the applicants had the same names as people
in the PKK. Earlier, when the villagers were choosing the muhtar, there
was always a conflict between the applicants and these others. The
houses of these others were not damaged and they have promised to help
the Government in return for benefits. The applicants were forced to
leave the village after their houses were burned.
Sariye Uvat
Statement dated 5 August 1993 taken by the Human Rights
Association, Diyarbakir
59. At about 6.00 hours on 25 June 1993, approximately 400 soldiers
from the Lice gendarme headquarters organised a raid on the Piroz
hamlet of Saggöze village which has 19 households. The villagers in the
hamlet had heard about a raid on Pecar (Güldiken) village one day
before and they left in the middle of the night before the soldiers
arrived. The applicant and the others walked six hours to the Sarimcayi
road and got rides from passing vehicles into Diyarbakir. When the
soldiers arrived in the hamlet, they set fire to all the houses and
remained in the area for two days before leaving. The applicant heard
about this from villagers from Saggöze, whose houses had also been
burned down on the same day.
60. The applicant was nine months pregnant at the time of the raid.
Because of the long walk in difficult conditions, she gave birth a few
days prematurely. The twin boys died when they were 10 days old. She
should have been admitted to hospital but did not have the money. The
applicant and her family (husband and five children) lived briefly with
a relative in Diyarbakir and then moved to live in a three-bedroomed
house in the shanty town area with the family of another villager.
c) Statements by other persons
Aysel Gündogan
Statement undated, faxed on 3 November 1994, taken by the Human
Rights Association, Diyarbakir
61. Aysel Gündogan lived in Saggöze village. On 25 June 1993, at
about 6.00-7.00 hours, the security forces carried out a raid on the
village and burned down ten houses, which were the homes of Abdullah
Satilmis, Abdullah Mentes, Sadik Sag, Ahmet Sag, Hasan Turhalli,
Selahattin Turhalli, Azize Mentes , Mahile Turhalli, Sulhiye Turhalli
and Sariye Turhalli. The men had run away when it was known that the
soldiers were coming. The soldiers beat the women when they tried to
put the fires out. Azize, Mahile, Sulhiye and Sariye were in the
village when this happened and watched helplessly with the others.
There was a conflict between these women and Selahattin Can, Omer
Yarasir, Mehmet Yolagalen and Ekrem Yarar, which concerned the
elections for the muhtar. These four men lived in another hamlet, at
least two hours away. Because of the high mountains, it was not
possible to see from their hamlet to the village. She lived herself
three minutes away from the houses which were burned in the raid. There
was no fighting in the village on the day of the raid. It was after
their houses were burned that the people (applicants) moved away.
Selahattin Can
i. Statement dated 21 April 1994 taken by Ata Köycü, Genç
public prosecutor
62. On 26 June 1993, Can was living in Saggöze village. There was no
incident where the men where tied up or the houses bombed by 30
helicopters. There had been from time to time clashes between the PKK
and the security forces. The terrorists had settled in houses in the
mountainous parts of the village which had been deserted by people
leaving under the threat of terrorists. The security forces carried out
an operation against these terrorists, who then fled from the village,
burning the houses. He had been forced to leave the village because of
threats from the terrorists.
ii. Statement dated 27 May 1994 taken by Kadir Karaca, Genç
public prosecutor
63. In June 1993, Can was living in the Tanriverdi hamlet of Saggöze
village. On 25-26 June, he went to the village. The security forces
carried out an operation but stayed outside the village: there was no
incident in which the elders were forced to lie on the ground or the
houses were fired at. He knew the four applicants but they had left the
village 5-6 years before and had not returned. They are close relatives
of terrorists in the mountains and make these allegations because of
that. He left the village because of the terrorists and came to live
in Genç. From time to time the terrorists came and sheltered in the
empty houses in the village which had been deserted by villagers
because of the terrorists. There were frequent clashes between the
security forces and the PKK.
Omer Yarasir
i. Statement dated 21 April 1994 taken by Ata Köycü, Genç
public prosecutor
64. Yarasir left Saggöze village in November 1993 as a result of
terrorism and came to live in Genç. The mountainous terrain around the
village suited the terrorists and there were clashes between the PKK
and security forces at various times. This was why they were forced to
leave. He was in the village on 26 June 1993 and on that day the
security forces did not tie up the village men or bomb the village with
30 helicopters.
ii. Statement dated 27 May 1994 taken by Kadir Karaca, Genç
public prosecutor
65. Yarasir was in the village in June 1993. It was true that the
security forces carried out an operation in those months but it was not
true that they emptied the houses and tortured the people by keeping
them in the sun. Terrorists lived in a large number of camps in the
mountains around. They came often to the village and because of their
threats all the people left and no-one remained. Terrorists came and
stayed in some of the deserted houses. When the security forces came,
the terrorists burned the houses and fled. He knew the four applicants
who were from the village but had settled in Diyarbakir 6-7 years
previously and had not come back to the village on the date mentioned.
They are close relatives of people in the PKK organisation.
Mehmet Yolagalen
Statement dated 21 April 1994 taken by Ata Köycü, Genç public
prosecutor
66. Yolagalen is a member of the Saggoz village council of elders.
On 26 June 1993, he was in the village and no incident as alleged
occurred. The men of the village were not tied up nor was the village
held under fire from 30 helicopters. There were terrorist camps around
the village and there were clashes between the PKK and security forces
from time to time.
Ekrem Yarar
i. Statement, undated, taken by Ata Köycü, Genç public
prosecutor
67. Yarar left Saggöze village about two years before and moved to
Genç. He went to the village from time to time. He had been and still
was the mayor. Because the terrain round the village was mountainous,
there were PKK camps nearby. There were clashes from time to time
between the PKK and the security forces and the camps were bombed. The
villagers started to leave the village as they had no guarantee of
safety from the terrorists. For the last year, there has been no-one
in the village, everyone leaving because of the terrorist camps. The
security forces did not come to the village, force the men to lie on
the ground and burn the houses. He was not in the village at that time.
There were only a few people living there then. He went there from time
to time and he would have been told if such an incident had occurred.
ii. Statement dated 27 May 1995 taken by Kadir Karaca, Genç
public prosecutor
68. Yarar, the mayor of Saggöze village, lived in Genç because of the
terrorists. He knew the applicants who were from the village. They had
left the village 6-7 years ago to live in Diyarbakir. They had no
relatives left in the village and they never came back to the village
afterwards. Azize Mentes's brother-in-law was a terrorist in the
mountains and Mahile and Sulhiye Turhalli are close relatives of the
PKK Bingöl regional leader Yusuf Turhalli, codenamed "Dr. Ali". Sariye
Uvat is also a close relative of them. There were terrorist camps near
the village and clashes broke out often, the security forces organising
operations against the terrorists. The terrorists constantly threatened
the villagers and the villagers all left the village because they were
not safe. The claimed incident where security forces made citizens lie
in the sun and destroyed the houses did not occur. The allegations have
been made by the applicants because they are close relatives of the
terrorists in the mountains. He has heard that the terrorists burned
the houses when the security forces launched operations against them.
Mizgin Ovat
Statement dated 24 July 1993 taken by the Human Rights
Association in the context of Application No. 23180/94
69. Early on the morning of 24 June 1993, 500-600 gendarmes organised
a raid on the village of Pecar (Güldiken) in retaliation for the armed
attack on the Üçdamlar gendarme station by the PKK the day before. The
evening before the security forces had burned the minibus of Naif Akgül
which ran to and from the Lice district. The young people of the
village had already left after this incident. The soldiers surrounded
the village and began burning down the houses. The house of Mizgin Ovat
was burned down on 25 June 1993.
Emine Yilmaz
Statement dated 3 August 1993 taken by the Human Rights
Association in the context of Application No. 23179/94
70. On the evening of 23 June 1993, at about 17.00 hours, Emine
Yilmaz and her husband were among the passengers on the minibus run by
Naif Akgül between Diyarbakir and the village of Pecar, when it was
stopped by gendarmes from Üçdamlar gendarme station about 2 km from
Pecar and taken to the station, where there were 2 helicopters, 10-15
armoured cars and 15 military vehicles. The driver was forced by the
gendarmes to set his bus on fire with petrol and then he and a number
of the other passengers, including some from Saggöze village, were
taken into custody. The applicant and her husband walked to Pecar where
they arrived in the evening. The villagers guessed that the gendarmes
would be carrying out an operation in the area and many of the young
people left.
71. At about 6.00-7.00 hours on 24 June 1993, about 500-600 gendarmes
from Lice district and Diyarbakir province gendarme stations arrived
at the village of Pecar. The house of the mayor was burned down, as
well as houses in the neighbouring hamlets and that of Emine Yilmaz.
2) Oral evidence
72. The evidence of 11 witnesses heard by the Commission's delegates
may be summarised as follows:
Azize Mentes
73. Azize Mentes stated that she was 28 years old and that she used
to live in Saggöze village. The village is situated at the foot of a
mountain and the surrounding terrain is mountainous and covered with
woodlands. The village was scattered with seven different
neighbourhoods. She lived in a lower neighbourhood, which was about
five minutes walk from the upper neighbourhood where the school was
situated. There were about 60 houses in these two neighbourhoods. The
security forces had visited the village six or seven times. She
remembered the soldiers assembling the entire population of the village
outside the schoolhouse on three occasions and on these other occasions
they carried out a search and went away again. Before the incident
occurred on 25 June 1993, she had been staying in Diyarbakir for ten
days, returning to the village about twenty days beforehand.
74. Soldiers arrived near the village in helicopters at about 19.00
hours on 24 June 1993. There were many soldiers (700, 800, a million
or more). They surrounded the village. On the morning of 25 June 1993,
the soldiers began searching the houses, looking for weapons. While
many of the young men were absent, working elsewhere, the older men
were there. Her own husband was in Diyarbakir.
75. There were four soldiers in front of her house while it was being
searched. About half an hour after the search, at about 09.00 hours,
four soldiers came from the school and said that the houses should be
burned down. Ten houses in the lower neighbourhood were burned. When
the houses were burning, the children were crying and they begged them
not to burn the houses. They were told, "if you speak any further we
will throw you on the fire". They watched the houses burn until ashes.
While initially, she stated that her own house caught fire from the
other burning houses, she later described the soldiers putting dust
in the house, using a small weapon with flames coming out, which caused
the dust to ignite. Soldiers said that they burned the houses because
they helped the terrorists and that if their houses were burned they
could not stay and help them any more. She said there was no clash
when the houses were burned. She was not allowed by the soldiers to
take any of her things out of her house before it burned down.
76. At about midday, 13.00 hours, another helicopter arrived and an
order was given to stop the burning, which saved the other houses from
being burned. The soldiers ate a meal prepared by the villagers and
then left at about 16.00 hours. After the burning took place, she
stayed five days in the village in a neighbour's house and then went
to Diyarbakir, where she lived with her husband, children and members
of her husband's family. In Diyarbakir, she went to the Human Rights
Association and spoke to them about what had happened.
77. No-one lived in the village any more. All the other houses had
been burned after they had been bombed by helicopters. This is what she
heard from the villagers who left at that time. She did not remember
the date, only that the villagers arrived in Diyarbakir when there was
snow on the ground. She asserted that she had lived in Saggöze village
for 25 years and that it was a lie that she had left six to seven years
before the incident. The villagers who said these things came from
hamlets three hours away. While the PKK had occasionally come in twos
or threes asking for food, they did not burn the village: they knew it
was the soldiers who had done this. The clashes which occurred did so
after June 1993 and it was then that the other houses were burned down.
78. She confirmed, inter alia, that her father-in-law was in prison
in Mus, accused of helping terrorists and that her husband's sister
Selamet was also in prison accused of involvement with the PKK.
