CASE OF AKDENIZ AND OTHERS v. TURKEY
Violation of Art. 2 with State's liability for death of eleven missing persons;Violation of Art. 2 with regard to failure to conduct an effective investigation;Violation of Art. 3 with regard to the missing persons;No violation of Art. 3 with regard to the applicants;Violation of Art. 5-1;Violation of Art. 13;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
András Baka
7. The facts of the case, particularly concerning events during October 1993 when security forces conducted an operation in the Alaca village area in south-east Turkey, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. 8. The Commission Delegates (Mrs J. Liddy, Mr M. P. Pellonpää and Mr P. Lorenzen) heard witnesses in Ankara from 30 September to 4 October 1997 and on 4 and 9 May 1998. These included the nine applicants; Zekiye Demir, mother of the disappeared Turan Demir; Abdurrahim Yerlikaya, brother of the disappeared Nusreddin Yerlikaya; Selahattin Tutuş, brother of the disappeared Behçet Tutuş; Mehmet İlbey, a villager who witnessed events; Ulvi Kartal, Panak gendarme station commander; Ali Ergülmez, Kulp district gendarme commander; Kenan Sağlam, Bingöl public prosecutor; Bekir Selçuk, chief public prosecutor at the Diyarbakır State Security Court; Lüfti Baran, Vehbi Başer and Hakkı Zümrüt, villagers called by the Government; General Yavuz Ertürk, commander of the Bolu forces during the operation; Pembe Akdeniz, wife of the disappeared Mehmet Sali Akdeniz and Vesha Avar, the mother and sister-in-law of the disappeared Mehmet Şerif Avar and Hasan Avar. 9. The Commission’s findings of fact are set out in its report of 27 October 1999 and summarised below (Section A). The applicants accept the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). 10. The applicants are close relatives of eleven persons who went missing in October 1993. Mehmet Emin Akdeniz is the brother of Mehmet Salih Akdeniz and the uncle of Celil Aydoğdu. Sabri Tutuş is the son of Behçet Tutuş. Sabri Avar is the father of Mehmet Şerif Avar and the brother of Hasan Avar. Keleş Şimşek is the brother of Bahri Şimşek. Seyithan Atala is the brother of Mehmet Şah Atala. Aydın Demir is the brother of Turan Demir. Süleyman Yamuk is the brother of Abdo Yamuk. Ramazan Yerlikaya is the brother of Nusreddin Yerlikaya. Kemal Taş is the father of Ümit Taş. The eleven men disappeared at the time the security forces were carrying out a massive operation around the Alaca village in the region between Kulp-Muş-Lice. 11. Alaca village may be described as an area of dispersed hamlets and houses spread over mountainous terrain, which for administrative purposes was regarded as being in the Kulp district. Its hamlets included Gurnik (where Zekiye Demir, Aydın Demir and Turan Demir lived), Mezire (where Sabri Avar, his brother Hasan Avar and son Mehmet Şerif Avar, Bahri Şimşek and Mehmet Şah Atala were said to live), Pireş (where Abdo Yamuk lived), Kepir and Şuşan. Nearby but in the Muş district was Kayalısu village, including Licik hamlet (where Ramazan Yerlikaya and Abdurrahim Yerlikaya stated that they lived with their brother Nusreddin; Sabri Tutuş also said he lived there with his father Behçet Tutuş; Selahattin Tutuş lived there). 12. Alaca village was not far from the Şen plateau (Şenyayla), where some people led a nomadic style of life and where there were fruit and walnut trees (Mehmet İlbey stated that he lived there and Mehmet Salih Akdeniz was stated to have pastures there, living a nomadic life with other members of his family). The nearest gendarme station was at Panak, which was on the Kulp-Muş road. Many of the applicants and members of their families were also living in either Muş or Kulp, the two nearest large towns. Some distance to the south of Alaca was Inkaya of which Mehmet Salih Akdeniz was the muhtar. 13. In 1993, terrorist activity was a major concern in this area. There were several PKK bases in the vicinity of Alaca. Ulvi Kartal, the commander of Panak station, stated that his station had been attacked several times. The Kulp district gendarme commander Captain Ali Ergülmez stated that there was intensive terrorist activity in the Kulp area. General Yavuz Ertürk of the Bolu brigade described the area as being the backbone of the PKK activities, and explained that his forces were involved in many operations there. An undated final operation report (Commission report, paragraphs 243-245) described the Şenyayla plateau as the largest training area for the PKK. According to this report, it had fortified defences and enjoyed the support of 90% of the hamlets and villages in the region, the villagers from which supplied the PKK with shelter and food. Villagers also used to go into the towns to buy food for the terrorists. 14. By October 1993, many people from in and around Alaca village had left or were about to leave either due to the difficulty of life in the remote mountainous area or due to the security situation. The Commission rejected the evidence of the gendarme witnesses that the area had already been abandoned. The weight of the evidence showed that a significant number of families were still living there, while other villagers from this area continued to move to and from the mountains to the town seasonally. Some, like Mehmet Salih Akdeniz and Pembe Akdeniz, were nomadic herders. 