Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23179/94

by Emine YILMAZ

against Turkey

The European Commission of Human Rights sitting in private on

15 May 1995, the following members being present:

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

Mr. F. MARTINEZ

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

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 December 1993

by Emine YILMAZ against Turkey and registered on 11 January 1994 under

file No. 23179/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 December 1994 and the observations in reply submitted by the

applicant on 27 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in

1935 and residing at Diyarbakir. She is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex, England. The applicant brings the application

on her own behalf, on behalf of three of her children, her daughter

Senay and her sons Taha and Abdullah, as well as on behalf of her

spouse, Mehmet Yilmaz.

The facts of the present case, which are in dispute between the

parties, may be summarised as follows.

The applicant states that the following occurred.

On 10 December 1992 the village of Mastak in the province of

Diyarbakir where the applicant lived was destroyed by the security

forces. Two days earlier, on 8 December 1992, the village had been

visited by security units from Kulp who had ordered the villagers to

leave the village under threat of force. All but twenty of the

villagers fled, including the applicant and her family. The twenty who

remained were arrested.

The destruction of the village on 10 December 1992 was effected

through aerial bombardment. It was carried out by four military planes

and a number of helicopters.

After the operation the villagers returned to the village to

attempt to salvage their possessions. They were, however, unable to

save any of their winter food stocks (wheat, lentils, flour, etc.) and

the houses were set on fire with inflammable liquids by soldiers under

the command of the Kulp Gendarme Station Commander.

One month after the applicant and her family had settled in the

Pecar village, security forces came from the Lice Gendarme Station,

commanded by Nevzat Arik, in search of guerillas. They arrested the

applicant's two sons, Taha and Abdullah, and when they were released

after five days, they showed the most obvious signs of torture. The

sons could not afford to receive medical treatment for their injuries

and did not receive any.

On the morning of 24 June 1993 around 500-600 soldiers from the

Lice district and Diyarbakir province gendarme stations effected an

operation on the 200 household village of Pecar. They first went to

the house of the village mayor, set fire to the house and burned it

down. They sent 100-150 soldiers to each of the four neighbourhoods

in the village of Pecar and burned down and destroyed the houses. When

they came to the applicant's and her family's house, they took the

applicant's spouse and beat him and threatened him for some time in

front of the house. They collected all the goods in the three roomed

house into one room without allowing the family to take anything out,

poured petrol over the property and set it alight. After they had

burned the whole house, the Lice Gendarme Station Commander, Nevzat

Arik, turned to them, i.e. the applicant, her spouse and her daughter

Senay, and said that this time they had only burned their house down

and that next time they would kill all of them.

In the meantime the soldiers were forcing the old men in the

village to lie face down on the ground and were beating them with rifle

butts. They made the applicant's spouse lie down on the ground and

beat him in the same way in front of the house. The soldiers installed

themselves in the village for two or three days. Those of the villagers

who were able to flee did so. The applicant, her husband and her

daughter Senay walked to another village and, after staying there for

a few days, continued to Diyarbakir where they settled in the house of

the applicant's married daughter.

The respondent Government, referring to a statement of the

present mayor of the village of Güldiken (Pecar), state that no armed

clash took place between the security forces and the PKK on

24 June 1993 in the village of Pecar. Furthermore, the applicant's sons

were not taken into custody in January 1993.

COMPLAINTS

The applicant complains of violations of Articles 3, 8, 14 and

18 of the Convention and Article 1 of Protocol No. 1.

As to Article 3, she submits that her treatment in the

destruction of her home and the expulsion from her village constitutes

a form of collective punishment in violation of that Article.

As to Article 8, she submits that the military operation on Pecar

village constituted direct, deliberate and violent interference with

her and her family's right to respect for their home and private and

family life, for which there is no justification under paragraph 2 of

Article 8.

As to Article 14 in conjunction with Article 8 of the Convention

and Article 1 of Protocol No. 1, she complains that she and her family

were victims of discrimination in the enjoyment of their rights under

these Articles on grounds of race or ethnic origin.

As to Article 18, she alleges that her and her family's rights

were interfered with for purposes incompatible with the Convention.

As to Article 1 of Protocol No. 1, she complains of the

deliberate destruction of her and her family's house and property.

As to the exhaustion of domestic remedies, the applicant

considers that no remedy could in the circumstances be regarded as

adequate or effective and that she is therefore released from any

obligation to pursue a domestic remedy under Article 26 of the

Convention.

