CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 mai 1998

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TURKEY   (139/1996/758/957)                       JUDGMENT   STRASBOURG     25 May 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC’s-Gravenhage) SUMMARY [1] Judgment delivered by a Grand Chamber Turkey – alleged destruction of house and possessions by security forces and village guards and lack of remedies in south-east Turkey I.   GOVERNMENT’S PRELIMINARY OBJECTIONs A.   Invalidity or, alternatively, withdrawal or discontinuation of application Nothing had prevented Government from raising at the admissibility stage of Commission proceedings their doubts as to authenticity of applicant's application and certain documents – at the subsequent stage during hearing before Commission delegates the Government only challenged the authenticity of one document but not that of the initial application – nor did they at that stage suggest that it could be inferred from applicant’s absence at the hearing that he wished to withdraw or discontinue the proceedings. Conclusion : estoppel (unanimously). B.   Non-exhaustion of domestic remedies Central question was whether applicant had demonstrated existence of special circumstances dispensing him from obligation under Article 26 to exhaust domestic remedies. Court had regard to security situation in south-east Turkey at the time of the applicant’s complaint and to the ensuing obstacles to the proper functioning of the system of the administration of justice in that region – despite the extent of the problem of village destruction, no example of compensation being awarded in respect of allegations that property has been purposely destroyed by members of the security forces or of prosecutions having been brought against them – general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred – on the other hand, applicant had not himself raised his Convention grievances before a domestic authority before complaining to Strasbourg – Court attached particular significance to the manner in which authorities conducted their investigation into applicant’s allegations, following communication of his application by Commission to respondent Government. In this regard Court noted that, despite seriousness of applicant’s complaints, the investigations carried out by prosecution authorities were not only protracted but also of limited nature – on the other hand, Government had sought to demonstrate that authorities had made sustained efforts to find applicant in order to be able to take evidence from him – facts of case did not disclose any shortcomings on their part in this respect – nor did they seem to exclude that protracted and limited character of investigations to some extent caused by applicant’s failure to cooperate with authorities – furthermore, during investigations, village mayor and four villagers from applicant’s neighbourhood had been interviewed, all of whom had denied that alleged events had taken place – it was questionable whether it could be said that there existed such special circumstances as could dispense applicant at the time of the events complained of from obligation to exhaust domestic remedies – however, Government’s preliminary objection raised issues which were closely linked to those raised by applicant under Article 13. Conclusion : objection joined to the merits (fourteen votes to six). II.   MERITS OF THE APPLICANTS’ COMPLAINTS A.   Articles 3, 5 § 1, 8 and 18 of the Convention and Article 1 of Protocol No. 1 Recalling that under its case-law the establishment and verification of the facts are primarily a matter for the Commission, Court saw no reason to depart from Commission's findings that it had not been established beyond reasonable doubt that the events as alleged by the applicant had occurred. Conclusion : no violation (unanimously). B.   Articles 6 § 1 and 13 of the Convention Since applicant did not attempt to make an application before the courts, not possible to determine whether Turkish courts would have been able to adjudicate on his claims had he initiated proceedings – in any event, applicant complained essentially of lack of a proper investigation – therefore appropriate to examine this complaint in relation to general obligation under Article   13. Conclusion : not necessary to consider complaint under Article 6 § 1 (unanimously).   