AKDENIZ AND OTHERS v. TURKEY

 EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23954/94

Mehmet Emin Akdeniz and others

against

Turkey

REPORT OF THE COMMISSION

(adopted on 10 September 1999)
TABLE OF CONTENTSPage

 I.INTRODUCTION

(paras. 1-62)............................................1

A.The application

(paras. 2-5)........................................1

B.The proceedings

(paras. 6-57).......................................1

C.The present Report

(paras. 58-62)......................................6

 II.ESTABLISHMENT OF THE FACTS

(paras. 63-380)..........................................7

A.The particular circumstances of the case

(paras. 64-91)......................................7

B.The evidence before the Commission

(paras. 92-368)....................................14

1) Documentary evidence

(paras. 92-247)....................................14

2) Oral evidence

(paras. 248-368)...................................42

C.Relevant domestic law and practice

(paras. 369-380)...................................70

 III.OPINION OF THE COMMISSION

(paras. 381-532)........................................72

A.Complaints declared admissible

(para. 381)........................................72

B.Points at issue

(paras. 382-383)...................................72

C.Evaluation of the evidence

(paras. 384-472)...................................72

D.As regards Article 2 of the Convention

(paras. 473-481)...................................98

CONCLUSION

(para. 482).......................................100Page

E.As regards Article 3 of the Convention

(paras. 483-494)..................................101

        Concerning the eleven missing individuals

(paras. 483-487)..................................101

CONCLUSION

(para. 488).......................................101

ii.Concerning the applicants themselves

(paras. 489-493)..................................102

CONCLUSION

(para. 494).......................................103

F.As regards Article 5 of the Convention

(paras. 495-502)..................................103

CONCLUSION

(para. 503).......................................105

G.As regards Article 13 of the Convention

(paras. 504-510)..................................105

CONCLUSION

(paras. 511)......................................107

H.As regards Article 14 of the Convention

(paras. 512-515)....................................107

CONCLUSION

(para. 516) ......................................107

I.Former Article 25 of the Convention

(paras. 517-523)..................................107

CONCLUSION

(para. 524) ......................................109

J.Recapitulation

(paras. 525-531)..................................109

CONCURRING OPINION OF SIR NICOLAS BRATZA................111

PARTLY CONCURRING PARTLY DISSENTING

OPINION OF MR L. LOUCAIDES JOINED BY MR E. BUSUTTIL........114

  Page APPENDIX:DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION................115

I.INTRODUCTION

1.                    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.                    The applicants are as follows:

1. Mehmet Emin Akdeniz, born in 1938, lives in Kulp and complains of the disappearance of his brother Mehmet Salih Akdeniz, and his nephew Celil Aydoğdu;

2. Sabri Tutuş, born in 1976, lives in Diyarbakır and complains of the disappearance of his father, Behçet Tutuş;

3. Sabri Avar, born in 1950, lives in Muş, and complains of the disappearance of his son Mehmet Şerif Avar and his brother Hasan Avar;

4. Keleş Şimşek, born in 1950, lives in Mersin and complains of the disappearance of his brother Bahri Şimşek;

5. Seyithan Atala, born in 1970, lives in Diyarbakır and complains of the disappearance of his brother Mehmet Şah Atala;

6. Aydın Demir, born in 1968, lives in Diyarbakır and complains of the disappearance of his brother Turan Demir;

7. Süleyman Yamuk, born in 1955, lives in Muş and complains of the disappearance of his elder brother Abdo Yamuk;

8. Ramazan Yerlikaya, born in 1967, lives in Muş and complains of the disappearance of his brother Nusreddin Yerlikaya;

9. Kemal Taş, born in 1939, lives in Kulp and complains of the disappearance of his son Ümit Taş.

3.                  The applicants complain on their own behalf and on behalf of their relatives. They are represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecturers at the University of Essex.

4.                   The application is directed against Turkey. The respondent Government were represented by their Agents, Mr A. Gündüz and Mr S. Alpaslan.

5.                   The applicants complain that their relatives disappeared after they were detained by soldiers during an operation in October 1993. They complain that their relatives were ill-treated during their detention and also of a lack of any effective remedy in respect of these matters. They allege discrimination in the enjoyment of the above rights on the basis of their relatives’ Kurdish origin. They invoke Articles 2, 3, 5, 13 and 14 of the Convention.

B.The proceedings

6.                   The application was introduced on 5 April 1994 and registered on 25 April 1994.

7.                   On 27 June 1994, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to invite the respondent Government to submit written observations on the admissibility and merits.

8.                   The Government’s observations were received on 4 December 1994 after an extension in the time-limit. They submitted further information on 25 January 1995. The applicant submitted observations in reply on 13 February 1995.

9.                   On 3 April 1995, the Commission declared the application admissible.

10.              The text of the Commission's decision on admissibility was sent to the parties on 26 April 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.

11.              On 9 September 1995, the Commission decided to take oral evidence in respect of the applicants’ allegations. It appointed three Delegates for this purpose: Mrs Liddy, Mr Pellonpää and Mr Lorenzen. The Government were requested to identify certain witnesses.

12.              By letter dated 31 October 1995, the Government provided information concerning the application.

13.              By letter dated 1 November 1995, the applicants made certain proposals concerning the taking of evidence.

14.              By letter dated 29 November 1995, the Government provided information about witnesses and the application.

15.              By letters dated 6 February, 11 March and 19 April 1996, the Government provided clarifications concerning certain witnesses.

16.              By letter dated 16 July 1997, the applicants made requests for certain information to be provided by the Government concerning the application.

17.              By letter dated 24 July 1997, the Delegates requested the Government to provide certain documents and information, including the custody records for places of detention in Kulp, Bingöl and Müş for the period September-December 1993.

18.              By letter dated 30 July 1997, the Delegates requested the applicant to provide certain information.

19.              By letter dated 15 September 1997, the applicants provided information about their witnesses and attendance at the taking of evidence, including the fact that one of the applicants, Sabri Tutuş was currently doing his military service and required special permission to attend.

20.              By letter dated 18 September 1997, the Delegates requested the Government to facilitate the attendance of the applicant Sabri Tutuş at the hearing.

21.              By letter dated 2 October 1997, the Delegates requested the Government to clarify whether there was a General Yavuz Ertürk, connected with the Bolu regiment in or about October 1993.

22.              Evidence was heard by the Commission's Delegates in Ankara from 30 September to 4 October 1997. Before the Delegates, the Government were represented by Mr A. Gündüz, Mr S. Alpaslan and Mr D. Tezcan, Acting Agents, assisted by Ms M. Gülşen, Mrs Y. Renda, Mr A. Kaya, Mr H. Karahan and Mrs N. Ayman. The applicant was represented by Ms F. Hampson, Ms A. Reidy and Mr O. Baydemir, as counsel, assisted by Mr S. Leader, Mr K. Sidar, Mr Metin Kilavuz and Mr Mahmut Kaya (interpreter). During the hearing, the Government provided documents from investigation files from the Diyarbakır and Kulp public prosecutors.

23.              On 14 October 1997, the Delegates requested the Government to provide certain information and documents, namely, the custody records previously requested.

24.              By letter dated 2 December 1997, the Government provided information concerning General Yavuz Ertürk.

25.              On 18 December 1997, the Delegates informed the parties that they had decided to call further witnesses, including General Yavuz Ertürk and Mr Kadir Koçdemır (previously Governor of Kulp) to a hearing to take place in Ankara in May 1998. The Government were requested to consult these witnesses with a view to establishing when these witnesses would be available to give evidence.

26.              By letter dated 15 January 1998, the Government informed the Delegates that General Yavuz Ertürk was available in May but could not give evidence unless certain security requirements were met, including the condition that the applicants’ representatives would not be in the same room as him.

27.              By letter dated 23 January 1998, the Delegates requested the Government to clarify the reasons why the conditions were necessary.

28.              By letter dated 5 February 1998, the Government informed the Delegates that Mr Kadir Koçdemır could not attend the hearing in May. By letter of 9 February 1998, the Government gave details of their reasons for requiring conditions for the hearing of General Yavuz Ertürk.

29.              By letter dated 12 February 1998, the Delegates requested the Government to clarify when Mr Kadir Koçdemır would be available.

30.              By letter dated 18 March 1998, the Delegates informed the Government that they agreed for General Yavuz Ertürk to be heard on premises designated by them but that they considered it appropriate for the chief counsel of both the Government and the applicants to be present in the room when he gave his evidence, such being essential for a proper assessment of the witness’s demeanour. The Government were requested to make all the necessary technical arrangements for the hearing to take place at the location which they designated.

31.              On 18 March 1998, the Delegates requested that the applicants provide further information.

32.              On 27 April 1998, the applicants provided further information and their response to the Government’s proposed security arrangements for the hearing of General Ertürk.

33.              By letter dated 27 April 1998, the Government repeated its position with regard to the conditions for the hearing of evidence from General Ertürk.

34.              By letter dated 29 April 1998, the Delegates informed the Government that they maintained their view that certain of the conditions were not necessary but that, in light of the Government’s position, they agreed to hear the General in a room separate from both the parties. They requested the Government to arrange for the necessary technical arrangements to allow the parties to hear his evidence via a sound link.

35.              Evidence was heard by the Commission's Delegates in Ankara on 4 and 9 May 1998. Before the Delegates, the Government were represented by Mr M. Özmen, Agent, assisted by Ms M. Gülşen, Mrs Y. Renda, Mr A. Kaya, Mr Ş. Ünal, Ms B. Cankorel, Mr K. Alataş, Mr E. Genel, Mr F. Polat, Mr A. Karataş, Mrs N. Eser and Mrs N. Ayman. The applicants were represented by Ms. F. Hampson and Ms A. Reidy, as counsel, assisted by Ms A. Akat, Ms Z. İnanç and Mr H. Bakiken. On 9 May 1998, evidence was heard from General Yavuz Ertürk on premises stipulated by the Government and in a room separate from the parties’ representatives. The relay of interpretation of his evidence to the room in which the parties were attending was switched off on the objection of the Government since the General’s voice was also being transmitted due to the technical arrangements in operation.

36.              On 12 May 1998, the Delegates requested that the Government provide the operation report for the operation conducted by General Ertürk and for the extracts from the custody records in the region for the relevant period.

37.              By letter dated 29 May 1998, the President of the Commission drew to the attention of the Government the fact that the subjecting of the Delegates to personal searches prior to the hearing of the evidence of General Yavuz Ertürk had not been compatible with the Second Protocol to the General Agreement on Privileges and Immunities of the Council of Europe.

38.              On 22 May 1998, the Government provided further information about the availability of Mr Kadir Koçdemır. On 27 May 1998, the Government requested a one month extension in the time-limit for the submission of the information requested by the Delegates.

39.              By letter dated 2 June 1998, the Delegates informed the parties that having regard to the lapse of time they did not propose to take further evidence in the case and that the Commission had decided on 23 May 1998 that the parties should be invited to submit their final observations on the merits.

40.              On 10 June 1998, the Secretariat sent copies of the verbatim record of the hearing in May to the parties, and informing them that they could submit written questions concerning the evidence of General Yavuz Ertürk.

41.              At the request of the applicants dated 14 July 1998, the time-limit for the submission of final observations was extended until 31 August 1998.

42.              By letter dated 16 July 1998, the Government offered to make available the incident report subject to the condition that it was not shown to the applicant’s representatives.

43.              By letter dated 20 July 1998, the Government submitted written questions which it requested be put to General Ertürk for his response. By letter dated 30 July 1998, the Delegates agreed to this request.

44.              By letter dated 30 July 1998, the Government replied to the President’s letter concerning the incident arising during the taking of evidence.

45.              Following a request of the Government dated 7 August 1998, the time-limit for the submission of final observations was extended until 15 October 1998.

46.              By letter dated 14 August 1998, the applicants’ representatives requested, inter alia, information concerning the evidence given by General Ertürk.

47.              By letter dated 16 September 1998, the Commission informed the Government that it could not agree to accept the incident report subject to the condition proposed.

48.              By letter dated 25 September 1998, the Delegates requested the Government to respond to certain requests made by the applicants for information.

49.              By letter dated 12 October 1998, the applicants requested an extension in the time-limit until 27 October for the submission of observations on the merits.

50.              On 21 October 1998, the Government submitted their final observations. On 22 October, they submitted the response of General Yavuz Ertürk to their questions.

51.              On 27 November 1998, the applicants submitted their final observations.

52.              By letter dated 2 December 1998, the applicants submitted further information and comments.

53.              On 15 December 1998, the Government provided a copy of the operation report previously requested.             

54.              On 8 January 1999, the Government made comments on the submissions of the applicants.

55.              By letter dated 11 February 1999, the applicants submitted further information and comments.

56.              On 6 September 1999, the Commission decided that there was no basis on which to apply former Article 29[1] of the Convention.

57.              After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

58.              The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

E. BUSUTTILG. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

SirNicolas BRATZA

MMI. BÉKÉS

D. ŠVÁBY

A. PERENIČ

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

59.              The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

60.              The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

61.              The Commission's decision on the admissibility of the application is annexed hereto.

62.              The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

63.              The facts of the case, particularly concerning events during October 1993 at or near the village of Alaca, are disputed by the parties. For this reason, pursuant to former Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.

A.The particular circumstances of the case

1.Facts as presented by the applicant

64.              The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B: “The evidence before the Commission”. The version as presented in the applicant's final observations on the merits is summarised briefly here.

65.              The Alaca village is not a village in the Western European sense, but an administrative area, under the authority of a muhtar, consisting of a large number of small villages and hamlets and covering an extensive area. It includes two discrete areas. The northern half includes both sides of a river along which were located the hamlets of Gurnik, Mezire and Licik. There was a road along the side of the river linking Kulp to the south-west and Muş to the north-east.  While Alaca was attached to the Kulp district and Diyarbakır province, parts of it were very close to the Muş provincial boundary and the hamlets of Kaylisu and possibly Inkaya were just across the Muş boundary. According to the villagers, the boundary of Alaca was north of the river and included at least some of the Şen plateau[2].  Alaca also included Andok mountain and villages to the south and south-west of the mountain, which acted as a natural barrier to the two areas of Alaca.

66.              An operation took place from about 8 to 24 October 1993 in the Alaca village area. General Yavuz Ertürk, who commanded the 2nd commando brigade from Bolu had 2, 500 soldiers under his command, half of which were from his own unit. His forces included 300 men from the Muş gendarme commando division. His forces were spread out before the operation and converged on the operational area from Kulp, Muş and Lice. A unit from Kulp set up a billet at the foot of the Şen pastures on 10-11 October 1993. Helicopters were in use by the forces for bringing in field rations, ammunition and for transporting the dead and wounded. Helicopters were also used for moving detainees around.

67.              At the beginning and during the operation, there was bombardment and firing from helicopters and planes over the Şen pastures. The objectives of the operation were to uncover and destroy PKK stores and weapons caches and to catch PKK terrorists and persons assisting and harbouring them. There was also the intention of persuading people to leave their villages by destroying their homes and crops, which was consistent with the objective of depriving the PKK of food and shelter, whether offered voluntarily or under coercion. Pireş, Gurnik, Kayalısu, Licik and Bongiya were all destroyed, soldiers setting fire to homes and crops.

68.              Stores were found around Gurnik and Kepir. A list of 34 persons detained during the operation was produced by the General, none of which featured in the Muş or Bingöl custody records, despite his evidence that these persons were handed over to Muş gendarmes. Very many people however were detained during the operation for varying lengths of time but there are no apparent records of those held by the security forces in the field of operation.  The applicants submit that there was an arbitrary round-up of males in the vicinity of the operation. Some men were used as guides to show particular places to the security forces but some villagers were deliberately sought out and detained, presumably on suspicion of aiding the PKK.

69.            Mehmet Salih Akdeniz was the muhtar of Inkaya. When the operation began, he was on the Şen plateau with his family. There was a bombardment and Mehmet Salih Akdeniz was taken by the soldiers, possibly to act as a guide. He was seen at Panak or Gurnik and then later was held with others at Kepir. He was not tied up and was visited by Pembe Akdeniz. There was suspicion against him that as a muhtar he was assisting the PKK by providing food.

70.              Celil Aydoğdu was detained one day after Mehmet Salih Akdeniz, also being held with him at Gurnik, with Turan Demir and Mehmet Şerif Avar. He was already at Kepir when the group of detainees arrived from Pireş/Mezire. He may have been shot in the foot. The witness who said this may however have been referring to Abdo Yamuk who was also known as Celil. Celil Aydoğdu was seen tied up on the ground, in a bad way, with his mouth bleeding.

71.              Mehmet Şerif Avar was detained by the soldiers at Gurnik. He was already at Kepir when the group of detainees arrived from Pireş/Mezire. He was seen with his hands tied. His feet were also tied and his toes had swollen. Mehmet İlbey saw him being taken a 100 metres into the forest, and though he did not see what happened, he heard screams and shouts. When Mehmet Şerif Avar returned, Mehmet İlbey saw no signs of injury but described him as looking terrible. It had seemed that Mehmet Şerif Avar was going to be released at the same time that Mehmet İlbey was, but a soldier talked to some-one on the radio and Mehmet Şerif Avar was immediately taken back into custody with Turan Demir.

72.              Hasan Avar was detained in Bongiya hamlet the day after the operation had begun. The soldiers arrived in the hamlet the next day and burned the four houses. Hasan Avar was taken to the cemetery in Mezire, where he stayed for one day and night, with Mehmet Şah Atala, Sirin Avar and Ali Yerlikaya.  Hasan was one of eight persons, including Abdurrahim Yerlikaya, put in a helicopter and taken to Kepir.

73.              Behcet Tutuş had sold animals in Mersin and had gone to Muş to collect the cheque. He returned with his brother Selahattin in a minibus, which was stopped at Kozme. Ten passengers continued on foot to Gurnik. Behcet Tutuş and his brother were detained at Gurnik with Turan Demir and Mehmet Şerif Avar. They were taken together to Kepir. Behcet Tutuş’s hands were tied behind his back and to his neck. Once going to the lavatory, Behçet Tutuş tried to pass TL 20 million to his brother but they were seen and a soldier took the money. Behçet Tutuş was beaten. Mehmet İlbey heard that he had briefly been taken away with Nusreddin Yerlikaya to show the soldiers the location of shelters. He also saw Behçet Tutuş amongst those taken 100 metres into the forest, and though he did not see what happened, he heard screams and shouts. Afterwards, Behçet Tutuş looked terrible.

74.                Bahri Şimşek was detained at Mezire, with a large number of other villagers. They spent the night a little further up from the hamlet and were beaten and insulted.  Villagers from Pireş, including Süleyman Atala and Şirin Avar, were also held there. The soldiers then made a selection, releasing most villagers and telling them to leave their homes at once, while Bahri Şimşek and others were placed on a helicopter and taken to Kepir. Bahri Şimşek was seen at Kepir with his hands and feet tied. His brother Keleş Şimşek was able to talk to him for 3-4 hours - Bahri Şimşek told him that the soldiers had been looking for some-one with the name Bahri Şimşek and that they were tied to trees at night.

75.                Mehmet Şah Atala was in Diyarbakır on 9 October 1993. He was returning to his village but on reaching Geliye Mesur, a hamlet half an hour from his home, the villagers told him not to go further on account of the operation. That night, soldiers went to Mezire, to the home of his parents looking for him. They detained Süleyman Atala, his elder brother and he spent the night at the cemetery in Mezire. The next day, Süleyman Atala was taken by the soldiers to locate Mehmet Şah Atala’s home.  Soon after they found the address, Mehmet Şah Atala arrived home. Süleyman Atala was released and Mehmet Şah Atala was detained.  His mother was given the impression that the soldiers took him to act as a guide but that he also had to make a statement. That night, he was tied up in Mezire cemetery with about 15-20 others. A soldier told him that he was in trouble as there was a photograph showing him with PKK terrorists.  Early next morning, a helicopter arrived. Some-one got out, wearing a chador, which was blown aside by the wind of the propellers. Mehmet Şah told his mother later that he recognised the man but was too frightened to tell her the name. After a selection was made amongst the detainees, most were released and Mehmet Şah, with nine others, was flown to Kepir on 11 October 1993. At Kepir, he was seen with his hands and feet tied. On the first visit from his mother there, he was shivering and complaining of the cold. On another visit, his face was flushed and he was shaking terribly. He cried a lot on the third visit, said that there was “a squealer” in Kepir and that they would definitely be killed.

76.                Turan Demir arrived in Gurnik with Mehmet Şerif Avar, Behçet and Selahattin Tutuş some days after the operation to help to evacuate his family. He was detained by soldiers in Gurnik and taken to Kepir. Turan Demir was seen there with his hands tied and he was one of the men who was seen being taken into the forest, after which screams and shouts were heard. Turan Demır told his mother who visited him that he was accused of supplying provisions to the PKK. It had seemed that he was going to be released at the same time as Mehmet İlbey and Mehmet Şerif Avar, but a soldier talked to some-one on the radio and Turan Demir and Mehmet Şerif Avar were immediately taken back into custody.

77.                Abdo Yamuk, also known as Abducelil and Celil, was in the village of Pireş at the start of the operation. After soldiers came to his house with Süleyman Atala, Abdo Yamuk was taken by the soldiers to Şuşan. From there, he was brought to Pireş and held overnight before being flown to Kepir. An incident occurred at Kepir, when a shot was fired. Abdo Yamuk was seen being held by two soldiers and it was seen that he was wounded in the leg.  He was taken away in a helicopter to the Şen plateau and brought back two days later.

78.                  Nusreddin Yerlikaya was detained in Kayalısu, after soldiers arrived at his house with Mehmet Tutuş, an uncle. The house was searched. Nusreddin, Medeni and Abdurrahim Yerlikaya were taken to Pireş, where they spent one night with other detainees. They were amongst those selected to fly to Kepir the next day. On 12 October, Nusreddin, with Behçet Tutuş, was taken by soldiers to show them PKK shelters and then brought back. Nusreddin Yerlikaya was amongst those whom Mehmet İlbey saw being taken to be questioned 100 metres away in the forest, after which screams and shouts were heard. When they came back, 10-30 minutes later, they looked terrible but showed no other sign of injuries.

79.                Ümit Taş lived with his father in a different area, in Col hamlet of Seyh Hamza village, Kulp district. He had gone to pay a creditor in Kulp and was detained there on 25 September 1993. He was held for five days. His brother Mehmet Tahir visited him there and was then told that Ümit Taş had been released. When Mehmet Tahir reached home, he found that Ümit had not arrived. Mehmet Tahir returned to Kulp to make enquiries from the police or gendarmes. He was beaten up. Returning to his village, his chin was swollen and he could not eat for 3-4 days. Kemal Taş, the father of Ümit Taş, then went to Kulp to make enquiries. He submitted a petition to the police headquarters but was told that his son was not there. He learned that his son had been handed over to the operation unit from Bolu. He submitted a petition to a Major Ali, possibly the district gendarme commander Ali Ergülmez. He later learned from an acquaintance and relative that nomads had seen his son outside the Panak station with his hands tied. He heard that his son was taken from there to Gurnik. He went to Gurnik. When he arrived, all the houses had been set on fire and he heard that eleven detainees from Kepir had been taken away in a helicopter.  Detainees who had been released had seen his son amongst them.

80.                Kepir was a short distance, uphill, from Gurnik, about 15-30 minutes on foot. It was a gently sloping area, which at a higher altitude levels out into open space suitable for the landing of helicopters. The lower slopes were wooded and there were trees around the area used by the soldiers as a camp. The camp was guarded and entry was controlled by the soldiers. The camp commander was called Mustafa, possibly a first lieutenant, while there was a blond NCO from Bolu called Şenol and a short, dark, Kurdish speaking NCO from Urfa, also from the Bolu forces.  There were apparently three groups of detainees at Kepir.  There were 11 detainees, who with the exception of Mehmet Sali Akdeniz had their hands and feet tied. A second group consisted of those who had to surrender their ID cards and remain in Kepir during the day but at night went to sleep in nearby houses. There was possibly a third group who were tied up at night but during the day were untied to eat and relieve themselves. This included Abdurrahim Yerlikaya. Mothers and wives were allowed to visit the detainees and on some occasions male relatives.  Most of the witnesses, all of those held at Pireş/Mezire and most of those at Kepir, reported the presence of a man covered in a chador. It is not clear whether there were two men, one seen at Pireş cemetery and the other at Kepir, who were acting as informers. The man at Kepir was identified by some witnesses as Hakki Zumrut. Though Hakki Zumrut denied when questioned by the Commission Delegates that he had been an informer or that he had been with the soldiers voluntarily or otherwise, his brother Süleyman Zumrut had reportedly said that Hakki had been taken away by the soldiers on 7 October 1993.

81.                By about 17 October 1993, all the detainees, except the group of eleven detainees, had been released. On or about that date, this group of eleven were seen being taken up the hill to where the helicopters landed and they were seen boarding one or two helicopters which took off in the direction of Bingöl. They were not seen again by any of their relatives.

82.                The applicants approached every conceivable authority, sometimes alone or in small and varying groups.

1. Mehmet Emin Akdeniz wrote to a petition to the State Security Prosecutor on 1 and 8 November 1993. He went to the Bingöl public prosecutor on 18 January 1994, who spoke on the phone with a major. In Diyarbakır, he contacted Mehmet Gören a friend of the regiment commander. He also went to Ankara where, on 23 November 1993, he saw the Prime Minister and the Minister for Human Rights. He contacted the Minister of the Interior and on 27 November went back to see the Minister for Human Rights. He went to see the deputy regional governor with seven others. He went to Kayseri, submitting a petition to the prosecutor and enquiring at the prison. In 1994 or 1995, police officers in plain clothes came to his house and took him into custody for two days and nights. He was brought before the State Security Court prosecutor who asked him about his application to Europe.

2. Sabri Avar went to the police in Diyarbakır, accompanied others to see the Kulp district governor and petitioned the Muş public prosecutor.

3. Selahattin Tutuş went to the Kulp public prosecutor who sent him to Diyarbakır. He went to the Provincial Governor’s officer. Sabri Tutuş went to see the Kulp District Governor with Süleyman Yamuk and Sabri Avar and to enquire at the gendarmerie. He also went to see the Diyarbakır provincial governor and public prosecutor.

4. Seyithan Atala went first to the Diyarbakır State Security Court and returned repeatedly with petitions. He checked the prisons regularly. He saw the Emergency Area Assistant Governor and went with Mehmet Emin Akdeniz and Aydin Demir to the provincial gendarme headquarters, where they talked to a lieutenant colonel. On 27 December 1993, he went with Aydin Demir, Süleyman Yamuk and Sabri Avar to Kulp, where they saw the public prosecutor, the governor Kadir Koçdemır and then the Kulp gendarme commander. In light of what the governor said about the involvement of the Bolu forces, he went to Bolu with Süleyman Yamuk in an attempt to see General Yavuz Ertürk.

5. Keleş Şimşek approached the authorities in Diyarbakır.

6. Aydın Demir went to the Diyarbakır gendarmerie and to the Governor.

7. Kemal Taş went to the public prosecutor, police and gendarmes in Kulp, the commando unit, police and public prosecutor in Elazıg, the prison in Bingöl, Muş, Erzurum (including the prison) and Erzincan where a woman prosecutor suggested he try Diyarbakır. He submitted three or four petitions to the Diyarbakır public prosecutor.

8. Süleyman Yamuk went to the public prosecutor in Bingöl, the Diyarbakır State Security Court, the District Governor in Kulp (with Seyithan Atala, Sabri Avar and Kemal Taş) and to Bolu with Seyithan Atala. He submitted two petitions to the Ministry of Justice.

9. Ramazan Yerlikaya went to the Governor’s office in Diyarbakır and the State Security Court. On 27 December 1993, he went to the Governor’s office in Kulp with Seyithan Atala, Süleyman Yamuk and Sabri Tutuş and also to the authorities in Muş and Diyarbakır.

83.                There was no effective investigation into their complaints. The Kulp prosecutor appears to have sent the file to the Diyarbakır State Security Court on the basis that the eleven missing people had been abducted by the PKK, notwithstanding eye-witness statements in the file that the missing people were taken by the security forces. The Diyarbakır State Security Court public prosecutor, Bekır Selçuk, took the view that there was no corroborating evidence of the allegations and therefore no basis on which to launch an investigation.

84.                However, all the applicants, except Seyithan Atala who was doing his military service, were summoned either to the Diyarbakır State Security Court prosecutor (Mehmet Emin Akdeniz, Sabri Tutuş in 1994 or 1995) or another prosecutor (Sabri Avar in June 1996 by the Muş public prosecutor, Keleş Şimşek and Süleyman Yamuk in 1996 by the Mersin public prosecutor - Yamuk was asked about his application). Aydın Demir was held overnight by the police and next day brought before a judge or prosecutor who asked about his application, while in 1996 RamazanYerlikaya was called to the public prosecutor and asked about his application.

2.Facts as presented by the Government

85.                The Government's account of events as based on their observations are summarised as follows.

86.                As soon as the authorities were informed of the alleged disappearance of the eleven persons, investigations were carried out at the judicial and administrative level as well as by the security forces, including the army and the police. The first official reply as to whether an operation had taken place was in response to an enquiry by the Governor of Diyarbakır dated 21 December 1994. In the reply of 31 December 1994 by the General Gendarme Command of the Ministry of the Interior, it was stated that no operation had been carried out on 9 October 1993 within the area of Kulp-Alaca village, that none of the eleven persons had been detained and no written applications about the disappearance had been made to the Kulp gendarme headquarters. A more recent communication dated 13 November 1997 from the Military Chief of Staff, Ankara, stated that at the relevant time the Bolu regiment was situated in Muş and that they did not carry out any operation on or around October 1993 at Kulp-Alaca village. General Yavuz Ertürk gave details to the Delegates about the operations which he had conducted in Şen or Şenyayla, indicating that his forces did not go near Kepir as alleged. The operation in October 1993 concerned only 2500 men and they did not utilise helicopters capable of carrying eleven persons in addition to security personnel. The purpose of the operation was to capture members of the PKK and those aiding and abetting them. Any unarmed civilians found in the area would have been questioned about their knowledge of the terrorists but there was no question of any civilians being detained as they would be transferred to the closest gendarmerie force in the area. Thirty persons who had been apprehended had been transferred to Muş. His soldiers were under instructions not to give information about the fact that they were from Bolu. No aerial bombardment by planes had been involved in the operation due to the wooded nature of the area and to avoid the terrorists being given advance warning of the operation. During the operation, more than forty terrorists had been captured, hideouts and logistical materials had been located.

87.                On a judicial level, the investigation into the alleged disappearances was largely conducted by the Kulp public prosecutor and the Diyarbakır State Security Court public prosecutor. The first official application, made by Mehmet Emin Akdeniz on 1 November 1993, was replied to by the Diyarbakır public prosecutor, who stated that there was no record of the names in their files. A renewed application on 8 November 1993 received the same response on 11 November 1993. The Bingöl public prosecutor replied to an enquiry by Mehmet Emin Akdeniz on 18 November 1993, stating that there was no information or entries in their records. On 14 December 1993, Mehmet Emin Akdeniz and Aziz Atala made an application to the Kayseri public prosecutor, querying whether commando troops could have brought eleven missing people there, but the public prosecutor informed them that, following his request for information, Kayseri prison stated that there was no record of the eleven missing persons. Hüsnü Demir applied to the Diyarbakır State Security Court on 26 November 1993, and allegedly on 17 December 1993. He was informed that there was no record of his son Turan in the files.

88.                On 27 December 1993, a group of the applicants (Sabri Tutuş, Süleyman Yamuk, Ramazan Yerlikaya, Seyithan Atala and Sabri Avar) made an application to the Kulp public prosecutor. This was registered under the preliminary investigation file 1993/130. Kemal Taş also applied to the Kulp public prosecutor on 15 December 1993 in respect of his son Ümit Taş. The Kulp public prosecutor took Kemal Taş’s statement immediately. He requested information from the authorities about the eleven missing persons.  His enquiry to the Diyarbakır State Security Court prosecutor of 28 December 1993 was replied to on 14 January 1994, it being stated that the names of the missing persons were not in their records. He also contacted public prosecutors in other towns for information, who commenced their own enquiries.  Written requests were sent to the local police and gendarmerie, but no entries were found in any custody or detention register.

89.                The records showed that Ümit Taş had been detained from 25 September to 30 September 1993 but that he had been released, on completion of all the necessary documentation.

90.                The oral evidence of the applicants and members of their families was full of contradictions and inconsistencies. The Government refer, inter alia, to the statement given by Zeki Akdeniz to the Kulp public prosecutor on 19 December 1994, when he said that his father Mehmet Salih Akdeniz was on bad terms with the PKK and had become their target and that it was known that he and Celil Aydoğdu had been kidnapped by the PKK. When Pembe Akdeniz described one of the men holding her husband prisoner, the description (namely, that he was barefoot and wearing torn trousers) accorded with that of a PKK terrorist, it being impossible that a Turkish soldier had such an appearance on an operation. Significantly, Aydın Demir described the soldiers as all talking Kurdish, although in the Turkish army, the soldiers are all Turkish and would not speak Kurdish under any circumstances.

91.                It was, inter alia, the statement of Zeki Akdeniz which led the Diyarbakır State Security Court chief public prosecutor, Bekir Selçuk, to conclude that it was the PKK that had kidnapped the eleven missing persons and that afterwards the PKK had told the relatives to make applications to the authorities, including the Commission. The Government point out that since the PKK began operating, many people, especially young men and women had been persuaded or coerced into joining its ranks, while those with pro-State tendencies were intimidated, forced to leave the area or had been kidnapped and later executed.

B.The evidence before the Commission

1)Documentary evidence

92.                The parties submitted various documents to the Commission. These included documents from the investigation and court proceedings and statements from the applicant and witnesses concerning their version of the events in issue in this case.

93.                The Commission had particular regard to the following documents:

a) Documents submitted by the applicants in their application to the Commission

Statement dated 21 December 1993 of the applicant Aydın Demir taken by the HRA

94.                The applicant’s elder brother Turan Demir was taken into custody when he arrived in Gurnik on 9 October 1993. The applicant was in Muş at the time and arrived in Gurnik three days later. His mother and father told him that Turan had been taken. The soldiers burned the village. His mother Zekiye Demir and Hediye Atala took bread, water and cigarettes over nine days to their sons who were in custody about 1 kilometre from the village.  The whole village witnessed that Turan and 10 others were kept by the soldiers during these nine days. On the ninth day, his mother Zekiye saw a helicopter arrive at the place where Turan was detained. When she reached the place, the helicopter had gone and the detained persons were no longer there. When she asked the soldiers where the persons had been taken, the soldiers did not reply. His mother told him these things three days later as meanwhile he had taken the children to Kulp as the village had been burned. They had applied to the Kulp gendarme command, Diyarbakır State Security Court, the Diyarbakır Governor, the State of Emergency Governor, and the Kayseri, Bolu and Bingöl gendarmes commands. None of them admitted that they had his brother and the other persons.

Statement dated 24 December 1993 of the applicant Ramazan Yerlikaya taken by the HRA

95.                The applicant’s family lived in Licik hamlet, Kayalısu village, which was on the Muş side of the district boundary. He and his brother Nusreddin were taken into custody on the same day, though at different times and at different locations. He was stopped by Captain Salih and Captain Tuncay, who were with 150-200 soldiers, as he was returning from Muş to the village. After they had looked at his ID, the officer sent a message on his walkie-talkie, saying that he had caught Ramazan Yerlikaya and received back the message that Nusreddin Yerlikaya had also been caught. The applicant was taken to his village. He was held, bound, for nine days at Lacih hamlet with some others, including his cousin Seyithan Altınkalem. From there, he was taken to Muş security directorate.  After eight days, he and Seyithan were released. Meanwhile, his brother Nusreddin, and his other brothers Abdulrahim and Medeni, as well as their cousin Ali Yerlikaya, had been taken to Alaca village and held there. After 10 days, Nusreddin and 10 others had been taken to an unknown place by helicopter. Abdurrahim, Medeni and Ali had all been released with the others after nine days. He had had no news since.

Statement dated 24 December 1993 of the applicant Sabri Tutuş taken by the HRA

96.                On 9 October 1993, his father Behçet Tutuş, aged 44, resident at Licik hamlet, Kayalısu village, Muş, was returning home after selling livestock in Muş and banking the proceeds. He had kept TRL 20 million cash with him. He was arrested with the applicant’s uncle Selahattin Tutuş as they passed through Alaca.  Selahattin Tutuş was released after three days but Behçet Tutuş was kept in detention. Selahattin said that the money had been taken from Behçet Tutuş by a first lieutenant. Behçet Tutuş was kept for 10 days in Alaca village and then taken somewhere unknown with ten others. The applicant, his brother Nihat and his cousin Mehmet Tutuş had also been detained and had been kept for nine days in the forested area above the village. They were released when the operation finished.

