PAD AND OTHERS v. TURKEY
Inadmissible
1. The applicants, Mansur Pad, Salim Ibrahim Manesh, Morad Afrasi, Ali Afrasi, Adel Keshavarz, Said Pourmola Borazan and Veysi Eli Mikail, are all Iranian citizens, apart from Veysi Eli Mikail, who is an Iraqi citizen. They all reside in Iran except for Mansur Pad, who lives in Sweden. They were represented before the Court by Mr Mark Muller, Mr Kerim Yıldız and Ms Anke Stock, lawyers practising in London. 2. The application concerns the alleged torture and killing of seven Iranian men from the village of Razgeh in the Margewar province of northwest Iran by Turkish soldiers on 7 May 1999. The victims of the alleged incident on 7 May 1999 were Vahab Pad, Kamfar Pad, Ghazi Afrazi, Changiz Afrazi, Jaader Ibrahim Manesh, Abdulhallkhleq Keshavarz and Vali Ali Hossain. 3. The applicants are, variously, brothers or fathers of the deceased, save for Said Pourmola Borazan, who claims to be a witness to the events and a friend of the victims. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On Friday 7 May 1999, a holiday in Iran, the seven men referred to above and the applicant Said Pourmola Borazan, all from the village of Razgeh, went on horseback into the mountains near their village (towards the Nari valley) to collect wild vegetables and fruit, such as mushrooms and rhubarb. 6. When they reached the top of Mount Baragawr, which was about 500 metres from the Turkish border, they heard the sound of helicopters. Two fighter helicopters circled overhead a few times and opened fire on the men. Said Pourmola Borazan's horse was killed by a rocket fired from the helicopters. The helicopters landed and the villagers were surrounded by at least forty Turkish soldiers. Seven of the villagers hid together under a rock, except Said Pourmola Borazan, who hid 500 metres away from the others and covered himself with vegetation and snow. 7. The Turkish soldiers captured the seven men on the Iranian side of the border but did not find Said Pourmola Borazan. The alleged facts are accordingly based on the latter's eyewitness evidence. 8. The seven men were handcuffed and taken by force across the border, about 300 metres into Turkish territory, in the region of the village of Halana. They were beaten and cut with knives. The soldiers then made them lie down on the ground and shot them dead with machine guns. According to Said Pourmola Borazan, the Turkish soldiers had forced the men to put on Kurdish costumes and placed guns beside them so that they could claim to have killed some terrorists. 9. Said Pourmola Borazan stayed in his hiding place from about 12 noon or 1 p.m. until approximately 9 p.m., by which time it had turned dark. He emerged from the hiding place and looked around to see if anybody was alive. He then ran back to the village of Razgeh. He informed the relatives of the seven men about the incident. The relatives of the victims and Said Pourmola Borazan went into the mountains to recover the corpses. The Iranian authorities, who were informed of the deaths, granted permission for burial. The funerals took place on 9 May 1999. 10. The applicant Sayyed Majid Pad stated that he had become anxious when the men had not returned by the evening of 7 May 1999. Later, they heard that the Turkish soldiers had captured some Iranians. It took people from the village three days to find the bodies and to bring them back to the village. He claimed that his son Kamfar Pad had forty-five bullet wounds and that his elder son Vahab Pad had received one hundred and ten. Further, Vahab's fingers had been cut. He also alleged that Vali Ali Hossein's hands and legs had been broken in several places and his legs cut to pieces. 11. Two or three days after the burial of the bodies, Iranian government officials came to the village. The applicant Said Pourmola Borazan accompanied the officials to the place where the incident had taken place. He reported the incident to the officials. 12. Sayyed Majid Pad stated that the Iranian Deputy Minister of the Interior visited the village after the incident. The Iranian Government then contacted the Turkish Government for an explanation about the events. The Turkish Government admitted their responsibility in relation to the incident and expressed their apologies for it. 13. Meanwhile, Özgür Politika, a pro-Kurdish newspaper published in Germany, and Orumiyeh Message, an Iranian regional newspaper, reported the incident in their editions of 10-13 May and 16 May 1999 respectively. According to Orumiyeh Message, the Ministry of Foreign Affairs of Iran summoned the Turkish Ambassador to make an official protest about the incident and the violation of border agreements between the two countries. The Ambassador was reportedly asked to inform the Turkish Government of the protest and to inform the Ministry of Foreign Affairs of the outcome. 14. The families of the seven men filed complaints with the Iranian authorities. However, they were not informed of any action taken by the latter. A request by the families to obtain a copy of autopsy reports was refused by the Iranian authorities. The families took the matter up with their parliamentary representatives. 