Gündem v Turkey: Selçuk and Asker v Turkey
Kurdish Human Rights Project
Compte d’auteur
On 25 May 1998, the European Court of Human Rights (the Court) delivered its judgment in the case of Gündem v Turkey. In this case, the Court saw no reason to depart from the European Commission of Human Rights’1 findings that it had not been established beyond reasonable doubt that the events as alleged by the applicant had occurred. It considered that it had insufficient factual basis on which to reach a conclusion that there had been a violation of articles 3, 5(1), 8, 18 and 1 of Protocol 1 of the Convention as alleged by the applicant. As regards articles 6(1) and 13, whereas the Commission found a violation of article 6(1), the Court decided that the complaint was best examined under the more general obligation on States under article 13 to provide an effective remedy. However, in the circumstances, the
Court was not satisfied that the applicant had an arguable claim and concluded, by a majority of 13 to 7, that article 13 had therefore not been violated.
On 24 April 1998, the Court delivered its judgment in the case of Selçuk and Asker v Turkey. In this case, the Court shared the Commission's opinion as to the genuineness of the applicants' claim and was also satisfied that there existed special circumstances which dispensed the applicants from the obligation to exhaust domestic remedies. Bearing in mind the manner in which the applicants' homes were destroyed, the Court thought it ...
Table of Contents
Foreword / i-ii
Part I
Summary of the Cases / 1
The Facts / 1
Gündem v Turkey
The facts as presented by the applicants / 1
The facts as presented by the Government / 2
The findings of fact of the Commission / 3
The findings of fact of the Court / 4
Selçuk and Asker v Turkey
The facts as presented by the applicants / 4
The facts as presented by the Government / 5
The findings of fact of the Commission / 5
The findings of fact of the Court / 6
Map of the area where the incidents occurred / 7
The Legal Proceedings / 7
Chronology of events and legal proceedings
in the case of Gündem v Turkey / 8
Chronology of events and legal proceedings in the case of Selçuk and Asker v Turkey / 10
How to bring a case before the Commission and the Court / 11
What are investigation hearings? / 11
The obligation to exhaust domestic remedies / 13
The debate on exhaustion of domestic remedies in the case of Gündem v Turkey / 14
The debate on exhaustion of domestic remedies in the case of Selçuk and Asker v Turkey / 15
The specific violations of the Convention complained of in both cases / 16
Article 6, 13,14 and 1 of Protocol 1 / 17
Article 18 / 18
Gündem v Turkey
The Government's position / 19
The applicant's complaints / 19
The opinion of the Commission / 20
The Court's judgment / 21
The speech made by the applicant's representative
Before the Court / 22
Selçuk and Asker v Turkey
The Government's position / 23
The applicant's complaints / 23
The opinion of the Commission / 24
The Court's judgment / 25
Just satisfaction, article 50 / 27
Pecuniary damage and non-pecuniary damage
(case of Selçuk and Asker only) / 28
Part II - Appendices
Appendix A: Gündem v Turkey
Admissibility Decision of the European Commission of Human Rights including the
Judgment of the European Court of Human Rights.
Decision of the European Commission of Human Rights (article 31 report)
Appendix B: Selçuk and Asker vTurkey
Admissibility decision of the European Commission of Human Rights including the
Judgment of the European Court of Human Rights
Decision of the European Commission of Human Rights (article 31 report)
FOREWORD
This report deals with the cases of Gündem v Turkey and Selçuk and Asker v Turkey. These cases are part of a series of judgments of the European Court of Human Rights on the issues of village Evacuations and Destruction in the Kurdish Region (south east) of Turkey.
The KHRP has been involved with the Human Rights Association (IHD)1 of Turkey in bringing a large number of cases complaining of the most serious violations of human rights to the European Commission of Human Rights. According to the statistics of the European Commission and the Court, until 1993 there were very few cases brought against the state of Turkey, however, Turkey now ranks highest among the states with complaints registered against it.
The Kurdish Human Rights Project (KHRP) has assisted over 400 individuals from Turkey in bringing their cases before the European Commission and Court of Human Rights. So far, 61 cases have been declared fully admissible by the Commission, 12 have been declared inadmissible and 3 partly inadmissible/ partly adjourned. Out of all these cases, 12 have actually been the subject of judgments by the European Court of Human Rights.
The Court found Turkey to be in breach of its obligations under the European Convention on Human Rights in 11 of these cases. The violations found were always very serious and involved issues of torture, village destruction, extra-judicial killings and disappearances. In order to establish the facts, the Commission often resorts to investigation hearings whereby the applicants and any witnesses, whether for the applicant or for the Government give evidence. This procedure is crucial, not only to find out what exactly happened but also to assess the witnesses' credibility.
