ITEMID: 001-58198
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF KURT v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected;Not necessary to examine Art. 2;Not necessary to examine Art. 3 (complaint in respect of applicant's son);Violation of Art. 5;Violation of Art. 3;Violation of Art. 13;No violation of Art. 14+2;No violation of Art. 14+3;No violation of Art. 14+5;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant, Mrs Koçeri Kurt, is a Turkish citizen who was born in 1927 and is at present living in Bismil in south-east Turkey. At the time of the events giving rise to her application to the Commission she was living in the nearby village of Ağıllı. Her application to the Commission was brought on her own behalf and on behalf of her son, Üzeyir Kurt, who, she alleges, has disappeared in circumstances engaging the responsibility of the respondent State.
9. The facts surrounding the disappearance of the applicant’s son are disputed.
10. The facts presented by the applicant in her final observations on the merits of her application in the proceedings before the Commission are contained in Section A below. This account of the facts also addresses her allegation that she and her lawyer have been subjected to intimidation by the authorities on account of her decision to lodge an application with the Commission. The applicant did not reconstitute her version of the circumstances surrounding the disappearance of her son in her memorial to the Court, relying rather on the facts as established by the Commission in its report (Article 31) adopted on 5 December 1996.
11. The facts as presented by the Government are set out in Section B.
12. A description of the materials submitted to the Commission is contained in Section C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s son, as established by the Commission, is set out in Section D.
13. The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s son, conducted its own investigation pursuant to Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence of witnesses at a hearing conducted in Ankara on 8 and 9 February 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Section E.
14. From 23 to 25 November 1993 security forces, made up of gendarmes and a number of village guards, carried out an operation in the village of Ağıllı. On 23 November 1993, following intelligence reports that three terrorists would visit the village, the security forces took up positions around the village. Two clashes followed. During the two days they spent in the village they conducted a search of each house. A number of houses, between ten and twelve, were burnt down during the operation, including those of the applicant and Mevlüde and Ali Kurt, Mevlüde being her son’s aunt. Only three of the houses were near the clashes. Other houses were burnt down on a second occasion during the military operation. The
villagers were told that they had a week to evacuate the village. The villagers fled to Bismil, many as they were homeless, and those who were not being too scared to remain.
15. According to the applicant, around noon on 24 November 1993, when the villagers had been gathered by the soldiers in the schoolyard, the soldiers were looking for her son, Üzeyir, who was not in the schoolyard. He was hiding in the house of his aunt Mevlüde (see paragraph 14 above). When the soldiers asked Aynur Kurt, his daughter, where her father was, Aynur told them he was at his aunt’s house. The soldiers went to Mevlüde’s house with Davut Kurt, another of the applicant’s sons, and took Üzeyir from the house. Üzeyir spent the night of 24–25 November 1993 with soldiers in the house of Hasan Kılıç.
On the morning of 25 November 1993, the applicant received a message from a child that Üzeyir wanted some cigarettes. The applicant took cigarettes and found Üzeyir in front of Hasan Kılıç’s house surrounded by about ten soldiers and five to six village guards. She saw bruises and swelling on his face as though he had been beaten. Üzeyir told her that he was cold. She returned with his jacket and socks. The soldiers did not allow her to stay so she left. This was the last time she saw Üzeyir. The applicant maintains that there is no evidence that he was seen elsewhere after this time.
16. On 30 November 1993 the applicant applied to the Bismil public prosecutor, Ridvan Yıldırım, to find out information on the whereabouts of her son. On the same day, she received a response from Captain Izzet Cural at the provincial gendarmerie headquarters stating that it was supposed that Üzeyir had been kidnapped by the PKK (the Kurdish Workers’ Party). Captain Cural, who had proposed the plan for the operation in the village, replied in identical terms on 4 December 1993. The district gendarmerie commander noted on the bottom of the applicant’s petition of 30 November that Üzeyir had not been taken into custody and that he had been kidnapped by the PKK.
17. On 14 December 1993 the applicant applied to the National Security Court in Diyarbakır which replied that he was not in their custody records. On 15 December 1993 she contacted the Bismil public prosecutor again but was referred to the gendarmerie. Finally, on 24 December 1993 the applicant approached the Diyarbakır Human Rights Association for help and made a statement on the circumstances surrounding her son’s disappearance.
18. On 28 February 1994 Davut Karakoç (Üzeyir’s cousin), Arap Kurt (Üzeyir’s uncle and muhtar of the village) and Mehmet Kurt (another of Üzeyir’s cousins) were taken to the gendarmerie and questioned about what they knew of “Üzeyir Kurt who was abducted by representatives of the PKK terrorist organisation”. On 21 March 1994 the Bismil public prosecutor issued a decision of non-jurisdiction on the grounds that a crime had been committed by the PKK.
19. The applicant maintains that since submitting her application to the Commission on 11 May 1994 she has been the target of an extraordinarily concerted campaign by the State authorities to make her withdraw her application.
20. On 19 November 1994 the applicant was called to give a statement to the Bismil public prosecutor on the instructions of the Diyarbakır Principal Public Prosecutor. In this statement she was questioned about the statement she made to the Diyarbakır Human Rights Association on 24 December 1993 (see paragraph 17 above) as well as about her application to the Commission. She denied in her statement to the public prosecutor that the villagers had been tortured by the security forces as had been alleged in the statement taken down by the Diyarbakır Human Rights Association and rejected the reference in the latter statement to the effect that her son had been tortured. She had simply told the Human Rights Association that her son’s face looked like it was swollen.
21. On 9 December 1994 the applicant signed a statement addressed to the Diyarbakır Human Rights Association which said that her petitions were written by the PKK terrorist organisation and were being used for propaganda purposes. A similar statement was addressed the same day to the Foreign Ministry in Ankara.
22. On 6 January 1995 the applicant was called by the State authorities to go to a notary in Bismil and was accompanied there by a soldier. She did not pay the notary. The statement which was signed indicated that her only wish was to find her son and that it was for this reason that she had contacted the Diyarbakır Human Rights Association. She indicated that an ill-founded petition had been made in her name by the PKK accusing the security forces of her son’s disappearance. She rejected the application made in her name to the Commission and did not wish to pursue it.
23. On 25 January 1995 a statement was taken by the Principal Public Prosecutor’s office, as part of a file prepared by the authorities for the purpose of bringing a complaint against the applicant’s lawyer, Mr Mahmut Şakar (see paragraph 25 below).
24. On 10 August 1995 the applicant made another statement before the notary in Bismil which purported to withdraw her application to the Commission. While she was not forced to say anything to the notary and she told him what she wanted to be written, the applicant maintained that the statements do not represent her wishes and she had no opportunity to verify the contents of the statements.
25. The applicant states that the authorities have taken steps with a view to prosecuting her lawyer, Mr Mahmut Şakar, for his involvement in her application to the Commission. She refers to a request made in a document dated 12 January 1995 by Mr Özkarol of the Foreign Ministry’s Human Rights Directorate that an investigation be opened against Mr Şakar who was suspected of exploiting the applicant and had made an application against Turkey.
26. Ağıllı is a thirty-six-household village. From this village and its surroundings, about fifteen men and women have joined the PKK, which is a high ratio for such a small village. These include Türkan Kurt, the daughter of Musa Kurt, one of the applicant’s sons.
27. While an operation did take place in the village and clashes occurred between the security forces and suspected terrorists, Üzeyir Kurt was not taken into custody by the security forces. He had no history of previous detention or problems with the authorities and there was no reason for him to be taken into custody.
