SELCUK and ASKER v. Turkey



               EUROPEAN COMMISSION OF HUMAN RIGHTS

             Application Nos. 23184/94 and 23185/94

                   Keje SELÇUK and ismet ASKER

                             against

                             Turkey

                    REPORT OF THE COMMISSION

                  (adopted on 28 November 1996)

                        TABLE OF CONTENTS

                                                             Page

I.   INTRODUCTION

     (paras. 1-27). . . . . . . . . . . . . . . . . . . . . . . 1

     A.   The application

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

     B.   The proceedings

          (paras. 5-22) . . . . . . . . . . . . . . . . . . . . 1

     C.   The present Report

          (paras. 23-27). . . . . . . . . . . . . . . . . . . . 3

II.  ESTABLISHMENT OF THE FACTS

     (paras. 28-137). . . . . . . . . . . . . . . . . . . . . . 5

     A.   The particular circumstances of the case

          (paras. 29-44). . . . . . . . . . . . . . . . . . . . 5

     B.   The evidence before the Commission

          (paras. 45-118) . . . . . . . . . . . . . . . . . . . 7

          1) Documentary evidence

             (paras. 45-63) . . . . . . . . . . . . . . . . . . 7

          2) Oral evidence

              (paras. 64-118) . . . . . . . . . . . . . . . . .11

     C.   Relevant domestic law and practice

          (paras. 119-137). . . . . . . . . . . . . . . . . . .21

III. OPINION OF THE COMMISSION

     (paras. 138-216) . . . . . . . . . . . . . . . . . . . . .24

     A.   Complaints declared admissible

          (para. 138) . . . . . . . . . . . . . . . . . . . . .24

     B.   Points at issue

          (para. 139) . . . . . . . . . . . . . . . . . . . . .24

     C.   Concerning the existence of valid applications

          (paras. 140-143). . . . . . . . . . . . . . . . . . .24

          Decision

          (para. 144) . . . . . . . . . . . . . . . . . . . . .25

     D.   The evaluation of the evidence

          (paras. 145-166). . . . . . . . . . . . . . . . . . .25

     E.   As regards Article 8 of the Convention and Article 1

          of Protocol No. 1

          (paras. 167-171). . . . . . . . . . . . . . . . . . .33

          CONCLUSIONS

          (paras. 172-173). . . . . . . . . . . . . . . . . . .34

                        TABLE OF CONTENTS

                                                             Page

     F.   As regards Article 3 of the Convention

          (paras. 174-177). . . . . . . . . . . . . . . . . . .34

          CONCLUSION

          (para. 178) . . . . . . . . . . . . . . . . . . . . .35

     G.   As regards Article 2 of the Convention

          (paras. 179-180). . . . . . . . . . . . . . . . . . .35

          CONCLUSION

          (para. 181) . . . . . . . . . . . . . . . . . . . . .35

     H.   As regards Article 5 para. 1 of the Convention

          (paras. 182-186). . . . . . . . . . . . . . . . . . .35

          CONCLUSION

          (para. 187) . . . . . . . . . . . . . . . . . . . . .36

     I.   As regards Articles 6 para. 1 and 13 of the Convention

          (paras. 188-198). . . . . . . . . . . . . . . . . . .36

          CONCLUSIONS

          (paras. 199-200). . . . . . . . . . . . . . . . . . .38

     J.   As regards Articles 14 and 18 of the Convention

          (paras. 201-204). . . . . . . . . . . . . . . . . . .39

          CONCLUSIONS

          (paras. 205-206). . . . . . . . . . . . . . . . . . .39

     K.   Recapitulation

          (paras. 207-216). . . . . . . . . . . . . . . . . . .40

PARTLY DISSENTING OPINION OF MR. N. BRATZA. . . . . . . . . . .41

PARTLY DISSENTING OPINION OF MR. I. CABRAL BARRETO. . . . . . .42

APPENDIX I:    DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF APPLICATION 23184/94. . . . . .43

APPENDIX II:   DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF APPLICATION 23185/94. . . . . .52

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 islamköy in the Kulp district of the province of Diyarbakir.

They were born in  1938 and 1933 respectively. 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 their Agent, Mr. B. Çaglar.

4.   The applicants allege that their homes and property were burned and

that they were forcibly and summarily expelled from their village by

State security forces in June 1993.  They invoke Articles 3, 5, 6, 8, 13,

14 and 18 of the Convention and Article 1 of the First Protocol. The

second applicant, ismet Asker, also invokes Article 2 of the Convention

in relation to the alleged events.

B.   The proceedings

5.   The applications were introduced on 15 December 1993 and registered

on 7 and 11 January 1994 respectively.

6.   On 5 April 1994, the Commission decided, pursuant to Rule 48 para.

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

the respondent Government and to invite the parties to submit written

observations on its admissibility and merits.

7.   As regards Application No. 23185/94, in the absence of any

observations submitted by the Government and following notification to

the Government that the application would be examined by the Commission,

the Commission declared the application admissible on 28 November 1994.

8.   As regards Application No. 23184/95, the Government's observations

were submitted on 27 September 1994 after one extension in the time-limit

and the applicant's observations in reply were submitted on 23 November

1994.     On 8 December 1994, the Commission refused the Government's

request to adjourn the examination of the case pending the investigation

by the public prosecutor and requested them to submit any further

observations which they might wish to make by 23 January 1995. On 3 April

1995, the Commission declared the application admissible.

9.   The text of the Commission's decisions on admissibility was sent to

the parties on 5 December 1994 and 26 April 1995 respectively 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 which they might wish to put before delegates.

10.  On 7 February 1995, the Government submitted further observations

in Application No. 23185/94 and on 15 May 1995, provided a requested

document. On 23 May 1995, the applicant's representatives submitted

further observations in reply.

11.  On 1 July 1995, the Commission decided to take oral evidence in

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

this purpose: Mrs. G.H. Thune, Mr. N. Bratza and Mr. E. Konstantinov. It

notified the parties by letter of 21 July 1995, proposing certain

witnesses and requesting the Government to identify certain security

force personnel and two public prosecutors. The Government were also

requested to provide the contents of the investigation files of the two

public prosecutors apparently involved in investigating the alleged

incident.

12.  On 11 August 1995, the Government submitted a document relating to

Application No. 23184/94.

13.  By letter of 12 September 1995, the applicant's representatives made

proposals as to witnesses in both cases. By letter of 15 September 1996,

the Government identified one of the witnesses proposed by the

Commission.

14.  A further request for outstanding information and documents was sent

to the Government by the Secretariat on 26 September 1995.

15.  By letter of 9 January 1996, after the expiry of the time-limit set

for that purpose, the Government proposed 4-5 additional witnesses. On

26 January 1996, the Government provided copies of documents in one of

the investigation files requested. On 30 January 1996, the Government

proposed an additional witness.

16.  Evidence was heard by the delegation of the Commission in Ankara

from 5 to 6 February 1996. Before the Delegates the Government were

represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen,

Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat,

Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and

Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and

Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz

(interpreter). Further documentary material was submitted by the

Government during the hearings. At the conclusion of the hearings, and

later confirmed by letter of 14 February 1996, the Delegates requested

the Government to provide certain documents and information concerning

matters arising out of the hearings and providing explanations for the

absence of certain witnesses. The time-limit expired on 5 April 1996.

17.  On 8 March 1996, the Commission decided to invite the parties to

present their written conclusions on the merits of the case, following

transmission to the parties of the verbatim record. The Commission joined

the two applications.

18.  On 20 May 1996, after an extension of the time-limit, the

applicants' representatives submitted their final observations on the

merits. On 25 June 1996, after a further extension in the time-limit, the

Government submitted their final observations, appending a number of

documents.

19. By letter dated 23 September 1996, the Secretariat informed the

Government that it had not provided certain documents and items of

information requested following the hearings in Ankara. The Government

were requested to clarify whether they intended to provide the

information or whether they were unable to, and were informed in light

of the Commission's intention to resume examination of the case that

their response should reach the Commission by 1 November 1996 at the

latest.

20.  By letter dated 30 October 1996, which arrived on 4 November 1996,

the Government submitted further documents.

21.  By letter dated 19 November 1996, the Government submitted copies

of extracts of duty logs.

22.  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

23.  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:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  E. BUSUTTIL

               G. JÖRUNDSSON

               A. WEITZEL

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

24.  The text of this Report was adopted on 28 November 1996 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.

25.  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.

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

No. 23184/94 is attached hereto as Appendix I and the decision in

No. 23185/94 attached as Appendix II.

27.  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

28.  The facts of the case, particularly concerning events in or about

June 1993, 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

1.   Concerning the alleged events in the village of islamköy

     a. Facts as presented by the applicants

29.  The various accounts of events as submitted in written and oral

statements by the applicants are summarised in Section B below. The

version as presented in the applicants' final observations on the merits

is summarised here.

30.  About six months prior to June 1993, the villagers at islamköy had

been threatened by the security forces that the homes of ten named

villagers would be burned down. It had later appeared that the threat had

been retracted. There had been no clashes in the village between the

security forces and the PKK but the PKK used the road which ended near

the village and the security forces regularly visited the village.

31.  On 16 June 1993, the security forces came to islamköy in large

numbers. Two houses were burned. Recep Cömert, the commander, gave orders

for the house of ismet Asker to be burned. Soldiers poured gasoline on

the house and set fire to it, even though ismet Asker and his wife Fatma

were inside. Villagers who came to put out the fire were threatened by

the security forces and prevented from helping. The house and its

contents were totally destroyed.

32.  The security forces then went to the house of Keje Selçuk. Despite

her pleas to Recep Cömert, her house was set on fire, also by gasoline.

Villagers were again prevented from assisting and Recep Cömert pushed

Keje Selçuk to the ground. She understood that she was being told to

leave the village.

33.  ismet Asker left the village and went to complain to the Kulp

district governor, naming Recep Cömert as the officer in charge. He was

sent to the gendarmes.

34.  Ten days after the burning of the houses, the security forces

returned to the village. Recep Cömert was present and gave the order to

set fire to the mill belonging to Keje Selçuk and three others. Villagers

were prevented from trying to put out the fire. Two other houses were set

on fire in the village and destroyed that day. Another house was set

alight  but the fire was put out.

35.  Keje Selçuk had left the village and was staying with her daughter-

in-law in Diyarbakir. Her brother-in-law Nesih Selçuk telephoned her to

inform her that the mill had been destroyed.

     b.   Facts as presented by the Government

36.  The Government submit that applications by Keje Selçuk and

ismet Asker have been concocted by others and that they are apparently

acting under the influence of the PKK and/or with a view to obtaining

money. The villagers of islamköy were under real and intense pressure

from the PKK, who purported to replace the State and punished any

recourse to the Turkish authorities. The applicants' homes and

possessions were burned by the PKK as a punishment and warning. In the

case of ismet Asker, his son was doing his military service and the PKK

urged people not to send their sons into the army. In the case of Keje

Selçuk, she has two sons, one in the army and the other a civil servant

who had stood up against the PKK. The Government also point to the

incident in a neighbouring hamlet, Tur, where a hundred or so PKK

terrorists locked the people in the mosque and set fire to the buildings,

the people having to escape by breaking down the door. The village of

islamköy had on the other hand had good relations with the security

forces, had had village guards and neither applicant was suspected by the

authorities of any anti-Government activity but were both law-abiding.

