BULDAN v. TURKEY

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28298/95
by Nejdet BULDAN
against Turkey

The European Court of Human Rights, sitting on 4 June 2002 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen, judges,
MrF. Gölcüklü, ad hoc judge,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 2 December 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, was born in 1948 and lives in Germany. He is represented before the Court by Professor Kevin Boyle and Professor Françoise Hampson, both of the University of Essex, England.

A.  The circumstances of the case

The facts, as well as documents submitted by the parties have been set out separately.

The applicant

Savaş Buldan, the applicant’s brother, was a Kurdish businessman who was known for his prominent opposition to Government policies towards the Kurds. He was arrested in the past and tortured for his political activities.

At 4.30 a.m. on 3 June 1994 Savaş Buldan was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with Adnan Yıldırım and Hacı Karay. They were approached by seven or eight people with walkie-talkies, firearms and bullet-proof vests who probably introduced themselves as police officers and who were led by a 40-45 year-old man in a suit. The three men were then forced into three cars.

The applicant, who at this time was living in Turkey, was informed of what had happened to his brother at 5:00 a.m. that same day. With friends and family he began a search, especially along the Istanbul-Ankara motorway. Part of the search party came to an area called the Yedigöller (Seven Lakes). This was a national park and a shooting polygon was situated therein, open only to members of the security forces and high-level State officials. There they met a watchman who told them that “10 or 11 people in three cars had entered this polygon on the same day at about 7.30 a.m.”. The watchman then gave a description of the three vehicles that matched the description given by those who had witnessed the original arrests at the Çınar Hotel.

On learning of his brother’s arrest, the applicant immediately contacted members of Parliament, the Governor of Istanbul and the media. The Office of the Prime Minister was also informed. The applicant and his legal representative also made a written application to the Bakirköy Public Prosecutor.

The bodies of Savaş Buldan, Adnan Yıldırım and Hacı Karay were found some 270 kilometres from where they had been arrested, in the village of Yığılca within the district of Bolu.

On 4 June 1994 the applicant went to Bolu State Hospital in order to identify the bodies of his brother and his two friends. They had been shot after being tortured.

On entering Yığılca village to investigate the matter after the incident, the applicant was stopped by police and his registration and identity card numbers were taken. He was interrogated by the security forces.

The Government

The Government claim that the authorities were officially informed about the kidnapping by a lawyer of the Buldan family at 2 p.m. on 3 June 1995. The initial enquiries made by the authorities showed that the three persons had not been taken into custody.

The same day, Nihat Buldan, one of Savaş Buldan’s brothers, submitted a petition to the Bakırköy public prosecutor’s office in which he claimed that his brother and two of his brother’s friends had been abducted by people who had identified themselves as plainclothes police officers. Nihat Buldan requested the prosecutor to investigate the matter. The prosecutor asked the family members to go to the Yeşilköy police headquarters, which was responsible for the area where the incident had taken place. The family members complied with this request but no written statements were taken from them at the police headquarters. Yeşilköy police headquarters informed the Bakırköy police headquarters and also the anti-terrorist branch of the police the same day.

On 4 June 1994 a statement was taken from Sebahattin Uz, the doorman at the Çınar Hotel. He stated that as the three disappeared persons, whom he knew as they were regular customers at the casino of the hotel, emerged at the hotel door sometime between 4.30 and 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, had approached them and held them against the wall and conducted body searches. The three persons were then put into a waiting Mercedes car. The doorman stated that he had overheard one of the persons saying that they were police officers and that they would release the three persons as soon as statements had been taken from them. The Mercedes then left followed by the second car which, according to the doorman, was a sports car. The doorman was unable to describe any of the persons as it was dark and they had been standing some distance from him.

Also on 4 June 1994 a statement was taken from Hüseyin Kılıç, a security guard at the Çınar Hotel. Mr Kılıç stated that seven or eight persons had approached the three disappeared persons who had walked out of the door, the latter had been stopped about 25 metres from the exit. These persons all wore waistcoats and were carrying weapons. They forced the three disappeared persons into the waiting cars after having conducted body searches. This witness stated that one of the cars was a sports car.

On 5 June 1994 a statement was taken from Serdar Özdemir who was a taxi driver waiting for a fare at the taxi rank outside the Çınar Hotel when he had noticed the three disappeared persons walking out of the hotel. The witness stated that seven or eight persons had approached the three disappeared persons, had searched them and put them into the waiting cars. One of the cars was a Mercedes 300 SEL. The second car was a cherry red Hyundai. The witness also recalled that he had seen a third car, a sports car, which had then been driven away by one of the persons wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of the seven or eight persons.

On 5 June 1994 a statement was also taken from another taxi driver, Mr Hüseyin Durmazer. He stated that as he had approached the taxi rank outside the hotel he was able to see some people putting three other persons into a black car.