Statement dated 25 December 1993 of the applicant Kemal Taş taken by the HRA

97.                His son Ümit, aged 16, who lived with the applicant in Cöl hamlet, Seyhmaza village, Kulp district, had gone to Kulp with TRL 7 million to pay a tobacco loan. As far as he knew, Ümit was taken into custody by the police in Kulp because of the money on him. This was before the operation started in Alaca village. The police handed Ümit over to the soldiers and later, during a general operation, he was taken to Alaca village, from which he went missing with ten other people.

98.                When Ümit did not return from Kulp, the applicant’s son Mehmet Tahir went to Kulp and learned that Ümit was detained at the Security Directorate. He stayed in Kulp for 6-7 days, taking Ümit food. One day, he arrived at the Directorate and was told that Ümit had been released and had returned home.  Mehmet Tahir came back to the village but Ümit was not there. He returned to Kulp again and made petitions to the Security Directorate, the District Governor and elsewhere but no-one admitted that Ümit was in custody. They later learned that Ümit had been detained near Alaca village. The applicant was not allowed to enter the village. When he was able to enter later, he heard from the villagers that they had seen his son but his son had been taken away. The applicant had looked in many places and made official applications but had not been able to discover any information about his son.

Statement dated 25 December 1993 of the applicant Keleş Şimşek taken by the HRA

99.                His brother, Bahri Şimşek, aged 40, was resident in Mezire hamlet, Alaca village, married with 9 children. The applicant who was living in Mersin heard that an operation was being carried out from a relative in Muş. The applicant set out, arriving in Kulp. He heard his brother was in custody. When he arrived in the village, the houses had been burned with their contents. This was 5-6 days after his brother had been detained. He got permission from an NCO and went to see his brother, who was being held at Gurnik with others. His brother and the others were in the open, but were unbound. He was able to talk to his brother for 3 hours. His brother said that when he had been taken into custody he had been tortured. He had been asked whether there was anyone else called Bahri Şimşek. The soldiers kept them tied up but unbound them when visitors came. His brother asked him to look after his family.  When the soldier told him to go, he left, collected his brother’s family and went to Muş, then to Mersin. He returned some time later and applied to the prosecution, but they denied his brother was in custody.

Statements of the applicant Seyithan Atala taken by the HRA

Statement of 28 December 1993

100.          His brother, Mehmet Şah Atala, had gone missing after being taken into custody in Alaca village.  The applicant had approached the authorities in Kulp with the families of Sabri Tutuş, Ramazan Yerlikaya and Süleyman Yamuk on 27 December 1993. He saw the public prosecutor at 9.30 hours, handing him a petition. The prosecutor said that he had arrived in Kulp after the incident and knew nothing of it. He said he would look into it. They saw the district governor Kadir Koçdemir at 13.30 hours, submitting written and oral petitions. The governor said that about 10,000 soldiers had been involved in the operation, under the direction of General Yavuz Ertürk of the Bolu Commando Brigade. Soldiers under his command had been staying in Kulp Regional Boarding School for four months. The governor had no direct contact with them as the soldiers took orders directly from the Chief of General Staff, Doğan Güres. The governor said that he felt guilt and responsibility towards them but that he had no information and would look into it. He told them to exercise their rights, gave them his telephone number and after speaking to a gendarme commander on the telephone, sent them to speak to that captain. They met the captain who told them that he had not participated in the operation and knew nothing about it. He had assigned the gendarmes of Panak station to the operation without authorisation by the Brigadier-General and had then stopped this.

Statement of 6 January 1994

101.          On 9 October 1993, at about noon, his brother Mehmet Şah Atala was taken into custody during an operation carried out by about 15,000 soldiers. 23 soldiers came and took him from his house. The applicant was in Diyarbakır at the time. According to what he heard from villagers, 11 people, including his brother, were taken to an unknown place at the end of the operation. While his brother was detained, their mother Hediye Atala went several times to where he and others were held, taking food and clothing. She talked to his brother.  After the incident, he applied to the Diyarbakır State Security Court prosecution with a petition. He met with the State of Emergency authorities and when he learned that the soldiers came from Bolu, he tried to see the General Yavuz Ertürk who was said to have been their commander during the operation. Most recently on 5 January 1994, he applied to the Diyarbakır provincial gendarme public order command but his petition was refused without even being processed.

Statement dated 31 December 1993 of the applicant Sabri Avar taken by the HRA

102.          His brother Hasan Avar, born in 1952, was a married father of seven children. His son Mehmet Serif Avar was born in 1969 and had four children. They both lived in Gindik[3] hamlet, Alaca village, while the applicant lived in Kulp.  On 9 October 1993, his brother and son were taken into custody with a large number of others and held in the village during an operation. After ten days, eleven people, including his brother and son, were taken by helicopter to somewhere unknown. The villagers, and the persons who had been held and released, had witnessed this. He heard about this, but did not go to the village himself until 10-11 days later. The villagers told him that some of them had taken food to the detained people and that his son and brother had been taken away in the helicopter.

Statement dated 5 January 1994 of the applicant Mehmet Emin Akdeniz taken by the HRA

103.          His elder brother Mehmet Salih Akdeniz was the muhtar of Inkaya village, Kulp and 70 years old. He was taken into custody by soldiers on the Şen pastures during an operation. He was taken to Gurnik hamlet. Celil Aydoğdu, who was 55, was taken into custody at the same time. It was said that they were taken to act as guides. Many villagers at Gurnik were detained initially but there was a group of 11, including his brother, who were kept apart, with their hands tied. The applicant was in Diyarbakır when the operation started. He went to Kulp to try to find out more news. Villagers arrived there, bringing some information. One villager said that the applicant’s brother had told him that no-one should come looking for the detainees or they would be killed. About 10 days after the incident, the applicant was in Muş as he thought the detainees might have been taken there. He had received news that the 11 persons had completely disappeared, having been taken away in a helicopter. He went to Diyarbakır and gave a petition to the prosecutor asking about his brother.  He was told his brother was not in custody. He began to make enquiries, using personal contacts (he had previously been on the Diyarbakır Provincial General Council for 10 years). He contacted a close friend of a colonel who worked at the Diyarbakır gendarme command, and was told that the colonel said that his brother was not in their hands or with any of the soldiers in the region.

104.          On 24 November 1993, he went to Ankara and met the Minister of Human Rights and gave him all the details. The Minister telephoned the State of Emergency Regional Governor, listing the names of the 11 missing persons. The Governor replied that these people were not held by the units under his responsibility. On 26 November 1993, the applicant made petitions to the Minister of the Interior and the Prime Minister. He did not receive any replies to these. On returning to Diyarbakır, the applicant and relatives of the other missing persons met with the Assistant Governor for the State of Emergency Region, making oral and written petitions. The Assistant passed on the petition to the Governor. The applicant also went to Kayseri, Bingöl, Muş, Gaziantep, Elazığ and Bolu on various dates, applying in writing and verbally. He did not receive any positive results from any of them.

Statement dated 10 January 1994 of the applicant Süleyman Yamuk taken by the HRA

105.          His elder brother, Abdo Yamuk, who lived in Alaca village, was taken by soldiers from his home on 9 October 1993. Ten people were held together with him in the village. Many villagers saw this.  After some time, they were taken somewhere unknown by helicopter. He was in Muş at this time. When he heard about it, he came to the village about five days after his brother had been detained. On arriving, he was stopped by the soldiers. Houses in the village were being set on fire. He was taken to Muş by helicopter that day. He was held there for 7 days. Despite all his initiatives, he had found no trace of his brother.

b) Statements submitted by the applicants made by other villagers and members of the family of the missing persons

Statement dated 25 December 1993 by Ali Yerlikaya

106.          The witness lived in Licik hamlet, Kayalısu village. When the operation occurred, thirty soldiers came to his house at about 9.00 hours. He was told that he was needed as a guide. He was taken to Pireş hamlet where he was held and joined by Bahri Şimşek, Mehmet Şah Atala and Ümit Taş. On the second day, Nusreddin Yerlikaya, Hasan Avar and Abdo Yamuk were brought. The soldiers took their statements, asking if they had seen any terrorists or knew where they were. At this point, the soldiers bound their hands.  On the third day, he was taken with nine people, including Medeni and Abdurrahman Yerlikaya to Gurnik hamlet where Mehmet Salih Akdeniz, Behçet Tutuş, Mehmet Şerif Avar, Turan Demir and Celil Aydoğdu were already being held. They were kept in an open space, with their hands tied. Their statements were taken until the evening of the next day, the same questions being asked repeatedly. On the following day, the soldiers took Abdo Yamuk apart. They heard three shots. Medics were sent for and they went to the place the shots were fired. Abdo Yamuk came back two days later, his right foot bandaged and being helped to walk by two soldiers. Abdo Yamuk had also been put on a helicopter and taken to the forest around Kayalısu, Muş. One day before that, Nusreddin Yerlikaya and Behçet Tutuş had been taken by helicopter to the same area. One day after Abdo Yamuk was taken, Ümit Taş was taken to Şen pastures by a first lieutenant. After Ümit was taken, the witness was held for two more days. On the last day at around 08.00 hours, an NCO came up to the remaining ten people with IDs and a list in his hand. He read out the names of the witness, Medeni and Abdurrahman Yerlikaya, gave them their IDs and told them to leave but not to stay at their village. The three of them returned to the village. Everything had been burned. 

107.          During the seven to eight days, he was held in the village, he talked a lot with the eleven people who later went missing. He remembered that Ümit Tas was 16-17 years old and had said that when he had been caught by the police in Kulp, they had taken the 7 million lira he was carrying to pay a tobacco loan. Nusreddin Yerlikaya had told him that the soldiers had asked him if, as he was a shepherd, he knew the hiding places of the terrorists. Behçet Tutuş told him that a bank book with 100 million lira and 20 million lira in cash obtained from the sale of livestock had been taken from him by a first lieutenant.

Statement dated 25 December 1993 by Abdurrahman Yerlikaya taken by the HRA

108.          The witness was resident in Licik village, Kayalisu village. During the operation in the area, which involved 15,000 soldiers, he was taken by the soldiers to Pireş hamlet on the grounds that he was to act as a guide. After three days during which they were asked the same questions repeatedly, he and eight others (his brothers Medeni and Nusreddin Yerlikaya, Ali Yerlikaya, Bahri Şimşek, Mehmet Şah Atala, Ümit Taş, Hasan Avar and Abdo Yamuk) were taken to Gundik hamlet by helicopter. They were held in an open space with their hands bound. Mehmet Şah Akdeniz, Behçet Tutuş, Mehmet Şerif Avar, Turan Demir and Celil Aydoğdu were already held there when they arrived. Their statements were taken again, with the same question, to which they replied that they had not seen the terrorists. When Abdo Yamuk was taken away, there were three gunshots and he was brought back two days later with his right leg bandaged.

109.          During that period, Nusreddin Yerlikaya and Behçet Tutuş were taken by helicopter to the forest near Kayalısu. Later, Abdo was taken away and one day after that, Ümit Taş was taken. Two days after that at about 8.00 hours, the soldiers called out the names of himself, Ali and Medeni, returned their identity cards and released them, telling them that they should leave their village. 

Statement dated 25 December 1993 of Selahattin Tutuş taken by the HRA

110.          The witness was the brother of Behçet Tutuş and lived in Licik hamlet, Kayalısu village. As he and his brother were returning from Muş after they had sold livestock, they were arrested at the entrance of the village by soldiers carrying out an operation in the area. They were taken to a place with more soldiers. There were two people there with masks and soldiers who pointed at his brother after looking at their identity cards. They were told to turn their faces aside so that they would not recognise the masked people, who were probably from the village. A first sergeant gave the order that Behçet should be tied up. His hands were bound behind him, with a rope attached round his neck. The soldiers hit him with their fists and sticks, telling him to show them where the terrorists were. He was beaten for about two hours. At this time, 49 people were held in the village of which 11 were bound like Behçet. Apart from those people bound who were kept under guard, the others were told to sleep in houses in the village at night, coming back to the open area at 07.30 hours. This went on for two days. At one point, when the witness was with Behçet, Behçet asked if he could go to the toilet and his hands were freed. Behçet tried to pass him the 20 million cash he was carrying on him but one of the soldiers saw him. A sergeant had the money counted and then placed it in his own pocket, telling the witness in Kurdish that if anything happened to the money he would replace it with 50 million.

111.          On the third day, at about 07.30 hours, the names of 32 people were read out and they were released. The men whose hands were bound remained.  The witness was taken with the others to a hill, where after a time, a helicopter arrived and took them to the Muş area, where he saw more special teams, with men with beards. He was held there in a forested mountainous place for two days with no food and water. After the soldiers talked on their walkie-talkies, they selected six young people from the group and then released the rest. The witness walked home. The six youths were released three days later. He found that his village had been burned when he got back. He took his animals, sold them in Kulp and went to Diyarbakır. His identity card had been confiscated in Gurnik so he had gone back there and retrieved it from an NCO. He asked the NCO if he could see his brother but he was told this was impossible. The detainees had been taken away, outside the village. He had received no news since.

Statement dated 31 December 1993 by Mehmet İlbey

112.          The witness lived in Gurnik village, Alaca village. He was in Muş when he heard that an operation was being carried out. On 10 October 1993, he and others went to the Muş regimental command to ask for permission to return to their village. The commander told them that the operation was to continue until 29 October 1993 and denied permission. The witness went to Kulp, and from Kulp to Gurnik. He arrived on 13 October 1993 and his identity was checked at the entrance of the village. He was taken by the soldiers to be looked at by a man who had a cloth over his face so only his eyes could be seen. He spoke into a walkie-talkie, saying that he had not seen the witness. The witness was taken to where about 50 villagers were being held. Eleven of them - Mehmet Salih Akdeniz, Celil Aydoğdu, Behçet Tutuş, Turan Demir, Hasan Avar, Mehmet Şerif Avar, Mehmet Şah Atala, Bahri Şimşek, Abdo Yamuk, Nusreddin Yerlikaya and Ümit Taş. - were kept with their hands tied. Amongst the other detained villagers were Ali Yerlikaya, Medeni and Abdurrahman Yerlikaya, Ziya Celik, Ramazan Celik, Hanifi Ipek, Salih Gümüş, Hadi Ciçek, Kutbeddin Yerlikaya, Recep Altinkara, Şirin Altintaş, İhsan Aydın, Şirin Avar, Kutbeddin Avar as well as villagers whose names he did not know.

113.          The witness spoke with the soldiers from time to time. He remembered a tall, fair NCO, who said his name was Şenol and, another dark NCO called Mustafa who spoke Kurdish with the witness. Both said that they were soldiers from Bolu.  On the third day, at about 14.00 hours, a first lieutenant called them together and read out names. He told those who were released, including the witness, that their houses would be burned and that they should take their things and leave the area. NCO Mustafa untied the hands of Turan Demir and Mehmet Şerif Avar to release them too but after they had walked only a few steps, NCO Mustafa, who had talked to the man with the mask, called them back. The witness was given back his ID and he walked back to his house.

c) Documents relating to petitions to and investigations by the authorities

Petitions dated 5 October 1993 by Mehmet Ali Taş to the Diyarbakır Chief Public Prosecutor and to the Kulp public prosecutor

114.          Both petitions related that his brother Ümit Taş had been detained in Kulp when he got off the village bus by police officers. Although he had been held 11 days, his family had been unable to receive news from him. Their applications had gone unanswered. He requested steps be taken to find his brother’s whereabouts and end their suffering.

Letter dated 11 October 1993 from the Kulp public prosecutor to the Kulp district gendarme command

115.          This requested that Ümit Taş be brought to their office as soon as possible.

Letter dated 11 October 1993 from the Kulp Security Directorate to the Kulp District Governor

116.          This referred to a petition made by Mehmet Tahir Taş dated 1 October 1993 about the fate of Ümit Taş submitted by the Governor’s office and stated that the appropriate information had been provided.

Petition dated 21 October 1993 by Süleyman Yamuk to the Bingöl public prosecutor

117.          This requested information about the whereabouts of Abdo Yamuk, who was taken into custody by gendarmes carrying out an operation in Alaca village on 9 October 1993.

Letter dated 22 October 1993 from the Kulp Security Directorate to the Kulp public prosecutor

118.          This stated, in reply to the prosecutor’s enquiry of 21 October 1993 with Kemal Taş’s petition, that Ümit Taş had been released from the Directorate on 30 September 1993 on completion of the procedures. It referred to a previous letter giving the same information on 11 October 1993.

Petition dated 2 November 1993 by Seyithan Atala to the Diyarbakır State Security Court (SSC) Chief Prosecutor

119.          About 20 days ago, his brother Mehmet Şah Atala had been taken from Alaca village. He did not know what offence his brother had committed. His family were concerned whether he was dead or alive and requested information about his whereabouts. A manuscript note on the petition dated 10 November 1993 signed by the Chief Prosecutor (18788) stated that his name was not in their records.

Petition dated (5) November 1993 by Mehmet Akdeniz to the Diyarbakır SSC Chief Prosecutor

120.          His brother Mehmet Salih Akdeniz and Celil Aydoğdu, from Inkaya village, had been taken into custody by soldiers when they were returning from the Şen pastures. They had been unable to receive information about them  and they requested that they be informed as to whether they were in custody and what had happened to them.

121.          There was a hand-written note dated 5 November 1993 on the bottom of the petition stating that “not discovered in our records”, signed by the Chief Prosecutor (18788).

Petition dated 6 November 1993 by Seyithan Atala to the Diyarbakır SSC Chief Prosecutor

122.          On 15 October 1993, his brother Mehmet Şah Atala and others had been taken by security forces during an operation at Alaca village. He had not been able to find any trace of his brother or whether he was in custody. He requested that it be found out whether his brother was alive or dead, whether he was detained and in which prison.

Petition dated 8 November 1993 by Mehmet Akdeniz to the Diyarbakır SSC Chief Prosecutor

123.          About a month ago, his brother Mehmet Salih Akdeniz and Celil Aydoğdu were returning to their village from the Şen pastures when they were taken into custody by soldiers conducting an operation. They had obtained no news about them and he was concerned for the life of his brother. He requested that they be informed whether or not his brother was in custody and what had happened to him.

124.          There was a hand-written note dated 11 November 1993 on the petition stating that “His name was not discovered on examination of our records” signed Chief Prosecutor (18788).

Petition dated 12 November 1993 by Mehmet Akdeniz to the Bingöl Chief Prosecutor

125.          About one month ago, his brother Mehmet Salih Akdeniz was taken into custody in Şen pastures by the security forces conducting an operation in the Kulp-Muş-Bingöl triangle. He had not been able to obtain any information from the Diyarbakır and Muş prosecutors. He was concerned for the life of his brother. He requested that he be informed if his brother was in custody and if so, about his fate.

126.          In a hand-written note by the prosecutor dated 18 November 1993, it was stated that following telephone calls made to gendarmes and police, his brother had not been discovered in Bingöl records.

Petition dated 22 November 1993 by Sabri Avar to the Kulp public prosecutor

127.          Hasan Avar and Mehmet Şerif Avar had been apprehended by the security forces and taken away during an operation at Alaca village on 17 October 1993. It had not been possible to obtain information about them.  A request was made for the matter to be looked into and for information to be given.

Petition dated 23 November 1993 by Mehmet Akdeniz to the Minister for Human Rights

128.          His 70 year old brother Mehmet Salih Akdeniz and 60 year old nephew Celil Aydoğdu had been missing for 45 days after being taken into custody during an operation at the Şen pastures. He requested that the relevant offices locate his brother and nephew and provide information.

Petition dated 23 November 1993 by Mehmet Akdeniz to the Prime Minister’s office

129.          This petition was identical to the petition above to the Minister for Human Rights.

Receipt for a petition by Mehmet Akdeniz to the Minister of the Interior

Petition dated 25 November 1993 by Süleyman Yamuk to the Diyarbakır SSC chief public prosecutor

130.          His brother Abdo had been detained by soldiers during an operation carried out in Alaca on 15 October 1993. No information had been received since. He requested that his whereabouts be discovered and that they be informed about his fate.

131.          This records receipt of a petition on 26 November 1993.

Petition dated 26 November 1993 by Hüsnü Demir to the Diyarbakır State Security Court prosecutor

132.          About two months ago, his son Turan, with other villagers including the Inkaya muhtar Mehmet Salih Akdeniz had been taken away by the security forces at Alaca village.  Despite his searches, he had not discovered any trace of him and did not know whether he was in custody or in prison. He requested that they find out whether his son was dead or alive. A manuscript note dated 26 November 1993, signed by the Chief Prosecutor, stated that his son’s name had not been discovered in their records.

Petition dated 12 December 1993 by Keleş Şimşek to the Diyarbakır SSC prosecutor

133.          His brother Bahri Şimşek had been taken into custody with 10 others at Alaca village on 9 October 1993. He requested information about the fate of his brother. A manuscript note dated 23 December 1993 signed by the Chief Prosecutor (18788) stated that his name had not been found in their record.

Petition dated 14 December 1993 by Mehmet Akdeniz and Aziz Atala to the Kayseri SSC Chief Prosecutor

134.          Eleven persons, of whom four were named with addresses (Mehmet Salih Akdeniz, Celil Aydoğdu, Mehmet Şah Atala and Bahri Şimşek) had been apprehended and taken away during an operation by the security forces within the Muş, Diyarbakır and Bingöl area at the end of October. They had not been able to obtain any information about this and had not received replies from applications to the Regional Governorship and relevant offices. There was a possibility that commandos from Kayseri had been involved in the operation and the detainees surrendered to the authorities at Kayseri. They requested information as to whether the people were in prison there and whether they were alive.

135.          There was a manuscript note on the petition signed by the prosecutor to the Kayseri Prison Directorate enquiring whether the individuals were in the prisons. A reply dated 14 December 1993 from the Prison Governor stated that the individuals were not in the records of Kayseri closed or open prisons.

Petition dated 15 December 1993 by Kemal Taş to the Kulp public prosecutor

136.          His son Ümit Taş had been detained by security forces on 25 September when he arrived in Kulp and had been missing since then, without any news. He requested an investigation be conducted into his whereabouts. Individuals had seen Ümit being taken away by operation units in Senyayla and if necessary their names would be given later. A manuscript note stated this petition had been sent to the Security Directorate and the Kulp district gendarme command.

Statement dated 15 December 1993 of Kemal Taş taken by the Kulp public prosecutor

137.          Kemal Taş lived at Hamzali village. As stated in his petition, his son Ümit Taş had been detained on entering Kulp on 25 September 1993. He was missing from then on. People, whom he would name later, had seen Ümit on the road and being taken by the operation units in the Senyayla region. He had seen Ümit with soldiers at Panak station 7-8 days after being taken into detention. He requested an investigation.

Petition dated 17 December by Aziz Atala to the Diyarbakır SSC Chief Prosecutor

138.          His brother Mehmet Şah Atala had been taken into custody on 9 October 1993 at Alaca village. He requested information about the fate of his brother.

139.          A note dated 17 December 1993 signed by Aziz Atala and drawn up by Mahmut Şakar of the HRA stated the petition had not been formally processed and that Aziz Atala had been informed verbally that his brother Mehmet Şerif Atala was not in their records.

Petition dated 17 December 1993 by Hüsnü Demir to the Diyarbakır SSC prosecutor

140.          His son Turan had been detained on 9 October 1993 in Alaca village. He requested information about the fate of his son.

141.          A note signed by Hüsnü Demir and drawn up by Mahmut Şakar of the HRA explained that in answer to his petition he was informed verbally that there was no record of Turan and the 10 others being in custody.

Letter dated 23 December 1993 from Kulp district gendarme command to the Kulp public prosecutor

142.          In answer to a petition submitted by Kemal Taş, an investigation had been carried out following which it was concluded that Ümit Taş had not been detained by them.

Petition dated 27 December 1993 by Sabri Avar to the Kulp District Governor

143.          On 9 October, his son Mehmet Şerif Avar and his brother Hasan Avar were apprehended in Alaca village by soldiers during an operation and taken away in a helicopter. He had been unable to find out any information by application in Diyarbakır and elsewhere or to the security forces. He requested information as to where the missing people were.

Petition dated 27 December 1993 by Sabri Avar to the Kulp public prosecutor

144.          On 9 October, his son Mehmet Şerif Avar and his brother Hasan Avar were taken from their houses by soldiers during an operation and taken away in a helicopter. They were missing and despite his inquiries to provincial security forces, particularly in Diyarbakır, they could not be located. He requested that the necessary proceedings be carried out.

Petition dated 27 December 1993 by Sabri Tutuş to the Kulp public prosecutor (noted 1993/130 prel.)

145.          His father Behçet Tutuş, with 10 others, was detained in Alaca village by the security forces on 9 October 1993. He requested information about his fate. A manuscript note dated 27 December 1993 from the Kulp prosecutor stated, “Ask the SSC Chief Prosecutor and the Diyarbakır Chief Prosecutor.”

Petition dated 27 December 1993 by Süleyman Yamuk to the Kulp public prosecutor (noted 1993/130 prel.)

146.          His elder brother Abdo Yamuk, with 10 others, was detained in Alaca village by the security forces on 9 October 1993. They had not received any information and they as the families expected the prosecutor to take the initiative as regarded the fate of his brother.

Petition dated 27 December 1993 by Seyithan Atala to the Kulp public prosecutor

147.          His elder brother Mehmet Şah Atala, with 10 others, was detained in Alaca village by the security forces on 9 October 1993. Despite 78 days passing since his brother had been taken away from the village by the security forces, he had not been able to receive any news. He requested information to be furnished as to the fate of his brother.

Petition dated 27 December 1993 by Ramazan Yerlikaya to the Kulp public prosecutor

148.          His elder brother Nusrettin Yerlikaya, with 10 others, was detained in Alaca village by the security forces on 9 October 1993. He requested information to be furnished as to the fate of his brother.

Letter dated 28 December 1993 by the Kulp public prosecutor to the Diyarbakır Chief Prosecutor

149.          This referred to petitions from the relatives of Behçet Tutuş, Abdo Yamuk, Nusreddin Yerlikaya, Mehmet Şah Atala, Ümit Taş, Mehmet Şerif Avar and Hasan Avar that these persons had been detained for more that two and a half months without any information being given. It was requested that their office be informed of any record or information relating to these persons.  An undated manuscript note indicated that the records were examined but the names not found.

Petition dated 5 January 1994 by Süleyman Yamuk to the Diyarbakır public order command

150.          His elder brother Abdo Yamuk had been detained by the security forces in Alaca on 9 October 1993. He requested that information be provided about his brother’s fate.

Letter dated 6 January 1994 from the Diyarbakır provincial governor to the petitioner (Mehmet Emin Akdeniz) and the Ankara gendarme general command

151.          Referring to a petition letter of Mehmet Emin Akdeniz and various other correspondence, it stated that Mehmet Salih Akdeniz had not been detained by provincial security directorate or the provincial gendarme command.

Letter dated 14 January 1994 from the Kulp public prosecutor to the Diyarbarkır Chief Prosecutor

152.          This stated, inter alia, that the relatives of seven persons (Ümit Taş, Mehmet Şerif Avar, Abdo Yamuk, Nusreddin Yerlikaya, Hasan Avar, Mehmet Şah Atala and Behçet Tutuş) had petitioned the public prosecutor claiming that their relatives had been detained by the security forces and had not been heard of since. The prosecutor had launched an investigation in relation with incidents of terrorism under file 1993/130, which was ongoing.

Letter dated 19 January 1994 from the Diyarbakır SSC Chief Prosecutor to the Kulp public prosecutor

153.          Referring to the request for information about seven persons made on 28 December 1993, it stated that their names were not found in their records.

Letter dated 20 January 1994 from the Gendarme General Command, Ankara (Ministry of Interior) to the Ministry of State

154.          Referring to correspondence from the Ministry of State and the TGNA petition commission, it stated that Mehmet Salih Akdeniz and Celil Aydoğdu were not detained by the provincial gendarme command and there were not wanted in relation to any offence.

Decision of withdrawal of duty dated 31 January 1994 by Kulp public prosecutor

155.          The decision listed the defendants as “unknown terrorist group” and the offence as “kidnap with terrorist intentions”. Although the complainants claimed that their relatives were kidnapped by the security forces, the preliminary investigation concluded that the security forces had not detained them. On the basis of the possibility that they had been kidnapped by terrorists, the decision was taken to refer the case to the Diyarbakır State Security Court prosecution.

Letter dated 9 February 1994 from the Ministry of State to Mehmet Emin Akdeniz

156.          Referring to a petition letter, it stated that Mehmet Salih Akdeniz and Celil Aydoğdu had not been detained by the provincial gendarme command and were not wanted.

Letter dated 15 February 1994 from the Diyarbakır SSC Chief Prosecutor to the Kulp prosecutor, the Kulp district gendarme command, Diyarbakır Security Directorate and Diyarbakır provincial gendarme command

157.          Referring to an investigation into the disappearance of Behçet Tutuş, Abdo Yamuk, Nusreddin Yerlikaya, M. Şah Atala, Ümit Taş, M. Şerif Avar and Hasan Avar on 9 October and the possibility that they had been kidnapped by the PKK, it was indicated that the Kulp public prosecutor should, inter alia, report every three months on any gathered information, confessions and declarations; that the Kulp district gendarme command should collaborate with the Kulp public prosecutor in following up the investigation until the perpetrators were identified and apprehended and that the Diyarbakır security directorate and Diyarbakır provincial gendarme command were to report any information, documents and confessions relevant to the incident and report any other incidents or evidence relevant to the matter, the results to be communicated every three months.

Petition dated 9 March 1994 by Hüsnü Demir to the Diyarbakır SSC prosecutor (noted as 94/940 prel.)

158.          His son Turan Demir and 10 others had been detained at Alaca village on 9 October 1993. He had not been able to obtain any result in his searches and he requested information as to his son’s fate.

Petition dated 9 March 1994 by Seyithan Atala to the Diyarbakır SSC prosecutor (noted as 94/940 prel.)

159.          His brother Mehmet Şah Atala and 10 others had been detained at Alaca village on 9 October 1993. He had not been able to obtain any result in his searches and he requested information as to his brother’s fate.

Report dated 10 March 1994 signed by gendarme sergeant Ulvi Kartal

160.          This, signed also by Vehbi Başer, muhtar of Alaca, stated that the investigation into the disappearance of  seven persons (Behçet Tutuş, Abdo Yamuk, Nusreddin Yerlikaya, M. Şah Atala, Ümit Taş, M. Şerif Avar  and Hasan Avar) from Alaca village  had obtained no information and the search was ongoing.

Letter dated 10 March 1994 from the Diyarbakır SSC Chief Prosecutor to the Diyarbakır provincial gendarme division command

161.          Referring to claims by citizens from Alaca village to the European Commission of Human Rights that Mehmet Şerif Avar, Mehmet Şah Atala, Nusreddin Yerlikaya, Abdo Yamuk, Behçet Tutuş, Hasan Avar and five more unnamed individuals were taken by the military units which arrived at their village on 9 October 1993, a request was made for the incident to be investigated and the conclusion reported urgently.

Letter dated 17 March 1994 from the Diyarbakır provincial gendarme command to the Diyarbakır SSC Chief Prosecutor

162.          This stated that, in respect of the eleven missing persons, claimed to have been taken away by military units, an investigation indicated that they had not been detained.

Letter dated 18 April 1994 from the Diyarbakır SSC Chief Prosecutor to the Kulp prosecutor

163.        This listed the eleven missing relatives of the applicants. It stated that it had been reported that Ümit Taş had been detained at a checkpoint on 23 September 1993 while travelling on a bus and had been taken first to Kulp Security Directorate and then to Kulp Mechanised Regiment (local commando unit) and that later his relatives were informed that he was not in custody. It had been reported that the others had been detained by the security forces in Alaca village, kept in handcuffs for 10 days and then taken away. It was requested that an investigation be carried out and a report be made, which would form the basis of the response to the Ministry of Justice (General Directorate of International Law and Foreign Relations).

Letter dated 18 April 1994 from the Kulp district governor to Süleyman Yamuk

164.          Referring to a petition dated 22 December 1993, it had been established that Cemil Yamuk, Turan Demır, Behçet Tutuş, Bahri Şimşek and M. Şah Atala had not been detained by Kulp district security forces and that they did not have any information as the operation in question concluded within the boundaries of Muş province.

Letter dated 4 May 1994 from the Kulp public prosecutor to the Diyarbakır SSC Chief Prosecutor

165.          This stated that there had been a decision of withdrawal of duty on 31 January 1994 and that the file, which contained petition letters from seven of the applicants, had been transferred to Diyarbakır. It was requested that copies of the documents be returned in order to reply to previous requests. (A reply, with copies, was sent on 18 May 1994).

Letter dated 11 May 1994 from the Kulp public prosecutor to the Diyarbakır SSC Chief Prosecutor

166.          This referred to twelve missing persons and requested information as to whether they had been detained under their jurisdiction.

Letters dated 11 May 1994 from the Kulp public prosecutor to Kulp district gendarme command and Security Directorate

167.          This listed the eleven missing men and requested information as to whether they had been detained by them.

Letter dated 25 May 1994 from the Kulp district gendarme command to the Kulp public prosecutor

168.          This letter, signed by Captain Ali Ergülmez, stated that their command had no record in respect of the eleven missing men. They were not wanted and had not been detained.

Letter dated 6 June 1994 from Kulp public prosecutor to the Diyarbakır Chief Prosecutor

169.          Following their correspondence, an investigation file no. 1994/50 had been opened concerning the missing persons (only five names were mentioned).

Letter dated 30 June 1994 from the Ministry of Justice (General Directorate of Penal Affairs) to Süleyman Yamuk

170.        This referred to his petition of 12 January 1994 concerning his brother Abdo Yamuk and stated that requests should be made to the Chief Prosecutor who was investigating the matter under file 1994/940. (An enquiry for information on behalf of the Ministry was made to SSC Chief Prosecutor’s office on 27 April 1994.)

Letter dated 8 August 1994 from the Kayseri SSC Chief Prosecutor to the Ministry of Justice (General Directorate of International Law and Foreign Relations)

171.          Referring to an enquiry made about the procedures initiated in response to petitions submitted by Mehmet Akdeniz and Aziz Atala of 14 December 1993,  it stated that the petition had been dispatched to the prison directorate and the reply supplied. Since the petition inquired as to whether their relatives were in Kayseri prison, the aim was achieved and no further procedures were taken.

Letter dated 12 August 1994 from the Diyarbakır Chief Prosecutor to the Kulp public prosecutor

172.          Referring to a ministerial investigation, it requested that the Kulp prosecutor summon and take statements from Mehmet Emin Akdeniz and Kemal Taş, as well as any other witnesses and report to the Chief Public Prosecutor’s Office.

Letter dated 18 August 1994 from the Kulp public prosecutor to the Kulp Security Directorate, the Kulp district gendarme command and the Kulp district mechanised infantry battalion

173.          This listed the eleven missing persons urgently requesting information as to whether they had been detained, if they were wanted and if any petitions by relatives had been made.

Letter dated 22 August 1994 from the Kulp central station to the Kulp Security Directorate

174.          This stated that the twelve listed individuals[4] were not detained in their station.

Statement dated 22 August 1994 by Aydın Demir taken by the Diyarbakır public prosecutor

175.          On 9 October 1993, an operation was carried out by soldiers in Alaca village. His brother Turan was detained by military units. About 30 people were detained. Some were released. After the operation ended, 11 persons were taken away in helicopters. It was estimated that they were taken in the Muş direction. Despite many petitions, no information had been obtained and they were worried whether they were alive or not. He requested that his whereabouts be established.

Statement dated 22 August 1994 by Aziz Atala taken by the Diyarbakır public prosecutor

176.          The documents from the Ministry of Justice and enclosed petition letters were read out to the witness. The witness stated that his brother Seyithan Atala had left four days before to do his military service. He was at Isparta. Their brother M. Şah Atala had gone missing and both had submitted petitions. On 9 October 1993,  military units, which they later learned came from Bolu, came to Alaca village and collected 30 people, including M. Şah Atala. The operation continued until about 20 October. Most people were released but about 10-12 remained in their hands. They had provided food and drink to these persons. The witness saw his brother on the 20th and his brother told him that they were going to be taken away in a helicopter. Their identity cards and belongings had been placed in an envelope. The eleven were taken away on the 21st. The witness had gone to SSC prosecutor, Elazığ, Kayseri and Bolu prosecutors and submitted many petitions but received no information. The family was worried for his brother’s life. He requested that his whereabouts be established.

