AKDİVAR AND OTHERS v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 21893/93

                        Hüseyin Akdivar

                      Abdurrahman Akdivar

                         Ahmet Akdivar

                          Ali Akdivar

                        Zülfükar Çiçek

                         Ahmet Çiçek

                       Abdurrahman Aktas

                       Mehmet Karabulut

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                 (adopted on 26 October 1995)

                       TABLE OF CONTENTS

                                                            Page

I.   INTRODUCTION

     (paras. 1-25). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-20) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 21-25). . . . . . . . . . . . . . . . . . .3

II.  ESTABLISHMENT OF THE FACTS

     (paras. 26-173). . . . . . . . . . . . . . . . . . . . .4

     A.   The particular circumstances of the case

          (paras. 26-39). . . . . . . . . . . . . . . . . . .4

     B.   The evidence before the Commission

          (paras. 40-156) . . . . . . . . . . . . . . . . . .5

          a) Documentary and audio-visual evidence

             (paras. 40-76) . . . . . . . . . . . . . . . . .5

          b) Oral evidence

              (paras. 77-156) . . . . . . . . . . . . . . . 13

     C.   Relevant domestic law and practice

          (paras. 157-173). . . . . . . . . . . . . . . . . 22

III. OPINION OF THE COMMISSION

     (paras. 174-265) . . . . . . . . . . . . . . . . . . . 25

     A.   Complaints declared admissible

          (para. 174) . . . . . . . . . . . . . . . . . . . 25

     B.   Points at issue

          (para. 175) . . . . . . . . . . . . . . . . . . . 25

     C.   As regards the applicants

          (paras. 176-183). . . . . . . . . . . . . . . . . 25

          Decision

          (para. 183) . . . . . . . . . . . . . . . . . . . 26

     D.   The evaluation of the evidence

          (paras. 184-214). . . . . . . . . . . . . . . . . 27

     E.   As regards Article 8 of the Convention

          and Article 1 of Protocol No. 1 to the Convention

          (paras. 215-220). . . . . . . . . . . . . . . . . 32

          Conclusions

          (paras. 219-220). . . . . . . . . . . . . . . . . 32

                       TABLE OF CONTENTS

                                                            Page

     F.   As regards Article 3 of the Convention

          (paras. 221-225). . . . . . . . . . . . . . . . . 33

          Conclusion

          (para. 225) . . . . . . . . . . . . . . . . . . . 33

     G.   As regards Article 5 par. 1 of the Convention

          (paras. 226-231). . . . . . . . . . . . . . . . . 33

          Conclusion

          (para. 231) . . . . . . . . . . . . . . . . . . . 34

     H.   As regards Articles 6 par. 1 and 13 of the Convention

          (paras. 232-242). . . . . . . . . . . . . . . . . 34

          Conclusions

          (paras. 241-242). . . . . . . . . . . . . . . . . 35

     I.   As regards Article 14 and 18 of the Convention

          (paras. 243-248). . . . . . . . . . . . . . . . . 36

          Conclusions

          (paras. 247-248). . . . . . . . . . . . . . . . . 36

     J.   As regards Article 25 of the Convention

          (paras. 249-255). . . . . . . . . . . . . . . . . 36

          Conclusion

          (para. 255) . . . . . . . . . . . . . . . . . . . 37

     K.   Recapitulation

          (paras. 256-265). . . . . . . . . . . . . . . . . 37

PARTLY DISSENTING OPINION OF MR. H. DANELIUS. . . . . . . . 39

JOINED BY Mr. C.A. NØRGAARD ON THE ISSUE UNDER ARTICLE 25 OF THE

CONVENTION

PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK AND . . .   40

MR. A. WEITZEL CONCERNING ARTICLES 3, 6 AND 13 OF THE CONVENTION

PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK CONCERNING. 46

ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

PARTLY DISSENTING OPINION OF MR. A. WEITZEL CONCERNING. .   47

ARTICLE 25 OF THE CONVENTION

PARTLY DISSENTING OPINION OF MRS. J. LIDDY  . . . . . . . . 48

PARTLY DISSENTING OPINION OF MR. I. CABRAL BARRETO. . . . . 49

PARTLY DISSENTING OPINION OF MR. N. BRATZA. . . . . . . . . 50

JOINED ON THE WHOLE OPINION BY MR. H.G. SCHERMERS AND

ON THE ISSUE UNDER ARTICLE 13 OF THE CONVENTION JOINED BY

MR. C. A. NØRGAARD

PARTLY DISSENTING OPINION OF MR. G. RESS. . . . . . . . . . 52

APPENDIX  : DECISION OF THE COMMISSION AS TO THE

            ADMISSIBILITY OF THE APPLICATION. . . . . . . . 54

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicants are Turkish citizens who were residents of the

village of Kelekçi in the Dicle district of the province of Diyarbakir.

They were represented before the Commission by Professor K. Boyle and

Ms. F. Hampson, both teachers at the University of Essex.

3.   The application is directed against Turkey. The respondent

Government were represented by its Agent, Mr. B. Çaglar.

4.   The applicants allege that their homes were burnt and that they

were forcibly and summarily expelled from their village by State

security forces on 10 November 1992.  They invoke Articles 3, 5, 6, 8,

13, 14 and 18 of the Convention, as well as Article 1 of

Protocol No. 1.

B.   The proceedings

5.   The application was introduced on 3 May 1993 and registered on

18 May 1993.

6.   On 30 August 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on 15 February 1994,

after an extension of the time-limit fixed for this purpose.  The

applicants replied on 19 April 1994.

8.   On 27 June 1994 the Commission decided to hold a hearing of the

parties in Strasbourg on 18 October 1994, jointly with two other cases:

No. 21894/93, Akkum and others v. Turkey, and No. 21987/93, Aksoy

v. Turkey. Prior to the hearing, the parties submitted additional

material: the applicants on 15 August, 23 September and 4 and

10 October 1994, the Government on 4 and 7 October 1994. The applicants

were granted legal aid on 14 October 1994.

9.   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.

10.  On 19 October 1994 the Commission declared the application

admissible.

11.  On 7 December 1994 the Commission decided to take oral evidence

in respect of the applicants' allegations. It appointed three delegates

for this purpose: Mr. H. Danelius, Mr. I. Cabral Barreto and

Mr. N. Bratza.

12.  The text of the Commission's decision on admissibility was sent

to the parties on 14 December 1994 and they were invited to submit such

further information or observations on the merits as they wished. They

were also invited to indicate the oral evidence they wished to put

before the delegates. The Government submitted observations on

14 February 1995, after an extension of the time-limit fixed for this

purpose. In those observations, the Government invited the Commission

to declare the application inadmissible, pursuant to Article 29 of the

Convention. Amongst the material submitted by the Government was an

undated video of an interview with Hüseyin Akdivar and Ahmet Çiçek,

who, it later appeared, was a cousin of the applicant with the same

name. Further video material was submitted by the Government on

8 March 1995.

13.  The parties indicated the names of possible witnesses: the

applicants on 1 January, 13 February and 21 March 1995, the Government

on 16 and 21 January and 5 April 1995.

14.  Protests about alleged governmental intimidation of applicants,

witnesses and local lawyers involved in the case, in violation of

Article 25 of the Convention, were lodged with the Commission by the

applicants' representatives on 1 January, 7, 8 and 9 March and

18 April 1995.

15.  Evidence was heard by the delegation of the Commission in

Diyarbakir on 13 and 14 March 1995, and in Ankara from 12 to

14 April 1995. At the first hearing the Government submitted further

video material. Before the delegates the Government were represented

by Mr. B. Çaglar, Agent, assisted by Mr. T. Özkarol, Mr. N. Akinci,

Mr. A Someren, Ms. B. Pekgöz, Mr. i. Kovar, Mr. A. Kurudal,

Mr. F. Erdogan, Mr. Y. Kizilkaya and Mr. A. Kaya. The applicants were

represented by Professor K. Boyle and Ms. F. Hampson, counsel, assisted

by Ms. A. Reidy and Ms. J. Cunnison.

16.  On 20 May 1995 the Commission decided to invite the parties to

present their conclusions on the merits of the case at a hearing to be

held in Strasbourg. A pre-hearing memorial on the merits was submitted

by the applicants' representatives on 23 June 1995.

17.  The hearing of conclusions was held on 3 July 1995, the case

having been disjoined at this stage from those mentioned above

(para. 8). The Government were represented by Mr. B. Çaglar, Agent,

advised by Ms. D. Akçay, Mr. T. Özkarol, Mr. Y. Kizilkaya and

Ms. i. Boivin. The applicants were represented by Professor

K. Boyle and Ms. F. Hampson, counsel, assisted by Ms. A. Reidy.

18.  Further documentary evidence was submitted by the applicants'

representatives on 14 June 1995 and by the Government on 10 July 1995.

19.  On 17 October 1995 the Commission decided that there was no basis

on which to apply Article 29 of the Convention.

20.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

21.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          MM.  S. TRECHSEL, President

               H. DANELIUS

               C.L. ROZAKIS

               C.A. NØRGAARD

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H.G. SCHERMERS

          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

22.  The text of this Report was adopted on 26 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

23.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

24.  The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

25.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

26.  The facts of the case, particularly concerning events in

November 1992, are disputed by the parties. For this reason, pursuant

to Article 28 para. 1 (a) of the Convention, the Commission has

conducted an investigation, with the assistance of the parties, and has

accepted written material, as well as oral testimony, which has been

submitted. The Commission first presents a brief outline of the events,

as claimed by the parties, and then a summary of the evidence submitted

to it.

A.   The particular circumstances of the case

27.  The applicants, Turkish nationals, all lived in the village of

Kelekçi, in the Dicle district of the province of Diyarbakir.

28.  The applicants' village was attacked by the PKK, an armed

terrorist group, on 17 or 18 July 1992. Three people died (the uncle

and two cousins of the applicant Ahmet Çiçek), and three others were

injured (the father, uncle and cousin of the applicant Abdurrahman

Aktas).

29.  On the night of 1 November 1992 between 100 and 150 PKK

terrorists attacked the gendarme station at a neighbouring village,

Bogazköy, with heavy weapons, killing a soldier and injuring eight

others. The Bogazköy gendarme station collapsed under the bombardment

and had to be evacuated.

30.  Searches were then made of the surrounding area by the security

forces in an attempt to find the terrorists concerned.

31.  According to the applicants, on 10 November 1992, in the evening,

soldiers entered their 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.

32.  The soldiers instructed Hüseyin Akdivar, who was the 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 set fire to a number of houses including those of the mayor,

his son and other houses belonging to the applicants. A total of

nine houses and their contents were burnt to the ground.

33.  Following the destruction of the houses, many of the inhabitants

left the village. Most went to the city of Diyarbakir. Some who had

relatives there moved in with them. Others were homeless.

34.  On 6 April 1993, after having been tipped off about an imminent

PKK attack, the security forces returned to Kelekçi and set fire to the

rest of the village.

35.  Kelekçi has now been completely evacuated since most of the

houses were destroyed, particularly during the further military attack

on the village in April 1993.

36.  The applicants are in difficulties, having received no

compensation from the State, although some food and clothing were

provided to villagers after these incidents.

37.  According to the Government, after the PKK attack on the  Kelekçi

village in July 1992, the villagers began to evacuate their homes

voluntarily as they felt insecure there. Three families later returned.

38.  After the attack on Bogazköy gendarme station on 1 November 1992,

the security forces made a search of the area and found several

deserted terrorist shelters containing food and clothes. Originally it

was stated that Kelekçi had been searched without any damage being

caused. Subsequently, officers testified that no search had been made

of Kelekçi and no troops had entered the village on 10 November 1992.

Soldiers had merely stopped on the outskirts of the village around that

date for a rest.

39.  On 6 April 1993 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 evidence before the Commission

     a)   Documentary and audio-visual evidence

40.  The parties submitted various documents, photographs, sketches

and video cassettes to the Commission. The documents included reports

about Turkey, its judicial system and certain case-law, statistics

concerning, inter alia, prosecutions of officials for allegedly

unlawful acts, and affidavits from some of the applicants and witnesses

concerning the authenticity of their applications to the Commission and

their version of the events in the case.

41.  The Commission had particular regard to the following documents:

     aa)  General reports

     (1)  Report dated 23 September 1994 by Bekir Selçuk,

          Chief Public Prosecutor at the Diyarbakir State

          Security Court, to the Ministry of Justice

42.  Bekir Selçuk reported that the PKK attacked Kelekçi on

17 July 1992, killing Adem Çiçek, Ahmet Çiçek and Ali Aktas, and

wounding three other persons. They then attacked Bogazköy gendarme

station, killing a gendarme and wounding eight others. This conflict

spread to Kelekçi where subsequently nine houses were burnt and damaged

in the clashes between the terrorists and the security forces. The

village was abandoned as a result, the villagers being in fear of the

PKK. The remaining abandoned houses at Kelekçi were burnt on

6 April 1993.

43.  According to the report no application from the victims of these

incidents has been made to the authorities, i.e. the District Council,

the District Attorney or the Dicle courts.

