CASE OF YASİN ATEŞ v. TURKEY
Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Feyyaz Gölcüklü
10. The applicant, a Turkish citizen of Kurdish origin, was born in 1931. At the time of the events giving rise to the present application, he lived in the town of Kulp, located within the administrative jurisdiction of the province of Diyarbakır, in south-east Turkey. 11. The facts of the case, particularly concerning events which took place on 13 June 1995, are disputed by the parties. 12. The facts as presented by the applicant are set out in Section B below (see paragraphs 13-33). The Government's submissions concerning the events are summarised in Section C below (see paragraphs 34-41). The documentary evidence submitted by the parties is summarised in Section D below (see paragraphs 42-74). 13. In 1995 the applicant's son, Kadri Ateş, lived in Diyarbakır where he worked for Zahit Trade, a business which sold foodstuffs wholesale to small businesses and security and military establishments in the region. 14. At about 6 a.m. on 13 June 1995 Kadri Ateş, together with his colleague Burhan Afşin, left Diyarbakır to go to the town of Kulp to sell foodstuffs. They used a small lorry owned by Zahit Trade. They were accompanied by Kadri's father-in-law Vehbi Demir, his paternal uncle Kemal Ateş and a man called Memduh Çetin. At Seyrantepe, Kemal Ateş disembarked from the vehicle due to overcrowding and continued his journey in another vehicle. 15. The lorry came off the Diyarbakır-Bingöl highway at the Lice turn-off and headed towards the town of Lice. At about 7.40 a.m., one kilometre before the Lice-Kulp fork, the vehicle slowed to a halt as a result of a police minibus blocking the width of the road. Thereafter, four police officers surrounded the van with firearms and proceeded to carry out an identity check of all the occupants. This resulted in Memduh Çetin and Burhan Afşin being ordered out of the lorry and taken by a police minibus to the police checkpoint at the entrance to the Lice district. The other occupants were told to follow in the lorry. 16. The four men were told to wait at the police checkpoint at Lice without receiving an explanation for their detention. Kemal Ateş, who had by then arrived at the police point in the other vehicle, sought an explanation but was stopped by the police. After about 10-15 minutes a grey-coloured Renault saloon car, with the registration number 06 MEH, arrived. Four plain-clothed police officers with pistols got out. One of the police officers was a 29-30 year old, of medium height, wearing a grey jumper and holding a walkie-talkie. This police officer proceeded to ask who owned the lorry and what names each of the men were known by in the village from where they came. Kadri Ateş replied “Gebooğulları” and Vehbi Demir replied “Galevan”. 17. Thereafter the plain-clothes police officers informed the men that they were to be taken back to Diyarbakır, to the Financial Branch of the Police, as there was a problem concerning some cheques. Vehbi Demir and Memduh Çetin said to the police that they had simply boarded the lorry as passengers and had nothing to do with any cheques. However, they, together with Burhan Afşin, were ordered to drive the lorry back to Diyarbakır, in front of the Renault. Kadri Ateş was placed into the back of the Renault, in between two police officers. 18. The vehicles stopped outside the Regional Traffic Directorate, located at the entrance to Diyarbakır, where the four men were told to remain in their respective vehicles. Three officers then entered the Directorate. About 20 minutes later two more police cars arrived with three men in each vehicle, who proceeded to talk with the police who had detained the men in the Lice District. The two cars were similar to the Renault. 19. At this point Kadri Ateş, who was still in the Renault, indicated to Vehbi Demir and Memduh Çetin that they were in danger by biting his lip. As a result, Memduh became distressed and panicked, saying “They are going to kill me”. He was given permission to go to the toilet, which led to all four men being placed in the hallway of the Directorate. 20. After 10-15 minutes two plain-clothes police officers from the two cars that had arrived later entered the hall, carrying firearms. They asked “Which of you are Kadri Ateş and Vehbi Demir?” Both men identified themselves and were ordered to go with the officers to one of the cars which had arrived later. A tall man next to the officer with the walkie-talkie ordered them to turn to face the car whereupon they were blindfolded by a heavily-built officer who then pushed them into the back of the car and proceeded to sit next to them. 21. The officer with the walkie-talkie sat in the front of the vehicle, and enquired as to whether they knew what offences they had committed to which Vehbi replied, “No”. Kadri said, “It was the Mekap shoes.” The police officer then enquired where they were taking the shoes. Kadri replied, “There were fifty pairs. I was taking them to the mountains”. The officer then proceeded to punch Kadri, stating, “Son of a whore, are there still such macho men left in the south-east?” 22. The car then set off. The officer informed them that they were being taken to the military and added “Do you know what the military do ... you'll find out when you get there.” He then instructed the driver to turn onto the Ergani road. The car eventually stopped outside the Riot Police Directorate where they were taken to a cell in which Vehbi, still blindfolded, was handcuffed to the door. He heard the officer order Kadri to strip. 