AKKOC v. TURKEY

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application Nos. 22947-8/93

Nebahat Akkoç

against

Turkey

REPORT OF THE COMMISSION

(adopted on 23 April 1999)

 TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-50)............................................1

A.The application

(paras. 2-4)........................................1

B.The proceedings

(paras. 5-45).......................................1

C.The present Report

(paras. 46-50)......................................4

 II.ESTABLISHMENT OF THE FACTS

(paras. 51-229)..........................................6

A.The particular circumstances of the case

(paras. 52-79)......................................6

B.The evidence before the Commission

(paras. 80-229)....................................10

1) Documentary evidence

(paras. 80-157)....................................10

2) Oral evidence

(paras. 158-207)...................................25

C.Relevant domestic law and practice

(paras. 208-220)...................................36

D.Relevant international material

(paras. 221-229)...................................38

 III.OPINION OF THE COMMISSION

(paras. 230-356)........................................42

A.Complaints declared admissible

(para. 230)........................................42

B.Points at issue

(paras. 231-232)...................................42TABLE OF CONTENTS

Page

C.Concerning the disciplinary proceedings against the applicant

(paras. 233-246).....................................43

As regards Article 10 of the Convention

(paras. 233-245).....................................43

CONCLUSION

(para. 246).........................................46

 Concerning the death of the applicant’s husband

(paras. 247-289).....................................46

1. As regards Article 2 of the Convention

(paras. 247-279).....................................46

CONCLUSION

(para. 280).........................................53

2. As regards Articles 6 and/or 13 of the Convention

(paras. 281-288).....................................54

CONCLUSION

(para. 289).........................................55

3. As regards Article 14 of the Convention

(paras. 290-293).....................................55

CONCLUSION

(para. 294).........................................55

4. As regards Article 1 of Protocol No. 1

(paras. 295-298).....................................56

CONCLUSION

(para. 299).........................................56

E.Concerning the applicant’s periods of detention

(paras. 300-348).....................................56

1. The evaluation of the evidence

(paras. 300-326).....................................56

2. As regards Article 3 of the Convention

(paras. 327-333).....................................64

 TABLE OF CONTENTSPage

CONCLUSION

(para. 334).........................................66

3. As regards Article 18 of the Convention

(paras. 335-338).....................................66

CONCLUSION

(para. 339).........................................67

4. As regards former Article 25 of the Convention

(paras. 340-347).....................................67

CONCLUSION

(para. 348).........................................68

F.Recapitulation

(paras. 349-356).....................................69

PARTLY DISSENTING OPINION OF MR S. TRECHSEL.................70

 APPENDIX I :PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION...........71

 APPENDIX II :FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION...........79

APPENDIX III :  SUMMARY OF THE SUSURLUK REPORT..............87

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 applicant is a Turkish citizen resident in Adana and born in 1953. She is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecturers at the University of Essex.

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

4.             The applicant complains that she has been subject to a disciplinary sanction in respect of an article published in a newspaper, that her husband was killed in circumstances for which the Government are responsible, that she has been deprived of an effective remedy and access to court in respect of her husband’s death, that she has been deprived thereby of her right to compensation or widow’s pension, that her husband was subject to discrimination and that she has been detained by the police during which detention she was tortured and came under pressure in respect of her application to the Commission. She invokes Articles 2, 3, 6, 10, 13, 14, 18 and former Article 25[1] of the Convention.

B.The proceedings

5.             Applications Nos. 22947/93 and 22948/93 were introduced on 1 November 1993 and registered on 22 November 1993.

6.             On 28 February 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 of the complaint made by the applicant in Application No. 22947/93 in respect of the alleged violation of her freedom of expression resulting from the decision of the Provincial National Education Disciplinary Committee on 14 May 1993. The remainder of the application was declared inadmissible.  On the same date, the Commission decided to communicate to the Government the complaints made by the applicant in Application No. 22948/93.

7.             The Government requested an extension in the time-limit set for the submission of their observations, which expired on 10 and 13 June 1994 respectively. They did not submit any observations.

8.             On 31 March 1994, the applicant made submissions to the Commission, alleging that she had been detained, tortured and intimidated in respect of her applications. On 14 April 1994, the Commission decided to join the two applications, Nos. 22947/93 and 22948/93 and to invite the Government to submit observations on the complaints raised by the applicant under Articles 3 and 25. The time-limit set for this purpose expired on 13 June 1994, without any observations being received.

9.             On 11 October 1994, the Commission declared the applications admissible.

10.         The text of the Commission's decision on admissibility was sent to the parties on 13 October 1994 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 21 October 1994, the applicant submitted complaints to the Commission that she was receiving threats. These were sent to the Government.

12.                On 9 January 1995, the Government submitted observations, raising, inter alia, former Article 29 of the Convention.

13.                On 2 March 1995, the Commission decided not to apply former Article 29 of the Convention and to invite the parties to submit any evidence or further observations on the merits that they might wish.

14.                On 22 May 1995, the applicant submitted further evidence and observations.

15.                On 1 December 1995, the Commission decided to take oral evidence in respect of the applicant's allegations under Article 3 and former Article 25. It appointed three Delegates for this purpose: MM. Pellonpää, Cabral Barreto and Bratza.

16.                By letter dated 2 February 1996, the applicant submitted proposals concerning the taking of evidence and witnesses.

17.                By letter dated 26 February 1996, the Delegates requested the Government to identify particular witnesses and provide documents from the investigation file. By letter dated 20 March 1996, the Government made submissions concerning the proposed witnesses.

18.                By letter dated 4 April 1996, the Commission repeated its request for the Government to identify particular witnesses.

19.                On 10 June 1996, the Government identified certain witnesses.

20.         Evidence was heard by the Commission's Delegates in Ankara on 5 July 1996. Before the Delegates, the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr. A. ölen, Mr. A. Kurudal, Ms. N. Nerdim, Mr. A. Emülser, Mr. C. Çakir, Mr. O. Sever, Ms. B. Pekgöz, Ms. M. Gülen and Ms. A. Emüler. The applicant was represented by Ms. F. Hampson and Mr. O. Baydemir, as counsel, assisted by Ms. A. Reidy and Mr. Mahmut Kaya (interpreter).  During the hearing, the applicant requested that certain allegations should not be made public. The Commission has acceded to the applicant’s request and has not taken these matters into account in its subsequent examination of the case.

21.         By letter dated 10 July 1996, the Commission requested the Government to provide explanations for the non-attendance of two witnesses and to submit particular documents and information. The applicant was requested, by letter of the same date, to provide information and documents.

22.         On 7 September 1996, the Commission decided to call one of the witnesses who had failed to appear to a hearing to take place in Strasbourg.

23.         By letter dated 12 September 1996, the Government provided some of the documents requested by the Commission. By letter dated 25 September 1996, the Secretariat drew to the attention of the Government that some documents and information were still outstanding, including medical reports and X-rays of the applicant submitted by her in criminal proceedings.

24.         By letter dated 2 October 1996, the applicant informed the Commission of difficulties in obtaining the information/documentation requested.

25.         By letter dated 30 October 1996, the Government informed the Commission concerning the absence of one of the witnesses at the hearing in Ankara.

26.         By letter dated 14 November 1996, the Government provided further information and informed the Commission that Mr. Ahmet Baaran, the witness proposed to be heard in Strasbourg on 4 December 1996, had died on 15 August 1996. It was stated that the Government had requested the medical reports and X-rays from the appropriate authorities.

27.         By letter dated 25 November 1996, the Secretariat requested the Government to clarify their response and to confirm whether or not certain records existed.

28.         By letter dated 31 January 1997, the Secretariat drew it to the attention of the Government that no reply had been received to previous requests for documents and information. They were requested to respond by 10 March 1997.

29.         By letter dated 26 March 1997, the applicant submitted various medical reports.

30.         By letter dated 16 May 1997, the Government informed the Commission that the applicant’s X-rays could not be provided as the applicant’s file was before the Court of Cassation but that, assuming that they were in the file,  they would be forwarded when the file was returned to the first instance court.

31.         On 23 May 1997, the applicant provided further information.

32.         By letter dated 4 June 1997, the Commission's Delegates requested that the Government clarify the position as regarded the applicant’s X-rays by 23 June 1997.

33.         By letter dated 8 August 1997, the applicant provided further information.

34.         By letter dated 27 August 1997, the Secretariat requested that the Government respond to enquiries concerning the X-rays.

35.         By letter of 10 September 1997, the Government provided further information. They stated that the X-rays had been requested from the relevant authorities.

36.         On 19 September 1997, the Commission examined the state of proceedings of the application and decided to request, as a matter of urgency, that the X-rays and medical report be provided by 7 November 1997.

37.         On 6 December 1997, in the absence of any response from the Government, the Commission decided to invite the parties to submit their final observations on the merits by 5 February 1998.

38.         By letter dated 20 January 1998, the Government requested an extension of three months for the submission of their observations on the merits, which was granted by the President.  A similar request was granted to the applicant. Pursuant to a further request by the Government, the time-limit was extended until 13 May 1998.

39.         On 6 May 1998, the Government submitted three X-ray films and on 12 May 1998, their final observations on the merits.

40.         On 6 June 1998, Dr Meyer of the Hôpital Civil, Strasbourg, submitted a brief report on the X-rays at the request of the Commission Delegates.

41.         On 9 June 1998, the three X-ray films were sent to the applicant’s representatives, who were requested to submit any comments or medical reports by 21 August 1998. On 27 July 1998, the applicant returned the films.

42.         On 17 November 1998, the applicant submitted her final observations, after a further extension in the time-limit for that purpose.

43.         On 14 December 1998, the applicant submitted observations and a medical report with regard to the X-ray films.

44.         On 19 April 1999, the Commission decided that there was no basis on which to apply former Article 29 of the Convention in respect of the arguments raised by the Government in respect of the applicant’s complaints relating to the alleged interference with her freedom of expression, the death of her husband and her alleged torture in custody. It observed also that in her observations on the merits of 27 July 1998 the applicant invoked for the first time Article 13 of the Convention in respect of an alleged failure to investigate her allegations of torture. Recalling that in the decision on admissibility of 11 October 1994 it considered that the applicant’s allegations about her detention and ill-treatment in February 1994 should be considered under Articles 3 and 25 of the Convention and that it was on the basis of these provisions that the Delegates proceeded to take evidence and to invite the Government to submit its observations, the Commission did not find it appropriate to consider further the complaint under Article 13 of the Convention.

45.         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

46.         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. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MrF. MARTINEZ

MrsJ. LIDDY

MML. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

SirNicolas BRATZA

MMI. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

47.         The text of this Report was adopted on 23 April 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.

48.         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.

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

50.         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

51.         The facts of the case, particularly concerning events during the detention of the applicant in February 1994, 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

52.         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.

Concerning the disciplinary proceedings

53.         The applicant is a former teacher and former head of the Diyarbakır Branch of the Education and Science Workers Union, Eğit-Sen. On 31 October 1992, the applicant made a statement to the Diyarbakır Söz newspaper, giving an account of a meeting which had taken place on 27 October 1992 between the applicant and a delegation of Eğit-Sen and the National Education Director. The applicant alleged that the teachers were verbally abused, harassed and in some cases assaulted by the police, which statements were published in an article titled “11 teachers detained in Diyarbakır”.

54.         The Diyarbakır Provincial Education Disciplinary Committee took a decision on 14 May 1993 blocking the applicant’s promotion as a penalty for the statement made to the newspaper. The decision was confirmed by the Diyarbakır Administrative Court on 4 October 1994 and upheld by the Council of State on 5 December 1995, which sent the case back to the Administrative Court to revise only the severity of the penalty.

Concerning the death of the applicant’s husband

55.         The applicant’s husband, Zübeyir Akkoç, was of Kurdish origin and also a teacher who was involved in the Eğit-Sen trade union. On 13 January 1993, at about 07.00 hours, Zübeyir Akkoç was killed by gun fire on his way to work at a primary school. Ramazan Aydın Bilge, who was accompanying him, was also killed. Her husband was dead when he arrived at the hospital. No classical autopsy was carried out. Two gendarmes arrived at the scene of the incident, allegedly having been notified by radio. They made no attempt to discover in which direction the perpetrators had fled and appear to have only taken one statement, from Abdullah Elgören, notwithstanding the large crowd that evidently had gathered at the scene.

56.         Prior to her husband’s killing, and following the incident at the National Education Directorate, the applicant had received several threats over the telephone and had been harassed by the security forces.  In the telephone calls, she was told, “It is your turn, we are going to kill you too.” She reported the threats to the public prosecutor but her complaints were ignored. Her husband had been detained by the police on several occasions prior to his death. When she was detained in February 1994, the members of the security forces told her that they had killed him.

57.         The public prosecutor opened a file 1993/339 into the killing, classifying it as an unknown perpetrators killing. On 27 March 1997, the prosecutor issued an indictment against Seyithan Araz for the killing of Zübeyir Akkoç, but not that of Ramazan Aydın Bilge. Seyithan Araz is alleged to have carried out activities for Hizbullah and evidence shows that many of the actions alleged to have been carried out by Hizbullah had been done with the collaboration of the security forces.  The applicant maintains that her husband was killed by persons acting for the security forces, as a result of his connection with her and their involvement in Eğit-Sen, and as part of the official State policy of intimidation against Kurdish teachers in south-east Turkey.

Concerning the detention and ill-treatment of the applicant

58.         On 13 February 1994, at about 02.00 hours, the applicant was apprehended at her home by police officers, in front of her children. They had placed the applicant and her children in separate rooms, while they carried out a search. They taunted the children with threats of what would happen to their mother. The police found nothing. However, a police officer took a sheaf of papers from his pocket and placed it on top of newspapers. They tried to force her to sign a record stating that the documents had been found in her house, but she refused.  The police also asked her if she was standing as a candidate in the local elections.

59.         The applicant was taken away with her anorak pulled over her head. After a brief, cursory visit to a doctor, she was taken to the security directorate, where during her ten day detention, she was subjected to a variety of extreme forms of torture, including sexual and mental abuse. She was blindfolded, beaten and stripped. On the first night, she was brought into a room with a very bright, hot light and asked if she was going to be a candidate.  She informed them that she was not.  They accused her of being involved with the PKK and told her that her name had been provided by another person.  Except for the last two nights, she suffered similar treatment. She was blindfolded, stripped, beaten and subjected to water treatment - first, freezing cold water was thrown on her, then buckets of hot water.  She was subjected to loud music and bright lights. On one occasion, she was made to parade, naked, down a corridor with police officers abusing her on either side.  For two days, she was handcuffed naked to a cell door, at first without a chair and then with a chair when she was too exhausted. She was forced to listen to the screams of others being tortured. They also applied electric shock to the applicant after she was wet, attaching the electrodes to her toes, and, on one occasion, to her nipple. There was also one attempt to subject the applicant to hanging, which stopped when a scar on her abdomen was noticed.  On the final night of torture, as the applicant was subjected to the water treatment, she was struck with force, when she put her hand up to her eyes which were burning and the police officer perhaps believed that she was trying to remove the blindfold. She fell on the ground, almost unconscious, with injuries to her head. The applicant was asked questions about being a candidate and also about her application to the Commission. They confronted her with the power of attorney authorising Kevin Boyle to represent her before the Commission.

60.         Following seven days of torture and threats that her children had been amongst those she had heard being tortured, she signed the papers put in front of her without reading them.  On the next day, she was lined up with others and videoed in front of guns and bombs. On 22 February 1994, the applicant along with 16 others was taken to the casualty ward. The doctor merely looked at the line of detainees. She asked the doctor to write a separate report for her and to feel the bumps on her head and showed him her infected toe. She thought he had written a report but when she was brought before the public prosecutor afterwards she discovered that he had not. She told the prosecutor of her ordeal, that she had been tortured. He appeared sympathetic. She also told the court in Mardin that she had been tortured. In those criminal proceedings, she was found guilty of aiding and abetting the PKK and was sentenced. The applicant’s appeal is still pending.

61.         When the applicant was released, she was in great pain, exhausted and suffering from a number of injuries - her toe was swollen and infected, her head cut in several places, she could hardly move her jaw. She went to a doctor fearing that she had caught an infection in her throat. The doctor noted the pain in her jaw and sent her for an X-ray. When she went back to the doctor, he said the damage was not very serious and that he would prescribe painkillers. However, when he learned that she had been detained, he tore up the report.  He sent her to the university clinic.  She attended after hours, when a second X-ray was taken and she was provided with some treatment. The applicant placed the X-rays with her court file. The applicant understood that the X-rays revealed a fissure to her jaw.  She also suffered from longer term effects, in particular, psychological damage for which she received therapy at the Human Rights Foundation Rehabilitation Centre.

62.         On 26 September 1995, the applicant was again detained with her friend and colleague Enver Atlı. While he was driving her home, the police stopped the car and took both into detention. They were brought to a doctor and then detained overnight at the Anti-Terror Department. They were blindfolded. The applicant was again confronted with the fact that she had been “complaining to Europe” about the treatment which she had received in February 1994. She was not ill-treated as such but kept in a cell which was freezing cold.

63.         On a third occasion, on the night of 13-14 October, the police came to her home and said they had to take her to the police station  as she had to make a statement on Monday morning. She was held overnight at the police station. At about 15.00 hours, she was brought to the office of the chief of police who accepted that she would return on Monday and released her. The applicant returned at 08.00 hours on Monday with her mother. They were placed in a room and had to wait, being unable to move around. At around 14.30-15.00 hours the applicant’s mother became agitated and fainted. The police took her to a doctor. The applicant met with the public prosecutor who stated that he had simply issued a warrant to ensure she would come to give a statement. The prosecutor took her statement and she was free to leave.

2.Facts as presented by the Government

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

Concerning the disciplinary proceedings

65.         On 31 October 1992, the applicant made a statement to the newspaper Diyarbakır Söz as President of the Eğit-Sen trade union, whose authority had not been recognised and whose activities in Diyarbakır were illegal.

66.         On 14 May 1993, the Diyarbakır Provincial Education Disciplinary Committee  decided to suspend the promotion of the applicant to a higher grade of teacher for one year, pursuant to Article 125-D/g of Law No. 657, which prohibited civil servants from  giving information or giving statements to the press, news agencies, radio or television without authorisation.

67.         On 23 June 1993, the applicant applied for the decision to be annulled to the Diyarbakır Administrative Tribunal.

68.         On 4 October 1994, the Administrative Tribunal rejected the applicant’s application. She applied to the Council of State, which on 5 December 1995 quashed the first instance decision. It found that everyone had the right to freedom of expression but that a State official had to exercise it responsibly. They indicated that a lesser penalty was appropriate.

69.         On 3 April 1996, the Administrative Tribunal maintained its initial decision. The applicant applied to the Council of State, where the matter is still pending.

Concerning the death of Zübeyir Akkoç

70.         On 13 January 1993, while walking on the Sakarya Avenue with Ramazan Aydın Bilge, Zübeyir Akkoç was shot dead. A witness, Abdullah Elgören, stated that he heard the shots but did not see who fired. There was no other witness.

71.         On 29 November 1994, pursuant to Laws No. 2330 and 3713, the Pecuniary Compensation Commission awarded the applicant 190.380.000 TL in respect of her husband’s death. Since 15 January 1993, she and her children had been receiving a widow’s and orphan’s pension pursuant to the same provisions.

72.         An investigation was commenced by the prosecutor’s office attached to Diyarbakır State Security Court.

73.         On 7 March 1997, a suspect Seyithan Araz was apprehended in an operation concerning the illegal Hizbullah organisation. He made a statement to the police but revoked it when questioned by the public prosecutor on 17 March 1997.

74.         By indictment dated 27 March 1997,  Seyithan Araz was charged with several murders, including that of Zübeyir Akkoç. The prosecution is still being conducted before State Security Court No. 4 at Diyarbakır.  The applicant has not applied to become a party to those proceedings.