Statement dated 22 August 1994 by Sabri Tutuş taken by the Diyarbakır public prosecutor

177.          The documents from the Ministry of Justice and enclosed petition letters were read out to the applicant. The applicant stated that in about the tenth month of 1993 he was living in Alaca. His father had been selling cattle in Muş. Returning with the applicant’s uncle Selahattin Tutuş, they were apparently apprehended by the soldiers who were carrying out an operation in Şenyayla pastures which were part of the village district.  They were apparently kept in the pastures for 3 days. A relative Mehmet Şah and others took food to his father. His uncle was released after three days and came to the villages. The soldiers said that the village had to be evacuated so everybody left. The applicant and his family went to Muş for one month and then to Diyarbakır. After his father’s apprehension, twelve others had been taken. After the operation, the soldiers took these persons with them. He had received no news of his father since and had submitted many petitions. They did not know if he was dead or alive. His father had been carrying TRL 20 million and had put money into the bank which they could not draw out in his absence.

Letter dated 25 or 28 August 1994 from the Kulp Security Directorate to the Kulp public prosecutor

178.          Referring to previous replies, this stated that Ümit Taş had been picked up on 29 September 1993 due to his suspicious circumstances but released on 30 September. The other mentioned individuals had not been taken to the Security Directorate and no applications had been received from their relatives.

Letters dated 25 August 1994 from the Kulp public prosecutor to the Kulp Security Directorate

179.          One letter requested that the applicant Mehmet Emin Akdeniz be summoned.  A reply to the letter dated 12 September 1994 indicated that as a member of the Provincial General Council he was understood to be at the Diyarbakır Special Administrative Directorate.

180.          A further letter requested that Kemal Taş be brought to their office as soon as possible.

Letter dated 29 August 1994 from Bingöl public prosecutor to the Ministry of Justice (General Directorate of International Law and Foreign Relations)

181.          Referring to an enquiry of 2 August and a petition of 12 November 1993 by Mehmet Akdeniz which indicated that M. Salih Akdeniz had been detained by security forces in Şenova (Şen pastures), it stated that no information had been obtained as a result of their enquiries to the Muş public prosecutor and Diyarbakır prosecutor. According to the provincial gendarme brigade command and provincial security directorate, M. Salih Akdeniz had not been detained in their province.

Letter dated 18 October 1994 from the Diyarbakır Chief Prosecutor to the Diyarbakır Security Directorate

182.          This requested that Mehmet Emin Akdeniz be brought to their office to make a statement. (This was in response to a request from the Kulp public prosecutor of 30 September 1994.)

Statement dated 28 October 1994 of Mehmet Akdeniz taken by a Diyarbakır public prosecutor

183.          His petition to the Kulp public prosecutor was read out to him. Eleven persons, including his brother Mehmet Salih Akdeniz, Behçet Tutuş, Celil Aydoğdu, and eight more whose names he could not recall (he mentioned two with the surname Avar, and Turan Demir) were taken by soldiers in October 1993. He did not see them taken himself. His brother’s wife Pembe and his own wife Zekiye had seen them taken away. They both lived in Inkaya village. He requested that they be heard. According to what he had heard, soldiers had been stationed in Alaca village. They took his brother and Celil Aydoğdu and did not bring them back. Apparently they were killed by the soldiers but he does not know where they were buried, though it was apparently close by. There were people who had seen them being killed by the soldiers. He had been told about this by a Sergeant Major from the Bolu regiment. Apparently there was a first lieutenant from Bolu who had them killed.

Letter dated 4 November 1994 from the Kulp public prosecutor to the Kulp gendarme division command

184.          This stated that previous correspondence had not been replied to. It was requested that they speed up their response.

Letter dated 9 November 1994 from the Kulp district gendarme command to the Diyarbakır SSC Chief Prosecutor, with enclosed report

185.          This stated that it enclosed an investigation report concerning an incident by unknown perpetrators in Alaca village on 9 October 1993. The report, dated 1 November 1994, signed, inter alia, by Ulvi Kartal, senior sergeant at Panak station, referred to seven individuals (Behçet Tutuş, Abdo Yamuk, Nusreddin Yerlikaya, M. Şah Atala, M. Şerif Avar, Hasan Avar and Ümit Taş). An investigation had been carried out on the possibility that they could have been kidnapped by the PKK but no evidence had been obtained.

Letter dated 17 November 1994 from the Kulp district gendarme command to Kulp public prosecutor

186.          This referred to the prosecutor’s letter of 18 August 1994 and stated that the individuals concerned were not in their records and not wanted.

Statement dated 12 December 1994 of Kemal Taş taken by Kulp public prosecutor (33441)

187.          His elder son Mehmet Tahir had obtained tobacco from Silvan, to be paid for in instalments. Ümit went to Kulp with TRL 7 million in September 1993 to make a payment. They heard that after a search Ümit was taken into custody at the Security Directorate for 6-7 days. During this time, Mehmet Tahir stayed in Kulp and took him food. Though he asked, he was not told why Ümit was in custody. One day, when he brought food, they said that Ümit had been released and returned to his village. Mehmet Tahir returned to the village but Ümit had not come back.  Mehmet Tahir went back to Kulp and searched unsuccessfully. The applicant guessed that his son was held after his release by the Kulp gendarme commando unit and taken to Alaca village in relation to a military operation around Panak station. When he received the news that Ümit was at Alaca, the applicant tried to enter the village but the soldiers stopped him. He heard from the villagers that 20-25 villagers and his son were taken by the soldiers, of which 10 to 15 were released. He did not know the villagers who told him this. He was told by a man called Ceşim, who worked as a shepherd/cattleherder in Yakut village that he had seen Ümit being taken by the soldiers to Alaca. His son had no relations with the PKK. He filed a complaint against those who had taken his son.

Statement dated 19 December 1994 by Mehmet Tahir Taş taken by a public prosecutor (33441)

188.          When his brother Ümit Taş arrived in Kulp in September 1993 to pay back a tobacco loan, he was detained during a road check. He was kept for 6-7 days. The witness was in Kulp and brought Ümit food and drink regularly. After a one day visit to the grazing pastures, he returned to Kulp and was told at the Security Directorate that his brother was released and was at the Kulp gendarme commando unit. When he went to the commando unit, he was told Ümit was not there. Someone he did not know told him that he had been in detention with Ümit but that though he had been released Ümit was still there. Later he received information that Ümit was taken with 25-30 others from Alaca in a military operation. Ten-fifteen of these individuals were released while ten to eleven (including his brother) were not. He requested that a necessary investigation be carried out and information about his brother’s fate be released.

Statement, undated, of Zeki Akdeniz, taken by public prosecutor (33441)

189.          His father M. Salih Akdeniz was the Inkaya muhtar for 17 years. He had always opposed the PKK and he became a target to them. In October 1993, they were in the Şenyayla pastures when military operations took place in the village. PKK members were in the village at the same time. They had not seen his father since. As his father was a supporter of the State, they had heard that his father had been kidnapped by the PKK. Others had disappeared, including Turan Demir, Behçet Tutuş and Celil Aydoğdu. He knew the latter personally. He was also against the PKK and for the State.  It was highly possible the missing persons had been taken by the PKK. Two to three months after the disappearance, 30 cattle, 25 sheep and goats belonging to the witness were stolen from the mountain by the PKK. He filed a complaint against the PKK.

Letter dated 27 December 1994 from the Kulp public prosecutor to the Kulp district gendarme command

190.          This urgently requested that Pembe Akdeniz and Zekiye Akdeniz be brought to their office.

Letter dated 31 December 1994 from the Gendarmerie General Headquarters, Ministry of Interior to the Ministry of Foreign Affairs (Assistant Director General for the Council of Europe and Human Rights)

191.          This stated that the necessary investigations had been carried out into the application to the Commission made by Mehmet Emin Akdeniz and others. It was found that no operation had taken place in the Alaca village area on 9 October 1993; that due to the terrain of Inkaya and Alaca and the pressure from the PKK, the population had migrated to Diyarbakır, Adana and Mersin leaving the villages completely uninhabited; that the allegations that persons had been taken away in a helicopter was unfounded, and that the persons had not been detained and no application has been submitted to Kulp district gendarmerie with regard to their being missing.

Letter dated 23 February 1995 from Kulp public prosecutor to the Kulp district gendarme command

192.                 Referring to a previous request of 27 December 1994, it noted that there had been no response concerning Pembe and Zekiye Akdeniz.

Petition dated 17 April 1995 from Sabri Avar to the Muş public prosecutor

193.          During an operation at Geliye Müsür hamlet, Alaca village, two persons, Mehmet Şerif Avar (the name of Hasan Avar is omitted though his details are given) had been taken away by the security forces on 17 October 1993. There had been no news since. He requested that the matter be investigated.

Letter dated 29 June 1995 from the Diyarbakır chief public prosecutor to Kulp public prosecutor

194.          This requested information about the investigation and conclusion concerning Turan Demir, Mehmet Salih Akdeniz, Bahri Şimşek, Celil Aydoğdu and Behçet Tas[5].

Letter dated 30 June 1995 from Bekir Selçuk, the Chief Public Prosecutor at the Diyarbakır State Security Court, to the Ministry of Justice (General Directorate of Legal and International Relations)

195.          Turan Demır, Mehmet Salih Akdeniz, Bahri Şimşek, Celil Aydoğdu, Behcet Tac[6], Ümit Taş, Mehmet Şah Atala, Hasan Avar, Nusreddin Yerlikaya, Behçet Tas and Abdo Yamuk had not been taken into custody within the Diyarbakır State Security Court jurisdiction. There was no pending case or investigation in their office concerning these persons. The Kulp public prosecutor’s file concerning the disappearance of the listed persons which had been opened upon the claims of the relatives included a decision of lack of jurisdiction. The case had been transferred to the Diyarbakır State Security Court on the theory that the people had probably been kidnapped by the PKK, now under a pending investigation as file no. 1994/940. The Kulp file consists of the relatives’ petitions and no other investigation document exists. So far no concrete evidence had been obtained about the disappearance of these persons.

Letters dated 3 July 1995 from the Kulp public prosecutor to the Kulp district gendarme command

196.          These requested respectively that the muhtar from Alaca village, Kulp, and the individual Çesim, resident at Yakit village and working as a cattle herder, be brought to their office. A reminder was sent on 27 September 1995 requesting that a response be expedited.

Letter dated 3 August 1995 from the Diyarbakır SSC chief public prosecutor to the Kulp public prosecutor

197.          This requested that M. Emin Akdeniz, Kemal Taş and Ramazan Yerlikaya be brought to their offices or their addresses be established and notified.

Letter dated 3 August 1995 from the Diyarbakır SSC Chief Prosecutor to the Diyarbakır security directorate

198.          This requested that Sabri Tutuş, Aydın Demir and Seyithan Atala be brought to his office.

Letter dated 11 August 1995 from the Muş public prosecutor to the Kulp district gendarme command

199.          Pursuant to the Diyarbakır SSC Chief Prosecutor’s request of 3 August 1995, Kemal Taş was to be brought to the SSC offices.

Letter dated 11 August 1995 from the Kulp public prosecutor to the Kulp security directorate

200.          Pursuant to the Diyarbakır SSC chief public prosecutor’s request of 3 August 1995, Mehmet Emin Akdeniz was to be brought to the SSC offices.

Letter dated 11 August 1995 from the Muş public prosecutor to the Muş provincial gendarme command

201.          It was urgently requested that Sabri Avar be brought to their office.

Letter dated 11 August 1995 from the Muş public prosecutor to the Muş Security Directorate

202.          It was urgently requested that Süleyman Yamuk be brought to their office.

Letter dated 24 August 1995 from the Diyarbakır SSC Chief Prosecutor to the Ministry of Justice (General Directorate of International Law and Foreign Relations)

203.          Referring to an application to the Commission concerning 11 missing persons, it stated that the alleged incident was investigated by the Kulp public prosecutor on the applications of the relatives of the allegedly missing persons, who due to the lack of evidence and the assumption that the PKK kidnapped the persons, referred the file to the SSC Chief Prosecutor with a decision dated 31 January 1994. His office continued the investigation under file no. 1994/940. The file contained no information about 50 persons being detained or any operation being carried out in Gunduk hamlet, Alaca village. Besides the file, no document or information had reached his office.

204.          His officer had sought the statements of the applicants who had petitioned the Commission. These individuals denied that they were eye-witnesses, stating that they had heard about the incident from women eyewitnesses who said that the missing persons were taken away by persons in military clothes. When the applicants were asked the names of the women and the persons who had been detained but released, they did not provide the names and the investigation could not be pursued. The PKK wore military clothes when carrying out ambushes and kidnappings and by so doing they prepared the grounds for persons to apply to the Commission. The allegedly missing individuals were evaluated as being with the PKK and the investigation was being pursued on that basis.

Letter dated 7 September 1995 from Muş Security Directorate to the Muş public prosecutor

205.          Following an urgent request dated 23 August 1993 to summon Süleyman Yamuk for a statement, this stated that Süleyman Yamuk had departed from Muş long before and gave his address in Tarsus.

Letter dated 10(2) September 1995 from Diyarbakır SSC Chief Prosecutor to Diyarbakır Security Directorate

206.          This requested that Sabri Tutuş and Aydın Demir be brought to their offices.

Letter dated 11 September 1995 from the Diyarbakır Security Directorate to the Diyarbakır SSC Chief Prosecutor

207.          This stated, concerning persons summoned by the prosecutor, that Selahattin Tutuş was in Muş; Aydın Demir was in Muş but his father Hüsnü had been brought; Seyithan Atala was doing his military service in Edirne and his brother Süleyman had been brought.

Statement dated 19 September 1995 by Sabri Tutuş taken by the Diyarbakır SSC Chief Prosecutor

208.          His application to the Commission was read out. He stated that in October/November 1993 he was planting tobacco in Muş province. When he arrived in his village, there was a military operation taking place there. Soldiers collected many villagers, including himself and his father. They kept the applicant for some time but released him. However his father Behçet and 10 others taken away did not return. For this reason, he had applied to the Commission by going to the HRA.

Letter dated 20 September 1995 from the Diyarbakır SSC Chief Prosecutor to the Kulp public prosecutor

209.          This requested that M. Emin Akdeniz, Kemal Taş and Ramazan Yerlikaya be summoned to his office.

Letter dated 20 September 1995 from the Kulp public prosecutor to the Diyarbakır SSC Chief Prosecutor

210.        Referring to fax from the SSC of the same date, it stated that M. Emin Akdeniz as a member of the Diyarbakır administrative council resided in Diyarbakır special administrative guest house. No response had been received from the Kulp gendarmes as regarded Kemal Taş. (This information was received from the Kulp Security Directorate by letter of 18 August 1995).

Letter dated 21 September 1995 from the Diyarbakır SSC Chief Prosecutor to the Diyarbakır Security Directorate (Anti-Terror Department)

211.          This requested that M. Emin Akdeniz (address given) be brought to his office.

Statement dated 26 September 1995 by Kemal Taş taken by the Diyarbakır SSC Chief Prosecutor

212.          Correspondence, with enclosures from the Ministry of Justice (General Directorate of International Law and Foreign Relations) were read out. The applicant stated that in the autumn months, his son Ümit went to Kulp. The applicant later learned that he was detained by the police. The police told him that they delivered Ümit to the soldiers for operations but they did not know who the soldiers were. The soldiers took Ümit to the grazing pastures, Senyayla, somewhere in Muş. He had had no news since. The applicant came to Diyarbakır because of this. He was told to go to the HRA. They wrote a petition letter on his behalf, which he signed. He could not remember if he gave a power of attorney to English lawyers.

Letter dated 26 September 1995 from public prosecutor 21943 to Tarsus Security Directorate

213.          This requested that Süleyman Yamuk be brought to make a statement. (An illegible document dated 9 October 1995 has been submitted which appears to be his statement taken in Tarsus.)

Statement dated 3 October 1995 by Mehmet Emin Akdeniz taken by the SSC prosecutor (18788)

214.          The documents relating to the application to the Commission were read to the applicant. He stated that in autumn 1993 they were in Senyayla hamlet, Alaca village. All the villagers were there. The soldiers set up their headquarters 5 kilometres away from the pastures. A message arrived for his brother M. Salih Akdeniz, the muhtar, requesting assistance as they did not know the area. He went to give assistance. Meanwhile, a large number of villagers were assembled. Some of these were released. However his brother and his nephew Celil Aydoğdu did not return. He and relatives of other missing persons applied to the Commission through the HRA in Diyarbakır. The application letter belonged to him. He clarified that he did not see the incident related above but that he heard it from the women.

Letter dated 23 October 1995 from the Kulp public prosecutor to the Kulp district gendarme command

215.          This urgently requested that Pembe Akdeniz, Zekiye Akdeniz and an individual, Çesim, a cattle herder from Yakit village, Kulp, be brought to their office. A further reminder was sent on 30 November 1995.

Statement dated 23 October 1995 of Vehbi Baser taken by public prosecutor (32328)

216.          The witness was the muhtar of Alaca. He remembered the kidnapping of Ümit Taş and his friends. Though he was not a witness, he heard from the villagers that some civilians were taken to the operation in Senyayla by gendarme commandos. None reappeared. The missing persons registered in his village were Behçet Tutuş, Bahri Şimşek, Abdo Yamuk, Celil Aydoğdu, Mehmet Şah Atala, Hasan Avar, M. Şerif Avar. M. Salih Akdeniz was registered in Inkaya. He did not know anyone called Çesim.

Letter dated 23 October 1995 from the Kulp public prosecutor to the Diyarbakir SSC Chief Prosecutor

217.          This requested that if the chief public prosecutor’s office was conducting a preliminary investigation in relation to the enclosed decision of withdrawal of duty, the file be returned to Kulp in relation to their ongoing investigation. A further letter was sent on 30 November requesting that the Diyarbakır officer expedite its response to their enquiry.

Letter dated 4 December 1995 from the Diyarbakır SSC Chief Prosecutor to the Kulp public prosecutor

218.          This referred to a previous letter of 23 October 1995 and enclosed copies of the documents in their file 1995/940Hz.

Letters dated 11 December 1995 from the Kulp public prosecutor to the Kulp district gendarme command

219.          These requested respectively that Hüsnü Demir, Çesim, a cattleherder, Mizbah Akdeniz, Medine Akdeniz, Pembe and Zekiye Akdeniz be brought to their office urgently.

Letter dated 13 December 1995 from the Kulp district gendarme command to the Kulp public prosecutor

220.          Referring to the prosecutor’s letter of 11 December 1995, it stated that their investigation had failed to establish the whereabouts of the individual Çesim.

Letter dated 16 January 1996 from the Kulp public prosecutor to the Kulp district gendarme command

221.          Referring to a previous letter of 11 December 1995, it requested that Hüsnü Demir be brought to their office urgently.

Statement dated (8) April (1996) by Çesim Boskurt taken by a public prosecutor (32328)

222.          The copy of the statement is illegible in places. The witness, registered and resident in Yakit village, stated that he remembered the incident. He had heard that Ümit Tas had been kidnapped by unknown individuals after it had happened. Contrary to Kemal Taş’s claims he had not seen Ümit Taş being taken away by soldiers.

Letter dated 16 April 1996 from the Kulp public prosecutor to the Kulp district gendarme command

223.          This requested that Pembe Akdeniz and Zekiye Akdeniz be urgently brought to their office.

Statement dated 29 May 1996 by Pembe Akdeniz taken by a public prosecutor (32328)

224.          In October 1993, her husband Mehmet Salih Akdeniz, Turan Demir and others known to her were taken away by many soldiers during an operation. When she had the opportunity to talk to her husband, he said that the soldiers were treating him well and they had been taken to act as guides and would be released later.  However her husband had not returned and she was unable to discover if he was alive or dead.  She did not know the names or units of the military who took him.

Report dated 29 May 1996 signed by gendarmes

225.          Their investigation had disclosed that Zekiye Akdeniz had died of natural causes.

Letters dated 23 July 1996 from the Kulp public prosecutor to the Kulp district gendarme

226.          These respectively requested that Hüsnü Demir and Medine Aydoğdu be brought to their office as soon as possible.

Report dated 5 August 1996

227.          Signed by two gendarmes and the muhtar Vehbi Başer, the report stated that Medine Aydoğdu could not be located as Alaca village had been evacuated. The muhtar stated that Medine Aydoğdu had migrated to Kanlidere village, Muş.

Statement dated 9 August of Misbah Akdeniz taken by the Kulp public prosecutor

228.          He was the son of Mehmet Salih Akdeniz. His father had been taken away from Senyayla by individuals not known to be either soldiers or PKK. They had not received any information about him since and he did not know if he was dead or alive.

Letter dated 1 October 1996 from the Kulp public prosecutor to the Kulp district gendarme command

229.          This referred to a summons for Hüsnü Demir sent on 11 December 1995, stated that Hüsnü Demir was known to be in a hospital and that his presence should be secured at their office when he was discharged.  A reminder was sent on 26 November 1996. (A reply was sent on 30 November referring to a previous reply.)

Letter dated 7 November 1996 from Sivrice gendarme station to Kulp gendarme district command

230.          This contained an enclosure and referred to an order of 11 October 1996 with regard to Hüsnü Demir which was carried out.

Letter dated 24 March 1997 from the Anti-Terror Department, Diyarbakır Security Directorate to the SSC Chief Prosecutor

231.          This referred to a request of 10 September 1995 and stated that Aydın Demir had been dispatched to the SSC office with an officer. Appended to the letter were a house search report, two medical reports, a body search report and photocopy of an identity card.

Statement dated 8 April 1997 of Mizbah Akdeniz taken by the Kulp public prosecutor

232.          He was the son of M. Salih Akdeniz. He did not remember the date on which the Bolu brigade kidnapped his father. They said that they took him to show them the terrain. Until the sixteenth day, his mother took his father food. On the sixteenth day, which was the day on which General Bahtiyar Aydın was martyred, she was told not to bring food as the operation was ending and they were leaving. He had received no news since then. He stated that Medine Aydoğdu was the wife of Celil but she had died. Hüsnü Demir had had a heart attack and died of a heart attack due to the worries he had for his son. His own mother was still alive but he knew no other witnesses of the events.

Statement dated 25 April 1997 by Aydın Demir taken by the Diyarbakır SSC Chief Prosecutor

233.          The documents relevant to his application to the Commission were read out. The witness stated that on 10 September 1993 when they were working in their village soldiers arrived. They assembled many villagers. All were later released except for 11 who remained with the soldiers. One day later, a helicopter arrived. His brother Turan and 10 others voluntarily got into the helicopter. It left the village. He had seen his brother being put in the helicopter by soldiers with his own eyes. They had no news of him since.  His father had gone to the HRA and been made to sign a paper.

Decision of withdrawal of duty dated 29 April 1997 by the Diyarbakır SSC Chief Prosecutor (prel. no. 1994/90)

234.          The decision listed the victims as Abdo Yamuk, Ümit Taş, M. Şerif Avar, Nusreddin Yerlikaya, Hasan Avar, M. Şah Atala, and Behçet Tutuş, the defendants as the security forces and the incident as concerning the detention of the victims on 9 October 1993, following which no news had been heard from them. In the absence of any evidence that the individuals had been kidnapped by the PKK, it had been concluded that a claim had been made that they had been detained by the security forces while carrying out an operation. This incident involved the claim of disappearance in custody. In accordance with Article 9 of Act No. 2845, the SSC did not have jurisdiction over the alleged persons responsible, the matter falling within the jurisdiction of the general judiciary. The preliminary documents were dispatched to the Kulp public prosecutor.

Decision of unification dated 20 June 1997 by Kulp public prosecutor

235.          This listed the eleven missing persons as victims and the charged offence with claim of detention by the security forces. The decision joined the file 1997/60 received from the Diyarbakır SSC Chief Prosecutor to the ongoing file 1994/50.

Letter dated 8 September 1997 from the Kulp public prosecutor to the Kulp Security Directorate, the Kulp district gendarme command and the Kulp district battalion command

236.          This listed seven of the eleven missing persons, requesting information on whether any developments concerning the disappearances had occurred and whether the persons had been found dead or alive.

d) Documents relating to the detention of Ümit Taş

Search report dated 25 September 1993

237.          This stated that Ümit Taş had been brought to the Security Directorate on 25 September 1993 at 09.00 hours. A total of TRL 6,985,000 was found on him and returned to him.

Statement of Ümit Taş dated 30 September 1993 taken by a police officer

238.          This stated that his family had as usual gone to Senyayla pastures that summer. He had later returned to his village (Hamzali village, Kulp) to plant tobacco. He had gone to Kulp from his village to pay money in respect of tobacco obtained from his sister.. He had no information about the PKK. He had sometimes seen them but they did not tell him anything. The statement bore a thumbprint and gave his date of birth as 1981.

Request for a medical report dated 30 September 1993 addressed to the health centre

239.          This request by a Chief Superintendent asked for a medical report concerning Ümit Taş. A manuscript note signed by a doctor stated that there were no signs of marks or blows.

Release statement dated 30 September 1993 signed by a police officer

240.          This stated that Ümit Taş had been picked up on an identity check on arrival in the district. It was established that he had not been involved in any incident and was not wanted. It bore a thumbprint under Ümit Taş’s name.

e) Other official documents

Custody records

241.          The Government provided copies of custody records for Bingöl and Muş. The records for Muş gendarmerie include the names of seven persons detained between 9 and 24 October 1993. These do not include the names of any of the applicants’ missing relatives.

Operation report

242.          This report, provided by the Government and described by them as the final operation report, is on unheaded paper and is unsigned, undated and unattributed to any person or office.

243.          It stated that for 14 days between 9 and 24 October 1993, the security forces carried out an operation in the area known as Senyayla situated between the provinces of Bingöl, Muş and Kulp. During the operation, the camps and refuges of the PKK group under Şemdin Sakık were destroyed and a severe blow dealt to the rebels. Forty-one terrorists were “captured dead”, and four captured alive, while 23 persons who aided and abetted the PKK had been apprehended and handed over to the judicial authorities. Details are given, inter alia, of firearms, munitions, food supplies, electronic equipment , medical supplies and fuel which were seized.

244.          The report stated that as a result of the operation the terrorists were deprived of the possibility of spending the winter in that area due to the lack of shelters and the inability to carry in supplies during winter; that those who supported or aided the terrorists were taken out of the area; and that from this time, the terrorists would be unable to carry out their activities in Şenyayla, the largest area in Turkey providing the most suitable conditions for training. Amongst miscellaneous points, they had established a detailed description of the PKK leader Sakık; that the PKK terrorists in winter sheltered in the houses scattered over the Senyayla area, where they met their needs for food and hygiene all year round; that the PKK had built fortifications on the hills in the Senyayla area facing in all directions; that there were a large number of stray sheep and goats, and a few cattle which were fed by the terrorists; that the PKK had tried to brainwash the inhabitants of the region into believing that it had belonged to them and that soldiers could not enter; that the terrorists had been in close touch with the centres of population in the area; and that the inhabitants of the villages attached to the provincial capital (Muş) had constantly supplied the terrorists with food and supported and aided and abetted the terrorists (nearly 90% of the people in the hamlets and villages in the region are considered to have aided the terrorists). It was stated that once it had been established that the villagers aided and abetted the terrorists, pinpoint operations were launched on the villages situated in the surrounding area - reference was made specifically to evidence found establishing that the villages of Zengök, Ulukaya and Yamaç provided support to the PKK.  Amongst other recommendations made for the future, it was proposed that pinpoint operations to search all the villages and hamlets in the area should be launched and that measures should be taken to stop people procuring food in large quantities from the provincial capital.

List of detained persons provided by General Yavuz Ertürk

245.          This undated document, headed as a list of persons forwarded to Muş district gendarmerie headquarters, includes the names of 30 persons, with a further four names of persons who were stated as having been released. The names of the applicants’ missing relatives were not included.

f) Miscellaneous

246.          The applicants submitted materials relating to the use of helicopters by the military. This included a newspaper report, dated 29 November 1998 indicating that a helicopter carrying 16 soldiers had crashed in the border province of Hakkarı, in the State of Emergency Region. The Government by letter of 8 January 1999 stated that the helicopter was a S-70 Sikorsky helicopter which could carry at least 16 armed personnel plus crew but that this was not relevant to the present case.

247.          The applicants also submitted a report drawn up by a specialised research expert in defence, entitled “Helicopter operations in south-east Turkey: October 1993. This gave an analysis of the types of helicopters that were in use by the military in the south-east at that time. It stated that the military would have had Sikorsky helicopters (S70A) available to them in 1993, reports indicating that aviation units operated out of Diyarbakır and Erzincan. These had carrying capacity up to 11 soldiers. The UH1 helicopters that were in use could have carried as many as 11 lightly armed soldiers also, though this was an emergency and not recommended option. It referred to a report that the gendarmerie had the use of some Mi-8s which could carry up to 28 persons.

2)Oral evidence

248.          The evidence of the 23 witnesses heard by the Commission's Delegates, listed in the order in which they appeared, may be summarised as follows:

(1)Mehmet Emin Akdeniz

249.          The applicant was born in 1938. He was from the Batikan tribe. He had used to live in Inkaya village where he was muhtar from 1963 to 1977, after which he had become a member of the provincial council. He was still a member of the council and was also a member of the permanent provincial committee. His elder brother, M. Salih, had become muhtar of Inkaya after 1977. In October 1993, when he heard that his elder brother, aged 70, had been taken into custody, he was in Diyarbakır. He heard this from village people who came to Diyarbakır on the buses one day after it had happened.  They said that the soldiers from Bolu had taken his brother and a lot of other people. His brother M. Salih had been in the Şen pastures in the area of Alaca village, about a day’s walk from Inkaya. The people from Inkaya used to go to the pastures in Şen at certain times of the year, though at this point most had moved down. His brother had property up there and was still living there. Celil Aydoğdu, who was a close relative[7] and who jointly owned vineyards with the applicant’s family, had gone up there also to pick walnuts from his trees. He was about 55 to 60 years old and also from Inkaya. A day after M. Salih was detained, Celil was picked up by the soldiers on the road and taken away. Many of the people taken by the soldiers were released. Some stayed five to six days with the missing men. The applicant was told by his wife Zekiye Akdeniz (who had since died) that his brother was taken by the soldiers to show them the way and that the soldiers said that they would let him go afterwards. When he did not come back that night, the applicant’s wife and the others became worried. They followed in the direction his brother had been taken.

250.          The soldiers had set up a headquarters about four to five kilometres away from the Şen pastures in the Alaca area at a place called Kepir, which was high giving the soldiers a good view and which was part of Gurnik hamlet. His wife and the others saw that his brother was being held there but said that his brother at that stage was being held without physical constraints. He said to the applicant’s wife that the soldiers would not allow him to leave, that they were left outside at night and asked for clothes as it was cold at night. The applicant’s wife brought him clothes the next day. When she did so, she saw Celil, tied up on the ground and bleeding from the mouth. His brother told the applicant’s wife that she should not come back and that the applicant should not come either. His wife saw a lot of people being held there, including the eleven missing persons. The detained persons had related that they had been assaulted and ill-treated.

251.          Mehmet İlbey was one of those held and then released and there were many others who witnessed what happened. The Avar and Tutuş families saw his brother and the others being placed on the helicopter. The detained men told the women taking them food that they were going to be taken away in the helicopter and they saw this happen. He had not been in Inkaya himself but he heard that it was burned down and no longer existed. The area of Alaca was extensive. He could not say how many hamlets there were as such as each household was in a place of its own. It was a mountainous area. Hamlets included Şuşan, Gurnik, Mezire. The Şen area was a flat plateau. From Şen, it was 4 kilometres to Gurnik, while Kepir was 1 kilometre from Gurnik. It was flat from Şen to the part opposite Gurnik. There, the Gurnik stream went through a narrow gorge. From Gurnik to Kepir, it was uphill again.

252.          After hearing the news about his brother, the applicant went to Kulp by vehicle but did not dare to go closer to the village as people were being picked up from the road. Everyone was talking about the operation there.  His wife arrived in Kulp by bus four to five days after his brother was apprehended. The applicant’s permanent home since 1986-7 was in Kulp, though they used to go up to Şen to live from time to time. The applicant heard the news from his wife and the next day went to Muş via Lice and Bingöl since the Kulp-Muş main road was closed. He went to Muş as that was where the General was based and he thought that they would bring detained persons there. After about two days at Muş, he heard there that the detained persons (his brother’s name had not been mentioned) had been taken away by helicopter.

253.          He then went to Diyarbakır on about 19 October 1993, as he thought that the prisoners might have been taken to the State Security Court (SSC). He also tried to find out from his circle of friends and contacts whether his brother was being held by any units. He spoke to people connected with the commanders or their subordinates but he heard nothing and was told that his brother was not with the units. He then submitted his first official petition to the Chief Prosecutor at the Diyarbakır SSC on 1 November 1993. The reply on 5 November stated that his brother was not on the registers. He applied again on 8 November 1993. He did not speak in person to any public prosecutor. After receiving a reply on 11 November 1993, he went to Bingöl as he had been told that after the detained persons had been placed on a helicopter it flew in the direction of Bingöl. He spoke to the public prosecutor there on 18 January 1994. The prosecutor called a major on the telephone, asking about his brother and Celil Aydoğdu. The major said that he would investigate. After half an hour, the major rang back, stating that the two men were not held by his units and there was no record of them. 

254.          The applicant returned to Diyarbakır to make further enquiries. He went to talk to Mehmet Gören, who enquired on his behalf and said that his friend the regiment commander would investigate the matter. The next day, while visiting Mehmet Gören, the commander rang, saying that the people whose names he had been given were not in his area. He gave up hope in Diyarbakır and went to Ankara. He met with Mehmet Kahraman, the Human Rights Minister, submitting a petition on 23 November 1993. The Minister said that he would investigate. The applicant submitted a petition to the Prime Minister the same day. The Prime Minister replied on 20 January 1994 that his brother and Celil Aydoğdu had not been detained by the district gendarmerie headquarters, were not wanted for any offence and that the applicant would be informed if they were found during any operations. The applicant also applied to the Minister of the Interior, but received no reply. He went back to see the Human Rights Minister on 27 November 1993, pressing him urgently and stating that he feared that his brother was dead. The Minister replied that he knew that the eleven missing persons were innocent and that the State had probably killed them but was not admitting it. While the applicant was with him, the Minister phoned the regional governor, stating that he was sending the applicant and that the necessary measures should be taken.

255.          The applicant went to see the regional governor with seven relatives of the other missing persons. They saw his deputy, called Ahmet, on about 29 or 30 November 1993. He told the deputy that the soldiers from Bolu had been in Şen and Alaca at that time and that he should use his authority to find out who the commander was. The deputy said that he would investigate. The applicant also went to Kayseri on 14 December 1993 because there were commando units there who might have taken the detained persons.  He spoke to the public prosecutor who sent him to the prison, where the prison governor checked the list of names.

256.          The soldiers from Bolu had done things like this before. They were very intimidating, hitting people, breaking things, threatening to kill and killing innocent people. He did not know anything about the PKK. The PKK had not stolen any of their livestock. His brother Salih kept livestock on the Şen plateau. He had goats, 300 of which had been taken by his sons to Mersin for the hair trade before the operation. There were other animals left, which the applicant appeared to say had been taken by the Bolu soldiers and guards from Solhan. He described Salih’s wife Pembe as old, with rheumatism and stated that his wife told her not to come along.

257.          In 1994 or 1995, at 03.00 hours, police officers came to the provincial administration guesthouse where he was staying and took him into custody for two days and nights. He was taken to the Chief Prosecutor’s office. The prosecutor said, “I see that you have complained to Europe about Turkey. But it isn’t you yourself. It is other people doing it for you.” The applicant stated that he had submitted the petition himself, that he had approached everyone possible in Turkey, had given up hope in Turkey and applied to European human rights.  The prosecutor was angry with him, shouting and accusing him of being ungrateful. The applicant pointed out that he had applied to his office first without receiving any help.

(2)Sabri Avar

258.          The applicant was born in 1952. In October 1993, he was living in the Alaca village, in Mezire hamlet, where his son and his brother also lived. He was in Kulp[8] when he heard about what happened on 9 October, from a villager Ali Yerlikaya, who said that the soldiers had come on an operation, set fire to the applicant’s house and arrested his brother and son on the same day. His brother Hasan was arrested in the hamlet (Mezire) while his son Mehmet Şerif was arrested in Gurnik. After being held one day at Mezire (its name deriving apparently from the nearby graveyard), Hasan was brought to Gurnik to where the eleven persons were held. The applicant went by a vehicle to the village while the operation was still going on. There were a lot of soldiers taking part in an operation, about 2-3,000. He was unable to specify on what day exactly he went to the village or clarify the statement which he made to the HRA, as he could no longer remember.

