CASE OF MENTEŞ AND OTHERS v. TURKEY
Preliminary objection rejected (non-exhaustion);Not necessary to examine Art. 5;Not necessary to examine Art. 6;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;No violation of Art. 2;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Not necessary to examine Art. 3;Violation of Art. 8
C. Russo;N. Valticos;R. Pekkanen
11. The applicants, Ms Azize Menteş, Ms Mahile Turhallı and Ms Sulhiye Turhallı and Ms Sariye Uvat are Turkish citizens of Kurdish origin from the village of Sağgöz (which is the official Turkish name) or Riz (which is the older, Kurdish or Ottoman name) in the Genç district in the province of Bingöl in south-east Turkey. At present they live in Diyarbakır. 12. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. 13. Sağgöz is situated in a mountainous area which was subject to significant PKK terrorist activity. Due to the events in the region in 1993 and 1994, many of the villages in the district have been evacuated by the villagers and the houses destroyed. By the summer of 1994, the village of Sağgöz and its surrounding hamlets were deserted, the villagers having left for Diyarbakır, Genç and other places, and the houses ruined. 14. The Sağgöz village was evacuated as a whole by the villagers in or about October 1993, following pressure from the PKK in the area. Some of the villagers in the outer hamlets stayed beyond October 1993 but had all left by summer 1994 due to PKK presence. Shortly after the villagers began leaving, the PKK moved into the empty houses. Clashes with security forces ensued, one in October or November 1993, another in April/May 1994. It is probable that houses in the village were burned or destroyed in the course of these clashes, including possibly through bombing from helicopters. However, whether the PKK or the security forces set fire to the houses intentionally or accidentally is not established. 15. The facts in this case are disputed. 16. According to the applicants their houses were burned in the course of an operation by the security forces in June 1993. Their version of the events could be summarised as follows. 17. The applicants all lived in hamlets of the village of Sağgöz. Azize Menteş, Mahile Turhallı and Sulhiye Turhallı lived in the lower neighbourhood in Sağgöz village and Sariye Uvat lived in Piroz, a separate hamlet of the village. 18. On 23 June 1993, an attack was carried out by the PKK on Üçdamlar gendarme station. On the evening of the same day, the security forces stopped a minibus belonging to Naif Akgül, which regularly took people between Diyarbakır and the Lice area, as it approached the gendarme station. The security forces set fire to the minibus. They subsequently carried out a followup operation in pursuit of the PKK who had attacked the station. On 24 June 1993, security forces came to Pecar (Güldiken) village and burned some of the houses. 19. On the evening of 24 June 1993, security forces arrived in the area surrounding Sağgöz village by helicopter. On the morning of 25 June 1993, gendarmes entered the village and gathered people from the upper neighbourhood in the area in front of the school. Gendarmes in the lower area carried out a search and then proceeded to burn houses in the lower neighbourhood of Sağgöz village. Villagers pleaded with the gendarmes not to burn their houses but were told to remain quiet or they would be thrown on the flames. When asked why they were burning the houses, the gendarmes told the villagers that it was a punishment for helping the PKK. 20. The house where Azize Menteş lived was burned completely, along with her furniture, firewood, barn and a shed with winter feed for the animals. Mahile Turhallı’s house was burned and the gendarmes threatened to throw her into the burning house if she tried to retrieve some of her children’s clothes. Sulhiye Turhallı’s house was burned, after she and her children had been thrown out and she had been kicked, cursed at and a gun put to her face. In all, ten to thirteen houses in the lower neighbourhood were destroyed. The soldiers told the applicants that they were burning their houses because they helped the terrorists. 21. The intention of the gendarmes in Sağgöz village appeared to have been to burn the whole village in revenge for the attack by the PKK on the gendarme station. However, the arrival of a commanding officer at midday, a colonel who ordered the burning to stop, saved the upper village. The house of the applicant Sariye Uvat in the hamlet of Piroz was burned by the security forces in a separate incident. The applicants were forced to leave Sağgöz. 22. Later, in the autumn of 1993, the remaining population of the village left and in March 1994 the remainder of the village was burned down. By this date in 1994, the entire area seems to have been burned, devastated and depopulated. 23. The burning of the applicants’ homes is consistent with a practice of burning houses as part of the policy by the security forces to combat the PKK, especially where the authorities view villages as giving support to the PKK. 24. Since 1983 the PKK has sought to use the applicants’ village as a place of shelter and supply base. The villagers were forced by virtue of the incursions of the terrorists to leave the village. The terrorists used the houses from time to time and when the security forces took action against them, the terrorists fled setting the houses on fire. 25. There were no operations by the security forces in the area on 25 June 1993. In fact, the applicants had been absent from the village for six to seven years by that point. They were the close relatives of six named individuals who are suspected of being members of the mountains branch of the PKK. They also had relatives who had been detained on charges alleging, inter