EUROPEAN COMMISSION OF HUMAN RIGHTS
Applications Nos. 23179/94, 23180/94, 23181/94 and 23182/94
Emine Y_lmaz, Mizgin Ovat, Halit _ahin and Rabia Dündar
against
Turkey
REPORT OF THE COMMISSION
(adopted on 9 September 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-31)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-26)1
C.The present Report
(paras. 27-31)4
II.ESTABLISHMENT OF THE FACTS
(paras. 32-154)6
A.The particular circumstances of the case
(paras. 33-40)6
B.The evidence before the Commission
(paras. 41-134)7
1.Documentary evidence
(paras. 41-86)7
2.Oral evidence
(paras. 87-134)15
C.Relevant domestic law and practice
(paras. 135-154)23
III.OPINION OF THE COMMISSION
(paras. 155-230)27
A.Complaints declared admissible
(para. 155)27
B.Points at issue
(paras. 156-157)27
C.Concerning the existence of valid applications
(paras. 158-168)28
Decisions
(para. 169)30
D.The evaluation of the evidence
(paras. 170-189)30
E.As regards Articles 3 and 8 of the Convention and
Article 1 of Protocol No. 1
(paras. 190-196)34
CONCLUSIONS
(paras. 197-199)35
F.As regards Articles 6 para. 1 and 13 of the Convention in respect of the applicant Ovat
(paras. 200- 214)35
CONCLUSIONS
(paras. 215-216)39
G.As regards Articles 14 and 18 of the Convention
(paras. 217-220)39
CONCLUSIONS
(paras. 221-222)40
H.Recapitulation
(paras. 223-230)40
PARTLY DISSENTING OPINION OF MRS G.H. THUNE AND
MR M.A. NOWICKI41
APPENDIX I:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23179/9442
APPENDIX II: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23180/9449
APPENDIX III:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23181/9457
APPENDIX IV:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23182/9464
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 Güldiken in the Lice district of Diyarbak_r province, apart from the applicant _ahin who resides in the village of Ça_da_ in the same district. They were born in 1935, 1973, 1962 and 1953 respectively. They were represented before the Commission by Mr 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 A. Gündüz.
4.The applicants complain of a raid on the village of Güldiken by State security forces in June 1993 during which their property was destroyed. They invoke Articles 3 and 14 of the Convention and Article 1 of Protocol No. 1. Furthermore, Articles 8 and 18 of the Convention are invoked by the applicants Y_lmaz, Ovat and Dündar, Article 6 by the applicants Ovat and Dündar, Article 5 by the applicant Dündar, and Article 13 by the applicant Ovat.
B.The proceedings
5.The applications were introduced on 20 December 1993 and registered on 7 January 1994, apart from Application No. 23179/94 (Y_lmaz) which was registered on 11 January 1994. As regards Application No. 23181/94, the applicant's name was given as Ali _ahin. However, the letter of authority was signed by a Halit _ahin. The applicants' representatives were requested to clarify this matter.
6.On 5 April 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of Applications Nos. 23181 (_ahin) and 23182/94 (Dündar) to the respondent Government and to invite the parties to submit written observations on their admissibility and merits. The same decision was taken on 9 May 1994 in respect of Applications Nos. 23179 (Y_lmaz) and 23180/94 (Ovat).
7. On 14 July 1994 the applicants' representatives informed the Commission that the applicant in Application No. 23181/94 was in fact called Halit _ahin and that the name Ali _ahin arose from a mistake by the person in Turkey who had recorded the applicant's original statement.
8.The Government's observations in Applications Nos. 23179 (Y_lmaz), 23180 (Ovat) and 23181/94 (_ahin) were submitted on 5 December 1994 after one extension of the time-limit fixed for this purpose. The applicants replied on 13 February 1995 in the case of Application No. 23180/93 (Ovat) and on 27 February 1995 in the case of Applications Nos. 23179 (Y_lmaz) and 23181/94 (_ahin).
9. As regards Application No. 23182/94 (Dündar), 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.
10. The Commission declared Application No. 23180/94 (Ovat) admissible on 3 April 1995. Applications Nos. 23179 (Y_lmaz) and 23181/94 (_ahin) were declared admissible on 15 May 1995.
11. At the same time as the texts of the Commission's decisions on admissibility were sent to the parties they were invited to submit such further information or observations on the merits as they wished. In Application No. 23182/94 (Dündar) the Government submitted observations on 27 January 1995.
12. On 9 September 1995 the Commission decided to take oral evidence in respect of the applicants' allegations. It appointed three delegates for this purpose: Mr G. Jörundsson, Mrs J. Liddy and Mr G. Ress. It notified the parties by letter of 13 September 1995, proposing certain witnesses and requesting the Government to identify the commander(s) of the security forces in operation in the area at the relevant time and the Public Prosecutors of Lice and Kulp who had started an investigation into the alleged incident following the communication of Application No. 23182/94 (Dündar). The Government were also requested to provide the contents of the investigation files relating to the alleged incident including those to which reference was made in the Government's observations on Application No. 23182/94 (Dündar).
13. By letter dated 13 October 1995 the applicants' representatives requested that one further witness, the business partner of applicant _ahin, be heard.
14. On 2 November 1995 the Government provided the name of the commander of the security forces and of the Lice and Kulp Public Prosecutors.
15. By letter of 16 November 1995 and 16 February 1996 the Commission again requested the Government to submit copies of the investigation files.
16. On 13 March 1996 summonses were sent to the applicants and witnesses to be heard by the Delegates. Copies of the summonses to the applicants and the witnesses whose attendance had been requested by the applicants were sent to the Diyarbak_r branch of the Human Rights Association.
17. On 16 March 1996 the Government submitted the contents of the investigation file concerning the applicant Dündar. The investigation file documents concerning the applicants Ovat, _ahin and Dündar were submitted on 19 March 1996.
18. On 2 April 1996 the applicants' representatives informed the Commission that the applicant Ovat had married and that her husband would not allow her to attend the hearing. That day the summons which had been issued to this applicant was returned to the Commission on the basis that the address was incomplete. The summons issued to the applicant Dündar was returned on 3 April 1996 for the same reason.
19. Evidence was heard by the Delegates of the Commission in Ankara on 16 and 17 April 1996 from the applicant Y_lmaz, Taha Y_lmaz (son of the applicant Y_lmaz), K_ymet Uvat (sister of the applicant Ovat), Özcan Küçüköz and Ahmet Karakaya (Public Prosecutors) and Nevzat Ar_k (commander of the security forces in Lice district). Before the Delegates the Government were represented by Mr A. Gündüz, Agent, assisted by Ms. A. Emüler, Ms. T. Toros, Mr A. _ölen, Mr A. Kurudal, Mrs B. Pekgöz, Ms. S. Emina_ao_lu, Mr A. Kaya and Mr C. Aydin. The applicants were represented by Mr K. Boyle, counsel, assisted by Ms. C. Nolan, Mr M. _akar, Mr O. Baydemir and Ms. D. Deniz (interpreter). A map of the area where the alleged incident was said to have taken place was submitted by the Government during the hearings.
20. On 22 May 1996 the Commission decided to invite the parties to present their written conclusions on the merits of the cases, following transmission to the parties of the verbatim record of the hearing.
21. On 24 May 1996 the summonses which had been issued to the applicant _ahin and the witness Behçet Aksoy were returned to the Commission on the basis that they were no longer at the addresses indicated.
22. By letter of 30 July 1996 the Government submitted supplementary observations in Application No. 23180/94 (Y_lmaz), appending two documents.
23. On 23 August 1996 the applicants' representatives submitted their final observations on the merits. On 10 September 1996, after an extension of the time-limit, the Government submitted their final observations.
24. On 13 September 1996 the Commission granted the applicant Y_lmaz legal aid for the representation of her case.
25. On 9 September 1997 the Commission decided to join the four applications.
26.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
27.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:
MrS. TRECHSEL, President
MrsG.H. THUNE
MrsJ. LIDDY
MM.E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. ŠVÁBY
G. RESS
A. PERENI_
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELI_NAS
E.A. ALKEMA
MrsM. HION
MM.R. NICOLINI
A. ARABADJIEV
28.The text of this Report was adopted on 9 September 1997 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.
29.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.
30.The Commission's decisions on the admissibility of the applications are annexed hereto as Appendices I - IV.
31.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
32. The facts of the case, particularly concerning events on or about 23-25 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 Güldiken (Pecar)
33.The village in which the alleged events took place has been referred to in documents and by witnesses as both Güldiken and Pecar. As with many of the villages in the South-East, it has an older, Kurdish or Ottoman name (Pecar) and a newer, official Turkish name (Güldiken). For the sake of convenience, the report refers throughout to the latter, which it appears is the name of official usage.
a.Facts as presented by the applicants
34. The various accounts of events as submitted in written 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.
35. On 23 June 1993 an attack by the PKK was carried out on Üçdamlar (Kurdish name: Bowert) Gendarme Station. In the wake of this attack, security forces carried out a follow up operation in pursuit of the PKK members who had attacked the station. This operation incorporated the villages in the surrounding area, including Sa_göze and Güldiken.
36. On 24 June 1993 security forces, led by Captain Nevzat Ar_k, burned the houses and belongings of the inhabitants of Güldiken, including those belonging to Emine Y_lmaz, Mizgin Ovat and Rabia Dündar and a van belonging to Halit _ahin. During this incident the men in the village were severely beaten. The villagers were forced to leave Güldiken, many barefoot, to seek shelter elsewhere.
b.Facts as presented by the Government
37. In their written observations on the merits of the applications the Government submit that it appears from the oral evidence and the other material before the Commission that, even assuming that valid applications have been made, the applicants have failed to prove their allegations. In their observations on the admissibility they submitted that no terrorist attack on Üçdamlar Gendarme Station had been carried out on 23 June 1993, that no armed clash had taken place between PKK terrorists and security forces in Güldiken on 23 or 24 June 1993 and that they had received no information of any houses or vans having been destroyed in Güldiken on 24 June 1993.