259.          About six-seven days after the incident, the applicant went to see his brother and son in the camp where they were held at Gurnik, on a hill known as Kepir. He saw them sitting down surrounded by soldiers but was not allowed to approach by the soldiers and he went away again. His wife Vesha went back and forth regularly with food, water and clothes and saw them. As well as Hasan and Mehmet Şerif, she saw Nusreddin Yerlikaya, Mehmet Şah Atala, M. Salih Akdeniz, Bahri Şimşek, Celil Yamuk[9], Celil Aydoğdu. She said that his brother’s hands were tied though the others were free but surrounded by soldiers. Hasan told her that he had been insulted and ill-treated. Mehmet Şerif told her that he had been assaulted too but that it had not been too bad. They said that their possessions had been put in envelopes and plastic bags with their names on, so that they would not get mixed up when they were taken to Diyarbakır. They told Vesha that they would be put on a helicopter and taken either to Diyarbakır or to Bingöl. Vesha saw that they were in a terrible state. They were being kept outside. The detained persons were kept for about eight to nine days and then taken away by air. Many villagers visited them before then, including Hediye, Zekiye (Turan Demir’s mother) and some men eg. Recep Altınkara, Seyfettin Yerlikaya. His wife, Vesha, and Hediye Atala saw them taken onto a helicopter, with their hands tied and blindfolded. His wife recognised Hasan and Mehmet Şerif. They were not allowed to approach but saw what was happening at close range. The helicopter took off for Bingöl. It came back and took off a second time. This was on 17 October.  There had been a lot of helicopters coming and going during the operation.

260.          The applicant went to the Security Directorate in Diyarbakır several times to try to find out the fate of his brother and son. He also went to the Kulp district governor’s office and the local gendarmerie station at Panak, attached to their village. He obtained no results for the authorities he contacted. He went personally to the HRA and made a statement there. He could not read or write. He recognised his signature on the second page of the statement. In June last year, he had been summoned by the Muş public prosecutor, who asked if he had missing relatives and whether he had complained about the State. He denied complaining about the State but said that he wanted to find out if his relatives were alive or dead. The prosecutor asked why he had applied to the Human Rights. He explained that nothing else had achieved anything.

(3)Keleş Şimşek

261.          The applicant was born in 1950. In October 1993, he was living in Mersin. His brother Bahri lived in Alaca village, while he had two sisters living in Kayalısu and Şuşan. The applicant received a phone call at Mersin informing him that the army was conducting a large operation in the village. The operation started on 9 October but he heard about it on 10 October. The applicant and Bahri’s son got on the bus the next evening (11 October) and arrived at Kulp via Diyarbakır. In Kulp, they met villagers, moving their household goods into the town. The villagers said that they were forced to leave, under threat of being burned in their houses. He went with other villagers on a vehicle to Gurnik, arriving at night (12 October). He went to his brother’s home. His brother’s wife and children were waiting outside in a field in the cold.  They said that Bahri had been taken to Gurnik. In the morning (13 October), he took clothes and food and went to Gurnik. He met Alaatin Atala, Hadi Çiçek and Vesha Avar there. Together, they approached a soldier on guard and he passed on their request to visit their relatives to the company commander who agreed. They were allowed through. It was about 09.00-10.00 hours. The soldiers untied the hands of the prisoners. The applicant stayed and talked with Bahri for 3-4 hours. A helicopter brought in field rations, which were distributed to the detainees. The company commander told the applicant that they had to go as the battalion commander was due to arrive.

262.          The applicant described the camp as being situated in a hamlet of Gurnik, on a high hill at Kepir. There was a large, level field, previously used for animals, where he saw a helicopter landing and taking off. There was a forest around the camp. His brother told him that the soldiers had asked if there was another Bahri Şimşek in his village and when he said that he was the only one, they asked him what he did for a living.  He said that the soldiers tied their hands and attached them to the trees during the night, but freed their hands during the day. His brother had heard that soldiers had come when he was walnut picking. He had gone to their elder sister’s house, where the soldiers apprehended him. The soldiers had gone first to Gurnik and then arrived at Mezire, where they rounded up more than 100, taking them to Şuşan, another hamlet of Alaca, where they spent the night. These included his brother, Süleyman Atala, Şirin Avar, amongst others. There were many taken from Pireş hamlet and other places and all were brought to Şuşan. In the morning, the detained people were assembled and told that the battalion commander was coming. A helicopter landed and two or three people got out, one of whom wore a covering over his head. They inspected the people, collecting their identity cards and checking them.  Some people were told that they could leave but that they should leave their homes or they would be arrested again. The remaining detained persons were put in the helicopter and taken to Gurnik. His brother said that they had been beaten and insulted while at Şuşan. He did not know why his brother was detained - he had been a veteran of the Cyprus war and had been wounded, receiving a State pension.  The applicant had asked the commander why the people had been arrested. He said that they had not done anything and would be released after a few days.

263.          The applicant saw also detained with his brother M. Salih Akdeniz, Celil Aydoğdu, Behçet Tutuş, Şerif Avar, Hasan Avar, M. Şah Atala, Turan Demir, Abdo Yamuk, Nusreddin Yerlikaya. He did not see Ümit Taş himself but he was told that Ümit was down with the team. His brother told him that the previous day the soldiers had taken Abdo Yamuk away from the group. There was another group of people held lower down. There was a gunshot and two soldiers were seen running. They thought that Abdo had been injured. The next day, they saw two soldiers holding Abdo under the arms, bringing him up the hill. He was wounded in the leg. He was thrown into the helicopter and it could be seen that he was taken to the Şen plateau. Nusreddin Yerlikaya and Behçet Tutuş were taken away briefly by helicopter as well.

264.          The applicant only visited his brother once but others visited the camp three or four times. The applicant meanwhile was arranging for his brother’s home to be moved. Vesha went to take food and underwear on the ninth day of the detention and was told by the soldiers that she could not visit as a helicopter had come to take the detainees away.  She watched them put on the helicopter which took off towards Bingöl-Genç. It came back a second time and flew away again. She recognised his brother as being amongst those put on the helicopter.

265.          The applicant had talked to villagers who had been held at Şuşan, then released, such as Şirin Avar. They said that a helicopter had landed and some-one with a mask selected and segregated who should be detained. Nobody recognised the man. From Şuşan, the detainees had been taken to Gurnik. When he talked to the soldiers, he knew their ranks from how they were addressed, since when they were on mission they removed their insignia.

266.          There were more than 2,000 soldiers, from Bolu, from Kayseri. Soldiers set fire to the houses and hedges planted along their fields. People were moving their homes. There was cannon-fire all night and shooting. He left the village after ten days. After moving his brother’s household and belongings with great difficulty, he returned to Mersin. On 20 December 1993, he went to Diyarbakır. A group of relatives of the missing persons had gathered and applied to the authorities. However, all the authorities denied that their relatives had been arrested and alleged that their relatives had gone to the mountains. Other people suggested that they try the Human Rights so they did so.

267.          On one occasion, the applicant was summoned by the Mersin public prosecutor, who asked him why he had made an application to the European Human Rights Commission. He said that he had no news of his brother for three years and so he had applied to the Human Rights. When the prosecutor asked if he was filing suit, he said that he was. His brother had nine children who lived in Diyarbakır now, his wife going to live with his parents. He had not heard that his brother or Mehmet Salih Akdeniz had had problems with the terrorists.

(4)Seyithan Atala

268.          The applicant was born in 1970. In October 1993, he was living in Diyarbakır. His parents and family lived in Mezire, Alaca.  Life was hard in that region and most of the young people were leaving. His brother Mehmet Şah was still there as he had only been married three months but he was about to move to Diyarbakır. The applicant first learned of events on 14 October 1993. Villagers, whose homes had been burned and were migrating, arrived and told of what was happening. He did not go to the village. His brother Mehmet Şah had gone back to the village from Diyarbakır on 9 October as the operation began.  He arrived at his father-in-law’s house in Geliye Mesur, an hour or half an hour from the village where he stayed the night. Meanwhile, the soldiers picked up another of their brothers and took him to the village cemetery. They asked him where Mehmet Şah was and he said that he was in Diyarbakır.  The soldiers took that brother back to their parents’ home and while they were there Mehmet Şah arrived from his father-in-law’s. The soldiers seized him. When his mother protested, they said that he could show them around, make a statement and then he would be released. That night they tied him up in the cemetery with 15-20 other people.  The applicant was told by Şirin Avar, one of the people tied up next to his brother, that a guard told his brother that he was in trouble as there was a photo showing him with the PKK.

269.          The next day, a helicopter arrived. A person wearing a chador got out. When the wind from the rotor blades lifted the cloth, it could be seen to be a thin, blond person. His brother had recognised the man but did not wish to name him in case this placed him at risk. The soldiers collected the identity papers of the detainees, from which the man with a chador made a selection. Seven people were placed on a helicopter and the others released. His brother described all this to his mother Hediye (who has since died) and his elder brother when they visited him later. The detainees were taken to Kepir, a hilly place attached to Gurnik, with woodland beside it. They joined other detainees already there. On the second day (11 October), the applicant’s mother Hediye visited his brother there, taking food. He complained of being cold. His mother brought a blanket and winter clothes the next day. There were soldiers who spoke Kurdish to whom his mother could talk. People had their hands and legs tied but were untied when they had visitors. Mehmet Şah was tied back to back with Bahri Şimsek.  On her third visit, his mother saw that Mehmet Şah’s lips were chapped and that he was flushed and shaking terribly. He was affected by being kept out at night, when it was very cold. Pressure was also being exerted on him. On 15 October, his brother Aziz arrived in the village. The next morning, he went with their mother to visit Mehmet Şah. Mehmet Şah cried a lot. He was very cold and the soldiers had taken away the blanket that had been brought. He said that there were now two informers who were giving statements about them and that they would be killed.  He was panic-stricken. Aziz tried to hearten him, re-assuring him and giving him 500,000 TL for travel expenses when he was released.

270.          Aziz left on 17 October 1993. On that day, his mother went to visit Mehmet Şah. She met Vesha who said not to bother as the soldiers had not let her visit and had said that a helicopter would arrive soon. His mother tried nonetheless but was told to go away, that they had burned all the houses and would bomb the places nearby. She waited where Vesha was, from which point they could see the detainees though not clearly. After ten minutes, a helicopter came from the direction of Bingöl over the Şen plateau. The women saw people being put onto it. After ten minutes, as they had started to move away, a second helicopter came, more people were put on it and it disappeared in the same direction. He did not know if it was the same helicopter or a different one. His mother and Vesha were then chased to the bottom of the valley. Everybody was moving their possessions. Houses were burned down in Pireş. In some places, there was no burning but the people were forced to move.

271.          They were sure that their brother would be found. When they found out eleven people were missing this encouraged them as surely eleven people could not disappear. They thought that they would appear in a court somewhere. After waiting 15-20 days without news, he went to the SSC, giving a petition to the police on duty. After a while, they brought it back, saying that there was no such person in their records. He took petitions almost every day and received the same response. He checked at the prisons too. He went with several others to see the deputy emergency governor, Ahmet, who denied that such a thing could happen, suggesting that it was the PKK who took the missing people in a helicopter. After that, he and Aydın Demir visited the provincial gendarme headquarters. They talked to a lieutenant-colonel who knew about the operation, where it had taken place and had heard of Celil Aydoğdu but did not know what had happened to the detainees. He told them that they should ask the PKK leader about the missing people.

272.          On 27 November 1993, the applicant went to Kulp. At 09.30 hours, he went with others to see the public prosecutor, giving in a petition. The prosecutor said that he had not heard of the operation and that they should talk to the district governor. They visited the governor at 13.30 hours. They told the governor, Kadir Koçdemir, about the incident. He claimed that this was the first that he had heard of the disappearance of eleven people, that this distressed him and that he would contact them if he found out anything. He said however that he was unable to do anything. He explained that in the spring the Bolu brigade under the command of Yavuz pasha had arrived in Kulp, taking over the boarding school for four months before carrying out an operation. They never gave out any information, receiving their orders from the Chief of Staff directly. He did say he would investigate and send them a fax. He spoke to the district gendarme commander on the phone, telling the captain that he was sending the relatives over and that he should give them information. The captain told them that 16 of his men killed on the Şen plateau were unaccounted for so how could he tell them about their relatives. There was an operation and perhaps there was a clash during which they were killed. He said that it was the Bolu brigade who carried out the operation. When the applicant asked if the local station had information, the captain said that the soldiers passed the station taking a few men for sentry duty but they came back afterwards and had no information. The district governor sent them a fax later saying that he had not found any trace of the missing people.

273.          The applicant had heard about Yavuz pasha from the district governor. On 30 December, he and Süleyman Yamuk went to Bolu to try to speak to this commander. He was told at the brigade headquarters that his name was Yavuz Ertürk. They had given a petition to a second lieutenant, who talked with some-one on the phone explaining that they were looking for missing relatives.  The lieutenant then talked to a major on the phone who said that he had been in Muş during the operation and had no records of such an incident.

274.          In 1994, after he had talked to a British M.P., the applicant and Hüsnü Demir went to see the SSC Chief Prosecutor, Bekir, who had asked to see them. He told them to come back after 40 days when he had investigated. This gave them fresh hope. When they came back, the police would not let them in but brought a message that the prosecutor had investigated but found nothing.  While he was on his military service in 1996, he heard that they had been looking for him and summoned his brother to the SSC. At that time, they also took Sabri Tutuş and asked why he was suing them in the European Human Rights Commission.

275.          In June 1993, the applicant had registered to sit the exam to join the police force. Later, in September, when he was summoned to the gendarmerie station, he was asked about his application and asked what was his relationship to Şahin Atalay. He said that his brother was Mehmet Şah Atala at which the officer commented that one brother wanted to be a police officer while the other worked for the terrorists. His parents had both died since because of the grief suffered for his brother. His brother’s wife had given birth to a daughter six months after his disappearance, whom they had called Hasret (“longing”). He would live with sorrow and a heavy heart until they found some trace of his brother. It would make him happy to receive some information, however bad.

(5)Aydın Demir

276.          The applicant was born in 1968. In October 1993, he was living in Alaca village. On 9 October, he was in Muş. He heard that troops were at the village. On 10 or 11 October, he went to Kızılağaç village to try to get news. He was not allowed through as soldiers said that it was forbidden. In Muş, he hired a car, travelling to Diyarbakır and then to Kulp. The next morning, he went to Palan station but was told that it was forbidden to pass. He returned to Kulp. The next day, when he returned, he was allowed through and went to Gurnik. This was about the seventh day of the operation.  He talked to his mother, father and uncle who said that many people had been arrested in Gurnik - his brother Turan, Mehmet Şerif Avar, Celil Aydoğdu. People had been taken up the hill to Kepir. Many were released but eleven were still held. Kepir was 15-20 minutes from Gurnik on foot. The camp was behind the houses at Kepir.

277.          The applicant tried to see his brother but was not given permission, being turned back 20-30 metres from the camp. Vesha, his mother Hediye and Zekiye had been to visit the camp. His mother had received permission to see Turan on two occasions, taking food with Vesha and Zekiye. Turan said that he had been told that his statement would be taken and then he would be released. He described how a person wearing a chador had been there, saying that it was because of him that they were held. The chador had fallen open revealing a man with a moustache whom Turan said that he recognised but feared to give the name. Turan was held with his hands tied, though was unbound when his mother came. His mother saw the other missing men held with Turan. She saw a helicopter arrive in the middle of the operation and take civilians away. It came back again after 10-15 minutes.

278.          The applicant saw the soldiers burning houses in Gurnik. They also sprayed something on the tobacco to make it burn. Some soldiers whom he talked to at the camp spoke Kurdish. They were wearing the normal mottled camouflage dress of the military.

279.          The applicant made a petition in Diyarbakır to the governor’s office. He went to the gendarmerie with Seyithan Atala, where, after making them wait an hour, a colonel told them that he did not know about their relatives. When they asked the colonel where they should ask next, he told them not to ask anywhere. The relatives of the missing people went to the HRA to make an application. His father Hüsnü had also made petitions, applying in Diyarbakır and Ankara. He had not been contacted by any authorities about these events.  However once in the spring he was picked up by the police at about 14.00 hours, held overnight and questioned at about noon the next day by a prosecutor or judge concerning whether he had applied to the HRA and to Europe. He said that they had been forced to as they had no reply from the State. He was told that the matter would be investigated. He had heard nothing since.

(6)Zekiye Demir

280.          The witness was born in 1943. In October 1993, she lived on Şen plateau in Gurnik. When the operation began, her son Turan had gone to Muş to find a vehicle so that the family could move out. He was stopped by soldiers on the way and had to leave the minibus and proceed on foot with some others. This was something like three to four days into the operation. When he arrived, he went to look for his sisters to take them away with him but did not return. In the evening, she heard that he had been arrested by her neighbour who had seen it. Turan was held with others at a high place, 10-15 minutes away for normal people. This was called Kepir, and there were houses there. It took her two hours to get there from her house. She walked on the flat, went down to the stream, crossed and climbed the hill. Before Turan had arrived, eight others had been arrested - Hasan, Mehmet Şah, Celil, Bahri, Nusreddin. She saw the last four detained with her own eyes. They had heard that Celil and Turan were going to be released after three to four days but there was an informer and they were not released. Her son Aydın arrived three to four days after the operation started.

281.          The witness went to visit Turan three times. On the first two occasions, the soldiers did not allow her through but took the food which she brought. On the third occasion, when Pembe and Zehra were with her, they brought Turan with Salih and she spoke to him. Pembe was her age and went every day. Turan told the witness that he was accused of supplying food to the terrorists. He was miserable, needing food and water, and crying. She talked to Mehmet Salih Akdeniz who told her that he was in a terrible state and that they were going to be taken away and killed the next day. He told his wife Pembe that he had heard a commander saying on the radio that they were to be taken to Diyarbakır or Muş. At another point, she recalled that Salih had heard that they were to be taken to woods near Kosmé, on the Muş border to be killed. She did not see the others. Turan told her that they had shot and wounded Celil. She also heard about the man with the chador and that all the people had been arrested because of the information he had given.

282.          Turan was held there 17 days. However at another point, she said that he was there 13-14 days.  Ten-twelve people had been taken to Muş, including Turan’s father who was savagely beaten there. After the 17 days the houses were burned down, including her own. Almost a hundred tonnes of tobacco was burned. During the operation, there was continuous shooting, with planes flying. She had seen a helicopter and plane, one was firing and one was bombing. The ground shook. It was difficult to sleep at night.

283.          When she went to see Turan for the last time, a helicopter came. They put the people on it. It left and came back a little later, taking off a second time. They guessed that it went in the direction of Bingöl. She saw Turan’s friends being put on the helicopter but was too far to see him. Those put on the helicopter wore civilian clothing. She stated at one point that those put on the helicopter must have been thrown off and killed. She and Vesha were down by the camp when this happened. At another point, she stated that they were by the river then.

284.          The soldiers were wearing the same military clothing, some with helmets and others with caps. Some spoke Kurdish. They were from many places, Muş, Bolu, Kayseri, Silvan, Kulp, Diyarbakır etc. She also described the uniforms as being blue and grey, like special team uniforms and that the soldiers’ stubble had grown.

285.          She referred to there being an enmity between Mehmet Salih Akdeniz and the State. The State accused him of giving bread to the PKK though he was a muhtar. She had not heard about anyone stealing his animals.

286.          They had all gone to the HRA to make an application. No-one had asked her to make a statement.

(7)Kemal Taş

287.          The applicant was born in 1929. In October 1993, he lived in Çöl hamlet of Şeyh Hamza, Kulp district. His son Ümit, who was 16 years’ old, lived with him. Ümit went into Kulp to pay a creditor and was detained in September. He was held in Kulp for about five days. His son Mehmet Tahir took him food over three to four days. Then the police told Mehmet Tahir that Ümit had been released, so Mehmet Tahir returned to the village. He had been beaten, his chin swollen and unable to eat for some days. Mehmet Tahir returned to Kulp to make enquiries as to where Ümit was and was beaten again. After that, the applicant went to enquire.

288.          The applicant heard that Ümit had not been released but was handed over to the Bolu forces that had come for an operation. He learned that in Kulp. He referred to his brother, who lived in Kulp, as having learned this and also deducing it after the nomads had seen him in the highlands. He went to the police headquarters with a petition, where a superintendent Mehmet told him that his son was not there. He went to the gendarmerie station, where Major Ali handed back his petition denying such an incident.

289.          The applicant learned from nomads that, in September, the nomads had seen his son tied up by Panak station (20-30 metres away), sitting with soldiers, when they were returning from the plateau. The person who told him this was a relative who did not agree to give evidence or for his name to be revealed. He heard that from there Ümit was taken to Gurnik with the operation. The applicant went to Gurnik[10]. When he arrived, all the houses were burned. The soldiers had left. The people were outside. The villagers told him that 20-30 people had been detained in a place called Kepir, of whom all were released save 11. They said that they had seen his son bound hand and foot amongst the detainees. His son had told them that he was from Şeyh Hamza. He also heard that a helicopter had taken them away. He left the next day. He visited the commando unit in Kulp; he talked to the Kulp public prosecutor; he went to Elazığ, where the prosecutor was absent and he made enquiries at the police headquarters; at Bingöl and Erzurum he visited the prisons; he went to Muş and to Erzincan, where a lady prosecutor suggested that he enquire at Diyarbakır. He submitted three or four petitions to the Diyarbakır prosecutor but received no reply.

290.          The operation did not come to his village. It reached Gurnik, a long way from his village.

291.          A year after the incident, he was called to the Diyarbakır prosecutor’s office, where he was told that foreign people were investigating the case and he gave a statement.

(8)Süleyman Yamuk

292.          The applicant was born in 1955. In October 1993, he lived in Muş. His brother Abdo lived in Pireş hamlet, Alaca village. On about 10 October, he heard that an operation had started on 9 October. It was a big operation and people were talking about it. The applicant left Muş, arriving at Arı village. From there, he went to a place across from Pireş, from where he could see smoke and fire. Soldiers were setting the houses on fire there. His sister-in-law came over and told him that soldiers had taken Abdo from her house on 10 October. There had been ten soldiers and Süleyman Atala, from Mezire, acting as their guide. Abdo was taken towards Şuşan. The applicant spent three days moving belongings to Muş. On the fourth day, he was arrested. The soldiers asked what he was doing and when he said that he was moving his brother’s house, a soldier told him he was lying and detained him. He was taken the same day to Muş by helicopter, where he was detained for 6-7 days. Ramazan Yerlikaya was one of the people taken with him. He was not brought before any prosecutor but released and sent home. He did not go back to Alaca. He had heard during his detention that his brother had been taken to Kepir.

293.          After he was released, he heard from friends that his brother and others had been taken away by helicopter. Sabri Avar, Keleş Şimşek and Ali Yerlikaya were with them. One of those detained said that while he was there Abdo had been shot in the foot.  He also heard about the man with the chador and guessed that maybe his brother had been informed on.

294.          After the operation ended, he went to make enquiries about his brother. The Bingöl prosecutor told him that his brother was not there. He went to the SSC many times. He went to the Kulp district governor with other relatives (Seyithan Atala, Sabri Avar, Kemal Taş). There he was told that Bolu soldiers had taken the missing people and that the commander was General Yavuz. Seyithan Atala and the applicant went to Bolu on or about 30 .  They submitted a petition about their problem, asking to see the general. They were told the general was in Europe. An NCO talked on the phone with a colonel who denied that they had been in the Bingöl-Muş-Diyarbakır triangle.

295.          Some time later, maybe in 1994, he was summoned to the Muş public prosecutor. He gave the same information as he gave to the Delegates. The prosecutor told him that the Chief Prosecutor would send him news but he heard nothing. He made another petition to the Ministry of Justice and was told that the investigation was continuing. In 1996 after he moved to Tarsus, the public prosecutor there summoned him and said that he had complained against the State. The applicant explained that he had tried all doors, that nobody had told him whether his brother was alive or dead and so he had to give his petition to the Human Rights. He gave the prosecutor a copy of a previous petition. The prosecutor said that he would receive information soon but he heard nothing.  His brother had two wives and nine children.

(9)Ramazan Yerlikaya

296.          The applicant was born in 1967.  In October 1993, he was living in Kayalısu, where his brother Nusreddin Yerlikaya also lived with the family. They had some livestock which Nusreddin looked after as well as a tobacco field. When the operation started, he was in Muş and heard about it from villagers. He and others went back to the village. About 100 metres from the village, they were stopped by soldiers and detained. They were taken to a plateau area in the Kayalısu village and held for nine days. Two of the soldiers were called Captain Tuncay and Captain Salih. They said that somebody had complained about them and that he and the others had committed an offence. The applicant and others told them to check with the local station. When the captains asked on the radio, they were told that the applicant was not wanted for anything. The soldiers wore camouflage uniforms. They did not speak Kurdish. Captain Salih's rank insignia were visible. He saw the epaulettes of both captains, who remained at the camp throughout. For the first couple of days, they were tied up, hands and feet, with their feet roped to their necks. Later, only their hands were tied. Their ID cards were taken from them. From where they were, he could see them burning the houses (300 of them) and firing mortars. There were lots of soldiers, from Bolu, Kayseri, Elazığ, Bingöl and elsewhere.

297.          On about 19 October, he and his uncle’s son İlhani Tutuş were put in a helicopter and taken to the regiment in Muş. They were given back their ID cards. On the way, the pilot was ordered to stop at “No. 14” (a place in Üçevler, where they picked up two more people (a woman and Süleyman Yamuk). He had previously heard Captain Salih talking with the commander at Alaca on the radio, the Alaca commander stating that he held Nusreddin Yerlikaya. He was released in Muş after eight days He was held in the basement of a military building (described by him as where the infantry and gendarmes were together), together with 144 people, including four women. 16 were from Kayalısu while the others were from villages in Muş. Süleyman Yamuk was there. Men with leather jackets, civilian or special teams, came at night, took people out and tortured them. He was not tortured. He signed something before leaving.

298.          After his release, he heard from his sister-in-law[11] that she had seen Nusreddin taken from his house, with Ali, Medeni and Abdurrahim Yerlikaya. It was said that a man in a mask had acted as an informer, making complaints.  When the wind lifted his headcovering, he was recognised as Hakkı Zümrüt, a fellow villager. It was said that he informed to get money from the State, selecting one person from each family. There was no feud between him and Nusreddin. Vesha Avar told him that people had been tied up in Gurnik and taken away by helicopter to the Şen plateau.

299.          The applicant tried to find his brother. He made a petition to the governor’s office in Diyarbakır and went to the SSC. He enquired at Muş and Kulp, giving in petitions.  The Kulp district governor said he had no information about the operation. Initially, the applicant did not recall the name Yavuz pasha nor that the governor mentioned the Bolu forces. To further questions, he stated that the district governor had mentioned Bolu forces and that he had forgotten as it was so long ago. The governor also told them to ask the gendarmes. Though the gendarmes said that they would investigate and send an answer, he had heard nothing from them.  The previous year, the prosecutor asked to see them. The prosecutor asked him about the disappearance of his brother and said that the applicant had complained against the State to Europe.

(10)Abdurrahim Yerlikaya[12]

300.          This witness was born in 1965. In October 1993, he lived in the Licik hamlet of Kayalısu village, attached to Muş. He lived in the same house with his brother Medeni while his brothers Ramazan and Nusreddin shared a house. Nusreddin, the oldest of his brothers, had twelve children. On 9 October, an operation came to the area. The soldiers went to the high plateau and on the second day came down to the village. Some soldiers, with Mehmet Tutuş and Ali Yerlikaya (unrelated to him) who had been apprehended the day before, came to his house. They searched the witness and his brothers Nusreddin and Medeni who were there, finding nothing and also searched the house. Then the soldiers took him and his two brothers to Pireş, across from their village, onto the Kulp side of the river. That was a half hour walk. There were others held there, 20-30, including Şirin Avar, Hasan Avar, Bahri Şimşek, Mehmet Şah Atala, Ümit Taş, Abdo Yamuk and Süleyman Atala. He stayed in Pireş one night. Their hands and feet were tied. The next day, the soldiers lit a red smoke flare and a helicopter landed from the direction of Kayalısu village. A man got out, who was completely covered and wearing camouflage clothes. The guards untied the feet of the detainees, made them stand up, separated them into two groups and told them to look in different directions. The masked man walked among them and picked out people who were released. About ten were released, including Süleyman Atala and Şirin Avar. The man left. Those who were left, including himself, his brothers, Ali Yerlıkaya, Ümit Taş, Hasan Avar, Mehmet Şah Atala and Abdo Yamuk were put on a helicopter and taken to Kepir. They did not see anything on the way as they were blindfolded. He did hear gunfire, from the direction of Muş, Kayalısu.

301.        Kepir was high up. There was a level area for the helicopter to land and a small forest. There were soldiers there and civilians already there who included Mehmet Salih Akdeniz, Turan Demir, Behçet Tutuş, Celil Aydoğdu, Mehmet Avar. He did not remember anyone else coming to join this group after he did. There were about 30-35 soldiers there. They were wearing summer camouflage uniforms. They spoke Turkish, not Kurdish. On the second day, Kutbeddin Yerlikaya and two other men brought blankets for them. At night, their hands and feet were tied and they lay on the ground. The soldiers gave them food and a tent at night. During the day, their feet were not bound, while their hands were untied when they ate or relieved themselves. The witness did not see any other civilians who were held during the day and sent home at night.  The soldiers took the statements one by one. A captain (he guessed the rank) took his statement. He did not sign it.

302.        He was there six days. Abdo Yamuk was taken away to make a statement and brought back two days later. He was not near to him then but heard from others that Abdo had been injured. At another point, he stated that Abdo was taken by helicopter to Kayalısu on the fifth day. On the fourth day, Nusreddin and Behçet Tutuş had also been taken by helicopter to the Kayalısu area. The witness did not see Nusreddin brought back as he and Medeni Yerlikaya and Ali Yerlikaya were given their ID cards and released. The witness went to their house and they moved everything to Muş. The village was burned down, along with the grass and hay. The soldiers stayed till the end of the month but he was guessing.

303.          He had not met Ümit Taş before he was taken to Pireş. He did not talk to Ümit. They were not allowed to talk very much amongst themselves. When asked how old Ümit was, he stated that he had not seen his ID card and would not know, but estimated about 28 or 30. He did not ask Ümit for his name. He asked the other detainees for his name. Mehmet Şah Atala and Abdo said that he was called Ümit. He did not see any women bringing things to the camp. Maybe Zekiye Demir or Vesha Avar came after he had left the group. Someone had said that they came after his release.

(11)Sabri Tutuş

304.          The applicant was born in 1976. In October 1993, he was living in Licik. However he had previously been working in Diyarbakır with his uncles and returned when his father said that they were going to leave the village. He was the eldest son, with four brothers and five sisters. When the operation started, his father Behçet had gone to Muş to sell animals as he had heard that there was going to be an operation. He was also going to get a tractor to move their house belongings. The applicant, his brother Nihat and his uncle’s son, were apprehended in his house and taken to the top end of Licik, where they were held for nine days under guard by soldiers in the middle of a wood. His mother brought food a couple of times. The soldiers burned down the houses. The place was teeming with thousands of soldiers. He did not see anyone in a mask. He heard from the soldiers that they had come from distant places, Bolu, Kayseri. They spoke Turkish and said that they were on an operation looking for the PKK. He thought they were all commandos. They wore a uniform of one colour. He did not think that they could be PKK dressed in soldiers’ uniforms.

305.          His father and uncle were arrested in Gurnik when they were returning to the village. His uncle was released after three days but not his father.  His uncle came and told the applicant about this on his release. His uncle said that his father stayed in a group of eleven, that his father’s hands and feet had been tied and that his father had been assaulted/insulted.

306.          After the operation, they went to Muş. The relatives of the eleven people gathered and wrote petitions to Muş and Diyarbakır. They submitted petitions everywhere but received no news. About 15 people, including himself, went to see the district governor in Kulp who said that he would get to the bottom of it. After seeing the governor, they went to see a gendarme captain or major.  No-one could say if their relatives were alive or dead. He had been terribly upset since losing his father. When people died, you could see their body, go to the cemetery and read prayers. They had seen nothing. That was why he had lost his head. He made a plea to the Government Agent for news of whether the missing people were alive or dead.

307.          In 1994, in mid-summer, he was summoned by the chief public prosecutor in Diyarbakır. Other relatives of the missing persons had also been summoned. He gave a statement. The prosecutor asked him how did the incident happen and did the soldiers set fire to the village. He did not recall being asked about his application. He confirmed his signature on the statement to the HRA.

(12)Selahattin Tutuş

308.          The witness was 60 years old. He used to live in Licik. When the operation started, he was in Muş with his younger brother Behçet. They got into a minibus and went to Kozme. The soldiers stopped the bus, telling them to go and empty their houses. When they arrived in Gurnik on foot, the soldiers detained them. Turan Demir and Mehmet Şerif were with them, having also come on the minibus. An instruction came on the radio that they should be taken to Kepir. They walked up the hill to a level area where there were many soldiers.  A sergeant made them walk up and down like a drill. There was someone there with his face covered, wearing military clothes and carrying a Kalashnikov. The soldiers would not let them look in his direction. When they turned and faced the soldiers, they told Behçet to come forward. They tied his hands behind his back and to his neck. Behçet Tutuş was beaten. They took the ID cards from everybody. They told everyone else to go home for the night and come back in the morning. There were about 30 villagers in the camp. He stayed at Kepir in the same place with his brother for four days. There were many soldiers there, in grey with military berets. Some of the berets had a small red mark on the front. A senior commander came once, who had little hair.  Though he had no hat or insignia, the senior sergeant saluted him. While he was there, he was asked by the soldiers if he knew the people of the area. Visitors came but were not allowed in the camp.

309.          On the second day, when they were in the camp again, Behçet got permission to go to the lavatory and gave 20 million lira to the witness. A sergeant saw this and took the money, saying he would keep it safe. The sergeant removed something else from Behçet’s pocket but the witness did not see what it was. In the evening, he went to people’s homes in Kepir to sleep.   These houses had not yet been burned. The place where the helicopter landed was higher up, at 25 minutes’ distance. There were a group of eleven who were not released or untied, though others were. These eleven stayed in the camp all the time. He knew all of the eleven, save for one young man not from the village. He did not remember now all the names of the others, but mentioned Mehmet Şerif, Turan, Hacı Salih, Bahri, Nusreddin and Mehmet Şah. He said that Celil Aydoğdu was there also, and was limping as he had been shot in the foot. However, he also stated that Celil was held by two soldiers far away from him and could not see where he was injured. When the names Hasan Avar and Abdo Yamuk were mentioned, he said that he had forgotten and that they were there too.  Hacı Salih’s hands were not tied, unlike the others. The father of the young man came, looking for him. He might have mentioned the name Ümit. When asked whether he heard the name Ümit Taş while he was at Kepir or when he met Kemal Taş later, he seemed to say that it was the latter.

310.          One day, at about 19.00 hours, 32 names were read out, including his. They were made to walk to a hill and there 25 of them got onto a helicopter which came from the Kosme direction. The helicopter flew towards Muş. They landed where there was red marking, in a level area with many soldiers. They had to walk for an hour and reached the boundary of Muş. There were more soldiers on one side of the forest. They were different, members of teams who were unshaven but in the same uniforms. He described one group of soldiers being from Muş and the other from Kulp, camping on different sides of the road. The former were kinder and released villagers, while the others beat people up and did not let them go. The witness remained there two days and nights without food. Before nightfall, they were split into two groups. Six were kept while the others, including the witness, were released. This was on the seventh day of his detention.

311.          When they got home, they saw that everything had been burned. They went to the Misur river, where some villagers had taken shelter and spent the night there. Since the soldiers at Kepir had kept their ID cards, they went up to Kepir to get them back. When the witness arrived at Kepir, he did not see the detainees. When he asked where the detainees were, he was told that they had been taken up the hill. An NCO gave their cards back. The witness pleaded to see his brother. The NCO hit him. He thought he heard the voice of his brother nearby, saying “Hakkı, Hakkı” but was unable to go over to him. He saw him however sitting between soldiers who were in three groups.