Mahile Turhalli
79. Mahile Turhalli said that she was fifty years of age. The date
of birth on her identity card is 3 May 1948. Azize Mentes was her
neighbour and Sulhiye Turhalli is married to her husband's brother.
Prior to June 1993, she had lived in the village of Saggöze all her
life.
80. On the day of the incident, 25 June 1993, she had been in her
house with her children. Her husband was in Diyarbakir hospital with
an eye-problem. The evening before, helicopters arrived with many
soldiers who surrounded the village. They had a meal, some tea, and
then went back to the place where they stayed all together overnight.
She had provided food for some of them. The soldiers returned the next
morning around 7.00-8.00 hours. While the children were still in bed,
her house was surrounded by soldiers. They told her to take the
children out of the house because they were going to burn it. She
asked them if she could take out the children's clothes and shoes, but
the soldiers said, "If you go back in we will burn you too." She and
the children, who were naked, waited outside. She pleaded with them not
to burn the house but they said that she was giving food to the
terrorists. She said that she would only give food to the terrorists
out of fear and that she also gave food to the soldiers. The soldiers
scattered something in the house, then set fire to it with a match.
The soldiers did not leave until the roof of the house had collapsed.
81. Thirteen houses in the same neighbourhood were destroyed by fire
on that day. These included her house and those of Azize Mentes and
Sulhiye Turhalli which were next to hers. After burning this group of
houses the soldiers said they were going to burn the whole village
down. However an order was received to stop the burning and the rest
of the houses were left intact. She and her children stayed the night
in the village and the next morning, they walked ten hours to the road
where a driver took them to Diyarbakir.
82. She remembered going to the Human Rights Association and making
a complaint. She had not seen any incident in which the old men of the
village were gathered together or ill-treated nor had she made any
statement to that effect. Her husband had not been there, nor had the
husbands of Azize Mentes and Sulhiye Turhalli, who were out in the
fields harvesting the wheat. She did not know if other men had been
in the village. There had been no men in her neighbourhood. She had
not said in her statement to the Human Rights Association that the
young men had left the village the night before for fear of a raid by
the soldiers.
83. Previously, the soldiers had not come very often to the village
and when they had done so it had been in small numbers. They had made
searches and left. There had been no clashes while she had been there.
On a later occasion, the other houses in the village had been burned.
She said that she did not know Omer Yarasir or Selahattin Can. Nor did
she have any knowledge of persons of the name Turhalli who were alleged
to have been arrested, or to have fled the country or been members of
the PKK.
84. Her family has a difficult time in Diyarbakir with her husband
being 70 years old and in poor health with his eyes. Her children are
still young. She is knitting sweaters and labouring. One of her sons
is 7 years old and he is selling water and polishing shoes. Her house
in the village had had three rooms with plenty of furniture, beds and
sofas. When the house burned down, she had lost a little money but
mostly furniture and animals. They had had walnuts in the house; the
goats were in the mountains but three cattle in the barn were burned
along with the house.
Sulhiye Turhalli
85. Sulhiye Turhalli said that she was 55 years old. Before June
1993, she had lived for 27 years in the lower neighbourhood of Saggöze
village where Azize Mentes and Mahile Turhalli were her neighbours.
There were 13 houses in the lower neighbourhood: it took 20-30 minutes
to reach the upper neighbourhood from there.
86. The soldiers arrived in helicopters the day before 25 June 1995.
There were many soldiers (over a thousand). At 8.00 hours on
25 June 1993 the soldiers entered the village. They came to her house
and she served some of them tea. The soldiers told her to leave the
house which was to be burned. They stopped her and her family removing
furniture, gathered furniture together in the house, scattered stuff
over it and set fire to it with a match. She was kicked and pulled out
of the house by her arm. Powder was also scattered over the garden and
set alight. The house collapsed in the flames. She, the other women
and children cried as the houses burned: the soldiers threatened to
kill them and stuck guns in their mouths. The lower neighbourhood was
the only part of the village burned: all thirteen houses were burned,
the soldiers staying until the roofs had collapsed. She heard from a
woman who came down from the upper neighbourhood that a colonel from
Genç district had arrived in the upper neighbourhood: he said that the
soldiers had not been ordered to burn the houses and directed them to
stop. They had been in the process of spreading chemical powder in the
upper neighbourhood when he arrived. She heard also that in the upper
neighbourhood the old people were hit in front of the school. A bridge
was also burned down.
87. She said that there were some men in the upper neighbourhood but
none in her neighbourhood; some of them had gone to work and others to
the fields. Her own husband had left early that morning to go to
Diyarbakir. The soldiers left the village before evening. She and her
children hid in the rocks nearby overnight and left next morning,
walking ten hours to the main road, which took two more nights. They
came to live in Diyarbakir. All her possessions were destroyed (house
furniture, trees, firewood), save a little money. She had done well
living in the village, making bread and with her own garden and
vegetables. Now it was hard for them to make ends meet washing clothes
and doing manual work.
88. She heard later that the houses in the upper neighbourhood of the
village had been burned down in autumn 1993. She said that she did not
know the villagers who had made different statements about what had
happened in the village. She knew the name of Ekrem Yarar, but did not
know him and said that he wanted to be muhtar in the village. He lived
in a hamlet 5 hours away from her neighbourhood.
Aysel Gündogan
89. Aysel Gündogan said that she was born on 1 July 1970 and
presently lived in Diyarbakir. In the summer of 1993, she and the
applicants lived in the village of Saggöze. Her house was in the
upper neighbourhood about four or five minutes walk from the
applicants, with the exception of Sariye Uvat whose house was in the
Piroz (Piranz) hamlet about two and a half to three hours away. Her
own house was a few minutes away from the school and mosque. Azize
Mentes , who was her sister-in-law, lived in the neighbourhood with her
father-in-law and members of his family but used to go back and forth
from Diyarbakir. Mahile and Sulhiye Turhalli stayed in the village all
the time.
90. On the day of the incident, she had been at home. On the evening
before, soldiers had arrived by helicopters in the mountains near the
village. Around 7.00-8.00 hours next morning, they entered the village
and searched the houses, including her own. The soldiers who searched
her house asked her what she was doing, how she earned her living. When
the soldiers had first arrived in the village, they had burned down a
bridge and a mill. Then they had gone to the lower neighbourhood where
they burned houses. She had first realised that the houses of the
applicants were burning when she saw smoke coming out of them. She
asked people what was going on and they replied that the houses were
being burnt. She could see and hear children crying. She had heard
from the soldiers that around noon (in fact any time between 11.00 and
13.00 hours) a commander had arrived by helicopter and ordered the
soldiers over the wireless to stop the burning. There had been many
soldiers, more than a thousand in her opinion, although she could not
count. The soldiers left around four or five o' clock in the afternoon
by helicopter. They had not gathered the people in front of the school:
that was what had happened on a previous visit by the soldiers, when
she was not there. She had not been beaten by the soldiers, only
prevented from going down to the lower neighbourhood to help.
91. After the soldiers had left, she went down to the lower
neighbourhood and saw the houses smouldering there. She saw Azize
Mentes, Mahile Turhalli and Sulhiye Turhalli there and she spoke to the
latter two. She thought all three left the village that night. The
houses of Mahmut Sadik, Abdullah Satilmis, Abdullah Mentes, Refik
Satilmis, Sadik Sag, Hilmi Sag, Hasan Turhalli and Faik Satilmis had
also been burned.
92. Her husband had not been in the village, having gone to work
elsewhere. The young people had left the village immediately, fearing
the soldiers, and only the elderly men and the women were at home. She
had left in the autumn with her husband. She was told that the soldiers
returned to the village one or two months after the June incident. They
made a search but caused no damage. The rest of the villagers left the
village in October 1993. Some of the villagers had gone to live in Genç
and others, most of her relations and herself, had gone to live in
Diyarbakir. No-one had been back to the village since and she did not
know if her house was destroyed or not.
93. She said that she did not know Selahattin Can, Omer Yarasir or
Mehmet Yolagalen, though she knew that Can had an uncle who lived in
her neighbourhood. However she did recognise the name of Ekrem Yarar
because he was the mayor of Saggöze, who used to come and go between
the different parts of the village. She said that there had not been
good relations between the Saggöze village and the mayor because the
villagers had wanted another candidate for mayor. She said that there
was only one woman in the village called Sulhiye Turhalli, who was
elderly (that is to say, around forty to fifty years old).
94. She remembered going to the Human Rights Association in
Diyarbakir in the summer of 1994. She had made her statement to the
Association. They had read it back to her and she signed it. She
confirmed her signature on the document.
Selahattin Can
95. Selahattin Can said that he was born in 1954 and now living in
Genç. He previously lived in Mordaglik which was a hamlet of Saggöze
village. This was an hour from the other houses in the village, where
he had some relatives. He used to visit there about once or twice a
week (four-five times per month).
96. He said that on 25 June 1993 he was in Saggöze visiting an uncle.
However, in his own words, he also said that it was in the tenth month
that he was at his uncle's. His uncle's neighbourhood was ten minutes
away from the lower part of the village where Azize Mentes, Mahile and
Sulhiye Turhalli lived. It was Azize Mentes' father-in-law Bahri
Mentes, not Azize herself, who had a house in the lower neighbourhood.
At about 7.00-8.00 hours, he looked out and saw an operation was taking
place. They surrounded the village and told the villagers to go to the
area near the school. A helicopter arrived, with a colonel. There were
10-15 soldiers with him. This was in June 1993; he did not know what
day but there was no burning at that time. He said that the colonel
chatted to them and said it was a pity that they were leaving the
village and told them not to. One or two days before this visit, the
terrorists had apparently carried out a raid on the gendarme station
at Üçdamlar village, near Lice. This was the reason for the operation
in the village. The colonel said to the villagers that terrorists had
been there and asked where they had gone. The villagers replied that
there had been no terrorists in the village. The soldiers left that
day. They had not gone into the lower neighbourhood. There were no
searches or assaults. He stayed two-three more nights with his uncle
before returning to his own hamlet.
97. In October 1993 all the villagers left, half to Diyarbakir and
half to Bingöl. He left then and no-one remained. At another point, the
witness seemed to say that he left with all the others in January 1994.
The village had not been burned at that stage. They left because they
could not cope with the terrorists, they kept asking for food and
wanted the young men and girls. He referred to terrorists coming to the
village and to Piroz when there was one metre of snow on the ground
(possibly January) and settling in some of the houses (eg. the lower
neighbourhood houses which Mentes and the others had left), though the
villagers told them to leave. When the terrorists said they would stay
during the winter, the people took their families and animals and left.
Then in 1994 in the summer there was a big operation in the village and
a clash. The village was burned though he did not know who burned the
village. He had not himself been back to the village.
98. He knew Azize Mentes and Mahile and Sulhiye Turhalli. Their
houses could be seen from his uncle's house - there were no hills
between, though there were trees. He said that he had heard that Azize
Mentes, Mahile and Sulhiye Turhalli had left their houses in 1990.
In 1993 in the summer the elderly came back to plant vegetables but no-
one stayed in the winter. Only Sulhiye Turhalli and her daughter-in-
law were there in June 1993. There was no burning then.
99. As regarded his statements to the public prosecutor in April and
May 1994, he stated that he went in response to an appeal by the public
prosecutor. When he was called a second time he said that his statement
was the same and he did not recall signing a second statement. Where
the statement referred to terrorists burning the houses, this occurred
in the summer of 1994. He could not read or write and did not know what
the public prosecutor wrote. He appeared to agree that some villagers
blamed the Turhalli and Mentes families because they had similar names
to alleged terrorists, which brought the attention of the soldiers to
the village, and that the soldiers came to the villages to search as
a result of this. The soldiers had come to the village once or twice
in two-three months saying that terrorists were there and that the
villagers should let them know when the terrorists came.
