CASE OF ER AND OTHERS v. TURKEY
Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;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);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
5. The applicants were born in 1980, 1974, 1978, 1984, 1989, 1990, 1994, 1954 and 1953 respectively and live in Hakkari. The first seven applicants are the children of Mr Ahmet Er, who disappeared in July 1995, and the remaining two applicants are his siblings. At the time of his disappearance Ahmet Er was 44 years old. 6. The facts of the case are disputed by the parties. The facts as presented by the applicants are set out in Section B below. The Government’s submissions concerning the facts are summarised in Section C below. The documentary evidence submitted by the applicants and the Government is summarised in Section D. 7. On 14 July 1995 an armed clash took place between members of the PKK and members of the security forces in Kurudere village, which comes within the administrative jurisdiction of the town of Çukurca in south-east Turkey. After the operation the soldiers took the applicants’ relative Ahmet Er and an elderly relative by the name of Hacı Mehrap Er from Kurudere to the nearby Işıklı gendarmerie station. 8. The same day the applicants informed the public prosecutor in Çukurca of the incident. 9. Hacı Mehrap Er was released on 15 July 1995 but nothing further was heard from Ahmet Er. 10. The Government submitted that Ahmet Er had not been taken into custody. He had assisted soldiers in searching for landmines planted in the area by terrorists and had been released following the soldiers’ return to their barracks. 11. An effective investigation carried out by the judicial authorities had shown that following his release Ahmet Er had joined the terrorists in northern Iraq. 12. The following information emerges from the documents submitted by the parties. 13. On 14 July 1995 Mr Ali Er, who is the brother of Ahmet Er and one of the applicants, informed the public prosecutor in Çukurca in writing about the disappearance of his brother. He also stated that the family feared for Ahmet Er’s life, and asked for the public prosecutor’s help. 14. On 16 July 1995 the Çukurca public prosecutor recorded in a report that he had had a telephone conversation with Major C.Y. of the Çukurca commando headquarters. Major C.Y. was also the commanding officer in charge of the soldiers who had carried out the operation on 14 July. The major told the public prosecutor that Ahmet Er had been taken from the village by his soldiers on 14 July to help them with their operations. However, he had been released on 16 July 1995 in an area near Narlı village. 15. On 18 July 1995 Ali Er made submissions to the offices of the governor and the public prosecutor in Çukurca. He stated in his submissions that his brother Ahmet Er had not been released, contrary to the information given to him by the Çukurca public prosecutor on 16 July. He added that he had tried unsuccessfully to find his brother in the surrounding villages and towns. 16. On the same day the Çukurca public prosecutor initiated an investigation into Ahmet Er’s disappearance and issued writs to the Çukurca gendarmerie headquarters and Çukurca commando headquarters requesting information about Ahmet Er’s whereabouts. The public prosecutor reminded the military authorities that if Ahmet Er was in their custody they needed to obtain official permission from the public prosecutor’s office in order to keep him in detention. 17. On 1 August 1995 the commander of the Çukurca gendarmerie headquarters, Captain S.A.U., replied to the Çukurca public prosecutor’s letter and informed him that Ahmet Er had not been detained at his headquarters. The village of Kurudere had been evacuated for security reasons and it was therefore impossible to trace Ahmet Er. 18. Following the failure of the Çukurca commando headquarters to respond to his request for information, the Çukurca public prosecutor repeated his request in a letter of 25 August 1995. The public prosecutor also referred to his telephone conversation with Major C.Y. (see paragraph 14 above), and asked the commando headquarters to inform him exactly where Ahmet Er had been released and whether there had been any eyewitnesses to the release. 19. In a letter of 22 September 1995 a military officer from the Çukurca commando headquarters informed the public prosecutor that Ahmet Er and “his elderly relative” had been taken from their village by soldiers on 14 July 1995 to act as guides to the area. The two men had helped the soldiers to locate a number of landmines in the area and had then “left the soldiers at 3 p.m.” the same day. No documents had been drawn up concerning the two men as they had not been arrested or detained. 