23. Thereafter, Vehbi heard Kadri's screams and cries which continued for two to four hours. Vehbi was then ordered to strip, after which he was tortured for about an hour: he had his testicles squeezed, was hosed down with cold water and electric shocks were applied to him. He was then interrogated by a “Commander” in front of approximately 15 people. 24. Gürgün Can, Ateş's cousin and business partner, was also placed in custody. On the second day, Vehbi was placed in another cell next to an inmate whom he correctly suspected was Can. His blindfold was removed. Thereafter both men were subjected to noise being played on a tape machine at an unbearably high level. 25. On the 15th day of custody Vehbi was taken for interrogation and again subjected to beatings, during which he continued to deny all accusations. His interrogators then stated, “You're very lucky. Haven't you heard? We have killed Kadri. He kicked the bucket. If they hadn't killed him, we'd have murdered you”. Thereafter they informed him, “Your time is up... You have two choices. Either you will go to join Kadri, or we'll send you to prison and you'll kill ten people with the poison we will give you”. They further added, “Look, there are teams here. If we surrender you to them, they will kill you like Kadri”. 26. Vehbi was taken to an unknown place. At the entrance his interrogators told him, “Don't you know where this is? Look, there are teams here. If we surrender you to them, they will kill you like Kadri”. Vehbi continued to assert his innocence, whereupon his interrogator said, “I'm telling you, you only have two choices. Either I will surrender you to the teams, or you'll agree to go to the prison.” At that point Vehbi was taken inside and placed in a cell where he was told, “If your friend had not died, we'd have killed you now. It appears you are lucky.” 27. On the 16th day of custody Vehbi was given a typed statement to sign. The next evening he was taken to the Dağkapı health clinic where he was threatened and told not to make any allegations, but the doctor, in any event, did not examine him. 28. On 30 June 1995 15 people were brought before the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”); Vehbi, Memduh Çetin and Gürgün Can were among them. The first two were released by the Prosecutor whereas Can was released by a judge. Burhan Afşin was remanded in custody. 29. On 20 June 1995, that is seven days after Kadri Ateş was detained, the applicant applied to the Diyarbakır Court to obtain information concerning the detention of his son. He was informed that his son was not in custody and was referred to the Diyarbakır Security Directorate where he received the same information. 30. The applicant was subsequently informed by the Prosecutor in the town of Lice that Kadri Ateş had died in a clash between security forces and the PKK. The applicant had the body of his son exhumed from the Lice cemetery and buried him in his home town of Kulp. 31. An official Incident and Apprehension Report stated that the four men had been observed at around 7.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 82, travelling along the Bingöl road. They had subsequently been detained for suspected participation in terrorist activities, namely the dropping off of supplies to PKK members at the Aksu petrol station between the Lice turn-off and Duru Gendarmerie Station, at about 9 p.m. 32. The report stated that Vehbi Demir, Memduh Çetin and Burhan Afşin were taken to Diyarbakır for interrogation, while Kadri Ateş was handed over by the Gendarmerie to the Security Special Action Teams to help, voluntarily, set up an ambush at the said petrol station. The report further stated that at about 11.45 p.m. five armed PKK members came to the petrol station and an armed clash ensued in which Kadri Ateş was killed. 33. The applicant is convinced that Kadri Ateş did not die in a clash but was killed in custody under torture. Vehbi Demir witnessed Kadri being taken into custody by the police and heard him being tortured. 34. On 13 June 1995 the Diyarbakır Security Directorate received information to the effect that a small lorry with the registration number 34 ERS 82 would be carrying logistical equipment to PKK terrorists and that the terrorists would meet with Kadri Ateş, Memduh Çetin, Vehbi Demir and Burhan Afşin, who would be travelling in the lorry. 35. Necessary security measures were taken and at about 7.35 p.m. the lorry was stopped at the Lice-Kulp fork and Kadri Ateş was questioned. He stated that he was going to deliver the equipment to the terrorists at a location close to the Aksu petrol station near the Lice-Kulp fork at approximately 9 p.m. Thereafter he was arrested in order to be taken to the meeting point. The others were taken to the Diyarbakır Security Directorate for questioning. 