AKDİVAR AND OTHERS v. TURKEY
Doc ref: 21893/93 • ECHR ID: 001-1976
Document date: October 19, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 21893/93
by 1. Hüseyin AKDUVAR
2. Abdurahman AKDUVAR
3. Ahmet AKDUVAR
4. Ali AKDUVAR
5. Zülfükar CICEK
6. Ahmet CICEK
7. Abdurahman AKTAS
8. Mehmet KARABULUT
against Turkey
The European Commission of Human Rights sitting in private on
19 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
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 3 May 1993 by
Hüseyin AKDUVAR, Abdurahman AKDUVAR, Ahmet AKDUVAR, Ali AKDUVAR,
Zülfükar CICEK, Ahmet CICEK, Abdurahman AKTAS and Mehmet KARABULUT
against Turkey and registered on 18 May 1993 under file No. 21893/93;
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
15 February 1994 and the observations in reply submitted by the
applicant on 19 April 1994;
- additional material submitted by the applicants on 15 August, 23
September and 4 and 10 October 1994;
- additional material submitted by the Government on 4 and 7
October 1994;
- the parties' oral submissions at the hearing on 18 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, Turkish nationals, all live in the village of
Kelekçi in the Dicle district, the province of Diyarbakir.
They are represented before the Commission by Professor Kevin
Boyle and Ms. Françoise Hampson, both university teachers at the
University of Essex.
A. The particular circumstances of the case
The facts of the present case are in dispute.
The applicants claim that the following events have occurred:
On 10 November 1992, in the evening, soldiers entered the
applicants' village. These forces included, in addition to regular
military forces, a group of soldiers known as "special teams" who are
trained for anti-terrorist operations.
The soldiers instructed the first applicant, Hüseyin Akduvar, who
is the elected Mayor of the village, to evacuate all the inhabitants
immediately. According to the applicants, while the Mayor attempted to
call the people together, the soldiers began firing with heavy weapons
from armoured cars at houses and at villagers. They also set fire to
a number of houses including those of the Mayor, his son and those of
the other six applicants. A total of nine houses and their contents
were burnt to the ground. The soldiers also shot the villagers'
livestock.
The background to this attack was the decision of some villagers,
including the first applicant, who had been unwillingly made village
guards by the military, to refuse to continue as protectors. In August
1992 they had handed in the weapons which had been issued by the
military following an attack on the village on 17 July 1992 by the PKK
as part of their campaign against the village guard system, and during
which attack guards were killed.
The military attack on 10 November 1992 followed an armed attack
by the PKK on the police station in a nearby village, Bogazali, on
1 November 1992. The military burnt the applicants' houses down as
punishment for having resigned from the village guard.
Following the gunning and the burning of the houses the
inhabitants, who numbered over 500, fled the village. Most went to the
city of Diyarbakir. Some who had relatives there moved in with them.
Others were forced to live in the streets.
All the inhabitants of Kelekçi have now been completely
evacuated. Following the evacuation, at least 90 % of the houses were
destroyed, particularly during a further military attack on the village
on 6 April 1993.
The applicants' representatives assert that contradictory
statements collected during subsequent official inquiries into these
events should be treated with caution because villagers were allegedly
promised compensation if they declared that the village had been
destroyed by terrorists. No compensation has been paid. Fear of
reprisal if the security forces are accused of these events must also
be taken into account.
The Government submit a different account of events, particularly
as regards the authors of the damage in question.
According to the Government, the applicants' village was attacked
by the PKK on 17 July 1992, when three people died and three others
were injured. On the night of 1 November 1992 between 100 to 150 PKK
terrorists attacked the gendarme stations at Bogazali and Kelekçi with
heavy weapons, killing a soldier at the Kelekçi station and injuring
eight others, some of them severely. The Kelekçi station collapsed
under the bombardment, and had to be evacuated. There was also
shooting from houses in the two villages which required retaliation
from the security forces. This cross-fire caused physical and material
damage in both villages.
After this, the villagers began to evacuate their homes in
Kelekçi voluntarily and on their own initiative as they felt insecure
there. Three families later returned.
On 10 November 1992 a search of the village was carried out by
soldiers without any damage being caused. The security forces found
14 terrorist hide-outs containing large quantities of food, clothes,
propaganda material and a missile for a rocket launcher.
On 6 April 1993, after having been tipped off about an imminent
PKK attack, the security forces searched Kelekçi without causing any
damage. They noticed the return to the village of three families, as
well as the collapse of several mud houses which had not resisted the
effects of the winter climate in the absence of any maintenance. Later
that night, after the security forces had left, terrorists returned to
the village and set fire to the remaining houses.