28. The Government submit that there are strong grounds for believing that Üzeyir Kurt has in fact joined or been kidnapped by the PKK. They refer to the fact that the family allege that his brother died in gendarme custody several years before; the fact that the applicant stated that he hid when the security forces arrived in the village; and the fact that his house was burnt down following the clash in the village. Further, some members of the family had already joined the PKK and several months after the operation in the village a shelter was found outside the village which it was said was used by Üzeyir Kurt in his contacts with the PKK. There is also a strong tradition of villagers escaping to the mountains at the onset of any military action. Villagers have also stated that they heard that he had been kidnapped by the PKK.
29. The Government submit that Üzeyir could have hidden in the village at the commencement of the operation and then, under cover of darkness and poor weather, slipped through the security forces’ blockade. Mehmet Karabulut testified before the Commission’s delegates at the hearing in Ankara that on the night following the first clash Üzeyir was in Mevlüde’s home sleeping (see paragraph 15 above) but that when he woke in the morning Üzeyir was no longer there. The Government stress that Mehmet Karabulut testified that he had not seen or heard soldiers in Mevlüde’s house, which would confirm that Üzeyir went off of his own accord.
30. The only person who claims to have seen Üzeyir after that is the applicant, whose accounts are inconsistent, contradictory and unsubstantiated. In particular, she affirmed to the delegates at the hearing in Ankara (see paragraph 13 above) that the villagers assembled in the schoolyard were blindfolded. She subsequently retracted this statement. Furthermore, her statements to the Diyarbakır Human Rights Association and to the Commission in her application refer to one visit to her son to give him cigarettes, whereas in her oral testimony before the delegates she referred to two visits; her descriptions of how she received a message from her son vary and she could not identify the child who allegedly delivered the message to her that her son wanted cigarettes (see paragraph 15 above). In addition, her account of making two visits passing through the village when the security forces stated they were keeping people in their houses for security reasons is implausible. The Government also maintain that it would have been impossible for the applicant to retrieve her son’s jacket and socks from his house on 25 November (see paragraph15 above) since it was alleged by the applicant that it had been burnt down the previous day.
31. The Government place particular emphasis on the fact that Hasan Kılıç (see paragraph 15 above) in his statement to the gendarmes of 7 December 1994 affirmed that the applicant came to his house, talked to her son who had spent the night there and then left with him. The soldiers had not left with Üzeyir. Furthermore, Üzeyir had not asked for cigarettes to be brought to him at the house; nor did he see Üzeyir being detained in front of his house by soldiers and village guards, as alleged. In fact, as Captain Cural told the delegates at the hearing in Ankara, no village guards had entered the village to back up the military operation.
32. In further support of the inconsistencies and contradictions in the applicant’s account of the events, the Government also point to the allegations originally made in the applicant’s application to the Commission in which it was stated that the soldiers killed the livestock, pillaged goods and beat the villagers. The applicant acknowledged that these allegations were incorrect when giving evidence to the delegates.
33. The Government submit that the applicant was not subjected to any pressure not to give evidence before the delegates as was strongly alleged by the applicant’s representatives.
34. The Government submit that the applicant has clearly stated that she did not wish to make a complaint against the State. Her only concern was to find her son and it was for that purpose only that she went to the Diyarbakır Human Rights Association. She had never been subjected to pressure by the authorities to withdraw her application to the Commission. She had freely made statements to a Bismil notary on 6 January and 10 August 1995 (see paragraphs 22 and 24 above) in which she rejected the application to the Commission which the Diyarbakır Human Rights Association had presented in her name. No soldiers were around her when she made these statements, there was an interpreter present and her statements were read out to her before she fingerprinted them.
35. According to the Government, the applicant has been manipulated by the representatives of the Diyarbakır Human Rights Association who distorted the information which she gave them about the disappearance of her son into unfounded allegations that the soldiers, inter alia, slaughtered and ate the villagers’ livestock during the operation in the village, looted their goods and tortured the persons kept in the schoolyard (see paragraph 32 above). These and other serious allegations were later shown to be fabrications and the applicant has herself denied that she made them. She had never been put under pressure by the authorities not to attend the delegates’ hearing in Ankara. In fact, she had been minded not to attend since she was anxious to discontinue the application. It was in fact her lawyers who put pressure on her to appear since they discovered that she in fact did not want to attend.
36. As to the prosecution of the applicant’s lawyer, Mahmut Şakar, the Government state that he has been instrumental in the manipulation of the application to the Commission and has exploited the Convention system for propaganda purposes. The Government’s decision to take proceedings against him was justified.
37. In the proceedings before the Commission the applicant and the Government submitted a number of statements which she had made between 24 December 1993 and 7 February 1996 to the Diyarbakır Human Rights Association, the Bismil public prosecutor, the gendarmes, the Principal Public Prosecutor’s office at Diyarbakır and to the notary in Bismil. The applicant also submitted official documents concerning the inquiry into the conduct of her lawyer, Mahmut Şakar. These materials were studied by the Commission when assessing the merits of the applicant’s allegations as regards both the disappearance of her son and the intimidation of both her and her lawyer.
38. Statements were taken by gendarmes from twelve villagers between 23 February and 7 December 1994. On 23 February 1994 Arap Kurt, the muhtar of Ağıllı village at the relevant time, Davut Karakoç and Mehmet Kurt (both cousins of Üzeyir Kurt) were interviewed by gendarmes and asked about “their knowledge and observations about the hostage Üzeyir Kurt who had been kidnapped by the PKK”. Hasan Kılıç (see paragraph 15 above), Mevlüde Kurt (see paragraph 15 above) and other villagers present at the time of the military operation were questioned by gendarmes on 7 December 1994. None of the villagers questioned saw Üzeyir Kurt being taken into custody. Hasan Kılıç affirmed in his statement that Üzeyir Kurt had arrived at his house on the morning of 24 November, spent the night there and left the following morning when his mother arrived. While there had been soldiers staying in the house overnight, Hasan Kılıç maintained that the applicant and her son left the house together and the soldiers definitely did not leave with Üzeyir Kurt.
All the above statements were studied by the Commission when assessing the evidence before it. The Government rely on these statements to support their contention that the applicant’s son had not been detained in the village by the security forces as alleged and that there was a reasonable likelihood that he had either been kidnapped by the PKK or left to join the PKK.
The Government also produced in the proceedings before the Commission the incident report drawn up by security forces on 24 November 1993; a report dated 19 November 1994 from the Bismil public prosecutor to the Diyarbakır Principal Public Prosecutor’s office suggesting that the evidence pointed to the applicant’s son having been kidnapped by the PKK following the clash on 23 November 1993; and a report dated 8 December 1994 prepared by Colonel Eşref Hatipoğlu of the Gendarmerie General Command, Diyarbakır, on the conduct of the operation in Ağıllı village and confirming, inter alia, that the applicant’s son had not been taken into custody.
39. On 30 November 1993 the applicant submitted a thumb-printed petition to the Bismil public prosecutor, Ridvan Yıldırım. It stated that her son had been taken into custody following a clash between the gendarmes and the PKK at her village and that she was concerned about his fate. She requested that she be informed of his fate. On the same date the public prosecutor passed the petition to the district gendarmerie command with a handwritten request for the information to be provided. The district gendarmerie command noted in handwriting on the petition the same day that it was not true that Üzeyir Kurt had been taken into custody and that it was supposed that he may have been kidnapped by the PKK.