38. In their observations on the admissibility of Application No. 23180/94 (Ovat), the Government further stated that at about 09.00 hours on 23 June 1993 a team of gendarmes was trapped and fired at by terrorists while they were climbing G_ld_ri_ hill in order to keep watch. One gendarme was killed. The terrorists fled away when other gendarmes in armoured vehicles came to the rescue of the trapped team. A search was carried out, lasting all day, which resulted in the body of one terrorist being found.
2.Proceedings before the domestic authorities
39. Halit _ahin's statement to the Diyarbak_r branch of the Human Rights Association (paras. 72-75) was accompanied by a copy of a document which he alleged was a request submitted to the Lice First Instance Court by the co-owner of his van, Behçet Aksoy, for assessment of the damage to the van. However, the Government deny that Behçet Aksoy applied for an establishment of evidence or brought an action for damages before the Lice courts. No further information as to these proceedings has been provided.
40. Following the communication of the applications by the Commission to the respondent Government, three preliminary investigations were opened by the Lice Public Prosecutor's office, one of which concerned the allegations of both Halit _ahin and Rabia Dündar. In view of the fact that the accusations of the applicants concern members of the security forces, in all three investigations a decision of lack of jurisdiction was issued in accordance with Article 4.i of Decree no. 285. The investigations were subsequently referred to the Lice District Administrative Council where Gendarme Lieutenant Colonel M. Asaf Gökçek was appointed as investigator on 4 April 1995. No further details concerning these investigations having been submitted, the Commission must assume that they are still pending.
B.The evidence before the Commission
1.Documentary evidence
41. The parties submitted various documents to the Commission. These included reports drawn up in the course of the investigation on the domestic level into the applicants' allegations and statements from the applicants concerning their version of the events in the case.
42. The Commission had particular regard to the following documents:
a.Official documents concerning Application No. 23179/93 (Y_lmaz)
i.Letter dated 6 January 1995 from a Kulp Public Prosecutor to the Kulp District Gendarme Headquarters
43. In this letter the Kulp District Gendarmerie is requested to investigate the allegations made by Emine Y_lmaz to the Diyarbak_r branch of the Human Rights Association.
ii.Letter dated 16 January 1995 from Kulp District Gendarme Headquarters to the Public Prosecutor's Office at Kulp
44. In this reply to the letter mentioned in para. 43, the Public Prosecutor's Office is informed that the location of the alleged incident falls outside the Kulp District Gendarmerie's area of responsibility.
iii.Decision of lack of jurisdiction (ratione loci) of 23 January 1995
45. This decision, issued by a Public Prosecutor at Kulp, Ahmet Karakaya, lists as accused of the offences of misconduct while on duty as a public officer, ill-treatment and threatening of persons and setting fire to houses, Recep Cömert, former Commander of the Kulp District Gendarmerie, Nevzat Ar_k, Commander of the Lice District Gendarmerie, and soldiers attached to Üçdamlar Gendarme Station. Since the alleged events did not take place in Kulp district, the Public Prosecutor's office there did not have jurisdiction and the investigation was referred to the Public Prosecutor's office at Lice.
iv.Decision of lack of jurisdiction (ratione materiae) of 6 March 1995
46. This decision was taken by a Public Prosecutor at Lice, Özcan Küçüköz. It names the same defendants as the decision of 23 January 1995 (para. 45), but the offences of which they are accused are ill-treatment of persons and setting fire to houses. It states that from the examination which has been conducted it has transpired that the investigation of the actions of the officers about whom the complaints were made fall within the scope of Article 4.i of Decree no. 285 and that for that reason the investigation is referred to the District Administrative Council.
b.Official documents concerning Application No. 23180/94 (Ovat)
i.Handwritten report dated 24 June 1993 drawn up by six members of the Gendarmerie belonging to Üçdamlar Gendarme Station
47. This document was submitted as an appendix to the Government's observations on the admissibility of the application. It states that an armed combat took place at about 09.00 hours on 23 June 1993 when PKK terrorists opened fire on a team from Üçdamlar Gendarme Station consisting of a private and a corporal under the command of an expert sergeant as they were climbing _dri_ hill. At the same time the Üçdamlar Gendarme Station was held under harassing fire. Reinforcements set out in armoured vehicles from Üçdamlar Gendarme Station to support the ambushed team upon which the terrorists escaped to the north-east, firing at short intervals in order to divert the attention of the reinforcements. One gendarme corporal was wounded at the scene and died later. The report describes what kind of guns and ammunition had been used and relates that a number of empty Kaleshnikov cartridges were found. In the course of the search which continued throughout the day, one person identified as a terrorist was found dead.
ii.Letter dated 12 August 1994 from the Diyarbak_r Public Prosecutor's Office to the Lice Public Prosecutor's Office
48. In this letter the Lice Public Prosecutor's Office is requested to commence an investigation into the allegations which are the subject of Mizgin Ovat's application to the Commission, to ascertain whether and why Ovat has moved to Diyarbak_r and whether she is involved with the PKK terrorist organisation, and to ascertain the composition of her family.
iii.Letter dated 13 October 1994 from Gendarme Captain _ahap Yaral_ of Lice District Gendarme Headquarters to the Lice Public Prosecutor's Office
49. In reply to a letter from the Lice Public Prosecutor's Office, Yaral_ writes that in 1993 numerous attacks were carried out by the PKK terrorist organisation on Güldiken village and that the PKK covered all their food needs from the village. On 1 July 1993 the PKK set fire to the village and destroyed animals following which the villagers left the area. The letter goes on to say that Mizgin Uvat (sic) also left and that no information had been received as to her whereabouts.
50. As an appendix to the letter a handwritten record is enclosed which contains the same information as the letter and is signed by the Commander of Üçdamlar Gendarme Station, an Expert Gendarme Sergeant and by Hanifi Sala, muhtar (mayor) of Güldiken.
iv.Letter dated 18 October 1994 from Lice Public Prosecutor to the Diyarbak_r Public Prosecutor's Office
51. The Diyarbak_r Public Prosecutor's Office is requested to summon Mizgin Ovat in order for her to state her complaint and evidence in connection with the incident.
v.Letter dated 10 November 1994 from Lice Public Prosecutor to the Diyarbak_r Public Prosecutor's Office
52. In this letter the Diyarbak_r Public Prosecutor's Office is informed of the continuation of the investigation. The Lice Public Prosecutor writes, inter alia, that in a reply dated 13 October 1994 received from the District Gendarme Headquarters (see para. 49) it was stated that no such incident had taken place.
vi.Letter dated 23 May 1995 from Lice Public Prosecutor to the Diyarbak_r Public Prosecutor's Office
53. A Lice Public Prosecutor, Özcan Küçüköz, informs the Diyarbak_r Public Prosecutor's Office of the results of the investigation carried out at their request. He states, inter alia, that it has proved impossible to obtain information about Mizgin Ovat or her whereabouts and that according to the District Registry Office there was nobody registered under the name of Ovat. The Diyarbak_r Public Prosecutor's Office is finally informed that a decision of lack of jurisdiction has been taken and that the investigation has been transferred to the District Administrative Council.
vii.Decision of lack of jurisdiction (ratione materiae) of 23 May 1995
54. This decision is appended to the letter of 23 May 1995 (para. 53). It was issued by Lice Public Prosecutor Özcan Küçüköz and indicates that the security forces are accused of having committed the offences of ill-treatment of persons, the killing of animals and setting fire to houses on 24-25 June 1993. It states that from the examination which has been conducted it has transpired that the investigation of the actions of the officers about whom the complaints were made falls within the scope of Article 4.i of Decree no. 285 and that for that reason the investigation is referred to the District Administrative Council.
c.Official documents concerning Applications Nos. 23181 and 23182/94 (_ahin and Dündar)
i.Letter dated 4 May 1994 from Diyarbak_r Public Prosecutor to the Lice Public Prosecutor's Office
55. In this letter the Lice Public Prosecutor's Office is asked whether Ali _ahin (sic) and Rabia Dündar have brought their allegations to the attention of the authorities and, if not, the Public Prosecutor's Office is requested to commence an investigation.
ii.Letter dated 9 May 1994 from Lice Public Prosecutor to the Diyarbak_r Public Prosecutor's Office
56. The Lice Public Prosecutor Özcan Küçüköz writes that enquiries have established that Ali _ahin (sic) and Rabia Dündar did not submit any complaints to the Public Prosecutor's Office, but that an investigation has been opened.
iii.Letter dated 7 June 1994 from Gendarme Captain _ahap Yaral_ of Lice District Gendarme Headquarters to the Lice Public Prosecutor's Office
57. In reply to a letter from the Lice Public Prosecutor's Office, Yaral_ states that on 24-25 June 1993 no operation of any kind was carried out by the Gendarme Headquarters on Güldiken village and neither were any houses or a van burned.
iv.Decision of lack of jurisdiction dated 21 February 1995
58. This decision, issued by Lice Public Prosecutor Özcan Küçüköz, lists as complainants Ali (Halit) _ahin (sic) and Rabia Dündar, as defendants the security forces, and as offence the setting fire to a house and a van. It states that it has transpired from the examination which has been conducted that the investigation of the actions of the officers about whom the complaints were made falls within the scope of Article 4.i of Decree no. 285 and that for that reason the investigation is referred to the District Administrative Council.
d.Official documents concerning Application No. 23180/94 (_ahin)
Letter dated 22 December 1994 from Lice Public Prosecutor to the Diyarbak_r Public Prosecutor's Office
59. In this letter Lice Public Prosecutor Özcan Küçüköz states in respect of the allegation that Ali _ahin's (sic) van was burned by soldiers in Güldiken that examination of the court's records has established that _ahin's business partner Behçet Aksoy did not apply for an assessment of damage.
e.Official documents concerning Applications Nos. 23180 and 23182/94 (Ovat and Dündar)
i.Letter dated 13 May 1996 from the Director of the Lice District Registry Office to the Lice Public Prosecutor's Office
60. In reply to a query made by the Lice Public Prosecutor's Office the Director of the Registry Office encloses with this letter a copy of the family register of Mehdin Uvat, registered at No. 81, Güldiken village. This copy has not been submitted to the Commission. The letter goes on to say that, as regards Rabia (Lamia) Dündar (sic), the examination of the District Registry did not reveal an entry for a person with such a surname.
