was understood to be a cigarette burn. The relatives had said that all the bullets were fired from the outside. The kitchen had a broken window and two bullet marks were located at the bottom of the wall opposite the kitchen window. The frosted glass on top of the other bedroom door, exactly the opposite side of the corridor, bore a bullet mark. There was a bullet mark at the same level on the wall opposite the door. The frame on the right hand side of the hall bore bullet marks. The door lock was delivered to be placed in the prosecution depository.
Autopsy report dated 8 March 1993 signed by Dr Nihan Gokkan
68. This stated that at 00.15 hours, the public prosecutor had been informed that Mehmet Gül had died on his way to hospital from a firearms injury received during a police-gendarme operation in Bozova. The body was identified by the parental cousin Mustafa Gül as Mehmet Gül, aged 26, resident in Bozova and manager of the Petrol Ofis station.
69. There were no injuries or marks to the head. Various parts of the body bore grazes caused by firearms : a ring shaped entry hole 1-2cm on the right hand side of the lumbosacral region above the cocsa bone, ring shaped exit hole on the right hand side of the fossar iliac region 7 x 7 cm; the right hand kidney was fractured, part of the intestines perforated and the artery junction in the same region had haemorrhaged from the entry hole; the 3rd and 4th right hand fingers were destroyed, muscle and bone; bone structures were fractured in various places; various cuts and grazes on the right hand side glutial region and right ankle; cuts on the lower left femur; grazes on outer left middle femur; right hand side scrotum had superficial cuts; cut-shaped erosions on left ankle.
70. The established cause of death was fracturation of the right kidney, perforation of the artery junction and intestines and the consequent hypovelemic shock. There was no need for an autopsy as the cause of death was definitively established.
Receipt for seized property dated 12 March 1993
71. The following property was delivered to the public prosecutor’s office by the security forces as taken from the residence of Mehmet Gül on 7 March 1993: a 9 mm Browning (245 PZ 25964) with one cartridge clip; a 7.65 mm pistol (807573) made in France with one cartridge clip; 13 rounds of MKE 9 mm live bullets, 2 rounds MKE and 3 rounds 7.65 live bullets; 30 rounds of 7.62 mm empty cartridges; 1 round MKE 9 mm empty cartridge; 1 round empty cartridge FNL87-3 delivered by the applicant to the public prosecutor during the photographing session at the location.
c) Documents relating to the investigation by the public prosecutors
Decision of withdrawal of jurisdiction dated 8 March 1993 by Şanlıurfa public prosecutor
72. As the incident had happened in the Bozova district, their office withdrew jurisdiction and referred the file to the Bozova public prosecutor.
Statement dated 8 March 1993 of the applicant taken by a public prosecutor
1. On the day of the incident, the applicant left the mosque, met his son who left the coffee shop and they arrived home together about 21.00 hours. Both went to their own flats. At about 01.00 hours, he heard the sound of an automatic weapon. At the series of shots, he went out immediately. He bent over trying to see what was happening. Police officers told him, “Don’t move.” He immediately went downstairs. Police officers were in front of the door. They wore commando uniforms and moustaches and were from the Special Teams. He asked what was happening. They said that there were anarchists inside. He told them to let him open the door. He called his son and at that, his son’s wife said, “Uncle, they shot Mehmet.” Upon this, he broke down the door and went inside. His son was in the bedroom, lying down, covered with blood. He shouted, took his son downstairs, put him in an ambulance and took him to Şanlıurfa State Hospital. He saw five to six military vehicles and security forces outside his house. His son died on the way to the hospital. He filed a complaint against those responsible.
Statement dated 8 March 1993 of Mustafa Gül taken by a public prosecutor
74. At about 23.00 hours, the witness, the paternal cousin of the deceased, was sitting in his house with a friend when some-one knocked on the door. He saw that they were plain clothes police officers, known to him. They asked to search and he agreed. The house was surrounded. He lived 100 metres from the applicant’s house. The police found nothing and left. He was still watching television when he heard a machine gun firing. He opened the window and heard the applicant screaming, “I am Mehmet Gül.” He went to the incident location in his pyjamas. Two special team officers stopped him in the street and he was forced to wait although he explained it was his relatives’ house. The officers said that there would be PKK bodies. He saw the applicant carrying the deceased into a vehicle. The officers told him that the operation was complete and that he could go. He heard his sister-in-law crying. He went to the hospital where the deceased died. The deceased was a business man with no political or ideological involvement and stayed always in Bozova. The deceased had a licensed weapon. He would not have had a licence if he was not a person to be trusted.
Report dated 11 March 1993 from the Bozova Security Directorate signed by Inspector Fatih Güner, forwarded to the Bozova public prosecutor
75. Upon evaluating intelligence reports at 20.30 hours on 7 March 1993, the gendarme division command concluded that PKK terrorists active in the province might be sheltering in residential buildings in the Golbaşı neighbourhood and Sanayı street. There was further information that Mehmet Gül and Mustafa Gül who lived on the junction of that street were in contact with the terrorists. In order to apprehend the PKK members, officers from Special Operations accompanied by Şanlıurfa police, went to the Gül’s address at about 23.50 hours. A team of officers on the first floor knocked on Mehmet Gül’s door and shouted loudly, “Police. Open the door” several times. No response was received. Then the door suddenly opened, a shot was fired and the door suddenly closed. The officers shot a few rounds at the lock mechanism of the door in order to bring the incident under control and maintain their own safety. When the door failed to open, they repeated in loud voices, “Police. Open the door. Put down your weapons and come out.” Cries were heard from inside. Anticipating that the woman and other residents might be harmed, the officers waited. The father came downstairs on hearing the shooting and voices. The door was broken and along with the brother Mustafa, the father was allowed inside. At this stage, the officers continued waiting at the door. Mustafa and the father were seen trying to carry a wounded individual. Officers helped them transfer the wounded person to the local clinic.
76. A search was carried out. On the landing and in the house, 30 7.62 mm empty cartridges were found scattered on the floor. A large number of bullet entry holes were observed on the main entrance door. There were bloodstains on the hall wall and carpet. At 1.5 m inside the entrance, on the left side of the carpet, was found an empty 9 mm cartridge. In the bedroom at the end of the corridor, which was split into two rooms, they found a French pistol (807573) inside the mattress pile in the left section of the wardrobe, with a cartridge clip containing 5 live rounds. In the sitting room off the left hand side of the corridor, there were blood stains on the floor. A gold chain and necklace were found between the pillow and the first of the two floor mattresses. There was a Browning 9 mm cocked pistol (245PZ5964), with a bullet in the barrel and a clip of 12 live rounds, under the right hand side of the pillow. Şanlıurfa licence department was asked whether the guns were licensed to which the response was that these guns were without licence. The records indicated that the applicant had a licence for two other guns - a Browning (245NZ51313) and a Kırıkkale 7.65 mm pistol (76138134). The chain and necklace were taken for safekeeping.
Delivery receipt dated 12 March 1993
77. This indicated that various items were delivered to the public prosecutor: a French pistol with cartridge clip, a Browning with cartridge clip, 1 empty round of 9 mm, 30 rounds of 7.62 mm, a gold chain and a gold necklace.
Report dated 12 March 1993 of gendarme sergeant Adnan Kulaksiz, Head of Criminal Lab section
78. This referred to the request of 12 March 1993 of the Bozova public prosecutor for an examination of two pistols, a Browning and a French pistol, to establish whether they were capable of firing and had been fired. Both guns were found to be capable of firing. On examination of the Browning’s bullet compartment and barrel, traces of gunpowder were found and therefore it had been fired. Traces of gunpowder were found inside the bullet compartment and barrel of the French pistol but as there was rust inside the barrel, the opinion was given that it had not been fired recently.
Statement dated 12 March 1993 of Mustafa Gül, brother of the deceased, taken by the public prosecutor
1. On the night of the incident, he was at home in bed. At about 01.00 hours, he heard gunfire. He opened the door and looked round. Suddenly, somebody made him lie on the ground and held a gun to his head, saying, “If you move, I will kill you.” He saw four people in front of the door of his brother’s house. They were well-built and wearing poşus on their heads. He at first thought they were terrorists. They did not say anything about being police or wanting to carry out a search. His father leaned over from the balcony above. The police threatened to shoot him. He said that he was a friend of the Prime Minister, on the side of the Government. He came down, pointed at the witness, saying that he was his son. The witness was allowed to get up. At his brother’s door, his father said that he would open it. However, it was not possible to open it from the outside. The lock was riddled with holes by the bullets. It was kicked open by police officers with the help of his sister-in-law from the inside. The special team officers did not go inside the apartment. He did not see if they went in later. He and his father went inside. The lights were on. According to his sister-in-law, the power had been switched on earlier. His brother was on his bed in the bedroom, blood all over him. He and his father took him to the health centre, and from there to the Şanlıurfa hospital.
Statement dated 12 March 1993 of Filiz Gül, the wife of the deceased, taken by the public prosecutor
80. On the day of the incident, her husband came home at 20.30 to 21.00 hours. They watched television until about 24.00 hours when they went to bed. At about 01.00 hours, there was a knock on the door. She and her husband thought it was the sahur being delivered (for the meal taken before dawn in Ramadan). Her husband went to open the door. Before he could, they started firing from the outside. When the door was knocked, the lights were on. Afterwards the lights went off. She rushed out of bed. Her husband returned to the bedroom. She could not see anything in the darkness. Her husband was lying on the floor. She ran to the kitchen and through the window saw armed men pointing their guns at the house. She had not heard anyone saying “Police. Open the door”. Nor did they speak after the firing. The lights were switched on. She saw her husband on the bed, wounded and covered in blood. Her father-in-law was shouting outside, “I’m Mehmet Gül.” She slipped in blood and fell down when she went to the door. She wanted to open the door but the lock had been broken. It opened after she turned the bolt and it was kicked from the outside. They went inside. She shouted to her father-in-law that they had killed his son. He went inside and cried as he thought his son was dead. Then he saw the feet move and wanted to rush him to hospital. She begged the police officers to take him to the hospital. They did not provide help. Her husband definitely did not fire a gun. He did not even have a gun. She complained against those responsible for killing her husband. She did not know whether the gold belonging to her was removed from the house.
Statement dated 12 March 1993 of Mustafa Hakkı Ocakoğlu taken by the public prosecutor
81. The witness was a neighbour, opposite to the Gül’s house. He heard gunfire at about 01.00 hours. He went outside. Police and gendarmes were outside. He was told to go inside and switch out the lights. As far as he could tell, the shooting came from the same kind of weapon, full automatic - bursts of fire, with no single shots of pistols.
Statement dated 13 March 1993 of Ömer Kaya taken by the public prosecutor
82. The witness ran a bakery about 30-35 m from the Gül’s house. He heard gunfire - three bursts of fire and no single shots. He heard sounds such as “Open the door, open the door.” He went outside and saw soldiers and police officers in the street.
Decision of lack of jurisdiction dated 17 March 1993 by the Bozova public prosecutor
83. This decision, indicating the applicant as complainant, the defendants as members of the special team and the offence as unintentional homicide, stated as follows. Based on intelligence that members of the PKK could be located in certain residences in Bozova, a number of searches were carried out at about 20.30 hours. At 00.01 hours special team officers intended to carry out a search at Mehmet Gül’s house. After giving warning, “Police. Open the door,” they fired at the metal door to gain entry. At that moment, Mehmet Gül was behind the door and died from the wounds received. During the search of his house, there was found an illegal 7.65 mm French pistol, a Belgium Browning pistol with its hammer draw back and a bullet in the barrel, 13 bullets and a cartridge. The applicant, father of the deceased, had lodged a criminal complaint.
84. However, as it appeared that the defendants were special team officers and the offence carried out while they were performing their duties, the public prosecutor decided that he lacked jurisdiction and sent the file to the Provincial Governor for the necessary action.
Additional decision not to prosecute dated 17 March 1993 by the Bozova public prosecutor
85. This referred to the discovery of two illegal pistols and ammunition found at Mehmet Gül’s house. In view of his death, it was decided not to proceed with the prosecution of the offence contrary to Law no. 6136
d) Documents relating to the investigation by the provincial administrative council
Letter dated 29 March 1993 by T. Ziyaeddin Akbulut, Governor of Şanlıurfa to the Ministry of the Interior
86. This requested appointment of a security or civil service inspector to carry out an investigation into the killing of Mehmet Gül by special team officers.
Ballistics report of Diyarbakır Criminal Police Laboratory dated 27 April 1993
87. This referred to the two pistols found at Mehmet Gül’s house and stated that it was not scientifically possible to date when these had been fired, in particular whether they were fired on 7 March 1993.
Letter dated 7 May 1993 from Police Inspector Salih Dost to Bozova district governor
88. This requested lists of the police officers and gendarmes involved in the searches carried out at around 23.00 hours on 7 March 1993 and also copies of the target search reports drawn up on the day of the operations.
Letter dated 7 May 1993 from the Bozova district governor to Inspector Salih Dost
89. This referred to intelligence having indicated that four PKK members were in the district centre and listed the personnel appointed to the duty of apprehending them: Chief Superintendent Fatih Güner, Superintendent Mehmet Meral, officers Mehmet Toprak, Şahin Yakut, Yüksel Kiliç, İbrahim Dokmeci, Abdulkadir Bozkurt, Arif İlkbahar, Ahmet Peker, Ömer Avcı, Emin Karakuş, H. Arap Evçi, Fahrettin Köksal, Mehmet Telçi, Fethi Usta, Muammer Altun, Ahmet Doğan and Mesut Derman.
Letter dated 7 May 1993 from the Şanlıurfa Director of Security to Inspector Dost
90. In response to the Inspector’s enquiry, their records indicated that neither the seized weapons (the French pistol and the Browning) nor Mehmet Gül had been furnished with any licence.
Statement of 8 May 1993 of Filiz Gül taken by Inspector Dost
91. Her husband returned from his petrol station after breaking his fast at about 20.20 or 21.00 hours. After watching television, they went to bed at midnight. At 01.00 hours, when there was a knock on the door, they both thought it was the sahur bread delivery. She had been comforting their eight month old baby and they were both awake. She was going to go to the door but her husband said that he would. Before he could open the door, there were shots. The lights had been on when there was the knock on the door. They went off suddenly. As soon as she heard the shots, she ran to the bedroom door and collided with her husband in the darkness. He did not say anything but fell on to the sofa bed by the door. She sensed that he was wounded. She wanted to telephone but was panic-stricken. She ran to the kitchen door and saw men holding guns outside. She screamed, “My husband is killed.” She heard no police warnings or anyone saying anything at all. Nor had anyone pressed the doorbell. When the lights went on, she saw her husband lying injured on the bed, covered with blood. She saw that he was seriously wounded from the amount of blood. He was wearing his pyjamas.
92. She heard her father-in-law shouting, “I am Mehmet Gül.” She wanted to open the door but could not as the lock mechanism was broken. She turned the bolt. The police and her father-in-law opened the door by kicking it in. Her father-in-law entered, thinking at first his son was dead and crying. Then he saw his son’s feet moving and took him to hospital with her brother-in-law and others of the family. Her husband did not have any weapon and did not fire at anyone. Her chain and gold coins were returned to her. She filed a complaint against the officials who shot her husband.
Statement of 8 May 1993 of the applicant taken by Inspector Dost
93. As was their routine during Ramadan, he had met his son and left the mosque to come together. Each went to his own apartment in the block. The applicant went to bed at about 22.30 hours. At 01.00 hours, he heard firing from an automatic weapon. At another point, he described hearing three shots, like shop shutters coming down. He went out in his pyjamas and leaned over the balcony. The police told him not to move. He went downstairs and saw that there were officers in commando uniforms and moustaches from the special team in front of his son’s door. When the applicant asked them what was going on, they said that there were anarchists inside. He saw his other son lying on the floor with officers around him. He told the officers that he would open the door. He had to force it as it would not open. His daughter-in-law told him that Mehmet was shot. When he entered, he saw the bedroom covered with blood and his son lying down covered with blood. He put his son in his car and took him to the State Hospital. There were five or six military and police vehicles outside the house. They did not help him. He took his son from Bozova to Urfa in an ambulance, but saw that his son died on the way. He did not think that the guns found belonged to his son. He would have known if they did.
Statement of 8 May 1993 of Mustafa Gül, paternal cousin of the applicant, taken by Inspector Dost
94. The witness lived in a house nearby which shared the same garden as the applicant’s house. On the night of the incident, Bozova police officers whom he knew called at the house to carry out a search. They found nothing and left. At about 01.00 hours, while watching television, he heard a series of gunshots from an automatic rifle. When he opened the window, he heard the applicant wailing and shouting his name. He tried to go to the house but was stopped by special team officers in the street. He was forced to wait. He saw the applicant carrying out his son in his arms. The officers allowed him to go. He stated that the deceased had a licensed weapon.
Statement of 8 May 1993 of Mustafa Gül, brother of the deceased, taken by Inspector Dost
1. The witness had gone to bed that night at 23.30 hours. At about 01.00 hours, he heard gunshots. The lights in his apartment were on. He did not hear any police warnings. When he looked out of the door, somebody put a gun to his head and said, “If you move, I’ll kill you.” He lay down and stayed there. He saw four men, well built wearing poşu headgear, at his brother’s door. He at first thought that they were terrorists. When his father peered over the balcony above, the police threatened to shoot him. His father told them that he was a friend of the Government. When he came downstairs, he told the officers that the witness was his son and the officers released him. His father offered to open his brother’s door. It would not open at first as the lock was broken. It was opened when the police kicked it and his sister-in-law pulled from inside. When he and his father entered the house, the special teams did not go in and he did not know if they did later on. His brother was on the bed, covered with blood and unable to speak. He and his father took him to Şanlıurfa hospital but he died in the ambulance.
Statement of 8 May 1993 of Mustafa Hakkı Ocakoğlu taken by Inspector Dost
96. This witness lived 15 metres opposite the applicant’s house. At around 01.00 hours, he was awake in his house, when he heard gunshots - a series of shots from an automatic weapon. He did not hear a single pistol shot.
Statement of 8 May 1993 of Ömer Kaya taken by Inspector Dost
97. This witness was sleeping in his bakery about 30-35 metres from the Gül’s house. He heard the sound of gunshots - three in succession. He did not hear one individual gunshot. When he went outside he saw lots of police and military vehicles.
Statement of 8 May 1993 of Fatih Güner taken by Inspector Dost
1. The witness, a chief superintendent, was chief police officer at Bozova Central station. On 7 March 1993, Major Erhan Güder, district gendarme commander, had received very strong intelligence that members of the PKK were going to hide at 13-14 residential addresses. He, the district governor and the gendarme division commanding officer planned an anti-PKK operation. He took the control of the entrances and exits to the Yukarıcatak district. They had a registration number of a suspected vehicle. As the gendarme division commanding officer stated that the intelligence was very definite, he told his teams to be careful and not to make any mistakes. Target searches were carried out in the city, which involved Mehmet Gül’s house. He heard that a hot conflict had occurred with the special operation team. On arriving at the location, the applicant was looking for a vehicle to take his injured son for first aid. The witness gave the police minibus and two officers to secure their transport to the district health clinic. He sent a message on the radio for an ambulance to be prepared.
99. The witness was ordered by Mustafa Tekin, deputy Director of Security, to examine the incident location. He, superintendent Mehmet Meral, officers Şahin Yakut, Mehmet Toprak and Ömer Avcı accompanied by 12 officials from the special operations branch directorate went to the deceased’s house. He established the incident report of 8 March 1993. Two guns were located - a Browning 14 rounder pistol and a 7.65 mm pistol, and an empty 9 mm cartridge at 1.5 metres from the entrance.
Statement of 8 May 1993 of Mehmet Toprak taken by Inspector Dost
100. The witness, who was carrying out searches with gendarme commandos, heard on the radio that there had been a hot conflict and was ordered to return. When he arrived at Mehmet Gül’s house the incident was over. The house was searched. He participated with his chief superintendent Fatih Güner and others. A 14 rounder 9 mm pistol was found with cocked with a bullet in the barrel, a 7.65 mm pistol was found behind the mattress pile in the left hand side of the wardrobe and an empty cartridge 1.5 m from the entrance door.
Statement of 8 May 1993 of Sahin Yakut taken by Inspector Dost
101. This officer was in a team providing support in a search operation covering 13-14 locations where the PKK were hiding according to intelligence from the gendarmes. Following a radio message that a hot contact had taken place, they were ordered to return. He accompanied Chief Superintendent Güner to carry out a search of the house. They were accompanied by members of the special operations branch who had participated in the conflict. They established the following - that a 9 mm 14 rounder Browning was found immediately next to the pillow on the deceased’s bloodstained bed, which was cocked with bullets in the barrel, that a French 10 rounder was found behind the mattress pile in the left hand side of the wardrobe and that a 9 mm empty cartridge was found 1.5 m from the entrance. He personally observed and established the weapons and illegal items belonging to the deceased in the house.
Statement of 8 May 1993 of Mehmet Meral taken by Inspector Dost
1. The witness, a superintendent at the Bozova central station, recalled that on 7 March 1993 an operation was planned by the district governor, the gendarme divisional commanding officer and officials from the provincial security directorate based on intelligence gathered by the district gendarme command. The intended targets were 13 to 14 points in Bozova where the PKK were hiding at residential locations. He and officer Ömer Avcı and the special team officers from Şanlıurfa went to the address of Mehmet Gül, which was indicated in the intelligence report as a potential target. He and Avcı took position at the junction, observing the persons entering and leaving the targeted address. He was in charge of environment security while the special team was carrying out the point operation. At around 00.30 hours roughly, a single shot came from the house, followed by a succession of gunshots from an automatic weapon. He and other officers took cover. After five-six minutes, he heard male and female shouting. Then their Chief Superintendent Fatih Güner arrived. He saw a wounded person being brought down from the house. Güner gave him the order to examine the scene and draw up the incident report. The witness, Güner, officers Avcı, Toprak, Yakut and 12 special operations officers entered to carry out the investigation. The illegal items and cartridge were established by observation.
