EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24276/94
Koçeri KURT
against
Turkey
REPORT OF THE COMMISSION
(adopted on 5 December 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-29). . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-24) . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 25-29). . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 30-152). . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 31-56). . . . . . . . . . . . . . . . . . . . 4
B. The evidence before the Commission
(paras. 57-141) . . . . . . . . . . . . . . . . . . . 8
1) Documentary evidence
(paras. 57-95) . . . . . . . . . . . . . . . . . . 8
2) Oral evidence
(paras. 96-141) . . . . . . . . . . . . . . . . .17
C. Relevant domestic law and practice
(paras. 142-151). . . . . . . . . . . . . . . . . . .25
D. Relevant international material
(para. 152) . . . . . . . . . . . . . . . . . . . . .26
III. OPINION OF THE COMMISSION
(paras. 153-263) . . . . . . . . . . . . . . . . . . . . .27
A. Complaints declared admissible
(para. 153) . . . . . . . . . . . . . . . . . . . . .27
B. Points at issue
(para. 154) . . . . . . . . . . . . . . . . . . . . .27
C. Concerning the existence of a valid application
(paras. 155-157). . . . . . . . . . . . . . . . . . .27
Decision
(para. 158) . . . . . . . . . . . . . . . . . . . . .28
D. The evaluation of the evidence
(paras. 159-182). . . . . . . . . . . . . . . . . . .28
TABLE OF CONTENTS
Page
E. As regards the disappearance of the applicant's son
(paras. 183-216). . . . . . . . . . . . . . . . . . .35
1. As regards Article 2 of the Convention
(paras 184-189). . . . . . . . . . . . . . . . .35
2. As regards Article 3 of the Convention
(paras 190-197). . . . . . . . . . . . . . . . .37
3. As regards Article 5 of the Convention
(paras 198-214). . . . . . . . . . . . . . . . .38
CONCLUSIONS
(paras. 215-216). . . . . . . . . . . . . . . . . . 42
F. As regards Article 3 of the Convention in respect of the
applicant
(paras. 217-220). . . . . . . . . . . . . . . . . . .42
CONCLUSION
(para. 221) . . . . . . . . . . . . . . . . . . . . 43
G. As regards Article 13 of the Convention
(paras. 222-230). . . . . . . . . . . . . . . . . . .43
CONCLUSION
(para. 231) . . . . . . . . . . . . . . . . . . . . .45
H. As regards Articles 14 and 18 of the Convention
(paras. 232-235). . . . . . . . . . . . . . . . . . .45
CONCLUSIONS
(paras. 236-237). . . . . . . . . . . . . . . . . . .46
I. As regards Article 25 of the Convention
(paras. 238-254). . . . . . . . . . . . . . . . . . .46
CONCLUSION
(para. 255) . . . . . . . . . . . . . . . . . . . . .50
J. Recapitulation
(paras. 256-263). . . . . . . . . . . . . . . . . . .51
DISSENTING OPINION OF MM. S. TRECHSEL, C.A. NØRGAARD, F. MARTINEZ,
G. RESS AND K. HERNDL . . . . . . . . . . . . . . . . . . . . .52
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . .53
APPENDIX II : RELEVANT INTERNATIONAL MATERIALS . . . . . . . .64
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before
the Commission.
A. The application
2. The applicant is a Turkish citizen resident in Bismil and born
in 1927. She is represented before the Commission by Professor K.
Boyle and Ms. F. Hampson, both lecturers at the University of
Essex.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. B. Çaglar.
4. The applicant complains that her son Üzeyir Kurt has been
taken into custody by the security forces and has "disappeared".
She invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. She
also complains of intimidation by the authorities contrary to
Article 25 para. 1 in fine of the Convention.
B. The proceedings
5. The application was introduced on 11 May 1994 and registered
on 6 June 1994.
6. On 30 August 1994, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties
to submit written observations on its admissibility and merits
before 11 November 1994. At the Government's request, this time-
limit was subsequently extended until 11 December 1994.
7. The Government's observations were received on
27 January 1995. The applicant's observations in reply were
submitted on 27 March 1995.
8. Following the receipt of information from the applicant's
representatives dated 23 January 1995 and from the Government dated
9 February 1995 raising issues as to intimidation and validity of
the exercise of individual petition, the Commission decided on 2
March 1995 to request the parties to respond to specific questions
relating to this aspect of the case.
9. Information was provided by the Government on 7 March and
10 April 1995 and by the applicant's representatives on 2 April and
5 May 1995.
10. On 25 May 1995, the Commission declared the application
admissible.
11. The text of the Commission's decision on admissibility was
sent to the parties on 2 June 1995 and they were invited to submit
such further information or observations on the merits as they
wished. They were also invited to indicate the oral evidence they
might wish to put before delegates.
12. The applicant's representatives made submissions on 19 and 25
May and 7 July 1995.
13. On 6 September 1995, the Government made further submissions
relating to the authenticity of the application in the context of
the applicant's application for legal aid.
14. On 21 October 1995, the Commission decided to take oral
evidence in respect of the applicant's allegations. It appointed
three delegates for this purpose: Mrs. G.H. Thune, Mr. N. Bratza
and Mr. E. Konstantinov. It notified the parties by letter of
26 October 1995, proposing certain witnesses.
15. On 27 October 1995, the Commission granted the applicant legal
aid.
16. On 6 November 1995, the Government wrote to the Commission
enclosing a statement by the applicant dated 10 August 1995. The
applicant's representatives responded by letter dated
4 December 1995, enclosing a statement by the applicant dated
2 December 1995.
17. On 25 January 1996, the Government requested that additional
witnesses be added to the Delegates' time-table.
18. Evidence was heard by the delegation of the Commission in
Ankara from 8 to 9 February 1996. Before the Delegates the
Government were represented by Mr. A. Gündüz, Agent, assisted by
Mr. A. Sölen, Mr. A. Kurudal, Ms. N. Nerdim, Mr. A. Kaya,
Mr. A. Polat, Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros,
Ms. M. Gülsen and Ms. A. Emüler. The applicant was represented by
Ms. F. Hampson and Mr. O. Baydemir, as counsel, assisted by Ms. A.
Reidy and Ms. D. Deniz (interpreter). Further documentary material
was submitted by the Government during the hearing. At the
conclusion of the hearing, and later confirmed by letter of 14
February 1996, the Delegates requested the Government to provide a
certain document arising out of the hearing and for confirmation in
writing of the explanation for the absence of certain witnesses.
19. On 2 March 1996, the Commission decided to invite the parties
to present their written conclusions on the merits of the case by
20 May 1996.
20. On 17 April 1996, the Government submitted a document, a copy
of which the Commission already had in its file.
21. At the request of the applicant, the time-limit was extended
to 31 May 1996. Following a request by the Government, a further
extension was granted until 1 July 1996.
22. On 31 May 1996, the applicant submitted her final observations
on the merits. The Government's final observations were submitted
on 20 June 1996.
23. By letter dated 19 September 1996, the Secretariat again asked
the Government to provide a copy of the document which the
Delegates had previously requested.
24. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also
placed itself at the disposal of the parties with a view to
securing a friendly settlement. In the light of the parties'
reaction, the Commission now finds that there is no basis on which
such a settlement can be effected.
C. The present Report
25. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations
and votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
C.A. NØRGAARD
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
M. VILA AMIGÓ
26. The text of this Report was adopted on 5 December 1996 by the
Commission and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
27. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
28. The Commission's decision on the admissibility of the
application is attached hereto as an Appendix I.
29. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
30. The facts of the case, particularly concerning events on or
about 23 to 25 June 1993, are disputed by the parties. For this
reason, pursuant to Article 28 para. 1 (a) of the Convention, the
Commission has conducted an investigation, with the assistance of
the parties, and has accepted written material, as well as oral
testimony, which has been submitted. The Commission first presents
a brief outline of the events, as claimed by the parties, and then
a summary of the evidence submitted to it.
A. The particular circumstances of the case
1. Facts as presented by the applicant
31. The various accounts of events as submitted in written and
oral statements by the applicant and other members of her family
are summarised in Section B: "The evidence before the Commission".
The version as presented in the applicant's final observations on
the merits is summarised briefly here.
a. concerning the disappearance of the applicant's son
32. From 23 to 25 November 1993, security forces, made up of
gendarmes and a number of village guards carried out an operation
in Agilli village. On 23 November 1993 pursuant to intelligence
reports that three terrorists would visit the village, the security
forces took up positions around the village. Two clashes followed.
During the two days in the village they had conducted a search of
each house. A number of houses, 10-12, were burnt down during the
operation, including that of Koçeri Kurt and Mevlüde and Ali Kurt.
Only three of the houses were near the clashes. Other houses were
burnt down on a second, later occasion. However, it is established
that many of the houses in the village were burnt down about this
time and the villagers were told that they had a week to evacuate
the village. The villagers fled to Bismil, many as they were
homeless and those who were not being too scared to remain.
33. According to the applicant, around noon on 24 November 1993,
when the villagers had been gathered together by the soldiers in
the schoolyard, the soldiers were looking for herson Üzeyir who was
not in the schoolyard. He was hiding in the house of his aunt
Mevlüde Kurt. When the soldiers asked Aynur Kurt, his daughter,
where her father was, Aynur told them he was at his aunt's house.
The soldiers went to Mevlüde's house with Davut Kurt, another son
of the applicant, and took Üzeyir from the house. Üzeyir spent the
night with soldiers in the house of Hasan Kiliç. On the morning of
25 November 1993, the applicant received a message from a child
that Üzeyir wanted some cigarettes. The applicant took cigarettes
and found Üzeyir in front of Hasan Kiliç's house surrounded by
about 10 soldiers and 5-6 village guards. She saw bruises and
swelling on his face as though he had been beaten. Üzeyir told her
that he was cold. She returned with his jacket and socks. The
soldiers did not allow her to stay so she left. This was the last
time on which she saw Üzeyir. There is no evidence that he was seen
elsewhere after this time.
34. On 30 November 1993, the applicant applied to the Bismil
public prosecutor to find out information on the whereabouts of her
son Üzeyir. On the same day, she received a response from Captain
Cural at the provincial gendarme headquarters stating that it was
supposed that Üzeyir had been kidnapped by the PKK (the Kurdish
Workers' Party). He made an identical reply on 4 December 1993. The
district gendarme command noted on the bottom of the applicant's
petition of 30 November that Üzeyir had not been taken into custody
and that he had been kidnapped by the PKK.
35. On 14 December 1993, the applicant applied to the State
Security Court in Diyarbakir which replied that he was not in their
custody records. On 15 December 1993, she tried the Bismil public
prosecutor again but was referred to the gendarmerie. Finally on 24
December 1993, the applicant approached the Human Rights
Association in Diyarbakir for help.
36. On 28 February 1994, Davut Kurt, Arap Kurt and Mehmet Kurt
were taken to the gendarme command and questioned about what they
knew of "Üzeyir Kurt who was abducted by representatives of the PKK
terrorist organisation". On 21 March 1994, the Bismil public
prosecutor issued a decision of non-jurisdiction on the grounds
that a crime had been committed by the PKK.
b. concerning alleged intimidation and interference with the
exercise of the right of individual petition
i. in respect of the applicant
37. Since the applicant has submitted her application, she has
been the target of an extraordinarily concerted campaign by the
State authorities to make her withdraw her application.
38. On 19 November 1994, the applicant was called to give a
statement on the instructions of the Diyarbakir Chief State
Prosecutor. In this statement she was questioned about the
statement made to the Human Rights Association and her application
to the European Commission of Human Rights. The applicant's
representatives make reference to a statement by Mr. Tim Otty that
the Diyarbakir Chief State Prosecutor considers it an offence to
make ill-founded and unwarranted applications to the European
Commission of Human Rights.
39. On 9 December 1994, the applicant signed a statement which
said that her petitions were written by the PKK terrorist
organisation and her petitions were being used for propaganda. A
copy was sent to the Human Rights Association.
40. On 6 January 1995, the applicant was called by the State
authorities to go to a notary, and was accompanied there by a
soldier. She did not pay the notary. The statement which was signed
was identical to that of 9 December 1994 with the addition of a
paragraph purporting to say that she had withdrawn her
application.
41. On 25 January 1995, a statement was taken by the Chief State
Prosecutor's office, as part of a file prepared by the authorities
for the purpose of bringing a complaint against the applicant's
lawyer, Mr. Mahmut Sakar.
42. On 8 August 1995, the applicant made another statement before
a notary which purported to withdraw her application. While she was
not forced to say anything to the notary and she told them what she
wanted to be written, the statements do not represent her wishes
and she had no opportunity to verify the contents of the
statements.
ii. actions taken against the applicant's lawyer Mr. Sakar
43. The applicant states that the authorities have taken steps
with a view to prosecuting Mr. Mahmut Sakar for his involvement in
her petition to the European Commission of Human Rights. She refers
to a request made in a document dated 12 January 1995 by Mr.
Özkarol of the Foreign Ministry Human Rights directorate that an
investigation be opened against Mr. Sakar, who was suspected of
exploiting the applicant and had made a petition against Turkey.
2. Facts as presented by the Government
44. Agilli is a thirty-six household village. From this village
and its surroundings, about fifteen men and women have joined the
PKK, which is a high ratio for such a small village. These include
Turkan Kurt, the daughter of Musa Kurt, one of the applicant's
sons.
45. While an operation did take place in the village and clashes
occurred between the security forces and suspected terrorists,
Üzeyir Kurt was not taken into custody by the security forces. He
had no history of previous detention or problems with the
authorities and there was no reason for him to be taken into
custody.
46. The Government submit that there are strong grounds for
believing that Üzeyir Kurt has in fact joined or been kidnapped by
the PKK. They refer to the fact that the family allege that his
brother died in gendarme custody several years before; the fact
that the applicant stated that he hid when the security forces
arrived in the village; and the fact that his house was burnt down
following the clash in the village. Further, some members of the
family had already joined the PKK and several months after the
operation in the village a shelter was found outside the village
which it was said that Üzeyir Kurt had used in his contacts with
the PKK. Villagers have also stated that they heard that he had
been kidnapped by the PKK.
47. The Government submit that Üzeyir could have hidden in the
village at the commencement of the operation and then, under cover
of darkness and poor weather, slipped through the security forces
blockade. Mehmet Karabulut stated that in the night following the
first clash Üzeyir was in Mevlüde's home sleeping but that when he
woke in the morning Üzeyir was no longer there. The only person who
claims to have seen Üzeyir after that is the applicant, whose
accounts are inconsistent, contradictory and unsubstantiated. In
particular, it is pointed out that she stated that persons in the
schoolyard were blindfolded, which was not true; her statements to
the HRA (Human Rights Association) and to the Commission in her
application refer to one visit to her son to give cigarettes,
whereas in her oral testimony she referred to two visits; her
descriptions of how she received a message from her son vary and
she could not identify the alleged child involved in delivering the
message. In addition, her account of making two visits passing
through the village when the security forces stated they were
keeping people in their houses for security reasons is implausible.