36. Upon reaching the meeting point, the necessary security measures were taken and at approximately 11.45 p.m. five terrorists arrived to collect the equipment from Kadri Ateş. At that point the police asked the terrorists to surrender. However, instead of surrendering, the terrorists opened fire at the security forces and the firing continued for approximately half an hour. Kadri Ateş made an attempt to escape from the security forces but was shot and killed in the crossfire. Two terrorists were also shot and killed but the others managed to escape. 37. A search was carried out at the scene by soldiers from the Lice District Gendarmerie Headquarters. During the search, two Kalashnikov rifles with serial numbers 1971 PO4 and 1977 SS 239119, 81 cartridges and eight chargers were found. Various logistical supplies were also found in the lorry which belonged to Kadri Ateş and these supplies were handed over to the competent judicial authorities. 38. On 14 June 1995 the office of the Lice Prosecutor carried out autopsies on the bodies of the three deceased persons. 39. On 21 June 1995 the applicant went to the Prosecutor's office in Lice where he was shown the photographs of his son. In these photographs, the body of the applicant's son was seen lying next to the bodies of the two terrorists. The applicant formally identified his son. 40. On 30 June 1995 Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir were questioned by the Diyarbakır Court Prosecutor, who on 5 July 1995 filed an indictment with that court in which the five men were accused of the offence of membership of a terrorist organisation. 41. On 16 November 1995 the Diyarbakır Court acquitted the five men for a lack of sufficient evidence. 42. The following information appears from the documents submitted by the parties. 43. According to the custody ledgers, Vehbi Demir was arrested at midday, and Gürgün Can at 3 p.m., on 13 June 1995. 44. A handwritten incident report was drawn up and signed by six special police team members and two gendarmes at 5 a.m. on 14 June 1995. There is no information in the document to establish the identities of these officers. According to the report, Kadri Ateş, Vehbi Demir, Memduh Çetin and Burhan Afşin were arrested on 13 June 1995 during an investigation into the actions of the PKK. Kadri Ateş reportedly told the arresting officers that he was planning to meet with members of the PKK at 9 p.m. the same day at the Aksu petrol station and deliver to them the supplies which he had in the back of his lorry (registration number 34 ERS 82). Kadri Ateş was also reported to have told the arresting officers that he was willing to accompany them to the petrol station where they could set up an ambush in order to apprehend the PKK members. The other three arrested persons were then transferred to Diyarbakır for questioning. The police and gendarme officers, together with Kadri Ateş, went to the petrol station where they took up their positions – Kadri Ateş at the place where, according to his agreement with the PKK members, he was supposed to wait, and the police hiding in the vicinity. 45. Five PKK members arrived at the petrol station at 11.45 p.m. When asked by the police officers to surrender, the PKK members opened fire and an armed clash ensued. At that point police officers made an attempt to approach Kadri Ateş in order to take him away from the scene. However, he started running towards the PKK members and was shot in the crossfire. The clash continued for approximately 30 minutes. Bodies of two of the terrorists and their weapons were found at the scene after the clash had ended. The body of Kadri Ateş, who had been shot a number of times, was also lying next to those of the two PKK members. 46. On the same day Mr Özcan Küçüköz, the Prosecutor of the Lice district, in whose jurisdiction the killings had taken place, visited the Gendarme Commando Division in Lice where the three bodies had been taken. He was accompanied by Dr Ömer Varol. The Prosecutor and the doctor examined the bodies and drew up a report in which they recorded their findings. Each of the three bodies was given a number because their identities were not known. (The body of Kadri Ateş was number three.) The bodies were also photographed. 47. Rigor mortis had set in in bodies number one and two but post mortem hypostasis was not observed. As regards body number three, neither rigor mortis nor post mortem hypostasis was observed. 48. Examination of body number one revealed that the right frontal region and the parietal region of the brain were completely destroyed, whereas the occipital region was partly destroyed. There was also an injury below the right knee, caused by a rocket missile. The body bore no marks of blows. 49. In the course of the examination of body number two, two bullet entry wounds on the chest, a number of bullet entry wounds in the throat and one bullet entry wound on the left foot, as well as the corresponding exit wounds were observed. The body bore no marks of blows. The report further states that this person was wearing “terrorist clothing”. 50. Finally, the examination of body number three revealed a bullet entry wound in the occipital region of the brain and a corresponding exit wound on the chin; a bullet entry wound four millimetres below the left collar bone and a corresponding exit wound below the collar bone; an injury on the right shoulder, measuring 10 x 10 centimetres, caused by a firearm, and finally two shrapnel injuries below the right collar bone. 51. The doctor concluded that the cause of death for bodies number one and three was the destruction of vital organs, and for body number two acute blood loss caused by the firearm injuries. He added that the cause of the deaths was so obvious as to leave no doubt in his mind and therefore there was no reason to carry out classical autopsies. 