CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 novembre 2000

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Turkey , The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   A.B. Baka , President ,   Mr   B. Conforti ,   Mr   G. Bonello ,   Mr   P. Lorenzen ,   Mr   M. F ischbach ,   Mr   A. Kovler , judges ,   Mr   F. Gőlcűklű , ad hoc judge , and   Mr   E.   Fribergh , Section Registrar , Having deliberated in private on 26 October 2000, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 30 October 1999, within the three- month period laid down by former Articles 32 § 1 and 47 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no.   23819/94) against the Republic of Turkey lodged with the Commission under former Article   25 of the Convention by a Turkish national, Mr İhsan Bilgin (“the applicant”), on 24 March 1994. 2.     The applicant, who had been granted legal aid, was represented by Professor Françoise Hampson, a barrister and university lecturer in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agent. 3.     The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former 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, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 as well as under former Article   25 of the Convention. 4.     On 6 and 8 December 1999 the Panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules   100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of its Sections. It was, thereupon, assigned to the Second Section. 5.     The Chamber constituted within the Section included ex officio Mr   R.   Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 § 1 (a) of the Rules of Court). The other members designated to complete the Chamber were Mr A. Baka, President of the Chamber (Rules 12 and 26 1 (a)), Mr   B. Conforti, Mr   G.   Bonello, Mr   P.   Lorenzen, Mr M. Fischbach and Mr   A. Kovler. 6.     Subsequently Mr Türmen withdrew from sitting in the Chamber (Rule   28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge in his place (Article   27   §   2 of the Convention and Rule   29   §   1). 7.     In accordance with Rule 59 § 3 the President of the Chamber invited the parties to submit memorials on the issues in the application. The Registrar received the applicant’s and the Government’s memorials on 13   March and 5 May 2000 respectively. On 15 May 2000, the Government submitted a number of documents not submitted previously as well as a further copy of the daily duty ledger of 13 October 1993 of the Çatakköprü gendarmerie station. 8.     On 30 May 2000, after consulting the parties, the Chamber decided that no hearing on the merits was required (Rule   59   §   2 in fine ). The parties were invited to reply in writing to each other’s memorials. Neither party availed themselves of this opportunity. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant, Mr İhsan Bilgin, is a Turkish citizen who was born in 1960 and is at present living in Batman (Turkey). At the time of the events giving rise to his application, he was living in Yukarıgören, a hamlet attached to the village of Güzderesi in the Province of Diyarbakır (south-east Turkey). The application concerns the applicant’s allegations that his house and other possessions in Yukarıgören were destroyed by security forces.   A.     The facts 10.     The facts concerning the destruction of the applicant’s possessions are disputed between the parties. 11.     The facts as presented by the applicant are set out in paragraphs 14   to 17 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report adopted on 21 October 1999. The facts as presented by the Government are set out in paragraphs 18   to 20 below. 12.     A description of the material submitted to the Commission is found in paragraphs 21 to 26 below. A description of the proceedings before the domestic authorities regarding the destruction of the applicant’s possessions is set out in paragraphs 39 to 61 below. 13.     The Commission, in order to establish the facts disputed between the parties, conducted an investigation in accordance with former Article   28   §   1   (a) of the Convention. To this end, the Commission examined documents submitted by both the applicant and the respondent Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at a hearing conducted in Ankara on 13 and 14 March 1997. The Commission’s evaluation of the evidence and its findings are summarised in paragraphs 66 to 70 below. 1.     Facts as presented by the applicant 14.     On 28 September 1993 a large number of gendarmes arrived in Yukarıgören, a hamlet attached to the village of Güzderesi. They were probably looking for Faysal Alpan, who lived there and who was suspected of PKK related activities. The gendarmes ordered him and the other inhabitants of Yukarıgören to remove the harvested tobacco leaves from their houses and to pile them up in front of the houses. The gendarmes then set fire to the tobacco. On that day the gendarmes apprehended 11 or 12 persons in Güzderesi, including the two sons of Hüsnü Eraslan and a son of Mehmet Salih Eraslan, and placed them in detention. 