TANRIKULU v. TURKEY

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23763/94

Selma TANRIKULU

against

Turkey

REPORT OF THE COMMISSION

(adopted on 15 April 1998)

  23763/94- i -

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-27)1

A.The application

(paras. 2-4)1

B.The proceedings

(paras. 5-22)1

C.The present Report

(paras. 23-27)4

II.ESTABLISHMENT OF THE FACTS

(paras. 28-207)6

A.The particular circumstances of the case

(paras. 30-49)6

B.The evidence before the Commission

(paras. 50-194)9

C.Relevant domestic law and practice

(paras. 195-207)34

III.OPINION OF THE COMMISSION

(paras. 208-289)36

A.Complaints declared admissible

(paras. 208-209)36

B.Points at issue

(para. 210)36

C.The evaluation of the evidence

(paras. 211-239)37

D.As regards Article 2 of the Convention

(paras. 240-250)44

CONCLUSION

(para. 251)47

E.As regards Article 3 of the Convention

(paras. 252-255)47

CONCLUSION

(para. 256)47

- ii -23763/94

TABLE OF CONTENTS

Page

F.As regards Articles 6 para. 1 and 13 of the Convention

(paras. 257-263)47

CONCLUSIONS

(paras. 264-265)49

G.As regards Article 14 in conjunction with Articles 2, 6 and 13 of the Convention

(paras. 266-269)49

CONCLUSION

(para. 270)50

H.As regards Article 25 of the Convention

(paras. 271-282)50

CONCLUSION

(para. 283)52

I.Recapitulation

(paras. 284-289)53

APPENDIX I:DECISION OF THE COMMISSION AS TO THE

        ADMISSIBILITY OF THE APPLICATION54

APPENDIX IIa:PLAN OF THE AREA SUBMITTED WITH APPLICATION                                                                                                                                            63

APPENDIX IIb:PLAN OF THE AREA ATTACHED TO INCIDENT REPORT                                                                                                                                            64

APPENDIX IIc:PLAN OF THE AREA SUBMITTED BY GOVERNMENT                                                                                                                                            65

APPENDIX IId:PLAN OF THE AREA SUBMITTED WITH APPLICANT'S

FINAL OBSERVATIONS66

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, born in 1964, and resident in Diyarbak_r.  She was represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both university teachers at the University of Essex, England. The applicant states that she brings the application also on behalf of Dr Zeki Tanr_kulu, her husband, now deceased, and their three minor children, born in 1983, 1993 and 1994 respectively.

3.The application is directed against Turkey.  The respondent Government were represented by their Agents, Mr _. Alpaslan and Mr D. Tezcan.

4.The applicant alleges that her husband was killed in Silvan on 2 September 1993 by either the state security forces or else in their presence in circumstances suggesting the collusion of those forces. She further alleges that this event was not adequately investigated by the State authorities. Finally, she complains that she has been hindered in the exercise of her right of individual petition. She invokes Articles 2, 3, 6, 13, 14 and 25 of the Convention.

B.The proceedings

5.The application was introduced on 25 February 1994 and registered on 28 March 1994.

6.On 11 October 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. To this end the Government were provided with a copy of the application form, the power of attorney dated 27 September 1993 signed Selma Tanr_kulu and the documents submitted by the applicant.

7.The Government's observations were submitted on 1 March 1995, after the expiry of the time-limit set for that purpose. The applicant replied on 20 April 1995.

8.On 28 November 1995 the Commission declared the application admissible.

9.The text of the Commission's decision on admissibility was sent to the parties on 6 December 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. Neither party availed itself of this possibility.

10. On 13 April 1996 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr N. Bratza, Mr G. Ress and Mr P. Lorenzen. It notified the parties by letter of 25 April 1996, proposing certain witnesses and requesting the Government to identify by name the three authors (police officers) of an incident report drawn up on 2 September 1993 and the public prosecutor at the Diyarbak_r State Security Court in charge of the investigation.

11. By letter of 13 June 1996 the applicant requested that a further two witnesses be heard, including a public prosecutor at the Diyarbak_r State Security Court who, according to the applicant, had summoned her in the autumn of 1994 to question her about her application to the Commission. On 20 June 1996 the Commission requested the Government to identify this public prosecutor.

12. On 24 June 1996 the Government provided the names of the three police officers and the public prosecutor at the Diyarbak_r State Security Court who had been in charge of the preliminary investigation into the incident. On 5 September 1996 the Government were requested to confirm whether this public prosecutor was currently still in charge of the investigation. They were further reminded of the request to identify the public prosecutor who had allegedly summoned the applicant in the autumn of 1994. On 10 October 1996 the Government confirmed that the public prosecutor who had been in charge of the preliminary investigation was also in charge of the current investigation.

13.  On 28 October 1996 the Government were again requested to identify the public prosecutor who was claimed to have summoned the applicant in order to question her about her application to the Commission.

14. Evidence was heard by the Delegates of the Commission in Ankara on 21 and 22 November 1996 from the applicant, Bekir Selçuk (chief public prosecutor at the Diyarbak_r State Security Court), Turan Da_, Mehmet _ahin and Durmu_ _ahin (police officers attached to the anti-terror department of Silvan security directorate), and Dr Murat Y_ld_r_m. Before the Delegates the Government were represented by Mr _. Alpaslan and Mr D. Tezcan, Agents, assisted by Ms. M. Gülsen, Mr A. Kurudal, Mr N. Erdim and Mr A. Kaya. The applicant was represented by Ms. F. Hampson, counsel, assisted by Ms. A. Reidy, Mr O. Baydemir, Ms. D. Deniz (interpreter) and Mr M. Kaya (interpreter). Further documentary material was submitted by the Government during the hearing. At the conclusion of the hearing the Delegates requested the Government to submit photographs and a map of the area where the incident had occurred, and a copy of the complete investigation/prosecution file as it had become apparent during the hearing that the Government held more documents than had so far been submitted to the Commission. At that occasion the Agent of the Government undertook to use his best endeavours to try and provide the Commission with the complete investigation file. These requests for documents were subsequently confirmed by letter of 3 December 1996. The Government were further requested to provide an explanation in writing for the failure of four witnesses to appear before the Delegates.

15. On 3 December 1996 the Commission decided to invite the parties to present their written conclusions on the merits of the case by 31 March 1997.

16. On 30 January 1997 the Government submitted a video film, a number of photographs and a map of the area where the incident had occurred. By letter of 21 February 1997 the Government were reminded of the still outstanding request for a copy of the investigation/prosecution file and an explanation in writing for the absence from the hearing of four witnesses.

17. By letter of 17 February 1997 the Government provided explanations for the absence from the hearing of three witnesses.

18. On 7 March 1997 the Commission granted the applicant legal aid for the representation of her case.

19. On 25 March 1997 the Government submitted their final observations on the merits. The applicant's final observations were submitted on 1 April 1997. In these observations, the applicant put forward the complaint that Turkey had failed to comply with its obligations under Article 25 para. 1 of the Convention.

20. By letter dated 30 May 1997 the Delegates put a number of questions concerning the location of the incident in relation to the video film, photographs and map to the Government. It was further pointed out to the Government that the investigation/prosecution file had not yet been made available. The Government replied to the questions about the location of the incident on 25 June 1997. However, the investigation/prosecution file has not been submitted.

21. On 6 November 1997 the Commission requested the Government to comment on the applicant's allegations concerning Article 25 of the Convention. Following an extension of the time-limit until 29 December 1997, the Government submitted their Agent's observations dated 5 January 1998 by letter dated 29 December 1997.             

22. 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

23.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:

 MMS. TRECHSEL, President

J.-C. GEUS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI_

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELI_NAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

24.The text of this Report was adopted on 15 April 1998 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.

25.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.

26.The Commission's decision on the admissibility of the application is annexed hereto as Appendix 1.

27.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

28.The facts of the case, in particular those which relate to the events on 2 September 1993, are in dispute between 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 examined written material, as well as oral testimony presented before the Delegates. The Commission first presents a brief outline of the events, as submitted by the parties, and then a summary of the evidence adduced in this case.

29. The street where the incident at issue took place has been referred to as Gazi Road, Old Diyarbak_r Road and the Kaymakam Slope. Although it appears that its current official name is Gazi Road, it will be referred to in the report as the Kaymakam Slope by which name it is commonly known. This will avoid confusion with the name of the street where the front of the security directorate building is situated since this also appears to be called Gazi Road.

A.The particular circumstances of the case

1.Facts as presented by the applicant

30.The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B below. The version as presented in the applicant's final observations on the merits is summarised here.

a.Concerning the killing of the applicant's husband

31. At around noon on 2 September 1993 the applicant's husband, Dr Zeki Tanr_kulu, was shot dead on a steep road, known as the Kaymakam Slope, which runs between the State hospital and the security directorate in the town of Silvan. The applicant was on the low balcony of her hospital residence, close to the hospital gates, when she heard the sounds of automatic firing. She jumped off the balcony and ran towards the Kaymakam Slope. When she was running she heard the start of another type of firing.

32. The applicant did not see anyone as she ran towards her husband who was lying near the top of the steepest part of the Slope close to the security directorate. However, as she knelt by him, she looked up and saw at least eight members of the security forces standing in a line across the street near the security directorate and brandishing machine guns, about fifteen to twenty metres away from her. They were dressed in plain clothes but were wearing special jackets enabling them to carry spare ammunition. Although there were usually at least eight members of the security forces near the security directorate, it was not usual for them to stand together in a line. The applicant appealed to the police present at the scene to do something to catch the perpetrator(s) but they did nothing. She ran back down to the junction with Old Bitlis Road, screaming for help. At the junction, she saw two young men running along Old Bitlis Road and she saw them turn up the next street on the left. She warned the police that they were allowing the perpetrators to escape. The street turning left from Old Bitlis Road that the men had run into joins Gazi Road near the security directorate.

33. The applicant then turned and ran back to her husband, having recalled that there was a gun in his briefcase. At that time, people ran out of the hospital to help. They took Dr Tanr_kulu to the hospital where they sought unsuccessfully to resuscitate him. Meanwhile, three policemen on patrol in a vehicle had been summoned by radio and they arrived within five to ten minutes. Two of the police officers examined the scene and the third, Turan Da_, went to the hospital where he obtained a description from the applicant of the two young men and of the direction in which they had fled. He informed his two colleagues who went in pursuit of the alleged killers but not in the direction which had been indicated by the applicant.

34. The applicant made several efforts to make a statement to the authorities. She contacted the police but they said that the Chief of Security was not there and hung up. She also tried to speak to the Governor but was unsuccessful.

35. In April 1993 Dr Tanr_kulu had been taken in for questioning by the police. They had received a tip-off to the effect that he was sheltering a terrorist suspect. He had been released without charge the next day.

36. Dr Tanr_kulu took his duties as a doctor seriously and would treat anyone in need. As the only doctor in the State hospital in Silvan for about eight months, he would have been the person to produce the medical reports on persons released from custody. Whilst generally seeking to protect the applicant from anything that might worry her, he did state, on more than one occasion, "If we let them, they would write the reports", and he also spoke about torture. Following the killing of another doctor in Silvan on 10 June 1992, which led a third doctor to seek and obtain a transfer from the area, Dr Tanr_kulu was reported in the press as having refused to talk about that incident out of fear. At the time a high number of killings by unknown perpetrators was being committed in Silvan. There were newspaper reports alleging that many of the killings were the work of contra-guerilla forces and it was reported that a military officer by the name of Captain Vural had a list and that the people on the list were killed one by one. Dr Tanr_kulu's name was rumoured to be on this list.

37. Although Dr Tanr_kulu had sought to reassure the applicant that he was at no risk, he had acquired a gun, with the necessary licence, two weeks before his death. The day before his killing, Dr Tanr_kulu had requested permission from the Governor to take his annual leave. Permission had been refused, even though his leave was long overdue and other doctors had arrived in Silvan who could have replaced him.

38. Following the killing of Dr Tanr_kulu, other doctors working at the State hospital told the District Governor that if the killers could not be found it was not safe for them to remain in Silvan. The Governor allegedly told them that they were safe and that Dr Tanr_kulu had been killed because he was a Kurd from Silvan. The applicant requested one of these doctors, Dr _lhan, to make a statement about his conversation with the Governor but he refused as he was frightened of the consequences.

 b.Concerning alleged intimidation and interference with the exercise of the right of individual petition

39. On 17 November 1994 the applicant received a summons to appear at the prosecutor's office at the Diyarbak_r State Security Court the next day. The chief public prosecutor, Mr Bekir Selçuk, questioned the applicant about her application to the Commission and, in particular, about the power of attorney. Contrary to what is written in the report drawn up of her statement, the applicant did not tell Mr Selçuk during this interview that about ten days after her husband's death she had been telephoned by a person called Kevin who was from a centre in England and who was ringing from Diyarbak_r. The implied threat was made by Mr Selçuk that something might happen to the applicant on account of her application. Mr Selçuk also suggested that an application to the Commission was futile.

40. Two days after the applicant's return home from the hearing before the Delegates in Ankara, on 25 November 1996, an attempt was made to force the door of the balcony of her home. She was disturbed by the incident and stayed away from her home from 26 to 30 November 1996. On 30 November 1996 she sent the baby-sitter to the house who found that it had been broken into. The applicant did not contact the police because she was scared and suspected that the break-in was the work of the police.             

2.Facts as presented by the Government

Concerning the killing of the applicant's husband

41. Although the Government in their final observations do not dispute that Dr Tanr_kulu was killed at the Kaymakam Slope on 2 September 1993, they deny that this killing was in any way related to the State or any of its agents.

