ERGİ v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 23818/94

                         Muharrem Ergi

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                   (adopted on 20 May 1997)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-29). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

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

     B.   The proceedings

          (paras. 5-24) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 25-29). . . . . . . . . . . . . . . . . . .3

II.  ESTABLISHMENT OF THE FACTS

     (paras. 30-111). . . . . . . . . . . . . . . . . . . . .5

     A.   The particular circumstances of the case

          (paras. 31-48). . . . . . . . . . . . . . . . . . .5

     B.   The evidence before the Commission

          (paras. 49-97). . . . . . . . . . . . . . . . . . .8

          1) Documentary evidence

             (paras. 49-64) . . . . . . . . . . . . . . . . .8

          2) Oral evidence

              (paras. 65-97). . . . . . . . . . . . . . . . 11

     C.   Relevant domestic law and practice

          (paras. 98-111) . . . . . . . . . . . . . . . . . 17

III. OPINION OF THE COMMISSION

     (paras. 112-189) . . . . . . . . . . . . . . . . . . . 20

     A.   Complaints declared admissible

          (para. 112) . . . . . . . . . . . . . . . . . . . 20

     B.   Points at issue

          (para. 113) . . . . . . . . . . . . . . . . . . . 20

     C.   Concerning the existence of a valid application

          (paras. 114-116). . . . . . . . . . . . . . . . . 20

          Decision

          (para. 117) . . . . . . . . . . . . . . . . . . . 21

     D.   The evaluation of the evidence

          (paras. 118-138). . . . . . . . . . . . . . . . . 21

     E.   As regards Article 2 of the Convention

          (paras. 139-156). . . . . . . . . . . . . . . . . 26

          CONCLUSION

          (para. 157) . . . . . . . . . . . . . . . . . . . 30

                       TABLE OF CONTENTS

                                                          Page

     F.   As regards Article 8 of the Convention

          (paras. 158-161). . . . . . . . . . . . . . . . . 30

          CONCLUSION

          (para. 162) . . . . . . . . . . . . . . . . . . . 31

     G.   As regards Article 13 of the Convention

          (paras. 163-166). . . . . . . . . . . . . . . . . 31

          CONCLUSION

          (para. 167) . . . . . . . . . . . . . . . . . . . 32

     H.   As regards Articles 14 and 18 of the Convention

          (paras. 168-171). . . . . . . . . . . . . . . . . 32

          CONCLUSIONS

          (paras. 172-173). . . . . . . . . . . . . . . . . 32

     I.   As regards Article 25 of the Convention

          (paras. 174-181). . . . . . . . . . . . . . . . . 32

          CONCLUSION

          (para. 182) . . . . . . . . . . . . . . . . . . . 34

     J.   Recapitulation

          (paras. 183-189). . . . . . . . . . . . . . . . . 35

APPENDIX I:    DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF APPLICATION 23818/94. . . . 36

APPENDIX II:   SKETCH MAP OF INCIDENT LOCATION

               DATED 30 SEPTEMBER 1993  . . . . . . . . . . 41

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 Aydin in the

province of Diyarbakir and born in 1954.  He is represented before the

Commission by Professor K. Boyle and Ms. F. Hampson, both teachers at

the University of Essex.

3.   The application is directed against Turkey. The respondent

Government were represented by their Agent, Mr. A. Gündüz.

4.   The applicant alleges that his sister Havva was killed by firing

from the security forces and that there is no effective remedy for his

complaints. He invokes Articles 2, 8, 13, 14, 18 and 25 of the

Convention. He states that he complains on behalf of his sister and her

young daughter.

B.   The proceedings

5.   The application was introduced on 25 March 1994 and registered

on 7 April 1994 respectively.

6.   On 27 June 1994, the Commission decided to communicate the

application to the Turkish Government, who were invited to submit their

observations on admissibility and merits before 4 November 1994.

7.   By letter of 4 November 1994, the Government requested that the

case be adjourned pending the investigation before the public

prosecutor attached to the Diyarbakir State Security Court.

8.   On 3 December 1994, the Commission refused the requested

adjournment and requested the Government to submit their observations

before 23 January 1995.

9.   By letter dated 21 February 1995, the Commission's Secretary

pointed out to the Government that the period for the submission of the

Government's observations had expired long ago and that no extension

of that time-limit had been requested. It was added that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its February session.

10.  No observations were submitted by the Turkish Government before

2 March 1995 when the Commission declared the application admissible.

11.  The text of the Commission's decision on admissibility was sent

to the parties on 9 March 1995 and they were invited to submit such

further information or observations on the merits as they wished. They

were also invited to indicate the oral evidence which they might wish

to put before delegates.

12.  On 9 March 1995, the Government submitted observations on the

admissibility and merits. On 21 April 1995, the Government submitted

observations on the Commission's decision on admissibility.

13.  On 1 July 1995, the Commission decided to take oral evidence in

respect of the applicant's allegations. It appointed three delegates

for this purpose: Mrs. G.H. Thune, Mr. N. Bratza and

Mr. E. Konstantinov. It notified the parties by letter of 27 July 1995,

proposing certain witnesses and requesting the Government to identify

security force personnel who were present during the operation in issue

and two public prosecutors. The Government were also requested to

provide the contents of the investigation files of the two public

prosecutors apparently involved in investigating the alleged incident.

14.  On 13 September 1995 and 6 November 1995, the Government

submitted information identifying certain witnesses.

15.  By letter of 14 September 1995, the applicant's representatives

made proposals as to witnesses. By letter of 15 September 1996, the

Government identified one of the witnesses proposed by the Commission.

16.  By letter dated 26 September 1995, the Commission requested the

Government to confirm that the entire contents of the investigation

files had been submitted in annex to their previous observations, to

verify whether the two proposed gendarme witnesses had been present

during the operation and, if not, to identify senior officers who would

be able to give eye-witness evidence as to the conduct of the

operation.

17.  By letter dated 21 November 1995, the Government informed the

Commission that a proposed witness, the muhtar Senai Baran, had changed

address and had not been located.

18.  Evidence was heard by the delegation of the Commission in Ankara

on 7-8 February 1996. Before the Delegates the Government were

represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen,

Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat,

Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and

Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and

Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz

(interpreter). Further documentary material was submitted by the

Government during the hearings. At the conclusion of the hearings, and

later confirmed by letter of 14 February 1996, the Delegates requested

the Government to provide certain documents and information concerning

matters arising out of the hearings and providing explanations for the

absence of certain witnesses. The time-limit expired on 5 April 1996.

19.  On 2 March 1996, the Commission decided to invite the parties to

present their written conclusions on the merits of the case, following

transmission to the parties of the verbatim record. The time-limit was

fixed at 20 May 1996.

20.  On 30 May 1996, after an extension of the time-limit until

31 May 1996, the applicants' representatives submitted their final

observations on the merits. On 30 July 1996, the Government submitted

their final observations.

21. By letter dated 12 February 1997, the Secretariat informed the

Government that it had not provided certain documents and items of

information requested following the hearings in Ankara. The Government

were requested to clarify whether they intended to provide the

information or whether they were unable to do so, and were informed in

light of the Commission's intention to resume examination of the case

that their response should reach the Commission by 21 March 1997 at the

latest.

22.  By letter dated 3 March 1997,  the Government submitted further

documentation.

23.  On 20 May 1997, the Commission decided that there was no basis

on which to apply Article 29 of the Convention.

24.  After declaring the case admissible, the Commission, acting in

accordance with 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

25.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               C.L. ROZAKIS

               L. LOUCAIDES

               J.-C. GEUS

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs. M. HION

          MM.  R. NICOLINI

               A. ARABADJIEV

26.  The text of this Report was adopted on 20 May 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

27.  The purpose of the Report, pursuant to 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.

28.  The Commission's decision on the admissibility of the application

is attached hereto as Appendix I and sketch maps of the incident area

are attached as Appendix II.

29.  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

30.  The facts of the case, particularly concerning events in or about

June 1993, are disputed by the parties. For this reason, pursuant to

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.   Concerning the alleged events in the village of Kesentas

31.  The village in which the events took place has two names: an old

Kurdish name of Gisgis and an official Turkish name of Kesentas. The

latter name has been used in this report, wherever the village has been

referred to.

     a. Facts as presented by the applicant

32.  The various accounts of events as submitted in written and oral

statements by the applicant are summarised in Section B below. The

version as presented in the applicant's final observations on the

merits is summarised here.

33.  A week before the incident on 29 September 1993 at the

applicant's village of Kesentas, Cuma Bali, one of the

two "collaborators" in the village, had been killed by the PKK. The day

before the incident, Ibrahim Halil, the other "collaborator" had moved,

under the protection of Ziyaret village guards and with apparent

assistance of gendarmes, from the applicant's village to Ziyaret

village,  which is five kilometres away. A "collaborator" is described

by the applicant as some-one spying for the State which is to be

distinguished from the village guards.