44.  Hüseyin Akdivar, mayor of Kelekçi, had denied to the authorities

that he had applied to the Commission, and Abdurrahman Aktas and

Ahmet Çiçek had stated that they were called to the Diyarbakir Human

Rights Association and signed petitions, which had been prepared in

advance and which they did not read, in order to receive compensation.

They have since acknowledged that these petitions, which were forwarded

to the Commission, were untrue.

     (2)  Exploratory report dated 21 September 1994 by

          Bekir Selçuk and others

45.  The report states that, in order to evaluate the existing

evidence regarding the incidents of 1 November 1992 at Bogazköy and of

6 April 1993 at Kelekçi and to collect further evidence, an exploratory

mission had been set up. A team composed of Bekir Selçuk, a

photographer and Mehmet Nur Taranci, a construction engineer and expert

of the Directorate of Public Works, had travelled to the area concerned

by helicopter on 21 September 1994. The team landed at Bogazköy but not

at Kelekçi. They noted, however, during low level flights that all the

houses at Kelekçi had collapsed and that there were no inhabitants in

the village.

46.  In a special statement, Mehmet Nur Taranci declared that the

collapse of the houses at Kelekçi was the result of a lack of

maintenance. It was due to natural causes and to the material used in

the construction of the houses.

     (3)  Incident report dated 8 April 1993 by

          Gendarmerie Officers Gürsel Demirtas, Tayfur Nur

          and others, also signed by several inhabitants

          of Kelekçi, including Hüseyin Akdivar and

          Abdullah Karabulut

47.  The report describes the events at Kelekçi on 6 April 1993. It

states that on that day a military unit came to the village, completed

their search activities by 13.00 hours and returned to their posts

without causing any damage or destruction. After the military had left

the village, unidentified armed members of a terrorist organisation

had, according to certain accounts, arrived at the village at around

18.00 hours on the same day. This group had entered and spread around

the village. They had then set fire to some of the houses. They had

pressured the residents into claiming that the military had set fire

to their houses. Various residents of the village had not been present

at the time of the incident. Their houses were built of mud bricks, and

during the winter these residents remained in Diyarbakir. They only

returned and lived in the village for a short period during the summer.

     bb) Statements by applicants

     Hüseyin Akdivar

     (4)  Statement dated 15 April 1993 by Hüseyin

          Akdivar, mayor of Kelekçi, to gendarmes

48.  Hüseyin Akdivar recounted that villagers had told him that

Kelekçi had been burnt some 10 days before, but he did not know who had

done it.

     (5)  Statement dated 22 September 1994 of

          Hüseyin Akdivar to the Chief Public Prosecutor

          Bekir Selçuk and others

49.  Hüseyin Akdivar confirmed the attack on Bogazköy gendarme station

on 1 November 1992, and the subsequent burning of nine houses in

Kelekçi. However, he had not seen who had committed this latter deed

as he had been out with the security forces helping them with their

searches. He had petitioned the President of the Republic, the Prime

Minister and the state of emergency governor for the houses to be

rebuilt and their losses compensated. He had not applied to the

district authorities or the Commission.

     (6)  A transcript dated 19 November 1994 of questions

          and answers between Hüseyin Akdivar and officers

          of the Operation and Security Section

50.  In answer to the question whether he had applied to the

Commission alleging that his village had been forcibly evacuated and

houses burnt, Hüseyin Akdivar stated that he had applied to the

gendarme station and the district mayor's office but to nobody else.

The villagers had evacuated the village for security reasons. He had

heard that terrorists had come to the village, as with all other

villages, but he had never seen any.

     Abdurrahman Akdivar

     (7)  Statement dated 14 November 1992 of

          Abdurrahman Akdivar, a Kelekçi villager, to the

          Diyarbakir Human Rights Association

51.  Abdurrahman Akdivar stated that on 10 November 1992 a military

special team arrived at Kelekçi, ordered his father, the mayor, to

gather the villagers together, and burnt down nine houses, including

that of his family, without explanation. The households concerned had

to migrate elsewhere or were homeless. They were financially and

psychologically ruined.

     Ahmet Ciçek

     (8)  Statement dated 16 April 1994 of Ahmet Çiçek

          (born in 1968), a Kelekçi villager, to the

          Diyarbakir Human Rights Association, witnessed

          by Mahmut Sakar

52.  Ahmet Çiçek stated that he had witnessed soldiers burning houses

at Kelekçi on 10 November 1992. Some villagers were beaten up.

Thereafter, the villagers started leaving. On 5 April 1993 when he was

in the vicinity of the village tending the vineyards, soldiers again

burnt houses and beat up any one who spoke.

53.  He did not ask the State for help with his financial difficulties

because he knew it would be fruitless. He had heard that other

villagers had been summoned by the Dicle District Governorship and

District Gendarme Command and told they would get aid if they said that

the village had not been burnt by State forces, but by terrorists.

Villagers had signed statements to this effect without knowing their

exact content, but had received no aid. He confirmed his application

to the Commission.

     Abdurrahman Aktas

     (9)  Statement (undated but probably around

          20 April 1993) of Abdurrahman Aktas, a Kelekçi

          villager, to gendarmes

54.  Abdurrahman Aktas stated that soldiers came to Kelekçi on

6 April 1993 and searched causing no damage. That evening terrorists

came and burnt down the village. He recalled the incident in July 1992

when terrorists had come to the village, killed three people and

injured three others. He asserted that the villagers always help the

State and have always shown respect. They have never helped the

terrorists. He wished for State help in the difficult circumstances

that were being faced.

     (10) Statement dated 22 September 1994 of Abdurrahman

          Aktas to the Chief Public Prosecutor Bekir

          Selçuk and others

55.  Abdurrahman Aktas stated that he had left Kelekçi after his

father had been killed during the PKK attack in July 1992. He had no

knowledge of subsequent incidents. He was later called by the

Diyarbakir Human Rights Association and promised compensation if he

made an application. He confirmed his signature on the application made

to the Commission.

     cc) Statements by other persons

     Ahmet Aksakal

     (11) Statement dated 20 April 1993 of Ahmet Aksakal,

          a Kelekçi villager, to gendarmes

56.  Ahmet Aksakal stated that soldiers had come to the village

15-20 days earlier at about 11.00 hours. They searched the houses one

by one and later left without doing any harm or causing any damage. On

the same day in the evening a group of armed terrorists entered the

village and started destroying it. These terrorists had already come

to the village in July 1992. Then they had killed three people and

disabled three others by injuring them. He added that the villagers

have always been respectful and helpful to the State, and do not like

to help those who rebel against the State. They wanted help from the

State in their difficult conditions.

     Ahmet Aktas

     (12) Statement dated 20 April 1993 of Ahmet Aktas, a

          Kelekçi villager, to gendarmes

57.  Ahmet Aktas stated that about 15 days earlier, around

11.00 hours, soldiers had come to the village for a search. After they

had completed their search, they left the village without doing any

harm. In the evening of the same day an armed group of terrorists came

and set fire to the houses in the village and destroyed them. Then they

left the village. Those terrorists had killed three people and wounded

three others in July 1992. He pointed out that the villagers have

always been respectful and helpful to the State. They have never helped

terrorists, nor will they do so. They wanted the State to help them in

their difficult situation.

     (13) Statement dated 22 September 1994 of Ahmet Aktas

          to the Chief Public Prosecutor Bekir Selçuk and

          others

58.  Ahmet Aktas stated that on 18 July 1992 the village was ambushed

by members of the PKK. The ambush resulted in the loss of three lives,

and three other persons were wounded. One of the dead was his brother

Ali. Following the incident Ahmet Aktas left the village and moved to

Diyarbakir. On 1 November 1992 and 6 April 1993 other incidents took

place in the village, but, as he was then in Diyarbakir, he was not

aware of the particulars. However, his house was burnt as a result of

these incidents. He did not know if it was burnt in connection with the

first or the second incident. Nor did he know how the fire began and

who started it.

     Fahri Akyüz

     (14) Statement (apparently from April 1993) of

          Fahri Akyüz, a Kelekçi villager, to gendarmes

59.  Fahri Akyüz stated that 15 days earlier at about 11.00 hours

soldiers had come to the village for a search. They searched and left

the village without any harm. In the evening of the same day a group

of terrorists came to the village. They set fire to the houses and

destroyed them. Those terrorists had come to the village in July 1992,

had killed three people and wounded another three. He further stated

that the villagers have always been respectful and helpful to the

State. They were now under difficult conditions and wanted the

Government to help them.

     (15) Statement dated 23 September 1994 of Fahri Akyüz

          to the Chief Public Prosecutor Bekir Selçuk and

          others

60.  Fahri Akyüz stated that he had not been present in the village

during the incidents concerned. However, his house had been burnt down,

although he did not know how the fire started or who started it.

     Ahmet Çiçek

     (16) Statement dated 26 April 1993 of Ahmet Çiçek

          (born in 1967), a Kelekçi villager, to gendarmes

61.  Ahmet Çiçek stated that, about 20 days before, soldiers had

harmlessly searched the village, but during the night armed terrorists

had destroyed the village by fire. He recalled that those terrorists

had also come to the village in July 1992, killed three persons and

wounded three others. He stated that the villagers had always been

respectful and helpful to their State. They have not helped the

terrorists and will not do so. He sought Government support because of

the very difficult conditions he and others were under.

     (17) Statement dated 22 September 1994 of the same

          Ahmet Çiçek, apparently to the Chief Public

          Prosecutor Bekir Selçuk and others

62.  Ahmet Çiçek stated that Kelekçi and Bogazköy had been attacked

on 17 July 1992 and 1 November 1992 respectively, the latter conflict

with security forces having extended to Kelekçi. He had left after

three days of conflict and had heard that nine houses had been burnt.

In the spring of 1993, when he had been tending the vineyards, the

village was burnt completely and, as there were only soldiers present

in the village then, he assumed that they had done it.

63.  He had subsequently been called to the Diyarbakir Human Rights

Association and denied that he had said to gendarmes that terrorists

had set fire to the village. Consequently they typed a petition letter

for him to the Commission.

     (18) A transcript dated 19 November 1994 of questions

          and answers between the same Ahmet Çiçek and

          officers of the Operation and Security Section

64.  Ahmet Çiçek stated that he had not made an application to the

Diyarbakir Human Rights Association on 1 November 1992 declaring that

his house had been burnt by security forces. However, he had been

called by the Association in April 1993 about the burning that same

month which he had supposed had been perpetrated by soldiers. He denied

having applied to the Commission.

     Mehmet Emin Çiçek

     (19) Statement dated 20 April 1993 of Mehmet

          Emin Çiçek, a Kelekçi villager, to gendarmes

65.  Mehmet Emin Çiçek stated that, about 15-20 days before, soldiers

had come to the village for a search at about 11.00 hours. They

searched the houses one by one and left the village without harming the

villagers. In the evening of the same day armed people came and set

fire to the village. They burnt it down and destroyed it. Terrorists

had already come to the village in July 1992 when they had killed three

people and handicapped three others by injuries. He stated that the

villagers have always been respectful and helpful to the State.  They

did not want to help those who rebel against the State. They wanted

help from the State in their difficult conditions.

     Abdullah Karabulut

     (20) Statement dated 20 April 1993 of

          Abdullah Karabulut, a Kelekçi villager, to

          gendarmes

66.  Abdullah Karabulut stated that the perpetrators of the fire in

April 1993 were terrorists. He mentioned that in the attack in

July 1992 the terrorists had killed three people and wounded three

others. He asserted that the villagers were respectful and helpful to

the State. They do not like those who are against the State and did not

help them. They wished for State help in the difficult circumstances

that were being faced.

     (21) Statement dated 22 September 1994 of

          Abdullah Karabulut to the Chief Public

          Prosecutor Bekir Selçuk and others

67.  Abdullah Karabulut stated that he had left the village after the

PKK attack in July 1992. He heard from others that after the conflict

in November 1992 villagers of both Bogazköy and Kelekçi had evacuated

their homes. He returned to Kelekçi with his father in April 1993 to

prune the vineyard. Then the village was set alight. As there were only

soldiers in the village, he assumed that it was they who had started

the fire.

     Ahmet Önal

     (22) Statement dated 15 April 1993 of Ahmet Önal, a

          Kelekçi villager, to gendarmes

68.  Ahmet Önal asserted that he had always helped the State and that

the villagers have always been respectful of the State. They have

always been against those who are against the State and certainly did

not help them. In July 1992 terrorists had killed three people and

wounded three others in Kelekçi. On another occasion at a time when the

fields were being tended, armed men had set fire to houses in the

village at night, so no one had seen them. He wished the State to help

in the difficult circumstances they were facing.