15. From 8 October 1993, the Bolu brigade assisted by gendarmerie forces conducted a massive military operation. On the evidence of the commanding officer, General Yavuz Ertürk, this involved 2,500 soldiers and helicopters. Its purpose was to converge soldiers from bases in the Kulp and Muş districts on the Şenyayla area to apprehend terrorists and locate their bases, stores and weapons dumps. The operation lasted until 24-25 October 1993. The Government and the applicants were at variance however as to the events which occurred concerning the villagers during the operation. 16. The Commission noted that the conflict lay between the Government’s assertion, supported by the security force witnesses, that the missing persons had been kidnapped by the PKK dressed as soldiers and that the families in introducing the applications were acting as the pawns of the PKK, motivated by fear or a desire to obtain financial gain; and the assertion of the applicants and their families that their relatives had been detained by soldiers during the operation and last seen being taken away by helicopter. The credibility and reliability of the witnesses was the crucial issue. 17. The Commission, relying on its Delegates, found the applicants and the members of their family and the villager Mehmet İlbey were honest and convincing in the way they gave their evidence. Some were confused about details, in particular about dates, which was not unexpected due to the lapse of time. Some of the women witnesses and Sabri Avar were simple, unsophisticated individuals who were answering sincerely to the best of their ability. The Commission commented that all the applicants showed deep and abiding distress at the uncertainty which they had suffered after the disappearance of their relatives, several making appeals that they might at last be told the fate of their family members. Their evidence was strongly consistent with supporting documentary material, including petitions made by the families shortly after the events and the reliability of this considerable weight of evidence was confirmed as more witnesses were heard. In significant aspects, it was also substantiated by the villager witnesses brought forward by the Government. 18. Conversely, the Commission Delegates received a negative impression from the gendarme witnesses, Ulvi Kartal and Ali Ergülmez. Their evidence, which included the denials that there was any operation in the area at the time, was shown to be unreliable when the General Yavuz Ertürk informed the Delegates that there was such an operation and indicated that both would have been aware. While General Ertürk impressed as a forceful and competent witness, his evidence was given under circumstances which diminished its weight, as the Government refused to allow the applicant’s representatives to be present when he gave evidence to the Delegates. He showed reluctance to address the factual concerns of the Commission, avoiding precise answers. It found doubts arose as to the reliability of his evidence on the treatment of the villagers, the use of helicopters and the claim that no soldiers went into the villages or hamlets in the Alaca area. It examined the alleged points of inconsistency in the applicants’ versions of events put forward by the Government. It found that some differences in detail were explicable by the lapse of time and that they were not of such a nature as to undermine the applicants or the witnesses’ credibility. Their accounts were essentially consistent, credible and reliable. 19. On that basis, the Commission found as follows. 20. Soon after the operation started, the soldiers began collecting villagers together, for use as guides to show them the location of settlements and PKK shelters and stores, for questioning about involvement with the PKK and for possible transfer to detention elsewhere. 21. Villagers were first taken into custody on or near the Şen plateau on 9 October, the soldiers arriving at Gurnik, Mezire and Licik on about 10 October. Some villagers were looked for by name. Others were gathered generally for an identity check. The soldiers set up a camp at Kepir, a hill close to the hamlet of Gurnik, where helicopters landed, inter alia, to bring in supplies. There were other camps set up, one or two near Kayalisu and Licik and another near the Muş district boundary, where villagers were held for some days. 22. At the commencement of the operation, villagers who were living up on the Şenyayla plateau witnessed planes carrying out bombardment. Mehmet Salih Akdeniz was taken by soldiers, apparently to act as guide. About a day or two later, Mehmet Salih was being held by soldiers at the camp which had been set up at Kepir. 23. On or about 10 October 1993, Celil Aydoğdu was apprehended by the soldiers. It was unclear exactly where this occurred between Gurnik and the Şen plateau. However, he was seen by a number of persons being held shortly afterwards under guard in Kepir. 24. On or about 10 October 1993, soldiers arrived at the hamlet of Mezire, about an hour from Gurnik. Vesha Avar saw them take her brother-in-law Hasan Avar out of his house. On the same day, Mehmet Şah Atala was also picked up by the soldiers at Mezire, who had been asking for him by name. The soldiers told his family that Mehmet Şah would show them around and make a statement. Abdo Yamuk, Süleyman Atala, Bahri Şimşek and Şirin Avar were also picked up at Mezire. 