CASE OF MENTEŞE AND OTHERS v. TURKEY
Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 2 with regard to deaths;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 8 with regard to deaths;No violation of Art. 5;No violation of Art. 3 and 9 and P1-1 with regard to alleged destruction of homes;Not necessary to examine Art. 6-1;Violation of Art. 13 with regard to deaths;No violation of Art. 13 with regard to alleged destruction of homes;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
10. The applicants, who were born in Lice, currently reside in Diyarbakır. 11. The facts of the case are in dispute between the parties. 12. On the night of 12 May 1994 and in the early hours of 13 May 1994, the applicants heard gun fire coming from outside their village of Yolçatı, located in the administrative jurisdiction of the Lice District within the province of Diyarbakır. The firing continued until approximately 5 a.m. Subsequently, soldiers entered the village and told all the villagers to gather at the village mosque. 13. The applicants alleged that the following took place: 14. On 12 May 1994 the applicant was at home with his family. During the night he heard gun fire coming from outside the village. In the early hours of 13 May his son, Kamil Menteşe, left to take the livestock out of the village. The soldiers stopped his son, checked his identity card and released him. 15. When the soldiers entered the village, they ordered all the villagers to gather near the village mosque. They asked them whether there were any PKK members in the area and whether they had been giving them food. The villagers replied that PKK activities were frequent in the area. Thereafter, the soldiers started to burn the houses in the village. At that time, the applicant’s son returned to the village and was taken away by the soldiers together with three other villagers. The applicant, together with the remaining villagers, was sent away from the village. After two days, they were allowed to go back to the village. When they came back, they saw that the village had been burned down. The next day, the applicant went to the Lice public prosecutor and to the military authorities to inquire into his son’s whereabouts. However, he received no reply. On 17 May 1994, five days after the incident, the corpses of twenty-six persons, including Kamil Menteşe, Sabri Akdoğan, Abdulvahap Maço and Yusuf Bozkuş, were found near the village. The corpse of the applicant’s son was found five hundred metres away from the others. The body was taken to the Lice Health Clinic and was subsequently buried in the Lice cemetery. 16. The applicant and her family lived in the hamlet of Beğendik in the Yolçatı village. On the night of 12 May 1994 the applicant was at home with her family. At about 11 p.m. they heard gun fire near their house. It continued until 5 a.m. In the morning of 13 May, the applicant’s brother in-law, Yusuf Bozkuş, led the animals towards the Yolçatı village. Yusuf was about 60 years old and he was of unsound mind. At the same time, the applicant and her children tried to leave the hamlet. However, they were not able to go very far as the area was surrounded by soldiers. From a distance, the applicant saw her house catch fire. On the evening of 13 May the applicant and her children stayed in the forest and saw smoke rising from the surrounding hamlets and villages. Early in the morning of 14 May, they headed towards Lice. 17. On 15 May 1994 the applicant heard from her neighbours that her brother-in-law, Yusuf Bozkus, had been arrested by the security forces near the Yolçatı village together with six other villagers. Upon receiving this information, the applicant attempted to search for Yusuf. However, as the roads were blocked with panzer tanks, she could not go back there. When she returned to Lice, her children told her that Yusuf’s body had been found and identified by Yusuf’s brother, Hasan Bozkuş. According to Hasan Bozkuş, Yusuf’s skull was completely shattered and there were five bullet holes in his chest. 18. The applicant went back to the village one month later and saw that her house had been burned down. 19. The applicant and her children were in the village on the evening of 12 May 1994. They heard gun fire throughout the night. On 13 May, at 6 a.m., soldiers arrived in the village and told the villagers to gather around the mosque. The applicant and her children accordingly went to the mosque. The commander then ordered the soldiers to start burning the houses. The applicant’s house was burned down along with others. Subsequently, all men who were under 60 years old were ordered to leave the village together with a soldier. The applicant saw Sabri Akdoğan, Abdulvahap Maço, Reşit Demirhan and Kamil Menteşe being taken away by a soldier. After some time, the applicant heard gun fire from the direction where the men had been taken, and she subsequently saw a couple of soldiers coming back to the village from that direction. 