Concerning the detention of the applicant

75.         On 13 February 1994, the applicant was taken into custody at Diyarbakır in the course of an operation conducted by the police against the PKK. She was detained on the basis of the statement made by another suspect. On 18 February 1994, she made a statement at the Security Directorate concerning her activities for the PKK.

76.         On 21 February 1994, she was examined by a doctor before being taken before the public prosecutor attached to the State Security Court. The doctor’s report indicated that there were no signs of ill-treatment. In his oral evidence before the Delegates, the doctor stated that the applicant had made no complaint to him about alleged ill-treatment. In her statement to the public prosecutor, she denied the statement taken by the police, stating that she had signed it under coercion. She was released by the public prosecutor.

77.         The applicant did not apply to the public prosecutor for an examination by the forensic authorities. She obtained X-rays from a private doctor. Three X-rays were found in the court file, without a medical report. An examination of the X-rays discloses that there were no indications of any fracture of her jaw.

78.         On 3 September 1995, the public prosecutor issued a decision of non-prosecution against two police officers in respect of alleged misconduct. The applicant did not appeal against this decision.

79.         On 26 September 1995, the applicant was taken into custody in respect of an investigation into an allegation that she had forged a document.  On 27 September 1995, having made a statement, she was released.  The statement discloses that there was no questioning about her application to the European Commission of Human Rights.

 B.The evidence before the Commission

1)Documentary evidence

80.         The parties submitted various documents to the Commission. The documents 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. The applicant also submitted reports by Amnesty International (TURKEY Torture, extrajudicial executions and “disappearances’ May 1992, AI Index EUR 44/39/92); “A Gun Barrel in the Back of the Neck” - Trade Unions and the struggle in Kurdistan and Turkey” produced by a British trade union delegation; Turkey Human Rights Report 1992, published by the HRFT (Human Rights Foundation of Turkey).

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

a) Statements by the applicant

 Statement dated 11 November 1992 submitted in the application  to the Commission

82.         The applicant stated that increasing attacks and exiles on teachers had brought their union Eğit-Sen to seek for solutions. They had made an appointment to meet with the National Education Director. She received a warning from the Director the evening before the meeting that the State of Emergency Governor had been informed and that an unauthorised protest meeting of the teachers would be regarded as sabotage. She stated that there were no plans for such a protest. The next day, when she arrived at 08.30 hours, the National Education Directorate was surrounded by police, and cameras were filming those arriving.  The Director allowed only seven persons to enter. The applicant told her colleagues to disperse.  However, the police were filming and verbally abusing them, telling them, “Show your faces, you rogues. You are our targets now.” Everyone’s identity was checked. One female teacher was pulled by her hair into a police car. Thirteen education workers were taken away.

83.         At 17.00 hours that day, they went to see the city governor, Ibrahim Sahin, to complain that their colleagues had been detained.  He told them that they had been told not to go to the Directorate and that they had bad motives. At 12.00 hours on 28 October, their colleagues were released. They had received threats since. She received a call the day after the events and was told, “You are also going to die. It is now your turn...” She was concerned for her own safety and that of her family and the 106 education workers whose identities were known to the police and appealed for protection.

84.         In an addendum to the statement, the applicant added that on 2 December 1992 the police looked for her at the school where she taught and telephoned her at home, telling her that legal procedures had been started against her and she had to make a statement to the public prosecutor. She gave her statement on 3 December 1992. The reason for the proceedings was that she was the secretary of Eğit-Sen.

 Statement dated 28 January 1993 submitted in the application to the Commission

85.         The applicant’s husband, Zübeyir Akkoç, had been a teacher at a Diyarbakır primary school. He had been detained and threatened by the police in the past. The applicant had become President of the Diyarbakır branch of Eğit-Sen.  Since they had requested a meeting with the National Education Director, she had been living in fear because of the abuse received from the police. People had been telephoning her home and threatening her family.  She had complained to the public prosecutor about this.

86.         On 13 January 1993, when her husband was on his way to school at about 07.00 hours, with his teacher friend Ramazan Aydın, they were attacked. Both were killed.  Incidents with unknown perpetrators kept occurring and no-one could find out the truth. Outside the National Education Directorate, she had heard the police saying that teachers were terrorists.  The police made it clear that she and her husband and their teacher colleagues were regarded as being against the State. She was living in a  state of fear with her children.

Statement dated 14 September 1993 to Kerim Yildiz (director of the Kurdistan Human Rights Project, London)

87.         Eğit-Sen was founded on 13 November 1990, widely covering workers in education and science, including cleaners, teachers and university staff. There was another education union, Egitim-I, which was acknowledged by the State. As regarded the meeting of 27 October 1992, this was arranged by telephone with the National Education Director.  Teachers gathered in the grounds of the Directorate. Not all the 120 people who were filmed belonged to their group, as some people were there on their own business but could not get in due to the police blockade of the building. Seven teachers were allowed to enter the building for the meeting, at which they wished to raise their concerns about escalating attacks on teachers.

88.         One day after the meeting, telephone threats began. She made a statement at a press conference on 28 October 1992. The Söz, Özgür Gündem and Cumhurriyet newspapers wrote about it. Since then, she has been constantly followed. She had been threatened on the telephone. Her husband had been followed. After her husband died, the prosecution took her complaints seriously but the police statements were relied on and nothing came of it. It was treated as an unknown perpetrator file.

89.         Since then, she had left her job and her position with the union. Because she applied to the European Commission of Human Rights she had been subjected to threats and abuse from plain clothed and armed persons. Obstacles had been placed in the way of her pension and she was unable to receive her severance pay. She was also not receiving the payments relating to her husband.

b) Documents relating to the disciplinary proceedings

Notice served on Eğit-Sen branch dated 28 September 1992, 10.30 hours

90.         This document, served by a police officer on two officials of the Eğit-Sen branch at Diyarbakır, referred to legal provisions, concluding that there was no provision in the constitution or other legislation that teachers could form trade unions and that a communication had been served on the applicant that the branch should not be opened. The union branch was accordingly not a legal institution and the general committee meeting which had been announced was not legal. Legal proceedings would be initiated against the union branch and its directors.

Diyarbakır Söz article of 31 October 1992, “11 teachers detained in Diyarbakır”

91.         The article stated that 11 named teachers who had met with the Diyarbakır National Education Director, Hasan Bozoğlu, to discuss increasing armed attacks on teachers in the south-east had been detained by the police after the meeting. A group of about 20-30 teachers had arrived for the meeting. The applicant, identified as Eğit-Sen Diyarbakır branch secretary, is cited as complaining of a lack of information about her detained colleagues. She was quoted giving details of how the meeting was arranged with the Director, that the Director had wrongly thought that there was to be a protest march and that they had clarified that the teachers only wanted to meet with him; that outside the meeting there were large numbers of police; and that only seven persons were allowed to enter the meeting.

Decision of the Diyarbakır Provincial Education Disciplinary Committee dated 14 May 1993

92.         The decision recounted that the applicant was a primary school teacher, who had made a statement to the Diyarbakır Söz newspaper on 31 October 1992 without permission. They  had imposed the penalty of a one year suspension in promotion pursuant to Article 125/D-g.

Administrative Court decision 1994/667 dated 4 October 1994

93.         The case summary stated that the applicant, a teacher, made a press announcement on behalf of the trade union of which she was the leader, relating to the problems of members, that she argued that that came within the definition of trade union activities and did not concern the public service, and that for those reasons the penalty of one year’s stoppage of promotion was in breach of the law.

94.         The defendant, the Diyarbakır provincial government, had submitted that the applicant had clearly violated Article 15 of Act No. 657, with the information and statement regarding public officials which she gave to the newspapers on behalf of a trade union which was not allowed in Diyarbakır province and that with her behaviour, she had forgotten that she was a civil servant.

95.         The court noted that it was laid down in Article 15 of Act No. 657 that public officials may not make announcements or statements relating to their public sector work to the press and that only the officials authorised by the minister could do so. On the other hand, all citizens had the right to express their thoughts and opinion within the framework of the rights under the Constitution.  However, not all citizens have the same opportunity to exercise this right to the same degree. As stated in Council of State Office No. 8 decision of 14 December 1993 (1993/4214), state officials must exercise this right in a more measured manner and with more care in their statements relating to their superiors and public officials.  In this case, when the applicant expressed her thoughts and the negative aspect observed by her in the continuing arguments between teachers and police officers, she was criticising and accusing the administration. Accordingly, there was no contravention of the legislation by imposing a disciplinary punishment on the applicant for her actions which were contrary to the special requirements of her service. Her application was unanimously refused.

Decision of the Council of State dated 5 December 1995

96.         The majority of the Court quashed the Administrative Court decision and sent it back for a fresh decision. They concluded that the applicant had made an announcement as the President of an Eğit-Sen branch in order to protest against the negative attitude and arguments between the teachers and the security officials when the teachers went to meet the Director of Education. It was obvious that this announcement was not related to her occupation as a teacher. However, due to the absence of a legal regulation concerning civil servants’ trade unions and to the impossibility of their being a legally founded trade union, the applicant’s assertion that she made the statement as President of a trade union did not provide her with justification. On the other hand, every citizen had the right, guaranteed by the Constitution to express their opinions. Civil servants had to exercise this right with greater care and sensitivity when making announcements about their superiors and public duties. Since the applicant criticised the administration, which is in breach of the Code of Conduct, it was appropriate to impose a disciplinary sanction but in order to achieve a fair balance between the offence and the sentence, a lighter sentence should have been imposed.

Decision of the Administrative Court 1996/297 dated 3 April 1996

97.         The court referred to the decision of the Council of State of 5 December 1995. On the basis of the principles enunciated, it found no contradiction between the legislation and the imposition of the sentence on the applicant for breach of the Code. It maintained its earlier decision and rejected the applicant’s application.

c) Documents relating to the death of her husband

Statement of Abdullah Elgören 13 January 1993, 09.35 hours taken by a police officer

98.         The witness, a shopkeeper, stated that at about 07.00 hours he heard three gun shots. He did not leave his shop for fear. Later, when a crowd gathered at the scene of the incident, he approached the location where two persons had been shot. He assisted in placing the individual, later identified as Zübeyir Akkoç, in a taxi to be taken to hospital.

Incident, location, seizure and establishment of facts report dated 13 January 1993

99.         This report, signed by three police officers, describes the location and scene where two persons, Zübeyir Akkoç and Ramazan Bilge, had been shot. They found 7 empty bullet cartridges near the bodies. A Browning 7.65mm pistol and  7 bullets were found on Akkoç’s body on the way to the hospital and confiscated. A sketch map was also produced, showing the position of the bodies and the cartridges.

Report of an examination of a body and autopsy dated 13 January 1993

100.     The first body to be examined was identified as that of Zübeyir Akkoç. It was established that there were two entry holes and two exit holes in the head. Death was caused by the two bullet wounds, which broke the skull, causing haemorrhage and destruction of the brain.  The gun had been fired from a distance - more than 38-42 cm.

 Expert ballistics report dated 13 January 1993

101.     This referred to 7 cartridge cases of 7.62mm and four deformed shells of the same calibre found at the scene of the homicide of Zübeyir Akkoç and Ramazan Bilge. These had been fired from a single fire-arm. On microscopic examination, it was found that the cartridge shells displayed similarities with  cartridge shells submitted for examination from four unknown perpetrator incidents, involving injuries, killings and armed assault on 27 and 29 June 1992, 23 November 1992 and 16 December 1992.

Özgür Gündem article dated 15 January 1993 “Two teachers killed in Diyarbakır”

102.     This referred to the death of Zübeyir Akkoç and Ramazan Aydın Bilge at 07.00 hours the previous day and stated that the killings were by persons alleged to be contra-guerillas. Diyarbakır Security Director Ramazan Er was quoted as saying, “There is a high probability that this is the work of the Hizbullah.”

 Statement of the applicant dated 25 January 1993, taken by police officers

103.     This stated that a month before the killing of her spouse they had received 5-6 threatening telephone calls. It was said, “It is your turn. We are going to kill you too.” There was also some music played, which they thought was Hizbullah music but she did not know Kurdish. Her husband did not hold extreme opinions. He was only a member of Eğit-Sen. They had petitioned the public prosecutor in respect of the threats and she had gone to make a statement several times.

Letter dated 3 September 1993 from the General Directorate of the Pensions Board  to Ministry of Education

104.     This letter responded to a request to apply Law No. 2330 in order to provide the applicant with a widow and orphan’s pension. It referred to a letter of 30 June 1993 from the Diyarbakır National Education Directorate in which it was stated the applicant had been murdered by unknown perpetrators and queried whether he died in the course of his duty or as a result of a personal attack. It requested the Ministry to send explanations as to the basis on which the pension was to be paid, whether cash compensation had yet been paid and any available court decision or indictment.

 Decision of the Cash Compensation Commission No. 24, 14 September 1993

105.     This referred to the Zübeyir Akkoç having been martyred by members of the terrorist organisation. Since his situation fell within the scope of Article 2 of Law No. 2330, amended by Law No. 3658 and Article 21 of Law No. 3713, it was decided that TL 190.380.000 should be paid as cash compensation.

 Letter dated 29 November 1994 from the General Directorate of the Pensions Board

106.     This stated that the file disclosed that the applicant’s spouse, while serving as a teacher, had been killed on 13 January 1993 by terrorists whose identities were unknown. On 23 March 1994, it had been decided to pay a monthly disability pension to the applicant and her two children from  15 January 1993 onwards, which had been paid in varying monthly sums. These payments had been made regularly. By decision of the Ministry of Education Cash Compensation Commission, no. 24 of 14 September 1993, the applicant was paid TL 190.380.000 as a lump sum.

Statement dated 17 March 1997 of Seyithan Araz taken by State Security Court public prosecutor 30023

107.     On 7 March 1997, he had been at Dicle University where he was a final year student in the physics department. He heard that police officers were asking for him. When he went to find them, he was taken to the Security Directorate. He did not accept the charges against him. If he had been involved in such activities, he would have been unable to pursue his studies. He was not a member of the Hizbullah organisation and did not know any members. The 26 page statement taken by the Anti-Terror Department was obtained from him under torture and he was made to sign it without reading it. He did not accept its contents. When the statement of Mehmet Sakir Ari, his maternal uncle, was read out to him, he did not accept its contents and was of the opinion that it had been taken under pressure.

Indictment No. 1997/437 Diyarbakır State Security Court, dated 27 March 1997

108.     This indictment listed three defendants, including Seyithan Araz, who were charged with the offence of involvement with the Hizbullah organisation and armed activities in line with the organisation’s aims. Araz is stated as having been involved in six murder incidents and a number of physical assaults:

- on 12 January 1992, the murder of Abdulsamet etin;

- on 18 February 1992, the murder of Halit Gungen, employee of 2000’e Doğru magazine;

- on 21 December 1992, the assault on Ubeydullah Dalar;

- on 13 January 1993, the murder of  Zübeyir Akkoç;

- on 20 August 1993, the murder of Musa Ak;

- on 6 December 1993, the murder of Abdulkadir Tekin and Burhan Atas and injury to Oktay  and Oğur Yavukir, Abdulhamit Ifrik and Ali Oruc during an armed assault on a trade establishment;

- on 27 October 1995, the murder of Mehmet Mursel Polat;

- on 22 December 1995[2], the assault on Abdullah Aycan.

109.     The defendants’ participation in the offences was stated as being established by their confessions to the police, a note belonging to the Hizbullah and a forged identity card found on one of the other defendants and all the documentation.

Undated minutes of interrogation of Seyithan Araz by a judge

110.     Seyithan Araz stated that he did not accept the charges against him. He had no relationship with the Hizbullah organisation. He did not participate in the murder incidents alleged. He had read about them in the newspapers. He wore glasses and could not see more than two metres ahead  when he removed them. No-one had seen a militant with glasses.  His statement at the Security Directorate was read to him. He stated that he rejected its contents and that it was based on pressure. His statement to the public prosecutor was true. He did not accept the contents of the apprehension report. When he heard that officers were looking for him, he went to them voluntarily. He did not know the other defendants.

Minutes of session 4 June 1997 Diyarbakır State Security Court No. 4

111.     Advocate Ishak Sağlam was accepted as defence counsel for Seyithan Araz and Ahmet Yakacı. Seyithan Araz stated on examination and in his defence that he had no connection with the alleged incidents. The police had come to look for him between lectures. He had surrendered himself to the police after his lecture ended. If he had had any anxiety, he would have escaped. The statement to the police was read out and he denied it. He confirmed the contents of his statement to the prosecutor and the judge who ordered his arrest. The court ordered that Seyithan Araz’s detention be prolonged and issued orders relating to the summoning of various witnesses, including four of the persons named in the indictment as having been injured or assaulted by Seyithan Araz.

Minutes of session 14 August 1997 Diyarbakır State Security Court No. 4

112.     The defendant Kadri Azbaz, who had been released pending the proceedings, appeared. He denied his statement to the police and stated that he did not know either of the other defendants. The witness Oktay Yavuzkir stated that he was shot while working in a shop. He did not see who had fired at him.  The witness Oğur Yavuzkir, shot during the same incident, stated that their trading company was fired at randomly and that he did not see who did the firing or anyone escaping. He had not seen the defendants. The defence counsel made an application for release, submitting that there was no evidence against Seyithan Araz. The request was refused.

Minutes of session 10 December 1997 Diyarbakır State Security Court No. 4

113.     Documents were received confirming that Seyithan Araz was a student at Dicle university, who had attended his lectures and visa examinations. Of the four remaining persons named as having been injured by Seyithan Araz, it was reported to the court that Abdullah Aycan could not be found at his address, that the addresses of Abdulhamit Ifrik and Ali Oruc were unknown and that Ubeydullah Dalar had died on 21 February 1992. The prosecutor submitted that Seyithan Araz could be released on the state of the existing evidence but that the detention of Ahmet Yakacı should be continued. The court ordered that a despatch for the release of Seyithan Araz be sent to Bingöl prison, due to the exhaustion of evidence which necessitated his arrest. He was to be released if there were no other outstanding arrest warrants or offences.  The detention of his co-defendant Ahmet Yakicı was to continue and steps be taken in relation to investigating the alleged forgery of documents with which he was charged.

Minutes of 5 March 1998 Diyarbakır State Security Court No. 4

114.     Three officers were called as witnesses. The first confirmed that he had apprehended Seyithan Araz while on duty at the university but that he had not signed the apprehension report of 7 March 1997 and did not remember the contents regarding the incident. The second and third police officers who also apprehended Seyithan Araz confirmed that they had signed the apprehension report of 7 March 1997.

d) Documents relating to the applicant’s detention

Statement by the applicant dated 18 February 1994 taken by the police

115.     The statement set out the applicant’s family, educational and professional background.  She stated that she was not a member of any political party or association. Before she retired, after the death of her husband, she had been President of Eğit-Sen.  In addition she was a member of the PKK which waged a rightful struggle for the Kurdish people.  She stated that her husband developed a sympathy for the PKK and she did so via the publications and other means of communication which he brought into the house.  She believed her husband was murdered by contra-guerrillas. She joined the PKK to expose this. During this time, she was the Chairperson of Eğit-Sen. As part of her duties, she used to meet with foreign delegations and give them information about the general situation in Turkey, including massacres in Kurdistan. She also made an application to the European Commission of Human Rights about her husband’s murder.  Further details were given about her contacts with PKK members. Her name was put forward as a DEP candidate but she told them that she did not want to be a candidate. She decided to work for the other nominees for the candidacy. She encouraged the teachers in her union to support DEP. Details are given of an incident in which a person, calling himself Harun,  arrived at her house, saying that he was sent by a friend “Cemal”. He gave her a parcel from Cemal containing PKK publications and an ERNK badge. There was a written message with the publications from Cemal. It instructed her to do everything she could in the elections for DEP’s success and gave her a contact number.  She left the magazines in a drawer in the sideboard in the hall. She read them once and forgot about them. She placed the badge with the glasses inside the sideboard.  She had been told that the real name of Harun was Faik Tekdemir and that she had been arrested due to his pointing out her house.