25. Ali Yerlikaya was apprehended at the beginning of the operation at Licik being taken to Pireş, half an hour away, where he was joined by Mehmet Şah Atala, Bahri Şimşek and Ümit Taş. The next day, on or about 10 October 1993, Ali Yerlikaya accompanied the soldiers who took Nusreddin Yerlikaya, Abdurrahim Yerlikaya and Medeni Yerlikaya from their homes at Licik, Kayalısu and brought them back to Pireş. The same day Hasan Avar and Abdo Yamuk were brought by soldiers to Pireş, where a group of 20 to 30 people were being held. They were kept overnight at a place variously described as being at the cemetery, or near Pireş or Şuşan hamlet. They were questioned and tied up during the night. The next morning, on 11 October, a helicopter landed and a person arrived with his face covered. Some of the villagers thought to have recognised this man when the wind blew his scarf aside. His identity was not established however. A selection process was carried out, with identity cards being handed in and inspected. All the villagers but nine were allowed to go. Mehmet Şah Atala, Abdo Yamuk, Bahri Şimşek, Hasan Avar, the three Yerlikaya brothers, Ali Yerlikaya and a young man, a stranger to the village said to be called Ümit Taş, were placed on a helicopter and flown to Kepir that day. 26. Behçet Tutuş and Selahattin Tutuş were apprehended by the soldiers in Gurnik on their way to their village Licik from Muş, shortly after the operation started. Turan Demir and Mehmet Şerif Avar were with them, having come back from Muş on the same minibus. The date when they were detained was unclear. However, on an assessment of the varying accounts, the Commission found that the group of Turan Demir, Behçet Tutuş, Mehmet Şerif Avar and Selahattin Tutuş were brought to Kepir before the group from the cemetery at Pireş, on or before 11 October. 27. Shortly after the operation began, Ramazan Yerlikaya was detained with others near their village of Kayalısu. These villagers were held on a plateau area near the village for nine days. During that time, checks were made on the radio as to whether any of them were wanted. During this time, they were tied up. On about 19 October, he and a relative were taken by helicopter to Muş where he was held in a basement with over a hundred other people, including Süleyman Yamuk, who were villagers from Kayalısu and other places in Muş. He was released after about eight days. 28. At a time unspecified after the operation began, Sabri Tutuş and several of his male relatives were at their home in Licik when the soldiers took them. They were held by soldiers for about nine days in a wood near Licik before being released. 29. On or about 13 or 14 October, Süleyman Yamuk was detained by soldiers in or near Pireş. He was taken the same day to Muş by helicopter where he was detained for six to seven days. Mehmet İlbey was also apprehended with several others when he arrived in Gurnik on 13 October. They were taken up to Kepir and their ID cards collected. A man with his face covered seemed to inspect them. By this date, the eleven men who were later to go missing, were being held at Kepir. 30. Ümit Taş, who was sixteen-seventeen years old, was not from the Alaca village. He is known to have been detained by the police when he arrived in Kulp on or about 25 September. His brother Mehmet Tahir arrived in Kulp, paying visits to him. According to the official documents provided, in particular a release statement of 30 September 1993 apparently bearing Ümit Taş’s thumbprint, he ceased to be in police custody at that date. According to the evidence of his father, the applicant Kemal Taş, Mehmet Tahir arrived to visit him but was told by the police that he had been released. When Ümit did not arrive home however, Mehmet Tahir and then the applicant went back to Kulp to discover what had happened to him. 31. The applicant alleges that in making enquiries he was told that his son had been handed over to the forces from Bolu who were on an operation. He also heard from nomads that his son had been seen tied up outside the Panak station and that from there he had been taken to Gurnik. When he visited Gurnik, people there told him that they had seen his son with the other detainees held at Kepir. 32. The evidence before the Delegates concerning Ümit Taş showed that he was not known by any of the applicants and witnesses. Several witnesses referred to seeing a person, not from the village, being detained with the other ten. Others only knew of the name Ümit Taş when his father came looking for him after events. Abdurrahim Yerlikaya gave eye-witness evidence that he saw Ümit Taş, detained with them overnight at Pireş and taken with them to Kepir. However, he did not talk to the young man himself. He stated that Mehmet Şah Atala and Abdo Yamuk who were with the young man, told him that his name was Ümit Taş. 33. The Commission observed that there were difficulties in the evidence concerning the identification of Ümit Taş, in particular the differing ages estimated by the persons who saw him. However this could be accounted for, inter alia, by the fact that ill-treatment or living rough over a period of time could change a person’s appearance dramatically. In light of the firm identification of Abdurrahim Yerlikaya, supported by the evidence of Keleş Şimşek who had heard from his brother Bahri that Ümit Taş was in the group of eleven and the written statement of 25 December 1993 by Ali Yerlikaya naming Ümit Taş as a young boy caught in Kulp who had been held with him, the Commission was satisfied that these elements were sufficiently coherent and consistent to establish beyond reasonable doubt that he was the eleventh detainee. 