On 7 June 1994 a lawyer for the Buldan family informed the public prosecutor that the bodies of Savaş Buldan and the other two persons had been found at a place close to the Melen River near Bolu.

These preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant valid for ten years, which was the legal period stipulated for the crime of kidnapping.

On 17 March 1995 the Bakırköy public prosecutor’s investigation file, together with a report summarising the investigation, was forwarded to the Yığılca public prosecutor in order to authorise him to investigate the killings as they had taken place within his area of jurisdiction.

Meanwhile, on 3 June 1994, İsmail Taşcan contacted the Yığılca gendarmerie station and told the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. The area was open to the public. An on-site report was prepared the same day by three gendarmes who visited the place of the incident. A sketch of the place showing the position of the bodies was also drawn.

On 4 June 1994 the Yığılca public prosecutor visited the area together with two doctors. A detailed crime scene report was prepared and the bodies were transported to the Yığılca hospital. The same evening post mortem examinations were carried out by two doctors in the presence of the Yığılca public prosecutor. The bodies were then transported to the morgue of the Bolu State hospital for formal identification. Bullets recovered from the bodies were sent for ballistic examination to the Central Police Forensic Laboratory which prepared two forensic reports on 6 and 14 June 1994. The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. These ballistic reports and the photofits of the suspects were sent to the Yığılca public prosecutor on 21 June 1994.

On 4 June 1994 the Yığılca gendarmerie took statements from 13 persons who claimed to have seen three luxury cars travelling in the direction of the place where the bodies were later found. One of these witnesses, Fevzi Aydın, stated that at around 8 a.m. on 3 June 1994 he had been having his breakfast when he had seen the three cars. The first car had stopped and one of the persons inside the car had asked him for directions to Bolu. The witness stated that it was a red car, but that he was unable to remember the make of the car. There were two persons in the car, both around 40 years of age with one of them sporting a beard. The witness had also seen three persons in the third car. The witness was able to remember that the car registrations all started with ‘34’, the prefix for cars registered in Istanbul. Most of the other witnesses also gave similar statements.

On 6 June 1994 statements were taken from 11 other witnesses including a number of officials working at the Yedigöller National Park. One of these witnesses, Muzaffer Yıldız, confirmed that all the cars’ licence plates had the prefix ‘34’. The witness had been surprised to see such luxury cars taking such rough roads. The witness also stated that one of the passengers had asked for directions to the Yedigöller National Park. Another witness, Şevket Öztürk, similarly stated that he had seen the three cars and that he had also been asked for directions for the Yedigöller National Park by the passenger in a Mercedes with darkened windows.

On 7 June 1994 five more witnesses were questioned. These witnesses also stated that they had seen the three cars at 9 or 9.30 a.m. One of them stated that he had been asked for directions to Bolu.

On 10 June 1994 all the witness statements and other documents were sent to the Yığılca public prosecutor. The prosecutor then informed the Istanbul police about the bodies. The family members were then sent to the morgue to identify the bodies.

On 21 June 1994 a statement was taken from Nihat Buldan, brother of Savaş Buldan. He stated that he had been told about the kidnapping which was said to have been carried out by persons claiming to be police officers. This was the reason why he had contacted the police to verify whether his brother had been taken into custody. The witness concluded his statement by stating that his brother had no enemies and that he did not suspect anyone. He requested that the perpetrators responsible for the kidnapping and the subsequent killing be apprehended.

On 31 August 1995 the Yığılca public prosecutor, having unsuccessfully searched for the perpetrators, issued a continuous search warrant for the perpetrators of the crime. This search warrant was to remain valid for 20 years as required by the relevant domestic legislation for the crime of homicide. The Bakırköy public prosecutor was also informed about this warrant. He was requested to submit follow-up reports every month until the expiry of the statutory time limit in 2014.

The Government also submitted documents to the Court showing that one Yaşar Öz was prosecuted, tried for, and, on 18 November 1999 acquitted of the murder of Savaş Buldan.

Documents submitted by the parties

The following information appears from the official documents submitted by the parties.

(a)  The investigations instigated by the Bakırköy and Yığılca prosecutors

On 3 June 1994 at 9 p.m. İsmail Taşcan went to the Yığılca gendarmerie station and told the officers there that at around 8.30 p.m. he had gone to the Melen River to fish and had seen three bodies lying near the river in the Taşlımelen area. A statement was taken from him confirming what he had seen.