20. The applicant was in the village of Yolçatı on the night of 12 May 1994. In the early hours of 13 May at about 6 a.m., the village was surrounded by soldiers, who arrived in the village by vehicles, panzers and a helicopter. The villagers were ordered to gather around the mosque and they were interrogated about PKK activities. The soldiers then began burning down the houses. The village men who were under 60 years old were asked to leave the village with the soldiers. Upon this order, the applicant’s son Reşit Demirhan, who was 48 years old, together with Sabri Akdoğan and Abdulvahap Maço, were taken away by the soldiers. The applicant was sent to Lice with the remaining villagers. He tried to get information as to the whereabouts of his son. However, the soldiers did not allow him to look for him. After two days, the applicant returned to the village. The following day, some villagers went to the Lice public prosecutor to obtain information about the missing villagers. The body of the applicant’s son was subsequently found near the village together with the bodies of Sabri Akdoğan, Hasan Bayram, Mehmet İlkkaya, Yusuf Bozkuş, Fahri Bayram, Ramazan Bayram, Ekram Bayram, Abdulvahap Maço and Kamil Menteşe. Kamil’s body was found five hundred metres away from the other bodies. The applicant heard that there were twenty-six bodies at the scene of incident. The body of the applicant’s son was buried on 16 May 1994 in Diyarbakır. 21. The applicant lived in the village of Yolçatı. When the firing stopped at around 5 a.m. on 13 May 1994, the applicant fled from the village. While running away, she saw a helicopter land in the village. She saw smoke rising from the village. Two weeks later when she returned to the village, she saw that her house had been burned down. 22. The applicant and his family lived in a hamlet of the Yolçatı village. On the night of 12 May 1994 they heard gun fire. It continued until 5 a.m. When the firing stopped, the applicant and his family tried to go to Lice. While they were passing near the Yolçatı village, they were stopped by soldiers and the applicant’s son, Abdulvahap Maço, was taken away by the soldiers. The applicant was able to witness smoke rising from the nearby villages and hamlets in the area. The applicant and the rest of the family members continued towards Lice and stayed there with relatives for two days. On 15 May 1994 the applicant was informed by some villagers that his son Abdulvahap Maço had been found dead together with four other villagers, Reşit, Hasan, Yusuf and Sabri. The applicant subsequently went to the Lice public prosecutor and the leader of the Council and told them about the incident. However, they both responded that there was nothing they could do to help him. When the applicant received permission to collect his son’s body, he went back to the village. He saw that the village had been burned. He subsequently found the corpse of his son behind some rocks. There were several bullet marks on the body. The applicant took his son’s body to the Lice Health Clinic and subsequently buried him in Lice. 23. The Government denied the allegations submitted by the applicants. They informed the Court that an armed clash had taken place on 13 and 14 May 1994 in the vicinity of the Dibek village, also attached to the Lice District. According to the Government, four soldiers had been killed during this incident. 24. In support of their submissions, the Government provided the full case file concerning the investigations into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço. 25. On 15 May 1994 the corpses of Reşit Demirhan, Sabri Akdoğan and Hasan Bayram were found in the vicinity of the Yolçatı village. These corpses were brought to the Lice Health Clinic by the villagers. After the bodies were officially identified, post-mortem examinations were carried out on the bodies by a doctor together with the Lice public prosecutor. The doctor perceived that rigor mortis had set in and bruising had appeared on the body of Reşit Demirhan. He noted the presence of a bullet entry hole under the right eye and a bullet exit hole measuring 5 x 6 cm. in the occipital area, which had cracked the skull and caused heavy damage to the brain; a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra, measuring 5 x 3 cm, which had caused damage to the spine; a bullet entry hole on the lower right side of the abdomen and a bullet exit hole, measuring 2 x 2 cm. on the right side of the thigh; a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm; a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand; and scars possibly caused by gunshot wounds on some parts of the body. No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body. 26. On 16 May 1994 the villagers found the body of Abdulvahap Maço near the village of Yolçatı. The body was brought to the Lice Health Clinic. Together with the Lice public prosecutor, the