37.  The Government dispute that any order or paper was issued six months

before the incidents in June, threatening ten households. They also

submit that it is not clear from the evidence that Keje Selçuk's mill was

burned at all, or that it was at that time in a functional state, but

even if it was destroyed, this was not done by the security forces.

38.  ismet Asker did not, as he alleges, make any petition to the Kulp

district governor, since the records reveal that no petition was

registered and ismet Asker has no acknowledgement receipt or registration

number, which would be the case if he had made such a petition.

2.   Proceedings before the domestic authorities

39.  Following the communication of the applications by the Commission

to the respondent Government on 15 April 1994, it appears that the

Ministry of Justice (International Law and External Relations General

Directorate) contacted the Chief Public Prosecutors' office in

Diyarbakir, which in turn made enquiry of the public prosecutor's office

in Kulp by letter dated 4 May 1994 as to whether the applicants had

applied to them and requesting that an investigation be initiated if they

had not.

40.  Since no petitions had been received from the applicants, the Kulp

prosecutor opened investigation file 1994/57. By letter dated 11 May

1994, the public prosecutor in Kulp requested the gendarmerie in Kulp to

ascertain the addresses of the applicants and to invite applicants to

present themselves to the prosecutor's office as soon as possible.  By

letter of 18 May 1994 the public prosecutor enquired of the district

governor whether any petition had been filed by ismet Asker. By letter

dated 26 May 1994, Gendarme Captain Ali Ergulmez replied, on behalf of

the district governor, that an examination of the records disclosed that

no complaint had been filed by ismet Asker. On 16 June 1994, the public

prosecutor's office reminded the gendarmerie that it had had no response

to its enquiries as to the whereabouts of the applicants.

41.  On 20 June 1994, ismet Asker made a statement in the office of the

public prosecutor. Keje Selçuk made a statement to the public prosecutor

on 21 June 1994.

42.  On 18 August 1994, the public prosecutor sent a request to the

district gendarmerie commander for information to be given promptly as

to whether an operation led by Recep Cömert had been carried out at

islamköy on 16 June 1993 and whether the applicants' houses had been

burned by those units. No reply is included with documents from the

investigation file provided to the Commission.

43.  On 30 November 1994, the Kulp public prosecutor, Erdal Yatmis,

issued a decision of lack of jurisdiction in regard to the applicants'

complaints against Recep Cömert and the security personnel under his

command alleging offences against property in the winter months of 1993.

The decision stated that, while the applicants had complained to the

effect that on the date of the offence intensive clashes took place in

islamköy between the security forces and terrorists and that their houses

burned down during those clashes under the orders of Recep Cömert, it

transpired from the investigation that the incident occurred while the

members of the security forces were carrying out their administrative

duties. Pursuant to the provisions of the Public Officer Legal

Proceedings Procedure and Articles 1/b and 4/i of the Decree establishing

the State of Emergency Regional Governor's Office as well as Article 2

of Law No. 3713, the Kulp Administrative Council was the body with

authority to conduct an investigation in relation to the defendants. The

public prosecutor's office therefore decided to transfer the file to the

Kulp District Governor's office for the necessary measures to be taken.

44.  On 30 November 1995, the investigation file was referred to the

Governor of Kulp district.

B.   The evidence before the Commission

     1)   Documentary evidence

45.  The parties submitted various documents to the Commission. The

documents included reports about Turkey, domestic case-law and statements

from the applicants and witnesses concerning their version of the events

in the case.

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

     a) Statements by applicants

     Keje Selçuk

     Statement dated 22 July 1993, taken by the Human Rights Association

     (HRA), Diyarbakir

47.  On 16 June 1993, 400 gendarmes from the Kulp gendarmerie under the

command of officer Recep Cömert carried out a raid on islamköy at about

7-8.00 hours. First, they set fire to the house of ismet Asker, with all

his property. Then, they came to the applicant's house, ejected her and

her children, gathered their goods into one room, poured petrol over them

and set them on fire. After the house had burned down, he (Recep Cömert)

told the villagers that, if they did not leave, the security forces would

burn their houses, and the villagers inside, without blinking an eye.

48.  About ten days later, the same gendarmes returned to the village.

They threw petrol over, and set fire to, the houses of Serif Tanrikulu,

A. Kerim Ergül and Kazim Sahin as well as the mill owned by the applicant

and three others, including Nesih Selçuk. The gendarmes beat with sticks

and truncheons some of the villagers who tried to put out the fires. The

villagers whose homes had been burned were forced to move to the towns.

The applicant went to live with her daughter in Diyarbakir. She had not

applied to any institution in respect of her complaints. She referred to

ismet Asker's petition to the Kulp district governor remaining

unanswered.

     Statement dated 21 June 1994, taken by the public prosecutor

     (unidentified)

49.  Gendarmes came to the village about a year before. They wanted ismet

Asker and herself to leave the village but they had not done so. She took

some of her belongings out of her house and then the gendarmes set fire

to it. They burned ismet Asker's house also. When she asked why they

burned her house and were driving her out of the village, they said that

it was because she harboured terrorists and supplied them with meals. She

had never done so. She did not know the soldiers or their commanding

officer. There had been no incidents before in the village.

50.  The applicant's statement taken by the HRA (above) was read out to

her. She stated in reply to questioning that she did not know the

commanding officer, that she did not know whether villagers were hit with

truncheons or whether they had come to the village and set fire to houses

after her own house had been burned down. She had never said those things

but it was what they had written down. All she wanted was compensation

for the damage caused.

     Statement dated 28 October 1994 taken by Servet Ayhan (HRA)

51.  A policeman had come to her daughter's house on 17 June 1994 and

said that she should give a statement to the public prosecutor. When she

went to the prosecutor's office, they would not allow her daughter to

enter with her and a person that she did not know interpreted. The

prosecutor had asked her questions relating to her complaints. She had

replied that she did know the commander's name, Recep. She explained in

this statement that she knew him as he had come to the  village from time

to time. When the HRA had asked for his surname, she had found out his

surname from the villagers and given it to them. In answer to the

prosecutor, she had explained that she had been present when her house

was burned down, and had only been able to save the clothes that she was

wearing. When her mill had burned down, she had been staying with her

daughter in Diyarbakir and her business partner had informed her of it.

     Statement dated 22 August 1995, taken by the HRA, Diyarbakir

52.  After the applicant had made her application, she had been called

to the gendarme station and asked to sign a paper but did not know what

was in it. Since her house was burned between 7.00 and 8.00 hours many

villagers had witnessed it including Nesih Selçuk, Necmettin Korkmaz and

ismet Asker. She wanted to continue with her case.

     ismet Asker

     Petition to the District Governor, dated 25 June 1993

53.  On 16 June 1993 his two storeyed house with eight rooms was burned

down completely during an operation at Islam village (Islamköy). The

property destroyed included 10 woollen mattresses, 3 carpets, 9 kilim

rugs, kitchenware, crockery, a wooden grain bin, 2 tons of wheat, sacks

of rice, tea, sugar and his store of 180 poplar trunks. His home had been

burned unnecessarily  and he and his family had been left homeless and

in a desperate situation. He asked for recompense for his house and goods

and respectfully requested his petition to be processed.

     Statement dated 14 July 1993 taken by the HRA, Diyarbakir

54.  On 16 June 1993, about 400 gendarmes under orders of Recep Cömert

from the Kulp district gendarmerie organised a raid on the village. First

they came to his house and told him and his wife Fatma to get their

things from the house. As they did so, they realised the house was

burning and rushed out through the back door. The gendarmes seemed to

intend to burn them alive. The gendarmes threatened the villagers who

arrived to help put out the fire. After waiting for his house to burn

down completely, the gendarmes went to the house of Keje Selçuk and

burned it with all the goods inside. Then they left.

55.  The previous winter, the security forces had sent a list of names

concerning ten families telling them that they should leave the village

by summer. He did not understand why, since at one point they said that

they would not burn things, they then came in an operation without

warning to burn his house.

56.  Ten days after the raid, gendarmes under Recep Cömert came again.

They completely burned down the houses of Serif Tanrikulu, A. Kerim Ergül

and Kazim Sahin as well as the mill belonging to Keje Selçuk and three

others. After that, Recep Cömert addressed the villagers, threatening

them and stating that if the villagers did not leave the village, they

would be burnt together with their houses.

57.  The applicant made an application to the Kulp district governorship

on 25 June 1996 relating to the first incident. The district governor

asked him through an interpreter (since the applicant did not know

Turkish) whether he knew anyone amongst the gendarmes, and he replied

that he knew Captain Recep Cömert. The district governor stated that he

would accept the petition.

     Statement dated 20 June 1994, taken by a magistrate in the public

     prosecutor's office

58.  In the winter of 1993 the Kulp district gendarmerie company

commander came to the village, assembled the villagers and threatened

them, saying that if they did not leave the village he would burn it. In

August 1993, as far as he could remember, Cömert carried out a raid on

the village with a large number of soldiers. They set fire to his house

without giving reasons. A gendarme had told them to fetch their things

before they began burning it. When he and his wife were in the house,

they realised it was on fire and ran outside. They did not know how it

was set on fire. The soldiers prevented him and the villagers from

putting out the fire.  After his house burned, they went to burn down

Keje Selçuk's house. He did not know who it was who had burned his house

until later, when other villagers told him that they were soldiers under

the orders of Recep Cömert.

59.  He had suffered damage to property amounting to 200.000.000

(million) TL. He submitted a petition to the Kulp district governor's

office and they later took a statement from him at the gendarmerie. He

received no response to his petition. After the incident, he went to a

building site in Diyarbakir looking for work and told his story to the

contractor. The contractor told him to go to the provincial governor's

office to ask for help. A person with the contractor, whom he did not

know, wrote out a petition  and made him sign it. He did not know what

was in it. He was not aware of giving a statement to the HRA.

60.  Before his house burned down, PKK activists (took) food and supplies

(from) the village. He had nothing to do with the PKK.

     b) Statements by other persons

     Servet Ayhan

     Statement dated 28 October 1994

61.  The HRA staff who took Keje Selçuk's statement made mistakes. She

was not in the village when the second incident took place. Nesih Selçuk

had witnessed it.