42. At the time of day when the incident took place there were no police officers present outside the security directorate other than two officers standing guard. These police officers could not have been standing just twenty metres away and watching the shooting of Dr Tanr_kulu in view of the fact that the entrance to the security directorate is facing in an opposite direction to that of the site of the incident. The officers standing guard were under strict orders not to leave their posts even if they heard shooting or an explosion as that would render the security directorate vulnerable to a possible attack.

43. The street into which the applicant said that she saw the two alleged perpetrators of her husband's killing turn from Old Bitlis Road does not come out at the security directorate building on Gazi Road but two blocks away from there.

44. Dr Tanr_kulu had been happy and proud to be working for the State. Government officials were on good terms with him and police officers had felt free to request his help at any hour of the day or night. However, investigations have shown that many killings of State officials or persons working for the State, especially in the area where the state of emergency was in force, have been committed by militants of the PKK.

45. In their observations on the admissibility of the application the Government further submitted that there was no relation between the death of Dr Tanr_kulu and his having been summoned to the police station on 6 April 1993 in order for his statement to be taken concerning the allegation that he was hiding a terrorist. As soon as it had been established that this allegation was false, Dr Tanr_kulu had been released.

46. In respect of the refusal by the Governor to grant Dr Tanr_kulu leave, the Government submitted that he was the deputy head consultant of the hospital and that his leave would have interrupted the medical service.

3.Proceedings before the domestic authorities

47. Following the shooting of Dr Tanr_kulu police investigated the scene of the incident, drew up a plan of the immediate area, searched the area and took statements from three people who had been present in the area at the time of the incident (see paras. 68-75). Sixteen empty cartridges and one deformed bullet were found and transmitted to an expert at the Regional Criminal Police Laboratory. This expert issued a report on 9 September 1993. A post mortem examination was carried out on 2 September 1993, i.e. the day of the incident.

48. On 5 November 1993 a public prosecutor at Silvan, Mustafa Düzgün, issued a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbak_r State Security Court. The applicant made a statement to Bekir Selçuk, chief public prosecutor at the Diyarbak_r State Security Court, on 18 November 1994.

49. The investigation has so far not yielded any results but is still pending.

B.The evidence before the Commission

1.Documentary evidence

50. The parties submitted various documents and plans to the Commission. The documents included reports about medical professionals in South-East Turkey (including the Amnesty International report "South-East Turkey: The Health Professions in the Emergency Zone, EUR 44/146/94", and extracts from a report of the Turkish Medical Association, "The Report on the Health Services and Health Personnel's Problems in the South-East, Human Rights Foundation Publication: 8") and statements from the applicant and witnesses concerning their version of the events at issue in this case. The Government also provided photographs and a video film showing the area where the incident took place.

51. The Commission had particular regard to the following.

 a.Statements by the applicant

Statement of 27 September 1993 taken by the Diyarbak_r branch of the Human Rights Association

52. This statement was accompanied by a hand-drawn plan of the area where the incident took place. This plan has been annexed as Appendix IIa. The statement states as follows.

53. At 11.55 hours on 2 September 1993, about two minutes after she had seen her husband Dr Zeki Tanr_kulu leave the hospital from the balcony of the hospital residence where they lived, the applicant heard the sounds of heavy, automatic weapons. She rushed from the building but when she got outside she could only hear the sound of pistols. After having run for a few metres she could see her husband lying near a wall on the Kaymakam Slope about twenty metres from the security directorate, there being about fifty metres between that building and the hospital. When she arrived at her husband's side he was still alive but unable to speak. She told him, "Look what the State which you trusted has done to you." In order to see the perpetrators and having seen that there was only police around, she ran back down the Slope and saw two people running away. As she saw them from behind she did not see their faces but they had smart-looking haircuts. One was wearing a light blue T-shirt and jeans, and the other one a yellow T-shirt and brown trousers. She did not see any weapons in their hands. Although she shouted after them to show her their faces, they entered the street which led to the security directorate.

54. Having run after the two men, she was out of breath and fell to the ground. She then remembered that her husband had a gun in his bag. She went back to where her husband was lying, retrieved the gun and ran in the direction where the two men had gone. When she got the gun she saw the police. Although she told them that the murderers were escaping, described the men to them and showed them the direction where the men had gone, the police did not react. While she was shouting at the police the hospital personnel were taking her husband into the hospital. She followed them within five minutes. The medical intervention having failed, her husband died fifteen minutes later.

55. At the hospital she saw a man whom she assumed was the District Governor. She said to him, "My husband asked you for a few days' leave, was it because you knew that he was going to be killed that you refused it?" She was then told that this man was in fact the commander of the security directorate at which she replied that that made no difference as her husband had been killed in front of the security directorate.

56. There were two ways out from the direction in which the two men had fled. If the two armoured cars which were habitually stationed in front of the security directorate had been moved to each of these exits, the murderers could have been caught immediately.

57. Two days after the incident two doctors working at the State Hospital, Mustafa and _lhan, requested the District Governor, Mehmet Demirezer, to grant them leave, saying that should their request be refused they would resign. Mr Demirezer told them that Dr Tanr_kulu had been killed because he was a Kurd but as they were Turks nothing would happen to them. The two doctors were then granted leave. The applicant asked Dr _lhan to make a statement about this conversation with Mr Demirezer but he refused, saying that that would put his life in danger.

58. The applicant's husband had never had any enemies. At around 02.00 hours on the morning of 6 June 1993 (this should presumably read 6 April 1993), he had been taken into custody by plainclothed police from the security directorate. He had been held for five and a half hours and was then released without having been brought before a public prosecutor.

Statement of 18 November 1994 taken by Bekir Selçuk, chief public prosecutor at the Diyarbak_r State Security Court

59. The applicant's husband was chief consultant at the Silvan State hospital. He continuously received threats from the PKK for being an official of the State and from Hizbullah for not complying with Islamic rules.

60. At around midday on 2 September 1993, when she was feeding her child on the balcony of her house, she saw her husband leave the hospital by the main gate. One minute later she heard gun shots and ran to the location from where the shots were coming. She saw her husband lying face upward. Two women in the garden nearby were shouting, "They shot Zeki". She looked around but saw no one. She then returned in the direction of Old Bitlis Road from where she had come and saw two men who were approximately seventeen to eighteen years old running away. One of them was wearing a yellow T-shirt and brown trousers, and the other one was dressed in a blue T-shirt and jeans. Both wore trainers on their feet and had short haircuts. One was blond, the other had brown hair. She did not see whether they had guns.

61. She returned to where her husband was lying and saw the arrival of the policemen. She shouted at the police that the murderers were running away. The policemen walked around pointing their weapons at the surroundings but they did not go after the two men. She ran after the men but eventually gave up. Meanwhile, hospital personnel had arrived and they took her husband to the hospital. She returned to her children.

62. Approximately ten days after the incident she received a telephone call from a person whom she believed was called Kevin. He gave her the name of the institution in England to which he belonged, the year of its foundation and said that this institution defended the rights of medical professionals who had become the targets of armed attacks. He asked her if her husband had belonged to any political party or organisation which she denied. He told her he was in Diyarbak_r and telephoning from the Diyarbak_r branch of the Human Rights Association. He asked her to come there. She replied that she could not leave the house because of the prevailing customs, but said that they could come to Silvan. Nobody came. Twenty days after the incident she went to the Human Rights Association in Diyarbak_r and told them about the attack on her husband. A statement was drawn up which she signed.

63. Bekir Selçuk showed her a petition signed by Selma Tan on 27 September 1993. She denied having given anybody that document; her name was not Selma Tan and the signature was forged. It might have been drawn up in her absence. However, her right to make an individual application to the Commission was valid and the signature on the petition to the Commission was hers. She could not remember the contents of that petition but the incident had occurred just as she had told Bekir Selçuk.

64. The statement was read back to her and she confirmed it with her signature.

Statement of 3 December 1996 submitted with the applicant's final observations on the merits of the application

65.Around midnight on 25 November 1996, two days after returning from the hearings before Delegates in Ankara, the door of the balcony of the applicant's home in Diyarbak_r was forced. She looked through the window for a while but could not see anything. However, she was disturbed.

66. She did not go to her house at all from 26 to 30 November 1996. On 30 November 1996 she sent her baby-sitter to her house in order to collect some things for her children. The baby-sitter found that the house had been broken into. The house had been searched, the books which had belonged to her husband were on the floor and his photograph hanging on the wall in her children's room had been taken down and put onto her daughter's bed.

67. Since nothing had been taken away she thought it must have been the police rather than burglars who had broken into her house. She did not contact the police because of her fears and anxiety.

b.Statements by other persons

_inasi Malgil

Statement dated 2 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_

68. Although the date on the statement is actually given as 2 September 1994 it was accepted by the parties at the hearing before Delegates in Ankara that the statement was made on 2 September 1993. At the time he made the statement, the witness was fifteen years old.

69. According to the statement the witness said the following "with regard to the armed attack in which Dr Zeki Tanr_kulu was killed": he was a self-employed worker at the State hospital. He knew Dr Zeki Tanr_kulu, the deputy chief consultant at the hospital, well. On 2 September 1993 he left the hospital around midday to go on an errand and just as he had reached the junction where Old Bitlis Road meets the Kaymakam Slope he saw Dr Zeki Tanr_kulu walking along the side of the Kaymakam Slope towards the market. After they had both crossed the junction Dr Tanr_kulu was walking five or six paces ahead of him, not aware of his, Malgil's, presence behind him. At that moment he heard a series of shots coming from behind them and he threw himself immediately into the garden of houses on the right-hand side.

70. When the shooting had stopped he heard shouts coming from the hospital: people were shouting that Dr Tanr_kulu had been shot. When he saw the applicant and members of the hospital staff coming up the road he got out of the yard where he had taken cover and saw Dr Tanr_kulu lying on the road in a pool of blood. When the applicant and the hospital staff carried Dr Tanr_kulu to the hospital the police officers on duty arrived. He then also returned to the hospital. He did not see the person or persons who had shot Dr Tanr_kulu.

Umut Yüce

Statement dated 6 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_

71. The statement states that the witness said the following "in relation to the murder of Dr Zeki Tanr_kulu by fire arms": he resided at the hospital and worked as an orderly at the Mother and Child and Family Planning Unit. On 2 September 1993, around midday, he left work and saw Dr Zeki Tanr_kulu and a teenager by the name of _inasi at the main gate of the hospital. He greeted them and continued walking towards the hospital. Dr Tanr_kulu walked up the slope away from the hospital. Before he (Yüce) reached the hospital he heard fifteen to sixteen gunshots from the direction where Dr Tanr_kulu was going. He went back to the hospital's main gate and saw Dr Tanr_kulu lying in a pool of his own blood. He shouted, "They have shot Dr Zeki." The applicant and hospital staff arrived and he helped carry Dr Tanr_kulu into the hospital.

72. Following the gun shots he saw two people running in the direction of Old Bitlis Road. They were tall men wearing jeans and trainers. He did not see their faces. He did not know them.

F_rat K_z_l

Statement dated 6 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_

73. According to the statement the witness said the following "concerning the killing of Dr Zeki Tanr_kulu, since he had been ten metres away from the scene of the event": he was living above the grocer's shop at the Old Bitlis Road where he worked. He knew Dr Zeki Tanr_kulu very well, as Dr Tanr_kulu lived in the hospital residences and used to drive back and forth past the shop in his car several times a day. Since customers were constantly coming in and out of the shop he did not always notice who was going past.

74. Around midday on the day of the incident he heard about fifteen to sixteen gunshots about ten metres up the road. He immediately threw himself on the ground and got up again a couple of minutes later. The incident had terrified him but when he came back to his senses Dr Tanr_kulu was lying on the ground in a pool of blood. Members of the hospital staff and Dr Tanr_kulu's wife then came to the scene of the incident and carried Dr Tanr_kulu to the hospital on their shoulders.

75. He did not see Dr Tanr_kulu go past the shop, nor did he see the person or persons who shot Dr Tanr_kulu.

 Mehmet Demirezer

Statement dated 4 June 1996 taken by the Deputy Provincial Governor of Giresun

76. This statement was taken at the request dated 23 May 1996 of the Ministry of the Interior. The witness, who had been District Governor of Silvan in 1993, was asked for his knowledge on the applicant's claim that he, in 1993, had told two doctors, "Mr Zeki was killed because he was Kurdish and a local; I am your guarantor. You are Turkish, nothing will happen to you." The witness denied ever having said this. He suggested that the applicant might have used the name of the highest administrative authority in order to make her application more credible.

c.Official decisions and reports

Incident report dated 2 September 1993 at 13.00 hours drawn up by police officers Turan Da_, Mehmet _ahin and Durmu_ _ahin

77. When, around 12.00 hours on 2 September 1993, the police officers were informed by the district communications centre that shots had been heard, they, being the patrol on duty in the area, made their way rapidly to the place where the incident had occurred, i.e. 50 metres from the State Hospital in front of house no. 15. Upon arrival there they determined that Dr Zeki Tanr_kulu, chief consultant at the hospital, had been taken to the hospital by hospital staff who had run to the scene and that it had not been possible to save him.

78. In the examination of the scene of the incident sixteen 9 mm long empty cartridges and one deformed bullet were retrieved and a small blood bath was discovered. During the investigations which they carried out at the scene and the area around it the residents declared that the perpetrators of the shooting had been two thin and tall people wearing jeans and trainers. One of these had been wearing a yellow T-shirt and the other a white striped T-shirt. In the broad investigation made of the area, no individuals fitting either of the descriptions were discovered.

79. Police officer Mehmet _ahin drew up a plan of the area, which has been annexed to the present Report as Appendix IIb.

