AS TO THE ADMISSIBILITY OF
Application No. 22494/93
by Hasan ILHAN
against Turkey
The European Commission of Human Rights sitting in private
on 17 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 July 1993
by Hasan Ilhan against Turkey and registered on 20 August 1994
under file No. 22494/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
10 March 1994 and the observations in reply submitted by
the applicant on 11 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, born in
1921, lives at Yardere Köyü (formerly Ahmetli village). He is
represented before the Commission by Professor Kevin Boyle and
Ms. Françoise Hampson, both university teachers at the University
of Essex.
The facts as submitted by the applicant may be summarised
as follows:
On 21 April 1992 the applicant was in Ahmetli village,
Kaynak pasture in the Mardin Central region, when military units
attached to the Gendarmerie Command at Mardin went to search the
village. They found nothing illegal, but the village head man and
the villagers were rounded up and told to leave the village. They
were threatened with being killed if they did not leave.
The security forces then burnt and destroyed some village
houses. Three babies, so young that they had not yet been named,
were killed during the attack. A 90 year old woman, Sultan ilhan,
was also killed. Hand grenades were thrown into the villagers'
home. Sheepfold and haystacks and winter wood stores were
destroyed by fire, with inflammable materials found in the
houses. Those parts of burnt out houses that remained standing
were demolished with pickaxes. Livestock was killed and the eggs
of incubating hens were smashed. Cats and kids (i.e. young goats)
were thrown under military vehicles and run over. Dogs were
killed in a hail of bullets. The villagers were not allowed to
bury the four who had been killed until three days later. As the
military units left, they said: "You must leave the village. If
we come back and find you here, we will kill you all." When the
villagers asked where they could go if they left their village,
they were told: "Your road to hell is open."
The villagers left the village and went to stay with
relatives in nearby Yardere village, about 1,5 kilometres away.
Some time later, the villagers returned to their village to tend
their vineyards and orchards. They made tents in which to live
and erected them in their vineyards and orchards.
On 30 June 1992 military units encircled the village at
about 9 a.m. They saw the tents. They destroyed more houses,
including that of the applicant. The security forces went into
what was left of his home and smashed up the refrigerator,
electrical equipment (eg. his television, cassette player etc)
and other goods (eg. wardrobes). When they saw that the villagers
would not be separated from their village, the military set fire
to the earth in which the vineyards and orchards were planted.
This implies that they used some substance to set alight to
growing trees. The burning of the ground and crops and trees was
achieved by the use of petrol, paraffin and other similar
inflammable materials and sometimes by the use of a powder. In
the applicant's vineyard and orchard, the following were burnt
down:
vines .......... 5 000
peach trees .... 120
fig trees ...... 700
almond trees ... 500
apricot trees .. 700
prune trees .... 460
oak trees ...... 1 000 000
All these trees were completely burnt. The applicant's
losses amount to 1 5000 000 000 (one and a half thousand million)
Turkish Liras. The applicant owned 10 hectares of land.
The applicant complained to the authorities. After the
second attack, he wrote to the Central Office of the Motherland
Party. On 16 July 1992 he received a reply in which Mesut Yilmaz,
the General Secretary promised to pursue the matter. On
30 July 1992 he was sent a copy of a letter regarding his
petition from the Department of National Defence in Ankara to the
Interior Ministry, because the complaint concerned the High
Command of the Gendarmerie General, which the Senior Counsel said
was attached to the Interior Ministry. On 19 August 1992 the
applicant received a reply from the Chief Adviser to the Prime
Minister, saying that the application for compensation had been
passed to the relevant authority and that he would be informed
of the result by the relevant authority. Since that date the
applicant has received no information about any investigation or
compensation.
In the early weeks of March 1993 the applicant was on his
way from Mardin to the village. He was stopped and searched at
Akincilar Military Post. When the replies from Government and
party leaders were found on him, the applicant was thrown into
the station, beaten up and abused. The soldiers burnt the
documents.
The applicant is currently staying at Yardere village, 15-20
kilometres from his home village.