Article 13 applied only in respect of Convention grievances which were arguable – whether that was so in this case had to be decided in light of particular facts and nature of legal issues raised. Court reiterated Commission’s findings that it was only the oral testimony of applicant’s father which provided support for applicant’s account of specific events – testimony had been rather unclear and had differed from applicant’s own account as to the reasons for the alleged damage to his house and property – several witnesses had denied that any houses in the neighbourhood had been destroyed by security forces and village guards – a number of witnesses had agreed that some houses belonging to applicant’s family had burned down following a clash several months after the alleged events, but none had suggested that this was the result of deliberate action by security forces or village guards   – furthermore, applicant had failed to appear before the Commission’s delegates – Commission felt concern about his explanation that he feared adverse consequences but was unable to determine whether or to what extent such fear might have been justified – whatever the reason for applicant’s absence, it had made it difficult to establish the facts. Court considered that the evidence gave rise to serious doubts as to whether applicant had made out a factual basis for his allegation that his house and property had been purposely destroyed by the security forces – in the circumstances of the case, including the absence of an opportunity for the Commission to test directly with him his written statements, Court not satisfied that he had an arguable claim that the Convention had been violated. Conclusion : no violation and not necessary to pursue examination of preliminary objection concerning exhaustion of domestic remedies (thirteen votes to seven). COURT’S CASE-LAW REFERRED TO 27.4.1988, Boyle and Rice v. the United Kingdom; 21.6.1988, Plattform “Ärzte für das Leben” v. Austria; 9.12.1994, Stran Greek Refineries and Stratis Andreadis v. Greece; 16.9.1996, Akdivar and Others v. Turkey; 18.12.1996, Aksoy v. Turkey; 25.6.1997, Halford v. the United Kingdom; 27.8.1997, Anne-Marie Andersson v. Sweden; 25.9.1997, Aydın v. Turkey; 28.11.1997, Menteş and Others v. Turkey; 19.2.1998, Kaya v. Turkey   In the case of Gündem v. Turkey [2] , The European Court of Human Rights, sitting, in accordance with Rule   51 of Rules of Court A [3] , as a Grand Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   Thór Vilhjálmsson ,   Mr   F. Gölcüklü , Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   J. De Meyer ,   Mr   N. Valticos ,   Mr   R. Pekkanen ,   Mr   A.N. Loizou ,   Sir   John Freeland ,   Mr   A.B. Baka ,   Mr   M.A. Lopes Rocha ,   Mr   L. Wildhaber ,   Mr   G. Mifsud Bonnici ,   Mr   D. Gotchev ,   Mr   B. Repik ,   Mr   P. Jambrek ,   Mr   U. Lōhmus ,   Mr   E. Levits ,   Mr   J. Casadevall ,   and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 30 January and 24 April 1998, Delivers the following judgment, which was adopted on the last-mentioned date:   PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 October 1996, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no.   22275/93) against the Republic of Turkey lodged with the Commission under Article   25 by a Turkish national, Mr İsmet Gündem, on 7   July 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article   46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 § 1, 8, 13 and 18 of the Convention, Article 1 of Protocol No.   1 and, in particular, Article 6 § 1 of the Convention. 2.     In response to the enquiry made in accordance with Rule   33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule   30). On 18 March 1997 the President of the Chamber refused the applicant’s request to provide for interpretation in an unofficial language at the public hearing having regard to the fact that two of his lawyers used one of the official languages (Rule 27). 3.     The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article   43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule   21 §   4   (b)). On   29   October 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr R. Macdonald, Mr N. Valticos, Mrs   E.   Palm, Mr   L. Wildhaber, Mr P. Jambrek and Mr   J. Casadevall (Article   43 in fine of the Convention and Rule 21 § 5). Subsequently Mr   U.   Lōhmus and Mr F. Matscher, the first and second substitute judges, replaced respectively Mrs Palm and Mr Macdonald, who were unable to take part in the further consideration of the case (Rules   22 §   1 and 24 §   1). 4.     As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence on 6 March 1997, the Registrar received the Government’s memorial on 13 June 1997 and the applicant’s memorial on 18 June 1997. On 27 August 1997 the Secretary to the Commission indicated that the Delegate did not wish to reply in writing. On 15 September 1997 the Commission supplied a number of documents from its case file, including the verbatim record of the hearing of witnesses before the delegates in Diyarbakır , which the Registrar had requested on the instructions of the President of the Chamber. 