Report of post mortem examination dated 2 September 1993

80. The report states that, upon information received from the police communications centre to the effect that Dr Zeki Tanr_kulu had died as the result of an armed attack which had occurred in Silvan Central District at about 12.00 hours on 2 September 1993, public prosecutor Mustafa Düzgün went to the State hospital accompanied by a clerk.

81. The body of Dr Tanr_kulu was identified by Mehmet _irin Ba_aran. In the forensic and medical examination which was then carried out in the presence of Dr Tahir Buran and Dr Murat Y_ld_r_m, both working at the State hospital, thirteen bullet entry and twelve bullet exit wounds were recorded, inter alia, on the nose, left ear, left forearm, to the left of the fifth vertebra, the thumb, the right nipple and above the right knee. One bullet was found lodged just below the skin on the inside of the left femur. This bullet was surgically removed and handed over to the clerk for safekeeping. Apart from these findings, there were no other signs of injury by a firearm or by any weapon which cuts, perforates or crushes, nor were there any traces of strangulation, hanging or poisoning.

82. The body was then handed over to the medical examiners who stated that they agreed with the findings established by the public prosecutor. They expressed as their opinion that the cause of death had been the injury to, and extensive bleeding in, the chest and vital internal organs. In view of the obvious cause of death they felt that there was no need for a classical autopsy to be carried out.

83. As the public prosecutor agreed with the opinion of the medical examiners, as the cause of death was obvious and as there were no bullets left lodged in the body, it was decided that no classical autopsy should be carried out. A burial licence was issued and the body was handed over to the identifying witness.

Expert's report from the Regional Criminal Police Laboratory dated 9 September 1993

84. The examination, requested by the Silvan District Police on 3 September 1993, concerned the sixteen 9 mm cartridges and one deformed bullet found at the place where Dr Zeki Tanr_kulu had been shot by a fire arm in front of the house with number 15/A on the Kaymakam Slope by persons unknown. The comparative examination of the cartridges indicated conformity in various aspects demonstrating a single source. The report does not indicate with what kind of fire arm the cartridges and bullets might have been used.

85. The cartridges were kept in the archives of the Police Laboratory in order to establish whether they might have been fired from guns sent for examination to the laboratories by various authorities of the fourteen provinces of the region. When and if the source of the bullets was identified, a report would be drawn up.

86. An extremely deformed 9 mm bullet was also kept in the archives under the same entry number.

Decision of lack of jurisdiction dated 5 November 1993

87. This decision, issued by a public prosecutor at Silvan, Mustafa Düzgün, lists two unidentified persons as suspects of the offence of murder of Zeki Tanr_kulu committed on 2 September 1993. It notes that at around 12.00 hours on the day of the incident the deceased was shot with (a) pistol(s) and killed by two unidentified persons between the State hospital and the security directorate.

88. After the examination of the documents, and considering that the investigation into the incident fell within the competence of the prosecutor's office at the State Security Court in view of the quality of the offence, the way the incident was carried out and the existing evidence, the decision was taken that the Silvan prosecutor's office lacked jurisdiction and that the documents were to be transmitted to the prosecutor's office at the Diyarbak_r State Security Court in order for the legal proceedings relating to the incident to be considered and performed.

d.Evidence concerning the scene of the incident

Plans of the area

89. The Commission has been provided with a number of plans of the area where the incident took place and which have been annexed to this Report: the plan drawn up by the applicant and submitted with her application (Appendix IIa), the sketch of the area made by police officer Mehmet _ahin (para. 79, Appendix IIb), a plan on a scale of 1:1000 submitted by the Government on 30 January 1997 (Appendix IIc), and a further plan drawn up by an architect according to information provided by the applicant and submitted with her final observations (Appendix IId).

Photographs and video film

90. The photographs and video film, submitted by the Government on 30 January 1997, show that the Kaymakam Slope is a steep road leading from the Gazi Road down to the Old Bitlis Road. Crossing the junction with Old Bitlis Road, the street continues as 19 May Street and runs along the hospital grounds. The gates to the hospital grounds are situated on the Old Bitlis Road, slightly to the left of the junction of that road with the Kaymakam Slope and 19 May Street. Opposite the hospital gates, at the other side of Old Bitlis Road, is a stone wall, about two metres high, which curves around the corner onto the Kaymakam Slope.

91. The security directorate is a five-storey building. Seen from the bottom of the Kaymakam Slope, it is situated at the top on the right, on the corner of the Kaymakam Slope and Gazi Road, facing the latter. A uniformed, armed guard can be seen at the front of the security directorate. Next to the security directorate on the Kaymakam Slope is a four-storey dwelling. In between the two buildings is a passage way. A uniformed armed guard is standing in front of a sentry box at the entry to the passage way on the Kaymakam Slope. From the sentry box the lower half of the left side of the Kaymakam Slope is not visible. There is another sentry box with a uniformed armed guard further along the passage. By letter of 25 June 1997 the Government confirmed that on the day of Dr Tanr_kulu's death, the situation as regards the number and position of guards around the security directorate was the same as shown in the photographs and on the video film.

92. The gradient of the Kaymakam Slope is not constant; seen from the bottom, it rises gently at first and then quite steeply to even out towards the top. One shot of the video film shows that when standing at the bottom of the slope, it is possible to see only the head and shoulders of people standing at the top. Furthermore, the street is not straight. From the top, it is initially straight and then turns slightly to the left before becoming straight again.

93. There is one side street on the left hand side of the Kaymakam Slope, seen from the bottom, which is called _elale Street. As to the layout on the right-hand side of the street, there is a grocer's shop situated in a two-storey building on the corner with Old Bitlis Road. On the Kaymakam Slope-side of that building, the ground floor has one unshuttered window and one window with a metal shutter next to which is a door, also shuttered. A piece of paper stuck on the metal shutter over the door indicates that the premises bear street number 15/A.

94. Next to the building with the grocer's shop is a wall with a door set in it next to the door of the grocer's shop. Hand-drawn crosses on three of the photographs indicate that Dr Tanr_kulu was shot in front of either the door to the grocer's shop or the door set in the wall. There appears to be a gap in the wall and after that there is a slightly lower wall, in  a bad state of repair. Behind these walls are gardens belonging to houses standing further back from the Kaymakam Slope. Further up, the buildings open directly onto the street. From that point there is an uneven pavement running parallel with the street but considerably higher than street level. The video shows what might be a narrow, uneven path with some steps leading off the pavement immediately beyond the badly maintained wall mentioned above.

95. One photograph taken just outside the hospital gates shows that from that point the grocer's shop, the wall with the door set in it, the gap in the wall and the lower wall are visible. The rest of the Kaymakam Slope is blocked from view by the wall opposite the hospital gates.

2. Oral evidence

96. It did not prove possible to ensure the appearance of all the witnesses summoned by the Delegates to be heard during the hearing in Ankara. Umut Yüce and Dr Tahir Buran (one of the doctors who had conducted the post mortem examination) did not attend due to illness. F_rat K_z_l was fulfilling his military service and was involved in exercises which prevented his presence at the hearing. The Government submitted in respect of _inasi Malgil that they had been unable to find his address in order to serve the summons on him. Ünal Haney, who had been identified by the Government as the public prosecutor in charge of the investigation at the Diyarbak_r State Security Court, informed the Commission that he was not prepared to attend the hearing. Although Mustafa Düzgün, the public prosecutor who attended the post mortem examination and who issued the decision of lack of jurisdiction of 5 November 1993, was said to have boarded a bus in order to travel to Ankara, he did not appear before the Delegates. No explanation for his failure to attend has been submitted by the Government, despite a number of requests to that effect.

97.The evidence of the applicant and five witnesses heard by the Delegates may be summarised as follows:

Selma Tanr_kulu

98.Selma Tanr_kulu stated that she was born in 1964. She had married Dr Zeki Tanr_kulu in 1983. When they had met he had still been a student and he had graduated in 1983/1984. Her husband had been a general practitioner, he had not specialised. In 1990 they had moved to Silvan from Çanakkale where her husband had been working as a doctor in the private sector for a year. Her husband was from Silvan and they had decided to move there after his mother died. His father and sisters had been living there.

99.In Silvan they had moved into a small house. After the birth of their second child they had moved into a slightly bigger one-storey house which was also situated in the hospital grounds. It had a balcony approximately half a metre high from the ground. The hospital was about thirty metres from their house. Her husband had also had a private practice in Silvan where he worked if he was not on call at the hospital. To go from the hospital to the private practice, her husband had to walk up the Kaymakam Slope and past the front of the security directorate building.

100.As a family, they had been on good terms with the security forces in Silvan. A policeman could quite easily have come and rung their doorbell in the middle of the night if his child had been ill.

101.Although at first she had found Silvan a nice place to live, the situation had deteriorated and every day people, mainly intellectuals, were killed by unknown perpetrators. People had been saying that the perpetrators were picked up by police cars, taken to the security directorate and then released.

102.Initially, there had been three doctors at the Silvan State hospital. On 10 June 1992 Dr Emin had been killed and the chief consultant, Dr Can, had subsequently sought a transfer out of the area. As a result, her husband, who had been appointed deputy chief consultant following Dr Emin's death, had been the only doctor at the State hospital for a period of about eight months. The perpetrators of the murder of Dr Emin had never been found. A medical assistant had been killed before that.

103.The press had wanted to talk to her husband about the killing of Dr Emin but he had refused, saying that his life would not be secure. The press had reported that doctors had refused to talk to them for fear of their lives.

104.There had been a rumour going around about an army captain, called Captain Vural, who was said to have a list and that the people featuring on this list were killed one by one. People had said that her husband's name was also on the list. She had been very worried for her husband's safety and had continually tried to persuade him to leave Silvan. However, her husband had said that although it was risky to be a doctor in Silvan during that period it had to be done. He had always tried to protect her from his professional concerns and had said that nothing would happen to him.

105.She confirmed that during the time that her husband had been the only doctor at the hospital he would have been the person to carry out any task which the law required take place in a hospital, like examining detainees. He would have recorded everything that he saw as a doctor, although he had told her a few times that the security forces had ordered him what to write in a medical report. She remembered one occasion where a woman had suffered a miscarriage as a result of having been tortured by the security forces and the security forces had taken her to the hospital and had asked for a report to the effect that there had been nothing wrong with the woman while in custody. Her husband had also said to her once or twice, "If we allowed them, they would write it themselves", "them" being the security forces.

106.Before the incident on 2 September 1993 her husband had once been taken in for questioning by the police. This had been on 6 April 1993 when, at 2.30 hours in the morning, the hospital had telephoned her husband and had asked him to come because a person had been taken ill. She had said to her husband that the hospital should contact the doctor on call and that he should stay at home. However, a few minutes later the hospital had called again and her husband had been told that the police had come for him. She had insisted on going with her husband to the security directorate. At the security directorate her husband had been put in a different room from her. After a while she had gone home with a police officer in order to fetch a coat for her husband. She had stayed at home and her husband had been released around 7.30 hours that morning.

107.She was shown a number of documents which had, according to the Government, been signed by her husband on 6 April 1993. It appeared from these documents that the police had received an anonymous tip-off to the effect that her husband had been sheltering a member of the PKK and that upon this his house had been searched, he had been arrested, subjected to a body search and released when it had been shown that he had had nothing to do with the alleged offence. She said that she did not know whether the signature on these documents belonged to her husband but that she was sure that at no time had her house been searched, and that, therefore, it could not be her husband's signature.

108.Three or four days before 2 September 1993 she had noticed that the security forces kept gathering at or near the hospital as if to monitor her husband's comings and goings. He had laughed off her concerns. She had also spoken about it to the head nurse and to a Dr Ali but neither of them had known the exact reason for the security forces' behaviour. It had been said that the Chief of Security was new and that he had wanted to get to know Silvan, which she had thought an  odd explanation.

109.They had been planning to go on holiday on 2 September 1993. Her husband had applied to the District Governor, Mehmet Demirezer, for permission to take his annual leave which he had been due. However, the District Governor had suggested that he wait a while in order for the newly arrived doctors to settle in first and her husband had accepted this. At that time, a Dr _lhan had just arrived and a Dr Ali had been there since only a few months. There had also been a Dr Murat Y_ld_r_m but she thought that he had been one of the doctors who had left Silvan after Dr Emin had been killed.

110.In the morning of 2 September 1993 she had been to see her husband in connection with a vaccination for their daughter. To this end they had gone to the medical centre together and he had then accompanied them back to the house and had returned to the hospital at around 10.00 hours. Shortly before 12.00 hours she had been on the balcony feeding her daughter. A niece had been with her. She had seen her husband leave the hospital, most probably he had been on his way to his clinic; he had waved at them as he had walked past their house at a distance of about four to five metres before going out of the hospital gates. A minute or two afterwards she had suddenly heard tens or even hundreds of gun shots from automatic weapons. Without thinking she had immediately jumped from the balcony and had run out of the hospital grounds, hoping to be able to pull her husband from danger. She had then heard hand gun shots. The moment she had come out of the hospital gates she had seen her husband lying on his back on the right-hand side of the Kaymakam Slope, with his feet pointing towards the hospital, at a distance of approximately twenty-five to thirty metres from their house, and she had run towards him. She had not seen anyone near or running away from her husband. She had not seen _inasi Malgil whom she knew to be a youngster of about eleven years old who did odd jobs around the hospital. She had seen a person whom she knew as Umut inside the hospital gates as she had jumped from the balcony and had started running.