Three gendarmerie non-commissioned officers visited the scene of the incident at 9.15 p.m. the same day and drew up a crime scene report. According to this report, the bodies were positioned between the Melen River and the road which runs between the towns of Yığılca and Karakaş. No documents or other property were found on the bodies which might establish their identities. They had been shot in the head and one of them had also been shot in the chest. Valuable items, such as gold rings and a gold wristwatch, were intact. It was concluded that the men had been shot at point-blank range and that they had also been beaten since they had black eyes. The gendarmes removed two spent bullets from two of the bodies.

The Yığılca public prosecutor, who had been informed by the gendarmes, arrived at the scene together with two doctors at around 11 p.m. the same evening. The prosecutor recorded in his on-site report that the place of the incident was situated approximately 12 kilometres from Yığılca town centre. A preliminary examination of the bodies revealed that rigor mortis had set in. It was also concluded in this report that the three men had been shot at point-blank range. The bodies were then transferred to the Yığılca hospital. A more detailed examination of the bodies at the hospital showed that all three deceased had lacerations to their eyes caused by blows and that they had ecchimoses on their wrists, which had possibly been caused by pieces of string used to tie the wrists. The nose of one of the deceased was broken. One of the deceased had been hit by one bullet, the second deceased had been hit by two bullets and the third deceased had been hit by three bullets. The two doctors concluded at 2.15 a.m. on 4 June 1994 that the cause of death was celebral hemorrhage and internal bleeding. They decided that there was no need for a full post-mortem examination. According to the doctors, the three deceased persons had been killed more than ten hours previously. It was finally recorded in the report that a gendarmerie commander who had seen on television the same day had stated that three persons had been kidnapped in Istanbul, had informed the prosecutor. Taking into account the possibility that these three bodies might be the men kidnapped in Istanbul earlier that day, the prosecutor ordered the transfer of the bodies to the morgue at the hospital in Düzce, a nearby town.

On 4 June 1994 a statement was taken from Sebahatin Uz, the doorman at the Çınar Hotel, by three police officers. Mr Uz stated that Savaş and Adnan had been forced into a dark-coloured Mercedes car outside the hotel. The registration of the car was 34 CK 420. The darkness had prevented the witness from seeing the faces of the persons who had claimed to be police officers.

The ballistics report prepared by the Police Forensic Laboratories on 14 June 1994 showed that five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report also showed that two bullets recovered from the bodies of Savaş Buldan and Hacı Karay had been fired from the same 9-mm pistol. The report concluded that the comparisons of the five spent bullet cases with other bullet cases recovered at the scenes of other unknown perpetrator killings since 1985, did not reveal any similarities.

The ballistics report prepared at the end of an examination at the Gendarmerie Forensic Laboratory on 17 June 1994 showed that the two bullets recovered from the bodies of Savaş Buldan and Hacı Karay, both 9-mm and Parabellum type, had been fired from the same pistol. The report further concluded that the comparisons of five spent bullet cases found at the scene of the killing with other bullet cases recovered at the scenes of other unknown-perpetrator killings did not reveal any similarities.

On 10 January 1995 the Police Laboratory, which had carried out a forensic examination on a 9-mm Smith and Wesson pistol and 11 bullets found in a car in Istanbul, concluded that this weapon had not been used in any unknown perpetrator murder.

On 31 August 1995 the Yığılca public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the seven persons who, posing as police officers, had abducted, tortured and killed Savaş Buldan, Adnan Yıldırım and Hacı Karay. The prosecutor further stated in this report that no evidence had been found during the investigation. It was decided, therefore, to issue this continuous search warrant for the perpetrators of the killings, which remained valid until 3 June 2014, the statutory time limit under Article 102 of the Turkish Criminal Code. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police and also to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators.

On 4 June 1996 a statement was taken from one İrfan Kurşunlu who had first seen the bodies, together with his uncle, at 8.15 p.m. on 3 June 1994. He stated that he had not heard any gun shots that day.

Also on 4 June 1996 the Yığılca public prosecutor visited the place where the bodies had been found. He also went to take a statement from one Ayşe Araç who claimed that she had heard gun shots on the day of the killing. The house of Ayşe Araç was just outside Hacılar village and approximately two kilometres from the place of the incident. To test whether this would have been possible, the prosecutor ordered a gendarmerie soldier to the place of the incident and to fire a weapon similar to the one used in the killings. The prosecutor was able to hear the gun shot. The prosecutor summoned 12 persons, who had seen the three cars on the day of the incident, to his office in order to take further statements from them.

On 6 June 1996 a gendarmerie non-commissioned officer visited the place where the bodies had been found and prepared a report. According to this report, the place of the incident was exactly 7,000 metres from Yığılca town centre. It was impossible for a person in Hacılar village, which was eight kilometres away, to have heard the gun shots. According to the experiments carried out that day the maximum distance from which gun shots could have been heard was five kilometres.