15.     Although the applicant had no precise recollection whether this occurred on the same day or two weeks later, the gendarmes further damaged and broke the furnishings, windows and various household goods in his house. The applicant took photographs of the burned mound of tobacco and the damage caused to his possessions in his house. 16.     In the late summer or fall of 1994, on a day when the applicant was in Batman, the gendarmes returned to Yukarıgören. The applicant’s family was the only household to have remained in the hamlet, all other inhabitants having moved away in the meantime. After the gendarmes had gathered the applicant’s family and a visiting guest at the water tower in the hamlet, the gendarmes set fire to the houses in the hamlet. The applicant returned to Yukarıgören in the morning of the following day. After the burning of his house, the applicant and his family left Yukarıgören. 17.     The burning of the harvested tobacco and the destruction of the applicant’s house and other possessions was conducted by the gendarmes under the orders and responsibility of the Commander of the Çatakköprü gendarmerie station and the Commander of the Silvan District gendarmerie station. The gendarmes of both units were engaged in a series of raids and operations in 1993 and 1994 in both Yukarıgören and Güzderesi culminating in the burning down of Yukarıgören. The purpose of this series of attacks was to force its inhabitants, including the applicant, to leave. 2.     Facts as presented by the Government 18.     The Government stated that at the relevant time there were many PKK activities in the region and the area was regularly patrolled by gendarmes for military, administrative, judicial and civil purposes. 19.     According to the military authorities no operation had been conducted in or around Güzderesi at the material time. 20.     The Government further stated that, as the applicant had not filed an official complaint with the domestic authorities, a preliminary investigation was opened and conducted once the application had been brought to the notice of the Turkish Government. The case was transferred to the Provincial Administrative Council for a decision whether or not to prosecute those allegedly responsible, i.e. İbrahim Aktürk (Commander of the Silvan District gendarmerie station), Hakan Temel (Commander of a commando unit of the Silvan District gendarmerie station) and Hüdaverdi Tunç (Commander of the Çatakköprü gendarmerie station). In its decision of 4 June 1998, the Provincial Administrative Council found that there was insufficient evidence in support of the allegations made against İbrahim Aktürk, Hakan Temel and Hüdaverdi Tunç. B.     Material submitted by the parties to the Commission 21.     In the proceedings before the Commission, the applicant and the Government submitted a number of statements made by the applicant to the Human Rights Association in Diyarbakır (HRA) and to the domestic authorities. 22.     The Government’s submissions included a statement taken from the applicant on 9 August 1995 by a gendarme of the Çatakköprü gendarmerie station. According to this statement, the applicant told this gendarme that on 28-29 September 1993, when he was absent from his home, his house and his possessions in his house had been destroyed by unknown persons and that, around that time, a group of 4-5 persons from the Human Rights Association had come to Güzderesi and had interviewed him. He denied having applied to the HRA and stated that, if any application had been made, it had been made without his knowledge and that he did not wish to pursue it. 23.     According to a statement made by the applicant on 21 August 1995 to the HRA, he had been taken by soldiers on 7 August 1995 to the Çatakköprü gendarmerie station, where he was questioned about a complaint that he had filed against the State. The station commander had insisted that some villages had been burned down by the PKK and wanted the applicant to admit that he had received material aid. The applicant maintained that his village had been burned by State forces and denied that the PKK had been involved in any way. He was further made to sign a statement. 24.     The applicant further submitted statements made to the HRA by Hüsnü Eraslan, two petitions filed with domestic authorities by Hüsnü   Eraslan and Mehmet Salih Eraslan; an undated damage report by the muhtar [1] and Council of Elders of Güzderesi, and fourteen photographs. Three photographs show burned remains of alleged farm produce and eleven show ransacked and damaged interiors of homes. 25.     