Request for medical inspection dated 21 February 1994

116.     This request, addressed to the Diyarbakır State Hospital by Ramazan Sürücü, the Director of the Anti-Terror Department, listed 17 suspects who were sent in the custody of officers and asked that a report be sent as to whether or not there were any signs of physical blows on their bodies. The sixteenth on the list was the applicant.

117.     At the base of the request, in manuscript, was written that the individuals had been examined at the state hospital emergency ward and the absence of physical blows established.  The doctor’s signature was attached and a stamp.

Indictment no. 1994/612 dated 24 March 1994

118.     The indictment, signed by public prosecutor Ahmet Baaran, listed 17 persons, including the applicant, accused of being armed militants in an armed gang, of being members of an armed gang and aiding and abetting members of an armed gang, such offences occurring from the beginning of 1992 onwards. It included in the list of activities that one of the other members delivered to the applicant a parcel and organisational  message, the parcel containing illegal publications and announcements belonging to the PKK.  It specified that, according to the statement made to the security directorate and the information from Faik Tekdemir, the applicant was a member of the PKK and President of Eğit-Sen; that she made untrue and separatist statements on massacres against the Kurdish population who live in Kurdistan to foreign groups from abroad; continued an organisational relationship with three named members of the PKK; and that she had received a parcel containing the illegal PKK publications SERXWEBUN and BERXWEBUN and an ERNK badge, which she hid. The items were found and proved her membership of the PKK.

Statement dated 31 March 1994 by Dr Bridget Hughes

119.     This states that Dr Bridget Hughes visited Diyarbakır as member of a United Kingdom Parliamentary Human Rights Delegation in March 1994.  During that time, she interviewed the applicant on 27 March 1994.  The applicant told her as follows:

120.     In February 1994, the police came to her home, searched it and pushed her around. They could not find anything so they planted some political documents relating to the PKK which they had brought with them.  They questioned her, referring to files which showed that she had introduced an application with the European Commission of Human Rights, and to tape recordings of conversations which she had had with the Director of the KHRP in London and friends in Ankara. She was taken to Diyarbakır police station where she was detained for ten days. Except for the last day, she was tortured every day. This included electric shocks, high pressure cold water and palestinian hanging. She was asked to sign statements but refused. At one point, she wrote at the end of a statement that she would not sign anything that she had not read or did not understand. The police were angry as they had to retype the statement and she was badly beaten.  She received a very strong blow to the right side of her upper jaw. The police told her that they knew who had killed her husband and threatened that they would do the same to her son.

121.     On the last day, she was forced to clean her cell on hands and knees.  She was taken to the public prosecutor who dismissed the case. After her release, she felt very weak. She saw a doctor, in particular about her jaw which gave her a lot of pain. He said that it had been fractured, that her teeth were moving and that she would need further treatment. He wrote a report but when she told him how she received the injuries in detention, he tore it up. Following her release, she spent 15 days in bed at her mother’s. For one week, the police watched the house constantly.

 Letter from the applicant’s representatives dated 21 October 1994

122.     This letter stated that they had been informed that the applicant had been receiving threatening telephone calls over the previous week by unknown persons and by a man calling himself “policeman Metin”. She was told that she would be killed. A letter containing this information was enclosed from the applicant’s lawyer in Ankara.

 Letter from the applicant dated 19 November 1994 to Kerim Yıldız

123.     At about 23.30 hours on 12 February 1994, the police knocked at the applicant’s door. She opened the door. Seven people entered, armed. She and her children were put in a separate room while they searched for two hours. They found nothing. In front of her and her children in the living room, an officer took a sheaf of publications out of his pocket and put it on the table, saying, “These were found in your house.” They protested that they had been planted. The officers recorded them in the search report however. They tried to get the applicant to sign the report but she refused. They started to act aggressively. As they took her from the house, at about 02.30 hours, one of them said to her children that their father had died and they would not have a mother either any more.

124.   The applicant was blindfolded and placed in a mini van. She was taken for a putative health check where the doctor looked at her from a distance and said that apparently she was well. She was taken to the police headquarters. The torture began with straightforward beatings. She was kept naked throughout the ten days.  She was asked only whether she was a DEP candidate, which she was not. She was subjected to high pressure water a few times each day and sexual harassment. At one point, she was handcuffed to an iron cell door for 24 hours, being hit by everyone who passed. She heard children and women nearby screaming and being tortured. On the eighth day, they tried to get her to sign a statement. She resisted for two days. They told her that they had brought her son and she heard screams. She believed her son was there and she said that she would sign anything that they wanted.  They also took photographs of her naked. On the eleventh day, she was brought before the public prosecutor. He said that they were alleging that she was PKK member and that she had relations with a remand prisoner.  She was released.

125.     When she was released, her head was broken in four places. There was a crack in her jawbone and her teeth were loose and ached. Her kidneys were painful and she could not  move. She went to the doctor to get a report but the report was prevented by the police. She had X-rays but could not get a doctor courageous enough to write a report. She had not placed much importance on it. Her state of mind was very bad. Telephones and doorbells made her nervous and bright lights disturbed her.  She could not sleep. She lived in constant fear.

126.     When she was in custody, they said things to her like “It was us who killed your husband. You have applied to the European Human Rights Project. You speak to Kerim Yıldız on the phone. Stop this or your end will be bad.” They have a copy of all faxes sent to the KHRP.  She received a threat on the phone in March 1994 and once on 10 October 1994.  The threats included, “ Your relatives will suffer” and “If you’re taken into custody again, you won’t get out again.” A policeman who said his name was Metin called. After the last call, she complained in a petition to the governor. This was reported to security who gave her a number to call and report if she was disturbed again. She has had no calls since.

 Decision of non-prosecution 1995/895 dated 3 May 1995

127.     The decision identified the applicant as complainant against Mustafa Tarhan enturk, superintendent, and Hasan Pikin, police officer, in respect of an allegation that she was tortured during her detention, and her jaw fractured. It was asserted that in a later statement the applicant stated that she did not have any evidence or medical report and that she later withdrew her complaint. The defendants denied the charges, stating that the complainant was brought before a doctor. It was understood that there was a doctor’s report which established that the applicant bore no signs of blows or physical violation at the time she was taken before the State Security Court prosecutor.  Due to the absence of evidence, it was decided not to pursue the investigation.

Apprehension report dated 26 September 1995, 14.30 hours

128.     This report, signed by three police officers, states that the applicant was apprehended in a car opposite Mehmetcik primary school as a result of a security check conducted on vehicles and pedestrians. She was wanted in respect of an ongoing investigation. She was to be taken with Enver Atlı, in whose car she was found, for a medical check and then to the Department.

Custody record extract September 1995

129.     This indicates that the applicant was detained in custody at 20.00 hours on 26 September as related with the PKK but not wanted and released at 15.15 hours on 27 September 1995. Enver Atlı, who was without record, was detained over the same period.

Requests for medical examination dated 26 September 1995

130.     These two separate requests, signed by Ramazan Sürücü, the Director of the Anti-Terror Department, asked for a medical examination of the applicant and Enver Atlı.  In manuscript, at the bottom, a doctor’s note indicated on each that an examination disclosed an absence of blows or physical marks and that the individual’s general condition looked well.

Statement of the applicant dated 27 September 1995 taken at the Security  Directorate

131.     The applicant stated that she worked as a member of the General Central Executive Council of the Human Rights Association and that she had previously been a teacher. She had been apprehended in 1994 in respect of a relationship with the PKK and released. She had received a green passport in 1992 and went to Germany in 1993 on a trip organised by a German trade union. She was Diyarbakır Branch President of Eğit-Sen at this time. The Ankara Human Rights Association (HRA) headquarters held a meeting every month or month and a half. She attended some of those meetings as the Diyarbakır representative. The General Headquarters had appointed her to go to open a co-ordination office in Europe and she was going to go to that meeting one of these days. She knew the general aim of the HRA was to prevent human rights violations. She knew Hasan Mavitürk, who lived in the same neighbourhood and was the district National Education Director in Mazidaği, Mardin province. She also knew Enver Atlı, whom she had visited at school to give a present on his appointment to Izmir. She had asked him to give her a lift home. They had been stopped by police on their way home and apprehended as their situation was suspicious. She did not have any relationship with any organisation.

Request for medical examination dated 27 September 1995

132.     This request, signed by Ramazan Sürücü, the Director of the Anti-Terror Department, asks for a medical examination of the applicant and Enver Atlı.  In manuscript, at the bottom, a doctor’s note indicates that an examination took place at 16.00 hours and disclosed an absence of blows or physical marks.

Release record 27 September 1995

133.     This stated that the applicant and Enver Atlı had been brought to the Directorate for investigation for potential membership of the PKK and activities in that organisation. The investigation and examinations resulted in the establishing that they were not involved with the PKK. It was also established that they were not wanted for any other charges. The statement of release was drawn up accordingly.

Statement of the applicant dated 1 November 1995 submitted to the Commission

134.     On 26 September 1995, the applicant visited the primary school where she had worked for 15 years to visit friends. When she left with the headmaster, Enver Atlı, the police were waiting outside. As they drove along, police cars approached, with sirens going, and they were told to stop. They searched the car and bags.  They were taken to the State Hospital Emergency Ward and a report was issued that they were healthy. At the Security Directorate, she was stripped naked and searched by a policewoman.  At about 21.00 hours, she was taken downstairs, with her eyes bound. She was interrogated several times in a chatty way.  She was not very badly treated but it was very cold. She was given tea and cigarettes.  At about 11.00 hours, questions were asked about her role in the HRA. They wrote things down. Her eyes were unbound, she read the statement and signed it.  At 17.00 hours, a medical report was obtained which said that she was fit and she was released.

135.     About 20 days later, at 02.30 hours on 13 October 1995, the police knocked at her door. She opened the door. The police searched the house. She was told that she had to give her statement to the State Security Court prosecutor. At about 03.00 hours, she was taken to the Security Directorate. She was released later that day at 15.00 hours, when she signed a paper guaranteeing that she would be at the Directorate at 08.00 hours on Monday.  On Monday, at 08.00 hours, she went to the Directorate with her mother.  They were kept waiting until 14.30 hours.  At 15.00 hours, she was taken to the State Security Court prosecutor. Her statement was taken in connection with the HRA Peace Bulletin which had just been published.  She asked why it had been necessary to take her into custody on Friday. He said that he had given instructions for her to be at the State Security Court at 09.00 hours and that it was within the Security Directorate’s discretion as to how they implemented that instruction. She was not maltreated but the way they had taken her on Friday had terrified her and her children had waited for her with anxiety.

Report of the Ankara Treatment Centre of the Human Rights Foundation of Turkey

136.     This report, signed by Dr Sabri Dokuzoğuz, stated that the applicant had applied to the treatment centre on 30 October 1995 requesting treatment for health problems resulting from torture and inhuman practices. She had stated that during her detention from 11[3] to 22 February 1994 she had been blindfolded, subjected to torture in the form of beating, suspension, electric shocks, hosing with water jets, threats and humiliation of sexual nature as well as threats of being killed or left crippled,  isolation in a cell where she was given the impression that her children were being tortured, swearing and insults and that in relation to periods of further detention in September and October 1995, she was subjected to torture of a more psychological nature, such as insults, intimidation, humiliation and threats.

137.     The applicant was complaining of: forgetfulness, trembling of the hands, indecision, pain and numbness in several parts of the body and insomnia.

138.     No pathological findings were made in the physical examination of the applicant.  As regarded the psychological evaluation, it was noted that the applicant stated that she had suffered the above effects severely after the first period in custody but did not have treatment. Her complaints had diminished within a year but still continued. She could go about her daily business. The subsequent periods of detention, when she had anticipated the same treatment, aggravated her complaints and at this time were restricting her daily life to a considerable extent. She was experiencing anxiety, would wake up frequently and had nightmares. She had developed a procedural pattern of avoiding men with beards, particularly men in uniform, thinking that they might be policemen.  In the psychological examination, manifest anxiety, pessimism, inability to stand and slight impairment of attention and concentration were established.  Pessimism and lack of self-confidence were also observed during the examination itself. Chronic post-traumatic stress disorder was diagnosed and medication prescribed (fluoxetin 20mg per day and an anxiolitic).  An appointment was fixed for the following month.

139.     In the examination carried out on 12 December 1995, it was found that her forgetfulness, trembling of the hands and anxiety were continuing. Her sleep had improved to some extent and she was less tense. She was advised to continue the treatment and to return in one month.

140.     At the examination of 12 January 1996, the applicant was still complaining of forgetfulness. Her trembling and anxiety had diminished. Her behavioural disorder of avoiding bearded men had improved and she was able to go out into society more easily.

141.     The applicant returned for a further consultation on 14 April 1996 at which she said her complaints had diminished considerably. She had no specific complaints. She was advised to continue with the medication for another two months.

Medical reports/prescriptions

142.     The applicant has provided documents relating to health and medical care since February 1994. These include:

- treatment at the Diyarbakır State Hospital by an ear, nose and throat specialist in relation to eczema on the ear and an infection in the respiratory system, which the applicant states was caused by the cold and pressurised water while in custody;

- treatment at the Medical Faculty at Dicle University, setting out diagnosis and prescription, relating to an infection and allergy which the applicant states was caused by the bandage used to blindfold her;

- treatment at the rural health centre in Mazidağı, relating to infection problems;

- treatment at a maternity home, concerning infection problems;

- treatment at a physiotherapy centre at the State Hospital, concerning the diagnosis for pains in her leg and a prescription, which she states originated with her treatment in custody.

143.     The dates, stamps and handwriting on these documents are however largely illegible.

X-rays

144.     In response to a longstanding request for the X-ray films submitted to the Turkish courts by the applicant in the criminal proceedings against her, the Government provided 3 items of X-ray film. One of them bears a stamp indicating the name of a doctor and his address in Diyarbakır. On two, there is a barely legible hand-written in red ink reference to Nebahat Akkoç with the date 23.2.94 - it is not apparent whether this was added contemporaneously or at a later date.

Report dated 5 June 1998 by Dr Meyer, (Service de Stomatologie Chirurgie Maxillo-Faciale et Plastique Reconstructive, Hôpital Civil, Strasbourg)

145.     This report was issued at the request of the Deputy Secretary to the Commission. There was no indication of any traumatic lesion on the three films, in particular no sign of any fracture of the jaw or calcification which would indicate a consolidated fracture. One of the films could not be usefully interpreted due to overexposure. In order to exclude any traumatic injury, it would be necessary to take new films identified as being of the applicant.

Report dated 19 March 1998 from the Dentistry Faculty, Ankara University

146.     The report, which refers to the examination of three X-ray films, stated that no fracture or crack had been established. It was signed by Professor Doctors Selahattin Or, Önur Icten and Reha Kisniçi.

Report dated 4 August 1998 by Dr  JD Langdon, Consultant Maxillofacial surgeon, King’s College School of Medicine and Dentistry

147.     In answer to a question put by the applicant’s representatives concerning the X-ray films, it was stated that the quality of the radiographs were not that bad and not so poor that it was impossible to match and compare them. They were undoubtedly of the same person.  They were certainly of an adult, but it was impossible to state whether they were of a male or a female.  However the lack of advanced periodontal disease led him to suspect that the films were of an adult no older than middle aged. He was unable to identify any injuries to the bone, or any significant fracture to the maxilla or mandible. Nor was there anything to suggest a fracture of the cheekbone.  The nature of the dental work suggested it had been done by a dentist trained in Eastern rather than Western Europe or North America, and probably carried out within the last 10-15 years.

148.     He did not find the prescriptions provided by the applicant to be helpful, since many were illegible and the drug names in Turkey were different from those in the United Kingdom. However it was clear that the applicant had severe traumatic stress and that she was appropriately treated with antidepressant fluoxetin and anxiolytic drugs.

149.     In his experience, most patients subjected to severe facial trauma were not even aware of the fact that they have broken their jaw bones even when this had occurred. In this particular case, it was quite likely that the applicant had been severely beaten about the face and could well have been left with severe pain and discomfort without having sustained a jaw fracture.

e) Other documents

Plan of Diyarbakır Anti-Terror Department

150.     This plan of the ground and first floor sets out the layout of the custody and interrogation areas.

Izmir Provincial police disciplinary panel decision 15 January 1991

151.     The 6 defendants, including Hasan Pikin, had been charged with beating and torturing persons in the security directorate between 2 and 15 September 1989 on the basis of allegations made by two persons detained in Buca prison. The panel found that the evidence showed that their injuries resulted from force used against their aggression and resistance to arrest. The accusations were held to be groundless.

f) the Susurluk report

152.     This report was drawn up by Mr. Kutlu Sava, vice president of the Committee for Co-ordination and Control, attached to the Prime Minister's Office, at the request of the Turkish Grand National Assembly committee dealing with the Susurluk incident. The report was issued in January 1998. The Prime Minister made the bulk of the report public, though certain pages and annexes were omitted.

153.     The report relates to concerns arising out of the so-called Susurluk incident, when in November 1996, there was a crash between a lorry and a Mercedes car at the town of Susurluk, and it was discovered that in the Mercedes car there were Sedat Bucak, member of Parliament and Kurdish clan chief from Urfa, Siverek district; Hüseyin Kocadağ, a senior police officer who was director of the stanbul police college, founder of the special forces operating in the south-east who had once been the senior police officer in Siverek; and Abdullah Çatlı, an former extreme right wing militant accused of killing seven students, who was at one time arrested by the French authorities for drug smuggling, extradited to and imprisoned in Switzerland from where he escaped and who was allegedly both a secret service agent and a member of an organised crime group.             

154.     In the preface of the report, it is stated that it is not an investigation report and that the authors had no technical or legal authority in that respect. It is stated that the report was prepared for the purposes of providing the Prime Minister's Office with information and suggestions and that its veracity, accuracy and defects were to be evaluated by the Prime Minister's Office.

155.     The report is summarised in Annex II to the present Report. In brief, it analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of Kurds and other unlawful acts by a group of "informants" supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug trafficking sphere. References are made to unlawful activities having been carried out with the knowledge of the authorities and express mention is made, inter alia,  of the blowing up of the Özgür Gündem and the killing of Behçet Cantürk (one of the financiers of that newspaper), Musa Anter and other journalists.

156.     On 23 April 1998, the Commission requested the Government to provide the pages (4, 68-71, 75, 77-80, 99, 103-104) and annexes of the Susurluk report which had not been made public. By letter dated 5 June 1998, the Government declined to provide copies of the missing pages and annexes of the Susurluk report, stating that the report, which concerned an internal investigation, was still confidential and the inquiry by the competent authorities into the allegations was in progress. It stated that giving the Commission a copy of the report at this stage might impede the investigations from progressing properly. Following a further request, the Government declined to make the missing extracts available subject to any necessary precautions to avoid prejudicing domestic enquiries.

157.     The applicant has referred to the Turkish newspapers, Milliyet, Hürriyet and Ülkede Gündem, published on 22 February 1998, which listed the journalists who were named in the missing page 75 of the Susurluk report. These stated that the journalists named in the Susurluk report were Cengiz Altun, Hafiz Akdemir, Yahya Orhan, zzet Kezer, Mecit Akgün, Çetin Abubay and Burhan Karadeniz. The Government have not denied the accuracy of these reports.

