TEKİN v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 22496/93

                          Salih TEKiN

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                  (adopted on 17 April 1997)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-40). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

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

     B.   The proceedings

          (paras. 5-35) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 36-40). . . . . . . . . . . . . . . . . . .4

II.  ESTABLISHMENT OF THE FACTS

     (paras. 41-168). . . . . . . . . . . . . . . . . . . . .6

     A.   The particular circumstances of the case

          (paras. 42-60). . . . . . . . . . . . . . . . . . .6

     B.   The evidence before the Commission

          (paras. 61-158) . . . . . . . . . . . . . . . . . .8

          1)   Documentary evidence

               (paras. 61-92) . . . . . . . . . . . . . . . .8

          2)   Oral evidence

               (paras. 93-158). . . . . . . . . . . . . . . 14

     C.   Relevant domestic law

          (paras. 159-168). . . . . . . . . . . . . . . . . 24

III. OPINION OF THE COMMISSION

     (paras. 169-255) . . . . . . . . . . . . . . . . . . . 27

     A.   Complaints declared admissible

          (para. 169) . . . . . . . . . . . . . . . . . . . 27

     B.   Points at issue

          (para. 170) . . . . . . . . . . . . . . . . . . . 27

     C.   The evaluation of the evidence

          (paras. 171-200). . . . . . . . . . . . . . . . . 27

     D.   As regards Article 2 of the Convention

          (paras. 201-205). . . . . . . . . . . . . . . . . 35

          CONCLUSION

          (para. 206) . . . . . . . . . . . . . . . . . . . 35

                       TABLE OF CONTENTS

                                                          Page

     E.   As regards Article 3 of the Convention

          (paras. 207-215)  . . . . . . . . . . . . . . . . 35

          CONCLUSION

          (para. 216) . . . . . . . . . . . . . . . . . . . 37

     F.   As regards Article 5 para. 1 of the Convention

          (paras. 217-220). . . . . . . . . . . . . . . . . 37

          CONCLUSION

          (para. 221) . . . . . . . . . . . . . . . . . . . 38

     G.   As regards Article 10 of the Convention

          (paras. 222-225). . . . . . . . . . . . . . . . . 38

          CONCLUSION

          (para. 226) . . . . . . . . . . . . . . . . . . . 38

     H.   As regards Article 6 para. 1 of the Convention

          (paras. 227-231). . . . . . . . . . . . . . . . . 39

          CONCLUSION

          (para. 232) . . . . . . . . . . . . . . . . . . . 39

     I.   As regards Article 13 of the Convention

          (paras. 233-240). . . . . . . . . . . . . . . . . 39

          CONCLUSION

          (para. 241) . . . . . . . . . . . . . . . . . . . 41

     J.   As regards Articles 14 and 18 of the Convention

          (paras. 242-245). . . . . . . . . . . . . . . . . 41

          CONCLUSIONS

          (paras. 246-247). . . . . . . . . . . . . . . . . 41

     K.   Recapitulation

          (paras. 248-255). . . . . . . . . . . . . . . . . 42

PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . 43

APPENDIX: DECISION OF THE COMMISSION AS TO THE

          ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 44

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

Diyarbakir. He was represented before the Commission by Mr K. Boyle and

Ms F. Hampson, both teachers at the University of Essex, England.

3.   The application is directed against Turkey. The respondent

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

4.   The applicant alleges that he was ill-treated while he was being

held in detention in Gendarme stations in Derinsu and Derik from 15 to

19 February 1993 and that this event was not adequately investigated

by the State authorities. He invokes Articles 2, 3, 5

para. 1, 6 para. 1, 10, 13, 14 and 18 of the Convention.

B.   The proceedings

5.   The application was introduced on 14 July 1993 and registered on

16 July 1993.

6.   On 11 October 1993 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.

7.   The Government's observations were submitted on 22 April 1994

after two extensions of the time-limit fixed for this purpose.  The

applicant replied on 12 July 1994 after one extension of the

time-limit.

8.   On 20 February 1995 the Commission declared the application

admissible.