In the case of Gündem v Turkey, the applicant failed to appear at the two investigation hearings scheduled by the Commission. He alleged he feared reprisals at the hands of the Turkish State. The applicant's story was unfortunately not strongly corroborated by other witnesses and this is why his evidence would have been crucial. In these circumstances, the Commission felt hampered in their exercise of determining what exactly happened on the day of the alleged incident and felt unable to find that violations of the European Convention had occurred beyond reasonable doubt.
In the case of Selçuk and Asker v Turkey, the Commission and the Court reached an extraordinary result in terms of jurisprudence which will then be followed by the Strasbourg organs. Both found that the burning of the applicants' homes in their presence constituted acts of violence and deliberate destruction. They noted in particular the traumatic circumstances surrounding the burning of Mr Asker's house, which put him in danger from fire as he and his wife attempted to save their belongings. Accordingly, the Court found that the applicants had been subjected to inhuman and degrading treatment in violation of article 3. This is actually the first case involving destruction of homes and property where the Court found a violation of article 3 on account of the distressing circumstances in which the burning occurred and the utter disregard paid for the safety and welfare of the applicants. It is an extremely important step towards widening the scope of the provisions under the Convention as well as the rights protected under it.
This report will provide the reader with a summary of the cases as well as an analysis of the decisions. It is useful for those who wish to have a good overview of the cases and any further detail can be found in the text of the decisions and judgments.
Kerim Yildiz
Executive Director
1 The IHD (insan Hakları Demeği) (Human Rights Association) was established in July 1986 with the purpose of promoting human rights and civil liberties in Turkey. It is a non-governmental organisation with nearly 16,000 members and 58 local branches around Turkey. One of the activities of the Diyarbakir branch of IHD of IHD is to assist individuals who have suffered a violation of their human rights to obtain a domestic remedy and if this fails, to assist them in applying to the European Commission of Human Rights. IHD staff have been arrested and subjected to intimidation on many occasions.
Part I
The Cases: Gündem v. Turkey and Selçuk & Asker v. Turkey
Summary of the Cases
On 25 May 1998, the European Court of Human Rights (the Court) delivered its judgment in the case of Gündem v Turkey. In this case, the Court saw no reason to depart from the European Commission of Human Rights’1 findings that it had not been established beyond reasonable doubt that the events as alleged by the applicant had occurred. It considered that it had insufficient factual basis on which to reach a conclusion that there had been a violation of articles 3, 5(1), 8, 18 and 1 of Protocol 1 of the Convention as alleged by the applicant. As regards articles 6(1) and 13, whereas the Commission found a violation of article 6(1), the Court decided that the complaint was best examined under the more general obligation on States under article 13 to provide an effective remedy. However, in the circumstances, the Court was not satisfied that the applicant had an arguable claim and concluded, by a majority of 13 to 7, that article 13 had therefore not been violated.
On 24 April 1998, the Court delivered its judgment in the case of Selçuk and Asker v Turkey. In this case, the Court shared the Commission's opinion as to the genuineness of the applicants' claim and was also satisfied that there existed special circumstances which dispensed the applicants from the obligation to exhaust domestic remedies. Bearing in mind the manner in which the applicants' homes were destroyed, the Court thought it right to categorise the acts of the security forces as inhuman treatment and consequently found a violation of article 3 and 8 and 1 of Protocol 1 of the Convention. The Court thought it more appropriate to examine the complaint as regards the lack of effective remedy under article 13 rather than 6(1) and concluded that there had been a breach of article 13 on account of the ineffective and inadequate investigation carried out by the authorities into the applicants' complaints.
The Facts
Gündem v Turkey
The facts as presented by the applicant
The applicant, Mr. ismet Gündem, was bom in 1955. He is a Turkish national of Kurdish origin who, at the time of the events, lived in the hamlet of Kaniye Meheme, in Sarierik village, in the Hazro District of the Province of Diyarbakır, in south-east …
1 Thereafer, ‘the Commission’.
Kurdish Human Rights Project
Gündem v Turkey: Selçuk and Asker v Turkey
Compte d’auteur
Compte d’auteur
Gündem v Turkey: Selçuk and Asker v Turkey
Case Report, October 1998
Gündem v Turkey: Selçuk and Asker v Turkey
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ISBN: 1 900175 20 7
Published by the Kurdish Human Rights Project, October 1998
This report was written by Nathalie Boucly, barrister and KHRP legal officer.
For further information on the cases please contact:
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