The Government also submitted a statement made by the applicant on 6 November 1995 to the public prosecutor at Silvan, official reports about incidents having taken place in the area, custody records of the Silvan gendarmerie station indicating that on 14 October 1993 twelve persons from Güzderesi had been taken into detention on suspicion of aiding and abetting the PKK, a total of 18 daily duty ledgers of the Çatakköprü gendarmerie station and documents relating to the investigation carried out by the authorities into the allegations, including statements taken from Mehmet Salih Eraslan, Hüsnü Eraslan, Abdulkadir Toptemiş, Mehmet Emin Tanrıkulu, Mehmet Selim Oğurlu, Hüdaverdi Tunç, İbrahim Aktürk and Hakan Temel Aksel. 26.     The Commission requested the Government to provide it with all planning agendas, duty ledgers, operation reports and incident reports of the Çatakköprü gendarmerie station from September 1993 to October 1994 in relation to Güzderesi. Apart from the daily duty ledgers for eighteen different dates, one incident report of 30 December 1993 in relation to Güzderesi and two incident reports of 17 November 1992 and 2 March 1994 respectively in relation to the Güzderesi area, the Government did not provide the Commission with the daily duty ledgers of the remaining dates nor with the requested planning agendas and operation reports or with any further incident reports.   Official documents 1.     Incident reports 27.     In an incident report of 17 November 1992 – signed by İbrahim   Aktürk – and a joint statement of 18 November 1992 – signed by Hüdaverdi Tunç and three other gendarmes – it is stated that a group of 15-20 PKK terrorists held up 15-20 cars on the Silvan-Batman road on 17   November   1992, set fire to three official cars and robbed several drivers of their money. The body of a man shot dead was found near the scene of the incident. 28.     According to an incident report of 30 December 1993 – signed by İbrahim Aktürk – and a scene of incident report of the same date – signed by Hüdaverdi Tunç, four other gendarmes and three civilians – unknown persons had thrown a molotov cocktail in the telephone exchange building in Güzderesi. According to the incident report this act occurred on 29   December 1993 and the perpetrators were apparently members of the PKK or persons harbouring PKK members. 29.     In an incident report, dated 2 March 1994, and a scene of incident report of the same date and signed jointly by Hüdaverdi Tunç, his Deputy, two other gendarmes and the two civilian victims,   it is recorded that four masked and armed unknown persons had held up a vehicle on the Çatakköprü-Silvan road at the turnoff to Güzderesi and robbed the two passengers of a substantial amount of money they were transporting to a bank and locked them in the boot of the car. 2.     Custody records 30.     It appears from the custody records of the Silvan gendarmerie station that thirty-nine persons were taken into detention on 14 October 1993 on suspicion of aiding and abetting the PKK. Amongst them were twelve persons from Güzderesi, including Mehmet Uğurlu, son of A.   Kerim; Mehmet Eraslan, son of Hüsnü; M. Faysal Eraslan [2] , son of Hüsnü; Ercan Eraslan, son of M. Salih; and Mehmet Eraslan, son of A.   Kerim. 3.     Diyarbakır provincial gendarmerie report of 16   November 1993 31.     It further appears from a report of the Diyarbakır Provincial Gendarmerie Command of 16 November 1993 signed by inter alia the Provincial Gendarmerie Commander and the Provincial Governor that, apart from M. Faysal Eraslan, all persons from Güzderesi apprehended on 14   October 1993 had been taken into detention on the basis of an arrest warrant of 4 October 1993. M. Faysal Eraslan had been apprehended on the basis of an arrest warrant of 12 October 1993. 32.     This report further states that two Kalashnikov rifles, one cartridge clip and 35 bullets had been found on indications provided by Eşref Aykut and Irfan Uğurlu (son of Hasan), who were both from Güzderesi. 33.     According to this report, Mehmet and Ercan Eraslan had declared that on 12 August 1993, “with members of the organisation” (“ örgüt mensupları ile ”), they had taken part in the commission of arson at the Malabadi Dam building site on 12 August 1993, and that M. Faysal, Mehmet and Ercan Eraslan had confessed that on 17 November 1992, “with members of the organisation”, they had taken part in a hold-up at Güzderesi on the Silvan-Batman road, the burning of a vehicle and the killing of a civilian. It further states that Mehmet Faysal Eraslan had confessed to having taken part in the burning of a passenger bus on the road from Silvan to Bahçe and that Faysal, Ercan and Mehmet Eraslan had confessed to having taken part in the commission of arson at the Tekel depot in Silvan and the theft of weapons.   4.     Çatakköprü gendarmerie station daily duty records 34.     