2)Oral evidence

158.     The evidence of the 8 witnesses heard by the Commission's Delegates may be summarised as follows:

(1) The applicant

159.     The applicant was born in 1953 and was resident in Diyarbakır.

160.     At about 23.30 hours on 12 February 1994, the police knocked on the door of the house where she lived with her two children. When she opened the door, seven officers with guns entered. She and her children were placed apart and they searched the house for two hours. One of the officers made nasty comments, particularly to her 13 year old daughter, saying things like, “Your father’s dead. They killed your father and now we’re going to take your mother...” Her daughter cried, asked to be put in the same room as the applicant and threw her arms round the applicant’s neck.  At the end of the search, they all gathered in the living room. Nothing had been found. One of the police officers took out a sheaf of papers from his pocket and placed them on the sideboard in the living room on top of the newspapers she had brought from the Turkish airlines flight she had returned on.  She and her children protested. The police officer stated that he had found the papers there and entered them in the record. There were several banned publications belonging to the PKK, Abdullah Öcalan’s posters. They asked her if it was true that she was standing as a candidate in the local elections and why. They tried to get her to sign the search record. When she refused unless they removed the reference to the papers which had been planted, they began to abuse her verbally. She thought they were going to hit her so told them that she would sign at the place they took her to, asking them not to insist and upset the children.

161.     At about 02.00 hours on 13 February 1994, they took her from the house. As they descended the stairs, they pulled her anorak over her head, tying the sleeves to blindfold her. She was put into a minibus, forced onto the floor, with her head pushed down between her legs. She was taken to a hospital and a medical examination carried out.  The examination consisted of standing in front of a doctor, who looked at her and wrote the report. She was not examined at all. She was blindfolded, this time with a bandage, and taken to a place. People were waiting for her there. They started pulling her hair.  They said that they had heard that she was a DEP candidate. She was beaten, put in a cell alone. She was stripped naked, and body searched. After a couple of hours, she was taken out and placed in a hot, bright room, still blindfolded.  There were a lot of people around. She was asked if she was a candidate. She said that she was not. Then they said that she was involved with the PKK, saying the name of a person who had given her name. She was insulted for several hours and taken back to her cell.  She was not blindfolded when she was alone in the cell but when they knocked on the door, she had to turn her back and walk backwards so that one of them could blindfold her.

162.     Practically every night, except the last two nights when she was very unwell, she was tortured. One night, when she was stripped naked for the third time, she was taken down a long corridor, between two rows of policemen, who pawed her and said things like, “We’ll provide our special guest with a special service.” There were cold water jets. Freezing water from a barrel was thrown on her. Afterwards, they threw what seemed very hot water from the tap over her. She used to collapse and they would drag her back to the cell and tell her to put wet clothes back on.  One night, they took her back before she had finished getting dressed. She asked them why they were doing this and they referred to her husband being mixed up with dirty business. The water jet treatment was often followed by electric shock treatment (which she received practically every night).

163.     She did not remember the dates very well. It was hell. She lost her sense of awareness. The torture was intensive until a particular time, when they announced the names of the DEP candidates, about 19 February.  On one night, possibly the third or fourth, they told her that she had had a nice rest and handcuffed her to the door of a cell. After a while, when she was exhausted, they gave her a chair. This was very near the rooms where they tortured people. For two days and two nights, she listened to the voices of women and youngsters being tortured. She tried to cover her ears using her shoulders, bending her head but they kept telling her to stand up straight. She was kept there continuously save for when she was taken to the lavatory or once when they gave her a mop and told her to clean the floor.

164.     One night, there was a session of hot and cold water.  When the very hot water filled her ears, she felt a terrible burning sensation and put her hand up. They thought she was trying to take off the blindfold and one of them gave her a terrible punch on the chin, on the right-hand side. She remembered spinning and falling to the floor. She sensed that they were agitated, wondering whether to call a doctor or if she had fainted. She did not lose consciousness completely.  The person they said was a doctor pressed his foot in her stomach hard a couple of times. She was forced to say that she was alright. She felt terrible pain and was breathless. Blood was running down her head.  She had four bumps on her head and a terrible throbbing pain in her jaw.

165.     The cold water came out of a thick hose under high pressure with such force that she could not stand, and they used to maintain it for a long time until she was shivering and her teeth chattering. The hot water was thrown over her in buckets. She could not say exactly how many times she received an electric shock. It was practically always after the water treatment. They attached something to her big toe, and once to her nipple. They once tried to suspend her but when they saw the scar on her abdomen they asked if it was from an operation, which it was, and quickly took her down. They also hit her and pulled her hair - that was customary. Also they floodlit her cell, which was a terrible thing. There was also the sound of loud music, and then the screaming when the music was switched off. Since she was released, she had changed all the light bulbs and also disconnected the doorbell as she could not stand the noise. She could not listen to music again for a long time.

166.     She was questioned about two things, about being a DEP candidate and in connection with her application to the Commission. She was asked about the faxes sent via the HRA. At one point they took her blindfold off[4] and showed her a piece of paper in which she had appointed Kevin Boyle as her legal representative, with her signature - it looked like a copy of a faxed message. They asked who Kevin Boyle was. They asked why she complained, saying that it was the same thing as taking a gun and going to the mountains. She told them that she had asked the public prosecutor to protect them without success and that she has no other choice than to apply to the Commission.

167.     Two days later, at night, she and others were taken out to a common room. They were filmed with cameras with guns and bombs. They were being presented as terrorists who carried out bombings. The clip appeared on the television news and she was recognisable, though her back was to the camera. She saw it herself the Thursday evening after her release. During her detention, they took photographs of her naked and said that they would distribute them to the press.

168.     During the last two nights, she was not tortured as her head was split open and she was in a terrible state. She had not signed anything yet. They kept telling her that her children were there and that they would be tortured. She was made to listen to voices. She got to the stage where she banged on the door and said that she would sign anything. They brought her papers and she signed without reading them. After that the voices stopped.

169.     When she had arrived at the place, she had gone upstairs. After that, she was always on the same level.  When she was taken to lavatory, the blindfold was removed there. She saw a kind of partition there where there were hoses and a barrel of water, with ice on the top. She realised it was there where she was subject to the water treatment. A couple of times she went from her cell to the lavatory without the blindfold. Her cell was the first or second after the desk of the duty officer. She passed rows of cells and a couple of other rooms. The room immediately next to the lavatory, or one of the next ones, was where she was taken for electric shock treatment.  When the cold water was applied, she felt that the floor was mosaic cement.  When they applied electric shocks, she was made to lie on the leather-covered thing.  In that place, it also felt as if the walls were covered with leather. It was a different place that they tried to suspend her.  She was taken to the interrogation room on the first night, and subsequently, either before or after being ill-treated, though a few times she was so exhausted that she was put back in her cell without being interrogated. There, she sat on a chair. There were bright lights, it was very hot and they insulted and shouted at her.

170.     Before going to the public prosecutor, sixteen of them were taken to the casualty department for a medical report. This was at about 02.30-3.00 hours. There had been a seventeenth, who had been told to go - he had received blows and was vomiting all the time. The sixteen who remained were lined up and told that, when the doctor called them in, they had to say nothing was wrong or they would be detained again.  The doctor asked them altogether if they had any complaints and if anyone wanted a medical examination. She was the only one who said that she did. She went into his office and told him to feel her head, which he did. Other than that he did not touch her. There were four noticeable bumps and bleeding. She showed him her toe, which had been hit with a stick and was infected, with an abscess under the nail.  He said that he would write a report. She was taken straight out by the police officers. When she saw the public prosecutor, she told him that there was a report in the file but he examined the file and said that there was not. She was astounded, not having thought to take the medical report in her own hands. She showed her foot to the prosecutor. She asked him to feel her head and told him the thing which had affected her most, that they had taken photographs of her naked. She told him her jaw was very painful.  The prosecutor felt her head, asked her to sit down and was most affected, his eyes filling with tears. When he left, he said that he hoped she would feel better soon. She was hit a few times on the way back because she had asked for an examination.

171.     When she was released, she was tremendously relieved to find her children had not been detained. She also felt that the public prosecutor believed her and was not worried about getting a report. She went back to her mother’s place and stayed in bed. She had terrible pain, unable to open and close her jaw. She went to an ENT specialist as she thought that she had a throat infection from the cold water sessions. He noticed the pain in her jaw and arranged for an X-ray within an hour. He told her that her jaw was cracked but the fissures were not serious and would heal. He prescribed her painkillers. However when he asked her how it had happened and she told him that she had been in custody, the doctor tore up the prescription. She had not even asked him for a report.  He told her to go to the mandibular surgery in the university. She went to the university clinic the next day since she was in pain. She explained that she had been in custody and just wanted an X-ray without a report. The surgeon agreed to see her after working hours without registering the consultation. He took an X-ray and prescribed treatment.  Since that time, she has had problems with her lungs, kidney, ear, nose and throat and the muscles of her right leg have stiffened to some extent.  No reports had been provided when the X-rays were taken, on either occasion.

172.     Even though time passed, she had not been able to forget the screaming.  After she was detained twice more in 1995, she went to the Human Rights Foundation and received psychotherapy for 7-8 months.

173.     A few months afterwards, when she was tried, she went to give a statement at Mardin Assize Court. She gave details of her ill-treatment but they only recorded one sentence - “She states that she was tortured.” She had asked for the first X-ray that was taken by the private doctor to be added to the State Security Court file. She could not remember what happened to the second X-rays from the university hospital. Her children also gave evidence at Mardin about the police planting the documents at the house. After about two years, it was decided that she was not a member of the PKK and the charge was changed to one of “assisting and harbouring”. She was sentenced for that. The case was being appealed to the Court of Cassation. When asked by the Government agent why she did not go back to the public prosecutor who had sympathised with her and ask him for a forensic medical examination, she said that she did not have the courage to go to the State Security Court building - there were police officers, secret police outside.  She also thought that the public prosecutor had good intentions, that there was some justice. She also had had a bad experience, when the public prosecutors did nothing to protect her husband.

174.     She particularly remembered what happened later on 26 September 1995 as it was her daughter’s birthday and she had been preparing for the birthday party.  She went to call on the headmaster of the school where she had worked for 12 years, as she had heard that he was leaving and wanted to give him a small gift. While she was chatting with her colleagues, some-one said that the police were sealing off the area. She decided to go home. The headmaster offered to take her.  They drove out of the school. She noticed members of the security police looking at them. On the ring road, a police minibus intercepted them, light flashing, siren blaring, almost causing them to crash. As they stopped, two civilian cars with police officers arrived. The police officers said that they had received information about them and were going to carry out a search. They searched the car, her handbag and the headmaster’s briefcase. When they said that they were taking her to casualty, she collapsed thinking her son had been injured. They told her that it was to get a medical report.  The headmaster was taken with her. When she was with the doctor, she heard him remonstrating with the police officers. They told him that it was to do with her, not him.

175.     After seeing the doctor, they were taken to the security directorate, to the Anti-Terror Department. She was stripped naked and searched by a policewoman. They would not let her telephone. When it was evening, they blindfolded her and took her downstairs. They were very polite and treated her very carefully. She was taken into interrogation. It was brightly lit and she could feel that there were a lot of people around. They said, “We hear you told them you were tortured.” They asked particularly about the sexual harassment. They asked whether she had been able to peep under the blindfold, whether she could identify anyone who had been involved.  They said that they had heard that she was complaining to Europe and that she had talked to the provincial governor. She was taken to a place which was terribly cold. After a while, she felt as if the organs in her body had ceased functioning and she fell on the floor. A woman came in and massaged her gently. She was taken back to her cell.  Apart from that, she was not ill-treated. She was only asked about the torture in February 1994, nothing else. They said that they had misjudged her, that they had thought she was a member of the organisation but now they wrote that she was not involved with the PKK.  They said that from now on they would make sure detainees read what they wrote. She signed the statement they drew up.

176.     The next day, she was blindfolded again and taken to see a doctor. She told the doctor that there was no need to examine her, as nothing had happened but she had him check her blood pressure, which was a bit low.  Two days after the incident, she felt a pain in her leg. She went to physiotherapist who said the muscles in her right leg had weakened. She had treatment for 10 days.

177.     She was taken into custody on a third occasion. The HRA Board had published a peace bulletin on 1 September 1995. The members, of whom she was one, had signed it.  At about 02.30 hours, in the night of 13-14 October, there was a knock at the door. It was the police who said she had to come and make a statement. When she asked for details, they said she would make the statement on Monday but that she had to come with them then (Friday night-Saturday morning). They seemed to feel awkward about it but said that was the way it was, that they had their orders. She was taken to a room in the security headquarters, which had two sofas and a carpet. She spent the night there. On Saturday afternoon, she was taken to the top floor. She was offered tea by a police chief, who explained that they heard that she was going to run away to Ankara and that the prosecution department instructed that she should be held for two days. However, he realised that she would not abscond and said that if she signed a paper she could go home. She signed a paper stating that she would return on Monday and went home.

178.     At 08.00 hours, she returned with her mother. She saw the inspector she had seen before and he ushered them in as visitors with a visitor’s pass. He brought them tea.  A couple of police officers came through an iron door, which she presumed led towards the cells. When they saw her, they stiffened and kicked the door closed. They were kept waiting for until midday, when they were brought bread and cheese. At about 14.30-15.00 hours, her mother, who was diabetic, began to feel unwell. She began kicking the door, asking for it to be opened. When they opened the door, the police officers helped take her to the washroom and gave her water.  With tremendous fuss, they took them within five minutes to the hospital and got a report about the applicant, not her mother. She was then taken to the public prosecutor’s office. She asked him why she had been detained before. The prosecutor apologised, stating that he had only given instructions for her to present herself at 09.00 hours at the State Security Court but that the Anti-Terror Department had the authority to act that way. The prosecutor asked her about the peace bulletin, though she did not know if she was a witness or a defendant. She said that she had participated in preparing it.

2) Elif Elç

179.     The witness gave her age as 64. She was the mother of the applicant. The day after the applicant was detained, she heard from the children that the police had come to the house, searched it and taken the applicant away. The children said that the police had put down a magazine which had not been there before. They waited for the applicant to return. When ten days later, the applicant returned home, she was in a terrible state. She was absolutely exhausted, she had three or four swellings on her head, which was split open in one place and one of her toes had gone septic, the nail falling off later. She stayed in bed at the witness’s home for a fortnight. She was afraid after that and two months later moved house. They could not leave her on her own.

180.     The applicant told the witness that she had been tortured a lot, unspeakable torture. She had been stripped naked. Her head was split open, there was swelling. She could see that there had been bleeding. Apparently they’d washed her hair before taking her to court. Her jaw was cracked. There had been hot water, cold water. The applicant had been to see several doctors but when they learned that she had been detained they tore up the reports. They did not issue reports because they were afraid. She did not manage to get one. She first went to the doctor two-three days after her release.

181.     The witness and the applicant went to the Governor to complain later about the threats which the applicant was receiving- they used to make threats against the applicant and the children and abuse her.  She witnessed her daughter receive one of these telephone calls. The Governor kindly said that he would do something about it. There were no threats for a while after that.

182.     The police took the applicant away again at night, keeping her for one night and then releasing her. They came three weeks later, saying that she had been summoned to give a statement to the public prosecutor. She was released after one night, being told to come back at 08.00 hours on Monday morning. The applicant phoned her and asked the witness to come with her. They went to the Security Directorate together. They waited in a room, with the door closed. At about 12.00 hours, they gave them bread and cheese and locked the door again. Towards 15.00 hours, the witness cracked, telling her daughter that she could not hold on any longer. The applicant banged on the door several times. When a police officer opened the door, the witness asked whether they were under arrest and said that they had not had any water or gone out since 08.00 hours. The police officer said that they were not under arrest. The witness fainted. The applicant helped her to a sink, where she could wash her face and hands. After that, they were taken to the prosecution department. They said it was about a signature on a peace document and that they wanted to know if it was the applicant’s. She could not remember the exact date of this, though it was probably in the winter.

3) Ramazan Sürücü

183.     The witness was born in 1950. He had been the Head of the Provincial Anti-Terror Department in Diyarbakır since 1993.

184.     The witness had not seen the applicant when she was taken into custody in February 1994 but she had been detained with his knowledge. He remembered the operation concerned. It was a major operation, in which they obtained evidence and seized military equipment and documents relating to the PKK. They had received information from a terrorist in their custody that there was quite a lot of material at the applicant’s home, which his colleagues went to seize.

185.   He stated that there was no blindfolding during interrogations. The interrogators were trained, experienced people, who knew the regulations. It was impossible for an interrogation room to contain anything but the chair on which the detainee sits and the desk at which the interrogator sits. There was a bright spotlight behind the interrogator, to prevent the interrogatee from recognising the interrogator.  Notes were taken by pen, not by a typewriter which would be too noisy. In the case of the applicant, the interrogation team consisted of two persons. There had been complaints of ill-treatment of detainees. In fact, the two interrogators of the applicant had been prosecuted as a result of the applicant but a decision of lack of grounds was delivered. There may have been other complaints but no police officer had been convicted of ill-treatment.

186.     The procedure was that when a person was arrested he was taken to get a medical report. When he arrived at the investigation centre, the officers on duty entered the name in the register. Forms were filled out for the detention monitoring unit which had the role of notifying relatives and answering enquiries by lawyers, for example. When the person exited the detention centre, the officer on duty filled in the section for exit details, for example, “discharged” or “gone to court”. It was the role of the custody officers to take out persons who were required for interrogation. There was no record of when persons were taken out or to which areas within the security directorate. There were two floors at that time in the interrogation centre.  The cells, toilets and interrogation rooms were together on one of the floors. At the end of the interrogation period, a statement was taken from the person and when it got to the stage that the person was to be brought before the State Security Court, they obtained another medical report specifically to ensure that the police were not suspected of anything. The doctor who was under a professional oath would write down any marks he saw on the body and refer the person for appropriate treatment.  The doctor was alone with the person.

187.     When shown the referral which he had signed requesting medical examinations of the list of suspects including the applicant, he agreed that the same sort of thing was generally used. It could be possible that a more individualised report was made, perhaps where a detainee complained of being ill while in custody and was referred to the doctor and given treatment. During the day, medical examinations of detained persons were carried out at the Department of Forensic Medicine and at night by the doctors on duty at the State hospitals.

188.     The witness knew nothing about the document allegedly shown to the applicant during her detention. There had never been any torture or anything like that in the Directorate.

189.     When asked about the detention of the applicant on 27 September 1995, he stated that she had previously been taken into custody in a major operation and she and the person with her attracted the attention of the team who stopped them and took them into custody. There was also the factor that the unit were wondering exactly what was her relationship with the person accompanying her.  A document was found on her person, when she was taken into custody. Although she was retired, she had a forged document, stating that she worked in a school, which she explained she had produced to take advantage of reduced air fares.

190.     When they detained her again, it was because of the document from the State Security Court instructing them to make sure that she presented herself. His colleagues told her, since it was a Friday, that she could go home but come back on Monday. When it was pointed out to the witness that the applicant alleged that she was not released until Saturday, he thought the delay could be explained by procedures that had to be carried out, such as medical examinations.

4) Taner entürk

191.     The witness was born in 1967. He had been an inspector in the Anti-Terror Department of the Diyarbakır Security Directorate since September 1992. His duties related to interviewing, interrogation and the taking of statements. He never participated in arrests. No-one was ever blindfolded during interrogations. There were about five-six interrogation rooms. When he wanted to talk to a suspect, he informed the custody officer who brought him to the interrogation room. When the interrogation finished, he let the custody officer know and he came to take the suspect back to his cell. They only used the bright light with defendants they considered to be dangerous. There was no reason for the custody officer to conceal himself from suspects. He would not answer why security precautions were not taken to protect other police officers from terrorist suspects when they were considered necessary for the interrogators. At another point, he stated that it was not that they had not thought of it but that there was no means to ensure the suspect did not see them.  The suspect sat facing the door, with the lights towards him. When the interrogator stood up to go to the door,  the suspect would be unable to see him.

