AVRAS v. TURKEY
Inadmissible
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
The applicants, Mr Zübeyit Avras, Mr Mesut Avras, Ms Nazime Avras, Mr Hüseyin Avras and Ms Velide Avras are Turkish nationals who were born in 1940, 1956, 1975, 1976 and 1986 respectively and live in Istanbul. They were represented before the Court by Mr Zeki Yüksel and Mr Dinçel Aslan, lawyers practising in Van. The first applicant is the father and the remaining four applicants are the siblings of Mr Sabri Avras, who joined the PKK in 1994. The applicants have not heard from their relative since 1994. On 24 August 2004 a number of newspapers reported that a military operation had taken place in 1994 in an area within the administrative jurisdiction of Bitlis, in south-east Turkey. During the military operation a number of PKK members had been apprehended by members of the Turkish security forces, killed, their bodies mutilated and female PKK members raped by the soldiers. The bodies were subsequently buried in two mass graves. The area where the bodies were buried has been out of bounds for civilians since that date. On 8 September 2004 the applicants, with the assistance of their lawyer, submitted a petition to the Bitlis prosecutor’s office and drew the prosecutor’s attention to the newspaper reports. They alleged that their relative Sabri Avras had also been killed in the operation and asked the prosecutor to exhume the remains, establish their relative’s identity by carrying out DNA tests and then return the remains to the family for burial. On 15 October 2004 the Bitlis prosecutor visited the location in question and found a large number of bones and clothes scattered around a large area. The prosecutor was accompanied by, inter alios, a doctor, a photographer, a gendarmerie non-commissioned officer and a number of persons from nearby villages. Two local villagers told the prosecutor that a military operation had taken place in the area at the beginning of June 1995. The photographer took photos of the bones and the clothes and the doctor confirmed that they were human bones. The bones, clothes and several pieces of military equipment also found in the area were secured for forensic examinations. On 20 October 2004 the Bitlis prosecutor sent the bones to the Forensic Medicine Directorate in Istanbul. He requested the Directorate to establish whether they were human bones and, if so, to establish how many persons had been killed and the deceased persons’ sex and dates of death. On 29 December 2004 the Bitlis prosecutor decided to close the investigation and not to prosecute any members of the security forces who had taken part in the operation in 1995 for the killings. It appears from this decision that, according to the information provided by the Bitlis Gendarmerie Headquarters to the prosecutor, on 2-3 June 1995 a military operation had taken place in the area in question. At the end of the operation the soldiers had recovered the bodies of 27 PKK members but as the area was not safe, no autopsies had been carried out and the bodies had been left there. The prosecutor considered that the persons whose remains were recovered had died in an armed clash with the soldiers. There was insufficient evidence to prove that the persons had been apprehended and then executed, as alleged by the newspapers. In the prosecutor’s opinion, the fact that no autopsies had been carried out on the bodies did not mean that the soldiers had been trying to cover up any offence or that they had acted negligently; the area where the bodies were found had not been safe at the time of the incident, was too remote and was inaccessible by vehicle. The prosecutor also decided that the Van prosecutor would establish the identities of the deceased and return the remains to their families. An objection lodged by the applicants against the prosecutor’s decision was rejected by the Muş Assize Court on 24 June 2005. On 8 May 2006 the Forensic Medicine Directorate prepared its report in response to the prosecutor’s above-mentioned request of 20 October 2004. According to the report, although the macroscopic examination of the bones showed that they belonged to 11 persons, only the bones belonging to six of the deceased were suitable for DNA comparisons. It was established that none of the six deceased was Sabri Avras. On 7 April 2009 the fourth applicant, Hüseyin Avras, asked the Istanbul University Medical Faculty’s Forensic Medicine Department to prepare an independent opinion on the above-mentioned findings of the Forensic Medicine Directorate. According to a report prepared by a professor of forensic medicine, being able to identify only six of the deceased through DNA analysis suggested that the Forensic Medicine Directorate’s findings were not compatible with the rates of success obtained internationally. It was probable that the Directorate had used the organic DNA extraction method rather than silica-based DNA separation. The organic extraction method produced only a 45 per cent success rate, whereas the success rate of the silica method was much higher. Following the introduction of the application, the Government were requested by the Court, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether the forensic examinations carried out by the Directorate had been compatible with the methods referred to in the independent expert’s report. Should their answer be in the negative, the Government were also requested, pursuant to Rule 44A of the Rules of Court, to ensure that further forensic examinations compliant with the applicable international standards were carried out by their authorities with a view to establishing whether the applicants’ relative was among the dead. On 12 May 2011 the Government informed the Court that new and more advanced forensic examinations had been carried out on the remains at the request of the Court. According to the report pertaining to the new forensic examinations, it was established that the remains belonged to 16 persons and that Sabri Avras was not one of those 16 deceased persons. On 13 June 2011 a copy of this report was forwarded to the applicants and they were informed by the Registry that they had the opportunity to submit any written comments they may wish to make on the information supplied by the Government by 11 July 2011. No response was received from the applicants.