52. The Prosecutor, after having examined the bodies, issued burial licenses and instructed a municipal worker to arrange for the burial of the bodies of the “three terrorists who had no relatives”. 53. Also on 14 June 1995 the Lice Prosecutor sent a letter to the commander of the Lice Gendarme Headquarters and asked for copies to be forwarded to him of the documents pertaining to the investigation which the commander had carried out into the incident. It further appears from this letter that the gendarme commander had informed the Prosecutor by telephone earlier in the day about the “killing of three terrorists whose identities are not known”. 54. On 21 June 1995 the applicant went to the office of the Prosecutor in Lice where he was shown the photographs of the three bodies. He identified body number three as that of his son Kadri Ateş. He also asked for permission to bury his son in his home village. 55. On the same day the Lice Prosecutor had the Lice municipality exhume the body of Kadri Ateş. It was handed over to the applicant. 56. On 23 June 1995 Captain Şahap Yaralı, the commander of the Lice Gendarme Headquarters, sent a letter to the Lice Prosecutor, in reply to the latter's letter of 14 June 1995 (see paragraph 53 above). Mr Yaralı wrote that at 6 p.m. on 13 June 1995 his station had been informed by telephone that a number of logistical supplies would be delivered to members of the PKK at the Aksu petrol station in a lorry. No information had been given about the make or the registration number of the lorry. An operation had been planned by the security forces in the area. At 11.45 p.m. a number of PKK members had arrived at the Aksu petrol station in an Isuzu lorry, with the registration number 34 ERS 82. The terrorists, when asked to stop by members of the security forces, had responded by opening fire. A short armed clash had ensued and, during the search which had been carried out after the clash, the bodies of three terrorists had been found. Two Kalashnikov rifles and ammunition belonging to the terrorists had also been retrieved at the scene. The supplies in the lorry had later been destroyed by the soldiers. 57. Captain Yaralı annexed to his letter, inter alia, an on-site incident report and a number of documents which had apparently been found in the lorry. The Government did not make these documents available to either the Commission or the Court. Captain Yaralı further forwarded to the Prosecutor the Kalashnikov rifles and the ammunition retrieved at the site of the armed clash. 58. On 26 June 1995 the Lice Prosecutor drew up records of confiscation in which the items sent to his office by Captain Yaralı were listed. These items included order forms, consignment ledgers and bills belonging to Zahit Trade (item no. 1995/8), the Isuzu lorry with the registration number 34 ERS 82 (item no. 1995/9), and the rifles and ammunition found at the site of the operation (item no. 1995/7). 59. On 30 June 1995 a statement was taken from Vehbi Demir by the Prosecutor at the Diyarbakır Court. Mr Demir denied being a member of the PKK but added that Kadri Ateş had had connections with them. He also stated that on 13 June 1995 Kadri Ateş had been giving him a lift in his lorry to the town of Kulp when the vehicle had been stopped by members of the security forces near the town of Lice. He, Kadri Ateş, Burhan Afşin and Memduh Çetin had been arrested on the spot. 60. On 5 July 1995 the Prosecutor at the Diyarbakır Court filed an indictment with that court, accusing Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir of membership of a terrorist organisation, namely the PKK. In this indictment, Kadri Ateş was referred to as the “terrorist who was arrested on 13 June 1995 together with Gürgün Can by members of the security forces, and who was later killed at the Aksu petrol station while trying to run away from the security forces during the armed clash between the terrorists and the security forces”. Burhan Afşin, Gürgün Can and Vehbi Demir were accused of attempting to take 54 pairs of Mekap shoes to terrorists on 13 June 1995 in a lorry with the registration number 34 ERS 92, before being arrested by members of the security forces. The indictment also made reference to a number of statements taken from Burhan Afşin, Gürgün Can and Vehbi Demir. With the exception of the statement taken from Vehbi Demir, these statements have not been made available to the Convention bodies. 61. On 18 July 1995 the Lice Prosecutor decided that he lacked jurisdiction to prosecute “the three terrorists killed in the operation on 13 June 1995”, and sent the file to the Prosecutor's office at the Diyarbakır Court. According to this decision, a number of terrorists had arrived at the Aksu petrol station at 11.