5.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23   September 1997. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)    for the Government Mr   A. Gündüz , Professor of International Law,       University of Marmara,   Agent , Mr   M. Özmen , Ministry of Foreign Affairs, Mr   A. Kaya , Ministry of Justice, Ms   A. Emüler , Ministry of Foreign Affairs, Ms   Y. Renda , Ministry of Foreign Affairs, Ms   N. Ayman , Ministry of the Interior, Mr   N. Alkan , Ministry of the Interior,   Advisers ; (b)   for the Commission Mr   N . Bratza ,   Delegate ; (c)   for the applicant Mr   K. Boyle , Barrister-at-Law,   Counsel , Mr   O. Baydemir , Advocate, Ms   A. Reidy , Barrister at Law Ms   C. Nolan , Mr   J. Jansen ,   Advisers .   The Court heard addresses by Mr Bratza, Mr Boyle and Mr Gündüz. 6.     Following deliberations on 1 December 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule   51 §   1). 7.     The Grand Chamber to be constituted included ex officio Mr   Ryssdal, the President of the Court, and Mr   Bernhardt, the Vice-President , together with the other members and the two substitutes of the original Chamber, the latter being Mr   M.A.   Lopes Rocha and Mr   E. Levits (Rule   51 §   2 (a) and (b)). On 2   December 1997 the President, in the presence of the Registrar, drew by lot the names of the nine additional judges needed to complete the Grand Chamber, namely Mr L.-E. Pettiti, Mr B. Walsh, Mr   R.   Pekkanen, Mr A.N. Loizou, Sir John Freeland, Mr A.B. Baka, Mr   G.   Mifsud Bonnici, Mr D. Gotchev and Mr   B.   Repik (Rule 51 §   2   (c)). Subsequently, Mr   J.   De   Meyer replaced Mr Ryssdal, who was unable to take part in the further consideration of the case, following which Mr   Bernhardt acted as President of the Grand Chamber (Rules 21 § 6, 22 §   1 and 24 §   1). On 9   March 1998 Mr   Walsh died. Having taken note of the opinions of the Agent of the Government, the applicant’s representatives and the Delegate of the Commission, the Grand Chamber decided on 30 January 1998 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule   38 taken together with Rule   51 §   6). As to the Facts I.   THE CIRCUMSTANCES OF THE CASE 8.     The applicant, who was born in 1955, is a Turkish citizen. At the material time he lived in the Kaniye Meheme neighbourhood of the village of Sarıerik, in the Hazro district of the province of Diyarbakır in south-east Turkey. 9.     Since approximately 1985, serious disturbances have raged in the south-east of Turkey, between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the most recent figures provided by the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. At the time of the events complained of, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. 10.     The facts of the case, particularly concerning events in or about 7   January and 13   February 1993, are in dispute between the parties. A.   The applicant’s version of the facts 11.     According to the applicant, in this neighbourhood of Kaniye Meheme, which consisted of approximately fifteen households, his 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 village of Sarıerik did not have village guards. The applicant’s family had refused to become village guards. 12.     In the first incident, on 7   January 1993, soldiers and village guards from the villages of Kırmataş and Meşebağlar 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. 13.     In the second incident, on 13   February 1993, the soldiers and village guards came to the neighbourhood. The soldiers surrounded the neighbourhood and the village guards fired shots 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 trapped in the houses and had to lie down on the floor to take cover. The men had tried to hide outside the houses. The applicant’s house was severely damaged during this attack. 14.     The applicant and his family left the village soon after these events at the beginning of March 1993. They now live in Diyarbakır. 15.     A number of houses belonging to the applicant’s family in the Kaniye Meheme neighbourhood, but not the applicant’s own 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 Sarıerik had become village guards. 16.     According to the applicant, the targeting of the houses of his 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.     The Government’s version of the facts 17.     Between 7 and 13 February 1993, security forces were conducting operations in the village of Sarıerik. The operations were aimed at impeding the activities of PKK militants, maintaining order and protecting the villagers and their property. 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. C.   