CASE OF GASYAK AND OTHERS v. TURKEY
Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award;Dommage matériel - claim dismissed
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicants were born in 1975, 1974, 1961 and 1972 respectively. They all live in the town of Cizre. 6. In March 1994 Abdulaziz Gasyak, Süleyman Gasyak, Yahya Akman and Ömer Candoruk were killed. The applicants were related to these people as follows: Sabri Gasyak is the brother of Abdulaziz Gasyak; Leyla Gasyak was the wife of Süleyman Gasyak; İsa Akman is the father of Yahya Akman and Hanım Candoruk was the wife of Ömer Candoruk. The application was brought by the applicants on their own behalf and on behalf of the remaining heirs of the four deceased men. 7. The facts of the case, particularly concerning events which took place on 6 March 1994, are disputed by the parties. 8. The facts as presented by the applicants are set out in Section B below (paragraphs 9-21). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 22).The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 23-50). 9. The applicants’ four relatives were working as tradesmen, buying food, tea and tobacco from the area near the Turkish-Iraqi border and selling them in the nearby town of Cizre and the surrounding areas. 10. On 6 March 1994 the four men were travelling from Cizre to Silopi in a vehicle which was being driven by Ömer Candoruk. They were stopped by gendarmes at a checkpoint approximately five to six kilometres outside the town of Silopi. Two unmarked Renault cars were parked nearby. At that point, a certain Mr A.M., who lived in Cizre and who knew the four men, was travelling from Cizre to Silopi in a minibus and saw the four men arguing with a group of gendarme officers in plain clothes. Abdulhakim Güven and Adem Yakın, who used to be PKK members but who had been working for the gendarmerie since their arrests, were also with the gendarme officers. MM. Güven and Yakın were referred to in the area as “confessors”. The applicants’ relatives were then put into vehicles. They were joined by gendarme officers and the confessors and the cars began driving in the direction of Cizre. 11. Mr A.M. then saw something being thrown out of one of the vehicles. He stopped and picked it up and realised that it was Ömer Candoruk’s driving licence. The vehicles then turned off the main road and started heading towards Holan village. Mr A.M. did not see the vehicles again. 12. According to the information the applicants subsequently gathered from a number of villagers living in Holan village, one of their relatives had jumped out of the moving vehicle and tried to run away, but was shot by one of the confessors or the gendarme officers. His body was put in the boot of one of the vehicles. 13. The three surviving men were then taken to the gendarme station in Bozalan village, which is located approximately seven to eight kilometres from Cizre. Before sunset they were taken in the same vehicles to a place nearby and were shot and killed. 14. The killing was witnessed by a certain Mrs E.T. and her female friends who were working in a nearby field. 15. The following day, 7 March 1994, Mr A.M. told the applicants what he had seen and gave them Ömer Candoruk’s driving licence. The applicants then contacted the police and the gendarmerie in Silopi, but were unable to obtain any information from them. The same day Mrs E.T. told the applicants about the fate of their relatives. The applicants then contacted the gendarmerie and informed the offices of the prosecutor and the governor. 16. On 8 March 1994 gendarmes found the bodies of the four men covered with soil and stones. They had all been shot dead and their heads smashed with stones. An on-site report prepared the same day stated that the killings had probably been carried out by members of the PKK in a revenge attack because the deceased had been village guards. However, the deceased had never agreed to become village guards, contrary to the advice of the gendarmerie. 17. No other action was taken in the area by the gendarmes. They did not question the applicants or any of the persons present in the vicinity. 18. Furthermore, no steps were taken by the Cizre prosecutor who, on 5 April 1994, sent the investigation file to the prosecutor at the Diyarbakır State Security Court who had jurisdiction to continue the investigation. 19. The investigation carried out by the prosecutor in Diyarbakır was limited to the sending of occasional letters to the gendarmerie, asking them to search for the perpetrators. The gendarmerie replied that they had been unable to find the perpetrators despite their searches. 20. The number plate of the vehicle in which the applicants’ relatives had been travelling on 6 March 1994 was subsequently changed, and the vehicle continued to be used by confessors and other plain clothes officials in Cizre. 21. The authorities unsuccessfully searched for the two confessors, MM. Güven and Yakın. The requests by the prosecutor to be informed of their whereabouts were ignored by the gendarmerie for a long time. Mr Güven was subsequently found and questioned by a police officer. Although the applicants were able to find Mr Yakın’s address and gave it to the authorities, no steps were taken to question him. During the eventual trial of the two confessors for homicide (see paragraphs 36-45 below), neither of them ever appeared before the Şırnak Assize Court (hereafter “the trial court”) to give evidence. 