CEDH · CASELAW;REPORTS;ENG — 3 septembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 22275/93                                  ismet GÜNDEM                                       against                                     Turkey                              REPORT OF THE COMMISSION                        (adopted on 3 September 1996)                                TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-37) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-32). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 33-37) . . . . . . . . . . . . . . . . . . . . . 4   II.    ESTABLISHMENT OF THE FACTS       (paras. 38-142) . . . . . . . . . . . . . . . . . . . . . . . 5         A.    The particular circumstances of the case            (paras. 39-53) . . . . . . . . . . . . . . . . . . . . . 5         B.    The evidence before the Commission            (paras. 54-123). . . . . . . . . . . . . . . . . . . . . 7              1.     Documentary evidence                  (paras. 54-81) . . . . . . . . . . . . . . . . . . 7              2.     Oral evidence                  (paras. 82-123). . . . . . . . . . . . . . . . . .11         C.    Relevant domestic law and practice            (paras. 124-142) . . . . . . . . . . . . . . . . . . . .18   III.   OPINION OF THE COMMISSION       (paras. 143-183). . . . . . . . . . . . . . . . . . . . . . .21         A.    Complaints declared admissible            (para. 143). . . . . . . . . . . . . . . . . . . . . . .21         B.    Points at issue            (para. 144). . . . . . . . . . . . . . . . . . . . . . .21         C.    The evaluation of the evidence            (paras. 145-153) . . . . . . . . . . . . . . . . . . . .21         D.    As regards Articles 3, 5 para. 1 and 8 of the Convention            and Article 1 of Protocol No. 1            (paras. 154-163) . . . . . . . . . . . . . . . . . . . .23              CONCLUSION            (para. 163). . . . . . . . . . . . . . . . . . . . . . .24         E.    As regards Articles 6 para. 1 and 13 of the Convention            (paras. 164-175) . . . . . . . . . . . . . . . . . . .   25              CONCLUSIONS            (paras. 174-175) . . . . . . . . . . . . . . . . . . .   26         F.    As regards Article 18 of the Convention            (paras. 176-179) . . . . . . . . . . . . . . . . . . . .26              CONCLUSION            (para. 179). . . . . . . . . . . . . . . . . . . . . . .27         H.    Recapitulation            (paras. 180-183) . . . . . . . . . . . . . . . . . . . .27     PARTLY DISSENTING OPINION OF MRS. G.H. THUNE AND MR. N. BRATZA . . . . . . . . . . . . . . . . . . . . . . . . .28   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .29   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     The applicant is a Turkish citizen who was resident in Kaniye Meheme, a neighbourhood of Sarierik village in the Hazro district of the province of Diyarbakir. He was born in 1955. He was represented before the Commission by Mr. K. Boyle and Ms. F. Hampson, both teachers at the University of Essex, England.   3.     The application is directed against Turkey.   The respondent Government were represented by their Agent, Mr. A. Gündüz.   4.     The applicant alleges that his home and possessions were severely damaged in the course of attacks conducted by State security forces and village guards on 7 January and 13 February 1993 as a result of which he had to leave his home. The applicant invokes Articles 3, 5, 6, 8, 13 and 18 of the Convention and Article 1 of Protocol No. 1.   B.     The proceedings   5.     The application was introduced on 7 July 1993 and registered on 19 July 1993.   6.     On 11 October 1993, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 10 March 1994 after an extension of the time-limit fixed for this purpose.   The applicant replied on 4 May 1994. The applicant submitted further information on 14 September 1994.   8.     On 9 January 1995, the Commission declared the application admissible.   9.     On 16 January 1995, the Government submitted further information and observations.   10.    The text of the Commission's decision on admissibility was sent to the parties on 19 January 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.   11.    The Government submitted further observations on 29 March 1995 after an extension of the time-limit fixed for this purpose.   12.    On 20 May 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three delegates for this purpose: Mr. H. Danelius, Mr. B. Conforti and Mr. J. Mucha. It notified the parties by letter of 22 May 1995, proposing certain witnesses and requesting the Government to identify a member of the security forces and a public prosecutor. The Government were also requested to provide the contents of the investigation file of the public prosecutor involved in investigating the alleged incidents.   13.    By letters of 23 June 1995, the applicant's representatives submitted comments on the Government's further observations of 29 March 1994 and requested two further witnesses to be heard. They indicated that at the present time they were unable to provide the name of the second proposed witness.   14.    