34.  On 29 September 1993, the State security forces set up an ambush

in the vicinity of the village purportedly to capture members of the

PKK. They consisted, inter alia, of a commando unit and village guards

from Ziyaret village. Security forces were located in or near a

cemetery 600 metres north-west of the village and south of the village

near the asphalt road. The security forces opened fire.  The shooting

lasted for about one hour and consisted of the indiscriminate

bombardment of civilian houses. It led to the loss of the life of the

applicant's sister, Havva. No members of the PKK were killed or

captured.

35.  The applicant's house was in the middle of the village. At the

time of the incident, his father and his sister Havva were sleeping on

the balcony, on the upper part of the house. As soon as the firing

started, Havva and his father came inside the house for shelter, but

Havva went out on the veranda to collect something. She was hit in her

head by a bullet when she was on the threshold and died immediately.

36.  On the following morning, the applicant's uncle Hasan Ergi

informed, possibly by telephone, the Ergani Gendarme Commander that

the applicant's sister had been killed. The Commander was surprised to

learn that only one person had died and stated that at least twenty

people should have died. The applicant's uncle told the Commander that

he would apply to the Public Prosecutor. But the Commander told them

to go back home and said that he would himself inform the Public

Prosecutor.

37.  Towards noon, the Public Prosecutor, a doctor and some soldiers

came to the applicant's house and an autopsy was carried out.  While

the autopsy was being undertaken inside the applicant's house, the

applicant's brother, Seyit Battal Ergi, asked the soldiers why they

were suffering such persecution. The answer of a non-commissioned

officer was that, if the villagers accepted to become village guards,

the persecution would stop and the reason why they shot at the village

was that they saw terrorists at its entrance and that the

indiscriminate firing at the entire village was to be explained by the

clumsiness of the troops. The doctor, after completing the autopsy,

said nothing except presenting condolences. He also issued a burial

certificate. The applicant and his family were not asked by the Public

Prosecutor about their version of the circumstances of the shooting.

The gendarme officer, isa Gündogdu produced the incident report without

interviewing or providing any statements from the villagers or members

of the commando forces involved. No cartridges were found by the

gendarmes in the area at which the PKK were said to be located during

the incident. There is no evidence that the PKK were in fact present

in the vicinity during the incident.

38.  The bullet which killed the applicant's sister was described in

the ballistics report as a standard NATO 7.62 which is used by the

Turkish security forces as well as many other forces.  The shot could

not have been fired from the east due to the walls of the houses. It

could only have been shot from the south or south-east from higher

ground, which was where the security forces were stationed on a

hillside.

39.  There has been no communication between the Public Prosecutor and

the family since the day of the autopsy. He and his family remain in

the dark as to the official view of the incident and do not know

whether there has been any investigation or prosecution in regard to

the shooting. He states that the village of 200 households has now been

reduced to 20 families, the rest having abandoned their homes as a

result of military incidents such as that which led to her sister's

death.

b.   Facts as presented by the Government

40.  The security forces carried out an ambush operation in the

vicinity of the village to catch the PKK who were active in the area.

Units were concealed in the north-west and engaged in an armed clash

with the PKK at a point to the south-east of the village, near the

cemetery. Their position was 100 metres above the PKK. There were no

units positioned to the south and there would have been no purpose in

having men there since the PKK would not come from the south. The

security forces could therefore not have fired the shot from the south

which killed the applicant's sister.

41.  During the clash, only a few houses were slightly damaged, which

does not support the allegations of prolonged indiscriminate firing by

the security forces.

2.   Proceedings before the domestic authorities

42.  A preliminary investigation into the incident was commenced by

the Public Prosecutor of the Ergani district.

43.  An autopsy was carried out on the applicant's sister on

30 September 1993 in his father's house. According to the report of

that date by the medical examiner, an external examination disclosed

a bullet wound to the head, probably an entry wound. The skull was

opened and a 7.62 mm bullet found in the right parietal lobe and

removed. Time of death was estimated to be about 10-12 hours prior to

the examination.

44.  A letter dated 7 October 1993 to the Ergani Public Prosecutor,

Gendarme major Ahmet Kuzu reported that the security forces had

performed an ambush at the entrance of Kesentas village. The security

forces opened fire on terrorists, who fled towards the northerly part

of the village and a search party was sent in that direction without

making any contact. He stated that it was reported that a telephone

call had been made to the district gendarme command at Ergani at

08.00 hours on 30 September 1993, reporting that Havva Ergi had been

killed in the clash. An investigation took place at 10.00 hours that

day in the presence of the public prosecutor. Copies of the incident

report and a sketch of the location were enclosed with the letter.

45.  On 12 December 1993, the Ergani Public Prosecutor, Mustafa Yüce,

considering that the matter fell outside his competence, transferred

the file to the competent public prosecutor attached to the Diyarbakir

State Security Court where the matter is still pending. The decision

of lack of jurisdiction named the defendants as "members of the illegal

PKK organisation" and the offence as engaging in armed combat with the

security forces and homicide. It indicated that Havva Ergi had died as

a result of gunfire occurring in the course of an armed combat which

broke out between members of the security forces who were carrying out

an ambush operation on the outskirts of Kesentas village and members

of the PKK who were approaching the village.

46.  On 1 April 1994, the Regional Criminal Police laboratory issued

its expert ballistics report. It found that the bullet was 7.62 mm

calibre and fired by a weapon with a barrel containing four ridges

which rotated clockwise.

47.  In a letter dated 8 December 1994 from the Chief Public

Prosecutor's office at the Diyarbakir State Security Court to the

Ministry of Justice, it was reported that during the ambush operation

clashes spread to the village and as a result a bullet hit the

doorframe of a house, ricocheted and hit Havva Ergi who was standing

near the door. The investigations instituted into her death were still

continuing. A ballistics examination revealed that the bullet was

misshapen and no material information could be obtained which could

lead to a conclusion as to the weapon used. No empty cartridges were

found at the scene. Thus there was no information in the file on the

weapon causing the death. Since the armed combat took place from

21.30 hours and continued into the night, there was no eyewitness

evidence as to what was seen or heard. Proceedings were continuing with

a view to apprehending the members of the PKK involved in the armed

combat but since they did not return to scenes of clashes for a long

time it would take time to identify and arrest them. As regarded the

allegations made in the applicant's statement of 9 October 1993 taken

by the Human Rights Association (HRA), the claim that the State

security forces opened harassing fire on the village was false and

intended to denigrate the security forces involved in the fight against

terrorism. It was the duty of security forces to maintain order and

protect the population so there could be no question of them opening

harassing fire on the village. The incident in Kesentas resulted from

the type of ambush operation commonly carried out by the security

forces on roads leading into and out of villages.

48.  By letter dated 26 December 1994, the Ministry of the Interior

informed the Ministry of Foreign Affairs that on 29 September 1993 the

security forces had come to the village with the purpose of

apprehending terrorists whom they had heard were coming to the village.

The security forces were attacked by the PKK. Village guards from

Ziyaret were not involved in the operation. No raid was carried out on

the village which was due to have village guards of its own. Although

villagers had applied for posts as village guards they had not in fact

been recruited since no suitable posts were available.  At the time of

the incident there were 150 households not 200 and currently there were

180 households living there, not 20.

B.   The evidence before the Commission

     1)   Documentary evidence

49.  The parties submitted various documents to the Commission. The

documents included reports about Turkey, domestic case-law, statements

from the applicant, photographs, plans and sketch maps.

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

     a) Statement by applicant dated 9 October 1993 taken by the Human

     Rights Association (HRA), Diyarbakir

51.  At around 21.00 hours on 29 September 1993, security forces

surrounded the village of Kesentas. They saw military armoured cars and

heard the sounds of walkie-talkies. About a week before one of the two

collaborators (ie. spying for the State) in the village, Cuma Bali, was

killed by guerillas and a day before the incident, the second, Ibrahim

Halil, had moved from the village to Ziyaret under the protection of

its village protectors. They later heard that Ziyaret village guards

took part in the operation.

52.  First, one or two shots were fired from the north side of the

village (said by eyewitnesses to have been fired by the Ziyaret village

guards), then there were volleys of firing, for about an hour, from the

south side. The soldiers had placed themselves on higher ground to the

south and were firing down on the village. Bullets hit most of the

village. The family's house was two-storeyed the lower part used as a

stable and the upper part for accommodation. There was a large balcony

on the upper floor, where the applicant's father and his sister Havva

were sleeping.  When the firing began, they came indoors. For a reason,

maybe because his sister had forgotten something, she went to go

outside again. When she was on the threshold a bullet which ricocheted

from the door frame hit her in the head. She died immediately. On the

following morning, they announced her death to the village.

53.  They went to the gendarme headquarters with the applicant's

uncle Hasan Ergi. His uncle reported to the commander that Havva had

been killed. The commander replied "Has one person died?". His uncle

asked, "How many were supposed to die?". The commander stated, "At

least 20 people should have died? How do you know there were security

forces?" His uncle, "An armoured car passed my house." The station

commander told the uncle to leave and stated that he would inform the

public prosecutor.