22. The Government’s submissions were based on the documents drawn up by the national authorities in the course of the investigation, the trial and the compensation proceedings, which documents are summarised below. 23. On 8 March 1994 the bodies of the four men were recovered by gendarmes and identified by villagers who were present in the area at the time. The gendarmes found five Kalashnikov-type spent bullet cases around the bodies. It was concluded in an on-site report prepared by the gendarmes that the four men had probably been killed by members of the PKK in order to deter other members of their families from becoming village guards. It was established that the four men had been killed where they were found. 24. The same day the bodies were examined in situ by a doctor who concluded that the four men had been killed by gunshot wounds. The doctor, who observed a large number of bullet entry and exit holes on the bodies, deemed it unnecessary to conduct a full autopsy; the cause of death was established and that was sufficient. A bullet which had entered and exited the body of Abdulaziz Gasyak was secured for further examination. The Cizre prosecutor was also present at the time of the doctor’s examination. 25. Also that day the Cizre prosecutor decided that his office lacked jurisdiction to investigate the killings “perpetrated by members of the illegal organisation” and sent the file to the Diyarbakır State Security Court prosecutor’s office (“the Diyarbakır prosecutor”). 26. The Diyarbakır prosecutor instructed the gendarmerie on 18 April 1994 to search for the perpetrators of the killings. 27. According to a ballistic examination, the five spent bullet cases had been fired by two separate weapons. 28. On a number of occasions between 1 September 1995 and 22 March 2002, the gendarmerie reported to the Diyarbakır prosecutor that they had been “unable to find the perpetrators of the killings which, in all likelihood, had been carried out by members of the PKK”. On 16 February 2002 a number of soldiers had visited the place where the bodies had been found in 1994, but they had been unable to establish the identities of the perpetrators. 29. On 11 July 2002 a lawyer representing the applicants wrote to the Diyarbakır prosecutor and asked him to investigate the killings. The lawyer pointed to the fact that none of the relatives of the deceased men or anyone living in the area where the bodies had been found had been questioned by the authorities. He also informed the prosecutor that Mr A.M. and Mrs E.T had witnessed the incidents. 30. The applicants, who were questioned by the Diyarbakır prosecutor on 15 July 2002, stated that after the killing of their relatives they had been warned by the security forces not to make any complaints. They also told the prosecutor that no investigating authority had ever questioned them. 31. The same day Mr A.M. and Mrs E.T were also questioned by the Diyarbakır prosecutor. They gave the prosecutor their eyewitness accounts of the events – which are summarised above (see paragraphs 10-11 and 14-15 above) – leading up to the killing of the four men. 32. Also that day the Diyarbakır prosecutor decided that he lacked jurisdiction to investigate the killings because, although it had been stated by his opposite number in Cizre in 1994 that the killings had been carried out by members of the PKK (see paragraph 25 above), it was now being alleged by the applicants that their relatives had been killed on account of their refusals to become village guards. The two confessors and “their accomplices whose identities could not be determined” were referred to in this document as the “accused”. The Diyarbakır prosecutor then forwarded the file to the office of the Cizre prosecutor. 33. The applicants and the two eyewitnesses, Mr A.M. and Mrs E.T, were questioned by the Cizre prosecutor on various dates in December 2002 and January and May 2003. They repeated their respective complaints and eyewitness accounts of the events. Mr A.M. also told the prosecutor that he would be willing to identify the two confessors in an identity parade. 34. On 17 March 2003 Abdulhakim Güven, one of the two confessors allegedly involved in the killings, was questioned by a police officer. He denied the accusations against him. 35. The other confessor, Adem Yakın, was questioned by the Cizre prosecutor on 15 July 2003. He also denied the accusations and stated that he had been performing his military service at the material time. 36. On 5 August 2003 the Şırnak prosecutor filed an indictment with the Şırnak Assize Court (“the Şırnak court”), charging the two confessors with the offence of multiple homicide. 37. In the course of its first hearing on 7 August 2003 the Şırnak court sent letters rogatory to the Assize Courts in Diyarbakır and Batman where the two defendants were living, and asked those courts to question the defendants. 38. On 12 September 2003 the Diyarbakır Assize Court questioned Abdulhakim Güven who disputed the allegations and stated that at the time of the killings he had been in prison. 