On 6 June 1996 a statement was taken by the Yığılca public prosecutor from one Ayşe Uzun who had seen the three cars on the day of the incident. She stated that one of the cars had been a red Mazda with four persons in it, but that she had not seen any of the number plates.

On 6 June 1996 another statement was taken by the prosecutor from one Bengü Çelebi who had also seen the three cars on the day of the incidents. She was able to recall that one of the cars had been a red Mazda. She stated that there were three persons in the last car, which had darkened windows.

On 7 June 1996 the Ministry of Justice informed the Düzce public prosecutor about the application made to the former Commission by the applicant. The Ministry’s letter stated that there were no documents in the investigation file showing that attempts had been made to trace the cars used in the kidnapping despite the fact that eyewitnesses had given the authorities the full registration numbers of one of the cars and the prefixes for the other two cars. In addition, some witnesses who lived near the place where the three persons had been killed had stated that they had heard gun shots and that the timing of the gun shots coincided with the time of the killing. The Ministry’s letter finally stated that although it was highly probable that further investigations would not produce any outcome, the investigating authorities should still take further steps in the investigation, as this case would be scrutinised by the Commission which, in the past, had put prosecutors in difficulties when questioning them. The Ministry requested the following steps to be taken:

-  the cars should be traced;

-  it should be checked whether witnesses could have heard the gun shots;

-  it should be checked with the local gendarmerie whether tyre marks had been subjected to forensic examination;

-  it should also be confirmed with the local gendarmerie whether or not any of the witnesses had informed them in the morning of 3 June 1994 that they had heard gun shots.

On 11 March 1997 an identity parade was held in the presence of Sebahattin Uz, the doorman at the Çınar Hotel, and Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994. They stated that Ercan Aksoy, Oğuz Yorulmaz and Ayhan Çarkın, three suspects included in a line-up of six, had not been among those who had carried out the kidnapping.

On 19 March 1997 the Police Forensic Laboratory concluded that Ercan Aksoy, Oğuz Yorulmaz and Ayhan Çarkın did not resemble any of the photofits made of the abductors.

On 8 July 1998 the Police Forensic Laboratory informed the Yığılca public prosecutor in a letter that the examination of a semi-automatic pistol on 31 January 1994 had established that this weapon had not been used in any unknown-perpetrator killing. It appears from this letter that the same pistol was re-submitted to the laboratory for re-examination.

Between 14 July 1998 and 24 August 1999 the area where the three bodies had been found was visited 20 times by the gendarmerie and the police in order to find the perpetrators there. It had not been possible, however, to find the perpetrators or any other evidence at the place.

(b) The criminal proceedings instituted against Yaşar Öz

On 27 March 1998 the Police Forensic Laboratory concluded in their report that one of the photofit pictures of one of the abductors resembled Yaşar Öz.

On 20 April 1998 a warrant was issued by the Criminal Court of Peace in Yığılca (Yığılca Sulh Ceza Mahkemesi) for the arrest Yaşar Öz who was at that time detained in the Metris prison in İstanbul for another crime. It was stated in this arrest warrant that, according to the Police Forensic Laboratory report of 27 March 1998, one of the photofit pictures of one of the abductors resembled Mr Öz.

On 5 May 1998 Yaşar Öz made a statement to a public prosecutor as requested by the Yığılca public prosecutor. Mr Öz stated that he had not been to Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors since, he had had a beard at the time of the kidnapping, which fact was easily verifiable because he had given an interview to a local television channel at around the time of the kidnapping.

On 7 May 1998 Yaşar Öz was formally arrested by the Bakırköy Criminal Court of Peace.

On 14 May 1998 the Yığılca Criminal Court of First Instance (Yığılca Asliye Ceza Mahkemesi) rejected the appeal by Yaşar Öz against the decision to arrest him for the crime of kidnapping and killing the applicant’s brother and the other two persons.

On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Mr Sebahattin Uz, the doorman at the Çınar Hotel, and Mr Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten, was not one of the men who had carried out the kidnapping.

On 3 June 1998 Fevzi Aydın, one of the witnesses who had seen the three cars on 3 June 1994, was shown the picture of a red car with registration number 34 ZU 478. He stated that this car was not the the red sports car he had seen on 3 June 1994. He was also unable to recognise Yaşar Öz when the latter’s picture was shown to him.

On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor’s opinion, was the competent court to prosecute Mr Öz.

On 14 July 1998 one Ali Osman Sivri was questioned by public prosecutor no. 32025. Mr Sivri was a watchman working at the Karadere Forest which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. A person had got out of the car and filled a container with water from a fountain and left. This witness was also unable to recognise the red sports car with the registration number 34 ZU 478. He was further shown pictures of Yaşar Öz. The witness stated that the person he had seen did not look like Yaşar Öz.

