PROCEDURE

The case originated in an application (no. 25801/94) against 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, Mrs Zubeyde Dulaş (“the applicant”), on 2 May 1994.

The applicant, who had been granted legal aid, was represented by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agents, Mr D. Tezcan and Mr A. Kurudal. Having originally been designated before the Commission by the initials Z.D., the applicant subsequently agreed to the disclosure of her name.

The applicant alleged principally that her home and property had been destroyed during an operation by gendarmes carried out in her village in south-east Turkey. Before the Commission, she invoked 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.

The application was declared admissible by the Commission on 23 May 1996. In its report of 6 September 1999 (former Article 31 of the Convention), it expressed the opinion unanimously that there had been a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, that there had been no violations of Articles 2, 3, 5, 14 and 18 of the Convention and that the Turkish Government had failed to comply with their obligations under former Article 25 of the Convention. The case was referred by the Commission to the Court on 23 October 1999. Before the Court, the applicant withdrew her complaints under Articles 2, 5 and 14 of the Convention.

The application was allocated to the First 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 of the Rules of Court. Mr Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

The applicant and the Government each filed observations on the merits on 20 April and 11 May 2000, respectively (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The facts of the case, particularly concerning events on or about 8 November 1993 when the gendarmes carried out an operation at Çitlibahçe, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara on 7 February 1997. These included the applicant; Avni Dulaş her son; and Emin Bulen, a villager. The Commission also had regard to the oral evidence given by witnesses on 3 and 4 July 1996 in the case of Çakıcı (see Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV), which concerned the same operation. This included the testimony of İzzet Çakıcı, whose brother had disappeared after being taken into custody by the gendarmes; Remziye Çakıcı, a villager and spouse of the disappeared person; Fevzi Okatan, previously muhtar of the village; Ertan Altınoluk the gendarme commander of the operation; and Mehmet Bitgin, a villager.

The Commission’s findings of fact are set out in its report of 6 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).

A. The Commission’s findings of fact

Çitlibahçe was in a district in which terrorist activity was intense in 1993. The PKK used to come to the village, holding meetings and taking food by force. The security forces made regular visits and operations were not uncommon. They told the villagers 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 by the security forces to pull up their tobacco crops. Although there was some disparity amongst the witnesses as to how this was done, the witnesses’ accounts were similar in stating 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 did not make any finding in regard of this aspect as it was not the subject-matter of any specific complaint.

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.

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 in the area who had been assisting the PKK in holding the group of teachers. On 8 November 1993, an operation, under the command of Lieutenant Altınoluk, was carried out by the Hazro gendarmes in Çitlibahçe, while gendarmes from Lice went to Bağlan nearby.

Concerning what happened during the operation at Çitlibahçe, the Commission’s Delegates had earlier 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 had 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. Their evidence was found to support the testimony of the witnesses heard in this case. In this regard, the Commission’s Delegates found the applicant to be a convincing witness, an elderly, simple and unsophisticated lady who was on the whole credible. Her oral testimony was largely consistent with the statement given by her to the Human Rights Association shortly after the incident. While there were some inconsistencies in her accounts, the Commission considered that they could be attributed to the applicant’s advanced years and the passage of time since the events in question. Her evidence accorded in essentials with that of her son Avni Dulaş and the villager Emin Bilen.

The Commission found that the Hazro gendarmes included Çitlibahçe in the operation since they intended to look for and take into custody Ahmet Çakıcı, who, as a person already under suspicion of involvement in PKK activities, would be likely to have information about the kidnap group that passed through the village.

When the gendarmes arrived at the village, early in the morning, they left their vehicles outside and entered. They gathered the men together in one place and the women in another. Ahmet Çakıcı had hidden. A search was carried out by the gendarmes, who also started setting fire to houses. Ahmet Çakıcı was found and taken into custody. He was last seen by the witnesses being taken by village guards and soldiers to the vehicles.

The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers. They set fire to her house, which had seven rooms and was made of timber. The family stored provisions, crops and wheat inside and these, along with the furniture and other household goods, were destroyed. About fifty houses in the village were burned down. She stated that once they had caught Ahmet Çakıcı the gendarmes left. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave.

Having regard to the evidence as a whole, the Commission accepted the evidence of the applicant as regards its principal elements. It did 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 took note of the applicant’s age, its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence.

The Commission found in conclusion 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 possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions).

The applicant and other villagers went to Diyarbakır after the operation. Accompanied by her son and three or four other villagers, the applicant went to the Human Rights Association. She made a statement and thumbprinted it.

Sometime later, the applicant was summoned to a police station. In his evidence to the Delegates, her son, Avni Dulaş remembered that she had been summoned to the public prosecutor’s office in about the summer of 1995. He accompanied her there. She had been asked to make a statement. The public prosecutor read out of a file, stating that she had complained to Europe about Turkey. He told the Delegates that he thought the prosecutor was trying to put pressure on his mother.

B. The Government’s submissions on the facts

The Government emphasised the terrorism which was prevalent in this region from the early 1990’s and created a public danger threatening the life of the nation. The PKK had killed thousands of innocent victims and exerted intolerable pressure on the local population. The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam.

The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on 8 February 1993. She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission. He issued a decision of non-jurisdiction, transferring the file to the Hazro governor. The Hazro Administrative Council began an investigation and found that her claims were unsubstantiated.

The Government submitted that the applicant’s various accounts, oral and written, were inconsistent and implausible, in particular the details purportedly noted down by the Human Rights Association in her application to the Commission.

C. New material

On 11 May 2000, the Government submitted a copy of the statement taken by the Diyarbakır public prosecutor from the applicant via an interpreter on 10 October 1995. This had not been provided to the Commission.

According to the statement, thumbprinted by the applicant, the letter from the Ministry of Justice, the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them. She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement. As regarded the events, she could not remember the exact date but about two years before 20 or more army vehicles had come to Çitlibahçe, with soldiers and village guards. They rounded up the villagers and set fire to the houses. After the village burned down, she went to Diyarbakır.

The statement recorded that she was shown the application and letter of authority and asked about them. She stated the thumbprints were hers. She said that she thought her application was going to Ankara to claim her rights. She was illiterate and ignorant and did not know anything about European human rights. She made her statement to them as she thought this would get something done about the damage which she had suffered. She wanted the State to vindicate her rights. She did not want to start a case in Europe in the way that he [the public prosecutor] had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do.