     Sedat Aslantas

     Statement dated 12 April 1995

62.  The HRA people took statements at their association premises. The

only exception was when they performed investigations at the scene of

incidents. They would take statements there. There was no logic to

statements having been taken at a construction site.

     c) Official Records

63.  The Government have supplied copies of the duty log of Kulp

gendarmerie for the dates 15-19, 21-26 June 1993. These daily records

indicate the routine duties eg. guard duties, training at the gendarmerie

station. They also indicate patrols to villages in the area or "village

duty". Such visits are recorded as  having taken place on 17 June  (a

motorised patrol to Narli involving 10 gendarmes), on 21 June (a patrol

on foot to Karabalak of 10 gendarmes), on 22 June   (a motorised patrol

to Dolmetepe and Özbek involving nine gendarmes led by Recep Comërt) and

on 23 June (a motorised patrol to Yaylak and Baloglu of nine gendarmes

led by Recep Comërt).

     2)   Oral evidence

64.  The evidence of 10 witnesses heard by the Commission's Delegates may

be summarised as follows:

     ismet Asker

65.  ismet Asker stated that he was born in 1933. In June 1993, at about

08.00 hours, soldiers came to the village. There was no road beyond his

house, so they got out of their vehicles and continued in to the village

on foot. There were many soldiers about (he only guessed that there were

400) and seven tanks and 27-28 vehicles. He was near the front door

watering the wheat when the soldiers arrived. At that moment, his wife

was at the house holding a breakfast tray. He went into the house where

the soldiers were looking around, having forced a door. He went outside

again. They set the house on fire and he went inside to try to save his

furniture. A soldier whispered in his ear that he could take out his

furniture. There was too much smoke and they were unable to save

anything, except for some mattresses. The house was set on fire by

gasoline or petrol. He saw the container in a soldier's hand when he was

on the upper floor, throwing furniture out. There was a lot of wood and

the flames reached the ceiling: he and his wife were almost trapped

inside. He had thought that if he and his wife stayed inside they would

not set the house on fire.

66.  The commander was there when they burned his house. He asked the

commander why they burned his house. The commander, swearing, told him

to go away (he understood from the gesture). While he said at one point

that he did not know the commander's name, he referred to a diminutive

name Reco and the name Recep and said that this was the only name he knew

from all the soldiers present. It was Recep and members of his team who

burned down his house.

67.  The soldiers prevented his relatives and the villagers from putting

out the fire or removing the furniture. They were rough but he did not

see any beatings himself.

68.  Ten days later, the soldiers returned to the village at night. He

saw the soldiers when he left in the morning to go to Kulp. The soldiers

asked for his identity card. He did not see the mill burned with his own

eyes but he saw smoke and, when he asked, he was told that they had

burned the mill. The mill had been functional before. This was the same

day he went to Kulp to hand in his petition.

69.  He submitted a petition to the district governor. He usually put his

thumbprint on documents but he had signed the petition. On being shown

the copy of the petition, he said that it was his signature. A man whom

he did not know wrote the petition for him. The governor signed it and

sent it to the police. He had received no response to his petition.

70.  Previously the terrorists had used the road passing the village.

There had been village guards at one time and in those days the soldiers

had gone into the mountains. The soldiers had come to the village before

by helicopter.

71.  Six or seven months before the incident, news had come to the

village warning that villagers should move from outside areas into the

village and then they might not be burned. He was told by a number of

people, including his younger sister, that his name was on the paper. It

was an order from the police.  Ten houses were chosen, as it was said

that terrorists went there. He had moved some of his furniture out of the

house at this stage, sending some of it to his son and sister. His house

stood alone on the road at the edge of the village. They (the PKK) used

to knock on his door, but he was hard of hearing and they would go away

and leave him alone. Even if he had bread, he said that he did not.

72.  As regarded his statement to the HRA, it was written in an office

(possibly Osman's office), not at a construction site. He chose Osman

(Osman Baydemir) for his lawyer. He told him what to write.

     Fatma Asker

73.  Fatma Asker was born in 1938. At about 08.00 hours, when she was

holding a tray and teapot, four soldiers came to the door and asked whose

house it was. When she told them, they told her to call her husband. He

was outside in the fields not far away. There were 27 military vehicles

filled with soldiers. Their commander was Recep, whom she recognised as

he had come to the village many times before. By the time her husband

came, the soldiers had set the house on fire. She saw a soldier holding

a white plastic bag with a gasoline container inside. Recep told him to

pour and the soldier poured gasoline in four places. Recep was angry with

her and told her that if she interfered he would kill her. She went into

the house to try to save furniture and shoes but there was so much smoke

that she thought that she would be suffocated. The soldiers knew that

they were in the house. Recep was standing by the house. He did not let

the villagers help her or her husband. When their house had burned down,

Recep and the soldiers went next to burn the house of Keje Selçuk. She

did not see Sait Memis, Celal Seker or Sah Simsek in the village that

day. Tevfik Karaaslan was there that day.

74.  That night, she stayed in a neighbour's house. Since Recep had told

them to go, they left the village to go to Diyarbakir. Ten days later

they returned to the village to harvest their wheat. Early in the

morning, when she and her husband were travelling to Kulp, as they passed

the upper part of the village, she could see the mill below burning.

Before this happened, the mill had been working and they had taken their

wheat there. Two houses were also burned. She did not see who started the

fire. On the road to Kulp they met soldiers who stopped them. There were

soldiers in the village also. She did not recognise any of them. She did

not see anyone being beaten.

75.  There had been news in the village that they would have to leave or

houses would be burned but she did not know where it came from and it did

not say whose houses were to be burnt.

76.  The PKK used to come and go in the area of the village, using the

road to reach the mountains but there had been no clashes. The PKK were

armed: they held meetings, and they forced the villagers to give them

their mules and foodstuffs. Her husband had a grocery store, with

matches, light bulbs etc but did not sell food. They were poor and did

not give the PKK what they did not have. But they were alone and when

they had something they gave it out of fear. When asked by the Government

Agent why Recep burned their house, she said that they (the security

forces) used to say that PKK members came to the village, that they fed

them and were not friends.

77.  All the villagers had left the village.  They were frightened. She

and her husband had received no help from the State.

     Keje Selçuk

78.  Keje Selçuk stated that she was born in 1938 and was a widow. One

of her sons worked for the rectorate of religious affairs. She lived in

a two-storey house with four rooms. In June 1993, in the morning when she

had eaten breakfast, Necmettin Korkmaz warned her that soldiers were in

the village. She saw smoke and the neighbours were saying that the

soldiers had burned ismet Asker's house. There were many soldiers around

the village and many vehicles. Recep, whom she knew since he had been to

the village on previous occasions, and five soldiers came to her house.

Recep poured gasoline on the house and set in on fire. When she protested

and pleaded, they answered that she helped outsiders and fed the PKK. She

took the Koran to show it to Recep. When she asked where she should go

now, Recep said that she should leave the village. He pushed her away.

When her brother came to put out the fire, Recep swore at him. The

soldiers did not let her brother, Nesih Selçuk or Necmettin Korkmaz put

out the fire. Though she did not speak Turkish, she could understand when

he told her to get out and the motion which he made with his hand. Her

own children were not there but there were children of the neighbours at

her house.

79.  She remained in the village at the house of a neighbour (Necmettin

Korkmaz) that night and in the morning went to her daughter's  house. Ten

days later, her brother-in-law rang her in Diyarbakir and told her that

the mill, which she owned with him and two others, had been burned by the

soldiers. He said nothing about villagers being beaten.

80.  Previously, the soldiers used to come to the village, search it

quickly and leave. Threats had been made to the village. First, they said

that ten houses would be burned, then that all the houses should be

evacuated and burned and then later they said that they would not burn

them. Villagers said that they heard this from the soldiers. Her house,

in the centre of the village, but separated from the other houses by a

creek, was on the list of ten houses to be burned.

81.  She went to Diyarbakir and told her story. She did not remember the

names of the people who took her statement. She did not know the name

Sedat Aslantas. No-one told her anything about how to apply for

compensation to the administrative courts. She also gave her statement

to the public prosecutor. She had told the prosecutor the name of Recep.

She received no help from the State.

82.  She knew Celal Seker, Sah Simsek and Sait Memis but they lived far

away and they were not there when her house was burning. The first two

were or had been village guards. No-one lived in the village any more.

Even the village guards were afraid.

     Necmettin Korkmaz

83.  The witness, aged 73, was a muhtar in islamköy for 32 years and was

muhtar in June 1993. The village consisted of 145 households and,

including the nomads nearby,  had 3 110 people.  On the day of the

incident, at about 07.00 hours, the witness heard children shouting that

there was a fire. He took an axe and found the house of ismet Asker was

burning. He shouted to the villagers to put out the fire. The officer

Recep, a senior sergeant, was there however, holding a container and a

bag saying that he would kill them if they tried to help. He knew Recep

as he had been to the village before and had been in Kulp for 5-6 years.

Recep said that he was going to Keje's house and the witness pleaded with

him. The witness told Keje to take the Koran to him to dissuade him.

Recep pushed Keje who fell on her back. He saw Recep pour gasoline on

three parts of Keje's house and burn it. He ordered the soldiers to kill

anyone coming near and used obscene words. Recep said that he was burning

ismet Asker's house because he provided food for terrorists. There were

many soldiers in the village.

84.  Ten days later, Recep returned. There were soldiers in the fields.

The witness saw smoke coming from the mill. He saw with his own eyes that

Recep gave the orders and the soldier with him was pouring petrol. Recep

told the other soldiers to shoot anyone who came near. He said that the

mill was burned so that the PKK could not use it. Kazim Sahin's house was

burned also. At a date around this time, of which the witness was not

sure, General Aydin arrived in a helicopter and wanted to know what had

been happening. The General had asked who had burned Keje's house and the

witness had said that it was Recep. The General had called Recep, who was

present and scolded him. The witness stated that General Bahtiyar Aydin

had stayed as a guest in the village on three occasions. One or two

months after the mill incident, the witness gave up and went to live in

Istanbul.

85.  The village had previously had very good relations with the security

forces. They used to conduct searches.  The PKK generally used to come

to the village, take a look and leave. He denied seeing any meetings or

that he had been warned not to take his complaints to the Government. By

this time, the village has been empty for three years and all the people

were scattered. The whole village, including his house, was destroyed by

Major Ali. The village was burned in instalments. About 120 houses were

destroyed by the soldiers. Another 22 houses were burned by the PKK,

during an incident in the Tur hamlet far from the village. The Tur

incident happened after he had left the village for Istanbul: he heard

that the PKK had locked everyone in the mosque and burned the houses. The

people escaped by breaking down the door.

86.  Before the incident, during the winter, news had reached the witness

that a warning was being given that people should leave ten of the

houses. People said that they had received a paper telling them to leave.