312.          The witness was forced to go away. He gathered his belongings and went to Kulp. At first, they did nothing about his brother. Then they went to the Kulp prosecutor who said that if the missing people were brought back it would be to Diyarbakır. They went to the Diyarbakır provincial governor but could not see him personally. He remembered making a complaint somewhere else but his memory was hazy.

313.          Previously, the PKK had come to the area from time to time but he did not remember any clashes.

(13)Mehmet İlbey

314.          The witness was born in 1964. In October 1993, he was living on the Şen plateau, Alaca village. On 9 October, he was in Muş. He heard that day that an operation had started from villagers who had run away. Smoke could also be seen from Muş. The whole valley towards Zengük was covered with smoke as villages were burning. On 10 October, he and two friends asked permission from the commander to take a tractor to move their belongings but he said that it was forbidden. He went to Kulp on 12 October via Bingöl, Diyarbakır and Lice. From Kulp, he and others went to Panak station by minibus. They were stopped there. He obtained permission from NCO Yüksel to go to the village to help his mother and relatives. On 13 October, he arrived in Gurnik hamlet. At the entrance, he was stopped with two others (Serafettin Yerlikaya and Şirin Altıntaş) and taken to the people assembled at Kepir. Their ID cards were taken. There was a man with his face covered. He was told by an NCO to walk forward then back, casually. When he was near the commander Mustafa, he heard a man saying on the radio that he had not seen the witness before. The witness saw the man with the mask only on the first day he was there. Serafettin Yerlikaya said that he saw that it was Hakkı Zümrüt when the man was tying up his scarf round his face. Everyone there said that it was Hakkı Zümrüt. He considered this was confirmed when İhsan Aslan and Burhan Aslan went to talk to the man and an hour later, Selahattin Aydın’s hands were untied and he was sent home. As İhsan Aslan was Hakkı’s brother-in-law, everyone concluded that he had got the man released.

315.          At Kepir, he was with a large crowd of detainees whose hands were not tied. They were kept there at night under guard. However, to another question, he specified that in the evening (17.00-18.00 hours) they went down to Gurnik and in the morning (07.00 hours) they came back to the camp. When he was told that a previous witness Abdurrahim Yerlikaya had stated that they slept in the camp at night and were give tents, he knew nothing of this and thought that no-one had stayed during the night from his group. He talked to one NCO, called Şenol and another NCO, who said that he was from Urfa and was Kurdish, both of whom said they were members of the Bolu forces. Both NCOs took orders from the first lieutenant who was the camp commander and had two stars. The NCO from Urfa told him that the PKK were in the area and that the witness and others aided and abetted them. In the camp, there were at least 50, including detainees, woman and children. He was questioned by the first lieutenant, who talked on the radio to a commander, checking whether the witness was wanted. The lieutenant asked him whether the PKK carried out activities in that area and said that if he showed the soldiers one or two hiding places they would release him. He denied knowing any secret locations. No written statement was drawn up.

316.          There was a group of eleven already there whose hands were tied - Turan Demir, Behçet Tutuş, Nusreddin Yerlikaya, Mehmet Şerif Avar, Hasan Avar, Abdo Yamuk, Mehmet Salih Akdeniz, Celil Aydoğdu, Bahri Şimşek and Mehmet Şah Atala. Ümit Taş was also with them but he had not seen him before and did not know him. It was later when he talked to Kemal Taş that he learned Ümit’s name. He told Kemal Taş, who was looking for his missing son, that there had been a detainee whose name he did not know. He said that the detainee was 23-24, weighing 65-70 kilos and Kemal Taş said that could have been his son. The soldiers said that the group of eleven had committed offences. He described the two groups as being 10 metres apart, the eleven being kept at a separate location, 10-15 metres lower down. He was unable to talk to any of them except Mehmet Salih Akdeniz, whose hands were not tied. He saw the men from the group of eleven being taken one by one into the forest, about 100 metres away, after which he heard screams and shouts. He saw Turan Demir, Behçet Tutuş, Nusreddin Yerlikaya, Mehmet Şerif Avar and Hasan Avar being taken in this way to be questioned. The witness and others asked where they were being taken and were told that it was to relieve themselves. But they were gone 10-20 minutes, sometimes half an hour. These men looked terrible, which was not surprising as they had been tied up and hungry for a week. Mothers and spouses of the detainees came, including Vesha Avar, Sabriye İpek and Zekiye Demir. When the visitors came (mainly women as men were not allowed to leave or enter), the soldiers brought the detainee to the visitor, they talked in the presence of the soldiers who then took the detainee back again. He saw Vesha visiting three times, Zekiye twice and Pembe once.

317.          He was told by others that Nusreddin Yerlikaya and Behçet Tutuş had been taken away from the camp on 12 October, before his arrival. They had shown the location of shelters and food stores to the soldiers.

318.          The witness was held at Kepir for four days, being released on 16 October. A first lieutenant read out the names of detainees, gave them back their ID cards and then they left. The names of Turan Demir and Mehmet Şerif Avar were read out and they were untied. However, almost immediately a second order was issued to take them back into custody. They had also released Mehmet Salih Akdeniz. The commander was about to give him back his ID card, but after checking on the radio with Panak station whether he should be released, he received the instruction from NCO Yüksel that on the orders of the garrison commander he should not be released but brought to Kulp. He heard the man on the radio give that name. The witness and the others left. The ones remaining were those who had had their hands tied.  They were taken up the hill to two or three helicopters were standing but he did not see what happened after that. These helicopters came and went frequently, perhaps bringing food.

319.          After his release, the witness went to see his mother in Gurnik and told her that he would bring back a tractor from Muş. On the way back, he saw the operation was still continuing. There were 32 hamlets in Alaca. The operation had not covered them all, seven or eight being unaffected which were on the other side of the Andok mountain. The operation was in Şen plateau, the surrounding areas of Pireş, Mezire, Arı, Kayalısu, Kepir, Badinek, Kozme hill. After a few days at Kulp, he heard that the operation was over. People returned to the village and moved their livestock and furniture away. He bumped into Hakkı Zümrüt in Kulp on 17 October. He was with his brother Süleyman Zümrüt. He talked to Süleyman who said that Hakkı had been taken away on 7 October by the soldiers and had been released that day. When the witness pointed out that judges and prosecutors did not work on Sundays, Hakkı grew angry, insisting that the soldiers had released him and he was going home. Süleyman had submitted a petition to the prosecutor when Hakkı was taken but the prosecutor said that he was not detained. After the operation, there was ill-feeling and disagreement in Hakkı’s family. The Alaca villagers had been talking about things. He heard from one of Hakkı’s nephews that he was upset with Hakkı.

320.          The witness was from the Batikan tribe. Hakkı Zümrüt was from the Mederan tribe. There had been 30 village guards in Alaca. Hakkı and his brothers had been village guards. Their houses had been burned in 1991 by the PKK. Hakkı and his cohorts gave up fighting due to the pressure from the PKK who carried out raids etc in 1991 and 1992.

(14)Ulvi Kartal

321.          The witness was born in 1967. From August 1993 over a period of two years, he was Panak gendarme station commander, in charge of 40-60 men, under the command of Captain Ali Ergülmez, the Kulp district gendarme commander. The station was about 5 kilometres from Gurnik. It consisted of one main building and a kitchen building. Alaca village, which was an imprecise area, was within his jurisdiction.

322.          The witness had never entered Gurnik. He never went into the hamlets, but only to strategic places, such as hills. He did not know the local people. Shortly after he arrived the inhabitants left. For 22 months out of 24 the area was empty. Occasionally, villagers came back, on holiday, to visit graves and when they obtained permission from higher authorities, to pick walnuts. They had to obtain permission from the district commander since otherwise the signs of occupation might be taken as indicating the presence of bad people. It was a way of informing the gendarmes of their presence. Before that, they had had a good relationship with the locals. There was perhaps one hamlet left in which two or three families remained but they left in the winter. There were no village guards in Alaca. He learned that the area was uninhabited shortly after he arrived, when he saw no smoke or lights in the houses and from talking to villagers who visited the station and explained that they had gone to live elsewhere. This was what he meant when he said that the people left shortly after he arrived. He guessed that the people had left because the terrain was mountainous, with no facilities or hospitals; or they might have been frightened by the threat posed by the PKK.  There had been people of the Batikan tribe in Alaca who had been coerced into becoming terrorists.  There were no houses which had been burned. In response to further questions, he said that the villagers told him that the majority of them had had to join the PKK involuntarily and the rest left for fear of being abducted too.

323.          No operation was carried out in Alaca by his station or the Kulp gendarmerie in October 1993.  The area was within the jurisdiction of Kulp but since it was close to the Muş boundary, the Muş units could operate there too.  He would know about Kulp operations but would not be informed about what other units did. He had no knowledge of any operation carried out by other units at that time either in Alaca or close to it. He heard and saw nothing. He never saw any units from Bolu in his area of duty.  He was not involved in any operations in his own area during those two years there. He did participate in four or five operations in central command jurisdiction of Kulp but he did not know if these were big operations or not. On operations, they communicated by radio, using codenames only. He did not know any code-name Yüksel nor any NCO Yüksel. He was absent on leave for about a week about 21 October and during that time, his second-in-command was called NCO Veli Ateş. When asked what purpose his presence in the area served during this period, he stated that he gathered strategic information about the area not only for use in connection with terrorism but also in respect of other crimes, giving the example of a thief robbing a hamlet and going on the run. In answer to questions by the Government Agent, he clarified that the main purpose of the station was to protect itself from terrorist attack. This had happened twice before his arrival, and once during his time there. According to intelligence reports, there were three terrorist camps in the area, about 5-6 kilometres from the station as the crow flies. This was one of the main reasons he did not go out on operations. If he did go out, it was never with more than 16 men. He did not know where the PKK got their food from.

324.          Through binoculars, at a distance, it was difficult to distinguish soldiers from PKK terrorists as terrorists mostly wore military clothing.

325.          The station was on the Muş-Kulp road. Due to extreme weather conditions the section of road from the station to Kulp was damaged and closed. It was only open in the summer.  He used to check the ID’s of those passing all year round. Most people came by vehicle. When he was informed that several witnesses had stated that they had arrived at the station in a minibus and been stopped from going on, he said that vehicles could not go beyond the station because of the condition of the road to Gurnik which could not take vehicles.

326.          The witness had not heard any allegations that eleven people had gone missing during an operation in October 1993. No villager told him about it. He did receive two requests from his district commander to find out information about 5-6 people on a list. Since no-one lived in the area, he replied that he did not know where these people were. He described having had three, perhaps seven, terrorists at his station, who had surrendered voluntarily. They came in singly. They were not entered in the custody record but transferred elsewhere. He did not recall anyone called Ümit Taş.

(15)Ali Ergülmez

327.          The witness was born in 1956. From July 1993 to August 1995, he was district gendarme commander in Kulp, with 600 men, five district stations and a central station under his command. These included a commando unit of about 200. There were also 1000 guards under his responsibility. Ulvi Kartal was the station commander at Panak under his command. His function, as part of the gendarmerie, was responsibility for security and public order in the district.  Alaca was under Panak station’s jurisdiction. The witness had been there once or twice to get to know the area. Alaca was uninhabited when he took up his office. The population had moved out in 1993, moving to Kulp for their safety due to the terrorists. There was intensive terrorist activity in Kulp at that time.

328.          As district commander, he was involved in armed clashes with the PKK. He was not involved in any planned operation in Alaca in October 1993. When asked if other units had conducted such an operation, he could no longer recall. He was unable to comment on whether there had been a large-scale operation with several thousands of men. He would not have been informed about the activities of other units in his area. When asked to clarify this, he stated that the units concerned would not inform him, but the provincial gendarme headquarters would orally tell him that an operation was going on and he and his men would not go out that day. He could not recall if he was informed this way about any operation in October 1993. It did not however happen very often. He stated that it was out of the question that any of his men could be borrowed by other units during operations. During his time there, one of his second lieutenants, 3-4 of his men and about 40 guards were killed. About 8-10 were seriously injured. None of these casualties occurred on the Şen plateau. He carried out no operation there. The terrain in the north of Kulp was very steep and rocky and from 1993 to 1995 the PKK had spread over the Şen area. There were a lot of armed groups, terrain limited movement and the local gendarme station could not possibly go there.

329.          Any persons taken into custody during an operation would be handed over to the station responsible for public order. He stated that persons would not be collected together in temporary facilities and held for a few days, but would have to be handed over to the relevant police unit after a short time. A person would only be registered in the custody register if he had been charged with an offence but people not suspected of offences would not be. He communicated with his stations by radio. They used code-names not proper names, which could be words or numbers. These changed every month.

330.          The witness had heard from villagers in conversations in coffee-houses in Kulp about allegations that eleven persons had disappeared during an operation in Alaca in October 1993. He denied that Mehmet Emin Akdeniz had visited him, though he had heard the name.  When he was asked to find out about the missing people, he checked the custody records. He would also have sent any petition to the relevant local station to obtain information. He had no recollection of the relatives coming to visit him after a call from the district governor.

331.          Kulp district gendarmerie was attached to the Diyarbakır provincial gendarme headquarters. They would have records concerning the operations conducted within their jurisdiction.

(16)Kenan Sağlam

332.          The witness was born in 1953. From October 1992 to October 1996 he was Bingöl public prosecutor. He had no recollection of any incidents or petitions relating to an operation in October 1993. When shown the petition of 12 November 1993, he stated that the signature was that of his subordinate Mehmet Ayhan to whom the matter would have been assigned. He considered that the petition did not contain a complaint but only a request for information. When a person came to a public prosecutor asking about a person who had gone missing, he would always telephone the police and gendarmerie. There were also occasions when he went in person to inspect the custody records.  He never came across anything untoward. He recalled that he had dealt with enquiries from people who alleged that they had had no news of relatives in custody on one or two occasions at Bingöl.

(17) Bekir Selçuk

333.          The witness was born in 1944. From August 1992 to September 1996 he was Chief Prosecutor at the Diyarbakır State Security Court (SSC). He confirmed his signature on the bottom of several petitions. He had replied to them that the persons had not been taken into custody as the result of an offence falling under the jurisdiction of the SSC. When asked whether the petitions were not broader in scope and requested an investigation, he stated that it was for the administrative authorities to investigate. He did not reply to the question of whether he had referred the petitions to the administrative authorities. He also stated that the Şen plateau fell within the jurisdiction of Kulp and that the Kulp public prosecutor would carry out the initial investigation. He would only refer it to the SSC if it fell within the SSC jurisdiction. He stated that they could initiate investigations where they had information about an incident and also give instructions to prosecutors with regard to prosecutions. In respect of these complaints, there was no information from the security forces or police that any such incident had taken place. He did not receive any information to the effect that any operation had taken place - from the state of emergency governor or the public order regional command. He would have asked them by telephone but he had no exact recollection of how he asked for the information. However to the first petitions in November 1993, he only checked their own records. When referred to the Kulp district governor’s letter of 18 April 1994 which mentioned an operation, he stated that this could have been any one of numerous operations that took place. He did not regard this as information. He did not address the Kulp district governor as an authority but the state of emergency governor or the public order regional command. In his contacts with them, he learned that there had been no operation and on the basis of that intensified the investigation on the lines that the persons had been abducted by the PKK.

334.          When asked whether it was unusual to receive complaints about so many missing persons over the same short period, he stated that it was not. Members of the PKK and their relatives often submitted petitions like that, which they then forward to international organisations, even if they knew that the missing person is in the PKK. The PKK not only abducted young men and women but also old men and babies for political purposes. His letter of 30 June 1995 attributing the disappearances to the PKK was based on the statement of Zeki Akdeniz, information and intelligence from certain State intelligence organisations. He was not in a position to divulge this intelligence. He stated that he had received no information that the missing persons had been taken away by the security forces. He then acknowledged that in some statements there are allegations of detention but that for example in the case of the muhtar he was taken to help the security forces with his knowledge of the area.

335.          When referred to his letter of 24 October 1995 in which it was stated that the names of the women who witnessed the incident had not been given and the existence of a statement by Pembe Akdeniz and references to the name of Zekiye, the witness stated that people were influenced and told what to say, even being taken to prosecutors. He had to believe the State institutions first and foremost. He could not say that he disbelieved the regional governor and believed Pembe Akdeniz instead. If her statement had been corroborated however, they could investigate along those lines. Also her statement to the Kulp public prosecutor did not mean much as the applicants to the Commission whom he questioned did not give the names of the women when he asked directly.

336.          The witness stated that he had jurisdiction to investigate whether applicants had made their applications to the Commission of their own free will or under the pressure of the PKK. They had information that signatures were copied or forged. He asked the individual if it was his signature. He did not ask why the person had applied. He would ask them for information about the incident for their own investigations. He had not received copies of their petitions but only a letter of notification from the Ministry.

(18)Lüfti Baran

337.          The witness, born in 1957 in Karaorman village, Kulp, had gone to live in Silvan in 1991 and to Basbuğ in 1995. He had no definite information about any operation in October 1993 in Alaca. According to what he heard, people were saying that people wearing military uniforms came to the Şen plateau and took some animals and people away. The first time that he had heard about the lawsuit was when the Kulp district commander told him that he was to be a witness in Ankara.

(19)Vehbi Başer

338.          The witness was born in 1946 and had been living in Kulp for four years. In October 1993, he was living in Alaca village itself (2 or 2 1/2 hours from Gurnik).  At the time of the operation, he was not in the village but in a hamlet in the Şen pastureland near Muş.[13] He did not see any helicopters but he heard some. He referred to them going through a pass from Kulp to Muş.  He heard later from the people in the village that soldiers came there and when they completed the operation there were eleven people missing.  At another point, he said that he heard this in the coffee-houses in Kulp. He left his house in Alaca in 1993 as did the others. None of the houses were burned. The village was deserted as there was no peace. When asked why, he said that it came from outside and with some reluctance mentioned the PKK. He said that he had not seen the PKK himself.  He became muhtar in 1994. He did not remember who elected him. There had only been a few families left. He had not been back to Alaca since October 1994 when he picked walnuts. He did not have anything to do as muhtar but received a salary from the State.

339.          At another point, the witness said that he left Alaca in 1992-1993 while he also said that while some people moved before the soldiers came, others like himself moved afterwards. Before the people left, there were about 1000-1500 people living there. He seemed to agree that at the time of the operation, there was nobody in the village and nearby hamlets but also that 40-50 people would have been there harvesting walnuts. Mehmet Salih Akdeniz had a tent on the Şen plateau below his own village and he grazed his animals on his pasture there. His tent was there at the time of the operation.

(20)Hakkı Zümrüt

340.          The witness was born in 1954.  In October 1993, he was living in Kulp. He used to raise animals in the village of Alaca but when his brother stopped helping him in 1992 he could not manage and moved to Kulp.  He had not been back to Alaca since. He knew some of the villagers from Alaca. His elder brother Süleyman was living in Alaca at that time. He had heard that there had been an operation around then. His brother told him that an operation had gone to the mountains, with many soldiers. He also heard 20 to 25 days later that eleven persons were said to be missing after the operation.

341.          From 1986 to1991, he had been a village guard. He had never been asked by soldiers to act as a guide, give names or show them people. He had not been an informer. He did not know anyone by the name of Mehmet İlbey. He was not on bad terms with his brother or any other member of his family. There were no feuds or problems between tribes. He said that he could not really remember if he knew Selahattin Aydın, İhsan or Burhan Aslan. He had not been detained or in the company of gendarmes in October 1993. He remembered lots of people coming with their possessions at this time. Later he specified that this was after the operation.

(21)Yavuz Ertürk

342.          The witness was born in 1946. From September to November 1993, he was the commander of the second command brigade in Bolu, with 2,500 soldiers under his command. Their main base was in Bolu. From September to November 1993, they were deployed in Muş, between the provincial boundaries of Muş, Kulp and Lice, carrying out operations under the state of emergency law, attached to the gendarme general command. He had been transferred from one command to that of the gendarme public order commander at Diyarbakır. At one point, he stated that his units carried out numerous operation in that area at that time.

343.          He explained that his troops did not go to the operation area until 15-20 days before the operation to maintain the element of surprise. They would have been dispersed before being brought into operation and it was not possible for him to say how many would have been in particular districts immediately before the operation started. They were never deployed too long in one area and generally stayed away from settlements. They were highly trained and lived in the field.  From 8 October, there was a sixteen day operation in the Şenlayla area followed by a smaller operation 25-29 October south of Kızılağaç in the Muş region. The district gendarme commander would not have been informed of where any units lodged in his area were going in order to prevent any information carelessly leaking out. They would not tell the local gendarmerie where they were from either but would tell their men to say that they were from somewhere other than Bolu. He stated that about 700-800 of his men were brought to Muş and another 700-800 men to Kulp district, converging on the operation from those places. He agreed that most of his men would be in the Muş-Lice-Kulp area. It was not only his men in the operation however. He also was assisted by the gendarme commando division, a battalion duty force and a 4-squad force from Muş (300 approximately) and other support elements making up a total of 2,500 approximately, half from his own brigade. The gendarmes would have been in the same uniforms as his own men. They normally wore a red and blue badge on their jackets and on their caps while the officers and NCOs wore navy blue badges - these were all removed.

344.          As regarded the operation from 8 October, the purpose was to catch terrorists and those assisting and harbouring them. It involved reconnaissance, observation operations as well as ambushes and field searches in Şenyayla to locate depots and shelters of the PKK. If they came across civilians in those activities, they would be taken. They would obtain information from them as to whether there were terrorists in the area and then hand them over to the nearest gendarmerie unit.  He also stated that his men would use a civilian guide to show them the shortest routes on foot.  The witness provided photographs of the shelters and weapons and food stores which were found on Şen (61 shelters and 62 hideouts). It was a wooded area where the shelters were covered with foliage and difficult to locate. Şen was a very important centre for the terrorists before the operation which forced them to flee. The area of the operation was very close to Muş. Some-one on the top of the hill could look down on the town below. He further described how the units from the Kulp area left, going north from the night of 9 to 10 October. On the night of 10-11 October, they passed the Panak station, and rested on the far side of the station. They moved at night to avoid being seen, resting during the day. The units passed up east of the Kulp stream and the road from Kulp to Muş until they reached Billur, a pass leading into Şenlayla, where the woods began. The terrain was very mountainous. 

345.          He explained that he had informed the Diyarbakır gendarmerie regiment command and the Muş gendarmerie regiment command (which had responsibility for the northern area of the operation) and they would have warned the unit commander in Kulp and Panak that troops were coming and to take precautions to keep out of the way. The Panak station commander would have seen that an operation had come to his area but would not have approached. He would have made contact by radio. The witness stated that they themselves contacted the station by radio. They could not have approached the station as it was mined.

346.          The Bolu forces did not have helicopters of their own but had to ask headquarters for them. His units were allocated two UH1 helicopters at that time. He had two others but they were either in maintenance or out of action. They could carry only three persons as crew and six other persons, without any other luggage. For safety reasons, they had a limit of four passengers.  They used these helicopters for bringing in ammunition and supplies and food or for taking out the wounded.  There was no way that six civilians would have been sent back at a time.[14] They generally used the roads for transport and usually had to walk. He had a report that 30 persons were handed over to Muş gendarmerie but there was no question of 11 persons being taken away in a helicopter or apprehended together at one place. At most, two or three people might have been gathered before being sent on in a helicopter. He would have had control of the helicopters under the responsibility of units attributed to his command for any operation.  When they had to bring troops south after 20 October, they used two Sikorskys. He did not use aircraft in this operation as this would have given away to the terrorists that the operation was going to take place. A bombardment had to take place before the operation as the rule was that there had to be at least 1 km between the target area and the civilian or troop locations. To bomb would also give away the operation and no terrorists would be left when the troops arrived.  Also it served no point to drop a missile in a forest.  Possibly aeroplanes on training missions overflew the area.

347.          As regarded Alaca, it had no centre as a village but was very dispersed. No operation was conducted there at that time. The witness made a rough sketch on the wall of the hearing room, indicating that the operation did not take place in Alaca but that forces had bypassed the village on the other side of the river going onto the Şen plateau. He had heard of Gurnik and Kepir as small scattered settlements of the village. He did not go there.  His forces were on the other side, east of the stream which was in a narrow valley. Panak was on the east and Gurnik was on the west. At the closest, his men would have been 10-12 kilometres from Kepir as the crow flies. His men did conduct an operation at Kepir but at a later time, maybe a year later. His unit knew the locals very well as it had moved round a great deal and throughout the area. His men had also been there in June 1993. They had been in the area north of İnkaya and had caught 16-21 terrorists. This area around Lice and Kulp was the backbone of the PKK, which had started in a coffee-house in Lice even. The military had carried out frequent operations in the rural areas.  The people used to come and give information to the military but usually too late as they were afraid. The military began carrying out more frequent searches and people began succumbing to their fear of the terrorists and refused to help the security forces. The terrorists were putting pressure on them and murdering them. If they refused to give provisions the PKK killed members of their family.

348.          On operations, they talked in encoded messages, with numbers or codenames for the commanders and officers. They had combat jackets to pull over their uniform to cover their epaulettes.  When asked about special emblems, he stated that his officers and NCOs frequently asked for them as they were keen to show what unit they belonged to and proud of their unit. His men wore blue berets with their uniform but not out in the field where they would be too conspicuous. He made them leave their berets in the Bolu barracks for that operation.  There were peaked caps also but without emblems on.

349.          The witness remembered meeting the Kulp district governor Kadir Koçdemir and dining at his home. He had also met the Kulp district gendarme commander Ali Ergülmez probably in November-early December 1993. He was aware that in January 1994 three people, who by their dress and demeanour came from the south-east, were asking information about him in coffee-houses in Bolu, trying to find out where he lived. They came to the sentry at the barracks asking for him. When asked why they were looking for the witness, they said that they wanted to speak to him through the officer on duty. They were told that he was not there. They asked also at military bars and canteens. They were warned and left. The provincial governor and the chief of police took security precautions to protect him.

350.          When the names of the eleven missing persons were put to him, the witness remembered the name of Ümit Taş.  In 1994, when he had returned to the area, he heard that his parents were searching for him from the Kulp police and gendarmes. As he was curious, he obtained permission and carried out pinpoint operations in places where the boy might be to assist the Kulp gendarmerie and for humanitarian reasons. People had wondered if he had been abducted by the terrorists.  They never came across him though. He had never been questioned by a prosecutor about these eleven people.

Written submissions from Yavuz Ertürk

351.          This witness gave evidence before the Delegates in a separate location chosen by the Government. Due to the failure of the technical arrangements which were to allow a sound link into a room where the parties’ representatives sat, the witness’s evidence was heard by the Delegates alone. A verbatim record of the evidence was given to the parties, who were also allowed to put written questions to the witness to elucidate his testimony. The Government put questions and the witness’s reply is summarised below:

352.          There were between 2000-2500 soldiers in the operation of which 10 to 20 % were officers or subalterns. The sergeants and ordinary soldiers were doing their military service. There was a turnover every three months of soldiers finishing their duty. Turkish soldiers were aware that they should not execute orders contrary to the law and were of strong moral responsibility.

353.          During the operation, they had not used vehicles for transport in order to maintain the element of surprise. They had taken care not to go through populated areas. The soldiers moved secretly on foot and at night and it was not realistic for civilians to have claimed to have been with them. The area of the operation was an area surrounded on four sides by high mountains, opened in the east by a narrow valley through which the Kulp river ran. The southern area was steep and gave little scope for the landing of helicopters. The operation area was a plateau entirely covered by trees, without any inhabited places, again with hardly any places for the helicopters to land.  The PKK sheltered there and only civilians who were assisting them entered to bring them food. Those who did not assist the PKK did not enter. 41 terrorists were killed during the operation and 4 caught alive. 34 villagers were sent to be interrogated by the Muş gendarmerie suspected of aiding and abetting the terrorists, of whom four were released and the others detained for suspected offences. Two soldiers died, and three were injured. It had not been possible for relatives of apprehended persons to contact the detainees. This would have been against the principle of security and prevented by security forces assuring the exterior perimeter of the operation zone from infiltration.

354.          The helicopters which landed during the operation could only be seen when they were in the air. Because of the lack of security, the helicopters would not approach or leave landing areas from the same direction. Helicopters were used for ammunition, food, wounded, transporting commanders urgently and rarely for taking apprehended terrorists to be urgently interrogated (but never more than four persons were taken at a time). They only used helicopters from the third day of the operation as this was when food and munitions became necessary, as this minimised the information the terrorists could pick up about activities and because there were limited places to land and they were not accessible initially. He gave further details as to the security requirements attaching to a helicopter landing area - which requires a 100 metre diameter landing strip and a visibility zone of 500 metres minimum. The helicopters which they used were based at Muş, taking off from the north-east of the operation zone and landed in varying places in the area of operation, one of which was on a high landing place in the north.

355.          The asphalt road leading from Diyarbakır to Muş was insecure, unprotected and because of the destruction of the bridge across the river could not be used. The Muş and Genç forces under his command had used three confessors (PKK members who had turned themselves in) who wore the same uniforms as his men and the same haircuts. They did not use guides from the villages. If they had, this would have risked allowing information to go to the PKK via family members.

(22) Pembe Akdeniz

356.          The witness stated that she was 40 to 45 years old.  In October 1993, she lived in the village of İnkaya. She said that they were nomadic herders, living on their mountain pastures, far away from the hamlet of Gurnik. They used to go to the pastures for four months, leaving at the end of October.

357.          In October 1993, they had reached the place on the Şen plateau where the large pear tree was when they saw three jet aircraft approaching. They bombed the people there, the tents and buildings of the Akdeniz family, eight families in all. The soldiers took her husband. She and others (a sister-in-law, together with their children) ran away from the bombardment, hiding down by the river. About noon, the helicopters arrived, also bombing the area around. In mid-afternoon, they went to Şorkan, in a valley. The place was full of soldiers. They gathered wood to make a fire, and stayed the night there. She stated that this place was called Kepir, next to Gurnik. At another point, she seemed to say that she went to Kepir as she had heard from relatives who took food that her husband had been taken there.

358.          In the morning after the bombardment (at another point, she said that she was getting confused and it was three days afterwards), she went to talk to her husband who was with the soldiers, in a place behind some houses. There were also walnut trees there and it was sloping. Her husband said that the soldiers were killing them.  He said that Celil was with him though she did not see Celil. He said that he was being held by the Bolu soldiers. He gestured as if to strike her, telling her not to stay in the area. She tried to talk to the commander to plead with him but the commander swore at her, telling her to go. 

359.          When she went to see her husband, his hands were free. One of the soldiers was Kurdish from Siirt. She described him as being barefoot and laughing with her about a tear in his trousers. When asked again, she stated that she did not see what the soldier was wearing but that his knee was visible through his trousers. She only saw her husband. She went on two occasions. On the first occasion, he was at Gurnik and she was able to talk to him. On the second occasion, when he had been taken to Kepir, she was unable to talk to him. However, to further questions, she stated that she saw Turan Demir, untied, with her husband. She described the soldiers as wearing military uniforms and hats. When asked what colour the hats were, the witness pointed to a bright blue folder and said that some were that colour. The commander looked different, his uniform being cleaner and nicer. She heard a lot of cannon fire from evening until morning, shooting into the mountains. She could feel the ground shaking.  There were a lot of military vehicles also. Helicopters used to land a few times. They were told to leave so after three days they left.

360.          She knew Zekiye, who went to see Turan. There was no-one with her though when she saw her husband. She had heard that others had gone missing and that some-one from Seyh Hamza had also disappeared. She did not herself see the men being taken away. Vesha told her that she saw the soldiers taking them away. She was taking food and they stopped her. Vesha also said that the soldiers were hitting and beating them. She heard nothing about a man with a mask.

361.          She heard that the men were kept for 9-10 days. She waited thinking that he might be released. When he was not released, they made an application to claim their rights. When she was summoned by the prosecutor and told him that the State killed her husband, the prosecutor told her that she was mistaken and that perhaps it was the terrorists. She told him that terrorists did not have aircraft and helicopters and had not taken her husband. She did not remember putting her fingerprint on a statement. She told her brother-in-law Mehmet Emin Akdeniz to pursue the matter for her and to claim their rights.

362.          They no longer went to İnkaya. The village was a wreck, all 100-150 houses burned, along with the vineyards and gardens.

363.          Her husband had been the muhtar. She did not know why he was taken. He was innocent. She did not know anything about the terrorists.

(23) Vesha Avar

364.          The witness was born in 1944 according to her identity card. In October 1993, she was living in Alaca village, in Bongiya hamlet about one hour from Gurnik. There were no PKK in the village but she had heard it said that they were in the vicinity. The gendarmes only came once for the operation. At the beginning of October 1993 by Kurdish reckoning, there was an operation. The soldiers spread out on the mountains, with jets flying. Sabri was in Muş. Hasan and Mehmet were with the witness at that time. On the second day of the operation, soldiers came on foot to where she lived. They burned four houses, refusing to let her take things out.  She saw that Hasan was taken by the soldiers out of his house. On the same day, when Mehmet took sheep to Gurnik to sell, he was caught and taken to Kepir.  She had to stay out in the open with the children.

365.          Seven days later, when the witness took bread and food to Kepir where Hasan and Mehmet were held, she saw that they had divided people into two groups of five people with two soldiers standing guard. The sentry did not allow her through to begin with. He talked to his commander who gave them permission for one hour. On the first visit, Mehmet asked her to bring clothes for him as they were to be taken by helicopter. Mehmet also said that the soldiers were from Bolu.   She saw Hasan also but did not talk to him. Mehmet was next to her and whispered to her secretly. They were tied, hands and feet, with their toes swollen. When she took them food, their hands were untied. There was a sentry there so they could not talk much. She saw the other detainees too - Mehmet Şerif Avar, Hasan, Nusreddin Yerlikaya, Hacı Salih, Celil Aydoğdu in one group and Mehmet Şah Atala, Bahri Şimşek, Turan Demir, Behçet Tutuş and Abdo Yamuk, in the other. Hacı Salih was not tied. She did not know Ümit Taş. She did not see a person she did not know in the group. Four days after the first visit, she went again, taking clothes for Mehmet. However she was not allowed to talk to her relatives and the soldiers took the clothes from her. She visited a third time the day after that. On the last visit, they were placed on the helicopter. She was stopped from talking to them. They were surrounded by soldiers, their hands were tied and they were thrown into a helicopter which had landed nearby.[15] She could see Hasan and Mehmet being put on the helicopter which was not far away.[16]  She moved away from the soldiers and saw the helicopter taking off in the direction of Bingöl. She met Hediye on the way, she was coming as the witness was going. Hediye had been there first. She said that the ten men were put in the same helicopter. The helicopter came back or perhaps a second helicopter but she did not see who got into it. It went in the same direction as the first.  She had seen other helicopters flying in the area.

366.          She described Zekiye and Hediye as going to visit before her and that she ran into them on the way.  Pembe had also gone earlier she had heard.  She described the soldiers as wearing uniforms and military hats, that some hats had stars on and the commanders had insignia on. She heard talk about someone in a mask, said to be from MİT.  One of the soldiers spoke Kurdish to her. She heard another talking in Turkish.  She told her husband Sabri what happened. He had been taken away in a helicopter. When he came back from Muş, nothing was left.

367.          No-one had asked her to make a statement.

Witnesses who did not appear

368.          The Commission's Delegates had also called as witness Hediye Atala but were informed that she had died on 12 January 1997. Mehmet Tahir Taş had also been called as a witness but did not appear as the applicants’ representatives stated that they had not succeeded in contacting him. The Commission were assisted by the Government in making it possible for Sabri Tutuş, who was doing his military service, to appear.

C.Relevant domestic law and practice

369.          The Commission has referred to submissions made by the parties in this and previous cases and to the statements of domestic law and practice recited by the Court (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, paras. 56-62 and Tekin v. Turkey judgment of 9 June 1998, paras. 25-30, to be cited in Reports 1998).

1. State of Emergency

370.          Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security forces and members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

371.          Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.

372.          The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.”

2. Criminal law and procedure

373.          The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (section 450). It is a criminal offence to subject someone to torture or ill-treatment (Articles 243 and 245) and to issue threats (Article 191).

374.          For 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.

3. Prosecution for terrorist offences and offences allegedly committed by members of the security forces

375.          In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.

376.          The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Decree No. 285, Article 4 para. 1, provides that all security forces under the command of the Regional Governor (see paragraph 371 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecutor of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. 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. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State. 

4. Constitutional provisions on administrative liability

377.          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 for damage caused by its own acts and measures.”

378.          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.

379.          Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.