34. At Kepir, the villagers were held in different groups, to which different restrictions applied. Eleven of them (the persons who later disappeared) were kept in one group. They were tied up, though they were untied for visits, or when they ate or relieved themselves. Four witnesses (Pembe Akdeniz, Vesha Avar, Selahattin Tutuş, Mehmet İlbey) however stated that Mehmet Salih Akdeniz, though of this group, was not tied up. Other detainees – Selahattin Tutuş, Mehmet İlbey – were held in a group of about 30-50 villagers, who were not tied up. They were kept in the camp during the day and sent to houses in Gurnik to spend the night. Abdurrahim Yerlikaya and Ali Yerlikaya, who were tied up, were held with or near the group of eleven. 35. As concerning the way in which the eleven men were treated at Kepir, the Commission found that: – the eleven persons, save Mehmet Salih Akdeniz, were tied up (Vesha Avar described that her relatives’ toes were swollen as a result); – they were kept outside during the day and at night (Mehmet Şah Atala was seen to be flushed, shaking, his lips chapped and to be affected by the cold); – they were questioned by the soldiers; – they were in a state of some distress and apprehension (Turan Demir was described as hungry, thirsty and miserable; Mehmet Salih Akdeniz told others that he was in a terrible state and feared that they were going to be killed; Mehmet İlbey’s evidence referred to the detainees being in a miserable state, having gone hungry and been tied up for a week); – Behçet Tutuş and Nusreddin Yerlikaya were taken from the group by helicopter apparently to act as guides or show locations; – Abdo Yamuk was taken away from the group for a day or two and on his return was seen to be limping and needing the support of soldiers to walk; – Ümit Taş was also taken away to Şen pastures to act as a guide; – money (20 million TRL) was taken from Behçet Tutuş by the soldiers; 36. There was insufficient evidence to establish that the eleven men were subject to torture under interrogation. There was some evidence of beating of the detainees (Selahattin Tutuş witnessed his brother Behçet being beaten), but the nature and extent of the beating was not apparent. 37. By a date about 16-17 October, all the detainees at Kepir, save eleven, had been released. Descriptions were given of a selection process where names were called out and those persons released. Some of the remaining detainees were seen being placed in helicopters. The Commission observed that the timing of this event is problematic, the evidence of the principal witnesses being vague or confused on this point. The weight of the evidence placed the last sighting of the remaining eleven detainees at about 17-19 October but this can only be regarded as approximate. 38. The eye-witness evidence as to whom was seen being taken away was also not clear. Zekiye Demir referred to seeing Turan and his friends being put on the helicopter but that it was too far to see. Vesha Avar referred to ten persons. She did not know Ümit Taş and if he was there she was not in a position to identify him. She stated specifically that she could see Hasan and Mehmet Şerif Avar being put on the helicopter. The Commission noted that the applicants and the other witnesses appeared to associate the placing of detainees on the helicopter with their missing relatives largely because some were identified by the women and also on the basis that these eleven persons were the only detainees remaining at Kepir after the others such as Abdurrahim Yerlikaya and Mehmet İlbey were released. They had also been held together as a distinct group and were no longer there after the operation ended. While this provided strong circumstantial evidence, the Commission was not satisfied that it could be established, to the necessary standard of proof, that the eleven missing persons were all placed on the helicopters, in particular Ümit Taş, though it was satisfied that at least some of the eleven detainees were. There was no evidence that any of these persons were seen after the operation ended on or about 24-25 October. The Commission found that when they were last seen they were detained under guard by security forces. 39. The applicants approached numerous authorities in the region, sometimes alone or in small and varying groups, seeking to find out what had happened to the eleven missing men from Kepir. i. Mehmet Emin Akdeniz wrote a petition to the State Security Prosecutor on 1 and 8 November 1993. He went to the Bingöl public prosecutor on 18 January 1994, who spoke on the phone with a major. In Diyarbakır, he contacted Mehmet Gören a friend of the regiment commander. He also went to Ankara where, on 23 November 1993, he saw the Prime Minister and the Minister for Human Rights. He contacted the Minister of the Interior and on 27 November went back to see the Minister for Human Rights. He went to see the deputy regional governor with seven others. He went to Kayseri, submitting a petition to the prosecutor and enquiring at the prison. ii. Sabri Avar went to the police in Diyarbakır, accompanied others to see the Kulp district governor and petitioned the