Omer Yarasir
100. Omer Yarasir said he was born in 1933. Since October 1993, he had
lived in Genç. Previously he lived in Mordaglik all his life. His
hamlet of about 13 households was an hour to an hour and a half from
Saggöze village. The soldiers used to visit the village every month
or so to ask about the terrorists.
101. Some time in June, towards the end of the month, a helicopter
with a few soldiers had stopped in Saggöze. He went over to the village
in the afternoon out of curiosity as to why a helicopter should land
there. He thought something must be going on, some sort of terrorist
affair. He arrived two-three hours before sunset. On his way, he caught
up with Selahattin Can who was also going to the village. The villagers
told him what had happened. Soldiers came along the Lice road to the
village and carried out a search. They asked if terrorists were there.
The villagers had replied in the negative. A colonel had arrived in
the helicopter and assembled the old people and children and asked them
if they had any information about terrorists. The helicopter only
stayed about half an hour and the soldiers left down the Lice road.
There was no incident on that date in the village or hamlets. He saw
no damage to any of the houses. They were burned apparently at the end
of October or beginning of November. He did not know whether the houses
were burned down, and if so, by whom, or whether they caught fire from
weapons.
102. The villagers had problems with the terrorists who came for food
and to hold meetings, asking for the young people. In fact, there had
been no young people left in the village after 1990. The situation was
bad. The village was evacuated by the villagers in October 1993. It was
after that that houses were burned. He heard that about 300 terrorists
came to live in the empty houses in Saggöze and about 200 in Piroz. He
heard that there was a clash between the terrorists and the security
forces in November 1993, in which eight terrorists were killed and one
soldier. The houses were burned down in the clash. A few people stayed
in his hamlet until April 1994, when everyone left and terrorists moved
in. He heard from village guards, who had been involved in an operation
in the village in April 1994, that there was no hamlet left and not a
single house left standing; there had been a clash in which several
terrorists and soldiers had been killed and the village set on fire.
The village guards said that all the villages in the region were burned
down.
103. He knew the applicants. Sariye Uvat was from Piroz. He had heard
that Azize Mentes had married and gone to Diyarbakir. He said that the
applicants always went to Diyarbakir in the autumn and in the summer
came back to the village to tend their walnut trees and fruit. Azize
Mentes did not have a house; she came to her father-in-law's house or
stayed with her father (Selahattin Turhalli). On his way into the
village in June 1993, he had passed through the lower neighbourhood:
he had seen Sulhiye outside her house which was intact as were the
others.
104. He had given two statements to the public prosecutor concerning
alleged events in Saggöze in June 1993. The muhtar had told him that
a call had come from the public prosecutor requesting that several
people attend to answer questions. He was told by the public prosecutor
the names of the people who made the complaints. He did not tell the
prosecutor that it was the terrorists who burned the houses but said
that the houses burned because of a clash and it was either the
soldiers or the terrorists.
Ekrem Yarar
105. Ekrem Yarar said that he was born in 1955. He used to live in
Mordaglik (Tanriverdi) hamlet but had gone to live in Genç in 1987. He
had been the mayor of the village since 1978. He used to go back and
forth to the village once a week, 2-3 times a month. There were 9
hamlets. There were constant clashes between the PKK and the security
forces, which was why in October 1993 the villagers evacuated the
village. After that, there were clashes from October until the sixth
or seventh month in 1994. In October 1993, there was a clash for four-
five days in which up to ten houses were burned down (those of Abdullah
Satilmis, Sadik Sag and Ahmet Sag). Then there were clashes from April
for a couple of months. By the time of the sixth-seventh month, no
houses were left. Sulhiye's and Mahile's houses burned in 1994. He had
been to the village once in 1994, in May, and he saw Sulhiye's house
with his own eyes. Only a few were left standing then, the others
having been burned. He also referred to an operation involving 700 PKK
members and in the resulting clash which lasted two days a number of
PKK members (probably six) and one soldier were killed and the whole
village was apparently burned. He did not know whether it was the PKK
or the security forces who set fire to it, since it happened after the
villagers had left. He heard news about their village from village
guards who were involved in operations. He had made a petition about
the destruction of the houses to the Governor of the province, the
district governor's office and other military offices. He commented
that the Genç zone and its villages were in ruins. He stated that he
had never heard of the Turkish army inflicting acts of cruelty on the
people or burning down houses for no reason.
106. He knew the four applicants, who had used to live in the village,
Sariye in Piroz, Azize Mentes and Sulhiye Turhalli in Saggöze. They
were friends, with no animosity between them. Azize had left before
1990 or 1991 with her husband and he never heard of her coming back
after 1991 (she was in Diyarbakir and more recently in Istanbul). She
did not have a house but her father-in-law Bahri Mentes had a house
where she stayed before 1991. He had seen Bahri when he visited the
village after the soldiers' visit in June: Bahri had also arrived after
the soldiers had left. He used to come in the summer. He had asked the
villagers and they had said Azize was not there in June 1993; he had
asked them again after he heard that she had made a petition. Sulhiye
and Mahile Turhalli used to go to Diyarbakir in the winter and to the
village in the summer. They were both in the village from June to
August 1993. Saggöze was about an hour and a half from Mordaglik.
107. He was not in the village at the time of the alleged incident but
the villagers would have told him when he came a week later. He heard
of no incident occurring, only that in June a group of soldiers came
from Lice, one commander and fifteen soldiers, gathered people in front
of the school and asked them about the PKK visiting the village: they
stayed 3-4 hours in the village, without going to the lower part and
then left. There was no burning or anything of the sort. He referred
to being visited by Sulhiye who stayed the night at his house and made
no mention of any incident. He had helped Sulhiye with her old age
pension forms and they visited each other once or twice per year. Her
ID card recorded her date of birth as 1928-1929. He had only heard that
in or about August 1993 when the soldiers visited the village again,
they went to Sulhiye's house and she offered them tea and food, for
which the soldiers expressed proper thanks. When he had seen her in
February 1995, he had mentioned the complaint and she had said that
maybe the people who had filed the application were using her name and
that she had never heard a thing about it.
108. As regarded his statements to the public prosecutors, he
remembered that the public prosecutor had called him asking about an
incident on that date and saying that if there were reliable people
from his village who had seen the incident on that date he was to bring
them. He took 2-3 people with him and they made statements that no such
incident had occurred. He could not take anyone from Saggöze since
there were no families from there living in Genç: they were all in
Diyarbakir, Hatay and Erzin. On both occasions, he and the other
witnesses went together. On the first occasion, the public prosecutor
had read out the names of the people making the complaint. He did not
know the addresses of the applicants in Diyarbakir. He knew that they
had relatives in the PKK.
Mehmet Yolagalen
109. Mehmet Yolagalen said that he was born in 1960, and that he had
lived in Genç for the last 3 years. Before that, he had lived in
Hizgümüz, Sevimli hamlet, which was one hour's walk from the Saggöze
village. It was one of the ten hamlets of Saggöze. He could see the
houses of the applicants from his hamlet and from the front of his own
house. It was a flat area. On the day in question, at about 8.00-
9.00 hours, he saw a helicopter flying over. He went to visit his uncle
in Saggöze in the morning arriving at about 9.00-10.00 hours (he at
another point said that it was the evening when he arrived at his
uncle's and then that he had visited the village on two consecutive
days). The helicopter had left by the time he arrived and he saw no
soldiers. His uncle said that a colonel had arrived in the helicopter
with a few soldiers, told the people to assemble and talked to them,
offering to take any sick people to hospital. Helicopters used to come
and survey the area all the time checking the villages for terrorism
problems. This was the first time that one landed. There was no burning
at that time.
110. He knew the people in the upper and lower neighbourhood of
Saggöze village. His uncle lived in the upper neighbourhood. Azize
Mentes had no house in Saggöze, having left eight years before.
111. He came to live in Genç three years ago because of terrorism.
About four years before, the terrorists came, gathered all the
villagers and asked for the young people. The old men discussed this
and in the evening the young people all fled to Genç. The old people
stayed for one-two years. He left since there was no peace and had
never been back. Village guards told him that his house had been
destroyed and that there were no houses left standing.
112. He confirmed his statement of April to the public prosecutor.
He was sent word by the muhtar to go to the public prosecutor's office
and he went alone. He was asked a second time, probably by a different
public prosecutor, and he repeated the same statement. There were
people from Saggöze village living in Genç, as well as in Diyarbakir.
He knew the addresses of the villagers living in Genç.
Ata Köycü
113. Ata Köycü was born in 1962 and was public prosecutor at Genç from
December 1992 until 7 June 1994. He was unable to recall exactly how
the investigation culminating in his decision not to prosecute of 25
April 1994 had commenced. He did not have the file with him. From the
material available before the Delegates, he stated that the
investigation commenced on receipt of a request by the Ministry of
Justice. He would have taken the initiative to interview the four
women complainants if their names had been notified to him. He
investigated events in the village which had been evacuated due to
terrorism a year after the alleged offence. He seemed to recall that
he tried to contact the four women, but they had left the village
without giving any address and they contented themselves with the
evidence which they had found. At another point, he stated that if he
had known the names of the women they would have figured in his
decision not to prosecute, but whether the names were known at the time
of his investigation would appear from the file. To find witnesses,
they usually write to the police and to the security forces, who
investigate previous addresses and anywhere else where the witnesses
might be; his conjecture was that there were documents in the file
showing that such inquiries were carried out. He did not consider it
necessary to go to the village or to question the military. The four
witnesses who gave statements were found at random through the police
and they had said that they were from the same hamlet where the events
took place. The muhtar was one of those chosen but he did not choose
the others. He thought that he would have enquired from the gendarme
station as to any operations carried out on 25 June 1993 and that this
would be in the file.
114. He was aware that a second investigation had been carried out by
the other prosecutor at Genç, Kadir Karaca. He explained that if two
claims or notices are received, or subsequent information is received,
a second investigation may be carried out relating to the same matters.
115. As regarded the events of 1993, he recalled that it was a year
of intense terrorist activity, with clashes constantly breaking out.
They received no complaint during that time of villagers' houses being
burned by security forces but, where there were allegations that
terrorists had set fire to houses, they carried out the necessary
investigations and referred the matters to the Diyarbakir State
Security Court. He was issuing scores of documents like that every day:
there were daily incidents of violence at that time. He had never
recommended prosecution of the security forces with respect to any
alleged burning of villages. He supposed that they must have dealt with
the investigation of the alleged terrorist burning of the village
earlier, whenever those houses were burned.
Kadir Karaca
116. Kadir Karaca said that he was born on 15 November 1964 and that
he had been one of the public prosecutors in Genç for 20 months. As
regarded his decision not to prosecute of 30 May 1994, he started this
investigation following the report from the Ministry of Justice,
International Law and External Relations Department and he discovered
that there had been a previous investigation. There was no reference
to the first investigation in the Ministry's report which concerned
only the incident and the complaint of the four women. When asked what
he did to get in touch with the applicants, he said that the applicants
had not contacted them directly and that they did not know their
addresses, only the village having been mentioned. The statements of
the witnesses said that the applicants had not been there for 6 to 7
years. He seemed sure that he would have issued oral or written
instructions to the security forces to find the applicants. He
considered that they made a complete investigation - he talked to
witnesses, studied his colleague's decision, wrote to gendarmes and
security officers. He did not think it necessary to visit the village
and from the reasoning of the decision, it was apparent that he had
thought it unnecessary to take statements from security force members,
but without seeing the file, he could not be sure whether he did or
not.
117. As regarding how he found the witnesses from whom he had taken
statements, he had based himself on the previous investigation. He
called them a second time since there were things they might have
forgotten. He had no personal recollection of hearing of any incident
in Saggöze in 1993. He received 400 to 500 documents a year. He
recalled that the security situation was problematic and clashes
happened in Saggöze and elsewhere. He referred to the failure of
complainants to come forward and assist with the investigation.