B. The relevant domestic law and practice
The Government have submitted that the following domestic law is
relevant to the case:
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."
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.
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."
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
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.).
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.
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).
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 State
Council; a refusal to prosecute is subject to an automatic appeal of
this kind.
Any illegal act by civil servants, be it a crime or tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts.
Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
Damage caused by terrorist violence may be compensated out of the
Social Help and Solidarity Fund.
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:
Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
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.
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.
Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas 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.
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 an individual to claim indemnity from
the State for damages suffered by them without justification."
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, there is no decree
providing for the rehousing of displaced persons or the payment of
compensation.
COMPLAINTS
The applicants' complaints to the Commission concern the events
of 10 November 1992.
The applicants allege under Article 3 of the Convention that the
forced and immediate expulsion of the entire village of Kelekçi,
including themselves, represents a form of collective punishment and
the most manifest and deliberate infliction of inhuman and degrading
treatment.
The applicants submit that the expulsion policy was
discriminatory on grounds of their Kurdish origin. The policy therefore
constitutes a violation of Article 3 on that ground alone. According
to the applicants, on account of this situation, there has also been
a violation of Article 14 in conjunction with Article 3.
The applicants further complain under Article 5 of the Convention
that the fact that they, along with all the other villagers, were
compelled to abandon their homes and village represents a flagrant
breach of the right to the exercise of liberty and the enjoyment of
security of person.
The applicants submit that the deprivation of their liberty and
security of person was a direct result of a deliberate policy targeted
at them as a national minority or as an ethnic group. They claim
therefore that they are victims of a violation of Article 5 in
conjunction with Article 14 of the Convention.
The applicants complain under Article 6 of the Convention that
the arbitrary expulsion from their homes and village was a flagrant,
direct interference with their civil rights. They have been denied any
effective procedure to challenge or resist the deprivation of their
freedom to reside in their homes and to seek compensation for their
deprivation of possessions.
The applicants claim a violation of Article 14 in conjunction
with Article 6 of the Convention on similar grounds to those set out
above with respect to Article 5.
The applicants argue that their arbitrary expulsion from their
village and from their homes represents a direct violation of Article
8 of the Convention, in particular their right to respect for their
homes and family life. The destruction of their homes through the
action of the military constitutes a separate breach of their rights
under this Article.
The applicants maintain that the interference with their right
to respect for home and family life was deliberately pursued against
an entire village, as in hundreds of other cases, because the
inhabitants were Kurds. It represents therefore a separate violation
of the Convention, namely a breach of Article 14 of the Convention in
conjunction with Article 8.
The applicants further complain under Article 1 of Protocol No 1
to the Convention that they were deprived of the peaceful enjoyment of
their possessions in the most arbitrary manner conceivable.
The applicants submit that their experiences also constitute a
violation of Article 14 of the Convention in conjunction with Article
1 of Protocol No 1 for the reasons set out above with respect to other
Articles.
The applicants also allege violations of Article 13 taken alone
and in conjunction with Article 14 of the Convention.
Finally, the applicants submit that their experiences, which they
claim represent an authorised practice by the State, constitute a
violation of Article 18 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 May 1993 and registered on
18 May 1993.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
30 August 1993. It decided, pursuant to Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
admissibility and merits. The Government's observations were submitted
on 15 February 1994, after an extension of the time limit fixed for
that purpose, to which the applicants replied on 19 April 1994.
On 27 June 1994 the Commission decided to invite the parties to
make oral submissions on the admissibility of the application at a
hearing. For the purposes of the hearing the application was joined
to two others: No. 21894/93, Akkum and Others v. Turkey, and
No. 21987/93, Aksoy v. Turkey. The hearing was fixed for 18 October
1994. Prior to the hearing the parties submitted additional material:
the applicants on 15 August, 23 September and 4 and 10 October 1994 and
the Government on 4 and 7 October 1994.
The applicants were granted legal aid on 14 October 1994.
At the hearing on 18 October 1994, the Government were
represented by Mr. B. Çaglar, Agent, Mr. S. Alpaslan, Mr. M. Özmen, Ms.
D. Akçay and Mr. H. Golsong, all counsel, and Ms. i. Boivin, Mr. i.
Kovar, Mr. A. Kurudal, Mr. F. Erdogan, Mr. Y. Kizilkaya, Mr. C. Duatepe
and Ms. S.B. Ersöz, all experts. The applicants were represented by
Professor K. Boyle and Ms. F. Hampson, both counsel, Mr. S. Aslantas,
legal adviser from the Diyarbakir Bar, and Mr. M. Yildiz, assistant.
