Z.D. v. TURKEY

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25801/94

Z. D.

against

Turkey

REPORT OF THE COMMISSION

(adopted on 6 September 1999)
TABLE OF CONTENTSPage

I.INTRODUCTION

(paras. 1-34) ........................................................ 1

A.The application

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

B.The proceedings

(paras. 5-29) .................................................... 1

C.The present Report

(paras. 30-34) .................................................. 3

II.ESTABLISHMENT OF THE FACTS

(paras. 35-145) ...................................................... 5

A.The particular circumstances of the case

(paras. 36-48) .................................................. 5

B.The evidence before the Commission

(paras. 49-128) ................................................. 7

C.Relevant domestic law

(paras. 129-145) ............................................... 21

III.OPINION OF THE COMMISSION

(paras. 146-232) .................................................... 25

A.Complaints declared admissible

(para. 146) .................................................... 25

B.Points at issue

(paras. 147-148) ............................................... 25

C.The evaluation of the evidence

(paras. 149-172) ............................................... 26

D.As regards Article 8 of the Convention

(paras. 173-176) ............................................... 31

CONCLUSION

(para. 177) .................................................... 31

E.As regards Article 1 of Protocol No. 1 to the Convention

(paras. 178-181) ............................................... 31

Page

CONCLUSION

(para. 182) .................................................... 32

F.As regards Article 2 of the Convention

(paras. 183-186) ............................................... 32

CONCLUSION

(para. 187) .................................................... 33

G.As regards Article 3 of the Convention

(paras. 188-191) ............................................... 33

CONCLUSION

(para. 192) .................................................... 34

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

(paras. 193-197) ............................................... 34

CONCLUSION

(para. 198) .................................................... 34

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

(paras. 199-207) ............................................... 34

CONCLUSION

(para. 208) .................................................... 36

J.As regards Articles 14 and 18 of the Convention

(paras. 209-212) ............................................... 37

CONCLUSIONS

(paras. 213-214) ............................................... 37

K.As regards former Article 25 of the Convention

(paras. 215-222) ............................................... 37

CONCLUSION

(para. 223) .................................................... 39

L.Recapitulation

(paras. 224-232) ................................................. 39

APPENDIX:DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ................. 41

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 applicant is a Turkish citizen, born in 1931[1] and resident in Diyarbakır. She is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecturers in law at the University of Essex.

3.  The application is directed against Turkey.  The respondent Government were represented by their Agents, Mr D. Tezcan and Mr A. Kurudal.

4.  The case principally concerns the destruction of the applicant’s property and threats to her life which is alleged to have occurred during a raid on her village by gendarmes. The applicant invokes Articles 2, 3, 5, 6, 8, 13, 14, 18, and former Article 25 of the Convention and Article 1 of Protocol No. 1 to the Convention.

B.The proceedings

5.  The application was introduced on 2 May 1994 and registered on 29 November 1994.

6.  On 27 February 1995, the Commission decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7.  The Government's observations were submitted on 11 August 1995 after the expiry of the extension of the time-limit fixed on 23 July 1995.  The applicant replied on 3 November 1995 after an extension of the time-limit.

8.  On 23 May 1996, the Commission declared the application admissible. The Commission noted that this case concerned the same incident which was in issue in the case of Çakıcı v. Turkey (No. 23657/94) in which the oral evidence was to be taken in Ankara in July 1996. The Commission decided that it should proceed to take evidence in this application at the same time.

9.  The text of the Commission's decision on admissibility and the decision to take oral evidence was sent to the parties on 24 May 1996 and they were invited to submit further observations or such further information as they wished before 21 June 1996.  The parties were requested to indicate the oral evidence they might wish to put before delegates and explain the relevance of the testimony by 14 June 1996.

          By letter dated 13 June 1996, the Government stated that there was not enough time to prepare for the taking of evidence in this application and that they could not agree to the taking of evidence on the proposed date.

11.  By letter dated 14 June 1996, the applicant’s representatives made proposals as regards witnesses.

12.  By letter dated 17 June 1996, the Secretariat explained that the Commission reached its decision to take evidence at short notice in order to minimize expense and the burden of time and inconvenience to the witnesses and the parties which would be caused by a separate and repetitive hearing. The Secretariat confirmed that the delegates would be sensitive to the difficulties in preparation.

13.  By letter dated 18 June 1996, the applicant’s representatives informed the Secretariat that the applicant would require Kurdish interpretation.

14.  On 25 June 1996, the Government submitted observations concerning the taking of evidence in this application. It stated that insufficient time had been assigned for the hearing of evidence in this case and that if it was necessary to take evidence at the same time as the Çakıcı case, even though the cases had not been joined, it would be reasonable to hold a hearing on a date which was also convenient to the Government.

15.  By letter dated 27 June 1996, the Secretariat informed the Government that the Commission was still of the opinion that sufficient notice of the facts had been given. However, as the Government was unable to deal with the evidence, the Delegates had decided not to hear oral evidence in this case in July 1996. The Secretariat informed the applicant’s representatives of this on the same day.

16.  By letter dated 24 July 1996, the Government reported that the inquiry into the case had been transferred from the Hazro Public Prosecutor to the Hazro District Administrative Council because the investigation fell within the jurisdiction of the Official Conduct Act.

17.  By letter dated 17 October 1996, the Secretariat informed the parties that the taking of oral evidence in this case in Turkey before three Delegates MM Jörundsson, Conforti and Bratza would take place between 3 and 7 February 1997.

18.  On 25 October 1996, the Government submitted supplementary observations.

19.  On 8 January 1997, the Secretariat notified the Government of the witnesses to be summonsed to the hearing of oral evidence.

20.  By letter dated 31 January 1997, the applicant’s representatives notified the Secretariat that Şahabettin Taşlık and Emin Bilen, two further witnesses to the events in November 1993, would like to give evidence to the Delegates.

21.  Evidence was heard by the Commission’s Delegates in Ankara on 7 February 1997. Before the Delegates the Government were represented by Mr D. Tezcan, Acting Agent, Mr A. Kurudal. Mr A. Kaya, Ms M. Gülsen, Mr O. Sever, Mr F. Polat, Ms A. Emüler, Ms Y. Cenda, and Mr M. Bağriaçik. The applicant was represented by Ms F. Hampson and Mr O. Baydemir, as Counsel, assisted by Ms A. Reidy, and by Mr M. Kaya and Ms D. Deniz (interpreters). A request was made for the Government to provide copies of any statements of the applicant taken by a public prosecutor in July-August 1995. The Government had made an objection to the applicant’s witnesses, Şahabettin Taşlık and Emin Bilen, being heard. The Delegates at the hearing decided to hear the evidence of Emin Bilen as he was an eye witness.

22.  By letter dated 19 February 1997, the Secretariat reminded the Government that the Delegates had asked during the proceedings for copies of any statements taken by the public prosecutor from the applicant in or about July-August 1995.

23.  On 1 March 1997, the Commission invited the parties to submit their final observations on the merits within six weeks of the sending of the verbatim record.

24.  By letter dated 17 April 1997, the Secretariat asked the parties to present their final observations on the merits by 5 June 1997.

25.  On 18 April 1997, the Commission granted the applicant legal aid for the representation of her case.

26.  By letter dated 26 May 1997, the Commission granted the Government an extension of time limit for their observations, pursuant to their request, to 1 August 1997. On 11 June 1997, the applicant submitted her final observations.

27.  On 3 October 1997, the Government submitted final observations.

28.  On 6 September 1999, the Commission decided that there was no basis on which to apply former[2] Article 29 of the Convention.

29.  After declaring the case admissible, the Commission, acting in accordance with former Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. Between July 1997 and November 1998, proposals to settle the case were under consideration. 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

30.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

B. CONFORTI

SirNicolas BRATZA

MMI. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

31.  The text of this Report was adopted on 6 September1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

32.  The purpose of the Report, pursuant to former 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.

33.  The Commission's decision on the admissibility of the application is annexed hereto.

34.  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

35.  The facts of the case concerning events on or about 8 November 1993 are disputed by the parties. For this reason, pursuant to former Article 28 § 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.Facts as presented by the applicant

36.  The various accounts of events as submitted in written and oral statements by the applicant and other members of his family are summarised in Section B: “The evidence before the Commission”. The version as presented in the applicant's final observations on the merits is summarised briefly here.

37.  The applicant lived in Çitlibahçe village most of her life. It is a village of about 200 households attached to Hazro in South-East Turkey. The applicant’s house was in the lower neighbourhood near the road. The applicant and her family earned their living from growing tobacco and animal husbandry. The applicant was married and had five children. In 1993 she was 69 years old. The village was visited frequently by soldiers who carried out patrols and ID checks.

38.  In July 1993, soldiers from Hazro gendarmerie went to Çitlibahçe village and forced the villagers, at gun point, to pull up the tobacco they had growing in fields around the village. The applicant witnessed this and her son was one of those forced to pull up the tobacco. Villagers were also rounded up on that day and taken to Hazro. The villagers believed this was a punishment measure taken due to an incident involving the PKK which had happened near the village a few days previously. The villagers took initiatives to file complaints about this incident but hesitated at the last minute because they were frightened of the repercussions if they made a complaint about the security forces.

39.  On 23 October 1993, an imam and his brother from Dadaş village near Hazro had been kidnapped by the PKK. It was alleged that they had been brought through or near Çitlibahçe village. Further it was alleged that Ahmet Çakıcı from Çitlibahçe was involved in the incident and he was considered to be a member of the PKK by the security forces. An investigation into the incident was conducted by the local security forces from Hazro.

40.  On 8 November 1993, soldiers from Hazro gendarmerie accompanied by village guards from at least three of the four villages with village guards attached to Hazro (Kirmataş, Meşebağlar, Kavaklıboğaz, Sarıerik) arrived at the village at about 7 a.m. They arrived as part of a military operation in military vehicles. The soldiers left their vehicles on the outskirts of the village. The commander of the soldiers ordered that the men, of whom there were about 200, gather together in an open space about 300 metres outside the village. The men were made to lie down on the ground. Most of the women, children and elderly, including the applicant, were also gathered together and taken to the open space outside the village. Some others from the upper part of the village furthest away from the road remained in the village in front of their houses. Soldiers and village guards started to search the village and began to burn some of the houses. The applicant’s house was one of those burned down by the soldiers. When the soldiers came to her house they made her get out and swore at her. They began to break windows and damage her house. With her house, they burned her tobacco, wheat, barley, lentils, other winter provisions, furniture and household goods including a fridge and a television. The applicant could see her house from the area in which the villagers were gathered. The applicant saw the soldiers set fire to her house and witnessed the flames and smoke streaming from the house.

