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Principle 7(3)(f) of the U.N. Guiding Principles states that the right of displaced persons "to an effective remedy, including the review of such decisions by appropriate judicial authorities, shall be respected."

Villagers burned out of their homes should be able to seek a remedy under Turkish domestic law. Article 125 of the Constitution provides that "All acts or decisions of the Administration are subject to judicial review.... The Administration shall be liable for damage caused by its own acts and measures." However, Decree with the Force of Law No. 430 exempts the administration of the state of emergency governor from legal action concerning acts in the state of emergency region (and provinces neighboring the state of emergency region) where almost all displacements occurred. An exception is made for acts of destruction "without justification" but given the reluctance of the judiciary to investigate abuses committed by the security forces, identified by the European Court of Human Rights,165 it would be easy for the state to use this defense, simultaneously branding villagers as "terrorists" and leaving them in a worse position than if they had not gone to court in the first place. In addition, under the Law on the Prosecution of Civil Servants and other Administrative Officials, no prosecution can be opened against an officer of the state unless it has been authorized by the office of the local governor (who is also the security forces' chief within the province).

A further difficulty in opening litigation is that, as indicated above, officials avoid committing administrative acts to paper that might later form the basis of a court action. None of the villagers Human Rights Watch interviewed had received written documents stating that they could not return to their homes, and the few who had been told that they could return for short periods in order to cultivate their fields had received only verbal permission from the governor and gendarmes. Lawyer Hasip Kaplan told Human Rights Watch that the authorities' efforts to avoid creating a legal trail should not pose an obstacle to litigation: "As for creating the basis for a legal action relating to property rights and establishing the fact that the authorities are not permitting people access to their property, this is simple: it can be done by sending a registered letter.... I am conducting one case over access to property. A family now living in Muş came and I opened a case against the Tatvan gendarmerie. We made the prosecutor carry out a survey. Unfortunately, the case was covered by a recent amnesty, so I have applied to the European Court of Human Rights. If people are stopped from going to their houses by the gendarmes they should open an investigation." But he admitted that this was a course that was going to take nerve and a lot of time: "Of course, this is a difficult thing in the circumstances in which they find themselves. If they do it as a group they draw attention to themselves, but separately the risk is less. It is going to be a seven-year story."166

Villagers encounter numerous barriers to legal action. Zeki Z167 said that a combination of low morale, foreboding, and technical difficulties had prevented him from opening a case:

We have not been to our village since 1994. In September of last year [2000] I went and applied verbally to [the local] gendarmerie commander. He said, "I will not allow you to go back to your village. You will take photographs and apply to the ECHR." Actually, we have pictures of the village in a ruined state, but we have not opened a case. People who have tried to complain about the village have found that the more they complain, the less likely that they will be allowed back to their villages. We know we are not going to get anything out of it and also there is a bit of fear. We opened a case concerning timber that was burned. I applied to get a survey from the forestry office. I told [the official] that we had suffered such a loss and asked what we could do. He asked what name we could give as a guilty party. But since we cannot go [to the village] and cannot give a name, we were not able to open a case.168

The experience of the villagers of mezra S, in Van province, evacuated in 1996, suggests that litigious peasants may be the last to be allowed to return to their homes.

In 1997 we accepted to be village guards and returned to our village. We stayed there until July l999 and then on the basis of a tip-off the security forces raided the village. They burned the village, arrested all the men, seventeen of us, and took us to [the local] Gendarmerie. We were tortured very badly there for seven days. We then spent six months in jail. We were acquitted of the charges and made a complaint saying that our personal freedom had been infringed. We won compensation for our unjust imprisonment. But we gave a petition about the village destruction, and this is at the local governor's office. We got a note from the prosecutor that a survey of the damage could be carried out. This was a point of dispute, because the village guards and soldiers said that the village had not been destroyed. While we were in prison we got the permission to carry out the survey, but could not do it because we were in prison. While we were in prison, we lost our copy of the case papers, and the local governor would not give us our petition. Now our lawyer has said that the case has run out of time, so we could not open another case. Now all the surrounding villages have been opened to grazing and sowing, but we are not allowed. Our headman visited the Gurpinar gendarmerie to try to arrange this. The gendarmes have refused to let us back, but only verbally.169