The witness saw a paper which at one stage he said was signed by the

Major, then that it was signed by Recep. There had been a telephone call

telling them the same thing. The witness went to the Major about it three

times. The Major said that if the people did not let in any strangers

nothing would happen.

87.  When asked why a village on good terms with the authorities would

be burned, the witness said that he had been told that their village was

in the foothills and that they (the security forces) did not believe

(trust) them any more. On the one hand the soldiers were bothering them,

on the other the PKK: they were between a stone and a hard rock.

     Nesih Selçuk

88.  The witness was a neighbour of Keje Selçuk and her brother-in-law.

He lived 15-20 metres away. He stated that there was a military operation

in the village - he did not know how many soldiers there were. They used

to come in vehicles, anything from 10 to 30. Necmettin Korkmaz told him

that the commander, Recep, intended to burn Keje's house. The witness

went to the house where he saw Recep standing outside the door and

pleaded with him. Recep swore at him and told him to clear off or he

would kill him. Keje's house was set on fire. Recep was with two privates

to whom he gave the order to start the fire. He shouted at the villagers

to stop them trying to put the fire out. The house of ismet Asker was

also burned. He heard that the houses were burned because the terrorists

had been coming, but he did not know if that was true or not. The

witness, an elder, knew Recep as the district commander based in Kulp and

had seen him frequently. Recep had visited the village once a week, once

a fortnight. While he knew Recep he did not know who any of the other

commanders might be and he did not know who was the chief of the

operation.

89.  Ten days later, at the hour of morning prayer, the witness who lived

opposite the health centre, saw soldiers banging on its door. The

soldiers used to use the centre to sleep in at night. The witness took

over the key. One soldier was left to look after their equipment. He had

a white bag in his hand and went off with it. The soldiers set fire to

the house of his maternal uncle, who was absent in Diyarbakir, and also

to the house of Kazim Sahin. They set fire to the mill which the witness

co-owned with two others. It was already burning when he ran over. He

protested to Recep who was at the mill. Recep said "It was an old mill.

Build yourself a new one." He telephoned Keje, who had gone to her

daughter's house in Diyarbakir and informed her that the mill had been

burned. The mill was waterpowered from a canal which had been built and

was the only one which functioned in the summer. People from the village

and a neighbouring village brought their wheat and it was ground into

flour.

90.  Previously the soldiers used to come to the area but did not pay

much attention to the village. They would ask if the villagers had seen

any strangers. As regarded the PKK, this witness never saw them. He heard

that they visited another village and that, at night, they used to pass

down the road through their village. In response to the Government Agent,

he agreed that the PKK came to the village to take things. The villagers

were forced to give things. On one occasion, the PKK took his mule. They

used it to carry loads and then left it near the village. He never heard

the PKK tell the people not to go to the State but he knew that if they

complained their lives were in danger. ismet Asker's house was burned

because it was situated on the road where the PKK used to pass. ismet

used to have a small store which sold goods but no food. The PKK did not

come to the mill.

91.  He stayed in the village that summer but left in the winter. They

left the village because they could not cope. They were between two

forces, both sides were armed and though they respected the State they

came at them with weapons from both sides. He had heard nothing about

previous threats to burn certain houses. He made no complaint about the

mill since it was the State that had burned it down. No-one ever asked

him to make a statement about it.  Sait Memis was the muhtar in

June 1993. He had taken over from Necmettin Korkmaz who had been muhtar

for over thirty years. Memis lived in Tur, a hamlet half an hour away and

knew that the soldiers had burned the houses. He did not see him on the

days the houses and mill were burned. He recalled seeing a helicopter

land in the field in front of his house and a high ranking officer

arrive. He heard that the general had asked who had set fire to the house

and when the people gave Reco's name, the general chided him. He heard

that this general was later killed in Lice. This occurred on the day that

Keje's house burned.

92.  ismet Asker stayed in the village for a few months. Keje also

returned for a while and then left again after a few months.

     M. Sait Memis

93.  The witness was born in 1955 and had been living in Diyarbakir for

a year. He was muhtar of islamköy from 1989 to 1994. Necmettin Korkmaz

was the previous muhtar. Tevfik Karaaslan became muhtar after the

witness. The witness used to live in Tur hamlet, one or one and a half

kilometres (20 minutes by foot) away from islamköy village, which was on

a lower level.

94.  On the morning of the incident, the witness saw smoke coming from

the lower area. He asked what was going on and children, who had been

minding animals, said that ismet Asker and Keje Selçuk's houses had been

burned by terrorists during the night. Other passers-by said the same

thing. There were definitely no soldiers and the security forces never

raided or caused damage to the village. Because of the situation of the

hamlet, they could see if soldiers came to the area below or passed by

or would at least hear news of it. Though it was his duty to go to the

village, it was dangerous and his life would have been at risk. He

referred to PKK activity  and the laying of mines which meant they could

not walk around freely. He went to the village two days later. He saw

that ismet Asker's house had been burned but did not see ismet. He did

speak to Keje Selçuk who said that terrorists had come at night, taken

her out and burned the house. He did not see Nesih Selçuk. All the people

he asked said that it was the PKK who had come and burned two houses. He

went shortly afterwards (a week to ten days)  to report orally to the

district governor what had occurred. Nothing was written down. Afterwards

he told the gendarmerie. He could only guess at the name of the commander

in charge of the gendarmerie, a major, but he knew Recep Cömert to be in

charge of the district gendarmes. He told him about the burning. He was

not asked to make a statement. He was summoned by the public prosecutor

in about January/February 1994 and responded orally to questions about

a petition alleging that an incident had occurred.

95.  Recep came to the village 10-15 days later on an operation with

other soldiers. The witness talked to him on that occasion. The soldiers

looked at the houses which were burned.

96.  There were six mills in the village. He did not know if Nesih's and

Keje's mill was still standing, or if it had burned down or later

collapsed. All the houses in the village had been burned. He did not go

to the village to see what happened when the mill and Kazim's house were

burned. As muhtar his life was at risk from the PKK. He never asked about

the mill, and did not see it, but he was sure that it was the PKK who

burned it down. It had not been working after a flood.

97.  No houses had been burned by the PKK before this. After this time,

batches of houses were burned every 10-15 days until none were left in

November 1994. He left Tur following an attack by the PKK in April 1994.

The PKK (100-200) had assembled the people and put them in the mosque.

They set fire to the houses (20 burned) and the people would have died

if they had not escaped by breaking down the door to the mosque.  The

hamlet had 20 village guards but they were absent that day.

98.  When asked why ismet Asker and his wife said that it was soldiers

who burned their house, he replied that he stated what he had seen and

that he could not say now who set fire to it, the State or the terrorists

or whoever. But it was not the soldiers. He did not see it with his own

eyes but people told him that it was the terrorists. He saw no helicopter

arriving around this time.

     Mehmet Tevfik Karaaslan

99.  The witness stated that he was born in 1953. He had moved to Kulp

from islamköy in 1994 because of terrorism. He had been elected muhtar

in March 1994. He used to live in the hamlet of  Gündogmaz,

4-5 kilometres from islamköy village. At the end of June 1993, he got up

in the morning at about 05.30-6.00 hours and saw smoke coming from the

centre of islamköy. He walked there. By the time he arrived the fires had

been put out. Two houses had been burned, those of ismet Asker and Keje

Selçuk. He did not see or speak to either that day. He spoke to Keje the

next day (then said ten days later) and she said that there had been a

raid during the night, when the terrorists had come and asked for help.

The terrorists burned the houses apparently when ismet and Keje did not

give them help. The PKK were after Keje's son, the imam, and she was

saying things out of fear.  He did not see any soldiers in the village.

He saw ismet five to six days later and he said that the PKK had knocked

on his door in the middle of the night, that he had refused to help them

and they had burned his house.

100. This was the first occasion that houses had been burned. The PKK

came mostly by night but sometimes the witness saw them during the day.

They had taken one of Necmettin Korkmaz's nephews who was a teacher and

killed him. Necmettin was in Istanbul at the time of the burning. He was

frightened of the PKK who were after him. The PKK used the villagers and

their animals to help transport provisions up the mountain. They used to

make threats to the villagers not to go to the State authorities. They

held a meeting once or twice.  Because the people did not obey them, the

PKK abducted villagers: he referred to four persons being taken. Mines

were laid on or near the road from the end of 1993 to 1995. Two of

Kazim's children had been killed by a mine near the stream.

101. He did not know of any incident 10 days later but referred to a

second raid occurring 20-25 days later. He knew of the mill but he did

not see or hear that it burned and said that it had collapsed by itself

three years previously. He did not see any helicopter coming to the

village.

102. He knew Recep Cömert, the district gendarme commander,who used to

come to the village once every two to three months. He had never been

asked to make a statement about the incidents.

     Celal Seker

103. Celal Seker stated that he was 43. Before moving to Kulp in

September 1994, he used to live in Tur hamlet, one of the neighbourhoods

of islamköy about two and a half kilometres away from the centre. In the

last week of June 1993, in the morning, at dawn when he went outside, he

saw smoke. He thought it might be the PKK who were very active and at

about 09-10.00 hours he went down to the village. There were no mines at

that time and the PKK, who were active at night, cleared off before

daybreak. He saw that nothing was left of two houses belonging to ismet

Asker and Keje Selçuk. ismet Asker's house had collapsed completely and

there was a little smoke rising. He saw Fatma Asker in tears and she told

him that the PKK had burned her house. He saw Keje outside her house and

she said that the PKK had set fire to her house. All the villagers said

that it was the PKK who had set fire to the houses. Sait Memis was in the

village later that day but he did not see Karaaslan until two or three

days later. There were no soldiers in the village.

104. There were six mills in the village. Some were carried away by the

flood but the good mill was still standing and nothing had happened to

it.  The Selçuk mill was on the edge of the stream, water had made holes

in the wall and it could have fallen down of its own accord. He did not

recall when Kazim's house was burned down but thought it later with all

the others. He knew Recep Cömert who was the district gendarmerie

commander. He called at the village twice, three times while on

operations. Ten or fifteen days after the incident, he came up to the

village with lots of soldiers and walked around asking whether terrorists

were coming to the village. He spoke to the witness who said that the

terrorists took their animals to carry loads. He explained that

terrorists used to bring provisions by lorry as far as the village. They

coerced villagers into giving their mules to move provisions up the

mountain to the deserted village of Yaylak or wherever they had their

camps. The PKK seized food as well. They had held a meeting in the school

and urged the villagers to help them.

105. He had never given a statement to the public prosecutor. Keje had

a son who was the official imam but who had left the village. They blamed

her for having a civil servant for a son. The PKK used to call meetings

and tell people not to go to the Republic of Turkey but to them. Maybe

the PKK were sending ismet and Fatma Asker and Keje Selçuk to make

complaints: Asker was old and deaf. Maybe he wanted to obtain some

benefit from the State.

