CASE OF KURT v. TURKEY
Preliminary objection rejected;Not necessary to examine Art. 2;Not necessary to examine Art. 3 (complaint in respect of applicant's son);Violation of Art. 5;Violation of Art. 3;Violation of Art. 13;No violation of Art. 14+2;No violation of Art. 14+3;No violation of Art. 14+5;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
8. The applicant, Mrs Koçeri Kurt, is a Turkish citizen who was born in 1927 and is at present living in Bismil in south-east Turkey. At the time of the events giving rise to her application to the Commission she was living in the nearby village of Ağıllı. Her application to the Commission was brought on her own behalf and on behalf of her son, Üzeyir Kurt, who, she alleges, has disappeared in circumstances engaging the responsibility of the respondent State. 9. The facts surrounding the disappearance of the applicant’s son are disputed. 10. The facts presented by the applicant in her final observations on the merits of her application in the proceedings before the Commission are contained in Section A below. This account of the facts also addresses her allegation that she and her lawyer have been subjected to intimidation by the authorities on account of her decision to lodge an application with the Commission. The applicant did not reconstitute her version of the circumstances surrounding the disappearance of her son in her memorial to the Court, relying rather on the facts as established by the Commission in its report (Article 31) adopted on 5 December 1996. 11. The facts as presented by the Government are set out in Section B. 12. A description of the materials submitted to the Commission is contained in Section C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s son, as established by the Commission, is set out in Section D. 13. The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s son, conducted its own investigation pursuant to Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence of witnesses at a hearing conducted in Ankara on 8 and 9 February 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Section E. 14. From 23 to 25 November 1993 security forces, made up of gendarmes and a number of village guards, carried out an operation in the village of Ağıllı. On 23 November 1993, following intelligence reports that three terrorists would visit the village, the security forces took up positions around the village. Two clashes followed. During the two days they spent in the village they conducted a search of each house. A number of houses, between ten and twelve, were burnt down during the operation, including those of the applicant and Mevlüde and Ali Kurt, Mevlüde being her son’s aunt. Only three of the houses were near the clashes. Other houses were burnt down on a second occasion during the military operation. The villagers were told that they had a week to evacuate the village. The villagers fled to Bismil, many as they were homeless, and those who were not being too scared to remain. 15. According to the applicant, around noon on 24 November 1993, when the villagers had been gathered by the soldiers in the schoolyard, the soldiers were looking for her son, Üzeyir, who was not in the schoolyard. He was hiding in the house of his aunt Mevlüde (see paragraph 14 above). When the soldiers asked Aynur Kurt, his daughter, where her father was, Aynur told them he was at his aunt’s house. The soldiers went to Mevlüde’s house with Davut Kurt, another of the applicant’s sons, and took Üzeyir from the house. Üzeyir spent the night of 24–25 November 1993 with soldiers in the house of Hasan Kılıç. On the morning of 25 November 1993, the applicant received a message from a child that Üzeyir wanted some cigarettes. The applicant took cigarettes and found Üzeyir in front of Hasan Kılıç’s house surrounded by about ten soldiers and five to six village guards. She saw bruises and swelling on his face as though he had been beaten. Üzeyir told her that he was cold. She returned with his jacket and socks. The soldiers did not allow her to stay so she left. This was the last time she saw Üzeyir. The applicant maintains that there is no evidence that he was seen elsewhere after this time. 16. On 30 November 1993 the applicant applied to the Bismil public prosecutor, Ridvan Yıldırım, to find out information on the whereabouts of her son. On the same day, she received a response from Captain Izzet Cural at the provincial gendarmerie headquarters stating that it was supposed that Üzeyir had been kidnapped by the PKK (the Kurdish Workers’ Party). Captain Cural, who had proposed the plan for the operation in the village, replied in identical terms on 4 December 1993. The district gendarmerie commander noted on the bottom of the applicant’s petition of 30 November that Üzeyir had not been taken into custody and that he had been kidnapped by the PKK. 17. On 14 December 1993 the applicant applied to the National Security Court in Diyarbakır which replied that he was not in their custody records. On 15 December 1993 she contacted the Bismil public prosecutor again but was referred to the gendarmerie. Finally, on 24 December 1993 the applicant approached the Diyarbakır Human Rights Association for help and made a statement on the circumstances surrounding her son’s disappearance. 