More than two years after coming into force, Turkeys law to compensate the several hundred thousand mainly Kurdish villagers forcibly displaced by the armed conflict in the southeast of the country is being implemented in a way contrary to the governments stated purpose and principles of fair and appropriate redress. Rulings by provincial commissions charged with the laws implementation are actually hindering those internally displaced who would like to return to their pre-conflict homes. With a pattern of woefully inadequate compensation payments now clear, Human Rights Watch urges the Turkish government to suspend the operations of the commissions that decide compensation amounts, pending a speedy review of their working methods and of the payments being offered.
The Law on Compensation for Damage Arising from Terror and Combating Terror (Compensation Law), was adopted by the Turkish parliament and went into effect in July 2004. The law was intended to indemnify victims of the armed conflict between Turkish government forces and the Kurdish Workers Party (PKK), which took place in southeastern Turkey from 1984 onward. Among these victims were the 378,335 villagersmainly Kurdish farmers and their familieswho were forcibly displaced from their homes and livelihoods by the conflict. Payments under the Compensation Law to this group are intended to cover losses arising from the original displacement, as well as those incurred during the decade or more that these families were unable to return to their property. The Turkish government stated that the intent of the law was to to deepen trust in the State, to strengthen the State-citizen relationship, to contribute to social peace and the fight against terrorism,1 and committed itself to seeing that it was effectively implemented.
During 2005 some of the provincial damage assessment commissions, which were appointed to negotiate so-called conciliation agreements (sulhname) between the government and individual victims from the conflict, made payments under the law that were substantial enough to assist families in returning to their former homes or making a new life by integrating in the cities where they had taken up residence following their displacement. The relatively good performance of the damage assessment commissions during this period appears to have been influenced, at least in part, by the fact that the Turkish government wanted to demonstrate that the new law provided an effective domestic remedy to the problems of the displaced, and that the more than 1,500 cases filed by displaced people against Turkey and pending before the European Court of Human Rights (ECtHR) could now be handled through this newly created channel. In January 2005 the ECtHR did, in fact, rule that the application of Aydın İçyer, who had been displaced since 1994, was inadmissible on the grounds that he had not exhausted domestic remedies. The ECtHR pointed to the Compensation Law as providing an effective remedy that the displaced needed to exhaust before applying to the court.
Since the ECtHR announced its decision in the İçyer case, there has been a noticeable deterioration in the implementation of the Compensation Law by provincial damage assessment commissions. The damage assessment commissions appear to approach their task in a much more grudging and arbitrary way, resulting in absurdly low compensation amounts. For example, in a recent decision by the Diyarbakır damage assessment commission, a family that has had no access to its house, crops, or silkworm business since they were destroyed by soldiers in 1993 was offered a total compensation amount of 5,000 Turkish Lira (TL) (US$3,350).2
In theory, displaced people have the right to challenge such derisory compensation sums in the Turkish courts, but the obligation to pay a percentage of the court costs up front, long trial delays, and the courts record of providing inadequate justice to displaced people rules this out as a realistic option. Villagers have no practical choice but to accept whatever the damage assessment commissions offer. To do otherwise would only result in further postponing their ability to move on with their lives.
Displaced persons also have the theoretical possibility of again submitting their cases to the ECtHR, after having exhausted all domestic remedies. In reality, however, the long delays before the ECtHR would issue a ruling means that internally displaced persons have a choice between some amount of compensationno matter how inadequateand the prospect of another five- to 10-year wait for the possibility of more adequate compensation.
Damage assessment commissions appear increasingly to apply arbitrary and unjust criteria in calculating compensation, sometimes in defiance of the laws own implementing regulations.3 These calculations appear consistently to favor the government and to be biased against the victims of government abuse.
Commissions manipulate government compensation scales to whittle down the value of family homesby calculating house values on the basis of values for cowsheds, for example. In the region where most displacements took place, income was primarily earned through animal husbandry, but in defiance of the law, damage assessment commissions will not compensate any losses associated with livestock. They also implement a host of invented rules in order to exclude applicants and diminish state liability.
Thus, the Compensation Law is being implemented in a manner that directly undermines the stated purpose of the law and the governments express intent. It also undermines the possibilities for displaced villagers to obtain just compensation and hinders their ability to return to their pre-war homes.
The damage assessment commissions go through the motions of assessing the precise losses of each individual family. But this approach seems inappropriate to a region where the state land registry has barely started its work, and where the local economy was and remains almost entirely informaltwo factors that make documenting economic loss particularly difficult. It is especially inappropriate to a program of forced evacuation of hundreds of thousands of Turkish citizens, which, although it was carried out by the Turkish civil service and security forces, was conducted without, it seems, a scrap of documentation or a trace of record keeping. In view of the lack of formal records relating to any aspects of the violations or family circumstances, the government should consider abandoning individual assessments, and instead pay a standard sum per household, calculated on a per-member, and per-year-of-displacement basis.
