In the case of İşçi v. Turkey,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mrs E. Palm,
President,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr B. Zupanèiè,
Mr T. Panŝîru,
Mr R. Maruste, judges,
Mr F. Gölcüklü, ad hoc judge,
and Mr M. OBoyle, Section Registrar,
Having deliberated in private on 20 March and on 4 September
2001,
Delivers the following judgment, which was adopted on the last‑mentioned
date:
PROCEDURE
1. The case originated in an application
(no. 31849/96) against the Republic of Turkey lodged with the European
Commission of Human Rights (the Commission) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (the
Convention) by a Turkish national, Mr Şevket İşçi (the applicant), on
12 April 1996.
2. The applicant was represented before the Court by
Mrs Bedia Buran, Mrs Filiz Köstak and Mrs Naciye Kaplan, lawyers
practising in Istanbul. The Turkish Government (the Government) did not
designate an Agent for the purposes of the proceedings before the Court.
3. The applicant complained that he had been a
victim of a violation of Articles 3, 5, 6, 8, 13 and 14 of the Convention
and Article 1 of Protocol No. 1 to the Convention on account of
destruction of his house and removal of his property by security forces in the
state of emergency region.
4. Following communication of the application to the
Government by the Commission, the case was transferred to the Court on 1
November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.
5. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.
Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from
sitting in the case (Rule 28). The Government accordingly appointed Mr
Feyyaz Gölcüklü to sit as an ad hoc judge in his place (Article 27 § 2
of the Convention).
6. On 20 March 2000, having obtained the parties
observations, the Court declared the application admissible.
7. On 28 March 2001, after an exchange of
correspondence, the Registrar suggested to the parties that they should attempt
to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the
Convention. On 28 June 2001 and on 4 July 2001 the applicants representative
and the Government respectively submitted formal declarations accepting a friendly
settlement of the case.
THE FACTS
A. Applicants version of the facts
8. In early 1994 the applicant went to Istanbul in
order to work. His family stayed in the Nurettin village of the Malazgirt
district in the province of Muş.
9. In May 1994 the applicants relatives living in
the Nurettin village phoned the applicant and told him that his family had
moved to the Malazgirt district since his village had been burned down.
10. The applicant left Istanbul for Malazgirt in
order to see his family. His wife told the applicant that they had not been
given sufficient time to remove their belongings before the burning of their
house by village guards.
11. The day after his arrival in Malazgirt, the
applicant went to his village. He saw that his house, along with some 100
houses in the village, had been burned down. His relatives in the village told
him that the village guards had taken the chairs and tables in his coffee-house
as well as the goods in his shop. The applicant learned that some of his tables
and chairs were still in a village guards, Müfit Polats house and shop.
12. After having spent the overnight in the village,
the applicant went to the Malazgirt District Gendarme Command, where he talked
to a gendarme captain on duty. He asked the captain the reason for the burning
of his village. The captain told the applicant that he had not heard anything
about the alleged burning of the village. He added that the village head guard,
Ahmet Çelik, might have been responsible for the burning. The captain then
summoned Ahmet Çelik to the Gendarme Command.
13. The applicant asked Ahmet Çelik why he had set
his house, coffee‑house and shop on fire. The latter told the applicant
and the captain that he and his fellow village guards had burned the houses in
the village on account of its inhabitants refusal to be village guards and
their support to the PKK. Ahmet Çelik threatened the applicant telling him that
his life would be in danger in Malazgirt if he did not agree to be a village
guard.
14. Ten days after this meeting, the applicant was
at a café in Malazgirt along with his nephew and son-in-law. Two village
guards, Bahattin Polat and Nizamettin Çelik, and four police officers came to
the café and took them to the Malazgirt police station, where they requested
the applicant to agree to be a village guard. They were released on the same
day subsequent to the questioning of the applicants nephew and son-in-law by
the police officers.
15. Two months later, the applicant went to his
village along with his wife and mother in order to collect his crops. The
village guards stopped the applicant at the entrance of the village and told
him that he had nothing left in the village. The applicant then returned to
Malazgirt. He learned that his crops had been collected by the village guards
and had been sold in the province of Van.
16. During his stay in Malazgirt, the village guards
and special team members of the security forces in the region intimidated the
applicant. The applicant then rented his house in Malazgirt to his elder sister
and moved to Istanbul along with fourteen members of his family.
17. Following the applicants departure from
Malazgirt, the village guards threatened his elder sister with killing her son
if she did not leave the applicants house.