18. On 28 February 1994 Davut Karakoç (Üzeyir’s cousin), Arap Kurt (Üzeyir’s uncle and muhtar of the village) and Mehmet Kurt (another of Üzeyir’s cousins) were taken to the gendarmerie and questioned about what they knew of “Üzeyir Kurt who was abducted by representatives of the PKK terrorist organisation”. On 21 March 1994 the Bismil public prosecutor issued a decision of non-jurisdiction on the grounds that a crime had been committed by the PKK. 19. The applicant maintains that since submitting her application to the Commission on 11 May 1994 she has been the target of an extraordinarily concerted campaign by the State authorities to make her withdraw her application. 20. On 19 November 1994 the applicant was called to give a statement to the Bismil public prosecutor on the instructions of the Diyarbakır Principal Public Prosecutor. In this statement she was questioned about the statement she made to the Diyarbakır Human Rights Association on 24 December 1993 (see paragraph 17 above) as well as about her application to the Commission. She denied in her statement to the public prosecutor that the villagers had been tortured by the security forces as had been alleged in the statement taken down by the Diyarbakır Human Rights Association and rejected the reference in the latter statement to the effect that her son had been tortured. She had simply told the Human Rights Association that her son’s face looked like it was swollen. 21. On 9 December 1994 the applicant signed a statement addressed to the Diyarbakır Human Rights Association which said that her petitions were written by the PKK terrorist organisation and were being used for propaganda purposes. A similar statement was addressed the same day to the Foreign Ministry in Ankara. 22. On 6 January 1995 the applicant was called by the State authorities to go to a notary in Bismil and was accompanied there by a soldier. She did not pay the notary. The statement which was signed indicated that her only wish was to find her son and that it was for this reason that she had contacted the Diyarbakır Human Rights Association. She indicated that an ill-founded petition had been made in her name by the PKK accusing the security forces of her son’s disappearance. She rejected the application made in her name to the Commission and did not wish to pursue it. 23. On 25 January 1995 a statement was taken by the Principal Public Prosecutor’s office, as part of a file prepared by the authorities for the purpose of bringing a complaint against the applicant’s lawyer, Mr Mahmut Şakar (see paragraph 25 below). 24. On 10 August 1995 the applicant made another statement before the notary in Bismil which purported to withdraw her application to the Commission. While she was not forced to say anything to the notary and she told him what she wanted to be written, the applicant maintained that the statements do not represent her wishes and she had no opportunity to verify the contents of the statements. 25. The applicant states that the authorities have taken steps with a view to prosecuting her lawyer, Mr Mahmut Şakar, for his involvement in her application to the Commission. She refers to a request made in a document dated 12 January 1995 by Mr Özkarol of the Foreign Ministry’s Human Rights Directorate that an investigation be opened against Mr Şakar who was suspected of exploiting the applicant and had made an application against Turkey. 26. Ağıllı is a thirty-six-household village. From this village and its surroundings, about fifteen men and women have joined the PKK, which is a high ratio for such a small village. These include Türkan Kurt, the daughter of Musa Kurt, one of the applicant’s sons. 27. While an operation did take place in the village and clashes occurred between the security forces and suspected terrorists, Üzeyir Kurt was not taken into custody by the security forces. He had no history of previous detention or problems with the authorities and there was no reason for him to be taken into custody. 28. The Government submit that there are strong grounds for believing that Üzeyir Kurt has in fact joined or been kidnapped by the PKK. They refer to the fact that the family allege that his brother died in gendarme custody several years before; the fact that the applicant stated that he hid when the security forces arrived in the village; and the fact that his house was burnt down following the clash in the village. Further, some members of the family had already joined the PKK and several months after the operation in the village a shelter was found outside the village which it was said was used by Üzeyir Kurt in his contacts with the PKK. There is also a strong tradition of villagers escaping to the mountains at the onset of any military action. Villagers have also stated that they heard that he had been kidnapped by the PKK. 29. The Government submit that Üzeyir could have hidden in the village at the commencement of the operation and then, under cover of darkness and poor weather, slipped through the security forces’ blockade. Mehmet Karabulut testified before the Commission’s delegates at the hearing in Ankara that on the night following the first clash Üzeyir was in Mevlüde’s home sleeping (see paragraph 15 above) but that when he woke in the morning Üzeyir was no longer there. The Government stress that Mehmet Karabulut testified that he had not seen or heard soldiers in Mevlüde’s house, which would confirm that Üzeyir went off of his own accord. 