54.  At about 11.00 hours, the prosecutor, a doctor and about

10 soldiers came to the village. The doctor, prosecutor and

non-commissioned officer (NCO) and two plainclothed persons entered the

house and remained for about two hours. The people in the house must

have given the bullet removed from the body to the soldiers outside,

since one soldier showed it to the NCO, asking what weapon could have

fired it and the NCO replied that it must be from a G-1 or G-3. There

was a conversation between the villagers (who did not wish their names

to be revealed) and an NCO:

     Villagers: Why do we suffer persecution?

     NCO: If you became village protectors as we tell you, it will

     stop.

     Seyit Battal (one of Havva's brothers): Why did you shoot at the

     village?

     NCO: We saw terrorists at the entrance to the village, that's

     why.

     Seyit Battal: Why did you not fire at them rather than the whole

     village?

     NCO: The clumsiness of our soldiers.

55.  The soldiers went to the hill from where the firing occurred and

picked up five empty cartridges.

56.  There were instances of firing at the village before and after

this incident and continued insistence that the villagers became

protectors, which was the reason for a partial evacuation of the

village. Out of 200 households, only 20 remained and some of those were

on the point of leaving.

57.  The members of the family at home during the incident included

the applicant's father Ibrahim Halil Ergi and mother Hacere Ergi, his

sister-in-law Hazo and her daughter, the wife of his brother

M. Emin Ergi and her four children. The applicant's brother Seyit

Battal was not at home but came to the village the next day having

heard the news.

58.  The applicant had not applied orally or in writing to the public

prosecutor or to the district or provincial governors because of the

military domination of the area.

     b) Official Records

     Incident report of 30 September 1993

59.  This report was drawn up by gendarme officer isa Gündogdu and

countersigned by other gendarmes. It states as follows:

60.  On 29 September 1993, members of the security forces carried out

an ambush operation for the purpose of apprehending or eradicating

members of the PKK as they entered Kesentas village. When a group of

terrorists was sighted at about 21.00 hours coming towards the village,

clashes broke out as the security forces opened fire on them. The

terrorists escaped to the north of the village. The security forces

carried out a search in the direction in which the terrorists had fled.

Three squads from District Headquarters arrived at the village in

armoured vehicles but made no contact with the PKK, who had fled.

61.  At about 08.00 hours, the gendarmes headquarters were informed

by telephone that one person, Havva Ergi, had died. A team of gendarmes

accompanied the public prosecutor to the village arriving at about

10.00 hours. The investigation and search at the scene disclosed that

the following had occurred. When firing was heard, the deceased and her

brothers went into the living room of Ibrahim Ergi's house. Afterwards,

when fetching their bedclothes, the deceased was hit in the head by a

bullet which ricocheted off the frame of the living room door. A bullet

mark was found on the beam in the (entrance hall) but no other marks

elsewhere in the house. Elsewhere in the village, three window panes

had been damaged in the house of the muhtar Senai Baran and there were

ten bullet marks on a car. No other damage was found and no empty

cartridges could be found due to the rough ground. It was concluded

that Havva Ergi must have been killed accidentally as a result of shots

fired by members of the PKK in the course of clashes with members of

the security forces.

     Sketch map of incident location dated 30 September 1993

     (Appendix II to this Report)

62.  This map was drawn up and signed by the gendarme non-commissioned

officer isa Gündogdu. It indicates, inter alia, by numbers the location

of the deceased's body, terrorist firing position (7), security forces

firing position (9), the road and the village slopes.

     c) Documents relating to contacts by the authorities with the

     applicant concerning his application

     Statement dated 30 October 1995

63.  This statement, signed by the applicant and by officers of the

Anti-Terror department, is set out in the form of questions and

answers. The applicant was referred to his declaration of means and

confirmed his signature. He was asked whether he had made application

to the European Human Rights association or in Turkey and if so, he

should explain. He stated that he had applied to the HRA about his

sister, that he had not applied to the Kurdistan Human Rights Project

and that he had applied to the European Commission of Human Rights

indirectly through the HRA. He gave details of his material position.

     Statement dated 3 November 1995

64.  This statement, signed by the applicant and by a public

prosecutor, indicates that the applicant was shown his declaration of

means and that he confirmed that it looked like his. He explained that

he had made an application in 1993 to the HRA and to the European

Commission and that he had done this since Turkey had recognised the

Commission. His application did not concern anything else and he did

not wish to add anything.

     2)   Oral evidence

65.  The evidence of four witnesses heard by the Commission's

Delegates may be summarised as follows:

     Muharrem Ergi

66.  The applicant stated that he was born in 1954 and was resident

in Aydin. At the time of the incident, he lived in the province of

Diyarbakir. He was not in the village. He heard that from time to time

minor incidents took place. He recalled hearing about a village guard

from Kesentas being killed by terrorists just outside the village and

that another had been moved to Ziyaret.

67.  On 30 September 1993, his uncle telephoned a relative in town who

informed the applicant of what had happened. He went to Kesentas

arriving about 10.00 hours. His uncle had gone to the police station

early in the morning before he arrived. He himself had not gone there.

His uncle said that he had reported the death of Havva; that the

commander queried whether one person was killed; that his uncle asked

how many should have got killed and the commander said something like

that at least twenty should have been killed.

68.  He talked to the villagers about what had happened and also to

the gendarmes who arrived with the prosecutor. They (the villagers)

said that the village was fired on from the opposite side and that the

rumour was that it was the soldiers or guards who had done the

shooting. He did not remember who it was who identified Ziyaret guards

as having been present. No-one in his family had witnessed the incident

with their own eyes since they could not leave their homes as they

feared for their lives. At the time of the incident, which started

about 22.00 hours (at another point he stated it was about

21.00 hours), it would have been dark, but there might have been

moonlight. It was said that a number of shots were fired from the north

and then five-six minutes later firing began from the south, which

continued for one hour 10 minutes. His father Ibrahim, his mother

Hacere, his sister-in-law Geriye and her children were in the house at

the time. When the firing started, his sister Havva and his father were

sleeping outdoors on the raised area. They carried their beds inside.

Havva was shot in the doorway. She did not go out but was hit under the

door as she rose. There was a slight mark, a line, on a wooden beam

where the bullet hit it.

69.  There were signs of the presence of soldiers: they saw the

floodlights of the armoured personnel carrier on the hill and heard its

engine, and they also heard the sounds of wireless communication. The

carrier passed through the village, in front of his uncle's house and

returned to the road to the west of the village. The carrier arrived

about 15-20 minutes after the first shooting.

70.  The prosecutor did not identify which gun the bullet came from.

Neither the applicant nor other members of the family spoke to the

prosecutor at a later stage. He had no information about any

investigation into the incident. A soldier had said that the bullet

came from a G2 or G3 gun which could be in the hands of anyone. (At a

later stage the applicant said the soldiers said it was a G1 or G3

bullet.) He was not familiar with guns: he did not know whether it was

G1 or G2 that was said. He had seen a bullet in the hands of that

soldier. After it had been removed during the autopsy, they passed it

out of the front window or so he had learned later. The applicant had

been present when his brother Seyit Battal and the other villagers were

talking to the NCO. When Seyit asked why they shot at the village, they

said that they had run into members of the organisation at the entrance

of the village and there was a clash. The soldiers had fired at the

PKK. He did not remember any explanation that might have been given as

to why there was firing at the village.

71.  The applicant went out to search for empty cartridges in the hill

across from the village from where he had been told that the firing had

come. Between the place where he found the cartridges and the house

there was a distance of 700 m - the land between was not flat but a

valley with a stream running through it. He found 15 cartridges, which

he left at the HRA. He looked elsewhere  but found nothing. There was

no obstruction between the hill and the house. He saw signs in the

village of damage and took photographs of bullet marks. The marks were

concentrated in the area where the family's house was and the eastern

area. He estimated about one hundred houses were struck by bullets. He

marked on the sketch of the incident where he found the cartridges ie.

south of the village beyond the road. On being shown the photographs

of the family house, he stated that the side of the house with the

balcony faced south and that one photograph was taken from the hill

looking north to the village and from the village across to the hill.

The hills to the north of the village were higher; the village was on

a slight slope being higher on the north and there was a main road

running east-west to the south of the village.  All the photographs of

the houses that were not his house showed bullet marks on the south.

72.  It was said that soldiers had gone to the same area as he had to

collect cartridges but he did not say that they found five cartridges.

He had noticed in that area stones piled up, like a wall, which he

guessed had been placed by those who had been firing. There were

sparsely distributed oak trees on the slopes of those hills and rocks.

73.  The PKK came from the north, which was rougher and farther from

the main road.  From time to time, security forces may have come to

protect the road and then they were positioned very close to the road.

They patrolled the road from time to time. There were a number of

entrances to the village, the south-eastern entrance being closest to

the road.