ii.Letter dated 14 May 1996 from a Public Prosecutor to the Ministry of Justice (International Law and External Relations General Directorate)
61. It appears that this letter was sent in reply to a request from the Ministry of Justice of 2 May 1996. The letter encloses a copy of the family register concerning Nergis Uvat, registered at Güldiken village. This copy has not been submitted to the Commission. The letter goes on to say that according to the District Registry Office there is no entry concerning Lamia (Rabia) Dündar (sic).
f.Official documents concerning all four applications
i.Letter dated 20 March 1995 from the Office of the Administrative Council of the Lice District Governor's Office to the Provincial Governor's Office
62. The letter refers to the investigations conducted by the Lice Public Prosecutor's Office and their referral to the Lice District Governor's Office. Permission is requested for the appointment of an investigator. This letter was submitted by the Government in all four applications, despite the fact that the decision of lack of jurisdiction in Application No. 23180/94 (Ovat) was not taken until 23 May 1995 (para. 54)
ii.Letter dated 3 April 1995 from a Gendarme Senior Colonel of the Diyarbak_r District Gendarme Headquarters to the Diyarbak_r Provincial Governor's Office
63. While referring to the letter of the Lice District Administrative Council of 20 March 1995 (para. 62), the author recommends that Gendarme Lieutenant Colonel M. Asaf Gökçek be appointed as investigator. This recommendation was approved by the Provincial Governor on 4 April 1995, vide a note at the bottom of the letter.
g.Statements by the applicants
i.Emine Y_lmaz' statement dated 3 August 1993 taken by Sedat Aslanta_ of the Diyarbak_r branch of the Human Rights Association
64. Emine Y_lmaz used to live in the village of Çotuk (Kurdish name: Ma_tak). On 8 December 1992 that village was visited by security units from Kulp who ordered the inhabitants to leave the village under threat of force. Emine Y_lmaz and her family went to Güldiken where they moved into the house of a relative who was residing elsewhere. On 10 December 1992 Ma_tak was destroyed in an aerial bombardment.
65. One month after having settled in Güldiken, security forces commanded by Nevzat Ar_k came from Lice District Gendarme Station and arrested Emine Y_lmaz' sons Taha and Abdullah. When they were released after five days they showed obvious signs of torture. However, they could not afford any medical treatment.
66. Around 17.00 hours on 23 June 1993 Emine Y_lmaz and her husband were travelling from Diyarbak_r to Güldiken on the minibus service run by Naif Akgül when the vehicle was stopped by soldiers about 500 metres from Üçdamlar Gendarme Station. All the passengers were told to get off the bus. They made Naif Akgül drive the minibus about 500 metres before forcing him to set fire to it. Then Naif Akgül and five people from Sa_göze village were arrested. Emine Y_lmaz, her husband and a number of other people from Güldiken walked the two kilometres to the village. As they inferred that the village was going to be raided, all the young people left Güldiken that evening.
67. At around 06.00-07.00 hours on the morning of 24 June 1993 about 500-600 soldiers from Lice District and Diyarbak_r Province Gendarme Stations effected an operation on the 200-household village of Güldiken. They first went to the house of the village muhtar Abdülvasih Tekay and forced Naif Akgül, whom they had brought with them, to set fire to this house. They sent 100-150 soldiers to each of the four neighbourhoods of the village and burned down and destroyed the houses. When they came to Emine Y_lmaz' house they took her husband and beat him and threatened him for some time in front of the house. They collected all the goods in the three roomed house into one room without allowing the family to take anything out, poured petrol over the property and set it alight. After they had burned the whole house, the Lice District Gendarme Headquarters Commander Nevzat Ar_k told Emine Y_lmaz and her husband and daughter that this time they had only burned their house but that next time they would kill all of them. When the soldiers were heading for other houses, Emine Y_lmaz and a few other women hid in the irrigation channel a few metres further on.
68. In the meantime the soldiers were forcing the old men in the village to lie face down on the ground and were beating them with rifle butts. The soldiers installed themselves in the village for two or three days. Those villagers able to flee did so. Emine Y_lmaz, her husband and her daughter walked to another village and, after staying there for a few days, continued to Diyarbak_r where they settled in the house of her married daughter.
ii.Mizgin Ovat's statement dated 24 July 1993 taken by Sedat Aslanta_ of the Diyarbak_r branch of the Human Rights Association
69. As soon as the sun had risen on 24 June 1993, 500-600 soldiers connected to Lice and Diyarbak_r Gendarme Stations carried out a raid on the 200 household village of Güldiken. The reason was an armed attack carried out by PKK guerillas on the Gendarme Station in the Üçdamlar hamlet of Güldiken on 23 June 1993. After that attack, on the evening of 23 June 1993, security forces set fire to the minibus belonging to Naif Akgül.
70. As soon as the soldiers entered Güldiken they set fire to the van of Behçet Aksoy. At about 08.00 hours they blockaded the whole village. They ejected Mizgin Ovat and her family from their house. They poured petrol over the house and set fire to it. They fired indiscriminately right and left. The soldiers ill-treated the men in the village. They collected all villagers, i.e. women, girls, children, etc., next to the irrigation channel which runs through the centre of the village and started to burn down the houses. Women and children started to cry and were threatened by the soldiers. They threw themselves into the irrigation channel from fear and waited there for hours.
71. Mizgin Ovat's family consists of seven persons (father Muhittin, mother Ay_e, sister Sema, brothers Ciyan, Habip and M.Can and herself). Their house was burned down on 25 June 1993 after which the family was told by the soldiers to leave the village. They fled to another village and from there to Diyarbak_r. They were able to save two cows from their animals, whereas one goat and nearly twenty chickens were slaughtered and eaten by the soldiers.
iii.Halit _ahin's statement dated 2 July 1993 taken by Sedat Aslanta_ of the Diyarbak_r branch of the Human Rights Association
72. In this statement the applicant's name is given as Ali _ahin.
73. On 25 June 1993 he went to Güldiken to load poplar wood. At around 10.00 hours, soldiers and commandos connected to the Lice Gendarme Station organised a raid on the village. As a clash had broken out between soldiers and guerillas in neighbouring villages the day before, the inhabitants of Güldiken knew that the soldiers would raid their village. For this reason, they were leaving the village, especially the men. On the day of the incident _ahin was in Güldiken with his business partner Behçet Aksoy and two other men. There were also about 40 women in the village. As soon as the soldiers entered the village, they started to fire indiscriminately and set light to and demolish the houses. _ahin and his companions wanted to flee but could not as there was nowhere they could flee to. When the soldiers saw them, they started to beat them, hitting them with their rifle butts.
74. The soldiers then set fire to his van and burned it despite his pleas. A week later he went back to the village to fetch his vehicle which was completely burned out. He has suffered 120,000,000 Turkish Liras in material damages.
75. When _ahin made this statement he was accompanied by Behçet Aksoy and one of the other villagers who stated to have witnessed the burning of the van. They said that the person who had assaulted them the most was the commander of the soldiers, Captain Nevzat Ar_k.
iv.Rabia Dündar's statement dated 29 July 1993 taken by Sedat Aslanta_ of the Diyarbak_r branch of the Human Rights Association
76. At around 05.00 hours on 24 June 1993 a raid was carried out on the 200 household village of Güldiken by around 600 soldiers and Special Team members from Lice and Diyarbak_r Gendarme Stations. Rabia Dündar's house was surrounded by 25 soldiers at around 06.00 hours and she, her husband and their eight children were besieged in their own house. The security forces, who were under the command of Captain Nevzat Ar_k, took them all out of the house by the arm and refused to let them take anything with them. All the contents of the house were then put into one room, petrol was poured onto them and they were set alight. During the fire, the soldiers said to the family: "You help terrorists, if the terrorists are fish in water, then you represent the water, and we shall kill the fish by drying up the water".
77. After their house had been burned down, Rabia Dündar and her family moved to Diyarbak_r where they rented a two-roomed house.
h.Statements by other persons
Hanifi Sala
Undated statement
78. The record of this statement was submitted with the Government's observations on the admissibility of Application No. 23180/94 (Ovat). The statement was taken by two gendarme sergeants from Üçdamlar Gendarme Station; it is signed by them as well as by Hanifi Sala, the muhtar of Güldiken.
79. Hanifi Sala stated that he knew the former muhtar of Güldiken, Abdülvasih Tekay, who was now living in Diyarbak_r at an address unknown to Sala. He did not know Ali _ahin, but he knew Emine Y_lmaz and Mizgin Ivat (sic). Y_lmaz and Ivat used to live in the Çiftlik hamlet of Güldiken, but Sala did not know where they had gone following the evacuation of the village due to migration. He did know, however, that Mizgin Ivat was wanted for draft evasion. He further stated that the State provided aid per household for the people emigrating from the village.
80. Sala denied that there had ever been a raid on the village in 1992 or any other year, but in December 1992 terrorists had set fire to Çotuk hamlet. Sala confirmed that Naif Akgül used to run a minibus service between Güldiken and other villages in the district but Akgül had left after the villagers migrated. Sala had no information about whether or not Akgül's minibus had been put on fire.
81. Asked whether there had been any clashes in Güldiken village or its hamlets in June 1993, Sala said that there had been no clashes between the security forces and the terrorists in Güldiken and that he had not heard of or seen a vehicle being set on fire.
Behçet Aksoy
Statement dated 1 July 1993
82. This document, which was submitted with Application No. 23181/94 (_ahin), is headed "To the offices of the judge of the Lice court of first instance" and allegedly constitutes a request for the determination of evidence.
83. On 25 June 1993 Behçet Aksoy took his van to Güldiken to transport poplar wood. While in the village, a group of gendarmes came to Güldiken and started to burn some of the houses and his van.