30. The only person who claims to have seen Üzeyir after that is the applicant, whose accounts are inconsistent, contradictory and unsubstantiated. In particular, she affirmed to the delegates at the hearing in Ankara (see paragraph 13 above) that the villagers assembled in the schoolyard were blindfolded. She subsequently retracted this statement. Furthermore, her statements to the Diyarbakır Human Rights Association and to the Commission in her application refer to one visit to her son to give him cigarettes, whereas in her oral testimony before the delegates she referred to two visits; her descriptions of how she received a message from her son vary and she could not identify the child who allegedly delivered the message to her that her son wanted cigarettes (see paragraph 15 above). In addition, her account of making two visits passing through the village when the security forces stated they were keeping people in their houses for security reasons is implausible. The Government also maintain that it would have been impossible for the applicant to retrieve her son’s jacket and socks from his house on 25 November (see paragraph15 above) since it was alleged by the applicant that it had been burnt down the previous day. 31. The Government place particular emphasis on the fact that Hasan Kılıç (see paragraph 15 above) in his statement to the gendarmes of 7 December 1994 affirmed that the applicant came to his house, talked to her son who had spent the night there and then left with him. The soldiers had not left with Üzeyir. Furthermore, Üzeyir had not asked for cigarettes to be brought to him at the house; nor did he see Üzeyir being detained in front of his house by soldiers and village guards, as alleged. In fact, as Captain Cural told the delegates at the hearing in Ankara, no village guards had entered the village to back up the military operation. 32. In further support of the inconsistencies and contradictions in the applicant’s account of the events, the Government also point to the allegations originally made in the applicant’s application to the Commission in which it was stated that the soldiers killed the livestock, pillaged goods and beat the villagers. The applicant acknowledged that these allegations were incorrect when giving evidence to the delegates. 33. The Government submit that the applicant was not subjected to any pressure not to give evidence before the delegates as was strongly alleged by the applicant’s representatives. 34. The Government submit that the applicant has clearly stated that she did not wish to make a complaint against the State. Her only concern was to find her son and it was for that purpose only that she went to the Diyarbakır Human Rights Association. She had never been subjected to pressure by the authorities to withdraw her application to the Commission. She had freely made statements to a Bismil notary on 6 January and 10 August 1995 (see paragraphs 22 and 24 above) in which she rejected the application to the Commission which the Diyarbakır Human Rights Association had presented in her name. No soldiers were around her when she made these statements, there was an interpreter present and her statements were read out to her before she fingerprinted them. 35. According to the Government, the applicant has been manipulated by the representatives of the Diyarbakır Human Rights Association who distorted the information which she gave them about the disappearance of her son into unfounded allegations that the soldiers, inter alia, slaughtered and ate the villagers’ livestock during the operation in the village, looted their goods and tortured the persons kept in the schoolyard (see paragraph 32 above). These and other serious allegations were later shown to be fabrications and the applicant has herself denied that she made them. She had never been put under pressure by the authorities not to attend the delegates’ hearing in Ankara. In fact, she had been minded not to attend since she was anxious to discontinue the application. It was in fact her lawyers who put pressure on her to appear since they discovered that she in fact did not want to attend. 36. As to the prosecution of the applicant’s lawyer, Mahmut Şakar, the Government state that he has been instrumental in the manipulation of the application to the Commission and has exploited the Convention system for propaganda purposes. The Government’s decision to take proceedings against him was justified. 