74.  At the time of the incident there were about 200-250 households

in the village and at the present time about 150-200, he did not know

exactly. When asked why he had stated to the HRA that more households

had left the village, he explained that some villagers returned one

month later, some five months later. There were now village guards in

the village. There was a telephone in the village but it did not work

all the time.

75.  He recalled making a statement to the HRA. He had gone there with

his father and mother. He had never stated that he had been in the

village during the incident. Statements were taken from the three of

them and compiled into a single statement. He signed the statement. He

was not asked to make a statement by the prosecutor or gendarmes. He

had not been told that the case had been transferred to the State

Security Court.

76.  The other members of his family had not come to the hearing as

they were afraid, he supposed, but he had no exact information and did

not know if any of them had been contacted by the authorities. He had

been questioned twice. First, he was contacted by telephone at his work

place late November-early December 1995. He was questioned at the

anti-terrorist branch of the police department of Aydin for about two

hours. The one who asked the questions said he was a police

superintendent. They said that he had lodged an application with the

Commission and asked why he had done so. Ten-fifteen days later, he was

called and asked to meet the police at the station in town. There were

three persons in plainclothes who questioned him, asking why he had

filed such a complaint, stating that he had committed an offence and

that as he was a civil servant he could be dismissed. No physical

pressure was applied. He was asked about the incident as well and maybe

something to do with his application for legal aid.

77.  He thought that it was the soldiers or village guards who were

responsible for the killing of his sister. He did not think it was the

PKK because he did not hear that they were active there and had only

heard of one incident in which a person was killed. Also the firing

came from the south where the soldiers most probably were.

     Ahmet Kuzu

78.  The witness was born in 1955. From July 1992 until August 1994

he was the gendarmerie commander in the district of Ergani, in command

of five stations including the central station where isa Gündogdu was

the NCO in charge. In the central district, he had 35-40 soldiers under

his command. There were village guards in his area. The guards

participated occasionally in operations but this generally amounted to

checking the roads for safety. They tried as much as possible not to

involve guards in operations.

79.  Kesentas was in his jurisdiction. He used to call at the villages

every two or three months. He would have known the muhtar and a few

other people at the village. At that time, there was intensive PKK

activity in the area. The security forces did not hear of any actual

collaboration of the village with the PKK but the PKK used to go to the

village demanding or forcing the villagers to give food or medicine.

Because the village was the remotest in the district, it was the most

difficult to supervise. The PKK always came to the village from the

north. There was a road running through the village and a mountain

trail going off north from that road leading up to Sincik village. The

PKK used that trail constantly. During the operation, the gendarmes

were in positions on the ridges immediately to the west of that path.

It was probable that the PKK would come down that path or from a point

further east. There were riverbanks in the east, sharp rocks difficult

to climb and they could use the banks of the stream which came down the

mountainside. Apparently, that night, the PKK came down the banks of

the stream and almost went into the village, going into an area of

vineyards very close to the village (area marked 7 on the sketch). The

PKK were in the south-east and the security forces in the north-west.

The PKK gunfire would be towards the south of the houses. Both sides

would have had field glasses with a range of 600-700 m. He had no idea

which side saw the other first and opened fire.  During the crossfire

bullets were apparently flying over the village, which was in a

depression. The PKK fled north.

80.  At the time of the incident, he was absent, having been deputised

to command another larger unit, a commando unit which constantly moved

around the territory. He did not return to Ergani until maybe a week

or more afterwards. He played no role, and had no knowledge of the

planning of the operation at Kesentas. He supposed that the planning

was done by the commander of the commando unit or the highest ranking

NCO. isa Gündogdu was in charge of drawing up the local inspection

records and sketches which were to be submitted to the legal

authorities through the district gendarmerie.

81.  When he returned to the district, the autopsy and inspections had

been carried out. He examined the records pertaining to the incident

(the record of on-site inspection and the sketch) and transmitted them

to the legal authorities. It was not for him to take any further steps

in the case which had been referred to the public prosecutor, who was

now responsible for the affair. He agreed that it was his duty to deal

with any mistakes that might have been made by his men but on the

documents he did not see anything which clearly pointed to any mistake.

He supposed that he must have talked to the people who signed the

documents and asked about the incident. If he had been there at the

time, he would have gone to the scene, investigated how the operation

was planned, how the security forces were deployed, from what

directions the PKK had come, how the clashes had come about and how any

death occurred. To establish how a citizen is killed in a cross-fire

you have to see the lie of the land and the  exact positions of the two

opposing parties. He agreed that records would be kept showing who had

been in charge of the operation.

82.  Kesentas did not have village guards. Ziyaret village guards were

not responsible for the protection of Kesentas.

83.  As regarded the bullet found in the corpse, it was not possible

to draw conclusions as to which side fired it. Both sides had G3s, G1s

and kalashnikov infantry rifles. Once a bullet had been fired it would

not be possible to distinguish by eye what gun it had fired from.

84.  There was a fundamental principle in planning operations that

operations should not be moved into civilian areas as far as possible.

In this incident, the plan was to restrict the activity to the north

of the village  but the PKK did not approach from the expected

direction. The security forces would not have been positioned in the

south since the PKK could not come from that direction, they would be

bound to be seen since they would be out in the open in certain places.

Also in any ambush they would flee to the north. There was no point in

positioning security forces in the south. The PKK were expected to come

from the north-west but they in fact came from the north-east. He

guessed that the ambush location was 500-600 m from the village.

85.  As regarded previous incidents in the village, he recalled that

Ibrahim Halil was abducted from the village by the PKK about six months

before and that his father brought him back. One night, his house came

under fire. The witness went there the next day and took the father and

son away otherwise they would have been killed. He did not think it was

the PKK who did the shooting but the villagers  who wanted to know why

he had left the organisation. Halil and his father became village

guards in Ziyaret at his suggestion.

86.  It would have been dark at 21.00 hours. The security forces would

not have surrounded the village. They would not have intended to be

seen. Because the village was in a hollow, surrounded by mountains,

there is a constant echo and it would be difficult to tell where firing

came from. The whole district was covered with empty cartridges due to

the intensive period of clashes. If hundreds of houses had been

damaged, it would have been recorded in the prosecutor's office and the

District Governor would have come. Nothing like that would have

happened, perhaps a few window panes were damaged.

     isa Gündogdu

87.  The witness was born in 1964. From July 1991 to July 1994, he was

the commander of the Ergani central gendarmerie. Major Kuzu was his

commanding officer. There was a special commando unit under Major

Kuzu's command and a separate commando battalion based in Ergani.

Kesentas was under his jurisdiction. He recalled a number of incidents

and clashes taking place near the village. The villagers in Kesentas

refused to become village guards due to fear of terrorists.  Compared

with other villages, many in the village had joined the organisation.

He remembered that one man Zeki had run away from the PKK and he was

attacked on the day he came back. Cuma Bali was taken coming out of

Zeki's house and shot, even though he had two sons in the PKK.

88.  As regarded the clash on 29 September 1993, he drove to the scene

in an APC  after it had been reported about 20.00 or 22.00 hours. When

he arrived about an hour after the report, the clash had finished. He

did not recall the exact time. The first thing they did was drive in

the direction in which the terrorists had fled but they found no-one.

He spoke to the units already at the scene by radio using codes but he

did not know who they were. They said that they were at the cemetery

(marked 9 on the sketch). He indicated on a photograph that the

cemetery was not far from the west of the village and stated that it

was about 500-600 m. from the position of the security forces to where

the terrorists were.

89.  He patrolled through the village and spoke to the muhtar, who

said that gunfire came from the south. There were vineyards to the

south and north. They said that the shots were fired from below the

village and from the asphalt road area. No-one told him that night that

Havva Ergi had been killed. In the morning, he found out about the

death when some-one phoned about 08.00 hours leaving a message on the

switchboard. No-one came to see him about it. He had rung back and

talked to the muhtar. He reported to the prosecutor and went to the

scene with him. He remembered the girl was lying on the roof, that a

bullet hit the wall, ricocheted and hit her. It was the prosecutor who

conducted the entire investigation and he acted on his instructions.

He examined the village for damage: there was a bullet mark in the Ergi

house, three window panes were broken in the houses of the muhtar and

his brother, and there were about ten marks in the car of Haci Güven,

a total of about 13-15 marks in the whole village. He stayed in the

village after the prosecutor. On instructions, he looked for cartridges

but did not find any that had just been fired. He looked in the lower

area, south of the asphalt road and in the area where the security

forces had been. The prosecutor took photos.

90.  No-one alleged to him that the security forces were responsible

for the death. He did not speak to the members of the family as part

of the investigation. The prosecutor conducted the interviews. The

information in his incident report was based on the prosecutor's

interviews with citizens and his own observations that the bullet had

come from a southerly direction and had ricocheted.  The soldiers told

him that the clash lasted about five minutes and the terrorists ran

away. He concluded that a PKK bullet killed Havva Ergi since it came

from the south and gunfire from the security forces would not have been

able to reach the Ergi house. When referred to the sketch map and the

apparent indication of security forces (marked with a 9) in the south,

he did not think it was a 9, since the security forces would not lay

an ambush leaving so much empty space and if a 9 had been written it

was a mistake. The witness marked on a photograph the respective

positions of the terrorists and the security forces.