     (23) Statement dated 22 September 1994 of Ahmet Önal

          to the Chief Public Prosecutor Bekir Selçuk and

          others

69.  Ahmet Önal stated that he had no knowledge of the events in

Kelekçi on 18 July 1992 or 1 November 1992. In the spring of 1993 he

had been in Kelekçi working in the vineyards when the village caught

fire. Gendarmes were there already. He did not know who had started the

fire and had lodged no complaint.

     Bedri Özalp

     (24) Statement (undated) of Bedri Özalp, a Kelekçi

          villager, to the Diyarbakir Human Rights

          Association

70.  Bedri Özalp stated that on 10  November 1992 Kelekçi village was

raided by a group of soldiers. They came to the village at around

13.00 hours, waited and, in the evening at around 17.30 hours, entered

the village. They collected the villagers, and while some of the

soldiers waited with the villagers, others went into the village to set

houses alight. They burnt the homes of eleven families, including his

home, and told the villagers to leave the village. On the following day

the villagers evacuated the village. In March 1993 some villagers

returned, but after the soldiers had burnt the rest of the houses, they

ejected all the villagers again. Bedri Özalp believes that the reason

for the burning of the village was that there had previously been

village protectors in the village since 1989, but that on 18 July 1992

these protectors had given up their functions.

     Adil Simsek

     (25) Statement dated 20 April 1993 of Adil Simsek,

          a Kelekçi villager, to gendarmes

71.  Adil Simsek stated that he has always been helpful to the State.

The village has always been respectful of the State and has never liked

or helped those who harm the State. About 20 days before his statement

was made, around 11.00 hours, soldiers had come to the village and

searched the houses one by one, but had done no damage or harm to

anything. After they had left, terrorists came in the evening and set

the houses on fire and destroyed them. Adil Simsek was absent from the

village. His house together with the things inside burnt down

completely. He pointed out that the villagers are always against those

people who rebel against the State. They wanted help from the State in

their difficult conditions.

     (26) Statement (undated) of Adil Simsek to the Chief

          Public Prosecutor Bekir Selçuk and others

72.  Adil Simsek stated that on 18 July 1992 he was a temporary

village protector at Kelekçi village when the PKK ambushed the village,

killed three persons and wounded three others. Following this incident

he abandoned the village and settled in Diyarbakir. Subsequently his

house was burnt down, but he does not know how this happened or who set

it on fire. After 1 November 1992 all the residents left the village.

     Hüseyin Yavuz

     (27) Statement dated 15 April 1993 of Hüseyin Yavuz, a

          Kelekçi villager, to gendarmes

73.  Hüseyin Yavuz stated that about ten days earlier around

11.00 hours soldiers had come to the village to search. They searched

the houses one by one and left the village without causing any harm.

Later he heard that a few armed terrorists had come to the village in

the evening of the same day, had set fire to houses and destroyed them.

Afterwards they left the village. In July 1992 terrorists had killed

three people and wounded three others in the village. The villagers

have always been respectful of their State and people. They do not like

those who are against the State and did not help them. They wanted

Government help in their difficult conditions.

     (28) Statement dated 22 September 1994 by

          Hüseyin Yavuz to the Chief Public Prosecutor

          Bekir Selçuk and others

74.  Hüseyin Yavuz stated that he had no direct knowledge of the

incidents which took place on 18 July 1992 and 1 November 1992. He

received news, however, that his house was burnt, and when he went

there, he saw that the house was actually burnt. He did not know how

it was burnt or by whom.

     Mehmet Yavuz

     (29) Statement dated 15 April 1993 of Mehmet Yavuz, a

          Kelekçi villager, to gendarmes

75.  Mehmet Yavuz stated that he was a member of the village council

and that he had always helped the State. While he was in the village

ten days ago, at about 11.00 hours, soldiers came to the village for

a search. They searched the houses one by one and left the village

without doing any harm. He heard that later on armed terrorists had

come to the village in the evening, set fire to houses and then left.

In July 1992 terrorists had killed three people and wounded three

others in the village. He stated that the villagers have always been

respectful of the State. They do not like those who are against the

State and did not help them. They wanted Government help in their

difficult situation.

     (30) Statement dated 22 September 1994 of

          Mehmet Yavuz to the Chief Public Prosecutor

          Bekir Selçuk and others

76.  Mehmet Yavuz stated that he was elected a member of the village

council in 1989. At that time there were 14 temporary village

protectors in the village. However there was enormous pressure by the

terrorist organisation to give up their positions. The village was

ambushed on 18 July 1992 by the PKK in order to suppress the village

protectors and make them give up their positions. The result of the

ambush was that three persons died and three others were wounded. After

this incident the village protectors gave up their duties. On 1

November 1992, when Mehmet Yavuz was not in the village, the Bogazköy

gendarme station was attacked by terrorists. He heard that this

developed into a ten day struggle, and that the safety of the Kelekçi

villagers was jeopardised. They collectively evacuated the village on

10 November 1992. Since Mehmet Yavuz never returned to the village, he

had no knowledge of the incident which took place on 6 April 1993. He

was only told that his house had burnt.

     b)   Oral evidence

77.  The evidence of 14 witnesses heard by the Commission's delegation

may be summarised as follows:

     (1) Hüseyin Akdivar

78.  Hüseyin Akdivar stated that he was born in 1943 and was the mayor

of Kelekçi. He is the father of Abdurrahman Akdivar and the brother of

Ahmet and Ali Akdivar.

79.  He said that he had never made an application to the European

Commission of Human Rights. When confronted with the power of attorney

which had been submitted to the Commission, he denied that it had been

signed by him. A sample of his signature which was compared with that

on the power of attorney bore no resemblance to the latter signature.

He did not recall a filmed interview in which he had declared that he

had not made an application to the Commission, for on the day in

question he had been ill.

80.  He confirmed the terrorist attacks on Kelekçi and Bogazköy on

18 July 1992 and 1 November 1992 respectively.

81.  He had not been in his home on 10 November 1992 when "special

teams" came to Kelekçi. The security forces had asked him to assemble

the villagers, which he did. After the forces had left, he heard, as

he returned to his home, that his office was on fire along with other

houses. He had not seen who had set it alight, although he heard

differing versions of the cause. He had seen no strangers in the

village that day.

82.  A total of nine houses were destroyed, including his own and those

of Ahmet Akdivar, Abdurrahman Aktas and Mehmet Karabulut. He and the

other villagers then left for Diyarbakir. He had never been back and

had no explanation for an official document which was supposedly drawn

up and signed by him at the village on 8 April 1993.

83.  The State gave the villagers some food, oil, clothes and shoes,

after they had applied to the Regional Emergency Governor, but he had

not received compensation for the loss of his house. He had also

petitioned the President of Turkey without result. However, he and his

fellow villagers have suffered hardship since the destruction of

Kelekçi. His present situation was quite bad, although others had had

an even harder time.

     (2) Ahmet Çiçek (born in 1967)

84.  Ahmet Çiçek stated that he was born in 1967 and was from Kelekçi

village. He has a cousin with the same name born in 1968, whose father

is Zülfükar Çiçek.

85.  He asserted that he had made an application to the Commission.

However, it was not his signature on the power of attorney purportedly

made in his name; nor was his signature on the legal aid application

to the Commission. It was he who had signed a notary statement denying

having made an application to the Commission and who, together with

Hüseyin Akdivar in the winter of 1994, in a filmed interview with

gendarmes, again denied having made an application. He alleged that

these denials were made under pressure from the officials who

frightened him.

86.  The witness stated that Kelekçi had been attacked by terrorists

on 18 July 1992 because it had appointed official village protectors.

His father, brother and another close relative were killed. Three other

people were injured.

87.  He confirmed the attack on Bogazköy in November 1992, with

gunfire continuing for three or four nights, so that people could not

step outside. On the fourth night he and his family had left the

village.

88.  He heard from others that soldiers had burnt nine houses. His

family had spent the winter in Diyarbakir.

89.  In spring 1993, during the month of April, he returned to tend

the vineyards. One day, when he was in the vineyards, he and his cousin

saw the village burning and rushed back. However, soldiers prevented

them from entering, and made them gather with other villagers some way

off. He alleged that he was hit by a soldier.

90.  After the soldiers left, he saw that his house had been

destroyed. He accused the soldiers of having done this, there having

been no other persons in the village.

91.  He claimed to have made similar statements to the Human Rights

Association in Diyarbakir and the prosecutor at the State Security

Court. He refuted a signed statement to the authorities in which he had

said that terrorists had caused the damage to the village in early

April after the soldiers had left.

92.  He insisted that his oral testimony to the delegates was the

truth. He was neutral in these matters for he had denounced both the

terrorists for their attacks in July 1992 and the State for setting

fire to the village later.

     (3) Ahmet Çiçek (born in 1968)

93.  Ahmet Çiçek stated that he was born in 1968 and was a Kelekçi

villager. His father is the applicant Zülfükar Çiçek; his brother is

the applicant Mehmet Karabulut, and his cousin is the witness

Ahmet Çiçek.

94.  He confirmed that he had made an application to the Commission,

it being his signature on the power of attorney and legal aid papers

submitted to the Commission.

95.  He also confirmed the terrorist attacks on Kelekçi and Bogazköy

in July and November 1992. During the first attack his uncle and two

cousins had been killed. After the second attack soldiers came to

Kelekçi and set fire to his home and those of the other applicants. He

then left the village and has never returned. He alleged that the

Government forces had returned to the village in spring 1993 and set

the remaining houses on fire after kicking villagers out, including his

elder brother. He asserted his impartiality, the State having burnt the

houses and the terrorists having killed people.

96.  He had made an application for compensation through his mayor,

Hüseyin Akdivar, but was told that his application had not been

accepted. The Diyarbakir Human Rights Association, to whom he had

spoken, had not informed him that his problems could be solved through

the Turkish courts.

     (4) Abdurrahman Aktas

97.  Abdurrahman Aktas stated that, because of the village protectors,

the PKK had attacked Kelekçi in 1992, killing three people and injuring

his father, uncle and cousin. His father apparently died later, the

responsibility for which the applicant attributes to the PKK.

98.  Soldiers burnt his home at Kelekçi in November 1992 and again set

light to the remaining houses in April 1993 (actual date unclear). He

had not seen the second incident with his own eyes although he had been

tending the vineyards then.

99.  Recently he had received clothing, but otherwise no compensation

had been provided. He wished for the restoration of his home and

village. He had applied to the gendarme station and the Human Rights

Association for help. The latter had not said anything about the use

of Turkish courts.

     (5) Mehmet Karabulut

100. Mehmet Karabulut stated that he was born in 1955 and is the

brother of the applicant Ahmet Çiçek.

101. He confirmed the PKK attacks on Kelekçi in July and on Bogazköy

in November 1992. The reason for the attack in July 1992 was that there

were village protectors in Kelekçi.

102. Soldiers destroyed nine houses by fire in November 1992,

including his home. A gendarme sergeant had said to him before the fire

started that if he found anything suspicious in the village he would

burn them. Mehmet Karabulut had replied that evidence of terrorists

would be found because they had attacked the village. In April 1993 the

village was again set on fire by soldiers. He saw everything with his

own eyes.

103. A Sergeant Yüksel, commander of the Bogazköy station, had wished

that he sign a statement, in return for State help, alleging that other

people had set the village on fire, but he had refused to accept such

a statement.

104. He said that his situation since moving to Diyarbakir is

miserable, and that he would like to move back to Kelekçi and rebuild

his home, the thought of which broke his heart.

     (6) Ahmet Önal

105. Ahmet Önal stated that he was born in 1939 and had lived in

Kelekçi since his retirement in 1985.

106. He was not in the village during the incidents in 1992. He had

heard that terrorists had attacked sometimes, although he did not know

in which months. He had also heard that five houses had been burnt in

November 1992.

107. He had returned to the village in April 1993 to tend to the

vineyards when the village had been burnt. He had not seen who had

started the fire. Except for the villagers themselves, only soldiers

were in the village at that time. The soldiers gathered people away

from the village for their protection, and later he had to go on foot

to Dicle.

108. His present situation is poor, with a small pension and eight

people dependent upon him.

     (7) Abdullah Karabulut

109. Abdullah Karabulut stated that he was born in 1970 and was from

the village of Kelekçi. He is the cousin of Mehmet Karabulut.

110. He had been in the village when it had been attacked by

terrorists in July 1992, killing three villagers and wounding

three others. The reason for the attack was that there were village

protectors at Kelekçi, whom the terrorists wanted to eliminate. He had

left a month later, but had heard from others that there had been an

armed confrontation between Government forces and terrorists in

November 1992. He had not heard that the village had been burnt.

111. He had returned to the village in April 1993 to help his father

in the vineyards. The village had been burnt then when only soldiers

were in the village. The soldiers gathered the people some way from the

village and later told them to leave.

112. He generally confirmed his statement made before the Chief Public

Prosecutor of the State Security Court, Bekir Selçuk, on 22 September

1994, and did not wish to say anything against the State that might

harm his interests.

     (8) Mahmut Sakar

113. Mahmut Sakar stated that he was born in 1966. He is a barrister

and branch secretary of the Diyarbakir Human Rights Association (HRA).

