Sub-sub-series 33 - İsmet Gündem

2 files

Materials pertaining to the case filed by İsmet Gündem on 7 July 1993 against the Republic of Turkey with the European Commission of Human Rights (application number 22275/93, later given case number 139/1996/758/957, referred to internally within the Kurdish Litigation Project as Case 48 and assigned to Kevin Boyle as lead) regarding alleged damage done to his house and property in the Kaniye Meheme neighbourhood of Sarıerik, Hazro District, Diyarbakır Province, by soldiers and village guards on 7 January 1993 and 13 February 1993.
According to Gündem, his family owned 11 of the 15 houses in Kaniye Meheme, seven of which were occupied at the relevant time. The incidents of which the applicant complains occurred at a time when the village of Sarıerik did not have village guards. The applicant’s family had refused to become village guards. In the first incident, on 7 January 1993, soldiers and village guards from the villages of Kırmataş and Meşebağlar came and gathered villagers from the Kaniye Meheme neighbourhood together in one place. They beat some of the villagers and then searched the houses. When they entered the houses, they destroyed some of the property and household goods inside and mixed up the winter provisions. When they left the houses they sprayed them with bullets, breaking the windows. In the second incident, on 13 February 1993, the soldiers and village guards came to the neighbourhood. The soldiers surrounded the neighbourhood and the village guards fired shots at the houses for around twenty minutes. The applicant was able to hear the village guards and the soldiers communicating by walkie-talkie. They targeted the Gündem house in particular. During the attack the women and children were trapped in the houses and had to lie down on the floor to take cover. The men had tried to hide outside the houses. The applicant’s house was severely damaged during this attack. İsmet Gündem and his family left the village soon after these events at the beginning of March 1993.
The Commission noted that there had been no detailed investigation on the domestic level into the events which allegedly occurred in the Kaniye Meheme neighbourhood on 7 January and 13 February 1993. The Commission had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings. The Commission observed that in cases, such as the present one, where the applicant claimed to have been an eyewitness to the events of which he complained, he was also an important witness in his own case. However, the applicant had not appeared before the Commission’s delegates to give evidence.
Gündem’s account of a Government policy in respect of villagers refusing to become village guards had been supported by findings contained in the reports of Human Rights Watch/Helsinki and the Kurdish Human Rights Project. The Commission further noted that other applications which had been brought before it had also contained allegations of raids being conducted on villages and that statements have been invoked which refer to other raids by the Meşebağlar and Kırmataş village guards. As regards the evidence obtained in respect of the specific events alleged to have happened in this case, it was only the oral testimony of the applicant’s father, Hacı Ahmet Gündem, which provided support for the applicant’s account of events, although this testimony was rather unclear as to details and timing. However, Hacı Ahmet Gündem did not say that the houses belonging to the applicant’s family had been destroyed because the family members had refused to become village guards. He put forward two different reasons: firstly, there existed an old vendetta between the applicant’s family and Meşebağlar villagers and the latter had told the security forces that the applicant’s family supported the PKK. Secondly, the applicant’s family had accused a member of the gendarmerie of being responsible for the disappearance of the applicant’s brother İbrahim. The Commission found that the applicant’s appearance before the delegates would have been required to clarify these matters.
On 25 May 1998, the European Court of Human Rights unanimously held that there had been no violation of Articles 3, 5 § 1, 8 and 18 of the European Convention on Human Rights or of Article 1 of Protocol No. 1, and held by 13 votes to 7 that there had been no violation of Article 13. The Court considered that the evidence gave rise to serious doubts as to whether applicant had made out a factual basis for his allegation that his house and property had been purposely destroyed by the security forces – in the circumstances of the case, including the absence of an opportunity for the Commission to test directly with him his written statements, the Court was not satisfied that he had an arguable claim that the Convention had been violated. The full judgment is available for viewing at https://hudoc.echr.coe.int/?i=001-58171