84. Behçet Aksoy submits that he is unable to work now that his van has burned out. For this reason he requests that a determination of the damage be carried out in preparation for the case which he intends to open.
Sariye Uvat
Statement dated 5 August 1993 taken by the Diyarbak_r branch of the Human Rights Association in the context of Application No. 23186/94 (Mente_ and others v. Turkey, Comm. Rep. 7.3.96, para. 59, currently pending before the Court)
85. At about 06.00 hours on 25 June 1993, approximately 400 soldiers from the Lice Gendarme Headquarters organised a raid on the Piroz hamlet of Sa_göze village. The villagers in the hamlet had heard about a raid on Pecar (Güldiken) village one day before.
Selahattin Can
Statement dated 10 July 1995 given before the Commission's Delegates in the context of Application No. 23186/94 and contained in the Commission's Report of 7 March 1996 (Mente_ and others v. Turkey, loc. cit., paras. 95-99).
86. On 25 June 1993 Selahattin Can was visiting an uncle in Sa_göze. At about 07.00-08.00 hours soldiers surrounded the village and told the villagers to go to the area near the school. One or two days before this visit, the terrorists had apparently carried out a raid on the Gendarme Station at Üçdamlar village and this was the reason for the operation in the village. A colonel said to the villagers that terrorists had been there and asked where they had gone.
2.Oral evidence
87. Of the applicants, only Emine Y_lmaz gave evidence before the Commission's Delegates at the hearing in Ankara. The Delegates were informed that Mizgin Ovat had married since the introduction of the application and that her husband did not allow her to testify. Although Halit _ahin had apparently confirmed to his representatives that he would attend the hearing he did not appear. It furthermore appeared that the representatives had had difficulties in contacting Rabia Dündar who was said to have moved to another region after having married. She also did not appear. No further explanations for Halit _ahin's and Rabia Dündar's failure to attend have been provided.
88. Nor did it prove possible to ensure the appearance of all the other persons summoned by the Delegates to be heard during the hearing in Ankara.
89. Behçet Aksoy, the business partner of Halit _ahin, failed to attend without providing an explanation. Similarly, Abdülvasih Tekay and Hanifi Sala, respectively the muhtar of Güldiken at the time of the alleged incident and his successor, did not appear. In respect of the latter, the Government submitted that the summons had been sent to his address but that he was not there.
90. The evidence of six witnesses heard by the Delegates may be summarised as follows:
i. Emine Y_lmaz
91. Emine Y_lmaz said that she was born in 1935. Her evidence was somewhat confusing as it was not always clear whether she was describing events in Çotuk or Güldiken.
92. She had moved from the village of Çotuk, where she had lived most of her life, three to four months prior to the alleged events. One evening, while she had still been living in Çotuk, helicopters had circled the mountains around the village and she and her family had gone to Güldiken. The next day, from Güldiken, she had seen how helicopters and jets had bombarded Çotuk. Her house and all her belongings had been destroyed. In Güldiken she had moved into a house, which was more like a shed, which had been made available by the State to a person called Abdülkerim following an earthquake in 1975. Abdülkerim had moved away; the household goods in the house belonged to him. The house was situated in the _emezi neighbourhood of Güldiken village.
93. One evening in June 1993, as she and her husband had been returning from Diyarbak_r to Güldiken, the bus they were travelling on had been stopped by soldiers near Üçdamlar Gendarme Station. The passengers had been told to get out of the bus. The driver and four other passengers had been beaten up and then put back into the vehicle upon which the bus had been taken away and set alight. The five people had been taken into custody and tortured. She had learned about this afterwards from the driver who was called Hüseyin. Hüseyin ran the bus service together with Naif Akgül. Emine Y_lmaz and her husband had been forced to walk to Güldiken, but the soldiers had told the men present that they would be coming to Güldiken the next morning. When they had informed the Güldiken muhtar, Abdülvasih Tekay, of this upon their return he had said that the soldiers must have been joking. She denied that any of the men had left the village that night as a precaution.
94. The next day, at sunrise, a large number of soldiers she had been unable to count had come to Güldiken in helicopters, armoured personnel carriers and jeeps. Although she said that the soldiers had assembled the women, she later said that initially they had thought a search was going to be carried out, which was a regular event, but when they had realised that something bad was happening they had hidden in the irrigation channel. The men, even the young ones, had been made to lie on the ground and had been beaten and kicked. Afterwards, her husband had been covered in blood. She had witnessed the muhtar being beaten very hard.
95. The houses in the village had been burned by the soldiers. She had not actually seen the house she was staying in being set alight. Although she had not recognised any of the soldiers, people had told her that one of them was a Sergeant Mustafa and another one, the Commander of the Gendarme Station, was Nevzat.
96. About two hours before evening prayer the inhabitants of Güldiken had fled while the soldiers had stayed on and had taken up positions in the village. She and her family had gone to Lice where they had moved into a shed. In the first month of autumn Lice had been burned down and the family had moved to Diyarbak_r. After that they had gone to Adana.
97. Following the incident in Güldiken they had taken her husband to hospital. However, the hospital had not taken him in but had only put some stitches in his leg and some plasters on his groin, forehead and hands.
98. She said that her sons had been taken into custody and tortured a number of times; it was not clear, however, when this had occurred. Asked if there was a reason for her sons to be singled out, she said she thought someone had gone and complained to the State to spread gossip. She said that Güldiken had not cooperated with the PKK. She had never seen or heard of the PKK setting fire to a village or a neighbourhood where village guards lived. There has been no village guards in Güldiken. Security forces would often come to Güldiken to search the houses.
ii.Özcan Küçüköz
99. Özcan Küçüköz stated that he had been a Public Prosecutor at Lice from the middle of January 1994 to the end of July 1995. He had carried out an investigation into the alleged burning, in June 1993, of houses and a van in Güldiken village. These allegations had come to his attention after the complainants had filed petitions with the Commission. He had been unable to find the complainants, despite the fact that warrants had been issued to the police authorities. In respect of Mizgin Ovat he had been informed by Captain _ahap Yaral_ that she had left Güldiken and could thus not be brought to the Public Prosecutor's Office.
100. Due to security reasons nobody had visited Güldiken to ascertain what might have happened in June 1993. He had not been in contact with either Abdülvasih Tekay or Hanifi Sala.
101. As to the reason for the involvement in one of the cases of a Kulp Public Prosecutor, Ahmet Karakaya, he said that the documents may have been sent to Kulp by mistake, the boundaries of Güldiken village not having been clearly understood. Since Güldiken lay within Lice district, the documents would have been sent to the Lice Public Prosecutor's Office following a decision of non-jurisdiction (ratione loci) by the Kulp Public Prosecutor.
102. He had not spoken to either Recep Cömert, Nevzat Ar_k or any of the soldiers at Üçdamlar Gendarme Station who were indicated as the defendants in the documents. During the time he had been in Lice, they had no longer been in office there. Neither had he investigated where they had gone, since he had concluded that, pursuant to Article 4 para. i of Decree No. 285, it was the Lice District Governor who had jurisdiction in the matter. In any event, he would have needed permission from the Ministry of Justice to interview officers with the ranks of Recep Cömert and Nevzat Ar_k. Thus, decisions of non-jurisdiction (ratione materiae) had been issued in order to avoid losing time.
103. He had entered into correspondence with the security forces and he had been informed that no security operation had taken place in Güldiken on or around 23-24 June 1993. By letter of 13 October 1994 Captain _ahap Yaral_ had informed him that on 1 July 1993 the PKK terrorist organisation had set fire to Güldiken. Since this was in contradiction with the allegations under investigation, a decision of non-jurisdiction was delivered so that the incident could be examined more thoroughly. In the event of the PKK burning down a village, the security forces would often collect initial evidence on behalf of the Public Prosecutors. If there was no suspect, a decision of non-jurisdiction would be taken and the file would be transmitted to the State Security Courts. He could not remember whether an investigation was opened into the allegation that the PKK had burned down Güldiken on 1 July 1993, but it was possible that such a file had been received by the other Public Prosecutor in Lice.
104. As for security reasons the Public Prosecutors never left Lice during his term of office there, it was possible for a village to burn down and its inhabitants to migrate to Lice without a Public Prosecutor hearing about this. However, hearing of an incident like that would be enough reason for a Public Prosecutor to start an investigation.
105. He had no information as to the subsequent investigations carried out by Lieutenant-Colonel Gökçek who had been appointed investigator in the proceedings before the Lice District Administrative Council.
iii.Nevzat Ar_k
106. Nevzat Ar_k said that he was born in 1957. In June 1993 he had been Commander of Lice District Gendarme Headquarters. He had held that post from 1 July 1991 to 18 August 1993. Üçdamlar Gendarme Station was one of the stations under his command. It was situated approximately 28 kilometres from Lice and six kilometres to the south of Güldiken. He described the terrain there as generally mountainous and steep. In 1993 there had been very intensive PKK activity.
107. He had been told that some months before his arrival in Lice a few hamlets belonging to Güldiken village had been burned by the PKK because village guards had been living there. During his posting there Güldiken had no longer been a guard village. He had had good relations with the village and in particular with the muhtar, Abdülvasih Tekay, whom he called his friend.
108. He remembered that on a day in June 1993 PKK terrorists had attacked the Üçdamlar Gendarme Station and a gendarme had been killed. He had set off from Lice to bring reinforcements but they had been ambushed along the way. A clash lasting three to four hours had ensued during which another gendarme had been killed. He did not remember any incident with a minibus that day. After the clash they had abandoned their vehicles and walked four hours cross-country to reach the Gendarme Station. That had been their only aim at that time. The roof of the building had been set on fire, making radio communication impossible, and they had been very worried. For this reason they had not chased the terrorists after the clash, although they had recovered the body of a terrorist killed in the clash. His commanding officers, who arrived from Diyarbak_r, Mu_ and Bingöl the next day, had said that an operation would be planned later in order to eliminate and catch the terrorists.
109. He had expected another attack to take place that night and therefore he had positioned his men in the hills surrounding the Gendarme Station. He did not know anything about a minibus being set on fire by security forces.