111.She had knelt at her husband's side and had told him not to worry, he would be all right. He had been hit by the bullets mostly on the front of his body. When she had looked up she had seen about eight members of the security forces who were standing in a line across the top of the Kaymakam Slope, no more than ten metres from where her husband was lying - she had been able to see their faces. She had known them all by sight as they had been the ones who had always used to come to the hospital and who had stood guard in front of the security directorate. There had always been at least eight of them there at all times. Moreover, some of them were the officers who had come to arrest her husband on 6 April 1993. They had appeared very calm, as if they were out on a stroll. They had been dressed in plain clothes but had all worn khaki vests which they used to carry spare ammunition and hand grenades. They had been armed with automatic weapons the barrels of which they pointed at the houses but they had also had pistols. There would normally have been four or five policemen around the security directorate but she had never seen them stand in a line across the street. They had watched her and her husband but had not undertaken action of any kind. She had then said to her husband, "Here is the State you trusted! Look what it is doing to you! It does not even help you!"

112.She had run back to the junction shouting, "Zeki has been shot," trying to make herself heard by the people in the hospital. At that moment she had seen two people running down Old Bitlis Road, about halfway between the Kaymakam Slope and the next turn on the left. She had run after them for a little while, screaming that the murderers were getting away, then she had tripped and fallen down. The security forces had not reacted to her screams although it would have been easy for them to apprehend the two men. They could have used the two armoured cars which were always standing ready in front of the security directorate. She had only seen the two men from behind, but had guessed that they were no older than twenty-five. One had been wearing brown trousers and a yellow T-shirt, the other jeans and a light blue T-shirt. Both had worn trainers. She had never seen them before. She had not seen any weapons in their hands. They had turned up the first street on the left. Since there had been no reaction whatsoever from the security forces at her screaming, she had been convinced that the two men must have run to the security directorate where they would have been hidden. She did not exclude, however, that these two men had not in fact been her husband's killers but that they might have been part of a cover-up.

113.She had then remembered that her husband had a gun in his briefcase and she had run back up to where he was lying. He had only acquired the gun a fortnight ago, for reassurance, as he had told her. He had been given a licence to carry the gun. As far as she was aware he had not received any threats. He had not carried out any political activities.

114.She had taken the briefcase but had not taken the gun out. She had asked the security forces for help once again, telling them that the perpetrators were getting away, but they still had not said anything or reacted in any way. The hospital staff who had arrived in the meantime had carried her husband into the hospital and she had followed them, shouting and screaming, "You let the killers get away!"

115.While first aid was being administered to her husband she had seen a man just standing there, watching. She had thought he was the District Governor whom she would have expected to come upon hearing the news that the hospital's deputy chief consultant had been the victim of an armed assault. She had asked the man, "Was it meant for today? You did not allow him to go? Did you know he was going to be killed?" Someone had then said to her that the man was not the District Governor but the Chief of Security, upon which she had said that it made no difference and that her husband had been killed in front of the security directorate. She had asked him why he did not go to catch the killers instead of coming to the hospital. She had asked him to leave and he had left the room.

116.She had not been allowed to attend the post mortem examination. It had been carried out by two doctors working at the hospital. She had seen the public prosecutor Mustafa Düzgün who had come for the post mortem examination but she had not spoken with him. _irin Ba_aran, the person who had identified her husband, was the son of her husband's uncle.             

117.The police officers who had drawn up the incident report (paras. 77-79) had arrived after her husband had been taken to hospital and they had only found a pool of blood. Asked whether she had spoken to any of these officers she said that in the hospital she had told everybody who had come up to her that there had been two people.

118.After the incident all the doctors had gone to see the District Governor asking for a transfer because they did not feel safe. However, the District Governor had told them that her husband had been killed because he had been a Kurd from Silvan. He had assured the doctors that he would guarantee their safety and that he would raise hell in Silvan if anything happened to them. She had asked one of these doctors, Dr _lhan, to write down what the District Governor had said to him. But Dr _lhan had refused, saying he could not take that risk.

119.She had not been questioned by the authorities about the incident. It was not true that police officers had come to her house and had been turned away by her. She had seen the public prosecutor at the hospital on the day of the incident but he had not wanted to speak with her and he had not been in touch with her after that. Several times she had telephoned the security directorate, asking to speak to the Chief of Security and saying that her statement ought to be taken as she was the only material witness. However, she had been told that the Chief of Security was not present and the telephone had been put down. She had also tried to see the District Governor but his office had been closed to the public. She did not know whether statements had been taken from any other people.

120.It was correct that in the climate of fear which had existed in Silvan at that time people were reluctant to give statements. They would prefer to say that they had not seen or heard anything, even if they had been an eye-witness to something. As a result it was true that the police or a public prosecutor might come up against considerable difficulties when carrying out an investigation. In reply to the question whether in view of her state of distress, the security forces might have started collecting evidence from sources other than herself in order not to distress her further, she asked why in that case the two men running away had not been caught.

121.It was correct that there had been a grocer's shop on the corner of the Kaymakam Slope and Old Bitlis Road. The door of the shop had faced the Kaymakam Slope. Although she would recognise the person who had run the shop, she did not know his name. She agreed that a person could have reached her husband from the grocer's shop more quickly than she had, but she insisted that when she had got to her husband there had been nobody there. She was surprised when F_rat K_z_l's statement of 6 September 1993 was read out to her (paras. 73-75) since the contents of that statement suggested that K_z_l had reached her husband's body before she had. Yet she had spoken to the man running the grocer's shop after the incident and he had told her that he had been very frightened, that he had not left the shop for ages and that therefore he did not know what had happened.

122.When _inasi Malgil's statement of 2 September 1993 was read out to her (paras. 68-70) she said that she had not seen him at the place of the incident. She had spoken to him after the incident and he had told her that he had indeed been there but that he had not seen anybody, that he had been afraid and had dived behind a garden gate.

123.The person she knew as Umut had worked at the Mother and Child and Family Planning Unit. Umut Yüce's statement of 2 September 1993 was read out to her (paras. 71-72). She said that Yüce had not been at the scene of the incident when she had first got to her husband. Yüce might well have seen her husband lying in a pool of blood but this would have been after she had reached her husband. She remarked that Yüce had said in his statement that he had come running from the hospital which meant that he would have had a far longer distance to cover than she had.

124.Not long after the incident she had spoken to an inspector of the Ministry of Health whom she had told, inter alia, that nobody had wanted to take her statement. He had asked the District Governor how the incident could have happened with so many security officers at the scene. The District Governor had told the inspector that the security officers had not interfered at first because they had been scared.

125.Twenty-five days after the incident she had gone to the Diyarbak_r branch of the Human Rights Association because nobody had taken her seriously. She had signed a power of attorney; she recognised the signature on the power of attorney shown to her by the Delegates as hers.

126.She had been informed that the investigation had been transferred to the Diyarbak_r State Security Court when she applied to the Silvan prosecutor's office for the report of the post mortem examination report and a map which she needed for her application to the Commission. She had been given the map which had been drawn up by one of the police officers after the incident but she had thought it incorrect and she had made her own. The police officer's map had not featured the security directorate and had included a non-existent street called Surüstü Street, turning right halfway up the Kaymakam Slope. Her drawing was a rough representation of the area; she had made a mistake in putting the security directorate on the left of the Kaymakam Slope as it was situated on the right.

127.When the period of mourning had passed she had moved to Diyarbak_r.

128.Quite some time after the incident she had been summoned by letter to the chief public prosecutor at the Diyarbak_r State Security Court. She had been informed that a warrant for her arrest would be issued if she did not appear. She did not remember exactly when this had happened, but she had already moved to Diyarbak_r, her third child had been born and from the clothes she remembered wearing she knew that it was not in the summer. She had been very scared.

129.The chief public prosecutor, Bekir Selçuk, had asked her to sign a blank piece of paper. Initially she had refused but when she had seen that Mr Selçuk was getting angry she had put her signature on the paper several times. She had then been shown another piece of paper in such a way that she had only been able to see the signature on it. She had confirmed that that signature was hers.

130.Mr Selçuk had told her that she had filed a complaint against the State and had asked her what she hoped to achieve, saying that she would not gain anything. In reply she had said that she wanted the culprits punished and to prevent any further killings from taking place. She had also said that she had been the only witness and that to date nobody had taken her statement. She had then told him exactly how her husband had been killed, speaking for about one and a half hours. Mr Selçuk's secretary had written her statement down.

131.Mr Selçuk had remarked that the killing of her husband did not really look like a Hizbullah killing and he had asked whether it could have been the PKK. She had said that she did not know who had killed her husband but that she did know that the security forces had not performed their duties as they had helped the killers escape. Mr Selçuk had then adopted a fatherly attitude, pointing out to her that she was very young, had no family, that her husband had no family either, that her father-in-law was very old and that she had to be both mother and father to her children. He had advised her to give up her complaint.

132.She had signed the statement which had been drawn up but she had not read it completely as she had had to leave in order to breast-feed her baby. However, she had made sure that the statement contained her confirmation of the fact that she was complaining.

133.As she was leaving, she had said to the secretary not to try and do anything to her statement, as she had heard that at the State Security Court statements were forced out of people or it would be denied that a statement had been made. After having gone downstairs she had gone back up again because she had been very nervous and frightened. She had again asked the secretary whether her complaint had been taken down correctly. The secretary had shown her the statement where it said that the plaintiff accepted her case.               

134.Later that day she had gone, as instructed, to the security directorate to deliver the letter by which she had been summoned to the chief public prosecutor.

135.At the hearing, her statement to Bekir Selçuk was read out to her. She denied having told Mr Selçuk that her husband had been threatened by Hizbullah and the PKK. By way of example of the conduct of the security forces she had told him that people would swear at civil servants, nurses in particular, and would insult them about their life styles, they would also intimidate and threaten doctors - all in the presence of the security forces who would do nothing.

136.She also denied saying that there had been two women screaming in the gardens of the houses along the Kaymakam Slope. Other than the security forces there had not been anybody else there.

137.She further denied telling Mr Selçuk that she had been telephoned by a person called Kevin; she did not know him. She had gone to the Human Rights Association to file a complaint without having been contacted by them previously. The purpose of her application had been to bring the culprits to justice, not for her to receive compensation.

138.It was correct that she had received a death allowance pursuant to Article 21 of the Anti-Terror Act. But in applying for it at the ministry hurtful things had been said to her. A legal adviser had told her, "The civil servants working there are daytime pen pushers and nighttime gun runners." At this she had replied that she did not want the allowance if that was what they thought of her husband, but after a long time she had received it.

Bekir Selçuk

139.Bekir Selçuk said that he was born in 1944. At present he was deputy chief prosecutor in Ankara, but from 1992 to 1996 he had been chief public prosecutor at the Diyarbak_r State Security Court.

140.According to the Act by which the State Security Courts were established, the chief prosecutor at such a Court was authorised to investigate any incident occurring in the provinces which fell under the Court's jurisdiction. In general, all incidents occurring in the region came under the Court's jurisdiction and would be referred to the prosecutor's office at that Court. If no link could be established between the perpetrator and an organisation within the meaning of provisions of the Criminal Code and the Anti-Terror Act, the investigation would be referred to the prosecutor's office of the general courts.

141.The chief prosecutor at the State Security Court could assign the investigation to one of the prosecutors working with him or he could transfer his competence to the local prosecutor. As soon as an incident occurred the local prosecutor would notify the prosecutor's office at the State Security Court and the local prosecutor would then receive instructions on how to conduct the investigation on behalf of the prosecutor's office at the State Security Court. This is what had happened in the investigation into the killing of Dr Tanr_kulu. After two months, on 5 November 1993, the investigation had been transferred to the prosecutor's office at the Diyarbak_r State Security Court and he had assigned the investigation to his prosecutor colleague Ünay Haney. It had been established that the investigation conducted by the Silvan public prosecutor contained a number of deficiencies and it had been completed.

142.As regards the investigation that had been carried out, all apprehended suspects of other offences had also been questioned about the killing of Dr Tanr_kulu. An incident report had been drawn up. A post mortem examination had taken place. As the cause of death was clear there had been no need for a classical autopsy. A classical autopsy could not have shed any more light on the question from what distance Dr Tanr_kulu had been shot. Since there were no traces of gun powder near the bullet entry points or scorch marks on the clothing, he deduced that Dr Tanr_kulu would not have been shot at close range.

143.Ballistic analyses had taken place. Empty cartridges had been found where the incident had taken place and that showed that the shots had been fired at long range. The cartridges and bullet which had been retrieved had been examined to see whether they had come from a weapon which was known to the police and the same check would be carried out in respect of any weapon which had fallen into the hands of the police after the incident. The cartridges and bullet had also been compared with cartridges and bullets found elsewhere in order to see if the gun they had come from had been used in other crimes. It was not possible to identify a type of gun from cartridges and bullets alone. It had been established that the cartridges and bullet had come from one and the same gun.

144.Asked whether one would have expected to find the bullets which had passed through Dr Tanr_kulu's body close to or far from the body, he said that this depended on the specific features of the weapon used. If it was a powerful weapon the bullets could still have travelled a very long distance after having passed through the body. But if the gun was less powerful, the bullets could have fallen quite close to the body.

145.As he was not in possession of the file he did not know whether any other witnesses had been heard but all persons in the area would have been asked whether they had seen anything. He was under the impression that only the applicant had made a statement; as it was not possible for him to read every file that was sent to the prosecutor's office he was not aware that two or three people had made statements. He had taken the applicant's statement himself; the fact that Ünal Haney had been assigned to the investigation had not deprived him of his authority to take statements. Despite all the efforts that had been made to obtain evidence, the perpetrators had so far not been caught and for that reason the investigation was currently still continuing. The specific customs and established social structure, which he characterised as feudal, of the region also prevented crimes from being solved in a short time. Eye-witnesses would refuse to testify. Apart from crimes being committed by organisations like Hizbullah or the PKK, violence would also occur as a result of a private settling of accounts. The geography of the area allowed members of the organisation to escape to neighbouring countries where they would stay a long time, coming back to Turkey under a new identity and with different physical features.