As to the six months time-limit laid down in Article 26 of the

Convention, the applicant states that she is aware that the Commission

can examine the sequence of complaints only from a date which is no

more than six months from the date of the application, but that she

nevertheless has made a full account of her experiences and those of

her family in order to explain the extraordinary context of suffering

and abuse of State power which her family has suffered from the

official policy of the destruction of villages and the expulsion of

populations.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and

registered on 11 January 1994.

On 9 May 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 8 August 1994. At

the Government's request, this time-limit was subsequently extended

until 30 September 1994.

By letter of 24 October 1994, the Commission's Secretary informed

the Government that their request for a further extension had been

refused by the President of the Commission on the ground that five

months had elapsed since the application had been communicated. It was

added that the application would be considered by the Commission at its

session commencing on 9 January 1995.

Observations were submitted by the Turkish Government on

5 December 1994. Observations in reply were submitted on behalf of the

applicant on 27 February 1995.

THE LAW

The applicant complains of violations of Article 3 (Art. 3) of

the Convention (the prohibition on inhuman and degrading treatment),

Article 8 (Art. 8) (the right to respect for family life and the home),

Article 14 (Art. 14) (the prohibition on discrimination) and Article

18 (Art. 18) (the prohibition on using authorised Convention

restrictions for ulterior purposes), as well as Article 1 of Protocol

No. 1 (P1-1) to the Convention (the right to property) in connection

with a military raid on her village, in the course of which her home

and possessions were destroyed.

1. The Government, while maintaining that the application is

defamatory and composed of hollow calumnies, argue in the first place

that the application is inadmissible since it is an abuse of the right

of petition.

The Commission considers that the Government's argument could

only be accepted if it were clear that the application was based on

untrue facts. However, this is far from clear at the present stage of

the proceedings, and it is therefore impossible to reject the

application on this ground.

2. The Government further submit that some of the alleged events

occurred more than six months before the introduction of the

application, and that this part of the application is therefore

inadmissible.

The Commission notes in this respect that it appears from the

application that these events are not the subject of the applicant's

complaints to the Commission, but are mentioned as a general background

in order to show the sufferings to which the applicant and her family

have allegedly been exposed.

3. The Commission notes that the Government in their observations

on the admissibility and merits of the application have not raised the

issue of exhaustion of domestic remedies.

The Government contend that the alleged events did not take

place, inter alia, since they were not reported to the competent

authorities (see below). Even assuming that this assertion by the

Government is to be considered as a submission of non-exhaustion of

domestic remedies, the Commission recalls its findings in No. 21893/93,

Akdivar and others v. Turkey (Dec. 19.10.94), where it held that,

although the destruction of houses and property has been a frequent

occurrence in South-East Turkey, the Government had failed to provide

clear examples of effective remedies in the circumstances of the case

and the applicants were, therefore, absolved from the obligation to

pursue them.

In the present case, the Government have not provided any

additional information which might lead the Commission to depart from

the above conclusions.

It follows that the application cannot be rejected on the ground

that the domestic remedies have not been exhausted.

4. As regards the merits, the Government state that no armed clash

took place between the security forces and the PKK in the village of

Pecar on 23-24 June 1993. They cast doubt on the credibility of the

applicant's allegations in that the alleged incident has not been

brought to the attention of the competent judicial authorities, no

corroborating evidence has been adduced by the applicant and neither

the applicant nor any of the persons named in the application can be

found to shed light on the alleged events.

In this respect the Government refer to the mayor of the village

of Güldiken (Pecar), Mr. Sala, who has stated that no air raids took

place in 1992 and that there were no clashes between security forces

and the PKK in June 1993.

The Government reject as defamatory the allegation that security

forces destroyed inhabited areas. They state that such kinds of

violence would constitute a breach of the Turkish Constitution as well

as of the Convention, and that they are well aware that public security

cannot be restored by having recourse to violence directed against

innocent people who suffer from terrorist intimidation.

The applicant maintains her account of the attack by security

forces on the village and refers to statements made by the applicants

in other applications concerning the same incident (eg. No. 23182/94,

Dündar v. Turkey, Dec. 28.11.94, unpublished). She submits that the

Government's claim that no clash took place on 24 June 1993 between the

security forces and the PKK in Pecar is irrelevant, since she has not

claimed that the destruction of the village was caused as a result of

such a clash.

The applicant further refutes the Government's claim that no

inhabited areas are destroyed by security forces. She claims that the

forced evacuation of villages has been well-documented by human rights

organisations eg. the Helsinki Watch report October 1994, vol. 6,

no. 12 "Forced Displacement of ethnic Kurds from south-eastern Turkey".

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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YILMAZ v. TURKEY

YILMAZ v. TURKEY