Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22494/93

by Hasan ILHAN

against Turkey

The European Commission of Human Rights sitting in private

on 17 October 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

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 23 July 1993

by Hasan Ilhan against Turkey and registered on 20 August 1994

under file No. 22494/93;

Having regard to :

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

of the Commission;

- the observations submitted by the respondent Government on

10 March 1994 and the observations in reply submitted by

the applicant on 11 May 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1921, lives at Yardere Köyü (formerly Ahmetli village). He is

represented before the Commission by Professor Kevin Boyle and

Ms. Françoise Hampson, both university teachers at the University

of Essex.

The facts as submitted by the applicant may be summarised

as follows:

On 21 April 1992 the applicant was in Ahmetli village,

Kaynak pasture in the Mardin Central region, when military units

attached to the Gendarmerie Command at Mardin went to search the

village. They found nothing illegal, but the village head man and

the villagers were rounded up and told to leave the village. They

were threatened with being killed if they did not leave.

The security forces then burnt and destroyed some village

houses. Three babies, so young that they had not yet been named,

were killed during the attack. A 90 year old woman, Sultan ilhan,

was also killed. Hand grenades were thrown into the villagers'

home. Sheepfold and haystacks and winter wood stores were

destroyed by fire, with inflammable materials found in the

houses. Those parts of burnt out houses that remained standing

were demolished with pickaxes. Livestock was killed and the eggs

of incubating hens were smashed. Cats and kids (i.e. young goats)

were thrown under military vehicles and run over. Dogs were

killed in a hail of bullets. The villagers were not allowed to

bury the four who had been killed until three days later. As the

military units left, they said: "You must leave the village. If

we come back and find you here, we will kill you all." When the

villagers asked where they could go if they left their village,

they were told: "Your road to hell is open."

The villagers left the village and went to stay with

relatives in nearby Yardere village, about 1,5 kilometres away.

Some time later, the villagers returned to their village to tend

their vineyards and orchards. They made tents in which to live

and erected them in their vineyards and orchards.

On 30 June 1992 military units encircled the village at

about 9 a.m. They saw the tents. They destroyed more houses,

including that of the applicant. The security forces went into

what was left of his home and smashed up the refrigerator,

electrical equipment (eg. his television, cassette player etc)

and other goods (eg. wardrobes). When they saw that the villagers

would not be separated from their village, the military set fire

to the earth in which the vineyards and orchards were planted.

This implies that they used some substance to set alight to

growing trees. The burning of the ground and crops and trees was

achieved by the use of petrol, paraffin and other similar

inflammable materials and sometimes by the use of a powder. In

the applicant's vineyard and orchard, the following were burnt

down:

vines .......... 5 000

peach trees .... 120

fig trees ...... 700

almond trees ... 500

apricot trees .. 700

prune trees .... 460

oak trees ...... 1 000 000

All these trees were completely burnt. The applicant's

losses amount to 1 5000 000 000 (one and a half thousand million)

Turkish Liras. The applicant owned 10 hectares of land.

The applicant complained to the authorities. After the

second attack, he wrote to the Central Office of the Motherland

Party. On 16 July 1992 he received a reply in which Mesut Yilmaz,

the General Secretary promised to pursue the matter. On

30 July 1992 he was sent a copy of a letter regarding his

petition from the Department of National Defence in Ankara to the

Interior Ministry, because the complaint concerned the High

Command of the Gendarmerie General, which the Senior Counsel said

was attached to the Interior Ministry. On 19 August 1992 the

applicant received a reply from the Chief Adviser to the Prime

Minister, saying that the application for compensation had been

passed to the relevant authority and that he would be informed

of the result by the relevant authority. Since that date the

applicant has received no information about any investigation or

compensation.

In the early weeks of March 1993 the applicant was on his

way from Mardin to the village. He was stopped and searched at

Akincilar Military Post. When the replies from Government and

party leaders were found on him, the applicant was thrown into

the station, beaten up and abused. The soldiers burnt the

documents.

The applicant is currently staying at Yardere village, 15-20

kilometres from his home village.