Statement of 8 May 1993 of Ömer Avcı taken by Inspector Dost
103. This officer participated in the environmental security aspect of the operation at Mehmet Gül’s address and was at the junction of the main road at about 00.20-25 hours when he heard a single gunshot followed by a series of gunshots from an automatic weapon. He took cover. About 10 minutes later, he heard male and female shouting. Chief Güner arrived. He saw a wounded man being brought down who was dispatched by officers for emergency treatment. He participated with other officers in searching the scene. A 14 round Browning, cocked with a bullet in the barrel and a cartridge clip and a 10 rounder French pistol with a cartridge clip were located in the mattress pile in the left side of the wardrobe, in the first bedroom on the right hand side. A 9 mm cartridge was found 1.5 metres inside the door.
Statement of 9 May 1993 of Fahrettin İlgün taken by Inspector Dost
104. This witness, a deputy team leader in the Special Operations Branch, recalled that at 21.30 hours on 7 March 1993 Mr. Önder from the Prevention of Terrorism Department came to their branch and informed them that known members of the PKK were in Bozova. They made the necessary preparations and arrived in Bozova at about 22.30 hours. On arrival at the district gendarme command, they evaluated the intelligence and the situation. The information indicated that terrorists were in the house of Mehmet Gül and there was a strong possibility that PKK members would be there.
105. Gendarmes and local police officers assured external security around the address. Six special team officers, including himself, went through the garden and up the stairs to the veranda outside Mehmet Gül’s flat. He placed his officers and took position where he could see everybody. Upon his signal, the two officers on the right and left of the door knocked upon it. Enis Ünlü repeated several times the warning, “Police. Open the door.” Someone, later known to be Mustafa Gül, opened the door of the adjacent flat and ran back in quickly. This strengthened their assumption that members of the PKK were inside. The witness repeated loudly the warning, “Police. Open the door.” At this stage, the lights were not on. The door opened and they saw someone firing one shot with a weapon and running back inside. He shut the door quickly. No-one was hit as they were standing to the side. The officers by the door immediately responded. Approximately 10-15 shots were fired by them. The applicant and members of his family, and Mustafa Gül came out of their flats. A woman, later known to be the spouse of Mehmet Gül, said that her husband was wounded and needed emergency treatment. As the door was shot with bullets, it was jammed and would not open. The woman tried without success to open it. They warned the woman and her children to stand away from the door and shots were fired to break the lock. The door still could not be forced open. They kicked it open in the end. They carried out a rough search due to the possible presence of terrorists. Mehmet Gül was seen lying wounded on a floor mattress in a bedroom. He was taken by his father and brother assisted by a few of the team members, to a police vehicle.
106. Upon the arrival of other officers, they carried out a thorough search. A 7.65 mm French pistol was found in the mattress pile next to the wardrobe and a Belgian pistol, cocked, with a bullet in the barrel, was located under the bed. A 9 mm empty cartridge was found 1.5 m from the door. They had carried out the operation with the aim of apprehending terrorists. If the individual had heeded their warnings and opened the door, the incident would not have occurred. However he had fired an indiscriminate shot and the witness could only assume that he was concerned with the PKK.
Statement of 9 May 1993 of Murat Sönmezyurt taken by Inspector Dost
107. The witness, a special team officer, recalled that intelligence reports clearly indicated that members of the PKK were to be in the operation targets. Their team commander and other colleagues made preparations for point operations. Finally, their commander gave instructions to take up positions at the Gül address. He and five other officers went up the stairs to the veranda of Mehmet Gül’s flat, taking positions in blind spots round the door and staircase. The commander ordered Enis Ünlü to give the usual warning. He knocked loudly enough to be heard, shouting, “Police. Open the door” a few times. They waited cautiously as usual. At this point, Mustafa Gül’s door opened and shut immediately. This increased their suspicion that PKK members were present. They still waited. A short while later, Mehmet Gül’s door was opened, one shot was fired and the door shut immediately. One of the officers fired on the lock to open the door. They waited again. From upstairs, someone, later known to be the applicant, asked what was happening. They told him there were terrorists. He said he would come down and help. When he came to the door, a woman, later known to be the wife of Mehmet Gül, cried out to him that his son was shot. They tried to open the door with the applicant’s help but it could not be opened. The wife gave them the key from the inside but the door still would not open. They told the wife to stand back and though they fired 2-3 more times it would not open. In the end, they kicked it open. They carried out a rough search due to the possible presence of terrorists. They saw the wounded Mehmet Gül lying on a mattress. The team commander summoned a police vehicle by radio. The wounded man was taken for emergency treatment by his father, brother and police officers.
108. A search at the location resulted in the location of a 7.65 mm French pistol in the mattress pile in the bedroom and a cocked 9 mm weapon ready to fire under the bed. A 9 mm empty cartridge was found 1.5 metres from the door. They had intended to apprehend PKK terrorists and if the individual had complied with warnings the incident would not have happened. He shot at them and they fired at the door intending to open it. They had no intention of killing anyone.
Statement of 9 May 1993 of Enis Ünlü taken by Inspector Dost
109. The mobilisation on 7 March 1993 was to carry out point searches at locations where PKK members were expected to be. They were told that there was a strong possibility of PKK members being at Mehmet Gül’s house. His special operations team was led by Deputy Chief Fahrettin İlgün. Officers Bülent Torun, Murat Avan, Nurettin Yildiz, Cahıt İnal, Sadık Ergüler and Hasan Söylemez secured the environment in positions round the garden and the front and back of the building. Six officers, including himself, climbed to the floor where Mustafa and Mehmet Gül lived in adjacent flats. They positioned themselves. On the order of the team leader, he knocked loudly on the door, repeating loudly several times, “Police. Open the door.” There was no response. Mustafa Gül however opened his door and immediately shut it, strengthening their belief that terrorists were there. They repeated their warnings. At this point, Mehmet Gül’s door was opened, a shot was fired and the door shut quickly. The lights were not on and it was dark everywhere. In order to open the door and apprehend the individuals, they fired at the lock. They waited for some time. A woman’s voice was heard inside. While they tried to open the door, the applicant shouted from above. They explained that there were terrorists. The woman, later known to be the wife, said the door would not open. They and the applicant tried to force it unsuccessfully. They told the wife to stand back and fired harmless shots to break the lock. Upon opening the door, they carried out a rough search due to the possible presence of terrorists. They saw Mehmet Gül lying wounded in a bedroom. The team leader called for a police vehicle on the radio. The wounded man was carried down by his father, brother and police officers and taken to the district clinic with police assistance.
110. In the thorough search a 7.65 mm French pistol was found in the mattress pile in the first bedroom on the right, while a 9 mm Browning, cocked and ready to fire, was found in the second bedroom where the wounded individual was lying. A 9 mm empty cartridge was found 1.5 m from the door. Their intention had been to apprehend PKK terrorists. His firing of a weapon caused the incident. They fired to break the lock.
Statement of 9 May 1993 of Recep Doğan taken by Inspector Dost
111. On arriving at Bozova district gendarme command, the special team officers, including himself, were told that there was a strong possibility of PKK members hiding at certain residential locations. They completed their preparations for a point operation. They went to Mehmet Gül’s address. Their team went upstairs and positioned themselves as directed by the team leader on both sides of the doors belonging to the flats of Mustafa and Mehmet Gül and on the veranda. Enis Ünlü knocked loudly on Mehmet Gül’s door and repeatedly warned, “Police. Open the door.” There was a short period of waiting. Then Mustafa Gül opened his door and ran back inside, which strengthened their belief that PKK members were hiding in the house. At this point, Mehmet Gül’s door opened and someone, unseen as it was dark, fired a shot at them and shut the door. He and Ünlü fired at the lock to open it. They waited for some time. A person, later known to be the applicant, asked what was happening. When they said there were terrorists, he said that he was the father of the people living on that floor and would come to help, that he was on the State’s side. A woman started shouting inside, saying to the applicant that his son had been shot. They and the applicant tried to open the door. Even when the woman gave them the key from inside, the door would not open. They told the woman to stand back and shot at the lock a few times. In the end, they opened the door by kicking it. They went inside cautiously as they thought there was a terrorist inside who had shot at them. They carried out a rough search. They saw a wounded individual lying on the bed in the second bedroom on the right hand side. Realising he was still alive, the team leader summoned a police vehicle and with their help, the wounded man was taken to hospital.
112. A thorough search was made on the arrival of other officers. A 7.65 mm French weapon was found in the mattress pile next to the wardrobe in the first room on the right, and in the second room on the right, a 9 mm weapon, cocked and ready to fire, was found under the bed. A 9 mm empty cartridge was located 1.5 m from the door. Due to the certainty of the intelligence report that PKK members were hiding in the house, they had been prepared for a point operation. If Mehmet Gül had responded to their warning and not shot at them, the incident would not have happened. They only fired at the lock following his use of a gun and they had no intention to kill him.
Statement of 10 May 1993 of Lüfti Demirtürkoğlu taken by Inspector Dost
113. Strong intelligence had been received that PKK members were hiding in certain residences in Bozova. He was member of the special operations team sent to the operation location which was Mehmet Gül’s house. The deputy team chief placed men on either side of the door of both flats on the first floor and at other blind spots. Enis Ünlü as he always did knocked loudly on the door with his fist and shouted a few times; “Police. Open.” While they were waiting, Mustafa Gül opened his door and shut it. This meant that he had heard the knock and strengthened their opinion that there were terrorists in the house. As they were waiting still, Mehmet Gül opened the door, fired one shot, ran back inside and shut the door. The lights were not on at this stage. For their own safety and to catch the suspect, they fired at the lock. They remained waiting. Someone later known to be the father shouted, “What is happening?” They replied that there were terrorists and they could not open the door. The father said it was his son downstairs and he would open the door. He came down. A woman was shouting inside, “Father. They’ve shot your son.” She tried to open the door with a key unsuccessfully. She gave them the key and they tried without success. They told her to stand back and fired at the lock a few times. It still did not open. Then they kicked the door open with the father’s help. They carefully went inside and carried out a rough search. The team leader requested emergency aid on the radio. Police officers and the family carried the wounded person to hospital.
114. After a thorough search with the local police, two guns were found: a 7.65 mm French pistol in the first room on the right and a 9 mm Browning, cocked with a bullet in the barrel, in the second bedroom on the right where the wounded individual was lying. A 9 mm empty cartridge was found 1.5 m from the door. They always gave vocal warnings on point operations and waited to apprehend without harm. However this man fired a shot which could have killed them if they had not been in blind spots. They had no intention to kill and fired only to open the door.
Statement of 10 May 1993 of Şener Karamurat taken by Inspector Dost
115. He was a special teams officer, sent with others to Bozova on 7 March 1993, where they were told at the Bozova district gendarme command that there was a strong possibility that PKK members were hiding in some houses. The team leader and 11 officers, including himself, arrived at Mehmet Gül’s house. Six officers took security precautions in the garden and around the house. He climbed up to the first floor but did not enter the veranda. He was in position by the wall and unable to see the apartments. As usual, Enis Ünlü knocked loudly and called loudly a few times, “Police. Open the door.” A short time after, Mustafa Gül’s door opened and shut again. This made him think that there were terrorists inside. His fellow team officers were waiting in a state of attention as required in point operations. At that moment, he sensed someone open the door, fire a shot and close the door again. Everywhere was dark. Other officers fired at the lock of the door. They waited again. Someone upstairs shouted, “What is happening?” The officers told him that there were terrorists. The man said he was Mehmet Gül’s father and came down to help them open the door. The witness, who was guarding the stairs, hesitated on seeing the man but when he saw that the man had no weapon he did not fire. A woman’s voice called from inside the flat, telling the man that Mehmet had been shot. The officers and the father tried to open the door. The woman tried with the key. They told her to stand back and fired again at the lock; Then the officers and the father opened the door by kicking it. They carried out a rough search and saw the wounded individual on the bed in a bedroom. The team leader summoned a police vehicle by radio and the police helped place him in the vehicle, which took him to the hospital.
116. A search was carried out which found a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a cocked 9 mm Browning also. A 9 mm empty cartridge was found 1.5 m from the door. If the individual had heeded their warnings the incident would not have taken place. He used a weapon and his colleagues fired to open the door and to defend themselves.
Statement of 10 May 1993 of Cahıt İnal taken by Inspector Dost
1. On 7 March 1993, he and other special team members were sent to Bozova where at about 23.00 hours they discussed an operation at the district gendarme command. They were informed that potential locations of PKK members were based on strong intelligence reports. The address of their target was Mehmet Gül’s address. The witness and five others secured the approaches to the building while six others went to the first floor. The witness was 10-15 metres from his colleague, Sadık Ergüler, and unable to see the actions of the officers upstairs. At about 00.10 or 00.15 hours, he heard a loud voice, probably Enis Ünlü’s, giving a clear warning, “Police. Open the door.” This was followed by a single shot. The warning was repeated and then followed by a series of single shots. He was not able to see what happened. He did hear conversations coming from the floors above and below. Four to five minutes after the gunshots, he heard one or two more shots. Shortly after, a wounded man was lowered down the stairs by special team officers. He was put in a police vehicle and dispatched to hospital.
118. A search was carried out which found a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a cocked 9 mm weapon under the bloodstained bed in the second bedroom on the right. A 9 mm empty cartridge was found 1.5 m from the door.
Statement of 10 May 1993 of Sadık Ergüler taken by Inspector Dost
119. On 7 March 1993, a team of twelve special team officers, including himself, was sent to Bozova where at about 23.00 hours they discussed an operation at the district gendarme command. They were informed that potential locations of PKK members were based on strong intelligence reports. The address of their target was Mehmet Gül’s house. The witness and five others secured the approaches to the building while six others went to the first floor. The witness was about 20 metres from the officers on the first floor. At about 00.10 or 00.15 hours, he heard a loud voice, probably Enis Ünlü’s, giving a clear warning, “Police. Open the door.” This was followed by a single shot. The warning, “Open the door,” was repeated and then followed by a series of single shots. He was not able to see what happened. He did hear conversations coming from the floors above and below. Four to five minutes after the gunshots, he heard one or two more shots. Shortly after, a wounded man was lowered down the stairs by civilians and special team officers. The wounded man was shouting. He was put in a police vehicle and dispatched to hospital.
120. A thorough search was carried out by their team and local personnel which found a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a cocked 9 mm weapon under the bloodstained bed in the second bedroom on the right. A 9 mm empty cartridge was found 1.5 m from the door.
Statement of 10 May 1993 of Hasan Söylemez taken by Inspector Dost
121. On 7 March 1993, he and other special team members were sent to Bozova where they were informed at the district gendarme command that the intended targets for the operation were certain houses in Bozova where PKK members were hiding. The address of their target was Mehmet Gül’s address. The witness and others colleagues secured the environment while six others took position on the first floor. The witness was 5 metres from a colleague in the garden, adjacent to the staircase. He was unable to see the actions of the officers upstairs. He heard Enis Ünlü’s voice, giving a loud warning, “Police. Open the door.” This was followed by a single shot. The warning was repeated and then followed by a series of single shots from an automatic weapon. He also heard a mixture of shouts from men and women above. The shouts were followed by a series of automatic weapon shots. Shortly after, a wounded man was lowered down the stairs by special team officers. He was put in a police vehicle and dispatched to hospital.
122. A thorough search was carried out which found a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a 9 mm weapon under the bloodstained bed in the second bedroom on the right. A 9 mm empty cartridge was found 1.5 m from the door.
Statement of 10 May 1993 of Bülent Torun taken by Inspector Dost
123. On 7 March 1993, he and other special team members were sent to Bozova where they were informed at the district gendarme command that the intended targets for the operation were certain houses in Bozova where there was a strong possibility that PKK members were hiding. They went to Mehmet Gül’s address. The witness and five colleagues secured the environment with officers from the local police while six others took position on the first floor. The witness was next to the woodpile beneath the staircase by the garden gate. He was unable to see the actions of the officers upstairs. He heard Enis Ünlü knock loudly at the door and repeat the warning numerous times, “Police. Open the door.” This was followed by a single shot. The warning was repeated and then followed by a series of single shots from an automatic weapon. He also heard a mixture of shouts from men and women above. The shouts were followed by a series of automatic weapon shots. Shortly after, a wounded man was lowered down the stairs by residents of the house and special team officers. He was put in a police vehicle and sent off.
124. A thorough search was carried out which found a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a 9 mm weapon in the second bedroom on the right. A 9 mm empty cartridge was found 1.5 m from the door.
Statement of 10 May 1993 of Nurettin Yıldız taken by Inspector Dost
125. On 7 March 1993, he was in the special operations team sent to Bozova. On arrival at the district gendarme command, they discussed the operation. They were informed that the intended targets were certain houses where there was a very strong possibility that members of the PKK were hiding. They went to the Gül address, with officers from the local police and the prevention of terrorism branch. He and another six colleagues secured the environment while another six entered the stairs of the house. Soon after, he heard Enis Ünlü’s voice shouting loudly, “Police.” Open the door.” He heard the warning repeated several times. A short time later, he head one shot “Bang” and then a series of gunshots that sounded as if they came from team weapons. Enis Ünlü repeated the warning. Five to six minutes later, he heard several gunshots. He could not see what was going on. He did not see the wounded man brought down the stairs but he did see an ambulance entering the location. He was following events on the radio. After the incident, the team leader called the team upstairs and they carried out a search in order to find illegal items. A 7.65 mm weapon was found in the mattress pile adjacent to the wardrobe in the first room on the right. In the second room on the right, under the bloodstained bed, was a 9 mm cocked weapon. A 9 mm cartridge was located 1.5 metres inside the entrance door.
Statement of 10 May 1993 of Murat Avan taken by Inspector Dost
126. On 7 March 1993, he and 11 other special team officers were sent to Bozova where they were informed at the district gendarme command that the intended targets for the operation were certain houses in Bozova where PKK members were hiding. They went to Mehmet Gül’s address. The witness and five colleagues secured the environment with officers from the local police while six others took position on the first floor. He heard Enis Ünlü’s voice and that he knocked loudly at the door, repeating the warning several times, “Police. Open the door.” It was about midnight and very quiet. A short time later, he heard a single shot, followed by a series of single shots from an automatic weapon. This was followed by shouts from men and women above. The situation calmed down after that. He did not hear if any other weapons were fired. He did not see a wounded man taken down.
127. A thorough search was carried out which resulted in finding a 7.65 mm French pistol in the mattress pile next to the wardrobe in the first bedroom on the right and a 9 mm cocked weapon in the second bedroom on the right. A 9 mm empty cartridge was found 1.5 m from the door.
Statement dated 11 August 1993 of Mehmet Telçi taken by police officers
128. An intelligence report from the district gendarmes was passed onto the Security Directorate in order that 4 terrorists who had arrived in the district might be apprehended. Officers from the directorate, including himself and local gendarmes participated in the operation. They did not come across any of the reported individuals in the eight houses searched, nor find any illegal items. After that they assembled in the district square. He and two other police officers waited on instructions in the minibus for a while. Then while they were en route with the superintendent, some gunshots were heard or reported as being heard (document is badly photocopied). They heard on the radio that there was a conflict at Mehmet Gül’s house. As they arrived, they saw Mehmet Gül wounded and his father and brother were requesting help. They provided the minibus to take the wounded person to the health clinic. He did not participate in the operation at the house. It was not included in the intelligence information and he did not know why the house was searched, how the special operations team were brought there or by whom.
129. He participated in the search of the house with other officers. He found one pistol next to the mattress on the floor. Another gun was found by someone else in another room. An empty cartridge was also found.
Case summary report dated 3 September 1993 by Inspector Dost
130. This 19 page report summarised the witness statements above, naming Filiz Gül and the applicant as complainants and 15 officers as defendants (Cahıt İnal, Hasan Söylemez, Sadık Ergüler, Bülent Torun, Nurettin Yıldız, Murat Avan, Ömer Avcı, Mehmet Meral, Fahrettin İlgün, Murat Sönmezyurt, Şener Karamurat, Enis Ünlü, Lüfti Demirtürkoğlu, Recep Doğan, Mehmet Telçi). The offence was described as actions and attitudes causing loss of trust and respect for officials during execution of their duties. It commenced by summarising the incident as follows. It occurred at about 24.00 hours on 7 March when special team officers acting on intelligence arrived to apprehend members of the PKK at Mehmet Gül’s address. After giving warnings to open the door, Mehmet Gül responded with a weapon. Officers fired at the lock to open the door. Mehmet Gül was behind the door, was injured and died.