40. By letter dated 30 November 1993 Captain Cural, under heading of the provincial gendarmerie command, informed the Bismil Principal Public Prosecutor’s office in answer to their unnumbered letter that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists.
41. By letter dated 4 December 1993 Captain Cural, district gendarmerie commander, under heading of the district gendarmerie command at Bismil, informed the Bismil Principal Public Prosecutor’s office that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists (identical terms to the letter of 30 November in the preceding paragraph).
42. On 14 December 1993 the applicant submitted a fingerprinted petition to the Principal Public Prosecutor at the National Security Court at Diyarbakır. She stated that her son Üzeyir had been taken into custody twenty days previously by gendarmes and since they had had no news, they were concerned for his life. She requested that information be given to her concerning his whereabouts. On the bottom of the petition, the Principal Public Prosecutor noted in handwriting the same day that the name Üzeyir Kurt was not in their custody records.
43. On 15 December 1993 the applicant submitted a second written petition to the Bismil public prosecutor which repeated the terms of her petition of 14 December. The public prosecutor wrote on the petition an instruction to the gendarmerie regional command to provide her with the information requested.
44. On 21 March 1994 the Bismil public prosecutor, Ridvan Yıldırım, issued a decision of dismissal. The document identifies the complainant as the applicant and the victim as Üzeyir Kurt. The crime was identified as membership of an outlawed organisation and kidnapping and the suspects as members of the PKK. The text of the decision stated that following a clash between the PKK and the security forces, PKK members escaped from the village, kidnapping the said victim. Since this crime fell within the jurisdiction of the National Security Courts, the case was dismissed and referred, with the file, to the Diyarbakır National Security Court.
45. The Commission had regard to the documentary evidence submitted by the applicant and the Government in support of their respective assertions (see paragraphs 37 and 38 above). Furthermore, at a hearing held in Ankara from 8 to 9 February 1996 the Commission’s delegates heard the oral testimony of the following witnesses: the applicant; Arap Kurt, the muhtar of Ağıllı village and brother-in-law of the applicant; Ridvan Yıldırım, the public prosecutor in Bismil who had been first approached by the applicant about her son’s disappearance (see paragraph 16 above); Izzet Cural, commander of Bismil district gendarmerie, who had proposed the plan for the military operation in Ağıllı village (see paragraph 31 above); Muharram Küpeli, a commander of a commando unit which was deployed during the military operation in the

village; and Mehmet Karabulut, who had seen the applicant’s son for the last time at Ali and Mevlüde Kurt’s house when the military operation began (see paragraph 29 above).
While thirteen witnesses had been summoned to give evidence, only the above six witnesses actually appeared at the hearing and testified.
46. The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question. In so proceeding, it assessed the evidence before it having regard, inter alia, to the conduct of the witnesses who were heard by the delegates at the hearing in Ankara and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Commission also made due allowance for the difficulties attached to assessing evidence obtained at the delegates’ hearing through interpreters and to the vulnerable position of villagers from south-east Turkey when giving evidence about incidents involving the PKK and the security forces.
47. The Commission found that the written and oral evidence was largely consistent as regards the general course of events during the operation. It was established that the villagers were gathered in the schoolyard on the morning of 24 November and searches were then carried out of the villagers’ houses. During the clashes between the security forces and the terrorists who had entered the village the previous evening a number of houses including those of the applicant and her son were burned down. The villagers were again assembled in the schoolyard on 25 November. Three terrorists and one member of the security forces were killed in the clashes which occurred during the operation. Twelve villagers were taken into custody on 24 November and were released on 26 November. The security forces left the village late on 25 November.
48. The Commission noted that it was established that Üzeyir Kurt was present in the village of Ağıllı on the evening of 23 November 1993 and that the evidence pointed to his having stayed the night at the house of his uncle and aunt, Ali and Mevlüde Kurt, because of the clash between the PKK and the security forces.
49. It was also established that when the villagers were gathered in the schoolyard by the security forces on the morning of 24 November 1993, Üzeyir Kurt was not among them.
50. While Hasan Kılıç maintained that Üzeyir Kurt had left with his mother on the morning of 25 November having spent the night at his house, the applicant had however consistently stated that her son was with the soldiers after the villagers had been gathered during the day in the schoolyard. The last time she saw him was when she brought him cigarettes and clothing at Hasan Kılıç’s house where he was being held by the security forces. Her account was largely consistent with her original statement of 24 December 1993 taken by the Diyarbakır Human Rights Association and with her statements and evidence thereafter. While the statement to the Diyarbakır Human Rights Association needed to be treated with caution, having regard to previous criticism which the Commission had made of the accuracy of the statements taken by that association from applicants in other cases, the Commission nonetheless considered that it had evidential value in so far as it was corroborated by the applicant’s detailed account to the delegates. While the statement of Hasan Kılıç appeared to contradict the applicant’s account that her son was detained as alleged, the Commission found that it did contain inaccuracies and was open to differing interpretations. The Commission regretted that Hasan Kılıç did not respond to the summons to attend the hearing and give evidence. Where his written statement appeared to conflict with the account of the applicant who did give oral evidence before the delegates, the Commission preferred the evidence of the applicant, who was found by the delegates to be credible and convincing.
51. The Commission did not consider that the Government’s criticism of the applicant’s account sufficed to undermine her credibility (see paragraphs 30–32 above). As regards her initial allegation that the villagers were blindfolded, it was possible that this was a reference to the twelve persons who were removed from the schoolyard and taken into custody for questioning in Bismil (see paragraph 47 above). As to the applicant’s account of finding cigarettes and a jacket, the Commission saw no particular significance in her omission to specify where she obtained the jacket: the question was never directly put to her. Further, there was nothing in the gendarmes’ testimony to indicate that villagers were not able, if they wished, to move freely from house to house in the period in the early morning before they were gathered for the day in the schoolyard.
52. It had been maintained that the village guards had all been positioned outside the village to mind the military’s vehicles and their members could not therefore have been outside Hasan Kılıç’s house as alleged by the applicant. However, the Commission did not find it excluded on the evidence that village guards were in the village at some time during the operation, contrary to the apparent operational practice whereby the role of village guards should be restricted to areas outside villages other than their own.
53. The Commission found that it was the applicant’s genuine and honestly held belief that her son was taken into custody by the security forces after which he “disappeared” and that there was no basis for inferring that the applicant’s testimony was influenced by a reluctance to accord blame to the PKK or to acknowledge their involvement. Having regard to the assessment of the evidence before it, the Commission accepted her evidence that she saw him surrounded by soldiers and village guards outside Hasan Kılıç’s house on the morning of 25 November 1993. It found that this was the last time he was seen by any member of his family or person from the village.
54. The Commission found it unnecessary to make any findings as to the cause of the burning of the applicant’s house or as to the role, if any, played by the security forces in the decision of the villagers to abandon the village (see paragraph 14 above).
55
56. 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.”
57. This 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 liability is of an absolute, objective nature, based on 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.
58. 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 issue threats (Article 191),
– to subject an individual to torture or ill-treatment (Articles 243 and 245).
In respect of 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.
59. Generally, if the alleged author of a crime is a State official or civil servant, 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. If the offender is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code.
60. Any illegal act by civil servants, be it a criminal offence or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages awarded under Article 47.
61. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
62. In previous cases against the respondent State in which they were involved, the applicant’s representatives have pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme. Decree no. 285 modifies the application of Law no. 3713 (the Prevention of Terrorism Act 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. 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.