The Commission’s findings of fact 18.     The Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence. This included, amongst other material, two statements by the applicant dated 15 March 1993 and 31   May 1994, taken respectively by Abdullah Koç and Mahmut Şakar of the Diyarbakır branch of the Human Rights Association, five statements taken on 17 November 1994 by Muhittin Çiçek, the Hazro public prosecutor, one from Kasım Tatlı, mayor of Sarıerik, and the others from Esref   Güç, İbrahim Türkoğuz, Musa Can and Yusuf Yaşa. The first two were members of the village council of elders and all four lived in the neighbourhood of Kaniye Meheme. Moreover two delegates of the Commission, Mr H. Danelius and Mr   B.   Conforti took oral evidence in Diyarbakır on 7 and 8   November 1995, from seven witnesses, including Mr   Şakar, Mr Tatlı and the five witnesses from the village and also the applicant’s father, Mr Hacı Ahmet Gündem, but not the applicant himself. 19.     The verbatim record of the hearing held on 7 November 1995 contained the following passages of relevance to the Government’s preliminary objection as to the validity of the application and the alleged withdrawal of the applicant’s complaints (see paragraph 52 below): “Mr DANELIUS: The hearing is resumed. The original plan was to hear the applicant, Mr Gündem, now but we have been informed that he will not be coming. Mr Boyle, is there any explanation to be given for his absence? Mr BOYLE: The position is that the applicant, Mr Gündem, fears to give his evidence. He wishes to maintain his application and in those circumstances it is proposed that the lawyer, Mr Mahmut Şakar, who took his longer statement on 31   May 1994 (there are two statements on the file in the application) should be called and he can give a fuller explanation. We would also wish to call and have heard by the delegates, Mr Gündem’s father, Hacı Ahmet Gündem. He does not speak Turkish but Kurdish, and the proposal would be that he might be heard tomorrow when another witness, Mr Tekin, who will also require translation will be giving evidence. I understand, Mr Danelius, that is for tomorrow afternoon. Mr DANELIUS: Yes. The hearing of Mr Hacı Mehmet Tekin is foreseen for tomorrow afternoon at 2.30 p.m. Mr BOYLE: There is just one further matter concerning the witnesses. The Government may be able to assist here. From our translation of the recent statements given to us on Sunday by the Government, it seems that the witness, Murat Fidan, who was to be called tomorrow at 10 o’clock appears to be involved in the Çetin case, not the Gündem case. Perhaps that could be clarified during the day because it may free space. It may be that the Government wish him to be called for a particular reason on that day although we have closed the Çetin case, or perhaps I have misunderstood what was in the statement. Mr DANELIUS: Thank you. Do you have any comments, Mr Gündüz? Mr GÜNDÜZ: Thank you, Mr President. This is an extremely interesting case. It seems to be an almost unprecedented one. The applicant appears to have gone to the Human Rights Association one month after his alleged incident and to have given a statement there. Then, about fourteen   months later, many things he had not said there were taken down by a Mahmut Şakar, the seemingly then-president of the Human Rights Association. Gündem’s signature does not appear on what was written down fourteen months later, which seems to be a ‘scenario’. Only the Human Rights Association’s President alleges that he heard these things from him. There are a number of details and lengthy accusations, apparently a ‘scenario’, which were not included in the statement taken at the Human Rights Association a year ago. On my way here this morning I assumed that I would see İsmet Gündem here and would clarify the issue with a lot of questions, so I waited eagerly for him to arrive. According to the evidence in our hands, İsmet Gündem’s allegations are nothing but a ‘scenario’ and we shall prove it so. We are opposed to the substitution for İsmet Gündem of someone who alleges to be the Human Rights Association’s President. Thus we are confronted with another applicant. Unless the testimonies of both of them are put together, all that Mahmut   Şakar will say will remain completely unfounded and will not go beyond propaganda and deception. We are in favour of listening to both of them together. The Government’s view is that Mahmut Şakar has not witnessed this incident. In no way can he contribute to the case. He will relate whatever he claims to have heard. We would like to hear this from the complainant. We believe that information supplied here by someone who is being tried with charges of activities and propaganda