He is in custody awaiting trial for having published a report on

systematic and widespread infringements of human rights in his region,

to which supposed offence has apparently been added an accusation that

he is a member of the PKK, a matter about which he has not been

questioned. His imprisonment may have affected his memory concerning

the detailed circumstances of the case.

114. He confirmed the statements he had taken from the applicant

Ahmet Çiçek and another Kelekçi villager, Bedri Özalp, in particular

that they had not voluntarily evacuated the village in November 1992

and that Ahmet Çiçek had stated that his home had been burnt down on

10 November 1992 by security forces.

115. He asserted that the applicants seen by the HRA had been advised

that they should seek remedies within the domestic legal structure,

such as petitions to the public prosecutor, police or gendarmes,

failing which their cases could be referred to the Commission. However,

the reality is, in his opinion, that in the emergency region domestic

remedies do not work effectively in such cases.

116. People are threatened or persuaded not to pursue their claims.

The HRA has been virtually closed down by arrests and intimidation.

117. As a member of the HRA he acted as an agent for

Professor Boyle and Ms. Hampson in assisting the applicants in bringing

their cases before the Commission.

     (9) Bekir Selçuk

118. Bekir Selçuk stressed that he had not been an eye witness to the

incidents of this case. His role had been that of Chief Public

Prosecutor at the Diyarbakir State Security Court, responsible for

investigations in eleven counties of crimes against the unity of the

State, and offences involving arms, ammunition, drugs and the like. Ten

of the counties within his jurisdiction are emergency areas. Human

rights should be seen in a different context in such areas.

119. According to his files, there had been three incidents relevant

to the case:

120. In the first, the PKK had ambushed Kelekçi village, killing three

provisional village protectors. Subsequently, in a clash between State

security forces and the PKK, nine houses had been damaged. The village

was evacuated. There were "incident reports" stating the damage to the

nine houses, but it was not possible to establish how it happened and

who caused the damage. This could only be examined during subsequent

investigations. When asked about a report dated 29 November 1993 from

the gendarmerie, Bekir Selçuk stated that this was an introductory

report on the incidents concerned and was one out of many regular

reports by the gendarmerie concerning incidents in the region, the

pursuit of perpetrators and arrests.

121. In the second incident, the PKK ambushed Bogazköy gendarme

station and, in several days of armed clashes with the security forces,

the station collapsed and the local people voluntary abandoned the

villages because of the lack of security.

122. The villagers have the possibility of applying for compensation

in an action against the State before the Diyarbakir Administrative

Court.

123. In the third incident, the evacuated houses were burnt down.

124. It is not an easy task to locate and capture PKK members. The

local people hesitate to assist the security forces for fear of

reprisals from the PKK. Deliberately distorted information is being

traded and presented to the European Commission of Human Rights in this

and similar cases. In his jurisdiction he uses the same investigative

methods, but only the PKK applies to the Commission. The PKK issues

propaganda, covering their acts by claims that they are the work of the

security forces.

125. He could not understand the claim that the State had burnt down

nine houses, given its duty to protect life and property. It is

illogical and impossible for the State to do such a thing. The claim

that such a thing would happen was "laughable". Since the introduction

of this case to the Commission, in-depth inquiries were started and

continue, although investigations have been going on since the first

incident in July 1992.

126. His report was based on accounts provided by the security force

personnel involved and the residents of the region.

127. In clashes such as that which occurred in November 1992, it is

impossible to establish whether it was State or terrorist gunfire which

inflicted the damage. He had concluded however, on the basis of reports

and statements received, that the PKK had burnt Kelekçi in April 1993.

     (10) Sedat Aslantas

128. Sedat Aslantas stated that he was a lawyer by profession and,

inter alia, vice-president of the Diyarbakir Human Rights Association

(HRA). The task of the HRA is to promote human rights and democracy

without violence. He is serving a three year prison sentence (currently

under appeal) because of a speech he gave at a meeting of the HRA. All

his colleagues from the HRA have also been detained and are accused of

being members of a terrorist organisation because of a book they wrote

on human rights violations in their region. Sedat Aslantas added that

his imprisonment prevented him refreshing his memory concerning the

detailed circumstances of the case now at issue.

129. He had visited Kelekçi on 8 April 1993, while it was still

smouldering. He had been accompanied by representatives of other

organisations and journalists, after the villagers, led by Hüseyin

Akdivar, had complained to the HRA that soldiers had burnt Kelekçi.

They had requested an on-site investigation. It could not have been

the act of the PKK because they were observing a cease-fire at that

time.

130. The HRA had thought a direct application to the Commission was

the appropriate procedure in the circumstances. The Association

acknowledged that for security reasons it may be necessary to evacuate

villages, but not by the method used by security forces in Kelekçi. He

considered domestic remedies, as regards unlawful acts of State

officials in an emergency area, to be ineffective. Many such acts are

immune from challenge, and others would take too long with little

prospects of success in such areas, unlike remedies in Ankara. Human

rights violations are an "administrative practice" in that region.

131. Sedat Aslantas vaguely recalled the villagers mentioning previous

incidents in the village, but he had not witnessed these events.

     (11) Ersan Topaloglu

132. Ersan Topaloglu said that at the material time he was the

Commander of the District Gendarme Forces in the Dicle District of

Diyarbakir. His duties included the protection of life and property in

rural areas.

133. The PKK terrorist organisation had sought the control or

evacuation of the Bogazköy, Kelekçi and surrounding villages since

1986, by instilling fear in the local population. They took shelter in

the villages and forced the inhabitants to provide them with food and

other basic supplies. They brainwashed and coerced some of the

youngsters into joining them. The terrain in that region is mountainous

and highly suitable for terrorist occupation and operation. As a

result, there is a state of emergency in the region.

134. On 1 November 1992 about 150 PKK terrorists heavily attacked

Bogazköy gendarme station, killing a gendarme and injuring eight

others. The next day, with reinforcements, the gendarmes began

searching the vicinity for the perpetrators, who had moved on to attack

other villages, including Kelekçi. During the search of the area 14 PKK

shelters containing food, arms and other supplies were found.

Skirmishes and the search continued for 10 days. Many citizens left the

area out of fear, but the poorer villagers had to stay.

135. No security forces actually entered Kelekçi at that time. They

only stopped for a short time at its outskirts for a rest and to have

some tea, cigarettes and water. The villagers may have accused security

forces of causing damage because of PKK threats or coercion. Take men

like the Çiçeks who are under much pressure, members of their family

having been killed by the PKK. However the witness categorically denied

the allegation against the security forces. Such a thing cannot and did

not happen. Only the PKK performs such brutal acts. If there have been

petitions to that effect, they have been prepared by people with

ulterior motives, who are partisan.

136. As a result of information received about terrorist operations,

gendarmes returned to the area around 5 or 6 April 1993. When they

arrived at Kelekçi, a search was conducted in the presence of

villagers, pursuant to sections 45 and 81 of the Gendarme Organisation

and Powers Law No. 2803. The villagers confirmed that no damage had

been caused by the soldiers, who left around midday. The witness was

not present at Kelekçi, but was conducting operations by radio.

137. That evening terrorists returned to the village and, in the face

of the villagers' refusal to provide food, set alight or blew up some

of the houses. The soldiers returned to a smouldering village, some

nine or ten houses having been burnt. Damage to other houses from

neglect or severe winter conditions was noted. The gendarmes forwarded

their report to the Dicle District Chief Prosecutor's Office and to

their own authorities.

138. A few days later the villagers made another application on this

subject, and their statements were taken by other commanders of

gendarme stations. Such documents concerning the gendarme

investigations were forwarded to the Chief Public Prosecutor's Office,

the Dicle District Governor's Office, the Diyarbakir Gendarme

Headquarters and the Diyarbakir Provincial Governor's Office, to be

forwarded to the Emergency Area Governor's Office.

139. Villagers have now completely evacuated the area because of the

impossibility of meeting the brutal demands of the PKK and the lack of

security there.

140. The witness doubted whether Sedat Aslantas and others had

actually gone to Kelekçi on 8 April 1993 as claimed. They would not

have been able to get past security check points without his knowledge,

and there is only one road leading into that area. He challenged the

motives of Sedat Aslantas in this case.

     (12) Hüseyin Bakir

141. Hüseyin Bakir said that at the relevant time he was a commando

company commander at Kelekçi. He was not actually in the village during

the events of early November 1992 because he was manning a strategic

point 12 or 13 kilometres away in order to secure the arrival of

reinforcements. He had, therefore, no relevant information to give

about these events.

142. Following orders, he did conduct a search of Kelekçi in April

1993. Nothing was found and the villagers confirmed that no loss or

damage had been caused. He returned there a couple of days later after

complaints had been made by the villagers that terrorists had set fire

to the place. His role that time was only to secure the safety of the

Unit Commander who recorded the state of the village. He himself was

not actually in the village on that occasion.

143. It was impossible for security forces to have burnt any of the

Kelekçi houses. No such thing happened. He could not understand why the

villagers would have confirmed in writing that the gendarmes had caused

no damage if this were not true. Perhaps villagers made such

allegations later in order to claim compensation from the State, but

he would not really know.

144. He could not confirm that the PKK was observing a cease-fire at

that time, such matters being the concern of higher authorities and

politicians, not of officers like him.

145. He did confirm that the Governor of a state of emergency region

had power to order the evacuation of villages, which would be less

costly than organising a military operation for that purpose. The

latter operation would be inconsistent with the former power.

146. He stressed that the area is very difficult and dangerous. He has

been under terrorist attack, sometimes twice in one day and has seen

his men killed and injured.

     (13) Gürsel Demirtas

147. At the material time, Gürsel Demirtas was the Commander of

Bogazköy gendarme station.

148. He was on holiday when the station was attacked and destroyed by

the PKK on 1 November 1992. He immediately returned there on 2 November

and accompanied reinforcement gendarmes in their search of the area for

the perpetrators. Several deserted PKK shelters were found containing

food and clothing. He was unaware of houses having been burnt in

Kelekçi on 10 November 1992. The security forces had not been in the

village, other than to stop at the outskirts for a rest. However in

April 1993 he had gone there to investigate the villagers' claim that

the PKK had burnt the village. The PKK had told the villagers to accuse

the gendarmes of causing the fire.

149. It is unthinkable that soldiers would set fire to houses. No

soldiers were involved in this matter. The weapons used and identified

by the villagers are not the ones used by his forces. He had a close

relationship with the local inhabitants. The mayor had never made

allegations to him about any unlawful acts by the security forces, even

though he saw him regularly when the mayor came to collect his monthly

salary.

150. In the individual statements that he took at the time, the

villagers had accused the PKK of the deed. He had taken their

statements individually and their similarity may have occurred because

the villagers would have discussed it beforehand. The statements were

made voluntarily. No statements were taken from gendarmes because he

had been there throughout in April 1993 and they had all come and gone

together.

151. He did not recall the villagers asking for compensation. Anyway

he had no competence in such matters.

152. He confirmed that terrorists had been known to dress in soldiers'

uniforms when attacking villages.

153. As regards the PKK attack on the village in July 1992, he stated

that he had had to transport the dead and injured on that occasion.

     (14) Tayfur Nur

154. Tayfur Nur said that at the relevant time he was assistant to the

commander at Bogazköy gendarme station. He was there during the

terrible attack which destroyed the station on 1 November 1992. Eight

soldiers were injured by exploding hand grenades and another soldier

killed. It was a horrendous experience.

155. He then participated in the ensuing searches of the area. There

were skirmishes, and by the third day he was depressed and was granted

leave for a month. He did not see or hear of any incident in Kelekçi

on 10 November 1992, but it was possible that the PKK had burnt houses

then because it was a village constantly under attack.

156. He went to Kelekçi twice at short intervals in April 1993. On the

second occasion he saw that terrorists had burnt the houses, which were

still smouldering. He had not participated in the investigation, but

had stood guard. He could not recall clearly, but he thought that the

villagers' statements had been taken because of their claim for

compensation, after filing a petition with the mayor or the public

prosecutor. The villagers were questioned one by one, giving more or

less the same information voluntarily. He had not heard whether they

had received any compensation as he was posted in West Turkey

three months later.

C.   Relevant domestic law and practice

157. 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."

158. 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.

159. 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."

160. 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 to

     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.).

161. 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.

162. 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).

163. 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 Council

of State; a refusal to prosecute is subject to an automatic appeal of

this kind.

164. Any illegal act by civil servants, be it a crime or a tort, which

causes material or moral damage may be the subject of a claim for

compensation before the ordinary civil courts.

165. Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

166. Damage caused by terrorist violence may be compensated out of the

Social Help and Solidarity Fund.

167. 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 (paras. 168-

173 below):

168. Articles 13 to 15 of the Constitution provide for fundamental

limitations on constitutional safeguards.

169. 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.

170. 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.

171. Decree 285 modifies the application of Law 3713, the Anti-Terror

Law (1981), in those areas which are 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.

