|EUROPEAN COURT JUDGMENT SHOWS URGENT NEED FOR FACT-FINDING HEARINGS|
IZZET MATYAR V TURKEY (village destruction)
In a troubling judgment on Thursday, the European Court of Human Rights failed to answer key questions in a tragic case of village destruction in Southeast Turkey. The Court’s decision failed to resolve allegations from Kurdish villager Izzet Matyar that his home, property and crops were destroyed in 1993 during the height of Turkey’s war against Kurdish rebels. At a moment when the European Court is considering further changes to “streamline” by accelerating the processing of a backlog of more than 19,000 cases and cutting costs, this judgment, made in the absence of a European Court fact-finding hearing, is a worrying development.
The facts in the Matyar v Turkey case, which were fundamentally disputed by both parties, came no closer to being decided by the Court on Thursday, despite the fact that this case has spent more than eight long years in the European Court system. The case concerns the alleged destruction of the applicant Izzet Matyar’s home and property by security forces operating in Southeast Turkey and the ensuing intimidation – including alleged torture – that Mr Matyar was subjected to by State authorities after he lodged his case at the European Court in 1994. During the operation in question, a seven-year old boy and seventy-year old woman were killed.
Perhaps the most troubling aspect of the 21 February judgment, is the Court’s “hands-off” attitude that is in stark contrast to the approach it has previously taken in similar cases. The Court notes in its judgment that there are significant contradictions in the case. However, in claiming that it was “in no better position, more than eight years after the event, to resolve the inconsistencies in the [parties’] accounts,” the Court appears to be simply refusing to investigate central charges in a case that involves such key Convention articles as Article 3 (prohibition of torture), Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life). In many previous cases, the Court had acknowledged that it simply could not rely on written statements in such instances but needed to hold an investigation hearing to determine the truth.
Because of the fundamental dispute about the facts and the contradictions in the evidence submitted by both parties to the Court, KHRP believes that a fact-finding hearing in which the Court could have heard and cross-examined witnesses would have helped to establish the essential facts in the case. Indeed, in each of the eleven previous European Court cases cited in the decision, one or more fact-finding hearings were held. In one of these cited cases, Mentes and Other v Turkey, a similar case of village destruction in Southeast Turkey in which there were also inconsistencies in evidence, the Court had openly acknowledged that because of a fact-finding hearing, “…Delegates were thus is a position to observe witnesses’ reactions and demeanour and, hence, to asses the veracity and probative value of evidence of both sides.” In the Mentes case, the Court ultimately attached more weight to oral statements and also noted the importance of establishing the “cultural and linguistic context, as well as the Government’s uncooperative conduct.”
In the current case, three of the seven judges found that Turkey had hindered the applicant’s right to petition the Court. Two of these judges gave their reasons in a dissenting opinion that the applicant was questioned about his Strasbourg application by the security forces and the Government failed to explain why. Intimidation of applicants and witnesses in Turkey has been commonplace and is well-documented in the Court’s case law over the last five years. Intimidation plays a key role in cases like this where an applicant is harassed and threatened by authorities after applying to the European Court and offers obvious answers as to why evidence taken as written statements might be contradictory.
Commenting on the case, Kerim Yildiz, Executive Director of the Kurdish Human Rights Project (KHRP), noted, "It is deeply distressing that the Court failed to hold a fact-finding hearing in this case where there were such fundamental disputes between the parties. Time and time again, we have found that when the Court has held fact-finding hearings – as it has done in over 90% of the cases we have brought to them – it has consistently found evidence given by State witnesses not to be credible while applicants’ testimony is taken to be truthful. The judgment in Matyar v Turkey has established an alarming precedent in terms of how the Court deals with cases against Turkey and we will be advising the applicant on his right to appeal.”
NOTES FOR EDITORS:
1. The Kurdish Human Rights Project works for the promotion and protection of human rights within the Kurdish regions of Turkey, Iraq, Iran, Syria and the former Soviet Union.
2. The applicant in the case of Matyar v Turkey submitted his application to the European Commission of Human Rights on 24 January 1994.
3. The applicant alleged violation of Articles 3, 6, 8, 13, 14, 18, 34 (formerly Article 25) and Article 1 of Protocol 1 of the European Convention on Human Rights.
4. The European Court held unanimously that there was no violation of Articles 3,6, 8, 13, 14, 18 and Article 1 of Protocol 1. The Court held by four votes to three that Turkey did not fail to comply with its obligations under Article 34 regarding intimidation. Two judges submitted dissenting opinions on this latter decision noting that the Government had failed to explain why the applicant was questioned by gendarmes about his application to the European Court.
5. Parties have a right to appeal Court judgments within three months (Article 43).6. The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.