118. He explained that every complaint received is registered in the
investigation record and is followed to a conclusion, whether a
decision of lack of jurisdiction or a decision not to prosecute. No
decision of insufficient grounds is final, therefore it was always
possible for further steps to be taken on new matters arising and, in
such circumstances, it is more correct to carry out a new investigation
under a new number. He could not recall ever having instigated a
prosecution against a member of the security forces in relation to
allegations of destruction of houses, though he had done so in respect
to other types of offences. He must have prepared almost a hundred
files relating to terrorist acts.
Yasar Tuna
119. Yasar Tuna said that he was thirty-three years of age, having
been born in 1962. He took up the post at Genç as the commander of the
gendarmerie in the Bingöl province on 18 July 1993, i.e. he was not in
the Genç district on 25 June 1993. His predecessor was now working in
the western part of Turkey and was called Major Adil Bogakaptan. When
he took up office there had been a two-week overlap, with his
predecessor informing him of the work to be done and briefing him on
the area. He had been told of the camp positions of the terrorists for
example. He had also been informed that Saggöze was used frequently
by the terrorists, for the holding of meetings and the like. His
predecessor had not mentioned anything about an incident in Saggöze
village in June 1993. When he started, there were many clashes between
the terrorists and security forces. There were continuous
confrontations.
120. The village of Saggöze was under his responsibility. He had
never actually been there himself but has seen it from the air, from
helicopters. The village is in a mountainous region and the landscape
lends itself to terrorist settlement. The north, east and west of
Saggöze are surrounded by high mountains. To the south there is a
valley which creates the only access. This valley runs south, with a
deep riverbed like a canyon, which runs through Üçdamlar and then
branches off. Saggöze is the first village at the entrance to the
valley. It has two hamlets in the south and two in the north which are
about six to eight hours apart. These hamlets are attached to the
village but are some way from each other. In the winter, communications
were severed due to weather conditions: 6-8 metres of snow. Because of
the terrain, helicopters would have to be used to transport men there.
121. The winter migration of villagers was common. Many had their own
houses in Diyarbakir. In Saggöze the villagers used to leave in the
winter and go to Diyarbakir where most had connections but some also
went to Genç or elsewhere, returning in the summer to tend to their
crops. After the winter of 1993, because of terrorist activities, the
villagers no longer felt safe and left the village completely empty.
He had never heard any complaints from villagers that soldiers or
police had burnt their houses. Saggöze had not been intentionally
destroyed, but had been damaged during clashes which may have involved
bombing or burning. These houses are fragile, being made of a special
kind of earth and clay, reinforced with stones. The roofs are made of
wood, which is covered in mud made from this special earth. He could
not be sure if the Saggöze houses had been damaged in clashes or by
difficult weather conditions. He had no information that any houses
in Saggöze had been burned down. The gendarmes would have received
petitions for help from the villagers if this was so.
122. He explained that it was true that some houses get damaged during
confrontations between the terrorists and security forces. In this
case the State pays compensation to the victims of such clashes.
Elsewhere to the north-east of Saggöze, houses have been built for the
evacuated population. He mentioned two housing programmes with up to
one hundred units being built and also the rehousing of villagers from
Geyikdere, northeast of Saggöze, in 55 houses built for them in Genç.
A committee had been formed to evaluate the level of the destruction,
the amounts to be paid to villages, which villagers were the priority
cases for aid, and which villagers should benefit from the new housing.
In respect of one programme for 100 houses, they had received
applications from 1,500 people alleging that they had suffered damage.
The gendarmerie received hundreds of applications for help after damage
had been caused in PKK clashes. He confirmed that there was a housing
programme for the needy, as well as financial and food contributions
to the families in need. Financial assistance had been given to about
100 persons the year before. The gendarmerie had assisted in the
organisation of medical programmes, for example that of the polio
vaccination of children. The gendarmerie coordinated road construction,
electricity and waterworks where needed. Announcements had been made
to the villagers of the possibility of such help.
123. Helicopters are frequently used to patrol the area and transport
troops. Depending on the size of the helicopter and the type, the
height of the region to be patrolled and the temperature, different
types of helicopter are used which carry from 10-25 men. He has access
to all types of helicopters for this purpose. Several helicopters may
be used in an operation, such operations having to be planned
thoroughly in advance. After each clash, reports are made to the
superior commander by the operation commander.
124. He could not estimate how many people had migrated in south-east
Turkey but did not agree that one million had been displaced. The
destruction of housing may have non-violent explanations such as
seasonal conditions. Such houses are not strong and may collapse in
poor weather. They are rebuilt in the spring by the villagers. Only
the schools, medical centres and other official buildings remain intact
because they are made out of concrete. No-one under his command had
deliberately destroyed houses. This would be a crime so it could not
happen. The gendarmerie's purpose is not to harm people but to help
them. They provide all kinds of assistance eg. ambulances in maternity
cases. He did not share the opinion, as alleged in various reports,
that soldiers systematically destroy villages as part of a counter-
terrorism strategy.
C. Relevant domestic law and practice
125. The parties have made no separate submissions with regard to
domestic law and practice. The Commission has incorporated its summary
of the relevant domestic law and practice in the case of Akdivar and
others v. Turkey (No. 21893/93 Comm. Rep. 10.95 pending before the
Court), which includes the provisions relied on by the Government and
representatives of the applicant villagers (the applicants in this case
adopt the same arguments for the purposes of this application).
126. The Government submit that the following provisions are relevant.
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its
own acts and measures."
127. This provision is not subject to any restrictions even in a state
of emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of
the Administration, whose liability is of an absolute, objective
nature, based on a theory of "social risk". Thus the Administration may
indemnify people who have suffered damage from acts committed by
unknown or terrorist authors when the State may be said to have failed
in its duty to maintain public order and safety, or in its duty to
safeguard individual life and property.
128. The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of the
powers conferred by this law are to be brought against the
Administration before the administrative courts."
129. The Turkish Criminal Code makes it a criminal offence
- to deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to oblige someone through force or threats to commit or not to
commit an act (Article 188),
- to issue threats (Article 191),
- to make an unlawful search of someone's home (Articles 193 and
194),
- to commit arson (Articles 369, 370, 371, 372), or aggravated
arson if human life is endangered (Article 382),
- to commit arson unintentionally by carelessness, negligence or
inexperience (Article 383), or
- to damage another's property intentionally (Article 526 et seq.).
130. For all these offences complaints may be lodged, pursuant to
Articles 151 and 153 of the Code of Criminal Procedure, with the public
prosecutor or the local administrative authorities. The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding whether a prosecution should be initiated,
pursuant to Article 148 of the Code of Criminal Procedure. A
complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.
131. If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human lives or damaging property, if they have not followed
orders in conformity with Articles 86 and 87 of the Military Code.
Proceedings in these circumstances may be initiated by the persons
concerned (non-military) before the competent authority under the Code
of Criminal Procedure, or before the suspected persons' hierarchical
superior (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
132. If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial
Assembly). The local council decisions may be appealed to the Council
of State; a refusal to prosecute is subject to an automatic appeal of
this kind.
133. Any illegal act by civil servants, be it a crime or a tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts.
134. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
135. Damage caused by terrorist violence may be compensated out of the
Social Help and Solidarity Fund.
136. The applicants point to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme (paras. 137-
142 below):
137. Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
138. Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983. That includes Law 2935 on the
State of Emergency of 25 October 1983, under which decrees have been
issued which are immune from judicial challenge.
139. Extensive powers have been granted to the Regional Governor of
the State of Emergency by such decrees, especially Decree 285, as
amended by Decrees 424 and 425, and Decree 430.
140. Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas which are subject to the state of emergency,
with the effect that the decision to prosecute members of the security
forces is removed from the public prosecutor and conferred on local
administrative councils. These councils are made up of civil servants
and have been criticised for their lack of legal knowledge, as well as
for being easily influenced by the Regional Governor or Provincial
Governors, who also head the security forces.
141. Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"No criminal, financial or legal responsibility may be
claimed against the State of Emergency Regional Governor or
a Provincial Governor within a state of emergency region in
respect of their decisions or acts connected with the
exercise of the powers entrusted to them by this decree,
and no application shall be made to any judicial authority
to this end. This is without prejudice to the rights of
individuals to claim indemnity from the State for damage
suffered by them without justification."
142. According to the applicants, this Article grants impunity to the
Governors. Damage caused in the context of the fight against terrorism
would be "with justification" and therefore immune from suit. Moreover,
Decree 430 reinforces the powers of the Regional Governor to order the
permanent or temporary evacuation of villages, to impose residence
restrictions and to enforce the transfer of people to other areas. So
the law, on the face of it, grants extraordinarily wide powers to the
Regional Governor under the state of emergency and is subject to
neither parliamentary nor judicial control. However, at the relevant
time there was no decree providing for the rehousing of displaced
persons or the payment of compensation.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
143. The Commission has declared admissible the applicants' complaints
that on 25 June 1993 State security forces burned their homes,
destroying their property and forcing them to evacuate the village and
causing, in the case of Sariye Uvat who was pregnant at the time, the
premature delivery of twins, who died shortly afterwards.
B. Points at issue
144. The points at issue in the present case are as follows:
Concerning Azize Mentes, Mahile Turhalli and Sulhiye Turhalli
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 3 (Art. 3) of the
Convention;
- whether there has been a violation of Article 5 para. 1
(Art. 5-1) of the Convention;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of
the Convention;
- whether there has been a violation of Article 14 (Art. 14) of
the Convention;
- whether there has been a violation of Article 18 (Art. 18) of
the Convention.
Concerning the fourth applicant, Sariye Uvat
- whether there has been a violation of the above provisions and,
in addition, a violation of Article 2 (Art. 2) of the Convention,
in respect of the premature delivery and demise of her twin boys.
C. The evaluation of the evidence
145. Before dealing with the applicants' allegations under specific
Articles of the Convention, the Commission considers it appropriate
first to assess the evidence and attempt to establish the facts,
pursuant to Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. It
would make a number of preliminary observations in this respect.
i. there has been no detailed investigation on the domestic
level as regards the events which occurred in Saggöze village and
its surrounding hamlets over the period from June 1993 to summer
1994; the Commission has accordingly based its findings on the
evidence given orally before its Delegates or submitted in
writing in the course of the proceedings;
ii. it has been significant in this case that there have been
material differences between the written and oral statements made
by applicants and witnesses. Where this has occurred, the
Commission has tended to give weight to the oral testimony given
before its Delegates. It is a matter of grave concern that the
statements taken both by the Human Rights Association, for the
purpose of applications to the Commission, and by public
prosecutors, in the context of domestic investigations, do not
appear to record strictly the independent recollections of the
applicants or witnesses concerned but often appear to recite
stereotyped and preconceived assumptions to suit the purpose of
the document in question;
iii. in relation to the oral evidence, the Commission has been
aware of the difficulties attached to assessing evidence obtained
orally through interpreters (in some cases via Kurdish and
Turkish into English): it has therefore paid careful and cautious
attention to the meaning and significance which should be
attributed to the statements made by witnesses appearing before
its Delegates; in relation to both the written and oral evidence,
the Commission has been aware that the cultural context of the
applicants and witnesses has rendered inevitable a certain
imprecision with regard to dates and other details (in
particular, numerical matters) and does not consider that this
by itself reflects on the credibility of the testimony;
iv. the Government have failed to provide, despite repeated
requests by the Commission's secretariat and the Commission's
Delegates, documentary materials, in particular the contents of
the investigation files of the two public prosecutors who carried
out investigations into the alleged incident in Saggöze village.
At the taking of evidence in July 1995, the Government failed to
identify and serve with the Commission's summons the gendarme
commander for the area on 25 June 1993, his successor Mr. Tuna
appearing instead. No explanation has been forthcoming for this.