48. The Government also point to the allegations originally made
in the applicant's application to the Commission in which it was
stated that the soldiers killed the livestock and pillaged goods as
well as beating the villagers. These matters were denied orally by
the applicant before the Delegates.
49. The Government submit that the applicant was not subjected to
any pressure not to give evidence before the Delegates as was
alleged in strong terms by the applicant's representatives before
and at the beginning of the proceedings.
50. The Government submit that the applicant has clearly stated
that she does not wish to make a complaint against the State. Her
only concern is to find her son and it was for that purpose she
went to the HRA. She had never been subject to pressure to make any
statement; no soldiers were around her when she made statements;
there was an interpreter and her statement was read out to her
before she fingerprinted it.
3. Proceedings before the domestic authorities
51. On 30 November 1993, the applicant submitted a thumbprinted
petition to the Bismil prosecutor. It stated that her son had been
taken into custody following a clash between the gendarmes and the
PKK at her village and she was doubtful as to his fate. She
requested that she be informed of his fate. On the same date the
prosecutor passed the petition to the district gendarme command
with a handwritten request for the information to be provided. The
district gendarme command noted in handwriting on the petition the
same day that it was not true that Üzeyir Kurt had been taken into
custody - it was supposed that he may have been kidnapped by the
PKK.
52. By letter dated 30 November 1993, Captain Izzet Cural, under
heading of the provincial gendarme command, informed the Bismil
Chief State prosecution in answer to their unnumbered letter that
Üzeyir Kurt had not been taken into custody and it was thought that
he had probably been kidnapped by terrorists.
53. By letter dated 4 December 1993, Captain Cural, district
gendarme commander, under heading of the district gendarme command
at Bismil, informed the Bismil Chief State prosecution that Üzeyir
Kurt had not been taken into custody and it was thought that he had
probably been kidnapped by terrorists (identical terms to the
letter of 30 November in the preceding paragraph).
54. On 14 December 1993, the applicant submitted a fingerprinted
petition to the Chief Prosecutor at the State Security Court at
Diyarbakir. She stated that her son Üzeyir had been taken into
custody 20 days previously by gendarmes and since they had had no
news, they were concerned for his life. She requested that
information be given to her as regarded his whereabouts. On the
bottom of the petition, the Chief State Prosecutor noted in
handwriting the same day that the name Üzeyir Kurt was not in their
custody records.
55. On 15 December 1993, the applicant submitted a second written
petition to the Bismil public prosecutor which repeated the terms
of her petition of 14 December. The prosecutor wrote on the
petition an instruction to gendarme regional command to provide her
with the information requested.
56. On 21 March 1994, the Bismil public prosecutor, Ridvan
Yildirim, issued a decision of dismissal. The document identifies
the complainant as the applicant and the victim as Üzeyir Kurt.
The crime was identified as membership of an outlawed organisation
and kidnapping and the suspects as members of the PKK. The text of
the decision stated that following a clash between the PKK and the
security forces, PKK members escaped from the village, kidnapping
the said victim. Since this crime fell with the jurisdiction of the
State Security Courts, the case was dismissed and referred, with
the file, to the Diyarbakir State Security Court.
B. The evidence before the Commission
1) Documentary evidence
57. The parties submitted various documents to the Commission. The
documents included reports about Turkey (including extracts on
Turkey from the Report of the United Nations Working Group on
Enforced or Involuntary Disappearances (E/CN.4/1995/36)) and
statements from the applicant and witnesses concerning their
version of the events in issue in this case.
58. The Commission had particular regard to the following
documents:
a) Statements by the applicant
Statement of 24 December 1993 taken by the HRA (Diyarbakir)
59. On 23 November 1993, at about 18.00 hours, a clash broke out
at Agilli village, during which three houses were set on fire and
two people were killed, one of whom was Mahmut Cakmak. The
following morning, the soldiers collected all the villagers in the
village school, separating the men from the women. The men were
ill-treated, being forced to lie on the ground. During the three
days that the villagers were kept in the school grounds during the
day, and in places like stables at night, the soldiers burned down
all the houses with all their contents and slaughtered the
livestock.
60. When the clash broke out, the applicant's son Üzeyir Kurt was
at the home of his aunt Mevlüde where he remained during the first
night. The following day, when the villagers were collected
together, he hid in his aunt's house. He was afraid since two years
previously his brother Abdulkadir Kurt had died from ill-treatment
in custody. When the soldiers asked Aynur Kurt (15 years old) where
her father Üzeyir Kurt was, she told them. The soldiers went to
Mevlüde's house with the applicant's son Davut and Üzeyir was
brought out. He was taken to the house of Hasan Kiliç and held
there during the night. In the morning, a child told Hasan Kiliç's
wife that Üzeyir wanted cigarettes and clothes. The wife came to
the applicant with this message at about 07.00 hours. The applicant
obtained half a packet of cigarettes from a soldier and a jacket
and jumper from one of the burnt houses and took these to Hasan
Kiliç's house. She found her son in the yard, with 8-9 soldiers
around him. He had swellings round his eyes and had been tortured.
She gave the things to her son and was told to go away by the
soldiers before she was able to talk to him. She has not seen her
son since that time.
61. The applicant went to stay with her sister in Bismil since her
house had been burned down. She applied to many places concerning
her son's whereabouts but was told that he was not in custody but
that he might have been killed by the PKK. She saw him in custody
with her own eyes and suspects that he has been killed under
torture.
Statement of 19 November 1994 taken by the Bismil public
prosecutor
62. The applicant was asked about her complaint and shown her
petitions. She said that she had petitioned the State Security
Court and Bismil prosecutors and had given a petition to the HRA.
She was an old person and could not remember if all the
fingerprints she was shown belonged to her. The contents of the
petition letters to the prosecutors were true. The letter to the
HRA was written by someone else since she was illiterate. While it
was true as stated in that letter that there was a conflict, that
some houses were burnt and the villagers gathered by the security
forces, she denied that they were tortured, the livestock
slaughtered or the villagers' possessions plundered. She had not
said anything like that. There was an armed conflict in the evening
and the escaping terrorist was shot in the early morning. Later the
villagers were assembled together. The soldiers told her that her
son wanted cigarettes and clothing. She got cigarettes from a
soldier, collected clothing from home and delivered them to her
son. It was not true that her son had been tortured, only that his
face looked like it was swollen. When she gave the clothing to her
son, he said that the State would do nothing to him. She did not
see him being taken away by the soldiers. Since one of her other
sons had died in custody, she was suspicious that Üzeyir would also
die in custody. This was why she made the petitions.
Statement of 7 December 1994 taken by gendarmes
63. On the evening of 23 November 1993 there were sounds of
shooting. She did not leave her house, which she lived in with the
family of her deceased son Abdulkadir. After sunrise, the security
forces gathered everyone in the schoolyard, separating men and
women. After identities had been checked they were released. Her
son Üzeyir was with the soldiers - the place which he was in was
crowded and there were other villagers. She heard some villagers
were taken but according to them Üzeyir was not with them. He was
not in the village and they made enquiries. The gendarmerie said
that he was not in custody. She would very much like an
investigation to be carried as to her son's whereabouts, whether he
was dead or alive.
Statement of 9 December 1994 addressed to the HRA (Diyarbakir)
64. The applicant stated that she had made many applications to
find out news of her son's fate. She was illiterate and she had
learned that certain institutions and individuals had made use of
her for propaganda. The PKK is named as using incorrect petitions
made in her name and with her fingerprint. Her intentions, that her
son was missing and that she wanted the security forces to look for
him, had been distorted and for this reason, she revoked all
petitions written and sent off in her name. She did not want her
son to be used as propaganda material for any terrorist
organisation. She wanted his whereabouts to be investigated by the
State, which she trusted and which would shed light on the matter.
Statement of 9 December 1994 addressed to the Foreign
Ministry, Ankara
65. This statement is identical to that made to the HRA above.
Statement of 6 January 1995 taken before the Bismil notary
66. After the confrontation between the terrorists and soldiers on
23 November 1993, the applicant's son was placed in custody by the
soldiers and since then she had had no news of him. She had applied
to several places, including the European Commission of Human
Rights and Amnesty International. She had learned that an ill-
founded petition had been made in her name and using her thumbprint
by the PKK terrorist organisation, accusing the security forces of
her son's disappearance. She had applied to the HRA for her son to
be found which was her only aim. She rejected the application made
to the European Commission of Human Rights in her name and did not
wish to pursue it. Her only desire was for the State to find her
son and she had trust in the State which would resolve the matter.
Statement of 25 January 1995 taken by the Chief Prosecutor's
office at Diyarbakir
67. On 23 November 1993, village guards and soldiers came to the
village, searched it and burned several of the houses. They
interrogated 10-15 persons who were released but took her son with
them and left, since which time she had had no news of him. She had
given petitions to Bismil, Tepe station, the State of Emergency
Governor' office, the Chief Prosecutor's offices in Bismil and
Diyarbakir; to the Diyarbakir State Security Court Chief
Prosecutor's office. The Regional Governor's office and the Bismil
battalion command sent replies saying that her son had been
kidnapped by the terrorists. Ismail Sari was also taken from the
village at the same time as her son. He came back to the village
having been 15 days with village guards. He said he had not seen
her son. She did not believe her son had been kidnapped by the
terrorists. If her son had gone to the mountains, she would not
have asked the State. She only wanted to see her son again dead or
alive. The soldiers were constantly questioning her about this
matter. She had no complaint against anyone.
Statement of 10 August 1995 taken by the Bismil notary
68. The applicant stated that she had approached the HRA not in
order to file a complaint but intending only to seek help in an
effort to locate her son. The statement taken down at the HRA,
which she could not read as she was illiterate, was beyond her
request or aim. She did not think that the State or security forces
had any intentions concerning the disappearance of her son and such
complaints were put into her statement without her agreement.
Statement of 2 December 1995 addressed to the HRA (Diyarbakir)
69. Following her application to the Commission, the security
forces have asked her many times to make statements. Each time she
mentioned that she had seen her son Üzeyir behind the village under
the surveillance of soldiers, that his face was bruised, that she
had brought him cigarettes and then a coat as he said that he was
cold. When she asked him what was happening, he had told her
"Mother this is the State. Nothing will happen." As regarded her
statement to the Bismil notary, she was summoned through the
village mayor to file a statement. However, she did not deny her
application or the statements which she made to the Commission. She
would like to continue with her case. She was worried about the
safety of her two sons Musa and Davut. She wanted her son to be
found, whether dead or alive.
Statement of 7 February 1996 taken by Bismil public prosecutor
70. The applicant stated that she had already given long
statements about this matter. She did not want to go to Ankara.
Neither the administrative authorities, nor the gendarmes nor the
police had put pressure on her not to go to Ankara. She had not
declared that she was being prevented from doing so. It was her own
wish not to go.
b) Statements by other persons
Arap Kurt, mayor of Agilli village
Statement of 23 February 1994 taken by gendarmes
71. In this statement, the witness was asked for "his knowledge
and observations that following a clash between the PKK and the
security forces, PKK members escaped from the village, kidnapping
the said victim". In response, the witness stated that he was the
uncle of Üzeyir Kurt. Since he was kidnapped by the terrorists,
they had had no news. Üzeyir had been missing since
25 November 1993 and he guessed that he had been kidnapped and kept
by the terrorists.
Statement of 7 December 1994
72. On 23 November 1993, there was an armed conflict in the
village. Afterwards, he learned that two members of the PKK and
Senior Sergeant Uysal, Tepe station commander, had been killed.
Following the clash, the security forces thoroughly searched the
village and assembled the villagers in the schoolyard to check
their identities. Twelve persons including himself and
Mehmet Karabulut were taken into custody for one night at the
gendarme command. Üzeyir Kurt was not with them. They were released
after being interrogated.
Davut Karakoç
Statement of 28 February 1994 taken by gendarmes
73. In this statement, the witness was asked for "his knowledge
and observations about the hostage Üzeyir Kurt, taken by the PKK
terrorist organisation". In response, the witness stated that he
was the cousin of Üzeyir Kurt, who had been kidnapped by the PKK,
since when they had had no news. They did not know his whereabouts,
which mountain he was in or what he was doing. He had only heard
that his cousin had been kidnapped by the PKK but did not know how.
That was all he knew about the matter.
Mehmet Kurt
Statement of 28 February 1994 taken by gendarmes
74. In this statement, the witness was asked for "his knowledge
and observations about the hostage Üzeyir Kurt, taken by the PKK
terrorist organisation". In response, the witness stated that he
was the cousin of Üzeyir Kurt, who had been kidnapped by the PKK,
since when they had had no news. They did not know his whereabouts,
which mountain he was in or what he was doing. He had only heard
that his cousin had been kidnapped by the PKK. That was all he knew
about the matter.
Hasan Kiliç
Statement of 7 December 1994 taken by gendarmes
75. On the evening of 23 November 1993, there was an armed
conflict between the PKK and the security forces as a result of
which many houses were burnt. Towards midnight, at the beginning of
24 November, Üzeyir appeared at his house. The security forces who
were carrying out a search of the village arrived at his house and
because it was very cold, the commanding officer, a first
lieutenant, asked if they could sit down. The witness made them
welcome and they had tea and talked until morning. The applicant
came to his house and talked to Üzeyir by the door and then they
both left together. The soldiers who were his guests also left that
morning. He did not hear or see Üzeyir ask children for cigarettes
or a pullover and it was not true that his children asked the
applicant for these things. The soldiers definitely did not leave
with Üzeyir.
Aynur Kurt
Statement of 7 December 1994 taken by gendarmes
76. Aynur Kurt said that she was the daughter of Üzeyir. There was
a conflict at the village on 23 November 1993.She was sitting at
home with her father. The security forces arrived and evacuated the
house. Her father hid himself in the house. They were taken to the
school, identities were checked and afterwards they dispersed. She
did not see her father being caught by the security forces.
Mevlüde Kurt
Statement of 7 December 1994 taken by gendarmes
77. The witness stated that she was the step-sister of Üzeyir
Kurt. On the night of 23 November 1993 she was at home. There was
an armed conflict and they heard shooting. In the morning they were
all gathered at the school where there was a brief identity check.
The houses were searched. There was a fire in the village as a
result of the conflict. She did not see anyone being taken into
custody.
Musa Kurt
Statement of 7 December 1994 taken by gendarmes
78. The witness was Üzeyir Kurt's elder brother. On the evening of
23 November 1993, he was in his house and heard sounds of shooting.
In the morning the security forces gathered the villagers, men and
women separately, in the school yard. They carried out an identity
check and searched the houses. He did not see his brother Üzeyir
Kurt among the gathered people in the yard nor during the search.
He did not see anyone being taken into custody. He heard that some
villagers had been taken and when these persons were released he
asked them, but they said that they had not seen his brother. All
he asked was that the State investigated whether his brother was
dead or alive and, if alive, notify of his whereabouts.