5. Civil law provisions

380.          Any illegal act by civil servants, be it a crime 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 Code of Obligations, 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 Code of Obligations and non-pecuniary or moral damages awarded under Article 47.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

381.          The Commission has declared admissible the applicants’ complaints:

- that their eleven relatives, who had gone missing, had been deprived of  their lives;

- that their relatives had been tortured and ill-treated;

- that the disappearance of their relatives caused the applicants inhuman and degrading treatment;

- that their relatives had been arbitrarily detained without the application of the requisite procedural safeguards;

- that there is no remedy available in respect of these matters;

- that these matters disclose discrimination.

B.Points at issue

382.          The points at issue in the present case are as follows:

- whether there has been a violation of Article 2 of the Convention;

- whether there has been a violation of Article 3 of the Convention in regard to the applicants’ missing relatives;

- whether there has been a violation of Article 3 of the Convention  in regard of the applicants themselves;

- whether there has been a violation of Article 5 of the Convention;

- whether there has been a violation of Article 13 of the Convention;

- whether there has been a violation of Article 14 of the Convention;

383.          The applicants also alleged following the taking of evidence that they had been subject to intimidation and harassment which interfered with their right of individual petition contrary to former Article 25 para. 1 of the Convention.

C.Evaluation of the evidence

384.          Before dealing with the applicant's allegations on these aspects, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to former Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:

i. There have been no findings of fact made by domestic courts as regards the subject-matter of the applicants’ complaints. The Commission has based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proceedings; in the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of “beyond reasonable doubt” as adopted by the Court. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).

ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in many cases via Kurdish and Turkish into English): it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates.

iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. It was also hampered by difficulties in identifying eye-witnesses to events and in obtaining documents relating to the incident, as well as the conditions imposed by the Government in respect of a particular witness (see paras. 2--27, 30-35, 351). The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant evidence. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1.General background

385.          The applicants are close relatives of eleven persons who went missing in October 1993 - Mehmet Salih Akdeniz, Celil Aydoğdu, Behçet Tutuş, Mehmet Şerif Avar, Hasan Avar, Bahri Şimşek, Mehmet Şah Atala, Turan Demir, Abdo Yamuk, Nusreddin Yerlikaya and Ümit Taş.  It is alleged by the applicants that their relatives were detained by security forces who were carrying out a massive operation around the Alaca village in the region between Kulp-Muş-Lice.

386.          There are considerable differences in the evidence put forward by the applicants and their witnesses and the official documents and witnesses relied on by the Government.

387.          Alaca village may be described as an area of dispersed hamlets and houses spread over mountainous terrain, which for administrative purposes was regarded as being in the Kulp district. Its hamlets included Gurnik (where Zekiye Demir, Aydın Demir and Turan Demir lived), Mezire (where Sabri Avar stated that he and his brother Hasan Avar and son Mehmet Şerif Avar lived and where Bahri Şimşek lived, and Mehmet Şah Atala and his family were said to live), Pireş (where Abdo Yamuk was said to live by Süleyman Yamuk), Kepir and Şuşan. Nearby but in the Muş district was Kayalısu village, including Licik hamlet (where Ramazan Yerlikaya and Abdurrahim Yerlikaya stated that they lived with their brother Nusreddin; Sabri Tutuş also said he lived there with his father Behçet Tutuş; Selahattin Tutuş lived there).  It was not far from the Şen plateau[17], where various of the applicants and their witnesses referred to people having pastures for animals, where some people led a nomadic style of life and where there were fruit and walnut trees (Mehmet İlbey stated that he lived there and Mehmet Salih Akdeniz was stated to have pastures there, living a nomadic life with other members of his family).  The nearest gendarme station was at Panak, which was on the Kulp-Muş road. Many of the applicants and members of their families were also living in either Muş or Kulp, the two nearest large towns. Some distance to the south of Alaca was Inkaya of which Mehmet Salih Akdeniz was the muhtar.

388.          It is not disputed that in 1993 terrorist activity was a major concern in this area. Ulvi Kartal, the commander of Panak station, referred to several PKK bases being in the vicinity, describing that his station had been attacked several times. The district gendarme commander at that time Captain Ali Ergülmez stated that there was intensive terrorist activity in Kulp. General Yavuz Ertürk of the Bolu brigade stated that the area was the backbone of the PKK activities, and that his forces were involved in many operations there. The undated final operation report (paras. 243-245) paints a stark picture of the Şenyayla plateau as the largest training area for the PKK, which had fortified defences and had the support of 90% of the hamlets and villages in the region, the villagers from which supplied shelter and food. There was a reference also to villagers going into the towns to buy food for the terrorists.

389.          The Government rely however on the evidence of the two gendarme witnesses, Ulvi Kartal and Ali Ergülmez, who stated that Alaca village had been evacuated and was uninhabited at the time of the alleged events, as contradicting the allegations of the applicants that their relatives were living in or around Alaca village and taken into detention there. In particular, Ulvi Kartal was emphatic that the village was deserted. Though initially, he said that the population had left after he had taken up his command of the station, he insisted on further questioning that he had seen people coming and going and learned only gradually that they no longer lived in the village but came to visit the cemetery or to pick walnuts. However, at another point, he accepted that there was at least one hamlet left, inhabited by two or three families though they were not there in the winter. He explained that they had left due to the hardship of living in a mountainous area without services, such as hospitals or that they might have been frightened by the PKK. Ali Ergülmez stated that the population had left during 1993 due to the threat from the PKK. These accounts however are difficult to reconcile not only with the testimony of the applicants and their witnesses who refer to their families continuing to live in the area in October 1993 but also the witnesses called by the Government. Vehbi Başer, elected muhtar of Alaca in 1994, stated that he was living in Alaca in October 1993 but had not been back there since October 1994. His testimony was somewhat confused however, referring to some people leaving the village before the soldiers came, and others like himself leaving after. Again, while he agreed with the Government Agent that there was no-one living in the village in October 1993, he stated that 40-50 people would have been there gathering walnuts and that Mehmet Salih Akdeniz had a tent on the Şen plateau at that time. Another witness called by the Government, Hakkı Zümrüt, also stated that his brother Süleyman lived in Alaca village in October 1993.

390.          The Commission is satisfied from all the evidence submitted that by October 1993 many people from in and around Alaca village had left or were about to leave. Seyithan Atala, for example, explained that his family lived in Mezire but, as life was difficult, the young people had been leaving. He himself had gone to Diyarbakır and his brother Mehmet Şah, recently married, was about to move there. Sabri Tutuş referred to living with his family in Licik (Kayalısu village) but explained that his father Behçet Tutuş had said that the family were to leave and one of the reasons his father had gone to Muş in October 1993 was to find a tractor to help move their belongings. It is also evident that villagers from this area continued to move to and from the mountains to the town seasonally. Some, like Mehmet Salih Akdeniz and Pembe Akdeniz, were nomadic herders. Nonetheless, the Commission finds that the area could not be described as uninhabited or unpopulated in October 1993 there being a significant number of families still living there, whether seasonally or otherwise.

2.The operation conducted in October 1993 in the Kulp-Muş-Lice region

391.          Whether or not there was a military operation conducted in October 1993 in the Kulp-Muş-Lice region was not clearly established until General Yavuz Ertürk gave evidence before the Delegates in May 1998. Until that point the Government had given information to the Commission to the effect that no operation had taken place in October 1993 in the region concerned (Government observations of 29 November 1995 and 19 April 1996). By letter dated 2 December 1997, the Government informed the Commission in respect to a specific enquiry as to General Yavuz Ertürk’s possible role in events that, while the Bolu brigade under his command was based at Muş in October 1993, there was no military operation in the Kulp-Alaca region either at that time or afterwards. A letter dated 31 December 1994 from the Gendarme General Command was also provided by the Government which had stated that no operation was carried out in the Kulp-Alaca region in October 1993.  Further, the Commission notes that in the gendarmes’ oral evidence before the Delegates, Ulvi Kartal denied that any operation involving himself or others took place near his station and Ali Ergülmez stated that no operation took place in Alaca and when asked about the Şen plateau he was equally unforthcoming.

392.          These statements, which gave the impression of contradicting the repeated assertions of the applicants and their witnesses, that large number of soldiers arrived in the Alaca, Şenyayla, Kulp-Muş boundary area in a massive military operation, were however cast in an entirely different light following General Ertürk’s evidence to the Delegates. He gave details of an operation which was conducted from 8 October for sixteen days involving up to 2,500 men and helicopters. The purpose of this operation was to converge soldiers from their bases in Kulp and Muş districts on the Şenyayla area to apprehend terrorists and locate their bases, stores and weapons dumps.  He stated that the district gendarme commander would have been informed by his superiors of this operation as would have been the Panak station commander, whom he recalled had been contacted by radio. His forces indeed passed Panak station on his account.

393.          The Commission observes that the General was adamant that during the operation his troops passed Alaca village on the other side of Kulp river and did not enter it, though his men would have passed within 10-12 kilometres of Gurnik hamlet. The Government in their final observations seek to reconcile their earlier submissions by specifying that these referred to Alaca village rather than the larger region. The Commission does not find that this limitation is apparent in the general denials received. The materials before the Government submitted by the applicants showed that it was alleged that the operation concerned a wider area than Alaca village[18] and that the brother of one of the applicants, Mehmet Salih Akdeniz, was alleged to have been detained by soldiers in the Şen plateau[19] area, which it now appears was the acknowledged target of a large-scale military operation.  The Government observations also denied that any operation ever took place in Alaca village, whereas the General, who denied that his soldiers went to Alaca in 1993, informed the Delegates that there had been an operation in Kepir in 1994. It finds therefore that the earlier Government submissions on the application were misleading and inaccurate.

394.          The key point of dispute as to the existence and extent of the operation which remained concerned whether the soldiers entered Alaca village and its hamlets, as alleged by the applicants and their witnesses or whether the soldiers bypassed this area as alleged by General Ertürk. There are other differences between the evidence submitted by the applicants and General Ertürk on a number of the details of how the operation was conducted, which the Government point to as discrediting the applicants’ allegations:

a.the number of troops involved

395.          Various of the applicants and witnesses specified large numbers of troops being involved. For example, Seyithan Atala’s statement of 28 December 1993 taken by the HRA (about 15,000 soldiers); Sabri Avar in his oral testimony estimated 2-3000; Keleş Şimşek thought there were more than 2,000. The Commission does not see much significance in the over-estimation given by Seyithan Atala. According to the General, there were up to 2,500 involved which coincides with the estimations of two of the applicants. This figure substantiates the versions given by the applicants and their witnesses in that it was clearly a large operation involving many personnel.

b.the use of aeroplanes to carry out bombardments

396.          The witness Pembe Akdeniz gave oral evidence that she saw three jet aircraft approaching their settlement on the Şen plateau, which bombarded the tents and buildings there, forcing the people to flee. Her description was particularly vivid. Zekiye Demir also stated that she saw a plane bombing. The Government have pointed out that General Ertürk stated that his military view was against the use of aeroplanes as it would give the terrorists warning of the operation. He also denied that aeroplanes were used. The Commission is not convinced that use of aeroplanes would have made no military sense, particularly where the final operation report (para. 244) makes reference to the PKK having built fortified positions in the Şen plateau. It gives little weight to the General’s explanation as to why he would not have used airpower resources. The weight to be attached to his denial that aeroplanes were in fact used in the operation depends on the Commission’s assessment of the credibility of the General and the applicants and their witnesses, which is considered further below.

c.whether or not the troops would have been identifiable (berets, insignia etc)

397.          A number of the applicants and their witnesses alleged that they could recognise officers by their insignia (Ramazan Yerlikaya saw the epaulettes of two Captains when held near Kayalısu village, Mehmet İlbey saw two stars on a lieutenant’s uniform) Selahattin Tutuş alleged that the soldiers from Muş were distinguishable from other soldiers (though he did say that the uniforms were the same and seemed to place the emphasis on the fact that one group was unshaven), while Pembe Akdeniz stated that she saw some soldiers wearing blue berets, which was one of the distinguishing marks of the Bolu regiment. Vesha Avar also stated that she saw some soldiers wearing hats with stars on and commanders with insignia. Sabri Tutuş also stated that soldiers had told him that they were from Bolu and Kayseri, Mehmet İlbey was told by two NCOs that they were from Bolu. All these matters are relied on by the Government as indicating that their testimony is fabricated as, according to General Yavuz Ertürk’s testimony both oral and written, all the soldiers wore the same uniform, bore no emblems or insignia, had been told to leave their blue berets behind and never to inform local people of where they were from.

398.          The Commission notes that other of the applicants (Keleş Şimşek and Abdurrahman Yerlikaya) referred to the lack of insignia and that they deduced the ranks of soldiers from what they heard and saw. It does not find that the instances referred to by the applicants and their witnesses are necessarily incompatible with the fact that General Ertürk had given instructions to his soldiers as regarded their uniforms, insignia etc. In his oral evidence, he described how his men were proud of their unit and wanted to wear identifying insignia, giving the impression that he was having to insist on anonymity. He also described how jackets were worn over uniforms to cover distinguishing marks. Where soldiers are in camp, the Commission does not find it beyond belief that instances occurred when their uniforms were not in fact covered up. Nor is it inconceivable that, notwithstanding instructions to the contrary, certain individual soldiers kept their blue berets with them or told villagers where they were from. While General Ertürk stated that the gendarmes from Muş would have removed all insignia from their uniforms and caps, it is not apparent how effectively that practice was enforced on the troops seconded to his command.

 whether or not the soldiers would have spoken Kurdish

399.          The Government have stated that soldiers in the Turkish army would never speak Kurdish in any circumstances and that the evidence of the applicants and their witnesses which refer to this is therefore unreliable and would indicate that in fact it was the PKK who were involved. The Commission notes that two witnesses, Ramazan Yerlikaya and Abdurrahim Yerlikaya who were held near Kayalısu and taken to Muş stated that the soldiers holding them did not speak Kurdish. Contrary to the Government’s assertion, none of the witnesses alleged that all the soldiers spoke Kurdish. Aydın Demir referred to some soldiers speaking Kurdish, while Mehmet İlbey and the three women (Zekiye, Pembe and Vesha) referred to individuals who used Kurdish in talking to them. Since the local inhabitants of the region spoke Kurdish and many of the women did not speak Turkish, it does not appear surprising that soldiers in the Turkish army who themselves were Kurdish-speaking would use that language in communicating with villagers, particularly female ones. It would be likely, as has been the Commission’s experience in other cases, that Kurdish-speaking soldiers would in fact be a necessary feature of operations where the security forces came into contact with uneducated villagers.

e.the use of identifiable names during radio communications

400.          Several witnesses described how they overheard soldiers speaking by radio and gave details of what they heard, which in Mehmet İlbey’s testimony included the name NCO Yüksel as a gendarme commander at Panak. The Government, referring to the evidence of General Ertürk and the gendarme officers, state that only ciphers or codenames would have been used and this also shows that the evidence was not credible. The Commission observes that the evidence relied on by the Government does not exclude that the name “Yüksel” could have been a code-name. Nor does the testimony of Ramazan Yerlikaya to the extent that he claims that he heard officers contact Panak or Alaca by radio appear particularly incredible, since, assuming that he was standing next to the soldiers, he might have deduced from the conversation or orders given that this was what was being done.

401.          The Commission notes that Mehmet İlbey claimed that NCO Yüksel was the gendarme commander at Panak and that he had indeed talked to him there before he went to the village. According to the evidence, Ulvi Kartal however was the gendarme commander at this time. In its experience, the Commission observes that the local gendarme commander is a figure of some importance in a rural area and is well-known to the local male villagers. It is therefore striking that a villager would apparently make a mistake on this point. Ulvi Kartal denied that the name “Yüksel” meant anything to him. The weight to be attached to his evidence is considered below (para. 430). When questioned on codename practices, the General commented that a number of colleagues had adopted the habit from the PKK of using assumed names, a practice which he deplored. However, he also stated, somewhat at odds with previous explanations about radio practices, that people in the area listening into the radio would have known his own codename very well and even his voice. The Commission finds therefore that points raised by the Government as regards the credibility of the villagers’ testimony as to what they heard on the radio, are not persuasive.

f.the use of helicopters

402.          The Government rely on General Yavuz Ertürk’s explanation that his forces only had at their disposal UH1 helicopters carrying a maximum of six persons as undermining fundamentally the heart of the applicants’ assertions that their eleven missing relatives were taken away in a helicopter. The applicants have submitted materials showing that Turkish armed forces could call upon larger helicopters in operations, which could carry up to sixteen persons. Since General Ertürk referred to using larger Sikorsky helicopters himself shortly after this operation, this point is not in issue. The evidence put forward by the applicants and their witnesses sometimes implied that the eleven persons were put on one helicopter, and in others it was to the effect that they could have been placed in two helicopters, or the same helicopter returning for a second trip. It is significant that the two villagers Zekiye Demir and Vesha Avar who claimed to have witnessed the helicopters landing and taking off both referred to two helicopters. The other witnesses who were recounting what they had heard or had been told were not giving first-hand accounts. The applicants’ account is therefore not irreconcilable with the use of the UH1 helicopters during the operation.

403.          To the extent that the Government allege that the applicants’ references to helicopters being used to transport civilians are in themselves unreliable, the Commission note that the Government have provided a report from which it appears that at least 30 persons were taken into custody during this period. Süleyman Yamuk gave evidence of how he was transported to Muş by helicopter where he was detained 6-7 days, as was Ramazan Yerlikaya and his uncle. While no records have been provided relating to their detention (see sub-section g. below) , this evidence is credible and accords with the movement of detainees that is acknowledged to have occurred. The Government have not explained how the detained persons were in fact transported to Muş gendarmerie over mountainous terrain. The use of helicopters for transferring detainees does not seem incredible in the least. Selahattin Tutuş, the Government point out, makes the claim that he was in a group of 25 persons who were loaded onto a helicopter. This is more difficult to reconcile even with the possible use of Sikorsky helicopters, though the Government have stated that these helicopters can take more than sixteen armed personnel. However, the Commission does not find an inaccurate estimate or faulty recollection, years after the event, of the number of persons involved in one aspect of events, would necessarily render the testimony of Selahattin Tutuş’s testimony unreliable as a whole. This is another point which has to be measured against the assessment of honesty and reliability of the witnesses (see below).

404.          Finally, the Commission has noted the General’s detailed explanations as regards the difficulties in using helicopters and their operating requirements. There is no evidence however that it would not have been possible to use Kepir as a landing area as alleged by various witnesses.

g.the collecting and transferring of civilians

405.          The General denied before the Delegates that his soldiers would have gathered together and held villagers in groups of more than a few, contrary to the assertions of the applicants. The testimony of all applicants and their witnesses were consistent however in describing how villagers were gathered during the operation at various places, with some people being detained and others transferred or released. The two of the villager witnesses called by the Government, Hakkı Zümrüt and Vehbi Başer, agreed that they had heard that there had been eleven people detained during an operation, though they had not been living there at that time. From the applicants’ evidence, it appears that there was a group gathered near Mezire, groups brought to Gurnik and held at Kepir, a group held near Kayalısu and Licik hamlet, and others taken allegedly from Kepir and held for two days near the Muş boundary. Two applicants (Süleyman Yamuk and Ramazan Yerlikaya) claimed that they were eventually taken with large groups to a place of detention in Muş. The latter stated that he was held in the basement of a military building with 144 other people, 16 of whom were from Kayalısu.

406.          The General referred to only 30 persons having been detained, stating that these were sent to Muş. An undated list was provided of persons handed over to the Muş gendarmerie, which included 30 names plus 4 names of persons who were described as being released. The Delegates had requested copies of the custody registers for places of detention in Kulp, Muş and Bingöl. It received copies only for Muş and Bingöl gendarmerie. However, notwithstanding the General’s acknowledgement that his soldiers transferred 30 detainees to the Muş gendarmerie, these names do not figure in the records. The Commission is obliged to conclude that the names of the persons detained during the operation were not recorded in any register. In light of the Government’s failure to provide other records, the Commission draws the inference that no relevant custody records listing the detainees in fact exist. The Commission has already found that custody records for places of detention in the state of emergency region are inaccurate and unreliable (see eg., Aydın v. Turkey, Tekin v. Turkey, Kurt v. Turkey, Çakıcı v. Turkey). In Aydin v. Turkey, it noted a lack of entries which suggested a failure to keep records at all during most of 1993, while in Çakıcı, it found that Diyarbakır provincial gendarmerie was keeping substantially larger numbers of detainees than could be officially held in its holding area and that the records did not accurately reflect the presence or absence of detainees. It finds therefore that the accounts of the villagers who claimed that they were sent to Muş are entirely in keeping with the detention practices previously found. It concludes that their testimony is credible and that the lack of any apparent records for the people being brought in from the operation gives rise to grave suspicion that more persons were detained than officially recognised. It is perhaps significant that the 30 persons in respect of whom an official list exists were those against whom the General stated that proceedings were brought.

407.          The Commission also finds it credible that during an operation, in which the soldiers were, inter alia, looking for terrorist food stores and hideouts and for the persons aiding and abetting the terrorists, that they would assemble large groups of villagers for questioning, holding them for possible transfer elsewhere.  Again the experience of the Commission has been that during operations in villages it is a common practice for gendarmes to assemble the villagers together while searches are being carried out (see eg., Çakıcı v. Turkey, and Kurt v. Turkey, where the villagers were gathered during the day and sent to their homes at night).

h.the use of villagers as guides or informers

408.          The evidence of some of the applicants and villagers included reference to a man whose face was covered and who appeared to be playing a role in the selection and identification of persons to be detained as suspected PKK sympathisers. Seyithan Atala, Abdurrahim Yerlikaya, Mehmet İlbey, Selahattin Tutuş and Ramazan Yerlikaya stated that they had seen this man. Mehmet İlbey claimed that his scarf had blown aside and he had been recognised by Serafettin Yerlikaya as Hakkı Zümrut, who had previously lived in the village. RamazanYerlikaya had also heard this.

409.          The Commission notes that this identity of the informer had not previously appeared in any of the documents or statements prior to the hearing of witnesses before the Delegates. However, at the Government’s request, three villagers had been listed to be heard, one of whom was Hakkı Zümrüt. The evidence, in particular, of Mehmet İlbey was put to this witness, who denied that he acted in any way for the security forces during the operation and that he was in Kulp throughout. The Commission notes that, although he used to live in the village and had even been a village guard, he denied knowing Mehmet İlbey. He also was reluctant to specify whether he knew Selahattin Aydın, İhsan and Burhan Aslan, though the second of those was alleged by Mehmet İlbey to be his brother-in-law. The Delegates found him evasive and reluctant as a witness and his demeanour gave the impression that he was being less than frank and indeed that he was considerably apprehensive. It does not find therefore that the applicants’ evidence on this matter has been shown to be fabricated or dishonest. It would note that no applicant or witness claimed to have identified the informer but reported the rumours and speculation being passed among the villagers. If an informer was being used, it is likely that it would have been some-one who knew and was known by the local inhabitants and that, from fears of retaliation, steps would have been taken to prevent him being recognised. The applicants’ evidence on this aspect is therefore credible.

410.          The applicants’ evidence also makes reference to villagers being used as guides or being taken away to show locations. For example, this was the reason given initially for taking Mehmet Salih Akdeniz on the Şen plateau and it was said that Nusreddin Yerlikaya and Behçet Tutuş had been taken away to show the locations of shelters and foodstores.  The Commission notes that the location of such stores and shelters was one of the objectives included in the operation report. It also notes that General Ertürk in his oral testimony described how his soldiers would question villagers to obtain information about the terrorists and use them as guides to show them the shortest routes. His written submissions seemed to attempt to retract this by asserting that no villagers were used as guides though three confessors were used by the Muş forces under his control.

411.          The Commission concludes that the use of local people for guides and the use of people regarded by the villagers as a kind of informer is supported by the evidence rather than contradicted.

i) the alleged disappearance of the eleven persons during the operation

412.          The central factual issues in the applicants’ complaints however concern whether their eleven relatives were detained by the security forces and whether there is any evidence which can establish what happened to them afterwards.

413.          The testimony of the applicants and their witnesses before the Delegates was consistent in asserting that there was a group of ten or eleven men kept apart, tied at night (save in the case of Mehmet Salih Akdeniz) and held under guard by soldiers at Kepir and that although other villagers held at Kepir, Gurnik or elsewhere were released, these men were not seen again. The last time that they were seen was allegedly when they were placed on one or more helicopters. Some of the testimony relies on what is reported as being heard from other members of their family or other villagers. However it is significant, as already mentioned above (para. 405) that two of the villager witnesses called by the Government, Hakkı Zümrüt and Vehbi Başer, had heard shortly after the events in question that it was said in the village that eleven men had gone missing after an operation. The evidence includes eye-witness testimony.

Mehmet Salih Akdeniz

414.          Pembe Akdeniz, his wife, said that her husband was taken by soldiers when they were on the Şen plateau.  She saw him held at Kepir with the soldiers. Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet. Zekiye Demir stated that she was able to speak to him when she visited her son Turan at Kepir. Abdurrahim Yerlikaya also stated that he saw him in the group detained in Kepir when he arrived there from Pireş with other detainees. Selahattin Tutuş said that he saw him at Kepir when he was brought there with other detainees. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up. Vesha Avar saw him at Kepir when she visited Hasan and Mehmet Şerif, noticing that his hands were untied.

Celil Aydoğdu

415.          Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet. Abdurrahim Yerlikaya stated that he saw him in the group detained in Kepir when he arrived there from Pireş with other detainees. Selahattin Tutuş also said that he saw him at Kepir when he was brought there with other detainees. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up there. Vesha Avar saw him with the detainees at Kepir when she visited Hasan and Mehmet Şerif.

Mehmet Şerif Avar and Hasan Avar

416.          Vesha Avar said that she saw soldiers take Hasan from his house. When she went to Kepir to visit the detainees, she saw both Hasan and Mehmet Şerif and was able to talk to the latter.  Sabri Avar stated that he went to see his son and brother where they were held at Kepir. Though he was not allowed to talk to them, he saw them sitting down amongst the soldiers.  Keleş Şimşek also said that he saw them under guard at Kepir when he visited his brother Behçet. Selahattin Tutuş stated that he was detained together with Mehmet Şerif by soldiers in Gurnik and taken to Kepir where Mehmet was held in a group of eleven. He saw Hasan Avar at Kepir also. Abdurrahim Yerlikaya recounted that he was detained with Hasan Avar at Pireş overnight and taken with him and others to Kepir where they were held in a group. When they arrived at Kepir, he saw that Mehmet Şerif Avar was already with the detainees there. Mehmet İlbey who was brought to Kepir stated that he saw both of them with a group of eleven who were tied up.

Bahri Şimşek

417.          Keleş Şimşek stated that he went to visit his brother who was under guard at the camp at Kepir. His brother’s hands were untied and he was able to stay and talk to him for 3-4 hours. Zekiye Demir stated that she had seen him being detained by the soldiers with her own eyes. Abdurrahman Yerlikaya stated that he was detained with Bahri in a group held overnight at Pireş. Selahattin Tutuş said that he saw him at Kepir when he was brought there with other detainees. Mehmet İlbey who was brought to Kepir also stated that he saw him with a group of eleven who were tied up. Vesha Avar saw him with the detainees at Kepir when she visited her relatives there.

Mehmet Şah Atala

418.          Abdurrahim Yerlikaya stated that he was detained with Mehmet Şah Atala at Pireş overnight and taken with him and others to Kepir where they were held in a group. Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet. Selahattin Tutuş, brought there from Gurnik with other detainees,  saw him at Kepir with his hands tied. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up.

Turan Demir

419.          Selahattin Tutuş stated that he was detained with him in Gurnik and they were taken together to Kepir, where Turan was kept in a group of eleven. Zekiye Demir described visiting Turan on three occasions at Kepir where he was held with others under guard by soldiers. She was able to speak to him one occasion. Abdurrahim Yerlikaya stated that he saw him in the group detained in Kepir when he arrived there from Pireş with other detainees. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up. Selahattin Tutuş also said that he saw him at Kepir when he was brought there with other detainees. Pembe Akdeniz saw him untied with her husband at the camp in Kepir when she went to visit her husband. Vesha Avar saw him with the detainees at Kepir when she visited, while Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet.

Abdo Yamuk

420.          Abdurrahim Yerlikaya stated that he was detained with Abdo Yamuk at Pireş overnight and taken with him and others to Kepir where they were held in a group. Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet. Selahattin Tutuş also said that he saw him at Kepir when he was brought there with other detainees. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up. Vesha Avar saw him with the detainees at Kepir when she visited Hasan and Mehmet Şerif.

Nusreddin Yerlikaya

421.          Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet.  Zekiye Demir stated that she had seen him being detained by soldiers with her own eyes. Abdurrahim Yerlikaya stated that he was with him when the soldiers came and they were taken together to Pireş and from there to Kepir. He was released after six days but Nusreddin remained there with the soldiers. Selahattin Tutuş said that he saw him at Kepir when he was brought there with other detainees. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up. Vesha Avar saw him at Kepir when she visited Hasan and Mehmet Şerif.

Behçet Tutuş

422.          Selahattin Tutuş said that he and Behçet were detained together by soldiers in Gurnik and taken to Kepir, where Behçet was taken apart and his hands tied. Selahattin was released at night to return to the village while Behçet was kept at Kepir in a group of eleven. Abdurrahim Yerlikaya stated that he saw him in the group detained in Kepir when he arrived there from Pireş with other detainees. Keleş Şimşek saw him under guard at Kepir when he visited his brother Behçet. Mehmet İlbey who was brought to Kepir stated that he saw him with a group of eleven who were tied up. Vesha Avar also saw him with the detainees at Kepir when she visited Hasan and Mehmet Şerif

Ümit Taş

423.          Ümit Taş, who was not from the Alaca village, is known to have been detained by the police when he arrived in Kulp on or about 25 September. His family became aware of this and his brother Mehmet Tahir arrived in Kulp, paying visits to him and taking food. According to the official documents provided, in particular a release statement of 30 September 1993 apparently bearing Ümit Taş’s thumbprint, he ceased to be in police custody at that date. According to the evidence of his father, Kemal Taş, Mehmet Tahir arrived to visit him but was told by the police that he had been released. He went home expecting to find Ümit there but Ümit had not arrived. First, Mehmet Tahir and then the applicant went back to Kulp to discover what had happened to him.

424.          The applicant alleges that in making enquiries he was told that his son had been handed over to the forces from Bolu who were on an operation. He also heard from nomads that his son had been seen tied up outside the Panak station and that from there he had been taken to Gurnik. When he visited Gurnik, people there told him that they had seen his son with the other detainees held at Kepir.

425.          The evidence before the Delegates concerning Ümit Taş showed that he was not known by any of the applicants and witnesses. Several witnesses, (Mehmet İlbey, Selahattin Tutuş and Abdurrahim Yerlikaya) referred to seeing a person, not from the village, being detained with the other ten. However, Vesha Avar did not know his name and had not seen a stranger on her visits. Selahattin Tutuş seemed to recall that he was told of the name Ümit Taş after the events when his father came looking for him at Gurnik. Mehmet İlbey similarly stated that he did not hear that the stranger was called Ümit Taş until his father came and said that the detainee as described by Mehmet İlbey could have been his son. Only Abdurrahim Yerlikaya gave eye-witness evidence that he saw Ümit Taş, detained with them overnight at Pireş and taken with them to Kepir. However, he did not talk to the young man himself. He stated that Mehmet Şah Atala and Abdo Yamuk who were with the young man, told him that his name was Ümit Taş.

426.          The Commission observes that Mehmet İlbey estimated the stranger’s age as 23-24 while Abdurrahim Yerlikaya, though describing him as young, estimated 28 to 30. Both emphasised that this was only guessing on their part. This is nonetheless at first sight hard to reconcile with the fact that Ümit Taş was a boy of sixteen years at the time. Its Delegates have had occasion to note that, due to conditions of life, some witnesses from the villages in the south-east appear to be older than in fact they are rendering it difficult to make assessments of age with any accuracy. It must also be taken into account that ill-treatment or living rough over a period of time can change a person’s appearance dramatically. It observes that Abdurrahim Yerlikaya, who was the only eye-witness who firmly linked the name Ümit Taş to the stranger, had been detained in a group together with the unknown stranger. His source of information about the name derived from the detainees who were close to him. These are the men who are now missing but who, credibly, would have been the ones likely to have known his identity and passed it on by word of mouth to visitors, such as Keleş Şimşek who also heard it from his brother Bahri. It may also be noted as a supporting element that, in a written statement, Ali Yerlikaya, who was also one of the men held with the stranger, named Ümit Taş in his statement of 25 December 1993 and specified that he had talked with him, specifying the details of his age (16-17) and that he had been caught in Kulp while carrying money to pay a loan.

General assessment

427.          While therefore the evidence identifying Ümit Taş as one of the detainees in the group of men last seen at Kepir is based on fewer direct elements of proof, the Commission is satisfied that those elements, if believed, would be sufficiently coherent and consistent to establish beyond reasonable doubt that he was the eleventh detainee. The evidence as regards the other ten missing persons is strong and concordant.

k.the credibility and reliability of the witnesses

428.          The Commission has already examined above various points raised by the Government in their arguments that the evidence of the applicants and their witnesses is inaccurate and incorrect in relation to their description of the operation. The Commission has not found any of those matters to undermine fundamentally the inherent credibility of their stories. The main objection to the applicants’ allegations lies in the evidence of General Yavuz Ertürk, and the two gendarme officers Ali Ergülmez and Ulvi Kartal and the other elements put forward by the Government to support their case that the applicants’ assertions are completely fabricated and that probably their missing relatives were taken by PKK terrorists, dressed as soldiers.  On this view of matters, the families are acting as the pawns, willing or otherwise of the PKK, motivated by fear or a desire to obtain financial gain.

429.          The Delegates’ assessment of the various witnesses however does not support the Government’s case. They found the applicants and their witnesses to be honest and convincing in the way they gave their evidence. Some were confused about certain details, in particular about dates, which was not to be unexpected after the time which has elapsed. Some, in particular the women witnesses and Sabri Avar, were simple and unsophisticated but appeared to be answering sincerely to the best of their recollection. All the applicants demonstrated deep and abiding distress at the uncertainty which they had suffered after the disappearance of their relatives. Several made appeals that, after so long a trial of hoping and fearing, they might at last be told the fate of their family members. The Delegates found the evidence to be strongly consistent as to the course of events which involved a number of locations and a large number of people. The reliability of this considerable weight of evidence was confirmed increasingly as more witnesses were heard. Aspects described by the applicants on which there might have initially appeared to be a lack of substantiation - that there was an operation in the area, the use of Bolu forces, the identification by name of the Bolu commander, the use of helicopters - were shown to be correct. The Commission has already noted above that the Government’s villager witnesses gave evidence tending to support the applicants’ allegations concerning the existence of an operation and the disappearance of eleven men during that operation. In addition, there is a considerable body of supporting documentary material, provided by the petitions made by the applicants to the authorities shortly after the events and the statements made by them to the HRA and to various public prosecutors, which is consistent in substance and in many details.

430.          As regards the official witnesses, the Delegates received an unfavourable impression from Ulvi Kartal and Ali Ergülmez. The former they found to be totally lacking in credibility. His explanations about the area and his own activities during the relevant time were evasive, glib and frequently contradictory. Ali Ergülmez demonstrated a selective ignorance about events, in particular, whether or not there was or could have been an operation in October 1993. The denials of both gendarme officers were shown to be unreliable when General Yavuz Ertürk gave evidence that an operation had occurred within their operating area and that they would have known about it.

431.          General Ertürk was, on the contrary, a forceful and competent witness, who impressed the Delegates with his knowledge, experience and commitment. The Commission regrets, as it has previously communicated to the Government, that his testimony was given under restrictive conditions which excluded the presence of the parties’ representatives and, because the technical arrangements provided at the Government’s chosen location did not function to the Government’s satisfaction, out of the hearing of the parties. This had the result that his oral testimony was not tested by the questioning of the applicants’ representatives, who in making submissions in reply, had not had the opportunity either to witness the General’s demeanour and comportment or view the rough sketches with which he illustrated his points on the wall of the hearing room. This inevitably affects the weight that can be attached to his evidence. The Delegates further had doubts as to the reliability of his denial that the operation bypassed Alaca village as claimed and as to his explanations concerning the gathering of villagers and the use of helicopters. He showed a reluctance at times to address the factual concerns of the Delegates, and to avoid precise answers in favour of general expositions of the matters which he viewed as essential.

432.          The Government have drawn the Commission’s attention to other elements, which the Commission has examined carefully below.