41.  During the burning of the houses the soldiers caught Ahmet Çakıcı, a co-villager, and took him away. He was hiding in a house which the soldiers set fire to and ran out to escape the flames and was caught. After this the soldiers left the village and the commander instructed the villagers that they could return to the village and put out the fires. The commander told the villagers that if they had given up Ahmet Çakıcı in the beginning then they would not have burned their houses. The operation lasted about 2-3 hours and the soldiers left before noon. They had burned over 50 houses. The largest number of houses burned were in the lower village where the applicant’s house was. The next day the houses were still smoking.

42.  After her house was burnt down the applicant sheltered in the house of a neighbour where she shared a bed with seven other people. Her son arrived the next day. The applicant and her family who were now destitute had to move to Diyarbakır where they lived in a rented house, with little prospect of employment. After the incident some people, including journalists, tried to return to the village to take photographs but were unable to do so. The villagers will not be allowed to return to their village and property unless they become village guards. The villagers petitioned several offices (the Ministry of the Interior, the President, the Prime Minister, the Governor’s office, the district Gendarmerie) to be allowed to return to their village but they have not been permitted to do so.

43.  Following the burning of the village, the villagers were frightened about making complaints. On 12 November 1993, the applicant however went to the Human Rights Association with her son and another villager to make a statement in order to pursue an application to the Commission. The family of Ahmet Çakıcı, who had disappeared after the military operation in the village, had made petitions to the authorities to discover the fate of their relative and submitted an application to the Commission (Application No. 23657/94). The applicant has not received any compensation for the damage done to her property.

44.  In July or August 1995, the applicant was called by the police to make a statement to the public prosecutor. The police allegedly searched her old and current house. The applicant’s son Anvi accompanied her when she gave her statement. The applicant was asked questions about her application to the European Commission. It is alleged that the prosecutor was putting pressure on the applicant because she had made such an application.

2.Facts as presented by the Government

45.  The Government’s account of events as based on their observations is summarised as follows.

46.  A security operation was performed in the village of Çiftlibahçe on 8 November 1993. However the houses of the village were not damaged at all. Ahmet Çakıcı was pursued by the security forces on account of his activities as a member of the PKK but he was not captured or taken into custody. An identity card belonging to him was found on the body of a terrorist after an intense armed clash between terrorists and security forces which took place on 17-19 February 1995.

3.Proceedings before the domestic authorities

47.  The applicant did not make an official complaint.

48.  By a decision dated 1 June 1995, the Hazro Public Prosecutor (Çıçek) issued a decision of withdrawal of duty and transferred the investigation of the claims to the Hazro District Administrative Council. It would appear that a file had been opened (No. 1995/26) after communication of the applicant’s complaints to the Commission. The decision named the applicant as the complainant and the complaint was stated to be registered at Çitlibahçe village. It noted that the complainant had made a representation to the European Human Rights Commission via representatives. The offence was described as damage to property and threat to freedom. The defendants were security forces stationed in Hazro Gendarme Station and temporary village guards. It stated that the complainant claimed that on 8 November 1993 soldiers from Hazro Gendarme Station and some village guards burned houses and the tobacco fields belonging to the village and detained Ahmet Çakıcı, taking him with them. The decision stated that the preliminary document was examined. The relevant investigation of the claims was within the jurisdiction of the Official Conduct Act. Therefore the Attorney General would withdraw from duty and the relevant documentation is to be dispatched to Hazro District Administrative Council.

B.The evidence before the Commission

1)Documentary evidence

49.  The parties submitted various documents to the Commission. The Commission also had before it documents submitted in the case of Izzet Çakıcı v. Turkey (Eur. Court HR, Çakıcı v. Turkey judgment of 8 July 1999, Reports 1999-,). In the current case there was also submitted the report of Human Rights Watch/Helsinki, “Forced Displacement of Ethnic Kurds from Southeastern Turkey”, October 1994, Vol. 6 no. 12, and “Forced Evictions and Destructions of Villages in Dersim (Tunceli) and the western part of Bingöl, Turkish Kurdistan” and a report by Ismet Imset entitled “Village Evacuations and Destruction in the South East”, as well as statements from the applicant and witnesses concerning their version of the events in issue in that case.

50.  The Commission had regard to the following documents:

a)Statements by the applicant

Statement of 12 November 1993 taken by the Human Rights Association (“HRA”), Diyarbakır

51.  A raid was organised on her village, Çitlibahçe, on the morning of 8 November 1993 at 07.30 hours by soldiers connected to Hazro Gendarme Station and ‘protectors’ connected to the same station. There were about 300-350 in total. She listed some of the names of the protectors from the villages of Kirmataş, Sarıerik, Meşebağlar and Kavaklıboğaz. The soldiers collected the villagers, of whom there were about 120 households and 500 people and took them to a place about 1 km from the village. They made the 60-70 men walk in pairs. Some of the women and children were kept in front of their houses. While she was still in the open space, smoke started to come from inside the village. The Hazro Gendarme Unit Commander laughed at the villagers because, after his soldiers had destroyed the tobacco fields, they had gone to lawyers and made complaints. (She said that they had in fact torn up petitions for determination of damages because of fear of threats that were made). The Commander told them that no one could do anything to him and that if they did not empty the village within 7 days he would kill them and claim they were terrorists. As the Commander was speaking, the soldiers were pouring petrol over about 40-50 houses and setting them on fire, some of them with the possessions inside, and taking the possessions out of others. The soldiers burnt her house with everything in it, including tobacco, wheat, barley, lentils, winter provisions, household goods, fridge and television. She listed the names of people’s houses that were burned and, like hers, reduced to ruins. These included the houses of Ahmet Çakıcı and his father.

52.  The men were held lying on their faces for between 1½ and 2 hours. During this time, the soldiers took their fellow villager Ahmet Çakıcı with them. The soldiers then told the villagers they could go back to their houses and put out the fires. The soldiers then left. There was no one who now continued to live in the village. She was renting a four-roomed house in Diyarbakır with her son, his wife and their 9 children. They only have the possessions that her son took with him when he left their village one month before the incident. As they were farmers, they could not now find work. No inquiry had been opened into the incident and she had not made any applications to any institutions because she and the villagers were threatened. They had wanted to go to the village to take photographs and to see their village one more time before leaving it but were not allowed. They were told not to return or they would be killed. She did not want her name revealed because she did not know what the State Security Forces would do next.

b)Official documents and reports

Documents concerning the operation on 8 November 1993 filed in the Çakıcı case

Operation order of Hazro gendarme command dated 7 November 1993

53.  The order, signed by Lieutenant Altınoluk, is in an abbreviated number format. It indicates the object of the operation as the capture and annihilation of PKK terrorists, identification and capture of collaborators and destruction of shelters, that the forces to be used included four commando teams from the Hazro commando regiment and two GKK teams (village guards) and that the operation was to begin at 05.30 hours on 8 November 1993.

Operation report of Hazro gendarme command dated 8 November 1993

54.  The report, signed by Lieutenant Altınoluk, is in an abbreviated number format. It indicates the object of the operation as the capture and annihilation of PKK terrorists, that the operation lasted from 05.30 hours to 15.30 hours and was carried out without incident as planned.

c)Statements by other persons filed in the Çakıcı case

Izzet Çakıcı

Statement of 23 December 1993 taken by the HRA, Diyarbakır and submitted in the Çakıcı case.

55.  His brother, Ahmet Çakıcı, was taken into custody by the 400 soldiers and guards who arrived in itlibahçe at around 10.00 hours on 8 November 1993. The soldiers came from Hazro district gendarme command and the guards from Kirmataş, Sarıerik, Meşebağlar and Kavaklıboğaz villages. The soldiers and guards set fire to the houses. They took Ahmet away in a vehicle.

Remziye Çakıcı (wife of Ahmet Çakıcı)

Statement of 12 November 1993 taken by the HRA, Diyarbakır

56.  The residents of Çitlibahçe were forcibly evacuated from their village by the soldiers and guards belonging to the Hazro district gendarme command. They raided the village at around 07.30 hours on 8 November 1993 and set all the houses on fire. Her own house was burned. Her husband Ahmet was roughly treated and detained. Her husband was still detained.

Statement of 25 November 1994 taken by a public prosecutor at Diyarbakır

57.  She was the wife of Ahmet Çakıcı, whose whereabouts were unknown, and she had seven children. On 8 November 1993, when they lived in Çitlibahçe, the gendarmes and guards arrived, evacuating the village completely and taking people outside, opposite the village. They searched the houses. There were some empty houses, which were burned. On their way back, they took her husband and another person, whose name she could not remember. They took her husband to Hazro gendarmerie and after that he was taken to Diyarbakır.

Mehmet Bitgin

Statement of 14 May 1996 taken by advocate Osman Baydemir

58.  Mehmet Bitgin used to live in Çitlibahçe. On 8 November 1993, soldiers raided the village. All the houses were burned down. He saw Ahmet Çakıcı being taken into custody.

Fevzi Okatan

Statement of 14 May 1996 taken by advocate Osman Baydemir

59.  Fevzi Okatan used to live in Çitlibahce. On 8 November 1993, soldiers raided the village, setting fire to the houses.  Ahmet Çakıcı was taken into custody and there was no news of him since. They had to move to Diyarbakır when the village burned down.

2)Oral evidence

A.Oral evidence in this case.

60.  The evidence of the three witnesses heard by the Commission Delegates may be summarised as follows:

(1)The applicant

61.  The applicant was 73 years old and was currently living in Diyarbakır where she had lived for the last 4 years. Before this she had lived in the village of Çitlibahçe. She had lived there since childhood but came from the village of Lice. There were about 200 households in Çitlibahçe.