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

to the parties on 8 March 1995. The parties 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.

10.  On 18 May 1995 the Government submitted further observations

after an extension of the time-limit fixed for this purpose.

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

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

for this purpose: Mr H. Danelius, Mr B. Conforti and Mr J. Mucha. It

notified the parties by letter of 19 July 1995, proposing certain

witnesses and requesting the Government to identify the public

prosecutor at Derik to whom the applicant had complained on

19 February 1993, the public prosecutor who had conducted the

investigation and the officers who had been involved in the

interrogation of the applicant. The Government were also requested to

provide the contents of the investigation file which should include,

in particular, the notice dated 19 February 1993, signed by Musa Çitil,

with three reports, and a copy of the decision not to prosecute. The

applicant was requested to provide details of his medical history to

which reference was made in the application. It was subsequently

decided that oral evidence would be taken by the Delegates at a hearing

on 8 November 1995.

12.  By letter dated 13 September 1995 the Government provided the

names of two gendarme officers and of three public prosecutors who had

been involved in the investigation of the alleged ill-treatment.

13.  On 15 September 1995 the applicant replied to the Government's

further observations and submitted a copy of a judgment of the

Diyarbakir State Security Court of 2 August 1993 in which he was

acquitted of the offence for which he had been arrested in February

1993. He also requested that his father be heard as a witness. His

representatives, moreover, stated that it had not yet been possible to

obtain details concerning the applicant's medical history. By letter

dated 9 October 1995 the applicant submitted further information.

14.  On 9 October 1995 the Commission reminded the Government of the

outstanding requests for a number of documents. Furthermore, the

Government were requested to indicate to which of the three public

prosecutors identified by them the applicant had complained.

15.  By letter of 24 October 1995 the Commission urgently requested

the Government to provide copies of the still outstanding documents and

to name the public prosecutor to whom the applicant had complained.

16.  On 25 October 1995 the Government requested that the hearing be

postponed in view of the fact that following a misunderstanding as to

which cases would be heard they had not had sufficient time to prepare

themselves for the hearing.

17.  On 27 October 1995 the Commission granted the applicant legal aid

for the representation of his case.

18.  The Commission notified the Government on 30 October 1995 that

the hearing of evidence in the present case would be maintained but

that any witness unable to attend might be heard at a later date.

19.  On 30 October 1995 the Government submitted a number of

documents, including the decision not to prosecute.

20.  By letter dated 1 November 1995 the applicant's representatives

informed the Commission that they were still not in possession of the

applicant's medical history.

21.  Evidence was heard by the Delegates of the Commission in

Diyarbakir on 8 November 1995 from the applicant and his father, Haci

Mehmet Tekin. One of the Delegates, Mr Mucha, was not able to attend

the hearing. Before the Delegates the Government were represented by

Mr A. Gündüz, Agent, assisted by Mr T. Özkarol, Mr A. Solen,

Mr A. Kaya, Mr A. Kurudal, Ms N. Erdim and Mr A. Kaya. The applicant

was represented by Mr K. Boyle, counsel, assisted by Ms A. Reidy,

Mr M. Sakar, Mr O. Baydemir and Ms D. Deniz (interpreter). Further

documentary material was submitted by the applicant and the Government

during the hearing, including a document containing information of the

applicant's medical condition.

22.  On 2 December 1995 the Commission considered that the evidence

heard was not conclusive and decided that a further hearing of oral

evidence would take place in Strasbourg on 7 March 1996.

23.  On 23 January 1996 the Government submitted documents concerning

the piece of cloth which, according to the applicant, had been used to

blindfold him.

24.  By letter of 25 January 1996 the Commission requested the

Government to submit a document which had been referred to as an arrest

report by the Agent of the Government during the hearing on

8 November 1995.

25.  On 26 January 1996 the Government informed the Commission that

one of the witnesses summoned to appear at the hearing on 7 March 1996

would not attend. They also proposed that a further three witnesses be

heard.

26.  On 13 February 1996 the Government provided the document

requested by the Commission on 25 January 1996.