1. Under the heading “Analysis”, it was found as established that a special operations team was sent from Şanlıurfa at 21.00 on 7 March 1993. At Bozova, they were informed by the relevant authorities and the district governor that a operation was to be conducted involving 12-13 locations where PKK members were hiding, one of those being Mehmet Gül’s house. Security precautions were taken round Mehmet Gül’s house by officers Inal, Söylemez, Ergüler, Torun, Yıldız and Avan. Six other officers (İlgün, Sönmezyurt, Karamurat, Ünlü, Demirtürkoğlu and Doğan) were positioned round the apartment door. At about 24.00, the light in front of the apartment was not on according to the deputy team leader. He ordered Ünlü to make the necessary loud warning. The door of the adjacent flat was opened and shut by Mustafa Gül, which increased the officers’ suspicion. Mehmet Gül’s door was knocked by a fist and while verbal warnings were being given, Mehmet Gül opened the door, fired and closed the door. The officers waited a short time and fired at the lock. The officers did not consider that Mehmet Gül could have been behind the door. The autopsy indicated that one of the bullets which hit the lock went on to penetrate Mehmet Gül’s kidney and intestines. The number of 7.62 cartridges used to open the door was 30. The public prosecutor and others were unable to find any bullet shells in front of or inside the apartment. If the officers had fired intentionally at the individual the injuries would have also been to the head and chest region. The report from the district gendarme command and another report indicated that the 9 mm weapon had been recently fired. Both weapons found at the house were without licence. The analysis noted the psychological stress of special team terrorist duties and concluded that nonetheless the officers had shown a lack of care and attention and lack of experience having regard to the nature of the terrain and the presence of women and children at the location. It was concluded that three officers fired (Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu) to open the door and apprehend Mehmet Gül who had fired a gun and did not try to kill intentionally.
132. The report’s conclusion stated that the three officers Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu could be charged with causing death from lack of precautions, care and experience and that as they were public officials subject to the Official Conduct Act the matter was to be referred to the Şanlıurfa provincial governor. Judicial proceedings against the other officers were not necessary. From a disciplinary point of view, proceedings were not necessary for these other officers. However, Recep Doğan, Enis Ünlü and Lüfti Demirtürkoğlu were found to have committed the offence of actions and behaviour which jeopardised the respect and trust owed to the service. The punishment should be 16 month suspension in accordance with Art. 7, Section 1, para. 1 of the Security Organisation Disciplinary Code.
Decision dated 21 October 1993 of the Şanlıurfa provincial administrative council
1. This referred to the report and investigation documents submitted by Inspector Dost. It decided unanimously not to instruct the prosecution of the defendants. The defendants had not received any response to their warnings but had been fired on by the deceased. Further, they fired at the door to obtain entry and had no intention of causing death in this incident. It was signed, inter alia , by the Deputy Governor, Ziya Coşkun.
Decision of the Supreme Administrative Court dated 18 April 1995
134. This referred to the decision of 21 October 1993 of the Şanlıurfa provincial administrative council (above) and stated that the information and documentation indicated that the defendants had caused the death of Mehmet Gül by failing to show the expected care and attention during the performance of an operation. It decided unanimously that the decision was annulled and that the defendants were to be tried in accordance with Articles 251 and 455/1 of the TPC.
e) Domestic court proceedings
1. Minutes of court proceedings against Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu in Şanlıurfa Criminal Court of First Instance No. 2 for the offence of causing death by lack of attention and precautions have been provided which show that hearings were conducted on 5 July 1995, 10 October 1995, 30 October 1995, 21 December 1995, 12 February 1996, 26 February 1996, 27 February 1996, 1 March 1996, 3 April 1996, 3 June 1996 and 9 September 1996.
1. At the hearing on 10 October 1995, Enis Ünlü and Lüfti Demirtürkoğlu gave evidence to the court. They referred to their previous statements and said that they had nothing to add.
137. At the hearing on 21 December 1995, Recep Doğan gave evidence to the court. He maintained his earlier statement; He stated that a colleague had shouted a warning, that the door had been opened slightly, a shot fired and the door shut and locked again. They had given further warning to open the door and then in accordance with the order given he shot at the lock mechanism. He fired in order to enter the house and complete the operation.
1. On 26 February 1996, the court decided to appoint gendarme first lieutenant Güven Sağban as expert. On 27 February 1996, Güven Sağban appeared in court and it was established that he did not know the district gendarme commander or the defendants. His report was submitted to the court at its sitting of 1 March 1996 (see below).
139. On 3 April 1996, the court decided to send the file to the Ankara Criminal Court of First Instance for expert lecturers from the Ankara Police Academy with higher ranks than the defendants to be selected to consider the file and prepare a detailed and reasoned report on the use of weapons and intentions behind the use of weapons, if any. On return of the file and receipt of the expert report, the court proceeded to reach its decision acquitting the accused (see below).
Expert report dated 28 February 1996 by gendarme lieutenant Güven Sağban
140. This stated that from the file it was understood that the officers had called out warnings at the house, that the deceased had come out, fired one shot and shut the door again and that the officers fired at the lock to open it. The deceased, in the line of fire, was wounded and died. A subsequent search revealed the gun which had been fired and another, both unlicensed. It was noted that the complainants and other witnesses essentially disputed the statements of the security officers. It concluded that the defendants were members of a special operations team and had received serious and strict security training. During the incident and operation, conducted on the basis of intelligence information, the deceased fired a shot and the defendants were therefore “preconditioned”. They were primarily concerned to open the door and also to protect themselves and their colleagues. For those reasons, they fired at the lock. The photographs indicated that the defendants’ firing was concentrated round the lock to break it. Also the deceased’s firing was intended to attack more than to defend. This indicated that although the defendants showed the care and attention expected from them, the incident occurred. No fault or ill-intention could be attributed to them.
Expert report dated 16 July 1996 signed by three experts
141. This report, signed by Chief Inspectors Güner Kalkendelen and Yılmaz Yaşar and Dr Vahit Bicak, a research fellow at the police academy, stated that they had been requested to give their opinion on the fault, if any, of each accused individually based on the court file. It listed as fact that the security forces acting on intelligence about the presence of PKK members surrounded Mehmet Gül’s house at about 24.00 hours on 7 March 1993. The officers knocked on the door, warning, “Police. Open the door.” The door was slightly opened from the inside, a gun was fired and the door closed. The officers fired aiming at the lock to enter. The deceased who was behind the door was injured. The opinion of gendarme officer Adnan Kulaksiz stated that the 9 mm hand gun found was set to fire and recently used.
142. The report analysis stated that it was believed that the security forces opened fire after the deceased fired due to the stress caused by the situation in the south-east and the psychological tension of the operation. It was significant that they did not shoot wildly but concentrated on the lock of the door. The fatal bullets were in the kidney and intestinal area, the same level as the lock, showing further that there was no intention to injure or kill. It concluded that the deceased was injured by chance and that the accused could not be charged with negligent conduct.
Decision of the court dated 9 September 1996
143. The court referred to the expert report of 16 July 1996 which stated that charges of fault on the defendants’ part were not possible. It was concluded from the expert report that the defendants were not at fault and each accused was to be acquitted.
f) Miscellaneous
Lock mechanism submitted by the applicant
144. The applicant submitted a lock during the taking of evidence which was stated to be identical to the lock damaged during the shooting in the incident.
Videotape cassettes
145. On 27 May 1999, the Government submitted a video showing the applicant’s house and its surroundings, with oral explanations as to the layout.
146. On 1 June 1999, the applicant submitted a video, taken of the house and first floor area on 11 March 1999. In the oral commentary to the video, changes made to the stairways and balcony entrances were explained. The video showed the location of the electricity mains switches outside the door of the flat.
147. Both videos indicated that significant changes were made to the building following the events in 1993. This involved the closing of a ground floor stairway, the construction of a new stairway and extension to the first floor balcony. The area outside Mehmet Gül’s house was shown to be closed. The explanations of the Government and applicant differed as to whether the area outside Mehmet Gül’s flat was previously a closed balcony area or opened over the garden with only a low balustrade. It appeared from both videos that the stairway to the second floor was located towards the front of the balcony area in front of Mehmet Gül’s apartment and its stairwell could have blocked a shot fired from inside the apartment depending on the angle of fire.
Photographs
148. A set of photographs of the scene largely identical were submitted by the applicant and by the Government. The Government’s photographs were taken by a photographer for the public prosecutor. The applicant’s photographs were taken by the same photographer either at the same time or shortly afterwards.
149. The photographs show the pattern of numerous bullet strikes on the door with a heavier concentration around the lock, strikes in the hallway and two marks inside the kitchen. They also show patches of bloodstains around the light switch in the hall and along the wall in the hallway and near the light switch in a bedroom. The Government’s photographs include a picture of two pistols with attached clips on a table bearing labels.
Sketch maps
150. Sketch maps of the house were provided by both the Government and the applicant.
Expert report of Dr Milroy, Department of Forensic Pathology, University of Sheffield, dated 29 July 1999, submitted by the applicant and report of the Government submitted on 27 May 1999
151. This detailed the types of cartridges which would be fired by the weapons in issue in this case: Browning (9 mm parabellum), Heckler and Koch MP5sub-machine gun (9 x 19 mm parabellum), M16 (5.56 x 45mm), G3 Heckler and Koch rifle (7.62 x 51 mm NATO cartridge), MG3 Heckler and Koch machine gun (7.62 x 51 mm), AK-47 “Kalashnikov” (7.62 x 51 mm) and French pistol Armes de Pyrenées (7.65 mm). Examination of the bullets in the victim and the cartridge shells would indicate which weapons had been fired. Ballistics examination of the bullets and discharged shells might give an indication of which gun fired which cartridge. The report submitted by the Government on 27 May 1999 was concordant with the technical information given.
Expert reports of Ankara Central Forensic Laboratory dated 8 April 1999, 10 June 1999 and 30 July 1999 submitted by the Government
152. The first gave the calibre of bullets used by various weapons: Browning (14 rounder) fired 9 x 9 mm; Unique (French) pistol fired 9 x 19 mm; MP5 automatic pistol fired 9 x 19 mm; M16 Colt semi- and fully automatic rifle fired 5.56 x 45 mm; G3 semi- and fully automatic rifle fired 7.62 x 51 mm; Kalashnikov semi- and fully automatic weapon fired 7.62 x 39 mm.
153. The second stated that trace tests on the lock of the door indicated that the shots fired were at close range.
154. The third report stated that it was an opinion on bullet holes on a lock. The examination of the lock showed six bullet entry holes on the anterior face and five exit holes on the posterior face. Chemical tests showed that the shots had been fired at close range. By test firing at similar locks, it was established that AK-47 kalashnikov and Colt M-16 rifles could pierce the lock. A CZ 75 B 9x19mm semi-automatic pistol did not pierce the lock and made different deformations on the lock. The conclusion was that the holes and deformations were not produced by short-barrelled guns but by shots from AK-47 kalashnikov and Colt M-16 or similar weapons.
Report on the use of firearms dated 18 July 1999 provided by the applicant
155. The report, submitted by Geoffrey Roy Markham, previously Assistant Chief Constable (Operations) in Essex, England with an experience of 4000 firearms operations, set out the principles on police use of firearms and placed them in the context of the information known about the operation in Bozova. He drew attention to the principles of justification, safety and command and control which had three levels, strategic, tactical and implementation and identified a number of elements and defects:
- there was no development of the alleged information given to Major Güder into the status of intelligence and no attempt in the post-operation investigation to examine the justification for the wider operation;
- a difference in styles between the wider police operation (“soft, non-threatening, non-aggressive style”) and the search of the Gül house (“hard, dominant, aggressive”) in respect of which no attempt was made in the investigation to account for this sharp difference;
- difficulty in identifying a clear chain of command and also identifying the tactical command at the house (he thought Enis Ünlü was in command at that implementation level of the plan);
- a lack of any apparent planning as to what to do if the challenge at the door was unsuccessful, in particular for a siege situation, with no provision for a negotiator, or devices for opening the door, or alternative rapid entry methods which may be deployed against organised terrorist groups or determined criminals;
- no trace of any alleged shot fired from the doorway was found, no allegation made of the shot being aimed or in what respect there was a continuing threat, and no efforts made to link Mehmet Gül with the guns found in the flat, inter alia, by simple forensic testing of weapons or hands;
- the use of high velocity weapons for opening a lock is reckless in the extreme and no training is known to advocate this;
- no accounting is made of bullets fired;
- there is no indication of any preparation for a post-shooting situation eg. deployment of paramedics, first aid personnel or ambulances, despite a high level of resources deployed around the building and where injury to public, police or occupants could have been anticipated;
- there was no immediate debrief after the incident of those taking part to obtain an early view of individual perspectives, which vary after traumatic events or discover who fired what at whom;
- no post-incident management process, or attempt to cope with deceased’s family, officers in immediate contact or those in command.
156. A crucial part of training was the inculcation of the legal principles surrounding the use of force and the instilling in a trainee that every shot fired must be justified against the legal standard (eg. necessity for life of the officer or another to be in danger). Training should continue to ensure practically and theoretically that this justification never slipped lower than first in the list of priorities.
2)Oral evidence
157. The evidence of the 25 witnesses heard by the Commission's Delegates may be summarised as follows:
(1) The applicant
158. The applicant, born in 1944, was living in No. 61, Gölbaşi Mahellesi, Bozova. He was a businessman and owned a petrol station. His son Mehmet used to work at the petrol station as the manager. His son Mustafa owned a shop in which he sold car spare parts. He owned the house in which he and his two sons lived. He lived in the upper floor, Mehmet and Mustafa had flats on the first floor while the applicant’s fertiliser shop occupied the ground floor. There were two staircases leading up to the first floors, one on each side. But the one on Mustafa’s side was not used. They used the one on Mehmet’s side. A corridor led from the staircase to the doors of Mehmet’s flat on the right and Mustafa’s on the left - this was about four to five metres long and two to two and a half metres wide. There was a wall separating the two parts of the area. The entire area was closed in. There was a wall from floor to ceiling facing Mehmet Gül’s apartment. There was one flight up to the applicant’s floor from the first floor. The stairs were open. Usually at night, they left the light on outside Mehmet’s flat. The door to Mehmet’s flat was secured by a lock, the key of which turned about three times to open. There was also a bolt that could be drawn across. Both Mehmet and Mustafa had done their military service.
159. In Mehmet’s apartment, there was a five metre corridor leading from the steel entrance door. Off the corridor on the left side was the kitchen which had a window onto the exterior walkway, the WC and bathroom. On the right, a small corridor at right angles gave onto the bedroom where the children slept and a spare bedroom for guests. The next room on the right was the master bedroom where Mehmet Gül and his wife slept. At the end of the corridor was the sitting room which had a covered balcony over the street. There were sixteen persons living in the apartment block - himself, his wife and five (four) children, Mustafa, his wife and two children and Mehmet, his wife and three children. The Gül name was not uncommon in Bozova where there were about 100 people with that name.
160. On 7 March 1993, Mehmet had met the Bozova district governor, Mustafa Yaman at the station and they had chatted, Mehmet inviting him to eat at his house. Mehmet came home from the petrol station, broke his fast and he and the applicant went to the mosque to pray. They went to a religious meeting held by a foundation after prayer. At about 21.00 hours, they drove home. On the way to the mosque, he had noticed that the lights in the street were off but thought nothing of it as sometimes that happened. He went into his house. During Ramadan, Ahmet, his son, used to go to the bakery for the special bread (pide) for the meal before the fast and distribute it between the three apartments. As the meal was at about 03.00 hours, the bread was usually brought about 02.00 hours.
161. At about 01.00 hours, he was woken by the sound of continuous shooting. He knew it was that time as he looked at the clock in his room. He thought someone was breaking into the shop. He leaned out of the window and saw police, gendarmes, their vehicles were everywhere, surrounding the house. There seemed to be more than a hundred. Some were wearing uniforms. He went to the balcony by the stairs going down to the first floor from which he could see the staircase but not Mehmet’s apartment which was covered. On the stairs below, he saw 10-15 people dressed in civilian clothes, some with poşus, moustaches and beards. They were not local officers. When he asked what was happening, a shot was fired at him. He drew back and the bullet went by his ear. He shouted that he was the provincial vice-president of the True Path Party, a friend of Süleyman Demirel and a relative of Necmettin Cevheri, against terrorism and violence. He opened the door from the balcony onto the stairs. On the way downstairs, he saw Mustafa was lying down in the corridor, with five persons holding kalashnikovs to his head. These men were not wearing uniforms. He pushed them aside, saying Mustafa was his son. No-one shot at Mustafa - the reference to a shot being fired in his statement to the HRA referred to the shot fired at himself. The light in the middle corridor was off. The lights in his flat upstairs had been on, as was the light outside Mustafa’s door. He flicked on the mains switch outside Mehmet’s door and the light went on. When the light came on, he rescued Mustafa. He saw the door was riddled with bullets and when he asked why, they said terrorists were in there. He said it was his son Mehmet and that there were no terrorists.
162. The door would not open. The catch was stuck due to the many bullets fired at it. The lock had become dislodged. Filiz, Mehmet’s wife, was screaming. He did not see nor was aware that she gave a key to anyone. The officers did not tell her to stand back so they could fire again. There was no shooting when he was in the corridor. He and Mustafa broke the door down with their shoulders. Filiz said, “Uncle. They’ve killed Mehmet.” He went in and saw that Mehmet was lying in a pool of blood on the floor of his bedroom. After the police had opened fire, Mehmet had tried to get from the corridor to the bedroom. He told his wife that it was as if hot water had been poured over him. Mustafa and Ahmet ran to help the applicant. The police or units which had been involved came in and immediately left when they saw that Mehmet was dead. The police did not help them at all. He and his sons carried Mehmet downstairs. It was raining and the applicant slipped, dropping his son. They carried Mehmet to the applicant’s car and took him to the district clinic. He rang the bell but no-one was there. The ambulance driver woke up and came out. He brought the ambulance and they placed Mehmet in the ambulance to take him to the hospital in Urfa. When he arrived in Urfa, he was met by Mehmet Cebe, Director of Security, who said that it was a distressing incident. His son had died already and the body was put in the morgue. His son had not talked to him and did not speak at all. He had been hit by 61 bullets. He did not look at his son’s body but estimated this from the number of holes in the door. His son was right-handed, and part of his right hand had been severed. Filiz came in a car a little later. There was a convoy following them to the hospital.
163. Later, he made petitions. The Prime Minister offered his condolences, as did the Minister of Agriculture, Necmettin Cevheri, the Governor Ziyaeddin Akbulut, the gendarme regiment commander, the chief of police, the chief public prosecutor and all the senior government officials. They alluded or told him even that there had been a mistake. He made an application as the complaints he made to the public prosecutor were swept under the carpet and nothing was done. He was never informed that court proceedings were initiated against three police officers. He was not called as a witness. He was informed of the decision taken by the public prosecutor not to prosecute but not of the decision of the administrative council. He had never been summoned by a court.
164. Afterwards, the police had planted weapons and alleged that they had been shot at. If there had been a shot, it would have hit them or there would have been a mark on the closed wall area opposite. When the public prosecutor came, he looked at all the bullet marks and also outside but found no bullet hole. They did not let any of their relatives come near the house. The police lied when they stated that they took Mehmet to hospital in a police car. He did not hear if any police officer offered a minibus or police car. The applicant had two registered guns but his son did not. They did not need guns. The district did not harbour terrorists but was against the terrorists. There was only one family that sympathised, some of whom moved to Germany. People who came to the house to offer their condolences said that they heard a shot fired in the house when the police from Bozova were searching it. Bozova was a small place, about 15-16 000 people living there. He knew Erhan Güder, the district gendarme commander and must have known Fatih Güner. His son knew the local officials also and as a businessmen, had good relations with them. The police and security forces knew his family and who lived at the house. His son was well-liked and thousands attended his funeral. The local people closed their shutters for three to four days in mourning.
1. As regarded the photographs, he rang the photographer Ayhan Coşkun probably about one or two days later. Coşkun gave him the photographs submitted in his application. His son Mehmet, his oldest son, shared his political views. He had appointed him as his legal representative. Mehmet had no links with illegal organisations. He had described the killing as deliberate due to the way it was carried out, with no prior attempt to talk to the family and the way in which their house was treated differently from the other houses searched earlier in the evening. Shots had been fired through the upper part of the door, not only the lock and also the kitchen window had been broken by shots.
166. The lock on the door was closed by turning the key. There was also a bolt that could be drawn across. At night, it would have been either bolted or locked. When he first arrived at the door during the incident, there were cartridges everywhere. They were taken away, he thought by the police, while they were at the hospital. He did not collect any.
(2) Filiz Gül
167. The witness, born in 1967, was sleeping in her bedroom [3] with her husband. The children were with them. At about midnight, her six month old son had woken up. She rocked him in the cradle until about half past twelve and went back to bed. She was just falling asleep when there was a light knock on the door. She thought it was some member of the family and was unalarmed. She got up to open the door, but her husband said that he would go. Just as he left the room, the lights in the apartment went off. They used to leave the hall light on and there was a night light in their room. At another point, she stated that the lights went off as the shooting started. As her husband reached the front door, there were shots. The firing was continuous and filled the flat with the smell of smoke and gunpowder. She leaped up and was rushing out of the room when she collided with her husband in the doorway of the bedroom. He fell down onto the sofa next to the bedroom door. She felt warm liquid and not understanding asked if it was hot water. Her six year old ran to her, crying and grabbing onto her. The lights came on again. She saw her husband in a terrible state.
168. She heard her brother-in-law Mustafa’s voice outside the kitchen window. She ran to the kitchen but could not see him. She could see a crowd outside but not their faces. She heard her son crying and ran to the other part of the flat. Her husband had turned the key in the front door once but had not drawn the bolt. With her father-in-law’s help, pushing and kicking from the outside, the door gave way and they came in. She was able to draw back the bolt but with great difficulty as it had stuck due to the firing. She only heard her father-in-law shouting from outside, encouraging her to open the door. No-one told her to stand away from the door nor was there any more shooting at the lock to open the door. The kitchen window had been hit twice. She was screaming and crying for them to hurry up and that they had to save her husband.