91.  There were mountains behind and to the side and at night there

would be echoes making it difficult to tell where noise came from. The

prosecutor kept the bullet. It would not have been possible to tell

where it came from without forensic examination. He did not know who

was responsible for the operation at the village. He had no prior

knowledge of it. He did not know if commando units kept records. As far

as he knew, village guards did not participate in the operation.

Village guards  just protected their villages and never took part in

operations. No records were kept relating to village guards.

92.  He did not have any conversation with villagers in which it was

said the soldiers fired clumsily.

     Mustafa Yüce

93.  The witness was born in 1961 and in September 1993 he was Ergani

public prosecutor. He was a public prosecutor for four and a half years

and then became a judge. He was absent on leave for a month at that

time returning to duty on 1 October 1993. His colleague attended the

autopsy of Havva Ergi.

94.  As regarded the decision of lack of jurisdiction, he based his

conclusion that a member of the PKK was responsible for the killing on

the report of the incident and the autopsy report. He was convinced

that the report was accurate and no other allegation to the contrary

had been made. There was no reason to think that the record drawn up

by the security forces was not accurate. If an allegation had been made

that Havva Ergi had been killed by gunfire from the security forces,

he would have been bound to go to the village. If anything like that

had happened, they would have definitely received a complaint. His

involvement with the case ended on 12 October 1993 when the case was

transferred to the Diyarbakir State Security Court, who had not

requested his assistance in any matter since then.

95.  He agreed that it was apparent from the incident report that

those who drew it up had not been at the scene of the incident. He did

not recall seeing any photographs. He agreed that under the Turkish

Rules of Criminal Procedure where the prosecutor is notified of a

killing, he is under a legal obligation to investigate the killing and

he did not need to wait for a complainant. When referred to the fact

that he issued his decision of lack of jurisdiction before the

ballistics report was issued, he stated that it was not correct

practice to hold on to the preliminary investigation for such a long

time ie. six months delay to the report being issued. If contradictory

evidence had appeared in the report, the State Security Court could

take a decision to return the file to him. He did not think it

necessary to ask for a proper scale map or plan of the house. He did

not conduct any interviews or ask the gendarmes to interview anyone.

     Other witnesses

96.  The following witnesses were summoned but did not appear:

     -    Bekir Selçuk, chief public prosecutor State Security Court,

          Diyarbakir

     -    Senai Baran, muhtar

     -    Ibrahim Halil Ergi, father of Havva Ergi

     -    Seyit Battal Ergi, brother of Havva Ergi

     -    Hasan Ergi, uncle of Havva Ergi

     -    Hacere Ergi, mother of Havva Ergi

97.  The Government stated that they were unable to trace Senai Baran

who had moved to Istanbul and in respect of the public prosecutor Bekir

Selçuk, no explanation was forthcoming.

C.   Relevant domestic law and practice

98.   The Commission has referred to submissions made by the parties

in this and previous cases (see eg. its summary of the relevant

domestic law and practice in the case of Akdivar and others v. Turkey,

Eur. Court HR, judgment of 16 September 1996 to be published in Reports

1996 and Kaya v. Turkey, No. 22729/93 Comm. Rep. 24.10.96 pending

before the Court, which includes the provisions relied on by the

Government and representatives of the applicant villagers). The

applicant in this case adopts the same arguments for the purposes of

this application.

99.  The Government submit that the following provisions are relevant.

100. Article 125 of the Turkish Constitution provides as follows:

     (translation)

     "All acts or decisions of the Administration are subject to

     judicial review ...

     The Administration shall be liable to indemnify any damage

     caused by its own acts and measures."

101. 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 a 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.

102. The principle of administrative liability is reflected in the

additional Article 1 of Law 2935 of 25 October 1983 on the State of

Emergency, which provides:

     (translation)

     "... actions for compensation in relation to the exercise of the

     powers conferred by this law are to be brought against the

     Administration before the administrative courts."

103. The Turkish Criminal Code contains provisions dealing with

unintentional homicide (sections 452, 459), intentional homicide

(section 448) and murder (section 450).

104. 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.

105. If the suspected authors of the contested acts are military

personnel, they may also be prosecuted for causing extensive damage,

endangering human lives or damaging property, if they have not followed

orders in conformity with Articles 86 and 87 of the Military Code.

Proceedings in these circumstances may be initiated by the persons

concerned (non-military) before the competent authority under the Code

of Criminal Procedure, or before the suspected persons' hierarchical

superior (Articles 93 and 95 of Law 353 on the Constitution and the

Procedure of Military Courts).

106. If the alleged author of a crime is a State official or civil

servant, permission to prosecute must be obtained from local

administrative councils (the Executive Committee of the Provincial

Assembly). The local council decisions may be appealed to the Council

of State; a refusal to prosecute is subject to an automatic appeal of

this kind.

107. 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.

108. Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

109. Damage caused by terrorist violence may be compensated out of the

Aid and Social Solidarity Fund.

110. The applicant's representatives have previously pointed to

certain legal provisions which in themselves weaken the protection of

the individual which might otherwise have been afforded by the above

general scheme.

111. Decree 285 modifies the application of Law 3713, the Anti-Terror

Law (1981), in those areas which are subject to the state of emergency,

with the effect that the decision to prosecute members of the security

forces is removed from the public prosecutor and conferred on local

administrative councils. 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.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

112. The Commission has declared admissible the applicant's complaints

that his sister was killed by a shot fired by the security forces and

that he has no effective remedy available to him in respect of this.

He states that he complains on behalf of his sister and her young

daughter (two years old at the time of the incident).

B.   Points at issue

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

     - whether there is a valid application pursuant to Article 25

     (Art. 25) of the Convention;

     - whether there has been a violation of Article 2 (Art. 2) of the

     Convention;

     - whether there has been a violation of Article 8 (Art. 8) of the

     Convention;

     - whether there has been a violation of Article 13 (Art. 13) of

     the Convention;

     - whether there has been a violation of Article 14 (Art. 14) of

     the Convention;

     - whether there has been a violation of Article 18 (Art. 18) of

     the Convention.

     -  whether there has been a failure by the Turkish Government to

     comply with its obligations under Article 25 (Art. 25) of the

     Convention.

C.   Concerning the existence of a valid application

114. The Government submit that there is serious doubt that Muharrem

Ergi is the real applicant in the present case. They refer to the

difference in the signatures on the statement made to the public

prosecutor and the statement taken by the HRA and the letter of

authority.

115. The Commission notes no striking dissimilarity in the signatures

referred to by the Government. It notes in any event that Muharrem Ergi

appeared before its Delegates and his testimony was clear as to the

fact that he had gone to the HRA with his parents to complain and that

he had signed the statement. He also clearly intended to maintain those

complaints through the testimony which he made to the Delegates.

116. Consequently, the Commission finds there is no doubt that the

application before it discloses a genuine and valid exercise of the

applicant's right of individual petition under Article 25 (Art. 25) of

the Convention.

     Decision

117. The Commission decides, unanimously, to pursue the examination

of the application introduced on behalf of the applicant.

D.   The evaluation of the evidence

118. Before dealing with the applicant's allegations under specific

Articles of the Convention, the Commission considers it appropriate

first to assess the evidence and attempt to establish the facts,

pursuant to Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. It

would make a number of preliminary observations in this respect.

     i. There has been no detailed investigation or judicial finding

     of facts on the domestic level as regards the events which

     occurred in Kesentas village on 29 September 1993. The Commission

     has accordingly based its findings on the evidence given orally

     before its Delegates or submitted in writing in the course of the

     proceedings; in this assessment the co-existence 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 H.R., 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 particularly regrets

     the absence of a thorough domestic judicial examination or other

     independent investigation of the events in question. It is  aware

     of its own limitations 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 compelling powers as regards witnesses. In the present

     case, while ten witnesses were summoned to appear, only four in

     fact gave evidence before the Commission's Delegates.

     Significantly, only one of two public prosecutors who were

     summoned appeared and despite repeated requests by the

     Commission, the Government did not identify any officers who

     participated in the operation for the purpose of giving evidence

     before its Delegates. The Government also have not provided

     complete documentary materials relating to the operation in issue

     in this case. The Commission has therefore been faced with the

     difficult task of determining events in the absence of

     potentially significant testimony and evidence. It acknowledges

     the unsatisfactory nature of these elements which highlights

     forcefully the importance of Contracting States' primary

     undertaking in Article 1 (Art. 1) to secure the rights guaranteed

     under the Convention, including the provision of effective

     remedies as under Article 13 (Art. 13).

     1. General background

119. Kesentas village is located on a slope, the northern part higher

than the southern, with steep mountains behind to the north. There are

vineyards around the village; a road running east-west through the

village which continues north-east between the mountains; a wider main

road to the south of the village running roughly east-west and to the

south of this road the ground slopes upwards again. The village

accordingly lies in a depression. The terrain to the north is rough and

steep, with a river bed running downwards to the village from a

north/north-eastern direction.