192.     No dates or times of interrogations were noted.  There were about 120-130 officers in the Anti-Terror Department, over 30 involved in interrogation teams.  The head of the interrogation office, the Head of the Department, the Security Chief, the Deputy Security Chief, the public prosecutor, the Governor - his superiors - all had the authority to be present during an interrogation.

193.     He, with his colleague Hasan Pikin, conducted the interrogation of the applicant. He was the chief of the team.  There was a third person, Cuma Kaya, who helped with the statements of the other suspects but not the applicant. They could have interrogated her five, six or ten times. They took her and talked to her umpteen times. As a result of statements from other people, they wanted to get information from her again and again. They asked her questions about the documents and material found in her house. It was not possible that they asked questions about her application to the Commission. He had only heard about her application the week before the hearing. The applicant was definitely lying when she alleged that she had been severely ill-treated. He could prove she was lying since she had forged a document stating that she was still working even though she was retired. A person who obtained a forged document could also tell lies. She also had not obtained a medical report about the alleged torture.

194.     When the applicant came back to the Directorate later, he saw her but was not involved in interrogating her. The notes which were taken by him during interrogations would generally be destroyed after they had been used to compile the statement of the suspect. Until the applicant, there had never been any allegation against him of ill-treatment. During his four years there, none of his colleagues had been found guilty of torture. He thought that there had been one or two, not more than three, prosecutions.

5) Hasan Pikin

195.     The witness, born in 1957, had been a police officer in Diyarbakır since July 1991.  Before the applicant’s case, he had been accused twice of allegations of ill-treatment but acquitted twice - once in Izmir and once in Diyarbakır. None of his colleagues had been convicted.

196.     He remembered participating in the interrogation of the applicant who was detained in connection with an illegal organisation. He did not remember how many times. It could have been several times a day. She was not blindfolded. Blindfolding never occurred in their headquarters.  She was definitely lying about the ill-treatment.

197.     There were four interrogation rooms at the time, which were on the same level as the cells.  There were about 20-25 officers involved in interrogation. When asked whether the suspect sat facing the door or with his back to the door in the interrogation room, he answered that the suspect sat diagonally, with his back slightly turned. They did not take notes of the time or date of interrogations. Notes were taken during the interrogation and one statement drawn up at the end of the period. These notes were kept in the archives and kept for probably not less than five years. He had never seen any document about the European Commission of Human Rights. The applicant was lying about that. There was no female officer on duty in the custody area 24 hours a day - if a female detainee needed anything, they called the necessary female duty officer from other departments. There used to be 64 cells but after signing the European Convention they were reduced to 14.

6) Ridvan Güler

198.     The witness, born in 1952, had been chief of the Diyarbakır Security Directorate since 19 November 1993.  He had never met the applicant. He had received information that she had been taken into custody. He learned first of her application to the Commission when he had received the papers summoning him to give evidence.  He did not accept the word “torture” in connection with the interrogations carried out. Interrogations were conducted normally. If there was any ill-treatment, it would be established in the medical reports at the end of their period of custody.

199.     When asked why the applicant was taken into custody in September 1995, he said that they apparently had received information. There was an extensive operation being carried out in connection with the PKK. The applicant would not have been questioned about belonging to the HRA which was not illegal.

7) Hüseyin Orhan Buldağ

200.     The witness, born in 1968, had been a general practitioner at Diyarbakır State Hospital Casualty Department in February 1994. When shown the report dated 21 February 1994, he stated that he had cases like that - where they had to issue medical reports pertaining to detainees - every time he was on duty. He confirmed it was his handwriting and his stamp.  He could not remember the applicant as there had been a constant flow of such cases. There were about 25 doctors on the casualty staff. They already had a heavy workload and did not want to take on forensic medical duties but had been involved in the procedure by the Health Directorate and the provincial government. That involvement had caused some controversy in the Health Directorate. He knew however that there were not enough forensic physicians.

201.     The procedure was that the detainees were brought in collectively by the police and asked to wait at the outside door. They were taken inside one by one, behind the curtain in the examination room. The police could not come into the place where examinations took place.  They waited just outside for security reasons. The curtain was closed and the outside door open. They tried as much as possible to maintain the privacy of examinations. A group of 20 persons took about one minute per person. It took longer if there were injuries requiring further examination, such as X-rays. During this minute, the person was brought in and asked to undress. The doctor looked to see if there were any signs of violence or blows - a physical examination. A collective report was written if there were no signs. A name was written separately if there were marks and the location of the injuries noted. He did not ask the suspects the reason for any marks. He had seen cases in which there were marks of serious ill-treatment, as having been caused by others but qualified this by saying that this could happen in ordinary fights or in normal arrest circumstances. When asked if anyone had ever complained to him of ill-treatment, he said that he had never seen it and anyway they did not ask the suspects directly about it.  They could not rely on what a person said, one way or another. The purpose of these examinations was to establish that a person left the police in good health. In respect of those persons on whom he saw blows, he did not ask how the blows were caused and he did not know if there were judicial proceedings as a result.

202.     They were never given advance notice of detainees arriving for examination. They came from 17.00 hours until 08.00 hours. The numbers varied but it was not particularly unusual to have a group of seventeen. It occurred practically every night. If the ward was busy, only one of the doctors looked at the forensic cases, otherwise the two doctors on duty might be involved. They were brought individually into the cubicle. The men were asked to strip, the women kept on their underclothes. They looked for recent conditions, physical conditions which could be verified by sight directly and this did not require much time, unless there was an injury to examine more closely. The witness seemed to agree that if a bruise was found the person would be asked how it occurred but stated that the phenomenon would speak for itself and the most important thing was what they observed.  In answer to questions by the applicant’s representatives, he stated that the detainees were asked first, in order to put them at ease, where they have had any blows anywhere but they also examined them.

203.   When the applicant’s allegations about her injuries and the examination were put to him by the Government Agent, the witness stated that he was under professional oath and bound to examine persons. He did not remember the incident as described and did not believe any such thing occurred. He would never write that a person who had received a mark from physical violence was healthy. He did remember the name of one of the detainees in the list with the applicant - Metin Akar who was their Health Director. He remembered that they came in a large group at about midnight-01.00 hours and he talked to Metin Akar, who was respected and well-liked. He did not have any conversation as alleged with the applicant. Her allegations were unfounded. In previous cases, when he had found marks, he had reported it. He had come across such marks only very occasionally. He had seen none in the last four or five months, for example. If an injury was found on a person, a separate note was drawn up, in which the injuries were described.  There were three copies of the report as completed by the doctor - one kept in the forensic office, the security officers taking the remaining two. He presumed one went to the public prosecutor. The report was written at the desk in the casualty ward. The nurse would call in the police, waiting at the door, to receive it when it was finished. The detainees would have been taken out by then.

8) Enver Atlı

204.     The witness, born in 1945, was a retired teacher. He had been headmaster at the primary school where the applicant had worked for 13 years. She retired from there in November 1993 - she told him at that time that she had completed her 20 year’s service, was tired, unwell, her husband had been killed and she had to look after the children. She used to come and visit occasionally after that.  She came on 26 September 1995 bringing him a gift as she had heard about his transfer to Izmir. It was at about 15.30 hours, half an hour before the end of school. He said that he would drive her home.  On the road into Diyarbakır, a police minibus and two cars blocked their way. They said that they had received information about the car and searched it. Afterwards, they drove the car to the Security Directorate where it was searched again.  They were taken to the health centre at Dağkapı for a medical examination.  The police took their belongings and he was held in one place, the applicant in another.  After a couple of hours, they were taken out and driven to a place he did not know - he estimated about 2 km away.  They spent the night there. During the night, he was questioned about his relations with the applicant, whether she was a member of the PKK. At about 16.30 hours, they were taken to the casualty department at the hospital and examined again. After that, they were taken back to the Security Directorate, their belongings were returned and they were released at about 18.30 hours.  The applicant told him that she did not know why they had taken her into custody but said they asked her things like, “Where are you going? Why are you going to Europe?”.

205.     During the questioning and  as he was leaving, he was blindfolded. The blindfolds were removed when they came to the shopping area and the city centre, and also when he was left in a cell. The blindfolds were replaced when they went to the lavatory. Except when they were moved around, he and the applicant were held separately, though he could hear her coughing and knew she was nearby to his cell.  At the medical examination before his release, the doctor asked if he had anything physically wrong and he said no, so it was not a full examination. As he had no complaint of any kind, the doctor did not dwell on it.  The doctor did physically examine him to see if there were any marks. 

Witnesses who did not appear

206.     The Commission's Delegates had also called as witnesses:

- Doğan Hatipoğlu, formerly Diyarbakır governor

- Ahmet Baaran, public prosecutor.

207.     By letter dated 28 June 1996, Mr Hatipoğlu stated that he took office on 4 July 1994 and did not witness the incidents which took place. By letter dated 14 November 1996, the Government informed the Commission that Ahmet Baaran had died in August 1996.

C.Relevant domestic law and practice

208.     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 published in Reports 1998).

1. State of Emergency

209.     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.

210.     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.

211.     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

212.     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).

213.     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

214.     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.

215.     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 210 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution 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

216.     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.”

217.     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.

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

5. Civil law provisions

219.     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.

6. Restrictions on civil servants’ freedom of expression

220.     Pursuant to the Law 657 concerning state officials, Article 125-D/g provides for the stoppage of promotion of such officials in respect of “the giving of information and statements to the press, news agencies or radio and television institutions when not authorised to do so”.

D.Relevant international material

221.     The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The first two visits in 1990 and 1991 were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources, containing allegations of torture or other forms of ill-treatment of persons deprived of their custody, in particular, relating to those held in police custody A third, periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT’s reports on these visits, save for the visit in October 1997[5], have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. Its visits in 1990, 1991, 1992 and October 1994 each included visits to the Diyarbakır police headquarters and the interrogation centre of the first section of the Diyarbakır police.

222.     The CPT has issued two public statements. In the first public statement, adopted on 15 December 1992, it concluded that the continuing failure of the Turkish authorities to improve the situation in light of its recommendations concerning (i) the strengthening of legal safeguards against torture and other forms of ill-treatment in  police (and gendarmerie) establishments and (ii) the activities of the Anti-Terror Departments of the Ankara and Diyarbakır police, justified resort to the issuing of a public statement under Article 10 para. 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The first public statement

223.     In its first public statement, the CPT reported that on its first visit to Turkey in 1990 it reached the conclusion that torture and other forms of severe ill-treatment were important characteristics of police custody. Specifically, it concluded that detectives in the Anti-Terror Departments of the Ankara and Diyarbakır police frequently resorted to torture and/or other forms of severe ill-treatment, both physical and psychological. It noted that the following types of ill-treatment, inter alia, were alleged time and time again - palestinian hanging, electric shocks, beating of the soles of the feet (“falaka”); hosing with pressurised cold water; incarceration in very small, dark, unventilated cells; severe psychological humiliation. It emphasised that its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention. It stated that on its second visit in 1991 it found no progress had been made in eliminating torture and ill-treatment by the police. It concluded that torture and other forms of severe ill-treatment continued unabated in the Anti-Terror Department of the Ankara and Diyarbakır Police. Many persons made complaint of similar types of ill-treatment - an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. It stated that on its third visit ( a periodic visit) in 22 November from 3 December 1992 its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases, including a prisoner at Adana prison who displayed haematomas on the soles of his feet and a series of vertical violet stripes (10cm long, 2cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. In Ankara police headquarters and Diyarbakır police headquarters it found equipment consistent with use in torture and the presence of which had no other credible explanation. In Diyarbakır, the delegation found the equipment necessary for suspension by the arms in place and ready for use.

224.     The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey.” It recommended, inter alia, that public prosecutors should react expeditiously and effectively when confronted with complaints of torture and ill-treatment. In order to facilitate this, the medical examinations of persons in custody carried out by the Forensic Institutes should be broadened in scope (medical certificates should contain a statement of allegations, a clinical description and the corresponding conclusions) and appropriate steps should be taken to guarantee the independence of both Forensic Institute doctors and other doctors who perform forensic tasks, as well as to provide such doctors with specialist training. It commented very strongly on the lack of protection offered by Turkish law which allowed suspects in the emergency regions suspected of offences falling under the jurisdiction of the State Security Courts to be held for up to 30 days, during which time they were routinely denied contact with the outside world.

The second public statement

225.     In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegations’ forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. They noted the cases of seven persons who had been very recently detained at the Anti-Terror Department at Istanbul Police Headquarters which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible.

226.     The CPT concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.  The CPT made particular reference to the role of doctors:

“Particular reference should be made to the work of doctors appointed by the State to carry out forensic tasks, a matter to which the CPT has given considerable attention in the course of its dialogue with the Turkish authorities. The present system of detained persons being routinely examined by a forensic doctor at the end of their period of police custody is, in principle, a significant safeguard against ill-treatment. However, certain conditions must be met: the forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope. If these conditions are not met - as is frequently the case - the present system can have the perverse effect of rendering it all the more difficult to combat torture and ill-treatment.

A series of Circulars have been issued by the Ministry of Health on this subject; in particular, a Ministry of Health Circular of 22 December 1993 - subsequently endorsed in the Minister of the Interior’s instructions of 16 February 1995 - sets out the required contents of forensic certificates drawn up following the detention of persons detained by law enforcement agencies. Despite this, the great majority of forensic certificates seen by the CPT over the last three years have not met the requirements of that Circular.

Measures need to be taken to ensure that there is full compliance with all the above-mentioned Circulars and, more generally, that doctors called upon to perform forensic tasks can carry out their work free from any interference. Further the necessary resources should be made available in order to allow the training programme for doctors called upon to perform forensic tasks - recently devised by the Ministry of Health - to be implemented throughout Turkey without delay.”

227.     The CPT again stressed the need for public prosecutors to react expeditiously and effectively when confronted by complaints of torture and ill-treatment and the need for the reduction of maximum periods of police custody.

CPT report on its visit to Turkey from 5 to 17 October 1997

228.     The CPT addressed in this report, inter alia, its concerns about the forensic examination of persons in police custody, emphasising that examination of persons in custody by a doctor can be a significant safeguard against ill-treatment, provided the doctors concerned enjoy formal and de facto independence, have a mandate which is sufficiently broad in scope and have been provided with specialised training. It had found however that the standard forensic medical form set out in the Ministry of Health circular of 25 January 1995 was not used in many forensic services, the doctors recording their findings on a piece of paper devoid of headings, omitting to record the allegations of the detained person and failing to draw conclusions. It recalled that it had previously stressed that it was essential for forensic certificates drawn up after examination of a detained persons to contain an account of the relevant statements of the detainee, an account of the objective medical findings based on a thorough medical examination and the doctor’s conclusions in light of those two elements, which should include an assessment of the degree of consistency between any allegations made and the objective medical findings.

229.     It expressed the hope that generalised use of the standard forensic medical form would put an end to the collective forensic examination of groups of detained persons, of which undesirable practice it had found some evidence during its visit.   It had also noted the practice existed that forensic examinations were conducted in the presence of the police officers who had brought the detained person and that the doctor handed an open copy of the report to the police officers with the detained person. It stressed that examinations should always be conducted out of the hearing of police officers and also out of sight of the police officers, unless the doctor requested otherwise in a particular case. It welcomed the steps taken to ensure that the forensic reports be forwarded in sealed envelopes to the public prosecutor and the head of the police department concerned.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

230.     The Commission has declared admissible the applicant's complaints:

- that there has been a violation of the applicant’s freedom of her expression through the imposition of a disciplinary sanction by the Diyarbakır Provincial  Education Disciplinary Committee on 14 May 1993;

- that her husband, Zübeyir  Akkoç, was killed;

- that there is no access to court or remedy available in respect of these matters;

- that there has been discrimination disclosed in the circumstances of the killing of her husband and lack of access and remedy in respect of that;

- that there has been an interference with her property rights due to her inability to obtain damages or a widow’s pension;

- that she was tortured during her period of detention in February 1994;

- that she has been subject to intimidation and harassment by the authorities in hindrance of her right of individual petition.

B.Points at issue

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

- whether there has been a violation of Article 10 of the Convention;

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

- whether there has been a violation of Article 6 and/or 13 of the Convention;

- whether there has been a violation of Article 14 of the Convention in conjunction with Article 2, 6 and/or 13 of the Convention;

- whether there has been a violation of Article 1 of Protocol No. 1 to the Convention;

- whether there has been a violation of  Article 3 of the Convention;

- whether there has been a failure by the Turkish Government to comply with their obligations under Article 25 of the Convention.

232.     The applicant has also invoked, in her recent observations on the merits, Article 13 in respect of the alleged failure to investigate her allegations of torture and Article 18 of the Convention in relation to alleged monitoring by the authorities of the applicant’s correspondence in relation to her application to the Commission.

C.Concerning the disciplinary proceedings against the applicant

As regards Article 10 of the Convention

233.     Article 10 provides:

"1.Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.              The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

234.     The applicant submits that the decision by the Diyarbakır Provincial Education Disciplinary Committee on 14 May 1993, as upheld by the courts, violated her right to freedom of expression. She submits that the penalty imposed on her, and the penalties which were permitted under Law No. 657 were not necessary in a democratic society. No other Contracting State imposes restrictions on the freedom of teachers and civil servants to address the press as in this case and there are no extenuating circumstances particular to Turkey which justify the measures. Since the withdrawal of the derogation in respect of Article 10 on 5 May 1992, the Government can no longer claim that the State of Emergency provides such justification. Further, the statement in question concerned a matter of considerable public importance, made in good faith and on facts of which she had direct knowledge. Her conduct was in no way irresponsible and the measure acted only as a measure of arbitrary censorship.

235.     The Government submit that the exercise of the right of freedom of expression is subject to duties and responsibilities. The applicant was a civil servant. The case concerned restrictions related to the status of civil servants. As a teacher, the applicant had an important role in the diffusion of ideas and should have taken her special position into account and respected its responsibilities. She made her statement as an official of Eğit-Sen whose authority and competence has not been recognised. The aim of the restriction was that of maintaining public order and was necessary in the circumstances. The penalty imposed was the minimum - a suspension of promotion for one year and was proportionate to the act impugned.  Accordingly, there was no unjustified interference with the applicant’s rights under Article 10.

236.     The Commission finds, first of all, that the imposition of a disciplinary sanction on the applicant in relation to a statement made by her to, and reported by, the press discloses a restriction on her freedom of expression within the meaning of Article 10 para. 1 of the Convention.

237.     Where measures constitute restrictions on the freedom of expression guaranteed under Article 10 para. 1 of the Convention, the Commission recalls that the question arises whether such restrictions were prescribed by law, pursued legitimate aims under Article 10 para. 2 and were "necessary in a democratic society" in order to realise those aims.

238.     As regards the criterion "necessary in a democratic society", the Commission recalls the following principles adopted by the Court (see, e.g., Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997, para. 51):

(i) Freedom of expression, as enshrined in paragraph 1 of Article 10 constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is applicable not only to "information" or "ideas" that are favourably received or are regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad‑mindedness without which there is no "democratic society".

(ii) The adjective "necessary", within the meaning of Article 10 para. 2, implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.

(iii) In exercising its supervisory jurisdiction, the organs of the Convention must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, they must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient".

239.     The Commission further notes that, while freedom of political debate is at the very core of the concept of a democratic society (Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 42), that freedom is not absolute.  A Contracting State is entitled to subject it to certain "restrictions" or "penalties", but the Convention organs are empowered to give the final ruling on whether they are reconcilable with freedom of expression as protected by Article 10 (Eur. Court HR, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must satisfy themselves that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).

240.     These principles apply also to civil servants. Although it may be legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants still qualify as individuals for the protection of Article 10. It falls to be determined, in the circumstances of each case, whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 para. 2. The Commission observes that Article 10 para. 2 also refers to "duties and responsibilities" which in the context of civil servants justifies leaving to the authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the aim (see Eur. Court HR, Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 26, para. 53).