doctor conducted a post mortem examination. In the report, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring 6 x 10 cm., as a result of which the skull had been shattered and the brain heavily damaged; two adjacent bullet entry holes on the left side of the neck; two adjacent bullet exit holes on the right side of the neck, under the chin; a bullet entry hole on the left leg and a bullet exit hole in the calf measuring 2 x 8 cm; two wounds, one on the back of the right ankle measuring 4 x 2 cm. and another on the front part of the ankle measuring 3 x 4 cm, possibly caused by bullets; a fractured tibia; and a bullet entry hole on the right calf and a bullet exit hole above the right knee, causing a wound measuring 10 cm., which had damaged tissue and fractured the lower part of the femur. No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body of Abdulvahap Maço. 27. On 17 May 1994 the bodies of Yusuf Bozkuş and Kamil Menteşe were also found by the villagers near the mountains in the vicinity of the Yolçatı village, and were brought to the Lice Health Clinic. The body of Kamil Menteşe was identified by his father Abdullah Menteşe and the body of Yusuf Bozkuş was identified by his brother. The doctor conducted post-mortem examinations in the presence of the Lice Public Prosecutor. In the report on the body of Yusuf Bozkuş, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole in the chin, and a bullet exit hole, measuring 10 x 15 cm. which had caused heavy damage to the brain; and three bullet entry holes in the left collar bone area, the right collar bone area and the right side of the neck, and three bullet exit holes, two in the shoulder blade area and one under the left underarm. No other signs were observed on the body. In the report on the body of Kamil Menteşe, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade; a bullet entry hole in between the shoulder blades, and a bullet exit hole in the front part of the right underarm, measuring 2 x 3 cm; a lateral wound measuring 10 cm. in the femur area which had been caused by a sharp object; a wound which had been caused by a sharp object, measuring 8 x 3 cm on the right biceps; two further wounds on the right arm, caused by a sharp object; a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee, measuring 4 x 5 cm; scars due to gun shots on the left leg; and the right ear of the deceased was missing for unknown reasons given the one week delay in the autopsy. As the doctor had found that both Yusuf Bozkuş and Kamil Menteşe had died from gunshot wounds, he did not deem it necessary to perform a classical autopsy on the bodies. 28. The Government maintained that investigations were initiated to find the perpetrators of these killings. In this respect, they referred to the correspondence between the Lice public prosecutor and the Lice Gendarmerie Command. Copies of several letters, written by the prosecutor to the gendarme commander, asking the commander to conduct an investigation into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço were submitted to Court. The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators. 29. On 28 December 1998 the Lice public prosecutor took statements from two villagers, Mehmet Baltan and Ahmet Baltan, in connection with the killings of Kamil Menteşe and Yusuf Bozkus. In his statement, Mehmet Baltan explained that he did not know Yusuf Bozkuş or Kamil Menteşe but he had heard that someone from the Yolçatı village had been abducted and killed in May 1994. When interrogated about the killing of Yusuf Bozkuş and Kamil Menteşe, the second witness, Ahmet Baltan, explained that he had known Kamil and Yusuf. He also knew that these two villagers were found dead. However he had no knowledge as to who might have killed them. 30. On 31 January 2000 the Lice public prosecutor concluded that it had not been possible to establish the identities of the perpetrators of the killings of Kamil Menteşe, Yusuf Bozkus, Reşit Demirhan and Abdulvahap Maço. He accordingly decided to issue a continuous search warrant for the perpetrators of the killings, which would remain valid for twenty years, the statutory time limit under Article 102 of the Criminal Code. The prosecutor also instructed the authorities to continue pursuing a meticulous search for the perpetrators. 31. Subsequently on 16 September 2001, 23 March 2002, 4 September 2002, 10 September 2002, 20 December 2002 and 4 March 2003, gendarme officers attached to the Lice Gendarme Command went to the Yolçatı village for onsite inspections. In their respective reports, they stated that there was no new evidence concerning the incidents, and that the identities of the perpetrators could not have been established. 32. In respect of relevant domestic legislation, the Court refers to Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 46-52) and Menteş and Others v. Turkey (judgment of 28 November 1997, Reports 1997VIII, §§ 36-50).