120. The Commission finds from the evidence of the witnesses that PKK

activity in the area around the village in or around 1993 was

significant. There had been at least two incidents involving the

village shortly before the operation on 29 September 1993. In one

incident, a villager Cuma Bali was shot dead and in the other, another

villager Ibrahim Halil and his father left the village under gendarme

protection after his house had been shot at and moved to Ziyaret where

they joined the village guards. Halil had been in the mountains with

the PKK and returned of his own free will. The timing of the latter

incident is not established. The applicant's written statement to the

HRA refers to the move from the village taking place the day before the

incident, whereas orally it appeared that the applicant had been absent

from the village and he had no real recollection of what he might have

been told by others. Major Kuzu, who remembered helping the family

move, did not specify the date.

121. The PKK tended to arrive from the north of the village under

cover of the terrain, requiring the villagers to provide food and

medicine. There were no village guards in the village and no permanent

security presence in the vicinity. The main road to the south of the

village was patrolled from time to time.

122. At Ergani, about 17 kilometres towards the east, there was a

central gendarme station under the command of the NCO isa Gündogdu.

There was also in Ergani a district gendarme command, under the command

of Major Kuzu and, in addition a separate commando battalion. Major

Kuzu was in overall command of the district and central gendarmeries

and in addition was frequently absent in his additional function as

commander of a commando force which was often in the field.

     2. Events in Kesentas on 29 September 1993

123. The applicant disputes that a clash took place at the village on

29 September 1993 between the PKK and the security forces. He refers

to the alleged discrepancies in evidence from Major Kuzu who claimed

to be absent at the time of the operation but present at the move of

the Halil family from the village. He submits that, as confirmed by

various witnesses, the PKK do not usually return to the scene of recent

activities, and that despite the alleged clash no members of the PKK

were caught or killed and no cartridges were found by the gendarmes.

He concludes that there is no evidence that the PKK were in fact

present at the village on 29 September 1993.

124. The applicant states that the evidence indicates that security

forces were positioned to the south of the village from which position

the bullet which killed Havva Ergi must have been fired. She had been

killed in the doorway of the balcony which was facing south. If the

bullet had been fired without ricochet occurring, it must have come

from the south-east or south-east by south, due to the lie of the land

and the layout of the Ergi building and neighbouring houses. If the

mark on the underside of the beam on the balcony was caused by the

bullet, the bullet must have grazed it at a shallow angle and been

fired from the same direction. He argues that it could not have been

fired from the east due to the high neighbouring wall and in any event,

any angle of deflection on the beam would have caused the bullet to hit

the wall well forward of the doorway.

125. The applicant refers to the sketch map and states that the

obscured numbering on the plan to the south appears to correspond to

the positioning of the security forces on the plan and not the PKK. He

states that the villagers said that the security forces were to the

south. Further, the testimony of the gendarmes indicates that the PKK

were chased north back the way that they had come, which means that

they were chased from behind, from the south. He comments that the

official version that the ambush was set up in the north-west over the

mountain path fails to take into account that the PKK could also

approach down the stream bed from the north-east. To prevent their

approach unseen from that direction,  one option would be for the

security forces to position units in the south  near to where the river

bed met the road.

126. The Government refer to the evidence of the two gendarme witnesses

and the official reports, which state that the security forces were at

the village to carry out an ambush operation, that they positioned

themselves to the north-west of the village and that a clash occurred

when the PKK arrived from the north-north east. There was, they state,

no reason for the security forces to be positioned to the south of the

village and that any firing from the north-west by the security forces

could not have penetrated into the south-facing balcony of the Ergi

house.

127. The Commission notes that the two gendarme witnesses stated in

evidence that they were not in fact at the village when the clash

occurred. Major Kuzu stated that he was in an operation elsewhere with

commandos. NCO isa Gündogdu arrived after the firing had stopped and

though he followed in the direction of the allegedly fleeing PKK, he

saw no sign of them. The Commission had requested the Government on two

occasions prior to the hearing in Ankara to identify, for the purpose

of taking evidence, gendarme officers who had been present during the

operation. The Government did not respond. The Commission recalls that

the applicant was not in the village either and his testimony

concerning the events of that night was based on what he remembered

being told by members of his family or villagers. Members of the

applicant's family present during the clash did not appear as witnesses

although summoned by the Delegates. There is therefore no direct

eye-witness evidence before the Commission as to what occurred, which

is regrettable.

128. Further, the documentary evidence is also of second-hand quality.

The incident report and sketch were drawn up by isa Gündogdu, not by

any gendarme officer involved in the operation and from isa Gündogdu's

testimony before the Delegates, it is not apparent that he questioned

the security forces on the spot in any detail. Indeed his contact with

them appears to have been limited to radio contact, by way of coded

transmissions. The Government have failed to comply with the

Commission's request to be informed of the name and unit of the

commanding officer of the unit involved in the operation and the copy

of the logbook entry, register or field report which recorded the

operation.

129. The Commission accordingly has little direct evidence as to what

occurred on the night of 29 September 1993. As to whether a clash in

fact took place, the Commission notes that it is alleged by the

applicant that an indiscriminate bombardment of the village was carried

out in retaliation for the incidents in the village in which

"collaborators" were, in one case, shot and, in the other, forced to

leave. The Commission recalls that Major Kuzu had direct involvement

in the move of the threatened villager and that he did not consider

that the PKK has shot at the villager, but that it was the other

villagers who would have killed him as they wanted to know why he had

left the organisation. isa Gündogdu commented that a great many people

in the village had joined the organisation. The applicant's allegation

that the bombardment of the village could have been motivated by a

desire to teach the village a lesson is not totally without

substantiation.

130.  The Commission notes several puzzling features. Major Kuzu was

the district gendarme commander but had no apparent knowledge of, or

role in, an operation within his jurisdiction, though he felt able  to

give firm opinions as to what must have occurred. The night the

incident occurred, isa Gündogdu in the central gendarmerie had to

borrow an armoured personnel carrier (APC) from the police since the

others from the gendarmerie were in use in a mission. isa Gündogdu

stated that the firing at the village had only lasted about five

minutes whereas the letter from the public prosecutor of the Diyarbakir

State Security Court dated 8 December 1994 refers to armed combat

commencing at 21.30 hours and continuing into the night, which appears

to corroborate the applicant's version of events, derived from his

family, that the firing continued for over an hour. The applicant

stated, that, as might be expected from sustained shooting, there was

widespread damage to the village. He had gone round the village, noting

damage to about a hundred houses and took a few photographs which

indeed reveal bullet strike marks on two houses. isa Gündogdu who also

was in the village the next day stated that there was damage only to

two-three houses and to a car, from at most 15 bullets. This is another

area which could have been elucidated by further information provided

by the Government. isa Gündogdu stated that photographs of the village

had been taken by the public prosecutor. These have not been provided

by the Government, who have stated that no photographs were taken.

131. As regards the details of the clash which have been given, the

Commission is again hampered by lack of direct information. It was

initially provided with a blurred copy of the sketch map by

isa Gündogdu, with the bottom section omitted. This copy showed a key

indicating the positions of the terrorists (no. 7) and the security

forces (no. 9). A no. 7 clearly appeared to the east of the village.

A no. 9 appeared to the north-west. There was also a squiggle in the

south not dissimilar to that portraying the security force position to

the north-west and which contained a blurred figure. This figure seemed

to be a 9. isa Gündogdu when questioned stated that the terrorists were

to the south and indicated on the sketch that they would have been

close to the position marked with the blurred figure. If the blurred

figure was a 9,this was a mistake. Major Kuzu was also adamant that

there would be no security forces in the south. In brief, there would

be no point: the terrain was not favourable and they knew the PKK would

come from the north and would flee north. Since Major Kuzu was not

present during the clash, on his own testimony, the Commission feels

unable to give his evidence much weight. isa Gündogdu based his sketch

on what he had heard from the units involved: apparently a brief radio

contact. It is strange that at the time he appears to have marked the

security forces as having been present in the south yet now is certain

that this must have been a mistake. Many months after the hearing of

the witnesses, the Commission has now been provided with a clearer copy

of the sketch map in which the blurred figure to the south of the

village is, identifiably, a 9, which represents the security forces.

132. The Commission agrees with the submissions of the applicant that,

given the south-facing position of the balcony and the position of the

neighbouring houses, in particular a high wall to the east, it is

probable that the bullet which killed Havva Ergi was fired from the

south or south-east. The Government have not contested this.

133. Having regard to the failure of the Government to provide the

documents and information referred to above, the Commission finds that

strong inferences may be drawn supporting the applicant's allegations

that the security forces opened fire around the village for some time

and that units of the security forces were present towards the south.