241.     Applying those considerations to the present case, the Commission finds no indication that the disciplinary penalty was not prescribed by law. It notes that the penalty was imposed pursuant to Law No. 657, and the applicability of the law to the applicant’s conduct was upheld on the applicant’s appeal  to the courts.

242.     As regards the aim of the sanction, the Commission notes that the Government invokes the aim of maintaining public order. It observes that they have not specified wherein lay the perceived threat to public order in the applicant’s conduct. The provision of the law in question, which is broad in its scope and application, merely prohibits unauthorised statements of civil servants to the press without further specification. On its face, it presents the appearance, as submitted by the applicant, of a blanket prohibition.

243.     Even assuming however that the sanction can be regarded as pursuing a legitimate aim, the Commission finds no indication of a pressing social need for it to be imposed or any “relevant or sufficient reasons” justifying its imposition. It recalls that the Diyarbakır Provincial Education Disciplinary Committee, in sanctioning the applicant, referred only to the fact that she had made an unauthorised statement to the Diyarbakır Söz newspaper.  In its decision upholding that sanction, the Administrative Court referred to the consideration that civil servants were required, by virtue of their status, to exercise their rights with care as regards their superiors and public officers. In this case, the court considered that her statement contained negative aspects relating to the arguments between teachers and the police and thus criticised and accused the administration.

244.     The Commission is not satisfied that the expression of criticism against police officers or against the administration is, as such, a ground justifying disciplinary action.  The Administrative Court did not specify any aggravating feature. The Commission observes that the applicant was a primary school teacher who held a post which had no connection with any security risks and which attracted no special considerations of confidentiality. Having regard to the terms of the newspaper article and the materials before it, the Commission finds no indication that the applicant’s statement was not based on true facts. The statement also related to matters of public interest, namely, the detention of 11 teachers, and the incidents which arose when a delegation of teachers met with the National Education Director. The applicant’s statement related to these events, without any element of provocative or insulting language. To the extent that the article cites the applicant as complaining of a lack of information about her detained colleagues and claiming that the police insulted and verbally abused her colleagues, this does not, in the Commission’s view, disclose any lack of responsibility or discretion by the applicant. The Government have referred to the fact that the applicant made the statement as an officer of a trade union which was apparently not officially recognised. This cannot justify a sanction for a statement where its contents do not do so. While the penalty imposed was a one year suspension in promotion to the next grade,  the Commission considers that this cannot be regarded as negligible, having a prejudicial effect on the applicant’s salary and career prospects.

245.     Even allowing therefore for a certain margin of appreciation, the Commission finds that the disciplinary penalty imposed cannot be regarded as necessary in a democratic society for any of the legitimate aims set out in Article 10 para. 2 of the Convention.

CONCLUSION

246.     The Commission concludes, unanimously, that there has been a violation of Article 10 of the Convention.             

D.Concerning the death of the applicant’s husband Zübeyir Akkoç

1.As regards Article 2 of the Convention

247.     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:

a.in defence of any person from unlawful violence;

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

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

248.     The applicant submits that her husband was killed by the security forces. The killing fits the pattern of unknown perpetrator killings, attributable to the State, which were carried out against prominent Kurds, particularly those known to be politically active, or who were associated with any pro-Kurdish party such as DEP or any pro-Kurdish newspaper such as Özgür Gündem. She refers to the Susurluk report which describes how the security forces in Diyarbakır adopted a policy of unknown perpetrator killings. She points out that her husband was killed in broad daylight and that the police made no efforts to pursue the killers. She and her husband had been receiving threats soon after the confrontation between teachers and police officers at the National Education Directorate and after her statements criticising the authorities appeared in the press.  She states that she reported the death threats to the authorities who took no action or measures of protection. When she was detained she was told that it was the security forces who killed her husband. She was also told by eyewitnesses that the car in which the perpetrators of the killing had been travelling had entered the riot police headquarters but the police did not mark this on the map of the scene of the incident.

249.     The applicant further submits that there is no evidence concerning the steps taken to investigate her husband’s death. There is no indication of statements having been taken at the scene to establish the description of the perpetrators or where they fled to.  Nor is there any evidence against Seyithan Araz, or anything to explain why he is charged with the killing of her husband but not Ramazan Aydın Bilge. There is nothing to suggest that her husband would have been targeted by the Hizbullah while the Susurluk report indicates that the State used the Hizbullah as a front for unlawful activities. The public authorities have had five and a half years to provide evidence that her husband was killed otherwise than as part of the killings linked to persons acting for the security forces in their counter-guerilla offensive to eliminate opposition to State policy against the Kurds but have failed to do so.

250.     Consequently, the applicant submits that the authorities failed to take the necessary steps to protect her husband and also failed to carry out an effective investigation into her husband’s death. She submits in addition that there is substantial, cumulative evidence to establish that the failure to investigate violations of the right to life, in particular where suspicion falls upon the security forces and law enforcement officers, is both a systemic and systematic failure in Turkey.  This failure arises from a combination of inadequate procedures, the attitudes of the prosecuting authorities, failure to gather and test basic evidence, assumptions that the authorities are not responsible and a failure to call into question official claims of events (see eg., No. 21549/93, Oğur v. Turkey, Comm. Rep. 30.10.97, pending before the Court, and Tanrikulu v. Turkey, No. 23763/94, Comm. Rep. 15.4.98, pending before the Court), where there were violations of Article 2 for failure to investigate deaths, and the many cases declared admissible, in which there were no effective remedies to exhaust). This discloses an administrative practice with respect to failures to investigate violations of the right to life.

251.     The Government deny that the applicant’s husband was killed by the security forces. They submit that after his death the public prosecutor commenced an investigation to find the perpetrators. A statement had been taken from the witness Abdullah Elgören and there were no other witnesses. On 7 March 1997, a suspect Seyithan Araz was apprehended in an operation against the Hizbullah organisation. He was charged with the murder of the applicant’s husband in an indictment of 27 March 1997 and his trial is still pending. They point out that the applicant has not applied to the administrative courts alleging the fault of the administration and that she has not joined the criminal proceedings as a party, by which she could claim damages. In addition, she could have utilised civil remedies. 

252.     The Commission notes that the applicant’s husband was killed on 13 January 1993 at about 07.00 hours when he and Ramazan Aydın Bilge were shot by an unknown gunman or gunmen.   It notes from the expert ballistics report of 13 January 1993 that the cartridges and bullets found at the scene derived from one weapon. This report, the autopsy report and the statement of Abdullah Elgören, who heard three gunshots but did not go to the scene of the shooting until after the gunman/gunmen had fled, were, until March 1997, the only documents provided which related to the investigation. There was accordingly at that time no direct evidence as to the identity of the killer or killers and the killing fitted the pattern of the so-called “unknown perpetrator” killings which were a feature of south-east Turkey at that period.

253.     The applicant submits that the killing was carried out by, or on behalf of, the security forces. She relies on a number of factors (see para. 248 above), which the Commission has considered in turn.

254.     As regards the circumstances surrounding the death of her husband, the Commission notes that the killing took place during the day. It does not find this to be conclusive as to any alleged collusion by the authorities. Nor does it find any strong significance in the contention that the police who arrived on the scene of the crime made no effort to pursue the perpetrators. There is no information in the investigation file which permits any conclusions to be drawn as to the time at which the police arrived at the scene and whether there was any useful purpose in attempting to follow the perpetrators, who might have been gone for some time. The lack of information in the investigation file is a point considered separately below. The claim made by the applicant that the destination of the getaway car was the riot police headquarters is mentioned for the first time in the applicant’s observations on the merits and is not substantiated or detailed elsewhere in the materials before the Commission.

255.     The applicant also alleged in her testimony before the Delegates that, when she was detained in February 1994 at the Diyarbakır Anti-Terror Department, officers told her that the security forces had killed her husband.  The Commission finds this to be a serious indication. As discussed below (see section E.1, Evaluation of the evidence), the Delegates assessed the applicant to be an honest and credible witness.  Nonetheless, it is not apparent on what factual basis the officers made this assertion, which in the context in which it was made was clearly intended to intimidate the applicant.

256.     As regards the Susurluk report, on which the applicant places great weight, the Commission recalls that it has previously found that this report, which was not a judicial or fact-finding exercise, is an indication that strong suspicions exist as to the involvement of security forces, and contra-guerilla  groups acting under their aegis, in unknown perpetrator killings. But it does not, even in the case of victims named in the report, constitute sufficient evidence for attributing specific murders to agents of the State (see No. 22535/93, Kaya v. Turkey, Comm. Rep. 23.10.98, pending before the Court, paras. 333-334, where the Susurluk report included the name of Metin Can, killed at the same time as that applicant’s brother, as one of the victims targeted as a PKK sympathiser with the knowledge of the authorities). In this case therefore, where the applicant’s husband is not included expressly in the scope of the report, the Susurluk report cannot be relied on as furnishing proof of direct State involvement in the killing.

257.     As regards the assertion that the applicant and her husband had received threats prior to the shooting, the Commission notes that this is substantiated by the applicant’s statement of 25 January 1993, in which she complained to police officers that she and her husband had received 5-6 threatening phone calls, which commenced after she had participated in a meeting at the National Education Directorate and had made a critical statement to the press concerning colleagues detained by the police. In this statement, the applicant stated that she had complained of these calls to the public prosecutor. The Commission notes that the Government have not disputed that this is the case. There is no indication in the materials provided by the Government that any steps were taken in response to her complaints. The applicant contends that these threats emanated from an official source or at least persons acting with the acquiescence or connivance of the authorities. This belief has only circumstantial evidence to support it however - namely, the occurrence of the calls after the meeting and the applicant’s contention that her husband was not involved in any extremist groups. On the other hand, the statement taken by the police referred to the applicant describing “Hizbullah music” being played in the background, which tends to support references made at that time to the attack having been carried out by that group (see para. 103).

258.     The significance of alleged Hizbullah involvement takes on particular weight in light of recent developments in the case, in particular, the charging of a suspect Seyithan Araz as a member of the illegal Hizbullah organisation and as a participant in a number of killings, including that of the applicant’s husband. The Commission recalls that the applicant alleges that there is in fact no real evidence linking this suspect with the killing of her husband and that in any event the security forces made use of the Hizbullah as a front for unlawful targeting of Kurds. While the documents relating to the proceedings against Seyithan Araz are incomplete, it is apparent that on 10 December 1997 Diyarbakır State Security Court No. 4 issued an order for his release due to the insufficiency of evidence. The Commission notes that he was established as being a fourth year student at Dicle University, that two of the victims of an attack for which he was charged stated that they had not seen him at the scene and that there is no reference to any forensic or ballistic evidence linking him to the killing of the applicant’s husband. It observes that the ballistic evidence from the scene of the shooting of her husband and his friend Ramazan Aydın Bilge indicated that one gun had been used and that it had also been used in four armed incidents. However, these incidents, and remarkably, the killing of Ramazan Aydın Bilge, do not appear in the indictment against Seyithan Araz. It accordingly appears that the principal evidence incriminating Seyithan Araz with the killing of the applicant’s husband is his statement taken by the police at the Anti-Terror Department, which has not been provided to the Commission and which he revoked as having been produced under coercion when he was brought before the public prosecutor and the arresting magistrate.

259.     On the basis of the material before it, the Commission is not satisfied therefore that there is a strong basis of reliable evidence supporting the assertion that the killing of the applicant’s husband was carried out by Seyithan Araz as a member of the Hizbullah organisation. Nor can it be regarded as established beyond reasonable doubt that it was a member of the security forces or agents acting on their behalf or with their knowledge who carried out the killing.

260.     However, this does not exclude the responsibility of the Government. The Commission has examined in addition whether the circumstances disclose any failure on the part of the Government to fulfil their positive obligation under Article 2 to protect the right to life.

261.     The Commission recalls that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention, and together with Article 3 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. It must be interpreted in light of the principle that the provisions of the Convention  be applied so as to make its safeguards practical and effective (Eur. Court HR, McCann and others judgment of 27 September 1995, Series A no. 324, pp. 45-46, paras. 146-147).

262.     Article 2 extends to but is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. The first sentence of Article 2 para. 1 also imposes a positive obligation on Contracting States that the right to life be protected by law.  In earlier cases, the Commission considered that this may include an obligation to take appropriate steps to safeguard life (see e.g. No. 7154/75, Dec. 12.7.78, D.R. 14 p. 31).

263.     As a minimum, the Commission considers that a Contracting State is under an obligation to provide a framework of law which generally prohibits the taking of life and to ensure the necessary structures to enforce these prohibitions, including the provision of a police force with responsibility for investigating and suppressing infringements. This does not impose a requirement that a State must necessarily succeed in locating and prosecuting perpetrators of fatal or life-threatening attacks. It does impose a requirement that the investigation undertaken be effective:

"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, op.cit., p.49, para. 161)

264.     The Commission would emphasise that effective investigation procedures and enforcement of criminal law prohibitions in respect of events which have occurred  provide an indispensable safeguard.

265.     The Commission is also of the opinion that for Article 2 to be given practical force it must be interpreted as requiring preventive steps to be taken to protect life from known and avoidable dangers. However, the extent of this obligation will vary inevitably having regard to the source and degree of danger and the means available to combat it. Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention (see 23452/94, Osman and Osman v. UK, Comm. Rep. 1.7.97, paras. 88-92, to be published in Eur. Court HR, Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998).

266.     The extent of the obligation to take preventive steps may also increase in relation to the immediacy of the risk to life. Where there is a real and imminent risk to life to an identified person or group of persons, a failure by State authorities to take appropriate steps may disclose a violation of the right to protection of life by law, in particular where the authorities have not done all that could reasonably have been expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. (above-mentioned Osman v. the United Kingdom judgment para. 116).

267.     The Commission has therefore examined whether the State has in this case protected the right to life of Zubeyir Akkoç by the preventative and protective framework in place at the time of his death and by the investigative procedures implemented after his death.

i) The preventative and protective structures

268.     The Commission observes that Turkish law prohibits murder and that there are police and gendarmerie forces which have functions to prevent and investigate crime, under the supervision of the judicial branch of public prosecutors. There are also courts which apply the provisions of the criminal law, in trying, convicting and sentencing offenders.

269.     However, the Commission has found in two previous cases that, in respect of killings allegedly perpetrated by State officials or by persons acting on their behalf, this system was fundamentally flawed (see Nos. 22492/93 Kemal Kiliç v. Turkey, Comm. Rep. 23.10.98, pending before the Court, paras.  220-227, and 22535/93, Mahmut Kaya v. Turkey, Comm. Rep. 23.10.98, pending before the Court, paras. 353-360). In reaching this conclusion, the Commission had regard to :

(i) the lack of independence of the members of Administrative Councils which had the jurisdiction to investigate allegations that killings had been committed by members of the security forces (see Nos. 21593/93, Güleç v. Turkey, Comm. Rep. 17.4.97, para. 226, and 21594/93 Oğur v. Turkey, Comm. Rep. 30.10.97, para. 136, pending before the Court, and Eur. Court HR, Güleç v. Turkey judgment of 27 July 1998 to be published in Report 1998, paras. 80 and 82);

(ii) the Susurluk report, which described how the authorities were aware of and connived at unlawful acts, including the planned elimination of alleged PKK sympathisers, and how JTEM[6] and the groups acting under their auspices operated outside the military hierarchy, strongly substantiating allegations that the persons carrying out these acts were unaccountable to the normal processes of criminal justice and, accordingly, that the rule of law ceased to apply;

(iii) the Commission’s experience in investigating over forty-five cases relating to incidents in the south-east of Turkey over the period 1992-1994 and its findings, and those of the Court, in relation to the superficial and inadequate investigations into allegations that security forces or State agents had acted unlawfully, which operated to give them a large measure of unaccountability and which involved as a common feature the making of unfounded assumptions that the incidents were the work of terrorists  (see, amongst others,  eg. Aydın v. Turkey, Comm. Rep. 7.3.96, para. 202, Eur. Court HR, judgment of 25 September 1997, Reports 1997-VI;. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, para. 141, Comm. Rep. 5.12.96, para. 228; Mehmet Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, para. 108, Comm. Rep. 24.10.96, para. 195; Ergi v. Turkey judgment of  28 July 1998, to be published in Reports 1998, paras. 82-85, Comm. Rep. 20.5.97, paras. 152-154; Güleç v. Turkey judgment op cit. paras. 79-80, Comm. Rep. 17.4.97, paras. 227 and 237; Oğur v. Turkey, No. 21549/93, Comm. Rep. 30.10.97, paras. 137-139, pending before the Court; Yaa v. Turkey judgment of 2 September 1998, to be published in Reports 1998, paras. 105-108; Tanrikulu v. Turkey, No. 23763/94, Comm. Rep. 15.4.98, pending before the Court, paras. 248-249); and

(iv) the lack of  independence and impartiality of the State Security Courts, which had jurisdiction to try offences purported to be carried out by terrorists and under whose jurisdiction, in practice, some killings by unknown perpetrators were considered as falling[7] (Eur. Court HR, ncal v. Turkey judgment of 9 June 1998, Reports 1998-IV).

270.     Having regard to those factors, the Commission found that in the two cases of Kiliç v.Turkey and Mahmut Kaya v.Turkey (op. cit. above) the legal structures in the south-east of Turkey during the relevant period in those two cases operated in such a manner that security force personnel and others acting under their control or with their acquiescence were often unaccountable for their actions. It considered that this situation was incompatible with the rule of law which should apply in a democratic state respecting fundamental human rights and freedoms. The Commission recalls that the applicant’s husband was killed by unknown perpetrator(s) in 1993 in Diyarbakır,  in south-east Turkey, and considers that its findings in the Kiliç and Mahmut Kaya cases are equally applicable to the present application.

271.     This finding is not however sufficient by itself to found a violation of Article 2 of the Convention, which requires that an applicant demonstrate that he or she is a victim of the breach alleged. There must be a direct connection between the general failings above and the particular circumstances of the case.

272.     The Commission notes in this case the following:

- the applicant’s husband was of Kurdish origin;

- the applicant and her husband, both teachers,  were involved with a trade union Eğit-Sen, which was regarded as unlawful by the authorities, and the applicant had been involved in complaining to the authorities about attacks on teachers, in particular in a meeting at the National Education Directorate at which there was a confrontation with the police, who apprehended eleven persons (paras. 82-97);

- its finding that there is strong suspicion from the Susurluk report to substantiate the allegations  that the risk to persons associated with opposition to the authorities in the south-east derived from targeting by State officials or those acting on their behalf or with their connivance or acquiescence (para. 269(ii));

- its finding that the applicant and her husband had received threats after the meeting at the National Education Directorate and had approached the authorities, with a view to  steps being taken to protect them (para. 257);

- its finding that the authorities took no steps to investigate the extent of the alleged risk to the applicant and her husband (para. 257).

273.     In the absence of information as to the nature or extent of the threat to the applicant and her husband, the Commission does not consider that the authorities can be held to have omitted any particular, necessary protective measures. This however highlights the fact that without effective investigation into the threats no adequate or appropriate preventive measures could be taken. It is to be remarked that, while allegations of State-sanctioned contra-terrorist groups, the misuse of confessors and the implication of State officials in unknown perpetrator killings were current from an early stage, the responsible State authorities ignored or discounted them, consistently laying the blame on PKK or other terrorist groups.[8]

274.     The Commission concludes that the applicant's husband fell into a category of people who were at risk from unlawful violence from State officials or those acting on their behalf or with their connivance or acquiescence. In respect of this risk however, the applicant's husband did not enjoy the guarantees of protection required by the rule of law.

ii)Concerning the investigation into the death of Zübeyir Akkoç

275.     The Commission has been provided with a number of documents relating to the investigation into the death of the applicant’s husband. Until the arrest of Seyithan Araz in March 1997, these appear to consist only of an incident report drawn up by police officers after the killing occurred, a report of the examination of his body, a ballistics report, a statement by the applicant and a statement by Abdullah Elgören, who was nearby in his shop at the time of the attack but did not in fact see what occurred. The Commission is struck in particular by the lack of any statement from a witness who was in the street at the time of the shooting or who witnessed the immediate aftermath of the shooting. Since the shooting occurred at about 07.00 hours on a working day, it would appear more likely than not that other persons were in the vicinity. However,  as a result of the lack of any eye-witness statement, there is no evidence in the file to indicate how many persons were involved in the attack, whether they arrived on foot, cycle or car, from which direction they came and in which direction they fled.