37. In the proceedings before the Commission the applicant and the Government submitted a number of statements which she had made between 24 December 1993 and 7 February 1996 to the Diyarbakır Human Rights Association, the Bismil public prosecutor, the gendarmes, the Principal Public Prosecutor’s office at Diyarbakır and to the notary in Bismil. The applicant also submitted official documents concerning the inquiry into the conduct of her lawyer, Mahmut Şakar. These materials were studied by the Commission when assessing the merits of the applicant’s allegations as regards both the disappearance of her son and the intimidation of both her and her lawyer. 38. Statements were taken by gendarmes from twelve villagers between 23 February and 7 December 1994. On 23 February 1994 Arap Kurt, the muhtar of Ağıllı village at the relevant time, Davut Karakoç and Mehmet Kurt (both cousins of Üzeyir Kurt) were interviewed by gendarmes and asked about “their knowledge and observations about the hostage Üzeyir Kurt who had been kidnapped by the PKK”. Hasan Kılıç (see paragraph 15 above), Mevlüde Kurt (see paragraph 15 above) and other villagers present at the time of the military operation were questioned by gendarmes on 7 December 1994. None of the villagers questioned saw Üzeyir Kurt being taken into custody. Hasan Kılıç affirmed in his statement that Üzeyir Kurt had arrived at his house on the morning of 24 November, spent the night there and left the following morning when his mother arrived. While there had been soldiers staying in the house overnight, Hasan Kılıç maintained that the applicant and her son left the house together and the soldiers definitely did not leave with Üzeyir Kurt. All the above statements were studied by the Commission when assessing the evidence before it. The Government rely on these statements to support their contention that the applicant’s son had not been detained in the village by the security forces as alleged and that there was a reasonable likelihood that he had either been kidnapped by the PKK or left to join the PKK. The Government also produced in the proceedings before the Commission the incident report drawn up by security forces on 24 November 1993; a report dated 19 November 1994 from the Bismil public prosecutor to the Diyarbakır Principal Public Prosecutor’s office suggesting that the evidence pointed to the applicant’s son having been kidnapped by the PKK following the clash on 23 November 1993; and a report dated 8 December 1994 prepared by Colonel Eşref Hatipoğlu of the Gendarmerie General Command, Diyarbakır, on the conduct of the operation in Ağıllı village and confirming, inter alia, that the applicant’s son had not been taken into custody. 39. On 30 November 1993 the applicant submitted a thumb-printed petition to the Bismil public prosecutor, Ridvan Yıldırım. It stated that her son had been taken into custody following a clash between the gendarmes and the PKK at her village and that she was concerned about his fate. She requested that she be informed of his fate. On the same date the public prosecutor passed the petition to the district gendarmerie command with a handwritten request for the information to be provided. The district gendarmerie command noted in handwriting on the petition the same day that it was not true that Üzeyir Kurt had been taken into custody and that it was supposed that he may have been kidnapped by the PKK. 40. By letter dated 30 November 1993 Captain Cural, under heading of the provincial gendarmerie command, informed the Bismil Principal Public Prosecutor’s office in answer to their unnumbered letter that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists. 41. By letter dated 4 December 1993 Captain Cural, district gendarmerie commander, under heading of the district gendarmerie command at Bismil, informed the Bismil Principal Public Prosecutor’s office that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists (identical terms to the letter of 30 November in the preceding paragraph). 42. On 14 December 1993 the applicant submitted a fingerprinted petition to the Principal Public Prosecutor at the National Security Court at Diyarbakır. She stated that her son Üzeyir had been taken into custody twenty days previously by gendarmes and since they had had no news, they were concerned for his life. She requested that information be given to her concerning his whereabouts. On the bottom of the petition, the Principal Public Prosecutor noted in handwriting the same day that the name Üzeyir Kurt was not in their custody records. 43. On 15 December 1993 the applicant submitted a second written petition to the Bismil public prosecutor which repeated the terms of her petition of 14 December. The public prosecutor wrote on the petition an instruction to the gendarmerie regional command to provide her with the information requested. 