PROCEDURE

The case originated in an application (no. 37850/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Halis Aksakal (“the applicant”), on 3 November 1995.

The applicant, who had been granted legal aid, was represented by Reyhan Yalçındağ and Cihan Aydın, lawyers practising in Diyarbakır, and Lucy Claridge, Tim Otty, Anke Stock, Philip Leach and Mark Muller, lawyers practising in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The applicant alleged that State security forces had destroyed his home and possessions and had forced him to leave his place of residence with no possibility of return and that he had been denied an effective remedy in domestic law in violation of Articles 3, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 1 July 2003, the Court declared the application partly admissible.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1963 and lives in Diyarbakır. He was living in Görbeyli village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows.

A. The applicant's version of the facts

Until April 1994 the applicant lived in Görbeyli, a village of Lice district in Diyarbakır province, in the then state-of-emergency region of Turkey. The village which was situated some 3 km from Lice district comprised approximately eighty households before 1995. In 1995 terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan).

On 5 May 1995, at around 10 a.m., the applicant heard an explosion which seemed to come from a place under the control of the army. Following the explosion a group of reinforcement soldiers from Lice came to the area and entered the applicant's village. The soldiers told the inhabitants that one soldier had died and two soldiers had been injured in the explosion which had been caused by the explosion of a grenade in the hand of a soldier.

The soldiers then rounded up the villagers beside the primary school and split them into two groups, one of women and children and the other of the men. They apprehended Süleyman Şanlı, aged 67, in the fields and stripped him naked and inflicted ill-treatment upon him before the villagers. The soldiers then beat the men of the village using clubs. At the same time, another group of soldiers entered the village and started destroying the villagers' possessions. All the windows and doors of their houses were broken. The soldiers took those goods which might be of use to them. In the meantime, the beating of the men continued. Before leaving the village, the soldiers told the villagers that they would return in three days and if the villagers were still there, they would kill them all. As it was spring and their crops were not yet ready for harvest, the inhabitants did not leave the village. They rather set about fixing their houses and other property.

On 12 May 1995 the soldiers arrived in the village, they assembled the villagers in the school yard and beat them as before. The soldiers demolished the houses and killed many of the livestock in the village.

In the second half of June 1995 the soldiers raided the village again and razed it to the ground, including the vineyards, orchards and forestry.

The applicant filed complaints with the offices of the State of Emergency Regional Governor, the Diyarbakır Chief Public prosecutor and the Diyarbakır Provincial Regiment Command. The applicants' fellow villagers' request to return and cultivate their lands was rejected by the authorities.

Meanwhile, the applicant has submitted to the Court a report prepared by the Human Rights Association in Diyarbakır, entitled “The Burned and Evacuated Settlement Units”. This report gives the list of villages or settlements which were allegedly evacuated or destroyed by the security forces. The applicant's village appears on this list as having been burned down on 15 May 1995.

Another report entitled, “The Destruction of Villages in Southeast Turkey, prepared by Medico International and the Kurdish Human Rights project in June 1996, provides background information on the destruction of villages in South-east Turkey and makes suggestions on the steps to be taken in order to address the immediate humanitarian needs and long term strategies to remedy the problems of internally displaced persons.

The applicant has also furnished the Court with photocopies of four photographs showing four houses in ruins allegedly in Sexan (Görbeyli) village. However, it is not possible to determine the exact cause of the current state of these houses from these photos.

B. The Government's version of the facts

On 5 June 1995 the applicant and two members of the village elders' council, namely Mehmet Şanlı and Alaattin Altan filed a petition with the Lice Public Prosecutor's office, for submission to the Diyarbakır Chief Public Prosecutor's office, complaining that the security forces had evicted the inhabitants of their village and destroyed their property. They asked the judicial authorities to conduct an investigation into the events and to prosecute those responsible for the destruction of their property.

In letters dated 15 December 1995 the Lice Chief Public Prosecutor asked the Lice District Gendarme Command and the Diyarbakır Chief Public Prosecutor to carry out an investigation into the allegations made by the applicant and his two other fellow villagers.

In a letter of 23 January 1996 the Diyarbakır Chief Public Prosecutor requested the Security Directorate to summon the complainants to his office in order to hear evidence from them.

The investigation conducted by the Security Directorate to find out the address of Alaattin Altan did not yield any result. Halis Aksakal could only be found at the end of four months' search.

On 25 April 1996 the Diyarbakır Public Prosecutor took statements from the applicant, who reiterated his allegations and asked the judicial authorities to prosecute the security forces who perpetrated the impugned acts. He further informed the prosecutor that Mehmet Şanlı had returned to his village and that Alaattin Altan worked in Van.

Meanwhile, in a letter of 7 February 1996 the Gendarmerie Commander replied to the Lice Chief Public Prosecutor's letter and informed him that, contrary to the allegations, no houses had been burned on 15 May 1996 and that no one had applied to the command with such allegations.

On 18 May 1996 the Lice Chief Public prosecutor issued a decision of non-jurisdiction and transferred the case-file to the Lice District Governor's office in accordance with the Law on Prosecution of Civil Servants. Thereupon, Deputy to the Diyarbakır Governor, who was then in charge of the case, asked the Diyarbakır Gendarmerie Command to appoint an investigator to carry out the preliminary investigation.

The preliminary investigation was carried out by Captain Hacı İlbas, who was at the relevant time the Gendarmerie Unit Commander in Lice. On 29 July 1996 Inspector İlbas took statements from five inhabitants of Gürbeyli, including the muhtar of the village. The villagers all stated that, on 15 May 1995, following a road block by members of the PKK, a clash had erupted between the security forces and the PKK militants. After the clash, the security forces had carried out a house search in Görbeyli and other neighbouring villages. The witnesses all claimed that the security forces had not inflicted any damage to their property, that no houses had been burned down and that the inhabitants had not been forced to leave the village. Furthermore, they all noted that the complainants, including the applicant, had all been living in Diyarbakır and that they could return to the village if they wished.

In his investigation report dated 12 August 1996, Inspector İlbaş concluded that the applicant's allegations were groundless. He found it established that on 15 May 1995 members of the PKK had blocked the Lice-Kulp road and kidnapped one person. Consequently, the security forces had intervened and during the clashes three PKK terrorists had been killed, following which the security forces had carried out searches in the villages in the region with due respect to the citizens.

On 10 October 1996, having regard to the inspector's report, the Lice District Administrative Council issued a decision of non-prosecution in respect of the security forces.

On 6 March 1997, the Regional Administrative Court upheld the District Administrative Council's decision of non-prosecution.