106. The witness had previously been a village guard from 1987 to 1991.

There were no mines on the road from Tur to the village in June 1993 only

later. Necmettin Korkmaz had left the village and was in Diyarbakir; he

usually did that in the spring, leaving his wife in the village. He was

a good speaker and was under pressure from the PKK who wanted to persuade

the villagers to give them, food and money and send their children to

join them rather than do their military service. After the burning, he

took his wife and left the village.

107. The witness said the villagers were obliged to leave the village in

September 1994. There were mines on the village road, they could not tend

their livestock and the terrorists would have taken all their food and

left them hungry.

     Sah Simsek

108. The witness stated that he was born in 1994. Be4ore moving to Kulp

at the end of 1994, he had lived in the central district of islamköy

village. When referred to events in 1993, he explained that he had sent

his wife and children to Diyarbakir. At nightfall he did not stay in his

house but hid in a vineyard or woodland. The village was the last stop

on the road (for the PKK). Vehicles brought provisions on the road as far

as the village and then the villagers were ordered to bring mules to be

loaded and taken up the mountains. Because he was hiding that night, he

saw nothing until dawn  when he saw smoke. He followed the smoke and

found that the houses of ismet Asker and Keje Selçuk had been burned. He

arrived there at about 04-5.00 hours. No houses had been burned

previously. He saw ismet and Fatma in tears by their house. All the

villagers had gathered and were saying that it was the terrorists. While

he did not see Sait Memis there at that time, the muhtar was around the

village and he spoke to him towards evening. he saw Mehmet Tevfik

Karaaslan near ismet Asker's house in the afternoon, not early in the

morning.  There were no soldiers in the village nor any helicopter that

day. Soldiers and helicopters had come on other occasions.

109. He talked to Keje Selçuk later. She said that the PKK burned her

house, that she did not understand why but wondered if they were angry

at something her son the imam had said at a meeting. Asker had told him

that the PKK were always knocking on his door and getting angry if he did

not open up. It was known that he was pro-Government.

110. The witness had been a village guard from 1987 to 1991. They gave

up being village guards when the area was evacuated and they were left

on their own to face the raids.  A village guard had been seized and they

feared the same would happen again. They could see it was leading to a

bad end. There had been a meeting, which he did not go to, where the

people were gathered and told that they should send their sons to the PKK

and regard the PKK as the State, not the Turkish authorities. The imam

had refused to sign a paper agreeing with this on behalf of the

villagers.

111. He had spoken 15-20 days ago to ismet Asker who had explained that

last year when he was on his way to ask for assistance from the

authorities in City Hall, a fellow had talked to him and induced him to

tell his story, saying that he would write it down in a petition. The

petition had been written and Asker had been told to hand it in to some

place. Asker told the witness that he could not read it and that the

fellow had made it up in his own head.

112. He was told by the muhtar Karaaslan that he and the others were to

come to Ankara to give evidence.

     Recep Cömert

113. Recep Cömert stated that he was born in 1954 and was currently a

senior sergeant on duty in the Mus gendarmerie. He had been in service

for 24 years. From 15 July 1991 to 3 August 1993, when he was

transferred, he was stationed as commander of the Central Kulp

gendarmerie, in charge of 60-70 gendarmes.  islamköy was under his

jurisdiction and he had visited the village on three occasions, no more,

to attend meetings and carry out his duties to protect the villagers'

lives and property. He knew ismet Asker and most of the villagers. The

area around islamköy, 20 kilometres from Kulp, was under the influence

of the PKK and they were very effective there.

114. He definitely did not go to the village during the month of June

1993 and had never conducted a military operation there. There would be

logs recording any operations. The last time he was there was in May to

organise a meeting. Until he left in August 1993, the village was

inhabited and the mill still standing. He heard nothing about threats to

the villagers to leave. He had never met General Aydin, who took up his

duties there after the witness had left. He received no reports or

information relating to the burning of any houses in June 1993.

115. The PKK used the villages of the area for shelter and food. He had

no power to send troops for military operations or to evacuate villages.

They sought to persuade villagers not to assist the PKK. If from

intelligence sources they discovered the identity of any PKK supporters,

they would determine their identities, capture them and hand them over

to the judicial authorities. But they could not act on hearsay. If there

was material evidence, such as a hideout, they could proceed to take a

statement from the villagers. Neither he nor any subordinate during his

time on duty had ever burned houses or witnessed such incidents. He had

never participated in any joint large-scale operation with other units.

116. If there was a fire in a village, the muhtar or elders were unable

to report it, since they would be targeted and killed by the PKK.

Necmettin Korkmaz was not the muhtar during his time in the district: the

muhtar was Sait Memis. But Necmettin Korkmaz had the habit of visiting

the witness regularly as well as the Governor, district gendarmerie

commander and others in Kulp. He and the witness had good relations.

Korkmaz was lying when he said that he saw the witness in the village in

June. Since Necmettin Korkmaz had only seen him two or three times, he

doubted the villager could recognise him.

117. When asked why ismet Asker, his wife and Keje Selçuk said that he

had burned their houses, the witness referred to a book "The PKK" by

ismet imset, which mentions his name in connection with incidents. They

must have thought that he was a good target as his reputation had been

already damaged. He had no reason to burn their houses, or the mill,

which was a dilapidated structure partly submerged in the creek and not

in operation. The newspapers, Özgür Gündem and others, also carried

stories making untrue allegations against him. The untrue stories started

after he took up his duties at Kulp and resulted from the fact that he

performed his duties effectively and impartially. His life was in danger

as a result of the stories.

118. He had been called before a public prosecutor a few times to answer

allegations about himself. He had never been subject to disciplinary

proceedings nor been a defendant in a criminal trial.

C.   Relevant domestic law and practice

119. The parties have made no separate submissions with regard to

domestic law and practice. The Commission has incorporated its summary

of the relevant domestic law and practice in the case of Akdivar and

others v. Turkey (Eur. Court HR judgment of 16 September 1996 to be

published in Reports 1996), which includes the provisions relied on by

the Government and representatives of the applicant villagers (the

applicants in this case adopt the same arguments for the purposes of this

application).

120. The Government submit that the following provisions are relevant.

121. 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 to indemnify any damage

     caused by its own acts and measures."

122. 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.

123. 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."

124. 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.).

125. 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.

126. 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).

127. 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.

128. 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.

129. Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

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

Aid and Social Solidarity Fund.

131. 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. 132-137 below):

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

limitations on constitutional safeguards.

133. 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.

134. 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.

135. 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.

136. 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."

137. 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

138. The Commission has declared admissible the applicants' complaints

that in June 1993 State security forces burned their homes, destroyed

their property and forced them to evacuate their village and that they

had no access to court or remedy available to them in respect of these

matters.

B.   Points at issue

139. The points at issue in the present cases are as follows:

     - whether there are valid applications pursuant to Article 25 (Art.

     25) of the Convention;

     - 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;

     - in the case of ismet Asker alone, whether there has been a

     violation of Article 2 (Art. 2) of the Convention;

     - whether there has been a violation of Article 5 para. 1 (Art. 5-3)

     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.

C.   Concerning the existence of valid applications

140. The Government submit that the applications have not been submitted

by the applicants. The evidence shows that they were ignorant of the

contents of their applications and of what was purportedly being done on

their behalf. They point to the fact that ismet Asker stated before the

Delegates that he did not know Sedat Aslantas, who allegedly took his

statement and submit that his description of how he was brought to sign

a petition indicates that he was unaware of its purpose and destination.

Similarly, Keje Selçuk said that she did not know Sedat Aslantas who

purportedly took her statement and the discrepancies contained in that

written statement indicate that the petition was not hers but concocted

by others. Significantly, they submit, the application as initially

introduced before the Commission identified Keje Selçuk as male. The

applications are accordingly invalid, as being fabricated, produced by

influence of the PKK and obtained by deception of the applicants.

141. The Commission notes that ismet Asker did not recognise the name

Sedat Aslantas before the Delegates and that at one point he did not

understand a reference made to the Human Rights Association. However, he

confirmed that a person wrote a petition for him in an office and

referred to choosing Osman as his lawyer. This was in reference to Osman

Baydemir, a lawyer at the HRA present at the hearing before the Delegates

as a representative for the applicants. He also stated that he knew Rozan

Alicioglu, who worked for the HRA. As regards Keje Selçuk, the Commission

recalls that the applicant's lawyers from England, who are non-Turkish

speaking, explained that the error concerning her sex, was a translation

error of the materials sent to them from the HRA. While in answer to

questions by the Government Agent, Keje Selçuk also failed to recognise

Sedat Aslantas and disowned certain parts of the statement written by the

HRA as not according to what she had said, she confirmed that she went

to the HRA to make a statement and that she spoke while they wrote.

142. The Commission considers that there is no basis for finding that the

applicants did not freely go to the HRA or that the petitions submitted

on their behalf do not validly reflect their complaints. Notwithstanding

the discrepancies and apparent inaccuracies in the written petitions, the

substance of the complaints - that security forces burned their homes

and, in the case of Keje Selçuk, her mill, forcing them to leave the

village - were maintained before the Delegates by the applicants, who

showed no unwillingness or reluctance in participating in the

proceedings, the purpose of which was explained to them by the Chairman

of the Delegates.

143. Consequently, the Commission finds that the applications before it

disclose a genuine and valid exercise of the applicants' right of

individual petition under Article 25 (Art. 25) of the Convention.

     Decision

144. The Commission decides, unanimously, to pursue the examination of

the applications introduced on behalf of the applicants.

D.   The evaluation of the evidence

145. 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. It would make a

number of preliminary observations in this respect.

     i. There has been no published detailed investigation or judicial

     finding of facts on the domestic level as regards the events which

     occurred in islamköy village and its surrounding hamlets in the

     period of June 1993 or subsequently. The Commission has accordingly

     based its findings on the evidence given orally before its Delegates

     or submitted in writing in the course of the proceedings; in this

     assessment the coexistence of sufficiently strong, clear and

     concordant inferences or of similar unrebutted presumptions of fact

     and in addition the conduct of the Parties when evidence is being

     obtained may be taken into account (mutatis mutandis, Eur. Court

     H.R., Ireland v. the United Kingdom judgment of 18 January 1978,

     Series A no. 25 p. 65 para. 161).

     ii. In relation to the oral evidence, the Commission has been aware

     of the difficulties attached to assessing evidence obtained orally

     through interpreters (in some cases via Kurdish and Turkish into

     English): it has therefore paid careful and cautious attention to

     the meaning and significance which should be attributed to the

     statements made by witnesses appearing before its Delegates; in

     relation to both the written and oral evidence, the Commission has

     been aware that the cultural context of the applicants and witnesses

     has rendered inevitable a certain imprecision with regard to dates

     and other details (in particular, numerical matters) and does not

     consider that this by itself reflects on the credibility of the

     testimony.

     iii.  The Government have adverted to the vulnerable position of

     villagers from the South-East and to the considerable influence and

     intimidation exerted on them by the PKK, who aim to undermine the

     Turkish State and establish a separate state of their own and who

     do not baulk at kidnapping, torture and murder. The Commission, in

     light of its own increasing experience of the pressure exerted on

     villagers, who face often conflicting demands from terrorists and

     State authorities, sees no reason to doubt that this factor is a

     relevant concern and has taken it into account in its assessment of

     the evidence.

     iv.  In a case where there are contradictory and conflicting

     factual accounts of events, the Commission particularly regrets the

     absence of a thorough domestic judicial examination or other

     independent investigation of the events in question. It is acutely

     aware of its own shortcomings as a first instance tribunal of fact.

