PROCEDURE

The case originated in an application (no. 33243/96) 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 Abbas Şaylı (“the applicant”), on 5 September 1996.

The applicant was represented by Mr Ö. Kılıç and Mr M. Ali Kırdök, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions.

The applicant alleged that State security forces had destroyed his house and possessions and had forced him to leave his place of living. He alleged a violation of Articles 3, 5, 6, 8, 13, 14 and 18 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 2 September 2003, the Court declared the application admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided that no hearing on the merits was required (Rule 59 § 3 in fine). The parties replied in writing to each other’s observations.

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, who was born in 1956, was living in Otlubahçe 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 October 1994 the applicant lived in Otlubahçe, a village of Ovacık district in Tunceli province, in the then state-of-emergency region of Turkey. In 1994, 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). The inhabitants of the applicant’s village were suspected of “aiding and abetting terrorists”; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village.

On 5 October 1994 the security forces surrounded the applicant’s village and assembled the residents in the village square. Using curse words, they told them that the village would be evacuated at once with no possibility of return. The applicant took what he was able to carry with him and left the village. Immediately after the evacuation, the soldiers set the houses and the crops on fire.

The applicant moved temporarily into a prefabricated State disaster housing complex close to Ovacık.

Following the impugned events the applicant filed a petition with the Ovacık Public Prosecutor’s office complaining about the burning down and forced evacuation of his village by gendarmes.

As the case concerned an investigation into alleged acts of the security forces, the Ovacık Public Prosecutor issued a decision of non‑jurisdiction and referred the petition to the office of the District Governor in Ovacık in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).

The District Governor sent a letter to the Ovacık Gendarmerie Headquarters and requested information about the applicant’s allegations.

In a letter of 1 November 1994 the Gendarmerie Commander informed the District Governor that the security forces had not burned any house during their operations in the area. Accordingly, the Ovacık Administrative Council issued a decision to discontinue the criminal proceedings against the gendarmes.

On 25 October 1995 the Ovacık District Governor sent a letter to the applicant. Relying on the Ovacık Gendarmerie Commander’s letter of 1 November 1994, he explained that he was unconvinced by his allegations. He further explained that pursuant to the established case-law of the Supreme Administrative Court (Danıştay), no inquiry was possible unless the identity of the accused civil servant were specified. He therefore stated that the authorities would not initiate an investigation into the alleged events.

The applicant did not receive this letter. He learned of the Ovacık Public Prosecutor’s decision of non-jurisdiction and the Ovacık Administrative Council’s decision from his fellow villagers.

B. The Government’s version of the facts

In 1994 members of the PKK started a propaganda campaign for the organisation in the villages of Ovacık district. They kidnapped young men from these villages and forced them to join the organisation. The PKK militants issued threats against the villagers and harassed them. The inhabitants of the villages left their homes as a result of the pressure exerted by the PKK.

The investigation carried out by the authorities revealed that the applicant’s village had not been burned by the security forces but by terrorists wearing military uniforms. In his statements to the investigating authorities, the applicant failed to specify the identity of the perpetrators of the alleged crime.

C. The documents submitted by the parties

The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, can be summarised as follows.

1. The documents submitted by the applicant

(a) Annual Reports of the Human Rights Foundation (“the TIHV”) 22. The Human Rights Foundation is a non-governmental organisation with its head office in Ankara, Turkey. Its 1993 Report stated that, from 1990 to 1993, more than 913 villages and hamlets had been evacuated. The 1993 Report maintained that village evacuations had accelerated in 1993, mostly targeting the villages whose inhabitants refused to serve as village guards. 23. The 1994 Report of the TIHV argued that the Government’s policy was to claim that the evacuations and eventual destructions were caused by PKK terror, poverty and the forces of nature. According to the same report, some 50 to 60 villages were burned down in each of the provinces subject to the emergency rule. 24. The 1995 Report maintained that more than 400 villages had been evacuated in 1995. According to the 1996 Report, the State-of-Emergency Regional Governor once mentioned that a total of 918 villages and 1,767 hamlets had been evacuated for various reasons, although never admitting that evacuations had been carried out by security forces. 25. The 1997 and 1998 Reports described the Government’s policy of evacuating villages as a systematic “internal security operation” applied throughout the 1990s. (b) Excerpts from “Burned-down / Evacuated Villages and Migration”, a book published by the Human Rights Association 26. The excerpts gave a comprehensive list of burned-down and/or evacuated villages from February 1990 to January 1999. The list did not make any reference to Otlubahçe as having been evacuated and destroyed. 27. The excerpts contained several articles reproduced from a daily newspaper Ülkede Gündem, relating to the evacuation of villages and its detrimental effects on the displaced persons. The articles stressed that numerous villagers had filed petitions with the State authorities, complaining that their villages had been burned down by security forces. 28. The articles also emphasized that the Government’s public declarations, which appeared to allow displaced villagers to return to their villages, were unreliable. Whenever villagers had attempted to do so, they were physically denied access to their villages. (c) The report of 14 January 1998 of the Turkish Grand National Assembly’s Commission of Inquiry on the measures to be taken in order to address the problems of the persons displaced following the evacuation of settlement units in east and south-east Anatolia. 29. This report was prepared by a Commission of Inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,923 hamlets were evicted and forced to move to other regions of the country (p.13). 30. The report included a statement by Mr Doğan Hatipoğlu, a former governor of Diyarbakır. Mr Hatipoğlu explained that, during his office, occasional village evacuations by military authorities were brought to his attention. He stated that – although very rarely – he had received complaints about village burnings. According to Mr Hatipoğlu, it was inconceivable to assert that all the villages were vacated due to PKK coercion. He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons (p.13). 31. The report also referred to the “Human Rights Report – Turkey”, prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz Önen, the chairman of the Human Rights Foundation. This latter report dedicated a chapter to immigrants and evacuated villages. It argued that, in 1995, the practice of evacuation of villages and hamlets was widespread. Many houses in villages were either destroyed or made uninhabitable. People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages. In early 1995 there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards (p.19). 32. The report of the Commission of Inquiry also referred to the speech delivered at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy from Şırnak, on 3 June 1997 on the question of evacuated villages. Mr Yıldırım stated, inter alia, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, by the authorities since they were unable to protect the villages, or because the inhabitants of those villages refused to become village guards or were suspected of having aided the PKK (p. 20). 33. In conclusion, it was recommended in the report that the inhabitants of the settlement units should be re-housed in the provinces, districts or central villages – rather than hamlets – close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region, priority being given to the immigrants.

2. The documents furnished by the Government

(a) Report of April 2004 concerning the property owned by the applicant 34. This report aims at indicating the property owned by the applicant. Following an investigation carried out by the authorities it appeared that the applicant owned a house and a plot of land measuring 19,506 metres square according to the records of the land registry office. He has another plot of land measuring 31,000 metres square according to the municipal registry office. It was estimated that the applicant could derive 816,000,000 Turkish liras’ income from his lands. The applicant does not have any registered trees. According to the official records, he did not have any commercial activity given that he did not pay any tax. (b) Halit Şaylı and Hasan Süzgün’s statements dated 10 March 2004, taken by two gendarmes 35. The witnesses are two inhabitants of Otlubahçe village in Ovacık province. Their statements were taken in order to determine the situation of the applicant who had lodged an application with the Court. The witnesses stated that the applicant lived in Pulur neighbourhood of Ovacık. The witnesses also noted that there was no electricity, school or telephone in Otlubahçe.