alia, that they have aided and abetted the PKK terrorist organisation. Other members of the applicants’ families were working for the PKK in rural areas. It was not unlikely that the applicants had been subjected to pressure by their relatives who aid and abet and work for the PKK. 26. The Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements, and oral evidence of eleven witnesses taken by three delegates of the Commission in Ankara from 10 to 12 July 1995. This included two local public prosecutors and four villagers whom they had investigated in connection with the applicants’ allegations (see paragraphs 27–30 below); another villager; the first three applicants; and the commander of the gendarmerie of the Bingöl province who had taken up his duties after the alleged events. In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in some cases via Kurdish and Turkish into English). It therefore paid careful attention to the meaning and significance which should be attributed to the statements of witnesses appearing before its delegates. In respect of both written and oral evidence, the Commission was aware that the cultural context of the applicants and the witnesses made it inevitable that dates and other details lacked precision (in particular, numerical matters) and did not consider that this by itself impinged on the credibility of the testimony. It assessed the evidence and its findings could be summarised as follows. 27. Two investigations into the events at Sağgöz had been carried out by the two public prosecutors at Genç, the first by Mr Ata Köycü and the second by Mr Kadir Karaca, both of which had ended in decisions, on 25 April and 30 May 1994 respectively, not to prosecute. 28. The first investigation had been in response to a letter from the Ministry of Justice, apparently motivated by information received when the applicants’ complaints had been communicated by the Commission to the Turkish Government on 15 April 1994 (date of letter). In reconstructing the investigation, the Commission’s delegates had received little assistance from the public prosecutor who had also been handicapped in not having a copy of his file for reference. His decision not to prosecute, which concluded that no incident had occurred on 25 June 1993, must have been taken less than two weeks from his receipt of the first notification of the complaints. It seemed likely that the applicants’ names were not known to him at that stage. This decision had been taken solely on the basis of brief statements from four villagers, from different hamlets, distinct from Sağgöz, which appeared mainly directed at refuting specific allegations: the bombing by helicopters in June 1993 (not in fact alleged in the applicants’ original application) and the tying up or beating of the old men. All had referred to terrorist clashes with security forces leading to the villagers’ departure from Sağgöz; only one had attributed the burning of houses to the PKK. According to Mr Karaca, the witnesses had been selected at random, but Ekrem Yarar, muhtar of Sağgöz, had said that he had been invited to make a statement and to bring other “reliable witnesses” from the village. 29. Also the second investigation had been in response to another letter from the Ministry of Justice. Mr Karaca had based himself on the investigation of his colleague. He referred to the previous four statements and summoned the four villagers concerned. His decision not to prosecute concluded that the PKK burned the houses in the village, that the alleged incident had not taken place in June 1993 and that the applicants were close relatives of members of the PKK. 30 31. The Commission observed that there had been no detailed investigation at the domestic level of the events in Sağgöz village and its surrounding hamlets over the period June 1993 to summer 1994. It had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings. It further noted that the Government, despite repeated requests by the Commission’s Secretariat and the Commission’s delegates, had failed to provide documentary materials, in particular the contents of the investigation files of the two public prosecutors who carried out investigations into the alleged incident in Sağgöz village. At the taking of evidence in July 1995, the Government had failed to identify and serve with the Commission’s summons the gendarme commander for the area on 25 June 1993, his successor, Mr Tuna, appearing instead. No explanation had been forthcoming for this. In this respect, the Commission had had regard to the principle that, in assessing the evidence in a case the conduct of the parties may be taken into account (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 161 in fine). 32. The Commission was not persuaded by the Government’s suggestion that the applicants’ complaints were fabrications resulting from pressure exerted by their relatives in the PKK. The Commission found it regrettable that the response from the domestic authorities and the Government’s allegations made in this case had given the appearance of being directed more at emphasising the PKK links with the applicants’ families than at dealing with the substance of the applicants’ grievances. 