THE LAW
1. The applicants allege that on 10 November 1992 State security
forces launched a gun attack on their village. They claim that the
soldiers shot at them, destroyed their homes by fire and forced them
to evacuate the village. Livestock was also killed. The applicants
invoke Article 3 (Art. 3) of the Convention (the prohibition on inhuman
and degrading treatment), Article 5 (Art. 5) (the right to liberty and
security of person), Article 6 (Art. 6) (the right of access to
court), Article 8 (Art. 8) (the right to respect for family life and
the home), Article 13 (Art. 13) (the right to effective national
remedies for Convention breaches) 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).
2. The Government deny the applicant's allegations and provide an
entirely different account of events, which they claim were largely the
doing of the PKK, and which in turn led to the voluntary evacuation of
the village by the inhabitants themselves out of fear for their safety.
The Government argue that the application is inadmissible for the
following reasons:
i. the applicants failed to exhaust domestic remedies;
ii. alternatively, the applicants did not observe the six months'
time-limit;
iii. the application is an abuse of the right of petition;
iv. the applicants have not shown that they are themselves
victims of the alleged violations of the Convention; and
v. the application is anyway manifestly ill-founded.
3. Exhaustion of domestic remedies
The Government submit that the applicants have failed to comply
with the requirement under Article 26 (Art. 26) of the Convention to
exhaust domestic remedies before lodging an application with the
Commission. They contend that the applicants had several remedies at
their disposal which they did not try:
i. By way of the administrative and civil courts
According to the applicants' version of the facts, which is
anyway denied, the security powers were responsible for material damage
to their homes and livestock, as well as for the involuntary evacuation
of their village. They had the possibility of introducing an
administrative action before the administrative courts for compensation
in accordance with Article 125 of the Turkish Constitution (p. 4
above). Claims for compensation could also have been lodged in the
ordinary civil courts.
ii. By way of criminal proceedings
The acts alleged by the applicants have no lawful authority under
emergency legislation or decrees and would constitute punishable
criminal offences under both criminal and military law (see p. 5
above).
The Government assert that there is no administrative practice
or official tolerance of the type of acts alleged by the applicants.
The aforementioned remedies represent nothing extraordinary and are
accessible and effective before independent judicial authorities. Any
suggestion that people expose themselves to risk if they pursue these
normal remedies can only be qualified as abusive, fallacious and wholly
devoid of credibility.
In order to demonstrate that the available remedies were not
ineffective, the Government have referred to a number of judgments by
the administrative and criminal courts. Some of these decisions concern
cases in which the State Council has awarded compensation to
individuals for damage inflicted by public officials or by terrorists,
or suffered in the course of confrontations between the security forces
and the PKK. In other cases referred to by the Government, public
officials have been sanctioned for acts committed against individuals.
The applicants maintain that there is no requirement that they
pursue domestic remedies. Any purported remedy is illusory, inadequate
and ineffective because:
i. the operation in question in this case was officially
organised, planned and executed by the agents of the State;
ii. there is an administrative practice of not respecting the
rule in Article 13 (Art. 13) of the Convention which requires the
provision of effective domestic remedies;
iii. whether or not there is an administrative practice, domestic
remedies are ineffective in this case owing to the failure of the legal
system to provide redress;
iv. whether or not there is an administrative practice, the
situation in South-East Turkey is such that potential applicants have
a well-founded fear of the consequences, should they try alleged
remedies.
The applicants consider that none of the remedies suggested by
the Government could be regarded as effective because the scale of
destruction of villages, as well as the expulsion and creation of
internal refugees, is so great in South-East Turkey that this must be
considered high-level Government policy - an administrative practice -
in regard to which all remedies are theoretical and irrelevant.
The applicants do not deny that the procedures identified by the
Government are formally part of the Turkish legal structure, but they
contend that the Government have not shown how such procedures could
conceivably be effective for the specific circumstances of the present
case. The purported remedies are ineffective for the following reasons:
- the limitations on rights and remedies created by the state of
emergency, such as the immunity from suit of the Regional
Governor;
- the lack of genuine investigations by public prosecutors and
other competent authorities;
- even if an investigation is made, the lack of effective action
being taken afterwards;
- an official attitude of legal unaccountability towards the
security forces;
- the positive discouragement of those who do wish to seek
remedies;
- the absence of any significant case-law showing the payment of
adequate compensation to villagers for the destruction of their
homes and villages, or for their expulsion (which is unsurprising
considering the systematic blame placed by the Government on the
PKK for such acts);
- the absence of successful cases against the Regional Governor for
compensation under the State of Emergency Law;
- the absence of any compensation being paid to the villagers in
the present case, despite promises made; and
- the absence of any significant prosecutions against gendarmes for
the alleged offences connected with the destruction of villages
and forcible expulsions in 1992/1993 despite hundreds of
allegations.
