ADIYAMAN v. TURKEY
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza
The applicant, Ms Kaside Adıyaman, is a Turkish national who was born in 1950 and lives in Mersin. She was represented before the Court by Mr H. Yılmaz, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 June 1993, at around 10.50 a.m., the applicant's husband, Eyüp Adıyaman and his friend, Muhterem Demir, were shot by unknown perpetrator(s) in the centre of Silvan, a district attached to Diyarbakır. The security forces, arriving shortly after the incident, transferred the applicant's husband and Mr Demir to a state hospital, where they died. On the same day the security forces drafted an incident report and drew up a sketch map. Twelve spent 9-mm cartridges were found at the scene and sent for ballistics examination. According to the incident report, when the police officers arrived at the scene of the incident, Mr Adıyaman and Mr Demir were lying on their backs in a pool of blood, surrounded by a crowd of about hundred to two hundred people. They were immediately transferred to the hospital. Afterwards the police officers collected evidence and tried to collect eyewitness statements. However, no one was able to testify as to what had happened, since they all claimed only to have heard gunshots. The report also mentions that Mr Adıyaman and Mr Demir were known to be PKK (Workers' Party of Kurdistan) sympathisers. On the same day, a post-mortem examination of Eyüp Adıyaman's body was carried out by two pathologists in the presence of the Silvan public prosecutor and Mr Fuat Adıyaman, the deceased's brother. According to the verbatim record, the deceased was forty-three years old, 175 cm tall and weighed eighty-five kilograms. He had black hair, brown eyes and a brown moustache. The record further described the deceased's clothing and personal items found on his person. Rigor mortis and post-mortem hypostasis had not yet set in. An external examination revealed the following injuries: a bullet entry wound 2 cm in front of the right ear lobe and a bullet exit wound on the left side of the head which had destroyed the left ear lobe. A bullet entry wound 2 cm below the right ear lobe and a bullet exit wound on the left occipital bone, which had broken the bone. Two further bullet entry wounds on the right side of the head were identified together with a single bullet exit wound from the left side of the head. A bullet entry wound on the right elbow and a bullet entry wound on the right arm were observed. The experts also noted a bullet entry wound on the front of the left shoulder, an exit wound on the left front shoulder 6 cm from the previous entry wound, and another bullet entry wound on the chest, on the left next to the sternum. The doctors concluded that the cause of death was haemorrhage and damage to the cerebral tissue as a result of wounds caused by firearms. They considered that there was no need to carry out a classical autopsy as the cause of death was clear from the findings of the external examination. The prosecutor agreed. Afterwards the body of the deceased was given to the family for burial and a bullet extracted from the body of the deceased retained as evidence. On the same day, the preliminary investigation into the killings was instigated by the Silvan public prosecutor. He requested the Silvan Security Headquarters to secure the presence of family members of the deceased in order to take statements from them. On an unspecified date the applicant moved to Mersin with her children because other family members had received death threats. Fearing for her safety the applicant neither pursued the investigation into the death of her husband nor lodged a civil or administrative action with the authorities, as she did not want her address to be known. On 10 June 1993 the Silvan Security Headquarters submitted an additional incident report to the Silvan prosecutor's office, which contained the same information as that of the first incident report. This report stated that it had been established that the deceased were active PKK sympathisers. On the same day, the police took witness statements from four people who either lived or worked in the street where the killing took place. Mrs L.E. claimed that she was not at home at the time of the incident. Mr H.S. submitted that his shop was closed on the day of the incident. Mrs A.T. and Mrs S.K. claimed to have heard gunshots but that they were not witnesses to the incident. In the meantime the Regional Criminal Police Laboratory conducted a ballistics examination of the twelve spent cartridges found at the scene. The report issued on 10 June 1993 stated that the cartridges examined were 9 mm parabellum cartridges of two different groups of foreign origin and that they were fired from two different guns. On 9 August 1993 