On 7 October 1998 the prosecutor at the Ankara State Security Court took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was no evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation and therefore the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor who later transferred the file to the Yığılca public prosecutor.

On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to prosecute Yaşar Öz who, according to the evidence gathered by the Yığılca public prosecutor, was one the perpetrators of the kidnapping and subsequent killings.

On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant’s brother and his two friends.

On 24 November 1998 the Düzce Assize Court rendered its judgment in the trial of Yaşar Öz. In order to assist the examination of the case, the court had obtained the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz’s role in the Susurluk affair (a copy of the Susurluk Report has been submitted to the Court by the applicant on 21 May 1998). The court noted that according to this indictment, Yaşar Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar. The indictment further stated that Mehmet Ağar, the chief of the General Police Headquarters in Ankara, had personally issued Mr Öz with a licence to carry weapons. During a police raid on Mr Öz’s house in Istanbul on 31 April 1994, a 9-mm. parabellum type Smith and Wesson pistol, the serial number of which had been erased, and a 30 calibre pistol, together with 43 bullets, had been found and Yaşar Öz had been taken into custody. Mehmet Ağar, informed about the arrest, had telephoned the deputy police chief of Istanbul and asked for Yaşar Öz’s release. Mr Ağar had also asked for the weapons and other documents found in Mr Öz’s house to be sent to him. Necdet Menzir, the police chief of Istanbul, had then been consulted. Yaşar Öz had been released and the weapons sent to Mr Ağar in Ankara as he requested. The Düzce Assize Court requested the General Police Headquarters in Ankara to give information about the fate of these weapons, but this request was rejected as the authorities at the General Police Headquarters in Ankara were unable to find any records of these weapons in their archives. The court further noted in this connection that the unlicensed pistol which had been found in a car in Istanbul on 10 January 1995 belonging to one Aydınhan Kasal and which had been examined by the Police Forensic Laboratory on the same date (see above), was one of the two pistols which had been found in Mr Öz’s house and then sent to Mr Ağar in 1994. Although it was known that Mr Kasal was a business partner of Mr Öz, it had not been explained how this pistol, which had been sent to Mr Ağar in 1994, had come to be in Mr Kasal’s possession in 1995. The court finally noted that Yaşar Öz’s name had been implicated in the Susurluk Report which had concluded that; “the fight against terrorism gained momentum in 1993 and Mehmet Ağar was appointed as the chief of the General Police Headquarters in Ankara. There had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can constituted such activities”. The court stated that:

“Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu. Their killings resembled the above-mentioned and other killings in the same area. The defendant is currently being tried before another court for membership of an organisation which is allegedly responsible for killing persons who had a lot in common with the deceased persons in the present case. Furthermore, there is no evidence to suggest that these killings were carried out for a personal reason”.

The court concluded, in the light of the above information, that it was precluded from examining the merits of the case before it as it lacked jurisdiction. The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime.

On 16 December 1998 the Ankara State Security Court concluded that it also did not have jurisdiction to deal with the case. The court held that according to the Düzce public prosecutor’s indictment of 16 November 1998, Yaşar Öz was charged with the offence of multiple murder. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation to resolve the dispute relating to jurisdiction.

On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, decided that the Düzce Assize Court had jurisdiction to deal with the case.

Seven hearings took place in the criminal proceedings against Yaşar Öz before the Düzce Assize Court. Nihat Buldan, one of Savaş Buldan’s brothers, joined the proceedings as a civil party. Yaşar Öz stated before the court that there was no evidence linking him to the killings and that the only reason for his trial was to prove to the European courts that the killings were being investigated. 19 eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the area where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before.

On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murder for lack of evidence. The case file was sent back to the Yığılca public prosecutor’s office to continue the search for the perpetrators.

(c) The statement of Mr Hanefi Avcı

On 7 February 1997 Hanefi Avcı, who was the Head of the Intelligence Branch at the Istanbul Police Headquarters at that time, gave a statement to two public prosecutors. This statement was taken from him because he had made very serious allegations to the Parliamentary Susurluk Commission which had been leaked to the press and therefore the public prosecutors seized this opportunity to question him about these allegations. At the beginning of his interview, Mr Avcı stated that the information he had given to the Parliamentary Commission had been based on information he had come across during his duties as the chief of the intelligence branch. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was however of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He would indicate in respect of which issues it might be possible to find documents.

Among his submissions which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following:

“The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends constituted such activities. It was established that these persons were financially helping the PKK. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation which are known by us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads where they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”.

(d) The Susurluk Report

The applicant lodged with the Commission a copy of the so-called Susurluk report[1], produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister’s Office. After receiving the report in January 1998, the Prime Minister made it available to the public, though eleven pages and certain annexes were withheld.

The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.