62.  Gendarmes had visited her village all the time before November 1993. She later specified that they used to come every four or five days stating they were looking for terrorists. They would check people’s IDs, take them to Hazro, beat them up and then release them. She stated that members of the PKK had not taken food and animals from the village.

63.  The villagers made their living by growing tobacco. They had lots of fields and kept sheep too. She had a certificate from the State giving permission to grow tobacco. She remembered the incident in July 1993 when villagers were forced to pull up tobacco crops at gunpoint. She had seen this with her own eyes and the gendarmes had taken some of the men away to Hazro. The men had been beaten up and then released. The soldiers and guards had said “We’re pulling it up. Either you move away from here or you starve to death.” She said she remembered the gendarmes pulling up crops too. The villagers were able to salvage some of the crops and store them inside.

64.  She did not know a unit commander from Hazro called Ertan Altınoluk. She had heard about the killing of teachers and an imam in Dadaş village in October 1993.

65.  She was present in the village of Çitlibahçe on 8 November when some soldiers came to the village. The gendarmes arrived at about 06.00-0.700 hours with about 40 vehicles. There were a lot of soldiers. People were afraid to go outside. She had gone inside but the soldiers made them go outside. There were village guards as well as gendarmes. She did not recognise any of them. They said which villages they came from (Şikefta and Kanderhale) but she did not know them. People had said the guards also came from İndar and Zogri.

66.  The soldiers left their vehicles on the outskirts of the village, entered the village and made the villagers go outside. They searched the houses and then set fire to them. They gathered the men together in one place and the women in another. The villagers did not dare to try and stop the soldiers. When the commander of the gendarmes spoke to the villagers no one said anything. Some of the men were taken to Hazro and beaten up and then released. The men were made to lie on their faces for 1½-2 hours in a place outside the village. Later she stated that the men had been blindfolded.

67.  Ahmet Çakıcı was her neighbour. She was not there when the soldiers set fire to the house which Ahmet Çakıcı ran out of when he was caught. She heard that this house was near the fountain in the village but she had not seen it herself. They fired at him and he gave himself up. She did see Ahmet Çakıcı in the hands of the soldiers.

68.  By the time Ahmet was in the hands of the soldiers, they had set fire to her house. She saw the soldiers set fire to her house. It had seven rooms and was made of timber. The family stored provisions, crops (wheat) and tobacco inside and these were destroyed along with their furniture and possessions. She was not able to say how the soldiers had set light to her house, only that about 20 people went inside and that they set fire to the tobacco inside the house which was dry. The soldiers came to her house whilst she was inside. She went out and they broke the windowpanes and living room furniture. She ran away. She could see the flames leaping up from across the village. She saw the soldiers and guards who caused the flames. Then they set fire to some tobacco outside the house.

69.  About 50 houses were burnt down. Later she said she thought it was around 30 or 40. She said she could see flames and smoke coming out of some of the houses. It was not possible to see all the houses from the place she was standing. She knew the names of some of the people whose houses were burned including Mustafa, Musa, Gani, Hacı Fevzi (the muhtar), Mehmet Cevat and Selam. The last two were not actually in her neighbourhood.

70.  The soldiers and gendarmes had been in the village for about 5 or 6 hours before they caught Ahmet. The soldiers told the villagers to go and put the fires out. They said, “If you had handed him over to us we would not have set fire to the place. We burned it because you did not hand him over.” As soon as they had caught Ahmet they left the village.

71.  The soldiers took the village muhtar, Hacı Fevzi, away. The villagers feared he had been killed but he was released.[3] She did not see him when the soldiers first arrived. Only part of his house was burned. She did not know when his house had been burned previously nor whether his house had been burned then by the PKK.

72.  The night after her house was burned she had stayed in a neighbour’s house with other villagers. While she appeared to state that her son Anvi also stayed there, she later clarified that he came the next day from Diyarbakır.  In the morning, she went with him to Diyarbakır. The villagers were not able to go back to the village. She had gone back to the village in the spring but there was nothing left. She also went in the summer of 1997 some four years later. The village was in ruins.

73.  She did not know a boy called Mehmet Emin Bulan as she did not go out of the house due to her age. She did not know anyone whose surname was Bilen.

74.  She had made a statement to Rozan Alıcıoğlu at the Human Rights Association in Diyarbakır on 12 November 1993 about 3 days after her house was burned. She remembered putting her thumbprint on her statement in front of the woman who had taken it. Later she said she could not remember the name of the woman she saw there. She went there with her son, Anvi, Yahya, the village muhtar and some other people who were too afraid to come up upstairs with her. After her village was burned they were too afraid to go to the public prosecutor to lodge a complaint. They were still afraid. She did not recall whether her lawyer had recommended the courts in Turkey or whether she had visited the prosecutor’s office.

(2)Avni Dulaş

75.  The witness was born in 1955 and had lived in Diyarbakır since 8 November 1993. Before that he had lived in Çitlibahçe in Hazro district all his life. There were about 200-250 households in the village. He lived in his house in the village with his mother who had lived there all her life. For the last three or four years they had been living in terrible circumstances in the city. This contrasted to his life before in the village. He farmed his own land and was comfortably off in the 1980s. The village had plenty of water and was more fertile than the surrounding villages. As well as tobacco farming, crop farming, forestry and animal husbandry, there were vineyards and orchards. He had a certificate authorising him to cultivate tobacco there and had done so continuously for years. He had 2 or 3 cows and 10 to 15 goats. He had sold some of the animals. The others were left or stolen. He had heard rumours that one or two people from his village had been convicted for growing hemp.

76.  In 1987 there was a village guard system in place in the village. There were acts of terrorism in the surrounding area. The gendarmes came regularly to his village before 1987 (he later said 1989), after which big operations were launched and the pressure started mounting. Trouble started after 1990 following incidents carried out by the PKK. There was a threat of terrorism and some intimidation. In 1990 the PKK burned the house of the muhtar, Fevzi Okatan. The PKK would come into the village to hold meetings. They had never taken any of his provisions. In 1992-93 the gendarmes used to come with 50 or 60 vehicles and 200 or 300 soldiers. He later said that after 1991 they came with 20 or 30 vehicles. They would search houses if they had been tipped off.

77.  He recalled an incident in July 1993 when the security forces raided his village. They rounded the villagers up, the men in one place and the women in another. They took the men to the tobacco fields and he was forced by sticks, with the other men, to pull up almost 90% of the tobacco seedlings which belonged to over 54 people. The security forces did not state the reason they were requiring the tobacco fields to be pulled up but he understood it to be connected to the security forces’ finding taxis on the road to the village containing a member of the militia (PKK). He did not know the offender. However Ali Çakıcı (Ahmet’s brother) and Seydihan Güler were detained for three months in respect of that incident. When the security forces rounded the villagers up together, one of them said ‘If you go on like that, we’ll also go on like that’. He took this to mean that the villagers had committed an offence and were to be punished for it. A guard shouted as he was walking along the road ‘I’ll shoot Ahmet Çakıcı with my own hand’. They had asked about Ahmet Çakıcı on that day. Afterwards the security forces left the village. He stated that the villagers tried to apply to have the damage assessed by writing petitions. They were going to apply to the local authorities in Hazro but became too afraid. Then 40 or 50 villagers were summonsed at random to the court in Hazro. All those people denied the incident.

78.  He was not in his village on 8 November 1993. He had left a couple of days before to market his produce in Diyarbakır. Shortly before the incident, two or three public officials were present in the village. He did not know whether or not they had come to conduct a census or for some other reason. He knew Ahmet Çakıcı as his house was near his own. Before he left, he had heard about the killing of teachers and an imam from Dadaş which was about an hour away from his village. He could not remember exactly when this had taken place but he guessed that the burning of the village was connected with that incident.

79.  He could not remember who told him about the incident on 8 November in his village but he returned the next day as soon as he heard about it. The village had been reduced to ruins and the villagers were in a terrible state. They were panicking and trying to get away. There were traces of fire everywhere and the houses continued to smoulder. Some were reduced to ashes. He estimated about 50 or 60 houses had been burned. Most of the burning was done in the lower neighbourhood of the village where his house was. He knew several of the names of the people’s houses that were burned: Hacı Bulan, Hüseyin Urak, Mahmut Yaşar, Sabri Becerekli, Gani Becerekli, Mustafa Becerekli, Musa Becerekli, Selem Orak and Mehmet Cevat Orak. Those houses were all in his neighbourhood. Also the houses of Ahmet Çakıcı, Tevfik Çakıcı and Bahri Çakıcı were burned.

80.  His house was completely burnt out. Much of the contents, for example kitchen utensils, were unusable. As he was comfortably off, he had a television and a fridge. Also in the house was his produce. He used to be able to see the road from his house and the fountain from the upstairs of the house. The coffee shop was about 50 metres from the fountain. From where the village people were assembled you could see the front of his own house and just see the fountain. His house was about 300 metres from the fountain and 800-900 metres from where the villagers were gathered. His mother could see those who set fire to his house from his land.

81.  People told him what had happened on 8 November. The whole village was saying the same thing. The soldiers and guards had arrived together at the village at about 06.00-06.30 hours. The guards came from four villages about 2 hours away. The Kurdish names of those villages were Kanderhale (Sarıerik in Turkish), Kavaklıboğaz (in Turkish, the old name was İndar), Kirmataş (the new name, formerly known as Zobri) and Meşebağlar (formerly Şikefta). He had heard that the guards from Sarıerik in fact did not take part.

82.  He was told that then, without asking anything, the security forces set houses on fire and swore at people. They rounded the people up opposite the village in his own field and swore at them. The men and women were gathered in separate groups but in the same area. His mother told him about the incident and how she was rounded up with the other villagers on his land. The soldiers and guards set fire to his house and tobacco as they took his mother out of the house and several soldiers and guards took her to the field opposite. His mother watched from a distance and saw how the house caught fire.

83.  He heard that the commander, whose name he did not know, had said to a teacher ‘The teachers suffered a lot. Has this village suffered as much?’. The villagers were screaming and crying. The whole village was on fire. He had also heard that on that day the soldiers caught Ahmet Çakıcı. He had come out of a house, which they had set fire to, in the middle of the village near the fountain and they caught him. The commander then said ‘Go and put the fires out now’. The soldiers and village guards stayed for about 2 hours and left immediately once they had captured Ahmet.