the Silvan public prosecutor heard the applicant's brother-in-law and Mr Demir's father. They both submitted that they did not know who could have committed the killing and requested that those responsible be brought to justice. On 16 August 1993 the Silvan Security Headquarters informed the Silvan public prosecutor that the investigation into the killings was ongoing and that the perpetrators had not yet been identified. The Government submitted numerous items of similar correspondence of various dates between the prosecutor and the Security Directorate. On 25 July 1994 the Silvan public prosecutor relinquished jurisdiction over the case since he considered that the killing of the deceased, who were known to be active PKK sympathisers, by unknown perpetrators, fell within the jurisdiction of the public prosecutor at the Diyarbakır State Security Court. On 19 June 1995 the Silvan Security Headquarters informed the Silvan public prosecutor that three suspects arrested following an operation conducted against Hizbullah had claimed that Mr K.A. was responsible for the killing of the applicant's husband and Mr Demir and that the security forces were working to capture the suspect. On 13 March 1996 the prosecutor at the Diyarbakır State Security Court ordered the Silvan and Diyarbakır Security Headquarters and the Provincial Gendarmerie Command to coordinate their efforts in the search for the perpetrators. The prosecutor instructed that he be informed of any tipoffs, confessions or any other evidence regarding the incident as well as briefed on developments in the case every three months. The prosecutor also requested the collaboration of the Silvan public prosecutor in this respect. On 28 March 1996 the Silvan Security Headquarters informed the prosecutor that they were still searching for Mr K.A. In the meantime, on 7 May 1999, the applicant requested the public prosecutor's office at the Diyarbakır State Security Court to provide her with a copy of her husband's death certificate to be submitted to the Social Security authorities for the establishment of a pension. She personally received the relevant document on 11 May 1999. On 26 November 1999 the applicant lodged a petition with the Silvan public prosecutor's office and requested information as regards the developments in the investigation into the death of her husband. In this petition, the applicant also stated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them On 30 November 1999 the Silvan public prosecutor informed the applicant that the case regarding the death of her husband had been transferred to the public prosecutor's office at the Diyarbakır State Security Court on 25 July 1994. On an unspecified date the applicant lodged a request with the Silvan public prosecutor's office for information as regards the developments in the investigation into the death of her husband. The applicant noted that the documents sent to her by the prosecutor's office concerned only the investigation conducted immediately after the death of her husband. She requested to know what additional steps had been undertaken by the prosecutor and whether any new evidence had been admitted to the case file. She repeated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them. On 20 December 1999 Mr G.K., a public prosecutor at the Diyarbakır State Security Court, with reference to the applicant's request dated 26 November 1999, informed the applicant that the investigation into the killing of her husband and Mr Demir was ongoing and that the perpetrator(s) had not yet been found. On 7 January 2000 the Diyarbakır Security Headquarters informed the prosecutor that it had not been possible to identify the gun with which the 9 mm parabellum cartridges of foreign origin had been fired, as no information had been found linking them to any gun stored in the database. The Government submitted numerous items of correspondence of various dates in which various Security Headquarters regularly informed the prosecutor in charge of the case file about developments in the search for the alleged perpetrator of the killings. On 6 November 2000 public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against Mr K.A accusing him of membership of an illegal armed organisation, namely Hizbullah, and of participating in armed activities on its behalf. On 29 August 2001 Mr K.A., who was carrying a false identity card, was arrested. On 7 September 2001 he was questioned by the police. On that date, Mr K.A. submitted that in the nineties Silvan was mixed ideologically, that he had joined a religious community in 1989 and that until 1994 there was no concept of Hizbullah. Mr K.A. maintained that until February 1992 when a fellow community member Mr H.B. was killed by the PKK their only activities were to gather and to discuss Islam. After