39. During a hearing held on 9 October 2003, Mr A.M. and Mrs E.T repeated their eyewitness accounts before the Şırnak court. The same day the Şırnak court issued an arrest warrant for Adem Yakın. It also ordered that Abdulhakim Güven be photographed with a view to showing his photographs to the eyewitnesses. 40. On 14 November 2003 Adem Yakın was arrested and questioned by the Batman Assize Court pursuant to the letters rogatory mentioned above. He denied the accusations and maintained that he had been performing his military service at the time of the killings. He was released the same day. 41. On 30 March 2004 the lawyer for the applicants sent a letter to the Şırnak court, requesting permission for his clients to join the proceedings as interveners. This request was accepted on 12 October 2004. 42. During the subsequent stages of the proceedings it transpired that on 28 February 1994 – that is, some six days before the killings – Abdulhakim Güven had been released from prison for a period of ten days with the permission of the Diyarbakır State Security Court so that he could “help the security forces with their anti-terrorism operations”. In fact, on various dates in 1994 he had been released from prison to help the security forces. 43. The Şırnak court had to postpone a number of its hearings to wait for the photographs of Abdulhakim Güven. 44. After having sent a number of reminders, on 27 January 2005 the Şırnak court was finally provided with the photographs of Abdulhakim Güven taken on 17 January 2005. During a hearing held on 29 March 2005, the eyewitness Mr A.M. was shown the photographs but was unable to identify Abdulhakim Güven. Mr A.M. told the Şırnak court that he had last seen Mr Güven more than ten years ago and that at that time Mr Güven had had a long beard; the person in the photograph did not have a beard. 45. At the same hearing the prosecutor asked the Şırnak court to acquit the defendants. The Şırnak court accepted that request and acquitted the defendants for lack of sufficient evidence. It considered, in particular, that although Mr A.M. had been in a minibus with a number of other persons, he had been the only person to witness the alleged abduction of the four men. In any event, the defendants had been working as informers and helping the security forces. Such informers were not well regarded by the residents of the region and, as such, the testimony of Mr A.M. implicating the confessors in the killings was disregarded. According to the Şırnak court, the fact that Abdulhakim Güven was not in prison at the time of the killings did not prove that he had taken part in them. He had been helping the security forces with their operations and, as such, it was not logical that he would be involved in a killing. The Şırnak court also decided to inform the relevant prosecutor to continue with the search for the perpetrators. 46. The applicants appealed. In their appeal petition they referred to the obligations under Articles 2 and 13 of the Convention to carry out effective investigations into incidents of killings, and alleged that the investigation into the killing of their relatives had been flawed. They maintained that the eyewitnesses had been consistent throughout the criminal investigation. The confessor Abdulhakim had lied to the investigating authorities when he said that he had been in prison on 6 March 1994 (paragraph 38 above). The Şırnak court had contented itself with showing the photographs of one of the defendants to an eyewitness and had not summoned the defendants to the trial. Furthermore, the investigating authorities had failed to follow up leads concerning the involvement of the gendarmerie and the security services and had only prosecuted the two confessors. They argued that the trial court had also failed to ensure an identity parade so that the eyewitnesses could have seen and identified the two confessors. 47. On 14 November 2006 the Court of Cassation rejected the appeal and upheld the two defendants’ acquittals. 48. In their letter of 20 August 2009 the applicants informed the Court that the same two confessors (that is, Mr Abdulhakim Güven and Mr Adem Yakın), a high-ranking army official and three intelligence officers working for the gendarmerie had been indicted in July 2009 and put on trial for the killing of their four relatives as well as the killing of a number of other persons at around the same time. 49. On 25 July 2005 the second to fourth applicants, together with a number of other heirs of their deceased relatives, submitted petitions to the Şırnak Governor’s office and claimed compensation under the provisions of the Law on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism (Law no. 5233 of 27 July 2004). In their petitions the three applicants repeated their allegations of State involvement in the killings. 50. On 10 July 2006 the Şırnak Governor’s office partially accepted the compensation claims made by the three applicants in respect of the killings of their relatives “by members of the PKK”. The second applicant Leyla Gasyak was awarded approximately 2,500 euros (EUR) in respect of the killing of her husband Süleyman Gasyak. The third applicant İsa Akman was awarded approximately EUR 5,000 in respect of the killing of his son Yahya Akman. The fourth applicant Hanım Candoruk was awarded approximately EUR 2,500 in respect of the killing of her husband Ömer Candoruk. Other heirs of these three deceased men were also awarded various sums of money.