EUROPEAN COMMISSION OF HUMAN RIGHTS

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 23819/94

by Ihsan BILGIN

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. ŠVÁBY

G. RESS

A. PERENI_

C. BÃŽRSAN

Mr. H.C. KRÃœGER, 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 24 March 1994 by _ hsan B_LG_N against Turkey and registered on 7 April 1994 under file No. 23819/94;

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 4 January 1995 and the observations in reply submitted by the applicant on 27 February 1995;             

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, was born in 1965 and lives in the hamlet of Yukar_gören within the village of Gözderesi , situated in the District of Silvan in the Province of Diyarbakir, South-East Turkey. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson , both of the University of Essex, England.

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.

In the early morning of 28 September 1993, security forces, numbering some 200 persons and including soldiers, "village protectors" and special teams, organised a raid on the applicant’s village, which they had surrounded during the previous evening. The soldiers surrounded five men, including the applicant, in the village and took away their identity cards while others ransacked the houses. The soldiers also forced 20-30 young women of the village at rifle point to bring out household goods from the houses as well as hay, tobacco and other crops, and then set fire to these. The Gendarme Commander, when asked why the goods were not burnt inside the houses, replied that it was to make hard work for the villagers. Then the soldiers went into the houses and systematically destroyed the fixtures, including light fittings, with axes and rifle butts. The soldiers also beat women, children and old men of the village as they were forced to carry goods from the houses, meanwhile threatening them with death.

The children were forced to denounce the PKK and acclaim the Turkish State under threat of death. A 5-6 year old child was assaulted severely around the face by rifle butts and slapped and kicked because he failed to repeat the chant of the soldiers.

The applicant’s house and goods were destroyed in a similar way by the security forces. He has nowhere to go with his wife and children and can only continue to live in a house which has no windows left, no doors and nothing left inside it. He claims that his financial damage is 200 million TL for his household goods, and 500 million TL for his farm produce.

The applicant has submitted photographs showing both the destruction inside the houses in the village and the burnt remains of produce and household goods in the open.

Following the destruction, the military imposed a blockade on the village. They also led away ten villagers who were blindfolded, including the son of the villager H.E.. As the house of this son had also been destroyed, H.E. subsequently applied to the Court of First Instance in Silvan for compensation. His application was accompanied by a report prepared by the village Muhtar and Council of Elders, which appears also to have been signed by the applicant, about the damage to the village and specifically the house of H.E.’s son. It is not known what has happened in relation to this claim, which included a request for an examination and inventory of the destruction to be undertaken by the authorities.             

On the morning of 23 November 1993 the village was again raided by security forces, who arrived in 10 vehicles. The villagers were gathered in the village square where they were threatened by the soldiers who said, "Either you leave here or we burn you". Wood and haystacks were burnt and the applicant’s brother and a cousin taken into custody.

The applicant has not taken steps to complain or seek compensation from the authorities for the destruction of his home and goods or the assaults on him and other villagers, because he states that the security forces threatened them with death if they complained to anyone and, moreover, he considers that no such complaints or requests would provide an effective remedy for him.

                                  The respondent Government state the following.      

No operation organised by security forces took place in the village of Gözderesi on 28 September 1993. However, a preliminary investigation was commenced (No. 94/365) by the public prosecutor of Silvan , in the course of which the applicant and several witnesses named by him were heard in September 1994.

Some of these witnesses, among which was H.E., stated that soldiers belonging to the Gendarme Regiment of Silvan had carried out searches in their village in the course of which some household goods were damaged, but no crops were burned and no maltreatment of villagers took place.

In his testimony, the applicant declared that his house along with the house of F.A. and M.A. had been burnt down. He was not in the village at the time, but had been told by other villagers upon his return that this had been done by soldiers carrying out a search.

The Government further submit that it has been reported in a newspaper on 26 October 1994 that A., a witness named by the applicant, has been awarded 125,000,000 TL in damages by the Administrative Court of Diyarbak_r on his claim for compensation for the burning of his house as a result of bombing by the security forces.

COMPLAINTS

The applicant complains of violations of Articles 3, 8, 13, 14 and 18 of the Convention and Article 1 of the First Protocol.

As to Article 3, he submits that the destruction of his village and his family home and possessions, leaving him and his family destitute, as well as the assaults and the threats of the military, constitute a form of military vandalism and collective punishment in violation of that Article.

As to Article 8, he submits that the arbitrary destruction of his home and possessions, and the rendering of his wife and children destitute, represent the most direct interference with his home, and with his private life and family life, for which there is no justification under Article 8 para 2.

As to Article 13, the applicant refers to the arguments on the violation of that Article in the related Application No. 21895/93, Ca_irga v. Turkey , and relies on the said arguments mutatis mutandis.

As to Article 14, the applicant alleges that he and his next of kin have been discriminated against on the ground of their Kurdish origin in the enjoyment of their rights under Articles 3, 8 and 13 of the Convention and Article 1 of the First Protocol.

As to Article 18, he submits that the destruction of his own and the villagers’ homes and possessions is completely foreign to the Convention system and cannot be said to have a purpose prescribed by the Convention in the restriction of the rights and freedoms guaranteed.

As to Article 1 of the First Protocol, he complains that he has been deprived of the peaceful enjoyment of his possessions in a manner that was wholly arbitrary.

As to the exhaustion of domestic remedies, he considers that he is released from any obligation to pursue a domestic remedy, firstly, because he has been threatened with being killed if he complained, and secondly, because the destruction of his home and possessions was carried out by the same military authorities who are responsible for the governance of the emergency area in which he resides. The applicant further submits that there is an administrative practice of not respecting the rule in Article 13 of the Convention which requires the provision of effective domestic remedies. In such circumstances, the applicant considers that the pursuit of any remedy is illusory and inevitably ineffective and inadequate.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 March 1994 and registered on 7 April 1994.

