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Impact of the ECtHR on provisions for Turkey’s displaced

As indicated above, the 1996 Akdivar v. Turkey judgment by the EctHR was a turning point in the relationship between displaced Kurdish villagers and the Turkish government. The case concerned a village guard family from Kelekçi village, near Dicle, in Diyarbakır province. When three members of the family were killed by a PKK attack in July 1992, the rest of the family resigned from the village guard corps. In November 1992 the gendarmerie instructed the muhtar to evacuate all of the inhabitants. As he gathered the villagers together, soldiers in armored cars began firing with heavy weapons at the villagers and their houses; soldiers also set fire to nine houses, which burned to the ground together with their contents. The soldiers shot the villagers’ livestock. The Kelekçi villagers fled to nearby towns. Soldiers burned the rest of the village—136 houses in total—in April of the following year.

The ECtHR judgment was especially important because, as the first of its kind relating to displacement in the southeast of Turkey, it established a true record of events and provided compensation. It stated clearly that the Turkish army had been responsible for driving law-abiding farming families from their homes. It provided substantial compensation for material losses, as well as non-pecuniary damages for the trauma of the displacement. Displaced villagers who had for years been chased away from the offices of government officials and local prosecutors now had somewhere they could apply for justice and expect a fair hearing. In other ECtHR decisions after Akdivar, the court held that Turkish security forces had burned Kurdish villagers’ homes and/or forcibly evacuated them.¹⁶ There were also friendly settlements—agreements to settle the dispute without a court judgment— during this period, in which the Turkish government paid substantial sums to displaced persons.¹⁷ The damages awarded by the court and the settlements reached between the parties averaged, in mid-2005, TL 82,591 ($55,336) per family. According to the Ministry of Justice in 2001, at that time there were 1,500 cases involving house destruction in the southeast that were pending against Turkey before the ECtHR.¹⁸

These cases were of great concern to the Turkish government because they threatened to result in repeated court findings of Turkish military responsibility for the destruction of houses in the southeast and in substantial damages being awarded to the plaintiffs, as well as reprimands from the Council of Europe’s Committee of Ministers. The large number of cases pending before the ECtHR may have been a determining factor in the Turkish government’s decision to enact the Compensation Law.

The ECtHR, as well as the villagers, was ready to welcome a well-designed law on compensation that would be fairly implemented and provide an adequate remedy for the victims of the conflict. In its 2004 judgment in Dogan and Others v. Turkey,¹⁹the court had determined that Turkey’s displaced were being deprived of any effective remedy, and quoted the recommendations of the rapporteur of the Committee on Migration, Refugees and Demography of the Parliamentary Assembly of the Council of Europe, who had specifically recommended measures for compensation. It is the view of Human Rights Watch that a functional compensation law would provide a degree of timely justice for the villagers, resolve a longstanding grievance, and reduce the caseload of the ECtHR.

The Compensation Law was passed in July 2004, just one month after the Dogan decision, and by 2005 damage assessment commissions operating under the Interior Ministry were beginning to evaluate claims by displaced persons. At this stage, the government was keen to establish the credibility of the law. In the summer of 2005 Deputy Prime Minister Abdullah Gül circulated a note to provincial governors calling on damage assessment commissions to work fast, be “flexible” in the level of proofs they required, and be generous in the settlements made.²⁰ The government made clear that it was concerned about the large number of cases pending before the ECtHR and that it wanted compensation decisions that could be submitted to the court as proof that the Compensation Law was an effective remedy for the displaced. Perhaps as a result of this clear political message from the Turkish government, provincial damage assessment commissions in Batman in early 2005 issued compensation decisions that awarded displaced families an average (per commission) of TL 50,000 ($33,500). Such award amounts represented a realistic sum sufficient to permit the displaced to make a new start in the homes from which they had been driven a decade before, although considerably less than the real loss they had suffered (see below). The government submitted these settlement agreements to the ECtHR as evidence that the Compensation Law was an effective remedy for the displaced, in an effort to convince the court that the house destruction cases currently pending before it should be ruled as inadmissible.

Already at this time, however, some provincial damage assessment commissions were offering much lower settlements—in some cases derisory figures of TL 5,000 ($3,350) or less.²¹ Human Rights Watch wrote to Deputy Prime Minister Gül on February 22, 2006, urging that damage assessments should take a more consistent and fairer approach.

But in January 2006, the ECtHR had already ruled that the Compensation Law was an effective remedy “capable of providing adequate redress for the convention grievances of those who were denied access to their possessions in their places of residence”²² and on these grounds had rejected as inadmissible the application of Aydın İçyer, who had been forcibly evicted in 1994 from the village of Eğrikavak, near Ovacık, in Tunceli province. The court found that the Compensation Law was a remedy specifically designed to meet the needs of people in İçyer’s situation, was in operation in all of the provinces of Turkey, and that 170,000 families had already submitted applications under the law. The court therefore rejected Aydın İçyer’s application on the grounds that an effective domestic remedy was now available to him and had to be exhausted before an application could be made to the ECtHR.

The court was certainly right that the Compensation Law and the commissions were capable of providing adequate redress, and that they did so for some applicants in 2005. Unfortunately, the law and its implementing regulations provide ample scope for arbitrary decisions by the damage assessment commissions. The Içyer  decision appears to have been a signal to the damage assessment commissions to exploit every avenue to this end.

Since the Içyer decision, the work of the assessment commissions has deteriorated. Assessment commissions are now much freer to dictate the terms of settlements, to decide on lower sums than was previously typical, to revise existing assessments downwards, and to exclude more applicants from coverage under the law.