15. On 19 May 1999 Mr Ghani Zaneh, an MP for the Orumiyeh province, and Mr Bahaddin Adab, an MP for the Sanandaj province, wrote to the President of Iran, Mr Khatami, requesting that the incident be investigated and followed up through appropriate international channels. They further requested the Ministry of Foreign Affairs and the Ministry of the Interior to investigate the incident and to send a delegation to the region. 16. The applicant Said Pourmola Borazan claimed that since the incident, he had been seriously affected and had attempted to commit suicide on several occasions. As the applicants and the families of the deceased were not informed of any action taken by the Iranian authorities, the first applicant, Mansur Pad, contacted the Iranian Embassy in Sweden with a view to obtaining information about the outcome of the investigation by the Iranian authorities. However, no response was received. 17. The applicants' legal representative also wrote to the Iranian Embassy in London on 25 January 2000. No response was received to that letter either. 18. As no response was forthcoming from the Iranian authorities, on 9 June 2000 the applicants' legal representative wrote to various Turkish authorities requesting an investigation into the incident and the institution of criminal proceedings against the perpetrators of the crime. In particular, he brought the alleged events to the attention of the following authorities: 19. The applicants received no response to their petitions and alleged that the Turkish authorities had failed to carry out an effective and adequate investigation into their complaints. 20. Subsequent to the impugned events, the Turkish Government made several attempts to offer compensation to the applicants through the Iranian authorities. The authorities of the Turkish Government placed the applicants under considerable pressure to accept the compensation, including threats of violence and daily visits from the Iranian authorities. The Iranian Government also imprisoned the eighth applicant on four separate occasions, in an attempt to silence him and prevent him from telling the truth about the incident. Mr Abdel Khalegh Pad, the brother of the deceased victims Vahab and Kamfar Pad, was harassed by the Iranian Government for taking steps to pursue the investigation into their deaths and was forced to flee the country and take refuge in Sweden. 21. Prior to the alleged events in question, the authorities were informed that a terrorist group would be entering Turkey with arms and equipment. Accordingly, the authorities planned a series of operations in order to prevent the entry of this terrorist group into Turkish territory. 22. On 5 May 1999 operations started in the area between ŞemdinliTekeli and the Iranian-Turkish border. 23. On 6 May 1999, at around 10 a.m., the security forces received information to the effect that an armed group, accompanied by animals and mules loaded with arms and equipment, had entered Turkey at a location 1.5 km away from border stone no. 496 in the Zona Stream area. 24. Given that the location in question was usually used by terrorists making their entry into Turkey in violation of border regulations, the security forces, which were carrying out a search operation in the Alan area at the relevant time, arrived at the scene by helicopter. Thereupon, the members of the suspicious group began to run away in various directions and did not stop despite warning shots from the helicopters. Considering that the land could have been mined and that the terrain was rough, the helicopters did not land but opened fire in order to prevent suspects from fleeing. 25. Next day, after taking the necessary security measures, the security forces carried out a search at the scene of the incident. They found thirtytwo dead mules, one G-3 rifle with one cartridge clip and one hundred and thirty cartridges, three binoculars, one laser meter, one sleeping bag, a large quantity of sugar and flour, cassettes and 2,200 sheep and goats. Although no corpses were found at the scene of the incident, the security forces noticed that there were traces of blood leading in the direction of the Iranian border. Therefore, they concluded that some of the terrorists had either been wounded or their corpses had been carried away by others. 26. On 12 May 1999 the Turkish Ambassador to Iran was summoned to the Iranian Ministry of Foreign Affairs to provide information on the killing of seven Iranian men on 7 May 1999 while they were engaged in cross-border trade. From this the Turkish authorities understood that the seven persons of Iranian origin had been killed during the operation in question. However, there was no allegation by the Iranian authorities that the Turkish security forces had violated Iranian borders. Contrary to the applicants' allegations, no cross-border operation had taken place and the security forces had not arrested or detained anybody in the course of the events. 27. Subsequent to the events of 7 May 1999, the Turkish and Iranian authorities held a number of meetings. In order to maintain good relations between the two States, the Turkish Government agreed to pay the amount of compensation claimed by the Iranian authorities, but stated that such payment should not be treated as an admission of the ill-treatment allegations. 