By letter of 3 July 1995, the Commission's Secretariat requested the Government to provide the outstanding information with regard to the identities of the relevant witnesses and the contents of the investigation file. On the same date the applicant's representatives were requested to submit the name of the second witness proposed by them and the address of the applicant and the witnesses proposed by them.   15.    The parties were reminded by letter of 31 July 1995 of the Commission's Secretariat of the information and documents still outstanding.   16.    On 5 September 1995, the applicant's representatives informed the Commission of the applicant's address and stated that they had been unable to identify the second witness they had requested to be heard.   17.    By letter dated 7 September 1995, the Commission's Secretariat urgently requested the Government to provide the outstanding documents and to identify two witnesses.   18.    By letter dated 11 September 1995, the Government provided the name of the member of the security forces and the names of three public prosecutors who had been involved in the investigation of the alleged incidents.   19.    On 15 September and 24 October 1995, the Commission's Secretariat again urgently requested the Government to provide the contents of the investigation file.   20.    By letter dated 30 October 1995, the Government submitted a copy of the investigation file.   21.    By letter dated 31 October 1995, the Government requested that two further witnesses be heard.   22.    On 1 November 1995, the applicant's representatives notified the Commission that because of fear for reprisals the applicant did not find it possible to attend the hearing. They added that they had asked the applicant to provide an explanation for his absence in writing.   23.    By letter dated 2 November 1995, the Government requested that three further witnesses be heard.   24.    Evidence was heard by the Delegates of the Commission in Diyarbakir on 7 and 8 November 1995. For health reasons, one of the Delegates, Mr. Mucha, was not able to attend the hearing of all witnesses.   Before the Delegates the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr. T. Özkarol, Mr. A. Sölen, Mr. A. Kaya, Mr. A. Kurudal, Ms. N. Erdim and Mr. A. Kaya. The applicant, who did not appear himself, was represented by Mr. K. Boyle, counsel, assisted by Ms. A. Reidy, Mr. O. Baydemir and Ms. D. Deniz (interpreter).   25.    On 2 December 1995, the Commission decided to take further evidence in the case in Strasbourg. The applicant would be heard on that occasion as well as other witnesses who had not appeared at the earlier hearing. The new hearing was to take place on 7 and 8 March 1996.   26.    The parties were informed of the decision to hold a further hearing by letter of 12 December 1996. The applicant's representatives were requested to confirm in writing that the applicant would attend this hearing.   27.    By letter of 10 January 1996, the applicant's representatives informed the Commission that the applicant would not attend the hearing since he did not have a passport and was being sought by police.   28.    On 16 January 1996, the parties were requested to inform the Commission whether in view of these circumstances they nevertheless wished to hear the remaining witnesses.   29.    On 20 January 1996, the Commission decided not to maintain the hearing of further witnesses if the parties had not responded to the request of 16 January 1996 before the expiry of the time-limit fixed for that purpose. It also decided that in that event the parties should be invited to present their written conclusions on the merits of the case.   30.    No reply to the request of 16 January 1996 was received from the parties before the expiry of the time-limit.   31.    On 11 March 1996, the applicant submitted his final observations on the merits. No final observations on the merits were received from the Government.   32.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   33.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS     34.    The text of this Report was adopted on 3 September 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   35.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   36.    The Commission's decision on the admissibility of the application is annexed hereto as an Appendix.   37.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   38.    The facts of the case, particularly concerning events in or about 7 January and 13 February 1993, are in dispute between the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been presented before Delegates. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.     A.     The particular circumstances of the case   1.     Concerning the alleged events in the village of Sarierik         a.    Facts as presented by the applicant   39.    The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B below. The version as presented in the applicant's final observations on the merits is summarised here.   40.    The applicant lived in the Kaniye Meheme neighbourhood of the village of Sarierik, in the Hazro district of the province of Diyarbakir in South-East Turkey. In this neighbourhood, which consisted of approximately fifteen households, the applicant's family owned eleven houses, seven of which were occupied at the relevant time. The incidents of which the applicant complains occurred at a time when the Sarierik village did not have village guards, the applicant's family also having refused to become village guards.   41.    