63. The applicant as well as Amnesty International in their written submissions to the Court have drawn attention to international material on the issue of forced disappearances. The Commission made reference to the following texts and decisions, which are analysed more fully in an appendix to its report (Article 31).
64. The United Nations Declaration on the Protection of All Persons from Enforced Disappearance (G.A. res. 47/133, 18 December 1992) provides, inter alia:
“The systematic practice of disappearance is of the nature of a crime against humanity and constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person, the right not to be subjected to torture: it also violates or constitutes a grave threat to the right to life.”
65. The United Nations Human Rights Committee, acting within the framework of the International Covenant on Civil and Political Rights (“ICCPR”) has drawn up reports on a number of cases of forced disappearances: Quinteros v. Uruguay (107/1981) Report of the Human Rights Committee, GAOR, 38th Session, Supplement no. 40 (1983) Annex XXII, § 14; Mojica v. Dominican Republic, decision of 15 July
1994, Committee’s views under Article 5 § 4 of the Optional Protocol to the ICCPR concerning communication no. 449/1991: Human Rights Law Journal (“HRLJ”) vol. 17 nos. 1–2, p. 18; Bautista v. Colombia, decision of 27 October 1995, Committee’s views under Article 5 § 4 of the Optional Protocol to the ICCPR concerning communication no. 563/1993: HRLJ vol. 17 nos. 1–2, p. 19).
66. The Inter-American Convention on Forced Disappearance of Persons (resolution adopted at the 7th Plenary Session by the General Assembly, 9 June 1994, OAS/Ser. P AG/doc. 3114/94 rev.1: not yet in force) provides, inter alia:
… Considering that the forced disappearance of persons constitutes an extremely serious form of repression, one that violates basic human rights enshrined in the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the American Convention on Human Rights,
…
For the purposes of this Convention, forced disappearance is understood to be the abduction or detention of any person by an agent of a State or by a person acting with the consent or acquiescence of a State in circumstances where, after a reasonable period of time there has been made available no information that would permit the determination of the fate or whereabouts of the person abducted or detained.
…
The forced disappearance of a person is a crime against humanity. Under the terms of this Convention, it engages the personal responsibility of its perpetrators and the responsibility of the State whose authorities executed the disappearance or consented to it.
…

By means of ratification or accession to this Convention the States parties adopt the United Nations Standard Minimum Rules for the Treatment of Prisoners (Resolution 663 C [XXIV] of the Economic and Social Council, of 31 July 1957) as an integral part of their domestic law.”
67. The Inter-American Court of Human Rights had considered the question of enforced disappearances in a number of cases under the provisions of the American Convention on Human Rights and prior to the adoption of the Inter-American Convention on Forced Disappearance of Persons: Velásquez Rodríguez v. Honduras, judgment of 29 July 1988 (Inter-Am. Ct. H. R. (Ser. C) no. 4) (1988)); Godínez Cruz v. Honduras, judgment of 20 January 1989 (Inter-Am. Ct. H. R. (Ser. C) no. 5) (1989)); and Cabellero-Delgado and Santana v. Colombia, judgment of 8 December 1995 (Inter-Am. Ct. H. R.).
68. In their written submissions to the Court, Amnesty International identified the following elements of the crime of “disappearances” from their analysis of the relevant international instruments addressing this phenomenon: (a) a deprivation of liberty; (b) by government agents or with their consent or acquiescence; followed by (c) an absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person; (d) thereby placing such persons outside the protection of the law.
69. According to Amnesty International, while “disappearances” often take the form of a systematic pattern, they need not do so. Furthermore, a “disappearance” is to be seen as constituting a violation not only of the liberty and security of the individual but also of other fundamental rights. They refer to the decision of the Inter-American Court of Human Rights in the Velásquez Rodríguez v. Honduras case (judgment of 29 July 1988) wherein that court affirmed that “the phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.” This complex of rights includes the right to life and the right not to be subjected to ill-treatment. The gravity of the violations of the rights attendant on a disappearance has led the United Nations Human Rights Committee to conclude in relation to Article 6 of the International Covenant on Civil and Political Rights that State Parties should take specific and effective measures to prevent the disappearance of individuals and should establish facilities and procedures to investigate
thoroughly cases of missing and disappeared persons which may involve a violation of the right to life (General Comment no. 6 (16th Session 1982) [37 UN GAOR, Supp, no. 40 (A/37/40), Annex V] paragraph 1). The Human Rights Committee later affirmed this statement in its Mojica v. Dominican Republic decision of 15 July 1994 with respect to the need to safeguard disappeared persons against the risks of ill-treatment.
70. Citing the above-mentioned Velásquez Rodríguez v. Honduras judgment of the Inter-American Court, Amnesty International reported that the practice of disappearances often involves the secret execution without trial and concealment of the body and that the prolonged isolation and deprivation of an individual are in themselves cruel and inhuman treatment, which is harmful to the psychological and moral integrity of the victim. In its Mojica v. Dominican Republic decision of 15 July 1994, the United Nations Human Rights Committee considered that the disappearance of a person is inseparably linked to treatment that amounts to a violation of Article 7 of the International Covenant on Civil and Political Rights which mirrors Article 3 of the European Convention on Human Rights.
71. Furthermore, Amnesty International has drawn attention to the fact that “disappearances” gravely violate the rights of the “disappeared” person’s family, who almost certainly suffer severe mental anguish, often prolonged for years while uncertainty exists over their loved one’s fate. Amnesty International notes that the United Nations Human Rights Committee has taken this approach in its Quinteros v. Uruguay decision of 21 July 1983.
VIOLATED_ARTICLES: 13
25
3
5
VIOLATED_PARAGRAPHS: 25-1
NON_VIOLATED_ARTICLES: 14
18
2
3
5


ITEMID: 001-72573
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SZABLINSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Irena Szablińska, is a Polish national who was born in 1947 and lives in Łódź, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 December 1991, upon the applicant’s request, the Director of the Łódź District Office (Urząd Rejonowy) issued a decision and ordered division of the applicant’s property into a number of smaller plots, designated for construction purposes. By the same decision seven of these plots were expropriated and acquired by the Łódź municipality, for the purpose of road construction. The applicant did not appeal against this decision and consequently, it became final on 30 December 1991.
On 2 February 1993 the Director of Łódź District Office determined the amount of compensation to be paid to the applicant for the expropriated plots at PLZ (old zlotys) 333,240,000. The applicant contested this decision and asked for a new expert opinion in order to re-assess the value of the plots.
In view of the new expert opinion, on 18 June 1993 the Director of Łódź District Office set the amount of compensation to be paid to the applicant at PLZ 745,590,000. The Łódź Municipal Board (Zarząd Miasta) lodged an appeal against this decision with the Governor of Łódź. On 30 July 1993 the Governor of Łódź upheld the contested decision. The Łódź Municipal Board appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 31 May 1994 the Supreme Administrative Court quashed the contested decision. The court ordered that the amount of compensation to be paid to the applicant should be reconsidered by the second-instance authority.
On 31 August 1994 the Łódź Governor quashed the first-instance decision of 18 June 1993 and remitted the case to the first instance authority. On 21 November 1994 the Director of the Łódź District Office for the third time set the amount of applicant’s compensation, this time at PLZ 612,900,000. Both, the applicant and the Łódź Municipal Board appealed
On 30 March 1995 the Governor of Łódź (Wojewoda Łódzki), acting of his own motion, considered that the expropriation decision of 16 December 1991 had been given in a flagrant breach of substantive provisions of administrative law. In the Governor’s opinion acquisition of lands for road construction by municipalities should have been done by way of a civil contract between the applicant and the municipality. Expropriation would only have been possible had the applicant refused to accept conditions of the proposed contract. However, due to the fact that some of the plots as created by the 1991 decision had already been sold by the applicant, the Governor refused to declare this decision null and void as it had already created irreversible legal consequences.