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 92, and three of the terrorists had been killed. The body of one of the deceased had subsequently been identified as that of Kadri Ateş. 62. On 11 August 1995 the Prosecutor at the Diyarbakır Court instructed the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and, finally, the Diyarbakır gendarme headquarters to search for the perpetrators of the incident “during which three of the terrorists were killed in the armed clash between the terrorists and the security forces”. The Prosecutor asked to be kept informed every three months of any possible developments in the investigation. 63. On 20 September 1995 the commander of the Duru gendarme station, near which the incident had taken place, sent a report to the Lice Gendarme Headquarters. According to this report, a group of terrorists had approached the lorry to take delivery of logistical supplies. When asked by members of the security forces to surrender, the terrorists had opened fire. After the incident three of the terrorists had been found dead. The report finally stated that it had not yet been possible to establish the identities of the “perpetrators of the incident”. This report was forwarded to the Prosecutor's office at the Diyarbakır Court on 26 September 1995 by the commander of the Lice Gendarme Headquarters. In his covering letter, the commander referred to a letter apparently sent to him by the Prosecutor on 15 September 1995. 64. On 16 November 1995 the Diyarbakır Court held that there was insufficient evidence to conclude that the five defendants had aided and abetted a terrorist organisation, and it ordered their acquittal. The court noted that the defendants had confessed, in statements taken from them by the police while they were in custody, to having committed the offence in question. The court noted that the defendants had later denied the contents of their earlier statements. Copies of the statements taken from the defendants during the criminal proceedings have not been made available to the Convention bodies. The Diyarbakır Court further ordered the return of the confiscated Isuzu lorry (registration number 34 ERS 82) to its owner because it had not been established that the lorry had been used in the commission of an offence. The decision became final on 23 November 1995. 65. On 27 January 1998 the judge at the Nizip Criminal Court of First Instance asked the Prosecutor at the Diyarbakır Court to forward to him a copy of the report of the examination carried out on the body of Kadri Ateş (see paragraphs 46-52 above). The judge asked for this report to be sent to him “before the forthcoming hearing on 14 April 1998”. 66. On 6 May 1998 the Prosecutor at the Diyarbakır Court sent the requested report to the Nizip judge. 67. On 2 June 1998 the Prosecutor at the Diyarbakır Court repeated the above mentioned instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above). 68. On the same day he also sent a letter to the Lice Prosecutor saying that neither the ownership of the Isuzu lorry nor the manner in which the terrorists had acquired and used it had yet been established. He further asked the Lice Prosecutor to carry out a ballistics examination of the rifles and the bullets, numbered as item no. 1995/7 (see paragraph 58 above). 69. On 3 September 1998 the Prosecutor at the Diyarbakır Court asked the Lice Prosecutor to forward to his office the confiscated items registered as nos. 1995/7-9 (see paragraph 58 above). 70. On 29 September 1999 the Diyarbakır branch of the Pensions' Directorate sent a letter to the Prosecutor at the Diyarbakır Court informing him of their intention to bring a civil action against those responsible for the killing of Kadri Ateş to claim compensation. The Prosecutor was asked to send to the Pensions' Directorate the documents pertaining to the investigation into the killing of Kadri Ateş. 71. On 7 October 1999 the Prosecutor at the Diyarbakır Court forwarded to the Pensions' Directorate the documents requested, and informed the latter that the perpetrators had not yet been arrested. The Prosecutor further stated that logistical supplies had been taken to the petrol station by terrorists who had refused to surrender to the security forces. 72. On 4 November 1999 the Prosecutor at the Diyarbakır Court drew the Lice Prosecutor's attention to the fact that the owner of the Isuzu lorry had still not been established (see paragraph 68 above). He also repeated his request of 3 September 1998 and urged the Lice Prosecutor to forward to his office the items registered as nos. 1995/7-9 (see paragraph 58 above). He finally repeated his instructions of 2 June 1998 to carry out ballistics examinations on the rifle and the ammunition. 73. Also on 4 November 1999 the Prosecutor at the Diyarbakır Court repeated his instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above). The Prosecutor further instructed the investigating authorities to establish the identities of the three dead terrorists and “to apprehend them”. 74. The applicant submitted to the Court copies of statements taken from the applicant and also from Vehbi Demir by the applicant's Turkish lawyer. The statement taken from Vehbi Demir formed the basis of the applicant's submissions summarised in Section B above (see paragraphs 13-33). 75. A full description of the relevant domestic law and practice, as well as relevant international reports, may be found in Salman v. Turkey ([GC], no. 21986/93, §§ 59-74, ECHR 2000-VII).