Hazal Karakoç
Statement of 7 December 1994 taken by gendarmes
79. The witness was Üzeyir Kurt's elder sister. On the evening of
23 November 1993, she was in his house and heard sounds of
shooting. In the morning the security forces gathered the
villagers, men and women separately, in the school yard. They
carried out an identity check and searched the houses. She did not
see her brother Üzeyir Kurt among the gathered people in the yard
nor during the search. Later they dispersed and everyone went to
their houses. She heard that some villagers had been taken but did
not know whether Üzeyir was amongst them. Some 3-4 days passed and
they realised that he was not in the village. The people who were
released said that he had not been with them. She did not see her
brother being taken into custody.
Mekdeni Goktas
Statement of 7 December 1994 taken by gendarmes
80. The witness was elected mayor of Bashan village and a village
guard. He said that five days after the armed conflict in Agilli
village, one of the villagers returned with Ismail Sari whom he was
intending to hire as a shepherd with the agreement of the village.
Since Sari demanded too much money, however, no agreement was
reached. Sari stayed in the village two days. He asked also to be
employed as a village guard but there was no post available. His
mother came to the village and they left together. There was no-one
called Üzeyir Kurt with Sari.
Mehmet Aydin
Statement of 7 December 1994 taken by gendarmes
81. The witness was a village guard from Bashan. About
five-six days after the conflict at Agilli, he saw Ismail Sari in
front of the Bismil gendarme station. Sari said that he was afraid
to go back to the village because of the PKK. The witness took him
back to Bashan in order for him to take the job of village shepherd
but they could not agree on the salary. Sari stayed in the village
two days then left with his mother. There was no-one called Üzeyir
Kurt with Sari.
Sadun Sari
Statement of 7 December 1994 taken by gendarmes
82. The witness from Agilli village was the father of Ismail Sari.
He said that Ismail had been in the village during the conflict and
afterwards was afraid of staying there. He went to Bismil alone
with the security forces. From there he went to Bashan to become a
shepherd. Üzeyir Kurt was not with him. A few days later he came
back from Bashan.
Semsettin Günes
Statement of 7 December 1994 taken by gendarmes
83. The witness was elected mayor of Tepecik village and a village
guard. During the conflict of 23 November 1993 at Agilli, he was at
Tepe gendarme station. They learned that the commanding officer of
the station, Senior Sergeant Uysal, had died during the conflict.
Since there were insufficient security forces, he and the village
guards went to Agilli on the morning of 24 November 1993 to fetch
the body and return it to Tepe. They did not take Ismail Sari or
Üzeyir Kurt with them.
c) Official decisions and reports
Incident report by security forces dated 24 November 1993
84. Pursuant to intelligence information that three members of the
PKK were to arrive at Agilli village to make propaganda and collect
money, an operation was organised whereby the security forces
arrived at the village on 23 November 1993 and the entrances and
exits were surrounded. A tractor was observed approaching with its
headlights off. A Senior Sergeant, Mehmet Uysal, called a warning
"halt" to the tractor which was responded to by a burst of fire
from three PKK members. Uysal was killed. In the conflict which
followed, one terrorist ran to the yard of Muhuttin Kurt's house.
He was killed by the security forces. The other two terrorists ran
into the village. They fired tracer bullets which resulted in the
burning of the tractor, haystacks and some of the houses. The two
terrorists were later traced to the haystack belonging to Mahmut
Cakmak. Firing started which led to the deaths of a terrorist,
codename "Siar", and Mahmut Cakmak. A grenade exploded when Cakmak
tried to booby trap himself and the haystack was burned.
Report dated 19 November 1994 from Bismil prosecutor to
Diyarbakir Office of the Attorney-General
85. The prosecutor reported that, following the incident at
Agilli, the applicant's claim that her son had been taken into
custody by the security forces was investigated. The investigation
established evidence suggesting that he had been kidnapped by
members of the PKK on their escape route following the clash on 23
November 1993.
Report dated 8 December 1994 by Colonel Esref Hatipoglu,
Gendarme General Command, Diyarbakir
86. On evaluation of information concerning the imminent arrival
of a group of terrorists at Agilli for the purposes of gathering
money and supplies, Bismil District Gendarme Command launched an
operation.
87. A group of terrorists were discovered inside the village.
Another group of terrorists attempted to enter the village to join
the others. Firing began when the security forces ordered the
terrorists to halt. An armed conflict ensued, continuing through
the night in places. A fire started in some of the haystacks and
this spread to some houses. Senior Sergeant Uysal and one terrorist
were killed in the first outbreak of shooting. During the conflict
every effort was made to avoid damage to villagers' property or
injury to their persons. On 24 November all suspicious persons were
brought to the school for identities to be checked. During the
search of the village, an incident occurred at the haystack of
Mahmut Cakmak who was found to be collaborating with the PKK
terrorist, Siar. Both were shot when they fired on the security
forces.
88. While the search was concluded by the evening of 24 November,
some security forces remained to provide security and protection to
the villagers whose houses were burnt. Twelve suspicious persons
were taken into custody on 24 November 1993 but released on 25
November 1993 after their interrogation had been completed. On 25
November the operation was concluded and the security forces left
the village.
89. The applicant made an application a long time after this
incident inquiring whether her son was in custody and stating her
concern about his life. She was informed that the person was not in
custody. The claim had also suggested that Ismail Sari of the same
village was in custody. This was investigated. Sari's brother had
been killed by the PKK and he and his mother had taken refuge in
the village of Bashan. He later started, and was still doing, his
military service.
90. Following this incident, the PKK held the village responsible
for the loss of their members and after concentrated pressure from
them, the villagers evacuated their homes, settling into
surrounding secure settlements.
d) Materials relating to the enquiry into the conduct of the
applicant's lawyer Mr. Mahmut Sakar
Document dated 12 January 1995 from the Ministry of Foreign
Affairs (Deputy General Directorate of the Council of Europe
and Human Rights) to the Ministry of Justice (General
Directorate of International Law and Foreign Relations) signed
by Mr. Özkarol on behalf of the Minister.
91. This document refers to the applicant's petition letter of 24
December 1993 taken by the HRA. It states that in her statement to
the Bismil public prosecutor the applicant stated that the
allegations in the petition were untrue in that the villagers were
not tortured and the soldiers did not settle in the houses, kill
livestock or loot. She also denied the claim that her son was
tortured and stated that she did not see her son being taken away
by the soldiers. It concluded that if this statement was true it
disclosed an abuse of the applicant's rights and, combined with the
applicant's letter to the Ministry, cast suspicion on the
credibility of the application. It requested an investigation.
Document dated 19 January 1995 from the Ministry of Justice
(General Directorate of International Law and Foreign
Relations) to the General Directorate of Penal Affairs
92. This document refers to the letter and documents sent by the
Ministry of Foreign Affairs and also to the applicant's statement
sent to the Ministry of Foreign Affairs dated 9 December 1994. It
stated that in view of Article 58 of Law No. 1136 legal proceedings
were considered and requested information.
Document dated 17 April 1995 from Mr. Ibrahim Akbas, Attorney
General to the Ministry of Justice (General Directorate of
Penal Affairs)
93. This document refers to an investigation order of
6 February 1995 from the Ministry of Justice and a letter from the
International Law and Foreign Relations General Directorate of 19
January 1995 and states that the matter is to be investigated and
an opinion and evaluation summary report be dispatched. This refers
to suspicions that Mr. Sakar had fabricated statements in the
applicant's petition letter but states that since the applicant had
made hesitant statements to the Bismil public prosecutor on the
content of the petition and as to whether she had signed it or not
and had made totally different claims in another context, it had
been concluded that in the case of an investigation securing
evidence would be difficult.
Document dated 14 July 1995 by Judge Akcin for the Ministry of
Justice
94. This refers to a petition made on behalf of the applicant by
Mr. Sakar, which included allegations that village residents were
tortured and soldiers settled in the houses and slaughtered the
livestock and looted their possessions. The judge noted that an
investigation revealed that the statement had been taken by Mr.
Sakar in his capacity as administrator of the Diyarbakir HRA and
that accordingly the general rules were applicable. He considered
that the documentation be referred to the Diyarbakir Attorney
General for the application of those rules.
Letter dated 9 August 1995 from the Attorney General,
Diyarbakir, to the Chairmanship of the Bar, Diyarbakir
95. This refers to an enclosed file of documents from the Ministry
of Justice, with the note that it was to be discussed with the
Advocate M. Sakar.
2) Oral evidence
96. The evidence of the six witnesses heard by the Commission's
Delegates may be summarised as follows:
(1) Koçeri Kurt
97. In November 1993, the applicant lived in Agilli village
(Birik). Her son Üzeyir lived in the next door house with his
family (7 children). A tractor had come to the village in the
evening when it was surrounded by soldiers. There was an incident
at about 20.00 hours when a non-commissioned officer was killed. In
the morning, the soldiers assembled the villagers and took them to
the schoolhouse. The young were separated from the old. At one
point she said that they were blindfolded while at another that
only the young people were blindfolded. The soldiers set fire to
the village. Three houses had burned during the night, and she saw
smoke and flames from others during the day. They burned about ten
houses, including those of her son Mahmut. The soldiers did not
touch the animals but on previous occasions when they had visited
they had killed chickens. They did not ill-treat the villagers. The
villagers were released at about 16.00 hours and then collected
again the following morning.
98. Her son Üzeyir had been at his aunt Mevlüde's house and spent
the night there. He was not in the schoolyard. The soldiers were
looking and asking for him. When they asked Aynur where her father
was, she told the soldiers that he was at the aunt's house. She had
seen the soldiers ask Aynur. At about 16.00 hours, the soldiers
brought him out and took him away. She did not see that, but her
aunt and one of her other sons had been taken there by the soldiers
when they went to search for Üzeyir. Mevlüde said that after they
took Üzeyir they burned her house. The soldiers asked him why he
had been hiding and he replied that he was frightened as one of his
brothers had been killed under torture. He had never been in
trouble previously with the authorities.
99. The next day, at around 9.00 hours, a child told Üzeyir's
wife, Saliha, who told the applicant that Üzeyir wanted cigarettes.
Hasan had told her that Üzeyir was at his house with the soldiers.
She got cigarettes from a soldier and took them to Hasan's house
where she found her son in front of the house with about 10
soldiers and 5-6 village guards. His face was black and blue. He
had been tortured. He was in the custody of the soldiers. He told
her that "it's the State that did this to me." He asked her for a
jacket. She fetched a jacket and after she had given it to Üzeyir
the soldiers told her to go away. That was the last that she saw of
him. Hasan said that they took Üzeyir away from the house later
that morning.
100. About 15-20 villagers were taken away from the village by the
gendarmes. When they returned two days later, Üzeyir was not with
them. A soldier told them to leave the village in a week.
101. The applicant took a petition to the prosecutor's office. He
told her to go to the gendarmerie. She took her petition to the
gendarme station. Since she thought her son had been with Ismail
Sari, she asked where they both were. The gendarmes said that
Ismail Sari had joined the village guards. They said, "We haven't
seen your son. We lost your son in the village. He ran away." But
she had seen with her own eyes that her son was in their hands. She
did not know if they killed him or let him go. She went there about
ten times. She was told his name was not in the records. She also
made a petition in Diyarbakir, which was sent to the gendarmerie
command. They said that they did not know the whereabouts of her
son. The father of Ismail Sari went to find him with the village
guards. She did not trust the village guards: the State could ask
the village guards but they did not give the order to find her son.
Whatever was done was done by the soldiers and village guards.
102. When she was called to give a statement to the public
prosecutor in November 1994, he asked her if she had made a
complaint to the Commission. She was not taken into custody. The
gendarmes came to take people to make statements. They asked her if
she had gone to the Human Rights and made a petition. It was the
State who told her to go to the notary. A soldier came to take her.
She did not pay the notary. She made a statement alone with the
notary and fingerprinted it. On the second occasion, it was again
the State who told her to go. The police came and told her. A
soldier in uniform accompanied her to the notary but he waited
outside. She was not told what to say but was told to put her
fingerprint on the paper. When the notary asked her why she made
these petitions, she said that she wanted her son's body. She did
not tell the notary that she did not want to continue with her
petitions. There were interpreters present at the notary on both
occasions and they read her statement back to her. She did want to
pursue the case. She went to the HRA of her own free will to fight
for her son's rights. She found her own way there by herself.
103. No-one had told her not to come to Ankara. She had said that
she would not go because she had no money. The public prosecutor
told her that they were waiting for her to give a statement but he
did not pressurise her. The HRA did not pressurise her either. She
received a message from her lawyer saying that she absolutely must
go.
104. The applicant also went to the HRA. She told them that the
State had taken her son away and that she wanted her son's body.
They wrote it down. When she was referred to her statements to the
notary which said that she did not want to pursue her application,
she said that maybe she had said that. She wanted the State to give
her her son's body. Even if they had killed him, they should tell
her where he was.
105. When counsel for the Government asked her whether she filed a
complaint against the State because they lost her son or whether
she wanted the State to find her son, she said that the State had
taken her son away. Maybe she had said things to the notary but she
was at her wit's end. She wanted her son. She saw with her own eyes
that he was in their custody. She wished that they would admit that
they have killed him and say where his body was. She rejected the
possibility that her son had joined the PKK. If he had gone to the
mountains, she would not be asking the State.
(2) Arap Kurt
106. Arap Kurt said that he was born in 1942 and lives in Bismil.
He used to live in the village of Agilli. He was there during the
incident in November 1993. He was and still is mayor of the
village. Koçeri Kurt is his sister-in-law.
107. Terrorists and soldiers used to come to the village from time
to time. The village had no village guards, though there were such
guards in villages further away. On 23 November 1993 between about
19.00 and 20.00 hours he heard firing from a clash. After ten
minutes soldiers came to his house. The captain wanted explanations
from him. He told the witness to stay with him that night. The
security forces surrounded the village, told the villagers to stay
in their houses since there were terrorists in the village and said
that they intended to search it in the morning.
108. At about 7-8.00 hours in the morning, there was another clash
behind the village where a terrorist was hiding. He did not see
what happened. Houses were burned as they caught fire from sparks
in the clashes in the evening and the next day. These included the
houses of Üzeyir and the applicant. He did not see any houses being
set on fire by soldiers or village guards. In the morning, the
villagers were all gathered in the garden of the school, with the
men on one side and the women on the other. They were kept there
7-8 hours. No-one had been blindfolded.
109. There were many village guards around the village. He did not
know them or where they were from.
110. He had last seen Üzeyir Kurt two days before the incident.
Since the incident he had not seen him. He did not know what had
happened to Üzeyir. He had not seen anything. On 24 November 1994,
he was taken into custody with eleven others. He had been taken to
stand near the security forces vehicles. They were taken to Bismil
in the evening about 17.00 hours and kept for two nights before
being released. He spent a third night in Bismil and then returned
to the village. There were no soldiers there then. All the
villagers were packing their belongings: they told him they were
leaving. When he saw that they were all leaving for Bismil, he
decided to leave also. A few families remained in the village but
they moved to Bismil later and the village was empty. After this,
the houses were all burned down by someone.
111. He had no information concerning the disappearance of Üzeyir
Kurt. He had not seen him and did not know what had happened to
him. Some said that he had gone to the terrorists or had gone
away, others said that the State had taken him. Üzeyir had not had
any problems with the State and had not been taken into custody
before. He had never seen any PKK sympathisers or militants visit
Üzeyir.