There is nonetheless insufficient material before the Commission to

support a finding that the operation of 29 September 1993 was not an

ambush which led to a clash as alleged but a mission of retaliatory

punishment. The Commission is unable to find it established that the

bullet which killed Havva Ergi was fired by the security forces. It

does find however that there is significant evidence indicating that

it may have been.

3.   Investigation by the authorities

134. The Commission finds as follows.

135. The death of the applicant's sister was reported to the

authorities at about 08.00 hours on 30 September 1993. The public

prosecutor accompanied by isa Gündogdu and a number of gendarmes

arrived at the village. An autopsy was carried out in the Ergi house

and a bullet removed which was later sent for forensic examination. The

public prosecutor talked to a number of persons. However while isa

Gündogdu referred to the prosecutor conducting interviews, he confirmed

that he did not incorporate any such information in his own incident

report and it is not apparent that he in fact witnessed any statements

being taken. On the instructions of the prosecutor, isa Gündogdu looked

for cartridges in a number of locations, particularly to the south.

None were recorded as having been found.

136. Another public prosecutor, Mustafa Yüce, took over the

investigation on his return from leave. On 12 December 1993, he issued

a decision of lack of jurisdiction indicating that the PKK were the

suspects for the killing. He based his decision on the incident report

and sketch by isa Gündogdu. He had not conducted any interviews of

family members, villagers or military personnel.  No statements were

taken from such persons by any other public prosecutor.

137. Following the decision of lack of jurisdiction, the file was

transferred to the public prosecutor's office at the Diyarbakir State

Security Court. Except for the ballistics report issued on

1 April 1994, no documents have been provided relating to any

investigatory measures since that date.

138. No military enquiry or investigation was carried out as to the

conduct of the operation. Major Kuzu read the incident report and

sketch by isa Gündogdu, forwarded them to the public prosecutor and

took no further action.

E.   As regards Article 2 (Art. 2) of the Convention

139. Article 2 (Art. 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."

140. The applicant submits that it is not alleged that Havva Ergi was

shot deliberately. He alleges that the planning of the operation

violated the obligation to protect the right to life; that the killing

of his sister resulted from random, indiscriminate firing in breach of

the requirement that the use of lethal force be no more than absolutely

necessary; and that the rules of engagement and the training of the

security forces are in violation of Article 2 (Art. 2), and disclose

a practice of violation. He refers to the inadequate planning of the

operation which failed to take into account the need to protect the

villagers and to the evidence of the applicant that the houses were

damaged by many bullets fired without any justification from the south

at an angle of 90° from the alleged threat to the east. Since there was

no internal disciplinary enquiry into the random, indiscriminate nature

of the firing, it is to be inferred that this was consistent with the

rules of engagement which are as a matter of routine  and practice in

violation of Article 2 (Art. 2). This would also indicate that the

firing was consistent with the training and use of fire-arms by the

security forces, which are thus in practice in violation of Article 2

(Art. 2).

141. Further, the applicant alleges that there has been a failure to

provide an independent, thorough and effective investigation, both on

the internal and judicial level and that the flaws in the investigation

system give rise to a practice of violation of Article 2 (Art. 2) in

this respect. He relies on the lack of statements taken from villagers

or commandos involved in the operation by either the gendarmes who

investigated or the prosecutor. He submits that the prosecutor's

investigation was a "travesty", his decision of lack of jurisdiction

being reached without any examination of the evidence on which the

gendarme report was based and without waiting for the ballistics

report.

142. The Government submit that the security forces were deployed so

as not to cause damage to the village, that the bullet which killed

Havva Ergi was not fired by the security forces which were carrying out

their duties to maintain law and order and that the applicant's

allegations are groundless. They argue that the death of Havva Ergi

caused during a clash with terrorists which occurred in the course of

lawful acts by the State taken to protect the lives of its citizens

from terrorism can in no manner disclose a violation of their

obligations under Article 2 (Art. 2) of the Convention.

143. The Commission has examined the allegations under Article 2

(Art. 2) under three headings: whether the security forces killed the

applicant's sister in violation of this provision; whether the planning

or conduct of the operation in which she lost her life discloses a

violation of this provision; and whether the procedural requirements

implicit in this provision with respect to effective investigation have

been complied with (see eg. Eur. Court HR, case of McCann and others

v. the United Kingdom, judgment of 27 September 1995, Series A no. 324,

para. 179).

     As to whether the death of the applicant's sister was caused by

     the use of force by the security forces

144. The Commission refers to its findings on the evidence (see para.

133). It is not established on the material before it that the bullet

which killed Havva Ergi was fired by the security forces, though there

are strong indications that it may have been. Nor is it established

that the operation was not a genuine ambush directed against the PKK

approaching the village such that the firing at the village could be

said to be an intentional infliction of injury on its occupants.

     As to the planning and conduct of the operation

145. The Commission has nevertheless examined whether the operation

was planned and controlled in such a way as to minimise to the greatest

extent possible recourse to lethal force. This must be assessed not

only in the context of the apparent targets of an operation, but,

particularly where use of force is envisaged in the vicinity of the

civilian population, with regard to the avoidance of incidental loss

of life and injury to others (mutatis mutandis, McCann and others

v. the United Kingdom, op. cit. para. 194). The Commission considers

that the responsibility of the Government is engaged not only in

circumstances, as in this case, where there is significant evidence

that misdirected fire from the security forces killed a civilian, but

also in circumstances where the actions of the security forces provoke

firing from an opposing group without proper regard to risk to life of

civilians ensuing from the general conflict.

146. The Commission's ability to make an assessment of how the

operation was planned and executed is limited, due to the lack of

information provided by the Government. It was not able to question

through its Delegates any gendarme who was involved in the planning of

the operation or who was present during the firing which occurred. As

a result, there is no information as to who took part in the operation,

in what circumstances the security forces opened fire and what steps

were taken by the security forces once the clash developed.

147. It notes that on the testimony of the officers who did appear

before the Commission's Delegates the ambush was set up to the

north-west of the village. The proximity of the ambush to the village

is unknown - according to Ahmet Kuzu, who stated that he was not

present,  it was at a distance of 500-600 metres. However, according

to isa Gündogdu, there was only 500-600 metres between the security

forces on the north-west and the position of the terrorists on the

other side of the village. It was to be anticipated however that PKK

terrorists could have approached either down the path from the north

or down the river bed to the north-east and in the latter event, they

would have been able to penetrate to the edge of the village without

being seen by the security forces to the north-west.  The Commission

has also found on the evidence that security forces were present in the

south.

148. The Commission finds in these circumstances that the village was

placed at considerable risk of cross-fire between security forces and

any PKK terrorists who approached from the north or north-east. The

gendarme officers who gave evidence to the Delegates did not consider

that in the circumstances of the clash, as they described it, the

security forces from the north-west would have refrained from firing

across the village at terrorists emerging in the vineyards to the east.

Since the village was in a depression, it was implied in the course of

the questioning of Major Kuzu by the Government Agent that this was

acceptable. However, even if it might be assumed that the security

forces would have responded with due care for the civilian population

in returning fire against terrorists caught in the approaches to the

village it could not be assumed that the terrorists would respond with

such restraint. While it may be that the nature of the fight against

terrorism in South-East Turkey necessitates operations in the vicinity

of civilian populations, there is no information before the Commission

to indicate that in the present case any steps or precautions were

taken to prevent or minimise the development of a conflict in or over

the village.

149. In the absence of evidence from gendarmes involved in the

planning and conduct of the operation, the Commission accordingly is

not satisfied that the ambush operation carried out close to Kesentas

village was implemented with the requisite care for the lives of the

civilian population. It accepts the submissions of the Government with

regard to its duty to fight terrorism but would observe that this does

not absolve a Contracting State from complying with the standards

imposed by the provisions of the Convention, in particular Article 2

(Art. 2),  which enshrines one of the basic values of the democratic

societies making up the Council of Europe and which admits of no

derogation under Article 15 (Art. 15).

     As regards the procedural requirements of Article 2 (Art. 2)

150. The Commission recalls that in the case of McCann and others

v. the United Kingdom, the Court held:

     "The obligation to protect the right to life under this

     provision, read in conjunction with the State's general duty

     under Article 1 (Art. 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." (op. cit., para. 161).

151. The Commission recalls that in the present case it was the duty

of the public prosecutor to conduct an investigation into the death of

Havva Ergi. It recalls its findings on the evidence - that no

statements were taken from members of the family, villagers or any

military personnel present during the operation (para. 136).

152. The Commission notes that before the Delegates the Public

Prosecutor was of the view that no further steps needed to be taken,

since there was no reason to doubt the incident report submitted by the

gendarmes which concluded that the PKK had shot Havva Ergi. Only if

there was an element contradicting this conclusion did he consider that

any other investigatory measures would be necessary. He also seemed to

consider that the onus was on the deceased's relatives to alert him to

any suspicion of wrongdoing on the part of the security forces and they

had not approached him in this case.