In this respect, the Commission has had regard to the principle
that, in assessing the evidence in an application the conduct of
the parties may be taken into account (eg. Eur. Court H.R.
Ireland v. the United Kingdom judgment of 18 January 1978, Series
A no. 25, p. 65, para. 161 in fine).
1. General background
146. The Commission notes that the village of Saggöze was situated in
a mountainous area which was subject to significant PKK terrorist
activity. Due to the events in the region in 1993 and 1994, many of the
villages in the district have been evacuated by the villagers and the
houses destroyed. It recalls the statement of the mayor, Ekrem Yarar,
that the Genç area and its villages were in ruins and the number of
persons whom the gendarme commander Yasar Tuna recalled applying for
one rehousing project (1500 for 100 houses). By the summer of 1994, the
village of Saggöze and its surrounding hamlets were deserted, the
villagers having left for Diyarbakir, Genç and other places, and the
houses ruined.
147. Having regard to the written and oral statements of the
applicants and villagers (Gündogan, Yarar, Yarasir, Yolagalen, Can),
the Commission finds that Saggöze village was evacuated as a whole by
the villagers in or about October 1993, following pressure from the PKK
in the area. Some of the villagers in the outer hamlets stayed beyond
October 1993 but had all left due to PKK presence by summer 1994.
Shortly after the villagers began leaving, the PKK moved into the empty
houses. Clashes with security forces ensued, one in October or
November 1993, another in April/May 1994. It is probable that houses
in the village were burned or destroyed in the course of these clashes,
possibly including bombing from helicopters (Tuna para. 121, Mentes
para. 77): however whether the PKK or the security forces set fire to
the houses intentionally or accidentally is not established, no witness
having any direct knowledge.
148. Whether or not the applicants' houses were burned in the course
of an operation by the security forces at an earlier date in June 1993
is examined below.
2. Inquiries and investigations at a domestic level
149. While in oral evidence, public prosecutor Ata Köycü supposed that
there must have been an investigation at that time into the burning of
houses in Saggöze by terrorists which occurred in late 1993 or before
the summer of 1994, the Commission has not been provided with any
report or document relating to any such investigation. It is not
prepared to assume that any such investigation took place at that time.
150. The first investigation into the events in Saggöze was conducted
by one of the two public prosecutors at Genç, Ata Köycü, in response
to a letter from the Ministry of Justice, which appears to have been
motivated by information received when the applicants' complaints were
communicated by the Commission to the Turkish Government on 15 April
1994 (date of letter informing them of the Commission's decision of 5
April). The Commission has not been provided with the letter or with
copies of the contents of the investigation file. In reconstructing the
investigation, the Commission's Delegates received little assistance
from the public prosecutor who was also handicapped by not having the
copy of his file for reference.
151. However, his decision not to prosecute was dated 25 April 1994,
which must have been a matter of less than two weeks from his receipt
of the first notification of the complaints. It seems likely, based on
his own recollection and from the lack of any reference in statements
and the decision, that the applicants' names were not known to him at
that stage. He appears to have contacted the police with a view to
locating villagers, who put him in contact with the muhtar Ekrem Yarar.
While he stated that the witnesses were chosen at random and not by the
muhtar, Ekrem Yarar's recollection was that he had been invited to make
a statement and to bring other reliable witnesses from the village. He
took Yarasir, Can and Yolagalen, two of them from his own hamlet and
the third from another hamlet at some distance from the village.
Yolagalen and Yarasir also recalled that they were told to come by the
muhtar.
152. The statements of the four villagers taken on 21 April 1994 are
brief. They do not specify that these villagers are from different
hamlets, distinct from Saggöze and appear mainly directed at refuting
specific allegations : the bombing by helicopters in June 1993 (not in
fact alleged in the applicants' original application) and the tying up
or beating of the old men. All refer to terrorist clashes with security
forces leading to the villagers' departure from the village. Only one,
Can, attributed the burning of houses to the PKK.
153. The decision not to prosecute, which concludes that the evidence
indicates that no incident occurred on 25 June 1993, is based, in the
Commission's view, solely on the four statements from villagers. In the
absence of any other documents from the investigation file being
provided as requested, the Commission finds that no other steps were
taken to investigate.
154. As regards the second investigation which immediately succeeded
the first, the Commission again has not been provided with the letter
from the Ministry of Justice of 9 May 1994 which caused the other
public prosecutor to open another investigation. This time however it
appears that the names of the applicants were provided, being referred
to in the statements taken and in the concluding decision not to
prosecute which was issued on 30 May 1994, three weeks later. The
Commission finds that the second public prosecutor at Genç, Kadir
Karaca, based himself on the investigation of his colleague. He
referred to the previous four statements and summoned the four
villagers concerned, though it appears that Yolagalen did not sign
another statement. Can also recalled informing the prosecutor that his
statement was the same though a second statement, including new
elements, appears to have been signed by him. In the absence of any
other material from the investigation file, the Commission finds that
no other steps were taken to establish the facts of what occurred,
either by way of enquiring from the gendarmes as to any operation
which might have taken place or by seeking to question villagers from
the upper or lower neighbourhoods of Saggöze itself. While the muhtar
denied that anyone from the upper or lower neighbourhoods of Saggöze
lived in Genç, both Aysel Gündogan and Mehmet Yolagalen knew of persons
who did.
155. Further, it appears that, while the names of the applicants were
known, no approach was made either to find the addresses of or to
contact the applicants with a view to inviting them to provide
statements as to the factual circumstances of the case. The Commission
notes that the addresses of the applicants were known to the
authorities in Ankara who had been in contact with the police in
Diyarbakir (see report dated 8 August 1994 from Ministry of Justice
referring to a letter from the police dated 1 July 1994). The
Commission does not accept that the public prosecutor was unable to
contact the applicants: it finds that in all probability he considered
that, in light of the statements which he had taken from the villagers,
it was unnecessary to do so.
156. The decision of 30 May 1994 not to prosecute concluded that the
PKK burned the houses in the village, that no incident alleged took
place in June 1993 and that the applicants were close relatives of
members of the PKK. In oral evidence however Yarasir denied that he
had told the public prosecutor that the PKK burned the houses, since
he did not know whether it was the soldiers or the PKK and Yarar also
stated that the burning happened after he left and he did not know who
set fire to the village.
3. Concerning the alleged events of 25 June 1993
a. concerning the presence of Azize Mentes, Mahile Turhalli and
Sulhiye Turhalli in Saggöze village on 25 June 1993
157. The Government submit that the applicants were not in the village
on 25 June 1993, the date of the alleged incident, and that they had
left the village 6-7 years before. They appear to rely on the written
statements of Can, Yarar and Yarasir which have since been supplemented
by the oral evidence of those three villagers and Mehmet Yolagalen.
158. The Commission recalls that the written statements of the
villagers, Yarasir, Can and Yarar, refer in general and brief terms to
the "applicants" as having left the village 5-6 or 6-7 years before.
The written statements are generally directed at the applicants from
the lower village, without any differentiation between the factual
circumstances of each individual. However in the oral evidence given
before the delegates, Selahattin Can, Omer Yarasir and Ekrem Yarar said
that Sulhiye Turhalli was there in the summer of 1993, the latter two
referring to seeing her in the village, and Ekrem Yarar said that
Mahile Turhalli was there in the summer also. Indeed the thrust of
the oral evidence regarding the absence of the applicants from the
village concentrates on the applicant Azize Mentes . The villagers Can,
Yarasir, Yolagalen and Yarar all insisted orally that she did not have
a house there and that it was her father-in-law, Bahri Mentes, who did.
Ekrem Yarar stated orally that she had left before 1990 or 1991 and
that according to what he had heard she did not return. Can stated that
only Sulhiye Turhalli was there, the Mentes' and other Turhallis being
absent and having left in 1990. Yarasir seemed orally to include Azize
Mentes in his description of the applicants' custom of coming to the
village in the summer, stating that Azize stayed in her father-in-law's
house. Yolagalen stated briefly that she had left eight years before,
without adverting to whether or not she could have returned for the
summer.
159. The Commission recalls that Azize Mentes, Sulhiye and Mahile
Turhalli maintained in their oral evidence before the Delegates that
they were present in the village, and that this was supported by the
evidence of Aysel Gündogan who came from the upper neighbourhood. It
notes that Ekrem Yarar was not in fact in Saggöze on the day in
question, visiting only a week later and that he bases his opinion that
Azize Mentes was not there on the fact that he had asked villagers, who
had said that she was not. Can and Yolagalen also lived elsewhere, in
the hamlet of Mordaglik, an hour to an hour and a half away, though
they stated that they visited the upper neighbourhood of the village
on that day.
160. The Commission is satisfied that Sulhiye and Mahile Turhalli were
still living in their houses in the village of Saggöze, in its lower
neighbourhood, in the summer of 1993 and that they were present on
25 June 1993. However, as appears to be a not uncommon pattern of life
in this region according to the gendarme commander Yasar Tuna, these
two applicants left the village in the winter for Diyarbakir and
returned in the summer to tend to their gardens and crops. As regards
Azize Mentes, the Commission finds that, while she probably did not own
a house herself, she lived in the house of her father-in-law, when she
returned in the summer months to the village and that, on the balance
of the evidence, she was also there in the lower neighbourhood on
25 June 1993. The Commission does not find the evidence of Yarar, based
on hearsay from unspecified sources, or that of the other villagers who
came from other hamlets, convincing on this point.
b. the alleged operation by security forces on 25 June 1993 in
Saggöze village
161. The Government deny that the applicants' houses in Saggöze
village were burned by the security forces on 25 June 1993 as alleged
in their application. The Commission has considered the written and
oral evidence of the four villagers, Can, Yarasir, Yolagalen and Yarar,
which flatly contradicts the version of events given by the applicants
in denying that any houses were burned by soldiers in the lower
neighbourhood of Saggöze village on 25 June 1993.
162. As regards the written statements, these are not detailed. The
earlier statements taken in April are not particularly directed at the
essence of the applicants' complaints, namely the burning of their
houses; they refer to muddled details (bombing by helicopters, which
was not alleged by the applicants) and appear to describe later events
when the village as a whole was evacuated and destroyed in subsequent
clashes between the PKK and the security forces. The statements taken
in May are more specific, referring to the applicants by name and
specifying, in the case of Can and Yarar, that houses were not burned
as alleged. The Commission has had regard to the circumstances in which
these statements were printed. No step was taken to question villagers
who lived either in the upper or lower neighbourhood where the incident
occurred. The public prosecutors relied on the muhtar Ekrem Yarar to
bring witnesses: Yarar alleged that no villagers from Saggöze itself
lived in Genç, whereas according to Aysel Gündogan, some of the
villagers from Saggöze had settled in Genç, including Mahmut Sadik, who
allegedly also had had a house burned in the incident. Yolagalen also
stated that he knew the addresses of persons from the village living
in Genç. The muhtar chose instead to bring two villagers from his own
hamlet and one from another hamlet. The Commission notes the reference
by Ekrem Yarar to the instruction from the public prosecutor to bring
"reliable" witnesses. It accordingly finds it unsafe to rely on the
written statements insofar as they are unsupported by other evidence.