112. As regarded his statements to the gendarmerie, he had made
them of his own free will. He had not told them that he guessed
that Üzeyir had been kidnapped by the PKK. He did not know. He
had asked the gendarme where Üzeyir was, but they said they had not
seen him and that he had probably joined the terrorists. He guessed
that the PKK had taken Üzeyir but he did not know. He had not seen
him with the soldiers, village guards or terrorists.
113. He had accompanied the applicant on the first occasion to the
notary as she had asked him. She had said that her son had
disappeared three years ago, that she was fed up and now she wanted
to give up the case. The gendarmes were not pressurising her but
she was pulled from all sides. There were no gendarmes when they
went to the notary. He had not gone inside when she made the
statement, he had gone to pray in the mosque.
(3) Ridvan Yildirim
114. The witness was born in 1966. In November 1993 he was one of
the two Bismil public prosecutors. He knew the village of Agilli
and had been there once concerning another criminal case four to
five months later. On the day of the clash he was in Diyarbakir
and it was the next day he learned of what happened from his fellow
prosecutor who had carried out the three autopsies on the persons
killed in the clash. When he asked about the circumstances of the
incident, he noticed that everyone's morale was low. The gendarmes
returned from the operation in low spirits because of the death of
the non-commissioned officer.
115. He met the applicant four times. The first time she made a
petition requesting information about her son's whereabouts. He
told her to contact the public prosecutor at the State Security
Court since his office determined the length of custody. She
returned the same evening, with the comment on the bottom of her
petition that her son had not been taken into custody. Considering
the possibility that her son had been taken into custody by the
Bismil gendarmerie which might not have informed the State Security
Court, he wrote on another petition that information should be
given to the applicant and sent it over to the gendarmerie. He did
these things to help allay the applicant's anxiety - there was
nothing else that he could do. The document was returned with a
comment to the effect that terrorists were suspected of kidnapping
the applicant's son. This was recorded as a crime in the
preliminary investigation books and an investigation was opened by
the public prosecutor's office. A letter was sent to the
gendarmerie asking on what evidence they had based their assessment
of a kidnapping. The gendarmes sent back the same response. He was
not aware that Captain Izzet Cural who signed the responses to the
enquiries was the commander of the operation in the village. The
prosecutor's office proceeded to conduct an investigation during
which three witnesses stated on oath in statements to the
gendarmerie that the applicant's son had been kidnapped by the PKK
and taken to the mountains. Based on these declarations, and having
regard to the opinion that some of the relatives of the Kurt family
were in the mountains, the prosecutor's office came to the
conclusion that the applicant's son had been kidnapped by the PKK
and on 21 March 1994 they took a decision of lack of jurisdiction
and the case was sent to the State Security Court.
116. As regarded the finding in the decision of lack of
jurisdiction that PKK members escaping from the village had taken
the applicant's son, the witness explained that in his opinion the
three terrorists killed by the security forces had gone to Agilli
village with the intention of establishing contact with others. In
his experience, in almost every village in every house there was a
good chance that a shelter for hiding terrorists existed. He also
referred to the fact that a member of the applicant's family had
died under torture and citizens in the area tended to overreact to
actions by the security forces by going to the mountains. The
witness' memorandum of 19 November 1994 was based on the same
material as the decision of lack of jurisdiction. It was because of
the allegations of kidnapping that the case was recorded in the
preliminary investigation books, not because of allegations that
the applicant's son was in custody. Only in the first two
interviews did the applicant tell him that her son could have been
taken into custody and that therefore she was asking for his help.
117. Villagers were unable to report what they saw concerning
the terrorists or to state that the PKK had kidnapped someone.
118. The witness saw the applicant on two further occasions in
order to clarify her petition. She was summoned via the muhtar in
order that she would not feel pressurised. He listened to her
himself. He called her to make a statement following the request of
the Ministry of Justice to clarify her real demands. He did not
regard her statement as calling into question his decision on lack
of jurisdiction. He sent the statement to the Ministry and did not
send a copy to the State Security Court. It was the State Security
Court which had the responsibility for investigating the matter: if
it decided that the matter fell outside its jurisdiction it would
remit it to Bismil public prosecutors or to the District
Administrative Council.
(4) Izzet Cural
119. The witness was born in 1962. In 1993, he was commander of the
Bismil district gendarmerie. The PKK terrorists were active in the
region of Agilli village. Intelligence information was received
that an unspecified number of terrorists were going to Agilli
village to gather the villagers and conduct activities. An
operation was planned with about 150 soldiers. He proposed the plan
for the operation, which received approval from his superior and
the operation was conducted under his command.
120. The operation started at about 19.00 hours. One terrorist was
killed that evening and two others the next morning. He was present
when this occurred. At the time of the first clash, the security
forces were in key positions round the village and had partially
entered the village. During the night, the soldiers, who were
appropriately equipped stayed outside the village. No village guard
would have been able to enter the village without the risk of being
fired on by soldiers or terrorists.
121. Pursuant to his orders, village guards (about 10-20) were used
in the operation to guard the vehicles which were stuck in mud on
the road leading to the village. They were present outside the
village throughout the operation. They were not directly involved
otherwise. No records would be made of a passive role of such a
kind. Generally village guards were used in operations in the open
country, and to ensure the security outside but not inside other
villages. In his experience, village guards had not been used to
detain people.
122. The villagers were told to stay in their houses when the
firing first started. They were later gathered in the school for
their protection. He did not recall if all the houses or only some
houses were searched. Some houses near the clashes with the
terrorists were burned. He was there throughout the operation, save
for a period of 1-2 hours when he went to notify the family of the
non-commissioned officer who had been killed. He received no report
during the operation that any villager had escaped from custody in
the village.
123. He became aware of the allegations that Üzeyir Kurt had been
detained after the applicant's petition to the public prosecutor.
In response, he ordered the appropriate subordinates to gather
information. They reported to him orally that they could not obtain
any information or concrete evidence regarding this person. He
checked their own custody ledger personally and contacted other
units to have their ledgers checked. They verified the detainees
whom they had in custody. This did not require much time. He also
spoke to his subordinates, taking their statements informally and
orally.
124. As regards his written comments to the effect that Üzeyir Kurt
had been kidnapped, he explained that the PKK used certain tactics
to oppress and use the locals to their advantage, seeking to create
enmity between the locals and the security forces. There were many
examples of the PKK kidnapping people from inside villages, from
their homes. Even if villagers saw a person kidnapped, they would
not say it since it would mean certain death. He thought that the
applicant would share this fear. In respect of the present
incident, where there were many soldiers present in the village at
the time, he suggested that when it was dark, the village being
unlit, terrorists wearing military clothes could have slipped in.
It was not possible with 150 soldiers, which was not a great
number, to entirely surround the village - the way in which the
tractor with the terrorists entered the village illustrated that.
Someone, disguised in military clothing, or taking advantage of
darkness, could also have slipped out of the village: Üzeyir Kurt
could have met up with terrorists while he was escaping. There were
many scenarios. He also referred to the indicator that about 15
people from the village had joined the PKK, including some of
Üzeyir Kurt's relatives.
125. A month or so after the incident, a shelter was discovered
south of the village following information from someone who
confessed: this person, Ismail, said that Üzeyir Kurt knew the
location of this shelter, which had existed a long time before the
incident, and brought food to the terrorists when they stayed
there. This was one of the elements which led them to the view that
it was a strong possibility that Üzeyir Kurt had gone to the PKK:
but this was just one of the possibilities.
(5) Muharram Kupeli
126. The witness was born in 1961. During the events in
November 1993 he had been in the Bismil district working as
commander of the commando unit. The village of Agilli was within
his jurisdiction. He knew the muhtar well and had gone there from
time to time in connection with his various administrative duties.
127. There were problems with terrorists in and around Agilli, in
fact in the whole of his region. Terrorists used to threaten the
villagers, taking supplies, money and food from them and abducting
young people to the mountains.
128. On 23 November 1993, the security forces had received
information that an unspecified number of terrorists were to go to
Agilli to collect money and food. His unit commander, Captain
Cural, organised an operation to take place in the evening. His
commando unit was located in the same building as the district
gendarmerie. The operation used about 150 members of the security
forces. A major portion of his own unit of 170 men were used and
some men from the district gendarmerie.
129. At the commencement of the operation, the security forces
parked their vehicles about two kilometres from the village and
surrounded the village with men from the commando unit to ensure
security and prevent anyone entering or leaving. They then entered
the village to assess the situation. Once in the village, the
security forces split into two groups, one commanded by the captain
and the other by himself. He went to a house where they thought the
terrorists would meet, while the captain went to a house 20-30
metres away. While he was conducting a search in a house, he heard
firing and ran to rejoin the captain. He found that their non-
commissioned officer had been shot dead and that the soldiers were
firing at a terrorist who was trying to escape. This was at about
19.00-19.30 hours. The terrorists had entered the village on a
tractor: he did not think that there could have been more than three.
130. They began searching houses along the escape route of fleeing
terrorists but due, to the fact that it was dark and wishing to
avoid further casualties, they decided to maintain their positions
round the village and wait until morning. He did not sleep and the
soldiers in the fields around the village were not meant to sleep.
Shortly before dawn, they started the search again to locate the
terrorists whom they knew to be in the village. They told the
villagers to gather in the schoolyard, then they divided into
groups and continued the search, in the presence of the relevant
house owner. He was working towards the west side of the first
incident and the captain was searching on the south side. At one
point he heard firing to the south. He went there and saw a hay
barn burning with two terrorists dead on the ground.
131. They were in the village over a period of two days and
searched every house. The villagers were kept in the schoolyard
during the day. Some of the houses burned down during the clashes,
including Üzeyir Kurt's house which burned during the second
incident. No houses were burned by the security forces.
132. The witness had not made the incident report or drawn the map.
He was the commander of a commando unit and was not involved with
judicial matters. The station commander would normally have done
it, but as this person had been shot someone else must have done
it. Even though he was responsible for the soldiers, he had not
been consulted about the drawing up of the report. He did not
remember whether he had been asked anything about the operation or
not.
133. He had become aware of the allegation of the disappearance of
Üzeyir Kurt 1 week to 10 days after the incident when the applicant
came to petition the public prosecutor's office which sent the
petition on to the district gendarmerie. It was the district
gendarmerie who answered the petition, and while he heard about it
in the station, he was not informed directly or formally requested
to give information. The district gendarmerie commander had asked
if Üzeyir was still in custody, but it was confirmed that he had
not been detained. People taken into custody are not his
responsibility. Any persons whom he is ordered to take into
custody are delivered to the district gendarmerie command.
134. Some villagers had been taken into custody during the
operation because their names had been found on documents carried
by the dead terrorists and because there was intelligence
information.
135. On the second day village guards had come from the surrounding
villages and had guarded the military vehicles which could not be
moved because of the bad weather. Perhaps they had been summoned by
the district commander, perhaps some had come because they heard
about the death of their local station commander. They would not
have come into the village.
136. The whole operation had lasted from 23 November in the
evening until sunset on 25 November, when he left with his men.
137. He remembered an occasion when the applicant had come to the
gendarmerie and she had asked him where her son was and if he had
taken him into custody. Based on discussions with his colleagues,
he told her that her son might have gone to the mountains. While
they had searched every house, the PKK-built shelters were very
hard to find and he would not say that there were no terrorists
left in the village after three had been shot. To his knowledge
however there had only been three. He was certain that, after the
security forces left, the PKK would have returned to the village to
recruit people and turn the incident to their advantage.
138. On the second day of the operation, he was told that a
villager Ismail Sari had told the captain that there were other
terrorists in the village and that there was a shelter. They
searched for the shelter but could not find it. Because he was
afraid, Sari did not want to remain in the village; he wanted to go
to a village with village guards and to become a shepherd. The
captain sent him to such a village but he apparently could not
reach any agreement and left. One and a half or two months later,
a terrorist, Ismail, who had been caught in the Savur district,
told them of a shelter and showed them the location in a field to
the west of the village. The terrorist said that this had been
built and used by Üzeyir Kurt.
(6) Mehmet Karabulut
139. The witness said that he had been born in 1933 and had lived
in Agilli at the time of the incident in November 1993. On
23 November 1993 his wife had been taken ill and he had accompanied
her to hospital in Diyarbakir, returning that evening. The
incident took place that evening with a clash between soldiers and
PKK terrorists.
140. He knew Üzeyir Kurt. He had seen him for the last time at the
house of Üzeyir's uncle and aunt, Ali and Mevlüde. They had been
sitting together in Ali Kurt's house on the evening of the incident
when they heard the clash. Because of the clash he and others had
had to stay at Ali's house and around 2.30-3.00 hours he had gone
to bed in the same room as Üzeyir and Musa. After half an hour or
an hour he got up and saw that Üzeyir Kurt had gone. He had never
seen him since. They had been sleeping in the same room, but Üzeyir
was not anywhere in the house. He had never been asked by anyone
about the whereabouts of Üzeyir and did not know what had happened
to him.
141. On the second day of the incident the villagers were collected
together in the schoolyard and there was another small clash. He
had been one of the 12 people, including the muhtar, who had been
taken into custody around 6 or 7 in the evening. Üzeyir was not
amongst them. He had stayed two days and two nights in custody.
On his release he had returned to the village; there were rumours
that Üzeyir had disappeared. Since he found his house had been
destroyed and there was nothing left in the village, he went to
Bismil. The PKK used to come from time to time but no-one had been
kidnapped.
C. Relevant domestic law and practice
142. The parties have made no separate, detailed submissions with
regard to domestic law and practice applicable in this case. The
Commission has incorporated relevant extracts derived from, inter
alia, its summary of the relevant domestic law and practice as
submitted by the parties in the case of Aksoy v. Turkey
(No. 21987/93, Comm. Rep. 23.10.95 pending before the Court).
143. The Government submit that the following provisions are
relevant.
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject
to judicial review ...
The Administration shall be liable for damage caused by
its own acts and measures."
144. This provision is not subject to any restrictions even in a
state of emergency or war. The latter requirement of the provision
does not necessarily require proof of the existence of any fault on
the part of the Administration, whose liability is of an absolute,
objective nature, based on a theory of "social risk". Thus the
Administration may indemnify people who have suffered damage from
acts committed by unknown or terrorist authors when the State may
be said to have failed
in its duty to maintain public order and safety, or in its duty to
safeguard individual life and property.
145. The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of
the powers conferred by this law are to be brought against the
Administration before the administrative courts."
146. The Turkish Criminal Code makes it a criminal offence
- to deprive someone unlawfully of his or her liberty (Article
179 generally, Article 181 in respect of civil servants),
- to issue threats (Article 191),
- to subject someone to torture or ill-treatment (Articles 243
and 245)
147. 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.
148. Generally, if the alleged author of a crime is a State
official or civil servant, permission to prosecute must be obtained
from local administrative councils (the Executive Committee of the
Provincial Assembly). The local council decisions may be appealed
to the Council of State; a refusal to prosecute is subject to an
automatic appeal of this kind. If the offender is a member of the
armed forces, he would fall under the jurisdiction of the military
courts and would be tried in accordance with the provisions of
Article 152 of the Military Criminal Code.