The applicant lodged an appeal against this decision. On 15 July 1996 the Minister of Land Administration and Housing (Minister Gospodarki Przestrzennej i Budownictwa) quashed Governor’s decision of 30 March 1995 and remitted the case.
On 9 September 1996 the Governor of Łódź stayed the compensation proceedings until termination of the proceedings concerning the validity and lawfulness of the expropriation decision of 16 December 1991.
On 28 February 1997 the Governor of Łódź declared the decision of 16 December 1991 null and void in so far as it concerned expropriation of the plot no. 70/101, designated for broadening of an existing street. It was further stated that the plot no. 70/101 should be acquired again by the municipality by entering into a civil contract with the applicant or, in the absence of an agreement on the price, by a new expropriation decision, as provided for by the 1985 Land Administration and Expropriation Act.
The applicant appealed against this decision, submitting that as a result of this decision the plots sold to third parties would lose access to a public road, which they had had through the plot no. 70/101.
On 6 August 1997 the Director of the Office of Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) quashed the contested decision and remitted the case to the Governor of Łódź for reconsideration.
On 2 September 1997 the applicant lodged an appeal with the Supreme Administrative Court against the decision of 6 August 1997 alleging that it was in breach of substantive administrative law. On 24 April 1998 the Supreme Administrative Court dismissed the applicant’s appeal, considering that the decision was given in compliance with the law. As a result of this decision, the Łódź municipality was to return the plot no. 70/101 to the applicant.
On 10 August 1998 the Governor of Łódź discontinued the proceedings in which the validity of the 1991 division and expropriation decision was examined. The case was subsequently transmitted to the Łódź Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze).
On 6 November 1998 the Łódź Self-Government Board of Appeal declared the decision of 16 December 1991 null and void in so far as it concerned expropriation of the plot no. 70/101, finding that it had been issued in a breach of the 1985 Act on land administration and expropriation. The Board of Appeal refused to declare this decision null and void in its entirety, despite its legal flaws, because of the irreversible legal consequences that had ensued.
As a result of this decision the plot no. 70/101 was returned to the applicant.
On 27 April 1999 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 6 November 1998. The court held that applicant had failed to comply with the formal requirements attached to this remedy, as she had not lodged a request to have the decision reconsidered by the Łódź Self-Government Board of Appeal. This decision is final.


ITEMID: 001-59623
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF GRANDE ORIENTE D'ITALIA DI PALAZZO GIUSTINIANI v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 11;Not necessary to examine Art. 13;Not necessary to examine Art. 14+11;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant association is an Italian masonic association which groups together several lodges. It has been in existence since 1805 and is affiliated to Universal Freemasonry.
In Italian law the applicant association has the status of an unrecognised private-law association under Article 36 of the Civil Code. It therefore does not have legal personality. It has filed its Articles of Association with a notary (notaio) and anyone can have access to them.
By Regional Law no. 34 of 5 August 1996 (“the 1996 Law”), published in the Official Gazette of 14 August of the same year, the Marches Region (“the Region”) laid down the rules to be followed for nominations and appointments to public office for which the Region was the appointing authority (Norme per le nomine e designazioni di spettanza della Regione).
Before the Court the applicant association complained of the damage allegedly sustained by it as a result of the content of section 5 of the 1996 Law.
Section 1 of the 1996 Law provides that the rules shall apply to all nominations and appointments by the bodies constituted according to the Region’s Statute pursuant to laws, rules, statutes and agreements to posts in “departments of public-law and private-law authorities and bodies other than the Region”. It also provides that the rules shall likewise apply to nominations to fifteen regional bodies (listed in Schedule A to the 1996 Law) and, in some cases, to other regional bodies for which the Regional Council is the appointing authority (Schedule B to the 1996 Law).
Section 5 of the Law sets out the terms and conditions for submitting applications for nominations and appointments. It provides, inter alia, that candidates must not be Freemasons. It is worded as follows:
“1. Applications may be submitted by regional councillors and council groups and by professional bodies, organisations and associations active in the fields concerned to the President of the Regional Council and the President of the Regional Government respectively until thirty days before the period allowed for a nomination or appointment expires.
2. Applications must be accompanied by a statement of supporting reasons and a report containing the following particulars:
(a) municipality of residence, date and place of birth;
(b) qualifications;
(c) career to date, usual occupation, list of currently and previously held public offices or positions in majority State-owned companies and publicly registered private companies;
(d) lack of conflict of interest with the office proposed;
(e) declaration of non-membership of a masonic lodge;
(f) declaration, signed by the candidate, accepting the public office and stating that there is nothing to debar him from office on criminal, civil or administrative grounds.
3. The declaration of acceptance signed by the candidate must be certified authentic and contain a statement by him of any grounds of incompatibility and of the absence of any grounds debarring him from applying or making it impossible for him to do so, regard being had also to section 15 of Law no. 55 of 19 March 1990 as subsequently amended.”
9. In June 1999 the first committee of the Marches Regional Council rejected a regional bill (no. 352/98) proposing amendments and additions to Law no. 34 of 1996. The bill was intended, among other things, to abolish the declaration provided for in section 5 of the 1996 Law.
10. Article 18 of the Constitution provides:
“Citizens may form associations freely, without authorisation, for purposes not prohibited for individuals by the criminal law.
Secret associations and associations pursuing, even indirectly, a political aim through organisations of a military nature shall be prohibited.”
Law no. 17 of 25 January 1982 contains the implementing provisions for Article 18 of the Constitution with regard to secret associations and provided for the dissolution of the association called “P2 Lodge”. Section 1 lays down the criteria for regarding an association as being a secret one.
Section 4 sets out the measures to be taken in respect of persons employed in the civil service or appointed to a public office who are suspected of belonging to a secret association.
That section also provides that the regions shall enact regional laws for their officials and persons nominated or appointed by a region to a public office. These regional laws must respect principles laid down in the same provision.
According to the information supplied to the Court by the applicant association, such laws have been enacted by the regions of Tuscany (Law no. 68 of 29 August 1983), Emilia-Romagna (Law no. 34 of 16 June 1984), Liguria (Law no. 4 of 22 August 1984), Piedmont (Law no. 65 of 24 December 1984) and Lazio (Law no. 23 of 28 February 1985).
Two of these regional laws provide that persons nominated or appointed to public office must name the associations to which they belong (section 12 of the Tuscany law and section 8 of the Lazio law). The other laws lay down the penalties to be imposed on persons so nominated or appointed if it transpires that they are members of a secret association (section 7 of the Emilia-Romagna law, section 8 of the Liguria law and section 8 of the Piedmont law). The Emilia-Romagna law also contains a prohibition on nominating or appointing persons affiliated to secret associations (section 7 of the Emilia-Romagna law).
VIOLATED_ARTICLES: 11


ITEMID: 001-92377
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PUTTRUS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Klaus Puttrus, is a German national who was born in 1952. He is currently in a forensic psychiatric clinic in Hanau.
In 1969, 1972 and 1974 respectively the applicant was convicted of attempted rape.
On 5 February 1984 the applicant was placed in pre-trial detention.