163. As regards the oral evidence given by the four villagers, the
Commission recalls that three of them claim to have visited Saggöze
village on 25 June 1993 and to have seen that no operation in which
houses were burned took place. They agree however that soldiers arrived
on that date and spoke to the villagers in the upper village. The
accounts of all four vary as to the other details. Can was the only one
who said he was present at that time and he refers to the village being
surrounded, which implies large numbers of soldiers at least outside
the village, whereas Yarar and Yolagalen state that there were only a
few soldiers (10-15 in Yarar's case). Can says that there was no
search; Yarasir says that there was. Yarasir and Yolagalen appear to
have arrived the evening after the soldiers had left and only heard
from others what had occurred. Their accounts are particularly
confused with regard to the time they left and arrived in the upper
neighbourhood; Yarasir also claims to have met on his way to the
village Selahattin Can, who made no mention of this and who anyway
claims to have arrived there the night before. The Commission finds the
accounts of Yarasir and Yolagalen unconvincing. Both claim to have
seen a helicopter fly over to Saggöze and out of curiosity walked one
hour or more to see what had happened, though Yarasir stated that
soldiers used to visit the village once a month and Yolagalen also
referred to helicopters flying over frequently. Can's evidence is more
consistent: he appeared to agree however that the applicants were
blamed by certain villagers due to their names being the same as those
of terrorists, which brought soldiers to the village. This supports to
a limited extent the allegations of the applicants that there was a
certain animosity between other villagers and themselves, which might
have motivated their willingness to make statements contradicting the
applicants.
164. The oral evidence given by Ekrem Yarar indicates that he only
arrived at Saggöze the week after the alleged incident but was clear
as regards his denial that any houses had been burned by that date.
However, his evidence includes a claim of close acquaintance with one
of the applicants, Sulhiye Turhalli. When she was asked if she knew
him, she answered in brief impersonal terms, stating that she did not
know him: he paradoxically referred to helping her with an old age
pension claim (eligibility for which is an age of 65) whereas she in
her evidence stated that she was only 55 years old. The Commission
finds it also significant that, as muhtar of the village, he did not
know the addresses of the applicants particularly since he claimed to
have been in contact with Sulhiye Turhalli. The tenor of his evidence
was dogmatic, including blanket denials of any alleged cruelty or
burning ever having been committed by Turkish soldiers.
165. The Commission has balanced the above evidence against the
evidence given by the applicants and the witness Aysel Gündogan.
166. It notes that the account given by the three applicants who gave
oral evidence differed in material details from their written
statements. Sulhiye and Mahile Turhalli are recorded by the Human
Rights Association as alleging that the old men of the village
(including in Mahile's account her own husband) were gathered and made
to lie in the sun until midday, beaten and insulted. In oral evidence,
Mahile Turhalli stated that her husband was not in the village and that
no such incident took place and Sulhiye Turhalli referred only to
hearing from someone else that old people were hit in front of the
school. The written statements refer also to the young men leaving the
village before the raid out of fear, whereas the applicants in oral
evidence made no reference to any flight, indicating instead that the
young men were working in the fields or elsewhere in the normal course
of events. In oral evidence, all three applicants referred specifically
to the particular event of the arrival of a helicopter with a colonel
who put an end to the burning - a significant detail which is not
included in any written account. This casts, in the Commission's view,
serious doubt on the methods by which the Human Rights Association
takes statements, and the extent to which care is taken to record
accurately the recollections of each individual complainant without
contamination from information gathered elsewhere.
167. The Commission has found the three applicants' oral evidence on
the whole consistent and credible. It sees no significance in the
differing estimates of the numbers of soldiers involved or in the
inflated figures given by Azize Mentes : it seems probable that by one
million she meant one thousand and it is in any event clear in the
context that it was intended to convey the fact that there were many
soldiers. Their account was also supported in material points by Aysel
Gündogan.
168. While the Commission finds that it is unsafe to rely on the
contents of the applicants' written statements, there is no doubt that
the applicants went to the Human Rights Association to make their
petitions. These are dated 14, 16 and 22 July 1993, the first within
three weeks of the alleged incident and the last within one month.
This seems to the Commission to be a strong factor weighing in favour
of the credibility of their central complaint, the burning of their
houses: it would not be likely that the applicants would register a
petition alleging that their houses had been burned if, in fact, the
houses were still standing and could be verified as still standing,
only eventually being burned, along with the other houses in the
village, many months afterwards.
169. Consequently, the Commission is not persuaded by the Government's
suggestion that the applicants' complaints are fabrications resulting
from pressure exerted by their relatives in the PKK. It finds
regrettable that the response of the domestic authorities and
Government to the allegations made in this case has given the
appearance of being directed more towards emphasising the PKK links of
the applicants' families than to dealing with the substance of the
applicants' grievances.
170. The Commission sought official verification of the nature and
scale of the operation of the gendarmes which appeared in all accounts
of the villagers to have taken place on 25 June 1993. In particular it
wished to hear orally the gendarme commander with jurisdiction for the
area in which the village was located. He was not identified or served
with the Commission's summons by the Government. Yasar Tuna who took
over from this commander after the events in question stated that he
was not briefed in relation to any operation in Saggöze occurring on
that date. The Commission requested copies of field reports for any
operation conducted in the vicinity of the village in June 1993 until
the end of October 1993. It was provided with 12 reports by Bingöl
Provincial gendarme headquarters to Ankara, covering various incidents
and clashes involving the PKK, none of which appeared to occur in the
vicinity of Saggöze village or in the month of June.
171. The applicants' representatives have relied on statements from
applicants in other applications (No. 23180/94 Mizgin Ovat and No.
23179/94 Emine Yilmaz) which describe a raid by the PKK on a
gendarmerie station at Üçdamlar, following which security forces
responded in a retaliatory fashion, burning a local minibus, and
carrying out an operation on the nearby village of Pecar (Güldiken)
and, in their reconstruction of events, continuing the next day, to
search and burn in the neighbourhoods and hamlets of Saggöze. The
Commission would note that the applications, declared admissible, are
still pending determination on the merits and that the Government
dispute the version of events given by the applicants. However, in the
Ovat application, the Government provided a copy of a field report from
the gendarmerie. This report dated 24 June 1993 confirms that on
23 June 1993 the PKK opened fire on a party of gendarmes from Üçdamlar
gendarme station, climbing idris hill on reconnaissance and on the
gendarme station itself. During these clashes, one gendarme died. It
also appears that some of the PKK fled to the north-east and that the
security forces responded to the clashes by a search which continued
throughout the day.
172. In the course of his evidence, Yasar Tuna described Saggöze
village as lying on the first inlet, branching off the valley running
south with a river bed like a canyon towards Üçdamlar: he described it
as suitable terrain for advancing. From the information and maps
provided, it appears that Saggöze lies about or within 10 kilometres
of Pecar (Güldiken) village and the Üçdamlar station. Further, the
villager Can stated spontaneously in his oral evidence that the reason
for the operation in the village was that one or two days before there
had been a raid on Üçdamlar gendarme station. The statement of Sariye
Uvat also refers to the villagers of Piroz hearing of an operation at
Pecar village on 24 June 1993.
173. In the absence of any written official record or other official
source as to any operation in Saggöze village in June 1993, the
Commission finds that there is sufficient evidence before it to
indicate that it was events in Ãœcdamlar which probably caused the visit
of gendarmes to the village of Saggöze on 25 June 1993. It is
unnecessary and inappropriate to make any findings as to the alleged
occurrences involving a village bus or the village of Pecar.
174. As regards the events in Saggöze itself, the Commission accepts
in its principal elements the evidence of the three applicants given
orally before the Delegates. It finds that their oral evidence was more
consistent, more credible and more convincing than the evidence of the
four villagers, Can, Yarasir, Yolagalen and Yarar, the circumstances
in which their statements came to be given in particular undermining,
in the Commission's view, their reliability. The Commission finds as
follows:
175. On the evening of 24 June 1993, a large force of gendarmes
arrived in the vicinity of Saggöze village. On 25 June 1993, the
gendarmes entered both upper and lower neighbourhoods and carried out
searches. At some point, the villagers in the upper neighbourhood (with
the exception of the younger men who were out working) were gathered
before the school, probably to be questioned concerning the PKK in the
area. In the lower neighbourhood, the women, including the applicants,
were required by the soldiers to leave their houses and their houses
were set on fire, with all their belongings and property inside,
including the clothing and footwear of children. The burning was
restricted to the lower neighbourhood. Around midday, a helicopter
arrived in the village in the upper neighbourhood, probably bringing
a senior officer, a colonel, and his arrival was associated by the
applicants and some of the other villagers with an order to cease the
burning. The gendarmes left that day. Shortly afterwards, the three
applicants, with their children or other members of their family, had
to walk for up to ten hours to the Lice-Diyarbakir road from where they
were given rides in vehicles into Diyarbakir.
c. Concerning the alleged events in Piroz hamlet
176. The Commission notes that the only source of information relating
to the alleged operation by security forces in which the house of the
fourth applicant, Sariye Uvat, was burned along with others in the
hamlet of Piroz, is the statement of 5 August 1993 taken by the Human
Rights Association in Diyarbakir.
177. The Commission has had regard above to the inconsistencies
between the oral testimony given by the three other applicants and the
statements taken by the Human Rights Association. It finds that the
reliability of this statement is in doubt, in light of the Commission's
concerns with the way in which the other statements were taken.
178. No other independent evidence has been submitted to the
Commission concerning alleged events in Piroz. The applicant herself
was unable to come to give evidence before the Commission's delegates
in Ankara, a statement of ill-health being provided which she had
thumbprinted. The Commission notes that she herself in her statement
is recorded as having left the village before any soldiers arrived.
The basis on which it is stated that soldiers burned all the houses is
not apparent.
179. The applicants' representatives have submitted that, if the
account of the three other applicants regarding events in another part
of the Saggöze village is accepted as being true, then on the balance
of probabilities, Sariye Uvat's account should also be accepted.
180. The Commission recalls that it has found the oral testimony of
the other three applicants to be consistent and credible. It has also
considered significant the timing of the applicants' complaints, less
than a month after the alleged occurrence. While Sariye Uvat also
complained within two months in relation to the alleged operation in
her hamlet, the Commission does not find this sufficient to support any
finding of fact as to what may or may not have occurred. It must
therefore conclude that no facts have been established in relation to
this applicant's complaints.
181. On the basis of these findings the Commission will now proceed
to examine the applicants' complaints under the various Articles of the
Convention.
D. Concerning the applicants Azize Mentes, Mahile Turhalli and
Sulhiye Turhalli
1. As regards Article 8 (Art. 8) of the Convention
182. Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
183. The applicants allege that the destruction of their homes by the
security forces and their arbitrary expulsion from their village
constitute two separate violations of the right to respect for their
family life and home, ensured by Article 8 (Art. 8) of the Convention.
184. The Government maintain that there is no evidence to substantiate
the applicants' allegations against the security forces.
185. The Commission is of the opinion that, in the light of its
findings of fact above (para. 175 above), there has been a very serious
interference with the applicants' rights under Article 8 (Art. 8) of
the Convention by State security forces, for which no justification has
been given. While it has found that the applicant Azize Mentes did not
in all probability have a house herself, she did live in the house of
her father-in-law when she visited the village periodically in the
summer. The Commission finds that given the close family connection and
the nature of Azize Mentes ' residence (she was present for significant
periods on an annual basis and had property in the house), her
occupation of the house on 25 June 1993 falls within the scope of
protection provided by Article 8 (Art. 8). In light of the grave nature
and effects of the interference in this case, which cut across the
entire personal sphere protected by the different and frequently
overlapping limbs of Article 8 para. 1 (Art. 8-1) (private life, family
life and home), the Commission finds it unnecessary to distinguish
between them.
CONCLUSION
186. The Commission concludes, by 27 votes to 1, that there has been
a violation of Article 8 (Art. 8) of the Convention.
2. As regards Article 3 (Art. 3) of the Convention
187. The Commission will now examine whether the interference with the
applicants' home and family life was so serious that it also amounted
to a violation of Article 3 (Art. 3) of the Convention, which provides
as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
188. The applicants allege that the forced and immediate expulsion of
themselves and their families on 25 June 1993, inflicted in the
circumstances surrounding the incident, caused them such severe
physical and mental suffering as to constitute inhuman and degrading
treatment contrary to Article 3 (Art. 3) of the Convention.