433.          The Government rely on an undated written statement taken by a public prosecutor from one of the sons of Mehmet Salih Akdeniz, Zeki Akdeniz, as supporting their case that the PKK kidnapped the missing people. This statement confirmed that there was a military operation in Şenyayla and the village. It also stated that there were PKK members in the village. It is not apparent whether this refers to villagers or outsiders. It is stated that it is highly possible that the missing persons had been taken by the PKK. It is not however apparent on what basis this last assertion was made or whether, as it gives the impression, it is supposition.  It is certainly not an eye-witness account of any alleged kidnapping. Indeed it links the disappearance of his father with the end of the operation. The statement ends with a complaint that the PKK stole certain livestock and it is not apparent whether the final reference to lodging a complaint against the PKK is concerned rather with the theft of the animals than the missing persons. The Commission finds it a rather imprecise and ambiguous statement. It observes that the Government did not propose to call Zeki Akdeniz to give oral explanations.

434.          The Government refer to Pembe Akdeniz’s description of one of the alleged soldiers as indicating that it was in fact the PKK in the village holding the detainees. They state that no soldier would be barefoot with torn trousers as she seemed to claim. However, an examination of the transcript indicates that Pembe Akdeniz, who was one of the witnesses who answered questions with some simplicity and via Kurdish-Turkish translation, had initially appeared to describe the soldier as barefoot but on further questioning had specified that his trouser had been torn, showing his knee and that she had not looked at his feet. On that basis, and in light of the description by General Ertürk of how his men live rough in the field, the Commission sees no impossibility in a Turkish soldier ripping part of his uniform.

435.          The Government also point to numerous inconsistencies and omissions when the written statements of the applicants both to the HRA and various public prosecutors are compared with the oral testimony given to the Delegates. The Commission would observe that detailed oral evidence tested by examination will provide more information than the often brief statements taken by the public prosecutors and the HRA. Other apparent inconsistencies could have been clarified if put to the applicant or witness concerned. In other instances, it may be observed that the statements of the HRA do not specify whether an alleged fact or event was in fact witnessed by the person giving the statement or whether the person was repeating matters told by others, which explains why in their oral testimony some persons stated that they had not in fact witnessed certain events, in particular, the placing of the eleven detainees on helicopters. Conversely, it notes that Aydın Demir was recorded as having told the public prosecutor in his statement of 25 April 1997 that he saw personally his brother being put on the helicopter with his own eyes while before the Delegates he stated that it was his wife who had been there not himself. This applicant was often confused in his oral testimony, stating that a long time had passed. He nonetheless was found by the Delegates to be generally credible in the account which he gave, and the contradictory statement given to the public prosecutor, which was not put to him by the Government Agent at the hearing, does not in the circumstances lead the Commission to conclude that his oral testimony cannot be relied upon.

436.          As regards the differing assertions made by applicants and witnesses about the alleged event when the eleven missing persons were put on a helicopter and flown away, the Commission notes that various matters (for example, that Kemal Taş referred to a plane) are explicable in that none of the applicants themselves witnessed the persons being taken away by air but were recounting, after a long lapse of time, what they had been told by others. The two witnesses who claimed to have seen this, Vesha Avar and Zekiye Demir, differed in details. Zekiye stated that she saw Turan and his friends being put on the helicopter but was too far to see him. In answering questions which sought to pinpoint where she was, at one point she stated that she was down by the camp and at another point that she was with Vesha Avar by the river. Vesha’s account related that she met Zekiye Demir and Hediye Atala on the way. She stated that she saw the group of missing men being placed on the helicopter and that she was close to where the helicopter landed. Seyithan Atala also gave evidence about what his mother Hediye had told him of this occurrence and stated that Hediye had been with Vesha when they had seen the helicopter and then they had both been chased to the bottom of the valley. Though the details differ, the Commission is nonetheless satisfied that the evidence is essentially consistent - namely that the three women had attempted to visit their relatives that day at around the same time, were not able to do so and had seen the detainees placed on board the helicopter.

437.          As another example, the Government have pointed to discrepancies in the testimony given by the applicants and their witnesses as to when or how it became known to the applicants and the other villagers that it was the Bolu forces involved in the operation. In oral evidence, several persons claimed that the soldiers told them during the operation (Mehmet İlbey, Sabri Tutuş, Zekiye Demir), while Pembe Akdeniz stated that her husband Mehmet Salih told her this. According to the written statement (para. 100) and oral evidence of Seyithan Atala, it was Kadır Koçdemir, the Kulp district governor who told them about the Bolu forces who had been stationed at Kulp before the operation. Süleyman Yamuk also alleged that he heard about this from the Kulp district governor. However, Ramazan Yerlikaya initially denied that the governor had mentioned this but when he was questioned further, he stated that the governor had done so but that it had been so long ago that he had forgotten. The Commission would observe that following the operation the relatives of the missing persons had dispersed with their families to different areas. In trying to find out about their relatives, they did not always act as a homogeneous group. It cannot be assumed that the information known to some of them concerning the operation was also known by the others. It also notes that, contrary to the Government’s assertion, Kadır Koçdemir would have known about the Bolu forces’ presence in Kulp, notwithstanding the fact that they took orders directly from the Chief of Staff. It recalls that General Ertürk stated that he had met with the district governor and dined at his home. In any event, whatever the source of the information, it appears that various of the applicants were aware from an early date of the apparent involvement of the Bolu forces in an operation at Şen during October 1993, and that this information, as it turned out, was accurate. Mehmet Emin Akdeniz made enquiries about his relatives at Bolu as stated in his petition of 5 January 1994, while two applicants, Seyithan Atala and Süleyman Yamuk went to Bolu to make enquiries at the headquarters on or around 30 December 1993 shortly after seeing the district governor.  General Yavuz Ertürk was aware that some villagers tried to see him at about this time, but appears to have attributed to them a sinister and dangerous motivation. The Commission considers that the evidence on this issue enhances, rather than undermines, the applicants’ general credibility.

438.          Having regard to the matters above, the Commission finds that the evidence of the applicants and their witnesses, assessed in the light of the evidence as a whole, is credible, reliable and consistent as regards the key allegations of the detention and disappearance of the eleven missing men.

l.concluding findings

439.          The Commission finds the following facts, based on its assessment of the witnesses and other evidence. On a number of collateral issues, it should be noted that there is insufficient evidence to identify clearly the dates or details of particular incidents.

i) The operation and the taking into custody of the villagers

440.          On or about 9 October 1993, an operation commenced involving soldiers from the Bolu regiment as well as gendarmes and security force personnel from other areas, including Muş. This operation was under the command of General Yavuz Ertürk, who had four UH1 helicopters at his disposal and the possibility of calling upon larger capacity Sikorksy helicopters. The purpose of the operation was to capture the PKK members carrying out activities from their bases in the Şenyayla plateau, locate hideouts and stores and to apprehend persons aiding and abetting the PKK in the local villages. The Kulp district gendarme commander and the local station commander at Panak would have been informed of the operation.

441.          The operation lasted until on or about 24-25 October 1993. Soon after it started, the soldiers began collecting villagers together, for purposes of use as guides, showing them the location of settlements, possibly PKK shelters and stores, for questioning about involvement with the PKK and for possible transfer to detention elsewhere. The records provided show that at least 30 persons were transferred to Muş. The evidence of Süleyman Yamuk and Ramazan Yerlikaya indicates that there were many more taken and detained at Muş who were not recorded in registers.

442.          The soldiers appear to have taken the villagers into detention first on or near the Şen plateau on 9 October, arriving in Gurnik, Mezire and Licik on or about 10 October. Some of the villagers were looked for by name. Others appear to have been gathered together generally for identity checking. A camp was set up at Kepir, a hill close to the hamlet of Gurnik, where helicopters landed, inter alia, to bring in supplies. There were other camps set up by soldiers - one, possibly two, near Kayalısu and Licik and another near the Muş boundary where villagers were held for some days.

443.          At the commencement of the operation, villagers who were living up on the Şenyayla plateau witnessed planes carrying out bombardment. Mehmet Salih Akdeniz was taken by soldiers. Zekiye Akdeniz who had been there at the time told Mehmet Emin Akdeniz that Mehmet Salih had been taken to act as a guide. About a day or two later, Mehmet Salih was being held by soldiers at the camp which had been set up at Kepir.

444.          On or about 10 October 1993, Celil Aydoğdu was apprehended by the soldiers. Accounts vary. Mehmet Emin Akdeniz stated that he was taken on the way to his walnut trees, while in his statements and petitions he referred to Celil as being detained while returning to the village from the Şen plateau. Aydın Demır referred to him being apprehended in Gurnik but this appeared to refer to the fact that he was held there with others. There was no witness who claimed to have seen when or where he was taken and this point cannot be resolved on the materials before the Commission. However, he was seen by a number of persons being held shortly afterwards under guard in Kepir.

445.          On or about 10 October 1993, soldiers arrived at the hamlet of Mezire, about an hour from Gurnik. Vesha Avar saw them take her brother-in-law Hasan Avar out of his house.  On the same day, Mehmet Şah Atala was also picked up by the soldiers at Mezire, who had been asking for him by name. The soldiers told his family that he would show them around and make a statement.  Abdo Yamuk, Süleyman Atala and Şirin Avar were also picked up at Mezire. Bahri Şimşek had been gathered with this group, as his brother Keleş was told by him when he visited him at Kepir later.

446.          Ali Yerlikaya who was apprehended at the beginning of the operation at Licik stated in his statement of 25 December 1993 that he was held at Pireş, half an hour away, where he was joined by Mehmet Şah Atala, Bahri Şimşek and Ümit Taş. The next day, on or about 10 October 1993, Ali Yerlikaya accompanied the soldiers who took Nusreddin Yerlikaya, Abdurrahim Yerlikaya and Medeni Yerlikaya from their homes at Licik, Kayalısu and brought them back to Pireş. According to Ali Yerlikaya’s statement of 25 December 1993, Hasan Avar and Abdo Yamuk were brought by soldiers to Pireş on this day also. Abdurrahim Yerlikaya described about 20 to 30 people had been gathered there. They were held overnight at a place variously described as being at the cemetery, or near Pireş or Şuşan hamlet. They were questioned and tied up during the night. The next morning, on 11 October, a helicopter landed and a person arrived with his face covered. Some of the villagers thought to have recognised this man when the wind blew his scarf aside. However, there is insufficient evidence for the Commission to establish his identity, which is in any event not necessary for the purposes of this application. A selection process was carried out, with identity cards being handed in and inspected. All the villagers but nine[20] were allowed to go. Mehmet Şah Atala, Abdo Yamuk, Bahri Şimşek, Hasan Avar, the three Yerlikaya brothers, Ali Yerlikaya and a young man, a stranger to the village said to be called Ümit Taş, were placed on a helicopter and flown to Kepir that day.

447.          Behçet Tutuş and Selahattin Tutuş were apprehended by the soldiers in Gurnik on their way to their village Licik from Muş. According to Selahattin Tutuş, they had gone there shortly after the operation started and Turan Demir and Mehmet Şerif Avar were with them, having come back from Muş on the same minibus. Vesha Avar thought that Mehmet Şerif was detained on 10 October in Gurnik when he was there selling animals. Aydın Demir’s statement of 21 December 1993 refers to Turan being detained when he arrived in Gurnik on 9 October, while Zekiye Demir stated in her oral evidence that he arrived at Gurnik three to four days after the operation started and was taken to Kepir that day. She had visited Turan at Kepir and stated that others, Nusreddin, Mehmet Şah Atala, Celil, Hasan and Bahri were already there when he arrived. This would put Turan Demir’s arrival at Kepir at a time on or after 11 October. However, according to Abdurrahmim Yerlikaya, Behçet Tutuş, Turan Demir and Mehmet Şah Atala were already there when they arrived. Since Abdurrahim Yerlikaya’s evidence related to matters which he had seen, while Zekiye Demir’s related to what she remembered being told by some-one else, the Commission finds that the former’s is likely to be more accurate. Abdurrahim Yerlikaya’s account also is more consistent with the recollections of the other witnesses.[21] The Commission therefore finds that the group of Turan Demir, Behçet Tutuş, Mehmet Şerif Avar and Selahattin Tutuş were brought to Kepir before the group from the cemetery at Pireş, on or before 11 October.

448.          Shortly after the operation began, Ramazan Yerlikaya was detained with others near their village of Kayalısu. They were held on a plateau area near the village for nine days. During that time, checks were made on the radio as to whether any of them were wanted. During this time, they were tied up.  On about 19 October, he and a relative were taken by helicopter to Muş where he was held in a basement with over a hundred other people, including Süleyman Yamuk, who were villagers from Kayalısu and other places in Muş. He was released after about eight days.

449.          At a time unspecified after the operation began, Sabri Tutuş and several of his male relatives were at their home in Licik when the soldiers took them. They were held by soldiers for about nine days in a wood near Licik before being released.

450.          On or about 13 or 14 October, Süleyman Yamuk was detained by soldiers in or near Pireş. He was taken the same day to Muş by helicopter where he was detained for six to seven days. Mehmet İlbey was also apprehended with several others when he arrived in Gurnik on 13 October. They were taken up to Kepir and their ID cards collected. A man with his face covered seemed to inspect them. He told the Delegates that the eleven missing persons were already held at Kepir when he arrived.

ii) Events at Kepir

451.          At Kepir, the villagers were kept in different groups, to which different restrictions applied. Eleven of them (the persons who since disappeared) were kept in one group. They were tied up, though they were untied for visits, or when they ate or relieved themselves. Four witnesses (Pembe Akdeniz, Vesha Avar, Selahattin Tutuş, Mehmet İlbey) however stated that Mehmet Salih Akdeniz, though of this group, was not tied up. Other detainees - Selahattin Tutuş, Mehmet İlbey - were held in a group, where they were not tied up. They were held in the camp during the day and sent to houses in Gurnik to spend the night. Selahattin described there being about 30 villagers in the camp, Mehmet İlbey talked of a large crowd, while in his statement of 31 December 1993 he thought about 50 villagers were there. Another specified 49 (Selahattin Tutuş’s statement of 25 December 1993).  Abdurrahim Yerlikaya was also detained at Kepir. He gave a different version from Selahattin Tutuş and Mehmet İlbey in a number of aspects. His testimony was to the effect that he was also kept with his brother Nusreddin in the group of eleven and was also tied up, hands during the day, feet and hands at night. He did not appear to know about the villagers who were allowed to leave at night but described the soldiers giving to the detainees tents and blankets at night. The written statements of Abdurrahim Yerlikaya and Ali Yerlikaya also describe that they were held with the missing persons at Kepir, with their hands bound. The Commission finds therefore that the Yerlikayas were held with or near the group of eleven. Their account is not necessarily inconsistent with the others since the emphasis in the statements and oral testimony was on establishing what had happened to the missing eleven persons and less attention or detail was provided relative to other detainees.

452.          As regards the treatment of the eleven missing persons, there is a varied body of evidence. During their detention at Kepir, there were visits from Keleş Şimşek to his brother Bahri, from Zekiye Demir to Turan Demir and Vesha Avar to Hasan and Mehmet Şerif Avar. There was also the eye-witness evidence of Abdurrahim Yerlikaya, Mehmet İlbey and Selahattin Tutuş, as well as statements from Ali Yerlikaya who was detained at Kepir.

The Commission finds that:

-          the eleven persons, save Mehmet Salih Akdeniz, were tied up (the evidence on this is consistent; Vesha Avar described that her relatives’ toes were swollen as a result);

-          they were kept outside during the day and at night (Seyithan Atala’s oral evidence recounts that Hediye Atala saw Mehmet Şah Atala was flushed, shaking, his lips chapped and to be affected by the cold);

-          they were questioned by the soldiers (see Ali Yerlikaya’s statement of 25 December 1993; Abdurrahim Yerlikaya’s statement of 25 December 1993; Mehmet İlbey’s oral evidence);

-          they were in a state of some distress and apprehension (Zekiye Demir’s oral evidence that Turan was hungry, thirsty and miserable and that Mehmet Salih Akdeniz said that he was in a terrible state and feared that they were going to be killed; Pembe Akdeniz said that her husband told her that they were going to be killed; Mehmet İlbey’s oral evidence referring to the detainees being in a miserable state, having gone hungry and been tied up for a week);

-          Behçet Tutuş and Nusreddin Yerlikaya were taken from the group by helicopter apparently to act as guides or show locations (Ali Yerlikaya’s statement of 25 December 1993; Keleş Şimşek’s oral evidence; Abdurrahim Yerlikaya’s oral evidence; Mehmet İlbey’s oral evidence);

-          Abdo Yamuk was taken away from the group for a day or two and on his return was seen to be limping and needing the support of soldiers to walk (Ali Yerlikaya’s statement of 25 December 1993, Abdurrrahim Yerlikaya’s statement of 25 December 1993, Keleş Simşek’s oral testimony; Zekiye Demir’s oral evidence that Turan told her this; Abdurrahim Yerlikaya at Kepir also heard this from the detainees). These sources associated the injury with an incident in which gunshots were heard, without any direct evidence however. Selahattin Tutuş stated in his oral evidence in answer to a question about Celil Aydoğdu that “Celil” had been limping and held by two soldiers though he had not seen him close to. The evidence of the witnesses revealed that Abdo Yamuk was also known as “Abdocelil” and “Celil”and there was occasional confusion shown between the two “Celils”;

-          Ümit Taş was also taken away to Şen pastures to act as a guide (Ali Yerlikaya’s statement of 25 December 1993; Abdurrahim Yerlikaya’s statement of 25 December; Keleş Şimşek’s oral evidence that Ümit Taş was with a team);

-          money (20 million TRL) was taken from Behçet Tutuş (Selahattin Tutus’ statement of 25 December 1993 and oral evidence).

453.          There were some allegations that the detainees were beaten. According to Keleş Şimşek’s oral evidence his brother Bahri told him that the detainees held at Suşan/Pireş were beaten and according to his statement of 25 December 1993 his brother Bahri stated that he was tortured. However, this was not mentioned by the others held in this group (Ali Yerlikaya, Abdurrahim Yerlikaya). Also, while Mehmet İlbey described how he saw detainees taken into the woods at Kepir and heard shouts and cries, he was unable to be more specific or to give details of injuries or of hearing complaints from the men concerned. The only eye-witness evidence was that of Selahattin Tutuş, who said that when he and his brother Behçet Tutuş were taken to Kepir, his brother was beaten. The Commission finds that this is insufficient basis to establish that the eleven men or any one of them were subject to torture under interrogation. It finds that there is some evidence of beating, but the nature and extent of the beating is not apparent.

454.          The Commission has commented above on the evidence that the eleven detainees were taken away in one or two helicopters (para. 402). While it accepts that detainees were seen being placed in helicopters, the timing of this event is problematic. The principal eye-witness evidence is that of Vesha Avar and Zekiye Demir. As far as can be deduced from Vesha Avar’s oral evidence, ten men were taken away by helicopter about 12 days after Hasan and Mehmet Avar were taken into detention, which would place the incident at about 22 October. However, her descriptions of the timing are certainly confused and very approximate. Zekiye Demir was even vaguer as to when incidents occurred but referred to Turan being detained for either thirteen, fourteen or seventeen days. Assuming he was detained on or about 10 October (see above), this places the helicopter incident at about 23 to 27 October, a good while later.

455.          Aydın Demir’s statement of 21 December 1993 stated that Turan and the others were kept at Kepir for nine days; Ramazan Yerlikaya’s and Sabri Tutuş’s statements (24 December 1993) and Sabri Avar’s statement (31 December 1993) mentioned 10 days. According to other evidence, the event is placed as taking place towards the end of the operation (Seyithan Atala’s statement of 6 January 1994). Two persons also associated the incident as occurring at or about the same time as the death of General Bahtiyar Aydın in Lice (which occurred on 22-23 October 1993) - see the statement of Mizbah Akdeniz of 8 April 1997 who also referred to this being the sixteenth day, and Seyithan Atala’s oral evidence which stated the operation ended about that time. Seyithan Atala recalled also that his mother Hediye had gone to see his brother on 17 October and saw the helicopters take the people away. Sabri Avar in his oral evidence gave 17 October as the date on which the women saw the helicopters. Keleş Şimsek thought that it was on the ninth day of the detention that Vesha saw the helicopter, which would appear to be about 17-18 October 1993. Selahattin Tutuş, who described being taken to Muş, was released after seven days and briefly saw his brother still detained at Kepir when he returned there, which appears to be about 17-18 October 1993. Aziz Atala’s statement to the public prosecutor of 14 December 1994 mentioned seeing his brother on the 20th while Seyithan Atala stated that his brother Aziz visited Mehmet Şerif before leaving on 17 October.

456.          The other detainees were released prior to this. Descriptions are given of a selection process where names were called out and those persons released. According to Ali Yerlikaya’s statement (25 December 1993) he and the others were released from Kepir after seven to eight days - this would appear to be about 16-17 October. Abdurrahman Yerlikaya’s oral evidence was consistent with this stating that after six days he and his brothers (except Nusreddin) were released.  Mehmet Ilbey stated that on the fourth day of his detention, on 16 October, his name was called out and he was released.[22] Selahattin Tutuş described being taken away in a helicopter on the third day of his detention, which appears to be much earlier, around 13 October, though his brother was still at Kepir when he returned about three days later. Mehmet İlbey described that it seemed at this point that Mehmet Şerif Avar and Turan Demir would be released as well but that they were called back.

457.          The Commission observes that the applicants’ representatives in their observations put forward the date of 17 October as the date on which the detainees were flown out of Kepir. The Commission finds that the weight of the evidence places the last sighting of them at about 17-19 October but this can only be regarded as approximate. The oral evidence of the two women eye-witnesses is obscure concerning the dates and cannot be relied on in this respect. Their evidence as to whom they saw being taken away is also not clear. Zekiye Demir referred to seeing Turan and his friends being put on the helicopter but that it was too far to see. Vesha Avar referred to ten persons. She did not know Ümit Taş and if he was there she was not in a position to identify him. She stated specifically that she could see Hasan and Mehmet Şerif Avar being put on the helicopter. The Commission notes that the applicants and the other witnesses appear to associate the placing of detainees on the helicopter with their missing relatives largely because some were identified by the women and also on the basis that these eleven persons were the only detainees remaining at Kepir after the others such as Abdurrahim Yerlikaya and Mehmet İlbey were released and they were being held together as a distinct group. They were no longer there after the operation ended. While this provides strong circumstantial evidence, the Commission is not satisfied that it can be established, to the necessary standard of proof, that the eleven missing persons were all placed on the helicopters, in particular, Ümit Taş, though it is satisfied that at least some of the eleven detainees were. It observes however that there is no evidence that any of these persons were seen after the operation ended on or about 24-25 October and finds that when they were last seen they were detained under guard by security forces.

3.Domestic enquiries and procedures

458.          There is no substantial dispute about the enquiries and petitions which the applicants and other members of their families made in respect of the disappearance of their relatives (see the applicants’ summary at para. 82), many of which are documented (see Section B. Evidence before the Commission). The steps taken also included a visit by Seyithan Atala, Süleyman Yamuk, Sabri Tutuş, Ramazan Yerlikaya, Sabri Avar and Kemal Taş to see the Kulp district governor.[23] As far as may be deduced from the documents, the official steps taken by the authorities were as follows:

459.          In respect of the petition of 5 October 1993 by Mehmet Ali Taş concerning Ümit Taş, the public prosecutor made enquiries from the Kulp district gendarme command and to the Security Directorate, the latter of which indicated that Ümit Taş had been released from their custody.

460.          In respect of petitions of 2 November 1993 by Seyithan Atala (concerning Mehmet Şah Atala), 5, 8 November 1993 by Mehmet Akdeniz (concerning Mehmet Salih Akdeniz and Celil Aydoğdu), 26 November 1993 by Hüsnü Demir (concerning Turan Demir) and 12 December 1993 by Keleş Şimşek (concerning Bahri Şimşek) to the Diyarbakır State Security Court prosecution, manuscript notes indicated that the records had been checked and the names not discovered.  Aziz Atala’s petition of 17 December 1993 (concerning Mehmet Şah Atala) and Hüsnü Demir’s of the same date (concerning Turan Demir) met the same response verbally.

461.          In respect of a petition of 12 November 1993 by Mehmet Emin Akdeniz (concerning Mehmet Salih Akdeniz) to the Bingöl chief public prosecutor, a hand-written note indicated that the public prosecutor had checked with the gendarmes and police but no record of the name was found.

462.          In respect of a petition of 14 December 1993 by Mehmet Emin Akdeniz and Aziz Atala, which mentioned all eleven missing persons, to the Kayseri State Security Court prosecutor, a manuscript note indicates that the public prosecutor made an enquiry of the Kayseri prison authorities.

463.          Following Mehmet Emin Akdeniz’s visit to Ankara where he complained to various ministers in or about November 1993, an enquiry was made by the Minister of State to the Ministry of the Interior, to which, on 20 January 1994, the gendarme general command replied that Mehmet Salih Akdeniz and Celil Aydoğdu had not been detained by the provincial gendarme command.

464.          Following a petition of 15 December 1993 by Kemal Taş to the Kulp public prosecutor, which requested an investigation be carried out into Ümit Taş’s whereabouts, the public prosecutor took a statement of the same date and a note on the petition indicates that enquiries were made of the district gendarmerie and Security Directorate.

465.          Following a petition of 22 December 1993 from Süleyman Yamuk, the Kulp district governor replied on 18 April 1994 that Abdo Yamuk, Turan Demir, Behcet Tutuş, Bahri Şimşek and Mehmet Şah Atala had not been detained by Kulp security forces but referred to not having any information as the operation had concluded in the Muş province.

466.          From correspondence between the Diyarbakır SSC and the Kulp public prosecutor (letter of 14 January 1994), it appears that the Diyarbakır SSC had made a request (references to letters of 23 November 1993 and faxed letter of 14 January 1994 are made) to the Kulp public prosecutor for information relevant to the complaints about the disappearance. This correspondence has not been provided with the investigation file.

467.          On the petitions submitted by Sabri Tutuş and Süleyman Yamük on 27 December 1993 which both refer to their relatives and mention that 10 other people were missing, it appears from the noted number 1993/130 prel. that the Kulp public prosecutor opened an investigation.  Ramazan Yerlikaya, Sabri Avar and Seyithan Atala made petitions at the same time. The following steps then ensued:

-                      On 28 December 1993, the Kulp public prosecutor requested the Diyarbakır chief public prosecutor to provide information about the relatives of seven of the applicants’ missing relatives (namely, the relatives of the five applicants who have submitted petitions on 27 December and Ümit Taş);

-                      The Diyarbakır State Security Court prosecutor replied on 19 January 1994 that the seven persons’ names were not in the records.

468.          On 31 January 1994, the Kulp public prosecutor issued a decision of withdrawal of duty in respect of the seven missing relatives, referring the case to the Diyarbakır State Security Court on the basis that they had been kidnapped by the PKK. The grounds for this conclusion are not apparent. The petitions in the file at this point, and the statement of Kemal Taş, refer to the missing persons having disappeared while in the custody of the security forces. No step had been taken by the Kulp public prosecutor beyond enquiring whether their names had been registered as detained by the Kulp gendarmerie and police or appeared in the Diyarbakır SSC records.

469.          From 31 January 1994, the investigation was transferred to the Diyarbakır SSC prosecutor. The following steps were taken under investigation no. 1994/940:

- On 15 February 1994, the SSC Chief Prosecutor instructed the Kulp public prosecutor, Kulp district gendarme command, Diyarbakır Security Directorate and Diyarbakır provincial gendarme command to report on any information, documents or confession etc relevant to the investigation every three months;

- The petitions dated 9 March 1994 from Hüsnü Demir, which referred to Turan Demir and 10 other missing persons and from Seyithan Atala, which referred to Mehmet Şah Atala and 10 other missing persons was added to the file.

- Enquiries were made to the local gendarme station at Panak. A report dated 10 March 1994 was issued by gendarme sergeant Ulvi Kartal referring to the disappearance of seven persons and stating that he had no information and the search was ongoing. In his testimony to the Delegates, Ulvi Kartal stated that since the area was not inhabited he had not needed to make any enquiries in order to answer the petition. The petition however was counter-signed by Vehbi Başer, the muhtar of the village, who before the Delegates had confirmed that there was an operation in the village following which eleven persons had disappeared.

- On 10 March 1994, the Diyarbakır provincial gendarme command requested an investigation into the alleged disappearance of eleven named persons and for a report to be made urgently. The letter referred to complaints having been made to the Commission.[24] A negative reply was received on 17 March 1994.

- On 18 April 1994, a request was made to the Kulp prosecutor for an investigation to be made into allegations that eleven named persons had disappeared for the Ministry of Justice (General Directorate of International Law and Foreign Relations). In response, the Kulp prosecutor sent back on 11 May 1994 a request for information from the Diyarbakır SSC as to whether the men had been detained under their jurisdiction and another brief enquiry to the Kulp gendarme district command which received the same brief reply that the men had not been detained (25 May 1994). By letter dated 6 June 1994, the Kulp prosecutor stated an investigation file had been opened no. 1994/50 concerning the missing persons, though only 5 names were mentioned.

- On 12 August 1994, it was requested that the Kulp public prosecutor take statements from Mehmet Emin Akdeniz and Kemal Taş, as well as any other witnesses. This request seems to have sparked off further action by the Kulp public prosecutor: a request on 18 August yet again for information as to whether the men had been detained to be provided by the Kulp district gendarme command, as well as the Security Directorate and widening the enquiry this time to the Kulp district mechanised infantry battalion.

- On 22 August 1994, the Diyarbakir SSC prosecution took a statement from Aydın Demir, Aziz Atala and Sabri Tutuş, which all maintained that the security forces were responsible for the disappearance of their relatives. Aziz Atala named the Bolu forces.

- On 25(8) August 1994, the Kulp Security Directorate provided information about Ümit Taş’s detention in September 1993.

- On 28 October 1994, a statement was taken from Mehmet Emin Akdeniz by a Diyarbakır public prosecutor. He referred to Pembe and Zekiye Akdeniz as having seen the eleven missing persons being taken away. He also mentioned the Bolu forces.

- On 4 November 1994, the Kulp public prosecutor sent a reminder to the Kulp gendarme division command for information to be provided.

- On 9 November 1994, the Kulp district gendarme command enclosed a further investigation report dated 1 November 1994 from the Panak commander Ulvi Kartal which stated that an investigation had been carried out into the possibility of a kidnapping but no information had been obtained. However, as stated above, Ulvi Kartal informed the Delegates that he in fact took no steps to investigate.

- On 12 December 1994, a statement was taken from Kemal Taş by the Kulp public prosecutor. He, inter alia, named a shepherd from Yakut called Çesim as having given information that his son had been seen with the soldiers in the operation at Alaca.

- On 19 December 1994, a statement was taken from Mehmet Tahir Taş by a public prosecutor, which referred to his brother having been held by Kulp gendarme commandos and then in Alaca.

- On a date unspecified a statement was taken from Zeki Akdeniz by the same public prosecutor that took the statements of Kemal Taş and Mehmet Tahir Taş (above). This statement refers to a possibility that the PKK kidnapped the missing persons though also refers to the people going missing after an operation.

- On 27 December 1994, the Kulp public prosecutor asked the Kulp gendarmes for Pembe and Zekiye Akdeniz to be brought to make a statement. A reminder was sent on 23 February 1995.

- On 3 July 1995, the Kulp public prosecutor asked for the gendarmes to make enquiries about Çesim, a villager from Yakut.

- On 3 August 1995, the Diyarbakır public prosecutor requested the Kulp public prosecutor to summon M. Emin Akdeniz, Kemal Taş and Ramazan Yerlikaya for their statements to be taken. A request was made the same day to the security directorate for Sabri Tutuş, Aydın Demir and Seyithan Atala to be brought. On 11 August 1995, Muş public prosecutor was making similar requests in respect of Sabri Avar and  Süleyman Yamuk.

- On 11 September 1995, the Diyarbakır Security Directorate provided information about certain of the applicants, and referred to the fact that Süleyman Atala had been brought and Hüsnü Demir.

- On 19 September 1995, the statement of Sabri Tutuş was taken, which referred to the military operation which he had witnessed in the village.

- On 26 September 1995, the statement of Kemal Taş was taken by the Diyarbakır SSC Chief Prosecutor.

- Following further requests for Mehmet Emin Akdeniz to be brought (20 September 1995), the Diyarbakır public prosecutor was informed the same day of information provided by the Kulp gendarmes on 18 August as regarded his address.  A statement was then taken from him on 3 October 1995. It referred to the women as being eye-witnesses.

- On 23 October 1995, the Kulp public prosecutor instructed that Pembe Akdeniz, Zekiye Akdeniz and the shepherd Çesim be brought.  At about the time, he was also making enquiries about Vehbi Başer the current muhtar of Alaca. He also requested that Diyarbakır prosecution return the investigation file to enable him to pursue matters, which were not however provided until 4 December 1995.

- On 11 December 1995, the Kulp prosecutor made requests for Hüsnü Demir, Çesim, Misbah, Medine Aydoğdu, Pembe and Zekiye Akdeniz to be brought. Further reminders were send for former on 5 August 1996 and for the latter two witnesses on 16 April 1996.

- On a date in April 1996, a statement was taken from Çesim Boskurt, denying having witnessed any events. On 29 May 1996, a statement was taken from Pembe Akdeniz in which she confirmed witnessing her husband being detained by soldiers during an operation. By a report of that date, it was indicated that Zekiye Akdeniz had died.

- A statement was taken on 9 August 1996 from Mizbah Akdeniz which gave no substantial information.

- On 8 April 1997, a second statement was taken from Mizbah Akdeniz, which this time referred to the operation and the Bolu forces taking his father as a guide. On 25 April a statement was taken from Aydın Demir.

470.          On 29 April 1997, the Diyarbakir SSC Chief Prosecutor issued a decision of withdrawal of jurisdiction, in which it concluded that there was an absence of evidence that the PKK kidnapped the missing persons, named the security forces as the defendants and noted that the complaints involved an alleged disappearance in custody. The file was accordingly sent back to the Kulp public prosecutor, who on 20 June 1997 joined it to the ongoing file at Kulp. The only step taken by the Kulp public prosecutor according to the documents provided to the Commission was on 8 September 1997 to request the Kulp police and gendarme authorities to provide information as to any developments and whether the missing persons had been found missing or dead.

471.          The Commission notes that while the investigations were pending a number of reports were made to the authorities in Ankara. In particular, it remarks the letters of Bekir Selçuk, Diyarbakır SSC Chief Prosecutor of 30 June and 24 August 1995 to the Ministry of Justice, which referred to the probability that the missing persons were kidnapped by the PKK and that no concrete evidence had been obtained. The second letter claimed also that the applicants had denied that they were eye-witnesses and failed to give the names of the women who were alleged to have witnessed events and that there was no evidence that an operation took place in Alaca or that people were detained. These two letters glaringly ignore the fact that Zeki Akdeniz stated that he saw an operation take place, that the statements of Sabri Tutuş, Aziz Atala and Aydın Demir gave details of an operation in the village and that in his statement of 28 October 1994 Mehmet Emin Akdeniz had named Pembe and Zekiye Akdeniz as eye-witnesses. Further, the letter of 31 December 1994 from the General Gendarmerie Headquarters to the Ministry of Foreign Affairs denied that any operation had occurred at Alaca village area on 9 October 1993 and omitted to refer to the operation conducted on the nearby Şen plateau by the Bolu forces.

4.Concerning former Article 28 para. 1(a) of the Convention

472.          The applicant has invoked this provision in regard to the gendarme witness Ulvi Kartal, referring to his attitude, conduct and replies to questions. The Commission has noted above his lack of credibility and its finding, impliedly, that he lied on oath to the Delegates. While this is a serious matter, it does not however find that this entails a failure by the Government to furnish all necessary facilities within the meaning of Article 28 para. 1(a) of the Convention.

D.As regards Article 2 of the Convention

473.          Article 2 of the Convention provides:

“1.Everyone's right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

 in defence of any person from unlawful violence;

 in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

 in action lawfully taken for the purpose of quelling a riot or insurrection.”

474.          The applicants submit that there has been a failure to protect the lives of their eleven missing relatives. They point out that the eleven people were detained and under the control of the State authorities, which therefore must assume an obligation to protect and account for them. They also submit that the failure to investigate the disappearances effectively is contrary to the obligations imposed by Article 2 of the Convention.  They rely, inter alia, on the findings made by the Commission in the previous case of Çakıcı v. Turkey (Eur. Court HR, judgment of 8 July 1999, Reports of Judgments and Decisions 1999-...).