172. 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 individuals to claim indemnity from

     the State for damage suffered by them without justification."

173. 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, at the relevant

time there was no decree providing for the rehousing of displaced

persons or the payment of compensation.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

174. The Commission has declared admissible the applicants' complaints

that on 10 November 1992 State security forces allegedly launched an

attack on their village of Kelekçi, destroying their homes and forcing

them to evacuate the village.

B.   Points at issue

175. The points at issue in the present case are as follows:

     - who are the authentic applicants in the case;

     - whether there has been a violation of Article 8 (Art. 8) of the

     Convention;

     - whether there has been a violation of Article 1 of

     Protocol No. 1 (P1-1) to the Convention;

     - whether there has been a violation of Article 3 (Art. 3) of the

              Convention;

     - whether there has been a violation of Article 5 para. 1

     (Art. 5-1) of the Convention;

     - whether there has been a violation of Article 6 para. 1

     (Art. 6-1) of the Convention;

     - whether there has been a violation of Article 13 (Art. 13) of

     the Convention;

     - whether there has been a violation of Article 14 (Art. 14) of

     the Convention;

     - whether there has been a violation of Article 18 (Art. 18) of

     the Convention; and

     - whether Turkey failed to comply with its obligations under

     Article 25 para. 1 (Art. 25-1) of the Convention.

C.   As regards the applicants

176. Applications were filed with the Commission in the names of

Hüseyin Akdivar, Abdurrahman Akdivar, Ahmet Akdivar, Ali Akdivar,

Zülfükar Çiçek, Ahmet Çiçek, Abdurrahman Aktas and Mehmet Karabulut.

Letters of authority were submitted, purportedly signed by these

persons, for the representation of their case by Professor Boyle and

Ms. Hampson.

177. The Government contend, in the light of the evidence before the

Commission, that Hüseyin Akdivar never made such an application, and

that the cases of Ahmet Çiçek and Abdurrahman Aktas were fabricated by

the Diyarbakir Human Rights Association, which promised them

compensation if they signed an application to the Commission.

178. The applicant's representatives made no comment on Hüseyin

Akdivar's situation, but maintained the applications of Ahmet Çiçek and

Abdurrahman Aktas.

     a)   Hüseyin Akdivar

179. The Commission recalls that Hüseyin Akdivar, who appeared before

the Commission's delegates as a witness, was specifically asked whether

he had signed the power of attorney submitted to the Commission in his

name. He denied having signed this document and gave the delegates a

specimen of his normal signature, which indeed differed considerably

from the signature on the power of attorney. The Commission considers

that in view of Hüseyin Akdivar's clear statement that the power of

attorney does not bear his signature and that he has neither made nor

wished to make an application to the Commission, he can no longer be

considered to be an applicant in the present case.

180. In these circumstances the Commission is of the view that the

complaints brought in the name of Hüseyin Akdivar should not be

considered.

     b)   Ahmet Çiçek

181. The Commission has the oral testimony of two persons named Ahmet

Çiçek before it. They are two cousins, both claiming to have made valid

applications to the Commission. However, having examined the signature

on the power of attorney submitted with the application, the Commission

is satisfied that the authentic applicant is Ahmet Çiçek born in 1968.

Moreover, the latter confirmed before the delegates his intention to

pursue and maintain his application before the Commission.

Consequently, the Commission will continue its examination of the

application insofar as this applicant is concerned.

     c)   Abdurrahman Aktas

182. The Commission is satisfied from the oral testimony presented to

the delegates by Abdurrahman Aktas that he submitted a valid power of

attorney when lodging his application and that it has been his

intention to pursue this application. Consequently, the Commission will

also continue its examination of the case as regards this applicant.

     Decision

183. The Commission decides, by a unanimous vote,

          - not to consider the complaints brought in the

          name of Hüseyin Akdivar;

          - to pursue the examination of the application,

          insofar as all the other applicants are

          concerned.

D.   The evaluation of the evidence

184. Before dealing with the applicants' allegations under specific

Articles of the Convention, the Commission considers it appropriate

first to assess the evidence and attempt to establish the facts,

pursuant to Article 28 para. 1 (a) (Art. 28-1-a) of the Convention.

     a)   General background

185. The Commission notes that the applicants' village of Kelekçi and

the surrounding areas have been the centre of intense PKK terrorist

activity.

186. It is undisputed that the PKK launched serious attacks on Kelekçi

on 17 or 18 July 1992, and the neighbouring village of Bogazköy on

1 November 1992. As a result of the first attack, three Kelekçi

villagers were killed and three others wounded. The second attack on

1 November 1992 was aimed at the Bogazköy gendarme station, which was

destroyed, with one gendarme being killed and eight others injured.

Thereafter security forces were reinforced in the area and extensive

searches carried out for terrorists.

187. It further appears that on 6 April 1993 houses in Kelekçi were

set on fire and that the village was then almost completely destroyed.

It is disputed, however, whether this destruction was caused by

terrorists or by security forces. The applicants' complaints do not

directly relate to this incident. Nevertheless, what happened on

6 April 1993 and the inquiry which was carried out afterwards have a

certain relevance in the overall assessment of the present case

(paras. 196-198 below).

188. The applicants allege that on 10 November 1992 State security

forces launched an attack on their village of Kelekçi, burnt nine

houses, including their homes, and forced the immediate evacuation of

the entire village. The Government categorically deny these

allegations. Initially they contended that the village had merely been

searched, causing no damage. Subsequently, there was testimony that no

soldiers had entered Kelekçi on 10 November 1992, and, if they had been

in the vicinity, it was merely on the outskirts of the village where

they had rested.

189. The Commission must therefore examine the evidence before it

concerning the destruction of the nine houses and the subsequent

evacuation of the Kelekçi village.

190. The applicants' allegation that on 10 November 1992 - or at least

around that date - nine houses in the village were destroyed is

confirmed by a number of witnesses who have been heard by the

Commission's delegates (paras. 81, 88, 95, 98, 102, 106 and 114 above)

or whose written statements have been submitted to the Commission (see

paras. 62, 70, 72, 74 and 76 above). The official report of

23 September 1994 by the Chief Public Prosecutor Bekir Selçuk also

refers to the fact that after the attack on the Bogazköy gendarme

station the unrest spread to Kelekçi where nine houses were burnt and

damaged (para. 42 above). Also in his oral testimony Bekir Selçuk

referred to nine houses which had been damaged (para. 120 above).

191. The Commission therefore finds it established that nine houses,

including those of the applicants, were destroyed or seriously damaged

by fire not long after the attack on the Bogazköy gendarme station on

1 November 1992. Although there could be some uncertainty as to the

exact date when the nine houses were burnt, the Commission accepts that

this occurred, as stated by the applicants, on 10 November 1992. The

question then remains as to who set the houses on fire.

     b)   Inquiries at domestic level

192. It appears that no proper investigation was carried out at the

domestic level regarding the destruction of the nine houses at Kelekçi

on 10 November 1992. The inhabitants of the village do not seem to have

been heard about the incident, and the Commission is not aware of any

report on the matter drawn up in the period after the event. Bekir

Selçuk, in his oral statement, referred in very general terms to

"incident reports" having been submitted, and he confirmed that a

gendarmerie report of 29 November 1993 dealt with events at Kelekçi

(para. 120 above). Nevertheless, it is clear that those reports,

insofar as they concerned the destruction of the nine houses, did not

result in any investigation of the facts and no attempt was made to

establish responsibility for the destruction.

193. Moreover, although the applicants had lost their homes, no one

seems to have given proper advice to them or, apparently, to the other

displaced Kelekçi villagers, on how to obtain compensation for the loss

of their homes or other assistance. It is clear that petitions were

made by the mayor, Hüseyin Akdivar, and statements were given to

several State officials of different denominations, but no authority

took up the applicants' problems or referred them to the competent

body. There is evidence that, during the proceedings before the

Commission, certain applicants, or people who where believed to be

applicants like Hüseyin Akdivar and Ahmet Çiçek born in 1967, have been

questioned by State authorities about their applications to the

Commission, rather than about the losses they had suffered.

194. The investigation reports and the recorded statements by

villagers which have been submitted to the Commission (paras. 42-46

above) are from September 1994, i.e. almost two years after the

destruction of the nine houses. At that time, a number of villagers

were also heard about events at Kelekçi (paras. 49, 55, 58, 60, 62, 67,

69, 72, 74 and 76 above). This inquiry took place at a time when the

village had been further damaged in April 1993, after the Commission

had communicated the present application to the Government and decided

to hold an oral hearing in the case (cf. paras. 6 and 8 above).

195. It appears that the reports of September 1994 were based on an

exploratory mission undertaken by helicopter on 21 September 1994.

During this mission, the investigating team did not land at Kelekçi but

only observed the village during low level flights. They noted that all

the houses at Kelekçi had collapsed and there were no inhabitants in

the village (para. 45 above). However, since this mission took place

after the village had been more extensively damaged in April 1993, the

findings must be of very limited value for establishing what had

happened on 10 November 1992. It is nevertheless noticeable that one

of the experts on the investigating team found that the collapse of the

houses in the village was the result of the lack of maintenance and had

natural causes (para. 46 above), although it is undisputed that

considerable destruction by fire had taken place on 6 April 1993.

196. As to the events on 6 April 1993, the Commission notes that a

team of gendarmes heard various villagers in April 1993. However, in

the recorded statements no reference is made by the villagers to the

incident of 10 November 1992. The Commission has therefore studied

these statements in order to find out whether they should affect the

Commission's findings in the present case.

197. In this respect, it is striking that the various statements by the

villagers are drafted in a stereotyped form and have on the whole the

same contents (paras. 54, 56, 57, 59, 61, 65, 66, 68, 71, 73 and 75).

Most of them describe the events of 6 April 1993 in an almost identical

manner. In the recorded statements the villagers refer to the fact that

the terrorists had made a previous attack on the village during which

three persons had been killed and three others injured, this general

formula being used even in the statements of the applicants Ahmet Çiçek

and Abdurrahman Aktas whose close relatives, including the latter's

father, had been killed on that occasion. The statements also contain

a declaration about the villagers' respect for the State and their

willingness to help the State. All in all, the recorded statements give

the impression of having been drafted in a uniform manner by the

gendarmes rather than reflecting spontaneous declarations by the

villagers. This may also explain why some of these statements are in

complete contradiction to what the same persons have stated on other

occasions (see Ahmet Çiçek's statements referred to in paras. 61 and

89-90 above, Abdurrahman Aktas's statements referred to in paras. 54

and 98 above, Abdullah Karabulut's statements referred to in paras. 66,

67 and 111 above). Thus it seems highly doubtful whether the recorded

statements to the gendarmes can be said to reflect the information that

the villagers intended to convey in regard to the events at issue.

198. The Commission therefore attaches no particular weight to the

statements of the villagers in April 1993. It notes the inadequacy of

any real investigations at domestic level which could be of assistance

in elucidating the events on 10 November 1992. The absence of any such

investigations is in itself a disturbing element in regard to a serious

matter such as the destruction of the homes of a considerable number

of persons.

     c)   Individual statements and the evaluation of the

          evidence

199. In the absence of any relevant investigations at the domestic

level, the Commission must base its findings on the evidence which has

been given orally by various persons or submitted in writing in the

course of the proceedings before the Commission. The evaluation of this

evidence is not an altogether easy task in view of the conflicting

statements of villagers and officials.

200. Nevertheless, the Commission considers that there is sufficient

evidence before it to enable certain conclusions to be drawn.

201. The Commission first notes the difficult task of members of the

security forces who have been working in the area of Kelekçi, combating

terrorism and risking their lives. The Commission considers, however,

that the intensity of this fight may have blinkered their objectivity

towards the local villagers. Villagers became caught up in this fight,

being pressured into providing food and shelter for terrorists on pain

of deadly reprisals, and at the same time having to assist the security

forces. They seem to have been in the impossible position of fearing

both sides. This may explain, to some extent, the fact that statements

by villagers to the Diyarbakir Human Rights Association differ from

those made to State authorities. They have been in urgent need of help

which may have influenced their statements. Moreover it must have been

difficult for them in their vulnerable position to make direct

accusations against the security forces when being heard by State

officials. The manner in which some of the State officials who were

heard by the Commission's delegates reacted to the very idea of the

security forces being responsible for destruction in villages makes it

easy to understand that such suggestions are not well received and

could entail harmful consequences for those who make them.

202. As to the possible motives for destroying houses in a village

like Kelekçi, the Commission finds it difficult to see what benefit the

PKK would have derived from the evacuation of Kelekçi. As long as the

villagers stayed on, the PKK could hope to coerce them into providing

shelter, food and other basic provisions to sustain their terrorist

activities. In contrast, however, the security forces could well have

an interest in evacuating law-abiding citizens from the area, both to

remove the PKK's logistical support and to simplify the identification

of the enemy.