According to the eighteen daily duty ledgers of the Çatakköprü gendarme station made available by the Government, the Çatakköprü gendarmerie station Commander Hüdaverdi Tunç, together with eight other gendarmes and one Mechanised Infantry Battalion (“ZPT”) team were, on Monday <number illegible> September 1993, assigned village patrol duty in Güzderesi and three other nearby villages. Their duties were described as the gathering of intelligence and execution of documentation duties. On Tuesday 28 September 1993, Hüdaverdi Tunç and nine other gendarmes were assigned the duty of searching for suspects and wanted persons in Çığıl (a nearby village to the south of Güzderesi). On 3   October 1993, nine gendarmes of the Çatakköprü gendarme station and one Commando Team were assigned the duty of conducting house searches in Güzderesi and apprehending wanted persons. On 13 October 1993, Hüdaverdi Tunç and eight other gendarmes were assigned the duty of conducting house searches and apprehending suspected persons in the Örenköy [3] hamlet of the village Güzderesi. On Wednesday <date illegible> 1993, Hüdaverdi Tunç and nine other gendarmes and two ZPT teams were assigned the duty of village patrol, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other nearby villages. On Wednesday 13 December 1993, Hüdaverdi Tunç and seven other gendarmes were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other villages. On both 11 and 12 February 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi, Örenköy and five other nearby villages and hamlets. On 27 February 1994, Hüdaverdi Tunç and seven other gendarmes were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other villages. On Saturday 12 March 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, describes as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and six other villages. On 21 March 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi. On Saturday 26 March 1994, Hüdaverdi Tunç and ten other gendarmes and in co-operation with one <illegible> team were assigned village patrol duty in Güzderesi and seven other villages. The duties assigned are illegible on the copy of the duty ledger submitted. On Wednesday 6 April 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages. On Thursday 14 April 1994, Hüdaverdi Tunç and at least six other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages. On 22 <month illegible> 1994, Hüdaverdi Tunç and eleven other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages. On Monday 25   September 1994, the Çatakköprü gendarmerie station commander Mustafa Kalfa and nine other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and five other villages. On Saturday 8 October 1994, the Deputy Commander of the Çatakköprü gendarmerie station and ten other gendarmes, accompanied by an unspecified number of District gendarme teams and other gendarme teams, were assigned village patrol duty, described as carrying out village search, confirming received intelligence reports, securing the supply of provisions and apprehension of wanted persons, in Güzderesi. On 29 December 1994, the Deputy Commander of the Çatakköprü gendarmerie station and at least seven other gendarmes were assigned village patrol duty, described as apprehension of deserters and execution of documentation duties, in Güzderesi and three other villages.   Unofficial documents 35.     In an undated document with the heading “Record” (“ Tutanak ”), Hüsnü Eraslan and the applicant state that soldiers had raided Güzderesi on 28 September 1993 and had damaged their house. This document specifies that “in my house all the pots and pans, the television set, refrigerator, the doors, the windows, the blankets, the pillows, one water dynamo, one radio cassette player, one stove, one china cabinet, one wardrobe and all my furniture were damaged”. It is further stated that the record was determined by the muhtar and Council of Elders. It is signed by Hüsnü Eraslan and the applicant under the mention “requesting determination”; by Mehmet Avşar, A. Kadir Toptemiş, M. Emin Tanrıkulu and M. Dahil Aykut under the mention “expert”; and by Abdulkerim Uğurlu under the mention of Güzderesi village muhtar . The muhtar ’s signature is officially stamped. 36.     In an undated petition to the Silvan Magistrate Court, Hüsnü Eraslan stated that on 28   September 1993 soldiers had raided the house of his son Mehmet in Güzderesi in the course of which all his son’s household goods had been destroyed. The petition contains a detailed description of the damage. Hüsnü Eraslan requested a judicial determination of the damage for use in evidence in proceedings that he wished to institute. 37.       In a petition dated 1 October 1993, Mehmet Salih Eraslan informed the office of the public prosecutor at the State Security Court in Diyarbakır that his son and ten others had been taken away during a military raid on Güzderesi on 28 September 1993. He requested to be informed whether, and if so where, his son was being detained. In his reply dated 18   October 1993, handwritten at the bottom of this petition, the public prosecutor to the State Security Court stated that, “He has been taken into custody at the Silvan District Gendarme Command Headquarters.” 38.       