84.  He knew Fevzi Okatan, the village muhtar, but had not spoken to him about what occurred. He also knew Mehmet Emin Bulan who was one of the villagers. He had not been told that anyone else apart from Ahmet had been taken away from the village.

85.  When he arrived in the village on 9 November 1993 his mother was staying with a relative and neighbour, Mustafa Satıcı. He left, shortly afterwards, with his mother. She was shaking and in a very bad way. He had not been back to his village since as he was afraid to do so and he did not wish to do so. He did not think that anyone lived in the village now. His mother would like to return to live in the village where she had lived most of her life. He later said that there were several villages surrounding Çitlibahçe which managed to survive, so he could survive although his means of livelihood had been ruined. He did not think there would be any buyers for his house if he tried to sell it as no one would invest in a village. He said that he was prevented from returning due to fear of outsiders, the State and clashes between them. They wanted to go back on condition that they would be under no threat.

86.  He had gone with his mother to the Human Rights Association where she had made a statement about 3-4 days after the incident. He remembered that one of the ladies who took the statement was named Rozan Alıcıoğlu. Three or four other villagers had gone with them - Fahri Tekin, Tevfik Uyanık and Hacı Fevzi Okatan. They had all gone to seek their rights and claim damages. They were too frightened to go to the local authorities for fear of being ill-treated and put in jail. The other villagers left without giving statements because, he thought, they were frightened. He was frightened and that was why they initially did not want their names revealed. He felt under pressure from the State and they were fearful of being blamed for incidents. He helped his mother when she made her statement in respect of things that she had forgotten. The statements were read out to him in Turkish once they were written down.

87.  He had never been convicted of any offence. In the past he had been to court on several occasions. Some villagers had filed claims for compensation. However everyone was afraid to go to the district authorities because of the soldiers. He went to the Human Rights Association as a last resort. He was not afraid of the courts and judges but of the soldiers as he had seen what they had done. He knew that some people had filed petitions to return to their village with, inter alia, the Ministry of the Interior and district governor’s office. They used to settle all their business in the district but now they were too afraid to go to the district authorities. He then stated that he would not have been afraid to apply to the civil court of first instance in Diyarbakır.

88.  His mother was summoned via the Yenişehir police station in the locality where his elder brother lived. He had been told that the Çarşı, Mardinkapı and Yenişehir police had searched the house where they used to live and also his elder brother’s house.  In the summer, in about July or August 1995, he accompanied his mother to the Public Prosecutor’s office where she had been asked to make a statement. The prosecutor read out a large part of a file and said to his mother ‘You’ve complained to Europe about Turkey’. They were asked questions about the file in Turkish and there was a translator into Kurdish. He felt that the prosecutor was trying to put pressure on his mother. They stood together for about 3 or 4 hours giving the statement.

(3)Emin Bilen

89.  The witness was born in 1954 and was currently living in Diyarbakır, where he had lived since 1993 and where he had bought a house. There were about 300 households in the village. Nearly everybody had tobacco fields. He used to grow tobacco, he had animals and 30,000 square metres of orchards. He also had a minibus which he had now sold. He was not currently working.

90.  The PKK came to the village and attacked it. The villagers had no choice but to give them food. Then soldiers came to the village and attacked the villagers in the same way. The PKK did not carry out actions in his village but in other villages and they got blamed. The PKK did hold meetings. They were armed and the villagers could not stop them.

91.  The village had previously had village guards and the PKK could not then get into the village. He did not know why villagers gave up being guards.

92.  There were operations carried out in the village before. On one occasion, soldiers and guards had come and rounded up the villagers and made them pull up their tobacco. The villagers did not file complaints because they were afraid.

93.  He was in the village on 8 November 1993. On that day the soldiers and guards raided the village very early in the morning. They arrived in big military but unarmoured vehicles. They surrounded the village and made them come out of the houses. They made some 200 of them (he later clarified the men) go and lie down on the ground in a place opposite the village near the road. They then went into the village and made the old people and womenfolk come out of their houses. The women and elderly men stayed in the village. They brought one of the teachers who was kidnapped by the PKK before the men and asked the teacher if any of the men were there. They made the villagers stand up for this purpose. The teacher said that there were no PKK people amongst them. He could see what was happening in the village as it was right opposite.

94.  He saw the soldiers or guards set fire to the village with his own eyes. He did not see whether they were soldiers or guards or how they set fire to the village.

95.  The guards came to his mother’s house and he saw them set fire to her house. They killed her dog at the front door, also her donkey and her cat. He had done nothing wrong.

96.  He knew Z. D. and he saw her that day. She was taken from her house in the lower neighbourhood. The walls were concrete, the rest was timber and there was clay on the top. He could see her house from the place where the men were kept. He did not know who set fire to it. She had three fields and each one was about 2-3000 square metres. One field was down at the bottom of the village.

97.  The soldiers had started burning houses. They did not say anything when they took him out of the house.  He said that they did not talk to him. However then he said that one of them said: ‘A few days ago they took seven teachers and an imam from Dadaş village and brought them to your village. They then took them somewhere else and killed them’. He was then asked if he had seen anything. He said that he had not. He then said that he asked an officer ‘What have we done wrong Commander? You come and attack us. The PKK come and attack us’. He did not know the officer nor recognize any of the village guards at the time. However he knew the Kurdish names for the villages they came from - İndar, Zobri and Şikefta. When the PKK had come to the village in the past they were armed like the soldiers. When asked how he told the difference between soldiers and PKK people, he replied that he never spoke to them nor went up close to them (the PKK people).

98.  Ahmet Çakıcı was in the village on that day. The officer had mentioned they were searching for Ahmet Çakıcı, saying ‘If you had handed over Ahmet Çakıcı sooner, we would not have set fire to your village’. He had replied to the officer ‘What have I done wrong? Am I responsible for Çakıcı?’ He saw Ahmet being held by guards. The soldiers had told the men they could go and put out the fires. The soldiers left the village as soon as they had caught Ahmet Çakıcı. He later stated that he saw Ahmet, about about 2 or 3 hours after he was caught, on the road and that they were probably taking him to the officer by the vehicles.

99.  The villagers returned to the village but could not put out the fires. He said that there was nothing left. He saw the house of the applicant from a distance. He did not go into the house but there was nothing left inside as everything had been burned. About 50 or 55 houses had been burned. All the villagers left.

100.  He stayed on in the village on his own for about ten days after the incident to sell his animals. Nobody else stayed. The soldiers did not return while he was there. His house had not been burnt but they burned his father’s house and the houses of his two brothers. The guards, not the soldiers, had gone into his house and smashed everything and thrown it outside.

101.  The house of the village muhtar, Hacı Fevzi Okatan was quite far away from his. He did not see with his own eyes whether they had burned the muhtar’s house or not. His house had been burned a few years before. He was not at home at the time but he was told the PKK had done it. He did not know why. The muhtar had repaired the house and moved in with his wife and family.

102.  After he went to Diyarbakır, he had not filed a petition of complaint with an official authority because he “did not know how” and was not able to do that. He knew that several people had done so and that some people did not because they were afraid. He had not applied to any authority to request to return to his village. Other villagers had done so but he did not know if they had received a reply. He would go back to the village if he was left in peace. It would be difficult to live there because the houses had collapsed or been burned. He said that the soldiers would not allow them to move back unless they became village guards. If they could, all the villagers would go back and live in their village. They would not do so unless their safety was guaranteed.

B.Oral evidence in the Ahmet Çakıcı case.

103.  The evidence of the witnesses relevant to the case of Dulaş heard by the Commission’s Delegates on 3-4 July 1996 may be summarised as follows:

(1)Izzet Çakıcı

104.  The witness was born in 1953 and was currently living in Diyarbakır, where he had lived since 1981. In November 1993, his brother Ahmet lived in Çitlibahçe village. He had heard that the security forces used to visit the village but had heard of no incident before November 1993. He was not present in the village on 8 November 1993. The next day, he heard about what had happened from villagers who came from the village to Diyarbakır on the minibus. He was told by the villagers, Ramazan Önal and Teyfik Uyanik, that Ahmet had been taken from the village by the Hazro gendarmes. He heard that his brother had been taken alone. He knew Z. D. as she was a neighbour in Çitlibahçe.

105.  He heard from the villagers that many soldiers from Hazro, with village guards from Sarıerik, Meşebağlar, Kırmataş and Kavaklıboğaz came at about 07.00-8.00 hours. They took all the men outside across from the village, while the women and children stayed in the village. They carried out a search and 60-70 houses were burned, including his own house, his father's house and his brother's house. The soldiers thought that the Çitlibahçe villagers gave food to the PKK. Bağlan village was 15 minutes away by foot.

106.  When the soldiers arrived, Ahmet was in the coffee house. He hid in a place nearby. When that house was set on fire, he had to come out and he was seized. The commander said to the men, "Go back to your village. We've caught Ahmet Çakici. We wanted him." They said that he was a member of the PKK militia. Ramazan Önal and Teyfik Uyanik told him that the operation ended then. Many villagers, about a hundred, mostly women and children, were around when Ahmet was seized and many saw him taken. A boy, Mehmet Emin Bulan, was taken from the village at the same time as Ahmet but he was set free and came home. This boy mentioned that they had been taken to İndar.

107.  Çitlibahçe, containing about 200 houses, was mountainous on the south, with plain to the north and west, with forest on both sides. Sarıerik, was 20-25 minutes away, Meşebağlar about half an hour, Kırmataş an hour away and Kavaklıboğaz half an hour away. No-one lived at Çitlibahçe any more. When asked to name the village guards in the operation, he identified Faki as the chief of the Sarıerik village guards.

(2)Fevzi Okatan

108.  Fevzi Okatan said that he was born in 1931 and had lived in Diyarbakır since 1990. He had been muhtar of Çitlibahçe, a village with some 200 houses, for eight years. In 1989, terrorists burned his house and they had moved to Diyarbakır. He had made a formal complaint about this incident.

