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VILLAGERS FROM KELEKÇI WIN INTERNATIONAL JUSTICE
A small number of displaced peasants have successfully sought international justice as a remedy, through the European Court of Human Rights (ECHR). This has not yet opened their path homeward, but there is no question that the series of shock decisions in the ECHR175 were key factors in forcing the military to halt its program of destruction. In its 1996 ruling in Akdivar and Others v Turkey, the ECHR corroborated the open secret and confirmed that Turkish security forces were indeed guilty of house destruction. From that moment on, gendarmes knew that bullying indigent villagers might not be cost-free. The case of Akdivar and others v Turkey, filed on May 18, 1993, was the first application concerning house destruction to reach judgment, and the case perfectly represents the larger pattern of abuse. The applicants happened to be people whom the government would find it impossible to discredit by applying the label of PKK-sympathizer or terrorist. The applicants were seven former village guards from Kelekçi village in Diyarbakır province, who had lost close relatives in PKK attacks. In July 1992 the village resigned from the village guard system. According to the villagers, on the night of November 1, 1992 the PKK attacked and destroyed the gendarme station at Kelekçi, killing a soldier and wounding eight others. On November 10, 1992 soldiers and special team members entered Kelekçi and instructed the headman to evacuate all the inhabitants. As he tried to gather the people together, the soldiers began firing with heavy weapons from armored cars at houses and villagers, and set fire to nine houses that burned to the ground together with their contents. The soldiers also shot the villagers' livestock. The villagers fled to nearby towns, and soldiers burned down most of the rest of the village in April the following year. The government's account was that the villagers voluntarily evacuated the village following the November attack after which the soldiers searched the village, leaving it undamaged, even though they had found many "terrorist hide-outs" stocked with food, propaganda material, and munitions. The government maintained that on April 6, 1993 the security forces again searched the village, to which three families had returned, and later that night, the PKK came and burned the remaining houses. The case was declared admissible on October 19, 1994. At that time applications did not go directly to the court, but were first subject to preliminary investigation by the European Commission for Human Rights, which had the right to reject applications on technical grounds or submit preliminary findings to the court.176 In March and April 1995 a Commission delegation travelled to Turkey and took oral testimony from the applicants and their lawyers, as well as from local gendarmerie and commando officers and the chief prosecutor of Diyarbakır State Security Court. This alone was a landmark event for Turkey. The spectacle of high ranking state officials and soldiers being thoroughly examined by an official commission and called to account for violations against common people was unprecedented. This enterprising move on the part of the Commission came as a powerful shock to institutions unaccustomed to having their acts carefully examined. Police and soldiers called to testify at parliamentary commissions or arraigned in domestic courts on charges of torture, for example, frequently refused to appear for months or years on end, and when they did finally appear, were generally questioned in a deferential rather than probing manner. The Kelekçi villagers were convincing witnesses. According to the Commission,
The Commission found Turkish government officials' testimony "generally evasive,"178 and the government's defence included some glaring contradictions. For example, the Turkish government provided the court with the "expert opinion" of a construction engineer, who viewed the site from a helicopter, accompanied by the state security court chief prosecutor, and concluded that the abandoned houses at Kelekçi village had decayed and collapsed, while the gendarmerie officers told the court that the PKK had burned the village in April 1993. The applicants also reported that state officials had approached them and intimidated them, apparently with the aim of getting the complaint dropped. The government conceded that it had approached applicants, but claimed that this was just to take their statements. The Commission noted "with concern"179 that after government representatives had made similar approaches in other cases applicants had abandoned their action. The Commission referred the Akdivar case to the European Court of Human Rights. The Court ruled that, "there can be no doubt that the deliberate burning of the