In the first incident on 7 January 1993, soldiers and village guards from the villages of Kirmatas and Mesebaglar came and gathered villagers from the Kaniye Meheme neighbourhood together in one place. They beat some of the villagers and then searched the houses. When they entered the houses they destroyed some of the property and household goods inside and mixed up the winter provisions. When they left the houses they sprayed them with bullets, breaking the windows of the houses.   42.    In the second incident, on 13 February 1993, the soldiers and village guards came to the neighbourhood and while the soldiers surrounded the neighbourhood the village guards shot at the houses for around twenty minutes. The applicant was able to hear the village guards and the soldiers communicating by walkie-talkie. They targeted the Gündem house in particular. During the attack the women and children were caught in the houses and had to lie down on the floor to take cover. The men had tried to hide outside the houses. During this attack the applicant's house was severely damaged.   43.    The applicant and his family left the village soon after these events in the beginning of March 1993. They now live in Diyarbakir.   44.    A number of houses belonging to the applicant's family in the Kaniye Meheme neighbourhood, but not his house, were subsequently destroyed by fire in the summer of 1993, apparently as a result of a raid by the PKK. At that time, villagers in the main part of the village of Sarierik had become village guards.   45.    The targeting of the houses of the applicant's family is consistent with the State practice of evacuating those villages and hamlets where the villagers have refused to accept the village guard system.         b.    Facts as presented by the Government   46.    The Government have not presented any written submissions on the merits regarding the assessment of the oral evidence and other material before the Commission. In their observations on the admissibility of the application and in their further observations submitted on 29 March 1995, the Government stated as follows concerning the facts of the case.   47.    Between 7 and 13 February 1993, security forces were in operation in the village of Sarierik. The operations were aimed at impeding the activities of the militants from the PKK, maintaining order and protecting the villagers and their property.   48.    A number of houses belonging to relatives of the applicant were burned in a terrorist attack six or seven months later than the incidents complained of. The day after this incident the security forces arrived at the village to investigate the attack.     2.     Proceedings before the domestic authorities   49.    Following the communication of this application by the Commission to the respondent Government on 11 October 1993, the Ministry of Justice (International Law and External Relations General Directorate) contacted the chief public prosecutor's office in Hazro through the chief public prosecutor's office in Diyarbakir on 17 December 1993, informing them of the complaints made by the applicant.   50.    On 18 May 1994, a decision of non-jurisdiction was issued by a public prosecutor at Hazro, Ekrem Bakir, and the investigation was referred to the Hazro District Administrative Council in accordance with Article 15 para. 3 of the Prevention of Terrorism Act No. 3713.   51.    By letter of 31 August 1994, the Ministry of Justice (International Law and External Relations General Directorate) requested the Diyarbakir Chief Public Prosecutor to proceed with the investigation since the provision on which the decision of non- jurisdiction of 18 May 1994 was based had been declared unconstitutional by the Constitutional Court on 31 March 1992. On 21 October 1994, the Hazro Administrative Council returned the investigation file to the chief public prosecutor's office in Hazro.   52.    Having taken statements from five persons on 17 November 1994 (Kasim Tatli, Esref Güç, ibrahim Türkoguz, Musa Can and Yusuf Yasa), a public prosecutor at Hazro, Muhittin Çiçek, on 2 February 1995, issued a decision of non-jurisdiction and referred the investigation to the Hazro District Administrative Council in accordance with Article 4 para. 3 sub (i) of the Decree No. 285.   53.    It appears that the proceedings before the Hazro District Administrative Council have not yet been concluded.     B.     The evidence before the Commission   1.     Documentary evidence   54.    The parties submitted various documents and newspaper articles to the Commission. The documents included the Human Rights Watch/Helsinki report "Forced Displacement of Ethnic Kurds from Southeastern Turkey" (October 1994), extracts from the Kurdish Human Rights Project report "Village Evacuations and Destructions in Southeast Turkey", and statements from the applicant and witnesses concerning their version of the events in the case.   55.    The Commission had regard to the following documents:         a.    General reports and official documents         i. Report entitled "Forced Displacement of Ethnic Kurds from       Southeastern Turkey", Human Rights Watch/Helsinki, October 1994   56.    This report indicates that the motive for the burning of villages described in the report was the refusal of the villagers to join the village guard system. It contains an interview with a villager who states that soldiers threatened to burn his village if its inhabitants did not become village guards.         