146.Moreover, it was not until the applicant had made her statement that they had been aware of the existence of the two men whom she had seen running away. He assumed that the applicant had gone into hiding after the incident for security reasons; she could not be found and that must have been the reason why her statement had not been taken until more than a year after the incident. If she could have been found sooner, the Silvan public prosecutor would have taken her testimony. Asked whether the file would contain information concerning the steps taken to find out the applicant's address, he replied that investigations had probably been carried out to ascertain where she might have been staying or where she might have gone after leaving Silvan. They had probably received information to the effect that she could not be found. The date on which her statement had been taken had nothing to do with the fact that the application had been communicated to the Government five weeks previously.

147.They had found out where the applicant was staying when she had gone to the State Security Court with some queries concerning a pension. They had helped her with this matter. She had then been summoned to his office in order to make a statement. If she had not come, the police could have brought her. The applicant could not be forced to make a statement, but if she had not wanted to say anything she would have had to come to his office to tell him that. After the interview, the summons which she had received would have been endorsed with a note stating that she had come to give her statement and in that way the police would be informed.

148.He guessed that he had been informed of the fact that the applicant had complained to the Commission but only in respect of the people to whom she had given a power of attorney and not in respect of the actual incident. He remembered asking her to make a statement because there had been some allegation that the power of attorney was forged and she had said that she had not given a power of attorney. He could not remember what the applicant had told him about the circumstances in which she had addressed the Human Rights Association in Diyarbak_r since there was no need for her to have gone there. Whenever an incident like that happened the Human Rights Association would find out who the injured parties were and draw up a few scenarios by themselves.

149.It came within the jurisdiction of a prosecutor at a State Security Court to determine whether someone's application to the Commission was indeed that person's application because whenever the right of individual petition was exercised, the files were with them. They would send out the documents relating to the file. Therefore, it was his task as a prosecutor to ask whether the signature on an application to the Commission or on a power of attorney was genuine. It had been established that branches of certain organisations had abused the right of individual petition for political or commercial reasons, by filing complaints on behalf of imaginary persons. It was up to the Commission to decide whether a petition was genuine, but the judicial bodies of Turkey found it regrettable that people went to the Commission without exhausting domestic remedies. In that context they would tell people about their rights under domestic law. Moreover, he was authorised to investigate cases of forgery. In any event, the right of individual petition would not be impeded.

150.After having investigated this matter, it might be that he would send the file to the public prosecutor attached to the general courts, or to the administrative authorities, to investigate the subject matter of the application. Were he to establish that the offence of forgery had been committed, he would send notice to the Diyarbak_r chief prosecutor's office.

151.It was impossible that anything would have been included in the written account of the applicant's statement to him that she had not said. He would have let her read the statement before he asked her to sign it. He would not have asked her to sign a blank piece of paper.

152.When it was put to him that the applicant had told the Delegates that she had not received a telephone call from a person from England, he said that she must have told him that otherwise it would not have been included in the statement. At the time he had spoken with her, he had already heard of a person called Kevin Boyle.

153.He would have asked her if she suspected anyone and she must have said that Hizbullah and the PKK had threatened her husband. He could not remember saying that the attack on the applicant's husband did not look like a Hizbullah killing but that it sounded more like a PKK action. In any event, it was not the duty of the investigating authority to interpret such matters.

154.If a person complained to him that security forces had been negligent, he would include that in the written account of that person's statement. However, he would not have the authority to investigate that matter as the State Security Courts deal with offences committed against the State and do not attend to offences committed by officers in the course of their duty in the anti-terrorism field. If it appeared that there had been negligent conduct, the competent authority would be notified or the person complaining would be advised on what course of action he or she should take.

155.It had not been possible to establish the identity of the two women who the applicant had told him had been shouting at the scene of the incident, and for that reason their statements had not been taken.

156.Compared to the number of people that had been killed in other professions, very few doctors had been killed in the region at that time. However, it was true that every person working for the State had been at risk because the organisation tried to eliminate all those persons. In the time he had worked in Diyarbak_r he had never received any complaints in connection with contra-guerillas.

157.Asked whether he had received any information to the effect that the security forces had released perpetrators, he said that if there was no evidence of the guilt of a suspect, the latter would of course be released.

Turan Da_

158.Turan Da_ stated that he was born in 1966. He had graduated from the police academy in 1991 and had worked as a police officer in Silvan from 1991 to 1994. He had been part of the anti-terror branch, which branch had consisted of three teams, one of which was on duty during the day and the other two at night. The members of the anti-terror branch did not wear uniforms but plain clothes with a hunting jacket in which they kept spare ammunition. None of the security personnel in the district had carried hand grenades.

159.On 2 September 1993 he had been on patrol duty with two of his fellow team members, Mehmet _ahin and Durmu_ _ahin, in a Ford minibus. A team ordinarily consisted of five or six officers. Every day of the week one of them would be having a day off and, on 2 September 1993, one other member of his team had been on annual leave. At around 11.55 hours they had been informed by radio through the communications centre at the security directorate that shooting had been heard near the hospital. Other teams had also responded to the announcement but it had been mainly intended for the anti-terror team and they had arrived first at the scene. The only people present at the security directorate itself had been administrative staff.

160.It had been the two guards on duty outside the security directorate who had reported the shooting to the communications centre. On no account would these guards have been allowed to go to the scene of the incident, as the incident might have been stage-managed to act as a decoy for an attack on the security directorate. Behind the security directorate building was an open area from where one could reach the entrance to the staff apartments which were based on the upper floors of the building. A guard would keep watch in that area during the night, but during the day one of the guards at the front of the building would occasionally walk to the back of the building.

161.They had reached the scene of the incident around midday. It had been at the hospital exit, on the road towards the security directorate. There had been a crowd there and they had been told that Dr Tanr_kulu had been shot. They had asked the people in the crowd if they knew who had shot Dr Tanr_kulu and if they had seen anything. They had not received any clear answers. At that time Dr Tanr_kulu had already been taken to the hospital. While his two colleagues had stayed outside, he had gone to the hospital and had seen the other doctors attending to Dr Tanr_kulu. He had not got close enough to see where Dr Tanr_kulu had been wounded.

162.In the hospital he had spoken to the applicant who had given him a description of the culprits. As far as he remembered she had also told him that the two men had run in the direction of the sports stadium behind the hospital. She had not told him that the two men had run down Old Bitlis Road. They had started a detailed search together with three or four colleagues from the police station and the public order squad who had also responded to the radio message from the communications centre; there had been about ten people in all. This would have been about ten minutes after his team had arrived at the scene. They had found no trace of the two men.

163.It had not been possible to seal off any roads in the gardens behind the sports stadium, where they had been told the two people had fled, as there were a lot of trees there and a river bed. In previous incidents these gardens had also been used as an escape route.

164.He estimated that the distance between the security directorate and the hospital was about 200-250 metres. The distance between the place of the incident and the security directorate would have been about 150-200 metres. From the top of the Kaymakam Slope, where the security directorate was, it would not have been possible to see the place of the incident clearly because of the steep gradient of the slope.

165.The main entrance of the security directorate was on Gazi Road. To the right of the directorate, also facing Gazi Road, was where the two armoured vehicles were kept. They would only be used at night by the two other teams who belonged to the anti-terror branch.

166.Asked who had provided them with the information, contained in the incident report, that the perpetrators had been two men, both thin and tall and wearing jeans and training shoes (para. 78), he said that he could not remember exactly. He would have jotted the names of anyone who had given information down on his notepad to use in the incident report. He doubted whether his notes would have been added to the file, but whatever the notes required to be done would have been carried out. In view of the fact that the case-file contained statements of three people, he said that it was indeed possible that he would have noted down the names of three people. He could not remember whether he had noted the applicant's name down as well.

167.They had also examined an area of about fifty to sixty metres around the scene of the incident very closely. They had recovered sixteen empty cartridges and one deformed bullet which had been scattered over an area of about five to ten metres. No other bullets had been found. Based on the number of cartridges, it was his personal conjecture that more than one weapon had been used. It had not been the duty of his team to take photographs of the scene. In incidents of this nature the photographer would normally be informed afterwards and he would take photographs of the scene of the incident and of people. He did not know whether photographs had been taken in this case.

168.He had not questioned the applicant about the incident later on, even though she had been an eye-witness. After he had gone off duty at around 19.30 hours that evening he had handed the relevant documents and notes over to another team and that team would have continued the investigation. Although he initially said that he would have expected the members of the other team to have questioned the applicant, he later said that the mourning ceremony had gone on for over a week and that it had not been possible to question her in those circumstances. At some later stage he had been told by his colleagues that they had not been able to find the applicant to take her statement. He had not seen the applicant again once the funeral and mourning ceremonies were over.

169.It was correct that the incident report had been drawn up at the security directorate at 13.00 hours, i.e. one hour after the incident. He had written the text and they had all signed it. His colleague Mehmet _ahin had also drawn up the plan of the scene of the incident after they had returned to the security directorate. The street called Surüstü Street which had been drawn as a turning to the right off the Kaymakam Slope as seen from the hospital end, was in fact a passage way accessible only to pedestrians. Surüstü Street led onto another street which came out at Gazi Road, about 100 metres from the security directorate. Surüstü Street did not run past the back of the directorate building.

170.After the report and the plan had been drawn up the investigations had continued throughout the day. His team had not drawn up any more records since no evidence had been recovered. The administrative staff at the security directorate would have interviewed the persons whose statements needed to be taken and they would have forwarded the case-file to the prosecutor along with the required cover letter containing information on the investigations conducted. In respect of the names of the police officers appearing underneath the statements from witnesses, he identified Mustafa _im_ir as the head of the anti-terror branch and Ferhat Karata_ as a clerk.

171.They had continued to attempt to solve the case, by asking questions of the general public and the Tanr_kulu family's circle of friends. But they had not been given any information, members of the public being reluctant to help the State forces in those parts.

172.It was true that it had been dangerous to be a civil servant in that area at the time. As far as protecting doctors was concerned, the police would not actually protect the individual person but they would monitor and patrol the area.

173.The total number of staff at the security directorate, including administrative staff, had been 110. There would have been more staff on duty at night than during the day in view of the security situation in the area. He had not heard of a Captain Vural.

174.He had known Dr Tanr_kulu quite well. When his children were sick or if he was sick himself, he would consult Dr Tanr_kulu, even if it was in the middle of the night. Dr Tanr_kulu had always been prepared to help. In his opinion, the perpetrators of the killing of Dr Tanr_kulu, who had been well-liked and esteemed throughout the district, had been terrorists. He had read newspaper reports about the presence of contra-guerilla forces in the Silvan area but he did not know how authentic these reports were. During his time in Silvan the security directorate had been attacked three or four times. In that time incidents were taking place every day; he estimated that about 500 people had been killed.

Mehmet _ahin

175.Mehmet _ahin said that he was born in 1965. He had been a member of the anti-terror branch stationed at the Silvan security directorate from April 1991 to April 1994. During his time there about 400 to 500 people had been killed.

176.On 2 September 1993 he had been on patrol with his colleagues Turan Da_ and Durmu_ _ahin when they had been informed by the communications centre that there had been a shooting near the hospital. They had immediately gone to the hospital, arriving there about five minutes later. The incident had taken place between the hospital and the security directorate, at about 100 metres from the latter building. A crowd had gathered but Dr Tanr_kulu had already been taken to the hospital. Turan Da_ had gone to the hospital while he and Durmu_ _ahin had investigated the scene of the incident; they had picked up about fifteen empty cartridges and had found one deformed bullet. The crowd had stood back far enough to allow an investigation of the scene. They had searched an area of about ten to fifteen metres, i.e. the distance that empty cartridges can travel, but they had not found any other bullets. He did not know whether any photographs had been taken of the scene.

177.They had also asked the people in the crowd how the incident had happened. However, everybody had sworn that they had not seen anything and no information whatsoever from the crowd had been forthcoming, therefore they had not taken anybody back to the security directorate for the taking of statements. This had been the usual reaction of the general public in Silvan at the time. The description of the presumed killers had been given to Turan Da_ by the applicant, not by any member of the crowd.

178.The applicant had told Turan Da_ that the two presumed killers had run in the direction of the gardens to which the path down at the bottom of the hospital wall led. They had investigated that area until the end of their shift at which time they had handed over to their colleagues on night duty, informing them of the description given by the applicant. They had been assisted by three or four colleagues from the police station and a team of the public order branch who had also responded to the message put out by the communications centre. In all there would have been about ten police officers conducting the search.

179.When the names of _inasi Malgil, F_rat K_z_l and Umut Yüce were put to him, he said that they might have been the persons who had come to testify as eye-witnesses. Although he only knew _inasi Malgil, he said that he had not seen any of them in the crowd. Asked how these people had been found, he said that they would have been brought in in order for their statements to be taken. This would have been done by his colleagues at the security directorate. He explained Malgil's statement having been taken on the day of the incident by Mustafa _im_ir and Ferhat Karata_ by saying that _imsir was the head of the anti-terror branch and Karata_ was the clerk responsible for putting statements on paper. Although both of them would normally stay in the office, _imsir would go out to the scene of an incident in an emergency, like the killing of Dr Tanr_kulu, and Karata_ had also gone outside that day.

180.The two guards at the entrance to the security directorate were not allowed to leave their post and for that reason they had not gone to the scene of the incident despite the fact that it had happened very close to them.