On 3 December 1984 the Frankfurt am Main Regional Court convicted the applicant of three counts of attempted rape, combined with sexual assault in one case, with assault in another case and with dangerous assault in the third case. Having consulted an expert, who had diagnosed the applicant as suffering from a schizoid and narcissistic personality disorder, the court considered that the applicant had committed his offences with diminished criminal responsibility. It sentenced him to five years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see Relevant domestic law below).
The applicant was detained in prison until 27 March 1985. Since then, he has been detained in a psychiatric hospital (apart from the period from 26 June 1995 to 5 September 1997 during which he was in preventive detention), initially in Haina and since 2003 in Hanau.
The applicant’s detention in a psychiatric hospital has been reviewed at regular intervals (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below).
In particular, on 29 April 2005 the Gießen Regional Court, in a decision confirmed on appeal, rejected the request of the applicant, represented by counsel, to terminate or suspend on probation his detention in a psychiatric hospital. It had regard to the report of an external expert consulted in 2001, who had diagnosed the applicant with a schizoid personality disorder with narcissistic and sadist elements, to two earlier medical expert reports and to a statement of the director of the Hanau clinic for forensic psychiatry of 2005. The latter had agreed with the finding of the external expert that the applicant’s personality disorder persisted and had confirmed that, contrary to the applicant’s own assessment, the applicant had not cured his sexual sadism by meditation. The Regional Court found that the conditions for the detention of the applicant, who kept refusing all offers of therapy made to him, in a psychiatric hospital were still met and that there was a risk that the applicant would commit further serious sexual offences if released (Article 67d of the Criminal Code, see Relevant domestic law below).
On 16 December 2005 the Federal Constitutional Court dismissed the applicant’s constitutional complaint (file no. 2 BvR 1212/05). It found, in particular, that the courts ordering the continuation of the applicant’s lengthy detention respected the principle of proportionality. In finding that there was a risk that the applicant would commit serious offences, the courts had not only considered earlier expert reports, but also a recent statement made by the psychiatric hospital. It had not yet been necessary to consult an external psychiatric expert again. Even though the applicant’s detention had lasted for more than twenty years, its continuation was not yet excessive as the offences the applicant might commit were serious and as the applicant refused any therapy.
On 19 April 2006 the Gießen Regional Court dismissed the request of the applicant, who had refused to be heard in person, to have his detention in a psychiatric hospital terminated or suspended on probation (see Article 67d and Article 67e of the Criminal Code). Having regard to the applicant’s written submissions and referring to its decision of 29 April 2005 (see 1.b. above), it argued that there had been no changes justifying a different assessment. In particular, as the director of the Hanau forensic psychiatric clinic had confirmed in his statement of 2 February 2006, no progress in the applicant’s treatment could be made as the applicant kept refusing all offers of therapy. The applicant still suffered from a schizoid personality disorder and might suffer from sexual sadism. Even though this did not necessarily entail a constantly diminished criminal responsibility, the applicant still risked committing sexual offences if released, similar to the ones of which he had previously been convicted.
On 23 May 2006 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. Referring also to the decision taken by the Gießen Regional Court on 29 April 2005, as confirmed on appeal and by the Federal Constitutional Court, the Court of Appeal found that the grounds for these decisions, in particular the applicant’s dangerousness, had not changed.
The Court of Appeal further considered that the applicant’s continued detention for more than twenty years was still proportionate. There was a risk that the applicant would commit offences causing grave damage if released and kept refusing treatment even though he had himself been aware of his need of therapy since 1984, believing that he could cure himself by meditation. As had again been confirmed by the medical director of the Hanau forensic psychiatric clinic in his statement of 2 February 2006, repeated attempts to motivate him to accept treatment had been to no avail.
On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1368/06) lodged against the decisions of the Gießen Regional Court dated 19 April 2006 and of the Frankfurt am Main Court of Appeal dated 23 May 2006.
The Federal Constitutional Court found that the applicant’s complaint had no prospect of success. The courts dealing with the execution of the applicant’s detention had had sufficient regard to the numerous external and internal expert reports obtained during the applicant’s long detention and had taken into account possibly different assessments made by these experts. There was nothing to indicate that the reports drafted by external experts had failed to comply with the minimum standards required by the Basic Law. In so far as the applicant considered himself cured, he was simply replacing by his own view the assessment made by the courts with the help of experts and by the psychiatric hospital.
As to the question whether the applicant’s continued detention in a psychiatric hospital was proportionate, the Federal Constitutional Court referred to the reasons of its decision of 16 December 2005 (file no. 2 BvR 1212/05, see 1.b. above).
The German Criminal Code distinguishes between penalties (Strafen) and socalled measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted with diminished criminal responsibility, in addition to their punishment (compare Article 63). The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to their dangerousness (Article 62 of the Criminal Code).
Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.
Article 67d of the Criminal Code governs the duration of detention. In its version in force at the relevant time, it provided:
Article 67d
“(1) Detention in a detoxification facility may not exceed two years ...
(2) If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender.
(3) If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. (...)”
If the court considers following the commencement of detention in a psychiatric hospital that the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6).
Article 67e of the Criminal Code provides for the review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year, for persons in preventive detention it is two years (§ 2 of Article 67e).


ITEMID: 001-72123
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: İÇYER v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: 1. The applicant, Mr Aydın İçyer, is a Turkish national who was born in 1946 and lives in Istanbul. He is represented before the Court by Mr M. A. Kırdök and Mr Özcan Kılıç, lawyers practising in Istanbul.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Until October 1994 the applicant lived in Eğrikavak, a village of the Ovacık district in Tunceli, where he owns property.
4. On 3 October 1994 the inhabitants of Eğrikavak were forcibly evicted from their village by security forces on account of the disturbances in the region. The security forces also destroyed the applicant’s property. The applicant and his family then moved to Istanbul.
5. On 4 October 1994 the applicant lodged a petition with the Public Prosecutor’s Office in Ovacık complaining that his house was burned down by the security forces on 3 October 1994.
6. On 9 December 1994 the Ovacık public prosecutor declined jurisdiction and sent the case file to the office of the Administrative Council in Ovacık, in accordance with Article 4 (b) of Decree no. 285 and the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).
7. On 25 October 1995 the Administrative Council sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified. With reference to a letter from the Ovacık District Gendarme Command of 1 November 1994, the Administrative Council also noted that no house had been burned down by the security forces in the region.
8. On 26 October 2001 the applicant filed petitions with the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village.
9. On 31 October 2001 the state-of-emergency office attached to the Ovacık District Governor’s office stated the following in response to the petition submitted by the applicant:
“Your petition requesting permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.”
10. The applicant was a resident of Eğrikavak village. The official records indicated that the inhabitants of Eğrikavak had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicant or his fellow villagers to leave their village.
11. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages, as demonstrated by 110 applicants who indicated in their petitions to the Diyarbakır Compensation Commission that their current domiciles were in their respective villages (see paragraph 43 below).
12. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004. That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
13. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
14. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions (see paragraph 43 below). Many villagers had already been awarded compensation for the damage they had sustained (see paragraphs 28-40 below).
15. According to this document, at the time of the burning down of his house and the eviction of the inhabitants from Eğrikavak village, the applicant owned three hundred sheep, one hundred goats, one horse, six hundred trees, one TV set, one refrigerator, one bed and fifty kitchen utensils.
16. It appears from this document that the applicant owns five plots of land in Eğrikavak.
17. 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 2,523 hamlets were evicted and forced to move to other regions of the country. The number of people evicted from 183 villages and 823 hamlets in the province of Tunceli, which includes Eğrikavak village, was estimated to be around 40,933. The detailed content of this report can be found in the Court’s judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).