     The problems of language are adverted to above; there is also an

     inevitable lack of detailed and direct familiarity with the

     conditions pertaining in the region. In addition, the Commission has

     no compelling powers as regards witnesses. In the present case,

     while 14 witnesses were summoned or called to appear, only 10 in

     fact gave evidence before the Commission's Delegates. Significantly,

     neither of two public prosecutors who were summoned appeared. At the

     taking of evidence, the Government explained that the public

     prosecutor from Lice had no connection with the application; they

     also informed the Delegates that the public prosecutor from Kulp did

     not intend to come since he had nothing to add to the material in

     the case-file. The Government have failed to provide, despite

     repeated requests by the Commission's Secretariat and the

     Commission's Delegates, complete documentary materials relating to

     records of operations and movement of security force personnel  in

     the Kulp district in June 1993 (see paras. 16, 20-21). The

     Commission has therefore been faced with the difficult task of

     determining events in the absence of potentially significant

     testimony and evidence. It acknowledges the unsatisfactory nature

     of these elements which highlights forcefully the importance of

     Contracting States' primary undertaking in Article 1 (Art. 1) to

     secure the rights guaranteed under the Convention, including the

     provision of effective remedies as under Article 13 (Art. 13).

     1. General background

146. The Commission notes that the village of islamköy, a community of

approximately 150 households scattered over a central area and outlying

hamlets, was situated in a mountainous region which was subject to

significant PKK terrorist activity over the period of events adverted to

by witnesses in this case. It appears that the village, due to its

geographical location, was on the route used by the PKK to bring

supplies. The villagers were obliged to lend their mules, if not assist

themselves, in carrying provisions brought by the road further up into

the mountains. The PKK also held meetings, urging co-operation by the

villagers and often called at night looking for food and contributions.

There were a number of incidents in the region, including in or about

1992 the kidnapping and killing of a teacher who was the nephew of

Necmettin Korkmaz, muhtar from the village. However, all the witnesses

were agreed that no burning or attack on the village had taken place

prior to June 1993. There had been village guards in the village but they

had given up by  1991-92, apparently due to the increased pressure and

threat from the PKK. While reference was made to mining of the roads near

the village, in particular by M. Sait Memis, it is not apparent that this

was a problem in June 1993. Celal Seker and Sah Simsek stated that it was

not a problem until later and no other witness mentioned any difficulties

as regarded leaving or returning to the village at this time.

147. The district gendarmerie forces with responsibility for the village

were based in Kulp, under the command at this time of Recep Cömert, a

senior sergeant. He was well-known to all the villagers who gave

evidence. It appears from their evidence that he came to the village with

units of security forces on a number of occasions, either to question or

search or while passing through on operations to be conducted elsewhere.

As regards the frequency of his visits, Recep Cömert stated that during

his period stationed in Kulp (15 July 1991 to 3 August 1993) he visited

the village at most three times. This is contradicted by a number of the

witnesses from the village:  Fatma Asker (he had come many times before);

Nesih Selçuk (regularly, once a week/fortnight); Tevfik Karaaslan (once

every two-three months); Sah Simsek (his evidence, without mentioning

Recep Cömert, gave the impression that security forces were often in the

area). Only Celal Seker stated that he had only seen Recep Cömert on

operations twice, three times. The Commission, having regard to the

difficulties of expression, is satisfied that Recep Cömert visited the

village not infrequently and it is likely that he has understated the

number of visits carried out over a period of more than two years. The

Commission notes that Recep Cömert not only knew the muhtars of the

village, Necmettin Korkmaz and Sait Memis but admitted to knowing ismet

Asker and most of the villagers, which range of acquaintance in a 150

household village would seem remarkable if based on only a handful of

visits.

     2. Events in islamköy on or about 16 June 1993

148. All the village witnesses were agreed that two houses, those

belonging to the applicants, were burned down one day in June 1993. The

evidence as to the circumstances in which this occurred, and in

particular who was responsible, differed between two groups: ismet Asker,

Fatma Asker, Keje Selçuk, Nesih Selçuk and Necmettin Korkmaz attributed

responsibility to the security forces under the command of Recep Cömert,

whereas Sait Memis, Tevfik Karaaslan, Sah Simsek and Celal Seker stated

that it was the PKK who carried out the burning.

149. The Commission has had regard to the Delegates' assessment of the

witnesses who appeared before them. The applicants' testimony was on the

whole consistent and credible, and supported in important details by the

witnesses called on their behalf. Moreover, their demeanour and

comportment were convincing and sincere.

150. The Government have pointed to apparent inconsistencies and

contradictions in the written and oral evidence submitted by and on

behalf of the applicants. For example, the list of burned property in the

purported petition submitted by ismet Asker did not accord with what he

stated at the oral hearing and his oral description of how his house was

set on fire varied: at one point, he stated that the house was on fire

before he ran in to save his belongings; at another point, he said that

it was set on fire when he was upstairs. While the written statements of

the applicants by the HRA referred to soldiers beating people, they point

out that ismet and Fatma Asker and Keje Selçuk denied in their oral

evidence that this occurred. The statement of  Keje Selçuk taken by the

HRA also stated that her children were in the house at the time of the

incident whereas orally she explained that her children were grown up and

lived elsewhere. In addition, Keje Selçuk did not understand Turkish but

claimed to understand what was said to her by Recep Cömert when he burned

her house. Her descriptions of events varied from the accounts given by

Nesih Selçuk and Necmettin Korkmaz, in particular as to what occurred

when the soldiers set fire to her house.

151. Further, the Government submit that the oral testimony of

Nesih Selçuk and Necmettin Korkmaz was full of irreconcilable

contradictions. Inter alia, both claimed to see General Bahtiyar Aydin

arrive in a helicopter on an occasion when Recep Cömert was present. This

was impossible since General Aydin took up his duties in the region on

20 August 1993, whereas Recep Cömert left on transfer on 3 August 1993.

Necmettin Korkmaz also claimed, falsely, to still be the muhtar of the

village whereas Sait Memis had taken over the post by 1989. As regarded

the alleged paper warning villagers to leave ten houses, Necmettin

Korkmaz said that it was signed by Major Ali, then that it was signed by

Recep Cömert. Crucially, he also did not reveal that in fact he was not

in the village on the relevant day, but in Istanbul. These two witnesses

in addition differed on important details of the alleged burning: Nesih

Selçuk said that Recep ordered two privates to pour the gasoline on

Keje's house while Necmettin Korkmaz stated that Recep did it himself.

152. The Commission has examined the points raised by the Government.

As regards the differences between the written statements and the oral

testimonies of the applicants, it has already had occasion to comment

adversely on the accuracy of the written statements taken down in respect

of applicant villagers (see eg. Mentes v. Turkey, No. 23186/94, Comm.

Rep. 7 March 1996 para. 145, pending before the Court and Kurt v. Turkey,

No. 24276/94 Comm. Rep.  5.12.96).  It considers that the differing

details do not detract from the credibility of the applicants' oral

evidence, which maintained the substance of their complaints against the

security forces.

153. In relation to the alleged inconsistencies of the applicants' oral

evidence, the Commission did not find the accounts given by the

applicants to the Delegates to be fundamentally flawed by the points

identified by the Government. As regards ismet Asker's description of how

his house was set on fire, having regard to his age and infirmity and the

traumatic nature of the incident, it is not surprising that the exact

course of events may have been confused in his mind or that he had

difficulty in conveying what occurred. His evidence was, as regarded the

central elements of his story, coherent and convincing and supported by

the testimony of his wife in many details.

154. The Commission notes that Keje Selçuk was animated and voluble in

reply to the Delegate's questions. It does not find that her claim to

have understood the Turkish of the soldiers to be inconsistent. It is

clear that she knew a few basic words, and was interpreting the gestures,

tone and context of what was being said. It finds no material discrepancy

between her account and those of Nesih Selçuk and Necmettin Korkmaz who

also claimed to be  on the scene. While Keje Selçuk and Necmettin Korkmaz

stated that it was Recep Cömert who poured the gasoline whereas Nesih

Selçuk stated that he gave the order to two soldiers to set fire to the

house, it is not apparent that this is necessarily contradictory, the act

of pouring gasoline and setting alight being possibly distinct. Having

regard to the tenor of the evidence as a whole, the Commission finds that

Keje Selçuk's testimony is not discredited as alleged by the Government.

155. In respect of Nesih Selçuk and Necmettin Korkmaz, the Commission

considers that their testimony supports the applicants' complaints in

significant respects. It recalls that the Delegates found them to impress

as credible witnesses and that Necmettin Korkmaz was deeply affected by

the hardship to which he and others in the village had fallen victim

following this period. As regards the credibility of Necmettin Korkmaz

which the Government particularly challenged, the Commission recalls that

he was 79 years of age. Given that he was muhtar for 32 years, it sees

no significance in his apparent claim still to be the muhtar in 1993. In

relation to whether in fact he was present in the village, he explained

that he left for Istanbul in 1993 one or two months after the incident.

While Karaaslan claimed that Necmettin Korkmaz was in Istanbul at the

time of the burning of the two houses, Seker referred to the fact that

at that time Necmettin had adopted a peripatetic lifestyle moving to and

from Diyarbakir and that around the time of the burning, he took his

family away. The Commission is not persuaded that the statements of these

witnesses that Necmettin Korkmaz was absent are based on actual knowledge

rather than assumption or a confusion of dates.

156. Necmettin Korkmaz claimed that he witnessed the visit of

General Bahtiyar Aydin to the village on several occasions, and that one

visit occurred around the time of the burning (he was not sure of the

exact day) when Recep Cömert was also present. The Government have stated

that this allegation is impossible, since, inter alia, Recep Cömert left

his post in Kulp before the General took up his duties in the area. The

Commission requested documents and information relating to the posting

of General Aydin.  The Government have provided a career record which

shows that the General, killed on active service in Lice in October 1993,

officially took up his post in Diyarbakir province on 20 August 1993 and

also copies of correspondence from the General dated 18 and 21 June 1993

from his official post in Ankara, where he was Commander of the

Gendarmerie Schools. It would therefore appear unlikely that General

Aydin was present in the village at the time immediately around the

burning of the applicants' houses.