181.Incident reports such as the one drawn up by his team at 13.00 hours that day only served to summarise events and they would as a rule not contain any names of people who had given information. Although he initially confirmed that they had gone back to the security directorate about an hour after the incident to write the incident report, when asked whether they had given up the chase of the presumed killers he denied that and said that one of the clerks had been responsible for the incident report. He himself had made the drawing of the scene of the incident.

182.He felt unable to comment on Umut Yüce's statement that the two presumed killers had been running in the direction of Old Bitlis Road (para. 72) or on the applicant's testimony before the Delegates to that effect. They had only been told at the time that the applicant had said that the people who had committed the murder had run away in the direction of the gardens.

183.The applicant had not come to the security directorate. Together with other members of his team he had gone to the applicant's house some five or six days after the incident. However, there had been a lot of people coming and going to offer their condolences. The applicant had not wanted to come with them, saying that she could not talk to them just then. They had not insisted and had said that they would return at a later stage. He did not remember whether Turan Da_ had been a part of the team that day. Colleagues from another team had indeed returned but had not found the applicant at home.

184.He had had a good relationship with Dr Tanr_kulu, as had all the police officers in Silvan.

Durmu_ _ahin

185.Durmu_ _ahin stated that he was born in 1966. He had been stationed as a police officer of the anti-terror branch in Silvan from 1991 to 1994.

186.On 2 September 1993 he and his fellow team members Turan Da_ and Mehmet _ahin had responded to a message received from the communications centre to the effect that there had been a shooting near the hospital. Upon arrival at the scene some five minutes later, Turan Da_ had gone to the hospital where the applicant had described the appearance of the presumed killers to him and the direction in which they had fled. Apparently the two men had run towards the gardens.

187.Meanwhile, Mehmet _ahin and himself had searched the scene of the incident for empty cartridges. They had not been able to ask anybody any questions, the people having moved towards the hospital where a big crowd had gathered. They had asked a couple of children but these had not seen anything. They had stayed at the scene of the incident for about five to ten minutes after which they had started the search for the two men. They had not gone among the trees in the gardens below the stadium but they had turned back from there and had started searching the neighbourhood, looking for people carrying weapons or appearing agitated. They had not gone into any houses. The search of the area had taken about one hour.

188.They had returned to the security directorate and drawn up the incident report. They had all signed the report together, at about 13.00 or 13.15 hours. It was put to him that it appeared unlikely that the report would have been written at that time since if the incident had occurred at 12.00 hours, and it had taken them five minutes to get there and if they had then investigated the scene for ten minutes and the area for one hour, they could not have been back at the security directorate until about 13.20 hours. He maintained that they had returned about 40 or 45 minutes or one hour after having investigated the terrain as far away as they might have been able to catch the perpetrators.

189.His team had gone to take the applicant's statement several days after the incident but in view of the number of visitors she had told them that she was not in a position to make a statement. Another team had gone back at some later stage but they had not found her at home.

Dr Murat Y_ld_r_m

190.Dr Murat Y_ld_r_m stated that he was born in 1969. He had graduated as a general practitioner in July 1992 and his first posting had been to Silvan. In places where there were no forensic medical examiners, like Silvan, general practitioners carried out medical examiner duties. At the relevant time he had already participated in many post mortem examinations, he estimated that he would have conducted one every 20 or 25 days. Dr Tahir Buran had qualified before him and had carried out more post mortem examinations.

191.On 2 September 1993 he had carried out the post mortem examination on the body of Dr Tanr_kulu together with Dr Tahir Buran and they had reported their findings to the public prosecutor who had been present. They had removed one bullet from the body. They had not considered it necessary to conduct a classical autopsy; above all, because the cause of death had been clear. Moreover, there had been no more bullets lodged in the body that could have served as evidence since all the entry and exit wounds had been located. Furthermore, the atmosphere had been tense and the place had been crowded, and Dr Tanr_kulu had been a close friend of theirs. The decision not to carry out a classical autopsy had been taken by both doctors together with the public prosecutor.

192.When asked whether he had been able to deduce from the examination whether Dr Tanr_kulu had been shot in the front or the back, he initially said that it appeared clearly that it had been in the front. He admitted, however, as entry wounds had also been found at the back of the body, that shots might also have been fired from behind. Having been informed by the representative of the applicant that Dr Tanr_kulu had fallen on his back, he said that it could have been the case that Dr Tanr_kulu had been shot in the back and that he had received shots in the front when he had fallen. But in view of the greater number of entry wounds on the front than on the back, the general opinion had been that Dr Tanr_kulu had been shot from the front. He and Dr Buran had discussed this matter amongst themselves but he confirmed that their opinion was not reflected in the report.

193.From the findings of the examination he had deduced that Dr Tanr_kulu had been shot at close range, from a distance of one to three metres. On the basis of the features of the edges of bullet entry wounds it was possible to establish whether shots had been fired at point-blank range, at close range or long range. He had not found any scorching or traces of gun powder on the body or the clothes, which indicated that the shots had been fired from a distance of more than one metre. A bullet entering a body and exiting at the other side suggested that the shot was most probably fired at short range. It could not be determined from the bullet wounds whether one or more weapons had been used.

194.He confirmed that people who had been taken into police custody would be brought to him by the police for a medical report. No pressure had ever been put on him by the security forces to write a report in a certain way. If he had met with such pressure he would not have given in to it and he thought that Dr Tanr_kulu would have reacted in the same way. He had been on good terms with the police, as had Dr Tanr_kulu.

C.Relevant domestic law and practice

195.In the absence of detailed submissions on domestic law and practice, the Commission has had regard to the relevant provisions and submissions made in the context of previous applications concerning which the Government and the applicant's representatives have also participated in the proceedings.

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

"_darenin her türlü eylem ve i_lemlerine kar__ yarg_ yolu aç_kt_r ...

_dare kendi eylem ve i_lemlerinden do_an zarar_ ödemekle yükümlüdür."

[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."

197.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.

198.The Turkish Criminal Code, as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). Pursuant to Section 23 of Decree No. 285 (the Act on the State of Emergency), security forces, special forces on duty and members of the armed forces are, under the circumstances stipulated in the relevant Acts, empowered to use their weapons while carrying out their duties.

199.For all such 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 of which they have been notified, 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.

200.If the alleged author of a crime is a State official or civil servant, which includes members of the security forces, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly) which carry out a preliminary investigation (Article 4 (i) of Decree No. 285). 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.

201.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.

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

203.In previous applications applicants have pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme:

204.Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.

205.Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.

206.Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree 285, as amended by Decrees 424 and 425, and Decree 430.

207.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.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

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

- that her husband, Dr Zeki Tanr_kulu, was killed because he was a doctor and a Kurd in circumstances which suggest State involvement, and that the investigation undertaken into his death was so inadequate and ineffective as to amount to a failure to protect the right to life;

- that her husband's killing, carried out for discriminatory reasons, constituted inhuman and degrading treatment;

- that the authorities failed to initiate proceedings before an independent and impartial tribunal against those responsible for the killing, as a result of which she cannot bring civil proceedings arising out of the killing;

- that there is no remedy available in respect of these matters; and

- that these matters disclose discrimination.

209.In addition, in the final observations on the merits of the application, the applicant complains that Turkey has hindered the exercise of her right to individual petition.

B.Points at issue

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

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

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

- whether there has been a violation of Article 6 of the Convention;

- whether there has been a violation of Article 13 of the Convention;

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

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

C.The evaluation of the evidence

211.Before dealing with the applicant's allegations under specific Articles of the Convention, the Commission considers it appropriate to assess the evidence and attempt to establish the facts, pursuant to Article 28 para. 1 (a) of the Convention. The following general considerations are relevant in this context:

i.It is the Commission's task to establish the facts, and in doing so the Commission will be dependent on the co-operation of both parties. Since 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 the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of "beyond reasonable doubt" as adopted by the Court. Such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and in addition the conduct of the Parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).

ii.In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters: it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by the witnesses appearing before its Delegates.

iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission particularly regrets the absence of a thorough domestic judicial examination or other independent investigation of the events in question. It is aware of its own limitations as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while twelve witnesses were summoned to appear, only six in fact gave evidence before the Commission's Delegates. Moreover, despite repeated requests the Government have failed to provide the complete investigation file. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant testimony and with incomplete evidence. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

 1.Concerning the shooting of Dr Zeki Tanr_kulu

212.The applicant alleges that her husband was either killed by the State security forces or was killed in their presence in circumstances pointing to the collusion of those forces. She points in particular to the eight members of the security forces whom she said were standing at the top of the Kaymakam Slope within sight of where her husband had been shot but who failed to take any kind of action.

213.The Commission notes in the first place that it is not in dispute that Dr Tanr_kulu was shot on the Kaymakam Slope on 2 September 1993. However, the Commission has been presented with conflicting accounts as to the exact place on the Kaymakam Slope where the incident took place.              

214.According to the applicant, she found her husband well up the Kaymakam Slope and near the security directorate. On the plan which was submitted with the application (Appendix IIa), she indicated that her husband was lying twenty metres from the security directorate. Before the Delegates she agreed that she had made a mistake in positioning the security directorate and the place of the incident on the left of the Kaymakam Slope on this plan (para. 126). On the plan which she submitted with her final observations, the place of the incident is marked about two thirds of the way up the Kaymakam Slope, at its steepest part (Appendix IId). According to the applicant, the eight police officers whom she said were blocking the road near the security directorate were standing no more than ten metres away from where her husband was lying (para. 111). She also told the Delegates, however, that as she came out of the hospital gates she could see her husband lying on his back on the Kaymakam Slope, about twenty-five to thirty metres from their house (para. 110).

215.According to the incident report, a pool of blood was found about 50 metres from the hospital in front of the house with the number 15 (paras. 77, 78). In his testimony, Turan Da_ estimated the distance between the hospital and the security directorate to be 200 to 250 metres and the distance between the place of the incident and the security directorate as 150 to 200 metres (para. 164), which would indicate that Dr Tanr_kulu was shot near the bottom of the Kaymakam Slope. In this respect, Da_ added that it would not have been possible to see the place of the incident clearly from the top of the slope because of its steep gradient. Mehmet _ahin put the distance between the incident and the security directorate at 100 metres (para. 176).

216.On the plan of the scene of the incident drawn up by Mehmet _ahin (Appendix IIb), the spot where Dr Tanr_kulu was shot is indicated as being in front of a house with the number 15/A which stands somewhat back from the road, just up from the grocer's shop. The incident report mentions a house with the number 15 (para. 77). In the video film provided by the Government, it is the grocer's shop which bears number 15/A (para. 93). In addition, it is indicated on the photographs submitted by the Government that Dr Tanr_kulu was shot in front of either the door to the grocer's shop or the door set in the wall next to it (para. 94).

217.In support of her claim that her husband was lying near the top of the Kaymakam Slope, the applicant points to the fact that according to his statement to the police, _inasi Malgil was walking behind her husband and that he dived into a garden upon hearing the shooting, which came from behind (para. 69). The applicant submits that, therefore, _inasi Malgil must have been beyond the grocer's shop and her husband even further up the slope. Moreover, F_rat K_z_l told the police that the shooting came from ten metres up from the shop (para. 74).

218.The Commission observes that it appears from the plan annexed as Appendix IIc that the Kaymakam Slope in its entirety measures just over 100 metres (para. 89) and that the distance between the hospital gates and the bottom of the Kaymakam Slope is about fifteen to twenty metres. Although the Commission accepts that it is difficult to estimate distances with any great accuracy, it seems nevertheless doubtful, in view of the wall situated opposite the hospital gates, that the applicant would have been able to see her husband lying on the ground as she came out of those gates if he was shot as high up the Kaymakam Slope as she contends. In this respect the Commission notes that Umut Yüce also stated that he could see Dr Tanr_kulu's body from the hospital gates (para. 71). On the other hand, the plan drawn up by Mehmet _ahin (Appendix IIb) does not correspond with _inasi Malgil's statement: the only place where Malgil could have dived into a garden would appear to be the spot marked on that plan as the place where Dr Tanr_kulu was shot.

219.The Commission considers that it cannot be established from either the post mortem examination (paras. 80-83) or the evidence given by Dr Y_ld_r_m (paras. 190-194) whether Dr Tanr_kulu was shot from the front or behind, which finding could have served as an indication of the place from where the bullets were fired. Yet if Malgil's statement to the effect that the shooting came from behind him is correct, the perpetrators must have been standing very close to the grocer's shop since the garden, mentioned by Malgil, is situated only slightly higher up the Kaymakam Slope than the shop. In that case, any people standing near the top of the Kaymakam Slope would most likely not have seen the perpetrators, due to the gradient and curve of the road. However, if, as the applicant states, the shooting was still going on as she came out of the hospital gates (para. 110), she should have seen the perpetrators if they were indeed standing near the grocer's shop.

220.Similarly, if the two men who were said by the applicant to be running away down Old Bitlis Road were the perpetrators (para. 112), the Commission considers that it is difficult to understand how the applicant would not have seen them running down the Kaymakam Slope as she ran towards her husband. The Commission notes that in her final observations, the applicant accepts the possibility that the two men were not involved in the incident but were merely running away from the sound of shooting.

221.As to possible escape routes other than the one in the direction of Old Bitlis Road, the Commission observes that the parties disagree as to whether there is another passage leading off to the right apart from the one behind the security directorate. The applicant maintains that there is no such passage, whilst the plan drawn by Mehmet _ahin has a street called Surüstü Street turning right off the Kaymakam Slope after the house with number 15/A which stands further back from the road (Appendix IIb). Turan Da_ described Surüstü Street as a passage way accessible only to pedestrians (para. 169). The video film does not show any paved or asphalt road or passage leading off the Kaymakam Slope until the passage at the back of the security directorate, but there does appear to be an uneven path at about the place where Mehmet _ahin positioned Surüstü Street on his plan (para. 94).