18. In September 1995 the applicants elder sister
was forcibly evicted from the house by the village head guard, Ahmet Çelik. The
applicant sold his house to H.A. and took his car in exchange for the house.
But, the applicant returned the car to H.A. since the village guards did not
allow the latter to enter the house.
19. On 18 July and 29 September 1995 the applicant
filed petitions with the Chief Public Prosecutors
office in Istanbul for submission to the Malazgirt Chief Public Prosecutors
office. He complained of the destruction of his property and the seizure of his
house in Malazgirt by the village guards. He requested that his damage be
redressed and that those responsible for the impugned events be brought to justice.
B. Governments version of the facts
20. The authorities began an investigation into the
alleged events on receipt of the applicants petitions.
21. On 20 and 21 November 1995 the Malazgirt K.
Kuran Gendarme Station Commander, Mustafa Akgün, took statements from nine
village guards from the Nurettin village. The village guards denied the
applicants allegations. They stated that the applicant had left the village
with his own will since he had been involved in the PKK. They maintained that
the applicant had removed his belongings before his departure and that nobody
had destroyed or seized his property. The village head-guard, Ahmet Çelik,
stated also that neither him nor his guards would give any damage to the
applicant since he is married to his elder sister. Ahmet Çelik stated also that
they are close relatives with the applicant.
22. On 21 November 1995 the Malazgirt Public
Prosecutor questioned seven village guards in relation to the applicants
allegations. The village guards denied the
allegations. They alleged that the applicant had been aiding and sheltering PKK
militants and that he had left the village since security forces would arrest
him. They claimed that the applicants fields were unused and nobody had
destroyed or seized his property.
23. On 4 March 1996 the Malazgirt Chief Public
Prosecutor filed an indictment with the Malazgirt Criminal Court charging ten
village guards with the destruction of the applicants property and the seizure
of his house and belongings.
24. On 10 July 1996 the Küçükçekmece Criminal Court
in Istanbul heard evidence from the applicant at the request of the Malazgirt
Criminal Court. The applicant stated before the court that he had a house, a
coffee-house and fields in the village which had been seized by the village
guards. He alleged that his tenants had been forcibly evicted from his house by
the village guards. He requested the court to ensure that his property be
returned to him from the accused village guards.
25. According to the Governments letter of 27
November 2000, the criminal proceedings against the village guards are still
pending before the Malazgirt Criminal Court.
THE LAW
26. On 4 July 2001 the Court received the following
declaration from the Government:
I declare that the Government of Turkey offer to pay the
amount of 15,000 (fifteen thousand) pounds sterling on an ex gratia
basis to Mr Şevket İşçi with a view to securing a friendly settlement of
the application registered under no. 31849/96. This sum shall cover any
pecuniary and non-pecuniary damage as well as costs, and it will be payable,
free of any taxes that may be applicable, within three months after the
notification of the judgment delivered by the Court pursuant to the Article 39
of the European Convention on Human Rights. This payment will constitute the
final resolution of the case.
The Government further undertake not to request the reference
of the case to the Grand Chamber under Article 43 § 1 of the Convention.
27. On 28 June 2001 the Court received the following
declaration signed by the applicants representative:
I note that the Government of Turkey are prepared to pay me,
free of any taxes that may be applicable, within three months after the
notification of the judgment delivered by the Court pursuant to the Article 39
of the European Convention on Human Rights, a sum totalling 15,000 (fifteen
thousand) pounds sterling on an ex gratia basis covering both pecuniary
and non-pecuniary damage and costs with a view to securing a friendly
settlement of application no. 31849/96 pending before the Court.
I accept the proposal and waive any further claims in respect
of Turkey relating to the facts of this application. I declare that the case is
definitely settled.
This declaration is made in the context of a friendly
settlement which the Government and I have reached.
I further undertake not to request the reference of the case to
the Grand Chamber under Article 43 § 1 of the Convention after the delivery of
the Courts judgment.
28. The Court takes note of the agreement reached
between the parties (Article 39 of the Convention). It is satisfied that
the settlement is based on respect for human rights as defined in the
Convention or its Protocols (Article 37 § 1 in fine of the
Convention and Rule 62 § 3 of the Rules of Court).
29. Accordingly, the case should be struck out of
the list.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Decides to
strike the case out of the list;
2. Takes note
of the parties undertaking not to request a rehearing of the case before the
Grand Chamber.
Done in English, and
notified in writing on 25 September 2001, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Michael OBoyle Elisabeth
Palm
Registrar President
IUS-INFO
EURO IUS-INFO