475.          The Government deny that the eleven missing persons were detained by the security forces. They refer to the fact that there is an investigation still being conducted by the Kulp public prosecutor, to whom the security officials and authorities report each month concerning any progress.

476.          The Commission has found that the eleven relatives of the applicants were taken into custody by the security forces and detained for a period at Kepir under guard. They have not been seen since. A period of over five and a half years has elapsed during which the applicants have received no news of the fate of their relatives. The authorities have consistently denied the fact of their detention and no official trace of their detention exists.

477.          The Commission recalls that in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1152), the Commission and Court considered that the disappearance of the applicant’s son following his apprehension by gendarmes and village guards fell to be considered under Article 5 of the Convention with its guaranteees against arbitrary deprivation of liberty rather than under Article 2 of the Convention. It notes that in the Kurt case few of the circumstances surrounding the disappearance and detention were known. Similarly, in the case of Cyprus v. Turkey, (No. 25871/94, Comm. Rep. 4.6.99, paras. 173, 175, 214-218, 223-224) the factual circumstances surrounding the disappearance of a large number of persons in Cyprus in 1974 were not established.   In the present case, the Commission has received considerable evidence detailing the way in which the eleven missing men were kept apart by the security forces and not released with the other detained villagers, the treatment which they received and that they were last seen being seen loaded onto helicopters. Furthermore, in light of its increased experience of the conditions pertaining in south-east Turkey at the relevant time, the Commission is satisfied that it may draw a strong inference as to the fate of the eleven missing men in the present case. The Commission accordingly finds that there is sufficient circumstantial evidence to conclude, beyond reasonable doubt, that these eleven men have died. Since their deaths occurred after their detention by the security forces and in the absence of any justifying explanation for their loss of life, the Commission finds that the respondent Government must be regarded as liable for their deaths, which have occurred in breach of Article 2 of the Convention.

478.          The Commission further recalls that Article 2 imposes a requirement that, in the cases of the use of lethal force, an effective investigation be undertaken:

“The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.” (Eur. Court HR, McCann and Others v. the United Kingdom judgment of 27 September 1995, op.cit., p. 49, para. 161)

479.          The Commission finds that this principle applies equally to the present case.

480.          In the present case, it recalls that a number of investigations were conducted following the petitions and complaints of the applicants and their families. It notes the following:

-          that responsibility for the investigation was transferred back and forth from the Kulp public prosecutor and the Diyarbakır SSC Chief Prosecutor;

-          that the investigation was not apparently commenced  by the public prosecutor in Kulp until December 1993 notwithstanding that complaints had been made by Kemal Taş from 5 October and other applicants from early November 1993;

-          that within a matter of a few months the investigation was transferred from Kulp to Diyarbakır on the basis that there had been no operation and that the PKK were responsible for the disappearance, although no statements had been taken from anyone save Kemal Taş nor any attempt made to verify whether an operation had taken place as alleged; it is not apparent that there was any evidence whatsoever to implicate the PKK at that stage;

-          that the Diyarbakır SSC Chief Prosecutor reported consistently that there was no evidence that an operation had taken place or that the persons had been detained by the security forces although there were statements from eye-witnesses to that effect;

-          that the Diyarbakır SSC Chief Prosecutor’s reports to the authorities in Ankara contained inaccuracies, eg. he stated that the women villagers alleged to be eye-witnesses had not been identified;

-          that there were delays in obtaining the statements of the applicants and other witnesses (August 1994 for Sabri Tutuş, Aziz Atala and Aydın Demir; October 1994 for Mehmet Emin Akdeniz; December 1994 for Mehmet Tahir Taş, Kemal Taş and Zeki Akdeniz; May 1996 for Pembe Akdeniz; August 1997 in respect of Mizbah Akdeniz);

-          that no statements were taken from other villager witnesses;

-          that no step was taken to verify the nature and extent of operations conducted in or about Alaca at the alleged time or to seek information from the relevant security force personnel.

481.          The Commission finds that the investigation was dilatory, that until 29 April 1997 it was based on the unfounded presumption that it concerned a PKK kidnapping and that the steps taken to investigate the applicants’ allegations were superficial, notwithstanding the applicants’ consistently expressed fears for their relatives’ lives and safety. The Commission recalls that the purpose underlying the requirement to provide an effective investigation is to ensure that the use of lethal force by agents of the State is subject to public scrutiny and that the State may be held accountable (see McCann and others v. the United Kingdom, Comm. Rep). Having regard to the inactivity of the public prosecutors, whose enquiries were often limited to the same request for information about custody records and their reluctance in the face of the accumulating evidence to pursue any other lines of enquiry, the Commission finds that the investigations did not provide any safeguard as regards protection of the right to life.  In these circumstances, the Commission finds that there has been a failure to provide an adequate and effective investigation into the circumstances in which the eleven persons disappeared, which discloses a failure to protect their right to life in breach of Article 2 of the Convention in addition to that found above (para. 478).

CONCLUSION

482.          The Commission concludes, by 26 votes to 2, that there has been a violation of Article 2 of the Convention.

E.As regards Article 3 of the Convention

i.Concerning the eleven missing individuals

483.          Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

484.          The applicants submit that the conditions of the detention of their relatives constituted inhuman and degrading treatment, referring in particular to the cold, the evidence of beatings and the evidence of psychological suffering.

485.          As previously stated, the Government deny that the eleven relatives of the applicants were detained by the security forces and thus any liability for any alleged ill-treatment.

486.          The Commission has had regard to the strict standards applied in the interpretation of Article 3 of the Convention, according to which ill-treatment must attain a certain minimum level of severity to fall within the provision's scope. The practice of the Convention organs has been to require compliance with a standard of proof “beyond reasonable doubt” that ill-treatment of such severity has occurred (see Eur. Court HR, Ireland v. the United Kingdom judgment, op. cit., p. 65, paras. 161-162).

487.          The Commission recalls its findings above (paras. 451-457). There is no conclusive evidence as to the cause of injury to Abdo Yamuk’s foot nor as to alleged torture under interrogation. However, there is evidence that Behçet Tutuş was beaten and that Bahri Şimşek and the men held at Pireş (who included Nusreddin Yerlikaya, Abdo Yamuk, Mehmet Şah Atala, Hasan Avar and Ümit Taş) were beaten, though the extent and nature of the beating is not apparent.. There is consistent evidence that ten of the men were tied up (Mehmet Salih Akdeniz appears to have been spared) and that they spent most of the time outdoors in the cold. There is evidence also that a number of the detainees expressed fears for their lives and that they were in a generally miserable state. The Commission is satisfied that the conditions of their detention, in particular the fact of being tied up for long periods of time may be regarded in itself as inflicting physical and mental suffering severe enough to constitute inhuman and degrading treatment within the meaning of Article 3 in respect of ten detainees. As regards Mehmet Salih Akdeniz, it finds, having regard to his age (70), that the privations resulting from his detention out of doors in the cold combined with the stress and anxiety of the circumstances, may be considered as also reaching this threshold.

CONCLUSION

488.          The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of the eleven missing men.

ii.Concerning the applicants themselves

489.          The applicants submit that the disappearance of their relatives has caused them such a degree of suffering as to constitute inhuman and degrading treatment contrary to Article 3 of the Convention. They rely in particular on the Court’s judgment in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1187-1188, paras. 133-134).

490.          The Government dispute the factual basis of the applicants’ claims and also their motives for bringing the applications.

491.          The Commission recalls that in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment, loc. cit.) the Court found a violation of Article 3 of the Convention in respect of the applicant, who was the mother of a person who had disappeared during an unacknowledged detention. It referred to the fact that she had witnessed the detention with her own eyes and that the public prosecutor failed to treat her complaints with any seriousness, leaving her with the anguish of knowing that her son had been detained in the absence of any official information as to his subsequent fate. The Court emphasised that she was herself the victim of the authorities’ complacency in the face of her anguish and distress.

492.          In the present case, only one of the applicants, Keleş Şimşek, saw and talked to his detained relative, his brother Bahri, during his detention. A number of the other applicants had been taken into detention elsewhere during the operation (Sabri Tutuş, Süleyman Yamuk and Ramazan Yerlikaya) while two attempted to visit their detained relatives at Kepir but were turned away (Aydın Demir and Sabri Avar, who saw his brother and son from a distance but was not able to talk to them). The other applicants (Mehmet Emin Akdeniz, Kemal Taş, Seyithan Atala) were not in the Alaca area at the time and did not come to the village during the operation, though they heard firsthand accounts from other relatives or villagers as to what had occurred. The applicants and their families showed from the beginning a keen and persistent determination to discover what had happened to the eleven missing men. The steps taken by them in petitioning the authorities are set out in this report. This involved repeated requests for the whereabouts of their relatives to be investigated directed to public prosecutors at Diyarbakır, Kulp, Bingöl, Kayseri and Muş, while visits were made to prisons (Kayseri, Bingöl and Erzurum), the Kulp district governor, the gendarme commander at Kulp and the regional governor’s office. Two of the applicants attempted to see the commander of the Bolu forces at Bolu while Mehmet Emin Akdeniz went to Ankara and talked to a number of ministers. The applicants however met consistently with official denials of knowledge of their relatives’ detention wherever they went or were sent.

493.          The Commission has no doubt that this process of searching in hope of finding information and running continually into a wall of official ignorance and indifference constituted an ordeal of which the applicants can claim to be victims in their own right. While it notes that some of the applicants, in particular Mehmet Emin Akdeniz, Kemal Taş and Seyithan Atala were particularly active in looking for their relatives when compared with some of the other applicants, it recalls that many of the steps were taken as part of a joint initiative and that the authorities also treated their complaints collectively. The Commission does not in these circumstances find it appropriate to distinguish between the applicants regarding their level of participation in the families’ efforts to find information about their relatives. Further, the Commission’s Delegates observed the despair, pain and loss which the applicants gave witness to in their testimony and by their demeanour as they told their stories. The Commission finds that in the circumstances of this case that they may be regarded as suffering inhuman and degrading treatment within the meaning of Article 3.

CONCLUSION

494.          The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of the applicants.

F.As regards Article 5 of the Convention

495.          Article 5 of the Convention provides, as relevant:

“1.Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

 the lawful detention of a person after conviction by a competent court;

 the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

 the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2.Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 

3.Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial.

4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

496.          The applicants submit that their relatives were taken into custody by the security forces. This detention does not fall within any of the specified grounds in Article 5 para. 1. They submit that there is no evidence that their relatives were informed of the reasons for their arrest as required by Article 5 para. 2 and that they have ever been brought before a judge or other appropriate judicial officer as required by Article 5 para. 3.  The refusal of the State to acknowledge their relatives’ detention also renders nugatory the fundamental safeguards provided for in Article 5 para. 4, since the issues arising out of the detention cannot come before a court.  They refer also to the lack of safeguards against “disappearance”, citing the non-existent and incomplete detention records disclosed in this case. Finally, they ask the Commission to find that there was a practice of “disappearances” in south-east Turkey in the period 1993-1994.

497.          The Government deny that the applicants’ relatives were ever in the custody of the security forces and submit that it is a possibility that, for reasons of financial gain, or intimidation, the applicants are blaming the security forces rather than the PKK who are known to have kidnapped villagers for their own purposes.

498.          The Commission is of the view that the disappearance of the applicants’ relatives raises fundamental and grave issues under Article 5 of the Convention, which guarantees liberty and security of person. Article 5 aims to provide a framework of guarantees against abuse of power in relation to persons taken into custody. Such persons are vulnerable to a wide range of arbitrary treatment and infringements of their personal integrity and dignity. Article 5 plays an essential role in the system of protection under the Convention in effectively preventing the risk of treatment contrary to Article 3 and extra-judicial execution contrary to Article 2 and in holding State authorities accountable to independent judicial control for the  detention of persons taken into custody.

499.          The Commission has found above (para. 457) that the applicants’ relatives were detained by the security forces during the operation conducted from 9 October 1993 and that they were last seen before the end of that operation on 24-25 October 1993 being held under guard at Kepir. The Commission finds that the Government have not provided a credible and substantiated explanation of what has happened to these eleven persons. While the Government refer to the possibility that the PKK took them, there is little evidence to support that contention (see paras. 399, 433-434) and the Commission has found that the weight of the evidence establishes beyond reasonable doubt that the persons were last seen in detention. In these circumstances, whatever has happened to the applicants’ relatives since they were detained, there is a presumption of responsibility of the Turkish Government for their fate, which has not been rebutted (Cyprus v. Turkey, Nos. 6780/74 and 6950/75, Rep. 10.7.76, para. 351).

500.          The Commission has given consideration to what safeguards, if any, exist within domestic law and practice to protect against involuntary disappearances. It has previously emphasised that reliable and accurate records of persons in custody must be regarded as a prerequisite of any lawful exercise of power to detain. Inaccurate records facilitate, even foster, arbitrariness, unaccountability and the risk of ill-treatment, extra-judicial execution and disappearances. It has found above (para. 406) that no records were made in respect of a significant number of villagers who were picked up and detained by the security forces during the operation. While there was an official list of a certain number of detainees transferred to Muş, this gives the impression of being selective, namely, that records were only made in respect of those against whom proceedings were going to be brought. This raises concerns of the most alarming kind. In addition, while Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable claim that a person has “disappeared” during detention, the Commission has noted the defects in the investigations (paras. 481-482). It finds that there has been neither a prompt nor meaningful inquiry into the circumstances of the disappearance of the eleven individuals in this case.

501.          The Commission concludes that the applicants’ relatives have been arbitrarily deprived of their liberty contrary to Article 5 and in disregard of the guarantees of that provision concerning the legal justification for such deprivation and requisite judicial control. Such unaccounted disappearance of detained persons must be considered as a particularly serious violation of the right to liberty and security of person guaranteed by Article 5 of the Convention.

502.          The Commission finds it unnecessary to decide whether or not there is a practice of unacknowledged detention and disappearances as alleged by the applicant.

CONCLUSION

503.          The Commission concludes, unanimously, that there has been a violation of Article 5 of the Convention.

G.As regards Article 13 of the Convention

504.          Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

505.          The applicants complain that they have been deprived of an effective remedy in relation to their missing relatives and in their own regard. They refer to the attitude of the public prosecutors, the State Security Court prosecutors, the Governors, gendarmes and armed forces. They submit that Article 13 requires effective accountability by the authorities for arguable claims that persons have disappeared in custody but that this case discloses that they in fact enjoy complete unaccountability.

506.          The Government dispute that the applicants have made proper use of the remedies available to them in respect of their complaints. They cannot rely merely on the simple requests for information made to various administrative authorities but should have instituted proceedings which would have enabled the respective responsibilities to be judicially investigated in depth. They refer to the possibility of initiating criminal proceedings against the police or military authorities alleged to be responsible for the disappearance or pursuing administrative proceedings. They also point out that there is an investigation still pending before the Kulp public prosecutor.

507.          The Commission recalls that Article 13 of the Convention, together with Article 1 of the Convention, reflect the fact that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights and that it is first and foremost for Contracting States to secure to every individual within their jurisdiction their rights and freedoms under the Convention (see eg. Eur. Court HR, Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48). Article 13 in particular plays an indispensable role in preventing abuse of power and the infringement of Convention rights by requiring Contracting States to provide the mechanisms whereby arguable claims of violations of guaranteed rights and freedoms may receive proper investigation, with the possibility of redress (see eg. Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260, para. 95, Boyle and Rice v. the United Kingdom, Comm. Rep. 7.5.86, Series A no. 131, p. 40, para. 73). It would emphasise that a failure to provide effectively-functioning mechanisms of redress seriously undermines the protection to be afforded by the Convention, since the Convention organs cannot, and should not be required to act as a first instance tribunal, a role which the national authorities are in the best position to fulfil.

508.          In the present case, the Government have argued that in fact the applicants have not availed themselves of the available remedies. The Commission recalls however that in its decision on admissibility it found that the applicants had made numerous approaches to the authorities, judicial, civil, administrative and military. These findings have been confirmed by the evidence submitted to the Commission following that decision. In these circumstances, the Commission is satisfied that the matter was sufficiently brought to the attention of the relevant authorities, in particular the public prosecutor who is under a duty in Turkish law to investigate allegations of unlawful deprivation of liberty and that the responsibility of the Contracting State to provide effective and adequate redress was engaged.

509.          The Commission recalls that in concluding that there was a violation of Articles 2, 3 and 5 of the Convention, it found that the investigation into the circumstances in which the applicants’ relatives disappeared was  inadequate. It recalls however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of Article 2 to conduct an effective investigation (Eur. Court HR, Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 330, para. 107). Further, where an individual has an arguable claim that he has been tortured or seriously ill-treated by agents of the State, the notion of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see also, Eur. Court HR, Aksoy v. Turkey judgment, op. cit., p. 2287, para. 98).

510.          The Commission recalls its findings above on the inadequacies of the investigation, in particular, the failure of the public prosecutors to take steps promptly to take statements from alleged eye-witnesses to the disappearance or from persons with knowledge of the operation which occurred in October 1993. It is struck, as in previous cases, by the reluctance and in the case of the State Security Court Chief Prosecutor, a blatant refusal to envisage that the authorities could be implicated in allegations of unlawful acts (see para. 335 concerning his explanation that he was bound to believe the authorities’ version of events rather than that of a villager). It notes in particular the speed with which the Kulp public prosecutor disclaimed jurisdiction over the case on the basis of minimal enquiries and sent it to the State Security Court, which had jurisdiction primarily over terrorist crime. As regards alleged disappearances, which may be related to either terrorist or non-terrorist crime, it does not appear that the separate jurisdictions of the public prosecutors and the State Security Court prosecutor are conducive to a coherent investigative procedure. In this case, the investigation was sent to and fro between Kulp and Diyarbakır without any progress being made. Nor did it appear that there was any authority able effectively to investigate a disappearance involving different administrative areas, applicants bearing the burden of having to petition public prosecutors in each locality which they thought might have had an involvement. Having regard to these factors, the Commission finds that the applicants have been denied an effective remedy against the authorities in respect of their allegations and thereby access to any other available remedies at their disposal, including a claim for compensation. Notwithstanding the Government’s submissions as to the availability of administrative proceedings, there is no indication in light of the public prosecutors’ investigations that any practical purpose would have been served by such proceedings.

CONCLUSION

511.          The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention.

H.As regards Article 14 of the Convention

512.          Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

513.          The applicants maintained in their application that their missing relatives had been subject to discrimination in that they were detained and have since disappeared because of their Kurdish origin. They have not included any further arguments in their final observations on the merits.

514.          The Government have denied the factual basis of the substantive complaints and that there has been any discrimination.

515.          The Commission has examined the applicants’ allegations in the light of the evidence submitted to it but considers them unsubstantiated.

CONCLUSION

516.          The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention.

I.Former Article 25 of the Convention

517.          Former Article 25 of the Convention provides in its first paragraph:

“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”

518.          The applicants complain that the authorities’ conduct in this case is not consistent with the State’s obligation under former Article 25 of the Convention. The applicants were summoned and questioned about their applications to the Commission. Though Seyithan Atala was doing his military service, they summoned his brother instead. This constituted an interference with the applicants’ right of individual petition.

519.          The Government have not made any submissions on this point. They have referred to the evidence of Bekır Selçuk, stating that he summoned the applicants to ask them for their knowledge of the case and that he would not have asked them why they brought their applications.

520.          The case-law of the Convention organs has established that it is of utmost importance for the effective operation of the system of individual petition instituted by former Article 25 of the Convention that an applicant be able to communicate freely with the Commission without any form of pressure from the authorities to withdraw or modify his or her complaints (eg. Eur. Court HR Ergı v. Turkey judgment of 28 July 1998, Reports 1998-... para. 105, Kurt v. Turkey, op. cit. pp. 1191-1194, paras. 153-165, Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1219, para. 105).

521.          In the present case, the Commission notes that the authorities took steps to contact all the applicants concerning their applications, and did question all of them save Seyithan Atala. In October 1995, Mehmet Emin Akdeniz was summoned by the State Security Court (SSC) Chief Public Prosecutor, being held in custody for two nights beforehand by the police. He described how the prosecutor claimed that it was other people bringing the application rather than himself and how the prosecutor was angry when he maintained that he had applied to Europe after applications in Turkey had proved futile. In June 1997, Sabri Avar was summoned by the Muş public prosecutor who asked if he had complained against the State and why he had applied to the Human Rights. Keleş Şimşek was summoned by the public prosecutor in Mersin, who asked him why he had applied to European Human Rights Commission. In August 1994, Seyithan Atala’s brother Aziz was summoned during his absence on military service and his statement taken by the Diyarbakir public prosecutor, who referred to documents from the Ministry of Justice and enclosed petitions. On 19 September 1995, Sabri Tutuş was questioned by the SSC Chief Prosecutor. He recalled that he was questioned about what had happened in the village. Though he did not remember being questioned about his application, he was asked to confirm his signature on his statement to the HRA which was part of his application. He had also given a statement to the Diyarbakır public prosecutor on 22 August 1994. On 25 April 1997, Aydın Demir was held overnight by the police and, after the documents relevant to his application were read out, questioned by the SSC Chief Public Prosecutor about whether he had applied to the HRA and to Europe. Kemal Taş made a statement to the Chief Public Prosecutor on 26 September 1996, from which it appears that he was asked about his statement to the HRA and whether he had signed a power of attorney for the lawyers representing him in this application. In or about 1996, Süleyman Yamuk was summoned by the Tarsus public prosecutor, who said that he had complained against the State and to whom he explained why he had made a petition to Europe. Ramazan Yerlikaya also recalled being summoned by a prosecutor who claimed that he had complained against the State.

522.          The Commission observes that in the statements recorded as taken from Aziz Atala, Sabri Tutuş, Kemal Taş, Mehmet Emin Akdeniz and Aydın Demir, there are references to correspondence and enclosures from the Ministry of Justice (General Directorate of International Law and Foreign Relations) or to documents from the Commission being read out. When questioned about this during the witness hearings, the Diyarbakır SSC Chief Prosecutor stated that he did not have copies of the applicants’ petitions to show them but only correspondence from the Ministry. The Commission rejects this denial. It observes that he considered it his duty to verify the signatures on applications to the Commission. Sabri Tutuş recalled being asked to do so. It finds that these four applicants, and, in the case of Seyithan Atala, his brother Aziz, were questioned about their applications on the basis of the documents submitted on their behalf to the Commission.

523.          The Commission has already found that it is incompatible with the State’s obligations under former Article 25 to undertake the task of assuring the authenticity or voluntariness of applications submitted for its examination, such matters falling to be investigated and determined by the Commission (Kurt v. Turkey, op.cit., Comm. Rep., para. 247). Similarly, applicants should not be questioned about the circumstances in which they decided to bring an application or be criticised by a State official for doing so. It views with particular concern the fact that two of the applicants Aydın Demır and Mehmet Emin Akdeniz were detained by the police for one and two nights respectively before they were brought before the public prosecutor. The Commission finds that in the present case the summoning of the applicants, and in the case of Seyithan Atala his brother Aziz, to be questioned about their applications and whether they had introduced their applications amounted to indirect and improper pressure which interfered with the free exercise of their right of individual petition guaranteed under former Article 25.

CONCLUSION

524.          The Commission concludes, unanimously, that Turkey has failed to comply with its obligations under former Article 25 para. 1 of the Convention.

J.Recapitulation

525.          The Commission concludes, by 26 votes to 2, that there has been a violation of Article 2 of the Convention (para. 482 above).

526.          The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of the eleven missing individuals (para. 489 above).

527.          The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of the applicants (para. 494 above).

528.          The Commission concludes, unanimously, that there has been a violation of Article 5 of the Convention (para. 503 above).

529.          The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (para. 511 above).

530.          The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention (para. 516 above).

531.          The Commission concludes, unanimously, that Turkey has failed to comply with its obligations under former Article 25 para. 1 of the Convention (para. 524 above).

M.-T. SCHOEPFER                  S. TRECHSEL

                   Secretary                                     President

       to the Commission                    of the Commission

(Or. English)

CONCURRING OPINION OF SIR NICOLAS BRATZA

I agree with the conclusions and reasoning of the Commission on each of the Articles invoked and only add some supplementary remarks since we are departing from the judgment of the Court in the Kurt case (Eur. Court H.R. Kurt v. Turkey judgment of 25 May 1998 Reports of Judgments and Decisions 1998-III, p. 1152) in concluding that the failure of the authorities to protect the lives of the applicants’ eleven missing relatives, and the further failure of the authorities to investigate their disappearances effectively, gave rise not merely to an aggravated violation of Article 5 of the Convention, but to a violation of Article 2.

In the Kurt case, the Commission found that, in the absence of any evidence as to the fate of Üzeyir Kurt subsequent to his detention in the village, it was inappropriate to draw the conclusion that he had been the victim of a violation of Article 2.  The Commission accepted that, where there had been a disappearance in State custody, the strong inference might be that this had been fatal to the individual concerned and in this regard noted that, in a series of cases dealing with disappearances, where a person had been missing for a long period, the Inter-American Court of Human Rights had found violations of the right to life where the length of time elapsed and the context in which the victim disappeared created a reasonable presumption that he had been killed.  However, the Commission also observed that in one of these cases the Inter-American Court had found a systematic practice of disappearances associated with ill-treatment and extra-judicial executions, whereas in two other cases there was some evidence of an execution having been carried out.  It was the view of the Commission that there was no material before it which would entitle it to find the existence of such a practice in Turkey and no evidential indication as to the ultimate fate of the applicant’s son which would allow it to draw the inference that he had been killed.

The Court agreed, observing that it was required to scrutinise carefully

“...whether there does in fact exist concrete evidence which could lead it to conclude that her son was, beyond reasonable doubt, killed by the authorities either while in detention in the village or at some subsequent stage.” (loc. cit at p.1182, para. 107)

The Court further noted that in those cases where it had found that a Contracting State had a positive obligation under Article 2 to conduct an effective investigation into the circumstances surrounding an alleged unlawful killing by agents of that State,

“...there existed concrete evidence of a fatal shooting which could bring that obligation into play (see the ...McCann and Others judgment; and the Kaya judgment of 19 February 1998, Reports 1998-1).” (ibid.)

The Court observed that the applicant’s case rested entirely on presumptions deduced from the circumstances of her son’s initial detention, bolstered by more general analyses of an alleged officially tolerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State.  These arguments were not considered by the Court to be in themselves sufficient to compensate for the absence of more persuasive indications that the applicant’s son died in custody, while the evidence adduced by the applicant did not, in the view of the Court, substantiate her claim of a practice of violation of Article 2.

Since its judgment in the Kurt case, the Court has again examined the issue of a disappearance in south-east Turkey in the case of Cakıcı.  The Court’s recent judgment in that case reveals in my view a development in the Court’s approach to the issue.

The Commission in the Cakıcı case found, in addition to a violation of Article 5 of the Convention, a violation of Article 2.  In arriving at this finding, the Commission placed reliance on the fact that Ahmet Cakıcı had been seen by a witness in detention in a bad state, with injuries to his head and ribs; that the unacknowledged detention of Ahmet Cakıcı had occurred more than four years before; and that in official terms Ahmet Cakıcı was regarded as dead, the Government claiming that he had been killed in a clash in February 1995 and that his identity card had been found on his body.  In these circumstances, the Commission concluded that there was a very strong possibility that Ahmet Cakıcı was no longer alive and that the situation disclosed a failure to comply with the obligation under Article 2 of the Convention that everyone’s right to life should be protected by law (Comm. Rep. paras 252-3).

The Court in its judgment accepted that Ahmet Cakıcı had been the victim of unacknowledged detention and serious ill-treatment and noted that very strong inferences could be drawn from the authorities’ claim that his identity card had been found on the body of a dead terrorist.  The Court went on to find on this basis

“.. that there is sufficient circumstantial evidence based on concrete elements, on which it may be concluded beyond reasonable doubt that Ahmet Cakıcı died following his apprehension and detention by the security forces.” (Judgment of 8 July 1999, para. 85)

In this regard, the Court distinguished the Kurt case in which it had found that “no other elements of evidence existed as regarded [Üzeyir Kurt’s] treatment or fate” subsequent to his detention (ibid.).  The Court concluded that “ as Ahmet Cakıcı must be presumed dead following an unacknowledged detention by the security forces”, the responsibility of the respondent State for his death was engaged.  It further found that “having regard to the lack of effective procedural safeguards disclosed by the inadequate investigation carried out into the disappearance and the alleged finding of Ahmet Cakıcı’s body”, the respondent State had failed in its obligation to protect his right to life and that there had been a violation of Article 2 on this account also (ibid., para. 87).

In the present case, as in Kurt, there is no “concrete evidence” that the applicants’ relatives are dead or that they were killed in custody.  However, I note that the same may be said in the case of Cakıcı, there being no solid evidence to show that the body alleged to have been found after a clash in fact belonged to Ahmet Cakıcı.  It is true that he was officially recognised as dead but this official acknowledgement seems to have depended entirely on the fact that his identity card was allegedly found on one of the bodies.  There was no identification of the body by any member of Ahmet Cakıcı’s family, who were not even informed of his alleged death until May 1996, some 15 months after the body was allegedly found.  Moreover, since no documents were provided by the Government relating to any identification of the body or release of the body for burial, the Commission was not able to find it established that Ahmet Cakıcı had been killed as alleged or that his body was amongst those found following the clash.

By their very nature, cases involving disappearances following unacknowledged detention in custody are unlikely to throw up any concrete evidence as to the fate of the person involved.  As the Inter-American Court observed in its judgment in the Velasquez-Rodriguez case:

“Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterised by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.” (Judgment of 29 July 1988, para. 131)

The central question in each case of a disappearance of a person taken into custody is whether, having regard to all the elements of the case, there exists sufficiently strong circumstantial evidence to give rise to a presumption that the detainee has died.  These elements will include such matters as the circumstances of the taking into custody including the treatment of the detainee, the period which has elapsed since the person was last seen, whether the detention was recorded or acknowledged by the authorities concerned and whether any plausible explanation has been offered by the authorities as to the lack of trace of the detainee.

While there may be no concrete evidence of the death of the relatives of the present applicants, there is in my view, as in Cakıcı, “sufficient circumstantial evidence, based on concrete elements” on which to conclude that the eleven men have died following their detention by the security forces.

In the first place, there is strong and consistent eye-witness evidence that the applicants’ relatives were taken into custody and detained for a period at Kepir under guard, that they were kept apart by the security forces and not released with the other detained villagers, that they were ill-treated and that they were last seen being loaded onto helicopters.

Nearly six years have now elapsed since the eleven men were seen being taken away, since when the applicants have received no news of their fate.  As in several previous cases from south-east Turkey examined by the Commission (in addition to the Kurt and Cakıcı, see the Commission’s Reports in the cases of Timurtaş and Ertak), the detention of the men is not only unacknowledged but has been consistently and systematically denied by the authorities.  Moreover, as in the previous cases, the official inquiries which have been opened into the disappearances have revealed no trace of any of the men and provided no plausible explanation as to their whereabouts or as to their fate subsequent to their detention.

These factors, taken together, are in my view sufficient to give rise to a presumption that the eleven men died following their detention by the security forces in circumstances engaging the responsibility of the respondent State.  Moreover, as in Cakıcı, the lack of effective procedural safeguards disclosed by the inadequate investigation carried out into the disappearance of the applicants’ relatives amounted to a failure on the part of the State to protect their right to life and there was accordingly a violation of Article 2 of the Convention on this ground also.

(Or. English)

PARTLY CONCURRING PARTLY DISSENTING OPINION OF MR L. LOUCAIDES JOINED BY MR E. BUSUTTIL

I agree with the majority on all points except as regards the finding that the eleven missing men died during their detention by the security forces in circumstances that the respondent Government must be regarded as liable for their deaths under Article 2 of the Convention.

There is no doubt that the eleven missing men were detained by the security forces and that nothing was heard about them for a period of five and a half years. The authorities have consistently denied the fact of their detention and no official trace of their detention exists. Under these circumstances and taking account of the evidence regarding the treatment of these persons by the security forces it is reasonable to assume that most probably these eleven persons have died. But a finding to the effect that these persons have died in detention, for purposes of Article 2 of the Convention, cannot rest on probabilities but must be a conclusion beyond reasonable doubt i.e. a finding which is inconsistent with any other reasonable possibility.

It is true that the respondent Government did not come with any explanation as to the fate of these persons. This means that the Government remain accountable for their fate. Thus the respondent Government ARE responsible for a continuing violation of Article 5 of the Convention. The same approach was followed by the Commission in the recent inter-state case of Cyprus v. Turkey regarding the missing Greek Cypriots who were last seen in Turkish custody (see para. 213 of Application no. 25781/94). In the latter case and in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, p. 1152),  there was no concrete evidence proving the killing or death of the missing persons. In the Kurt case both the Commission and the Court found that the evidence was not sufficient to substantiate the claim that the missing persons were, beyond reasonable doubt, dead and proceeded to a finding of a violation of Article 5 of the Convention by virtue of a lack of effective investigation of the authorities of the respondent State as to the fate of the missing persons.

I support a similar approach in the present case in the absence of concrete evidence as to the killing of the eleven missing persons. In fact I find it difficult to distinguish the present case from the cases referred to above. Furthermore, I find it unsafe to rely on what the majority has described as “its increased experience of the conditions pertaining in south-east Turkey at the relevant time”. Such conditions may somehow support an inference that the persons in question were killed but at the same time one cannot, in the light of such conditions, exclude the possibility of a continuing illegal detention of these persons or the possibility of them hiding after an escape. In both cases it is understandable that the respondent Government may refuse to account for the fate of these persons. Still, as I stated above, the respondent Government remain continually accountable for the fate of the missing persons in question under Article 5 of the Convention.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2] This area is referred to variously as Şenyayla, the Şen plateau or the Şen pastures.

[3]  This appears to be a misspelling of Gurnik.

[4]  A number of early investigation documents list in addition to the eleven missing men a twelfth individual Behçet Taç, which appears to be a confusion of the names of Behçet Tutu and Ümit Ta.

[5]  See n.4.

[6]  See n.4.

[7]  The applicant’s grandfather and Celil’s grandfather were brothers.

[8]  He showed some confusion as to where he was before and during the operation. At another point, he seemed to explain that before coming to Kulp, he had been at Mu.

[9] See para. 77 - Abdo Yamuk was referred to as Abducelil or Celil by a number of witnesses.

[10] While he referred to arriving during the month of September, it was explained by himself and the Kurdish interpreter that he referred to the Kurdish or regional calendar, where months began on the 22nd of the month and ended on the 21st. The Government Agent disputed that a Kurdish calendar existed, stating that there was only an Islamic calendar which did not include the month of September in any case.

[11] The applicant used a word that refers to sister-in-law, aunt-in-law, or elderly bridesmaid.

[12]  The name of this witness is cited in some documents as Abdurrahman Yerlikaya.

[13]  At another point, he seemed to say that he was in Kulp when the operation was on.

[14] The general volunteered this information in a general explanation before any question had been put to him about the alleged transporting of civilian prisoners.

[15] While the witness appeared to contradict herself stating at first that the men were placed on the helicopter while tied up and then stating that they were untied, in answer to the Government Agent she specified that their hands remained bound but their feet were untied before they got onto the helicopter.

[16] She indicated visually a distance across the library in which the hearing was taking place.

[17] Mehmet Emin Akdeniz stated that it was 5 to 6 kilometres from Kepir.

[18]  see eg. the petitions of 12 November 1993 (para. 125), 14 December 1993 (para. 134)

[19] The applicant, Mehmet Emin Akdeniz’s petitions to various authorities also specified that it was at en that his elder brother had disappeared - see paras. 123, 128. See also the statement of Sabri Tutu to the Diyarbakır public prosecutor referring to the operation being carried out on enyayla pastures: para. 177.

[20] Accounts vary slightly. Ali Yerlikaya in his statement of 25 December 1993 states that nine persons were kept, Abdurrahim Yerlikaya named eight persons (he omitted Bahri imek, who was however included in his statement of 25 December 1993 that referred to nine persons). Kele imek also confirmed that his brother was taken in this group.

[21] See also Ali Yerlikaya’s statement of 25 December 1993

[22]  In his statement of 31 December 1993, he referred to being released on the third day with other detainees.

[23]  While the applicants submit that Kemal Ta was also present at this visit, the principal reference in the evidence is the oral evidence of Süleyman Yamuk who referred to Kemal being present. Kemal Ta did not mention this himself to the Delegates, though mentioned talking to the Kulp public prosecutor and the Kulp gendarme commandos. See however his statement of 25 December 1993 (para. 98) which states that he saw the District Governor.

[24]  It may be noted that the application was however only communicated to the respondent Government on 27 June 1994.

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