Chamber judgment Ayder and Others v. Turkey 08.01.04

EUROPEAN COURT OF HUMAN RIGHTS

005

8.1.2004

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF

AYDER AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing a judgment in the case of Ayder and Others v. Turkey (application no. 23656/94). The Court held unanimously that there had been:

The Court also held unanimously that it was not necessary to consider the applicants’ further complaints under Article 3 (prohibition of inhuman punishment) or Article 18 (limitation on use of restrictions on rights) or whether the failings identified were part of a practice adopted by the Turkish authorities.

Under Article 41 (just satisfaction), the Court awarded the applicants the following for pecuniary damage; Ahmet Ayder 26,144.90 euros (EUR), Yusuf Lalealp EUR 20,239.70, Nadir Doman EUR 20,239.70, Şevket Biçer EUR 26,239.70 EUR and Zeydin Ekmekçi EUR 20,144.90. The Court also awarded each applicant EUR 14,500 for non-pecuniary damage and a total of EUR 40,000 for costs and expenses, less EUR 725 received in legal aid. (The judgment is available only in English.)

1. Principal facts

The applicants, Ahmet Ayder, Yusuf Lalealp, Nadir Doman, Şevket Biçer and Zeydin Ekmekçi, are Turkish nationals of Kurdish origin, who were born respectively in 1940, 1934, 1964, 1966 and 1963. At the time of the events in question, the applicants and their families were living in the town of Lice in Diyarbakır (south-east Turkey).

The case concerned the wide-spread destruction and damage to houses and property in Lice between 22 and 23 October 1993, which included the burning of the applicants’ homes and personal belongings. The applicants claimed that their property had been damaged or destroyed deliberately as part of a planned operation conducted by the security forces in retaliation for the town inhabitants’ alleged sympathy for the PKK. They submitted that they were left terrified and destitute, with nothing but the clothes they were wearing and, in some cases, no shoes. They were all obliged to move and two of the applicants were deprived of their livelihood.

The Government maintained that the security forces had been defending the town against PKK attacks.

Following a fact-finding mission, the European Commission of Human Rights found it established that the applicants’ property and possessions were deliberately burned by the security forces on 22 and 23 October, following which the applicants and their families left Lice.

The Commission did not rule out the possibility of a terrorist presence in the town on 22 October or that there had been clashes between the PKK and the security forces, although a “disturbing” number of relevant questions remained unanswered.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 20 April 1994. Having declared the application admissible, the Commission adopted a report on 21 October 1999 in which it expressed the unanimous opinion that there had been a violation of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1. It referred the case to the Court on 30 October 1999.

Judgment was given by a Chamber of seven judges, composed as follows:

Peer Lorenzen (Danish), President,Giovanni Bonello (Maltese),Nina Vajić (Croatian),Vladimiro Zagrebelsky (Italian),Elisabeth Steiner (Austrian),Khanlar Hajiyev (Azerbaijani), judges,Feyyaz Gölcüklü (Turkish), ad hoc judge,and also Erik Fribergh, Deputy Registrar.

3. Summary of the judgment[1]

Complaints

The applicants complained about the deliberate burning of their property and possessions by the Turkish security forces, relying on Article 3 (prohibition of degrading or inhuman treatment or punishment), Article 8 and Article 1 of Protocol No. 1. They also submitted that, in breach of Article 13, they had no effective remedy to challenge the destruction of their property or to seek compensation.

They further complained that there was a practice of intentional destruction of homes and possessions and forced evacuation in south-east Turkey in and around 1993 and a pattern of denial by the authorities of allegations of serious violations of human rights.

Relying on Article 18, they argued that the enforced evacuation of between two and three million people from south-east Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention.

Decision of the Court

Article 3

The Court noted that the destruction of the applicants’ property deprived them and their families of shelter and two applicants of their livelihood. In addition, it obliged them to leave their homes and to establish new lives elsewhere. Certain applicants and members of their families had also witnessed the burning of their homes and possessions.

The Court considered that the destruction of the applicants’ property, as well as the anguish and distress felt by members of their families, must have caused them suffering of sufficient severity for the security forces’ actions to be categorised as inhuman treatment within the meaning of Article 3. Even assuming that the security forces had intended to punish the applicants and their relatives for their alleged involvement in, or support for, the PKK, such ill-treatment could not be justified. There had, therefore, been a violation of Article 3.

Noting that the Commission made no finding concerning the underlying motive for the destruction of the applicants’ property, the Court found that it was not necessary to consider the applicants’ further allegation, under Article 3 (prohibition of inhuman punishment), that the burning of their homes had been a collective punishment either for attacks carried out by the PKK or presumed support for the PKK.

Article 8 and Article 1 of Protocol No.1

The Court observed that the fact that the security forces destroyed the applicants’ houses and property, forcing them and their families to leave Lice, constituted particularly grave and unjustified interferences with their rights to respect for their private and family life and home, and to the peaceful enjoyment of their possessions. There had, therefore, been violations of Article 8 and Article 1 of Protocol No. 1.

Article 13

The Court found that it had not been established with sufficient certainty that the remedies available to the applicants - concerning their claim that their property had been purposely destroyed by state authorities - were capable of providing any effective prospect of obtaining redress. Furthermore, despite the fact that a number of Government witnesses told the Commission that, not long after the incident, they had become aware of allegations that houses had been burned deliberately by security forces, no official investigation was started until after the Turkish Government had been informed that the applicants had lodged their case before the European Court of Human Rights. The Lice public prosecutor reached a decision of non-jurisdiction because the investigation concerned alleged wrongdoing on the part of civil servants, and the file was referred to the district administrative council. The Court recalled that this body, made up of civil servants who were hierarchically dependent on the governor – an executive officer linked to the security forces under investigation – could not be regarded as independent. Moreover, the person appointed to investigate the applicants’ allegations for the district administrative council, drew up his report after having obtained a statement from only one of the applicants, Zeydin Ekmekçi, and, despite Mr Ekmekçi maintaining his allegations, without hearing any members of the security forces. The Court therefore considered that no thorough or effective investigation was conducted into the applicants’ allegations and that there had, therefore, been a violation of Article 13.

Article 18

The Court considered it unnecessary to consider the applicants’ complaint under Article 18.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human RightsF – 67075 Strasbourg CedexPress 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. More detailed information about the Court and its activities can be found on its Internet site.

[1] This summary by the Registry does not bind the Court.