this killing it became dangerous to move from one street to another and as a result street patrols were created. Mr K.A. claimed that a few months after that incident he became part of the military wing of the community, since it had become clear to the community that if they did not fight back they would be killed by the PKK. He gave details about the subsequent structure of the organisation of the community and the killings perpetrated by him and other members on various dates. Mr K.A. was later asked to comment on a number of documents found following an operation conducted in the house of the leader of the organisation on 17 January 2000 and police statements of fellow members. Mr K.A., when asked about his involvement in the killing of the applicant's husband, denied taking part in it. He further maintained that after 1995 his ties with the organisation had lessened. On the same date Mr K.A. was heard by a public prosecutor and a judge at a State Security Court, where he denied being part of the armed wing of Hizbullah and participating in any killings. Mr K.A. was subsequently remanded in custody. On 21 November 2000 and 19 September 2001 the public prosecutor at the Diyarbakır State Security Court filed additional bills of indictment against Mr K.A. and other suspects for, inter alia, participating in armed activities on behalf of Hizbullah. In respect of Mr K.A. these were the killing of Mr Ay on 31 May 1992, Mr Ayhan on 19 June 1992, Mr Budak on 1 October 1992 and Mr Cesur on 3 March 1993. He was also accused of participating in the attempted killing of Mr Ekinci and Mr Yuce on 23 October 1992. All these incidents took place in Silvan. On 6 October 2003 the Silvan Security Headquarters informed the Silvan public prosecutor that Mr K.A. had been arrested in 2001 following an operation conducted against Hizbullah and was currently in detention. On 17 May 2004 the prosecutor at the Diyarbakır State Security Court filed an additional bill of indictment against Mr K.A. for inter alia, participating in armed activities on behalf of Hizbullah. This time Mr K.A. was accused of killing the applicant's husband and Muhterem Demir. On 24 May 2004 the criminal proceedings against Mr K.A. regarding the killing of the applicant's husband and of Muhterem Demir commenced before the Diyarbakır Security Court (no. 2004/160). The applicant and Muhterem Demir's wife were written down as plaintiffs (müşteki) and the court ordered that their statements be heard. In the next hearing held on 10 June 2004 Mr K.A. was heard by the Second Division of the Diyarbakır State Security Court. He denied all the charges against him. In particular, he submitted that he did not kill the applicant's husband and Mr Demir. He also stated that Mr M.A. and Mr I.B. had been tried and acquitted as regards the same incident. The court decided to join the case related to the applicant's husband's killing to another case pending before it (no. 2000/115). Throughout the criminal proceedings a number of related cases pending before various courts and concerning Mr K.A. and other suspects and their activities on behalf of Hizbullah were joined to case no. 2000/15. On 16 July 2004 Mrs Demir, wife of Mr Muhterem Demir, was heard by the court, which was acting on rogatory letters, and she maintained that she had not witnessed the events and had no knowledge of the incident. In the course of the trial, the first-instance court heard witnesses and the accused and collected documents from various authorities. It also appears that the court tried unsuccessfully several times to locate the applicant in order to obtain her testimony via rogatory letters. Throughout this time Mr K.A. denied all accusations, submitted that he had been ill-treated during police custody and claimed his innocence. On 3 July 2008 the Diyarbakır Assize Court, in a 224-page reasoned judgment, delivered its verdict in the trial in respect of seven of the accused. Having regard to the evidence in the case file, the court found it established that Mr K.A. was member of an illegal armed organisation, namely Hizbullah, and that he had participated in a number of armed activities on its behalf, including the killing of the applicant's husband on 7 June 1993, and sentenced him to life imprisonment. It transpires from the reasoned judgment of the Diyarbakır Assize Court that proceedings before its Sixth Division concerning another suspect, who had originally been arrested in the operation conducted in1995 and was currently being tried in absentia for taking part in the applicant's husband's killing, were pending. The case against Mr K.A. is pending before the Court of Cassation. A description of the relevant domestic law at the material time can be found in Sabuktekin v. Turkey, no. 27243/95, §§ 60-68, ECHR 2002II (extracts).