169. There was no shooting from inside the apartment. Her husband had not managed to open the door when they started firing. Some of the men were dressed in uniform but the ones who shot at the door were not. They wore masks over their faces, like a wool hat which left only the eyes visible. There were police officers outside whose faces could be seen also.
1. When the door was open, her father-in-law came running in first and they both went to the sofa to her husband. Her brother-in-law and mother-in-law came in also - the whole family. Her husband was picked up by her father-in-law and brother-in-law and carried to the car. Through fear or distraction, she and her mother-in-law who were crying did not get into the car. There were many cars outside, police and others, and they asked a driver to follow the family car which was going to Bozova health centre. But the police gave orders and no-one would take them. There was a huge crowd outside, like a kind of battle line in front of the house. They began running towards the hospital. When she saw a car approaching, she flagged it down and found it was a relative. He took them to the health centre. Her husband was not there. He had been placed in an ambulance and taken to Şanlıurfa hospital. Their car caught up with the ambulance at the hospital.
171. She returned to the house at morning prayer time. She had left her children there during the night. Her eight year old daughter had taken the two younger ones to a relative’s house. As she went to stay with her father-in-law upstairs, she did not know when or how the bullet cartridges were removed. The police had searched the apartment when they were at the hospital. The bullets had ripped the hall carpet to pieces. They had hit near the ground near to the door and also further on, but mostly to one side.
172. Her husband had no guns and had not been in any trouble with the police. After work at the petrol station, he usually came home though there were occasional times that he went out. She had not been summoned to give any evidence before a court. The front door opened to the right and inwards. There was a doorbell. When asked whether the police could have known that it was her husband answering the door, she stated that in almost all homes when there was a knock on the door the man of the house answered. She had not heard anyone crying loudly “Open the door.”
3) Mustafa Gül
173. The witness, born in 1969, worked with his father and lived in an apartment next to his brother Mehmet. On the night of the incident, he had gone to bed at about 23.00 hours. He remembered it being quieter than usual with less traffic passing and that the street lights were off. He woke up to the sounds of guns, several shots one after the other from automatic weapons, which did not last more than five minutes. At another point, he described the shooting as three bursts in a series. This was at about 01.00 hours. He had not heard any warning shouts. There were only shouts later when they were unable to open his brother’s door. His hall light and sitting room light were on this time.
174. He opened his front door. There was nobody on his balcony. He saw three or four on his brother’s balcony. One came towards him. He thought they were terrorists. They had beards, moustaches and poşus [4] on their heads. As he was closing the door, he noticed that one had a wireless in his hand. He was relieved that they were security officers. He opened the door again less than a minute later as this realisation dawned on him. Two people standing by his door grabbed him and threw him on the floor. One stepped on him, pressing a kalashnikov against his head and threatening to shoot him if he tried to get up. There were about seven or eight men on the balcony. The light on his brother’s balcony which was usually left on was off at this time. The light on the witness’s side was on.
175. He heard his father call from upstairs that they had come to the wrong house and that he was a friend of the Prime Minister. As soon as he came down, he asked what they were doing to the witness who was his son. The officers released the witness who got up. They both saw the door to Mehmet’s flat was covered with bullet holes. His father asked what had happened. He switched on the mains switch outside the door. The police officers said that the door would not open. His father told them to wait and offered to open it. His sister-in-law came to the door, which was jammed. The lower lock had been opened by his brother but not the bolt on top. They kicked and pushed it open. They saw Mehmet had been shot. The witness, his father and younger brother Ahmet carried him down to their father’s car and the witness drove them to the health centre, then to Urfa. He noticed from the clock at the hospital at Urfa that they arrived at 02.00 hours. He saw his brother’s body, which was covered with many marks and wounds. The witness made pencil marks on a sketch indicating many marks in the legs and a large mark in the lower left back. He also made marks in the lower torso and genital area. He had removed parts of his brother’s fingers and flesh from the door and wall. There had been fragments stuck to the part below the bolt.
176. He did not see his sister-in-law pass any key through the window. It would not have helped as the door was bolted from the inside. The police did not try to open the door. When the door was opened, two police officers preceded the witness and his father into the apartment. While they were lifting his brother, the place was full of police, none of whom helped. His mother pleaded for help but nobody helped. They slipped on the way down the stairs carrying his brother. To the suggestion that they were offered the police minibus, he stated that this was a lie.
177. His brother did not have any guns and did not like them. Nor was he politically active but minded his own business. He had not seen any people who might have been terrorists talking to or visiting his brother. The police only took a quick look into his own apartment. He was not informed that there were any court proceedings against three police officers. He was not asked to be a witness. Bozova was a peaceful district with no terrorist problems then or now. He had applied for a gun licence in 1996 and 1998 and was given one.
4) Mustafa Gül
178. The witness, the nephew of the applicant, was born in 1948. His house was approximately 150 m from the applicant’s house across a shared garden. At night, Bozova, a small place, was very quiet, without cars or other sounds and it was possible to hear shots from a great distance. From his window, he could see the balconies and lights of his uncle’s house. He would have been able to hear shouts or loud sounds from there. The children could shout across to each other from their houses. He noticed nothing unusual before the incident occurred.
179. At about 22.00 hours, when he was playing chess with his child, in the company of a friend, the door bell rang. Two police officers were let in. He knew both of them and when they said they wished to search the house, he gave them permission. The officers opened all the doors but only looked in briefly. They checked his friend’s ID. The officers would not tell him why the search was necessary but left after apologising for disturbing him. His child told him that there were six or seven other officers outside at the time. He did not go to bed as he was waiting for the sahur meal. At about 00.50 or 01.00 hours, he heard a sound like metal shutters being pulled down. It was the sound of an automatic weapon, a continuous burst for about 20 or 30 seconds. He looked out to see where the sound came from. After a minute or so, he heard his uncle’s voice. His uncle was on his balcony shouting downstairs, saying who he was and that he was a member of the True Path Party. He heard no single shots being fired. After a little hesitation as to whether he heard any more firing after the continuous burst, he stated that there was nothing else after that. He heard no shouts before the firing.
180. The witness immediately put on his shoes and tracksuit and ran towards his uncle’s house. At the intersection near the house, a special team officer with a bushy moustache refused to let him pass. The man put him up against a wall and threatened to shoot him if he moved. He told the officer who he was, that he was related to the applicant. The officer told this to other special team officers standing nearby who told him to keep him where he was. At this time, he heard the applicant shouting for his son Mehmet to open the door of his flat. The applicant then began to kick the door. The door opened. At that moment, he heard a voice over the radio of the officer next to him say that the operation was over. All the police officers present jumped into the road, some from over the garden wall and got into landrovers to drive away. He estimated there were about twenty officers including soldiers and commandos.
181. The witness ran to the house and saw the applicant, Mustafa and Ahmet carrying Mehmet into the family’s car. The applicant slipped in the mud and they dropped Mehmet. The witness got into a car of the nearby coffee shop owner and they went to the health centre. They picked up Filiz Gül and took her also. They had put Mehmet in an ambulance there. The witness saw a police officer standing at the entrance. The witness and his friend followed the ambulance to Urfa. He helped to carry Mehmet out of the ambulance. The hospital staff said that he was dead. The chief of police Mehmet Cebe and the gendarme regiment commander were at the hospital. The former took the applicant into a room, giving him a cigarette and trying to calm him down.
182. Afterwards the witness heard that they had searched five or six houses, including that of Mehmet Karakuş, on the other side of the road from the applicant’s house. The governor, the chief of police and gendarme commander were at the meeting of condolences. The governor talked about religion and destiny and stated that the gendarmes acted for their good. The gendarme commander, a colonel, stated that his men had only ensured security and were not responsible for this butchery. When referred to his statements in which he referred to Mehmet having a gun licence, he said that he meant Mehmet the father. When he acted as a witness to the inspection of the location, he saw no cartridges around. He had also been at the morgue for the examination of the body. He had seen the police chief and the public prosecutor argue, the latter telling the police chief not to interfere with his business. He had seen the body. He described most injuries as being on his hands and from the waist down, about 10-15 wounds that were bleeding but altogether about 50 entry holes which looked like small black moles. No bullets were removed from the body, which was not opened. He did not sign anything at that time.
5) Mustafa Hakkı Ocakoğlu
183. The witness, born in 1962, lived in Bozova opposite the applicant’s house, about 20 metres distant. He worked in the car repair shop under the applicant’s flat. From his house, he could see the staircase leading up to the first floor. On the night of the incident, the street lights were not on. He had been watching a film on the TV between 00.00 and 01.00 hours. As it ended, he was preparing to go to bed when he heard a series of shots, three bursts of automatic gunfire. It lasted only a few seconds. He went into the courtyard putting on the light. Some-one shouted at him to put the light out. He did. He went in and watched from a window. He saw two team jeeps, a military jeep while there was a police minibus under his window. There were lots of policemen and gendarmes around, maybe around 20 to 30. Some were wearing special team uniforms and some wearing poşus. He saw a man wearing a bomber jacket and a poşu on his head come down the stairs with a large weapon in his hand. He was running in a panic. Policemen called to him, “Not that way. Over here;” They put him in a jeep. Then there was an announcement on the radio. Officers were standing below his window and some-one said that the operation was over. The two jeeps then drove off, one after the other.
184. As the vehicles dispersed, he saw the applicant and Mustafa bring Mehmet down. They put him in the applicant’s car and took him away. There were still riot police and gendarmes around at that time.
185. After the shooting, he had heard the applicant shouting downstairs that he was a friend of the Prime Minister and a member of the True Path Party. Also he heard, Mehmet Gül’s wife shouting to the police for help. He recalled that the lights of the deceased’s flat were off when he was watching.
186. At first, he had thought the shooting was at Selçuk’s house directly opposite the stairway at the Gül’s house. One of the elder brothers was a guerrilla though he was not there generally. The witness thought that maybe he had come back. He was not called to give a statement but went along as an eyewitness. They all went in together, not individually. He had expected to be called to court but was not.
6) Ömer Kaya
187. The witness, born in 1956, lived at his bakery which was 35-40 metres from the Gül house - on the other side of the street opposite the staircase leading up to Mustafa Gül’s apartment. That staircase was not closed off until a month or so later.
188. On the night of the incident, he was checking at his bakery at around 23.30 to 24.00 as they were making the sahur bread. Later, when referred to his statement, he confirmed that he always got up between 24.00 hours and 01.00 hours. He recalled that the lights were off outside in the street as he put the lights on in front of the bakery. When he went outside, he saw that there were several people around between the bakery and the Gül’s house, maybe three or four, two on one side, two or three on the other. These people told him to go inside immediately. They were armed, dressed differently and with moustaches so he knew they were special teams. He immediately went inside. One or two minutes afterwards, he heard shots being fired, like shutters being pulled down. It was the sound of automatic weapons. He was not sure but thought this happened two or three times. He heard many voices around the Gül house, some yelling, shouting “Open up”, others weeping and crying. He went over there at once. People said Mehmet Gül had been shot. By the time he got there, the applicant and Mustafa had put him in a car and gone to hospital. They had just left though he did not see it himself. They had brought him down the staircase furthest from the bakery.
189. He went to look upstairs. The local policemen allowed him in as they knew him. The lights were on. He saw that everything was shot full of holes, including the carpet. There were even flesh fragments. He saw pieces on the walls and blood on the bedstead. He did not see any cartridges though he was looking to see what weapons had been used. He asked the police where the cartridges were but they said that they did not know. A crowd gathered outside of local people shouting and crying, “What’s this?” He and many local people waited around until the morning, in a storeroom on the ground floor. The police were there for a few hours but left at or before daybreak. He did not remember a corridor in the flat. When asked by the Government Agent, he could recall that the garden could be easily seen from the first floor.
190. He was not sure whose voice had been saying, “Open the door.” The voices were a jumble. At one point, he said that he had heard the person say to open the door when he was inside the bakery still.
7) Erhan Güder
191. The witness, born in 1952, was district gendarme commander in Bozova in March 1993. Bozova was a district of Urfa. The gendarmes were responsible for the rural areas, the police organisation within municipal boundaries and district town centres. The special operations unit was an organisation with Urfa police headquarters, under the Urfa police chief. They would operate wherever sent by him within the province of Urfa. They could also work jointly with the gendarmes.
1. A source of information had reported to him by phone in the evening that he had seen terrorists in the district centre area, giving their names with the names of several targets - 3-4 houses where they might be. However, he had no clear recollection of the number of houses. The terrorists were said to be armed. As far as he could recall, only the name of the deceased was mentioned, not Mustafa or the applicant. The source was a citizen who had supplied previously accurate information and claimed personally to have seen the terrorists. The witness reported to the Urfa provincial gendarme commander, who would have consulted with the police chief and provincial governor as he considered appropriate. A force arrived from Urfa police headquarters, which would have been sent by the police chief. An operation was carried out with several houses as targets with the local police and units from Urfa, while distant cover was provided by the gendarmes. As the operation was planned at district level, a meeting was held that night in the district centre on 7 March 1993. The district governor, district police officers, the deputy police chief of Urfa and the witness were present. The witness assessed the information as likely to be accurate as it was known that there was a terrorist group roaming around. This was passed on to the deputies of the police chief. At the meeting, details of organisation and deployment were communicated. There was no time to make a written plan. District gendarmes, local police officers and a special operations team for Urfa were to take part. There were about 30 gendarmes using about four landrovers and carrying G3 infantry rifles. He did not recall details of the police involvement or the weapons they used. He had never seen a special operations officer wearing a poşu. Another 30-35 gendarmes carried out a search in the Çatak area where there were not enough police. He could not recall whether the Gül house was to be searched first in the sequence of searches. The Gül search was not a separate operation.
193. Personnel were assigned their tasks and set off. They were looking for particular people as a priority and instructions had been given to exercise care, carrying out searches after providing close and distant security cover. The gendarmes provided the latter, while the police provided their own close cover on approaching the addresses. He did not recall any special instructions with regard to Mehmet Gül. According to general instructions, arms could be used if one’s life was at risk. When asked if firearms might be used for opening a door, he replied that they could not but that force could be used. When asked if such use was unlawful, he said that he himself would not use that method. He was not sure when the special team arrived from Urfa or when they were briefed - it could have been at 23.00 hours. He could not comment on how this related to the report that by 23.00 hours eight houses had already been searched.
194. During the operation, he remained at the district gendarme headquarters with the district governor. He was in radio contact with the teams. Since they were close (about a kilometre) and it was dark, they heard the gunshots when the incident occurred at the Gül house. He radio’ed for information and was told by his men that there had been a confrontation. He went to the scene shortly afterwards - maybe 10 or 15 minutes. He called in commandos [5] from the dam as there was a reported clash. When he arrived, the police said that they had been fired at and that Mehmet Gül had been taken injured to hospital. He went to the balcony but did not examine the scene in any detail. He recalled seeing cartridges. The police unit was in charge of carrying out the investigation there. He was not involved and not informed afterwards of the progress of the investigation. The searches had been discontinued after this incident. He agreed with the Agent that with the noise of the shooting any terrorists would have been alerted.
195. An incident or search report was recorded for each search point and signed by the officers who took part. None of the four named individuals were found during the searches. He was not asked to give a statement by anyone but did talk briefly to Inspector Dost. As a police officer, Dost had no power to interview him. He knew the applicant as a very good man but was not acquainted with the son. As regards the gendarmes, generally each man was issued 100 rounds. When he handed in his weapon, the rounds were counted and a report issued explaining how many shots had been fired and why. No gendarme fired during this operation. He did not make any report on the information or outcome of the operation based on that operation as since the terrorists were not found it was not possible to assess if the information was accurate or not. In any event, there were reports for each search. He made no further or more general report. The same source gave information later which though not important was accurate according to information from other sources.
196. The Atatürk dam near Bozova was a key economic asset and was a target for the PKK. A substantial hoard of weapons had been found near to the dam and a terrorist had been caught who had said that the terrorists had been in the town. Because of the
significance of the area, he, a major, had been appointed to the district command. He did not recall any general closing of the shops after the incident, only the usual condolences amongst relatives.
8) Fahrettin İlgün
197. The witness, born in 1955, was an acting team leader in the special operations branch in Şanlıurfa in March 1993, which role he had fulfilled since 1991. The number in his team varied but was about 12. The purpose of a special operations team was as a special response unit used against actions aimed at the territorial integrity of the State, either by Turkish or foreign terrorists. They reported directly to, and were used at the initiative of, the police chief.
198. He was informed of the operation on the evening of the day it occurred by a superintendent from the anti-terror department. The information given was that there were three or four terrorists driving a car in the district and efforts were being made to find where they might stop. They left Urfa at about 21.00 hours and it took almost an hour to reach Bozova. At the meeting which took place in Bozova when they arrived, he heard that three or four named PKK members had been seen and might contact certain members of the public. The targets were determined and an operation was to be carried out against those houses. He remembered four or five targets and that he was assigned three. Mehmet Gül’s house was the first and the others were to be done afterwards. Gendarmes were to provide their team with external security. There were also three or four district police officers with his team of 12. He did not know how many gendarmes were involved as they had left before them and were already deployed. He did not recall being told that there was any particular risk concerning any of the targets. They treated all targets as being potentially dangerous. Mustafa Gül’s flat was not to be searched, only the deceased’s. When the incident report mentioning Mustafa’s name was drawn to his attention, he said that he did not remember the full details due to fatigue and illness. He did not know if there had been two briefings that night.
1. None of the team would wear civilian clothes as they might be mistaken for terrorists. They had moustaches while beards were incompatible with regulations. No-one wore poşus. They carried semi-automatic M16 guns. No particular instructions were given that night about the use of firearms. When asked about general instructions, he referred to the authority for the police to use arms being contained in the Law concerning the Duties and Powers of the Police. When asked what situations justified the use of arms, he mentioned when a gun was pointed, where a hostage risked harm. He stated that use of arms to open a door was not justified. Nor would tear-gas be used unless all the people inside were known or there was an urgent hostage situation.
1. His team arrived at the house between midnight and 01.00 hours. Six people, including himself, went up the stairs. They would have been positioned as to see the window and door and to take measures against the escape of or shooting by any people indoors. Two officers were positioned to eliminate attack from the stairs near the deceased’s flat, two were at the entrance to the flat (possibly Murat and Recep), on the right and left of the door (Enis and Şener) and he was on Mustafa Gül’s balcony and the sixth near the staircase on Mustafa’s side (possibly Lüfti). He did not recall any lights being on in the street or at the house but there was moonlight. No-one cut the lights to the apartment, though he later stated that he did not fully remember if that happened. At another point, he recalled that there was a faint light from the apartment which came from the television which was on.
201. One of the team knocked loudly and intermittently at the door. Enis told those inside that they were police and ordered them to open the door. There was no bell that they could see. It was dark. This lasted about 10 to 15 minutes. After some time, the door near to the witness opened. The person, later known to be Mustafa Gül, banged the door shut when he saw the police and despite the witness saying “Stop. Police. Don’t move.” He told his colleagues to be alert. A few minutes after that the door of the deceased’s flat opened, a shot was fired and the door immediately shut. He did not see anyone from where he stood. A colleague later said that he noticed the door was half-opened and he saw a dark silhouette. A few seconds later, a team member, Enis, shot two or three times (three or four) through the iron door. Nobody gave, or needed to give, an order to fire. His authority to fire resulted from the fact that someone had fired at them. His purpose was to neutralise the person who might be close to the door. On further questioning, he stated that perhaps it was to open the lock as well and that he did not know precisely. Afterwards, hearing calls for help from inside - a woman talking half-Kurdish, half-Turkish - Lüfti and Recep fired with the purpose of opening the lock mechanism, after having warned her to take care. Prior to this, he had talked to the woman asking her to open the door but the lock was deformed. Nobody asked her to hand a key over. When it was put to him that Recep had said this, he said that he did not see a key. The woman put the lights on at this stage.
202. Mustafa Gül came out a second time at this stage and the witness made him lie down and searched him to see if he had a gun. Family members from upstairs also appeared. When the door did not open, a team member kicked the door to knock it down. As there could be terrorists, several of the team, including himself, went inside to make a rough search and then let in Mustafa and a person later known to be the applicant. There was no bullet mark of the shot fired at them as the place was open.
203. When shown the photograph and the bullet marks on the door, the witness queried that the larger bullet holes seen could have come from their weapons. He insisted that they only shot at the lock. He qualified this by saying that maybe taking into account the possibility of ricochet, they fired from the hip, at 1.5 to 2.5 m without taking aim. Nor was there any shooting through the kitchen window. With the help of his colleagues and the father and siblings, they put the wounded person in an official vehicle to send him to the hospital. The wounded person resisted being taken, holding onto the doors. He had asked on the radio for an ambulance but they took him straight away to avoid delay. He did not see which vehicle was used. The applicant followed in his own car. He then moved his team away from the building to avoid being at risk from snipers. They were within sight of the building. His colleagues sent away the local people who tried to approach. Members of the family were at the house though he did not remember if any neighbours were with them.
204. He participated in the detailed search by the local police in order to provide them with security. He was there when the two guns were found. He recalled that one was found under a mattress. He did not recall if photographs were taken of where they were found nor if there was blood on any of the guns. The cartridges were gathered and taken to the district police. He had 16 years’ experience in the police at that stage. He had not previously been in a situation where they were confronted with an armed terrorist behind a locked door. He appeared to say that his experience had been in rural type situations. He had not undertaken any residential searches in Bozova and Urfa. He thought that if many bullets had hit the person he would have been unable to move to the bedroom - three or four bullets could rip a leg apart and fracture bones.