ii. Extracts from the report entitled "Village Evacuations and       Destructions in South East Turkey" and Appendix I "The Village       Guards", Kurdish Human Rights Project, undated   57.    The author describes the persecution of villagers and families who refuse to become village guards. Several incidents are reported where villages were evacuated as a result of the villagers' refusal to join the village guard system.         iii. Report of 22 June 1994 from the Hazro District Gendarme       Command to the Office of the Hazro District Governor   58.    This report appears to have been drawn up following a request for information from the Office of the Hazro District Governor of 31 May 1994.   59.    It states that the Station Command did not carry out any operation on either 7 January or 13 February 1993 in Sarierik village or the neighbourhood of Kaniye Meheme. The applicant and the other residents of the neighbourhood were not maltreated or told to evacuate.   60.    According to the report, the applicant and his relatives regularly complained of the arrest and disappearance of the applicant's brother, ibrahim. However, custody records showed that the applicant's brother had not been in custody in September 1991. An investigation into these complaints had been conducted.   61.    The report further states that the applicant had previously been imprisoned for having grown Indian hemp. Following his release on 5 August 1992, he left his village and had been in contact with the PKK terrorist organisation. He had been seen accompanying members of this organisation and had attended an ambush carried out by the PKK on Sarierik village.         iv. Decision of non-jurisdiction of 2 February 1995   62.    This decision, issued by a public prosecutor at Hazro, Muhittin Çiçek, lists the Hazro security forces and village guards as being suspected of ill-treatment and causing financial losses. It refers to the complaints made by the applicant that the security forces and village guards, on 7 January and 13 February 1993, had beaten up residents and damaged houses and belongings in the village of Sarierik. It concludes that pursuant to Decree No. 285 the investigation should be referred to the Office of the Hazro District Governor.         b)    Statements by the applicant         i. Statement dated 15 March 1993 taken by Abdullah Koç of the       Diyarbakir branch of the Human Rights Association   63.    On 7 January 1993, security forces and village guards carried out a raid on the fifteen household neighbourhood of Kaniye Meheme. The residents were beaten up and sworn at. The houses were shot at with heavy weapons, resulting in the breaking down of doors and the shattering of windows. All the winter provisions stored within the houses were mixed up, rendering them inedible. Many household goods were destroyed.   64.    On 13 February 1993, security forces and village guards again carried out a raid on the neighbourhood, threatening the villagers with demolition of the village if they did not evacuate it.   65.    The applicant's brother, ibrahim, has been missing since September 1991, when he was taken into custody at the headquarters of the Hazro gendarme station commander, Kenan Sahin.         ii. Statement made on 28 May 1994 and recorded on 31 May 1994 by       Mahmut Sakar of the Diyarbakir branch of the Human Rights       Association   66.    The first raid, which was carried out by approximately 200 soldiers and 150 village guards, took place around 10.30 hours on 7 January 1993. During the raid, the security forces gathered the villagers in one place. They beat some of the villagers and verbally abused and swore at others, including children. They used heavy weapons to shoot at the houses. They broke down doors and windows and mixed up all the winter provisions, which became inedible. They also destroyed household goods in a number of houses. Before they left, they stated that if they found the villagers there when they came a second time they would burn the village.   67.    The second raid commenced around 05.00 hours on 13 February 1993, when soldiers and village guards approached the village while shooting in the air. At the sound of the gunshots, the men went outside and hid near the houses. The applicant's family took care to hide the applicant first, since he had previously made statements to the press and other organisations concerning the disappearance of his brother ibrahim in which he had accused the Gendarme Commander Kenan Sahin.   68.    The soldiers did not enter the village but surrounded it. Approximately fifty village guards entered the village and fired at the houses for about twenty minutes. Most of the women and children, having been unable to flee, lay on the floor of the houses to protect themselves. When the village guards stopped firing, they took the women and children out of the houses which were then destroyed. Some of the women and children were beaten with fists and rifle butts.   69.    The men who were hiding outside during the shooting were able to overhear the communications taking place by walkie-talkies between the village guards and the soldiers. From these conversations it appeared that the houses of the applicant's family were targeted in particular.   