18. This Resolution gives a detailed account of the abuses by members of the Turkish security forces and urges the Turkish Government to take the necessary administrative, judicial and legislative measures to halt human rights violations (Doğan and Others, cited above, § 36).
19. This report was prepared by a working and monitoring group composed of five scholars and experts commissioned by the TESEV (hereafter “TESEV report”). It contains the findings of the working and monitoring group subsequent to field researches they had conducted in Diyarbakır, Batman, Hakkâri and Istanbul. The TESEV report examines the problems arising from the implementation of Law no. 5233 on compensation for losses sustained as a result of terrorism or the fight against terrorism. It also aims to suggest policy proposals to the Government, national and international bodies and NGOs.
20. According to the TESEV report, there are serious problems concerning the return of internally displaced persons (“IDP”) to their villages. Firstly, IDPs are unable to fund their travel and removal expenses in order to return to their villages from the cities. Secondly, the infrastructure of the villages is not in a good shape. In most villages there is no electricity, water, mains or health services. Thirdly, IDPs still worry about the lack of sufficient security in their former places of residence on account of intimidation by the PKK, military operations and clashes or possible pressure exerted on them by the State authorities to agree to become village guards. Finally, non-governmental organisations point to the presence of land mines which cause the death or injury of people living in the region.
21. The TESEV report welcomes the enactment of Law no. 5233 and considers it a positive step towards redressing the human rights violations caused by the forced displacements. However, it is unclear whether persons who left the country can benefit from the Law in question. It appears that the a majority of IDPs misconceive the rights contained in the Law. Although Law no. 5233 provides a remedy for cases of death or injury, most IDPs consider that the Law is confined to cases of forced evacuation of villages. Furthermore, since Law no. 5233 includes the term “terrorism” in its title, IDPs generally think that they might be considered terrorists if they lodged an application under the Law and complained about the State. Some IDPs think that the remedy envisaged by the Law falls far short of meeting their needs since it does not offer sufficient compensation and there is no possibility of bringing the perpetrators of unlawful acts to justice. Moreover, Law no. 5233 does not contain a right to non-pecuniary damages. IDPs therefore prefer to lodge an application with the European Court of Human Rights.
22. As regards the implementation of Law no. 5233, there are three major problems. Firstly, the members of the compensation commissions have a very limited margin of appreciation in rendering decisions. Secondly, even if they are in good faith, the members of the compensation commissions, who are civil servants, do not want to take any risks and therefore expect the Government to demonstrate a clear political will in implementing the Law. Thirdly, some of the commission members seem to be prejudiced towards IDPs, considering them to be opportunists and/or PKK sympathisers who want to misuse the Law.
23. The burden of proof on the victims to prove their claims used to be a major problem. However, subsequent to decision no. 9239 of the Council of Ministers, on 15 September 2005, claimants can prove their allegations by means of any information or document.
24. Concerning the composition of the compensation commissions, it was noted that the majority of their members are civil servants. Accordingly, in the eyes of the victims there are doubts about their independence and impartiality.
25. It was recommended that the Law should stay in force for another year so that justice can be done and the process of redress achieve its aim.
26. Consequently, the TESEV report makes a number of other recommendations with a view to tackling the problems of the IDPs and to establishing peace and security in south-east Turkey.
27. The documents listed below concern the inability of the administrative and judicial authorities to visit or to conduct on-site inspections in the villages of Ovacık on account of the lack of security in the area.
28. The Government claimed that the Damage Assessment and Compensation Commissions (“compensation commissions”) established to provide an effective domestic remedy for the grievances of persons who were affected either by terrorism or the acts of the security forces in combating terrorism had become fully functional. In this connection they furnished the Court with copies of decisions and declarations issued by these bodies with a view to demonstrating the effectiveness of the new remedy offered by the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism.
29. The Government submitted a copy of 440 decisions issued by the compensation commissions set up in Tunceli and Diyarbakır. These decisions exclusively concern awards of compensation to persons who suffered damage as a result of their inability to gain access to their homes and land in villages in the Tunceli and Diyarbakır provinces.
30. In a decision of 29 September 2005 the Tunceli Compensation Commission awarded compensation to twenty-four persons. As an example, in the case of Cafer Biçici (application no. 6607), the compensation commission found that the claimant had been unable togain access to his possessions in Boydaş village of the Hozat district in Tunceli for seven years between 1994 and 2001. Relying on expert opinions, the compensation commission considered that the claimant should be awarded 5,404 new Turkish liras (YTL) for damage caused to his immoveable property, YTL 1,100 for his poplar trees, YTL 1,060 for his land and fruit trees and YTL 7,420 for deprivation of income from agriculture for seven years (7 X 1,060 = 7,420). Thus, the compensation commission decided to award the claimant a total amount of YTL 14,000 (approximately 8,725 euros (EUR)) to compensate his damage.
31. In the case of Hüseyin Biçici (application no. 10436), the compensation commission awarded the claimant YTL 26,600 (approximately EUR 16,580) for the damage he had suffered on account of his inability to gain access to his possessions in Boydaş village. On the basis of the expert opinions and investigations, the compensation commission found that the claimant had sustained damage in the amounts of YTL 7,720 for his immoveable property (house, barn etc.) and YTL 18,900 for deprivation of income from agriculture for seven years between 1994 and 2001 (7 x 2,700 = 18,900). Likewise, in the case of Hüsnü Özkay (decision of 9 September 2005, no. 2005/4-564) the Diyarbakır Compensation Commission awarded the claimant YTL 27,520 (approximately EUR 23,000) for the damage he had suffered as a result of his inability to return to his village since 1993. This amount consisted of compensation of YTL 15,269 for the destruction of Mr Özkay’s house, YTL 8,950 for his barn, YTL 7,700 for his inability to cultivate his land, and YTL 5,250 for his vineyard. The compensation commission issued similar decisions with similar conclusions in respect of the applications by twenty-two other claimants. It sent the claimants friendly-settlement declarations specifying the amounts to be paid.
32. By a decision of 1 August 2005 the Diyarbakır Compensation Commission no. 4 decided to award YTL 50,246 (approximately EUR 31,365) to Mustafa Narin, who had been unable to gain access to his possessions since 1993 in Şaklat village of the Kocaköy district in Diyarbakır province. Subsequent to the determination of the damage and the decision to award the aforementioned amount of compensation, the compensation commission sent the claimant a friendly-settlement declaration. The Diyarbakır Compensation Commission issued similar decisions with similar conclusions in respect of 415 other applications lodged by persons who had sustained damage as a result of their inability to gain access to their possessions in villages in Diyarbakır.
33. The Government also submitted a number of decisions issued by the compensation commissions in Şırnak, Diyarbakır, Batman and Hakkâri. The subject matter of these decisions is the award of compensation to persons who sustained damage to their property as a result of terrorist acts.
34. In a decision of 14 June 2005 the Şırnak Compensation Commission decided to award YTL 8,000 (approximately EUR 5,000) to Kemal Ecer, whose house in Oymakaya village of the Beytüşşebap district in Şırnak province had been burned down by a group of terrorists.
35. In an application lodged by Abdullah Salman, Mehmet Salman and İsmail Tekin, the Diyarbakır Compensation Commission decided to award YTL 1,692 (approximately EUR 1,056) to claimants on account of the damage caused to their fruit trees in the course of an anti-terrorist operation by the security forces in Diyarbakır.