189. The Government contend that the allegation is wholly groundless
on the facts, as there were no security operations in the village on
that day and any damage to the village was caused later by PKK
terrorists.
190. The Commission recalls its findings above (para. 175). It
considers that the burning of the applicants' homes constituted an act
of violence and deliberate destruction in utter disregard of the safety
and welfare of the applicants and their children who were left without
shelter and assistance and in circumstances which caused them anguish
and suffering. It notes in particular the traumatic circumstances in
which the applicants were prevented from saving their personal
belongings and the dire personal situation in which the applicants
subsequently found themselves, being deprived of their own homes in
their village and the livelihood which they had been able to derive
from their gardens and fields. It accordingly finds that the applicants
have been subjected to inhuman and degrading treatment within the
meaning of Article 3 (Art. 3) of the Convention.
CONCLUSION
191. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 3 (Art. 3) of the Convention.
3. As regards Article 5 para. 1 (Art. 5-1) of the Convention
192. Article 5 para. 1 (Art. 5-1) of the Convention guarantees the
right to liberty and security of person.
193. The applicants allege that they were compelled to abandon their
homes and village on 25 June 1993 in flagrant breach of the right to
the exercise of liberty and the enjoyment of security of person.
194. The Government have not addressed this aspect of the case save
insofar as they deny that any incident occurred.
195. The Commission recalls that the primary concern of Article 5
para. 1 (Art. 5-1) of the Convention is protection from any arbitrary
deprivation of liberty. The notion of security of person has not been
given an independent interpretation (cf. Nos. 5573/72 and 5670/72, Dec.
16.7.76, D.R. 7 p. 8; No 4626/70 et al., East African Asians v. the
United Kingdom, Dec. 6.3.78, D.R. 13 p. 5).
196. In the present case, none of the applicants was arrested or
detained, or otherwise deprived of her liberty. The Commission
considers that their insecure personal circumstances arising from the
loss of their homes does not fall within the notion of security of
person as envisaged by Article 5 para. 1 (Art. 5-1) of the Convention
(see also Akdivar and others No. 21893/93 Comm. Rep. 26.10.95 pending
before the Court).
CONCLUSION
197. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 1 (Art. 5-1) of the Convention.
4. As regards Articles 6 para. 1 and 13 (Art. 6-1, 13) of the
Convention
198. Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention
provide as follows:
Article 6 para. 1 (Art. 6-1)
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law ... ".
Article 13 (Art. 13)
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
199. The applicants allege that the arbitrary expulsion from their
homes and village was a flagrant, direct interference with their civil
rights within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. They claim to have been denied an effective procedure to
challenge or resist the deprivation of their possessions. They also
claim to have had no effective domestic remedies for their various
Convention claims, contrary to Article 13 (Art. 13) of the Convention.
200. The Government contend, without specifying, that there are
several effective domestic remedies at the applicants' disposal, but
that they tried none of them.
201. The Commission refers to its decision on admissibility in the
present case (see appendix to this Report) where, in the context of
Article 26 (Art. 26) of the Convention, it found that the application
raised identical issues to those considered by the Commission in the
case of Akdivar and others (loc. cit., decision on admissibility,
19.10.94). In Akdivar, the Commission examined the remedies on which
the Government relied as offering effective redress but concluded:
"...in the absence of clear examples that the remedies put
forward by the Government would be effective in the circumstances
of the present case,... that the applicants are absolved from the
obligation to pursue them."
202. While there was domestic case-law referred to by the Government
indicating that there might be a channel of complaint through the
administrative courts which could award compensation to the individual
against the State on the basis of the latter's liability to ensure the
protection of citizens from various social risks, the Commission
considered that this case-law was insufficient to demonstrate that
compensation claims were effective remedies in the emergency regions
of South-East Turkey for the destruction of homes and villages
allegedly perpetrated by security forces.
203. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention requires effective access to court for civil claims. This
requirement must be entrenched not only in law but also in practice.
The individual should have a clear, practical and effective opportunity
to challenge an administrative act that is a direct interference with
civil rights, as in the present case (mutatis mutandis, Eur. Court
H.R., de Geouffre de la Pradelle judgment of 16 December 1992, Series
A no. 253-B, p. 43, para. 34).
204. The Commission finds that there are undoubted practical
difficulties and inhibitions in the way of persons like the present
applicants who complain of village destruction in South-East Turkey,
where broad emergency powers and immunities have been conferred on the
Emergency Governors and their subordinates. It notes that there has
been no example given to the Commission of compensation paid to a
villager in respect of the destruction of a house by the security
forces nor any example of a successful, or indeed any, prosecution
brought against a member of the security forces for any such act. The
Commission refers to the evidence taken in the present case. The two
investigations undertaken by the public prosecutors in Genç were brief
(2-3 weeks duration), based on extremely limited enquiries which
omitted any attempt either to contact the applicant complainants or to
seek substantive information from the alleged perpetrators of the
burning (see paras. 149-156). These enquiries further omitted to seek
the most relevant and direct evidence by locating other villagers from
the part of the village allegedly affected. The Commission has grave
doubts as to the process by which the mayor Ekrem Yarar and the other
three villagers from hamlets at some distance from the village were
chosen and relied on to give evidence.
205. The Commission considers that the decisions not to prosecute
which issued as a result of these investigations were fundamentally
flawed, both as regards the evidential basis on which they rested and
the attitude revealed by the procedure which was followed. This gives,
in the Commission's view, the appearance not of pursuing the goal of
establishing what might have occurred but of rebutting allegations,
which were assumed in advance to be baseless. The Commission recalls
that the prosecutor Ata Köycü stated that he had never received any
complaints that houses had been burned by the security forces, nor had
he ever instituted any prosecutions against any member of the security
forces in respect of any such incident. Nor did Kadir Karaca recall
carrying out any prosecution of gendarmes in respect of allegations of
destruction of houses. The Commission observes that both these
prosecutors noted in the villagers' statements and in their concluding
decisions that it was the PKK which had burned Saggöze and its hamlets.
Before the Commission's Delegates however, two of the villagers whose
evidence was apparently relied on by the prosecutors were not prepared
to say whether the houses in the village were burned by the terrorists
or soldiers since it happened after the villagers had all left. The
Commission has found that no investigation took place to verify what
occurred in the village and hamlets of Saggöze. There is, it appears,
too great a readiness on the part of the authorities to place the blame
for all unattributed damage on the terrorists without seriously
enquiring further (see also the Commission's findings in Akdivar and
others v. Turkey, loc. cit. paras. 198 and 212).
206. The Commission recalls that the applicants did not in fact make
any petition to the public prosecutors but that the investigations were
instigated by the Ministry of Justice in Ankara when the complaints
were communicated to the Government by the Commission. The
investigations which occurred however indicate that complaints that
security forces have destroyed villagers' houses do not in practice
receive the serious or detailed consideration necessary for any
prosecution to be initiated. Where the allegations concern the security
forces, which enjoy a special position in the emergency area in the
south-east, the Commission considers that it is unrealistic to expect
villagers to pursue theoretical civil or administrative remedies in the
absence of any positive findings of fact by the State investigatory
mechanism.
207. In the light of these considerations, the Commission is of the
opinion that the applicants did not have effective access to a tribunal
that could have determined their civil rights within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
208. Some of the applicants' Convention claims do not necessarily
involve their civil rights, and may not require a full court remedy,
for example their claim concerning the alleged forcible evacuation of
their village and relating to their subsequent personal difficulties.
Positive State action to investigate the incidents promptly, to rehouse
or financially assist these villagers, rather than passively awaiting
administrative court intervention, may have been a more appropriate
response to the applicants' plight. The question arises therefore under
Article 13 (Art. 13) of the Convention whether the applicants have been
afforded effective domestic remedies for these claims notwithstanding
that the violations have allegedly been "committed by persons acting
in an official capacity". However, for the same reasons outlined above
(paras. 204-206), the Commission considers that the applicants did not
have other effective remedies at their disposal for their remaining
Convention claims as required by Article 13 (Art. 13) of the
Convention.
CONCLUSIONS
209. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
210. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 13 (Art. 13) of the Convention.
5. As regards Articles 14 and 18 (Art. 14, 18) of the
Convention
211. Articles 14 and 18 (Art. 14, 18) of the Convention provide as
follows:
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 18 (Art. 18)
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
212. The applicants maintain that because of their Kurdish origin the
various alleged violations of their Convention rights were
discriminatory, in breach of Article 14 of the Convention. They also
claim that their experiences represented an authorised practice by the
State in breach of Article 18 of the Convention.
213. The Government have not addressed these allegations beyond
denying the factual basis of the substantive complaints.
214. The Commission has examined the applicants' allegations in the
light of the evidence submitted to it, but considers them
unsubstantiated.
CONCLUSIONS
215. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention.
216. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention.
E. Concerning the fourth applicant, Sariye Uvat
217. The fourth applicant has complained of violations under the same
provisions as the other three applicants and also invoked Article 2
(Art. 2) in relation to the death after premature delivery of twin
boys, born after she left her village.
218. The Commission recalls its findings above (para. 180). In view
of the lack of any further substantiation of the allegations made in
the applicant's written statement to the Human Rights Association, it
considers that it has insufficient factual basis on which to reach a
conclusion that there has been any violation of the provisions of the
Convention invoked by her.
CONCLUSION
219. The Commission concludes, unanimously, that there has been no
violation of Articles 2, 3, 5, 6, 8, 13, 14 and 18
(Art. 2, 3, 5, 6, 8, 13, 14, 18) of the Convention.
F. Recapitulation
Concerning the applicants, Azize Mentes , Mahile and Sulhiye Turhalli
220. The Commission concludes, by 27 votes to 1, that there has been
a violation of Article 8 (Art. 8) of the Convention (para. 186 above).
221. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 3 (Art. 3) of the Convention (para. 191 above).
222. The Commission concludes, unanimously, that there has been no
violation of Article 5 (Art. 5) of the Convention (para. 197 above).
223. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 6 (Art. 6) of the Convention (para. 209 above).
224. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 13 (Art. 13) of the Convention (para. 210
above).
225. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention (para. 215 above).
226. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention (para. 216 above).
Concerning the fourth applicant, Sariye Uvat
227. The Commission concludes, unanimously, that there has been no
violation of Articles 2, 3, 5, 6, 8, 13, 14 and 18 (Art. 2, 3, 5, 6,
8, 13, 14, 18) of the Convention (para. 219 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
(Or. French)
PARTLY DISSENTING OPINION OF MR. GÖZÜBÜYÜK
ON THE ISSUES UNDER ARTICLES 3, 6, 8 AND 13 OF THE CONVENTION
On 9 January 1995 the Commission unanimously declared the present
application admissible. As to whether domestic remedies had been
exhausted, the Commission considered in this case and on the basis of
information before it regarding the possibility of bringing an
administrative action, that the Government had failed to provide a
single example of compensation being awarded to villagers for damage
comparable to that allegedly suffered by the applicants. As regards
the possibility of bringing criminal proceedings, the Commission found
that, given the circumstances of the case, a prosecution would have
been wholly ineffective.
I feel it important to specify from the outset that two of the
complaints concern the alleged lack of effective remedies and that the
applicants rely on Articles 6 and 13 of the Convention to support their
submissions.
Certain facts of the case have been elucidated by the
Commission's investigation. In particular, the witness statements
obtained in the course of that investigation show that the difficulties
encountered by the judicial authorities in charge of this investigation
were largely due to the lack of evidence against the security forces.
In view of these additional factors, which came to light when the
Commission investigated the case, I believe, for similar reasons to
those set out in my dissenting opinion (joined by Mr. Weitzel) in the
Akdivar and Others v. Turkey case (No. 21893/93, Commission Rep.
26.10.95) that there was an effective remedy which the applicants
failed to use, namely an administrative action and that, consequently,
the Government's application under Article 29 of the Convention should
have been granted.