27.  Further evidence was heard by the Delegates of the Commission in

Strasbourg on 7 March 1996 from Harun Altin, Musa Çitil, Sinan Dinç,

Mehmet Dinç and Halit Tutmaz. One of the Delegates, Mr Conforti, was

not able to attend and in his place Mr N. Bratza participated in the

hearing. Before the Delegates the Government were represented by

Mr A. Gündüz, Agent, assisted by Ms A. Emüler, Mr A. Solen, Mr A. Kaya

and Mr A. Kurudal. The applicant was represented by Mr K. Boyle,

counsel, assisted by Ms A. Reidy.

28.  On 13 April 1996 the Commission decided to invite the parties to

present their written conclusions on the merits of the case. By letter

dated 26 April 1996 the Commission also reminded the Government of

their undertaking, expressed by the Agent at the hearing on

7 March 1996, to submit a copy of the statement taken by the Turkish

authorities from Mr Musa Çitil, as well as copies of the custody

records of Derinsu Gendarme Station for 1993.

29.  On 2 May 1996 the Government submitted the documents which had

been requested by the Commission on 26 April 1996.

30.  The applicant submitted his final observations on the merits on

9 June 1996.

31.  By letter dated 2 July 1996 the Commission informed the

Government that the time-limit fixed for the purpose of submitting

final observations had expired without any such observations having

been received from the Government or an extension of the time-limit

having been sought.

32.  On 10 July 1996 the Government informed the Commission that they

would be able to submit their final observations before the

Commission's October session. In reply, the Commission drew the

Government's attention to the fact that in the circumstances of the

present case it would be for the Commission to decide whether or not

any final observations submitted by the Government would be taken into

consideration.

33.  The final observations of the Government were submitted on

26 July 1996.

34.  On 8 April 1997 the Commission decided that the Government's

final observations should be taken into consideration.

35.  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

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

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               C.L. ROZAKIS

               L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs. M. HION

          MM.  R. NICOLINI

               A. ARABADJIEV

37.  The text of this Report was adopted on 17 April 1997 by the

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

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

Convention.

38.  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.

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

is annexed hereto.

40.  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

41.  The facts of the case, in particular those which relate to the

events between 15 and 19 February 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.

A.   The particular circumstances of the case

1.   Concerning the events between 15 and 19 February 1993

     a.   Facts as presented by the applicant

42.  The various accounts of events as submitted in written statements

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

presented in the applicant's final observations on the merits is

summarised here.

43.  On the morning of 15 February 1993 the applicant was arrested at

his father's house in the hamlet of Yassitepe by gendarmes under the

command of Harun Altin and taken to Derinsu Gendarme Station. The

applicant was a journalist employed by the Özgür Gündem newspaper in

Diyarbakir. That newspaper had been closed down by the authorities at

the time. The applicant had travelled home to visit his family probably

on 12 February 1993.

44.  The applicant was interrogated, assaulted and threatened with

death at the Derinsu Gendarme Station where he was detained until the

morning of 19 February 1993. He was kept in a cell without any

lighting, bed or blankets and in freezing conditions throughout this

time. He was not given any regular meals but only bread and water after

the first day. When he protested about his detention he was assaulted

in his cell by gendarmes including Harun Altin. He was prevented from

freezing to death by the fact that on the night of 18 February 1993 he

was joined in the cell by his three brothers who wrapped him in extra

clothing they had.

45.  On the morning of 19 February 1993 the applicant was brought to

the District Gendarmerie Headquarters at Derik. There he was stripped

naked and subjected to torture with the purpose of having him sign a

prepared statement of admission. He was brought before the District

Gendarmerie Commander Musa Çitil who threatened him with death if he

returned to the area.

46.  Late in the afternoon the applicant was brought before the public

prosecutor Hasan Altun to whom he complained of his treatment and to

whom he handed a wet blindfold that had been left around his neck. He

was released on 19 February 1993 and having received attention and

medication from his family he returned to Diyarbakir on the morning of

20 February 1993. The applicant did not go to see a doctor after his

release.