109.  On 6 November 1993, the district governor of Hazro told him on the telephone that Sunday was to be census day and that he should go to the village where officials would count the population. He went to the village where his wife also was. After the census was finished, he spent the night in the village. (At another point, the witness described an election taking place that day.) Between 07.00 and 8.00 hours, on 8 November 1993, Hazro soldiers and guards from four villages surrounded the village. There were about 50-55 soldiers and 200 village guards.

110.  The company commander called him as muhtar and told him that all the men should come to a flat field near the village. He transmitted the order from the loudspeaker of the mosque. About 200 men went to the field less than 500 metres from the village. It was possible to see the village from the field. All the guards entered the village. A few minutes later, smoke rose from the village. Some one, a village guard, shouted from the village in Kurdish, "We've caught Ahmet Çakıcı". The company commander then ordered the men to go to put out the fires. Everyone began to run towards the village. He was sick, walking slowly. He saw Ahmet Çakıcı in the hands of the village guards, one holding him by the hair and another by the collar. There were guards around him and behind. They took him next to the vehicles. He did not see where they took him after that. (At another point he said that he saw the cars go towards Bağlan.)  When he saw him with the guards, Ahmet was on the brook road, about 25 metres away. He heard that Ahmet was caught, when they set fire to a house near the fountain, causing him to be frightened and come out. When the operation started, Ahmet had gone to hide in the house near the fountain.

111.  There were two commanders, a commando commander and a gendarmerie commander. He knew the difference in uniforms and, though in the East their ranks were covered, he understood it was the commander who was giving orders. Fifty-four houses were burned. He did not see how it was done. They had burnt the house that he rented in the summer in the village. Women and children were crying. The operation ended before noon. The purpose was to catch Ahmet Çakıcı. Ahmet had been wanted for a long time. He agreed that Ahmet and others in the village were militia.  It was said that the security forces went to Bağlan village next.

112.  Z. D. was a co-villager and he knew her. He did not know whether they burned Z. D.’s house at the time of the incident or later. Houses were burned in all quarters of the village. He was not able to say whether furniture or other things inside were burnt. Three days after the incident, the village was empty. No houses are left intact now. He had not been back to the village himself, but he had sent his wife and she had told him that. Together, the villagers had given about 15 petitions to Ankara, the Governor, everywhere. They were not able to go back to the village due to the village guards. He referred to the village guards having power and to blood feuds. He did not complain about his rented house being burned because he was not the owner.

113.  The gendarmes had come to the village on previous occasions, when the terrorist activities increased, telling them not to give the PKK bread or other things.

(3)Remziye Çakıcı

114.  The witness was born in 1956 and had lived in Diyarbakır since 1993. In November 1993 she lived in Çitlibahçe, where she had been born. Her husband lived in the village. He grew tobacco, raised animals.  The gendarmes had come to the village occasionally. On one occasion three months before they took their tobacco, they had asked for her husband and she had said that he had gone to sell tobacco at the Black Sea. In the summer of 1993, they conducted an operation, taking their tobacco. Her husband had been absent then, taking tobacco to the Black Sea to sell.

115.  On 8 November 1993, she was at home. Soldiers and village guards arrived at about 07.30- 8.00 hours. Their cars came to a place across from the village. They went into the village and took the men outside, 500 metres across from the village. They made a search and set fire to houses. Ahmet had been in the coffee house and gone to the house near the fountain. When the houses were set alight, he came out of the house next to the fountain and was taken by the soldiers and guards.  There were some old women near the fountain, including her sister Makbule Uğurlayan, who shouted “They took Ahmet”. They went outside into the street and saw that the house was set on fire and that Ahmet was in the hands of soldiers and guards being taken to the opposite side of the village. The soldiers shouted that the men should return and put out the fires. The soldiers left the village in their cars, taking the Mışıf road (at another point, the witness says she saw them driving to the İndar and Hazro road). They took a 10 or 12 year old boy, Mehmet Emin Bulan, with them up to İndar village. The boy was released there and came back the next day. The boy was the son of Haçi Bulan. His mother had tried to stop them burning her house and had been beaten. They had taken the boy because of that.

116.  The operation lasted 2-3 hours. She saw the houses, tobacco and goods being set on fire but she did not know with what. The gendarmes did not say why the houses were being burned. 60-70 houses were burned, including her own and those of her father-in-law, brother-in-law and uncle. They searched her house and set fire to everything inside it too. There were empty houses, but intact, where the villagers had moved to Diyarbakır when their tobacco was taken. They searched and set the houses on fire before her husband was caught. She was not told that they were looking for him. She had not seen her husband since.

(4)Ertan Altınoluk

117.  The witness was born in 1963. In November 1993, he was the gendarme commander in Hazro district. Çitlibahçe was under his jurisdiction. He went there many times in his two years in office which ended in July 1994. There were terrorist problems throughout his district.

118.  Shortly before 8 November 1993, while he was on annual leave, teachers and an imam were abducted by the PKK in Hazro district. Their bodies were found 2-3 days later. On his return, he had to investigate. In light of information gathered in his absence, an operation was conducted in several villages, including Çitlibahçe, with a view to investigating, finding clues and the culprits. The information gathered included that the teachers had stayed in a village in the Lice district. No names of the persons involved were known, but they had descriptions of the people whom the PKK had asked for help, to guard the teachers, bring provisions and shelter the teachers. These preliminary investigations had been conducted by his gendarme colleagues at Hazro who had contacted the citizens in the district.

119.  When referred to the operation order of 7 November 1993 which referred to the aim as being the capture of PKK terrorists and collaborators and the destruction of shelters, the witness stated that they put down all the estimated possibilities and this was standard. Shelters referred to shelters in caves and dugouts. They had drawn up an itinerary between the place where the teachers were kidnapped and where the bodies were found. Çitlibahçe and Bağlan villages were on that route. He drew, on request, a sketch map, indicating the respective positions of the villages, Çitlibahçe being closer to Hazro and Bağlan being further away inside the Lice district boundary. Çitlibahçe was about 30 km from Hazro. Bağlan was not mentioned on his operation order as he did not have jurisdiction to plan operations outside his area. When it was pointed out to him that he in fact went to Bağlan village on the operation, he explained that if the need arose, as operations developed and with the agreement of commanding officers, they were able to cross boundaries into other districts.

120.  Under his command were a gendarme unit, a commando unit of 20 men and two teams of village guards (which he estimated at 30 persons). Village guards have the duty of protecting citizens and property within the boundaries of their villages. On missions, they assign guards from villages along their route to provide security for vehicles and personnel. Village guards are under their command and responsibility at such time. On this operation, they assigned guards to providing security through a mountain pass near the Lice boundary on their route to prevent ambush. The guards were from Kavaklıboğaz and Sarıerık which were on the route. There were none from Kırmataş or Meşebağlar as they were not on the route. He refuted the idea that the village guards were part of the operation. Village guards elect amongst themselves a "chief guard" who liaises with the gendarmes and reports to them.

121.  During the operation, in which he was the commander, he recalled that in Bağlan, a village in Lice, 600-700 metres from Çitlibahçe, they found persons who had sheltered the teachers on behalf of the PKK. He was present when Bağlan village was searched and those persons found. The persons did not deny their involvement but stated that they had been forced to help. They were handed over to Lice personnel and sent to Lice as they were from the Lice district. When he arrived in Bağlan, his Lice colleagues were already there. He saw a unit of about 20. His men provided security around the village while the Lice unit went into the village to search. The persons who were apprehended were brought to him. The Hazro unit had to be involved in the Bağlan operation since they knew the descriptions of the persons implicated in helping in the kidnapping of the teachers. He confirmed that the order recorded that the operation began at 5.30 hours and they returned at 15.00 hours. In normal conditions, it took three hours to get to Çitlibahçe from the central Hazro station and taking precautions, he estimated it took four hours. They would stay only briefly in villages, to avoid the possibility of incidents. He estimated a figure of 23-25 minutes for Çitlibahçe.

122.  As regarded Çitlibahçe, which they went to before Bağlan, no definite clues were found about the incident and no-one was taken. His men had surrounded the village on their arrival. As was the usual procedure, the villagers were gathered at a suitable flat place, an area outside the village opposite the road, and he talked to them, asking them if the teachers had been in the village etc, while his men carried out a search. They were not looking for the perpetrators (since the PKK lived in the mountains) but for clues about the organisation and whether people from the village had helped them. No information was given to him. Though the persons described to them were in Bağlan, they went to Çitlibahçe since that was on the direct route from the teachers' village of Dadaş. He was under an obligation to trace their route and find any clues. During the search, they separated the men from the women, only talking to the men, since in that region it was considered improper for strange men to be near or talk to other men's wives. The women stayed away in a separate part of the village. He agreed that anyone walking from the village to where the vehicles were parked would have passed the flat area where the villagers had gathered.

123.  He remembered that Fevzi Okatan, the muhtar, was there during the operation and that he assembled the villagers. He described the muhtar as a strange man, who had claimed compensation from the State as his house had been burned by terrorists and that he had later complained of persons in the village, collaborators, helping the terrorists by burning his house. The muhtar was the main person who complained about Ahmet Çakıcı as disturbing the peace and had come to the witness and the district governor, complaining that the whole village had to leave because of one man and how could he trust the authorities if they could not catch one man. The muhtar was lying when he said that he had seen Ahmet Çakıcı taken into custody. He also perhaps had something to gain from making an application. The witness denied that any damage occurred to the villages during the operation, their duty being to protect persons and property. It was impossible for the security forces to burn houses down as alleged. No houses were set on fire that day. He visited Çitlibahçe after 8 November 1993 and it did not look any different, and the same people were living there. However, in the spring, due to the decision of the PKK to empty the region and create social problems, the villagers evacuated their village, as did other villagers at that time.  The villagers wanted to return but the PKK obstructed it. Fevzi Okatan had asked the State to provide military support so they could go back without fear but since they did not get what they wanted, namely a military unit posted there, they did not go back.