276.     While the applicant criticises an alleged failure by the police to take steps to follow the perpetrators, the Commission has already observed that it is not possible due to the lack of information in the file to assess whether this would have served any useful purpose. There is however no indication that any steps were taken after 23 January 1993 and before March 1997 in relation to the investigation, notwithstanding the applicant’s statement to the police that prior to her husband’s death they had received threats by telephone.

277.     The Commission has also found above (para. 258) that although a suspect Seyithan Araz was charged in an indictment of 23 March 1997 with the killing of Zübeyir Akkoç he has since been released for lack of evidence. The Commission recalls that the only evidence apparently incriminating Seyithan Araz was his alleged statement at the Security Directorate, which he alleged to the public prosecutor and arresting magistrate had been obtained by coercion and was not true. It also noted the puzzling feature in that the indictment failed to mention the killing of Ramazan Aydın Bilge, who died in the same incident and apparently by bullets from the same gun. The circumstances in which Seyithan Araz came to be charged with the killing of Zübeyir Akkoç consequently give rise to significant doubts.

278.     In these circumstances, the Commission finds that there has been a failure to provide an adequate and effective investigation into the circumstances of the death of Zübeyir Akkoç.

Overall assessment

279.     The Commission finds on the facts of this case, which disclose a lack of effective guarantees against unlawful conduct by State agents, that the State, through their failure to take investigative measures or otherwise respond to the threats made against the applicant and her husband and through the defects in the investigative and judicial procedures carried out after his death, did not comply with their positive obligation to protect Zübeyir Akkoç’s right to life.

CONCLUSION

280.     The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention.

2. As regards Articles 6 and/or 13 of the Convention

281.     Article 6 of the Convention provides in its first sentence:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

282.     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."

283.     The applicant complained in her application of both a lack of access to court contrary to Article 6 of the Convention and a lack of effective remedies under Article 13 of the Convention in respect of the death of her husband. In her observations on the merits, the applicant's submissions concern solely her complaints under Article 13. She argues that there was no effective investigation into the killing of her husband. She submits that the numerous cases before the Convention organs establish beyond reasonable doubt that there are systematic and systemic violations of the right to an effective remedy which amount to a practice in violation of the Convention.

284.     The Government have denied that there is any problem with remedies, relying on the pending criminal proceedings in this case. They note that the applicant has not joined these proceedings as a complainant. They also point out that the applicant has not made use of any other avenues of redress, referring to the possibility of instituting civil and administrative proceedings.

285.     Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydın v. Turkey judgment of 25 September 1997, Reports 1997, para. 102, Kaya v. Turkey judgment of 19 February 1998, Reports 1998 I, para. 105), the Commission has found it appropriate to examine the applicant's complaints about remedies under Article 13 of the Convention alone.

286.     The Commission recalls that in concluding that there was a violation of Article 2 of the Convention, it found that the system of criminal justice in the south-east disclosed serious problems of accountability of members of the security forces and that in the particular circumstances of the case the investigation into the applicant's husband’s death 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 (Kaya v. Turkey judgment, op. cit., para. 107). Where relatives have an arguable claim that the victim has been unlawfully killed in circumstances engaging the responsibility 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 relatives to the investigatory procedure (see also, Ergi v. Turkey judgment, op. cit., paras. 96-98).

287.     The Commission recalls its findings above as to the inadequacies of the investigation, in particular, the short duration of the initial investigation, which lasted effectively from 13 to 25 January 1993, the failure to obtain more than one statement from a person in the vicinity of the shooting and the flaws in the proceedings instituted against the purported suspect Seyithan Araz. Having regard to these factors, the Commission also finds that the applicant has been denied an effective remedy against the authorities in respect of the death of her husband, and thereby access to any other available remedies at her disposal, including a claim for compensation. It does not find the possibility for the applicant to join in the criminal proceedings against Seyithan Araz as relevant in light of the deficiency of evidence linking this alleged suspect with the events. Nor, having regard to the superficial nature of the investigation into the death, which has provided almost no useful evidence as to the identity of the perpetrators, does the Commission consider that the possibility of instituting civil or administrative proceedings would offer any practical or effective means of redress.

288.     In light of its findings above, the Commission finds it unnecessary to examine the applicant's complaints as regards an alleged practice of failure to provide effective remedies under Article 13.

CONCLUSION

289.     The Commission concludes, by 27 votes to 2, that there has been a violation of Article 13 of the Convention.

3. As regards Article 14 of the Convention

290.     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."

291.     The applicant maintained in her initial application that the killing of her husband disclosed discrimination on the grounds of race or ethnic origin in the enjoyment of his right to life, since he was killed because he was a teacher of Kurdish origin prominent in Kurdish affairs. It also disclosed discrimination in the enjoyment of rights of access to court and effective remedies.

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

293.     The Commission has examined the applicant's allegations in the light of the evidence submitted to it and in the context of Article 14 of the Convention. However, in light of its findings above (paras. 280 and 289), it considers that no separate issue arises under Article 14 in conjunction with Article 2, 6 or13 of the Convention.

CONCLUSION

294.     The Commission concludes, unanimously, that no separate issue arises under Article 14 of the Convention.

4. As regards Article 1 of Protocol No. 1

295.     Article 1 of  Protocol No. 1 to the Convention provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 

296.     The applicant complained in her initial application that as a result of the finding that her husband had been killed by unknown perpetrators she did not receive any compensation or widow’s pension. In her recent observations on the merits, she has made no submissions on this aspect of the case.

297.     The Government have denied her complaint, referring to the documents from the pension authorities and submitting that the applicant has received a monthly widow and orphan’s pension since 15 January 1993 and that a lump sum was paid to her from the Ministry of Education.

298.     The Commission notes that the letter dated 29 November 1994 from the General Directorate of the Pensions Board stated that the applicant and her children had been receiving monthly pensions, giving details of the amounts, and denied the allegations that payments had not been made or delayed. It observes that there appears to have been some discussion between the relevant authorities as to the application of the pension provisions in the applicant’s case and that the classification of the circumstances in which he died was considered as relevant to that exercise. However, the applicant has made no further response to the information provided by the Government. Assuming therefore that her complaints concerning the application of the pension regulations in her case would fall within the scope of Article 1 of Protocol No. 1 as concerning her “possessions”, the Commission finds that she has failed to substantiate the complaint. 

CONCLUSION

299.     The Commission concludes, unanimously, that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

E.Concerning the applicant’s periods of detention

1.The evaluation of the evidence

300.     The Commission has taken oral evidence in relation to the applicant’s allegations of torture and interference with the right of individual petition arising out of three periods of detention.

301.     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). 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: 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. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while 10 witnesses were summoned to appear, only 8 in fact gave evidence before the Commission's Delegates. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant testimony. 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.

i. The applicant’s detention from 13 to 22 February 1994

a. Allegations of ill-treatment

302.     The applicant was taken into custody by officers from the Diyarbakır Security Directorate shortly after midnight on 13 February 1994. She was released from custody on or about 22 February 1994. While the request for a medical inspection prior to the applicant being brought before the public prosecutor was dated 21 February 1994, it appears that the examination took place after midnight and that she was released during the course of 22 February 1994. The subject-matter of the taking of evidence largely related to what occurred during this period of detention. The Delegates heard evidence from the applicant. They found her to be a lucid, intelligent witness, who impressed as honest and credible. Her demeanour in giving her evidence was convincing and the distress which she evinced, breaking down after giving evidence for some time, was entirely consistent with the matters which she alleged to have experienced.

303.     The Commission recalls that the applicant stated that during this period of detention she suffered the following forms of ill-treatment: she was blindfolded, when not in her cell; she was stripped naked on numerous occasions and, on one occasion, forced to walk a gauntlet, naked, between officers who touched her and abused her verbally; photographs were taken of her naked; she was subjected on many occasions to cold-hot water treatment, being hosed with cold water of such force that she could barely stand up; she was subjected to electric shock treatment on several occasions; there was a brief attempt to suspend her; she was struck on the chin by a blow of considerable force which knocked her to the ground; she was handcuffed to a door, blindfolded, over the period of two days and nights, and forced to listen to the sounds of others being ill-treated; her hair was pulled and she was hit; her cell was floodlit and there was loud music played. She stated that as a result of her treatment she had an infected toe (where it had been struck by a stick) and that she had bumps on her head, which had bled.

304.     The applicant has provided medical records and certificates regarding her treatment. These are stated as including treatment by an ear, nose and throat (ENT) specialist in relation to eczema on her ear and a respiratory infection which she states was caused by the exposure to cold and pressurised water; treatment relating to an infection and allergy which she stated derived from the bandage used to blindfold her; treatment for pains in her leg which she stated originated with her treatment in custody as well as treatment for various other infections. However, these provide limited support for her allegations, since the dates and contents of the documents are largely illegible. It may however be established from the documents provided that on 30 October 1995 the applicant applied for treatment to the Ankara Treatment Centre of the Human Rights Foundation, alleging that she had been tortured and ill-treated. The report indicated that she was suffering from forgetfulness, trembling of the hands, indecision, pain and numbness in several parts of the body and insomnia. She stated that she had suffered these effects severely after February 1994 but that they had diminished though still persisting. They were aggravated after she was taken into custody again, and she was experiencing anxiety and nightmares, and had developed a behavioural pattern of avoiding men with beards.  The psychological examination established that she was suffering anxiety, pessimism, inability to stand, slight impairment of attention and lack of self-confidence and concluded in a diagnosis of chronic post-traumatic stress disorder. She was prescribed antidepressant drugs and returned for further sessions until 14 April 1996 when she stated that she had no specific complaints, her problems having diminished considerably.

305.     The applicant also informed the Delegates that she had had her jaw X-rayed following her release from detention. She described that her jaw had given her severe pain after she had been struck hard on the head. However, she stated that it was when she went to see an ENT specialist about a throat infection that the doctor noticed that she had pain in her jaw and sent her to have an X-ray. On the basis of the X-rays, he told her that there was a fracture but that it was not serious and would heal quickly. The applicant stated however that he ripped up the prescription he was going to give her when she mentioned that she had been in custody. She obtained treatment for her jaw by going after hours to the university hospital and obtained X-rays there. Since she explained that the X-rays had been given to her lawyer to place before the court in the criminal proceedings brought against her, the Delegates requested the Government to provide them. After a considerable period of time, the Government finally provided three X-rays, which however bore no indication as to their date or origin, beyond the stamp on one of a doctor’s name and address. While there is a hand-written pen reference to the applicant’s name with the date 23.2.94, there is no indication at what point and by whom this writing was added. The opinions obtained indicate that there is no evidence of any fracture on the jawbone from these films (paras. 145-149). The Delegates found it puzzling that X-rays would have been submitted to a court without any accompanying medical report or analysis. No accompanying report has however been provided by either the Government or the applicant. It is similarly puzzling why X-rays which disclosed no injury should have been submitted to the court as evidence in the first place. The applicant’s representatives have explained this by stating that the applicant understood from what she had been told at the time that her jaw had been fractured. The medical opinion provided on her behalf gives the view that an injury to the jaw can cause considerable pain without a fracture having been sustained. There is accordingly no evidence that the applicant’s jaw was broken as she initially alleged. The Commission does however accept that the applicant was under the apprehension that her jaw had been broken. Assuming therefore that the X-rays provided by the Government were of the applicant, it considers that her mistaken reliance on them as proving an injury does not undermine her credibility.

306.     The Commission notes that the applicant’s account is supported in a number of significant details by the testimony of her mother, Elif Elçi, whom the Delegates found to be an honest and credible witness. In particular, it confirms that on her release from custody the applicant was in a  terrible state,  exhausted, with swellings on her head and an infected toe and that the applicant told her at that time that she had suffered forms of ill-treatment (being stripped naked, hot and cold water treatment, injury to her jaw and head).

307.     The Commission’s Delegates also heard evidence from Dr. Buldağ, the doctor who saw the applicant and two police officers who interrogated her during her detention at the Anti-Terror Department. The assessment of their evidence is of crucial relevance to the Commission’s task of establishing what occurred.

308.     The applicant informed the Commission’s Delegates that at the end of the period in custody she was taken with other detainees to the Diyarbakır State Hospital in accordance with the procedure whereby medical reports were issued in respect of persons held in custody. She stated that she requested an examination and that she showed the doctor the bumps on her head, where it was bleeding, and her infected toe. She stated that the doctor told her that he would write a report but she discovered before the public prosecutor that he had not done so. The request by the Director of the Department, Ramazan Sürücü, for medical reports to be made in respect of the applicant and 16 other detainees was stamped by the doctor, Dr Buldağ,  who noted in manuscript that the individuals had been examined and that there were no signs of physical blows. When giving evidence before the Delegates, Dr Buldağ stated that he always examined each suspect brought by the police in the absence of the police, contradicting the applicant’s version that he asked the suspects assembled together whether any had a complaint and wished an examination. He was also emphatic that he would always record any physical marks that he found. Initially, he stated however that he had no recollection of the applicant, referring to the heavy numbers of persons examined. Later, he stated that he recognised the name of one of the other suspects on the list, Metin Akar, the Health Director. He then stated that he was able to recall that Metin Akar had come in with a large group of detainees at about midnight - 01.00 hours and re-affirmed his denial that he held any such conversation with the applicant as she alleged. His evidence is accordingly in direct contradiction of that of the applicant.

309.     The Commission notes that the Commission’s Delegates found that Dr. Buldağ tended to be over-assertive in his denials of the applicant’s allegations. Notwithstanding his recognition of the name of one of the detainees, it remains the case that he claimed to have no recollection of the applicant herself.  It further observes that Dr. Buldağ was critical of the fact that, during the night, the responsibility for examining detainees devolved on the doctors on duty at the Diyarbakır State Hospital Emergency Unit, who had a heavy workload.  During the day, it appeared that examinations were the responsibility of the forensic establishment. The Commission is not aware of any reason why the police found it necessary to take suspects for examination during the night, rather than arranging for examinations to be carried out during the day at the appropriate forensic establishment. While Dr Buldağ insisted that each suspect was properly examined, he described that such examination would generally take only one minute. The Commission does not doubt that expert medical staff can carry out swift procedures. It is however left with the impression that, due to the heavy pressures of a casualty department and a certain reluctance by the emergency staff in assuming the duty, the examination of large groups of suspects brought in by the police in the early hours of the morning, was somewhat perfunctory. It also appeared that Dr. Buldağ did not regard it as his role to enquire into the origin of any marks that were found or to give much weight to what a suspect might state orally. The Commission accordingly has substantial doubts as to the reliability of Dr. Buldağ’s evidence as to the procedures adopted for the examination of suspects and, more particularly, as to what occurred when the applicant was brought to the hospital for examination.

310.     The two police officers, Taner entürk, and Hasan Pikin, denied to the Delegates that they were involved in any ill-treatment of the applicant, maintaining that they applied proper, standard procedures. They both remembered interrogating the applicant and, though imprecise, were of the view that they must have talked to her many times. The Commission’s Delegates however found that their testimony was on some points unhelpful, evasive and inconsistent. The Commission observes the following difficulties arising from their testimony.

- Both denied that the applicant was blindfolded, as did their department chief Ramazan Sürücü. All three denied that blindfolding ever occurred at their headquarters. The Commission from its considerable experience of investigating cases in the south-east of Turkey has had occasion to note that blindfolding was in widespread usage with detainees. Blindfolding has been described in the testimony of applicants and witnesses accepted in previous cases (see eg. Eur. Court HR Aksoy judgment of 18 December 1996, Reports 1996-VI, p. 2260, para. 60; Aydın v. Turkey judgment of 23 September 1997, Reports 1997, para. 84; Comm. Rep. 7.3.96, paras. 61, 67, 74, 104, 109, 189; Tekin v. Turkey judgment of 9 June 1998, Reports 1998 IV, Comm. Rep. 17.4.97, para. 214; No. 23657/94, Cakıcı v. Turkey, Comm.  Rep. 12.3.98, paras. 124-125). It notes that Enver Atlı who was detained with the applicant in September 1995 (see below) stated without prompting that he had been blindfolded by the police at the Anti-Terror Department.

- Taner entürk made reference to the use of bright lights in interrogating suspects.  He  appeared to be maintaining that the bright lights were used only with dangerous suspects to prevent the interrogators being seen, and then was at a loss to explain why it was not necessary to prevent the custody officers who brought the suspects to interrogation from being seen. He also sought to explain that the suspect could not see the interrogator if the interrogator stood up to open the door, since the suspect sat facing the door with the lights in his face. On the other hand, when asked to describe the layout of the interrogation room, his colleague Hasan Pikin contradicted this, saying that the suspect sat sideways on to the door, and that the door would have been on the left.

- The Commission’s Delegates were concerned to establish what records existed of interrogation sessions, both the times and what occurred. Taner entürk stated that no dates or times were recorded and that any notes which they, the interrogators, took, would be destroyed after their use in compiling the suspect’s statement. Hasan Pikin however was sure that notes were available, stating that they were kept in the archives probably for not less than five years and indeed offered to have them faxed to the Delegates. In any event, whichever account was correct, the Government have not provided any notes or records of the interrogations of the applicant and have stated that such do not exist.

- Taner entürk stated that it was not possible that they asked the applicant questions about her application to the Commission and that he had only heard about her application the week before the hearing. However, the statement which he and his colleague prepared, signed by the applicant on 18 February 1994, contained information that she had met with foreign delegations giving them information about massacres in Kurdistan and also that she had made an application about her husband’s murder to the Commission.

311.     The Commission has as a result grave doubts as to the credibility of these two officers and finds that their testimony was less than frank as regards interrogation practices. It also heard testimony from Ramazan Sürücü, the head of the Diyarbakır Anti-Terror Department, and Ridvan Güler, the head of the Diyarbakır Security Directorate (or Police Headquarters). Their denials that any ill-treatment did, or could occur, is in stark contrast to the findings of the CPT who found that there was information justifying the conclusion that officers in the Diyarbakır Anti-Terror Department frequently resorted to torture and other forms of ill-treatment and indeed found equipment at Diyarbakır which was designed, and ready, for use in suspending persons by the arms.

312.     The Government have challenged the applicant’s credibility, querying why on her release from detention she did not obtain a proper medical report of her injuries, in particular by going to the public prosecutor who could have arranged a forensic examination. The  Commission recalls that the applicant told the Delegates that when she was taken before the public prosecutor she drew his attention to her injuries and found, to her relief, that he was sympathetic. She said that he gave her the impression that he would do something about it. Afterwards, particularly since she wanted to avoid any place where police officers were to be found, as at the State Security Court, she did not feel any need to go back to see the public prosecutor. Unfortunately, the public prosecutor, identified by the Government as Ahmet Baaran, did not give evidence when called by the Commission’s Delegates. He was summoned twice but died before the second hearing occurred. There is therefore no means of verifying from this source what occurred when the applicant was brought before him. While there is a decision of non-prosecution of 3 May 1995 in the file, indicating that the applicant’s complaints of ill-treatment were examined by the public prosecutor, it is to be noted that the file number is stated as being 1995/3061 which appears to indicate that the file was opened in 1995. It is also not Ahmet Baaran who signed the decision. It is therefore not apparent that this decision was based or linked with any complaints made by the applicant to him in February 1994.