110. An operation to find the terrorists had in fact been carried out at a later date. He could not remember the exact date but it had not been the day after the attack on the Gendarme Station. During this operation the security forces had skirted Güldiken and had had a look at a few houses on the outskirts of the village. They had gone to the village in land rovers. He had not had any armoured vehicles at that time and they would not have been able to make it up to Güldiken anyway. Any helicopters would have landed at the Gendarme Station as there was no place flat enough to do so near Güldiken. No houses had been set on fire. Any strangers in the village had been taken for questioning by his squad commanders and released but nobody had been taken into custody.
111. He initially estimated that it had been at the end of July 1993 when the muhtar had come to him in Lice District Gendarme Headquarters and had told him in secret that a few days previously the PKK had burned a number of houses in Güldiken. However, when confronted with the letter of _ahap Yaral_ in which it is said that Güldiken had been burned by terrorists on 1 July 1993, he said that the muhtar must have come to him five or six days after that date. As the muhtar had not formally complained about the incident he had not commenced an investigation. A few days later he had visited the muhtar on his way through Güldiken when he had been on an operation but he had not seen any burned houses. According to the muhtar the burned houses had been situated outside the village. The muhtar had been unable to show him these houses as he had been afraid to be seen with him as this might have been reported to the PKK who subsequently might have killed him for passing on information to the authorities. It had not been dangerous, however, for Abdülvasih Tekay in his official capacity of muhtar to let gendarmes come into his house.
112. He denied that Naif Akgül had set fire to the muhtar's house at his orders. He did not know Halit _ahin and said that his soldiers had not burned the van belonging to _ahin and his partner. Furthermore, there could be no question of the gendarmes beating anybody.
113. There were 52 villages and about 100 hamlets in the Lice district. During his time there all the villages, including Güldiken, had been inhabited although a few hamlets had been evacuated as a result of terrorist raids. He did not know whether Güldiken had been evacuated after he had left the area. Upon his departure, he had handed his post over to Captain _ahap Yaral_.
iv.Taha Y_lmaz
114. Taha Y_lmaz stated that he was born in 1970 and that he was the son of Emine Y_lmaz. In November 1992 the family had left the village of Çotuk where they had been living as an air operation had been carried out. They had moved to Güldiken.
115. On 27 March 1993 he had been arrested with 41 other people, including the village muhtar, Abdülvasih Tekay, by the commander of Lice Gendarme Station, Nevzat Ar_k. They had been told that they had been aiding and sheltering the organisation. Although the PKK used to come and go to the village, there had been no collaboration with them and no one from the village had joined them. That day, all the villagers had been assembled and, in front of the mosque, Ar_k had sworn to kill all of them if any bullets were fired at the Gendarme Station.
116. He said that it must have been 12 or 13 June when the village had been destroyed. The day before he had heard gunfire between 08.00 and 09.00 hours. At about 03.00 or 04.00 hours he had seen soldiers from Üçdamlar Gendarme Station, which was about two kilometres away, in the area behind the village. The soldiers used to come most days to have a look around. That day, his parents had been to Diyarbak_r and upon their return they had told him that the minibus they had been travelling on had been stopped as it had been coming up to the Gendarme Station. The male passengers had been beaten and the bus had been set alight. Furthermore, the soldiers had said that they would be coming to the village the next day. Remembering Nevzat Ar_k's threat, he and six others, including his two younger brothers, had left the village that night. At that time it was the mowing and lentil season and most of the men of working age had not been present in the village.
117. They had gone to Ça_layan, three kilometres from the Kulp boundary. He had been able to see Güldiken village and the road into the village from where he was. When the sun had risen the next morning, at about 07.30 or 08.00 hours, he had seen 100 to 150 military vehicles entering the village. There had also been five or six helicopters which had landed on small hills close to the village. He had heard mortars and volleys of gun fire and he had seen smoke and flames rising from the village until about midday.
118. After the burning he had seen at least 500 Güldiken villagers leaving the village. They had asked to stay there but the soldiers had told them to go. The people had had animals with them which they would sell on the road. Some people had not been wearing shoes because they had panicked when the soldiers had entered the village. He had seen that the women were crying and the men were upset.
119. He had walked to the Kulp road and had taken a bus to Lice from there. In Lice he had met up with his father. His father's nose had been broken and he had been hit all over his body with a big stick. He had been told that his father had been tortured in the Gendarme Station because he was the father of three terrorists. Afterwards two young men had taken his father to a tarmac road from where a bus had taken him to Lice. He had taken his father in his van to hospital in Diyarbak_r, but the doctor at the emergency department had said that there was nothing wrong with his father.
120. He had then returned to Güldiken in his van, but as the Güldiken road had been blocked by soldiers he had taken the Ça_layan village road from Kulp. From there it was a four kilometre walk to Güldiken, no vehicles being able to drive along that road. All of the people from Güldiken had gathered there, including his mother and brothers.
121. After the day of the burning he had returned to Güldiken to collect the scrap metal of the two vehicles that had been half-burned. One of them had belonged to Behçet Aksoy and Halit, whose surname he did not know, and the other one to Naif and Hüseyin. Permission had been given by the Gendarme Station for the poplar trees to be cut down and sold and he had also gone to the village to collect them. He had gone to the village two or three times. In the village, the upper parts of the houses belonging to the poor people, which were built of clay and roofed with logs, had been burned although the walls were still standing. Only the muhtar's house was partly made of concrete and those parts had escaped destruction, even though the furniture and belongings inside the house had been burned.
122. The muhtar had been on good terms with the State. Tekay had been the only educated man in the village. He confirmed that he knew Hanifi Sala, who had been a villager at that time, and that Sala had been in the village on the day of the burning.
123. He denied that the PKK had ever burned hamlets or villages in that area. There had been village guards living in Gelberi in 1988, but they had laid down their arms.
v.Ahmet Karakaya
124. Ahmet Karakaya said that he was born in 1965. He had been a Public Prosecutor in Kulp from 1 July 1994 to 3 August 1995.
125. In respect of the decision of non-jurisdiction ratione loci of 23 January 1995 (para. 45) he explained that the Ministry of Justice had informed him that Emine Y_lmaz had alleged that gendarmes attached to Lice district had caused incidents in Güldiken. In order to establish exactly where this village was located he had sent a letter to the gendarmerie and he had been informed that Güldiken belonged to Lice district. For that reason he had issued a decision of non-jurisdiction ratione loci and had transferred the investigation to the Public Prosecutor's Office in Lice.
126. He explained that once a Public Prosecutor established that he had jurisdiction ratione loci, he would then have to investigate his jurisdiction ratione materiae. Pursuant to Article 4 para. i of Decree no. 285 he would not have such jurisdiction if an alleged incident was connected to an act committed by a civil servant who was on duty, or, if the incident occurred when the civil servant was not on duty, if it had been committed in connection with the civil servant's function. The investigation would then be transferred to the District or Provincial Administrative Council. However, this would only be so if the allegations concerned the administrative duties of the security forces. If the complaints concerned their judicial duties the Public Prosecutor was entitled to prosecute directly on the grounds of abuse of power while on duty.
127. In order to ascertain whether or not he had jurisdiction ratione materiae, a Public Prosecutor could take certain investigatory measures but this would not actually constitute an investigation into the validity of the complaints. Plaintiffs, witnesses and accused might be interviewed. To interview security force personnel with a certain rank, permission of the Ministry of Justice would be required pursuant to the Law of High Council of Judges and Prosecutors which also applied to high ranking police officers, such as District Gendarme Commanders like Nevzat Ar_k, but not to Gendarme Station Commanders like Recep Cömert.
128. If Nevzat Ar_k had committed a common crime involving a traffic incident whilst he was not on duty, the law concerning the prosecution of civil servants would not apply and the Public Prosecutor would have jurisdiction. However, in view of Nevzat Ar_k's rank, permission would still have to be obtained from the Ministry of Justice.
129. When a decision of non-jurisdiction ratione materiae had been made and the investigation had been transferred to the District Administrative Council, an investigator would be appointed who would conduct a preliminary investigation. He would prepare a report to be submitted to the District Administrative Council. The Council would then have to decide whether or not to prosecute. This decision could be appealed to the Regional Administrative Court and from there to the Council of State.
vi.K_ymet Uvat
130. The hearing of this witness was requested by the applicants' representatives who said that she was the sister of the applicant Mizgin Ovat. It appeared from her identity card that her family name was spelled Uvat, that her father's name was Mehdin and her mother's name Ay_e.
131. K_ymet Ovat stated that she was born in 1969 and that she was an elder sister of Mizgin Ovat. Mizgin had two names and was also called Nergiz. Her father's name was Muhittin or Metin and her mother's name was Ay_e. She was living in the same house as her parents and her youngest sister, Sema, in Diyarbak_r. Asked if she had a younger brother she said that she did and that he was called Mehmet Can. Her sister Mizgin had married a year and three months previously and had gone to live in _stanbul about five months later. Mizgin's husband had not allowed his wife to give evidence before the Delegates. However, they used to discuss her application and Mizgin used to say that she would win her case.
132. She was born in Güldiken village and had been there when the incident happened in June 1993. She had been living in the house of her uncle, being married to her uncle's son, but that house adjoined the house of her father's and there was a connecting door. While they had been tending their animals at 07.00 hours in the morning and as they had come out of their house they had noticed smoke coming from another neighbourhood. Her brother and his friends escaped from the village when they saw the smoke. Within half an hour the village had been surrounded by soldiers and they had been told to leave. They had run away and had hidden in the irrigation channel for four hours. Only a few men had tried to stay but they had been beaten and had to be carried away on the backs of the women. The muhtar had been beaten badly as well. They had not been able to rescue anything. Helicopters had landed on a field opposite their house and on the hills. She had seen her house being set on fire.
133. They had left the village when the soldiers were still in the vicinity and had walked across wheat fields to another neighbourhood. From there they had gone to another village 35 kilometres away. She had been with her mother and their elder sister. Although she initially said that they had not been allowed to take their animals, she later stated that some other people had managed to take a goat or a sheep or a cow and that they had taken their one surviving cow. Some of the women had returned to Güldiken the following night to see what had happened. They had found that the soldiers, who had left at that stage, had eaten some of their animals.