205. After the shooting, they did not carry out any of their other target searches as the persons would have been warned.
9) Murat Sönmezyurt
206. The witness, born in 1965, indicated on a sketch that during the incident he was positioned on the stairs leading from Mustafa Gül’s apartment to the floor above. He could not see the door of the deceased’s flat. He did not see Mustafa’s door open nor the deceased’s door open. He heard the sound of the door. He saw nothing as he was guarding the top floor. When he gave his statement he repeated what he had heard in conversations. He saw the applicant come down. The applicant had called out to them asking what was going on. When they said there were terrorists inside, he said that he would come down and help and get his son to open the door. He did not fire his weapon on the staircase. He had an M16. He did not see any key. He heard comments like “The door won’t open. The key won’t turn.”
207. Fahrettin İlgün had given them brief information before they went on the operation. He said that it was a point operation - an operation carried out inside a building to put out of action any persons who are taking any sort of action against the State. They were told that there were PKK members in the flat and that it was residential with women and children present.
208. He only participated in the operation at the Gül house. They had been told that there would be other targets. The team left Bozova in the morning. They handed in their weapons. They were not questioned about the weapons and he did not remember if they were questioned about the ammunition used.
10) Enis Ünlü
209. The witness, born in 1967, marked on a sketch that he was positioned on the left of the door to the deceased’s flat. He stated that Şener was at the corner of the door, while Recep was covering him from nearby and Lüfti was covering the witness. He could not see Fahrettin İlğun but knew that Murat was covering the stairs above. They did not receive any instructions to fire. It happened on their initiative. He had previously been on point operations (an operation where it was confirmed that a person attacking the State is located and it is intended to catch them) but this was not such an operation. It was an ordinary house search, one in a number of houses to be searched. They wore military type camouflage battle dress. Some had moustaches. There were no beards. No vests were worn that day as none were available. They were not told that there were women or children inside the Gül house.
210. They issued the warning, “Open up. Police.” for about half an hour. He shouted a lot, about 15 or 20 times, very loudly. It was very dark, with only dim light coming from a TV inside the apartment. He did not see the person who opened the door and fired from inside. He recalled he heard a click but it was not the upper bolt of the door or a key turning, but maybe a catch or bolt on a spring. He was the first to fire, two or three, or three or four times at the lock to open it. It was impulse, single shot fire not automatic fire. His colleagues did too for the same purpose. No-one was hit by the shot. The door looked over an open space over the garden so the bullet did not hit anything. After the shots, they heard a woman’s voice. They warned her to open the door. When it proved impossible, they told her to stand back and his colleagues fired at the lock section to open it. When it still did not open, they opened it by kicking and pushing with their shoulders. Once it had opened, the father from upstairs came down. The brother had made a suspicious move before that. There was no light on outside the flat. It would have been to their disadvantage to switch the lights off themselves. The rule was to ring the bell first but probably there was no bell as they would have rung it.
211. The witness was one of the first to go in to conduct a rough search, to see who was alive or injured or if there are any offenders inside. They saw that a person was injured. He was holding onto the banisters and would not let go. They had to force his fingers open. They took him downstairs in the presence of the father and brother and placed him in the squad car from district police headquarters. Then they waited for the district police and public prosecutor to come for the detailed search.
212. After the incident, they waited for a while at the district police headquarters. They did not hand in their weapons there but when they went back to their headquarters in Urfa, the weapons were placed in lockers, which were not generally locked. They did not have to account for use of ammunition. Their team leader would have drawn up the required account. The number of bullets issued was known and checked when they had monthly weapons practice. However it was not closely checked as they had a heavy workload, with lots of missions and incidents.
213. As regarded search procedures, it was generally desirable for the person to come out, his identity to be checked and for them to enter the house together. As doors opened inward, one would have to go inside to try to seize the person. They were not trained to try to block the door. After all, they did not know what was going on inside. They could have been killed as a shot had been fired. He did not think any bullets were fired through the kitchen door.
214. When shown the photographs of the door, he had no explanation for the holes not around the lock. These other holes were of a wider calibre bullet than the ones they used. When asked whether he had fired as a response to the bullet fired at himself as Fahrettin İlgün said, he stated that he fired only at the lock to open it. If he had intended to fire at the person behind the door, the bullets would have been volleyed all over. He marked on a photograph that he fired immediately around the lock.
11) Lüfti Demirtürkoğlu
215. The witness, born in 1967, marked on a sketch that he was positioned opposite the deceased’s flat on the balcony, covering his colleague Enis. He did not remember how many rounds he fired. He did not know if any record was kept about that. The balcony was covered on the top but open overlooking the garden. The balustrade was about 50 cm high. They all wore regulation camouflage uniform with berets. They did have moustaches. No poşus were worn. At the short briefing, they were told about several target houses, nothing about the people in them. A local officer took them to the house but did not come up with them. They did not know which flat was the deceased’s. They happened to start there as it was the nearest. They would also have gone to the upper floor to look. There was no need to mention that women and children could be there as that was always a possibility.
216. His colleague knocked and shouted loudly for the door to open for a long time - about 15-20 minutes. The neighbours would have been able to hear. He heard no sound of the door being opened. The shot was fired from inside the house. It was very dark. They saw the flame from the barrel. Enis fired first at the lock a few times. Even though it was dark, they were professionals and could hit the lock from one and a half metres. When shown the photographs of the door, he stated that the holes level with the lock where the ones which they fired from M16s. The larger holes were made by a different calibre weapon, such as a 9mm. He did not see anybody else shoot at the door. They stood back about one and a half metres due to the risk of ricochets. He and Recep fired after Enis but he did not recall in which order. Enis would have been in the area of greatest risk from firing from inside. No shots were fired at the kitchen. He marked on a photograph that he fired immediately below and to the side of the lock. He was not given any key by the woman. She must have passed it through the kitchen window because he saw his colleague trying it in the door. On further questioning, he said he did not actually see a key but saw them struggling with something he presumed was a key.
217. There was no risk to the lady from firing at the door. They would have been at risk of being shot if they had been in front of the door trying to kick it. They did not find the guns during the rough search. They were found during the detailed search. He did not personally see them found. They did not collect the cartridges. That was the job of the public prosecutor. He added that if there was a need to avoid delay the district police could do it.
218. When they went back to Şanlıurfa, they handed their guns in to the depot. Perhaps, if it was very late, a colleague might have hurriedly left it in his locker. At the trial, they did not have a lawyer defending them as they did not feel guilty of an offence. Before giving their statements to Inspector Dost, they did not discuss matters together. They used the same language as they were all describing the same incident.
12) Recep Doğan
219. The witness, born in 1965, stated that they were briefed by their team leader in the district on the basis of the information he had received attending the meeting. They were told three or four people had arrived and were likely to be found at particular places. Searches were to be carried out in those houses. Nothing was said about the people who lived in the houses or if they were PKK sympathisers. They were not told the names of the house owners either. They were to search one or two places after the first house. They were told by the local officer who took them to the Gül house that they were to search the flat on the right on the first floor. The others were not to be searched. They received no instructions or authority to open fire. It was for them to take any necessary initiative. He marked on a sketch that Fahrettin İlgün was positioned by the kitchen of Mustafa Gül’s flat, Enis Ünlü on the left of the deceased’s door, Şener Karamurat on the right of the door, while Lüfti was behind Enis covering him, and the witness was behind Şener covering him. Murat was on stairs leading up to the second floor. The area in front of the door was open, with a 50 cm high wall on the edge of the balcony. It was dark. He did not switch the lights off. They were wearing regulation camouflage dress and berets.
220. The door was knocked on more than ten times. They waited for about ten minutes. He did not see Mustafa Gül open the door, only hearing it open and close. When the deceased’s door was opened, it was not wide, only a hand’s width and he only heard the shot and the door being slammed shut. He thought a bomb might be thrown. He fired one or two shots at the lock and moved into a safer position. He was not ordered to fire, even though the court statement noted this. Enis had fired first though, once or twice. Lüfti also fired after this. This was about 10 shots altogether, as they fired one bullet at a time, not on automatic. The applicant arrived after this shooting. When shown the photographs, he stated that he had been trained and would not have fired at the top of the door. He had no idea who made the holes away from the door lock. He marked on a photograph that he fired to the side of the lock. He did not fire at the kitchen. When the applicant arrived, he asked the woman inside to open the door but she could not. They told her to stand aside and they fired at the lock again and again. He could not remember how many times. He saw the key being tried in the lock from the outside. He did not see how it was passed out. It could have been handed through the kitchen, or, as suggested by the Government Agent, brought by the father.
221. He recalled carrying out a rough search. He did not see any guns. It was the team leader who participated in the detailed search with the local police. He was not asked to explain what had happened by the public prosecutor immediately after the incident. He never personally attended his trial in Şanlıurfa. He made a statement at Kayseri courthouse.
13) Şener Karamurat
1. The witness, born in 1965, marked on a sketch that he was positioned to the right of the doorway, towards the staircase. He was behind an iron partition on the landing and could not see the apartments. It was dark. He did not recall any light coming through the window. He recalled that Enis was to the left of the door but not where the others were. The witness was watching up the stairs towards a window in the staircase. He did not fire any shots himself. He handed in his weapon when he returned to Şanlıurfa. He did not know if anyone checked how many bullets were used or if any such records were kept. He did not see any door open, but heard the doors. The one further away would have sounded different. The shot from the door was a revolver, different from the sounds of his colleagues’ guns. The warnings for the door to open had gone on a long time. He looked from time to time to see what was going on. He knew Enis fired at the door first, four or five shots, about 30 seconds after the shot. He did not know who fired afterwards. He did not see his team leader put anyone out of action. The father came downstairs, the door was kicked to get it open (his kicks opened it, finally) and people went inside. No shots were fired after his colleagues had fired to open the lock. They wore regulation dress and berets, no poşus.
223. Enis and the father brought the injured man out. The man was holding the door by the corner. His team leader may have participated in the detailed search. He did not. He did not see any weapons during the rough search. One person would have drawn up the incident report, which would then signed by the 16 people. There would have been no delay. They used M16 weapons at that time but also MP5s on certain operations. There was no rule that only M16s were to be used. An M16 carried 30 bullets in a full round and was about 1 metre long. He did not know where his colleagues fired from but commented that bullets could go wide. They also used to carry revolvers at that time. A person hit by M16 on automatic fire would have broken bones and his flesh would be torn to pieces. He would slump to the ground, unable to move.
14) Mehmet Meral
224. The witness, born in 1948, was a superintendent in the Bozova police. He had been positioned at a nearby junction from where he could see people entering and leaving the target house. He had taken the special team there to show them the place. He knew the applicant and his sons. He was not at the briefing before the operation. He was instructed to take the team from outside the area to the Gül house and to indicate Mehmet Gül’s house. He was on good terms with the family so it had seemed strange to him. He used to take tea and they got their petrol there. It was not for him however to give his opinion that they could not be terrorists. His superiors had received intelligence and he did not think his chief could be intending any harm. It was the first time though that he had heard there were allegations and he was amazed.
225. It was about a few minutes after one gunshot that automatic gunfire was heard. Ten to fifteen minutes after the injured person was transferred by the officers to the hospital, he went into the flat. This was after his Chief Superintendent Güner and the special team leader had come downstairs and they were instructed to carry out a detailed search. He thought that the team leader carried out the indoor search in conjunction with their personnel. Not everyone who signed the incident report would necessarily have been in the house but they would have been in the area, outside or inside. He could not remember where he signed the report. He saw the weapons being found. On further questioning, he clarified he could not have been present in two places. He did see Mehmet Telçi take the 14 rounder from the corner where the floor mattress was. Others with Güner found the 10 rounder in another room. It was taken down from the bedding cupboard. He saw the empty cartridge which was found when they entered the apartment 1 to 1.5 metres inside the front door. No photographs were taken. They did not have the technical equipment. He could not remember if the gun had bloodstains on and when asked, did not describe any precautions being taken in handling the gun.
226. He stated that it was impossible that two officers would enter a house, shake hands, search and leave. It would have been necessary for security precautions to be taken. He recalled five houses at least being searched and that there was only one which was not. At another point, he agreed that they had intended to search two further houses after the Gül house and that earlier in the evening he had carried out eight searches. He learned at a later stage that they were to be involved in the Gül search when he went to the district where the special team were. He heard his police chief give the order for the bus to be brought over to take away the injured person. At the health centre, he was transferred by ambulance to the hospital. When told that the applicant alleged that no police assisted and that the guns were planted, he said he must be speaking out of sorrow, grief or anger. There were too many people around for guns to be planted. He knew the family, who were in great distress and he was trying to calm them down at the scene.
15) Mehmet Toprak
227. The witness, born in 1955, stated that when he arrived at the scene from another location officers were already searching the flat. One weapon had already been found. He saw the second weapon, the French ten-rounder, found inside the bedding cupboard, as he was searching with Şahin and Mehmet Telçi. It was under linen. Where his statement to Dost mentioned a mattress, he said that it was something smaller, maybe a pillow. There were no stains on it. He saw the cartridge which was found on the floor but was unclear as to whether he saw it on the ground or later. He saw no other cartridges. He did not know Mehmet Gül well though he bought petrol from him. He knew the applicant who used to come and talk to his commanding officers.
1. Earlier that night, two groups of houses were searched. He had searched one group. He agreed eight houses were searched, including a house in Golbaşi, just opposite the applicant’s house. He was not sure if it was Mustafa Hakkı Ocakoğlu’s. Before the searches were over, he was called back to the centre where there was a crowd, including teams from the province. After waiting, he went off with the gendarme captain towards Çatak. After 7-8 km, the radio announced a conflict and they returned to the scene. The lights were on in the street. He signed the incident report at the station when they returned from the Gül house. He seemed to describe all the persons from the scene signing at this point when it was drawn up at the police station.
16) Şahin Yakut
229. The witness, born in 1959, recalled seeing empty cartridges both inside and outside the flat, but not many outside. At a later point, he said he saw no cartridges outside, and then that he saw one inside and two outside which were later handed over to the public prosecutor. He saw the Browning next to the pillow on the deceased’s bed with his own eyes. Another officer found it but he was there as he did so. There was a bloodstain on it, on the metal part of the gun, which he indicated on a photograph as halfway down the barrel. He could not explain why his colleague Mehmet Toprak said that the Browning had been found before they arrived. His superiors searching another room found the other gun. He saw the gun afterwards. It had no bloodstains. He guessed they were in the flat for about half an hour.
230. When asked to explain how it was established that the guns belonged to the deceased as stated in the incident report, he said that it was based on the fact they were found in the deceased’s flat. When asked whether it was not usual to ask a member of the household to sign a search record, he said that he did not see anyone being asked to sign. He did not see any family members though the head of the clerical department of the district governor’s office was found. In any event, it was the scene of an incident and it was not necessary for a person to sign.
17) Mehmet Telçi
231. The witness, born in 1956, had found one of the guns in the flat, the Browning beside the mattress in the room where the wounded person had been. The mattress was bloodstained. He could not now remember if the gun was bloodstained. He did not know who found the gun in the other room. When told that Mehmet Toprak had said that the witness had been present when the other gun had been found, he said that he probably went into the room afterwards to join Toprak and Yakut. He recalled seeing about 10 cartridges outside the flat and one inside. The police also used that make of 14 rounder Browning, which was standard police issue. The purpose of the search was to find incriminating evidence as there had been a clash. It never crossed his mind that a criminal offence could have been committed in respect of the injured man.
232. The witness had been involved in searches earlier in the evening - 7 or 8. He did not know if other houses were searched by other groups. He might have been involved in searching Mustafa Ocakoğlu’s house with Mehmet Toprak. He did not recall hearing the Gül house being mentioned in the information given out orally to them but thought that after the initial searches new information might have come to his superiors. He had known the family though not well. He was not astonished that they might be involved in PKK activities. Such things happened. He knew that a brother of a man called Selçuk was a member of the PKK and on the run. Selçuk’s house, across from the Gül house, was searched that night. When referred to his statement which said that no information had been given about Mehmet and Mustafa Gül when compared with the incident report’s reference to intelligence, he said that his superiors might have obtained information after the initial searches had been carried out.
233. He saw the injured man being taken in the police minibus It was probably Ahmet Doğan, the driver, who drove to the health centre. While generally a search report had to be drawn up for each house, they could not do that for each of 7-8 houses as it was urgent.
18) Ömer Avcı
234. The witness, born in 1956, agreed with the statement previously made. He was inside the flat but did not take the pistol. He saw his colleague pick it up from the floor. As far as he could recall, it was on the floor beside the bed in the room on the right. He did not remember who it was. The colleague was not wearing gloves. He thought there was blood on the gun. He was standing in the door of the room, when his colleagues found the other gun in the cupboard. He seemed to agree that both guns were found in the same room. He saw a colleague pick up an empty cartridge inside the house. He saw Fatih Güner collecting cartridges outside. He stayed about 10-15 minutes. From the time they secured the area to the time they left was about one or one and a half hours.
235. As regarded the operation, he was with Superintendent Meral. He usually worked in the office or drove the police team’s car. He was not involved in other searches. He was told, probably by the police chief, that a woman and several terrorists were definitely hiding in Mehmet Gül’s house and that they were going there. When they got into the car, they said “First, let’s secure the area. The other units will come too.” He was in position on the road to the right of the house, 10 to 15 metres away. He had not been at the briefing with the higher ranking officers.
236. First, he heard a single shot from a pistol. After some time, he had heard about five or ten shots, he did not know exactly. This was louder, from a machine gun, in three phases. He hid behind a wall thinking a clash had started. More time passed. He heard loud sounds or voices. A woman was screaming in Turkish and Kurdish. There were other police officers there, gendarmes, police officers dressed in civilian clothes (Mehmet Toprak, Şahin Yakut, Mehmet ), intelligence personnel from the province. There were also anti-terror police in plain clothes. Maybe 20 to 25 were at the house. He saw the injured person brought down on somebody’s back. He was thrown in the back of the minibus and taken away immediately. He knew the applicant but knew the son only by sight. When asked if he heard any other noises that night, he recalled hearing a police officer shout, “Open the door.” Police.” before the gunshot, two or three times. The street lights were on or perhaps it was headlights or moonlight.
19) Kamil Çetinkaya
237. The witness, public prosecutor no. 28300, was public prosecutor in Bozova in 1993. There was a second more junior prosecutor in the office, Fikret Yılmaz. The witness was at the dam on the night of the incident. When he returned in the morning, his colleague who had been at the scene, told him about the incident. Both went to the house and walked around the scene. They had photographs taken of the front door, corridor and rooms. They asked people to tell them what happened, in particular, the applicant, and also the deceased’s wife, brother and two other witnesses. The guns were photographed later at the courthouse, as they were only handed over by the police later. He would have noted it if there were blood stains on the guns. When shown the two sets of photographs, the only difference was the photograph of the bullets which he saw now for the first time. The lock on the door had been broken and replaced. They asked for it to be kept. They did not ask for any expert to assist them in analysing the marks on the door. They could not interview any police officers about the incident due to the law on civil servants - it was the responsibility of the provincial administrative council. He never met Inspector Dost later on.
238. He thought that the negatives for the film would have been given to them and kept in the office. Then he recalled that they were probably sent to the investigator. He had never heard anything about gold jewellery being taken. Even if it was returned, it should be recorded in the list of seizures. It did not occur to them that photographs should be taken outside the house. The landing outside the flat was open. They did examine the landing but not the garden below - that was not feasible. He was not annoyed that the cartridges had been removed as often crowds came to incident scenes. He was not particularly concerned at the discrepancy between the bullet holes and numbers of cartridges found as he was not a ballistics expert and had not counted the holes himself. When it was not possible to reach a public prosecutor, the police had the power to remove evidence, acting on behalf of the prosecutor. As it was an incident with terrorism, it was not necessary for a family member to be present. The matter was in his view sufficiently investigated. There was nothing deliberately overlooked.
1. They did not take fingerprints as when he came back in the morning the body had already been buried and they did not want to disturb the family. Also they took no fingerprints in the flat as too many people had been going in and out. The time was too short for them to do ballistics tests on the guns as the nearest place was Diyarbakır. It is possible that since they had no jurisdiction to investigate the police, they concentrated on the crime the deceased had committed. He was not present at the autopsy. He took over the investigation as the more experienced. He issued the decisions of lack of jurisdiction and not to prosecute. He later thought that he had misdescribed the offence legally ie. it was crime of negligence or carelessness (Art. 455) rather than death resulting from the use of force (Art. 245 with Art. 452). His duty however was to establish the visible evidence while it was fresh. They took the statements at the house probably. He remembered that when Ömer Kaya said that he had heard the police warning shouts, the family members became angry, shouting, “How could you have heard that?” and closing in on him. They intervened, fearing a fight. If he had not put it in the statement, it was because of the tension and maybe because Kaya changed what he said.
240. During the investigation, they were informed that four terrorists, three men and one girl, had crossed into Turkey at Suruç and might have been staying at certain houses in Bozova and searches were carried out to find them. His colleague told him this and later he had phoned the district gendarmerie and been told the same. When asked on what basis he stated in the decision that the police gave a warning shout first in light of the witness’s evidence, he said that they could not possibly have done so.