222.The applicant submits that anyone trying to escape by going up the Kaymakam Slope or via a side alley would have done so within sight of the eight police officers standing at the top of the slope and that, therefore, the perpetrators cannot have been concerned about the response of the police. The Government dispute that there would have been eight police officers as described by the applicant. They submit that there were only two officers standing guard outside the entrance to the security directorate who were under strict orders not to leave their post. The Commission notes that, whilst this state of affairs was confirmed by police officers Da_ and Mehmet _ahin (paras. 160, 180), it is at odds with the situation portrayed on the photographs and the video film which, according to the Government, corresponds to the situation on the day of Dr Tanr_kulu's death. The Commission recalls that two uniformed police officers standing guard at the back of the security directorate can be seen on the photographs and the video film (para. 91). It further notes that the applicant told the Delegates that the police officers she saw were dressed in plain clothes (para. 111) but that the guards who can be seen on the photographs and on the video film are uniformed.

223.As regards the general credibility of the applicant, the Commission finds that her evidence was on the whole detailed, precise and consistent. However, even if it accepts that eight plainclothed, armed police officers were present at or near the scene of the incident as alleged by the applicant the Commission considers that a finding to the effect that the killing of Dr Tanr_kulu was either carried out by these officers or with their connivance would be based more on conjecture, speculation and assumption than on reliable inference. The Commission is of the opinion that the evidence available does not allow for inferences to be drawn capable of supporting such a finding (see para. 211 sub i). This is not altered if account is taken of the background against which the applicant submits that the incident should be seen: her husband's arrest five months previously on suspicion of harbouring a PKK terrorist, the refusal of his leave, the fact that his name was rumoured to feature on a hit-list, and the large number of civil servants being killed in Silvan by unknown perpetrators at the time.

224.In reaching the conclusion that the applicant's allegations have not been sufficiently proven, the Commission recalls that it has not been provided with any other eye-witness evidence or evidence corroborating the applicant's account to a decisive extent. Moreover, the documentary evidence with which it has been presented is, as outlined in the foregoing paragraphs, incomplete, inconsistent and on some points even contradictory. The Commission considers that to a considerable degree this is due to the manner in which the investigation at the scene of the incident and the post mortem examination on the body of Dr Tanr_kulu were conducted. It will assess these matters below.

 2.Inquiries and investigations at the domestic level into the death of Dr Zeki Tanr_kulu

225.Noting that the applicant also alleges that the investigations by the domestic authorities into her husband's death were inadequate, the Commission will next assess the evidence relating to these investigations. The Commission has already noted that there was no thorough domestic judicial investigation and that it has not been provided with the complete investigation file (para. 211 sub iii). Furthermore, in order to allow a full assessment of the investigatory measures taken by the authorities, the Delegates had requested the hearing of two public prosecutors, i.e. Mustafa Düzgün, who had been present at the post mortem examination and had subsequently issued a decision of lack of jurisdiction, and Ünal Haney, the prosecutor in charge of the pending investigation before the Diyarbak_r State Security Court. However, both these public prosecutors failed to appear before the Delegates for reasons which the Commission cannot find convincing (para. 96). The Commission will thus evaluate the investigations actually made insofar as information regarding these investigations has been provided.

226.The Commission notes that the three policemen who were summoned by radio to the scene of the incident arrived there about five minutes after Dr Tanr_kulu had been shot. At that time, Dr Tanr_kulu had already been taken to hospital. Whilst officer Turan Da_ went into the hospital and spoke to the applicant, his colleagues Mehmet _ahin and Durmu_ _ahin conducted a search of the scene of the incident. Since Da_ was thus not present during this search, the Commission doubts the accuracy of his statement that an area of fifty to sixty metres was searched thoroughly (para. 167), the more so when it considers that Mehmet _ahin and Durmu_ _ahin told the Delegates that some five to ten minutes were spent searching an area of about ten to fifteen metres (paras. 176, 187).

227.During the search sixteen empty cartridges and one deformed bullet were found. However, on the plan drawn up by Mehmet _ahin the exact location of these cartridges does not appear to be marked although this information could have been of relevance for the determination of the place from where the shots were fired. There is, furthermore, no indication of where the deformed bullet was found. Although it may not have been clear at that particular time that a considerable number of bullets was missing - only one bullet was found lodged in the body of Dr Tanr_kulu, whereas thirteen bullet entry holes were recorded - the Commission observes that neither the documents made available to it nor the evidence given before the Delegates contain any indication of a subsequent further search for these bullets or of an examination of pavements and walls for bullet marks. Neither does this material include any kind of indication as to the kind of fire arm that might have been used, such as a pistol or a rifle (para. 84).

228.The Commission also notes that Mehmet _ahin's plan does not contain any measurements or indication of scale. Furthermore, the estimates of the distance between the scene of the incident and the security directorate given by Turan Da_ and Mehmet _ahin vary considerably: Da_ talked of a distance of 150 to 200 metres whereas Mehmet _ahin thought the distance between the two points was 100 metres. The Commission observes in this respect that neither Turan Da_ nor Mehmet _ahin knew whether photographs had been taken of the scene of the incident, even though Da_ suggested that in the normal course of events this would have been done (paras. 167, 176). Despite repeated requests for a copy of the investigation file to be made available, the Commission has not been provided with any such photographs and it must therefore assume that none were taken. The Commission considers this a serious omission. In view of the imprecise information collected by the police present at the scene the Commission fails to see how, without any kind of photographic record, a reliable finding as to the exact location of the spot where Dr Tanr_kulu was shot could ever be made.

229.The Commission observes that the three police officers then proceeded to look for the two men of whom the applicant had given a description to Turan Da_. According to Da_, the applicant told him that she had seen these men running towards the area near the sports stadium behind the hospital (para. 162). However, in the proceedings before the Commission the applicant has consistently maintained that she saw two men running down Old Bitlis Road, and in her account of events to Bekir Selçuk she mentioned this fact as well. Moreover, in his statement to the police, Umut Yüce also said that he had seen two men running in the direction of Old Bitlis Road. This statement was taken on 6 September 1993. If, as has not been excluded by Turan Da_ (para. 166), Umut Yüce was one of the witnesses whose names he noted down when the search of the area was being conducted so that their statements could be taken at some later stage, it appears likely that Yüce would have informed the police already at that time that he had seen two men running in the direction of Old Bitlis Road.

230.In addition, the Commission notes that according to the incident report the police officers were given a description of two men who, they were told by residents of the area, were the perpetrators. During the hearing before the Delegates however, both Mehmet _ahin and Durmu_ _ahin declared that they had not been given any information from the crowd of onlookers and that the description of the two men had been obtained from the applicant by Turan Da_ (paras. 177, 186). The incident report does not mention in what direction the two men were said to have fled, even though it appeared from the hearing that all three police officers were in possession of this information.

231.The police officers told the Delegates that their investigation had not ended after they had drawn up the incident report at 13.00 hours, but as no further evidence was obtained, it had not been necessary to draw up any more written records. Neither has the Commission been provided with reports concerning the investigations carried out by the other police officers whom Turan Da_ said had assisted them in the search or by the teams which had taken over the investigation after the first team had ended its shift, and it is not aware whether such reports in fact exist. Turan Da_ told the Delegates that when a case-file is transmitted to the public prosecutor, the accompanying cover-letter would contain information as to the various investigatory steps which had been taken in the case (para. 170). Such a cover-letter has also not been made available to the Commission.

232.The Commission is furthermore struck by the fact that the applicant's statement was not taken until 18 November 1994, i.e. more than one year after the killing of her husband, despite the fact that in any event the police officers Da_, Mehmet _ahin and Durmu_ _ahin were aware that she was an important witness. Although Mehmet _ahin and Durmu_ _ahin said that their team went to the applicant's house about six days after the incident but that she was unable to talk to them at that time because of the mourning ceremonies (paras. 183, 189), the applicant denied that any police officers came to see her in Silvan (para. 119).

233.It is not clear, moreover, if and how the information that the applicant was a witness was conveyed to the police officers' superiors or to the public prosecutor. In this respect the Commission notes that Mehmet _ahin explained that incident reports would not contain the names of people who had given information (para. 181). Turan Da_ could not remember whether he had noted the applicant's name amongst those of people whose statement had to be taken, but he doubted that his notes would be kept on the file (para. 166). However, even if it is the case that the public prosecutor in charge of the investigation was not made aware of the particular relevance of the applicant's testimony - which would in itself constitute a defect in the investigation -, the Commission considers that in the normal course of events a statement would be taken from the wife of a murder victim. Yet the documents submitted to the Commission do not contain any indication of efforts having been made to obtain the applicant's new address after she had left Silvan. The Commission does not accept Bekir Selçuk's suggestion that the applicant may have gone into hiding after the incident (para. 146), in particular since the applicant's statement that she visited the public prosecutor's office in Silvan to obtain copies of the post mortem examination report and the map drawn up by Mehmet _ahin is borne out by the fact that she did indeed submit those documents with her application (para. 126).

234.As to the examination carried out on the body of Dr Tanr_kulu the Commission notes that, apart from the listing of bullet entry and exit wounds, no information of a forensic nature appears to have been collected. It is true that Dr Y_ld_r_m told the Delegates that in his and Dr Buran's opinion, Dr Tanr_kulu had been shot from the front (para. 192), but this is not reflected in the report of the post mortem examination conducted by them. Moreover, they had based this conclusion only on the number of bullet entry wounds found in the front of the body and Dr Y_ld_r_m at least does not appear to have considered the possibility that Dr Tanr_kulu was shot in the back and had received shots in the front when he had fallen. Furthermore, Dr Y_ld_r_m was not aware of the position in which Dr Tanr_kulu was lying when the latter was found (para. 192) and apparently had not found it necessary to enquire into this matter.

235.The post mortem report and Dr Y_ld_r_m's statements lead the Commission to doubt whether the doctors involved, who were both general practitioners, possessed sufficient expertise to conduct a forensic examination on the body of a murder victim, and it considers it remarkable that in the circumstances of the case no further examinations were carried out. The need for such further examinations is, in the Commission's opinion, graphically illustrated by the fact that Bekir Selçuk assumed that Dr Tanr_kulu had been shot at from long range, even though Dr Y_ld_r_m was more inclined to conclude that the shots had been fired from close range (paras. 142, 193).

 Concluding remarks

236.The Commission recalls its comments above (paras. 211 sub iii, 225) relating to the Government's failure to provide copies of the complete investigation file despite repeated requests (paras. 14, 16, 20) and the verbal undertaking expressed by the Agent of the Government at the hearing before Delegates to use his best endeavours to provide the documents required (para. 14). It also notes that no explanation whatsoever has been forthcoming for the failure to provide the file.

237.The Commission observes, furthermore, that the Government have taken a passive attitude as regards the attendance of official witnesses. Thus, two public prosecutors failed to attend the hearing without any convincing reason being put forward to justify the absence of either of them. In the case of Mustafa Düzgün, no reason at all was provided. As regards Ünal Haney, the Commission was informed that he was not prepared to attend the hearing. It is not apparent that the Government have taken any step with a view to encouraging or advising its officials in regard to the desirability of co-operation with the Convention organs. The Commission has previously had occasion to remark critically on the non-attendance of public prosecutors in cases where its Delegates have taken evidence (cf. No. 22496/93, Salih Tekin v. Turkey, Comm. Report 17.04.97, para. 171 sub i, currently pending before the Court).

238.The Commission considers that the above constitutes a highly unsatisfactory state of affairs which may to a considerable extent affect the possibilities of the Commission to establish the facts, in particular with regard to investigations into the alleged events carried out at the domestic level. For these reasons the Commission finds that in the present case the Government have fallen short of their obligations under Article 28 para. 1(a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts of this case.

239.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.

D.As regards Article 2 of the Convention

240.Article 2 of the Convention provides as follows:

"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." 

241.The applicant claims that her husband was killed in circumstances which point to direct involvement of the security forces, even though none of the grounds existed on which potentially lethal force could legitimately be used. Even if the police at the scene did not fire the shots which killed her husband, the applicant submits there is strong evidence that they knew the time and place where he was to be killed and that they connived in the escape of the perpetrators.

242.She contends, moreover, that it appears that her husband was targeted because he was a Kurd. She submits in this respect that complicity on the part of the police in a killing based on the race and/or national origin of the victim amounts in itself to a violation of Article 2.

243.Finally, the applicant argues that the lack of an effective official investigation into the killing of her husband constitutes another independent violation of Article 2.

244.The Government maintain that the applicant has failed to prove her allegations of State involvement in the killing of her husband. They submit that the sketches of the area produced by the applicant are incorrect and stress that the two police officers standing guard at the entrance to the Security Directorate could not have seen the shooting. The Government further assert that its officials had no motive whatsoever to kill Dr Tanr_kulu and they reject the suggestion that his death was in any way related to his being Kurdish. In this latter respect they refer to the statement of Mehmet Demirezer, the Silvan District Governor at the relevant time, in which he denied having said that Dr Tanr_kulu was killed because he was a Kurd (para. 76).

245.The Commission recalls its finding above (para. 224) to the effect that it is not established on the material before it that Dr Tanr_kulu was killed by police officers or with their connivance. The Commission considers, therefore, that it has an insufficient factual basis on which to reach a conclusion that there has been a violation of Article 2 of the Convention on account of the killing of the applicant's husband itself or on account of its alleged discriminatory aspect.