36. As regards the application lodged by Adil Erdoğan, the Bitlis Compensation Commission decided to award YTL 466.88 (approximately EUR 300) for the death of the claimant’s cow during a clash between the village guards and PKK terrorists in Kavakdibi village in Bitlis province.
37. By a decision of 20 June 2005 the Diyarbakır Compensation Commission decided to award YTL 25,000 (approximately EUR 15,600) to İ. Burhan Aslan on account of the burning down of his tractor by members of the PKK in Ağıllı village of the Bismil district in Diyarbakır province.
38. The compensation commissions also issued a number of decisions awarding compensation to persons who were injured or whose relatives were killed during terror incidents.
39. As an example, in a decision of 20 June 2005 the Tunceli Compensation Commission decided to award compensation to Hasan Dalkılıç, Mevlüt Cantürk, Sinan Yıldırım, Dilber Karik Dal, Hıdır Yadigaroğulları and Ali Kes on account of the killing of their relatives during terror incidents. The compensation commission awarded a fixed amount of YTL 14,035 (approximately EUR 8,760) to each of the claimants. The claimants all signed the friendly-settlement declarations sent by the compensation commissions.
40. On 8 June 2005 the Tunceli Compensation Commission decided to award YTL 1,294.95 to İsmail Baştimur on account of the injuries he had suffered as a result of the explosion of a mine. It also awarded YTL 8,421 to Alişan Bulut, who was injured and became disabled as a result of a terrorist attack.
41. The Government submitted a copy of three judgments rendered by the Supreme Administrative Court. In an appeal lodged with the latter court (decision no. 2000/5120, on file no. 1999/2162, 11 October 2000) against the judgment rendered by the Erzurum Administrative Court, the appellant, Mr Ömer Akakuş, alleged that he had left his village in the province of Ağrı on account of terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since 1993. The Supreme Administrative Court acceded to his request and overruled the first-instance court’s judgment. The former court noted that the appellant had left his village owing to the terrorist incidents and not at the request or on the instructions of the authorities. On that account, it considered that, even if the damage sustained by the appellant could not be ascribed to the authorities and though there was no “causal link”, the authorities were liable since they had failed to prevent terrorist incidents and maintain security.
42. The Supreme Administrative Court delivered judgments with similar conclusions in the cases of Muammer and Burhan Gürtürk (decisions nos. 2001/4431-35, on files nos. 2000/4372 and 2000/4997, 5 December 2001).
43. According to this list, 800 persons, whose applications are pending before the Court, have also applied to the Diyarbakır Compensation Commission and claimed compensation for the damage they incurred as a result of their inability to gain access to their possessions in their villages. In their petitions to the Diyarbakır Compensation Commission, 110 persons, whose names appear on this list, indicated their addresses as being in their villages.
44. On 14 July 2004 Law no. 5233, entitled “Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism” (“Compensation Law”), was passed by the Grand National Assembly and entered into force on 27 July 2004. On 28 December 2005 the Grand National Assembly enacted Law no. 5442 and amended several provisions of the compensation law. This Law lays down the principles and procedure for compensating damage sustained by persons as a result of terrorist acts or of measures taken by the authorities to combat terrorism. In particular, it aims to indemnify the material damage sustained by natural or legal persons who have migrated or have been displaced due to terrorism or anti-terrorist activities. It also aims to partially compensate the damage sustained by civil servants who cannot be considered as part of the internally displaced population or migrants, but who have been affected by terrorism or by anti-terrorist activities carried out by the security forces.
45. Section 7 of the Compensation Law reads:
“The damage to be compensated by this Law, through friendly settlement, is as follows:
a) All types of damage caused to livestock, trees, agricultural products and any moveable or immoveable property;
b) Damage resulting from injury, physical disability and death and expenditure incurred for medical treatment and funeral expenses;
c) Material damage suffered by those who could not gain access to their property because of the acts carried out within the context of the fight against terrorism.”
46. The damage incurred and the compensation payable under section 7 are determined by damage assessment commissions (“compensation commissions”). In this connection section 4 provides:
“Damage assessment commissions shall be established in provinces within a period of ten days from receipt of applications made under this Law.
The commission shall be composed of a chairman and six members. The chairman of the commission shall be the deputy governor designated by the governor; and the members shall be appointed by the governor from among the public employees working in that particular province and shall be experts on finance, public works and housing, agriculture and rural affairs, health, industry and commerce; and a lawyer appointed from among bar members by the relevant bar association.
The commission must be quorate when it convenes and its decisions shall be taken by an absolute majority of the number of participants at the meeting. The working principles and procedures of the commission shall be regulated by a regulation.”
47. In accordance with section 5, the compensation commissions’ duties mainly involve the determination of damage suffered by claimants and the preparation of friendly-settlement declarations (sulhname) for payment of compensation to the claimants in cash or in kind. In this respect prior aid received from public funds is deducted from the amount to be paid to the claimants. In case of a disagreement about the terms of the friendlysettlement declaration, the compensation commission prepares a protocol of non-agreement to be sent to the complainant.
48. Under section 6, anyone who has suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism can lodge an application with the relevant compensation commission claiming compensation. The application must be lodged within sixty days of the date on which knowledge was obtained of the incident causing damage and, in any event, within one year of the impugned incident. The compensation commission must reach a decision within a maximum period of six months after the application is lodged. Where necessary, this period can be extended by the governor for another three months.
49. Under section 8, in determining the compensation payable, the compensation commissions will take into account the damage declared by the claimants, the information to be provided by the legal, administrative and military authorities, the circumstances of the incident causing the damage and, if applicable, the negligence of the claimants. In accordance with an amendment introduced by the Council of Ministers on 15 September 2005, the claimants can prove their allegations by means of any information or document. The commissions determine the amount of compensation on the basis of equity and current economic conditions. Expert opinion can also be obtained with a view to determining whether compensation should be awarded.
50. Under section 12, following the determination of the amount of compensation payable the compensation commission prepares a friendlysettlement declaration and serves it on the claimant in an annex to a letter stating that the claimant must apply to the commission to sign the declaration within thirty days of receipt and that failure to appear will be deemed to be a refusal by the claimant, in which case, he or she will have to apply to the courts for compensation. Should the claimant accept the terms of the settlement declaration prepared by the commission, the declaration must be signed by the claimant or his or her representative and by the president of the commission. If the claimant refuses to sign the declaration or is deemed to have refused the terms of the declaration, a protocol of nonagreement must be prepared and sent to the claimant, following which the claimant can bring an action for compensation in the courts.
51. Section 13 provides that after the parties have signed the friendlysettlement declaration and the governor has approved it, the amount of compensation specified in the friendly-settlement declaration shall be paid within three months from an appropriation earmarked in the budget of the Ministry of the Interior. Following payment of the compensation, the State has a right to bring proceedings against the perpetrators of the acts which caused the damage in question.
52. Finally, Section 14 provides that the compensation commissions are subject to the supervision of the Ministry of the Interior and the relevant Governor.
53. On 20 October 2004 Regulation no. 25619 was issued by the Council of Ministers for the implementation of Law no. 5233 on Compensation for Losses resulting from Terrorism and the Fight against Terrorism. This regulation sets out the duties of the compensation commissions, the procedure to be followed by/before the compensation commissions and the assessment and payment of compensation for damage to life, physical integrity and property.
54. A description of the further relevant domestic law at the material time and background information can be found in the Court’s judgment of Doğan and Others (cited above, §§ 68-88).