203. Reference has also been made to the fact that some of the

villagers at Kelekçi had been village protectors, which had provoked

the PKK attack on the village in July 1992 and that, after that attack,

some village protectors had given up their positions (paras. 70, 72,

76, 86, 97, 101 and 110 above). This may have been interpreted by the

security forces as an unfriendly act.

204. The Commission can also understand that feelings were running

high amongst the security forces after the destruction of the Bogazköy

gendarme station on 1 November 1992, with the death of one of their

colleagues and the injury of eight others. They would have been under

serious stress and strain, as shown in the case of Mr. Tayfur Nur

(para. 155 above), in the ensuing search for the terrorist perpetrators

of these deeds.

205. The general impression created by the villagers' oral testimony

before the delegates is one of simplicity, sincerity and courage. Most

of their statements were well balanced and in no way one-sided. They

unequivocally accused the terrorists of having perpetrated the attack

on their village in July 1992, in the course of which three close

relatives of the applicant Ahmet Çiçek had been killed and three close

relatives of the applicant Abdurrahman Aktas had been injured. There

is no indication that the villagers were in any way hostile to the

military or the public authorities. Generally speaking, the Commission

is therefore satisfied that the villagers who gave evidence told the

delegates what they considered to be the true facts of the incident on

10 November 1992.

206. Against this background the Commission attaches particular weight

to the fact that those who were in the village on 10 November 1992 -

the applicants Ahmet Çiçek, Abdurrahman Aktas and Mehmet Karabulut -

all testified that soldiers had burnt their homes, and those of the

other applicants, on that day.

207. The village mayor Hüseyin Akdivar - who when giving evidence

before the delegates expressed himself in a very cautious manner and

appeared anxious not to make any statements which could be harmful to

the Government - stated that he had been at Kelekçi on

10 November 1992, but not at the scene of the fire. He confirmed that

security forces had been in the village and that he had not seen any

other strangers there. After the soldiers had left, he heard, as he

returned home, that his office was on fire along with other houses.

However, he had not seen who had set fire to the houses (para. 81

above).

208. Ahmet Çiçek (born in 1967), who had not been in the village then,

had heard from others that soldiers had burnt nine houses (para. 88

above).

209. Two of the written statements convey the same kind of

information. The applicant Abdurrahman Akdivar stated that on

10 November 1992 a military special team had arrived at Kelekçi, had

ordered his father, the mayor, to gather the villagers and had then

burnt down nine houses without any explanation (para. 51 above). The

villager Bedri Özalp stated that on 10 November 1992 the soldiers

entered the village in the evening and burnt the homes of eleven

families, including that of Bedri Özalp himself (para. 70 above).

210. There is no evidence of any conspiracy between the villagers to

accuse the State of these events in order to obtain compensation or for

any other purpose.

211. The Commission further notes that, while there is evidence that

security forces were in the village, none of the witnesses stated that

any stranger had been seen at Kelekçi on 10 November 1992. It would

indeed appear unlikely that terrorists would have set fire to nine

houses in the village without anyone having noted their presence. Nor

is there any other evidence showing that terrorists had been at Kelekçi

on that day.

212. In contrast to the oral evidence of the applicants and certain

villagers, the Commission considers that the testimony given by

officials was generally evasive. There was some official

acknowledgement that the security forces had been in the vicinity on

or about that day, albeit on the outskirts of the village. Ersan

Topaloglu and Gürsel Demirtas testified to this effect, albeit

categorically denying that they or their colleagues could have or had

set fire to the houses (paras. 135 and 148-149 above). The views of all

officials, including the Chief Public Prosecutor Bekir Selçuk,

expressed almost in outrage, were that such allegations against the

security forces were incredible, illogical and impossible. Bekir Selçuk

described the claim that such a thing could happen as "laughable"

(para. 125 above). Their statements rather showed that the possibility

that the military could be responsible for such acts was so remote that

it could be discarded  at once, and that allegations about such abuses

by the security forces did not even have to be examined seriously.

213. In the light of the above, the Commission finds it convincingly

shown that security forces - presumably under the strain of intense

terrorist activity in the area - were responsible for the burning of

the nine Kelekçi houses on 10 November 1992. It has not been shown that

the applicants were forcibly expelled from Kelekçi, but the loss of

their homes caused them to abandon the village and move elsewhere.

214. On the basis of these findings the Commission will now proceed

to examine the applicants' complaints under the various Articles of the

Convention.

E.   As regards Article 8 (Art. 8) of the Convention and Article 1 of

Protocol No. 1 (P1-1) to the Convention

215. Article 8 (Art. 8) of the Convention and Article 1 of

Protocol No. 1 (P1-1) to the Convention read as follows:

     Article 8 (Art. 8)

     "1.  Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.   There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     Article 1 of Protocol No. 1 (P1-1)

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions.  No one shall be deprived of his

     possessions except in the public interest and subject to the

     conditions provided for by law and by the general principles of

     international law.

     The preceding provisions shall not, however, in any way impair

     the right of a State to enforce such laws as it deems necessary

     to control the use of property in accordance with the general

     interest or to secure the payment of taxes or other contributions

     or penalties."

216. The applicants allege that the destruction of their homes by the

security forces and their arbitrary expulsion from their village

constitute two separate violations of the right to respect for their

family life and home, ensured by Article 8 (Art. 8) of the Convention.

The applicants further allege that they have thereby been deprived of

their possessions, contrary to Article 1 of Protocol No. 1 (P1-1) to

the Convention.

217. The Government maintain that there is no evidence to substantiate

the applicants' allegations against the security forces.

218. The Commission is of the opinion that, in the light of its

findings of fact above (para. 213 above), there has been a very serious

interference with the applicants' rights under Article 8 (Art. 8) of

the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention

by State security forces, for which no justification has been given.

     Conclusions

219. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 8 (Art. 8) of the Convention.

220. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.

F.   As regards Article 3 (Art. 3) of the Convention

221. The Commission will now examine whether the interference with the

applicants' home and property rights was so serious that it also

amounted to a violation of Article 3 (Art. 3) of the Convention, which

provides as follows:

     "No one shall be subjected to torture or to inhuman or

     degrading treatment or punishment."

222. The applicants allege that the forced and immediate expulsion of

the entire village of Kelekçi, including themselves, on

10 November 1992, represents a form of collective punishment and the

most manifest and deliberate infliction of inhuman and degrading

treatment, contrary to Article 3 (Art. 3) of the Convention.

223. The Government contend that the allegation is wholly groundless

on the facts, as there were no State forces at Kelekçi on that day and

any damage to the village was caused by PKK terrorists. The voluntary

departures from the village occurred after the PKK attacks and in

accordance with the usual pattern of winter migration towards

Diyarbakir.

224. The Commission is of the opinion that the applicants' allegations

here are somewhat exaggerated. Nevertheless, in view of the findings

of fact above (para. 213 above), the Commission considers that the

burning of the applicants' homes by security forces, resulting in their

migration to Diyarbakir, and dire personal circumstances, little State

assistance having been forthcoming, amounts to inhuman and degrading

treatment within the meaning of Article 3 (Art. 3) of the Convention.

     Conclusion

225. The Commission concludes, by 14 votes to 5, that there has been

a violation of Article 3 (Art. 3) of the Convention.

G.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

226. Article 5 para. 1 (Art. 5-1) of the Convention guarantees the

right to liberty and security of person.

227. The applicants allege that they, along with all the other Kelekçi

villagers, were compelled to abandon their homes and village on

10 November 1992, in flagrant breach of the right to the exercise of

liberty and the enjoyment of security of person.

228. The Government consider that Article 5 para. 1 (Art. 5-1) of the

Convention has no relevance in the present case and, if it did, refer

to their derogation under Article 15 (Art. 15) of the Convention since

6 August 1990, suspending the applicability of this Convention

provision in the area concerned.

229. The Commission recalls that the primary concern of Article 5

para. 1 (Art. 5-1) of the Convention is protection from any arbitrary

deprivation of liberty. The notion of security of person has not been

given an independent interpretation (cf. Nos. 5573/72 and 5670/72,

Dec. 16.7.76, D.R. 7 p. 8; No 4626/70 et al., East African Asians

v. the United Kingdom, Dec. 6.3.78, D.R. 13 p. 5).

230. In the present case, none of the applicants were arrested or

detained, or otherwise deprived of their liberty. The Commission

considers that their insecure personal circumstances arising from the

loss of their homes does not fall within the notion of security of

person as envisaged by Article 5 para. 1 (Art. 5-1) of the Convention.

     Conclusion

231. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention.

H.   As regards Articles 6 para. 1 (Art. 6-1) and 13 (Art. 13) of the

     Convention

232. Articles 6 para. 1 (Art. 6-1) and 13 (Art. 13) of the Convention

provide as follows:

     Article 6 para. 1 (Art. 6-1)

     "1.  In the determination of his civil rights and obligations or

     of any criminal charge against him, everyone is entitled to a

     fair and public hearing within a reasonable time by an

     independent and impartial tribunal established by law ... ".

     Article 13 (Art. 13)

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

233. The applicants allege that the arbitrary expulsion from their

homes and village was a flagrant, direct interference with their civil

rights within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention. They claim to have been denied an effective procedure to

challenge or resist the deprivation of their possessions. They also

claim to have had no effective domestic remedies for their various

Convention claims, contrary to Article 13 (Art. 13) of the Convention.

234. The Government contend that there are several effective domestic

remedies at the applicants' disposal, but that they tried none of them.

235. The Commission refers to its decision on admissibility in the

present case (see appendix to this Report) where, in the context of

Article 26 (Art. 26) of the Convention, it held that:

     "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."

236. This view was taken in the face of certain domestic case-law

referred to by the Government indicating that there may be a channel

of complaint through the administrative courts which could award

compensation to the individual against the State on the basis of the

latter's liability to assume the protection of citizens from various

social risks. However, the Commission considers that this case-law is

insufficient to demonstrate that compensation claims in the emergency

regions of South-East Turkey for the destruction of homes and villages

allegedly perpetrated by security forces have been successful.

237. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention requires effective access to court for civil claims. This

requirement must be entrenched not only in law but also in practice.

The individual should have a clear, practical and effective opportunity

to challenge an administrative act that is a direct interference with

property rights, as in the present case (cf. Eur. Court H.R., de

Geouffre de la Pradelle judgment of 16 December 1992, Series A

no. 253-B, p. 43, para. 34).

238. The Commission's decision on admissibility points to the

undoubted practical difficulties and inhibitions in the way of persons

like the present applicants who complain of village destruction in

South-East Turkey, where broad emergency powers and immunities have

been conferred on the Emergency Governors and their subordinates. These

difficulties are demonstrated by the evidence taken in the present

case, which shows that despite the various petitions made by the

Kelekçi villagers, particularly by the mayor Hüseyin Akdivar, no State

authority took up the plight of these villagers or referred them to a

competent authority. It seems unrealistic to expect such villagers to

pursue theoretical administrative court or other remedies when the

investigatory mechanism in this emergency area was apparently deaf to

allegations concerning the security forces and assumed that all brutal

acts were the work of the PKK (cf. the testimony of Bekir Selçuk,

paras. 124-125 above and Ersan Topaloglu, para. 135 above).

239. In the light of these considerations, the Commission is of the

opinion that the applicants did not have effective access to a tribunal

that could have determined their civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

240. Some of the applicants' Convention claims do not necessarily

involve their civil rights, and may not require a full court remedy,

for example their claim concerning the alleged forcible evacuation of

their village. Positive State action to investigate the incidents

promptly, to rehouse or financially assist these villagers, rather than

passively awaiting administrative court intervention, may have been a

more appropriate response to the applicants' plight. The question

arises therefore under Article 13 (Art. 13) of the Convention whether

the applicants have been afforded effective domestic remedies for these

claims notwithstanding that the violations have allegedly been

"committed by persons acting in an official capacity". However, for the

same reasons outlined above (para. 238), the Commission considers that

the applicants did not have other effective remedies at their disposal

for their remaining Convention claims as required by Article 13

(Art. 13) of the Convention.

     Conclusions

241. The Commission concludes, by 12 votes to 7, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

242. The Commission concludes, by 12 votes to 7, that there has been

a violation of Article 13 (Art. 13) of the Convention.

I.   As regards Articles 14 and 18 (Art. 14,18) of the Convention

243. Articles 14 and 18 (Art. 14, 18) of the Convention provide as

follows:

     Article 14 (Art. 14)

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     Article 18 (Art. 18)

     "The restrictions permitted under this Convention to the said

     rights and freedoms shall not be applied for any purpose other

     than those for which they have been prescribed."

244. The applicants maintain that because of their Kurdish origin the

various alleged violations of their Convention rights were

discriminatory, in breach of Article 14 (Art. 14) of the Convention.

They also claim that their experiences represented an authorised

practice by the State in breach of Article 18 (Art. 18) of the

Convention.

245. The Government refute these allegations and affirm that all

Turkish citizens, whatever their ethnic origin, enjoy Convention rights

without discrimination. Moreover, there is no evidence of any abuse of

power by the State contrary to Article 18 (Art. 18) of the Convention.