applicants' home and their contents constitutes at the same time a serious interference with the right to respect for their family lives and homes and with the peaceful enjoyment of their possession. No justification for these interferences having been proffered by the respondent Government-which have confined their response to denying involvement of the security forces in the incident." The Court found that there had been violations of the right to private and family life,180 and the right to peaceful enjoyment of possessions.181 It also found that government officials had attempted to pervert the process of justice by calling the applicants for interview.182 It concluded that "Given the vulnerable position of the applicant villagers and the reality that in South-East Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, the matters complained of amount to a form of illicit and unacceptable pressure on the applicants to withdraw their application."183 The Court ordered the Turkish government to pay the applicants as a group £20,810 sterling (U.S.$34,128) in total costs and expenses, and in a later judgment,184 awarded the villagers pecuniary damages for destruction of the houses, livestock and crops, household property, loss of income, and cost of alternative accommodation, totaling £115,062.76 (U.S$188,702). Each applicant also received £8,000 (U.S.$13,120) in non-pecuniary damages for the emotional trauma they experienced during the destruction of their houses. The Akdivar judgment validated the Kurdish villagers' claims that they were being forced out of their homes by the most brutal methods. It put the program of village destruction on the agenda in Turkey as well as abroad. It showed that the poorest displaced peasant could find international justice. Other judgments followed. The ECHR found that Turkish security forces had destroyed villagers' homes and/or forcibly evacuated them in Menteş v Turkey, Selçuk and Asker v Turkey, Bilgin v Turkey, Dulas v Turkey, and Orhan v Turkey.185 In recent years, the Court has strongly encouraged plaintiffs in similar cases, including Aydin v Turkey, Kemal Guven v Turkey, Aygördü and others v Turkey, Ince and others v Turkey, and Isci v Turkey,186 to accept a friendly settlement. Like the Akdivar case, the evidence in these cases shows the authorities unwilling to investigate abuses, but quite ready to try to pressure indigent villagers to abandon their appeal to the ECHR. Several other judgments against Turkey concern extrajudicial executions and "disappearances" perpetrated during village clearances.187 The applicants in this succession of Turkish house destruction cases claimed that they were excluded from their village as effectively as if they had actually been expropriated. They asked the Court to require the Turkish government to restore the village infrastructure and ensure that they could safely return. In the case of Akdivar, for example, the Court agreed that the government had "a legal obligation to put an end to an ongoing breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach." The Turkish government claimed that the risk of PKK attack ruled this out, but said that villagers would return "when the local inhabitants feel themselves to be safe from terrorist atrocities." The Court said that where the government claimed that restoring the situation to that prior to the violation (restitutio in integrum) was impossible, it was free to choose how it would comply with the Court's judgment that a violation had taken place. This could seem to let the Turkish government off the hook, but the Court went on to allocate responsibility for ensuring compliance in this respect to the Council of Europe's Committee of Ministers. Since the Akdivar decision in 1996, however, the Committee of Ministers has not procured the execution of this element of the judgments, leaving the villagers victims of an ongoing violation. In July 2002 the Committee of Ministers adopted a resolution calling on Turkey to take steps to respond to the succession of judgments at the ECHR concerning killings, torture, disappearances and destruction of property committed by the Turkish security forces.188 The unresponsiveness of the Turkish government to these periodic reprimands suggests that more methodical and sustained pressure is required-particularly in respect of internal displacement, a uniquely complex and long-term problem. The European Court is considering how to cope with its growing burden of work. The rapporteur of the Council of Europe Parliamentary Assembly's Committee on Legal Affairs and Human Rights, Erik Jurgens, has said that responsibility for the increasing burden must be attributed in part to "the Committee of Ministers, which does not exert enough pressure when supervising the execution of judgments." 