In an article, published on 18 October 1993 in the Özgür Gündem newspaper, it is reported that a delegation consisting of three British Parliamentarians, Lord Avebury, Greg Plummer and John Austin Walker, and three Turkish Parliamentarians, Leyla Zana, Mahmut Kılınç and İsmail Aydın, visited South-east Turkey in order to report on human rights violations and evacuated villages. According to this article, the delegation met with villagers from nine villages and hamlets in Silvan, Diyarbakır, who related that State forces had burned their crops and winter supplies. These villagers, whose identity was not disclosed in the article, further told the delegation that many villagers had been taken into detention and that Hüsnü Eraslan and his sons Mehmet and Faysal Eraslan from Güzderesi had been taken into detention by State forces. The villagers further told the delegation that they lived in villages of the Silvan District and that soldiers had raided their village four days ago. Some of the soldiers had gone into their houses and had smashed up household goods and had mixed up foodstuffs so that these would become unusable. The soldiers had then set fire to the villagers’ tobacco and grain and had demanded that the villagers leave their village.     Domestic investigation of the events in Yukarıgören 39.     Following the communication of the application to the Government, a preliminary investigation of the applicant’s allegations was conducted by the public prosecutor at Silvan. 40.     In a letter of 9 August 1994 from the Silvan Magistrate Court to the Silvan public prosecutor it is denied that a petition had been filed by Hüsnü   Eraslan in relation to the burning of a house in Güzderesi. 41.     According to a statement taken on 30 August 1994 from Mehmet Salih Eraslan, the Güzderesi muhtar , the alleged operations of 28   September, 13 October and 23 November 1993 by security forces in Güzderesi had not given rise to any complaints by residents of Güzderesi. 42.     In a statement signed by the Çatakköprü gendarmerie station commander, two gendarmes and Mehmet Salih Eraslan, it is declared that, upon the request to establish whether the security forces had carried out operations in Güzderesi on 28 September 1993, 13 October 1993 and 23   November 1993, the Çatakköprü station records of routine services had been examined and that according to these records no forces had gone to Güzderesi on 28 September 1993 and 23 November 1993 and that, on 13   October 1993, a village patrol had gone to Güzderesi. The statement does not mention why the gendarme patrol had gone there on that day. Without referring to any particular date or dates the statement further mentions that, according to the records, no operation had been conducted. 43.     On 1 September 1994, the Silvan public prosecutor took a statement from Mehmet Salih Eraslan, who declared that the applicant had left Yukarıgören about 3-4 months previously and that, on 28 September 1993, soldiers had conducted a search in Güzderesi in the course of which twelve persons – including his son Ercan – had been taken into detention and that charges of aiding and abetting the PKK had been brought against them. He further stated that, in the course of this search, the soldiers had damaged some of his property in his house, but denied that they had burned houses or belongings. Although he could not remember the exact dates, he stated that one or two further searches had been carried out in Güzderesi on later dates. He denied that any damage had been inflicted by the soldiers to the villagers’ houses or belongings during the subsequent searches. 44.     On 2 September 1994, the Silvan public prosecutor took a statement from Hüsnü Eraslan, who confirmed the account of Mehmet Salih Eraslan. He told the public prosecutor that, during the search of his house conducted on 28 September 1993, soldiers had damaged his belongings and that he wished to file a complaint against them. He further confirmed that there had been subsequent searches and that the searches of Güzderesi included Yukarıgören. He denied that the soldiers had burned any houses during these searches. 45.     According to a statement taken by the Silvan public prosecutor from Abdulkadir Toptemiş on 9 September 1994, the latter told the prosecutor that in September 1993 gendarmes had taken 14-15 persons from Güzderesi, including Mehmet Salih Eraslan’s son Ercan, in detention and that they had destroyed the household goods of those taken into detention. After the gendarmes’ departure from the village, he had noticed that some windows and wardrobes had been damaged. He denied that the soldiers had burned any household goods. He explained that the applicant did not live in Güzderesi but in Yukarıgören. He denied that the signature under his name on the undated “record” (see § 35 above) was his. 46.     