246.As regards the complaint of the investigation conducted by the domestic authorities, the Commission recalls in the first place that Article 2 extends to but is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. The first sentence of Article 2 para. 1 also imposes a positive obligation on Contracting States that the right to life be protected by law. The Commission has previously held in this respect that, as a minimum, a Contracting State is under an obligation to provide a framework of law which generally prohibits the taking of life and to ensure the necessary structures to enforce these prohibitions, including the provision of a police force with responsibility for investigating and suppressing infringements (No. 23452/94, Mulkiye Osman and Ahmed Osman v. the United Kingdom, Comm. Report 1.7.97, para. 90, currently pending before the Court). While it cannot be a requirement of Article 2 that a State must necessarily succeed in locating and prosecuting perpetrators of fatal attacks, the case-law of the Convention organs has established a requirement that the investigation undertaken be effective:

"The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State." (McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, para. 161; cf. Kaya v. Turkey judgment of 19 February 1998, para. 86, to be published in Reports 1998).

247.The Commission accepts that the methods applied and the resources allocated for such investigation will to a large extent be based on policy decisions to be taken by the Contracting States. However, it considers that for such investigation to be effective, it must as a minimum involve an examination of the immediate factual circumstances of the killing, including the obtaining of relevant eye-witness testimony and forensic evidence clarifying the cause of death (cf., mutatis mutandis, No. 22880/93, Gülten Aytek_n v. Turkey, Comm. Report 18.09.97, para. 102, currently pending before the Court).

248.In its assessment of the investigation conducted into the incident the Commission has found that this disclosed a number of grave deficiencies, in particular in respect of the search of the scene of the crime, the taking of a statement from the applicant and the forensic examination of the body of Dr Tanr_kulu. On the basis of the findings made in respect of the investigation, it considers that this was incomplete, inaccurate and perfunctory and cannot be said to have constituted a serious attempt at a murder enquiry.

249.It is possible that if the Commission had been provided with the investigation file or had been able to hear the two public prosecutors who had been summoned to give evidence before the Delegates, a fuller assessment of the investigatory measures taken by the authorities could have been made, and some of the doubts as to the adequacy of these measures might have been dispelled. However, as has been noted above (paras. 96 and 211 sub iii), these public prosecutors failed to appear before the Delegates. Furthermore, even though the Commission has regard to the security situation in South-East Turkey in general and the large numbers of killings being perpetrated in Silvan at the relevant time in particular, it considers that this background to the events cannot serve as an explanation for the flawed manner in which the investigation was conducted.

250.Accordingly, the Commission finds that the investigation undertaken into the death of the applicant's husband was so inadequate and ineffective as to amount to a failure to protect the right to life.

 CONCLUSION

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

E.As regards Article 3 of the Convention

252.Article 3 of the Convention reads as follows:

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

253.The applicant submits that the discrimination to which she referred in her complaints under Article 2 represents discrimination on grounds of race and therefore amounts to inhuman and degrading treatment contrary to Article 3.

254.The Government have not addressed this particular issue but maintain that there is no evidence to substantiate the applicant's factual allegations.

255.The Commission again recalls its finding above (para. 224) that it is not established that agents of the State were directly or indirectly implicated in Dr Tanr_kulu's killing. There is thus no factual basis on which to reach a conclusion that there has been a violation of this provision as alleged by the applicant.

CONCLUSION

256.The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention.

F.As regards Articles 6 para. 1 and 13 of the Convention

257.Articles 6 para. 1 and 13 of the Convention provide as follows:

Article 6 para. 1

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

Article 13

"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."

258.The applicant submits as regards Article 6 para. 1 that the inadequacy of the investigation carried out by the domestic authorities prevented criminal proceedings from taking place in which the fact of her husband's murder would have been established. She asserts that without such proceedings she is prevented from pursuing a civil claim for compensation. Under Article 13 she complains of the lack of any authority before which she could bring her complaints not involving a claim characterised as a matter of civil rights with any prospect of success.

259.The Government contend that the criminal investigation is currently still pending with due consideration being given to various probabilities. Although it has not as yet resulted in the culprits being apprehended, certain matters may be clarified years later, especially in the area concerned, with the seizure of a suspect or a weapon. Moreover, the applicant could have claimed compensation for her loss in civil proceedings which are adequate and applicable.

260.The Commission considers, given that the applicant has not pursued a claim for compensation before the domestic courts, that it is not possible to determine whether these courts would have been able to adjudicate on her claims. It notes, however, that the applicant's complaint under Article 6 para. 1 of the Convention is inextricably bound up with her more general complaint concerning the manner in which the investigating authorities treated the death of her husband and the repercussions which this had on access to effective remedies. Therefore, the Commission will examine this complaint in relation to the more general obligation on Contracting States under Article 13 of the Convention to provide an effective remedy in respect of violations of the Convention including Article 2 thereof, which, moreover, cannot be remedied exclusively through an award of compensation to the relatives of the victim (cf. Kaya v. Turkey judgment, op. cit., para. 105).

261.The Commission recalls that Article 13 of the Convention requires the provision of a domestic remedy allowing the "competent national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. In its above-mentioned Kaya v. Turkey judgment, the Court held that the requirements of Article 13 are broader than a Contracting State's procedural obligation under Article 2 to conduct an effective investigation where relatives have an arguable claim that the victim was unlawfully killed by agents of the State (op. cit., para. 107). The Commission considers that this is equally the case where, as in the present application, the complaint is that the victim, i.e. Dr Zeki Tanr_kulu, was killed either by agents of the State or with those agents' connivance. Pursuant to Article 13 the applicant was thus not only entitled to the payment of compensation where appropriate, but also to a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access to the investigatory procedure (Kaya v. Turkey judgment, loc. cit.).

262.The Commission is of the opinion that the applicant had arguable grounds for claiming that the security forces were in some way involved in the killing of her husband. Although it is true that her complaints in this respect were not brought to the attention of the domestic authorities until the communication of the application to the Government, the Commission notes that very little, if any, effort was made to obtain a statement from the applicant during the immediate aftermath of the incident (see also paras. 232, 233). It was her contention, moreover, that she had several times contacted the authorities in order for her statement to be taken but that the authorities had refused to speak to her (para. 119). It does not appear that following the communication of the application the allegations concerning the involvement of the security forces were investigated; no statements were taken either from the officers on duty outside the security directorate or from the three police officers who had arrived at the scene five minutes after the shooting, for instance. The fact that the Commission has not found it established beyond reasonable doubt that Dr Zeki Tanr_kulu was indeed killed as alleged by the applicant does not prevent her claim from being an arguable one for the purposes of Article 13 (Kaya v. Turkey judgment, loc. cit.). This conclusion on the merits does not, therefore, dispense with the requirement to conduct an effective investigation into the substance of the allegation.

263.The Commission recalls its findings above relating to the serious deficiencies of the search carried out at the scene of the incident and the forensic examination of the body of the deceased (para. 248). Having regard to the absence of any effective investigation into the circumstances of the killing, it must be concluded that the applicant was on that account also denied an effective remedy against the authorities in respect of the death of her husband, in violation of Article 13 of the Convention, and thereby access to any other available remedies at her disposal, including a claim for compensation.

CONCLUSIONS

264.The Commission concludes, unanimously, that it is not necessary to examine the complaint under Article 6 para. 1 of the Convention.

265.The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention.

G.As regards Article 14 in conjunction with Articles 2, 6 and 13 of the Convention

266.Article 14 of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

267.The applicant submits that because of her and her husband's Kurdish origins the various alleged violations of their Convention rights were discriminatory, in breach of Article 14 of the Convention.

268.The Government have not addressed this allegation beyond denying the factual basis of the substantive complaints and referring to the statement of Mehmet Demirezer.

269.The Commission has examined the applicant's allegations in the light of the evidence submitted to it, but considers them unsubstantiated.

 CONCLUSION

270.The Commission concludes, unanimously, that there has been no violation of Article 14 in conjunction with Articles 2, 6 and 13 of the Convention.

H.As regards Article 25 of the Convention

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

"1.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."

272.The applicant states that she was summoned to the public prosecutor at the Diyarbak_r State Security Court, Bekir Selçuk, who wished to establish whether she had given a power of attorney to her legal representatives despite the fact he had no reason to doubt its validity. She had been scared by this summons. During their conversation Bekir Selçuk implied that something might happen to her on account of her application. Moreover, the statement drawn up of this interview contains propositions which the applicant denies ever having made, such as the suggestion that her husband had received threats from the PKK and Hizbullah, that there were two women shouting, "They have shot Zeki" present at the scene of the incident, and that a person called Kevin telephoned her from Diyarbak_r about ten days after her husband's death.

273.Two days after having attended the hearings of her case in Ankara an attempt was made to force the door of the balcony of her house after which she left her home. A few days later she found out that it had been broken into. The applicant fears that this was the work of the police designed to intimidate her and/or 'punish' her for pursuing her application.

274.The Government submit that Bekir Selçuk's purpose in questioning the applicant on 18 November 1994 was twofold: firstly, it was part of his duty within the context of the preliminary criminal investigation into the death of her husband, and secondly, it was to verify the validity of her application to the Commission. According to the Government it was crucial that the applicant was asked about the genuineness of her application in view of the fact that certain applications against Turkey have been filed by people with a false identity or by forging the signature of a person who had no intention of complaining to the Commission. However, this questioning of the applicant in no way hindered her in the exercise of her right of individual petition.

275.The Government reject the applicant's allegation that police broke into her house.

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

277.The Commission would further emphasise that the right of individual petition guaranteed under Article 25 of the Convention is of fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention and its Protocols. Deliberate or repeated interferences with the free exercise of that right must be regarded, in the Commission's view, with the gravest concern. Interference may also result from indirect pressure on applicants from State authorities. In particular, approaches by domestic authorities to applicants to question them about the applications in circumstances which may be construed as attempts to discourage or penalise the pursuit of complaints may lead to a finding that a Contracting State has failed to comply with its obligations under Article 25 para. 1 of the Convention.

278.In the present case the Commission observes in the first place that the applicant has not adduced any substantiation of her suspicion that police broke into her home in order to intimidate her. In respect of this allegation the Commission thus has an insufficient factual basis to enable it to find that the alleged break-in constituted an act of harassment on the part of the Government.

279.However, the Commission notes that it is not in dispute that on 18 November 1994 Bekir Selçuk questioned the applicant, inter alia, about the authenticity of the power of attorney which she gave to her representatives. According to Bekir Selçuk there had been an allegation that the signature on that document was a forgery and when he asked her about it she told him that she had not given a power of attorney (para. 148). However, the applicant told the Delegates that she had been shown a document in such a way that she could only see the signature at the bottom and that she had recognised that signature as hers (para. 129). The report drawn up of the interview contains yet another account, namely that the applicant had been shown a power of attorney dated 27 September 1993 signed by Selma Tan upon which the applicant had said that that was not her name and that the signature was not hers (para. 63). In their observations on the admissibility and merits of the application of 1 March 1995 the Government submitted that the applicant had denied signing the written authorisation for her representation in the proceedings before the Commission (see Decision on Admissibility, Appendix I). When, at the hearing before Delegates, the applicant was shown the power of attorney which had been submitted with the application, she stated that the signature appearing on that document was hers (para. 125).

280.Although the Commission has previously held that there may be occasions when it is necessary and unavoidable for public authorities to contact applicants (cf. Sükran Aydin v. Turkey, Comm. Report 7.3.96, para. 216, Eur. Court HR, to be published in Reports 1997), it cannot accept, as a general proposition, that the authorities are free to contact applicants in order to verify the authenticity of an application which has been brought before the Commission. In some circumstances, such contacts may constitute an interference with the free exercise of the right of individual petition. As a rule, concerns about the authenticity of an application of a sensitive character should therefore not give rise to any contact by the authorities with the applicant but should be raised by the Government in the proceedings before the Commission, which will then consider how to deal with the matter.

281.In this context the Commission observes that the Government have at no time prior to the applicant being questioned by Bekir Selçuk conveyed to it their concerns about the validity of the application or indicated the origin or contents of the allegations of forgery mentioned by Selçuk. The Commission is, moreover, concerned by the fact that according to the report of the applicant's statement to Selçuk she was shown a document containing the name Selma Tan. When the present application was communicated to the Government they were provided with a copy of the power of attorney as submitted by the applicant's representatives together with the application. This power of attorney was in the name of Selma Tanr_kulu (para. 6). If the information contained in the report is to be considered a true account of what transpired on 18 November 1994, the Commission finds it incomprehensible that the applicant would be shown such a document. If it is not a true account of what happened, the question arises why the document was drawn up in this fashion and on what, if any, information the Government based themselves when they informed the Commission that the applicant had denied signing the power of attorney.

282.Either way, the Commission considers that an unacceptable attempt has been made by the Turkish authorities to cast doubt on the validity of the application and to exercise pressure on the applicant, thereby rendering the exercise of the applicant's right of individual petition more difficult.

CONCLUSION

283.The Commission concludes, by 29 votes to 1, that Turkey has failed to comply with its obligations under Article 25 para. 1 of the Convention.

I.Recapitulation

284.The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention (para. 251 above).

285.The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention (para. 256 above).

286.The Commission concludes, unanimously, that it is not necessary to examine the complaint under Article 6 para. 1 of the Convention (para. 264 above).

287.The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (para. 265 above).

288.The Commission concludes, unanimously, that there has been no violation of Article 14 in conjunction with Articles 2, 6 and 13 of the Convention (para. 270 above).

289.The Commission concludes, by 29 votes to 1, that Turkey has failed to comply with its obligations under Article 25 para. 1 of the Convention (para. 283 above).

        M. de SALVIA                        S. TRECHSEL

         Secretary                      President

      to the Commission                   of the Commission

 

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