Muş public prosecutor. iii. Selahattin Tutuş went to the Kulp public prosecutor who sent him to Diyarbakır. He visited the Provincial Governor’s office. Sabri Tutuş went to see the Kulp District Governor with Süleyman Yamuk and Sabri Avar and to enquire at the Kulp gendarmerie. He also went to see the Diyarbakır provincial governor and public prosecutor. iv. Seyithan Atala went first to the Diyarbakır State Security Court and returned repeatedly with petitions. He checked the prisons regularly. He saw the Emergency Area Assistant Governor and went with Mehmet Emin Akdeniz and Aydin Demir to the provincial gendarme headquarters, where they talked to a lieutenant colonel. On 27 December 1993, he went with Süleyman Yamuk and Sabri Avar to Kulp, where they saw the public prosecutor, the governor Kadir Koçdemır and then the Kulp gendarme commander. In light of what the governor said about the involvement of the Bolu forces, he went to Bolu with Süleyman Yamuk in an attempt to see General Yavuz Ertürk. v. Keleş Şimşek approached the authorities in Diyarbakır. vi. Aydın Demir went to the Diyarbakır gendarmerie and to the Governor. vii. Kemal Taş went to the district governor, public prosecutor, police and gendarmes in Kulp, the commando unit, police and public prosecutor in Elazıg, and various authorities (including prisons) in Bingöl, Muş, Erzurum and Erzincan where a woman prosecutor suggested he try Diyarbakır. He submitted three or four petitions to the Diyarbakır public prosecutor. viii. Süleyman Yamuk went to the public prosecutor in Bingöl, the Diyarbakır State Security Court, the District Governor in Kulp (with Seyithan Atala, Sabri Avar and Kemal Taş) and to Bolu with Seyithan Atala. He submitted two petitions to the Ministry of Justice. ix. Ramazan Yerlikaya visited the Governor’s office in Diyarbakır and the State Security Court. On 27 December 1993, he went to the Governor’s office in Kulp with Seyithan Atala, Süleyman Yamuk and Sabri Tutuş and also to the authorities in Muş and Diyarbakır. 40. As far as may be deduced from the documents, the official steps taken by the authorities were as follows: 41. In respect of the petition of 5 October 1993 by Mehmet Ali Taş concerning Ümit Taş, the public prosecutor made enquiries from the Kulp district gendarme command and to the Security Directorate, the latter of which indicated that Ümit Taş had been released from their custody. 42. In respect of petitions of 2 November 1993 by Seyithan Atala (concerning Mehmet Şah Atala), 5 and 8 November 1993 by Mehmet Emin Akdeniz (concerning Mehmet Salih Akdeniz and Celil Aydoğdu), 26 November 1993 by Hüsnü Demir (concerning Turan Demir) and 12 December 1993 by Keleş Şimşek (concerning Bahri Şimşek) to the Diyarbakır State Security Court (“SSC”) prosecution, manuscript notes indicated that the records had been checked and the names not discovered. Aziz Atala’s petition of 17 December 1993 (concerning Mehmet Şah Atala) and Hüsnü Demir’s of the same date (concerning Turan Demir) met the same response verbally. 43. In respect of a petition of 12 November 1993 by Mehmet Emin Akdeniz concerning his father to the Bingöl chief public prosecutor, a hand-written note indicated that the public prosecutor had checked with the gendarmes and police but no record of the name was found. 44. In respect of a petition of 14 December 1993 by Mehmet Emin Akdeniz and Aziz Atala, which mentioned all eleven missing persons, to the Kayseri State Security Court prosecutor, a manuscript note indicated that the public prosecutor made an enquiry of the Kayseri prison authorities. 45. Following Mehmet Emin Akdeniz’s visit to Ankara where he complained to various ministers in or about November 1993, an enquiry was made by the Minister of State to the Ministry of the Interior, to which, on 20 January 1994, the gendarme general command replied that Mehmet Salih Akdeniz and Celil Aydoğdu had not been detained by the provincial gendarme command. 46. Following a petition of 15 December 1993 by Kemal Taş to the Kulp public prosecutor, which requested an investigation be carried out into Ümit Taş’s whereabouts, the public prosecutor took a statement of the same date and a note on the petition indicates that enquiries were made of the district gendarmerie and Security Directorate. 47. Following a petition of 22 December 1993 from Süleyman Yamuk, the Kulp district governor replied on 18 April 1994 that Abdo Yamuk, Turan Demir, Behcet Tutuş, Bahri Şimşek and Mehmet Şah Atala had not been detained by Kulp security forces and referred to not having any information as the operation had concluded in the Muş province. 48. In or about December 1993-January 1994, the Diyarbakır SSC public prosecutor made a request to the Kulp public prosecutor for information relevant to the complaints about the disappearance. 49. On the petitions submitted by Sabri Tutuş and Süleyman Yamük on 27 December 1993 which both refer to their relatives and mention that 10 other people were missing, it appears from the noted number 1993/130 prel. that the Kulp public prosecutor opened an investigation. Ramazan Yerlikaya, Sabri Avar and Seyithan Atala made petitions at the same time. The following steps then ensued: – On 28 December 1993, the Kulp public prosecutor requested the Diyarbakır chief public prosecutor to provide information about the relatives of seven of the applicants’ missing relatives (namely, the relatives of the five applicants who have submitted petitions on 27 December and Ümit Taş); – The Diyarbakır SSC prosecutor replied on 19 January 1994 that the seven persons’ names were not in the records. 