20. On 16 October 1995 a public prosecutor questioned the applicant Ali Er, who repeated that his brother Ahmet had been taken away from their village by soldiers on 14 July 1995. The gendarmerie first lieutenant who was with the soldiers had even slapped his brother in front of the villagers before taking him away. Following this incident the villagers had left the village the same day, but the applicant’s elderly uncle, Hacı Mehrap Er, had stayed behind to wait for Ahmet. The latter had returned to the village with the soldiers the same evening, very distraught. The soldiers had then taken both Ahmet and Hacı Mehrap Er to Işıklı gendarmerie station, where they had tied them to a pole and left them until the following morning. The two men had also been beaten up. The following morning Hacı Mehrap Er and two other villagers who had also been taken away by the soldiers had been released. According to his uncle, Ahmet had been unconscious when he left him. Furthermore, Fettah Arslan, a fellow villager, had seen the applicant’s brother being taken from Işıklı gendarmerie station to the commando unit in a military vehicle. 21. The public prosecutor summoned Hacı Mehrap Er and Fettah Arslan to his office. On 23 October 1995 Fettah Arslan told the public prosecutor that he had seen Ahmet Er in a military vehicle, wearing handcuffs. 22. On 25 October 1995 Hacı Mehrap Er told the public prosecutor that on the day of the incident the villagers had been preparing to leave their village as ordered by the military. However, some PKK members had heard about the evacuation and the presence of the soldiers in the village and had attacked the soldiers. During the armed clash that had ensued, Ahmet Er had attempted to leave the village in order to find his son, who was out in the fields. However, the soldiers had misinterpreted Ahmet Er’s intentions and had taken him to Işıklı gendarmerie station. Subsequently, Hacı Mehrap Er had also been taken to the same gendarmerie station, where he and Ahmet had been tied to a pole and beaten up. The soldiers had also doused them with hot water. The bones in Ahmet’s feet had been broken with a stone. When Hacı Mehrap Er was released the following morning, Ahmet was being dragged along the ground by ten or eleven soldiers. When he returned to the village, the soldiers had already burned it down. 23. After making two unsuccessful attempts to summon him to his office, the public prosecutor finally questioned Major C.Y. of Çukurca commando headquarters on 14 December 1995. The major confirmed that he had heard that Ahmet Er had been taken from the village by his soldiers on 14 July 1995 to act as a guide to the area. After his telephone conversation with the public prosecutor he had ordered Ahmet Er’s release. However, he had later found out that the person released on his orders was not Ahmet Er. Major C.Y. added that he did not know whether Ahmet Er had been taken away by his soldiers. 24. First Lieutenant H.Ö., who was in charge of one of the three units of soldiers which had taken part in the operation on 14 July 1995, was questioned by the public prosecutor on 1 February 1996. The first lieutenant confirmed that he and his soldiers had gone to Kurudere village on the day of the incident. Following an armed clash with members of the PKK, during which an officer had been killed and two soldiers injured, they had seen Ahmet Er running away from the village. A number of soldiers had then been sent to catch him. The soldiers had caught him and “might have slapped him a few times” because they believed that Ahmet Er had been helping the PKK. Ahmet Er had then helped the soldiers to find a number of landmines. On their way they had seen Hacı Mehrap Er, who had asked permission to go with the soldiers. They had then taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station. The first lieutenant had telephoned his superior officers at the battalion’s headquarters and told them about the two men. His superior officers had told them that it was not necessary to take the men to headquarters as there was no evidence against them. Ahmet and Hacı Mehrap had spent the night with the soldiers at Işıklı gendarmerie station. It was possible that the soldiers “might have got angry with the two men and slapped them” but they had not tortured them or broken the bones in Ahmet’s feet as alleged. The following day the “old man” had been released outside the station and Ahmet Er had been released some 200 metres away from the station. 25. First Lieutenant Ş.Ö. had been in charge of another unit on the day of the incident. He gave a similar statement to the public prosecutor. 26. On 2 February 1996 the public prosecutor questioned four other gendarmerie officers who had taken part in the operation on 14 July 1995. The officers confirmed that they had taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station but denied that they had ill-treated them. They maintained that the two men had been released the following day and added that Ahmet Er had even waved to them when he was being released. The officers also told the public prosecutor that it was possible that Ahmet Er had subsequently joined the PKK. 27. On 16 February 1996 the Çukurca public prosecutor issued an instruction to find Ahmet Er and asked to be given a progress report every three months. In his instruction the prosecutor stated that Ahmet Er had not been arrested by the soldiers but had been taken by them to act as a guide to the area. He also stated that, since two of Ahmet Er’s sons had joined the PKK, it was possible that Ahmet Er himself might also have joined. 