The applicants add that, in order to be able to use a remedy, the
individual needs to be able to seek and obtain legal advice and the
lawyers need to be able to pursue appropriate remedies without fear of
the consequences. They allege, however, that several lawyers who have
dealt with cases of this kind have been subjected to detention and ill-
treatment. At present 16 lawyers are facing criminal charges, which
include drawing up documents belittling the Turkish State and faxing
them to human rights organisations in Europe. This is demonstrated in
other cases pending before the Commission.
The Commission has noted the wide range of remedies put forward
by the Government, the extensive case-law provided to demonstrate the
efficacy of those remedies and the remarks of the applicants as to
their theoretical and illusory nature.
The Commission does not deem it necessary to determine whether
there exists an administrative practice on the part of Turkish
authorities tolerating abuses of human rights of the kind alleged by
the applicants, because it agrees with the applicants that it has not
been established that the applicants had at their disposal adequate
remedies under the state of emergency to deal effectively with their
complaints. The Commission has formed this view for the following
reasons:
It is a known fact there has been significant destruction of
villages in South-East Turkey with many people displaced as a result.
The applicants allege that their homes, village and livestock have been
destroyed by the security forces acting on their own initiative. The
applicants deny that the damage was caused by the PKK or by any cross-
fire between the PKK and the security forces.
The Government have outlined a general scheme of remedies that
would normally be available for complaints against the security forces.
However, it is noteworthy that, although the destruction of houses and
property has been a frequent occurrence in South-East Turkey, the
numerous decisions by the administrative courts referred to by the
Government all concern compensation for damage in different
circumstances. The Government have not provided a single example of
compensation being awarded to villagers for damage like that allegedly
suffered by the present applicants.
Nor have significant examples been given of successful
prosecutions against members of the security forces for the destruction
of villages and the expulsion of villagers. In this connection it would
seem unlikely that such prosecutions could follow from acts committed
pursuant to the orders of the Regional Governor under the state of
emergency to effect the permanent or temporary evacuation of villages,
to impose residence prohibitions or to enforce the transfer of people
to other areas.
The Commission understands the vulnerability of the dispossessed
applicants, under pressure from both the security forces and the
terrorist activities of the PKK. It cannot be said at this stage that
their fear of reprisal if they complain about acts of the security
forces is wholly without foundation.
The Commission recalls that the existence of "remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness ...
It falls to the respondent State to establish that these various
conditions are satisfied (Eur. Court H.R., De Jong, Baljet and van den
Brink judgment of 22 May 1984, Series A no. 77, p.18, para. 36, and
Nos. 14116/88 and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.89,
D.R. 61 p. 250, 262).
In the absence of clear examples that the remedies put forward
by the Government would be effective in the circumstances of the
present case, the Commission concludes that the applicants are absolved
from the obligation to pursue them. The application cannot, therefore,
be rejected for non-exhaustion of domestic remedies under Articles 26
and 27 para. 3 (Art. 26, 27-3) of the Convention.
4. The six months' rule
The Government contend that, even assuming that the applicants
have exhausted domestic remedies, they have failed to comply with the
second requirement of Article 26 (Art. 26) of the Convention, namely
that of lodging the application within six months of the final
effective decision or, if none, within six months of the events of
which complaints are made.
The applicants point out that the events complained of took place
on 10 November 1992 and the present application was lodged on
3 May 1993, i.e. within the six month period.
The Commission agrees with the applicants. They have indeed
complied with the six months' rule laid down in Article 26 (Art. 26)
of the Convention.
5. Abuse of the right of petition
The Government maintain that the application, being devoid of any
sound judicial basis, has been lodged for the purposes of political
propaganda against the Turkish Government. Accordingly the application
constitutes an abuse of the right of petition which discredits the
legal nature of the Convention control mechanism.