47.  The applicant has subsequently been the victim of torture at the

hands of other gendarmes on several occasions.

     b.   Facts as presented by the Government

48.  In their final observations on the merits of the application the

Government submit that the applicant, who had served a term of

imprisonment prior to the events at issue for having indulged in

illegal and separatist activities and who had continued these

activities as a journalist working for Özgür Gündem, was arrested in

Yassitepe village on 17 February 1993 and taken to Derinsu Gendarme

Station. He was detained because intelligence information available

suggested that he had threatened village guards in order to make them

lay down their arms. His father and brothers were not arrested, but

they followed the applicant to the Gendarme Station voluntarily. His

brothers were not allowed to enter the security room where the

applicant was kept.

49.  The security room at Derinsu Gendarme Station is situated in the

centre of the building, is surrounded by other units and has no

exterior walls, while the outer walls of the building are 50 cm. thick.

Other rooms within the building being heated by coal-burning stoves,

the temperatures in the security room cannot drop below zero. Moreover,

the applicant had not been deprived of food, water or sleep. The

applicant was not questioned while in Derinsu Gendarme Station, nor was

he blindfolded and slapped in the face by Harun Altin.

50.  On 19 February 1993 the applicant was taken to Derik District

Gendarmerie Headquarters. He was not exposed to torture or

ill-treatment there.

51.  The applicant complained that he had been tortured and ill-

treated at both Derinsu Gendarme Station and Derik District Gendarmerie

Headquarters to the public prosecutor before whom he was brought on

19 February 1993. Although this public prosecutor recorded the

applicant's allegations, he did not act upon them and for this reason

the Supreme Council of Judges and Prosecutors has started an

investigation which will probably lead to disciplinary proceedings

against the public prosecutor.

2.   Criminal proceedings against the applicant

52.  Finding that the offences of which the applicant was accused fell

within the competence of the State Security Courts, a public prosecutor

at Derik issued a decision of non-jurisdiction and referred the case

to the prosecutor at the Diyarbakir State Security Court.

53.  The applicant was subsequently summoned to appear before the

Diyarbakir State Security Court to answer charges under

Articles 188-191 of the Criminal Code (issuing threats). A hearing took

place on 13 May 1993 at which the applicant protested his innocence.

He was acquitted on 2 August 1993. According to the Government's final

observations, the three villagers who gave evidence before the

Delegates (Sinan Dinç, Mehmet Dinç and Halit Tutmaz) had been among the

witnesses who testified in the criminal proceedings that the applicant

had not threatened the village guards.

3.   Proceedings before the domestic authorities

54.  Following the communication of this application by the Commission

to the respondent Government on 11 October 1993, the Ministry of

Justice (International Law and External Relations General Directorate)

contacted the public prosecutor's office in Derik on 18 December 1993,

informing them of the complaints made by the applicant. A preliminary

investigation was opened.

55.  On 20 April 1994 Harun Altin, the commanding officer of Derinsu

Gendarme Station at the time of the alleged incident, was questioned

by a public prosecutor in Daday district at the request of the Derik

public prosecutor Bekir Özenir.

56.  A decision of non-prosecution in respect of Harun Altin and Musa

Çitil, the Derik District Gendarmerie Commander at the relevant time,

was issued by the public prosecutor Bekir Özenir on 4 May 1994. It

stated that there was no concrete evidence other than the applicant's

abstract allegations that the defendants Altin and Çitil had committed

the alleged offences of maltreatment and threat.

57.  Hereupon, the Ministry of Justice (International Law and External

Relations General Directorate) informed the office of the Mardin public

prosecutor in an undated letter that as the decision of non-prosecution

had not yet been notified to the applicant, the proceedings remained

incomplete, the applicant still having the opportunity to file an

appeal against the decision. Having regard, furthermore, to the

identities of the defendants and the nature of the crime the Ministry

of Justice submitted that the alleged offence might fall within the

scope of the law on the prosecution of civil servants and suggested

that an investigation be carried out to see whether a decision of non-

jurisdiction would be appropriate. This letter was transmitted to the

public prosecutor's office at Derik on 26 April 1995.

