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FOREWORD
In late 1998 the European Court of Human Rights delivered decisions in the cases of Ergi v. Turkey and Aytekin v. Turkey. Both cases involved the loss of life and dealt with the State’s obligation to protect the right to life and to conduct effective? investigations into deaths associated with security operations. Indeed, in Ergi's case'5 the Court found that Turkey had violated both these obligations.
In a country that has a significant portion of its territory under emergency rule the continued monitoring of the observance of these obligations is clearly crucial. In this context, the Kurdish Human Rights Project (KHRP) welcomes Interim Resolution DH (99) 434 in which the Committee of Ministers of the Council of Europe resolved to continue the examination of Ergi, and the other cases against Turkey decided by the Court or the Committee of Ministers, until Turkey has implemented measures to prevent similar violations of the Convention in the future.
Ergi and Aytekin are but two of a number of cases brought by Turkish citizens of Kurdish ethnic origin with the assistance of KHRP.1 The conduct of legal proceedings before the Convention tribunals requires close co-operation of many individuals and organisations. In assisting individuals to bring applications, KHRP has therefore worked with human rights organisations both in Turkey2 and in England. Furthermore, long-term commitment is required from all concerned as proceedings take an average of four years from the time of registration of an application to delivery of judgment by the Court.
KHRP aims to improve and maintain the level of awareness of human rights abuses, provide education on international human rights standards, and promote the rule of; law in the Kurdish regions (including Turkey, Syria, Iran, Iraq, and parts of the former Soviet Union). General knowledge of, and access to, the decisions in Ergi and Aytekin have a part to play in advancing each of these aims.
The introduction to this Case Report discusses the legal aspects of the cases in the socio-political context operating in Turkey at the time of the incidents giving rise to the applications. Part I outlines the legal procedure, the legal arguments submitted, and the Commission’s and Court’s reasoning in Ergi. Part II deals with Aytekin’s case. The Appendices contain outlines of the applicants’ opening speeches to the Court, the Commission’s opinions, the Court’s judgments and a copy of the Committee of Ministers Interim Resolution DH (99) 434.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
Hans Brandscheidt
Medico international
1 Other KHRP cases which have been decided by the Court to date are: Akdivar v. Turkey, (1997) 23 E.H.R.R. 143, see KHRP Case Report: Akdivar v. Turkey: The Story of Kurdish Villagers Seeking Justice in Europe (London 1996);4Asoy v. Turkey (1996) 23 E.H.R.R. 553; Aydin v. Turkey, Judgment of 25 September 1997, see KHRP Case Report, Aksoy v. Turkey; Aydin v. Turkey: A Case Report on the Practice of Torture in Turkey (London 1997); Mentes and Others v. Turkey, Judgment of 28 November 1997, see KHRP Case Report: Mentes and Others v. Turkey: A KHRP Case Report on Village Destruction in Turkey (London 1998); Gündem v. Turkey, Judgment of 25 May 1998, Selçuk and Asker v. Turkey. Judgment of 24 April 1998, see KHRP Case Report: Gündem v. Turkey; Selçuk and Asker v. Turkey: A Case Report (London 1998); Kurt v. Turkey, Judgment of 25 May 1998; Kaya v. Turkey, Judgment of 19 February 1998, see KHRP Case Report; Kurt v. Turkey; Kaya v. Turkey: A Case Report (London 1999); Yasav. Turkey, Judgment of 2 September 1998; Tekin v. Turkey, Judgment of 9 June 1998, see KHRP Case Report: Yasa v. Turkey and Tekin v.Turkey: Torture, Extra-Judicial Killing and Freedom of Expression in Turkey -A Case Report (London 1999); and Cakici v. Turkey (23657/94) and Tanrikulu v.. Turkey (23763/94) both decided on 8 July 1999.
2 For example, the Human Rights Association of Turkey (IHD) and the Bar Associations in Turkey.
Introduction
The cases of Ergi v. Turkey and Aytekin v. Turkey highlight the problems of the use of excessive force and the violation of humanitarian law occurring in Turkey today. In particular, the cases reveal that the civilian population in Turkey is not immune from the armed conflict taking place within that State’s borders.
For over a decade the south east region of Turkey has been the location of armed conflict between the Kurdistan Workers’ Party (the PKK)1 and Turkish security forces.1 2 3 3 This conflict has clearly taken a toll on the civilian population of the region. Indeed in a speech given in 1998, the Turkish President, Suleyman Demirel, stated that 5,302 civilians had been killed in Government and PKK fighting since 1984? As the majority of the population in the region is of Kurdish ethnic origin and the majority of an estimated 15 million Turkish Kurds reside in the region, the impact of the fighting has been sustained primarily by the Kurds.
As well as non-combatants being caught in crossfire between the warring forces, reports4 have disclosed that both Government forces5 and the PKK have committed human rights abuses against them. In is reported that in its campaign the PKK has committed acts of violence against civilians whom it suspects of co-operating with the Turkish authorities. Meanwhile, the security forces have targeted persons whom they believe support or sympathise with the PKK. In particular, it is reported that when villagers refuse to participate in the civil defence force in the region (known as the village guards) then Government security forces may retaliate against them and their village. On the other hand, if villagers do agree to serve in the village guards, then they may be targeted by the PKK.
Certainly, the losses experienced in the cases of Ergi and Aytekin -are directly attributable to security force activity in south-east Turkey. In Ergi the applicant’s sister was fatally shot during a military operation near her village. The applicant argued that security forces had taken retaliatory action against the village because a Government sympathiser living in the village had been killed by the PKK. The Government argued that this was not the case, but rather the security forces had been …
1 The PKK is a Kurdish insurgency group founded in 1984, whose original goal was the creation of a separate State of Kurdistan in south east Turkey.
2 Under State of Emergency Law, Act No. 2935 of 15 October 1983, a State of Emergency was declared in relation to south east Turkey and continues over six provinces, namely Diyarbakir, Siirt, Tunceli, Sirnak, Hakkari and Van. Five other Kurdish provinces (Batman, Bingöl, Bitlis, Mardin and Mus) were placed under the jurisdiction of the Diyarbakir-based 'Super-Prefect' under the same conditions as the State of Emergency. This legal regime grants the security forces, police and the army extensive powers. For the thirty-sixth consecutive time, in July 1999 the Grand National Assembly of Turkey extended the State of Emergency over the six provinces for four months. The declaration takes effect from 13 July.
3 See for example, U.S. Department of State, Country Report on Human Rights Practices for 1998 -Turkey, para.(g).
4 See U. S. Department of State, Country Reports on Human Rights Practices - Turkey 1995, 1996, 1997, and 1998, website: http://www.state.gov/www/. See also Amnesty International, Turkey: No Security Without Human Rights, AI Index: EUR/44/84/96, pp.5-7.
5 The village guards, gendarme and police “special teams” are considered to be primarily responsible for human rights abuses. The village guards are reputed to be the least trained and disciplined of the security forces. See Amnesty International, Op.cit., pp.54-58.
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