28. On 9 June 2000 the applicant's representative in the United Kingdom, Mr Philip Leach, filed a petition with the Şemdinli Chief Public Prosecutor's office asking for information about the state of the investigation into the killing by the Turkish army forces of the applicants' relatives. 29. In a letter of 7 November 2000, addressed to Mr Philip Leach, the Şemdinli public prosecutor, Mr İsmail Sevinç, stated that the Şemdinli District Governor's office had declined to grant leave to bring a prosecution under Law no. 4438. He gave the information that this decision not to prosecute could be challenged before the Van Regional Administrative Court and that the Chief Public Prosecutor's office could proceed with prosecution should the administrative court set aside the District Governor's decision. 30. This letter was served on the applicants, save for Said Pourmola Borazan, by the Turkish Consulate General in Orumiyeh in Iran. The applicants affixed their fingerprints to a document stating that they had received the letter of 7 November 2000 pertaining to the public prosecutor's decision not to prosecute. 31. On 30 May 2002 the Turkish Government transferred 175,000 United States dollars (USD) to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased. This amount was received by the Iranian authorities acting as the representatives of the applicants at the latter's request. The parties signed a protocol which stated: “The parties were unable to carry out a joint investigation to identify the perpetrators of the killing of seven citizens of Iranian Islamic Republic on 6 May 1999 nearby border stone no. 499 at the Turkish-Iranian border. In order to alleviate the grief of the families of the Iranian citizens who lost their lives at the common border, the Republic of Turkey agreed to pay in final settlement USD 25,000 to each family of the deceased, and in total USD 175,000. The Islamic Republic of Iran received the amounts to be paid for delivery to the said families and considered the issue settled in all respects. This agreement will not serve as a precedent for any other border incident. On 30 May 2002, USD 175,000 was delivered to Ambassador Mohammad Hossein Lavasani at a meeting in Ankara...” 32. Meanwhile, the Iranian authorities exchanged a number of letters with the families of the deceased regarding the payment of compensation by the Turkish Government. In a letter from the Department of the Interior to Mr Mirlohi, who was in charge of judicial and parliamentary affairs, it was noted that the Turkish authorities had paid compensation for the killing of seven Iranian citizens. However, it was pointed out that the deceased had been regarded as criminals under the laws of the Islamic Republic of Iran given that they had been involved in trafficking. 33. In a letter from the Deputy Minister and Head of Security to the Department of the Interior it was stated that full payment of the compensation in question to the families of the deceased would encourage law-breaking and lead border inhabitants to commit the offences of trespassing and trafficking. It was therefore decided to pay a maximum amount of 10,000 tomans (USD 10,953) to each family in order to prevent the recurrence of similar crimes in future. A representative of the Governorate of Orumiyeh visited the families of the victims to deliver those amounts. However, the families refused to take the money and told the representative that they had instructed a British lawyer, Mr Philip Leach, to take the matter to the European Court of Human Rights. 34. The Criminal Code in force at the material time made it a criminal offence (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); (b) to subject an individual to torture or ill-treatment (Articles 243 and 245); and (c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450). Under Article 102 of the Criminal Code, taken in conjunction with Articles 243 and 245, a prosecution for an offence of ill-treatment or torture by a public official must be brought within five years. 35. If the suspected authors of these criminal acts were military personnel, they could also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances could be initiated by the persons concerned (nonmilitary) before the competent authority under the Code of Criminal Procedure or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 36. Article 165 of the Code of Criminal Procedure provides that a complainant may appeal against the decision of a public prosecutor not to institute criminal proceedings. The appeal must be lodged, within fifteen days from the date of notification of the decision to the complainant, with the president of the assize court within whose territorial jurisdiction the public prosecutor's activities fall. 37. Section 32 of the Notification Act (Law no. 7201) provides that notification which was not served in accordance with the law may be deemed valid if the person concerned learns of its existence. The date of notification is the date on which that person claims to have learned about it. 38. By section 3 (a) of the Advocacy Act, only Turkish citizens are authorised to practise as lawyers in Turkey.