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EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 21895/93

Ramazan CAGIRGA)

against

Turkey

REPORT OF THE COMMISSION

(adopted on 7 July 1995)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3

PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mr. Ramazan Cagirga against Turkey

on 3 May 1993. It was registered on 18 May 1993 under file

No. 21895/93.

The applicant was represented by Professor Kevin Boyle and

Ms. Françoise Hampson, both university teachers at the University of

Essex.

The Government of Turkey were represented by their Agent,

Mr. Bakir Caglar.

2. On 19 October 1994 the Commission declared the application

admissible to the extent that it related to the deprivation of life,

the failure to initiate proceedings before a tribunal and the

destruction of the applicant's home. It then proceeded to carry out

its task under Article 28 para. 1 of the Convention which provides as

follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

The Commission found that the parties had reached a friendly

settlement of the case and on 7 July 1995 it adopted this Report,

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

3. The following members were present when the Report was adopted:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G. B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

PART I

STATEMENT OF THE FACTS

4. The facts of the present case are in dispute.

5. The applicant recounted the following version of the events in

question:

6. On the evening of 7 November 1992, at about 19.00 hours when the

applicant was at home with the other members of his family, there was

a sound of detonation in the neighbourhood.

7. Afterwards there was a big explosion in the applicant's house.

Seven members of the applicant's family were killed, and seven others

injured.

8. When the firing stopped, the applicant and his neighbours took

the wounded to hospital by car. The dead amongst the applicant's family

were Haci (father), Leylâ (mother), ismail and Nadiv (brothers), Sinem

and Fatma (sisters) and Henif (nephew). Meryem (sister or sister-in-

law) was wounded in the eye and the hand. Emine (sister or sister-in-

law) was deafened by the sound of the explosion.

9. The applicant alleged that the State authorities were responsible

for the firing and, moreover, did not investigate the event in an

adequate manner.

10. The Government submitted the following account:

11. On 7 November 1992 around 19.00 hours, three armoured personnel

carriers belonging to the security forces of Cizre were making a

routine patrol in the Cudi quarter of Cizre. One of the carriers hit

a mine which had been laid by PKK militants. Several policemen in the

vehicle were injured. Then all three carriers came under attack by PKK

terrorists and quickly moved away.

12. The terrorists started firing with heavy weapons at official

buildings in the city centre and several other quarters, as a result

of which 12 policemen suffered injury. The security forces retaliated

and the firing ended around 22.30 hours.

13. According to Government experts, the applicant's house was hit

by a missile fired by the PKK from an RPG 7 (rocket propelled grenade).

14. An investigation regarding the events has been instituted by the

public prosecutor attached to the State Security Court of Diyarbakir.

PART II

SOLUTION REACHED

15. Following the decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with Article 28 para. 1

(b) of the Convention and invited the parties to submit any proposals

they wished to make.

16. In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement.

17. Following an exchange of correspondence, the Commission

considered the question of a settlement on 1 July 1995, and made

specific settlement proposals. After a meeting on 3 July 1995 with the

parties, three members of the Commission and the Secretary to the

Commission, the Government sent a Declaration to the Commission on

4 July 1995. The applicant's Declaration arrived on 7 July 1995.

18. These Declarations provide as follows:

Declaration by the Government

"Me référant à la requête No 21895/93, j'ai l'honneur de vous

informer que le Gouvernement de la Turquie serait prêt à régler cette

requête à l'amiable par le versement , à titre gracieux, au requérant

de la contrevaleur en livres turques de la somme de 150.000

(cent cinquante mille) Francs français. Cette somme sera versée dans

les trois mois à partir du jour où la Commission européenne des Droits

de l'Homme aura adopté le règlement amiable qui mettra un terme à cette

procédure, étant entendu que la contrevaleur en livres turques sera

déterminée par le taux de change en vigueur au jour de l'adoption du

rapport.

Cette offre est faite à titre de règlement total et définitif des

griefs formulés dans la requête précitée, présentée à la Commission

éuropéenne des Droits de l'Homme, pour des raisons humanitaires."

[Translation]

"I have the honour to refer to application No 21895/93 and inform

you that the Government of Turkey would be prepared to accept a

friendly settlement of this case on the basis of an ex-gratia payment

to the applicant of the equivalent in Turkish lira to the sum of

150.000 FF. This sum would be paid within three months from the day

when the European Commission of Human Rights approves the friendly

settlement which puts an end to this procedure, it being understood

that the equivalent in Turkish lira is to be calculated by reference

to the exchange rate in force on the date of the adoption of the

Report.

This offer is made on humanitarian grounds with a view to a total

and final settlement of the complaints raised in the above-mentioned

application submitted to the European Commission of Human Rights."

Declaration by the applicant

"Avrupa insan Haklari Sözlesmesi çerçevesinde insan Haklari

Komisyonu'nun yukaridaki basvuru ile ilgili raporunu kabul edecegi

tarihte, 150.000 Fransiz Frangi karsiligi Türk Lirasi üzerinden

hesaplanarak ödemenin tarafima yapilmasini kabul ederim."

[Translation]

"I accept under the European Convention on Human Rights, a

payment to the value in Turkish Lira of 150.000 French francs at the

date of the adoption by the European Commission of Human Rights of its

report on the above mentioned application."

19. On 7 July 1995, the Commission considered that the applicant had

accepted, as the full and final settlement of all his claims under the

European Convention on Human Rights, the offer made by the Government

of Turkey to make an ex gratia payment to him of the equivalent in

Turkish Lira to the sum of 150.000 French francs, this sum to be paid

within three months from the day when the Commission approves the

friendly settlement, it being understood that the equivalent in Turkish

Lira is to be calculated by reference to the exchange rate in force on

the date of the adoption of the report.

The Commission noted that the parties had thus reached an

agreement regarding the terms of a settlement. It further considered,

having regard to Article 28 para. 1 (b) of the Convention, that the

friendly settlement of the case had been secured on the basis of

respect for Human Rights as defined in the Convention.

20. For these reasons, the Commission adopted the present Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NORGAARD)

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CAGIRGA v. TURKEY

CAGIRGA v. TURKEY