CASE OF AKDİVAR AND OTHERS v. TURKEY
Preliminary objection rejected (abuse of process);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 25-1;Violation of P1-1;No violation of Art. 14;No violation of Art. 18;Not necessary to examine Art. 3;Not necessary to examine Art. 5;Not necessary to examine Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos
12. The facts are based on the Commission's findings of fact as set out and developed in its report of 26 October 1995. 13. 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. It appears from information submitted by the applicants and by the amicus curiae that a large number of villages, estimated at more than 1,000, have been destroyed and evacuated during this conflict (see paragraph 7 above). 14. Since 1987, ten of the eleven provinces of south-eastern Turkey have been subjected to emergency rule which was in force at the time of the facts complained of. 15. The applicants (see paragraph 1 above), Turkish nationals, were residents in the village of Kelekçi in the Dicle district of the province of Diyarbakir. The village of Kelekçi and the surrounding areas have been the centre of intense PKK terrorist activity. It is undisputed that the PKK launched serious attacks on Kelekçi on 17 or 18 July 1992, and the neighbouring village of Bogazköy on 1 November 1992. As a result of the first attack, three Kelekçi villagers were killed and three others wounded. The second attack on 1 November 1992 was directed at the Bogazköy gendarme station, which was destroyed, with one gendarme being killed and eight others injured. Thereafter security forces were reinforced in the area and extensive searches were carried out for terrorists. The applicants alleged that on 10 November 1992 State security forces launched an attack on the village of Kelekçi, burnt nine houses, including their homes, and forced the immediate evacuation of the entire village. 16. The Government categorically denied these allegations, contending that the houses had been set on fire by the PKK. Initially they stated that the village had merely been searched and that no damage had been caused. Subsequently, it was maintained that no soldiers had entered Kelekçi on 10 November 1992, and, if they had been in the vicinity, they had stopped on the outskirts of the village to take a rest. 17. On 6 April 1993 houses in Kelekçi were set on fire and the village was almost completely destroyed. It is disputed, however, whether this destruction was caused by terrorists or by security forces. 18. The Commission established that nine houses, including those of the applicants, were destroyed or seriously damaged by fire not long after the attack on the Bogazköy gendarme station on 1 November 1992. Although noting that there was some uncertainty as to the exact date when the nine houses were burnt, it accepted the applicants' claims that this occurred on 10 November 1992. 19. The Commission found that no proper investigation was carried out at the domestic level regarding the destruction of the nine houses at Kelekçi on 10 November 1992 either immediately after the event or thereafter. Apparently, a gendarmerie report of 29 November 1993 dealt with events at Kelekçi. However, the Commission concluded that this report and other "incident reports" which had been submitted to the Chief Public Prosecutor at the Diyarbakir State Security Court, in so far as they concerned the destruction of the nine houses, did not result in any investigation of the facts and involved no attempt to establish responsibility for the destruction. 20. It was also established by the Commission that, although the applicants had lost their homes, no one gave proper advice to them or, apparently, to the other displaced Kelekçi villagers, on how to obtain compensation for the loss of their homes or other forms of assistance. Petitions were made by the mayor of the village and statements were given to several State officials. However, no authority took up the applicants' problems or referred them to the competent body. 21. There was also evidence before the Commission that, after the case had been brought to it, certain of the applicants, or persons who were believed to be applicants such as Hüseyin Akdivar and Ahmet Çiçek (see paragraphs 48-50 below), had been questioned by the State authorities about their applications to the Commission. The Commission had been provided with a filmed interview with these two persons, during which they were asked about the case in Strasbourg. 22. As regards the events on 10 November 1992 (see paragraph 15 above), the Commission noted that the investigation reports and the recorded statements by villagers which had been submitted to it by the respondent Government were dated September 1994, i.e. almost two years after the destruction of the nine houses. In these statements they placed the blame on the PKK for setting fire to the houses. At that time, a number of villagers had been heard by the authorities about events at Kelekçi. It was observed that this inquiry had taken place at a time when the village had been further damaged on 6 April 1993, and after the Commission had communicated the applicants' complaints to the Government for observations and decided to hold an oral hearing in the case. It was further noted that the investigation reports of September 1994 were based on an exploratory mission undertaken by helicopter on 21 September 1994. During this mission, the investigating team did not land at Kelekçi but only observed the village during low-level flights. The report stated that all the houses at Kelekçi had collapsed and that there were no inhabitants in the village. 