157. The Commission has given consideration to whether Necmettin

Korkmaz's evidence on this point discloses an indication of

unreliability. The Commission notes that Nesih Selçuk merely referred to

a general, name unknown, arriving in the village on the same day as the

burning of the applicants' houses, and that he was told that this was the

general later killed in Lice. It is conceivable that Necmettin Korkmaz,

who was unsure of the date, and Nesih Selcuk, who had no personal

knowledge of the identity of the officer, are confusing the visit of

another senior officer eg. his predecessor Brigadier General Ugur Çevik,

to the village with later visits to the village by General Aydin.  The

question also arises whether it was at all possible for General Aydin to

have been present in the village before Recep Cömert left the area, and

for him to have been seen by Necmettin Korkmaz who left for Istanbul one

or two months after the burning.  The Commission observes that the fact

that the General took up his post officially from 20 August 1993 does not

exclude any possibility that he was involved in prior activities in the

area in a transitional period  of change of command. Nonetheless, the

Commission finds the evidence of Necmettin Korkmaz, who described his

alleged meetings with General Aydin in firm detail, poses some

difficulties, which must be taken into account in the assessment of the

evidence as a whole.

158. The evidence of the applicants and the witnesses called on their

behalf was contradicted on many key points by the other witnesses from

the village heard by the Delegates. The Commission however finds the

testimony of the villager witnesses Memis, Karaaslan, Simsek and Seker

and the gendarme officer Recep Cömert to be unpersuasive and unreliable.

159. The Commission refers to the following points:

- three of these villager witnesses were from outlying hamlets at some

distance from the applicants' homes in the central village and they did

not purport to witness the incident. They gave evidence to the effect

that they saw smoke, that on visiting the village they found the houses

were burned, that there were no soldiers and that the applicants and

other villagers were blaming the PKK. The fourth, Simsek, lived in the

central village but since he slept out, in hiding, he also did not claim

to witness the burning of the house;

- the testimony of Sait Memis, the muhtar in office, was to the effect

that even though houses had been set on fire, he did not go down to the

central area for two days: this was despite the duties incumbent on his

office and the fact that this was the first incident of this kind. He

explained this was due to a fear for his life. It nonetheless appeared

that there was no particular risk from mines at that time as he alleged

(children in particular were crossing to and from the village without

restriction) and other villagers - Seker and Karaaslan - claimed that

they went to have a look without concern, taking the view that the PKK

were active at night and left at daybreak;

- the testimony of Sait Memis, as regarded events in June 1993, appeared

coloured by the traumatic events which he had experienced later on in or

about April 1994, when the PKK attacked his hamlet Tur in considerable

force, burning the houses and locking the people in the mosque from which

they escaped by breaking down the door. He demonstrated an understandable

antipathy for the PKK and was pre-occupied with threats to his own life

and the effect on the villagers of the activities of the terrorists.

160. The Commission notes that the gendarme officer, Recep Cömert, named

by the applicants and other witnesses as having personally ordered and

participated in the burning of their homes and property, denied these

allegations, stating that he was not in the village in June 1993. He also

stated that his last visit to the village had been in May 1993, yet was

able to give evidence that in August 1993 the mill was still standing.

At another point he said that the mill was dilapidated, partly submerged

in the creek and not in operation. Further, two witnesses, Sait Memis and

Celal Seker, who otherwise supported his denial of involvement, stated

that he had called at the village about ten days after the applicants'

houses were burned and talked to villagers. He also stated that he had

received no report or information about the burning of houses in the

village, although Sait Memis as the muhtar in office at the time stated

that he made the journey to Kulp where he reported the incident to the

district governor and that he reported the burning of the houses to the

district gendarmes, and Recep Cömert in particular. When referred to the

testimony of Necmettin Korkmaz, Recep Cömert stated at one point that the

old muhtar had visited him frequently, informing him about the village

and that they had a good relationship; later, he stated that Necmettin

Korkmaz had only seen him on two or three occasions and he did not

believe that Necmettin Korkmaz would recognise him. The Commission

recalls Recep Cömert's apparent understatement as regards his contacts

with the village (para. 147) and finds that his response to questioning

was, to say the least, guarded and evasive. The extracts of the duty log

of Kulp gendarme station provided by the Government, relating to routine

duties, are not inconsistent with testimony of the applicants and their

witnesses. The extracts do not establish that Recep Cömert was involved

in other duties or in other locations on the dates on which the incidents

in the village occurred. It is also unlikely that operations of the scale

alleged would be recorded in the duty log but would be detailed in

separate operation reports.

161. The Commission has considered the submissions of the Government,

supported variously by the testimony of Recep Cömert, Sait Memis,

Karaaslan, Seker and Simsek as to why the applicants and their witnesses

would lie as regards the circumstances of the burning and why it must

have been the PKK who in fact burned their property. It recalls that

Recep Cömert alleged that he had become a target of PKK propaganda and

had been blamed, falsely, for various outrages because of his role as an

official of the State who carried out his duties effectively. It is also

argued that Keje Selçuk was a  target for the PKK since one of her sons

is an imam, while ismet Asker would have been punished by the terrorists

because his son was doing his military service. Both applicants, and

their witnesses it is alleged, are under pressure from the PKK to lie to

the Commission to support PKK propaganda about the State or are seeking

to obtain financial benefits from their allegations.

162. The Commission does not doubt that the PKK are capable of

retaliating against persons who appear to be co-operating with the State.

Also, it is not disputed that the PKK did make attacks in the area,

burning down about 20 houses in the Tur hamlet the following year.

Nonetheless, ismet Asker and Keje Selçuk, who are "pro-Government", have

maintained that it was the security forces who burned their property in

retaliation for alleged assistance to the PKK. In that regard, while both

were reluctant to admit to have had any contact with the PKK who used to

visit the village, the Commission recalls that ismet Asker lived in an

exposed position on the road used by the PKK at night and his wife

admitted being compelled to give them any food which they asked for. The

Commission finds no indication that their accusations against the

security forces have been fabricated under fear or intimidation of this

organisation, or for the purpose of obtaining compensation. It notes that

ismet Asker complained to the district governor in Kulp within ten days

of the burning (see petition dated 25 June 1993) that his house and

property had been destroyed in an operation, more detailed allegations

being recorded in the HRA statement of 14 July 1993, less than a month

later. Keje Selçuk's complaints against the security forces were also set

down in a statement  by the HRA on 14 July 1993, within a month of

events. As regards ismet Asker's petition to the Governor, the

Commission recalls that the Government reject this as fabricated since

there is no record of such petition being registered nor was ismet Asker

able to give a registration number. The Commission would comment, in

light of other applications (see eg. Eur. Court HR Akdivar and others v.

Turkey judgment 16.9.96 to be published in Reports 1996, para. 20),  that

it cannot be excluded that the district governor failed to process ismet

Asker's petition in any formal manner.

163. Having regard to the evidence as a whole, the Commission accepts the

evidence of the applicants as regards its principal elements. It does not

find the difficulties as regards certain details presented by the

testimony of the applicants and their witnesses to materially undermine

their credibility and reliability, which its Delegates assessed in

generally positive terms. It finds the following facts to be established:

164. Early on the morning of 16 June 1993, a large force of gendarmes

arrived in the village of islamköy. A number of gendarmes, under the

apparent command of Recep Cömert, went to ismet Asker's house. The house

was set on fire, causing the destruction of the property and most of its

contents. ismet Asker and his wife ran inside the house in an attempt to

save some of their possessions: this occurred either just before or while

the gendarmes were setting fire to the house by pouring petrol or

gasoline on to it. It is not established that the house was set on fire

after ismet and Fatma Asker had gone into the house. ismet and Fatma

Asker were forced to leave the house due to the smoke and flames.

Villagers came to see what was happening and were prevented from trying

to put the fire out. A number of gendarmes, including Recep Cömert,

proceeded to the house of Keje Selçuk. Despite her protests, gasoline was

poured on her house, which was set on fire, by or under the orders of

Recep Cömert. Villagers, including Necmettin Korkmaz and Nesih Selçuk,

were prevented from trying to put out the fire. Keje Selçuk's house and

its contents were completely destroyed.

165. ismet Asker and his wife left the village briefly and returned about

10 days later. Keje Selçuk had spent the night or several nights in the

village and then left to stay in Diyarbakir with her daughter. On or

about 26 June 1993, a force of gendarmes arrived in the village; they

were seen on the road near the village and inside the village. The mill

belonging to Keje Selçuk, Nesih Selçuk and others, which stood on a creek

in the village, was set on fire and destroyed. Recep Cömert was seen with

the gendarmes at the mill when this occurred. ismet Asker complained of

the destruction of his home to the district governor in Kulp, presenting

a petition. No steps were taken in response to this petition.

166. Following these events, ismet Asker and his wife moved to live

permanently in Diyarbakir as did Keje Selçuk. The village itself was

abandoned completely by the end of 1994 due to increased PKK activity.

E.   As regards Article 8 (Art. 8) of the Convention and Article 1 of

     Protocol No. 1 (P1-1)

167. Article 8 (Art. 8) of the Convention reads as follows:

     "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."

168. Article 1 of Protocol No. 1 (P1-1) provides:

     "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."

169. The applicants allege that the destruction of their homes by the

security forces and their arbitrary expulsion from their village

constitute violations of the right to respect for their family life and

home, ensured by Article 8 (Art. 8) of the Convention, and disclosed an

interference with the peaceful enjoyment of their possessions, contrary

to Article 1 of Protocol No. 1 (P1-1).

170. The Government maintain that the applicants' allegations against the

security forces are fabricated.

171. The Commission recalls its findings of fact above (para. 164 above)

to the effect that the security forces deliberately destroyed the homes

and property of the applicants, necessitating their moving away from

their village. It finds that this discloses a very serious interference

with the applicants' rights under the above provisions  for which no

justification has been given.

     CONCLUSIONS

172. The Commission concludes, unanimously, that there has been a

violation of Article 8 (Art. 8) of the Convention.

173. The Commission concludes, unanimously, that there has been a

violation of Article 1 of Protocol No. 1 (P1-1).

F.   As regards Article 3 (Art. 3) of the Convention

174. The Commission will now examine whether the interference with the

applicants' home and private and family life 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."

175. The applicants allege that their forced expulsion from their

village, inflicted in the circumstances surrounding the incident, caused

them such severe physical and mental suffering as to constitute inhuman

and degrading treatment contrary to Article 3 (Art. 3) of the Convention.

They refer to the systematic terrorising of villagers and destruction of

villages as a form of collective punishment which is inhuman and

degrading.

176. The Government contend that the allegation is wholly groundless on

the facts, as there were no security operations in the village as

alleged.