70.    The doors and the windows of the applicant's house were broken and the interior destroyed. The damage could have been repaired but the applicant has been too afraid to return. Following their departure, it has been impossible for the villagers to harvest their vineyards and fields.   71.    The Government dispute the authenticity of this statement since it does not bear the signature of the applicant.         c) Statements by other persons         i. Kasim Tatli         Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro       public prosecutor   72.    Tatli is the mayor of Sarierik village. Around the dates specified in the application, terrorists very often used to carry out ambushes. At that time, there were no village guards in Sarierik. One day in the beginning of 1993, some 200 terrorists passed Sarierik and headed towards Mesebaglar. They ambushed Mesebaglar in the evening and a clash with village guards ensued. The next day, some members of the Hazro security forces passed Sarierik towards Mesebaglar in order to record the damage and capture the terrorists at large. The applicant's house was not burned on this occasion but about six to seven months later in June or July 1993 when terrorists again ambushed Mesebaglar. During the armed conflict which ensued fire and smoke had been seen to come out of the Kaniye Meheme neighbourhood and the next day it was discovered by the inhabitants of Sarierik that three or four houses in Kaniye Meheme, all belonging to the applicant's family, had burned down.   73.    The villages in the area were often ambushed and houses were burned down by terrorists to threaten the inhabitants. Tatli has never seen or witnessed the security forces and the village guards damaging residential property.         ii. Esref Güç         Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro       public prosecutor   74.    Güç is a member of the Sarierik village council of elders and lives in the Kaniye Meheme neighbourhood. On the dates specified in the application, no houses were burned down in the neighbourhood. No ambush was carried out by security forces and village guards on Kaniye Meheme in January-February 1993. At that time, the village had no village guards. Güç has never seen or witnessed any of the security forces or village guards coming to the neighbourhood, burning the houses or beating up or intimidating the residents.   75.    When he returned to the neighbourhood in June or July 1993, after having harvested his tobacco crop, he saw that three or four of the applicant's houses had burned down. He found out that an armed conflict had taken place in Mesebaglar and that the houses had been burned down in the course of this incident. The following day, security forces arrived in the neighbourhood to examine the incident.         iii. ibrahim Türkoguz         Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro       public prosecutor   76.    Türkoguz was a member of the Sarierik village council of elders on the dates specified in the application. He resides in the neighbourhood of Kaniye Meheme. He did not witness any activity carried out by the security forces or the village guards on the date claimed by the applicant or at any other time. The applicant's house was not burned at that time but about six or seven months later. One night, Türkoguz heard shooting coming from outside. Being afraid of terrorists he did not go out. In the morning he saw that the applicant's and his brothers' houses were burning. He does not know who set the houses on fire. At that time, the village had no village guards but security forces and other village guards sometimes visited the village. The day following the burning of the houses, the security forces came to examine the incident.         iv. Musa Can         Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro       public prosecutor   77.    Can resides in the neighbourhood of Kaniye Meheme. On the dates specified by the applicant, Sarierik had no village guards. At that time, the security forces and the village guards did nothing of the sort suggested by the applicant. The applicant's houses were not burned at that time but in the summer months of 1993 when the applicant's relatives had already left the village. One night, three or four of the applicant's houses were burned down. Living at the outskirts of the neighbourhood, Can had not heard any weapons being fired. He does not know who burned the houses or for what reason. The following day, the security forces came to the neighbourhood to investigate the incident.         v. Yusuf Yasa         Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro       public prosecutor   78.    Yasa was and still is residing in the neighbourhood of Kaniye Meheme. On the dates specified in the application, security forces and village guards did not carry out any activity as contended by the applicant. Security forces and village guards visited the village from time to time. The applicant's houses were burned in the summer of 1993. One night, Yasa heard the sounds of weapons but, being afraid of terrorists, did not go out. The village had no village guards at that time. The following morning, he saw that a group of houses belonging to the applicant had been burned. He does not know who was responsible for this. The security forces came to investigate the incident.         