134. A small incident had taken place at the nearby Üçdamlar Gendarme Station one month previously but not at the same time as the attack on Güldiken. She denied that any place had been burned down in the area before the incident, but also said that a week prior to the burning of Güldiken a village of which Abdülvasih Tekay was also muhtar had been burned down by soldiers.
C.Relevant domestic law and practice
135. In their observations on the admissibility of Application No. 23182/94 (Dündar) the Government submit that an unlawful act, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation brought before the civil or the administrative courts. Such compensation will be requested primarily from a civil court which will collect evidence of the damage, study the unlawfulness of the act and, if adequate causality is found between the act and the damage, will decide to grant compensation. The amount of compensation is closely related to the degree of fault of the perpetrator, to the effect that more compensation is granted where the act has been committed wilfully or with intent than if the damage was caused through mere negligence.
136. In their decision whether or not to grant compensation, the civil courts are independent from the criminal courts. Compensation may still be granted even if the criminal courts acquit the alleged perpetrator of the crime. Furthermore, the prosecution of the alleged perpetrator and the request for compensation may run concurrently.
137. If the alleged unlawful act has been committed by State officials, civil servants or if the damage has been the outcome of an administrative act, compensation may be requested from the administrative courts.
138. No further separate submissions with regard to domestic law and practice have been made by the parties. The Commission has incorporated part of 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).
139. The Government submit that the following provisions are relevant.
140. 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."
141. 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.
142. 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."
143. The Turkish Criminal Code makes it a criminal offence
-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.).
144. 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.
145. 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).
146. 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.
147. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
148. 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. 149-154 below):
149. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.
150. 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.
151. 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.
152. 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.
153. 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."
154. 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. 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.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
155. The Commission has declared admissible the applicants Y_lmaz', Ovat's and Dündar's complaints that in June 1993 State security forces burned their homes, destroyed their property and forced them to evacuate their village, the applicant _ahin's complaint that State security forces assaulted him and destroyed his van, the applicant Dündar's complaint of a lack of security of person, the applicants Y_lmaz', Ovat's and Dündar's complaint of lack of respect for their home, the applicant Ovat's and Dündar's complaint that they had no access to court and the applicant Ovat's complaint that she had no effective remedy in respect of her complaints, the applicants' complaint that they have been subject to discrimination, and the applicants Y_lmaz', Ovat's and Dündar's complaint that their experiences disclosed restrictions on Convention rights for ulterior purposes.
B.Points at issue
156. The points at issue in the present case are as follows:
- whether the applicants Ovat, _ahin and Dündar have lodged valid applications pursuant to Article 25 of the Convention;
- whether, to the extent relevant in the light of that decision,
- there has been a violation of Article 3 of the Convention in respect of all four applicants, of Article 8 of the Convention in respect of the applicants Y_lmaz, Ovat and Dündar, and of Article 1 of Protocol No. 1 in respect of all four applicants;
- there has been a violation of Article 5 para. 1 of the Convention in respect of the applicant Dündar;
- there has been a violation of Article 6 para. 1 of the Convention in respect of the applicants Ovat and Dündar and of Article 13 of the Convention in respect of the applicant Ovat;
- there has been a violation of Article 14 of the Convention in conjunction with any of the provisions invoked in respect of all four applicants, and of Article 18 of the Convention in respect of the applicants Y_lmaz, Ovat and Dündar.
157. The Commission notes that in their final observations on the merits, all four applicants invoke all of the above provisions. The Commission considers, however, that it can only examine the merits of complaints insofar as they have been declared admissible (para. 155).
C.Concerning the existence of valid applications
158. The Government submit that the applications 23180 (Ovat), 23181 (_ahin) and 23182/94 (Dündar) have not been submitted by the applicants. In view, inter alia, of the fact that none of these three applicants appeared at the hearing before the Delegates in Ankara the Government doubt whether the applicants ever went to the Diyarbak_r branch of the Human Rights Association to file a complaint.
159. The Government further point to the facts that the name Mizgin Ovat could not be found in the population registry of Güldiken, that it was only during the hearing that it emerged that this applicant's real name was in fact Nergiz Uvat, that people in Turkey do not have one official and one informal name, and that contrary to the applicant in her statement to the Human Rights Association, her sister, K_ymet, did not mention that she had two brothers called Ciyan and Habip. Moreover, in her statement to the Human Rights Association the applicant had not mentioned having a sister called K_ymet.
160. In respect of the applicant _ahin the Government had already protested about the alleged changing of this applicant's first name when they submitted their observations on the admissibility of the application. In their final observations they again submit that this application was based on a statement which a person called Ali _ahin had allegedly given to the Human Rights Association. The Lice Public Prosecutor tried in vain to find Ali _ahin. Furthermore, the name on the letter of authority submitted in this case was also Ali _ahin, but the first name had noticeably been changed to Halit by changing the capital A to a small letter A and adding the letter H to the beginning and the letter T to the end of the name. Moreover, the Government submit that the signatures appearing on the statement made to the Human Rights Association and on the letter of authority are irreconcilably different.
161. As regards the application of Rabia Dündar, finally, the Government argue that no one with that surname appears in the population registry of Güldiken and that law enforcement officials failed to find her. Moreover, according to the statement purportedly made by Rabia Dündar to the Human Rights Association on 29 July 1993, she was married and had eight children, whereas her absence from the hearing was explained by her representatives by the fact that Rabia Dündar had moved away from the region after having married.
162. The Commission has previously had occasion to remark critically on the accuracy of statements taken by the Diyarbak_r branch of the Human Rights Association (see Sükran Ayd_n v. Turkey, No. 23178/94, Comm. Rep. 7.3.96, para. 176, currently pending before the Court; and Mente_ and others v. Turkey, loc. cit., para. 166). In the cases at issue, the Commission notes the regrettably confused manner in which in particular the applications of Mizgin Ovat and Halit _ahin have been presented. In order to avoid any confusion over the spelling of names or even the identity of applicants it would have been preferable if the applicants' statements taken by the Human Rights Association had been accompanied by copies of the applicants' identity cards.
163. Nevertheless, the Commission notes that according to Mizgin Ovat's sister, K_ymet, the applicant was interested in the application (para. 131). Moreover, even if K_ymet Uvat did not name Ciyan and Habip as her brothers it is important to note that she only gave the name of Mehmet Can when she was asked whether she had a younger brother (para. 131). It would further appear likely that when the applicant described the members of her family she omitted her sister K_ymet as the latter was married and from the moment of her marriage was considered as belonging to the family of her husband with whom she was living (para. 132). Although it is true that K_ymet Uvat told the Delegates that she had been with her elder sister on the day of the alleged incident (para. 133) whereas she also said that she, K_ymet, was the eldest sister (para. 131), the Commission does not find it unreasonable to accept that K_ymet Uvat meant to indicate Mizgin, being the elder of K_ymet's younger sisters. Finally, it appears from a document submitted by the Government that a person by the name of Nergis Uvat was registered as living in Güldiken village (para. 61).
164. As regards the validity of the application of Halit _ahin, the Commission recalls that the Government raised this issue already in their observations on the admissibility of his application. In its decision on admissibility, the Commission accepted that the application was in reality introduced on behalf of Halit _ahin. However, in light of the applicant's failure to appear before the Delegates, without having provided any explanation for his absence, the Commission has re-examined this decision.
165. The Commission notes that the signatures appearing on the statement made to the Human Rights Association and on the letter of authority appear to be different. By not appearing before the Delegates Halit _ahin thus deprived the Commission of the opportunity to put questions to him regarding this matter and to be provided with a number of sample signatures. It does, furthermore, appear that the applicant's representatives have not been in contact with him for some time. Thus, the summons issued to him on 13 March 1996 was returned to the Commission on the basis that the applicant was no longer living at the address which had been provided by his representatives who have also not been able to provide an explanation for his absence at the hearing which took place one and a half years ago.
166. Similarly, no direct evidence for the existence of Rabia Dündar or the fact that she has filed an application has been put forward. The Commission's considerations made in respect of Halit _ahin concerning his absence from the hearing and the apparent lack of contact with his representatives are equally valid as regards the applicant Dündar. Moreover, the Commission attaches relevance to the information that there was no entry for a person with such a surname in the Güldiken population registry (paras. 60, 61).
167. The Commission finds that sufficient doubt has been cast on the validity of the applications nos. 23181 and 23182/94 to justify a decision that the complaints brought in the name of Halit _ahin and Rabia Dündar should not be considered.
168. In the light of its considerations above (para. 163) the Commission is, however, of the opinion that there is no basis for finding that the applicant Ovat did not go to the Human Rights Association or that the petition submitted on her behalf does not validly reflect her complaints. Consequently, the Commission finds that the application 23180/94 before it discloses a genuine and valid exercise of the applicant Ovat's right of individual petition under Article 25 of the Convention.
Decisions
169. The Commission decides, by a majority vote,
- not to consider the complaints brought in the names of Halit _ahin and Rabia Dündar;
and, by a unanimous vote,
- to pursue the examination of the application insofar as the applicant Mizgin Ovat is concerned.
D.The evaluation of the evidence
170. 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) of the Convention. It would make a number of preliminary observations in this respect.
i.It is the Commission's task to establish the facts, and in doing so the Commission will be dependent on the cooperation of both parties. In cases, such as the present one, where the applicants claim to have been eye-witnesses to the events of which they complain, they are also important witnesses in their own case. However, the applicant Ovat did not appear before the Commission's Delegates to give evidence. Whatever the reasons for her failure to appear may have been, it is clear that her absence from the proceedings affects to a considerable extent the possibilities of the Commission to establish the facts beyond reasonable doubt.
ii.There has been no published detailed investigation or judicial finding of facts on the domestic level as regards the events in Güldiken village 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 HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).
iii.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.