The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. The report made reference to an individual Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil” detailing his involvement in unlawful acts in the south-east and his links with MIT:

“... Whilst the character of Yeşil, and the fact that he along with the group of confessors he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnap etc. were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MIT may use a lowly individual... it is not an acceptable practice that MIT should have used Yeşil several times... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MIT... As a result of the State’s silence the field is left open to the gangs (page 26)

... Yeşil was also associated with JITEM, an organisation within the gendarmes, which used large numbers of protectors and confessors (page 27).

In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir[2] (page 35) would say from time to time that he had planned and procured the murder of Behçet Cantürk[3] and other partisans from the mafia and the PKK who had been killed in the same way... The murder of ... Musa Anter[4] had also been planned and carried out by A. Demir (page 37).

All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[5]). Other journalists have also been murdered (page 74).”

The report concludes with numerous recommendations, including the improvement of co-ordination and communication between different branches of the security, police and intelligence departments, the identification and dismissal of security force personnel implicated in illegal activities, limiting of the use of confessors, a reduction of the number of village protectors, the cessation of the use of the Special Operations Bureau outside the south-east region and its incorporation into the police outside that area, the opening of investigations into various incidents and steps to suppress gang and drugs smuggling activities, and the recommendation that the results of the Grand National Assembly Susurluk enquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken.

B.  Relevant domestic law and practice

The Turkish Criminal Code makes it a criminal offence:

– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);

– to issue threats (Article 191);

– to subject an individual to torture or ill-treatment (Articles 243 and 245);

– to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450).

The authorities’ obligation to conduct a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).

If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). Pursuant to Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).

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.

Article 102 of the Criminal Code regulates the statutory periods during which a public prosecutor is obliged to continue the preliminary investigation. According to subsection 1 of the same article, the statutory period to investigate a case of homicide is 20 years.

COMPLAINTS

The applicant complained of violations of Articles 2, 3, 13 and 14 of the Convention.

The applicant complained under Article 2 of the Convention that the State failed to provide adequate protection for his brother’s right to life and failed to take sufficient measures to protect his brother from the acts of third persons. Alternatively, the applicant alleged that the State directly ordered the killings or gave its tacit authorisation to third parties to engage in these killings. He also complained that the State failed adequately to investigate and prosecute his brother’s killers. The applicant submitted that his brother was a victim of an administrative practice of violation of the obligation to protect life. The applicant further submitted on his own behalf that his right to life has been placed at unwarranted risk as a result of his protests to the Turkish Government about the treatment of his brother.

The applicant complained under Article 3 of the Convention that his brother was subjected to torture before being killed.

Under Article 13 of the Convention, the applicant referred to the lack of any independent national authority which could investigate and bring to justice those responsible for these deaths.

Invoking Article 14 of the Convention in conjunction with Articles 2, 3 and 13 of the Convention, the applicant alleged that only Turkish citizens of Kurdish origin were regularly subjected to unlawful killings and affected by the breakdown of the investigation, prosecution and court system.

THE LAW

The applicant complained that his brother Savaş Buldan was tortured and killed because of his Kurdish origins and also for his political beliefs by persons on the orders of State agents and that the State failed to protect his brother’s right to life and to carry out an adequate investigation into the killing. He invoked Articles 2, 3, 13 and 14 of the Convention which provide as follows:

Article 2

“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.”

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] 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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] 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.”

Exhaustion of domestic remedies

The Government submitted that the investigation by the Yığılca public prosecutor into the killing of the applicant’s brother is still continuing. This prosecutor issued a continuous search warrant for the perpetrators of the killings, which remained valid until 2014. The Government claimed, therefore, that the application must be rejected as premature.

The applicant claimed that he has exhausted domestic remedies by complaining to the prosecutor about the kidnapping and the killing of his brother. As to the Government’s argument that remedies have not been exhausted as there is a “continuous search warrant” in place, valid for 20 years, the applicant submitted that such an argument had no place in the Convention system: were an applicant required to wait this length of time before being able to apply to the European Commission, it would have the effect of rendering his remedy under the Convention illusory and would undermine the role of the Strasbourg organs in supervising and ensuring respect for the Convention. Such a requirement would also fly in the face of the purpose of the six months rule which, inter alia, serves to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-...). A 20-year “waiting period” frustrates this purpose. Moreover, any remedy which involves inordinate delays or which takes up to 20 years to exhaust, cannot be considered an effective remedy for the purposes of Article 35 of the Convention.

The Court notes that it is not disputed between the parties that an investigation was started by the Bakırköy public prosecutor’s office on 3 June 1994, the date of the kidnapping, pursuant to a petition submitted to that office by a lawyer of the applicant. The Court also notes that the Yığılca public prosecutor, in whose jurisdiction the applicant’s brother was killed, issued a continuous search warrant for the perpetrators of the crime on 31 August 1995 after having unsuccessfully sought out the perpetrators. This search warrant will expire in 2014.