COMPLAINTS
The applicant complains of violations of Articles 3, 5, 6,
8, 13, 14 and 18 of the Convention and Article 1 of the First
Protocol.
As to Article 3 he states that he is a victim of the inhuman
and degrading practice of clearing villages, a form of collective
punnishment. He also refers to discrimination on grounds of race
or ethnic origin.
As to Article 5 he complains of complete lack of security
of the person.
As to Article 6 he refers to the impossibility of
challenging the deprivation of property before it took place,
which represents a denial of access to court for the
determination of civil rights. He also refers to the failure to
initiate proceedings before an independent and impartial tribunal
against those responsible for the destruction of property, as a
result of which civil proceedings cannot be brought in regard to
these events.
As to Article 8 the applicant complains of the destruction
of his home.
As to Article 13 he refers to the lack of any independent
national authority before which his complaints can be brought
with any prospect of success.
As to Article 14 he complains of an administrative practice
of discrimination which has affected the enjoyment of his rights
under Articles 3, 5, 6 and 8 of the Convention and Article 1 of
the First Protocol.
As to Article 18 he alleges that the interferences in the
exercise of his Convention rights were not designed to secure the
ends permitted under the Convention.
As to Article 1 of the First Protocol, the applicant
complains of the destruction of his vineyards and orchards.
As to the exhaustion of domestic remedies, the applicant
states that he has done everything in his power to have the
incident investigated and his losses compensated. He has had no
response to his petitions and applications, apart from letters
of acknowledgement. When soldiers found those replies upon his
person, they burned them.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced before the Commission on 23
July 1993 and was registered on 20 August 1993.
On 11 August 1993 the Commission decided to communicate the
application to the Turkish Government who were invited to submit
their observations on its admissibility and merits before
18 January 1994. At the Government's request, the time-limits
fixed in this case and in a number of other cases were extended,
for half of the cases until 21 February 1994 and for the other
half of the cases until 21 March 1994, it being indicated that
the Government could themselves determine in which cases the
observations should be submitted before 21 February 1994.
By letter of 10 March 1994 the Government submitted
observations in which they raised a preliminary question as to
the competence of Professor Boyle and Ms. Hampson to represent
the applicant in the proceedings before the Commission. Professor
Boyle's and Ms. Hampson's reply to these observations was
submitted by letter of 11 May 1994.
On 30 August 1994 the Commission decided to reject the
Government's objection to the competence of Professor Boyle and
Ms. Hampson. This decision was communicated to the Parties by
letters of 2 September 1994 in which the Parties were further
informed that the Commission intended to examine the
admissibility of the application at its session beginning on
10 October 1994.
THE LAW
The applicant complains of violations of Articles 3, 5, 6,
8, 13, 14 and 18 of the Convention and Article 1 of the First
Protocol (Art. 3, 5, 6, 8, 13, 14, 18, P1-1) in connection with
acts by the security forces in Ahmetli village. These acts
included the destruction of the applicant's home as well as his
vineyards and orchards.
In their observations of 10 March 1994 the Government raised
a preliminary question regarding the competence of Professor
Boyle and Ms. Hampson to represent the applicant (see above under
PROCEEDINGS BEFORE THE COMMISSION). The Government referred in
this connection to a procès-verbal according to which the
applicant had denied having complained to the Commission and to
the applicant's affirmation that he had not raised before any
domestic legal authority his complaints regarding the damage
caused to him by the security forces. However, the Government,
apart from questioning the competence of Professor Boyle and Ms.
Hampson to represent the applicant, did not invoke any of the
grounds of admissibility laid down in the Convention.
The Government have been informed that their objection to
the competence of the applicant's representatives had been
rejected and that the Commission intended to examine the
admissibility of the application at its session beginning on
10 October 1994.
The Commission notes that the Government have not requested
that the application be rejected on the ground that domestic
remedies had not been exhausted.
The Commission further notes that the application raises
important questions of fact and law which cannot be resolved at
the stage of the admissibility but require an examination on the
merits. Consequently, the application cannot be considered
manifestly ill-founded.
No other ground of inadmissibility is applicable to the
present case.
FOR THESE REASONS, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy