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BEDIR AND OTHERS v. TURKEY - 52644/99 [2007] ECHR 295 (12 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/295.html
Cite as:
[2007] ECHR 295
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THIRD
SECTION
CASE OF
BEDİR AND OTHERS v. TURKEY
(Application
no. 52644/99)
JUDGMENT
STRASBOURG
12 April
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Bedir and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson,
Mrs I.
Berro-Lefèvre, judges,
and Mr S. Quesada, Section
Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 52644/99) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Turkish nationals, Mr Şehmus Bedir
Mr Mehmet Bedir, Mr Ahmet Bedir and Ms Zekiye Bedir
(“the applicants”), on 21 September 1999.
The
applicants, who had been granted legal aid, were represented by Mr O.
Baydemir, C. Aydın and M. Kılavuz, lawyers practising in
Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
The
applicants alleged that State security forces had destroyed their
homes and possessions and had forced them to leave their place of
residence with no possibility of return and that they had been denied
effective remedies in domestic law in violation of Articles 3, 6, 8
and 13 of the Convention and Article 1 of Protocol No. 1.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1).
By
a decision of 9 November 2004 the Court declared the application
partly admissible.
The
applicants and the Government each filed further written observations
(Rule 59 § 1). The parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants, Mr Şehmus Bedir and his father Mr
Mehmet Bedir as well as Mr Ahmet Bedir and Ms Zekiye Bedir, who are
respectively the brother and sister-in-law of Şehmus Bedir, were
born in 1955, 1924, 1945 and 1938 respectively and currently live in
Diyarbakır, in Turkey.
At
the time of the alleged events giving rise to the present application
the applicants were all living in Kışlak, a village of
Mazıdağı district in Mardin province, in the then
state-of-emergency region of Turkey. Since the 1980s a violent
conflict had been going on in the region between the security forces
and sections of the Kurdish population in favour of Kurdish autonomy,
in particular members of the PKK (Workers' Party of Kurdistan).
The inhabitants of the applicants' village were suspected of “aiding
and abetting terrorists”; and accordingly they were strictly
and frequently controlled by the gendarmes stationed near the
village.
The
facts of the case are in dispute between the parties and may be
summarised as follows.
A. The applicants' version of the facts
Until
28 July 1998 the applicants all lived in Kışlak, where
Şehmus Bedir was the mayor of the village (muhtar).
In
April 1994 gendarmerie forces from Mazıdağı, Seyhan
and Aksu Gendarmerie stations and Mardin Central Gendarmerie Command,
accompanied by village guards from Sultanköy, raided Kışlak.
The security forces set the houses of fifteen families on fire on the
ground that they supplied aid to the PKK. The men of the village were
taken into custody and subjected to ill-treatment on a number of
occasions. Subsequent to these events, the families in question left
the village. Ten days after their departure, the remaining houses
which belonged to these families were also destroyed.
In
1996 the applicants' village was again raided by gendarmes from
Sultanköy and Bilge. Some of the villagers were kept under
arrest and released after being beaten up on suspicion of having
aided the PKK. The gendarmes also set five houses on fire, including
Şehmus Bedir's house. For a certain period of time Şehmus
Bedir lived in his father's place but then constructed a new house
for his family.
Following
this second military operation, the Aksu Gendarmerie Station took
control of Kışlak village. The inhabitants were not allowed
to enter or leave the village after certain hours and were subjected
to food rationing. As a result of such pressure, a number of
families left the village.
From
the end of May 1998, the gendarmes visited the village more often and
sometimes stayed for a couple of days. This situation lasted until 19
June 1998, the date on which a soldier was killed by one of his
fellows during a dispute. Following this incident, a team of soldiers
from Mazıdağı Gendarmerie Command arrived in the
village. The soldiers summoned the men to the Gendarmerie Command and
told them that they would have ten days in which to choose either to
work for the State as a village guard or to leave Kışlak.
At the end of the ten days' period, two men from the village went to
the Gendarmerie Command and told the authorities that they did not
want to become village guards. Upon this response, the soldiers
arrived in the village and ordered the inhabitants to evacuate the
village. The soldiers refused the inhabitants' request to stay in the
village until the end of the harvest.
On
27 July 1998, between 6 a.m. and 7 a.m., a number of soldiers from
Mazıdağı Gendarmerie Command and Sultanköy and
Bilge Gendarmerie Stations arrived in Kışlak. They
assembled the villagers in the village square telling them that they
would carry out a search of the buildings. Then they threw white
powder on the buildings and set them on fire. The villagers who
attempted to rescue their animals and save their households were
threatened with being thrown into the fire. In the course of the
events, the soldiers forced Mehmet Bedir, who is illiterate, to sign
a document without informing him of its contents. At around 4 p.m.
the inhabitants of the village, including the applicants, left the
village and went to Diyarbakır where they sought refuge at their
relatives' houses.
At
the time of the introduction of their application, the applicants
were still living in Diyarbakır and making their living from
daily employment. On an unspecified date, Mehmet Bedir attempted to
return to Kışlak but was arrested by security forces and
questioned in relation to his application pending before the European
Court.
In
their written statements dated 8 and 16 August 2000, and in response
to the Government's observations, Celal Bedir and Hüseyin Demir
claimed the following:
Celal
Bedir:
“The applicant Mehmet Bedir is my father, Zekiye
Bedir is my mother-in-law and the applicants Şehmus and Ahmet
are my brothers. My brothers and I lived in Kışlak village
since our birth and until our houses were burned down. At the time of
the events, Ahmet and Şehmus were not in the village. From time
to time they were leaving the village for work. During the events in
question, their wives and children were in the village. They owned
houses and an important number of households. Şehmus and Ahmet
also owned houses in Diyarbakır... The report dated 11 September
1998 according to which, 'the houses of Mehmet and Zekiye Bedir
caught fire as a result of bullets which burned the herbs on the roof
of the house' is not mine... The day after the events [of 27 July
1998] ... a number of soldiers arrived in the village... and set our
house on fire... As regards my statements... of 11 September
1998, ... we were made to sign certain documents without being
allowed to read their content. If I recall correctly, the documents
had been typed. I do not know about their content...”
Hüseyin
Demir:
“On 27 July 1998, the date of the events which
took place in our village, I was in Ankara, at my son's place. I
therefore did not witness the events... The signature, which appears
on the report dated 28 July 1998, cannot therefore be mine. It is a
fake... In fact, it is the first time I have seen this document...”
Finally,
the applicants have submitted fourteen photographs showing the
current state of their houses in Kışlak village. It appears
from these photos that the houses in question seem to have burned
down together with their contents. The photos further show that the
materials used in the construction of the houses are stone and
concrete. It is not possible to identify any bushes or grass but only
dry land covered by stones around the houses.
The
applicants also submitted four newspaper reports concerning the
events in question. In its edition of 31 July 1998, a pro-Kurdish
newspaper Gündem reported that Şivistan village (Kışlak
in Turkish) of Mazıdağı district in Mardin province
had been burned down on 28 July 1998 by soldiers and that the
inhabitants had been forced to leave. The newspaper noted that this
village had already been partly burned in 1995. On the same day,
another pro-Kurdish newspaper also reported that Şivistan
(Kışlak) had been burned down by soldiers.
On
15 August 1998 the Gündem newspaper reported that on 6 August
1998 Şivistan villagers had submitted criminal complaints, with
the assistance of the Diyarbakır Human Rights Association, to
the Mazıdağı Public Prosecutor's office. The villagers
complained that their houses had been burned down by soldiers. The
newspaper also referred to the petition of Zekiye Bedir. On the same
day, Ülkede Gündem newspaper also reported the criminal
complaints filed by the Şivistan villagers. It was further
reported that the families who had been forced to leave their village
had been living in difficult conditions in Diyarbakır.
B. The Government's version of the facts
On
27 July 1998, at around 7.45 a.m., two PKK terrorists raided Kışlak
village. The terrorists carrying Kalashnikov rifles and a bazooka
asked the inhabitants to assemble in the main square of the village.
Since the villagers refused to obey the terrorists, the latter opened
fire randomly for ten minutes on Mehmet Demir's house which resulted
in the killing of two children, namely Öznur Demir (four years
old) and Emine Demir (14 years old), who were playing in the yard.
The house in which the families of Mehmet, Süleyman and Celal
Bedir lived partly burned down as the bushes around the house caught
fire as a result of the gunfire discharged by the terrorists.
Having
been informed about the attack, the gendarmes came to the village at
around 8.30 p.m. on the same day. They established the
above-mentioned facts and were told that the terrorists escaped
towards the direction of Elmabahçe village.
On
28 July 1998 gendarmes attached to the Mazıdağı
Gendarmerie Command carried out an inspection in the village.
According to the incident report drawn up by three gendarmes and
signed by Hüseyin Demir and Celal Bedir, thirty-two cartridges
discharged from Kalashnikov rifles were retrieved from the scene of
the shooting. There were bullet holes on the walls of Mehmet Demir's
house. The gendarmes found that gunfire discharged by two PKK
terrorists had caused the killing of two children and partial burning
of Mehmet Demir's house.
On
11 September 1998 statements were taken from Celal Bedir, the son of
Mehmet Bedir and an inhabitant of Kışlak village, by two
gendarme officers. Celal Bedir stated that he had moved to Çınar
together with his family following the attack perpetrated by PKK
terrorists on Kışlak on 27 July 1998. On the latter
date, at around 7-7.30 a.m., he heard gunfire on his way from Bağlıca
village to Kışlak. He had not seen the persons who had
fired but later learned from his wife that PKK members opened fire on
Hatice Demir's house. He immediately went to the house of Hatice
Demir to see what had happened. Hatice Demir told him that the PKK
militants had opened fire and had killed her younger daughter and
wounded the elder. When he returned to his home, where he lived
together with his father, he saw that the grass on the roof had
caught fire. He immediately informed the gendarmerie instead of
trying to put out the fire.
Celal
Bedir further claimed that his brothers, Şehmus and Ahmet, had
not been living in Kışlak during the last ten years and
that they did not own property in the village. Furthermore, they had
been involved in the pro Kurdish political party, the HADEP.
Having been influenced by this party, they made the allegation that
their property had been burned down by the security forces in order
to obtain compensation. On 27 July 1998, only one house – that
of his father – caught fire and was partly damaged because of
the gunfire discharged by the terrorists.
Subsequent
to the impugned events, the inhabitants of Kışlak village
left their place of residence and moved to other parts of the
country. According to a report dated 27 March 2000, which was drawn
up and signed by three gendarme officers, it appears that the
villagers started returning to their homes and that there are
currently seven families living in Kışlak.
In
their supplementary observations dated 7 February 2005, the
Government submitted that the number of families that had returned to
Kışlak village had reached twenty-five. They noted that
these people had left the village due to terrorism, or for economic
or other reasons. Currently the village is open to settlement. The
applicant Ahmet Bedir left the village before 28 June 1998 and the
remaining applicants also left the village voluntarily and settled in
Diyarbakır.
The
applicants Mehmet Bedir and Süleyman Bedir (the husband of
Zekiye Bedir) still live in Kışlak. Zekiye Bedir lives in
Istanbul with her children and goes to the village only in summer in
order to cultivate her lands.
Şehmus
and Ahmet Bedir live in Diyarbakır, where they run a grocery
store, and frequently travel to Kışlak in order to
cultivate their lands.
C. The investigation carried out into the applicants'
complaints
On
18 August 1998 Şehmus Bedir, as the muhtar of the
village, and Ahmet and Zekiye Bedir filed petitions with the Offices
of the Mazıdağ District Governor, the Mardin Governor, the
Governor of the state-of-emergency region in Diyarbakır, the
General Command in Ankara, the Chief of Staff, the Ministers of
Defence and the Interior, the Prime Minister, the President of the
Republic and, finally, the central offices of eight political parties
in Ankara. They asked the aforementioned authorities to remedy the
damage that they had sustained and to allow them to return to their
village. However, they did not receive any response to their
petitions.
In
their observations, the Government disputed Şehmus Bedir's
allegation that he was the muhtar of Kışlak at the
relevant time. In his observations in reply to those of the
Government, Mr Bedir admitted that he had not been the muhtar
of the village and that he had signed those petitions as the muhtar
in order to draw the attention of the authorities to the events in
question.
Meanwhile,
on 6 August 1998 the applicants lodged a petition with the Mazıdağı
Chief Public Prosecutor's office complaining that the gendarmes from
the local gendarmerie station had burned down their houses together
with their households and inflicted ill-treatment on the inhabitants.
In
the absence of any response from the authorities, the applicants
sought the assistance of a lawyer in order to pursue their complaints
in domestic law. Thus, on 21 December 1998 the applicants' legal
representative applied to the Chief Public Prosecutor's office and
requested information on the state of the proceedings concerning the
criminal complaints filed by the applicants.