Whatever method is finally adopted, it should ensure that a family displaced for 12 years receives not less than TL 50,000 ($33,500), which is the average for the first and widely publicized friendly settlement, in Batman province, and close to the approximate average payment ordered by the ECtHR in forced displacement cases in Turkey. This is an appropriate baseline since it is recognized that ECtHR compensation rates, symbolic of restorative justice rather than a full enactment of it, are generally lower than would be given by a civil court.4 A typical displaced family was threatened, abused, ill-treated by state officials, and then driven out of their home at gunpoint. The family home was burned down before the eyes of the children. The family was at once deprived of shelter and income, and forced, in a traumatized state, to improvise both in an urban situation to which they were not accustomed. They were obliged to find work and pay large sums in rent over the course of more than a decade, and kept away from their house and the property that provided their livelihood. Full restitution in any just civil court would surely run to the equivalent of hundreds of thousands of dollars.
If payment levels fall below the average set by the ECtHR, it would be a clear sign that the Compensation Law is not only operating unjustly, but also failing to provide a practical sum that would facilitate either return or integration.
The ECtHR and the Council of Europe, which were instrumental in establishing justice for Turkeys displaced and ensuring that violations against them were placed on the public record, should be vigilant and active in ensuring that the Turkish government halts, reviews, and revises the work of the damage assessment commissions. The situation of the displaced is a major agenda item in the relations between the European Union (EU) and Turkey, and the EU should use all its influence to ensure that the Compensation Law contributes to resolving the problems of the displaced.
The research for this memorandum was conducted by Human Rights Watch in Diyarbakır, Bingöl, and Elazığ provinces. Interviews were conducted with numerous internally displaced persons, government officials, representatives of international organizations, and diplomatic representatives based in Turkey. Human Rights Watch sought to conduct additional interviews with provincial government officials, and in particular with provincial governors responsible for damage assessment commissions in Bingöl and Diyarbakır, in order to better reflect their views on the damage assessment process. The fieldwork, including these attempts to meet with government officials, was hindered by interruptions and obstructions by gendarmerie, culminating in the arrest and deportation of Human Rights Watchs researcheron the pretext of visa irregularities, though the researcher was not in breach of visa requirementson April 13, 2006. In a February 2006 letter to Deputy Prime Minister Abdullah Gül, Human Rights Watch also expressed concern about the inconsistency in rulings by the compensation commissions and called for an immediate and thorough review of the commissions work to ensure that all provinces were applying the criteria in a fair and consistent manner. The Turkish authorities did not respond to that letter.
The names of villagers and some of the lawyers interviewed for this report have been replaced with initials, to disguise their identities for their protection.
1 Preamble to Draft Law on Compensation for Damage Arising from Terror and Combating Terror (Law 5233) April 19, 2004.
2 At the time of writing, the Turkish lira was worth US$0.67 and 0.53.
3 Implementing Regulation for Law on Compensation for Damage Arising from Terror and Combating Terror, Regulation No. 2004/7955, October 4, 2004, Official Gazette, October 20, 2004; Implementing Regulation for Law on Compensation for Damage Arising from Terror and Combating Terror, Regulation No 2005/9329, August 22, 2005, Official Gazette, September 15, 2005.
4 See Bona, Marco. Towards The "Europeanisation" Of Personal Injury Compensation: Contexts, Tools, Projects, Materials And Cases On Personal Injury Approximation in Europe, published in Personal Injury Compensation in Europe, edited by Marco Bona & Philip Mead, Deventer, Kluwer, 2003: Awards by the Strasbourg Court are generally quite low. It should also be noted that the ECtHR tends to see the recognition of the violation itself as efficient and exhaustive satisfaction for the victim, in many cases appearing to consider compensation as something merely added to such recognition. Also Leach, Philip, "Taking a Case to the European Court of Human Rights", Oxford University Press, 2005: In general, awards of damages are relatively low compared with damages awarded by the domestic courts of many Council of Europe states... This is probably due to a prevailing view that the primary remedy in Strasbourg is the finding of a violation of the Convention itself."
5 Parliamentary Commission on Internal Migration of the Turkish Grand National Assembly, Report on Remedies To Be Undertaken On The Basis Of Research Into The Problems Of Citizens Who Have Migrated As A Result Of Evacuation Of Settlements In East And Southeast Anatolia, submitted to the Grand National Assembly of Turkey, January 14, 1998. Nobody knows for sure how many people were displaced in the 1990s. In 1998 the governor of the southeastern provincesthen under a state of emergencystated that 378,335 villagers had been displaced from 820 villages and 2,345 smaller settlements. The Turkish government rounded this down to 350,000 in the figures supplied to the European Commission for the 2004 Regular Report. The U.S. State Department report for 1998 considered 560,000 a credible estimate. The Diyarbakır Bar Association suggests that as many as two million may have been displaced. At any rate, the estimate of 378,335 derived from provincial displacement figures is almost certainly too low.