177. The Commission recalls its findings above (paras. 164-166). It

considers that the burning of the applicants' homes in their presence

constituted an act of violence and deliberate destruction in utter

disregard of the safety and welfare of the applicants who were deprived

of most of their personal belongings and left without shelter and

assistance and in circumstances which caused them anguish and suffering.

It notes in particular the age and infirmity of the applicant ismet Asker

and the traumatic circumstances surrounding the burning, in which ismet

Asker and his wife were in danger from smoke and flames as they tried to

save their belongings. It recalls that Keje Selçuk pleaded with the

gendarmes, Recep Cömert responding insultingly and pushing her. The

Commission has also had regard to  the difficult personal situation in

which the applicants subsequently found themselves, being deprived of

their own homes in their village and the livelihood which they had been

able to derive from their gardens and fields, and in the case of Keje

Selçuk, the mill of which she was a co-owner. It accordingly finds that

the applicants  have been subjected to inhuman and degrading treatment

within the meaning of Article 3 (Art. 3) of the Convention.

     CONCLUSION

178. The Commission concludes, by 27 votes to 1, that there has been a

violation of Article 3 (Art. 3) of the Convention.

G.   As regards Article 2 (Art. 2) of the Convention

179. The applicant ismet Asker has invoked Article 2 (Art. 2) in that the

security forces knew that he was in the house when it was set on fire and

that this is an indication of a reckless disregard for the protection of

the right to life.

     Article 2 (Art. 2) of the Convention provides, in its first

sentence:

     "1.  Everyone's right to life shall be protected by law."

180. The Commission recalls that it has not found it established that the

security forces set fire to the house after the applicant had run inside

(para. 164 above). It has adverted above in the context of Article 3

(Art. 3) to the traumatic circumstances of the incident where ismet Asker

at risk from smoke and flames tried to save some of his possessions. It

finds no separate element arising in the context of Article 2 (Art. 2)

of the Convention, there being no indication of any deliberate attempt

on the life of ismet Asker, or that he suffered any life-threatening

injury as a result of any recklessness or careless disregard on the part

of the security forces.

     CONCLUSION

181. The Commission concludes, unanimously, that there has been no

violation of Article 2 (Art. 2) of the Convention in respect of the

applicant ismet Asker.

H.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

182. Article 5 para. 1 (Art. 5-1) of the Convention guarantees the right

to liberty and security of person.

183. The applicants allege that they were compelled to abandon their

homes and village in flagrant breach of the right to the exercise of

liberty and the enjoyment of security of person.

184. The Government have not addressed this aspect of the case save

insofar as they deny that any incident occurred.

185. 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).

186. In the present case, neither of the applicants was arrested or

detained, or otherwise deprived of his or her 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 (see eg.

Akdivar and others No. 21893/93 Comm. Rep. 26.10.95 to be published in

Reports 1996).

     CONCLUSION

187. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 1 (Art. 6-1) of the Convention.

I.   As regards Articles 6 para. 1 and 13 (Art. 6-1,13) of the Convention

188. Articles 6 para. 1 and 13 (Art. 6-1,13) 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."

189. 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.

190. The Government contend that the applicants have failed to exhaust

local remedies. They refer in particular to the administrative courts

which have been created to deal with disputes between the individual and

the State, and which may decide in favour of persons in the position of

the applicants, awarding compensation. They have provided a large number

of administrative court decisions illustrating the application of the

principle of "social risk".

191. The Commission refers to its decision on admissibility in the

application of Keje Selçuk No. 23184/94 (see Appendix I to this Report)

where, in the context of Article 26 (Art. 26) of the Convention, it found

that the application raised identical issues to those considered by the

Commission in the case of Akdivar and others (loc. cit., decision on

admissibility, 19.10.94). In Akdivar, the Commission examined the

remedies on which the Government relied as offering effective redress but

concluded:

     "...in the absence of clear examples that the remedies put forward

     by the Government would be effective in the circumstances of the

     present case,... that the applicants are absolved from the

     obligation to pursue them."

192. While there was domestic case-law referred to by the Government

indicating that there might 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 ensure the

protection of citizens from various social risks, the Commission

considered that this case-law was insufficient to demonstrate that

compensation claims were effective remedies in the emergency regions of

South-East Turkey for the destruction of homes and villages allegedly

perpetrated by security forces. The Commission recalls that the Court,

in rejecting the Government's preliminary objection in the Akdivar case,

found that proceedings before the administrative courts would not be

regarded as adequate and sufficient  in respect of the applicant

villagers' complaints of destruction of their homes. In this context, the

Court referred, inter alia, to the fact that there were no examples of

compensation being paid in respect of allegations that houses had been

purposely destroyed by security forces and to the general reluctance of

the authorities to admit that this type of behaviour occurred. The Court

was further not satisfied that a determination could be made in the

course of administrative proceedings concerning their claim that their

property was destroyed by members of the gendarmerie (Eur. Court HR

Akdivar and others v. Turkey judgment of 16 September 1996 to be

published in Reports 1996).

193. 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 civil

rights, as in the present case (mutatis mutandis, Eur. Court H.R., de

Geouffre de la Pradelle judgment of 16 December 1992, Series A no. 253-B,

p. 43, para. 34).

194. The Commission finds that there are 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. It notes that there has been no example

given to the Commission of compensation paid to a villager in respect of

the destruction of a house by the security forces nor any example of a

successful, or indeed any, prosecution brought against a member of the

security forces for any such act.

195. In the present cases, the Commission recalls that an investigation

was opened into the applicants' allegations pursuant to the communication

to the Government of the applications. The Commission asked, on repeated

occasions, for the investigation file to be provided.  A relatively small

number of documents was provided. On the basis of these, it appears that

the investigation was limited and inconclusive. Enquiries were confined

to taking statements from the applicants and enquiring from the

gendarmerie if an operation had taken place in the village on 16 June

1993. No steps were taken to seek information from the  alleged

perpetrators of the burning or from other villagers who might have

witnessed events. The investigation concluded on 30 November 1994 with

a decision of lack of jurisdiction. The text of the decision stated that

the matter concerned allegations of damage to property occurring in the

winter months of 1993 during an intensive clash between the security

forces and the PKK, concluding that since it appeared that the security

forces were involved in the course of their administrative duties,

jurisdiction lay with the administrative council. Since neither applicant

in their statements referred to a clash with the PKK and the date of the

burning was indicated by them as being in the summer of 1993 and,

further,  no document in the file, or elsewhere, refers to any operations

in the village leading to damage to property, the Commission finds this

decision to be a remarkable document.

196. The Commission has not been informed of any outcome of the

proceedings before the Administrative Council which had jurisdiction

transferred to it more than three years ago. The Commission considers

that the unsatisfactory nature of the investigation processes disclosed

in these cases supports its finding that complaints that security forces

have destroyed villagers' houses do not in practice receive the serious

or detailed consideration necessary for any prosecution to be initiated.

Where the allegations concern the security forces, which enjoy a special

position in the emergency area in the south-east, the Commission

considers that it is unrealistic to expect villagers, who are in a

vulnerable and insecure position in the circumstances pertaining in that

region, to pursue theoretical civil or administrative remedies in the

absence of any positive findings of fact by the State investigatory

mechanism.

197. 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.

198. 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

and relating to their subsequent personal difficulties. 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 (paras. 194-196),

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

199. The Commission concludes, by 26 votes to 2, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

200. The Commission concludes, by 26 votes to 2, that there has been a

violation of Article 13 (Art. 13) of the Convention.

J.   As regards Articles 14 and 18 (Art. 14,18) of the Convention

201. 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."

202. 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.

203. The Government have not addressed these allegations beyond denying

the factual basis of the substantive complaints.

204. The Commission has examined the applicants' allegations in the light

of the evidence submitted to it, but considers them unsubstantiated.

     CONCLUSIONS

205. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention.

206. The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention.

K.   Recapitulation

207. The Commission decides, unanimously, to pursue the examination of

the applications introduced on behalf of the applicants (para. 144)

208. The Commission concludes, unanimously, that there has been a

violation of Article 8 (Art. 8) of the Convention (para. 172 above).

209. The Commission concludes, unanimously, that there has been a

violation of Article 1 of Protocol No. 1 (P1-1) (para. 173 above).

210. The Commission concludes, by 27 votes to 1, that there has been a

violation of Article 3 (Art. 3) of the Convention (para. 178 above).

211. The Commission concludes, unanimously, that there has been no

violation of Article 2 (Art. 2) of the Convention in respect of the

applicant ismet Asker (para. 181 above).

212. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 187

above).

213. The Commission concludes, by 26 votes to 2, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 199

above).

214. The Commission concludes, by 26 votes to 2, that there has been a

violation of Article 13 (Art. 13) of the Convention (para. 200 above).

215. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention (para. 205 above).

216. The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention (para. 206 above).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                    (Or. English)

             PARTLY DISSENTING OPINION OF N. BRATZA

     For substantially the reasons given in my separate opinions in other

cases involving the destruction of villages in South-Eastern Turkey

(notably Akdivar and Others and Mentes and Others) I see the essential

problem in these cases is concerned not with the right of access to court

but rather with the effectiveness of the remedies available (including

court remedies) under domestic law in the particular circumstances

prevailing in that part of Turkey.  While thus agreeing with the

essential reasoning of the majority of the Commission in paragraphs 194 -

196 of the Report, I voted in favour of a violation of Article 13 and

not of Article 6 of the Convention.

                                                   (Or. français)

    OPINION PARTIELLEMENT DISSIDENTE DE M. I. CABRAL BARRETO

     A mon très grand regret, je ne puis partager l'avis de la majorité

de la Commission en ce qui concerne la violation des articles 3 et 13 de

la Convention, et cela pour les motifs suivants :

Article 3 - A l'instar des affaires Akdivar et Mentes, je reste persuadé

que les mesures prises par les forces de sécurité, à savoir la

destruction par le feu des habitations appartenant aux requérants,

doivent être considérées dans le contexte de la situation prévalant dans

la zone, la lutte contre les membres du PKK et la tentative "d'assécher

l'eau du poisson".

     Je considère ces mesures comme une sorte de sanction, les forces de

sécurité étant convaincues de l'aide apportée par les requérants au PKK

; je note à cet égard que seules les maisons appartenant aux requérants

ont été brûlées et non tout le village.

     Je ne saurais donc souscrire qu'avec difficulté à l'opinion que les

mesures en cause, quoique objectivement graves, visaient l'humiliation

ou l'avilissement des requérants.

     C'est pourquoi, je me borne à considérer qu'il y a eu violation des

articles 8 de la Convention et 1 du Protocole N° 1.

Article 13 - Eu égard à la constatation de violation relative à l'article

6, je ne crois pas nécessaire de me placer de surcroît sur le terrain de

l'article 13.

 

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