against the State will mislead us. We do not want the Commission to hear him here today. If he is to be heard at all, he must be heard together with Gündem. Therefore, we absolutely object to this. We do not believe that the Commission will allow itself to be misled. We raise no objections to the two other requests made by my honourable colleague, Professor Boyle. We shall of course listen to the witnesses. I will inform you of the situation concerning Murat Fidan later in the day after conferring with my colleagues. Mr DANELIUS: Mr Boyle, please. Mr BOYLE: I would like to say to my honourable Friend, Mr Gündüz, that, of course, it is not suggested that Mr Şakar is a witness in the sense that he witnessed the incidents in January and February 1993 in this particular hamlet. But he is a competent witness in the sense that on my instructions he interviewed and made an extended note about the incident. It seems to me that he is perfectly competent to give evidence and it is for the delegates to weigh what he has to say, both about why the applicant is not here and as to the taking of this record of the interview. I object to any suggestion that Mr Şakar, who is a lawyer of good standing – whatever the State is prosecuting him for – will in any way be making propaganda. That is simply an unacceptable statement. The reality is that the delegates are taking evidence in circumstances where there are several languages involved and at the end of the day it is for them to make a report. This is not a court case. It does not really matter very much what way, within reason, witnesses are heard. For reasons of convenience it is proposed to hear Mr   Gündem’s father who will be available tomorrow whom we have met and who, having been sworn in, will be able to give evidence as to what happened because he was a witness on both occasions. So, I would propose to the delegates that we proceed with Mr Şakar who will give an explanation as to the making of this note. Mr DANELIUS: Mr Gündüz. Mr GÜNDÜZ: I omitted to mention one thing in my previous statement. It is said that he has not shown up because he is afraid. We absolutely do not believe that this is true. I am unable to understand the reason why the Government of the Republic of Turkey should frighten Mr Gündem. The Çetin case that we heard here yesterday was slightly more serious. He said, “Soldiers arrived, broke the door with an axe and came in and burned down the house”. His allegations were very serious. I cannot understand why Gündem should be frightened in a place where Çetin spoke quite comfortably. We absolutely do not accept this. We regard this as a slander. The Government of the Republic of Turkey will definitely not interfere in any manner with its citizens’ speaking here. It will definitely not do anything wrong. Apparently my honourable colleague is being misinformed. Of course he relates to us what he has been told. We really insist on this. Mr DANELIUS: Mr Özkarol. Mr ÖZKAROL: Kevin Boyle said that Mahmut Şakar was a good lawyer. A good lawyer would not have put only his signature at the foot of an almost four-page statement he had taken. Had he met with İsmet Gündem, he would have had him sign as well. It is therefore not possible for us to accept the signature of Mahmut Şakar appearing alone on that document presented to the Commission and to ourselves. That would be misleading. The ‘scenario’ is set. As Professor Gündüz has said, it is not possible for us to accept Mahmut Şakar’s testimony unless İsmet Gündem appears and testifies here. Mr DANELIUS: Since there is a formal objection on the part of the Government, the delegates must discuss this matter before going any further. The meeting is adjourned. ( The hearing was adjourned at 9.20 a.m. and resumed at 9.30 a.m. ) Mr DANELIUS: The hearing is resumed. The delegates have discussed the matter and I would summarise our position in the following way. First of all, the delegates regret very much the absence of the applicant, Mr   Gündem, who would of course have been a very important witness in this case. As you know, we have no means of forcing him to come before us. We must note that he is absent and, in the evaluation of the evidence in this case, the appropriate conclusions will, of course, be drawn from that fact. As to the hearing of Mr   Şakar, I would like to recall that in hearings of this kind, our policy has been very liberal. In previous cases we have heard lawyers who had taken statements from applicants or other persons. We have accepted that kind of indirect evidence and therefore have no objection of principle to hearing such   evidence. It is, of course, clear that Mr Şakar would in no way replace the applicant. He would simply give evidence about