20) Fikret Yılmaz
1. The witness, born in 1965, had been in Bozova as public prosecutor for 20 days when the incident occurred. On 7 March 1993, he had been told verbally, maybe around 19.00 or 20.00 hours by a superintendent, that PKK militants were hiding in the town and that houses would be searched. Afterwards, he was informed at about 03.00 or 3.30 hours by Fatih Güner, who came to his quarters next to the police headquarters building and who asked him to come as an incident had occurred. He got dressed, went to the headquarters where the special operations team were. He went to the office of the police chief (Cuam Arslanoğlu). They, and the superintendents Mehmet and Fatih, told him that the deceased had disregarded the police warning and fired at them and that the police had fired to open the door. He waited until light at about 07.00 hours and went to the scene. He took the doctor to do the autopsy and court clerk. When they arrived there was a huge crowd. The body was somewhere on the ground floor. He was told that the autopsy had been done at Şanlıurfa at the request of the relatives. He looked at the body, remembering scratches on the legs and bullet wounds on the right side of the abdomen and right fingers. He made no report as this had been done. It was the prosecutor who drew up the autopsy report who would give the permission to bury or remove the body. Perhaps the photographer stayed on in the flat after he had left - he might have known the family. He saw the guns later but did not recall if they were bloodstained. He did not give permission for them to be removed but this was not possible because of the way the incident developed.
242. In the flat, they did not find a single cartridge. The cartridges must have flown all over the place in the dark. The garden was searched in the dark - maybe they were picked up by passing people. He established the number of bullet holes in the door. He took no step to obtain a technical examination of the door as they had been told that the security forces had fired the bullets to open the door. He did not know if the holes were new or old and the family reacted very strongly when he said that some looked old.
243. As regarded the window, he thought that a bullet would have pierced it and as the glass was broken perhaps it had been hit by an object. There were standing instructions to the police to preserve the scene of violent incidents - the police were continually reminded by the public prosecutors - but in this incident it was difficult for the police to stay and preserve the scene. It was possible that the bullet fired from the flat went into empty space. He remembered that he could see the garden from the door of the flat but could not recall if it was open immediately in front of the door. He did not recall looking for any bullet marks outside. After the decision of lack of jurisdiction no further work was done on the case. He had no recollection of meeting Inspector Dost. He would have reached the same decision as his colleague as to lack of jurisdiction but would have qualified the offence as one of carelessness, negligence or inexperience under Art. 455.
244. While he seemed to agree that it was relevant to open a body to find bullets if the perpetrators were not known, it was not necessary for a classic autopsy as they knew who the perpetrators were. The relatives made no claim to him that the guns had been planted.
21) Ali Rıza Uytun
245. The witness, born in 1946, public prosecutor no. 23163, was working in Şanlıurfa in 1993. He participated in the examination of the body, which took place at 02.15. Also at the hospital were the chief public prosecutor, Mehmet Cebe, the provincial police chief and the provincial gendarme commander as well as a few relatives. The incident had occurred at around 01.00 hours. There was no argument at the hospital with the police trying to interfere in the autopsy. He had asked the gendarmes who had told him that the police knew about it as they had organised it and he had asked the police chief to give more details. This was wrongly interpreted as an argument. He did not consider that firing a gun would leave traces on the hand. He did not conduct any investigation of the clothes as the body was already naked when he arrived.
246. Autopsies were the exception and only took place when the cause of death was unknown. In this case, it was known - death was caused by a single gunshot injury. There was no need to extract bullets as the report showed the bullet had exited. It was obvious from the injuries that there was no bullet in the body. There were no other bullet hole entries, only scratches and erosions on the feet, and the second and third digits of the right hand. There were grazes only, and fractures on the fingers. He agreed that it was not possible to tell from the report how many grazes there were but this was not relevant as they had not contributed to the cause of death. On further questioning, he pointed out that he had 21 years’ experience and had assisted at about 1,000 autopsies. He also had experience in the army, which he left as a major. There was no evidence of any other bullets or fragments of bullets in the body. There was no need to take photographs of the body. The fingers were not missing, only broken with skin sliced off.
247. After the examination, the burial certificate was drawn up and given to the relative Mustafa Gül. On his request, he was also given a copy of the report. He sent the original to the Bozova prosecution. On being shown the photographs of the door, he stated that there was no indication that different guns had been used - all the holes were small apart from three in the middle. During the shooting, more than one bullet could have passed through one hole. When describing what he had been told by the police officer at the hospital, he stated that a man had come to the door with a gun in his hand and panicked closing the door. When asked if he had been told that the man had fired the gun, he could not recall.
22) Ömer Koçaslan
1. The witness, born in 1951, public prosecutor no. 21920, was working in Şanlıurfa in 1995-1996. He was acting public prosecutor in the case against the three police officers at the end when the decision was taken. He gave his opinion to the court to acquit as according to the expert’s report they were innocent. In technical matters they had to seek an expert opinion and they were bound by it as it was a technical matter. The expert report indicated that the defendants had no choice but to act in this way. He had been involved in a case where the experts’ report was not accepted as it was unsatisfactory and they sent for a second report.
23) Güven Sağban
249. The witness, born in 1969, had attended Military College from 1986 to 1990, spent a year at infantry school in 1990, received internal security training at Bilecik for three months and the gendarmerie school for 9 months, plus further courses of commando training at Foça and Eğridir. His training phase ended in 1992 and since then he worked in various internal security units. In July 1995, he was appointed Bozova district gendarme commander. He was currently adjutant of the chief of staff, gendarmerie general command headquarters. He knew the applicant as a friend afterwards.
250. The Gül case was the first time he was requested to act as an expert. He had the court case-file, with testimonies and photographs. He based his opinion solely on the file. He considered that he could assess the direction of the bullets from the photographs. It was not necessary to visit the place as it was all clearly comprehensible from the police officers’ statements. He did not think it incredible that a man with a wounded hand could carry a gun 4-5 metres. In a clash, he had seen terrorists and soldiers carry weapons for longer distances with more serious wounds. At such moments, men did not want to drop their guns. He did not know what exact training special operations officers in the police received. He knew when drafting his report that there were 16 civilians in the apartment block on the date of the incident. He considered it very carefully. The photos revealed however that the bullet marks were concentrated around the lock which showed that the team valued life. When asked to explain the other bullet holes elsewhere, he said that when he counted the bullet holes there was a ration of 100-1 on target. It was normal for some bullets not to hit the target when one fired an automatic weapon - there were unintended deviations. He considered it significant that only one person was killed out of the 16.
251. As regarded the marks in the kitchen, he had taken the view that the glass was broken by the officers to call into the house, and that the marks inside were not caused by bullets from outside as the curtains had been drawn shut and there were no burn marks or holes visible on the photograph. A bullet would shatter the glass. He knew that it was alleged that the deceased had not fired a gun. He had had to consider this matter as otherwise the officers would have been guilty. He found the relatives’ statements about the gun hesitant.
24) Güner Kalkendelen
252. The witness, born in 1942, was a police chief inspector at the police supervisory board, national police headquarters in Ankara. He had been there for 7 years, and for 5 years had been teaching professional courses at the Police Academy. He prepared his report on the Gül case on the basis of the court file, without any on-site inspection. He was unable to express any opinion on the cartridges as he was not a ballistics or weapons expert. They worked on the file for about a week or 10 days. They had been asked to assess the degree of culpability. Their report was not binding on the judge.
253. When they referred to the stress caused by the situation in the south-east, it was referring to the fact that the officers had encountered those incidents before and they might, even partially, have been in such a frame of mind. They were professionals and it was possible that they did not get excited or stressed. The operation would have been the same and the results the same wherever it had taken place in Turkey. In his opinion, the firing was in response to the single shot and was in self-defence with the intention to injure, not to kill. Generally, officers fired on command of their superior but could do so on their own initiative if the conditions required them to protect their own lives. When asked where he derived the information that four males and one woman terrorist were said to be inside the flat, he said that it was from the case-file, and must have been in a statement.
25) Teyfik Ziyaeddin Akbulut
1. The witness, born in 1949, was provincial governor of Şanlıurfa at the relevant time. It was not in the State of Emergency region in 1993. It was near the Atatürk dam which was a target for the PKK. He had met the applicant once or twice on visits to the district. The applicant had welcomed him as district chairman of the True Path Party.
255. His involvement was limited to the fact that he was asked to provide a force and gave instructions for Mehmet Cebe to provide a force. When shown the document dated 6 January 1993 (see para. 62), he recalled that he had been asked to send special operations branch to Bozova. He was asked by the gendarmerie company commander who also had the title of deputy district governor that day. It could have been Erhan Güder. Because the major told him that it was very serious and that the five terrorists in Bozova had to be caught that night, he felt it necessary to send the special operations team. He was not at any meeting with Güder, Meral or Cebe. He was probably told at about 19.00 hours or half an hour later as he was at home and it was dark. He was not told the detail of how many searches were to be carried out. Güder told him on the phone that there were very reliable eye-witness accounts and that the search would be large-scale, maybe even the whole town. He requested extra security forces. It was Cebe who decided who and how many police officers to send when the witness said send a special operations team. He was not told if any houses were already searched at that time. He considered that the security forces might have searched some unimportant ones themselves and searched the important ones with the team. That was an ordinary scenario.
256. The teams had been used by him maybe 50 times in the centre of Urfa. They were not just used in rural areas. He denied that his office issued any press release after the incident. If he had, a copy would still exist. He did not make any statement to the “Cumhuriyet” about the operation - that newspaper was known for its biased reporting. He did go to see the applicant to offer his condolences, taking with him the gendarmerie regiment commander and the chief of police to prevent any misunderstanding. He took public relations seriously. He had said that he was sorry that Mehmet Gül had lost his life, that it was an unfortunate incident and God’s will, that if there had been no resistance and the like there would not have been this result, that there might be those who sought to use the incident but that they ought not to allow that to happen. The applicant had thanked him and taken him downstairs to show him the place. He spoke with the applicant on about 10 occasions later and their relationship became closer. The applicant was somewhat reproachful, saying that the officers should have woken him up first. The personal opinion of the witness was that there was no malicious intent and people acted in the process of carrying out their normal duties.
Witnesses who did not appear
257. The Commission's Delegates had also called as witnesses police officers Fatih Güner, Ziya Coşkun, deputy Governor of Şanlıurfa at the relevant time, Dr Nihan Gokkan, Inspector Salih Dost and Adem Koyuncu, public prosecutor.
258. The Commission was informed by the Government that Fatih Güner and Ziya Coşkun had died. Dr Gokkan sent a letter stating that he could not appear on grounds of the serious illness of his mother. Medical certificates were received from Salih Dost and the prosecutor Adem Koyuncu.
C.Relevant domestic law and practice
259. The Commission has referred to submissions made by the parties in this and previous cases and to the statements of domestic law and practice recited by the Court (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, pp. 1169-1170, paras. 56-62 and Tekin v. Turkey judgment of 9 June 1998, pp. 1512-1513, paras. 25-30, Reports of Judgments and Decisions 1998).
1. State of Emergency
260. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security forces and members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
261. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.
262. The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.”
2. Criminal law and procedure
263. The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), inadvertent and negligent homicide (Article 455), intentional homicide (Article 448) and murder (Article 450). Articles 49 and 50 of the Criminal Code address the commission of offences carried out inter alia in excess of a duty.
264. According to Article 448 any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.
265. According to Article 49 of the Code, a person shall not be punished for committing an act which was carried out in pursuance of a law or on the orders of a competent authority or where the person was obliged to commit the act in immediate necessity to repel an unjustified assault against his own or another’s person or chastity or in order to save his life or the life of another from an immediate and grave personal danger for which he was not responsible and the commission of the act was the only way in which the danger could be avoided. Article 50 qualifies the provisions of Article 49 in stipulating that where the person in committing the act exceeds the limits of a duty prescribed by law or by the competent authority or exceeds the exigencies of the situation, that person shall be sentenced to a minimum term of imprisonment of eight years if the punishment in respect of the act is the death penalty, and to a minimum term of imprisonment of between six and fifteen years if the punishment in respect of the act is life imprisonment.
266. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
3. Prosecution for terrorist offences and offences allegedly committed by members of the security forces
267. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.
268. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Decree No. 285, Article 4 para. 1, provides that all security forces under the command of the Regional Governor (see para. 261 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecutor of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State.
4. Constitutional provisions on administrative liability
269. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the Administration are subject to judicial review ...The Administration shall be liable for damage caused by its own acts and measures.”
270. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
271. Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.
5. Civil law provisions
272. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
273. The Commission has declared admissible the applicant's complaints:
- that his son was shot and killed by police officers who fired through the door of his home;
- that there was no effective investigation, access to court, redress or remedy provided in respect of these matters.
B.Points at issue
274. The points at issue in the present case are as follows:
- whether there has been a violation of Article 2 of the Convention;
- whether there has been a violation of Article 6 and/or 13 of the Convention.
C.Evaluation of the evidence
275. Before dealing with the applicant's allegations on these aspects, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to former Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:
i. The Commission has based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proceedings; in the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of “beyond reasonable doubt” as adopted by the Court. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).
ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters: it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates.
iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while 30 witnesses were summoned to appear, five did not give evidence before the Commission's Delegates. Two of these witnesses had died since the events occurred and those who did give evidence faced the difficulty of remembering what they had seen and heard almost six years ago. The Commission has therefore been faced with the problematic task of determining events in the absence of potentially significant evidence and after a considerable lapse of time. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.
1. General background
276. Bozova is a small town, of an estimated population of 15-16,000 people, situated about 36 km from Şanlıurfa in the south-east region of Turkey, and at the relevant time was not included in the state of emergency area. It was a short distance from the Atatürk dam, which, as a major economic asset, was perceived as a possible target for the PKK. A company of commandos was stationed there. Nonetheless there is no indication that Bozova was a place in which PKK terrorist activity was particularly prevalent. While it was believed that the member of one family, the Selçuk’s, had joined the PKK and reference was made to a number of incidents in the adjacent area, the town appears to have presented relatively few problems from a security perspective.
277. The applicant was a well-known individual in Bozova. He was a businessman, who ran, inter alia, a petrol station frequented by members of the security forces and was also a figure in local politics, being an official in the True Path party. From the evidence before the Commission, it appears that he was a respected citizen, with no suspicion of illicit activities against him.
278. The younger Mehmet Gül was less well-known and tended to be recognised in the capacity of being the applicant’s son. He managed the petrol station for the applicant. There is no evidence whatsoever that prior to the events of 7-8 March 1993 he was suspected in any way of PKK involvement.
2. The planning of the operation at Bozova on 7-8 March 1993
1. The evidence concerning the planning of the operation derives largely from the oral evidence of the district gendarme commander Erhan Güder, Fahrettin İlgün the acting team leader of the special operations unit and Ziyaeddin Akbulut, the provincial governor. There are also a number of documents issued after the operation which refer to pre-operation aspects.
1. On the basis of this material, it appears that the operation was sparked off by information received in the evening of 7 March 1993 on the telephone by Major Güder from a person who had previously given him information. This information named three to four terrorists and indicated that they could be found at named addresses. Major Güder passed on this information to his hierarchical superior in Şanlıurfa, the provincial gendarme commander, whom he expected would have consulted with the Şanlıurfa police chief and provincial governor. Overall responsibility for security matters lay with the provincial governor Ziyaeddin Akbulut who recalled being telephoned at home at about 19.00 to 19.30 hours about the information received. He recalled however that it was Güder who spoke to him, giving him the details and referring to the need to carry out searches. He did not take, on his account, any direct initiative in the planning of the action to be taken on the basis of the information but authorised the steps proposed by Güder, namely the conducting of searches, if necessary on a very wide-scale in Bozova to locate the terrorists and the allocation of additional personnel from Şanlıurfa to assist in this process. According to him, the identity and number of persons concerned were left to the discretion of the police chief, Mehmet Cebe. While Güder in his oral evidence downplayed his role in events and gave the impression that the initiative lay with Şanlıurfa and was largely implemented by the police authorities, it appears that the information originated with him, as did the proposals for searches to take place and that the pre-operation planning took place at the district gendarme station.
1. A meeting was held that night at the district gendarme headquarters attended by the district governor (Mustafa Yaman), Erhan Güder (district gendarme commander), the deputy police chief (Fatih Güner) and possibly other district officers. Not all the district officers involved in the operation were present (eg. superintendent Mehmet Meral and Ömer Avcı). The timing of this meeting is unclear. There is a reference to evaluating intelligence reports at about 20.30 hours (see the report 11 March 1993 by the Bozova Security Directorate, para. 78). Güder did not refer to any special team or Urfa officer attending this meeting. Fahrettin İlgün, the special operations leader, however recalled attending a meeting on his arrival but his officers recalled that they were briefed only by him (Murat Sönmezyurt, Recep Doğan).
282. A special operations team of twelve officers was sent by the chief of police Mehmet Cebe from Urfa - Cahıt İnal, Hasan Söylemez, Sadık Ergüler, Bûlent Torun, Nurettin Yıldız, Murat Avan, Fahrettin İlgün, Murat Sönmezyurt, Şener Karamurat, Enis Ünlü, Lüfti Demirtürkoğlu, Recep Doğan. According to the oral testimony of the team leader Fahrettin İlğun, they left Urfa at around 21.00 hours, arriving in Bozova at around 22.00 hours. Erhan Güder recalled the team arriving at 23.00 hours. İlğun’s written statement of 9 May 1993 placed their arrival at 22.30 hours. Other members of the team gave their arrival time as 23.00 hours (Cahıt İnal’s statement para. 117, Sadık Ergüler’s statement para. 119), Since it appears that they went directly to carry out a search at the Gül house by midnight - 01.00 hours, it is probable that the later timing is more accurate. It does not appear therefore that Fahrettin İlgün could have attended the general meeting if it took place before 22.30 hours. There may possibly have been two meetings - one early in the evening attended only by district officers and one later, on the arrival of the special team, for the benefit of Fahrettin İlgün. The evidence on this point is too equivocal for any firm findings to be made.
283. As to what occurred at the meeting or meetings and the information which was passed on, there is no written contemporaneous document provided which either records the exact details of the information on which the operation was based or concerning the decisions taken as to the steps to be taken in response. According to Erhan Güder, due to the urgency, there was no time to draw up a written outline or attribution of tasks, which instead was done orally. The documents drawn up after the incident and the recollections of witnesses as to what occurred varies. There is general agreement that the report was of three or four terrorists being seen in the town - the house search report of 7 March 1993 indeed gives the names and code names of four individuals. There is less agreement as to where it was alleged that the terrorists were to be found.
1. In the house search report of 7 March 1993, the address of Mustafa Akbaş is specifically given and the names of eight persons alleged to be assisting them; the report of 11 March 1993 from Fatih Güner refers to conclusions that PKK terrorists might be sheltering in the district, naming the location of the Gül house; in his statement of 8 May 1993, Fatih Güner stated that there was strong intelligence that members of the PKK were going to hide at 13-14 residential addresses; Mehmet Meral in his statement of the same day referred to 13-14 intended targets where the PKK were hiding in residential locations. In his oral evidence, Erhan Güder mentioned that 3 or 4 houses were given as targets, though saying that he had no clear recollection; when Fahrettin İlgün arrived, he recalled being told about 4-5 targets; Ziyaeddin Akbulut recalled that Erhan Güder told him that a wide-scale search, possibly of the whole town, would be required.
1. The house search report of 7 March 1993 specifically named Mehmet Gül and Mustafa Gül as among those suspected of involvement with the PKK terrorists, as did the incident report of 8 March 1993 signed by all the officers involved in the operation and search and Fatih Güner’s report of 11 March 1993. The oral evidence of the officers involved however varied: some recalled that it was only Mehmet Gül’s flat that was to be searched (Fahrettin İlgün, Recep Doğan), while another recalled that all the flats were to be searched and that it was only because Mehmet Gül’s flat was nearest that it was searched first (Lüfti Demirtürkoğlu). Mehmet Meral recalled that his task was to point out only Mehmet Gül’s flat. As events turned out, no steps were apparently taken by the special operations team to search Mustafa Gül’s flat for terrorists though Mustafa Gül recalled that police officers did enter his flat for a cursory look round. The applicant’s flat was not searched at all. However, there is also some evidence which seems to indicate that Mehmet Gül’s name was not initially contained in the information passed on to the police officers in the operation. Mehmet Telçi who participated in other earlier house searches did not recall that Mehmet Gül’s name had been mentioned (see his statement of 11 August 1993 and his oral evidence). Two documents (Fatih Güner’s report of 11 March 1993 and the house search report) also appear to refer to the information about the PKK terrorists being received separately from the naming of the house of Mehmet Gül as a target.
286. The Commission is left with serious doubts as to whether Mehmet Gül was specifically named as involved with the PKK by the informer referred to by Erhan Güder. Having regard to the number of houses which were to be searched, it appears highly probable that the places targeted were chosen having regard to other criteria. These have not been elucidated or acknowledged in any document or by any witness.
1. The evidence as to what information was given to the special team officers varies considerably. Recep Doğan said that he was told that it was highly likely that armed PKK terrorists were being sheltered there; Murat Sönmezyurt recalled that they had been told the PKK were definitely there and that it was a point operation - his written statement of 9 May 1993 also stated this. Fahrettin İlgün was more measured stating that all the targets could possibly contain a suspect and all were potentially dangerous. This contrasts with his written statement of 9 May 1993 where he said that he was informed that there was a strong possibility that PKK members would be there. Enis Ünlü also stated that it was an ordinary house search and not a point operation with a known terrorist present - his statement of 9 May 1993 however referred to point searches at locations where PKK members were expected to be and that they had been told that there was a strong possibility of terrorists being present. Recep Doğan’s statement of 9 May 1993 also referred to a strong possibility of terrorists being there and used the term “point operation.” Şener Karamurat’s statement of 10 May 1993 used the former terms. The written statements of the other special team officers refer variously to “strong intelligence” or the “strong possibility” of terrorists being present (Cahıt İnal, Sadık Ergüler, Hasan Söylemez, Bülent Torun). Ömer Avcı, a police officer who accompanied the team, recalled that he had been told that terrorists would definitely be there.