On 23 September 1994 the public prosecutor at Silvan took a statement from the applicant. According to this statement the applicant told the public prosecutor that, about one year previously, gendarmes had come to Yukarıgören asking the villagers to show them terrorists’ shelters. When the villagers denied knowledge of such shelters, the soldiers became angry and burned about 20 [metric] tonnes of tobacco belonging to the villagers. The applicant further told the prosecutor that on 28 September 1993, as stated in an undated report that was put to him, soldiers had destroyed his household goods. According to the applicant, the soldiers had returned to Yukarıgören on several occasions and on one of those occasions – on a day when he was not in Yukarıgören – the soldiers had burned his house. After his house had been burned, he and his family had moved to Batman. The applicant further told the public prosecutor that out of fear for the soldiers he had not filed any complaint to any authority and that, insofar as he knew, no one had done so out of fear for the soldiers. 47.     On 17 October 1994 the Silvan public prosecutor took a statement from Mehmet Emin Tanrıkulu, who declared that he lived in Güzderesi. He denied having signed a report about the burning of household goods belonging to Hüsnü Eraslan and the applicant by soldiers on 28   September   1993. He had not been in the village on that day. Upon his return to the village, he had seen that belongings and the applicant’s house had been burned. The applicant had told him that soldiers had done the burning. The soldiers had carried out two more ambushes in the village. He had been in the village on those occasions. During one of these ambushes, the soldiers apprehended 11-12 persons, including his daughter Necla. The soldiers had then damaged his household goods by hitting them with hard objects. The second time, the soldiers had taken out and burned three tonnes of his tobacco. The soldiers had damaged property of those persons who had been apprehended. There had been a Major amongst the soldiers. He had not filed a complaint of this matter and had moved to Mersin as a result of these incidents. He did not wish to file any charges or complaints. 48.     By letter of 3 November 1994, the Ministry of the Interior informed the Ministry of Foreign Affairs that the allegations made by the applicant before the Commission had been investigated and that, contrary to his assertions, no operation had taken place in Güzderesi or Yukarıgören on 28   September 1993. 49.     In the context of the preliminary investigation of the applicant’s complaint to the Commission, the Silvan public prosecutor visited Yukarıgören in person. The report on this visit of 16 December 1994, insofar as relevant, reads: “… Mehmet Salih Eraslan, Muhtar of Güzderesi, was directly appointed as the indicating witness of the location. … The witness was asked to indicate the house belonging to the complainant İhsan Bilgin. The indicated house was seen. It was observed that the single floor house was of mud brick with a concrete flat roof. Roof columns, window and door frames were absent. The roof and walls were covered with soot indicating fire. Walls separating rooms were partially demolished without traces of bullets either in or outside the house. The house in its present state was observed to be uninhabitable. The hamlet consists of 7-8 houses. It is understood that the hamlet is totally uninhabited. The complainant’s house did not contain any belongings…” 50.     By letter of 28 December 1994, the General Gendarmerie Command of the Ministry of the Interior informed the Ministry of Foreign Affairs that the applicant’s complaints to the Commission had been investigated. An examination of the records had revealed that no operation by security forces had been carried out on 28 September 1993. It was concluded that the applicant’s claims were unfounded and that the applicant had not made any application to the security forces. 51.     On 9 August 1995, the Çatakköprü gendarme station Commander, who had replaced Hüdaverdi Tunç in the meantime, took a statement from Mehmet Selim Oğurlu, a former Güzderesi resident. Mehmet Selim Oğurlu stated that in September or October 1993, early in the morning, the applicant’s house had been burned by unknown persons. After having woken up, he had gone to the applicant’s house that had still been burning. The applicant had been unable to take any of his belongings from his house and they were totally burned together with the house. The applicant had not received any financial aid from the State for his losses. Insofar as he knew, the applicant was in no way involved with illegal organisations. He and other villagers suspected the terrorists of the arson attack on the applicant’s house. 52.     Also on 9 August 1995 a statement was taken from the applicant at the Çatakköprü gendarmerie station (see § 22 above). 53.     