On 27 June 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 4 November 1994. At the Government’s request, this time-limit was subsequently extended until 4 December 1994.

The Turkish Government submitted observations on 5 December 1994 and further observations on 4 January 1995. Observations in reply were submitted on behalf of the applicant on 13 February 1995.

THE LAW

The applicant alleges that a military raid took place on his village, in the course of which his house and possessions were destroyed. He invokes Article 3 (the prohibition on inhuman and degrading treatment), Article 8 (the right to respect for family life and the home), Article 13 (the right to effective national

remedies for Convention breaches), Article 14 (the prohibition on discrimination) and Article 18 (the prohibition on using authorised Convention restrictions for ulterior purposes) of the Convention, as well as Article 1 of the First Protocol (the right to property).

1. The Government argue in the first place that the applicant has failed to exhaust domestic remedies. They contend that an illegal act which causes material or non-pecuniary damage can be the subject of a claim for compensation before the civil or administrative courts and that a criminal prosecution can be undertaken simultaneously.

In this respect they refer to a judgment by a civil appeal court which awarded compensation to a victim of torture even though the criminal courts had acquitted the two suspects. As an example of a case where compensation has been awarded by an administrative court, the Government refer to a decision of the Administrative Court of Diyarbak_r of 13 November 1990 (Court File No. 1987/499, Decision No. 1990/539), which dealt with damage caused during a terrorist incident.

The Government submit that citizens suffering damage as a result of terrorist violence can be compensated, without a judicial procedure being required, by the Social Help and Solidarity Fund, pursuant to Section 22 of Law 3713, the Anti-Terror Law.

In light of the fact that one of the witnesses named by the applicant has received compensation, the Government maintain that domestic remedies in circumstances as described by the applicant do exist and are effective. The Government finally point out that the preliminary investigation commenced by the public prosecutor of Silvan is still pending and could lead to a criminal action against those who caused damage to the applicant’s house.

The applicant welcomes the fact that an investigation has been opened by the public prosecutor of Silvan , but notes that the testimony of the victims was taken a year after the event and that it is still pending 17 months later. He submits that it is far from certain that the investigation will yield any effective outcome and that he cannot be expected to wait indefinitely for the investigation to be concluded. He further points to the absence of any previous effective investigations into the destruction of villages by the security forces, recalling the evidence submitted in Applications No. 21893/93, Akdivar and others v. Turkey, and No. 21895/93, Ca_irga v. Turkey ( Decs . 19.10.94).

The applicant finally alleges that the examples of cases submitted by the Government where compensation has been granted have no bearing on his application, and that the Government have not provided any example of a successful prosecution of the security forces for the destruction of houses or property.

The Commission recalls that Article 26 of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach. It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. 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).

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 applicant, because it agrees with the applicant that it has not been established that he had at his disposal adequate remedies to deal effectively with his complaints.

The Commission refers to its findings in Application No. 21893/93, Akdivar and others v. Turkey (Dec. 19.10.94) which concerned similar allegations by the applicants of destruction of their village. In that case, the Commission noted that it was a known fact that there has been destruction of villages in South-East Turkey with many people displaced as a result. While the Government had outlined a general scheme of remedies that would normally be available for complaints against the security forces, the Commission found it significant that, although the destruction of houses and property has been a frequent occurrence in South-East Turkey, the Government had not provided a single example of compensation being awarded to villagers for damage comparable to that suffered by the applicants. Nor had relevant examples been given of successful prosecutions against members of the security forces for the destruction of villages and the expulsion of villagers.

The Commission considered that it seemed 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. It further had regard to the vulnerability of dispossessed applicants, under pressure from both the security forces and the terrorist activities of the PKK, and held that it could not be said at this stage that their fear of reprisal if they complained about acts of the security forces was wholly without foundation.

The Commission concluded that, in the absence of clear examples that the remedies put forward by the Government would be effective in the circumstances of the case, the applicants were 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.

As regards the compensation allegedly granted to another victim of the same incident, the Commission notes that the Government quote from a newspaper report but fail to submit documents pertaining to these compensation proceedings before the Administrative Court of Diyarbak_r .

The Commission observes furthermore that, despite the testimony given by the applicant to the public prosecutor of Silvan and a newspaper report relied on by the Government which relates to the bombing of a house by security forces, the Government have stated that no operation organised by the security forces as alleged took place. It also appears that the preliminary investigation commenced by the public prosecutor of Silvan is currently still pending, about a year and a half after the alleged event. In these circumstances the Commission is not satisfied that this investigation can be considered as furnishing an effective remedy for the purposes of Article 26 of the Convention.

The Commission reiterates its finding in the context of the Akdivar case (loc. cit.) that it cannot be said at this stage that the applicant’s fear of reprisal if he pursues his complaints more vigorously is wholly without foundation.

The Commission concludes that this application cannot be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para . 3 of the Convention.

2. As regards the merits of the application, the Government maintain that no operation organised by the security forces took place on 28 September 1993 in the hamlet of Yukar_gören . They cast doubt on the credibility of the applicant’s allegations in that the amount of damage the applicant claims to have suffered is obviously excessive.

The applicant maintains his account of the attack by security forces on the village and he points out that his testimony taken during the investigation by the public prosecutor of Silvan supports his allegations in this application. He submits that the evidence gathered so far by the public prosecutor establishes the merits of his application and that the Government can no longer deny the occurrence of the event.

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 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)