246. The Commission has examined the applicants' allegations in the

light of the evidence submitted to it, but considers them

unsubstantiated.

     Conclusions

247. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention.

248. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 18 (Art. 18) of the Convention.

J.   As regards Article 25 (Art. 25) of the Convention

249. Article 25 (Art. 25) of the Convention envisages the right of

individual petition to the Commission without hindrance by any State

authority.

250. Since the introduction of their application to the Commission,

the applicants allege that they and witnesses have suffered

intimidation by State officials.

251. The Government deny this allegation and submit that any inquiries

that have been made of applicants or witnesses have been for the

purpose of the Government's investigation into the facts of the case,

which prior to the application had not been brought to the attention

of the authorities.

252. The Commission notes with concern that applicants, or people

thought to be applicants like Hüseyin Akdivar and Ahmet Çiçek (born in

1967), have been directly asked about their applications to the

Commission and have been presented with statements to sign declaring

in effect that no such applications have been brought. The most

extraordinary and disquieting example of this procedure involved a

filmed interview of Hüseyin Akdivar and Ahmet Çiçek on this subject.

253. The Commission considers it inappropriate for the domestic

authorities to approach applicants, or purported applicants, and

question them about their applications to the Commission in the absence

of their legal representatives. This is particularly so where, as in

the present case, the applicants are in a difficult and vulnerable

position and where any such initiatives by the authorities could easily

be understood as attempts to discourage them from pursuing their

complaints made in the exercise of their right under Article 25

(Art. 25) of the Convention to bring alleged violations of the

Convention to the attention of the Commission. The sensitivity of the

matter is increased even further where, as in the present case, lawyers

who have assisted applicants have been arrested and detained

(paras. 113 and 128 above).

254. The Commission is of the opinion that the Turkish authorities, in

behaving in this manner, made the exercise of the applicants' right of

individual petition under Article 25 (Art. 25) of the Convention more

difficult. They thereby hindered the effective exercise of the

applicants' right under this provision.

     Conclusion

255. The Commission concludes, by 12 votes to 7, that Turkey failed

to comply with its obligations under Article 25 para. 1 (Art. 25-1) of

the Convention.

K.   Recapitulation

256. The Commission decides, by a unanimous vote,

          - not to consider the complaints brought in the

          name of Hüseyin Akdivar;

          - to pursue the examination of the application,

          insofar as all the other applicants are

          concerned (para. 183 above).

257. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 8 (Art. 8) of the Convention (para. 219 above).

258. The Commission concludes, by 18 votes to 1, that there has been

a violation or Article 1 of Protocol No. 1 (P1-1) to the Convention

(para. 220 above).

259. The Commission concludes, by 14 votes to 5, that there has been

a violation of Article 3 (Art. 3) of the Convention (para. 225 above).

260. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention

(para. 231 above).

261. The Commission concludes, by 12 votes to 7, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para.

241 above).

262. The Commission concludes, by 12 votes to 7, that there has been

a violation of Article 13 (Art. 13) of the Convention (para. 242

above).

263. The Commission concludes, by a unanimous vote, that there has been

no violation of Article 14 (Art. 14) of the Convention (para. 247

above).

264. The Commission concludes, by a unanimous vote, that there has been

no violation of Article 18 (Art. 18) of the Convention (para. 248

above).

265. The Commission concludes, by 12 votes to 7, that Turkey failed to

comply with its obligations under Article 25 para. 1 (Art. 25-1) of the

Convention (para. 255 above).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)

                                                  (Or. English)

         PARTLY DISSENTING OPINION OF MR. H. DANELIUS

                 JOINED BY Mr. C.A. NØRGAARD

        ON THE ISSUE UNDER ARTICLE 25 OF THE CONVENTION

     I have voted against the Commission's conclusions in paras. 242

(regarding Article 13 of the Convention) and 255 (regarding Article 25

of the Convention) of the Report.

     As regards Article 13, I interpret the applicants' complaints

regarding the absence of legal remedies as relating, at least

essentially, to their main complaints regarding violations of their

rights to respect for their family life and home and their property

rights, which are "civil rights" within the meaning of Article 6 of the

Convention. Consequently, I consider that, in view of the finding of

a violation of Article 6, no separate issue arises under Article 13.

     As regards Article 25, I agree with the general remarks in

paras. 252 and 253 of the Report. However, when considering whether

there has been an interference with the applicants' right of individual

petition, I note that Hüseyin Akdivar and Ahmet Ciçek (born in 1967),

who were asked questions about applications to the Commission and were

requested to sign statements in this regard, were both found not to be

applicants (see paras. 179 and 181 of the Report). As regards the

persons who did lodge the present application, there is no evidence of

any interference with their right of individual petition. In these

circumstances, I cannot find that in the present case Turkey has failed

to comply with its obligations under Article 25.

                                                  (Or. French)

   JOINT DISSENTING OPINION OF MR. GÖZÜBÜYÜK AND MR. WEITZEL

  ON THE ISSUES UNDER ARTICLES 3, 6 AND 13 OF THE CONVENTION

     On 19 October 1994 the Commission unanimously declared the

present application admissible.  As to whether domestic remedies have

been exhausted, the Commission considered in this case and on the basis

of information before it regarding the possibility of bringing an

administrative action, that the Government had failed to provide a

single example of compensation being awarded to villagers for damage

comparable to that suffered by the applicants.  As regards the

possibility of bringing criminal proceedings, the Commission found

that, given the circumstances of the case, a prosecution would have

been wholly ineffective.

     The respondent Government subsequently reiterated their argument

that domestic remedies had not been exhausted in this case and

requested the application of Article 29 of the Convention.

     We feel it important to specify from the outset that two of the

complaints concern the alleged lack of effective remedies and that the

applicants rely on Articles 6 and 13 of the Convention to support their

submissions.

     Certain facts of the case have been elucidated by the

Commission's investigation.  In particular, the witness statements

obtained in the course of that investigation show that during the

investigation conducted by the Chief Public Prosecutor at Diyarbakir

State Security Court, the applicants, and moreover the other villagers,

were unable to identify any member of the security forces as the

perpetrator of the alleged offence.  The difficulties encountered by

the judicial authorities in charge of this investigation were largely

due to the lack of evidence against the security forces.

     In view of these additional factors, which came to light when the

Commission investigated the case, we believe that there was an

effective remedy which the applicants failed to use, namely an

administrative action and that, consequently, the Government's

application under Article 29 of the Convention should have been

granted.

     We feel it important to recall that the rule of exhaustion of

domestic remedies dispenses States from answering before an

international body for their acts before they have had an opportunity

to put matters right through their own legal system (Eur. Court H.R.,

De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,

p. 29, para. 50) on condition, however, that such remedies are

effective and sufficient, i.e. capable of providing redress for the

applicants' complaints.

     As has been proved by the investigation of the case, the criminal

proceedings brought by the prosecution on the applicants' instigation

came to nothing owing to the lack of probative evidence.  Having regard

to the nature of the complaints, which centre mainly on the destruction

of houses, allegedly by the security forces, it is quite clear that in

the absence of even the slightest shred of evidence, the prosecution

was bound to fail.  This is unsurprising, as the rules governing

criminal responsibility are inspired by the same principles in all the

member States of the Council of Europe.

     However, as shown by the ample documentation already submitted

by the Government, which will have to be studied more attentively, and

the numerous judgments of which we have obtained copies, there was an

effective remedy available to the applicants which was sufficiently

certain both in theory and in practice.  This body of case-law shows

that other Turkish citizens faced with problems which were, ultimately,

very similar to those faced by the applicants (the destruction of

houses and various items of property) were able in a relatively short

time to obtain satisfaction in the form of financial compensation.

     The applicants did not take any such steps, however.  They merely

wrote letters to certain authorities asking for compensation.  This

point is worth emphasizing, as it proves that the aim pursued by the

applicants was indeed to obtain financial compensation.  As has been

said, they could have brought an administrative action to obtain this,

but omitted to take that step.  Instead of pursuing that course of

action, they chose the most precarious option in the circumstances,

i.e. to bring criminal proceedings.

                               *

                            *     *

     We should emphasise here that the situation would have been

entirely different if the applicants had chosen to bring an

administrative action.  The victim of an administrative act may in the

first instance complain of non-pecuniary or pecuniary damage by filing

a preliminary application with the authorities.  The authorities must

then reply within 60 days.  Should they fail to reply within that

period, the application is deemed to be dismissed.  The plaintiff can

then bring an administrative action by filing a simple application with

the Administrative Court.

     Applicants merely have to prove before the administrative courts

that they have suffered damage in order to obtain compensation; they

do not have to prove that the authorities have made an administrative

error.  Once the Administrative Court has established that the victim

has suffered loss, it determines the amount of compensation to be paid

to him or her.

     It should be recalled that the Council of State applies the

criterion of "objective liability of the authorities".  On the basis

of that criterion, which has been applied by the administrative courts

since 1965, the authorities are liable according to the principle that

the burden of difficulties facing a nation should be shared by all

citizens.  It is not necessary to prove fault on the part of the

Government's agents.  It is sufficient to prove that damage has

occurred as a result of the act complained of.  The fact that the act

in question has been committed by the authorities or by a third party

does not prevent compensation from being awarded.

     For example, where a vehicle was destroyed by shots fired by

fighter aircraft, the Council of State, in its "Mizgin Yilmaz

v/Ministry of the Defence" judgment of 21.03.1995 (E. No. 1994/5656,

K. No. 1995/1262), found that "even if the authorities have not been

negligent, the plaintiff must be awarded compensation in accordance

with the principle that all citizens must share equally the burden of

any constraints arising from tasks assumed by the State in the public

interest and that such compensation is a necessary consequence of the

"social" nature of the State ... Semdinli District Court's finding of

damage and the expert report ordered by the Administrative Court show

that the amount of compensation sought by the applicant is reasonable".

     In a case in which the driver of a car was killed by police

officers when he refused to stop at a checkpoint, Diyarbakir

Administrative Court, in its "Sabriye Kara v/Ministry of the Interior"

judgment of 27 January 1994 (E. No. 1990/870 and K. No. 1994/31), held

that "the authorities had a duty to compensate the damage, whether or

not they were at fault or had acted negligently.  Moreover, there does

not have to be a causal link between the damage and the authorities'

acts.  Where the authorities cannot avoid the adverse consequences of

terrorist activities, they must pay the victims compensation in

accordance with the "social" responsibility assumed by the State, given

that such damage results from a *social risk`".

     The Administrative Court has delivered a plethora of decisions

to the effect that the authorities have "objective liability" (i.e. not

fault-based).  These show that the case-law in this area is consistent.

We shall quote the following decisions as examples:

-    Decision of the Council of State of 6.6.1995 in the Osman KAYA

and Cemil KAYA v/Ministry of the Interior case: this concerned the

destruction of the plaintiffs' house, loft, stable and all moveable

property during fighting between the security forces and terrorists.

The Council of State upheld Diyarbakir Administrative Court's judgment

ordering the authorities to compensate the plaintiffs in accordance

with the theory of "social risk".  The Administrative Court held that

the concept of the authorities' liability should not be limited to an

administrative error or objective liability related to strict

conditions, but should also comprise the so-called "social risk"

principle.

-    Judgment of Diyarbakir Administrative Court of 10.12.1991 in the

Behiye TOPRAK v/Ministry of the Interior case; decision of the Council

of State of 13 October 1993 in the same case: the plaintiff's husband

was killed by terrorists while travelling in his minibus.  The

plaintiff complained of "loss of bread-winner" and claimed pecuniary

and non-pecuniary damages.  The Administrative Court found against the

State on the basis of the theory of social risk.  It held that the

authorities were obliged to compensate damage caused by third parties

which they were unable to prevent despite their duty to do so, even if

they were not responsible for that damage.  The Council of State upheld

that judgment.

-    Judgment of Diyarbakir Administrative Court of 28.04.1994 in the

Münire TEMEL v/Ministry of the Interior case: the plaintiff's son was

kidnapped and murdered by the PKK.  Diyarbakir Administrative Court

ordered the authorities to compensate the plaintiff for pecuniary and

non-pecuniary loss on grounds of their objective liability.  It held

that "all Turkish citizens have ... the right to a decent standard of

living ... and to material and spiritual prosperity...".  The Court

held that it would be contrary to the principle of equality if the

State were to compensate damage suffered as a result of public services

provided by its own bodies (agents), but remained indifferent to damage

suffered by its citizens. The Administrative Court delivered this

judgment after its preliminary ruling had been quashed by the Council

of State.  The preliminary ruling had granted the plaintiff

compensation for non-pecuniary damage but not for pecuniary damage.

-    Judgment of Diyarbakir Administrative Court of 8.3.1994 in the

Cüneyt ALPHAN v/Ministry of the Interior case: the plaintiff's house

was burnt down during fighting between terrorists and security forces.