COMPLAINTS

The applicant complains of violations of Articles 3, 5, 6,

8, 13, 14 and 18 of the Convention and Article 1 of the First

Protocol.

As to Article 3 he states that he is a victim of the inhuman

and degrading practice of clearing villages, a form of collective

punnishment. He also refers to discrimination on grounds of race

or ethnic origin.

As to Article 5 he complains of complete lack of security

of the person.

As to Article 6 he refers to the impossibility of

challenging the deprivation of property before it took place,

which represents a denial of access to court for the

determination of civil rights. He also refers to the failure to

initiate proceedings before an independent and impartial tribunal

against those responsible for the destruction of property, as a

result of which civil proceedings cannot be brought in regard to

these events.

As to Article 8 the applicant complains of the destruction

of his home.

As to Article 13 he refers to the lack of any independent

national authority before which his complaints can be brought

with any prospect of success.

As to Article 14 he complains of an administrative practice

of discrimination which has affected the enjoyment of his rights

under Articles 3, 5, 6 and 8 of the Convention and Article 1 of

the First Protocol.

As to Article 18 he alleges that the interferences in the

exercise of his Convention rights were not designed to secure the

ends permitted under the Convention.

As to Article 1 of the First Protocol, the applicant

complains of the destruction of his vineyards and orchards.

As to the exhaustion of domestic remedies, the applicant

states that he has done everything in his power to have the

incident investigated and his losses compensated. He has had no

response to his petitions and applications, apart from letters

of acknowledgement. When soldiers found those replies upon his

person, they burned them.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced before the Commission on 23

July 1993 and was registered on 20 August 1993.

On 11 August 1993 the Commission decided to communicate the

application to the Turkish Government who were invited to submit

their observations on its admissibility and merits before

18 January 1994. At the Government's request, the time-limits

fixed in this case and in a number of other cases were extended,

for half of the cases until 21 February 1994 and for the other

half of the cases until 21 March 1994, it being indicated that

the Government could themselves determine in which cases the

observations should be submitted before 21 February 1994.

By letter of 10 March 1994 the Government submitted

observations in which they raised a preliminary question as to

the competence of Professor Boyle and Ms. Hampson to represent

the applicant in the proceedings before the Commission. Professor

Boyle's and Ms. Hampson's reply to these observations was

submitted by letter of 11 May 1994.

On 30 August 1994 the Commission decided to reject the

Government's objection to the competence of Professor Boyle and

Ms. Hampson. This decision was communicated to the Parties by

letters of 2 September 1994 in which the Parties were further

informed that the Commission intended to examine the

admissibility of the application at its session beginning on

10 October 1994.

THE LAW

The applicant complains of violations of Articles 3, 5, 6,

8, 13, 14 and 18 of the Convention and Article 1 of the First

Protocol (Art. 3, 5, 6, 8, 13, 14, 18, P1-1) in connection with

acts by the security forces in Ahmetli village. These acts

included the destruction of the applicant's home as well as his

vineyards and orchards.

In their observations of 10 March 1994 the Government raised

a preliminary question regarding the competence of Professor

Boyle and Ms. Hampson to represent the applicant (see above under

PROCEEDINGS BEFORE THE COMMISSION). The Government referred in

this connection to a procès-verbal according to which the

applicant had denied having complained to the Commission and to

the applicant's affirmation that he had not raised before any

domestic legal authority his complaints regarding the damage

caused to him by the security forces. However, the Government,

apart from questioning the competence of Professor Boyle and Ms.

Hampson to represent the applicant, did not invoke any of the

grounds of admissibility laid down in the Convention.

The Government have been informed that their objection to

the competence of the applicant's representatives had been

rejected and that the Commission intended to examine the

admissibility of the application at its session beginning on

10 October 1994.

The Commission notes that the Government have not requested

that the application be rejected on the ground that domestic

remedies had not been exhausted.

The Commission further notes that the application raises

important questions of fact and law which cannot be resolved at

the stage of the admissibility but require an examination on the

merits. Consequently, the application cannot be considered

manifestly ill-founded.

No other ground of inadmissibility is applicable to the

present case.

FOR THESE REASONS, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ILHAN v. TURKEY

ILHAN v. TURKEY