288. Finally, according to Murat Sönmezyurt, they had been warned generally that it was a residential block with women and children present; Enis Ünlü said that they had not been told; Lüfti Demirtürkoğlu considered that it went without saying.
289. The Commission’s Delegates had considerable doubts over the credibility of the oral evidence of the special team officers, in particular as regards the differing versions given by them on many significant points. The Commission finds, having regard to the oral and written statements, that the weight of the evidence establishes that the special team officers were given a strong indication that PKK terrorists would be likely to present at Mehmet Gül’s house. The factual basis for this assessment being passed on to the officers is not apparent - there being no written or oral evidence to indicate that any specific information existed as to the presence of terrorists at this address as opposed to the possibility that they might be at any one of a large number of addresses. It is also evident that no instructions were given to the special team officers with respect to the use of their weapons, nor any discussion of how they were to gain entry to the flats if there was resistance. The briefing at which they were given information by their team leader was short and a minimum of information was given. No details concerning the other people who lived in the Gül apartment block and might be expected to be found there were passed on.[6]
290. The applicant argues that his son was singled out for a point operation, which was conducted with the intention of using lethal force. There is however no direct evidence of any pre-existing plan which identified Mehmet Gül as a particular target more than any other of the houses to be searched. The applicant invites inferences to be drawn, inter alia, from the use of the trained counter-terrorist special team on Mehmet Gül’s house and the way in which the special team approached their task. However, the security force witnesses were unanimous in rejecting the assertion that Mehmet Gül’s home was to be treated differently from other target locations. The special team officers also indicated that they were intended to search other targets after the Gül house, the explanation for the failure to do so being given that the noise and confusion caused by the shooting incident would have given any PKK terrorists the opportunity to flee and further searches would have been useless. The Commission is not persuaded that any particular inference can be drawn from the use of the special team. Though Ziyaeddin Akbulut commented that in an ordinary scenario the special forces might be used to search the important locations, this was a remark made in general terms without any claimed knowledge of the actual planning and was later qualified by the assertion that all the houses in the operation were under equal suspicion. It is as consistent with events that special team officers were allocated to participate for the general purpose of giving assistance to local officers in a large-scale operation in which PKK terrorists were the object of the search throughout.
291. The Commission observes that the lack of contemporaneous documentary evidence concerning the operation planning hampers its assessment considerably. There is some indication that the decision to search Mehmet Gül’s house was reached later on in the evening and may have only been made at a later meeting attended by the special operation team leader. On the basis of the material before the Commission however, there is no motivation apparent for the authorities to launch an extra-judicial execution-type raid with Mehmet Gül as a specific target. Having regard to the limited information available about the planning stage of the operation, there is also insufficient, unequivocal evidence from which such a decision can be inferred.
3. The initial stages of the operation
292. Before the shooting broke out at the Gül house, a number of houses had already been searched. It appears that house searches had commenced before the arrival of the special team from Urfa, which is compatible with Güder’s evidence that the operation was conducted with urgency. According to the public prosecutor’s decision of lack of jurisdiction, these occurred from 20.30 hours onwards.
293. A number of witnesses agreed that a search report would be drawn up in respect of the houses searched during the operation. The only search report provided however is that dated 7 March 1993 which indicates that by 23.20 hours eight searches had been carried out. This document presents difficulties, not least in that it lists the houses of Mustafa and Mehmet Gül as having been searched by that time, which conflicts blatantly with all the other written and oral evidence concerning the events at the Gül house. It is remarkable that this document was allegedly signed on 7 March when the search at Mehmet Gül’s flat was yet to take place. The police officer Mehmet Telçi’s statement of 11 August 1993 and his oral evidence indicate that he was aware of seven or eight houses being searched before the events at the Gül house. This is also consistent with the evidence of the police officer Mehmet Toprak, who also referred to two groups of houses being searched.
1. The Commission finds that the evidence establishes that the house of Mustafa Gül, the applicant’s nephew who lived 150 metres from the applicant’s house, was searched at about 22.00 to 23.00 hours. It accepts Mustafa Gül’s oral testimony as to the search, which accords with the statements taken by the public prosecutor and Inspector Dost. There is also evidence that searches were conducted at the house of the Selçuk family also near to the Gül house (Mehmet Telçi’s oral evidence). Though Mustafa Hakkı Ocakoğlu commented that the Selçuk house should have been searched, it is not apparent that he would have been in a position to know whether it had been or not. Neither of these searches is recorded.
295. The search as detailed by Mustafa Gül, the nephew, indicates that it was carried out by local district officers known to him. It proceeded in a polite and co-operative fashion. While the applicant has placed emphasis on the way in which this search, and presumably the others, were carried out in contrast with the special team’s “hard” approach to Mehmet Gül’s flat, the Commission would note that Mustafa Gül was not in any position to, and did not comment on, whether there were other security officers outside taking security precautions. According to Güder, his gendarmes were in support of the police searches and there is no evidence to contradict this. The Commission would therefore observe that the contrast between the search of the other houses and Mehmet Gül’s house may not be as significant as assumed and centres principally on the fact that in the latter the special operation officers opened fire allegedly in face of armed resistance. This central aspect of the case is examined below.
296. During these searches, nothing was found which supported the information given by the informant earlier in the evening.
4. The operation at the Gül apartment block
297. The twelve special operations officers left the district gendarme centre after their short briefing and proceeded, guided by the local police officers Mehmet Meral and Ömer Avçi, to the house of the applicant. They reached the house not earlier than midnight. The weight of the evidence, oral and written, is that the incident occurred around 01.00 hours.[7] On this basis, it would appear likely that the team took up their positions shortly beforehand.
298. The Gül house was situated in an angle with streets on three sides and a garden on the fourth. On the ground floor, there were commercial premises; on the first floor, Mustafa Gül and his family lived in a flat on the left-hand side while Mehmet Gül and his family lived in a flat on the right-hand side. There were stairs leading up to the first floor from both the left and right corners of the side of the house facing the garden. The applicant stated that the family tended to use the right hand stairs but the left hand stairs were not barred. The applicant occupied the flat on the second floor which was reached by a flight of stairs, which descended onto the balcony outside Mehmet Gül’s apartment. There was a partition separating the balcony into two areas in front of the two flats respectively. The stairs on each level were open, with railings.
1. The area outside the flat was described variously as a balcony but there were differing descriptions of its dimensions and, particularly, whether it was a closed or open space. The applicant stated that there was a wall opposite the doorway from floor to ceiling and that this was a closed space. The officers (Lüfti Demirtürkoğlu, Recep Doğan) stated that the balcony was covered but was open over the garden, with a 50 cm balustrade as described by the latter. The public prosecutor Kamil Çetinkaya said that the balcony was open, while Fikret Yilmaz thought that he could see the garden from the door but was unsure as to whether this was looking straight ahead or at an angle through the stairway. The Delegates requested a video film be shot of the house to clarify its layout. However the house and garden area have been modified significantly since the events of 1993 and the videos do not establish, in particular, whether the balcony area outside Mehmet Gül’s flat was open or closed at the relevant time. It does appear to show that the staircase leading up to the second floor was at that time on the balcony in the area in front of the door.
300. The entrance to Mehmet Gül’s flat was an iron door, which was secured by a lock which was turned by a key and also by a bolt. The door opened inwards. Outside, on the left of the door, was the kitchen window. Inside, on entering the flat, a hall ran straight ahead 5 metres to the sitting room. Leading from left of the hallway was the kitchen, then a WC and bathroom. On the right of the corridor, there was a bedroom where the children slept, then a spare bedroom and furthest from the entrance the master bedroom where Mehmet Gül and his wife slept.
Murat Avan and Nurettin Yıldız. None were in a position in which they had a view of the first floor of the house. Six of the special operations officers (Fahrettin İlgün, the team leader, Murat Sönmezyurt, Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu, Şener Karamurat) went up the stairs to the first floor. The positions of these officers is obscure. The officers gave evidence to the Delegates and were invited to make marks on a sketch. These varied. Nor did their written statements specify clearly where they were. For example, Murat Sönmezyurt claimed to the Delegates that he was on the stairs leading to the second floor, and did not see what happened in front of the first floor flats. However he marked himself as in position on the stairs leading to the ground floor. Fahrettin İlğun’s statement stated that he was positioned so that he could see everybody while in his oral evidence he was on Mustafa Gül’s balcony area and it appeared from his evidence that he did not have a clear view of what occurred in front of Mehmet Gül’s door. Conversely, Lüfti sketched Fahrettin İlğun as being by the partition on Mehmet Gül’s side of the balcony. Şener Karamurat alleged that he was watching up the staircase towards a window and did not see any doors opening, as he was behind an iron partition to the right of the door. The others had placed him in close proximity to the door and not behind any iron partition. The other three officers were also in close vicinity to the door. There is general agreement that Enis Ünlü was on the left side of the door. Recep Doğan and Lüfti Demirtürkoğlu were nearby, providing cover.
302. Many of the details surrounding what occurred next are in dispute. In particular:
- whether Enis Ünlü called out loudly warnings while knocking on the door;
- whether the officers had cut the electric light to the flat by pulling the mains switch outside the door;
- whether the officers were wearing poşus;
- whether Mustafa Gül opened his door on hearing the warning shouts or whether he came out after the gunshots;
- whether Mehmet Gül opened his door and fired a single shot outside;
- how the door was finally opened;
- the extent of the injuries received by Mehmet Gül.
303. The applicant submits, and the evidence of himself and the other members of the family (Filiz Gül and Mustafa Gül) is essentially consistent on, the following. The lights in and outside the flat were turned off at the time the shooting occurred. There was only a light knocking on the door. No shouts or oral warnings were made. The officers fired through the door as Mehmet Gül was in the process of unlocking it. Mustafa Gül looked out of his flat when he heard the shooting and first thought the armed men outside were terrorists. When he came out a second time, he was held down on the ground with a gun to his head. When the applicant arrived, he and Mustafa kicked down the door to gain entry. They entered immediately to give assistance to the injured Mehmet Gül. The evidence of the two neighbours Mustafa Gül, his nephew and Ömer Ocakoğlu provide support for this version.
304. The Government submit as follows. The officers did not switch off the lights. For a period of ten minutes, they knocked loudly on the door and announced loudly, “Police. Open the door.” Mustafa Gül opened his door and shut it abruptly causing the officers’ suspicions of PKK presence to increase. Mehmet Gül opened his door and fired out, once, with a pistol before closing the door. The officers fired a few shots at the lock in response. After these shots, a woman’s voice was heard requesting help. She was unable to open the door so the officers told her to stand back and they fired at the lock. After these shots, the door was kicked open. The team entered first to make a rough search for the presence of terrorists. They rely on the written and oral testimonies of the officers concerned.
305. The Commission has found considerable difficulties attaching to the evidence provided by the special team officers. It particularly finds the assertion that Mehmet Gül opened the door and fired a single shot to be incredible. It observes the following:
- no evidence has been forthcoming which would indicate that Mehmet Gül would have any motivation or reason for firing a shot at police officers; he was alone in his house, with his wife and children;
- the door, which opened inwards, was, according to the officers only slightly opened and the man was not visible. This would have rendered his position, between the door and the hall wall, very tight and awkward and would have made it impossible for him to see where or at whom he was shooting;
- before shooting, the man would have had to turn the key in the lock and draw back the bolt and afterwards, lock the door once more - a difficult process while holding a gun in one hand;
- none of the officers’ statements refer to hearing the key turning in the lock or the bolt drawing back, prior to the man firing through the abruptly opening door. In his oral evidence, Enis Ünlü, when specifically asked about the point, stated that he heard a click of some kind but denied that it was the upper bolt or a key turning; however Lüfti Demirtürkoğlu heard nothing, nor did Recep Doğan or Şener Karamurat;
- the reasons given by the officers for opening fire are not clearly explicable. The Government have stated that it can be regarded as being in response to the shot. This seems to imply that it was a reaction in self-defence. Fahrettin İlgün’s statement said that the shooting was “in response” and that only later did they shoot at the door to open it; in his oral evidence, he also considered that Enis Ünlü’s purpose in firing was to neutralise the person behind the door and the justification came from the fact that a shot had been fired outside. He did not consider that opening fire was justified to open a door. The police expert Güner Kalkendelen was also of the opinion that the firing must have been with the intention of self-defence. However the three officers concerned, including Enis Ünlü who opened fire first, insisted that the purpose was to open the door. On their own account however the firing at the lock jammed it and rendered it impossible for Filiz Gül on the inside to open the door. The use of guns to open a metal door seems, to the Commission, to be a highly reckless and potentially counter-productive measure, which does not accord with the methods which might perhaps be expected of a highly-trained counter-terrorist force;
- the number of shots allegedly fired is inconsistently described in the accounts of the officers who fired and having regard to the physical marks made in the door and the surroundings. None of the three officers concerned were able to say with any conviction how many shots they fired at the door. Nor is there any record of the bullets used by them (see below, Investigation). Their descriptions of the firing varied but insist on the fact that only a few shots were fired in response to the alleged pistol shot by Mehmet Gül and that they were single shots, their M16s not being switched to automatic. None of the three officers were able to give any convincing explanation as to the number of bullet holes to be seen in the door. On a photograph of the door, they indicated that they fired at the lock area and denied that they could be responsible for the bullet holes higher up in the doorway. It was suggested by Lüfti Demirtürkoğlu and Enis Ünlü that the other holes were larger and of a larger calibre. The public prosecutor Ali Rıza Uytun who claimed army experience saw no discrepancy in the sizes of the holes and commented that holes could be widened by the effect of more than one bullet passing through. There was some hint by another public prosecutor Fikret Yilmaz that some of the bullet holes might have been older. The Commission considers that there is no basis on which to make this suggestion. In the absence of any proper forensic analysis of the door (see below) or evidence as to the prior condition of the door, it discounts this possibility. The Commission finds that the three officers’ evidence on this aspect of the case gives serious cause for concern and casts significant doubt as to their reliability generally;
- the fact that the kitchen window was broken and bullet impact marks visible inside the kitchen is inconsistent with the officers’ account of the firing. There was some suggestion that it was not a bullet that broke the window (Fikret Yilmaz) as there was no mark on the curtain (Güven Sağban) and impliedly that the marks inside might have come from ricocheting bullets in the hallway. However, no officer has ever given evidence that they broke the window deliberately or accidentally and no examination was ever made of the curtain. Any bullet fired through the door would also have had to ricochet at a sharp angle to enter the kitchen, which hypothesis does not in any event take into account the position of the kitchen door at the time;
- two officers (Recep Doğan, Lüfti Demirtürkoğlu) make reference to Filiz Gül passing a key to them to assist them in opening the door; Murat Sönmezyurt mentioned this in his statement as did Doğan and Lüfti. Filiz Gül’s evidence does not support this allegation nor is it mentioned by the other officers near the door. Further, on questioning, none of the officers themselves handled the key or knew how it had been handed out;
- the officers stated that they carried M16 semi-automatic weapons. According to the expert opinions submitted by the parties these fired 5.56 mm calibre bullets. The 30 rounds collected and handed to the public prosecutor, allegedly fired by the officers, were however 7.62 mm;
- the officers’ differing accounts as to how they handed in their weapons after the operation also gives rise to doubts. In particular, Enis Ünlü stated that they placed their weapons in unlocked lockers and did not have to account for the bullets used;
- there is no forensic evidence supporting the allegation that Mehmet Gül had been holding a gun when he came to the door or that the guns later found had been handled by him (see Investigation, below).
306. The Commission’s Delegates found that the testimony of the special team officers was lacking in reliability and credibility and in some respects was altogether incredible. Their account of the events at the door gave an impression of being embroidered to present as an exculpatory picture as possible. For example, the accounts of the warnings given vary tremendously - from a warning repeated several times to the claim by Enis Ünlü that he shouted the warning 15 to 20 times over half an hour. The Delegates found the evidence of the applicant, Filiz Gül, Mustafa Gül (the son) and Mustafa Gül (the nephew), which was supported significantly by the evidence of Ömer Kaya and Mustafa Hakkı Ocakoğlu, to be on the whole consistent, credible and convincing.
307. Consequently, as regards the account of events at the door and inside the flat, the Commission generally accepts the version of the family members where it differs from that of the members of the special team. It is satisfied therefore that there was no prolonged knocking on the door or any verbal warning given to those inside the flat. It finds that Mehmet Gül came to the door in answer to a light knocking. It considers it highly probable that the officers outside started firing through the door, as Mehmet Gül was in the process of opening the lock. It is possible that the click of the key turning sounded like a gun being cocked and that this triggered their reaction. The intensity of the firing destroyed fingers on Mehmet Gül’s right hand and inflicted numerous wounds. As he turned away from the door, a bullet struck him in the back inflicting a fatal injury. He staggered back up the corridor, leaving blood stains against the wall. His wife collided with him in the doorway of the bedroom and he collapsed on a sofa bed in that room. Meanwhile, outside, Mustafa Gül had heard the shooting and after opening his door briefly, he realised it was the police and came out. He was forced onto the ground with a gun to his head. When the applicant came downstairs, he saw Mustafa on the ground held at gunpoint by a security officer. He also saw that the lights were out and switched the mains switch back on. The Commission accepts the evidence of the applicant and Mustafa that they participated in the efforts to open the door by physical force. It does not accept the security officers’ assertions that they fired at the door again to try to open it. The applicant stated that he entered first into the flat to find his injured son, while Mustafa recalled that two officers preceded them. In the distress and confusion of the events which followed, the Commission considers that the applicant’s memory on this point may be obscured.
5. The aftermath of the operation
i) the transfer of Mehmet Gül to hospital
308. The applicant’s accounts, oral and written, emphasised that the police officers at the scene did not assist in the process of transferring his son to hospital. Before the Delegates, he qualified this by acknowledging that though an offer might have been made he did not register it at the time. The Commission recalls that the special team officers stated that they carried the injured person downstairs, alleging that he resisted their assistance and was clinging onto the doorways as they carried him out. Given the extent of his injuries and the state of his right hand, the Commission finds this account to be unconvincing and self-serving. It finds that the family carried the injured person to the local health centre in the applicant’s car where he was transferred to an ambulance which took him to Şanlıurfa hospital. Mehmet Gül died however before his arrival and at the hospital, his body was taken to the morgue, where it was later examined by a doctor in the presence of the public prosecutor Ali Rıza Uytun.
ii) the search of Mehmet Gül’s flat
309. An incident report drawn up on 8 March signed by 17 officers described that a search took place after the shooting. It recorded that two guns were found (a Browning cocked with a bullet in the barrel and a French 10 rounder, while a 9 mm empty cartridge was found in the corridor near the door.
310. The Commission has observed previously that these types of reports do not make it possible to identify clearly which of the signatories in fact witnessed the events recorded. It also notes that the time given for the report - 00.30 - does not accord with the probable occurrence of the search after the shooting at 01.00 hours. Moreover the police officer Mehmet Toprak recalled signing the report at the station where it was drawn up some time after the events. In questioning the witnesses who participated in the search, the Delegates were concerned to identify those who found the guns, or who saw the guns being found. All the witness statements taken in the domestic proceedings repeated the stock phrases relating to the guns without specifying who had in fact been present or had found the guns (save in the case of Mehmet Telçi’s statement of 11 August 1993). The oral testimonies of the officers on this point were confused and contradictory. Mehmet Meral at first claimed to have seen both guns being found and then acknowledged that he could not have been present in the two rooms at the same time. However, he alleged that he saw Mehmet Telçi take the Browning from the corner where the mattress was. On the other hand, Mehmet Toprak claimed that he was in the other bedroom with Telçi and Yakut when the French 10 rounder was found. Yakut’s account however was that he was present in the room when the Browning was found. Telçi stated that he found the Browning. When it was put to him, that his colleague had said that he was in the other room when the French 10 rounder was found he thought that he must have gone into that room to join the others. None of the witnesses were able to say who actually found the French 10 rounder in the wardrobe. Telçi moreover was unable to recall whether the gun which he found was bloodstained or not. It is not apparent that whoever found the guns took any precautions in handling them with a view to preserving any forensic evidence.
311. The Commission finds that the evidence given with regard to the guns by the police officers is highly unsatisfactory. The finding of the guns and cartridge - significant evidence in providing the justification for the use of lethal force - was not properly recorded (see Investigation, below). They were not in fact delivered to the public prosecutor until 12 March 1993, some days later, and the photographs taken of the guns show them on a desk, presumably at the police station or prosecutor’s office. The Commission considers that it is not established that the guns were found in the flat as alleged by the officers.
6. The investigation
1. The body of Mehmet Gül was examined by a doctor at Şanlıurfa hospital at about 02.00 hours in the presence of the Şanlıurfa public prosecutor Ali Rıza Uytun. The report which was drawn up was brief. It did not number the injuries on the body, giving only a general reference to grazes, cuts and erosions. No sketch was made of the location of injuries nor were any photographs taken. His family - Mustafa Gül the son and Mustafa Gül the nephew - described the body as showing numerous bullet injuries, from the waist downwards. There was no full autopsy carried, nor any X-rays taken. The public prosecutor Uytun considered that this was unnecessary as the cause of death - the bullet injury to the right kidney - was clear. He considered it was evident from the body that there were no bullets or fragments of bullets inside and that it was not necessary to give details of the grazes as these did not contribute to the death. The Commission finds the report to be seriously deficient - it fails to describe the extent of Mehmet Gül’s injuries and to provide any useful medical or forensic evidence for the purpose of assessing the proportionality of the force used by the security forces, the necessity for which evidence should have been apparent to the public prosecutor in the case of the killing of an individual by police officers.