In so far as the Government argue that the application is premature because the investigation is still continuing, the Court considers that the issue concerning exhaustion of domestic remedies requires a determination to be made of the effectiveness of the investigation. As such, it is inextricably linked to the substance of the applicant’s complaint under Article 2 of the Convention concerning the alleged inadequacy of the investigation. It follows that this issue should be joined to the merits of the case.

Merits

The Government submitted that the allegations made by the applicant are fabricated. The Government also submitted that no evidence exists of the three men having been taken into custody. Exhaustive investigations were carried out both by the police and the gendarmerie in order to collect evidence. In the opinion of the Government, the kidnapping and killing of the three Turkish citizens may have been perpetrated by the PKK terrorist organisation which has been intimidating Turkish citizens of Kurdish origin for reasons of, for example, extortion. Savaş Buldan’s family is, as acknowledged by the applicant, a rich and well-known family and it would not be surprising if this family had also fallen victim to such threats. The PKK terrorist organisation has carried out many executions when their demands were not met. In the alternative, the killings may have been carried out by a rival terrorist organisation of the PKK, such as the Hizbollah which is responsible for many similar kidnappings and killings in south-east Turkey. As to the applicant’s claim that his brother and the two other victims were killed at a shooting polygon which was only accessible by State officials, the Government stated that this was not true as the bodies were found by a civilian fishing in the nearby river. The Government further observed that if the applicant’s allegation was true, this would mean that the State agents involved were so stupid that they had to ask for directions to the area where the killings were carried out.

In a letter to the Court of 15 July 1998, the Government contested the evidential value of the Susurluk Report, submitting that this report currently had no official status. The report was in any event not relevant as it contained no direct link to the present application. It had been prepared with the sole aim of examining certain allegations so that judicial investigations could be carried out subsequently. It was not therefore the result of a judicial inquiry as such.

The Government did not make any observations on the documents pertaining to the investigations carried out after the date on which they filed their initial observations (29 July 1996), including the trial and subsequent appeal of Yaşar Öz.

The applicant submitted that, save for one important element, the bulk of the evidence adduced by him was not denied by the Government. They differed on the inferences that could reasonably be drawn, both on matters of fact and on the application of relevant law. The important element which, in the applicant’s opinion, was in dispute is the existence of a “shooting polygon” where the killings were carried out and which was out of bounds to the public. The applicant declared that the fact that the kidnappers asked for directions to the area did not mean that they were not State agents; it was conceivable that agents hired by the Government to carry out a mission such as in the instant case might not know the area in detail. In the applicant’s opinion, the fact that directions were asked established that the abductors had been issued with specific instructions to take the victims to a particular place. This was consistent with the men having being brought to the restricted polygon area. The applicant submitted in this connection that it would be unlikely that an organised criminal faction or a terrorist group which went to the trouble of organising false police identification and obtaining items of official police clothing, would not know where to take their victims.

The applicant made extensive references to the Susurluk Report in his observations. He submitted that this report, which concluded that his brother was murdered by agents of the State, contradicted the substance of the respondent Government’s observations in which they claimed that the kidnapping and the murders might well have been carried out by the PKK as part of an extortion campaign. According to the applicant, the facts recounted in the Susurluk Report made it clear that the Turkish authorities were aware that Savaş Buldan had in fact been killed by elements hostile to the PKK and that the killing in these circumstances and for these motives had happened with their full knowledge.

In support of his allegations that the respondent State had either directly ordered the killing or had given its tacit authorisation to third parties to engage in the killing or had, in any event, failed to provide adequate protection for his brother’s right to life, the applicant referred to Hanefi Avcı’s statement taken by a public prosecutor on 7 February 1997 (summarised above). The applicant submitted that Hanefi Avcı’s testimony proved that his brother had been killed by a special team which was formed by Mehmet Ağar, the chief of police, and Korkut Eken, the chief of the Special Forces. This team also included Yaşar Öz, who was later tried and acquitted of the killings. According to Hanefi Avcı, the members of this team used police identity cards in order to make it easier to arrest Savaş Buldan and to transport him through road checkpoints which, in the absence of such identity cards, would not have been possible.

As to the unsatisfactory nature of the investigation, the applicant submitted that the authorities, right from the outset, excluded the possibility that the killings might have been carried out by the police or other individuals acting on behalf of or with the approval of the State. The applicant submitted that it could be inferred from the comment made in the Ministry of Justice’s letter of 7 June 1996 (summarised above) that the Government did not and do not intend to investigate this matter seriously. According to this letter, the official view was that it was improbable that further investigations would yield any result but they should nevertheless be carried out in view of the examination which would be conducted by the Strasbourg organs. In the applicant’s opinion, this comment encouraged the investigating authorities to carry out the investigation as a matter of form only, with the sole or paramount objective to impress the former Commission and the Court.