what he has himself experienced in the case which is, of course, a sort of indirect evidence. As I have said, that kind of evidence has been accepted in previous cases and we see no reason not to accept it in the present one. It is, of course, understood that Mr Şakar is here to answer the questions that are put to him and not to make any other statements of his own. This being said, the delegates are prepared to listen to Mr Şakar’s evidence in this case. Mr Gündüz. Mr GÜNDÜZ: We insist that Mr Şakar cannot be heard in the absence of the complainant. What he has said is closely linked to what the complainant has said. In our opinion, Şakar is saying what the complainant has not said. If the Commission does not intend to re-examine the situation, we shall not listen to Mr Şakar. You may listen to him in our absence. Mr DANELIUS: The delegates have, as I said, taken this decision and we are prepared to listen to Mr Şakar. Of course, we will evaluate his evidence taking into account all the circumstances of the case, but we will not refuse to hear his evidence in this case. Mr GÜNDÜZ: Despite all our respect for the Commission, we will not listen to him. Apparently the Commission will pose questions. You will proceed in our absence. ( The Government delegation leaves the room and the witness enters .)” 20.     In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained through interpreters (in one case via Kurdish and Turkish into English). It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates. In relation to both written and oral evidence, the Commission was aware that the cultural environment of the applicant and the witnesses made it inevitable that dates and other details lacked precision (in particular, numerical matters) and did not consider that this by itself impinged on the credibility of the testimony. The Commission’s findings may be summarised as follows. 1.   Proceedings before the domestic authorities 21.     The applicant did not himself approach any domestic authority with his Convention grievances. On the other hand, 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 Principal Public Prosecutor’s office in Hazro through the Principal Public Prosecutor’s office in Diyarbakır on 17   December 1993, informing them of the complaints made by the applicant. 22.     On 18 May 1994, a decision of non-jurisdiction was issued by a public prosecutor at Hazro, Ekrem Bakır, and the investigation was referred to the Hazro District Administrative Council (“the Administrative Council”) in accordance with section 15(3) of the Prevention of Terrorism Act (Law   no.   3713). 23.     By letter of 31 August 1994, the Ministry of Justice requested the Diyarbakır Principal 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 Administrative Council returned the investigation file to the Principal Public Prosecutor’s office in Hazro. 24.     Having taken statements from five persons on 17   November 1994 (Kasım Tatlı, Esref Güç, İbrahim Türkoğuz, Musa Can and Yusuf Yaşa), the public prosecutor at Hazro, Muhittin Çiçek, on 2   February 1995, issued a decision of non-jurisdiction and referred the investigation to the Administrative Council in accordance with Article 4 § 3 (i) of Decree   no.   285. 2.   The alleged incidents on 7 January and 13 February 1993 25.     The Commission noted that there had been no detailed investigation on the domestic level into the events which allegedly occurred in the Kaniye Meheme neighbourhood on 7 January and 13 February 1993. The Commission had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings. The Commission observed that in cases, such as the present one, where the applicant claimed to have been an eyewitness to the events of which he complained, he was also an important witness in his own case. However, the applicant had not appeared before the Commission’s delegates to give evidence. 26.     The applicant’s account of a Government policy in respect of villagers refusing to become village guards had been supported by findings contained in the reports of Human Rights Watch/Helsinki and the Kurdish Human Rights Project. The Commission further noted that other applications which had been brought before it had also contained allegations of raids being conducted on villages and that statements have been invoked which refer to other raids by the Meşebağlar and Kırmataş village guards. 27.     