44. On 21 March 1994 the Bismil public prosecutor, Ridvan Yıldırım, issued a decision of dismissal. The document identifies the complainant as the applicant and the victim as Üzeyir Kurt. The crime was identified as membership of an outlawed organisation and kidnapping and the suspects as members of the PKK. The text of the decision stated that following a clash between the PKK and the security forces, PKK members escaped from the village, kidnapping the said victim. Since this crime fell within the jurisdiction of the National Security Courts, the case was dismissed and referred, with the file, to the Diyarbakır National Security Court. 45. The Commission had regard to the documentary evidence submitted by the applicant and the Government in support of their respective assertions (see paragraphs 37 and 38 above). Furthermore, at a hearing held in Ankara from 8 to 9 February 1996 the Commission’s delegates heard the oral testimony of the following witnesses: the applicant; Arap Kurt, the muhtar of Ağıllı village and brother-in-law of the applicant; Ridvan Yıldırım, the public prosecutor in Bismil who had been first approached by the applicant about her son’s disappearance (see paragraph 16 above); Izzet Cural, commander of Bismil district gendarmerie, who had proposed the plan for the military operation in Ağıllı village (see paragraph 31 above); Muharram Küpeli, a commander of a commando unit which was deployed during the military operation in the  village; and Mehmet Karabulut, who had seen the applicant’s son for the last time at Ali and Mevlüde Kurt’s house when the military operation began (see paragraph 29 above). While thirteen witnesses had been summoned to give evidence, only the above six witnesses actually appeared at the hearing and testified. 46. The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question. In so proceeding, it assessed the evidence before it having regard, inter alia, to the conduct of the witnesses who were heard by the delegates at the hearing in Ankara and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Commission also made due allowance for the difficulties attached to assessing evidence obtained at the delegates’ hearing through interpreters and to the vulnerable position of villagers from south-east Turkey when giving evidence about incidents involving the PKK and the security forces. 47. The Commission found that the written and oral evidence was largely consistent as regards the general course of events during the operation. It was established that the villagers were gathered in the schoolyard on the morning of 24 November and searches were then carried out of the villagers’ houses. During the clashes between the security forces and the terrorists who had entered the village the previous evening a number of houses including those of the applicant and her son were burned down. The villagers were again assembled in the schoolyard on 25 November. Three terrorists and one member of the security forces were killed in the clashes which occurred during the operation. Twelve villagers were taken into custody on 24 November and were released on 26 November. The security forces left the village late on 25 November. 48. The Commission noted that it was established that Üzeyir Kurt was present in the village of Ağıllı on the evening of 23 November 1993 and that the evidence pointed to his having stayed the night at the house of his uncle and aunt, Ali and Mevlüde Kurt, because of the clash between the PKK and the security forces. 49. It was also established that when the villagers were gathered in the schoolyard by the security forces on the morning of 24 November 1993, Üzeyir Kurt was not among them. 50. While Hasan Kılıç maintained that Üzeyir Kurt had left with his mother on the morning of 25 November having spent the night at his house, the applicant had however consistently stated that her son was with the soldiers after the villagers had been gathered during the day in the schoolyard. The last time she saw him was when she brought him cigarettes and clothing at Hasan Kılıç’s house where he was being held by the security forces. Her account was largely consistent with her original statement of 24 December 1993 taken by the Diyarbakır Human Rights Association and with her statements and evidence thereafter. While the statement to the Diyarbakır Human Rights Association needed to be treated with caution, having regard to previous criticism which the Commission had made of the accuracy of the statements taken by that association from applicants in other cases, the Commission nonetheless considered that it had evidential value in so far as it was corroborated by the applicant’s detailed account to the delegates. While the statement of Hasan Kılıç appeared to contradict the applicant’s account that her son was detained as alleged, the Commission found that it did contain inaccuracies and was open to differing interpretations. The Commission regretted that Hasan Kılıç did not respond to the summons to attend the hearing and give evidence. Where his written statement appeared to conflict with the account of the applicant who did give oral evidence before the delegates, the Commission preferred the evidence of the applicant, who was found by the delegates to be credible and convincing. 