On 25 October 1995, after several unsuccessful attempts to locate his new place of duty, a statement was taken by the Hanönü public prosecutor from Hüdaverdi Tunç, the commanding officer of the Çatakköprü gendarme station at the material time. Mr Tunç declared that the gendarmes used to carry out joint operations with the Silvan Station Command and that they had gone to Güzderesi several times. In the autumn of 1993, terrorist incidents had been at their peak and gendarmes continually went on operations. The gendarme forces used to search villages on the basis of gathered intelligence. Such searches were perceived as ambushes by villagers. He did not remember the applicant. He had gone to the applicant’s village several times but could not recall exact dates. He confirmed that the gendarmes had been searching for a person named Faysal Alpan, who was wanted for PKK membership, and that they had searched houses in the village. During searches, gendarmes would also verify the identities of other persons. They had apprehended 12 persons, including the Muhtar ’s son, who had been handed over to the prosecution authorities. After the search he and his men had returned to their base. It was not true that the gendarmes had assembled the villagers in the village square, had ill-treated them, had burned their tobacco or damaged their possessions. He denied that he or soldiers under his command had burned the applicant’s village. He did not know whether or not it had been burned and if it had, the PKK must have done it. As stated by the village muhtar Abdulkerim Uğurlu, he had attended both village searches. 54.     The Silvan public prosecutor took a further statement from the applicant on 6 November 1995. According to this statement, the applicant provided the public prosecutor with information about his financial situation. He further stated that, some days after the burning of his house, a van with seven or eight persons arrived in Yukarıgören who questioned him about the incident. He had thought that they were journalists and informed   them of the incident. His application had been written by them and he had signed it. After this, he had gone to the <Human Rights> Association in Diyarbakır from time to time. 55.     On 15 November 1995, the Silvan public prosecutor, issued a decision of lack of jurisdiction. The decision named the applicant and Hüsnü Eraslan as the complainants, Mehmet Salih Eraslan and Mehmet Emin Tanrıkulu as injured parties and Abdulkadir Toptemiş and Abdulkerim Uğurlu as witnesses. The defendants named were İbrahim Aktürk, Hakan Temel Aksel and Hüdaverdi Tunç. The offences were described as arson, damage to property, intimidation and ill-treatment committed on 28 September 1993, 13 October 1993 and 23   November   1993. The decision noted that the applicant had filed an application with the European Commission of Human Rights via representatives and that the applicant claimed that on 28   September 1993 armed forces had carried out a raid on Yukarıgören and had destroyed the complainants’ household goods. It further stated that the applicant had extended his allegations by adding that his house and tobacco stock had also been burned by the security forces. It was further found established that Hüsnü Eraslan had also filed a complaint about the destruction of his household goods and burning of his tobacco by the security forces. The decision noted that Abdulkadir Toptemiş had confirmed the incident in part, that Mehmet Emin Tanrıkulu claimed that his household goods had also been destroyed by the military and his tobacco burned, and that Mehmet Salih Eraslan had also claimed that his belongings had been destroyed by the military. The then muhtar of Güzderesi, Abdulkerim   Uğurlu, had confirmed the incidents in part but had also stated that the incidents stemmed from the fact that certain illiterate persons in the hamlet had been supporting the PKK. Since the alleged offences had been committed in the course of the defendants’ exercise of duties, the public prosecutor decided, pursuant to Article 2 of the Act on Proceedings for the Prosecution of Public Servants, to transfer the case to the Silvan District Administrative Council. 56.     On 4 December 1995, the Silvan public prosecutor took two further statements from Abdulkadir Toptemiş, who maintained his previous statement (see § 45 above). He stated, inter alia , that after the incident in the village, persons from the Human Rights Association had arrived in a jeep. They had taken pictures and statements from villagers. He had not been in the village at that time. He had heard about it later. The applicant had moved some of his household goods to Batman prior to the military operation in the village. The applicant had become frightened after his brother Mehmet Şah Bilgin had been apprehended. The applicant had only kept basic essentials for his daily needs. He did not remember whether the applicant had been in the village or in Batman during the incident. 57.     On 14 November 1996 the commanding officer of the Silvan District gendarme station between 1992 and 1994, İbrahim Aktürk, gave a statement to the Adıyaman public prosecutor. He stated that in the period 1992-1994   there had been terrorist incidents in the Silvan region and that various operations had been carried out. He had no clear recollection of an operation carried out in Güzderesi. He doubted the veracity of the applicant’s allegations. 58.     