As regards the evidence obtained in respect of the specific events alleged to have happened in this case, it was only the oral testimony of the applicant’s father, Hacı Ahmet Gündem, which provided support for the applicant’s account of events, although this testimony was rather unclear as to details and timing. However, Hacı Ahmet Gündem did not say that the houses belonging to the applicant’s family had been destroyed because the family members had refused to become village guards. He put forward two different reasons: firstly, there existed an old vendetta between the applicant’s family and Meşebağlar villagers and the latter had told the security forces that the applicant’s family supported the PKK. Secondly, the applicant’s family had accused a member of the gendarmerie of being responsible for the disappearance of the applicant’s brother İbrahim. The Commission found that the applicant’s appearance before the delegates would have been required to clarify these matters. 28.     Although the other evidence suggested that the area around Sarıerik had been the scene of frequent clashes between terrorists and security forces or village guards, it offered no support for the applicant’s allegations. On the contrary, several witnesses had denied that any houses in Kaniye Meheme had been destroyed by security forces and village guards. In this respect the Commission recalled, inter alia , the statements of Kasım Tatlı and Esref Güç to a public prosecutor and their oral testimony before the delegates. A number of witnesses did agree that some houses belonging to the applicant’s family had burned down following a clash which had started in Meşebağlar in the summer of 1993, but none of these witnesses suggested that this had occurred as a result of a deliberate action by security forces or village guards. The Commission referred to the statements of Kasım Tatlı and Esref Güç to a public prosecutor, their oral testimony and the oral testimony of Hasan Çankaya. 29.     The Commission thus noted that it had been presented with diverging versions of whether and how the applicant’s house and property were damaged. The applicant was summoned on two occasions to appear before the Commission’s delegates to give evidence. On the first occasion he failed to appear. On the second occasion he informed the Commission that he would not appear, which resulted in the hearing being cancelled. He explained his failure to appear by referring to his fear of adverse consequences for himself if he were to appear before the delegates. The Commission felt concern about this explanation but was unable to determine whether or to what extent such fear might have been justified. Whatever reason there may have been for the applicant’s absence, the Commission found that his failure to give evidence made it difficult to establish the facts. It would have been necessary, in order to make a reliable assessment of the situation, to hear the applicant in person in order to assess his general credibility and to put questions to him about various details, including the background of the events. For these reasons the Commission was of the opinion that it had not been established beyond reasonable doubt that the applicant’s house and property were damaged by security forces and village guards on 7 January and 13   February 1993. D.   Particulars submitted by the Government on the investigations conducted by the domestic authorities 30.     In their memorial to the Court the Government provided additional information, together with supporting documents, about the investigations conducted by the Turkish prosecution authorities following the communication by the Commission to the respondent Government of the applicant’s complaints. In as far as relevant to the Court’s consideration of the case, these could be summarised as follows. Immediately after becoming aware of the applicant’s application to the Commission, the public prosecutor of Hazro started an investigation into the alleged events. Since the application indicated that the applicant resided at an address in Diyarbakır, the Hazro public prosecutor requested the public prosecutor in Diyarbakır to take a detailed statement from the applicant and to seek information from him as to whether there were other witnesses and evidence. In a letter of 20 December 1993, the latter authority asked the local police to visit the applicant at his address and to ensure that he came to the Diyarbakır public prosecutor for an interview. The police went to the address. The applicant’s uncle, Abdullah Gündem, told the police that the applicant had moved to Istanbul and that he did not know his new address. On being informed about the fact that the applicant was not found at the address in Diyarbakır, the Hazro public prosecutor requested the Hazro gendarmerie commander to find him so that he could interview him. After having contacted the mayor and the villagers of Sarıerik, the Hazro gendarmerie commander reported back that the applicant was not to be found. Thus, the Hazro public prosecutor was unable to meet the dead