149. 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 Civil Code, an injured person may file a claim
for compensation against an alleged perpetrator, who had caused
damage in an unlawful manner whether wilfully, negligently or
imprudently. Pecuniary loss may be compensated by the civil courts
pursuant to Article 46 and non-pecuniary or moral damages awarded
under Article 47.
150. Proceedings against the Administration may be brought before
the administrative courts, whose proceedings are in writing.
151. The applicant points to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme. Decree
285 modifies the application of Law 3713, the Anti-Terror Law
(1981), in those areas which are subject to the state of emergency,
with the effect that the decision to prosecute members of the
security forces is removed from the public prosecutor and conferred
on local administrative councils. These councils are made up of
civil servants and have been criticised for their lack of legal
knowledge, as well as for being easily influenced by the Regional
Governor or Provincial Governors, who also head the security
forces.
D. Relevant international material
152. The phenomenon of forced or involuntary disappearance has been
the concern of a number of other international judicial and human
rights investigatory bodies. Extracts and summaries of materials
from the Inter-American system and the United Nations are included
in Annex II to the Report.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
153. The Commission has declared admissible the applicant's
complaints that her son was taken into custody and has disappeared
and that she has no remedy available to her in respect of this.
B. Points at issue
154. The points at issue in the present case are as follows:
- whether there is a valid application pursuant to Article 25
(Art. 25) of the Convention;
- whether there has been a violation of Article 2 (Art. 2)
and/or Article 3 (Art. 3) of the Convention in respect of the
applicant's son;
- whether there has been a violation of Article 5 (Art. 5) of
the Convention by reason of the circumstances in which the
applicant's son has disappeared;
- whether there has been a violation of Article 3 (Art. 3) of
the Convention in respect of the applicant;
- whether there has been a violation of Article 13 (Art. 13)
of the Convention by reason of the applicant's alleged lack of
effective remedy before a national authority in respect of her
complaints;
- whether there has been a violation of Article 14 (Art. 14)
of the Convention;
- whether there has been a violation of Article 18 (Art. 18)
of the Convention;
- whether Turkey has failed to comply with its obligations
under Article 25 para. 1 (Art. 25-1) of the Convention.
C. Concerning the existence of a valid application
155. There are conflicting written statements fingerprinted by the
applicant concerning her application to the Commission. There are
two notarised statements and two identical statements of 9 December
1994, which respectively state that her petition to the Commission
is being misused and manipulated for propaganda purposes, that it
does not reflect her true intention which is to obtain help in
locating her son and that she revokes all petitions. In a further,
subsequent statement of 2 December 1995, it is stated that the
applicant wishes to pursue her case.
156. Before the Delegates, the applicant stated that she wanted to
pursue her case. While the Government submit that the tenor of the
applicant's testimony was that in fact she had not intended, and
did not intend, to complain against the State but to locate her
son, the Commission considers that, in view of her oral
statements, there is no ground for finding that she did not freely
go to the Human Rights Association or that the basis of the
application submitted on her behalf to the Commission - that her
son disappeared while in the custody of the security forces and
that she holds the State authorities accountable - does not validly
reflect her complaints.
157. The Commission finds that the application before it is a
genuine and valid exercise of the applicant's right of individual
petition under Article 25 (Art. 25) of the Convention and that she
does not wish to withdraw it. As regards the circumstances which
led to the contradictory statements being made as to the
applicant's intentions, the Commission has examined these elements
in the context of the allegations of intimidation and interference
with the right of individual petition contrary to Article 25 para.
1 (Art. 25-1) in fine.
Decision
158. The Commission decides, unanimously, to pursue the examination
of the application introduced on behalf of the applicant.
D. The evaluation of the evidence
159. Before dealing with the applicant's allegations under specific
Articles of the Convention, the Commission considers it appropriate
first to assess the evidence and attempt to establish the facts,
pursuant to Article 28 para. 1 (a) (Art. 28-1-a) of the Convention.
It would make a number of preliminary observations in this respect:
i. There have been no findings of fact made by domestic courts
as regards the subject-matter of the applicant's complaints.
The Commission has accordingly based its findings on the
evidence given orally before its Delegates or submitted in
writing in the course of the proceedings; in this assessment
the 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 H.R., Ireland v. the United Kingdom judgment of 18
January 1978, Series A no. 25, p. 65, para. 161).
ii. In relation to the oral evidence, the Commission has been
aware of the difficulties attached to assessing evidence
obtained orally through interpreters (in some cases via
Kurdish and Turkish into English): it has therefore paid
careful and cautious attention to the meaning and significance
which should be attributed to the statements made by witnesses
appearing before its Delegates;
iii. The Government have adverted to the vulnerable position
of villagers from the South-East and drawn attention to the
testimony of the two gendarme witnesses before the
Commission's Delegates as regards the reluctance, even fear,
of villagers admitting to any information about the PKK. The
Commission, in light of its own increasing experience of the
pressure exerted on villagers, who face often conflicting
demands from terrorists and State authorities, sees no reason
to doubt that this factor is a relevant concern and has taken
it into account in its assessment of the evidence;
iv. In a case where there are contradictory and conflicting
factual accounts of events, the Commission particularly
regrets the absence of a thorough domestic judicial
examination or other independent investigation of the events
in question. It is 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 13 witnesses were summoned to appear, only
6 in fact gave evidence before the Commission's Delegates (1
witness was released from the necessity of attending: no
explanation for the absence of the others was forthcoming).
The Commission has therefore been faced with the difficult
task of determining events in the absence of potentially
significant testimony. It acknowledges the unsatisfactory
nature of these elements which highlights forcefully the
importance of Contracting States' primary undertaking in
Article 1 (Art. 1) to secure the rights guaranteed under the
Convention, including the provision of effective remedies as
under Article 13 (Art. 13).
1. the operation in Agilli village 23-25 November 1993
160. The evidence before the Commission, derived from documents and
oral evidence of two gendarme officers and two villagers, Arap Kurt
and the applicant, is largely consistent as regards the general
course of events during the operation.
161. Following the receipt of intelligence information that members
of the PKK were to visit Agilli to spread propaganda and collect
money, the district gendarme commander, Captain Cural, proposed an
operation at the village. While the incident report of 24 November
1993 makes reference to intelligence relating to "some three
members" as does the letter dated 19 November 1994 from Ridvan
Yildirim, Bismil public prosecutor, the report of Colonel Esref
Hatipoglu dated 8 December 1994, refers to intelligence about "a
group" of terrorists and the oral evidence of the gendarme officers
was that to their recollection the number of terrorists was
unspecified in their information. The Commission considers that it
cannot be excluded that the reference to "three" terrorists in some
documents is based on hindsight, since three were in fact killed in
the clashes in the village. It does not therefore consider it
established that the security forces were in fact expecting only
three terrorists to be present.
162. On 23 November 1993, at about 19.00 hours, a force commanded
by Captain Cural commenced an operation at Agilli, leaving their
vehicles at some two kilometres from the village. Under Captain
Cural's direction, 10-20 village guards were used to guard the
vehicles. There were approximately 150 gendarmes, some from the
district gendarmerie and the majority of the commando unit under
the command of Lieutenant Kupeli. The security forces surrounded
the village. Units, including Captain Cural and Lieutenant Kupeli,
entered the village to conduct a search. Shortly after the search
began, a tractor with three suspected terrorists, entered the
village unseen. On being seen inside the village, it was challenged
and firing broke out. A non-commissioned officer, Mehmet Uysal,
commander of the local Tepe station, was killed, as was one of the
terrorist suspects. The two other terrorists ran into the village.
Fires were started by, inter alia, tracer bullets causing the
tractor, haystacks and some houses to burn. Following the clash,
Captain Cural went to the house of the muhtar, Arap Kurt, and told
him that he was to accompany them as they carried out their
searches. The security forces pursued the two suspects, searching
houses along their escape route for a short while; then, due to the
darkness and risk of further casualties, they withdrew to positions
surrounding the village where they were under orders to keep watch.
The villagers stayed in their houses during the shooting. The
applicant at this time was at her house.
163. On the morning of 24 November 1993, the security forces
commenced searching the village. As part of this process, they
gathered all the villagers in the schoolyard, the men on one side
and the women on the other. The gendarmes began to conduct searches
of the houses. Firing broke out around the barn of Mahmut Cakmak.
Two terrorist suspects who had entered on the tractor, Mahmut
Cakmak and another terrorist suspect, code-named "Siar", were
killed. During this confrontation, more houses were damaged by
fire. The houses of Üzeyir Kurt and the applicant were amongst
those destroyed during the course of the operation.
164. The soldiers continued the searches of the houses in the
presence of the respective owners. During the course of the day,
twelve villagers, including Arap Kurt and Mehmet Karabulut, were
taken aside. They were held for a time near the vehicles and
towards the evening were taken to Bismil. After questioning, the
twelve villagers were released on 26 November 1993. Also, on the
morning of 24 November 1993, village guards arrived from Tepecik,
having heard news of the death of the Sergeant of their local
station and with the intention of taking his body. At night the
remaining villagers were allowed to return to their homes. On
25 November 1993 the villagers were again gathered in the morning
in the schoolyard. Gendarmes remained in the village until late
that day and then they left.
2. the alleged taking into custody of the applicant's son
Üzeyir Kurt
165. It is not contested that Üzeyir Kurt was present in the
village of Agilli on the evening of 23 November 1993. According to
the written statement of the applicant and the oral testimony of
Mehmut Karabulut, he was at the house of his uncle and aunt, Ali
and Mevlüde, at the time the shooting started between the security
forces and alleged PKK suspects - this was 19.00-19.30 hours
according to the general testimony of witnesses. He and the others
in the house were obliged to remain where they were because of the
clash between the PKK and the security forces.
166. Mehmet Karabulut stated however that by 02.30-03.00 hours on
24 November, Üzeyir was no longer present in the room in Ali's
house where both had been sleeping. It was his view that Üzeyir had
no longer been in the house from that time.
167. When the villagers were gathered in the school by the security
forces on the morning of 24 November 1993, Üzeyir Kurt was not
amongst them (statements by his brother Musa and his sister Hazal
Karakoç, taken by gendarmes).
168. Statements concerning the whereabouts of Üzeyir Kurt after the
night of 23-24 November 1993 include the written statement by Aynur
Kurt, his daughter, that when the security forces arrived to
evacuate the house her father hid himself while the others went to
the school. This appears to refer to the morning of 24 November
1993 when the gendarmes gathered the people together: however the
time is unspecified and is preceded by a statement that she was
sitting at home with her father, again at an unspecified time.
There is also a written statement by the villager Hasan Kiliç that
Üzeyir Kurt arrived in his house towards midnight at the beginning
of 24 November 1994 (presumably an error for 1993) as the security
forces were carrying out a search of the village and just before a
first lieutenant and his men arrived at the house. According to
this statement, Üzeyir left with his mother when she arrived at the
house in the morning.
169. The applicant in her written statements has however
consistently stated that her son was with the soldiers after the
villagers had been gathered during the day in the schoolyard. The
last time she saw him was when she took him cigarettes and clothing
(statement of 24 December 1993 to the HRA, statement of 19 November
1994 to Bismil public prosecutor and statement of 2 December 1995).
Other statements refer more briefly to his being in the custody of
the soldiers (notarised statement of 6 January 1995) or with the
soldiers (statement of 7 December 1994 to the gendarmes) and that
the soldiers took him and left with him (statement of 25 January
1995 to Chief Prosecutor at Diyarbakir).
170. As regards the applicant's oral evidence, insofar as it
concerned the allegation about her son, it is largely consistent
with her original statement of 24 December 1993 taken by the HRA.
The Government have pointed out that allegations in that statement
with regard to the slaughtering of the village's livestock and ill-
treating of the men in the village have been shown to be false, the
applicant denying in later statements and orally that this
occurred. The Commission has had cause in a previous case to
criticise the accuracy of statements taken by the HRA (Mentes v.
Turkey, No. 23186/93 Comm. Rep. 7.3.96 para. 145). There appears to
be a tendency to embroider allegations or, in seeking to draw out
applicants' complaints, insufficient care appears to be taken to
avoid suggesting to applicants possible details which are then
adopted by applicants or taken in the wrong context. It appears,
for example, from the oral testimony of the applicant that while
the security forces did not slaughter livestock during the
operation in November 1993 there had been an earlier occasion on
which the applicant recalled that the soldiers had caught and
killed chickens. While treating the statement with caution
therefore and with careful reference to other sources of evidence,
the Commission nonetheless considers that it has evidential value
insofar as it is corroborated by the applicant's account to the
Delegates.
171. The Commission notes that the applicant in her oral evidence
specified with some detail the circumstances in which her son was
taken into custody and held by the soldiers. It appears that she
did not witness the taking into custody herself but was present in
the schoolyard when the soldiers asked Aynur where her father was.
She stated that Üzeyir's aunt and one of her sons had been present
when the soldiers went to the aunt's house and took Üzeyir out. She
herself then saw her son in front of Hasan Kiliç's house on the
morning of 25 November 1993 when she went to take him cigarettes,
then a jacket. He was surrounded by soldiers and village guards
and, when asked, she was clear that he was in their custody and
that his face was black and blue because of ill-treatment by the
security forces.
172. The Government have submitted that this oral testimony is
characterised by inconsistencies and contradictions, both standing
alone and in conjunction with other evidence. For example, the
applicant said that the people in the schoolyard were blindfolded
whereas Arap Kurt, the muhtar, said that they were not. Her story
of finding cigarettes and a jacket is not credible, since on her
account their houses had been burned and in the prevailing security
situation she could hardly have wandered around the village
obtaining what she wanted from other houses. The Government also
refer to the applicant's repeated accusations against the village
guards and her apparent belief that Ismail Sari was somehow
connected with her son's disappearance. It is, the Government
argue, hardly possible that village guards could take any action
against a person whom the security forces were allegedly detaining
and the other available evidence indicates that her accusations in
relation to Ismail Sari are completely misconceived.
173. The Commission notes that the applicant's reference to
blindfolding is confused: she appears to state first in general
terms that villagers were blindfolded, then that only the young
people were blindfolded. She also refers to young people being
taken away. It is possible that this is a reference to the twelve
persons who were removed from the schoolyard and taken into custody
for questioning in Bismil. Having regard to the substantiated
allegations made as to the use of blindfolds on persons taken into
custody (see eg. Aydin v. Turkey No. 23178/94 Comm. Rep. 7.3.94 and
Aksoy v. Turkey, No. 21987/93 Comm. Rep. 23.10.95 pending before
the Court), the Commission does not find this element of the
applicant's oral testimony is of such a nature as to detract from
her credibility.
174. As regards the applicant's account of finding cigarettes and
a jacket, the Commission sees no particular significance in her
omission to specify from where she obtained the jacket: the
question was never directly put to her. Further, if as appears from
her oral evidence this took place on the morning of 25 November
1993, no clash had taken place since the previous morning when two
terrorists were killed and there is nothing in the gendarmes'
testimony to indicate that villagers were not able, if they wished,
to move briefly from house to house in the period in the early
morning before they were gathered for the day in the schoolyard.