313. The Commission has already remarked on the lack of proper recording of the finding of the guns and cartridge at the scene of the incident (no photographs, sketch map or record of the officers who found them). The procedures at the scene were deficient in a number of other respects. It notes that although the public prosecutor noted 50-55 bullet holes in the door, only 30 cartridges were found. Though the Browning was tested to see if it had been recently fired, no testing was carried out to establish that it had been fired by Mehmet Gül ie. by way of fingerprinting or analysis of blood traces. Indeed, if the gun was used by Mehmet Gül as alleged, there was a high probability that blood traces would have been present (he was right handed, his right hand was shattered by bullets and blood smears were evident throughout the apartment where he had come into contact with walls and furniture). The photograph of the guns shows no visible stains however. Nor were Mehmet Gül’s hands tested for traces of firing. Though it was alleged by prosecutor Uytun that this test was pointless, this assertion does not accord with the practices adopted in other Turkish cases examined by the Commission and utilised by police forces in other member States. The explanations given variously for not employing these tests (shortness of time, the desire to avoid upsetting the family) are not convincing. While the body was buried rapidly, there was nothing to stop the prosecutor delaying the release of the body to the relatives until the necessary tests had been carried out.
314. Though it was alleged that Mehmet Gül had fired a shot at the officers, no steps appear to have been taken to check for a strike mark outside the flat or to find the bullet. The evidence before the Commission including the videos indicates that the staircase to the second floor was at the front of the balcony and potentially in the line of fire depending on the angle. The Commission is not convinced by the explanation that, assuming the bullet was fired into an open space over the balcony or stairway, it was not worth searching the garden for it. The fact that the gathering of forensic evidence is frequently a time-consuming and painstaking task does not relieve the authorities of the responsibility to make efforts to locate and preserve such evidence.
315. As regards the gathering of evidence from witnesses, the public prosecutor in Bozova took statements from the applicant, family members and neighbours shortly after the events. However, no statements were taken from any of the police officers involved until 8 May 1993, two months later. No statements were taken from any gendarme officers involved, nor the other persons who might have been involved in the planning of the operation. No enquiries were made of the special team department as to the weapons used or number of bullets expended on the operation.
1. When the investigation was pursued by the Inspector appointed by the provincial administrative council after the decision of lack of jurisdiction of 17 March 1993, a large number of statements were taken, from family members and police officers. The inspector’s report was issued on 3 September 1993. It found that the officers had not fired to kill but had shown lack of care, which could justify being charged with causing death from lack of care and precautions and recommending a disciplinary sanction of 16 months’ suspension. However, a decision not to prosecute was endorsed by the provincial administrative council on 21 October 1993 on the basis that the officers had not intended to kill anyone and had only fired after a shot had been fired at them and they had given a warning. It is not apparent that this decision was communicated to the applicant. After a delay of sixteen months, the Supreme Administrative Court quashed the decision on 18 April 1995 and ordered the trial of the three officers who had fired at the door - Enis Ünlü, Recep Doğan, Lüfti Demirtürkoğlu.
7. The criminal proceedings
317. The three officers were tried for causing death by lack of attention and due precaution (Art. 455 of the TPC). They were not represented by lawyer during the proceedings, as, according to Lüfti Demirtürkoğlu, they were not guilty of any offence. During the trial, the three officers appeared. They maintained their written statements, and only Recep Doğan made any additional comments. No other witnesses were heard.
318. The court appointed first a gendarme lieutenant Güven Sağban and then three police experts to make a report on the case. The reports of 28 February 1996 and 16 July 1996 found no lack of care and attention or negligence. None of the experts visited the scene or requested any further information or evidence but based themselves on the statements in the file. Before the Delegates, Lieutenant Sağban stated that he discounted the statements of the family about the gun as they were hesitant. Both he and the other three experts gave their reports on the basis that the accounts of the security officers were true. Güner Kalkendelen explained to the Delegates that their role as experts was to assess the degree of culpability though their view was not binding on the court.
319. On 9 December 1996, the court basing itself on the expert report of 16 July 1996 acquitted the three officers. There is no indication that in any of the proceedings consideration was given as to whether the accounts of the family were in any respect accurate or on what basis the version of events given by the security forces was to be preferred. It is not apparent that the applicant was informed of the criminal proceedings or afforded the opportunity to join as a party.
D.As regards Article 2 of the Convention
320. Article 2 of the Convention provides:
“1.Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2.Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
a.in defence of any person from unlawful violence;
b.in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c.in action lawfully taken for the purpose of quelling a riot or insurrection.”
321. The applicant submits that the planning of the operation at the Gül household involved the premeditation of the use of lethal force, that Mehmet Gül was killed by the special team officers without any justification, that the security personnel failed to assist the victim after the shooting, which assistance might have saved his life and that the inadequate investigation following the shooting failed to comply with the procedural obligation inherent in Article 2 of the Convention.
322. The Government submit that the killing of the applicant’s son was unfortunate but that the security officers acted according to their duty and that the force used was not disproportionate as a response to the situation which they faced, namely, they had come under fire by someone behind the door. They submit that the judicial authorities responded by a prompt investigation, which fulfilled all legal requirements. The officers were tried by an independent court and following two expert reports, the judge acquitted them on the basis that they had not acted negligently.
323. The Commission recalls, firstly, that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention, and together with Article 3 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. It must be interpreted in light of the principle that the provisions of the Convention be applied so as to make its safeguards practical and effective (Eur. Court HR, McCann and others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, paras. 146-147).
324. Article 2 not only protects the right to life but sets out, in its second paragraph, the limited circumstances in which the deprivation of life may be justified. These exceptions are to be strictly construed and cover not only intentional killing, but also those situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. The use of force must be no more than “absolutely necessary” for the achievement of one of the permitted purposes set out in sub-paragraphs (a), (b) and (c) and this term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the sub-paragraphs of Article 2 para. 2 (McCann and others v. the United Kingdom judgment, op. cit., p. 46, paras. 148-149).
325. The Commission notes that the Government appear to argue that the shooting which killed Mehmet Gül was justified under Article 2 para. 2 (a) by the officers’ reaction to defend themselves when they came under fire. It recalls however that it has not accepted the evidence of the special team officers that Mehmet Gül fired a shot from the doorway before they opened fire. It has accepted the evidence of the applicant and his family that Mehmet Gül was unarmed when he went to open the door and that the officers opened fire on the door while he was seeking to open it. The Commission considers that the officers were not under any immediate threat to their lives. Nor in the circumstances of the case and in light of the evidence before the Commission could it be argued that the officers acted on an honest belief based on good reasons which later turned out to be mistaken (see McCann and Others v. the United Kingdom, pp. 58-59, para. 200). It finds that the officers’ actions in opening fire on the door with automatic weapons, firing more than 50 bullets, was accordingly a grossly disproportionate measure. This case may be distinguished from the case of Andronicou and Constantinou v. Cyprus (Eur. Court HR, judgment of 9 October 1997, Reports 1997-VI, p. 2059) where police officers had killed two persons in a flat during a hostage-rescue operation but no violation of Article 2 of the Convention was found to be disclosed. In that case, the Court found that the police officers had opened fire as the direct result of the armed hostage-taker’s attempt to kill the first officer who entered the room, in circumstances where the officers honestly believed that it was necessary to save the hostage and their own lives (see paras. 191-193).
326. The Commission concludes that the use of force by the officers which resulted in the death of Mehmet Gül cannot be regarded as justified in terms of the second paragraph of Article 2 of the Convention.
327. While the applicant has argued that the shooting was premeditated and that the planning of the operation disclosed a deliberate lack of respect for the right to life, the Commission has found above (para. 291) that there is insufficient evidence to support the applicant’s contention that the operation was an extra-judicial execution-type raid. It does find concerns arising from operational aspects of the case. The response of the security officers in shooting a high number of bullets into the door of a residential apartment containing women and children raises questions as the training and instructions received by those officers. The assertion that they were not required to hand in their guns or to account for the bullets used on operations is also disturbing. The Commission would emphasise that the law enforcement officers must be trained rigorously as regards restraint in the use of their weapons and their legal responsibilities and that any use by them of their weapons on operations should be subject to prompt scrutiny and accountability.
328. As regards the applicant’s allegations concerning the failure to render assistance to Mehmet Gül after the incident, the Commission does not find that this aspect raises any separate issues in the circumstances of this case.
329. The Commission further recalls that Article 2 imposes a requirement that, in the cases of the use of lethal force, an effective investigation be undertaken:
“The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.” (Eur. Court HR, McCann and others v. the United Kingdom, op. cit., p. 49, para. 161)
330. The Commission finds that this principle applies equally to the present case. It recalls that it has identified numerous defects in the investigation at the scene of the killing and subsequently - it refers in particular to the lack of detail in the autopsy examination which prevented a proper analysis of the extent of the injuries received by Mehmet Gül, the failure properly to record the finding of the two guns and cartridge at the apartment, the lack of testing to link the gun to Mehmet Gül, the lack of any attempt to find a strike mark or bullet to substantiate the security officers’ account of being fired at by Mehmet Gül, the delay in taking statements from the police officers, the lack of any investigation as regards the planning of the operation or regarding the weapons used in the shooting and the number of bullets expended.
331. In these circumstances, the Commission finds additionally that there has been a failure to provide an adequate and effective investigation into the circumstances in which Mehmet Gül was killed, which discloses a failure to respect his right to life.
CONCLUSION
332. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention.
E.As regards Articles 6 and/or 13 of the Convention
333. Article 6 of the Convention provides in its first sentence:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
334. Article 13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
335. The applicant complains in respect of Article 6 of the Convention that he was denied the opportunity to participate in the prosecut ion and trial of the members of the Special Operations Team. He further submits that due to the untruthful evidence submitted to the court the trial was so flawed as to amount to a violation of his right as a victim to a fair hearing capable of elucidating the truth and establishing criminal responsibility for the death of his son. With respect to Article 13 of the Convention, the applicant submits that the entire investigation undertaken by different agencies was fundamentally defective in part due to the investigation system and procedures and failed to meet the requirements of the Convention.
336. The Government have denied that there is any problem with remedies. They point out that the judicial authorities acted promptly in launching the appropriate investigation during which all necessary steps were taken. Further the three officers were tried by an independent criminal court and after all evidence had been collected and two expert reports delivered, the court acquitted them on the basis that they had not acted negligently.
337. Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, para. 102, Kaya v. Turkey judgment of 19 February 1998, to be reported in Reports 1998-I, para. 105), the Commission has found it appropriate to examine the applicant's complaints about remedies in relation to the killing of his son Mehmet Gül under Article 13 of the Convention alone.
338. The Commission recalls that Article 13 of the Convention, together with Article 1 of the Convention, reflect the fact that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights and that it is first and foremost for Contracting States to secure to every individual within their jurisdiction their rights and freedoms under the Convention (see eg. Eur. Court HR, Handyside v. the United Kingdom judgment of 7 December 1976, p. 22, para. 48). Article 13 in particular plays an indispensable role in preventing abuse of power and the infringement of Convention rights by requiring Contracting States to provide the mechanisms whereby arguable claims of violations of guaranteed rights and freedoms may receive proper investigation, with the possibility of redress (see eg. Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260, para. 95, Boyle and Rice v. the United Kingdom, Comm. Rep. 7.5.86, Series A no. 131, p. 40, para. 73). It would emphasise that a failure to provide effectively-functioning mechanisms of redress seriously undermines the protection to be afforded by the Convention, since the Convention organs cannot, and should not be required to act as a first instance tribunal, a role which the national authorities are in the best position to fulfil.
339. In that context, the Commission recalls that it has investigated over 50 cases concerning allegations of serious human rights violations occurring in south-east Turkey, all of which have involved complaints that the applicants were deprived of an effective remedy. [8] In particular, the Commission observes that there have been a
number of findings by itself and the Court of violations of the procedural obligations under Article 2 and/or Article 13 in respect of allegations concerning deaths for which the security forces or police were alleged to be responsible and findings of violations of Article 3 in respect of ill-treatment of persons held in custody by police or security forces, accompanied by violations of Article 13. These cases have disclosed that investigations into deaths or alleged ill-treatment involving the security forces or police have frequently been superficial and inadequate, undermined by failures to seek evidence or witnesses, flawed forensic and medical examinations and a reluctance to pursue any lines of enquiry into any alleged wrongdoing by members of the security forces or police force. The Commission refers to its summary of defects in practices and procedures as set out in the case of İlhan v. Turkey (No. 22277/93, Comm. Rep. 23.4.99, pending before the Court, para. 244).
340. In the present application, the Commission finds that similar features may be identified throughout the three stages of the procedures, namely, the investigation by the public prosecutor, by the provincial administrative council and before the criminal court.
341. As regards the investigation by the public prosecutor, the Commission has previously noted the defective scene of the incident procedures, the failure to collect evidence and seek forensic testing and the lack of detail in the autopsy examination (see para. 330). It notes that this stage of the investigation culminated rapidly on 17 March 1993, ten days after the incident when the public prosecutor issued a decision of lack of jurisdiction since the matter fell within the Official Conduct Act. No statements had been taken from the security force personnel involved in the operation, in particular the officers who had fired their weapons. The Commission would observe that the removal of competence from public prosecutors to undertake such investigative steps involving security force personnel is not conducive to a balanced, prompt or effective establishment of the facts and leads to delay in obtaining crucial evidence.
342. As regards the investigation conducted by the provincial administrative council, the Commission recalls that the investigation was conducted by an inspector appointed for this purpose who was able to collect statements from police officers involved in the operation as well as civilians. These statements were however produced at the earliest on 8 May 1993, two months after the event. They also disclose a similarity of phrasing and recount purported facts, without specifying that the giver of the statement had personal knowledge of the events in question. It is not possible from these statements, for example, to identify which officer in fact found the 10 rounder French pistol in the apartment which was purported to belong to Mehmet Gül. No statements were taken from any gendarmes involved in the operation or from those involved in the planning of the operation. Nor is it apparent that any investigation was made into the weapons used by the officers and the number of bullets expended by them or any forensic analysis obtained of the bullet strikes on the door, and in the apartment eg. the marks in the kitchen. Though the report by Inspector Dost nonetheless concluded that the three officers could be charged with causing death from lack of care and precaution, the provincial administrative council issued a unanimous decision not to prosecute. The Commission and Court have in previous cases found that the procedure whereby the decision to prosecute lies with a body under the authority of the civilian official (the governor) responsible for the security forces in the area discloses a lack of independence. The cursory manner in which the council overruled the recommendation of the inspector appointed to assess the evidence gives an impression of arbitrariness. Nor was the recommendation and decision communicated by the authorities to the applicant notwithstanding that he had lodged a complaint with the public prosecutor at the outset.
343. The Government have laid emphasis on the fact that, following the quashing of the council’s decision by the Supreme Administrative Court on 18 April 1995, the three officers were in fact tried in a criminal court for causing Mehmet Gül’s death. However the Commission notes that this trial only commenced in or about July 1995, more than two years and three months after the events and culminated on 9 September 1996, over three years and six months after the events. The applicant was also not informed of the trial and remarkably, neither he nor any other member of the family who witnessed the events was called to give evidence. Indeed, only the three police officers were called before the court. They did not consider it necessary to obtain legal representation, nor did the court find it necessary to ensure that they obtained such representation, even though they were facing serious charges. The court obtained two expert reports. From the text of these reports and the evidence given by two of the experts (Güven Sağban and Güner Kalkendelen) before its Delegates, the Commission finds that the experts gave their opinion on the culpability of the officers based entirely on the assumption, unreasoned, that the evidence of those officers presented the correct version of events. Further, their opinions were not based on any technical or scientific knowledge pertaining, for example, to the training of such officers or proper operating procedures in such cases but related to the key legal question as to whether the officers’ conduct disclosed negligence or any intention to kill. These reports were not, apparently, binding on the court but the Commission notes that in acquitting the officers for lack of negligence the court referred expressly to the second opinion of 16 July 1996, without giving any explanation as to why the evidence of the applicant and other members of his family was discounted. The Commission accordingly finds that this stage of the proceedings did not further in any way the elucidation of the facts and that no consideration was given to the complaints made by the applicant.
344. The Commission has concluded above that there was a violation of Article 2 of the Convention (para. 332). It has already found under this provision that the investigation into the circumstances in which Mehmet Gül was killed was inadequate. It recalls however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of Article 2 to conduct an effective investigation (Eur. Court HR, Kaya v. Turkey judgment, op. cit., para. 107). Further, where an individual has an arguable claim that a close relative has been unjustifiably deprived of his life by agents of the State, the notion of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see also, Eur. Court HR, Ergı v. Turkey judgment, op. cit., p. 1782, para. 98).
345. Having regard to the defective investigation procedures described above (para. 343), the Commission finds that the applicant has been denied an effective remedy against the authorities in respect of the killing of his son by special team officers and thereby access to any other available remedies at his disposal, including a claim for compensation.
CONCLUSION
346. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention.
F.Recapitulation
347. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention (see para. 332 above).
348. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (see para. 346 above).
M.-T. SCHOEPFER S. TRECHSEL
Secretary President
to the Commission of the Commission
[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.
[2] Şanliurfa is frequently referred to in documents and by witnesses by the abbreviated form of “Urfa”.
[3] The witness described the beds as rolling up and that there was also a television, an armchair and telephone in the room which was sometimes described as a living room.
[4] He described this as a large handkerchief which could be wrapped round the head to make only part of the face or eyes visible. As these men wore them, part of their faces could be seen.
[5] This refers to a company of commandos, a unit of conscripted soldiers, attached to the district gendarmerie.
[6] Only Murat Sönmezyurt claimed that he had been informed in general terms that women and children were to be found in the building. The other officers did not recall being given any information.
[7] The incident occurred at about 01.00 hours according to the applicant’s statement to the HRA, statement of 8 March and 8 May 1993, and his oral evidence; Mustafa Gül’s (applicant’s son) statements of 12 March and 8 May 1993 and his oral evidence; Filiz Gül’s statements of 8 March and 8 May 1993 and her oral evidence; Mustafa Gül’s (applicant’s nephew) statement of 8 May 1993 and his oral evidence; Mustafa Hakkı Ocakoğlu’s statements of 12 March and 8 May 1993 and his oral evidence); the public prosecutor, Ali Rıza Uytun’s oral evidence; between 24.00 and 0.100 hours, Ömer Kaya’s oral evidence; Fahrettin İlgün’s evidence; at 23.50 hours (incident report of 8 March 1993, drawn up allegedly at 00.30; Fatih Güner’s report of 11 March 1993; at 00.01 hours (public prosecutor’s decision of 17 March 1993); according to the autopsy report, the public prosecutor had been informed about the death at 00.15 hours; however Ali Rıza Uytun, the public prosecutor, said that the examination of the body took place at 02.15; at 00.10-15 hours, Sadık Ergüler’s statement of 10 May 1993; at 00.20-25 hours, Ömer Avci’s statement of 8 May 1993; at 00.30 hours, Mehmet Meral’s statement of 8 May 1993.
[8] Of these, the following have been subject to judgments by the Court, which has largely upheld the Commission’s findings in substance: Eur. Court HR, Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1192; Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260; Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, p. 1866; Mentes and others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2689; Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 297; Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 891; Gündem v. Turkey judgment of 25 May 1998, Reports 1998-III; Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1152; Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1504; Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV; Ergi v. Turkey judgment of 28 July 1998, 1998-IV p. 1751; Oğur v. Turkey judgment of 20 May 1999, Tanrıkulu v. Turkey judgment of 8 July 1999 and Cakıcı v. Turkey judgment of 8 July 1999, to be published in Reports 1999. Additionally, there have been judgments in the cases of Yaşa v. Turkey (judgment of 2 September 1998, to be published in Reports 1998) and Aytekin v. Turkey (judgment of 23 September 1998, to be published in Reports 1998). In the latter case however, the Court rejected the case for non-exhaustion, where there had been a prosecution and conviction of a gendarme, with pending appeal proceedings, in relation to the shooting of the applicant’s husband at a road checkpoint.
Eur. Court HR, Kaya v. Turkey, op. cit.; Güleç v. Turkey, op. cit.; Ergı v. Turkey, op. cit.; Yaşa v. Turkey, op. cit.; Oğur v. Turkey, op. cit., Tanrikulu v. Turkey, op. cit., Çakıcı v. Turkey, op. cit.; see also the cases pending before the Court - Ertak v. Turkey, No. 20764/92, Comm. Rep. 4.12.98, Mahmut Kaya v. Turkey, No. 22535/93, Comm. Rep. 23.10.98, Kiliç v. Turkey, No. 22492/93, Comm. Rep. 23.10.98, Salman v. Turkey, No. 21986/93, Comm. Rep. 1.3.99 and Akkoç v. Turkey Nos. 22947-8/93, Comm. Rep. 23.4.99, Taş v. Turkey, No. 24396/94, Comm. Rep. 9.9.99, Akdeniz v. Turkey, No. 23954/94 Comm. Rep. 10.9.99.
Eur. Court HR, Aksoy v. Turkey, op. cit.; Aydın v. Turkey, op. cit.; Tekin v. Turkey, op. cit.; see also cases pending before the Court : Salman v. Turkey, op. cit., Akkoç v. Turkey, op. cit., No. 22277/93 İlhan v. Turkey, Comm. Rep. 23.4.99, Akdeniz v. Turkey, op. cit.
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