The applicant claimed damages.  Diyarbakir Administrative Court held

that even where the authorities had not made an administrative error,

they had to pay the applicant compensation on grounds of their "strict

liability".

-    Judgment of Diyarbakir Administrative Court of 25 January 1994

in the Hüsna KARA and Others v/Ministry of the Interior case: the

plaintiff's husband was killed by unknown persons.  The applicant sued

the authorities for damages.  The Administrative Court ordered the

authorities to compensate the plaintiff on the basis of the theory of

social risk, holding that as the plaintiff had had no part in any

terrorist activity, her loss was not caused by her own negligence, but

by difficult circumstances facing society.

-    Judgment of Diyarbakir Administrative Court of 21.6.1994 in the

Guli AKKUS v/Ministry of the Interior case: the plaintiff's common-law

husband was killed by security forces during an illegal demonstration.

The Administrative Court ordered the authorities to compensate the

plaintiff's loss.  The Council of State quashed that judgment on the

ground that the applicant and her common-law husband were not legally

married.  The Administrative Court upheld its own decision, however,

and ordered the authorities to compensate the plaintiff.  It held that

the plaintiff and her common-law husband had been living together as

man and wife.  It held further that the authorities should compensate

damage caused by their agents, even if that damage had been caused by

negligence.

                               *

                            *     *

     The foregoing case-law shows that if the applicants had applied

to the administrative courts, they could have obtained an order against

the authorities for compensation of their loss on grounds of objective

liability.  The administrative courts would not have needed to

establish that the soldiers had unlawfully and negligently destroyed

the houses in question.  They would merely have had to establish the

damage and to determine the amount of compensation to be awarded.

     One should not lose sight of the fact that the applicants, like

all the other villagers whose houses were damaged, were seeking to

obtain compensation (see paragraphs 54, 55, 56, 57, 61, 65, 66, 68, 69,

71, 73, 75).

     We note here that the continuing activities of the security

forces did not in any way prevent the applicants from applying to the

courts for compensation.  Admittedly, the PKK  was very active in the

area in which the applicants' village was situated.  However, the

applicants went to Diyarbakir after the events of November 1992.

     Once the applicants and villagers arrived at Diyarbakir, they

applied to certain public authorities, including Government authorities

i.e. the Regional Governor and the President of the Republic, for

compensation (see, for example, paras. 83 and 99).

     These applications cannot, however, be considered to be legal

proceedings under Turkish law.  The applicants merely needed to consult

a lawyer to learn of the possibility of bringing an action for damages

before the Administrative Court (see para. 122).

     We note also, in this respect, that it has not been established

before the Commission that the Administrative Court judges do not rule

impartially in cases in which actions of the security forces are

challenged.  Nor has it been proved that there is a general lack of

confidence in the remedies available under administrative law in the

region in question.

     The evidence obtained by the Commission during its investigation

into whether the complaints were founded shows that the members of

Diyarbakir Human Rights Association failed to inform the applicants

properly of the possibility of applying to the administrative courts

(see para. 96) or misinformed them as to the appropriate national

authorities to which they should apply (see para. 115).  In any event,

they advised the applicants to lodge an application directly with the

Commission (para. 130).

     It also transpires from the witness statements obtained by the

Commission that the real aim of the members of Diyarbakir Human Rights

Association in lodging several individual applications was to argue

before the international courts that domestic remedies were ineffective

in an area which had been declared to be in a state of emergency (see

paras. 115 and 130) and that they gave the applicants bad advice.

     Consequently, we believe we have shown that the applicants had

an effective remedy in Turkish law in that they could have submitted

to the administrative courts the complaints which they now raise before

the Commission.  Although the financial compensation which they stood

to gain flowed from the principle of the State's objective liability

for acts allegedly committed by the security forces, such compensation

cannot be paid until the administrative courts have established that

damage has been caused due to the State's failure to comply with its

duty to strike a fair balance between individual rights and the

legitimate rights of the general public.  Such a finding would have

been sufficient compensation for the non-pecuniary loss suffered by the

interested parties, especially as, in this case, they confined their

claims to compensation for the losses suffered.

     For the reasons set out above, we do not find that there has been

a violation of Article 6 and 13 of the Convention.

     As regards the complaint under Article 3 of the Convention, it

is our opinion that in the light of the additional evidence obtained

during the investigation and on the basis of all the considerations

which we have set out here, the Commission cannot examine the merits

of the case, as domestic remedies have not been exhausted.

              DISSENTING OPINION OF Mr. GÖZÜBÜYÜK

        ON THE ISSUES UNDER ARTICLE 8 OF THE CONVENTION

                AND ARTICLE 1 OF PROTOCOL No. 1

     I refer to the dissenting opinion which I share with Mr. Weitzel

on the issues under Articles 3, 6 and 13 of the Convention.  For the

reasons set out in that opinion, my view is that the Commission cannot

examine the merits of the complaints under Article 8 of the Convention

and Article 1 of Protocol No. 1 in this case, as domestic remedies have

not been exhausted.

               DISSENTING OPINION OF Mr. WEITZEL

    ON THE ISSUE UNDER ARTICLE 25 PARA. 1 OF THE CONVENTION

     For the same reasons as those set out in Mr. Danelius' dissenting

opinion, my view is that Turkey cannot be considered to have failed to

comply with its obligations under Article 25 para 1 of the Convention.

                                                  (Or. English)

          PARTLY DISSENTING OPINION OF MRS. J. LIDDY

     I agree with the conclusions and reasoning of the majority of the

Commission in this Report, except in relation to Article 3 of the

Convention.  The violations of Article 8 of the Convention and Article

1 of Protocol No. 1 were serious, but there is insufficient evidence

that the acts in question were carried out in such a manner and

resulted in such suffering for each of the seven applicants concerned

as to constitute inhuman or degrading treatment, having regard to the

minimum level of severity required by the case-law of the Convention

organs.

                                                  (Or. French)

      PARTLY DISSENTING OPINION OF Mr. I. CABRAL BARRETO

     Much to my regret, I cannot share the opinion of the majority of

the Commission regarding the violations of Articles 3, 13 and 25 of the

Convention, for the following reasons:

     As regards Article 3 of the Convention, I consider that the

measures taken by the security forces, i.e. burning the applicants'

houses and obliging them to leave their village and gather in

Diyarbakir, must be examined in the context of the general situation

prevailing in the area, i.e. the fight against the members of the PKK

and attempts to "strand the fish".

     I find it difficult to accept that the measures in question,

although objectively speaking they were serious, were designed to

humiliate or degrade the Kelekkçi villagers.

     In my view there has been a violation only of Article 8 of the

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

     As regards Articles 13 and 25 of the Convention, I share the

partly dissenting opinion of my colleague, Mr. Hans Danelius.

                                                  (Or. English)

          PARTLY DISSENTING OPINION OF MR. N. BRATZA

       JOINED ON THE WHOLE OPINION BY MR. H.G. SCHERMERS

     AND ON THE ISSUE UNDER ARTICLE 13 OF THE CONVENTION

                 JOINED BY MR. C. A. NØRGAARD

     I agree with the conclusion and reasoning of the majority of the

Commission in respect of the issues under Articles 3, 5, 8, 14, 18 and

25 of the Convention and under Article 1 of Protocol No. 1.  However,

on the question of remedies, I see the principal issue as one of the

effectiveness of the remedies available in the applicants' case

(thereby giving rise to problems under Article 13 of the Convention),

rather than of access to a court under Article 6.

     Article 6 of the Convention guarantees, inter alia, a right of

effective access to a court for the determination of civil rights and

obligations and further lays down certain procedural safeguards to

ensure the fair determination of disputes concerning such rights and

obligations.  The Article, as interpreted by the Court, protects

against unjustified restrictions of a substantive or procedural nature

on effective access to Court.  But it is not primarily designed to

guarantee the effectiveness of the remedies available in the domestic

legal system.  Further, it is well established that the right of access

to a court guaranteed by the Article cannot be interpreted as

conferring a right to bring criminal proceedings, or to have criminal

proceedings brought, against a third person.

     Article 13, on the other hand, is specifically designed to ensure

that persons with an arguable claim to be victims of a violation of the

rights guaranteed by the Convention are provided by a national

authority with a remedy which is an effective remedy.  Such remedies

include but are not limited to Court remedies.

     In the present case the Government have set out in detail the

various remedies which it is claimed were at all times open to the

applicants, including in particular an action in the Administrative

Court for compensation under Article 125 of the Turkish Constitution,

as reflected in additional Article 1 of the Law 2935 of

25 October 1983.  The applicants have not disputed the general scheme

of the remedies described by the Government or the theoretical

existence of a right of action under Article 125; nor do they dispute

that it was in principle open to them to bring such an action.  Their

complaint is rather that neither this nor any of the other suggested

remedies was an effective remedy in the special circumstances of the

destruction of villages and the expulsion of villagers by the security

forces in South-East Turkey.

     It was similarly the lack of effectiveness of the available

remedies which was at the heart of the Commission's admissibility

decision, rejecting the Government's submission that the applicants had

failed to exhaust their domestic remedies.  The Commission in its

decision placed special reliance on two factors which in its view cast

doubt on whether the remedies were effective remedies:  the fact that,

although the destruction of homes and property had been a frequent

occurrence in South-East Turkey, no example had been given of

compensation being awarded to villagers for damage in circumstances

directly similar to those in the present case; and the fact that no

significant examples had been given of the successful prosecution of

members of the security forces for the destruction of villages and the

expulsion of villagers.

     In paragraphs 235-238 of its Report, the Commission not only

confirms this opinion but notes that it has been reinforced by the

evidence taken in the present case which demonstrates that, despite the

various petitions made by the Kelecki villagers, no State authority

took up the plight of the villagers or referred them to a competent

authority.  This in the view of the Commission made it unrealistic to

expect the villagers to pursue theoretical Administrative Court or

other remedies, when the investigating mechanism in the emergency area

was deaf to allegations concerning the security forces.

     I entirely agree with this view.  But while the conclusion to be

drawn from this is in the view of the majority that the applicants did

not have effective access to a tribunal, I prefer to see it rather as

a case where the remedies which were in theory available under domestic

law, including court remedies, were in the circumstances of the case

illusory and ineffective.

     For these reasons I have voted in favour of a violation of

Article 13 and not Article 6 of the Convention in the present case.

                                                  (Or. English)

           PARTLY DISSENTING OPINION OF MR. G. RESS

     I am not in agreement with the majority of the Commission on the

question of whether there has been a violation of Articles 3 and 6 of

the Convention. Moreover, my reasons for finding a violation of

Article 13 of the Convention differ from those of the majority.

     As regards Article 3 of the Convention, I share the views

expressed by Ms. Liddy and Mr. Cabral Barreto that the measures taken

in this case, did not so severely disregard the situation of the seven

applicants that they can be considered as inhuman or degrading

treatment. Certainly more careful measures could have been adopted in

the situation, but leaving the applicants without any help when their

houses were destroyed cannot be regarded as treatment coming within the

scope of Article 3.

     Concerning the application of Articles 6 or 13 of the Convention,

I share the views of MM Bratza, Schermers and Nørgaard. One point

should be added:

     The Government have tried to demonstrate that actions in the

administrative courts for compensation on the basis of the doctrine of

"social risk" were open to the applicants. However, they have not shown

any specific case realistically comparable to the situation of

destruction of villages perpetrated by armed forces of either the State

or unknown denomination. One would normally expect that, having in mind

the events which took place in South East Turkey in the last years

during the fight against terrorism, a multitude of actions in the

administrative courts for compensation should either be pending or

already decided. One would furthermore expect that the Government, who

do not deny that the destruction of the applicants' houses occurred,

would, on the basis of their own contentions, and on the basis of the

doctrine of "social risk", not contest the objective responsibility of

the State to grant compensation in these cases.

     Whether the PKK or the security forces destroyed the houses seems

to be irrelevant in the light of the doctrine of "social risk", since

there seems to be a general obligation for the State to prevent such

events by adequate measures wherever they arise. If they occur

nevertheless, be it with or without fault on the part of the State

authorities, then the State is responsible and liable for not having

taken adequate measures to prevent them. The Council of State

established this responsibility even in a case of damage caused by an

unidentified aircraft. Therefore it seems even the more surprising that

there is no substantial evidence of an administrative court practice

for such situations in South East Turkey.

     This can probably only be explained by the fact that people fear

to seize the courts, or that they are discouraged to do so by local

authorities. It might be a question of the whole climate which creates

a difficult situation for both the State and its citizens, where the

mere existence of these remedies is not sufficient for their

effectiveness. Furthermore, it strikes me in this context, that the

Government have not themselves proposed specific compensation in cases

like those of the applicants, where the responsibility of the State to

pay compensation according to the doctrine of "social risk" seems to

be evident even on the basis of the Government's contentions. This is

another element which makes it rather difficult to conclude that the

remedies provided by the administrative courts are effective even

conceding that there is a difference between possible court actions and

their outcome and the ex ante acceptance of potential claims by the

Government.

 

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