The officer, Captain Cural, when agreeing that it was dangerous for
people to go out of their houses expressly referred back to what he
had said earlier: previously his evidence as regarded danger had
related to the first night in the village, when there were known to
be terrorists in hiding and the soldiers surrounding the village
were waiting till morning to embark on the search.
175. In relation to the village guards, the Commission notes that
Captain Cural accepted that 10-20 were present in the vicinity of
the village during the operation. He insisted that their role was
to guard the vehicles outside the village and that they would not
have entered the village. The other officer, Lieutenant Kupeli,
also stated that village guards would not have entered the village,
but also mentioned the possibility that some village guards might
have arrived when they heard that the commander of their local
station had been killed. The statement of Semsettin Günes accords
with this, to the effect that he and his village guards came to the
village on 24 November 1993 to fetch the body of the deceased non-
commissioned officer. Arap Kurt, the mayor, who was at the village
until he was taken to Bismil in the afternoon or evening of 24
November stated in his oral evidence that there were many village
guards present. The Commission does not find it excluded on the
evidence therefore that village guards were in the village at some
time during the operation and that the apparent operational
practice whereby the role of village guards should be restricted to
areas outside villages other than their own was not in fact
scrupulously enforced by the security forces who were occupied on
other duties.
176. That said, the Commission does not consider that the
applicant's complaints can be interpreted as a specific allegation
that it was the village guards themselves who took her son into
custody and out of the village rather than the security forces.
From her oral testimony it appeared that she had particular
suspicions concerning the village guards - reflecting the fact that
their role can attract a certain unpopularity and notoriety in the
area of South-Eastern Turkey - but her evidence was that when she
saw him her son was surrounded by village guards and soldiers and
that she did not see who took him away. Her statements with regard
to Ismail Sari were based on the fact that he left the village at
the same time that her son disappeared and that she guessed, or
hoped, that he would know or have seen something of her son. This
does not contradict the evidence, written and oral of other
witnesses, from which it appears that Ismail Sari gave assistance
to the gendarmes in the village and, fearing repercussions, left
the village with the gendarmes and stayed near the station for a
while before seeking employment, as a shepherd or village guard,
somewhere he considered to be safer.
177. The Commission finds therefore that the applicant's evidence
to the Commission is not significantly flawed in the manner alleged
by the Government. It considers that the core of her complaints
with regard to her son has been consistently maintained from the
time of her petitions made shortly after the incident to the time
of her appearance to give evidence before the Delegates. The
principal obstacle to accepting her account of the circumstances in
which she saw her son in custody is the written statement of Hasan
Kiliç, the owner of the house in which her son was allegedly held
over the night of 24-25 November 1993. The Commission regrets that,
while Hasan Kiliç was summoned to give evidence before the
Delegates, he failed to appear. His statement taken by gendarmes
contradicts the applicant's account in fundamental areas. It
appears to time the arrival of Üzeyir in his house on the night of
the first clash rather than on the second night, after the
terrorists were killed. It also states that his presence there was
voluntary and coincidental to that of the soldiers and that he left
with the applicant the following morning. The statement however
also conflicts with the evidence of other witnesses. The gendarme
officers denied that they or any other officer took shelter in any
villager's house on the first night. Their evidence was also that
while a search began on that night it was abandoned due to the risk
posed by the darkness, whereas the statement of Hasan Kiliç gives
the impression that the soldiers arrived at his house, shortly
after midnight as part of an ongoing search situation. Mehmet
Karabulut in his oral evidence was categorical that Üzeyir Kurt was
present in Ali's house until an hour or so after 2.30-3.00 hours on
24 November, whereas Hasan Kiliç's statement places Üzeyir Kurt as
arriving at his house at midnight. It is perhaps possible to
reconcile the timing if Hasan Kiliç's statement has cited the date
of 24 November in error for 25 November 1993 - the year is clearly
wrongly written as 1994. On that basis, the accounts of the
applicant and Hasan Kiliç would tally insofar as her son was in the
house overnight in the company of soldiers. However this involves
speculation and does not reconcile in any event Hasan Kiliç's
denial that Üzeyir Kurt was under any constraint and left his house
freely with the applicant. The applicant's representatives argue
that since the applicant spoke to her son outside Hasan Kiliç's
house when Hasan was not present, Hasan Kiliç may only have assumed
when Üzeyir Kurt was taken away that he had left with his mother:
but this again is an interpretation of the statement which is
speculative in the absence of explanation from the witness himself.
In conclusion, the Commission finds that the statement of Hasan
Kiliç presents indications of inaccuracies and is open to differing
interpretations. Where his written statement appears to conflict
with the account of the applicant who gave oral evidence before the
Commission's Delegates, the Commission prefers the evidence of the
applicant, who was found to by the Delegates to be credible and
convincing.
178. The Commission finds that it is her genuine and honestly-held
belief that her son was taken into custody by the security forces
after which he "disappeared". Taking into consideration the
possible impact on villagers' statements of their fear of PKK
reprisals, the Commission has noted the applicant's reply to the
Government Agent at the taking of evidence before the Delegates: if
her son had gone to the mountains, why would she be asking the
State for him and what right would she have to do so? Given that in
the same testimony, the applicant evinced the opinion that people
who went to the mountains should be shot, the Commission finds no
basis for inferring that the applicant's testimony was influenced
by a reluctance to accord blame to the PKK or to acknowledge their
involvement.
179. Consequently, the Commission accepts her evidence that she saw
him surrounded by soldiers and village guards outside Hasan Kiliç's
house on the morning of 25 November 1993. It finds that this was
the last time he was seen by any member of his family or person
from the village.
3. other aspects of the conduct of the operation
180. In the statement of 24 December 1993 taken by the HRA, it is
stated that the soldiers during the raid ill-treated the men,
settled in the houses, slaughtered livestock and looted villagers'
possessions. The applicant in her oral testimony stated that the
villagers were not ill-treated and that the soldiers did not touch
the animals. She made no allegation of looting. The Commission
accepts the oral evidence of the applicant (see para. 170 above).
181. As regards allegations that houses in the village were burned
by the security forces, the Commission notes that the gendarme
witnesses before the Delegates described village houses burning as
a result of sparks from the clashes between the gendarmes and
terrorists. This was supported by Arap Kurt, who stated that he did
not see soldiers deliberately burning the houses. The applicant
stated that about ten houses were burned during the operation by
the soldiers but she did not witness herself her house or that of
her son being set fire to. There is no express complaint about this
matter by or on behalf of the applicant, whose main concern is the
disappearance of her son. The Commission therefore finds it
unnecessary to proceed to any findings as to the cause of the
burning of the applicant's house. Similarly, as regards the
evacuation of the village after the soldiers left, while the
applicant said that a soldier told them to leave, Arap Kurt stated
that the villagers started to leave after the operation because
their houses were burned, a few remaining but leaving later on. The
Commission finds it unnecessary to make any finding as to the role,
if any, played by the security forces in the decision of the
villagers to abandon the village.
182. On the basis of its findings above, the Commission will now
proceed to examine the applicant's complaints under the various
Articles of the Convention.
E. As regards the disappearance of the applicant's son
183. The applicant has invoked a number of provisions in respect
of the disappearance of her son.
1. As regards Article 2 (Art. 2) of the Convention
184. Article 2 (Art. 2) of the Convention provides:
"1. Everyone's right to life shall be protected by law. No
one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of
quelling a riot or insurrection."
185. The applicant submits that the State is responsible for the
fate of her son, who was last seen in the hands of soldiers and who
on all accounts disappeared during a military operation conducted
by security forces which had assumed control of his village. They
have failed however to provide a plausible explanation for his
"disappearance" and there is accordingly a serious violation of
Article 2 (Art. 2). Further the applicant submits that the lack of
accountability of the security forces in the conduct of their
operations represents a threat to the right to life. In this
context, she points to clear deficiencies in the control and
conduct of the military operation, in particular, the lack of
proper records of military operations as regards the participation
of village guards. In addition, the absence of an effective
official investigation into the disappearance constitutes a
separate violation of the State's obligation under Article 2 (Art.
2) to provide an effective system of protection for the right to
life.
186. The Government deny that the applicant's son was detained by
security forces and contend that the applicant's allegations that
his "disappearance" occurred in custody is unsubstantiated. They
further submit that the State authorities have done their best to
find out his whereabouts.
187. The Commission recalls that, while it has found that the
applicant's son was last seen in the custody of security forces on
25 November 1993, there is no evidence as regards his subsequent
fate (see para. 179 above). The cases examined by the Commission
under Article 2 (Art. 2) have hitherto related to instances where
an individual has in fact lost his life or suffered known injury or
illness. There is as yet no precedent for finding a violation of
this provision where it is alleged that a situation is such as to
place a person's life at risk or to disclose a lack of respect for
the right to life. In the only comparable published report, Cyprus
v. Turkey case (No. 8007/77 Comm. rep. 4.10.93 D.R. 72 p.5), the
finding of a violation of Article 2 (Art. 2) centred on the
established fact that 12 individuals had been shot by soldiers at
Elia. No express finding was made in respect of the disappearances
of missing persons, though in view of the detailed evidence before
it the Commission concluded that killings had happened on a larger
scale than at Elia.
188. Where there is a "disappearance" in State custody, the strong
inference may be that this has been fatal to the individual
concerned. The Commission notes that in the Inter-American cases
dealing with disappearances, where a person had been missing for a
long period, the Inter-American Court found violations of the right
to life where the length of time elapsed and the context in which
the victim disappeared created a reasonable presumption that he had
been killed (eg. the cases of Velasquez Rodriguez and Caballero-
Delgado and Santana, Annex II). The Inter-American Court noted that
circumstantial evidence is especially valid in cases of
disappearances which are characterised by efforts to conceal what
has occurred. However the Commission observes that in the Velasquez
Rodriguez case the Inter-American Court had found a systematic
practice of disappearances associated with ill-treatment and extra-
judicial executions, whereas in the Caballero-Delgado and Santana
case, there was some evidence of an execution having been carried
out.
189. There is no material before the Commission which would entitle
it to reach any finding as regards a practice of disappearances in
Turkey. In the absence of such practice or any evidential
indication as to the ultimate fate of a person last seen in
custody, the Commission considers it inappropriate to draw the
inference that such person has been killed. The Commission is of
the opinion that in such circumstances allegations as to an
apparent forced disappearance, and any alleged failure of the
Government to take reasonable steps to safeguard against such
disappearances, fall rather to be dealt with under Article 5 (Art.
5) which guarantees the right to liberty and security of the
person. Consequently, the Commission will examine the substance of
the points raised by the applicant in the context of Article 5
(Art. 5).
2. As regards Article 3 (Art. 3) of the Convention
190. Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
191. The applicant adopts her submissions above in relation to
Article 3 (Art. 3), claiming separate violations of Article 3 (Art.
3) in relation to Üzeyir Kurt's treatment while in custody and also
as a victim of an enforced disappearance.
192. The Government submit that the applicant's allegations are
unfounded.
193. The Commission recalls that the applicant states that when she
saw her son on the morning of 25 November 1993 his face was black
and blue and he stated that it was the State that had done this to
him. She was of the view that he had been tortured by the security
forces. The Commission finds that this is insufficient evidential
basis for a finding of responsibility of the State for treatment
falling within the scope of Article 3 (Art. 3).
194. As regards the applicant's contention that the "disappearance"
constitutes inhuman treatment of her son, the Commission observes
that the United Nations has classified both the systematic practice
of disappearances and the forced disappearance of an individual as
a crime against humanity (see Annex II at p. 65). It notes also the
findings of the Inter-American Court of Human Rights in the
Velasquez Rodriguez case that the disappearance of Velasquez, even
in the absence of any direct indication that he had been physically
tortured, infringed Article 5 (Art. 5) of the American Convention
which guarantees the right to integrity of the person and prohibits
torture, cruel, inhuman or degrading punishment or treatment (see
Annex II at pp. 69-70). This was having regard in particular to the
isolation involved in incommunicado detention and an established
practice of ill-treatment by officials. The Commission observes
however that the Inter-American Court was not prepared to make such
a finding in the absence of an evidential basis in the Caballero-
Delgado and Santana case, where it appeared probable that the
victims had been subject to prompt execution.
195. The Commission has had regard to the strict standards applied
in the interpretation of Article 3 (Art. 3) of the Convention,
according to which ill-treatment must attain a certain minimum
level of severity to fall within the provision's scope. The
practice of the Convention organs has been to require compliance
with a standard of proof "beyond reasonable doubt" that ill-
treatment of such severity has occurred (see Eur. Court H.R.,
Ireland v. United Kingdom judgment, loc. cit, p. 65 paras. 161-
162). The Commission is not satisfied that the disappearance of the
applicant's son in the circumstances of this case can be
categorised in terms of this provision. There is no evidence before
the Commission of a systematic practice of disappearances combined
with systematic ill-treatment and execution of detainees, with
subsequent concealment of their bodies in order to avoid
punishment, which was presumed in the Velasquez Rodriguez case. The
Commission does not consider that such presumptions can be made in
the present case.
196. Where an apparent forced disappearance is characterised by a
total lack of information, it is speculation as to whether the
person is alive or dead and as to the treatment which he or she may
have suffered. As found above in respect of the alleged risk to
life in the context of Article 2 (Art. 2) of the Convention, the
acute concern which must arise in relation to the treatment of a
person apparently held without official recognition and excluded
from the requisite judicial guarantees is an added and aggravated
aspect of the issues arising under Article 5 (Art. 5).
197. The Commission does not therefore consider it appropriate to
examine the complaints further under Article 3 (Art. 3) as regards
the applicant's son.
3. As regards Article 5 (Art. 5) of the Convention
198. Article 5 (Art. 5) of the Convention provides, as relevant:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court;
b. the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done
so;
...
2. Everyone who is arrested shall be informed promptly, in
a language which he understands, of the reasons for his arrest
and of any charge against him.
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful.
199. The applicant submits that her son was detained by the
security forces on 24 November 1993 and last seen while in custody
on 25 November 1993. This detention was in violation of his right
to liberty and not justified on any of the grounds specified under
Article 5 para. 1 (Art. 5-1). The time that has elapsed since the
arrest discloses a breach of the requirements of Article 5 para. 3
(Art. 5-3), since he has never been brought before a judicial
officer. Further the refusal to acknowledge the detention makes it
impossible for its lawfulness to be challenged, undermining the
fundamental safeguard against arbitrary detention provided by
Article 5 para. 4 (Art. 5-4). While it is acknowledged that Turkey
has lodged a derogation in relation to Article 5 (Art. 5), the
applicant submits that no emergency can ever justify an
unacknowledged detention. There is furthermore a practice of
unacknowledged detentions and disappearances in Turkey, referring
to, inter alia, the concern of the UN Working Group on
disappearances and the case of Aydin v. Turkey, where the
Commission found that three individuals had been held in custody
without their detention being acknowledged or recorded by the
authorities (No. 23178/94 Comm. Rep. 7.3.96)
200. The Government deny that the applicant's son was ever in the
custody of the security forces. They have fulfilled any obligation
as regards the taking of steps to discover his whereabouts. While
maintaining the validity of their derogation under Article 5 (Art.