vi. Mahmut Demir         Statement of 24 December 1992 taken by the Human Rights       Association   79.    On the morning of 22 December 1992, village guards from Kirmatas and Mesebaglar came to Demir's village of Tepecik in the Kocaköy district of Diyarbakir province and burned it completely.         vii. Mahmut Laçin         Undated statement taken by the Human Rights Association   80.    On 17 December 1992, village guards from Kirmatas and Mesebaglar came to Laçin's village of Tepecik and started firing indiscriminately to revenge the death of another village guard which had occurred during a clash between them and PKK militants. This raid on Tepecik and a subsequent raid a few days later resulted in the loss of lives, injuries and the burning of most of the houses and household goods.         viii. Sidik Yasar         Statement of 24 December 1992 taken by the Human Rights       Association   81.    Yasar was present during the second raid conducted on Tepecik village by village guards from Kirmatas and Mesebaglar in Hazro district on 22 December 1992. The village guards called in security forces and assistance teams made up of other village guards. The houses in the village were set alight, people beaten up and livestock shot. During a previous incident on 19 December 1992, village guards had killed, inter alia, Yasar's wife and child.     2.     Oral evidence   82.    The applicant did not give evidence before the Commission's Delegates at the hearing in Diyarbakir nor was he willing to appear at a further hearing which the Delegates intended to be held in Strasbourg but which was cancelled after the Commission had been informed that the applicant would not appear. It was submitted on behalf of the applicant that he is afraid of possible reprisals should he give evidence before the Commission.   83.    It did not prove possible to ensure the appearance of all the other persons summoned by the Delegates to be heard during the hearing in Diyarbakir. In particular, the public prosecutor at Hazro, Muhittin Çiçek, who had taken statements from several villagers in the course of the investigation into the applicant's claims and who had issued a decision of non-jurisdiction (para. 52), was unavailable to give evidence.   84.    Furthermore, the Government objected to the hearing of Mahmut Sakar as a witness. The Delegates nevertheless decided to hear Sakar, and since the Government refused to attend this part of the proceedings, Sakar was heard in the absence of the Government's representatives. In view of the fact that they dispute the authenticity of the statement made by the applicant on 28 May 1994 (cf. para. 71) the Government submit that the evidence given by Mahmut Sakar cannot be relied upon.   85.    The evidence of seven witnesses heard by the Delegates may be summarised as follows:         i. Mahmut Sakar   86.    Sakar said that he was born in 1966. He is a barrister working for the Diyarbakir Human Rights Association. He had met the applicant after having been requested by the applicant's representatives to put certain questions to him. Prior to that date he had not had any particular knowledge of the application.   87.    He had initially attempted to contact the applicant by telephone. Subsequently, members of the applicant's family had come to the office of the Human Rights Association in Diyarbakir and had said that they would be able to answer the questions. However, he had insisted that he wanted to speak to the applicant. The applicant had come to see him on 28 May 1994, accompanied by members of his family. Since the applicant had indicated that he could only stay a short while, Sakar had made notes during the meeting and had prepared the written statement afterwards. It was for this reason, and also because the written statement did not contain a direct account related by the applicant, that it was not signed by the applicant himself.         ii. Kasim Tatli   88.    Tatli stated that he was born in 1963 and that he had been the mayor of Sarierik for about seven years. A terrorist group had first come to his village in 1992. At that stage the villagers had not known what terrorist organisations were but from then on the PKK had made the local people suffer enormously. They had wanted him to join their cause but he had always refused because he was in favour of the State who had never harmed him or his villagers. However, the terrorists had consistently wanted to punish him for his refusal to join them. To this end they had several times, in 1992, 1993 and 1994, abducted members of his family and had killed one of his cousins.   89.    At some stage in 1993 he and other villagers had become village guards and had received arms, enabling them to retaliate against terrorist raids and to remove mines laid by the terrorists. Neither the Government nor village guards from neighbouring villages had pressured them into becoming village guards. The village had good relations with other villages, irrespective of whether or not the other villages had village guards.   90.    He confirmed that he knew the applicant and his family. The applicant had been involved with the terrorists, acting as their guide. He had spoken directly to the applicant in an attempt to persuade him to stop terrorism, but to no avail. The applicant had furthermore served a prison sentence before 1993 in connection with a robbery and had always been involved in drug dealing and arms smuggling. For these reasons the security forces had come to the village looking for the applicant but they had never mistreated a single citizen.   