124.  He had heard of Ahmet Çakıcı's name before 8 November 1993 and knew that he lived in Çitlibahçe. His name was known to him from the date he took up his office. The authorities had to know the names of trouble makers, liable to disturb the peace and in that context he had heard of Ahmet Çakıcı. He had no information that Ahmet Çakıcı was directly involved or present at the killing of the teachers. But it was certain that the teachers passed through the village and that one or two villagers contacted them. But in their investigations they did not find out the names of these villagers. He was not aware that the three persons from Bağlan had made statements implicating Ahmet Çakıcı as giving instructions about holding the teachers. If he had detained anyone from Çitlibahçe, he would have taken them to Hazro which had the jurisdiction. He never received an instruction from Diyarbakır State Security Court prosecution to arrest Ahmet Çakıcı in relation to his committing an offence.

125.  The Çitlibahçe region was mountainous. Villagers used to keep livestock but with the increase in terrorist activities, they were unable to take the animals to pasture and terrorists used to take the animals. There was another source of income in the region, narcotics which were produced and transported outside and sold. Apart from that, villagers grew their own fruit and vegetables. In Çitlibahçe and surrounding villages, they grew Indian hemp flowers, grinding the seeds to obtain hashish/cannabis. He had seized and destroyed thousands of heads of hemp flowers in the fields. There was some limited tobacco growing but none around Çitlibahçe, since permits were required. The gendarmerie handled the applications and he had never seen any tobacco at that village, nor any applications for permits.

(5)Mehmet Bitgin

126.  The witness said that he had been born in 1926. He now lived in Diyarbakır. He used to live in Çitlibahçe but now there was nobody left there. In November 1993, he was living there.  He knew the applicant and Ahmet Çakıcı.

127.  One day, they looked out and saw the place was full of soldiers. They arrived between 07.00 and 7.30 hours. He had been sitting with Ahmet in the coffee house playing cards. The witness went home to make breakfast, leaving Ahmet there. He saw smoke coming from the house and Ahmet was taken. He was beside the fountain. He had been hiding. A guard held him and handed him over to the soldiers. The soldiers took him away in the pickup to Mişif. No-one else was taken. Because the witness was old, he was not required to gather with the other men outside the village. The women stayed where they were.

128.  The soldiers and guards had surrounded the whole village. They set fire to the whole village. There was much smoke.  There was no house left. He saw the commander but did not remember his name. The commander said that they were going to burn the whole place except for the mosque. The commander did not go into the village but stayed opposite the village. He ordered the soldiers and guards to set fire to the village. When it was over, they got their belongings out of the burning houses and went to Diyarbakır. His house was burned. He had received no compensation.

C.Relevant domestic law

129.  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.”

130.  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.

131.  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.”

 The Turkish Criminal Code makes it a criminal offence

-to oblige someone through force or threats to commit or not to commit an act (Article 188),

-to issue threats (Article 191),

-to make an unlawful search of someone's home (Articles 193 and 194),

-to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),

-           to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or

-to damage another's property intentionally (Article 526 et seq.).

133.  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.

134.  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).

135.  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.

136.  Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.

137.  Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.

138.  Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.

139.  The applicant points to certain legal provisions which weaken the protection of the individual which might otherwise have been afforded by the above general scheme (paras. 140-145 below).

140.  Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.

141.  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.

142.  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.

143.  Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces.

144.  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.”

145.  According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

146.  The Commission has declared admissible the applicant’s complaints:

- that the destruction of her home interfered with her right to respect for family and private life;

- that she has been deprived of her possessions and peaceful enjoyment thereof;

- that her life was threatened by the Hazro gendarme commander unit;

- that the burning of her home and expulsion from her village amounted to inhuman and degrading treatment;

-that the actions of gendarmes deprived her of security of person;

- that there was no effective investigation, access to court, redress or effective remedy provided in respect of these matters;

- that these matters disclose discrimination;

- that these matters disclose restrictions on Convention rights imposed for ulterior purposes.

B.Points at issue

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

- whether there has been a violation of Article 8 of the Convention;

- whether there has been a violation of Article 1 of Protocol No. 1 to the Convention;

- whether there has been a violation of Article 2 of the Convention;

- whether there has been a violation of Article 3 of the Convention;

- whether there has been a violation of Article 5 of the Convention;

- whether there has been a violation of Article 6 and/or Article 13 of the Convention;

- whether there has been a violation of Article 14 of the Convention in conjunction with the above provisions;

- whether there has been a violation of Article 18 of the Convention.

148.  Additionally, there is the issue whether there has been a failure of the Turkish Government to comply with their obligations under former Article 25 of the Convention.

C.The evaluation of the evidence

149.  Before dealing with the applicant's 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 former Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:

i.There have been no findings of fact made by domestic courts as regards the subject-matter of the applicant's complaints. 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 the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of "beyond reasonable doubt" as adopted by the Court. Such proof may follow from 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).

ii.In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in some cases via Kurdish and Turkish into English): it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates.

iii.In a case where there are contradictory and conflicting factual accounts of events, the Commission particularly regrets the absence of a thorough domestic judicial examination or other detailed independent investigation of the events in question. It is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1.Events in the Hazro District

150.  The Commission notes that Çitlibahçe was in a district in which terrorist activity was intense in 1993. The security forces made regular visits and operations were not uncommon. According to Emin Bilen and Avni Dula, the PKK used to come to the village, holding meetings and taking food by force. The muhtar Fevzi Okatan stated that the security forces told them not to give food to the PKK.  The applicant, Avni Dulaş, and Remziye Çakıcı all recalled an incident in July 1993 when villagers were forced to pull up tobacco crops. Although there is some disparity amongst the witnesses as to how this was done, the witnesses’ accounts are similar in that they say that the tobacco crops were destroyed by order of the security forces. The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops. The Commission does not feel it is necessary to make any finding in regard of this aspect which is not the subject-matter of any specific complaint.

151.  Shortly before 8 November 1993, PKK terrorists went to the village of Dadaş in the Hazro district and took away five teachers, the imam and the imam's brother. All, save one of the teachers, were shot. The imam's brother, though wounded, survived.

2.The operation in Çitlibahçe village on 8 November 1993

152.  Following the discovery of the bodies of the teachers, the gendarmes at Hazro gathered information from their contacts and sources as to what had happened and who had been involved. They had descriptions of the villagers who had been assisting the PKK holding the group of teachers. An operation was therefore planned in the region. Lieutenant Altınoluk, the district commander, was adamant that they did not have the names of any of the persons involved and that they were not looking for Ahmet Çakıcı when they went to Çitlibahçe. The Commission found a number of difficulties arising from the Lieutenant’s testimony which was submitted to the Delegates during the taking of evidence in the case of Çakıcı. It is proposed here to summarise only those aspects which are of particular relevance to this case.

153.  Firstly, the operation order dated 7 November 1993 drawn up by Lieutenant Altınoluk recorded its aim as the capture of PKK terrorists and their collaborators and the destruction of shelters and named Çitlibahçe as the place of the operation. The Lieutenant's evidence was that a number of activities were specified in the order to cover all eventualities. The aim of the operation was, according to him, to follow the likely route taken by the PKK kidnapping group and to collect any evidence and information en route. The Commission notes however that the Hazro gendarmes in fact only visited two villages, Çitlibahçe and Bağlan, and that their route via the road did not follow the cross-country route taken by the terrorists. When Lieutenant Altınoluk was asked to explain why Çitlibahçe was named on the order when on his account the key part of the operation was taking suspects into custody at Bağlan, he stated that Bağlan was outside his jurisdiction and that he could not place it on the form. Since however the operation was being co-ordinated with the Lice gendarmes who arrived at the village to assist in the procedures, the Commission does not see any obvious jurisdictional obstacle to recording this on his operation description if it was in fact the principal goal of the operation.

154.  Secondly, on the Lieutenant's account, the main reason for going to Çitlibahçe was to talk to the villagers. He also referred to carrying out a search but stated that they had only stayed in the village for 23-25 minutes for security reasons. Since the village contained about 200 houses, it is not evident that such a search could have been general or thorough. In such circumstances, the usefulness of a visit to Çitlibahçe is not readily apparent, though it was specified as the destination on the operation order.

155.  Finally, the evidence of other gendarme witnesses in the Çakıcı case was to the effect that Ahmet Çakıcı, who was from Çitlibahçe, was a wanted person even before the kidnapping, The evidence of Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin is consistent as regards their assertion that the soldiers and village guards who came to the village were looking for Ahmet Çakıcı; that Ahmet Çakıcı was aware that he was wanted since alone amongst the villagers he took steps to hide; and that the search was called off once Ahmet Çakıcı had been found.

156.  The Commission's Delegates found Lieutenant Altınoluk to be an evasive witness, with a volubly unhelpful response to questioning. They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations, which were often contradictory and inconsistent.  On the other hand, the Delegates found that the villagers, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who gave eyewitness accounts, were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions. While Lieutenant Altınoluk made negative comments as to one of the witnesses, Fevzi Okatan, implying that he might have things to gain from his allegations, the Commission notes that these were vague and appeared to relate to Fevzi Okatan's attempts to gain compensation from the State alleging its responsibility for his house being burned by the PKK. Before the Delegates, Fevzi Okatan, without evasion or exaggeration, stated that the PKK burned his house and was putting pressure on the villagers. Lieutenant Altınoluk's statement that as muhtar Fevzi Okatan had made complaints about Ahmet Çakıcı as a trouble maker does not conflict with his testimony to the Delegates. Indeed the elements to which Lieutenant Altınoluk drew attention disclose no ulterior motive or any indication that the evidence which Fevzi Okatan gave to the Delegates in respect of what he witnessed during the operation was anything other than a truthful account. 

157.  The Commission accordingly found in the Çakıcı case that in all probability the Hazro gendarmes included Çitlibahçe as a specific goal in their operation since they intended to look for and take into custody Ahmet Çakıcı, who as a person already suspected as involved in PKK activities, would be likely to have information about the kidnap group that would have passed through the village. That the gendarmes would not have sought at least to question Ahmet Çakıcı, a suspected collaborator, about the kidnapping when visiting the village of Çitlibahçe, when one of their purposes was to identify collaborators involved in the kidnapping, appeared incredible to the Commission.

158.  Having regard to the above, the Commission also accepted the evidence of the villager witnesses that Ahmet Çakıcı hid when the soldiers arrived, that he was taken into custody when he was found and that he was last seen by the witnesses being taken by village guards and soldiers to the vehicles. Lieutenant Altınoluk's denial that he was taken into custody was not found to be reliable.