5), they submit that there is no basis on which it comes into play
since the applicant's allegations are factually and
jurisprudentially unfounded.
201. The Commission is of the view that the disappearance of the
applicant's son raises fundamental and grave issues under Article 5
(Art. 5) of the Convention. While it notes that the Inter-American
Court has held that the forced disappearance of human beings is a
multiple and continuous violation of many rights under the American
Convention, in the absence of more concrete indicators, the
Commission considers that the disappearance of a person while in
official custody concerns primarily issues of deprivation of
liberty and security of person. Article 5 (Art. 5) aims to provide
a framework of guarantees against abuse of power in relation to
persons taken into custody. Such persons are vulnerable to a wide
range of arbitrary treatment and infringements of their personal
integrity and dignity. Article 5 (Art. 5) plays an essential role
in the system of protection under the Convention in effectively
preventing the risk of treatment contrary to Article 3 (Art. 3) and
extra-judicial execution contrary to Article 2 (Art. 2) and in
holding State authorities accountable to independent judicial
control for the detention of persons taken into custody.
202. The Commission has found above (para. 179) that the
applicant's son was in the custody of the security forces which had
taken control of Agilli village during their operation. This
creates a presumption of responsibility of the Turkish Government
for his fate (Cyprus v. Turkey, Nos. 6780/74 and 6950/75 Rep.
10.7.76 para. 351) In order to discharge this responsibility, the
Government must provide a credible and substantiated explanation of
what has happened and show that they have taken effective steps to
investigate the occurrence and ascertain the fate of the individual
concerned. In this assessment, it is of relevance to ascertain what
safeguards, if any, exist within domestic law and practice to
protect against involuntary disappearances. In this context, the
Commission recalls that the United Nations Human Rights Committee,
which has considerable experience in examining complaints of
disappearances, has emphasised the importance that State parties
should take specific and effective measures to prevent
disappearances and establish effective facilities and procedures to
investigate thoroughly, by an appropriate and impartial body, cases
of disappeared persons in circumstances that may involve a
violation of the right to life (see Annex II at p. 73).
203. In the present case, beyond denying that the applicant's son
was ever in custody, the Government have submitted that it is
probable that he was either kidnapped by the PKK or fled the
village to join them of his own accord. They refer to the testimony
of the gendarmes to the effect that they were informed of, and
found, a secret shelter built by the applicant's son for illicit
purposes. They also refer to the high proportion of villagers from
Agilli who have gone to the mountains to join the terrorists,
including one of the applicant's granddaughters. The applicant
submits that there is no evidence as to when and how any alleged
"kidnapping" took place and that it is implausible, given that
three PKK suspects were killed in the early clashes in the village
and that the search of the village disclosed the presence of no
other PKK terrorists. There is also no evidence, the applicant
argues, to support the contention that he voluntarily left the
village while it was occupied by the security forces in order to
join the PKK.
204. The Commission recalls that the applicant's allegations that
her son was in custody were brought to the attention of the Bismil
public prosecutor, the gendarme command and the Diyarbakir State
Security Court prosecutors' office. The district gendarme
commander, when asked to respond to the allegation on
30 November 1993, gave the view that it was probable that the
applicant's son had been kidnapped. There is no documentary
material nor oral testimony indicating any factual basis for this
view, which was given within hours of the enquiry.
205. The conclusion reached by the Bismil public prosecutor in his
decision of lack of jurisdiction of 21 March 1994 was that,
following a clash between the PKK and the security forces, PKK
members escaped from the village, kidnapping the applicant's son.
This conclusion appears to have been based on three statements
taken by gendarmes on 23 and 28 February 1994. These statements are
introduced by the indication that the witness was asked for "his
knowledge and observations that following a clash between the PKK
and the security forces, PKK members escaped from the village,
kidnapping the said victim". Of the three witnesses, Arap Kurt
"guessed" that this was the case and the two others had "heard"
that this was so. They did not know how or the circumstances. In
his oral testimony, Arap Kurt when referred to his statement
appeared clear that he had no knowledge of what had happened to
Üzeyir Kurt beyond that the fact that some people said that he had
gone to the terrorists or gone away, while others said that the
State had taken him. He stated that the gendarmes who took his
statement had told him that Üzeyir had probably joined the
terrorists.
206. The existence of the shelter outside the village attributed to
the applicant's son is cited by the Government as further proof of
the likely PKK link. This was referred to for the first time by
Captain Cural and Lieutenant Kupeli before the Delegates.
Strangely, it was not brought to the attention of the public
prosecutor or used as a relevant element in the investigation. It
does not, in the Commission's view, lend support to the
Government's contention.
207. From their oral testimony, when requested to specify the
evidential basis for their conclusions, the Bismil public
prosecutor and Captain Cural, the gendarme commander, took the view
that the kidnapping was the type of tactic that the PKK undertook.
The Commission notes that it was an assumption on their part,
rather than being based on any concrete fact. They also appeared to
expect no firm evidence to exist, since they alleged that villagers
would refuse to admit to any knowledge of PKK activities. However
even Captain Cural admitted that this was only one possibility.
208. At most therefore, the material before the Commission allows
for the possibility that the applicant's son went to or was taken
by the PKK but there is in fact no evidence that this is what
occurred. Moreover, it also fails to account for the fact found by
the Commission that the applicant's son was held by security forces
when they took the village. In respect of this element, there
appears to have been little or no investigation in response to the
applicant's petitions to the domestic authorities. The Commission
notes that the investigation undertaken later in response to the
communication of the application to the Government was undertaken,
insofar as it concerned the taking of statements from possible
witnesses, by Captain Cural, who was the gendarme commander
responsible for the operation which was the subject of the
complaint.
209. The Commission considers that the investigation by the public
prosecutor was perfunctory and based on preconceived assumptions.
The subsequent enquiries by the authorities were flawed by the
participation of officers implicated in the complaints.
210. As regards the existence of adequate safeguards against the
possibility of involuntary disappearances, the Commission observes
that there is no practice of accounting by written report or order
for the participation of village guards in operations by the
security forces. The participation of armed civilians in security
operations, where citizens may be subject to measures of detention
and the use of force, calls for careful control and strict
accountability in order to prevent abuse of power. While it has not
been established that the village guards were directly responsible
for the disappearance in this case, the Commission has found that,
contrary to the alleged official policy of not employing village
guards inside other villages, village guards were present in the
village during the operation and it has accepted the evidence that
village guards were in the group who were holding the applicant's
son. The absence of records of the nature and extent of the village
guards' role in events in Agilli must therefore be of concern and
constitutes a disturbing element.
211. The Commission finds that the Government has failed to provide
a satisfactory explanation for the "disappearance" of the
applicant's son after last being seen by the applicant in the hands
of the security forces. In light of this finding, together with the
shortcomings in relation to village guards and the nature of the
investigation into the applicant's allegations identified above,
the Commission is of the opinion that the responsibility of the
Government is engaged.
212. The Commission concludes that the applicant's son has been
arbitrarily deprived of his liberty contrary to Article 5 (Art. 5)
and in disregard of the guarantees of that provision concerning the
legal justification for such deprivation and requisite judicial
control. Further the circumstances in which he has since
"disappeared" disclose a violation of his right to security of
person, raising, as it does, grave doubts as to the treatment which
he received and as to whether he is still alive. Such unaccounted
disappearance of a detained person must be considered as a
particularly serious violation of Article 5 (Art. 5) of the
Convention taken as a whole.
213. The Commission finds it unnecessary to decide whether or not
there is a practice of unacknowledged detention and disappearances
as alleged by the applicant.
214. As regards the derogation of 5 May 1992 under Article 15 (Art.
15) of the Convention in relation to Article 5 (Art. 5), the
Commission recalls that the Government has placed no reliance on it
in their observations on the merits. While they referred to it in
their observations on admissibility, they stated that its
application did not come into play since Üzeyir Kurt had never been
in detention. The Commission finds that, in the case of
unacknowledged detention, a derogation which provides for measures
relating to detention pursuant to criminal procedures provided for
in law can have no application.
CONCLUSIONS
violation of Article 5 (Art. 5) of the Convention in relation to
Üzeyir Kurt.
216. The Commission concludes, unanimously, that it is not
necessary to examine separately the complaints made under Articles
2 and 3 (Art. 2,3) of the Convention in relation to Üzeyir Kurt.
F. As regards violation alleged by the applicant on her own
behalf under Article 3 (Art. 3) of the Convention
217. The applicant has also complained that the "disappearance" of
her son constitutes inhuman and degrading treatment contrary to
Article 3 (Art. 3) in respect of herself(see above para. 190).
218. The Government have not addressed any submissions to this
issue, beyond their denials that State authorities were responsible
for the disappearance of the applicant's son.
219. The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) of the Convention. Further,
the Court has held that the suffering occasioned must attain a
certain level before treatment can be classified as inhuman. The
assessment of that minimum is relative and depends on all the
circumstances of the case, such as the duration of the treatment
and its physical or mental effects (see eg. Eur. Court H.R.,
Ireland v. the United Kingdom, judgment of 18 January 1978, Series
A no. 25, p. 65, para. 162).
220. The Commission recalls that the applicant has had no news of
her son for almost three years. From her evidence before the
Commission, she fears that he is dead and has made appeals that she
should at least be given his body. The Commission considers that
the uncertainty, doubt and apprehension suffered by the applicant
over a prolonged and continuing period of time has caused her
severe mental distress and anguish. It has found above that the
responsibility of the Government is engaged as regards the
disappearance and their failure to account satisfactorily for what
has happened to him. The Commission finds as a result that the
applicant has been subjected to inhuman and degrading treatment
within the meaning of Article 3 (Art. 3) of the Convention.
CONCLUSION
221. The Commission concludes, by 19 votes to 5, that there has
been a violation of Article 3 (Art. 3) of the Convention in respect
of the applicant.
G. As regards Article 13 (Art. 13) of the Convention
222. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
223. The applicant submits that, despite repeated requests, the
authorities failed to carry out a proper investigation into the
disappearance of her son. She refers to the biased attitude of the
prosecutor and gendarmes who acted on the assumption that the
security forces were not responsible and that the PKK must be
involved. She points, inter alia, to the fact that only three
statements were taken from purported witnesses before the Bismil
public prosecutor reached his decision of lack of jurisdiction and
that there was no indication that Captain Cural had undertaken any
investigation at all before replying to the prosecutor that it
seemed likely that the PKK had kidnapped Üzeyir Kurt. The applicant
also contends that the applicant's experience is typical of the
practice of ineffective remedies in the South-East Turkey. The
evidence from a series of cases examined by the Commission
establishes, in the applicant's view, an administrative practice of
failure to hold the security services accountable for their actions
and a failure to provide a remedy for persons harmed by the armed
forces (see eg. over fifty admissible cases from applicants from
the South-East where the Commission found that the applicants had
no effective remedy in the context of Article 26 (Art. 26) of the
Convention, including Akdivar and others v. Turkey, in which the
Court has recently given judgment, Eur. Court HR judgment of
16 September 1996 to be published in Reports 1996).
224. The Government submit that the authorities carried out a
proper investigation of the applicant's complaints. The applicant
had unimpeded access to the courts and was treated respectfully in
all official contacts. The public prosecutor responded
appropriately to the applicant's petitions, bearing in mind that
her allegation that her son was in custody did not in itself
disclose any crime.
225. The Commission has examined whether the applicant had
available to her an effective remedy in respect of her complaint
that her son had "disappeared" in custody. It considers that the
substance of the applicant's complaint - that her son had been in
custody and that in the absence of information as to his
whereabouts she feared for his well-being - was brought to the
attention of the relevant and competent authority, the Bismil
public prosecutor within a short time of his going missing. The
Commission does not accept the Government's submission that the
public prosecutor had no reason to take any action or conduct any
further enquiry in relation to the applicant's approach. Where
there is evidence from an alleged eye-witness that a person has
been taken into custody which conflicts with a denial by officials
allegedly responsible for the arrest and detention, this should, in
the Commission's view, give cause for concern and in the present
case should have prompted further action.
226. As regards the efficacy of the public prosecutor's response to
the applicant's petitions, the Commission recalls that he sent the
applicant to the Diyarbakir State Security Court and contacted the
district gendarmerie to verify whether the applicant's son was in
their custody. This was, according to his testimony, to pacify the
applicant and beyond the requirements of his official duty. The
same day he received a response that the applicant's son was not in
custody and that it was likely that he had been taken by the PKK.
This was viewed by the prosecutor as a possible crime and it was in
respect of that allegation that an investigation was opened, and
not in relation to the applicant's contention that her son was
unaccounted for in custody. In answer to the Delegates, the
prosecutor stated that he contacted the gendarmes for further
details as to the grounds of their suspicion. This letter was
requested by the Commission but not in fact provided. It is
possible that it was in relation to this enquiry that the gendarmes
took the step of obtaining statements from three villagers,
including the mayor and two others. The Commission observes that
the statements were taken expressly to discover the person's
knowledge and observations as to the fact that Üzeyir Kurt had been
kidnapped by the PKK terrorist organisation. These statements
revealed no direct knowledge of the "disappearance". Davut Karakoç
and Mehmet Kurt had "heard" that he had been taken by the
terrorists and Arap Kurt "guessed" that he had. As far as the
Commission can discover, it was on the basis of these statements,
the suspicion that others from the village, including those of the
name of "Kurt", had gone to the mountains and his own knowledge of
the region, that the public prosecutor reached the conclusion that
the applicant's son had been kidnapped following a clash between
the PKK and the security forces, when PKK members escaped from the
village. The Commission finds that this conclusion, apparently
stated as an established fact, is based, to very large extent, on
supposition, in particular the theory that there were undetected
PKK members in the village who escaped through the security forces
blockade, no such incident being adverted to by the gendarmes
themselves.
227. As regards the other possibility for which there was the
direct eye-witness evidence of the applicant, the Commission notes
that no steps were taken by the public prosecutor to investigate
the applicant's assertion that her son was last seen by her in the
custody of the security forces. He accepted, without more, the
report by the gendarme commander in charge of the operation that
the applicant's son was not in detention. No written statement was
taken from the applicant by him in response to her complaint. No
enquiries were apparently made to locate any other witnesses who
might have seen the applicant's son in custody in the village, nor
were further enquiries pursued with the gendarmes or village guards
who participated in the operation.
228. The Commission is not persuaded that the applicant's concerns
received any serious attention by the authorities, her evidence
being ignored or discounted in favour of vague, unsubstantiated
possibilities of PKK involvement. The attitude disclosed by the
officials concerned and the nature of their response to the
applicant's repeated complaints amounts to a denial of any
effective investigative process.