313.     Nonetheless, the Commission finds her account of what happened when she was brought before Ahmet Baaran, and her explanations in that regard, to be credible and consistent with her other testimony. It notes that the Government indeed accept that the applicant made complaints to Ahmet Baaran before her release, their observations including an acknowledgement that she told the public prosecutor that the statement provided by the police had been obtained by coercion. 

314.     In conclusion, the Commission finds, on the basis of its assessment of the credibility and reliability of the witnesses in this case, that the applicant was ill-treated as she alleged during her period of detention. It relies on the applicant’s testimony, as supported by her mother, the evidence that the applicant was suffering from post-traumatic stress disorder consistent with her allegations and that she sought treatment for its symptoms, the fact that she made a contemporaneous complaint to the public prosecutor, the evidence showing that she sought other medical treatment after her detention and inferences drawn from its assessment of the evidence of Dr Hasan Buldağ and the police officers Taner entürk and Hasan Pikin.

b.Allegations of questioning in relation to her application to the Commission

315.     The applicant told the Delegates that during her period of detention she was questioned about two matters - being a DEP candidate and in connection with her application to the Commission. She said that she was asked about faxes sent via the HRA and she saw a piece of paper in which she had authorised Kevin Boyle to represent her with her signature. They asked who he was and equated making an application to joining the PKK in the mountains. The applicant’s representatives rely on her reference to what appeared to be a letter of authority which would not normally have come into the hands of the authorities until after the application was communicated to the respondent Government on 28 February 1994 as indicating that the authorities were intercepting the mail from the HRA, including applications being forwarded for submission to the Commission.

316.     Her account varies in that at one point before the Delegates she stated that she was shown the piece of paper and at another she appeared to indicate that she only saw it when her blindfold became loose. There is reference in a letter from Dr Bridget Hughes dated 31 March 1994 in which she relates that the applicant had told her at that time, less than two months after her detention, that she had been questioned about her application to the Commission and that reference had been made to the taping of conversations between her and the KHRP (the Kurdish Human Rights Project, based in London). It is possible that due to interpretation difficulties this was wrongly understood from a reference to the monitoring of communications.

317.     The Commission finds however that the evidence from the applicant on this aspect is confused and unclear. It accordingly cannot draw any conclusions as to any allegations of interception of faxes or telephone calls. It does not find that this undermines her credibility on other aspects of the case.  Having regard to the undoubted stress which the applicant was undergoing following her experiences, lack of clarity or confusion as to particular aspects is not perhaps surprising. It notes that the applicant genuinely and honestly believes that faxes from the HRA were intercepted and that she glimpsed a piece of paper which proved this but it does not find this to be a sufficient basis for making findings to the necessary standard of proof beyond reasonable doubt.

318.     The Commission does find that the applicant was questioned during her detention as to whether she had made a complaint to Europe. It is satisfied of this on the basis of the Delegates’ view of the applicant’s general credibility and honesty and the fact that she made complaints as to this aspect very shortly after she was released. It is also substantiated by the reference in the statement by the police dated 18 February 1994 to the fact that she had made an application to the Commission about her husband’s murder. The Government have not commented on this element. The Commission is aware that due to the timing of the communication of the application from the Commission to the Government, the fact that her application was mentioned during her interrogation gives rise to grave suspicions as to where the authorities had obtained the information. However, it cannot be excluded that the information was obtained by the authorities by legitimate means or at least other means.

319.     From the applicant’s description of the questioning, the Commission is not satisfied that any findings can be made that the detention was based on, or in response to, her application to the Commission. On the applicant’s own version of events, the interrogations were, until a certain point, concentrated upon her alleged DEP candidature.

c.Subsequent threats

320.     The applicant complains that after she was released from detention she received threatening telephone calls from someone calling himself “Metin the policeman”. Her mother, Elif Elçi, stated that she witnessed the applicant receiving one of these calls and that they both went to the Governor to complain about it. The applicant informed the Commission of these calls through her representatives in October 1994 after this had been going on for a week. The Commission is satisfied that the applicant was the victim of threatening calls. It is not however able to draw any conclusions as to the source or the responsibility for these calls.

ii.The applicant’s detention from 26 to 27 September 1995

321.     The applicant was detained on a second occasion, when she was being driven home by a friend and colleague, Enver Atlı, a head master. The applicant, before the Delegates, described her awareness that there was a police presence in the area.  She saw police officers looking at them as they left and a little later, their car was intercepted and stopped. She stated that the car was searched and that both she and Enver Atlı were taken, first to a doctor for a medical report and then to the Security Directorate, where she was stripped and searched. She was blindfolded and questioned about the ill-treatment in 1994. It was mentioned that she had complained to Europe. Apart however from the extreme cold when she was left in a cell, she stated that she was not ill-treated and indeed described kind and helpful conduct of a woman police officer.

322.     The Delegates found her testimony was substantiated in some details by that of Enver Atlı and also by her written statement submitted to the Commission on 1 November 1995. The Commission observes however that the written statement makes no mention of being questioned about her petition to the Commission but refers to being questioned about her role in the HRA. The statement taken by the officers at the Security Directorate shows that she was questioned about the HRA and that her past period of custody and the death of her husband were mentioned. The custody record for her detention indicates the motive for the apprehension as “being related to the PKK” and the release record indicates that she and Atlı were brought to the Directorate for investigation for potential membership of the PKK and activities in that organisation. Ridvan Güler, the chief of the Security Directorate, recalled before the Delegates that she had been taken into custody in the course of an extensive operation being carried out in connection with the PKK and that they must have had information about her. He denied that she would have been questioned about her membership of the HRA or her application to the Commission, neither of which were illegal. On the other hand, Ramazan Sürücü thought that she had been taken into custody because they knew her as having been a suspect in a previous operation. There is no evidence to support the Government’s assertion in their observations that she was detained because of an alleged forgery. The evidence indicates that this allegation arose only after she had been taken into custody on the basis of a document found on her person.

323.     The Commission does not find that there is sufficient material on which to draw any conclusion that the applicant was taken into custody because of her application to the Commission, rather than other undefined suspicions. The Commission notes with some concern the apparent lack of concrete elements to justify her detention in respect of allegations of PKK involvement, the incident giving some appearance of a “fishing expedition” with specific interest in her activities for the HRA. On her own explanation, there was no attempt to threaten her or dissuade her from her application to the Commission. At most, it appears that she was questioned about the ill-treatment which formed part of the complaints raised in her application and that the police mentioned that they were aware of the application to the Commission.

iii.The applicant’s detention on 14 October 1995

324.     The applicant was summoned to give a statement to the public prosecutor. Although the public prosecutor did not want to see her until Monday, 16 October 1995, police officers came to her house in the early hours of Saturday, 14 October 1995 and took her to the Security Directorate. She remained there, sleeping on a sofa, until Saturday afternoon when she saw a senior police officer. He explained that it was the public prosecutor who wanted her to be held, that they had heard that she was going to Ankara and wanted to make sure that she did not abscond. However, he allowed her to sign a paper undertaking to return and she was released. When she returned to give her statement on Monday, 16 October, with her mother, at 08.00 hours they were kept waiting until the afternoon. She was eventually seen by the public prosecutor who questioned her about a publication issued by the HRA. The public prosecutor denied to her that he had given instructions for her to be detained but said that the Anti-Terror Department had the authority to act in that way. The applicant’s account is substantiated in a number of details by her mother, who was however not present during the interviews with the police chief or public prosecutor. Her account was not contradicted by Ramazan Sürücü, who recalled that she had been summoned by the State Security Court.

325.     The Commission notes that there is no apparent justification for taking the applicant into detention on this occasion. However, she was not ill-treated during this period, though her discomfort and anxiety in the circumstances may not have been negligible. There is no indication that she was asked any questions relating to her application to the Commission.

326.     On the basis of its findings above, the Commission will now proceed to examine the applicant's complaints under the various Articles of the Convention.

2.As regards Article 3 of the Convention

327.     Article 3 of the Convention provides as follows:

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

328.     The applicant submits that she was tortured. This involved blindfolding, being stripped naked, cold and hot water treatment, being handcuffed to a cell door and being forced to listen to sounds of torture, being threatened with the torture of her children, electric shocks, being beaten and being subject to an attempt to hang her by the arms (palestinian hanging). She suffered serious and sustained injuries as a result of this treatment, including serious damage to her jaw, a split to the back of her head, infections of her respiratory system, infections to her feet and psychological trauma. She submits that it is well-established that where an individual is taken into custody in good health but found to be injured on release, it is incumbent for the State to provide a plausible explanation. The Government have only made a denial that it happened. The applicant also submits that there is a practice of torture, referring to the evidence of the CPT, the findings in the cases of Aksoy v. Turkey, Aydın v. Turkey and Tekin v. Turkey and continuous reports from  reputable international and national non-governmental organisations which show that torture remains systematic. She submits that there is a policy of denial and failure to investigate and that there are great difficulties for victims to obtain medical reports from doctors.

329.     The Government submit that the applicant’s allegations of torture are ill-founded. They point out that she was examined by a doctor before and after the period of detention and that the report issued by the doctor afterwards indicates that there were no signs of ill-treatment. They refer to the oral evidence of the doctor who denied that the applicant had told him that she had been ill-treated. They point out that the applicant could have requested that the public prosecutor send her to the  Forensic Medicine Institute to obtain a report.  In any event, her story about being unable to obtain a medical report from her own doctor is not convincing and the X-rays which she produced showed no fracture.

330.     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 Ireland v. United Kingdom judgment, loc. cit., p. 65, paras. 161-162).

331.     In light of its evaluation of the evidence, oral and written (see paras. 302-314), the Commission is satisfied, beyond reasonable doubt, that the applicant suffered serious ill-treatment during her period in custody. In reaching that conclusion, it has considered carefully the Government’s arguments. It recalls that it has substantial doubts as to the reliability of the medical report issued at the end of the period of the applicant’s detention. It has found sufficient elements in support of the applicant’s account, which was in itself convincing in its contents and in the way it was given,  in her mother’s testimony and the medical treatment which she sought afterwards, to reach the necessary standard of proof. Further, it has accepted the applicant’s evidence, which is not disputed by the Government, that she raised her ill-treatment with the public prosecutor at the end of the period of custody. In these circumstances, it was not the responsibility of the applicant to take further steps to obtain an official forensic report. Once ill-treatment has been brought to the attention of the authorities, the Commission would emphasise that it is incumbent on those authorities to take the necessary investigative steps to verify the allegations, including the provision of an appropriate medical examination and report by an independent and properly qualified doctor.

332.     The Commission has no doubt that the physical and mental ill-treatment inflicted on the applicant involved very serious and cruel suffering, falling within the special stigma of “torture” under Article 3 of the Convention (Ireland v. the United Kingdom judgment, op. cit. p. 66, para. 167). It notes in particular the acute level of distress suffered by the applicant in respect of one of the psychological aspects of this ill-treatment - the threats to her children -  and the long-term effects of anxiety and insecurity which she suffered.

333.     The Commission would emphasise the importance of effective safeguards against the practice of torture and ill-treatment. It observes that the applicant was held from 13 to 22 February 1994, - a period of ten days - which grossly exceeds the period of four days, the maximum which the Court has previously held to be permissible in exceptional cases (see Eur. Court HR, Brogan and others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 33, para. 62). Long periods of unsupervised detention facilitate the practice of torture and in themselves are a matter for acute concern. This case also highlights the importance that proper records are kept of persons in custody - the times and duration of interrogations - which enables checking of what actually occurred (see para. 309) and that the procedure adopted for the medical examination of detainees be effective. The Commission has found substantial doubts arising as to the efficacy of the examination in the applicant’s case, where suspects were taken late at night in a large number to a busy casualty department. Nor is it satisfied that in the circumstances doctors considered themselves to be in a position where they could or should be inquiring into the causes of apparent injuries and producing frank, critical reports (see also the CPT’s findings and recommendations in their public statements, paras. 223-229). It does not find it however appropriate in this case to draw any conclusions as to the existence of a practice of torture, although it acknowledges the importance of the reports of the CPT, which has invaluable experience of the conditions of detention in Turkey, which it has investigated in a careful and scrupulous manner.

CONCLUSION

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

3.As regards Article 18 of the Convention

335.     Article 18 of the Convention provides as follows:

"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

336.     The applicant maintains that Article 18 imposes a requirement of good faith on the State Party. In this case, she alleges that the evidence reveals that the authorities deliberately monitored the correspondence of the applicant with her legal representatives in the United Kingdom and sought through, inter alia, torture and intimidation to stop her pursuing her application. Such conduct is calculated, inter alia, to frustrate the ability of the Convention to secure the protection of the rights contained therein.  This is the ultimate abnegation of effective accountability, the rule of law and democratic values and represents a violation of Article 18 of the Convention.

337.     The Government deny that there is any factual or juridical basis for these complaints.

338.     Although the applicant has invoked Article 18 for the first time in her observations in the merits, the Commission notes that the factual basis of the complaints was included in her submissions of 31 March 1994, prior to the decision on admissibility. The Commission has examined the applicant's allegations, and recalls that it has been unable to make any findings as regards the alleged interception of communications. The complaints of torture and intimidation it finds it more appropriate to consider under former Article 25 below. It accordingly does not find any basis for the finding of a violation of Article 18 of the Convention.

CONCLUSION

339.     The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention.

4.As regards former Article 25 of the Convention

340.     Article 25 para. 1 of the Convention provides:

"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."

341.     The applicant submits in her observations on the merits that during her time in detention she was threatened in connection with the application which she had made to the Commission, that if she did not stop these things she would meet a bad end. The fact that she made an application was a factor also in her torture.  The authorities by their actions, including detention, interrogation and intimidation of the applicant, in part in connection with her application, had severely and extra-judicially punished the applicant for lodging an application. It is further alleged that she was shown a copy of her letter of authorisation appointing her representatives and that this showed that the authorities must have been deliberately interfering with her correspondence. She submits that this is the most blatant interference with the right of individual petition. Further, she submits that there is a practice of the Turkish authorities to discourage persons from making applications, referring to findings in the cases of Akdivar and others v. Turkey, Kurt v. Turkey, Ergi v. Turkey (op. cit.).

342.     The Government deny that there is any factual or juridical basis for these complaints, submitting that there was no link between her apprehension on various dates and her application to the Commission.

343.     The Commission recalls that Article 25 para. 1 imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Commission. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings.  In this respect, as in others, the Convention must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (see Eur. Court HR, Cruz Varas and others judgment of 20 March 1991, Series A no. 201, p. 36, para. 99).

344.     The Commission would further emphasise that the right of individual petition guaranteed under Article 25 of the Convention is of fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention and its Protocols. Deliberate or repeated interferences with the free exercise of that right must be regarded, in the Commission's view, with the gravest concern. Interference may also result from indirect pressure on applicants from State authorities. In particular, approaches by domestic authorities to applicants to question them about their applications in circumstances which may be construed as attempts to discourage or penalise the pursuit of complaints may lead to a finding that a Contracting State has failed to comply with its obligations under Article 25 para. 1 of the Convention. In this context, the Court, having regard to the vulnerable position of applicants and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, has found that the questioning of applicants about their applications to the Commission amounts to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of Article 25 of the Convention (see Eur. Court HR, Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996 IV).

345.     The Commission recalls that it has found the applicant to be a credible and generally reliable witness. It accepts her evidence that she was questioned during her detention in February 1994 about whether she had made a complaint to Europe. In her oral testimony, she did not specify that she was threatened to make her give the application up, but described that the interrogators used this as indicating that she had joined the cause of the PKK (see para. 167).

346.     The Commission finds that questioning the applicant about her application during her detention in February 1994 and using it as an element in seeking to obtain admissions as to her involvement with the PKK was incompatible with Article 25. It has previously emphasised that questioning of an applicant by the police about any aspect of an application to the Commission is unacceptable, save in exceptional circumstances, and that in any event such questioning should only take place where the applicant is accompanied by her own lawyer (see also, Ergi v. Turkey, op. cit., para. 105, Comm. Rep. 20.5.97, para. 180). Such questioning may reasonably be regarded as intimidatory by applicants and thus, at the very least, discourage the exercise of the right of individual petition, particularly where as here the interrogation included ill-treatment contrary to Article 3 of the Convention. The Commission notes that, having regard to her experiences in February 1994, the applicant who was suffering from post-traumatic stress disorder, unsurprisingly suffered intensification of her symptoms on being taken back to the Anti-Terror Department and Security Directorate in September and October 1995. However, as the further periods of detention were not linked with her application, the Commission, notwithstanding its concern as to the apparent arbitrariness of the measures taken (paras. 323 and 325) does not find it appropriate to make any further findings under Article 25 of the Convention. The Commission has also found an insufficient basis on which to make any findings about the source of the information which the police might have had or as to the source of the threatening telephone calls which she received (see paras. 318 and 20).

347.     The Commission concludes that the applicant has been subject to pressure from authorities which constitutes a hindrance in her right of individual petition guaranteed under former Article 25 para. 1 of the Convention.

CONCLUSION

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

F.Recapitulation

349.     The Commission concludes, unanimously, that there has been a violation of Article 10 of the Convention (see para. 246 above).

350.     The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention (see para. 280 above).

351.     The Commission concludes, by 27 votes to 2, that there has been a violation of Article 3 of the Convention  (see para. 289 above).

352.     The Commission concludes, unanimously, that no separate issue arises under Article 14 of the Convention (para. 294 above).

353.     The Commission concludes, unanimously, that there has been no violation of Article 1 of Protocol No. 1 to the Convention (para. 299 above).

354.     The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention (para. 334 above).

355.     The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (para. 339 above).

356.     The Commission concludes, unanimously, that Turkey has failed to comply with its obligations under Article 25 para. 1 of the Convention (para. 348).

M.-T. SCHOEPFER                                                           S. TRECHSEL

                 Secretary                             President

     to the Commission                                   of the Commission

(Or. English)

 PARTLY DISSENTING OPINION OF MR S TRECHSEL

With regard to Article 13, I have voted against the finding of a violation, although I fully agree with the considerations set out in paras. 286-287.  In my view, no further issue arises because the finding on Article 2 takes into account that there has been no effective investigation nor any adequate proceedings after the incident.

[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]  The year 1992 is given in the copy of the indictment provided, but is probably a typing error.

[3]  This date is misstated and should read as 13 February 1994.

[4] At another point, she said that her blindfold was loose once and it was then that she saw the document.

[5]  This report (CPT/inf(99)2) was published on 23 February 1999.

[6] A gendarme intelligence organisation. See references in the Susurluk report, Appendix II.

[7] See Tanrikulu, supra, where the Silvan public prosecutor issued a decision of lack of jurisdiction referring the killing of the applicant's husband by two unknown perpetrators to the prosecutor's office at the State Security Court. Also Mahmut Kaya v. Turkey, No. 22535/93, Comm. Rep. 23.10.98, pending before the Court, where the killing of Metin Can and Dr Hasan Kaya by unknown perpetrators were considered as falling under the jurisdiction of the State Security Court.

[8] Eg. No. 22535/93, Mahmut Kaya v. Turkey, op. cit., in which case the killings of Dr Hasan Kaya and Metin Can by unknown perpetrators were investigated as terrorist crime, notwithstanding widespread allegations of involvement of confessors and Yeil (see Susurluk report, Appendix II concerning his links with State agencies). See also Yaa v. Turkey, Eur. Court HR judgment of 2 September 1998, to be published in Reports 1998, para. 105, where despite a total lack of progress in the investigation, the Government asserted that the shooting of the applicant and the killing of his uncle by unknown perpetrators were the acts of terrorists.

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