159.  The Commission recalled that the Lieutenant and other gendarme witnesses denied that the village guards would be used in any search or arrest operation and it has considered whether this casts doubt on the villagers' testimony. It notes however that, despite the apparent official ban on use of village guards in an operational context, the evidence taken by its Delegates in other cases indicates that village guards have been involved in operations and apprehension of persons.  The Commission notes that the operation order of Lieutenant Altınoluk referred in the listing of personnel to two units of village guards. It therefore did not find that this element undermined the villagers' testimony.

160.  In this case the Commission adopts the finding in the Çakıcı case (No. 23657/94 Comm. Rep., op. cit., para. 231) that Ahmet Çakıcı was apprehended at Çitlibahçe and this is relevant to this case as it confirms that an operation by the gendarmes did take place on 8 November 1993, which involved searching for suspects implicated in the murder of the imam and teachers and wounding of the imam’s brother.

3.The destruction of property at Çitlibahçe on 8 November 1993

a. The evidence taken during the Çakıcı case

161.  In the oral testimony of four witnesses, it was stated that the security forces set fire to houses in Çitlibahçe. According to Izzet Çakıcı and Remziye Çakıcı, about 60-70 houses were burned, Fevzi Okatan claimed that as an official he counted 54 houses which were burned, whereas Mehmet Bitgin claimed that no house was left standing. As regards the latter's evidence, the Commission recalls that he was an elderly, frail individual and that his evidence was not detailed, with a tendency to broader assertions. The Commission reiterates its findings that the testimony of these witnesses was on the whole consistent and reliable. The evidence of Lieutenant Altınoluk on contested issues it found unreliable. It notes that the Lieutenant alleged that the village remained unaffected until the spring of 1994 when due to PKK pressure on the area it was evacuated. Nonetheless, Izzet Çakıcı and Remziye Çakıcı had already made written statements to the HRA in December 1993 that houses had been burned and the village forcibly evacuated.

b. Evidence in the present case

162.  The Commission’s Delegates found the applicant to be a convincing witness. Her oral testimony was largely consistent with the statement given to the HRA. No comparison can be made with the statement that she gave to the Public Prosecutor in or around July 1995 as a copy has not been produced by the Government pursuant to the Delegates’ request. The Commission Delegates noted that the applicant was an elderly, simple and unsophisticated lady who was on the whole credible. Any inconsistencies may be attributed to the applicant’s advanced years and the passage of time since the events in question.  As an example, in her oral evidence, the applicant was unable to say how the soldiers and/or gendarmes actually set light to the houses although in her written statement she had said petrol.

163.  The Government in their final observations point to other alleged inconsistencies in the evidence put forward by and on behalf of the applicant.

164.  In respect of the applicant herself, the Government state that her age casts some doubt on the evidence she gave before the delegates. For example, when her lawyer asked her to give the names of those whose houses had been burned she gave a series of villagers’ names. However, when the Government Agent then asked her the first name of villagers Bilen or Becerekli, she said that she did not know them. Further, the Government state that when she was asked by a Delegate specific questions about 8 November 1993 she gave a clear reply. However, when the Government Agent asked her what year it was now, she did not know. Finally, the applicant had stressed that she wanted compensation yet she had not applied to the administrative tribunal where she could have received compensation even if no one was found guilty of the acts complained of.

165.  In respect of Avni Dulaş the Government submits that, as he was not in the village on the day concerned, he cannot give any first hand evidence on the events.

166.  In respect of Emin Bilen, the Government submit that he stated that it was the soldiers and village guards who burnt the houses. However, when asked how one could distinguish village guards from terrorists he said that terrorists dressed the same as soldiers but when they had come to the village he had not spoken to them.

167.  The Government therefore state that there are clear contradictions which puts the good faith of the witnesses in doubt.

168.  The applicant states that the accounts of the eyewitnesses are fundamentally consistent with each other and that the Government had not offered any explanation why the applicant would have cause to make false allegations against the security forces. Further the Government had not produced evidence to rebut the testimony of the applicant and other witnesses’ testimony.

169.  The Commission has had regard to the evidence in the Çakıcı case and has taken that into account when considering its findings in this case. The Commission notes the similarities in the oral testimony of the three witnesses in respect of the events surrounding the alleged burning of the applicant’s home in Çitlibahçe. Some of the testimony of Avni Dulaş consisted of stories that had been related to him by other villagers but the similarities remain:

a) All estimated that the number of houses burnt was about 50;

b) All agreed that the soldiers and guards arrived early in the morning on 8 November 1993;

c) All stated that the men were grouped together and taken to a place outside the village;

d) All were able to give specific examples of houses that had been burnt down;

e) All related that the soldiers or guards set fire to houses (both the applicant and Emin Bulen personally witnessed this);

f) All stated that Ahmet Çakıcı was apprehended by the security forces (both the applicant and Emin Bulen saw him in their custody) and received the impression that the operation’s main purpose was his capture;

g) All referred to the destruction of furniture and possessions;

h) All reported the village to be in ruins.

170.  Having regard to the evidence as a whole, the Commission accepts the evidence of the applicant as regards its principal elements. It does not find the matters referred to by the Government as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses, which its Delegates assessed in generally positive terms. While the Commission has already noted the applicant’s age, its Delegates did not find any indication of mental infirmity that would cast doubt on her ability to give evidence.

Concluding Findings

171.  Having regard to the above, the Commission finds that the applicant’s property, furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of Çitlibahçe on 8 November 1993. This led to the evacuation of the village. The Commission finds that the possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions).

172.  On the basis of its findings above, the Commission will now proceed to examine the applicant’s complaints under the various Articles of the Convention.

D.As regards Article 8 of the Convention

173.  Article 8 of the Convention reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

174.  The applicant alleges that the destruction of her home, property and possessions represents a serious violation of her right to respect for private and family life and a separate violation of her right to respect for her home ensured by Article 8 of the Convention. Further, her expulsion from her home and village by the security forces constitutes a separate violation of those rights. In addition, the applicant alleges that the destruction of her home and the expulsion from her village represent a serious interference with her lifestyle within Article 8, and the fact that this was part of a practice meant that she had suffered an aggravated violation of Article 8.

175.  The Government maintain that no houses were damaged by the security forces in the operation of 8 November 1993. Further, the applicant has not exhausted domestic remedies.

176.  The Commission is of the opinion that, in the light of the finding of fact above (para. 171 above), there has been a very serious interference with the applicant’s rights under Article 8 of the Convention by state security forces, for which no justification has been given. In the light of the grave nature and effect of the interference in this case, which cut across the entire personal sphere protected by the different and frequently overlapping limbs of Article 8 para. 1 (private life and family life and home), the Commission finds it unnecessary to distinguish between them. In view of the fact that the Commission has found a serious interference with the applicant’s rights, it does not consider it necessary to consider the question of a practice in this case.

CONCLUSION

177.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

E.As regards Article 1 of Protocol No. 1 to the Convention

178.Article 1 of Protocol No. 1 to the Convention provides:

“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

179.  The applicant alleges that the destruction of her property by the security forces and her enforced evacuation of her village also violates her rights under Article 1 of Protocol No. 1. Further, as the applicant and her family are not entitled to return to the property which is lawfully theirs so as to exercise their rightful enjoyment of it, there is a serious violation of Article 1 of Protocol No. 1. She claims that, as this was part of a practice, she has suffered an aggravated violation.

180.  The Government deny that any houses were damaged in the security operation which took place in Çitlibahçe village on 8 November 1993.

181.  The Commission recalls its findings of fact above (para. 171) to the effect that the security forces deliberately destroyed the home and property of the applicant, necessitating her moving away from the village. It finds that this discloses a very serious interference with the applicant’s rights under the above provision for which no justification has been given.

CONCLUSION

182.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 1 of Protocol No. 1 to the Convention.

F.As regards Article 2 of the Convention

183.  Article 2 of the Convention provides:

“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a.  in defence of any person from unlawful violence;

b.  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c.  in action lawfully taken for the purpose of quelling a riot or insurrection.”

184.  The applicant submits that the lack of any effective system for ensuring protection of the right to life and the inadequate protection of the right to life in domestic law violates her rights under Article 2 of the Convention. The applicant maintains that the burning of villages is a life-threatening activity. Further, when this is permitted to be carried out by agents of the State, where there is no investigation into that activity and those agents are therefore granted impunity for their actions, there is a complete absence of a system for the protection of the right to life in South-East Turkey.

185.  The Government submit a security operation was performed in the village of Çitlibahçe but that the houses of the village were not damaged at all. The Government further submit that the applicant has failed to exhaust domestic remedies.

186.  The Commission notes that it has not been established that the security forces set fire to the house when the applicant was inside. Furthermore, there is no evidence that there was a deliberate attempt on the life of the applicant or that she has suffered any life-threatening injury as a result of any recklessness or careless disregard on the part of the security forces. The Commission therefore does not need to consider the question of the protective systems which may or may not be in place in South-East Turkey.

CONCLUSION

187.  The Commission concludes, unanimously, that in the present case there has been no violation of Article 2 of the Convention.

G.As regards Article 3 of the Convention

188.  The Commission will now examine the applicant’s complaint that the interference with the applicant’s home and family life was so serious that it also amounted to a violation of Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

189.  The applicant alleges that subjecting her to a raid on her village in which she was forced from her house, forced to gather outside the village for 2 hours while the men were lying face down on the ground was a violation of Article 3. The burning of her home and property in front of her own eyes was also a violation. The enforced evacuation also left her destitute and without security contrary to Article 3. The applicant submits that the destruction of homes in the village was a collective punishment and a violation of Article 3. Similarly, the applicant was a victim of a policy of village evacuation and destruction and as a victim of such a practice has suffered an aggravated violation.