50. On 31 January 1994, the Kulp public prosecutor issued a decision of withdrawal of duty in respect of the seven missing relatives, referring the case to the Diyarbakır SSC on the basis that they had been kidnapped by the PKK. The grounds for this conclusion were not apparent. The petitions in the file at this point, and the statement of Kemal Taş, referred to the missing persons having disappeared while in the custody of the security forces. No step had been taken by the Kulp public prosecutor beyond enquiring whether their names had been registered as detained by the Kulp gendarmerie and police or appeared in the Diyarbakır SSC records. 51. From 31 January 1994, the investigation was transferred to the Diyarbakır SSC prosecutor. The following steps were taken under investigation no. 1994/940: – On 15 February 1994, the SSC Chief Prosecutor instructed the Kulp public prosecutor, Kulp district gendarme command, Diyarbakır Security Directorate and Diyarbakır provincial gendarme command to report on any information, documents or confession etc relevant to the investigation every three months; – The petitions dated 9 March 1994 from Hüsnü Demir, which referred to Turan Demir and 10 other missing persons and from Seyithan Atala, which referred to Mehmet Şah Atala and 10 other missing persons was added to the file. – Enquiries were made to the local gendarme station at Panak. A report dated 10 March 1994 was issued by gendarme sergeant Ulvi Kartal referring to the disappearance of seven persons and stating that he had no information and that the search was ongoing. In his testimony to the Delegates, Ulvi Kartal stated that since the area was not inhabited he had not needed to make any enquiries in order to answer the petition. The petition however was counter-signed by Vehbi Başer, the muhtar of the village, who before the Delegates had confirmed that there was an operation in the village following which eleven persons had disappeared. – On 10 March 1994, the Diyarbakır provincial gendarme command requested an investigation into the alleged disappearance of eleven named persons and for a report to be made urgently. The letter referred to complaints having been made to the European Commission of Human Rights. The Diyarbakır SSC prosecutor replied on 17 March 1994 that the men had not been detained. – On 18 April 1994, a request was made by the Ministry of Justice (General Directorate of International Law and Foreign Relations) to the Kulp prosecutor for an investigation to be made into allegations that eleven named persons had disappeared. In response, the Kulp prosecutor sent back on 11 May 1994 a request for information from the Diyarbakır SSC as to whether the men had been detained under their jurisdiction and sent another brief enquiry to the Kulp gendarme district command which received the same brief reply that the men had not been detained (25 May 1994). By letter dated 6 June 1994, the Kulp prosecutor stated an investigation file had been opened no. 1994/50 concerning the missing persons, though only 5 names were mentioned. – On 12 August 1994, the Diyarbakır Chief Prosecutor requested, on prompting from Ankara, that the Kulp public prosecutor take statements from Mehmet Emin Akdeniz and Kemal Taş, as well as any other witnesses. This request seemed to lead to further action by the Kulp public prosecutor: a request on 18 August yet again for information as to whether the men had been detained to be provided by the Kulp district gendarme command, as well as a similar letter to the Security Directorate and widening the enquiry this time to the Kulp district mechanised infantry battalion. – On 22 August 1994, the Diyarbakir SSC prosecution took statements from Aydın Demir, Aziz Atala and Sabri Tutuş, which all maintained that the security forces were responsible for the disappearance of their relatives. Aziz Atala named the Bolu forces. – On 25(8) August 1994, the Kulp Security Directorate provided information about Ümit Taş’s detention in September 1993. – On 28 October 1994, a statement was taken from Mehmet Emin Akdeniz by a Diyarbakır public prosecutor. He referred to Pembe and Zekiye Akdeniz as having seen the eleven missing persons being taken away. He also mentioned the Bolu forces. – On 4 November 1994, the Kulp public prosecutor sent a reminder to the Kulp gendarme division command for information to be provided. – On 9 November 1994, the Kulp district gendarme command enclosed a further investigation report dated 1 November 1994 from the Panak commander Ulvi Kartal which stated that an investigation had been carried out into the possibility of a kidnapping but no information had been obtained. However, as stated above, Ulvi Kartal informed the Delegates that he in fact took no steps to investigate. – On 12 December 1994, a statement was taken from Kemal Taş by the Kulp public prosecutor. He, inter alia, named a shepherd from Yakut called Çesim as having given information that his son had been seen with the soldiers in the operation at Alaca. – On 19 December 1994, a statement was taken from Mehmet Tahir Taş by a public prosecutor, which referred to his brother having been held by Kulp gendarme commandos and then in Alaca. – On