The
Public Prosecutor informed the applicants through their legal
representative that, subsequent to their complaints, an investigation
had been commenced against Lieutenant U.Ö., who was the
commander of the Mazıdağı Gendarmerie Station at the
relevant time, and that the case file had been transferred to the
Directorate General of Criminal Affairs of the Ministry of Justice
requesting leave to instigate criminal proceedings.
By
a letter of 4 February 1999, the above-mentioned Directorate informed
the applicants' legal representative that the investigation carried
out into the applicants' allegation indicated that there was no
ground to commit Lieutenant U.Ö. for trial.
II. RELEVANT DOMESTIC LAW
A
full description of the relevant domestic law may be found in Doğan
and Others v. Turkey (nos. 8803 8811/02, 8813/02 and
8815-8819/02, §§ 31-35, ECHR 2004-...).
THE LAW
I. COMPLAINTS UNDER ARTICLES 3 AND 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
The
applicants complained that the circumstances surrounding the
deliberate destruction of their homes and possessions by the security
forces had given rise to breaches of Articles 3 and 8 of the
Convention and Article 1 of Protocol No. 1, which, in so far as
relevant, read as follows:
Article 3 of the Convention
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 of the Convention
“1. Everyone has the right to respect for his
private and family life [and] his home...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
In
their supplementary observations, the Government raised a preliminary
objection concerning non-exhaustion of domestic remedies in the light
of the 'Law on the Compensation of Losses Resulting from Terrorist
Acts and the Measures Taken against Terrorism' adopted on 14 July
2004. This Law provided for a sufficient remedy capable of redressing
the Convention grievances of the applicants who had suffered damages
during the authorities' struggle against terrorism. The Government
therefore asked the Court to suspend the examination of this
application and to require the applicants to avail themselves of the
new remedy introduced in domestic law.
The
applicants disputed the Government's objection and argued that they
could not be required to exhaust a new remedy after the admissibility
decision of the Court.
The Court recalls at the outset that the question of
admissibility can be revisited at any stage of the proceedings in
accordance with Article 35 §§ 1 and 4 in
fine of the Convention (see Azinas v. Cyprus [GC], no.
56679/00, § 42, ECHR 2004 III and S.S. and M.Y. v.
Turkey, no. 37951/97, §§ 24 31). This being
so, it observes that under the compensation law of 27 July 2004 it is
open to persons, such as the applicants in the present case whose
applications are pending before the Court, to lodge an application
with the compensations commissions in order to claim compensation for
the damage they had sustained as a result of their displacement,
destruction of property and inability to gain access to their
possessions in their villages in south-east Turkey.
The
Court has already examined that remedy and found it effective in
respect of complaints about the alleged forced displacement and
denial of access to possessions in the villages in south-east Turkey.
In particular, it considered that the new remedy was accessible and
provided reasonable prospects of success (see Aydın İçyer
v. Turkey (dec.), no. 18888/02, §§ 73 87, 12
January 2006).
In the light of the above, the Court considers that
there are no exceptional circumstances capable of exempting the
applicants from the obligation to exhaust domestic remedies.
The Court therefore upholds the Government's
preliminary objection on non-exhaustion of domestic remedies.
II. COMPLAINT UNDER ARTICLE 13 OF THE CONVENTION
The applicants complained that they had been denied an
effective remedy with which to challenge the destruction of their
houses and their forced eviction by the security forces. They relied
on Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
applicants complained under Article 13 of the Convention that they
had no effective remedy available in respect of their Convention
grievances.
The
Government disputed the above allegations, arguing that there were
effective domestic remedies of which the applicants had failed to
avail themselves. They, alternatively, contended that there had been
no shortcomings in the investigation and that the authorities had
conducted an effective inquiry into the applicants' allegations.
The
Court has already found that the Compensation Law does provide the
applicants with an effective remedy in respect of their complaint
concerning the alleged forced displacement, destruction of property
and denial of access to their property. That finding is valid in the
context of the complaint under Article 13 of the Convention.
There
has therefore been no violation of Article 13 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Upholds the Government's preliminary objection
on non-exhaustion of domestic remedies;
Holds that there has been no violation of
Article 13 of the Convention.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