The applicants reject the Government's submission and respond
that their complaints relate exclusively to alleged violations of the
Convention, which have not formally been brought before the local
instances for fear of reprisal. Such fear is widespread among Turkish
people of Kurdish origin in South-East Turkey. The applicants do not
make their assertions for political motives, but to obtain redress for
the violations of the Convention they have suffered and with a concern
to secure the return of the rule of law in Turkey.
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.
6. Victim status
The Government contend that the application constitutes an "actio
popularis" in which the applicants, in deliberately failing to bring
their vague, but serious, claims before Turkish justice in order to
establish the causal link of the alleged damage, have failed to
demonstrate that they are victims of a violation of the Convention.
The applicants refute this contention.
The Commission notes that the applicants have claimed that their
homes and livestock were destroyed and that they were expelled from
their village. It is therefore clear that they claim themselves to be
victims. The question whether or not their allegations are true is a
matter belonging to the merits. Consequently, there is no basis for
declaring the application inadmissible on this ground.
7. As regards the merits
The Government submit that it is generally accepted in the
comparative and international law on terrorism, authorising "certain
adaptations of the liberal model", that restrictions on Convention
rights will be deemed necessary in a democratic society threatened by
terrorist violence, as being proportionate to the aim of protecting
public order.
The threat posed to Turkey by the PKK and its affiliations is
internationally recognised, as is the need to react firmly to it.
Terrorism strikes at the heart of democracy, its fundamental rights and
the judicial and political systems. This has been acknowledged by the
Convention organs (Eur. Court H.R., Fox, Campbell and Hartley judgment
of 30 August 1990, Series A no. 182, and Nos. 11209/84, 11234/84,
11266/84 and 11386/85, Brogan and Others v. the United Kingdom, Comm.
Report 14.5.87 para. 106). It is not for the Convention organs to
substitute their view on how a State should conduct the necessary fight
against terrorism. In this respect the Government assert that the
search of the applicants' village on 10 November 1992, conducted by the
security forces, did not exceed the margin of appreciation conferred
on States by the Convention.
The Government maintain that there is no evidence to substantiate
the applicants' allegations against the security forces under Articles
3, 8 and 14 (Art. 3, 8, 14) of the Convention, or under Article 1 of
Protocol No. 1 (P1-1) to the Convention. Any damage to the applicants'
village, homes and livestock was caused by the terrorist acts of the
PKK. Nor is there any evidence of forced expulsion or discrimination
against the applicants because of their Kurdish origin. The applicants
still live near their village and the first applicant is still mayor.
According to the latter's statements, as well as that of other
villagers, the departure from the village occurred after the PKK
attacks and possibly in accordance with the usual winter migration
towards the town of Diyarbakir.
The Government also consider that Article 5 (Art. 5) of the
Convention has no relevance to the present case, and, if it did, they
refer to their derogation under Article 15 (Art. 15) of the Convention
since 6 August 1990 suspending the former Article's applicability. As
to Articles 6 and 13 (Art. 6, 13) of the Convention, the Government
submit that Turkish law guarantees several remedies (as described above
at pp. 4-6) without discrimination.
Finally, the Government contend that there is no evidence
whatsoever of any abuse of power by the State in breach of Article 18
(Art. 18) of the Convention. On the contrary, if abuse there be, it is
that of the applicants in exploiting the Convention mechanism to make
fallacious allegations for the purposes of political propaganda.
Accordingly, the Government consider that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicants maintain that their account of events is accurate.
There has been no voluntary migration in the region. Instead there has
been a well-attested policy of forced evacuation of over 1000 villages
in South-East Turkey in the last few years. Within a two month period
over 50 villages were forcibly depopulated in the Diyarbakir and
neighbouring area. The official nature of this policy is reflected in
a letter re-printed in the Hürriyet newspaper, dated 16-18 November
1993, allegedly from the late President Turgut Özal to the then Prime
Minister, Süleyman Demirel. The letter proposes the policy of clearing
villages to destroy logistical support to the PKK. Moreover, the
Minister for Human Rights recently spoke of a policy of "State
terrorism" in the region in question.
The applicants contend that the Government's submissions on the
restrictions which necessarily flow from the fight against terrorism
are immaterial to the facts of the present case. The applicants are
ordinary villagers who have been expelled from their homes by the
security forces. Their homes were then destroyed by those same forces.
No anti-terrorist strategy in conformity with the Convention, with or
without an Article 15 (Art. 15) derogation, could justify such actions.
These actions were anyway in breach of the non-derogable rights under
Article 3 (Art. 3) of the Convention.
They maintain their complaints outlined above (pp. 7-8), which
they claim are substantiated on the present state of the evidence.
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)