190.  The Government contend that no houses were damaged in the security operation which took place on 8 November 1993.

191.  The Commission recalls its findings above (para. 171). It considers that the burning of the applicant’s home constituted an act of violence and deliberate destruction in utter disregard of the safety and welfare of the applicant who was left without shelter and in circumstances which caused her anguish and suffering (see Eur. Court HR, Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports of Judgments and Decisions 1998-II, p. 19, para. 78). The Commission notes in particular the advanced age of the applicant. It recalls that the applicant was unable to save her personal belongings and the dire personal situation in which the applicant and her family subsequently found themselves, being deprived of their home in their own village and the livelihood which they had been able to derive from their fields. It accordingly finds that the applicant has been subjected to inhuman treatment within the meaning of Article 3 of the Convention.

CONCLUSION

192.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention.

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

193.  Article 5 para. 1 provides so far as is relevant:

“1.  Everyone has the right to liberty and security of person.”

194.  The applicant alleges that she, along with the other villagers of Çitlibahçe, was compelled to abandon her home and village on 8 November 1993, in breach of the right to the exercise of liberty and enjoyment of security of person.

195.  The Government have not addressed this aspect of the case save insofar as they deny that any houses were burned in the operation.

196.  The Commission recalls that the primary concern of Article 5 para. 1 of the Convention is protection from any arbitrary deprivation of liberty. The notion of security of person has not been given an independent interpretation (cf. Nos. 5573/72 and 5670/72, Dec. 16.7.76, D.R. 7 p. 8; No. 4626/70 et al., East African Asians v. the United Kingdom, Dec. 6.3.78, D.R. 13 p. 5).

197.  In the present case, the applicant was not arrested or detained, or otherwise deprived of her liberty. The Commission considers that the insecure personal circumstances arising from the loss of her home does not fall within the notion of security of person as envisaged by Article 5 para. 1 of the Convention (see also Akdivar and others v. Turkey No. 21893/93 Comm. Rep. 26.10.95, see Reports 1996-IV).

CONCLUSION

198.  The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 of the Convention.

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

199.  Article 6 para. 1 and Article 13 of the Convention provide, as far as relevant, as follows:

Article 6 para. 1:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.....”

Article 13:

“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.”

200.  The applicant complains of both a lack of access to court contrary to Article 6 of the Convention and a lack of effective remedies in respect of her complaints under Article 13 of the Convention. She complains that her right to a civil remedy has been denied by the failure of the authorities to carry out an investigation or to bring criminal proceedings against those responsible which effectively prevented her from bringing proceedings. Under Article 13 she claims there is no effective remedy in South-East Turkey in respect of any of the claims set out in her application. Further the applicant alleges that there is a practice of violations of Articles 6 and 13. She submits that the practice of village destruction, the attitude of the authorities to allegations against the security forces and the laws in operation render domestic remedies ineffective.

201.  The Government maintain that the applicant should have exercised her right to institute proceedings before either the civil or administrative courts, which could have made a determination on the merits of the compensation claim irrespective of the outcome of a domestic criminal investigation or any finding of guilt by a criminal court. That hypothesis has not however been tested since the applicant has not at any stage pursued a claim for compensation before the domestic courts.

202.  Having regard to the findings of the Court in previous cases (amongst others, Selçuk and Asker v. Turkey judgment, op. cit., para. 92), the Commission has found it appropriate to examine the applicant’s complaints about remedies in relation to the destruction of her home and property under Article 13 of the Convention alone.

203.  The Commission recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. The nature of the right which the authorities are alleged to have violated also has implications for the nature of the remedies which must be guaranteed. In cases dealing with allegations of destruction of property and the forcible evacuation from home, the Court has held that the notion of effective remedy entails the payment of compensation where appropriate and a thorough and effective investigation into the allegations capable of leading to the identification and punishment of those responsible and including the effective access for the complainant to the investigatory procedure (see, amongst other authorities, Eur. Court HR, Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, para. 89, Selçuk and Asker v. Turkey judgment, op. cit., para. 96).

204.  The Commission refers to its decision on admissibility in the present case (see appendix to this Report) where, in the context of Article 26 of the Convention, it found that the application raised similar 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.”

205.  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 Court confirmed this approach in this and later cases (Akdivar and Others v. Turkey judgment, op. cit., p. 2277, para. 56, Selçuk and Asker v. Turkey judgment, op. cit., paras. 67-71).

206.  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 a successful, or indeed any, prosecution brought against a member of the security forces for destruction of a house in a village in this region. The Commission refers to the evidence taken in the present case. It would appear that a file was opened following the applicant’s complaint to the Commission and a statement made to the Public Prosecutor. However, no investigation appears to have been undertaken by the prosecutor who referred the matter to an Administrative Council. Administrative Councils have been found to be non-legal, administrative bodies, subject to the authority of the executive and consequently not independent and further it has been found that they are unlikely to instigate effective investigative measures (see Eur. Court HR, Oğur v. Turkey judgment of 20 May 1999, Reports 1999-, paras. 91-93). Where the allegations concern the security forces, which enjoy a special position in the emergency area in the South-East of Turkey, the Commission considers that it is unrealistic to expect villagers to pursue theoretical civil or administrative remedies in the absence of any positive findings of fact by the State investigatory mechanism.

207.  In the light of these considerations, the Commission is of the opinion that the applicant did not have effective remedies at her disposal for her claims. In the light of this the Commission finds it unnecessary to examine the applicant’s complaints as regards an alleged practice of failure to provide effective remedies under Articles 6 and 13 of the Convention.

CONCLUSION

208.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 13 of the Convention.

J.As regards Articles 14 and 18 of the Convention

209.  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.”

210.  The applicant maintains that because of her ethnic and cultural identity as a Kurd she has been the victim of the violations of the Convention in a disproportionate manner so as to amount to discrimination under the meaning of the Convention. The applicant alleges that the policies which the Government is tolerating and/or imposing, in particular the policy of village destruction cannot be deemed to be compatible with the Convention and in employing such policies the Government is in violation of Article 18.

211.  The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.

212.  The Commission has examined the applicant’s complaints in the light of the evidence submitted to it, but considers them unsubstantiated.

CONCLUSIONS

      The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 of the Convention.

      The Commission concludes, unanimously, that in the present case there has been no violation of Article 18 of the Convention.

K.As regards former Article 25 of the Convention

215.Former Article 25 of the Convention provides so far as is relevant:

“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right....”

216.  The applicant alleges that her rights under former Article 25 have been breached for two reasons. Firstly, as her son recalled, she had been questioned by gendarmes and sections of her application had been read to her. Her representative alleges that the questioning did not take place within the context of a domestic investigation as there was none. The questioning took place in the absence of her legal representatives and was inconsistent with the obligations of the Government under former Article 25. Secondly, on May 23 1997, the security forces closed down the Diyarbakır branch of the Human Rights Association and removed files, information and a computer. Her representative says that documentation relating to her application has been confiscated and this measure indicates that her actions may attract the disagreement of the authorities.

217.  The Government has made no submissions in relation to these matters.

218.  The Commission recalls that former Article 25 para. 1 imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Commission. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings. In this respect, as in others, the Convention must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (see Eur. Court HR, Cruz Varas and others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 36, para. 99).

219.  The Commission would further emphasise that the right of individual petition guaranteed under former Article 25 of the Convention is of fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention and its Protocols. Deliberate or repeated interferences with the free exercise of that right must be regarded, in the Commission's view, with the gravest concern. Interference may also result from indirect pressure on applicants from State authorities. In particular, approaches by domestic authorities to applicants to question them about the applications in circumstances which may be construed as attempts to discourage or penalise the pursuit of complaints may lead to a finding that a Contracting State has failed to comply with its obligations under former Article 25 para. 1 of the Convention.

220.  In the present case the Commission observes that in her evidence to the Delegates the applicant did not refer herself to being taken by the police to go to the public prosecutor’s office. It appears that the issue only came to light at a later stage of the proceedings when the applicant’s son referred to it in his evidence to the Delegates. He had been with the applicant when she went to the public prosecutor’s office and stated that the public prosecutor accused the applicant of complaining about Turkey to Europe and that the public prosecutor appeared to be trying to put pressure on her. The Commission recalls that it found the evidence of the applicant’s son to be credible. Also the Commission notes that the Government do not deny that the applicant was summoned before the public prosecutor to make a statement or that she was questioned about her application as alleged.

221.   The Commission notes that the statement which was taken from the applicant has never been produced by the Government despite several requests. The Commission considers it inappropriate for the domestic authorities to approach an applicant and question him or her about his or her application to the Commission in the absence of his legal representatives. This is particularly so where the applicant, as in this case, is elderly and in a difficult and vulnerable position and where any such initiatives by the authorities may be understood as attempts to discourage an applicant from pursuing his or her complaints in exercise of his or her right under former Article 25 of the Convention. The Commission is of the opinion that the Turkish authorities, in questioning the applicant in the way that they did, made the exercise of the applicant’s right of individual petition under former Article 25 of the Convention more difficult. They have as a result hindered the effective exercise of the applicant’s right under the provision.

222.  In respect of the closing down of the Human Rights Association, the Commission notes that there is no indication that the closure was linked to the applicant’s case and that no details are provided of the documents removed. The Commission finds that there is insufficient evidence to lead to a separate violation of former Article 25 in that regard.

CONCLUSION

223.  The Commission concludes, unanimously, that in the present case the Government have failed to comply with their obligations under former Article 25 of the Convention.

L.Recapitulation

224.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention (para. 177).

225.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 1 of Protocol No. 1 to the Convention (para. 182).

226.  The Commission concludes, unanimously, that in the present case there has been no violation of Article 2 of the Convention (para. 187).

227.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention. (para. 192).

228.  The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 of the Convention (para. 198).

229.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 13 of the Convention (para. 208).

      The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 of the Convention (para. 213).

231.The Commission concludes, unanimously, that in the present case there has been no violation of Article 18 of the Convention (para. 214).

232.  The Commission concludes, unanimously, that in the present case the Government have failed to comply with their obligations under former Article 25 of the Convention (para. 223).

M.-T. SCHOEPFER S. TRECHSEL

        Secretary                 President

to the Commission         of the Commission

[1] While 1931 was the date given in the application form, the applicant clarified in her oral evidence in February 1997 that she was 73 years old. A time-lag between birth and registration is a common phenomenon in this part of Turkey. 

[2] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[3] It was not clear whether the applicant was averring that the muhtar was taken away on 8 November 1993 or on another occasion.

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