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Forced Conciliation

We do not want to go to court. We want what we deserve. I am frightened about opening a ten-year court case. Will I live that long? Honestly, my loss is TL 200,000 and they are offering me TL 7,000.
—N.Z., displaced in 1993 from Islamköy village, Diyarbakır²³

What sets villagers at such a disadvantage in the process provided in the Compensation Law is the lack of independence of the damage assessment commissions and the absence of any effective appeals procedure. Villagers have no realistic alternative and must accept whatever terms the commissions care to propose. To refuse a conciliation offer would be to embark on a legal fight that, considering the pace of legal processes in Turkey, would entail a further decade of delay and substantial litigation expense. And as the analysis in this section shows, there would be little hope of justice at the end of that long fight. This is an almost unbearable prospect for a group of already traumatized and impoverished victims.

Theoretically, if a villager finds the assessment commission’s conciliation offer unacceptable, he can go to court. In practice, this is not an option. Under administrative court rules, litigants opening an action must pay into court approximately 4 percent of their claim. But these are poor villagers, reduced to a state of misery by wide-scale criminal acts committed by officials of the state they would be challenging in the courts. A displaced farmer who has to sell puddings on the street to buy school books for his child cannot afford to lay out large sums in the hope of winning a court action against the state responsible for the tort originally committed against him.

Diyarbakır lawyer Habibe Deyar described the stark non-choices:

The assessment commission puts the offer in front of us. We have 20 days to decide. If my client feels he should be paid TL 100,000 [US$67,000], he has to find TL 4,000 [$2,680, to pay into court]. The case may take four years in the administrative court. If he wins, the state will appeal and the case will go to the Council of State. That will take another five years. Nine years—without much prospect of success, because we will have to start from the beginning by proving the state’s responsibility for the burnings. The last time we tried to do that they prosecuted us.²⁴

The Dictator Game

Game theory is a branch of mathematics that studies strategic situations where players choose various tactics in order to maximize their returns. In the Ultimatum Game the proposer has to divide a large sum of money between himself and the respondent, who can take it or leave the offer. If he leaves it, neither side gets anything. Research shows that the proposer tends to offer almost half of the total sum, fearing a spiteful response from the respondent who, experiments show, is unlikely to settle for much less than half. In a variant of this, the Dictator Game, the proposer simply allocates what he likes and there is nothing the respondent can do about it. With no fear of reprisal, the proposer makes a much stingier offer. In fact, the rational offer, under these circumstances, is to give nothing at all, but in practice proposers often give a nominal sum, which researchers suggest is an “investment in reputation.”

The Dictator Game is a nearly perfect model of how damage assessment commissions are operating. The applicants have no realistic course of action other than to accept what is offered. The only leverage on the commissions to offer anything at all is the need to make the transaction appear to be a genuine compensation process. Giving zero to every applicant would not play well publicly within Turkey or in Brussels, now that the issue of the displaced has been included in the EU accession partnership, and might provoke a swift reversal of the Içyer decision. ²⁵

Villagers accept the conciliation proposals not because this is the best option available to them, but because it is really the only option. Even families whose applications are rejected out of hand tend not to challenge the decision through the courts. Diyarbakır lawyer Sedat Aydın described how six families displaced from a village near Çınar, because they had refused service as village guards, were rejected from the Compensation Law process on the basis of testimony given by the current muhtar and the man who was muhtar at the time of the displacement. These officials said that the families had left of their own accord, but both muhtars were village guards, and the lawyer had good grounds for believing that the testimony was untrue. “I discussed the possibility of opening a case. The problem is, I would have to pay in the fee before opening the case. [The six families] decided not to take legal action for financial reasons.”²⁶

There are provisions for state payment of court fees for destitute persons, but all displaced villagers who hold land (which would include most applicants, since their complaint is the unlawful denial of access to their land and house) are disqualified by that fact.

²³ Human Rights watch interview with displaced villager N.Z., Elazığ, April 5, 2006.

²⁴ See International Commission of Jurists, “Turkey: Final report on the trial of the president of the bar and three other lawyers,” February 11, 2004. Habibe Deyar and other Diyarbakır lawyers who attempted to bring court actions concerning displacement were indicted for “insulting the security forces,” but were finally acquitted.

²⁵ See, for example, Bolton, Gary, Elena Katok and Rami Zwick (1998), "Dictator Game Giving: Rules of Fairness Versus Acts of Kindness", International Journal of Game Theory, 27, pp. 269-99.

²⁶ Human Rights Watch interview with lawyer Sedat Aydın, Diyarbakır, April 4, 2006.

December 2006

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