33. In establishing the facts, the Commission had regard to the inconsistencies and contradictions in the evidence. As to the evidence given by the four villagers to the public prosecutors, the Commission observed that its tenor had been dogmatic, including blanket denials of any alleged cruelty or burning ever having been committed by Turkish soldiers. It had also given some support to the applicants’ allegation that there was a certain animosity between the other villagers and themselves, which might have encouraged them to give statements contradicting the applicants’ account. Moreover, the Commission noted that the village muhtar had been instructed by the prosecutor to bring some “reliable witnesses”. In view of the manner of selection of witnesses by the prosecutor, the Commission found it unsafe to rely on their written statements in so far as they were unsupported by other evidence. The Commission further noted that there were material differences between the statements of the first three applicants, Ms Azize Menteş, Ms Mahile Turhallı and Ms Sulhiye Turhallı, as recorded by the Human Rights Association and their oral statements to the delegates. However, the Commission found that the three applicants’ oral evidence, which was supported in material points by a villager – Ms Aysel Gündoğan – was on the whole consistent and credible. The fact that they had gone to the Human Rights Association in Diyarbakır to complain in July 1993 was a strong factor weighing heavily in favour of the credibility of their central complaint. On the other hand, the Commission considered that it could not rely on the written statements since it had serious doubts as to the manner in which the association took statements and the extent to which care had been taken to record accurately each individual complaint without contamination from information gathered elsewhere. 34. The Commission was satisfied that Sulhiye and Mahile Turhallı were still living in their houses in the lower neighbourhood of the village of Sağgöz in the summer of 1993 and were present on 25 June 1993. However, as appeared to be a not uncommon pattern of life in this region, these two applicants left the village in the winter for Diyarbakır and returned in the summer to tend to their gardens and crops. As regards Azize Menteş, while she probably did not own a house herself, she lived in the house of her fatherin-law when she returned in the summer months to the village. The Commission found that on the balance of the evidence, she was also living in the lower neighbourhood on 25 June 1993. As regards the events in Sağgöz the Commission accepted in its principal elements the oral evidence of Azize Menteş, Mahile Turhallı and Sulhiye Turhallı. Considering that their oral evidence was more consistent, more credible and more convincing than the evidence given by the four villagers, it found as follows. On the evening of 24 June 1993, a large force of gendarmes had arrived in the vicinity of Sağgöz village. On 25 June 1993, the gendarmes had entered both upper and lower neighbourhoods and carried out searches. At some point, the villagers in the upper neighbourhood (with the exception of the younger men who were out working) had been gathered in front of the school, probably to be questioned about the PKK in the area. In the lower neighbourhood, the women, including the applicants, had been required by the soldiers to leave their houses and their houses had been set on fire, with all their belongings and property inside, including the clothing and footwear of children. The burning had been restricted to the lower neighbourhood. Around midday, a helicopter had arrived in the village in the upper neighbourhood, probably bringing a senior officer, a colonel, and his arrival had been associated by the applicants and some of the other villagers with an order to cease the burning. The gendarmes left that day. Shortly afterwards, the three applicants, with their children or other members of their family, had to walk for up to ten hours to the Lice-Diyarbakır road from where they were given rides in vehicles into Diyarbakır. 35. As to the alleged operation by security forces in which the house of the fourth applicant, Sariye Uvat, was burned along with others in the hamlet of Piroz, no facts have been established in relation to this applicant’s complaints. Due to ill-health she did not appear at the hearings before the Commission delegates, unlike the first three applicants. 36. Article 125 of the Turkish Constitution provides as follows: “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.” 37. The above 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 responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the 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. 38. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides: “... 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.” 39. The Turkish Criminal Code makes it a criminal offence – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to oblige an individual 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 an individual’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 (Articles 526 et seq.). 40. 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. 41. 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 (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 42. If the alleged author of a crime is an agent of the State, 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 Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 43. 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. 44. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 45. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. 46. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards. 47. 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 no. 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge. 48. Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430. 49. Decree no. 285 modifies the application of Law no. 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. According to the Commission, 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. 50. Article 8 of Decree no. 430 of 16 December 1990 provides as follows: “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.” 51. According to the submissions of the applicants, 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.