51. The Commission did not consider that the Government’s criticism of the applicant’s account sufficed to undermine her credibility (see paragraphs 30–32 above). As regards her initial allegation that the villagers were blindfolded, it was possible that this was a reference to the twelve persons who were removed from the schoolyard and taken into custody for questioning in Bismil (see paragraph 47 above). As to the applicant’s account of finding cigarettes and a jacket, the Commission saw no particular significance in her omission to specify where she obtained the jacket: the question was never directly put to her. Further, there was nothing in the gendarmes’ testimony to indicate that villagers were not able, if they wished, to move freely from house to house in the period in the early morning before they were gathered for the day in the schoolyard. 52. It had been maintained that the village guards had all been positioned outside the village to mind the military’s vehicles and their members could not therefore have been outside Hasan Kılıç’s house as alleged by the applicant. However, the Commission did not find it excluded on the evidence that village guards were in the village at some time during the operation, contrary to the apparent operational practice whereby the role of village guards should be restricted to areas outside villages other than their own. 53. The Commission found that it was the applicant’s genuine and honestly held belief that her son was taken into custody by the security forces after which he “disappeared” and that there was no basis for inferring that the applicant’s testimony was influenced by a reluctance to accord blame to the PKK or to acknowledge their involvement. Having regard to the assessment of the evidence before it, the Commission accepted her evidence that she saw him surrounded by soldiers and village guards outside Hasan Kılıç’s house on the morning of 25 November 1993. It found that this was the last time he was seen by any member of his family or person from the village. 54. The Commission found it unnecessary to make any findings as to the cause of the burning of the applicant’s house or as to the role, if any, played by the security forces in the decision of the villagers to abandon the village (see paragraph 14 above). 55 56. Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 57. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 58. The Turkish Criminal Code makes it a criminal offence – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), – to issue threats (Article 191), – to subject an individual to torture or ill-treatment (Articles 243 and 245). In respect of all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 59. Generally, if the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. If the offender is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code. 60. Any illegal act by civil servants, be it a criminal offence or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages awarded under Article 47. 61. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 62. In previous cases against the respondent State in which they were involved, the applicant’s representatives have pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme. Decree no. 285 modifies the application of Law no. 3713 (the Prevention of Terrorism Act 1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the regional governor or provincial governors, who also head the security forces. 63. The applicant as well as Amnesty International in their written submissions to the Court have drawn attention to international material on the issue of forced disappearances. The Commission made reference to the following texts and decisions, which are analysed more fully in an appendix to its report (Article 31). 64. The United Nations Declaration on the Protection of All Persons from Enforced Disappearance (G.A. res. 47/133, 18 December 1992) provides, inter alia: “The systematic practice of disappearance is of the nature of a crime against humanity and constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person, the right not to be subjected to torture: it also violates or constitutes a grave threat to the right to life.” 65. The United Nations Human Rights Committee, acting within the framework of the International Covenant on Civil and Political Rights (“ICCPR”) has drawn up reports on a number of cases of forced disappearances: Quinteros v. Uruguay (107/1981) Report of the Human Rights Committee, GAOR, 38th Session, Supplement no. 40 (1983) Annex XXII, § 14; Mojica v. Dominican Republic, decision of 15 July 1994, Committee’s views under Article 5 § 4 of the Optional Protocol to the ICCPR concerning communication no. 449/1991: Human Rights Law Journal (“HRLJ”) vol. 17 nos. 1–2, p. 18; Bautista v. Colombia, decision of 27 October 1995, Committee’s views under Article 5 § 4 of the Optional Protocol to the ICCPR concerning communication no. 563/1993: HRLJ vol. 17 nos. 1–2, p. 19). 