229. There is no evidence before the Commission to indicate that,
in the absence of an effective investigation of the circumstances
of the case by the public prosecution authorities, any other remedy
would have offered the applicant a possibility of obtaining redress
for a disappearance resulting from an unacknowledged detention.
230. The Commission concludes that the applicant did not have an
effective remedy available to her in respect of her complaints
about the disappearance of her son.
CONCLUSION
231. The Commission concludes, unanimously, that there has been a
violation of Article 13 (Art. 13) of the Convention.
H. As regards Articles 14 and 18 (Art. 14, 18) of the Convention
232. Articles 14 and 18 (Art. 14,18) of the Convention provide as
follows:
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or other
status."
Article 18 (Art. 18)
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
233. The applicant maintains that because of her Kurdish origin the
various alleged violations of her Convention rights were
discriminatory, in breach of Article 14 (Art. 14) of the
Convention. She also claims that her experiences represented an
authorised practice by the State in breach of Article 18 (Art. 18)
of the Convention.
234. The Government have not addressed these allegations beyond
denying the factual basis of the substantive complaints.
235. The Commission has examined the applicant's allegations in the
light of the evidence submitted to it, but considers them
unsubstantiated.
CONCLUSIONS
236. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention.
237. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention.
I. As regards Article 25 (Art. 25) of the Convention
238. Article 25 para. 1 (Art. 25-1) of the Convention provides:
"The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in this Convention, provided
that the High Contracting Party against which the complaint
has been lodged has declared that it recognises the competence
of the Commission to receive such petitions. Those of the
High Contracting Parties who have made such a declaration
undertake not to hinder in any way the effective exercise of
this right."
239. The Commission recalls that Article 25 para. 1 (Art. 25-1)
imposes an obligation on a Contracting State not to hinder the
right of the individual effectively to present and pursue a
complaint with the Commission. While the obligation imposed is of
a procedural nature distinguishable from the substantive rights set
out in the Convention and Protocols, it flows from the very essence
of this procedural right that it is open to individuals to complain
of alleged infringements of it in Convention proceedings. In this
respect, as in others, the Convention must be interpreted as
guaranteeing rights which are practical and effective as opposed to
theoretical and illusory (see Eur. Court H.R. Cruz Varas and others
judgment of 20 March 1991, Series A no. 201, p. 36, para. 99).
240. The Commission would further emphasise that the right of
individual petition guaranteed under Article 25 (Art. 25) of the
Convention is of fundamental importance to the effective protection
of the substantive rights and freedoms provided for in the
Convention and its Protocols. Deliberate or repeated interferences
with the free exercise of that right must be regarded, in the
Commission's view, with the gravest concern. Interference may also
result from indirect pressure on applicants from State authorities.
In particular, approaches by domestic authorities to applicants to
question them about their applications in circumstances which may
be construed as attempts to discourage or penalise the pursuit of
complaints may lead to a finding that a Contracting State has
failed to comply with its obligations under Article 25 para. 1
(Art. 25-1) of the Convention. In this context, the Court having
regard to the vulnerable position of applicant villagers and the
reality that in South-East Turkey complaints against the
authorities might well give rise to a legitimate fear of reprisals,
has found that the questioning of applicants about their
applications to the Commission amounts to a form of illicit and
unacceptable pressure, which hinders the exercise of the right of
individual petition in breach of Article 25 (Art. 25) of the
Convention (see Eur. Court HR Akdivar and others v. Turkey judgment
of 16 September 1996, to be published in Reports 1996).
1. Alleged intimidation of the applicant
241. The applicant's representatives submit that she has been the
target of an extraordinarily concerted campaign on behalf of the
State authorities. They refer to the way in which the applicant has
been called to give statements, in which context she has been
questioned about her application to the Commission, and to the
taking of statements before a notary on two occasions, in respect
of which it appears that she was called to go by the State
authorities, escorted by an officer and payment for whose services
she was not required to meet. They refer further to the statement
dated 25 January 1995 taken by the Chief State Prosecutor at
Diyarbakir in the context of a complaint raised against her lawyer
Mr. Sakar, in which she is recorded as saying that the soldiers are
constantly questioning her about her complaint. They submit that it
can be inferred that the authorities informed the applicant that
her petition to Strasbourg was being used as PKK propaganda, that
the authorities called the applicant to go to the notary where she
would not have gone on her own initiative, and that the State paid
for notarised statements. While the applicant states that she was
not forced to say anything at the notary and was able to tell him
what she wanted, it is clear that she disagrees with the contents
of these statements insofar as they purport to withdraw her
application and that since she is illiterate, she was unable to
verify the contents of the statements for herself. The applicant's
representatives also allege that the applicant has been subject to
surveillance, in support of which they rely on a question put to
the applicant by the Government Agent at the taking of evidence,
from which it can be implied that the authorities were aware of the
persons visiting the applicant's house.
242. The Government deny that any pressure was put on the applicant
to withdraw her application. They submit that the contents of the
statements to the notary are consistent with her evidence before
the Delegates to the effect that she did not want to complain
against the State and that she only wanted her son's body to be
found. They refer to the evidence of Arap Kurt who stated, inter
alia, that the applicant had told him that she wanted to give up
the case and to the fact that when she gave her statement to the
notary, she confirmed that no soldier was present, that there was
an interpreter and that the statement was read back to her before
she fingerprinted it. The Government note the statement by Arap
Kurt that the applicant had said that she was being pulled from all
sides. They submit that she was being exploited by the PKK people,
who have been endeavouring to fabricate a picture of persecution.
In that context, the Government refer to the interventions by the
applicant's legal representatives at the taking of evidence, in
which allegations were made that the applicant was being prevented
from attending the hearing in Ankara, which allegations were
contradicted when the applicant attended the hearing later in the
week.
243. The Commission observes that the applicant has made numerous
written statements to State authorities concerning matters related
to the present application (see above paras. 62-63, 65-68 and 70) -
statement of 19 November 94 to the Bismil public prosecutor,
statement of 7 December 1994 taken by gendarmes (at the same time
as other members of her family and villagers), statement of 9
December 1994 to Foreign Ministry (identical to one sent to HRA
dated the same day), notarised statement 6 January 1995, statement
of 25 January 1995 taken by the Chief State Prosecutor's office
Diyarbakir, notarised statement of 10 August 1995 and statement of
7 February 1996 to Bismil public prosecutor).
244. The first taking of her statement by the Bismil public
prosecutor appears to have been in response to the Commission's
communication of her application to the Government. From the text
of this statement (see para. 62), it appears that she was
questioned as to the subject-matter of the application. It appears,
impliedly, that she was questioned as to whether the petition was
indeed hers and as to whether the allegations made in it were true.
The statement of the applicant to the gendarmes seems to have been
part of a general attempt to obtain evidence concerning the events
in issue in the application (see statement para. 63). The
applicant did not state that she was under any pressure or ill-
treatment on these occasions.
245. More difficult to assess are the two identical statements
dated 9 December 1994 and the two notarised statements. When asked
by the Delegates whether she had ever said that she did not want to
pursue the application, she stated that maybe she had. Arap Kurt
who accompanied her to the notary gave evidence that she had gone
of her own free will and that she had told him that she was fed up,
that the matter had been going on for three years and that they
should stop the case. There is therefore a possibility,
notwithstanding her expression of intention before the Delegates,
that the applicant may have wavered in her determination at about
this time. The Commission is nonetheless not persuaded that the
initiative for these four statements came from the applicant. It
also appears that the statements which refer to her petition having
been used for PKK purposes did not derive from the applicant but
are likely to have been suggested to her by the State authorities
and included in the statements at their initiative. On her
evidence, she was called by the State to come to the notary and was
taken there by an officer in uniform. The Commission agrees with
the applicant's representatives that there is a strong implication
that the State authorities paid for the notarised statements to be
taken. The Commission notes that the Government have not indicated
on whose initiative steps were taken to obtain notarised
statements.
246. Even though no coercion appears to have been exerted on her to
retract her petition and there is no evidence of any threats having
been made against her, the Commission considers that the State
authorities have subjected the applicant at the very least to
significant indirect pressure. It recalls Arap Kurt's description
of the applicant being pulled in every direction. It considers that
this is an accurate reflection of the applicant's situation.
247. The Commission would emphasise that it is not for the
Government to take steps to investigate by means of personal
contact with applicants whether an application is a genuine or
accurate reflection of their complaints. If a Government entertains
doubts as to the authenticity of an application, it is a matter to
be raised with the Commission, within whose competence it lies to
take any necessary steps procedurally to verify the existence of a
valid application and to establish the extent to which complaints
are well-founded. This does not exclude the competent State
authorities from taking appropriate steps to investigate
allegations of criminal offences which may be brought to their
attention as a result of an application to the Commission. Where
this reasonably necessitates contact with an applicant, the
Commission has asserted the importance that such questioning be
carried out in the presence of his or her lawyers given the
vulnerability of applicants who have made serious allegations
against State authorities (see No. 21883/93, Comm. Rep. 26.10.95
para. 253 to be published with the Akdivar and others v. Turkey
judgment loc. cit.). However this should not in any event include
questioning of applicants which concerns the circumstances in which
they decided to bring an application, their motivation or the
allegations they intended to make in that application. Nor should
the questioning be designed or calculated to test the accuracy of
the submissions made on their behalf or include any expression of
disapproval or suspicion as to the alleged political uses to which
an application might be put.
248. The Commission finds that in the circumstances of this case
the State authorities have acted inappropriately in their contacts
with the applicant in their apparent efforts to determine whether
or not she wished to pursue her complaints. In doing so they
exerted improper pressure on her to make statements concerning her
application which is incompatible with the free exercise of the
right of individual petition guaranteed under Article 25 para. 1
(Art. 25-1) of the Convention.
2. Alleged interference with the applicant's lawyer
249. The applicant's representatives submit that the authorities
have sought to prosecute Mr. Sakar for making false allegations
against the State of Turkey in the context of the applicant's
application to the Commission. They submit that the interference
with lawyers assisting applicants before the Commission strikes at
the substance of the freedom of exercise of the right of individual
petition, in that it is clearly intimidatory and designed to
dissuade people from helping applicants in applications under the
Convention.
250. The Government have not commented on these matters which were
raised by the applicant's representatives in their final submission
on the merits.
251. The Commission notes that at the instigation of a senior
official at the Ministry of Foreign Affairs, Mr. Özkarol, who in
fact attended the taking of evidence before the Commission, an
enquiry was apparently commenced into whether the applicant's
lawyer, Mr. Mahmut Sakar, who had presented her application to the
Commission, was responsible for making false allegations in the
context of that application. It seems that the applicant was
summoned to give a statement to the Diyarbakir Chief Prosecutor's
office as part of that investigation. The opinion of that office
was however that evidence supporting a charge would be difficult to
obtain. Although the applicant's representatives referred in oral
submissions to an indictment having been drawn up against Mr.
Sakar, no such document has been provided. It is therefore not
established that criminal proceedings have in fact commenced. It is
clear however that an investigation was commenced with a view to
contemplated proceedings.
252. The Commission views with considerable concern the steps taken
by the Government to prosecute a lawyer acting on behalf of an
applicant in connection with allegedly false allegations made in
the presentation of that case before the Commission. This is
particularly so where the application is pending before the
Commission who, following the admissibility of the case, has the
task under the Convention of establishing the facts of the case.
Having taken oral evidence in the case, the Commission has noted
that the allegations concerning ill-treatment of villagers and
slaughtering of livestock originally made in the petition taken by
the HRA were not upheld by the applicant in her oral testimony (see
para. 170 above). It has had occasion to regret the lack of
accuracy in this and other statements submitted on behalf of
applicants (see para. 170 and references therein). Whether or not
this is a ground for disciplinary action in a Contracting State for
negligence or other professional fault by a lawyer once the
shortcoming is identified at the conclusion of the Convention
proceedings is not a question that the Commission is called upon to
decide in the present case. Though it appears that materials have
been sent to the Chairman of the Bar, it is not apparent that
disciplinary proceedings have been instituted. The Commission would
however express doubts as to whether such proceedings would be
compatible the effective functioning of the Convention system (see
Article 2 (Art. 2) of the European Agreement relating to persons
participating in proceedings of the European Commission and Court
of Human Rights, which confers immunity from legal process in
respect of lawyers assisting applicants before the Commission).
253. In any event, the institution of criminal proceedings against
a lawyer in respect of an application before the Commission would
have the potential to interfere with the free exercise of the right
of individual petition, since it is calculated to dissuade an
applicant or his or her lawyer from pursuing a case or to place
significant obstacles to the continued pursuit of the case in
question and to the submission of future applications.
254. The Commission finds that, even though no criminal proceedings
have apparently commenced, the steps taken by the authorities with
a view to instituting criminal proceedings against Mr. Sakar in
relation to submissions made by him in an application to the
Commission are not compatible with the Government's obligations not
to hinder the effective exercise of the right of individual
petition under Article 25 (Art. 25) of the Convention.
CONCLUSION
255. The Commission concludes, unanimously, that Turkey has failed
to comply with its obligations under Article 25 para. 1 (Art. 25-1)
of the Convention in relation to the pressure exerted on the
applicant and and her lawyer by State authorities.
J. Recapitulation
256. The Commission decides, unanimously, to pursue the examination
of the complaints introduced on behalf of the applicant (para.
158).
257. The Commission concludes, unanimously, that there has been a
violation of Article 5 (Art. 5) of the Convention in respect of the
disappearance of the applicant's son (para. 215 above).
258. The Commission concludes, unanimously, that it is not
necessary to examine separately the complaints made under Articles
2 and 3 (Art. 2,3) of the Convention in relation to the
applicant's son (para. 216 above).
259. The Commission concludes, by 19 votes to 5, that there has
been a violation of Article 3 (Art. 3) of the Convention in respect
of the applicant (para. 221 above).
260. The Commission concludes, unanimously, that there has been a
violation of Article 13 (Art. 13) of the Convention (para. 231
above).
261. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention (para. 236
above).
262. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention (para. 237
above).
263. The Commission concludes, unanimously, that Turkey has failed
to comply with its obligations under Article 25 para. 1 (Art. 25-1)
of the Convention (para. 255 above).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
DISSENTING OPINION OF MM. S. TRECHSEL, C.A. NØRGAARD,
F. MARTINEZ, G. RESS AND K. HERNDL
We regret that we are unable to share the view of the majority of
the Commission that there has been a violation of Article 3 of the
Convention in respect of the applicant. The majority's view is based on
the assumption that the disappearance of her son could constitute inhuman
and degrading treatment in respect of herself. Certainly, the applicant
has had no news of her son for almost three years. She fears that he is
dead and has made appeals that she should at least be given his body.
While the uncertainty, doubt and apprehension suffered by the applicant
must undoubtedly have caused her considerable mental distress, this must
be regarded as an indirect consequence of the fate of her son which the
Commission considers to constitute a violation of Article 5 (see para.
215 of the Report). In addition the applicant's own sufferings are taken
into account in connection with the allegations of a lack of an effective
redress for the disappearance examined in the context of Article 13 of
the Convention (see paras. 220-230 of the report). We therefore believe
that no separate issue arises in the circumstances of this case.
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