When Human Rights Watch asked one group of displaced villagers why they had not opened a case against the military, the question provoked considerable mirth. One woman commented: "When my husband was arrested the other week, the gendarmerie reproved him just for contacting the Human Rights Association. You can imagine what they would do if we opened a case."170

Indeed, Human Rights Watch spoke to several villagers who had sought to obtain a remedy through the courts, only to come to regret it. A farmer in Muş province, burned out of his mezra home in 1993, discovered that village guards were using his property: "We want to go back, but they do not let us go. It is the village guards who don't let us back. They are using our land. They have cut down our walnut trees."171 He complained to the provincial governor, the gendarmerie, and even pressed a petition into the hand of Prime Minister Ecevit when he visited the southeast at election time in 1999. There was no official action. In the spring of 2000 he took livestock up to the village to use it as summer grazing, and planted two hundred saplings. Village guards appeared, beat him up, and forced him off the land at gunpoint. He complained to the public prosecutor, but again there was no action. He opened a case at Muş Property Court, and in September 2000 the court formed a survey delegation. The judge, clerk, and the farmer drove out to the village with a military escort of soldiers in a lorry.

When we arrived, there were ten or fifteen village guards, all men. They were all carrying kalashnikovs, and two of them had automatic pistols. They stopped our car in which there was a judge. They got us all out of the car, including the judge. The judge was a woman-she called out to the soldiers, "Save me." The village guards opened fire at the ground and swore at us in Kurdish, saying: "We are responsible for this area. Go and never come back." The soldiers took no action whatsoever. We retreated to a nearby gendarmerie station. The village guards followed us back. By now there were more than a hundred of them. They attacked me with sticks right there at the gendarmerie station. The gendarmes interfered and separated us but did not take our part in any way. As far as we know, the judge made no report on the incident.172

Utterly demoralized, the farmer took no further legal action about the beating the village guards had inflicted upon him, or their occupation of his lands.

A displaced person from another village173 told Human Rights Watch that a group of village guards had occupied his village after it was burned out in 1994. He alleged that later that year, the village guards had sought out one of the displaced in another province and killed him: "I think they wanted to frighten us so that they could hold on to our property. They have taken all the materials of the houses. These are guards from our own villages, people whom we actually knew as neighbors. There are even school friends among them and they are sowing our lands and property."174 He submitted complaints to the Parliamentary Human Rights Commission, the public prosecutor, and the Interior Ministry. In 1997, he brought a prosecution. "I learned that the public prosecutor was calling the village guards one by one and asking them if they had misused their powers. They would reply, according to a friend of mine, that they had not, and as far as I know no action was taken on the case." But after he brought the complaint, the security forces began to target the villager for arrest and torture: "I have been detained repeatedly and imprisoned five times. The muscles in my abdomen were torn when I was suspended by the arms, and I have kidney damage from beatings." The villager, in tears, expressed great fear that his testimony might provoke further reprisals if he should be identified.

165 See, Akdivar and others, Judgment, September 16, 1996, paras 71, 73.

166 Human Rights Watch interview, Istanbul, July 11, 2001.

167 Interviewee's real name withheld to protect his safety.

168 Human Rights Watch interview, Siirt, June 27, 2001.

169 Human Rights Watch interview, Van, July 1, 2001.

170 Human Rights Watch interview, Diyarbakır, June 24, 2001.

171 Human Rights Watch interview, Muş, June 28, 2001.

172 Human Rights Watch interview, Muş, June 28,2001. Interviewee's details withheld for his personal safety.

173 Name and location of village withheld at the interviewee's request.

174 Human Rights Watch interview, Van, June 30, 2001. Informant's details withheld for his personal safety.

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