91.    He denied that on 7 January 1993 security forces numbering about 200, together with 150 village guards, had raided Kaniye Meheme as alleged by the applicant. In any event, the total number of village guards in the locality had been much smaller than 150. Asked whether any particular event had occurred on 7 January 1993, he said that he did not exactly remember the date but that a group of ten to twenty village guards had come to the village to ask the applicant to stop acting as a guide for terrorists who had conducted raids on their village.   92.    He also denied that any raid by security forces and village guards had taken place on the village on 13 February 1993. In this respect he initially said that at a date which he did not exactly remember, terrorists had clashed with the security forces outside the village but that neither the security forces nor a single village guard had entered the village. He then went on to say that on 13 February 1993, at night, the terrorists had raided the village of Mesebaglar and that during the clash which had ensued one terrorist had been killed.   93.    The applicant's house was still standing and intact, albeit in a poor state because of a lack of maintenance. Some other houses belonging to members of the applicant's family had been burned in the course of a clash following a terrorist raid on Mesebaglar in June or July 1993. Confronted with the statement of 17 November 1994, in which he had said that the applicant's house had not been burned in the beginning of 1993 but in June or July 1993 (para. 72), he denied that the applicant's house had been burned.   94.    He confirmed that he had heard that the applicant's brother ibrahim had been abducted by terrorists.         iii. Esref Güç   95.    Güç said that he was born in 1964. He had lived all his life in the Kaniye Meheme neighbourhood of Sarierik village. He was one of the four members of the council of elders which was consulted when a problem occurred in the village. He knew the applicant and his family; they had four to five houses in Kaniye Meheme.   96.    He denied that any raid by security forces or village guards on the village had taken place on 7 January or 13 February 1993 or on any other date. At that time, there had been a metre of snow and it had been impossible to reach the village. However, terrorists had caused damage to the village. Once, presumably in July or August 1993 when he had not been present in the village, three houses belonging to the applicant's family had been burned, probably by terrorists. He insisted that he had also told this to the public prosecutor who had questioned him on 17 November 1994 (paras. 74, 75). If the report of this statement said that the applicant's houses had been burned, he had referred to the houses belonging to the applicant's family. The applicant's house was still standing and intact. It was not occupied as the applicant had left the village to work elsewhere. He knew that the applicant had contacts with the PKK. The applicant's father, Haci Ahmet Gündem, had gone to Diyarbakir in March 1993 to find work.   97.    It was the PKK who by their actions had forced the villagers to become village guards. He had never been a village guard himself. There was no enmity between villages with and villages without village guards.         iv. Ekrem Bakir   98.    Bakir stated that he was born in 1966. He had worked as public prosecutor in Hazro from late 1993 until July 1994. He had initiated a preliminary investigation into the applicant's allegations following a request thereto made about a year after the alleged incidents by the Ministry of Justice through the Diyarbakir Chief Public Prosecution Department. He had received a copy of the applicant's statement to Abdullah Koç (paras. 63-65). Although it had been clear to him that the burning of houses as alleged by the applicant fell within the scope of the law on the prosecution of civil servants, he had issued instructions that the applicant be found in order for his statement to be taken. In his experience, a statement taken directly from a complainant might reveal other offences which might fall within his jurisdiction. Furthermore, he had wanted to find out from the applicant whether there had been any witnesses to the alleged events and whether there was any supporting documentation. However, it had been impossible to find the applicant.   99.    When it was put to him that the applicant's statement to Abdullah Koç did not contain the allegation that the applicant's house had been burned, he said that there might have been some confusion with other incidents in which houses had been burned by terrorists.   100.   Apart from his attempts to locate the applicant, his investigation had focused on the applicant's second allegation, i.e. the disappearance of the applicant's brother ibrahim for which the applicant had held the security forces responsible. As he had experienced that uniforms belonging to the security forces had been found among material discovered in terrorist shelters, he had looked into the possibility that the applicant's brother had been abducted by terrorists