a date unspecified a statement was taken from Zeki Akdeniz by the same public prosecutor that took the statements of Kemal Taş and Mehmet Tahir Taş (above). This statement refers to a possibility that the PKK kidnapped the missing persons though also said that the people went missing after an operation. – On 27 December 1994, the Kulp public prosecutor asked the Kulp gendarmes for Pembe and Zekiye Akdeniz to be brought to make a statement. A reminder was sent on 23 February 1995. – On 3 July 1995, the Kulp public prosecutor asked for the gendarmes to make enquiries about Çesim, a villager from Yakut. – On 3 August 1995, the Diyarbakır public prosecutor requested the Kulp public prosecutor to summon Mehmet Emin Akdeniz, Kemal Taş and Ramazan Yerlikaya for their statements to be taken. A request was made the same day to the security directorate for Sabri Tutuş, Aydın Demir and Seyithan Atala to be brought. On 11 August 1995, Muş public prosecutor was making similar requests in respect of Sabri Avar and Süleyman Yamuk. – On 11 September 1995, the Diyarbakır Security Directorate provided information about certain of the applicants, and referred to the fact that Süleyman Atala and Hüsnü Demir had been brought in to make statements. – On 19 September 1995, the statement of Sabri Tutuş was taken, which referred to the military operation which he had witnessed in the village. – On 26 September 1995, the statement of Kemal Taş was taken by the Diyarbakır SSC Chief Prosecutor. – Following further requests for Mehmet Emin Akdeniz to be brought (20 September 1995), the Diyarbakır public prosecutor was informed the same day of information provided by the Kulp gendarmes on 18 August as regarded his address. A statement was then taken from him on 3 October 1995. It referred to the women as being eye-witnesses. – On 23 October 1995, the Kulp public prosecutor instructed that Pembe Akdeniz, Zekiye Akdeniz and the shepherd Çesim be brought. At about the time, he was also making enquiries about Vehbi Başer the current muhtar of Alaca. He requested that Diyarbakır prosecution return the investigation file to enable him to pursue matters. The file was provided on 4 December 1995. – On 11 December 1995, the Kulp prosecutor made requests for Hüsnü Demir, Çesim, Misbah Akdeniz, Medine Akdeniz, Pembe Akdeniz and Zekiye Akdeniz to be brought. Further reminders were sent for Hüsnü Demir on 5 August 1996 and for the latter two witnesses on 16 April 1996. – On a date in April 1996, a statement was taken from Çesim Boskurt, who denied having witnessed any events. On 29 May 1996, a statement was taken from Pembe Akdeniz in which she confirmed witnessing her husband being detained by soldiers during an operation. By a report of that date, it was indicated that Zekiye Akdeniz had died. – A statement was taken on 9 August 1996 from Mizbah Akdeniz which gave no substantial information. – On 8 April 1997, a second statement was taken from Mizbah Akdeniz, which this time referred to the operation and the Bolu forces taking his father as a guide. On 25 April a statement was taken from Aydın Demir. 52. On 29 April 1997, the Diyarbakir SSC Chief Prosecutor issued a decision of withdrawal of jurisdiction, in which it concluded that there was an absence of evidence that the PKK kidnapped the missing persons, named the security forces as the defendants and noted that the complaints involved an alleged disappearance in custody. The file was accordingly sent back to the Kulp public prosecutor, who on 20 June 1997 joined it to the ongoing file at Kulp. The only step taken by the Kulp public prosecutor according to the documents provided to the Commission was on 8 September 1997 to request the Kulp police and gendarme authorities to provide information as to any developments and whether the missing persons had been found missing or dead. 53. The Commission observed that a number of reports were made to the authorities in Ankara on the progress of the investigations. On 30 June and 24 August 1995, Bekir Selçuk, Diyarbakır SSC Chief Prosecutor reported to the Ministry of Justice, that the missing persons had probably been kidnapped by the PKK and that no concrete evidence had been obtained. The second letter claimed also that the applicants had denied that they were eye-witnesses and failed to give the names of the women who were alleged to have witnessed events and that there was no evidence that an operation took place in Alaca or that people were detained. These two letters ignored the fact that Zeki Akdeniz stated that he saw an operation take place, that the statements of Sabri Tutuş, Aziz Atala and Aydın Demir gave details of an operation in the village and that in his statement of 28 October 1994 Mehmet Emin Akdeniz had named Pembe and Zekiye Akdeniz as eye-witnesses. 54. The letter of 31 December 1994 from the General Gendarmerie Headquarters to the Ministry of Foreign Affairs denied that any operation had occurred at Alaca village area on 9 October 1993 and omitted to refer to the operation conducted on the nearby Şen plateau by the Bolu forces. 