153. However, it was not apparent from the incident report of the

clash on what isa Gündogdu, the author, based his conclusion that it

was the PKK who had fired the bullet which killed the applicant. The

sketch map which accompanied the report appeared to place security

forces to the south and north-west and terrorists to the east but there

was no plan of the Ergi house and neighbouring houses which made it

clear from which direction the bullet was likely to have been fired.

Nor was there any explanation in the text of the report as to the

location of the security forces in relation to the Ergi house or the

trajectory of the bullet. That it was unsafe to base any findings on

this report was disclosed before the Delegates when isa Gündogdu

revealed that he had not himself been present during the clash, that

he did not know the identity of any of the officers or units involved

and that his information as to what occurred was derived from

apparently brief coded radio transmissions. The public prosecutor

however made no independent enquiry which would have allowed him to

discover this.

154. The Commission observes that there was no, or no detailed,

consideration given by either the district gendarme commander or the

public prosecutor to verifying that the operation was conducted in the

proper manner by the security forces. Ahmet Kuzu stated that there was

a fundamental principle in planning operations that operations should

not be moved into civilian areas as far as possible and that in this

incident, the plan was to restrict the activity to the north of the

village. No enquiry seems to have been made as to whether the plan and

its implementation were inadequate in the circumstances of the case.

155. The Commission finds that in the circumstances, there was no

adequate and effective investigation into the circumstances of the

death of Havva Ergi.

     Overall assessment

156. Having regard to its conclusions above concerning the planning

and control of the operation and the minimal and defective nature of

the investigation in this case, the Commission finds that there has

been  failure to protect the right to life guaranteed under Article 2

(Art. 2).

     CONCLUSION

157. The Commission concludes, unanimously, that there has been a

violation of Article 2 (Art. 2) of the Convention in relation to the

death of Havva Ergi.

F.   As regards Article 8 (Art. 8) of the Convention

158. Article 8 (Art. 8) of the Convention reads as follows:

     "1.  Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.   There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

159. The applicant alleges that in addition to the distress caused to

him by the unlawful killing of his sister and the inevitable

interference in his family life, the impact on his sister's young

daughter has been even more devastating. He has introduced this

application on behalf of this young child.

160. The Government state that the applicant was not living with his

sister and dispute that there was any interference with his "family

life". They also dispute the right of the applicant to make any claims

on behalf of his sister's child.

161. The Commission finds no reason in the present case why the

applicant, the uncle of the child, may not make complaints on her

behalf in the context of an application concerning allegations of

violations of the Convention concerning the death of the child's

mother. However, in the circumstances, notwithstanding the tragic

consequences for the child, the Commission does not find that any

issues arise separate from its conclusion above (para. 157) that there

has been a failure to protect the right to life of Havva Ergi in

violation of Article 2 (Art. 2) of the Convention.

     CONCLUSION

162. The Commission concludes, unanimously, that no separate issue

arises under Article 8 (Art. 8) of the Convention.

G.   As regards Article 13 (Art. 13) of the Convention

163. Article 13 (Art. 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."

164. The applicant complains of the ineffectiveness of domestic

remedies, both generally and in his case. The evidence reveals the

wholly inadequate nature of the alleged "investigation", which resulted

from the failure of the gendarme officers and public prosecutor to

perform their functions properly. Their failure is no more than a

general reflection  of the conduct of such investigations, and the

applicant is not only a victim of a violation of Article 13 (Art. 13)

but of a practice of a violation of Article 13 (Art. 13).

165. The Government contend that the applicant has failed to take the

least step to exhaust local remedies by collaborating with the

competent authorities. They refer to the fact that the criminal

investigation is still in progress and that the applicant has not

applied for compensation to the administrative courts which have been

created to deal with disputes between the individual and the State, and

which may decide in favour of persons in the position of the applicant,

awarding compensation where damage has been caused in a clash between

the PKK and the security forces. They have provided a large number of

administrative court decisions illustrating the application of the

principle of "social risk".

166. The Commission recalls its finding above that the absence of  any

adequate investigation constituted a breach of Article 2 (Art. 2) of

the Convention (para. 157). Since the absence of any adequate and

effective investigation into the killing of Havva Ergi also underlies

the applicant's complaints under Article 13 (Art. 13) of the

Convention, it finds it unnecessary to examine them separately.

     CONCLUSION

167. The Commission concludes, by 22 votes to 9, that no separate

issue arises under Article 13 (Art. 13) of the Convention.

H.   As regards Articles 14 and 18 (Art. 14, 18) of the Convention

168. Articles 14 and 18 (Art. 14, 18) of the Convention provide as

follows:

     Article 14 (Art. 14)

     "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."

     Article 18 (Art. 18)

     "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."

169. The applicant maintains that the attack on the village

illustrates the discriminatory policy pursued by the State against

ordinary Kurdish citizens. He also claims that the events illustrate

authorised practices by the State in breach of Article 18 (Art. 18) of

the Convention.

170. The Government have not addressed these allegations beyond

denying the factual basis of the substantive complaints.

171. The Commission has examined the applicants' allegations in the

light of the evidence submitted to it, but considers them

unsubstantiated.

     CONCLUSIONS

172. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention.

173. The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention.

I.   As regards Article 25 (Art. 25) of the Convention

174. Article 25 para. 1 (Art. 25-1) 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."

175. The applicant states that he was summoned on two occasions to the

Anti-Terror Department of the police, questioned about his application

and threatened with the loss of his job. He felt intimidated by the

interviews, and this may have had an effect on the other members of his

family who failed to appear to give evidence before the Delegates.

176. The Government failed to make submissions, or provide documents,

in relation to the allegations that the applicant was interviewed twice

by the police, within the time-limit set for that purpose. Belatedly,

a year after the taking of evidence, they have provided two statements

signed by the applicant, one of which was taken by the police and the

other by a public prosecutor, which, they state, concerned the

verification of the applicant's statement of means. They have stated

that allegations that other members of the applicant's family did not

testify due to fear of harassment were not true.

177. The Commission recalls that Article 25 para. 1 (Art. 25-1)

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 H.R. Cruz Varas and others judgment of 20 March 1991,

Series A no. 201, p. 36, para. 99).

178. The Commission would further emphasise that the right of

individual petition guaranteed under Article 25 (Art. 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 (Art. 25-1) of the Convention. In

this context, the Court having regard to the vulnerable position of

applicant villagers 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 (Art. 25) of the Convention

(see Eur. Court HR Akdivar and others v. Turkey judgment of

16 September 1996, to be published in Reports 1996).

179. The Commission recalls that following the applicant's testimony

before its Delegates the Delegates orally requested that information

concerning the interviews which occurred be provided by the Government

and this request was repeated in a letter of 14 February 1996.  It

appeared that at the hearing the representatives of the Government were

aware that some contact had been made and that as far as they knew he

was questioned about his financial position. From the statements now

provided, it appears that the applicant was interviewed by police in

the Anti-Terror Department and by a public prosecutor, both of whom

referred to his declaration of means (concerning his request for legal

aid before the Commission). The text of the statements also reveals

that he made statements relating to the fact that he had made an

application to the Commission and what this was about. The statement

records that the police requested the applicant to provide an

explanation concerning any application which he might have made.

180. The Commission finds that the applicant has been contacted

concerning his application. The Commission considers questioning of an

applicant by the police about any aspect of an application to the

Commission to be unacceptable, save in exceptional circumstances which

have not been shown to exist here and in any event such should only

take place where the applicant is accompanied by his own lawyer. 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.  The Commission finds no explanation of why it was

necessary to question the applicant twice about his declaration of

means, and considers it remarkable that this task was, on the first

occasion, carried out by the Anti-Terror police. Nor is it satisfied

that in any event the Commission's procedure for granting legal aid to

applicants necessitates the interview of an applicant by a public

prosecutor, in particular, where such interview covers matters

extending beyond the verification of financial details.

181. The Commission considers that the applicant has been subject to

pressure from authorities which constitutes a hindrance in his right

of individual petition guaranteed under Article 25 para. 1 (Art. 25-1)

of the Convention.

     CONCLUSION

182. The Commission concludes, by 30 votes to 1, that Turkey has

failed to comply with its obligations under Article 25 para. 1

(Art. 25-1) of the Convention.

J.   Recapitulation

183. The Commission decides, unanimously, to pursue the examination

of the application introduced on behalf of the applicant (para. 117

above).

184. The Commission concludes, unanimously, that there has been a

violation of Article 2 (Art. 2) of the Convention (para. 157 above).

185. The Commission concludes, unanimously, that no separate issue

arises under Article 8 (Art. 8) of the Convention (para. 162 above).

186. The Commission concludes, by 22 votes to 9, that no separate

issue arises under Article 13 (Art. 13) of the Convention (para. 167

above).

187. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention (para. 172 above).

188. The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention (para. 173 above).

189. The Commission concludes, by 30 votes to 1, that Turkey has

failed to comply with its obligations under Article 25 para. 1

(Art. 25-1) of the Convention (para. 182 above).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

 

Full & Egal Universal Law Academy