I feel it important to recall that the rule of exhaustion of
domestic remedies dispenses States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal system (Eur. Court H.R.,
De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,
p. 29, para. 50) on condition, however, that such remedies are
effective and sufficient, i.e. capable of providing redress for the
applicants' complaints.
As has been proved by the investigation of the case, the criminal
proceedings brought by the prosecution came to nothing owing to the
lack of probative evidence. Having regard to the nature of the
complaints which centre mainly on the destruction of houses, allegedly
by the security forces, it is quite clear that in the absence of even
the slightest shred of evidence, the prosecution was bound to fail.
This is unsurprising, as the rules governing criminal responsibility
are inspired by the same principles in all the member States of the
Council of Europe.
However, as shown by the ample documentation already submitted
by the Government on the examination of the Akdivar and Others v.
Turkey case (No. 21893/93, aforementioned), which will have to be
studied more attentively, and the numerous judgments of which I have
obtained copies, there was an effective remedy available to the
applicants which was sufficiently certain both in theory and in
practice. This body of case-law shows that other Turkish citizens
faced with problems which were, ultimately, very similar to those faced
by the applicants (the destruction of houses and various items of
property) were able in a relatively short time to obtain satisfaction
in the form of financial compensation.
The applicants did not take any such steps, however.
*
* *
I should emphasise here that the situation would have been
entirely different if the applicants had chosen to bring an
administrative action. The victim of an administrative act may in the
first instance complain of non-pecuniary or pecuniary damage by filing
a preliminary application with the authorities. The authorities must
then reply within 60 days. Should they fail to reply within that
period, the application is deemed to be dismissed. The plaintiff can
then bring an administrative action by filing a simple application with
the Administrative Court.
Applicants merely have to prove before the administrative courts
that they have suffered damage in order to obtain compensation; they
do not have to prove that the authorities have made an administrative
error. Once the Administrative Court has established that the victim
has suffered loss, it determines the amount of compensation to be paid
to him or her.
It should be recalled that the Council of State applies the
criterion of "objective liability of the authorities". On the basis
of that criterion, which has been applied by the administrative courts
since 1965, the authorities are liable according to the principle that
the burden of difficulties facing a nation should be shared by all
citizens. It is not necessary to prove fault on the part of the
Government's agents. It is sufficient to prove that damage has
occurred as a result of the act complained of. The fact that the act
in question has been committed by the authorities or by a third party
does not prevent compensation from being awarded.
For example, where a vehicle was destroyed by shots fired by
fighter aircraft, the Council of State, in its "Mizgin Yilmaz
v/Ministry of Defence" judgment of 21.03.1995 (E. No. 1994/5656, K.
No. 1995/1262), found that "even if the authorities have not been
negligent, the plaintiff must be awarded compensation in accordance
with the principle that all citizens must share equally the burden of
any constraints arising from tasks assumed by the State in the public
interest and that such compensation is a necessary consequence of the
"social" nature of the State ... Semdinli District Court's finding of
damage and the expert report ordered by the Administrative Court show
that the amount of compensation sought by the applicant is reasonable".
In a case in which the driver of a car was killed by police
officers when he refused to stop at a checkpoint, Diyarbakir
Administrative Court, in its "Sabriye Kara v/Ministry of the Interior"
judgment of 27 January 1994 (E. No. 1990/870 and K. No. 1994/31), held
that "the authorities had a duty to compensate the damage, whether or
not they were at fault or had acted negligently. Moreover, there does
not have to be a causal link between the damage and the authorities'
acts. Where the authorities cannot avoid the adverse consequences of
terrorist activities, they must pay the victims compensation in
accordance with the "social" responsibility assumed by the State, given
that such damage results from a *social risk`".
The Administrative Court has delivered a plethora of decisions
to the effect that the authorities have "objective liability" (i.e. not
fault-based) and these show that there is established case-law in this
area. I shall quote the following decisions as examples:
- Decision of the Council of State of 6.6.1995 in the Osman Kaya
and Cemil Kaya v/Ministry of the Interior case: this concerned the
destruction of the plaintiffs' house, loft, stable and all moveable
property during fighting between the security forces and terrorists.
The Council of State upheld Diyarbakir Administrative Court's judgment
ordering the authorities to compensate the plaintiffs in accordance
with the theory of "social risk". The Administrative Court held that
the concept of the authorities' liability should not be limited to an
administrative error or objective liability related to strict
conditions, but should also comprise the so-called "social risk"
principle.
- Judgment of Diyarbakir Administrative Court of 10.12.1991 in the
Behiye Toprak v/Ministry of the Interior case; decision of the Council
of State of 13 October 1993 in the same case: the plaintiff's husband
was killed by terrorists while travelling in his minibus. The
plaintiff complained of "loss of breadwinner" and claimed pecuniary and
non-pecuniary damages. The Administrative Court found against the
State on the basis of the theory of social risk. It held that the
authorities were obliged to compensate damage caused by third parties
which they were unable to prevent despite their duty to do so, even if
they were not responsible for that damage. The Council of State upheld
that judgment.
- Judgment of Diyarbakir Administrative Court of 28.04.1994 in the
Münire Temel v/Ministry of the Interior case: the plaintiff's son was
kidnapped and murdered by the PKK. Diyarbakir Administrative Court
ordered the authorities to compensate the plaintiff for pecuniary and
non-pecuniary loss on grounds of their objective liability. It held
that "all Turkish citizens have ... the right to a decent standard of
living ... and to material and spiritual prosperity...". The Court
held that it would be contrary to the principle of equality if the
State were to compensate damage suffered as a result of public services
provided by its own bodies (agents), but remained indifferent to damage
suffered by its citizens. The Administrative Court delivered this
judgment after its preliminary ruling had been quashed by the Council
of State. The preliminary ruling had granted the plaintiff
compensation for non-pecuniary damage but not for pecuniary damage.
- Judgment of Diyarbakir Administrative Court of 8.3.1994 in the
Cüneyt Alphan v/Ministry of the Interior case: the plaintiff's house
was burnt down during fighting between terrorists and security forces.
The applicant claimed damages. Diyarbakir Administrative Court held
that even where the authorities had not made an administrative error,
they had to pay the applicant compensation on grounds of their "strict
liability".
- Judgment of Diyarbakir Administrative Court of 25 January 1994
in the Hüsna Kara and Others v/Ministry of the Interior case: the
plaintiff's husband was killed by unknown persons. The applicant sued
the authorities for damages. The Administrative Court ordered the
authorities to compensate the plaintiff on the basis of the theory of
social risk, holding that as the plaintiff had had no part in any
terrorist activity, her loss was not caused by her own negligence, but
by difficult circumstances facing society.
- Judgment of Diyarbakir Administrative Court of 21 June 1994 in
the Guli Akkus v/Ministry of the Interior case: the plaintiff's
common-law husband was killed by security forces during an illegal
demonstration. The Administrative Court ordered the authorities to
compensate the plaintiff's loss. The Council of State quashed that
judgment on the ground that the applicant and her common-law husband
were not legally married. The Administrative Court upheld its own
decision, however, and ordered the authorities to compensate the
plaintiff. It held that the plaintiff and her common-law husband had
been living together as man and wife. It held further that the
authorities should compensate damage caused by their agents, even if
that damage was caused by negligence.
*
* *
The foregoing case-law shows that if the applicants had applied
to the administrative courts, they could have obtained an order against
the authorities for compensation of their pecuniary or non-pecuniary
loss on grounds of objective liability. The administrative courts
would not have needed to establish that the soldiers had unlawfully and
negligently destroyed the houses in question. They would merely have
had to establish the damage and to determine the amount of compensation
to be awarded.
In this case, the Commission did not make any decision regarding
a possible violation of Article 1 of Protocol No. 1. However, all the
allegations made by the applicants under Articles 3 and 8 of the
Convention could have been examined by the administrative courts if the
applicants had sued for non-pecuniary damage and, where applicable, for
pecuniary damage. There is a long line of Turkish administrative case-
law to dispel any possible doubt on this point.
I note here that the continuing activities of the security forces
did not in any way prevent the applicants from applying to the courts
for compensation. Admittedly, the PKK was very active in the area in
which the applicants' village was situated. However, the applicants
went to Diyarbakir after the events in question.
The applicants merely needed to consult a lawyer to learn of the
possibility of bringing an action for damages before the administrative
courts.
I note also, in this respect, that it has not been established
before the Commission that the Administrative Court judges do not rule
impartially in cases in which actions of the security forces are
challenged. Nor has it been proved that there is a general lack of
confidence in the remedies available under administrative law in the
region in question.
The witness statements obtained by the Commission in the Akdviar
and Others case (No. 21893/93 aforementioned) also show that the
members of Diyarbakir Human Rights Association failed to inform the
applicants properly of the possibility of applying to the
administrative courts or misinformed them as to the appropriate
national authorities to which they should apply. In any event, they
advised the applicants to lodge an application directly with the
Commission. The real aim of the members of this association in lodging
several individual applications is to argue before the international
courts that domestic remedies are ineffective in an area which was
declared to be in a state of emergency and they do not advise the
applicants properly.
Consequently, I believe I have shown that the applicants had an
effective remedy in Turkish law in that they could have submitted to
the administrative courts the complaints which they now raise before
the Commission. Although the financial compensation which they stood
to gain flowed from the principle of the State's objective liability
for acts allegedly committed by the security forces, such compensation
cannot be paid until the administrative courts have established that
damage has been caused due to the State's failure to comply with its
duty to strike a fair balance between individual rights and the
legitimate rights of the general public. Such a finding would have
been sufficient compensation for the non-pecuniary loss suffered by the
interested parties.
For the reasons set out above, I do not find that there has been
a violation of Articles 6 and 13 of the Convention.
As regards the complaints under Articles 3 and 8 of the
Convention, it is my opinion that in the light of the additional
evidence obtained during the investigation and on the basis of all the
considerations which I have set out here, the Commission cannot examine
the merits of the case, as domestic remedies have not been
exhausted.
(Or. French)
DISSENTING OPINION OF Mr. I. CABRAL BARRETO
Much to my regret, I cannot share the opinion of the Commission
regarding the violations of Articles 3 and 13 of the Convention, for
the following reasons:
As regards Article 3 of the Convention, I consider that the
measures taken by the security forces, i.e. burning down the applicants
houses and ordering them to leave their village, must be examined in
the context of the general situation prevailing in the area which
involved the fight against the members of the PKK and attempts to
"strand the fish".
Even if the application does include new evidence in addition to
that discussed in the Akdivar and Others case, particularly ill-
treatment of children, I find it difficult to accept the idea that the
measures in question, although objectively speaking they were serious,
were designed to humiliate or degrade the applicants.
I wish to confine myself to finding that there has been a
violation of Article 8 of the Convention and of Article 1 of
Protocol No. 1 to the Convention.
As regards Article 13 of the Convention, I understand the
applicants' complaints to refer to the lack of remedies with which to
complain of a violation of their "civil" rights, i.e. the right to
respect for their family life and their homes. However, having regard
to the finding of a violation of Article 6 of the Convention, I do not
believe it necessary to determine the issue from the viewpoint of
Article 13 of the Convention as well.
I regret, however, that the Commission, after finding that the
applicants' houses had been destroyed (para. 175 of its Report), did
not conclude that there had been a violation of Article 1 of Protocol
No. 1 to the Convention, this complaint having been communicated to the
respondent Government and developed by the applicants in their
observations on the merits.
(Or. English)
PARTLY DISSENTING OPINION OF MR. N. BRATZA
For substantially the same reasons as those set out in my
separate opinion in Application No. 21893/93 Akdivar and Others v.
Turkey, I voted in favour of a violation of Article 13 and not of
Article 6 in the present case.
In all other respects I agree with the conclusions and reasoning
of the majority of the Commission.