28. It appears from the documents that the police and soldiers searched unsuccessfully for Ahmet Er and informed the public prosecutor at regular intervals until 2 October 2000. On 1 February 2001 the Çukurca public prosecutor requested the police to continue their search. After the prosecutor’s letter the police continued to inform the prosecutor at twomonthly intervals about the unsuccessful search for Ahmet Er. 29. On 3 May 2002 the first applicant, Mehmet Er, applied to the Hakkari Civil Court of First Instance, alleging that his father had disappeared in life-threatening circumstances on 14 July 1995 and that nothing had been heard from him since that date. He asked the court to issue a decree stating that his father was to be presumed dead. This request was accepted on 29 May 2003. On 24 February 2004 custody of Ahmet Er’s three youngest children – the applicants Mr Hızır Er, Ms Hatice Er and Ms Belkısa Er – was awarded to their elder brother İslam Er, who is also one of the applicants. 30. On 10 December 2003 the Çukurca public prosecutor issued a decision stating that, according to the allegations made and the information given to him by eyewitnesses, Ahmet Er had last been seen in a military area, where he had been “tortured by soldiers”. Hence, the military were responsible for the incidents in question and the military prosecutor in the city of Van had jurisdiction to continue the investigation. 31. The military prosecutor in Van began his investigation on 14 January 2004 by requesting information from local military units about whether or not anything had been heard from Ahmet Er and whether he had sons who were PKK members. He also asked for regular updates every three months. 32. On 10 February 2004 the military units informed the military prosecutor that, according to information obtained from intelligence officers, Ahmet Er had been taken from his village by soldiers. Following his release on 16 July 1995, Ahmet Er had gone to northern Iraq to join the PKK. Nothing had been heard from him since that date. 33. On 17 February 2004 the military prosecutor questioned the applicant Ali Er, and Hacı Mehrap Er. Both men reiterated the information they had already provided to the Çukurca public prosecutor. 34. On 3 March 2004 the applicants’ legal representative requested information from the Çukurca public prosecutor about the investigation. He was informed of the transfer of the investigation to the military prosecutor’s office in Van. 35. At regular intervals between 7 April 2004 and 23 November 2005 eight identical copies of a document stating that Ahmet Er had joined the PKK were signed by various military officers and sent to the Van military prosecutor in connection with his request of 14 January 2004 (see paragraph 31 above). 36. On 28 July 2005 the military prosecutor decided that he also lacked jurisdiction to investigate the disappearance. In his decision the prosecutor summarised the steps taken in the investigation and stated that on 14 July 1995 Ahmet Er had been acting suspiciously and had been taken away by soldiers. He had then been taken to various places where he had shown the soldiers explosives planted by members of the PKK. The soldiers had then taken him to the barracks. The military prosecutor concluded that, in taking Ahmet Er to their barracks in order to question him, the soldiers had been carrying out judicial rather than military functions. Military prosecutors could only investigate offences committed by members of the armed forces in the performance of their military duties. Hence, the civilian prosecutors had jurisdiction to continue the investigation. The file was therefore sent back to the Çukurca public prosecutor’s office. 37. The Çukurca public prosecutor continued his investigation by instructing the gendarmes to continue to search for Ahmet Er. 38. On 15 December 2005 the Çukurca public prosecutor summarised his investigation in a report. According to the report, on 14 July 1995 Ahmet Er had been acting suspiciously and had therefore been taken away by soldiers. He had then assisted the soldiers in locating two landmines. He had stayed at the Işıklı gendarmerie station and had been “released” on 16 July 1995. According to “secret investigations” conducted by the gendarmes, Ahmet Er had joined the PKK following his release. The Çukurca public prosecutor concluded that the Van public prosecutor’s office had jurisdiction to continue the investigation, and sent the investigation file there. 39. On 5 January 2006 a public prosecutor in the city of Van issued a search and arrest warrant for Ahmet Er for the offence of membership of an illegal organisation, namely the PKK. 40. In response to an apparent query from the Çukurca gendarmerie, the Van public prosecutor noted in a letter of 29 March 2006 that the fact that Ahmet Er’s family had obtained a decree from a civil court presuming him to be dead did not mean that Ahmet Er had indeed died. He decided that the search for Ahmet Er should continue with a view to arresting him under the warrant of 5 January 2006. 41. On subsequent dates the Çukurca gendarmerie informed the Van public prosecutor that their efforts to find and arrest Ahmet Er had been unsuccessful.