CEDH · PRESS;GENERAL;ENG — 9 novembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS 552 9.11.2004   Press release issued by the Registrar   CHAMBER JUDGMENT HASAN İLHAN v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Hasan İlhan v. Turkey (application no. 22494/93).   The Court held, unanimously, that there had been: a violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights; a violation of Article 8 (right to respect for family life) of the Convention; a violation of Article 1 of Protocol No. 1 (protection of property); and a violation of Article 13 (right to an effective remedy).   The Court also held, by five votes to two, that there had been: no violation of Article 14 (prohibition of discrimination).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant’s estate 33,500 euros (EUR) for pecuniary damage, EUR 14,500 for non-pecuniary damage and EUR 15,000, less EUR 2,652 (granted as legal aid), for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   Hasan İlhan, a Turkish national of Kurdish origin, was born in 1921. He died in June 1994 and, on 20 January 1996, his son Abdülmecit İlhan was given permission to continue the application on behalf of his deceased father. The case concerned events which took place on or about 21 April 1992 and 30 June 1992. At that time, Mr İlhan’s family were living in Kaynak, a hamlet attached to the village of Ahmetli, within the administrative province of Mardin, south-east Turkey. Mr İlhan owned vineyards, orchards and land in Kaynak, where he grew cotton and tobacco. He also kept sheep and goats.   The facts are disputed by the parties.   Mr İlhan claimed that, in April 1992 and June 1992, military units attached to the Gendarme Headquarters at Mardin destroyed houses and set fire to land in Kaynak, destroying crops and trees and forcing the villagers to leave. The Turkish Government claimed that an armed attack was carried out on Konaklı gendarme station on 2   April 1992 by members of the PKK.   On 21 April 1992 military units attached to the Mardin Gendarme Headquarters carried out an operation in Ahmetli to protect the lives and property of the inhabitants of the village from the PKK.   The Government claimed that Mr İlhan’s family left the village after weapons which had been used in a number of killings were discovered in a hideout belonging to a member of the family.   However, the European Court of Human Rights found it established that, following the armed attack at Konaklı gendarme station, gendarme soldiers went to Kaynak on or around 21 April 1992, and burned Mr İlhan’s home and its contents as well as, subsequently, his fruit orchards and oak trees.   On 7 July 1992 Mr İlhan applied unsuccessfully for compensation and, in March 1993, claimed that he was beaten up by soldiers from Akıncılar Military Post in relation to his compensation claim.   Mardin chief public prosecutor decided on 28 December 1993 that he lacked jurisdiction to investigate the allegations directed against the security forces and sent the file to Mardin Provincial Administrative Council.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 23   July   1993 and declared admissible on 17   October 1994. The Commission conducted a fact-finding mission in Ankara, taking evidence from witnesses from 17 to 19 April 1996. The case was transmitted to the Court on 1   November 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Mindia Ugrekhelidze (Georgian), Antonella Mularoni (San Marinese), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Lawrence Early , Deputy Section Registrar .   3.     Summary of the judgment   Complaints   Hasan İlhan alleged, in particular, that his home and its contents, vineyards and orchards had been burned down and destroyed by members of the security forces. He also maintained that his home and possessions were destroyed because he was of Kurdish origin. He relied on Articles 3, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1.       Decision of the Court   Article 3 The Court noted that the burning of Mr İlhan’s home deprived him and his family of shelter and support and obliged them to leave the place where they and their friends had been living. The destruction of his home and possessions, as well as the anguish and distress suffered by members of his family, must have caused Mr İlhan suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3. There had, therefore, been a violation of Article 3.   Article 8 and Article 1 of Protocol No. 1 Recalling that the security forces deliberately destroyed Mr İlhan’s house and property, obliging his family to leave their hamlet, the Court found that there was no doubt that those acts constituted a grave and unjustified interference with the applicant’s rights to respect for his private and family life and home, and to the peaceful enjoyment of his possessions. The Court therefore concluded that there had been a violation both of Article 8 and Article 1 of Protocol No. 1.   Articles 6 and 13 The Court noted that the applicant did not bring an action before the civil courts. It was therefore impossible to determine whether the national courts would have been able to adjudicate on the applicant’s claims had he initiated proceedings. In the Court’s view, however, Mr İlhan’s complaints mainly concerned the lack of an effective investigation into the deliberate destruction of his family home and possessions by the security forces which would have given him access to compensation-based remedies. The Court therefore decided to examine the complaint from the standpoint of Article 13.   The Court reiterated that the effectiveness of criminal-law protection in south-east Turkey in the first half of the 1990s was undermined by defects in the way allegations of unlawful acts carried out with the involvement of the security forces were investigated. The practice permitted or fostered a lack of accountability of members of the security forces for their actions which was not compatible with the rule of law in a democratic society respecting the fundamental rights and freedoms guaranteed under the Convention.   The Court noted that Mr İlhan had brought his allegations to the attention of various authorities on 7 July 1992, but that he was not questioned by the authorities until 24   December 1993. Given the seriousness of his allegations, the Court was of the opinion that the public prosecutor was under an obligation to gather and record evidence which would have helped shed light on the facts of the incident. It did not appear that any attempt was made to carry out a proper on-site inspection at the scene of the incident, to establish the true version of the facts through the questioning of other villagers who might have witnessed the events, or to interview the members of the security forces who were allegedly involved in the incident. The Court therefore considered that those elements disclosed considerable defects in the reliability and thoroughness of that part of the investigation.   The Court further noted that Mardin Chief Public Prosecutor decided that he lacked jurisdiction to investigate the allegations against the security forces and sent the file to Mardin Provincial Administrative Council. The Turkish Government had not submitted any information concerning any follow-up action taken by the administrative council. Concluding that the Turkish authorities failed to conduct a thorough and effective investigation into the applicant’s allegations and that access to any other available remedy, including a claim for compensation, had also been denied to Mr İlhan, the Court held that there had been a breach of Article 13.   Article 14 In the light of the evidence submitted to it, the Court considered that there was an insufficient basis in fact to support Mr İlhan’s complaint of discrimination. There had therefore been no violation of Article 14.   Article 18 The Court did not consider it necessary to examine separately Mr İlhan’s complaint under Article 18.   Judges Loucaides and Mularoni expressed partly dissenting opinions which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.