66. The Inter-American Convention on Forced Disappearance of Persons (resolution adopted at the 7th Plenary Session by the General Assembly, 9 June 1994, OAS/Ser. P AG/doc. 3114/94 rev.1: not yet in force) provides, inter alia: … Considering that the forced disappearance of persons constitutes an extremely serious form of repression, one that violates basic human rights enshrined in the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the American Convention on Human Rights, … For the purposes of this Convention, forced disappearance is understood to be the abduction or detention of any person by an agent of a State or by a person acting with the consent or acquiescence of a State in circumstances where, after a reasonable period of time there has been made available no information that would permit the determination of the fate or whereabouts of the person abducted or detained. … The forced disappearance of a person is a crime against humanity. Under the terms of this Convention, it engages the personal responsibility of its perpetrators and the responsibility of the State whose authorities executed the disappearance or consented to it. …  By means of ratification or accession to this Convention the States parties adopt the United Nations Standard Minimum Rules for the Treatment of Prisoners (Resolution 663 C [XXIV] of the Economic and Social Council, of 31 July 1957) as an integral part of their domestic law.” 67. The Inter-American Court of Human Rights had considered the question of enforced disappearances in a number of cases under the provisions of the American Convention on Human Rights and prior to the adoption of the Inter-American Convention on Forced Disappearance of Persons: Velásquez Rodríguez v. Honduras, judgment of 29 July 1988 (Inter-Am. Ct. H. R. (Ser. C) no. 4) (1988)); Godínez Cruz v. Honduras, judgment of 20 January 1989 (Inter-Am. Ct. H. R. (Ser. C) no. 5) (1989)); and Cabellero-Delgado and Santana v. Colombia, judgment of 8 December 1995 (Inter-Am. Ct. H. R.). 68. In their written submissions to the Court, Amnesty International identified the following elements of the crime of “disappearances” from their analysis of the relevant international instruments addressing this phenomenon: (a) a deprivation of liberty; (b) by government agents or with their consent or acquiescence; followed by (c) an absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person; (d) thereby placing such persons outside the protection of the law. 69. According to Amnesty International, while “disappearances” often take the form of a systematic pattern, they need not do so. Furthermore, a “disappearance” is to be seen as constituting a violation not only of the liberty and security of the individual but also of other fundamental rights. They refer to the decision of the Inter-American Court of Human Rights in the Velásquez Rodríguez v. Honduras case (judgment of 29 July 1988) wherein that court affirmed that “the phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.” This complex of rights includes the right to life and the right not to be subjected to ill-treatment. The gravity of the violations of the rights attendant on a disappearance has led the United Nations Human Rights Committee to conclude in relation to Article 6 of the International Covenant on Civil and Political Rights that State Parties should take specific and effective measures to prevent the disappearance of individuals and should establish facilities and procedures to investigate thoroughly cases of missing and disappeared persons which may involve a violation of the right to life (General Comment no. 6 (16th Session 1982) [37 UN GAOR, Supp, no. 40 (A/37/40), Annex V] paragraph 1). The Human Rights Committee later affirmed this statement in its Mojica v. Dominican Republic decision of 15 July 1994 with respect to the need to safeguard disappeared persons against the risks of ill-treatment. 70. Citing the above-mentioned Velásquez Rodríguez v. Honduras judgment of the Inter-American Court, Amnesty International reported that the practice of disappearances often involves the secret execution without trial and concealment of the body and that the prolonged isolation and deprivation of an individual are in themselves cruel and inhuman treatment, which is harmful to the psychological and moral integrity of the victim. In its Mojica v. Dominican Republic decision of 15 July 1994, the United Nations Human Rights Committee considered that the disappearance of a person is inseparably linked to treatment that amounts to a violation of Article 7 of the International Covenant on Civil and Political Rights which mirrors Article 3 of the European Convention on Human Rights. 71. Furthermore, Amnesty International has drawn attention to the fact that “disappearances” gravely violate the rights of the “disappeared” person’s family, who almost certainly suffer severe mental anguish, often prolonged for years while uncertainty exists over their loved one’s fate. Amnesty International notes that the United Nations Human Rights Committee has taken this approach in its Quinteros v. Uruguay decision of 21 July 1983.