189 An evaluation group established by the Committee of Ministers indicated that a substantial factor in creating the overload is the burden of "clone" or "repetitive" cases,190 like the series of house destruction actions from Turkey. Clearly, ensuring execution of judgments in such cases might cut down the volume of clone violations and so, clone cases. In view of the considerable flow of information from southeast Turkey, it is regrettable that the Committee of Ministers did not identify the systematic pattern of village destruction at an earlier stage and bring pressure on the Turkish government to desist. Meanwhile, applications at the ECHR continue to pile up. In February 2002, the villagers of Alaca, in Diyarbakır province, who won a case191 relating to the 1993 "disappearance" of eleven relatives, filed a personal petition against the local governor's refusal to permit them to return to their destroyed homes. The ECHR judgments in the cases of house destruction in Turkey were effective in putting the forced displacement of Kurdish villagers on the national and international agenda. But these cases represent just a small sample of a much wider pattern, and unfortunately, the follow-up mechanisms to halt the continuing violation and tackle that wider pattern are slow and cumbersome. In addressing Turkey concerning the cases of house destruction, the Committee of Ministers asked what steps have been taken to avoid repetition of this serious violation. The Committee's resolution and the Turkish government's response only recapitulate the confrontation that took place in the ECHR: Turkey presented an outline of the remedies open to victims of house destruction, while the Committee of Ministers noted that impunity and the lack of effective remedies were continuing problems and encouraged the Turkish authorities "to continue their efforts in order to ensure rapid reparation for the victims of violations of the Convention committed by the security forces."192 175 Turkey signed the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 and recognized the right of individual citizens subject to violations of the convention to petition to the Court in 1987. The right of personal petition was initially not well understood in Turkey, and it was several years before petitions began to be prepared in numbers that would reflect the gravity and scope of violations actually being committed there. The London-based Kurdish Human Rights Association (KHRP), working in association with lawyers from the Human Rights Centre of Essex University, played an important role in widening the use of the right of personal petition as a lever for change in Turkey. KHRP and lawyers from Essex assisted in the preparation of many petitions but also held training seminars in Turkey in order to share skills and expertise with domestic lawyers. Now, according to Cumhuriyet (Republic) of May 21, 2001, Ministry of Justice figures show there are 1,500 cases filed against Turkey from applicants in the southeast. 176 The European Commission for Human Rights was abolished in November 1998. 177 Report of the European Commission of Human Rights on Akdivar and Others v Turkey, Application No 21893/93, October 26, 1995, para. 205. 180 Article 8: Right to respect for private and family life
181 Protocol 1, Article 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
182 Article 25, paragraph 1: The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non- governmental organization or group of individuals claiming to the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognizes the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right. 183 Akdivar and others, Judgment, September 16, 1996, para 105. 184 Akdivar and others v. Turkey (Article 50), April 1, 1998. 185 Mentes v Turkey, ECHR, November 28, 1997; Selçuk and Asker v Turkey, ECHR, April 24, 1998; Bilgin v Turkey, ECHR, November 16, 2000; Dulas v Turkey, ECHR, January 30, 2001; Orhan v Turkey, ECHR, June 18, 2002. 186 Aygördü and others v Turkey, ECHR, May 22, 2001; Aydin v Turkey, ECHR, July 10, 2001; Kemal Güven v Turkey, ECHR, May 22, 2001; Ince and others v Turkey, ECHR, May 22, 2001; Isci v Turkey, ECHR, September 25, 2001. 187 See for example, Akdeniz and others v Turkey, ECHR, Kurt v Turkey, ECHR, May 25, 1998; Çakıcı v Turkey, ECHR, July 8,1999 Ertak v Turkey, ECHR, May 9, 2000; Timurtaş v Turkey, ECHR, June 13, 2000. 188 Council of Europe, Committee of Ministers, Interim Resolution ResDH(2002)98, Adopted by the Committee of Ministers on July 10, 2002 at the 803rd meeting of the Ministers' Deputies. 189 September 2001 issue of The Europeans, Council of Europe newsletter. 190 Report of the Evaluation Group, EG Court(2001)1, September 27, 2001, para 51. 191 Akdeniz v Turkey, ECHR, May 31, 2001. 192 Interim resolution DH (99) 434 of the Committee of Ministers, Action Of The Security Forces In Turkey:
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