23. As to the events of 6 April 1993, the Commission found that a team of gendarmes had heard various villagers in April 1993. However, in their recorded statements no reference was made by the villagers to the incident of 10 November 1992. The statements were examined by the Commission in order to determine whether they should affect the Commission's findings on questions of fact in respect of the incident complained of. In its report of 26 October 1995 it concluded as follows: "197. In this respect, it is striking that the various statements by the villagers are drafted in a stereotyped form and have on the whole the same contents (see paragraphs 54, 56, 57, 59, 61, 65, 66, 68, 71, 73 and 75). Most of them describe the events of 6 April 1993 in an almost identical manner. In the recorded statements the villagers refer to the fact that the terrorists had made a previous attack on the village during which three persons had been killed and three others injured, this general formula being used even in the statements of the applicants Ahmet Çiçek and Abdurrahman Aktas whose close relatives, including the latter's father, had been killed on that occasion. The statements also contain a declaration about the villagers' respect for the State and their willingness to help the State. All in all, the recorded statements give the impression of having been drafted in a uniform manner by the gendarmes rather than reflecting spontaneous declarations by the villagers. This may also explain why some of these statements are in complete contradiction to what the same persons have stated on other occasions (see Ahmet Çiçek's statements referred to in paragraphs 61 and 89-90 above, Abdurrahman Aktas's statements referred to in paragraphs 54 and 98 above, and Abdullah Karabulut's statements referred to in paragraphs 66, 67 and 111 above). Thus it seems highly doubtful whether the recorded statements to the gendarmes can be said to reflect the information that the villagers intended to convey in regard to the events at issue." 24. The Commission concluded that it attached no particular weight to the statements of the villagers in April 1993. It further noted the inadequacy of any real investigations at the domestic level which could be of assistance in elucidating the events on 10 November 1992. It concluded that the absence of any such investigations was in itself a disturbing element in regard to a serious matter such as the destruction of the homes of a considerable number of persons. 25. In the absence of any relevant investigations at the domestic level, the Commission based its finding on the evidence which had been given orally by various persons or submitted in writing in the course of the proceedings before it. 26. The Commission concluded that there was no evidence of any conspiracy between the villagers to accuse the State of the burning of the houses in order to obtain compensation or for any other purpose. It also noted that, while there was evidence that the security forces were in the village, none of the witnesses stated that any stranger had been seen at Kelekçi on 10 November 1992. It was unlikely that terrorists would have set fire to nine houses in the village without anyone having noted their presence. Nor was there any other evidence showing that terrorists had been at Kelekçi on that day. 27. Following an assessment of the evidence, the Commission found it convincingly shown that security forces - presumably under the strain of intense terrorist activity in the area - were responsible for the burning of the nine Kelekçi houses on 10 November 1992. However, it had not been shown that the applicants were forcibly expelled from Kelekçi, but the loss of their homes caused them to abandon the village and move elsewhere. 28. The Government have submitted that the following domestic law is relevant to the case. 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." 29. 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. 30. The principle of administrative liability is reflected in the additional Article 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." 31. The Turkish Criminal Code makes it a criminal offence - to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), - to oblige someone through force or threats to commit or not to commit an act (Article 188), - to issue threats (Article 191), - to make an unlawful search of someone's home (Articles 193 and 194), - to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382), - to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or - to damage another's property intentionally (Articles 526 et seq.). 32. 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. 33. 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 the Procedure of Military Courts). 34. 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 (Danistay); a refusal to prosecute is subject to an automatic appeal of this kind. 35. 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. 36. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 37. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. 38. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards. 39. 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. 40. 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. 41. 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. 42. 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." 43. 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.