1. General background
171. The Commission notes that the village of Güldiken is situated in a mountainous area which was subject to significant PKK terrorist activity in 1993 (Nevzat Ar_k, para. 106). Taha Y_lmaz told the Delegates that PKK members would come and go to Güldiken village but that nobody from Güldiken had collaborated with or joined the ranks of the PKK (para. 115). According to _ahap Yaral_, who, however, had not yet taken up his post as Lice District Gendarme Commander at the relevant time, the PKK used to obtain food from Güldiken (para. 49). Emine Y_lmaz said that the security forces regularly came to search their houses (paras. 94, 98). Taha Y_lmaz also spoke of an incident in March 1993 when 42 villagers were arrested and told by the then Lice District Gendarme Commander Nevzat Ar_k that they were aiding and sheltering terrorists (para. 115). It appears that at the relevant time there were no village guards in Güldiken (Emine Y_lmaz para. 98, Nevzat Ar_k para. 107), but Nevzat Ar_k said that the PKK had burned down three hamlets belonging to Güldiken some time before he had taken up his post in July 1991 because there had been village guards there (para. 107).
172. By all accounts the Güldiken muhtar, Abdülvasih Tekay, had good relations with the security forces, Nevzat Ar_k even describing him as a friend (para. 107). According to Ar_k, the muhtar was in a delicate position, passing on information about the PKK to him in secret but making sure that he would not be seen with the security forces in public since somebody could report this to the PKK which might make him one of their targets (para. 111). Although Taha Y_lmaz said that Abdülvasih Tekay had been present when Nevzat Ar_k had threatened the villagers in March 1993 (para. 115), he also considered that the muhtar had been on good terms with the State (para. 122).
173. The picture which emerges is one of a village caught between the State and the PKK; on the one hand the villagers might be seen by the security forces as aiding and sheltering terrorists, on the other hand they feared the PKK if they appeared too friendly with the authorities.
174. Having regard to the written and oral evidence before it, the Commission considers that Güldiken was evacuated by its inhabitants but that it is not possible to establish the exact date of this event. The applicants maintain it occurred on 24 June 1993, or in any event the day after the incident at Üçdamlar Gendarme Station. _ahap Yaral_, in his letter to the Lice Public Prosecutor's Office, wrote that the village had been evacuated one week later, i.e. on 1 July 1993 (para. 49). Yet his predecessor, Nevzat Ar_k, who had been the Commander of the Lice District Gendarmerie on both 24 June and 1 July 1993, was adamant that Güldiken had still been inhabited when he left his post in August 1993 (para. 113). This contradiction in the accounts of two members of the security forces undermines, in the Commission's view, the reliability of the evidence provided by at least one of them.
2. Concerning the alleged events around Üçdamlar Gendarme Station and Güldiken village on 23 June 1993
175. The Commission notes that it is the applicants' contention that the events of which they complain came about as a result of an attack by the PKK on Üçdamlar Gendarme Station on 23 June 1993. They submit that security forces conducted a follow up operation which incorporated the villages of Sa_göze and Güldiken (para. 35).
176. It is recalled that in its Report on the merits of Application No. 23186/93 (Mente_ and others v. Turkey) the Commission found that there was sufficient evidence before it to indicate that it was events in Üçdamlar which probably caused the visit of gendarmes to the village of Sa_göze on 25 June 1993 (loc. cit., para. 173). Although the Commission sees no reason to deviate from that finding, it observes that the exact nature of those events has not been clarified and that it is confronted with conflicting and diverging statements in this regard.
177. Based on the similarities of the accounts contained in, on the one hand, the report dated 24 June 1993 by six gendarmes from Üçdamlar Gendarme Station and, on the other, the statement made by Nevzat Ar_k before the Delegates, the Commission considers it safe to assume that both relate to the same incident which took place on 23 June 1993. Thus, they both mention that one gendarme was killed and that the body of a dead terrorist was found (paras. 47 and 108). Whereas Nevzat Ar_k said that Üçdamlar Gendarme Station had been attacked, the Commission notes that the Government, relying in their observations on the admissibility of Application No. 23180/94 (Ovat) on the gendarmes' report mentioned above, denied that the Gendarme Station had been attacked. They submitted that it had been gendarmes from Üçdamlar Gendarme Station who had come under attack when they were climbing a hill in the area and that a clash had ensued (para. 38). It would appear, however, that the report in question does refer to the Üçdamlar Gendarme Station also being attacked.
178. Whatever the exact course of events, the Commission accepts that the Üçdamlar Gendarme Station itself and/or gendarmes from this Station came under attack on 23 June 1993. It notes, nevertheless, that according to the witness K_ymet Uvat an incident had occurred at Üçdamlar Gendarme Station one month prior to the alleged events in Güldiken rather than at the same time (para. 134). This appears difficult to reconcile with the fact that her sister, the applicant Mizgin Ovat, expressly included the attack on Üçdamlar Gendarme Station and the alleged burning of the minibus by security forces on 23 June 1993 in her statement to the Human Rights Association (para. 69).
179. As regards the alleged burning of the minibus the Commission notes that Emine Y_lmaz claimed to have been an eye-witness to this event (paras. 66 and 93). Her account was supported by Mizgin Ovat in her statement to the Human Rights Association (para. 69), although it does not appear that she was an eye-witness. Taha Y_lmaz also talked of the burning of the minibus (para. 116) but he had been told about this by his parents. However, he also said that he had returned to Güldiken to collect, inter alia, the remains of the burned minibus (para. 121). Nevzat Ar_k could not remember any incident involving a minibus on the day of the clash at or near Üçdamlar Gendarme Station (para. 109).
180. The Commission considers that in the context of the present applications it is unnecessary to make any findings as to whether or not the minibus was actually burned. It does not appear wholly improbable, however, that a minibus travelling past a Gendarme Station in the vicinity of which a clash had occurred earlier that day would have been stopped and the identity of its passengers checked. Whether the Güldiken villagers travelling on the minibus were expressly told by the gendarmes that the latter would go to their village the next day or not, the events of the day may have led the villagers to believe that an operation incorporating Güldiken was imminent.
181. Although according to Emine Y_lmaz in her statement to the Human Rights Association all the young men left the village that evening as a precaution (para. 66), in her oral evidence she stated that no men had left and that all the men, including the young ones, had been beaten by the soldiers the following day (paras. 93, 94). Yet her son, Taha Y_lmaz, said that he, together with about six others, including his younger brothers, had left the village that night (para. 116). K_ymet Uvat said that her brother and his friends left when they saw smoke rising from another neighbourhood (para. 132), i.e. not until the next morning. Furthermore, it does not appear that the village muhtar was worried about the gendarmes coming to the village as he, according to Emine Y_lmaz, even suggested that the gendarmes must have been joking when he was told that an operation would take place the next day (para. 93).
182. The Commission observes that the evidence obtained concerning the actions of the villagers prior to the alleged events of 24 June 1993 is thus not consistent. It finds it particularly difficult to reconcile Emine Y_lmaz' account contained in her statement to the Human Rights Association with her oral evidence given to the Delegates. Even if it should be assumed that it would be unsafe to rely on Emine Y_lmaz' written statement, as the Commission has previously had occasion to do in respect of statements recorded by the Human Rights Association (No. 23186/94, loc. cit., para. 168), the Commission is still left with a stark contradiction between Emine Y_lmaz' and her son Taha's oral accounts in this respect.
183. The Commission cannot but conclude that no reliable facts have been established as regards events in Güldiken on 23 June 1993.
3. Concerning the alleged events in Güldiken village on 24 June 1993
184. In their final observations on the merits of their applications, the applicants allege that on 24 June 1993 security forces, led by Nevzat Ar_k, burned the houses and belongings of the villagers in Güldiken including those belonging to the applicants Y_lmaz and Ovat. The men in the village were severely beaten and the villagers, left with nothing, were forced to leave the village.
185. The Government maintain that no operation was carried out in Güldiken on 24 June 1993.
186. The Commission notes that it is thus presented with diametrically opposed accounts of events. It recalls that in view of the contradictions between the oral evidence given by _ahap Yaral_ and Nevzat Ar_k, it is doubtful as to the credibility of at least one of these testimonies (para. 174). However, neither Yaral_'s nor Ar_k's statement lends any support to the applicants' account of events. While it is true that the core of each of the applicants' allegations is supported by the statements of the other, by the oral evidence of Taha Y_lmaz and K_ymet Uvat, and by Sariye Uvat in her statement to the Human Rights Association in the context of a different application (para. 85), the Commission is troubled by a number of elements which detract from the general credibility of the evidence obtained. It has already remarked on the contradiction between Emine Y_lmaz' statement to the Human Rights Association and her statement to the Delegates and between this last statement and Taha Y_lmaz' testimony in respect of the matter of the young men leaving Güldiken on the eve of the alleged incident (para. 181). The Commission further recalls that contrary to what her sister Mizgin Ovat and the applicant Y_lmaz related, K_ymet Uvat denied that any incident had taken place at or near the Üçdamlar Gendarme Station on 23 June 1993.
187. Furthermore, according to Emine Y_lmaz' written statement, the soldiers stayed in Güldiken for two or three days (para. 68). Yet K_ymet Uvat told the Delegates that some women had returned to Güldiken the following night and that the soldiers had left at that time (para. 133).
188. Whatever reason there may have been for the absence from the hearing of the applicant Ovat, the Commission finds that her failure to give evidence made it difficult to establish the facts. It would have been necessary, in order to make a reliable assessment of the situation, to hear her in person in order to assess her general credibility and to put questions to her about various details.
189. The Commission considers that in the absence of better corroborative evidence it is unable to find it established that the events took place as alleged by the applicants.
E. As regards Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1
190. Article 3 of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
191. Article 8 of the Convention provides:
"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."
192. Article 1 of Protocol No. 1 reads:
"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."
193. The applicants Y_lmaz and Ovat complain that the deliberate destruction of their homes and the expulsion from their village constitutes a form of collective punishment amounting to inhuman and degrading treatment.
194. They further submit that the alleged incident constitutes a violation of the right to respect for their family life and home, ensured by Article 8 of the Convention. According to the applicants the destruction of their houses also discloses an interference with the peaceful enjoyment of their possessions, contrary to Article 1 of Protocol No. 1.