On 23 March 1998, Hakan Temel Aksel, the Commander of a commando unit of the Silvan Gendarmerie at the relevant time, gave a statement to a superior gendarmerie officer. Insofar as he remembered, the inhabitants of Güzderesi supported the PKK. The village fell within the jurisdiction of Çatakköprü gendarme station. Güzderesi was used by PKK frontliners and held an important position in supplying food, personnel and money to the PKK. The PKK used it as a meeting point, particularly for the robberies that had taken place between Silvan and Çatakköprü. At the end of 1993 or the beginning of 1994, a female PKK commander in the area between Bismil and Silvan had given herself up to the security forces. On the basis of information provided by her, a number of PKK activists and fighters had been captured by the gendarme forces. Among these PKK supporters were a large number of Güzderesi residents. He denied that the gendarme forces or he himself, as Commander of a commando team, had ill-treated persons or had damaged any property. In his view, the applicant’s complaint had been arranged by PKK activists in order to denigrate the gendarme forces’ work and to take revenge. 59.     In its decision of 4 June 1998, the Diyarbakır Provincial Administrative Council – to which the case had been referred by order of the Provincial Governor of 11 March 1997 – found that there was insufficient evidence in support of the allegations made against the defendants İbrahim Aktürk, Hakan Temel Aksel and Hüdaverdi Tunç about offences allegedly committed on 28 September, 13 October and 23   November 1993 and that, therefore, the case did not warrant the institution of criminal proceedings. 60.     On instructions dated 23 November 1998 issued by the Silvan public prosecutor, an inspection team went to Yukarıgören. This team consisted of a gendarme of the Silvan District Gendarme Command, an official of the District Finance Office, an official of the Municipal Real Property Division, an official of the District Agricultural Office and two inhabitants of the village of Dutveren. Their joint report dated 24 November 1998 states, inter   alia , that the surface of the applicant’s collapsed house was 100 square metres, that it was in ruins, that it had not been burned or destroyed by the use of force but that the cause of the collapse was neglect and natural forces, that the applicant’s barn measured 150 square metres and, like the house, had collapsed as a result of neglect and natural forces, and that the applicant’s sheepfold measured 30   square metres and was in the same condition as the barn. C.     Oral evidence taken by the Commission 61.     The facts of the case being in dispute between the parties, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken on 13 and 14 March 1997 by three Delegates of the Commission from seven witnesses: the applicant; Hüsnü Eraslan; Mahmut Soner; Mehmet Emin Tanrıkulu; Hüdaverdi Tunç; Mustafa Düzgün, public prosecutor at Silvan from 1993-1995; and Bülent Elver, senior public prosecutor at Silvan from 1993-1995.   A further five witnesses had been summoned but did not appear: the villagers Abdulkadir Toptemiş and Abdulkerim Uğurlu had died, two other villagers were said to be too scared to give evidence and one villager could not attend for reasons of ill-health. 62.     In his testimony to the Commission’s Delegates, the applicant stated that, although he could not read, he was able to recognise his signature. Although he was unable to give any precise indication of the dates of the alleged events, he maintained that, in the end of the summer of 1993, soldiers had burned his tobacco and household goods and that, about one year later, soldiers had burned his house. He further stated that he had gone to the HRA to complain and that he wished to pursue his application to the Commission. The Commission’s Delegates found the applicant a modest, simple and sincere man, whose world appeared to be mainly confined to his agricultural activities, his wife and children, and the need to provide for them. Despite his stout appearance, he struck the Delegates as a vulnerable man deeply affected by the loss of his house and material possessions, which was all he was concerned about in his life as this had secured his family’s livelihood. Although his testimony was confused and lacked precision as to particular dates, times and number of incidents, the general tenure of his account was found to be sincere, convincing and supported by the evidence given by other villagers both in the domestic investigation and before the Delegates. 63.     The general tenure of the applicant’s account was confirmed by the testimonies of the villager witnesses Hüsnü Eraslan, Mehmet Emin Tanrıkulu and Mahmut Soner. The Commission’s Delegates found Hüsnü   Eraslan and Mehmet Emin Tanrıkulu to be credible witnesses, but considered that Mahmut Soner’s evidence was to be treated with caution. 64.     Hüdaverdi Tunç confirmed that the gendarmes under his command had gone to Güzderesi regularly on village patrol duty, i.e. to carry out routine duties of a military, civil and judicial nature. Such duties would be recor