Within the context of the domestic investigations, the applicant further submitted that the authorities failed to follow up the existing lines of inquiry. In particular, the cars into which the three victims had been forcibly put, have not been traced despite the fact that eyewitnesses had provided the police with the complete registration number of one of them and prefixes and descriptions of the other two. The applicant further claimed that the delays surrounding the steps taken during the investigation, coupled with the fact that a continuous search warrant valid for 20 years was issued, clearly indicated a lack of serious intent to investigate further the murders. In this context the applicant referred to the regular reports by gendarmes to the effect that they visited the site where the bodies had been found and that they had not come across anything relevant to the murders. Exactly the same words were used every time a report was made, and these were made monthly. The whole procedure, in the applicant’s opinion, was pro forma, manifesting no real effort to further the investigation.

As to the trial in which Yaşar Öz stood accused of the murder of Savaş Buldan, the applicant referred to the jurisdictional disputes between the Düzce Assize Court and the Ankara State Security Court (summarised above). He submitted that the documents pertaining to these trials revealed that the investigation and the subsequent trial of Mr Öz had been conducted in a manner that systematically avoided the need to consider the links between possible perpetrators and the murder. The State Security Court had refused jurisdiction on the ground that the indictment made no reference to any involvement of an illegal organisation. The Assize Court responded to this decision by itself refusing to consider the merits of the case, precisely because of factors which the State Security Court had found were not present: the likely links between Yaşar Öz and illegal organisations. Thereafter, the Court of Cassation decided that the matter was to be treated as exclusively criminal in nature. The trial and acquittal then followed. The applicant submitted that the members of the judiciary shared his view that the investigation and prosecution had been inadequate. The applicant finally submitted in this context that what was at issue here was not simply the possible guilt of Yaşar Öz. The exchanges between the different branches of the judiciary showed that, from the moment the terms of the prosecution had been formulated, there was a refusal to consider the possibility that the killing had been planned. As a result, there was a manifest absence of an independent national authority in a position to investigate and bring to justice those responsible for the killing.

As to his claim that the authorities failed to protect his brother’s life, the applicant referred to the Susurluk Report which had indicated that relevant authorities within the State were aware of the existence of a policy of killings carried out by State agents. In the applicant’s opinion, this meant that there was awareness among State authorities that Savaş Buldan was a person at risk from their own agents or persons acting on their behalf, and accordingly he had been entitled to a level of protection commensurate with the risk to which he was exposed. The Government, however, had failed to protect Savaş Buldan from a reasonably apprehended threat to his life from State agents or persons acting with their approval.

In support of his contention that there had also been an infringement of his own right to life in that the State had failed to protect him from threats to his person which had been reasonably foreseeable in view of his political activities and his links with Savaş Buldan, submitted a record of a statement which he had made at a hearing relating to his request for asylum in Germany on 21 September 1994. He had stated that 3 or 4 days after his brother had been killed, he had begun to receive anonymous letters threatening that he would be the next one to be killed. He had also been politically active and had accused the Turkish Government of bringing about the death of his brother. The German court had acceded to his request for asylum, finding it established beyond reasonable doubt that his life was in danger in Turkey.

The Court finds, in the light of the parties’ submissions, that the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Joins to the merits the question concerning the effectiveness of the criminal investigation at issue;

Declares the application admissible, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

[1]1.  Susurluk was the scene of a road accident in November1996 involving a car in which a member of parliament, a former deputy director of the Istanbul security services, a notorious far-right extremist, a drug trafficker wanted by Interpol and his girlfriend had been travelling. The latter three were killed. The fact that they had all been travelling in the same car had so shocked public opinion that it had been necessary to start more than sixteen judicial investigations at different levels and a parliamentary inquiry.

[2]2.  One of the pseudonyms of a former member of the PKK turned informant who was known by the code name “Green” and had supplied information to several State authorities since 1973.

[3]3.  An infamous drug trafficker strongly suspected of supporting the PKK and one of the principal sources of finance for Özgür Gündem.

[4]4.  Mr Anter, a pro-Kurdish political figure, was one of the founding members of the People’s Labour Party (“the HEP”), director of the Kurdish Institute in Istanbul, a writer and leader writer for, inter alia, the weekly review Yeni Ülke and the daily newspaper Özgür Gündem. He was killed at Diyarbakır on 30 September 1992. Responsibility for the murder was claimed by an unknown clandestine group named “Boz-Ok”.

[5]5.  The appendix is missing from the report.

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