55. The authorities took steps to contact all the applicants concerning their applications, and did question all of them save Seyithan Atala. In October 1995, Mehmet Emin Akdeniz was summoned by the State Security Court (SSC) Chief Public Prosecutor, being held in custody for two nights beforehand by the police. He described how the prosecutor claimed that it was other people bringing the application rather than himself and how the prosecutor was angry when he maintained that he had applied to Europe after applications in Turkey had proved futile. In June 1997, Sabri Avar was summoned by the Muş public prosecutor who asked if he had complained against the State and why he had applied to the Human Rights. In or about 1996, Keleş Şimşek was summoned by the public prosecutor in Mersin, who asked him why he had applied to European Human Rights Commission. In August 1994, Seyithan Atala’s brother Aziz was summoned during his absence on military service and his statement taken by the Diyarbakir public prosecutor, who referred to documents from the Ministry of Justice and enclosed petitions. On 19 September 1995, Sabri Tutuş was questioned by the SSC Chief Prosecutor. He recalled that he was questioned about what had happened in the village. Though he did not remember being questioned about his application, he was asked to confirm his signature on his statement to the Human Rights Association (“HRA”) which was part of his application. He had also given a statement to the Diyarbakır public prosecutor on 22 August 1994. On 25 April 1997, Aydın Demir was held overnight by the police and, after the documents relevant to his application were read out, questioned by the SSC Chief Public Prosecutor about whether he had applied to the HRA and to Europe. Kemal Taş made a statement to the Chief Public Prosecutor on 26 September 1996, from which it appears that he was asked about his statement to the HRA and whether he had signed a power of attorney for the lawyers representing him in this application. In or about 1996, Süleyman Yamuk was summoned by the Tarsus public prosecutor, who said that he had complained against the State and to whom he explained why he had made a petition to Europe. Ramazan Yerlikaya also recalled being summoned by a prosecutor who claimed that he had complained against the State, in or about 1998. 56. In the statements recorded as taken from Aziz Atala, Sabri Tutuş, Kemal Taş, Mehmet Emin Akdeniz and Aydın Demir, there were references to correspondence and enclosures from the Ministry of Justice (General Directorate of International Law and Foreign Relations) or to documents from the Commission being read out. When questioned about this during the witness hearings before the Commission Delegates, the Diyarbakır SSC Chief Prosecutor stated that he did not have copies of the applicants’ petitions to show them but only correspondence from the Ministry. The Commission rejected this denial. It observed that he considered it his duty to verify the signatures on applications to the Commission. Sabri Tutuş recalled being asked to do so. It found that these four applicants, and, in the case of Seyithan Atala, his brother Aziz, were questioned about their applications on the basis of the documents submitted on their behalf to the Commission. 57. A military operation was carried out in October 1993 in the Kulp-Muş-Bingöl triangle of Diyarbakır province. It was carried out by the Bolu brigade under General Yavuz Ertürk. No aeroplanes were used during the operation and only a limited number of UH-1 helicopters were made available, taking a maximum of 6 persons. Persons detained during the operation were transported on foot to Muş. 58. The authorities carried out investigations promptly into the alleged disappearance of the eleven persons. The applicant Kemal Taş was informed that his son had been released. The petitions lodged by the other applicants asked only for information and did not contain denunciations. The petitions were only made in December 1993 in any event, without any explanation for why they waited so long to take action. 59. The applicants’ assertions of security force involvement in the detention and disappearance of their relatives were totally unsubstantiated. If thousands of soldiers were involved, it would have been expected that they would have talked about when leaving their military service. 60. All these factors indicated that it was probable that the persons were kidnapped by the PKK. 61. The Government provided a batch of documents relating to the investigation by the Kulp public prosecutor from 1996-2000, some of which were already provided to the Commission. They have not made any submissions as to the significance of these documents or as to whether they contradict any findings by the Commission. 62. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 63. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants). 64. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 65. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. 66. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants (sometimes referred to as the Official Conduct Act), which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 67. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 66 above) also applies to members of the security forces who come under the governor’s authority. 68. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 64 above) or with the offender’s superior. 69. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 70. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 71. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 71 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 72. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).