195. The Government maintain that there is no evidence to substantiate the applicants' allegations against the security forces. As regards the applicant Y_lmaz' complaint under Article 1 of Protocol No. 1, the Government submit that in any event this applicant cannot be considered a victim within the meaning of Article 26 of the Convention since the house in which she lived in Güldiken did not belong to her.
196. The Commission recalls its finding above (para. 189), to the effect that on the basis of the written and oral evidence before the Commission, it cannot be considered to have been established that the events occurred as alleged by the applicants. The Commission considers, therefore, that it has an insufficient factual basis on which to reach a conclusion that there has been a violation of these provisions of the Convention.
CONCLUSIONS
197. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of the applicants Y_lmaz and Ovat.
198. The Commission concludes, unanimously, that there has been no violation of Article 8 of the Convention in respect of the applicants Y_lmaz and Ovat.
199. The Commission concludes, unanimously, that there has been no violation of Article 1 of Protocol No. 1 in respect of the applicants Y_lmaz and Ovat.
F.As regards Articles 6 para. 1 and 13 of the Convention in respect of the applicant Ovat
200. Articles 6 para. 1 and 13 of the Convention, insofar as relevant, read as follows:
Article 6 para. 1
"1.In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."
Article 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."
201. The applicant Ovat alleges that the arbitrary expulsion from her home and village was a flagrant, direct interference with her civil rights within the meaning of Article 6 para. 1 of the Convention. She claims to have been denied an effective procedure to challenge or resist the deprivation of her possessions. She also claims to have had no effective domestic remedies for her various Convention claims, contrary to Article 13 of the Convention.
202. The Government submit in respect of this applicant that the complaint, coming from a person with a false name, that she did not have access to an independent tribunal or that there was a lack of domestic remedies, is not to be taken seriously.
203. Within the context of application 23182/94 (Dündar; complaints not considered, see para. 169), the Government contended that she failed to exhaust local remedies. They referred 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 applicant, awarding compensation. They further referred to a large number of administrative court decisions submitted in other applications, illustrating the application of the principle of "social risk".
204. The Commission recalls the findings of the Court in the case of Aksoy v. Turkey (judgment of 18 December 1996, to be published in Reports 1996, paras. 92-94), where it was found that, although there is no doubt that Article 6 para. 1 applies to a civil claim for compensation in respect of ill-treatment allegedly committed by agents of the State, the crux of the complaint concerned the prosecutor's failure to mount a criminal investigation. The Court considered that it was more appropriate to examine the complaint in relation to the more general obligations on States under Article 13 to provide an effective remedy in respect of violations of the Convention.
205. Although the Commission notes that the complaint in the Aksoy case concerned torture, it finds that also in the present case it is the alleged lack of effectiveness of available remedies which is at the heart of the complaint, notwithstanding the fact that there is no doubt that Article 6 para. 1 similarly applies to a civil claim for destruction of property. For this reason it considers it more appropriate to examine the present complaint under Article 13 of the Convention.
206. The Commission notes in the first place that the fact that it is not able to obtain sufficiently convincing evidence to conclude that events occurred in the manner as alleged by the applicant does not preclude it from examining whether or not there was a remedy available to the applicant which would have entailed the examination of the merits of her complaints, which the Commission considers "arguable" for the purposes of Article 13, in accordance with a normal, objective and independent procedure.
207. The Commission refers to its decision on admissibility in the application of Ovat (see Appendix II to this Report) where, in the context of Article 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."
208. 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 (loc. cit.).
209. The Commission notes that according to the Court in the above mentioned case of Aksoy v. Turkey, "the remedy required by Article 13 must be 'effective' in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State" (loc. cit., para. 95).
210. The Commission finds that there are undoubted practical difficulties and inhibitions in the way of persons like the present applicant 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 which did not occur in the course of a clash with terrorists, nor any example of a successful, or indeed any, prosecution brought against a member of the security forces for any such act.
211. In the present cases, the Commission recalls that an investigation was opened into the applicant's allegations pursuant to the communication to the Government of the application. On the basis of the documents provided by the Government, it appears that the investigation was limited and inconclusive. In view of the confusion over the applicant's name, no reproach can be made of the national authorities for the fact that they failed to take a statement from her - with the appropriate safeguards against fear of repression taken into account, such as the presence of a legal representative (cf. Akdivar and others v. Turkey, Comm. Report 26.10.95, para. 253, Eur. Court HR, loc. cit.; Sükran Ayd_n v. Turkey, loc. cit., para. 213). However, apart from obtaining information from the gendarmerie as to whether any operations had been carried out in Güldiken on 24 June 1993, no steps were taken to seek information from the alleged perpetrators. Instead, information was sought from the successor of the Lice District Gendarme Commander Nevzat Ar_k, _ahap Yaral_, who had not been present in the area and who provided a different account of events from Nevzat Ar_k when the latter was heard by the Delegates. Furthermore, it does not appear that any kind of investigation was launched into the allegation contained in Yaral_'s letter of 13 October 1994 of criminal offences having been committed by PKK terrorists in that they had burned down Güldiken village on 1 July 1993 (para. 49).
212. A statement was taken from the present muhtar of Güldiken, Hanifi Sala (paras. 78-81). The Commission notes, however, that he was asked whether any clashes between security forces and terrorists had occurred in Güldiken in June 1993, whereas the applicant in her statement to the Human Rights Association did not allege that the destruction of her property had come about as the result of a clash. On the contrary, it is her contention that her house was burned deliberately by the security forces.
213. The investigation into the allegations brought by the applicant concluded on 23 May 1995 with a decision of lack of jurisdiction ratione materiae. The Commission has not been informed of any steps taken in, or the outcome of, the proceedings before the Administrative Council which had jurisdiction transferred to it more than two years ago, save the fact that an investigator was appointed on 4 April 1995 (para. 63). The Commission notes from Ahmet Karakaya's evidence that the procedures for investigation by public prosecutors and the authorisations necessary militate against the early taking of statements from members of the security forces who might have been on duty in the relevant area at the relevant time (paras. 126-127). The Commission considers that the unsatisfactory nature of the investigation process disclosed in this case supports the conclusion 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 (cf. also Comm. Reports in Mente_ and others v. Turkey, loc. cit., para. 206; and Nos. 23184/94 and 23185/94, Keje Selçuk and Ismet Asker v. Turkey, 28.11.96, para. 196, currently pending before the Court). 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 or effective evidence-gathering by the State investigatory mechanism and in the absence of any evidence that the courts would have more effective means than the public prosecutors to investigate allegations of this nature.
214. In the light of these considerations, the Commission is of the opinion that the applicant Ovat did not have effective remedies at her disposal for her Convention claims as required by Article 13 of the Convention.
CONCLUSIONS
215. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention in respect of the applicant Ovat.
216. The Commission concludes, by 28 votes to 2, that it is unnecessary to examine the complaint under Article 6 para. 1 of the Convention in respect of the applicant Ovat.
G.As regards Articles 14 and 18 of the Convention
217. Articles 14 and 18 of the Convention provide as follows:
Article 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
"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."
218. The applicants submit that because of their Kurdish origins the various alleged violations of their Convention rights were discriminatory, in breach of Article 14 of the Convention. The applicants also claim that their experiences represent an authorised practice by the State in breach of Article 18 of the Convention.
219. The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.
220. The Commission has examined the applicants' allegations in the light of the evidence submitted to it, but considers them unsubstantiated.
CONCLUSIONS
221. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention in conjunction with any of the provisions invoked in respect of the applicants Y_lmaz and Ovat.
222. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention in respect of the applicants Y_lmaz and Ovat.
H.Recapitulation
223. The Commission decides, by a majority vote,
- not to consider the complaints brought in the names of Halit _ahin and Rabia Dündar;
and, by a unanimous vote,
- to pursue the examination of the application insofar as the applicant Mizgin Ovat is concerned (para. 169).
224. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of the applicants Y_lmaz and Ovat (para. 197).
225. The Commission concludes, unanimously, that there has been no violation of Article 8 of the Convention in respect of the applicants Y_lmaz and Ovat (para. 198).
226. The Commission concludes, unanimously, that there has been no violation of Article 1 of Protocol No. 1 in respect of the applicants Y_lmaz and Ovat (para. 199).
227. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention in respect of the applicant Ovat (para. 215).
228. The Commission concludes, by 28 votes to 2, that it is unnecessary to examine the complaint under Article 6 para. 1 of the Convention in respect of the applicant Ovat (para. 216).
229. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention in conjunction with any of the provisions invoked in respect of the applicants Y_lmaz and Ovat (para. 221).
230. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention in respect of the applicants Y_lmaz and Ovat (para. 222).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF MRS G.H. THUNE
AND MR M.A. NOWICKI
We agree with the conclusion and reasoning of the majority of the Commission in respect of the issues under Articles 3, 8, 13, 14, 18 of the Convention and Article 1 of Protocol No. 1. However, we regret that we are unable to share the view of the majority of the Commission that it is unnecessary to examine the complaint under Article 6 para. 1.
We consider that the claims which would have required determination by a court in the present case included compensation for damage to the applicant Ovat's house and property and that her civil rights within the meaning of Article 6 para. 1 of the Convention were therefore at issue. Indeed, the majority of the Commission does not dispute that Article 6 para. 1 applies (see para. 205 of the Report). However, whereas it is true that some of the applicant Ovat's complaints do not necessarily involve her civil rights, and may not require a full court remedy (for example the claims in relation to her witnessing the deliberate destruction by fire of her home and possessions and her forced flight from the village), it is the alleged destruction of property which forms the basis of the applicant Ovat's complaints. In these circumstances we find it unsatisfactory to examine the question of remedies solely under Article 13 of the Convention.
In our opinion, moreover, an examination of the complaint under Article 6 para. 1 would have led to the conclusion that there had been a breach of that provision for the same reasons which were applied in the Report to find a violation of Article 13.
Full & Egal Universal Law Academy