58.  A decision of non-jurisdiction was issued on 4 May 1995 by the

Derik public prosecutor Hüsnü Hakan Yagiz. The investigation was

referred to the Derik District Administrative Council.

59.  On 14 July 1995 a statement was taken from Musa Çitil by a

Gendarme Lieutenant Colonel.

60.  The Derik District Administrative Council submitted its summary

investigation report dated 5 September 1995 to the office of the Mardin

Provincial Governor from where, on 12 September 1995, it was referred

to the Mardin Provincial Administrative Board. On 13 September 1995 the

Mardin Provincial Administrative Board decided that due to lack of

evidence Altin and Çitil were exempt from public prosecution.

B.   The evidence before the Commission

1.   Documentary evidence

61.  The parties submitted various documents and newspaper articles

to the Commission. These included reports about Turkey, documents

relating to, inter alia, the applicant's detention in Derinsu and Derik

Gendarme Stations and to the investigation on the domestic level into

the applicant's allegations, and a floor plan of Derinsu Gendarme

Station.

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

     a.   Official documents

     i.   Urological examination report of 15 January 1991

63.  The report states that the applicant's right kidney had been

surgically removed in 1986.

     ii.  Custody note dated 17 February 1993

64.  This is a handwritten note, signed by the applicant, a gendarme

officer with number 1989/1007 and a gendarme private by the name of

Abdurrahman Keben. It states that the applicant was taken into custody

on 17 February 1993 around 16.00 hours following information to the

effect that he had threatened and incited the village guards of

Derinsu- Yassitepe hamlet to adhere to the PKK and fight against the

State.

     iii. 1993 security room ledger from the Derinsu Gendarme Station

65.  The ledger contains an entry to the effect that the applicant was

brought to Derinsu Gendarme Station on 17 February 1993 at 16.30 h.

According to the ledger, the applicant was arrested on suspicion of

making propaganda for the PKK. His arrest had been ordered by the Derik

District Gendarmerie Headquarters. He was transferred to Derik District

Gendarmerie Headquarters on 19 February 1993 at 09.00 h.

66.  It appears from the ledger that six people had been detained in

the Derinsu Gendarme Station in 1993; the applicant had been the

second, the first having been arrested on 15 January 1993, the third

on 18 April 1993 and the last person on 5 September 1993. The applicant

was the only detainee to have been held on suspicion of a PKK-related

offence.

     iv.  Notice of referral of a suspect, dated 19 February 1993,

          from Musa Çitil to the public prosecutor's office at Derik

67.  In the notice the applicant is referred to as "the suspect". It

states that he is charged with inspiring the village guards of the

Yassitepe hamlet to lay down their weapons, join the PKK and fight

against the State. He is referred to the authority of the public

prosecutor's office. The letter contains the mention that, inter alia,

three witness statements are enclosed. These statements have not been

made available to the Commission (paras. 11, 14, 15).

     v.   Judgment of the Diyarbakir State Security Court of 2 August

          1993

68.  The judgment states that the applicant was charged with having

threatened temporary village guards whilst the latter were on duty. The

applicant had denied the charges and the public prosecutor at the State

Security Court had asked for the acquittal of the applicant. The Court

held that it had not been possible to obtain sufficient credible

evidence to the effect that the applicant had committed the alleged

offence and it acquitted the applicant. The applicant was not present

when the judgment was pronounced but he was represented by a lawyer,

Mr Baki Demirhan.

     vi.  Decision of non-prosecution of 4 May 1994

69.  This decision, issued by the Derik public prosecutor Bekir

Özenir, lists as defendants of the offences of maltreatment and threat

Harun Altin and Musa Çitil, and the applicant as the complainant. The

date of the alleged offences is given as "15.2.1993 - 19.2.1993". It

states that the applicant claimed that he had been maltreated whilst

he was being held in detention in Derinsu Gendarme Station on

17 February 1993 on suspicion of aiding and offering shelter to the PKK

terrorist organisation and that his life had been threatened by the

Derik District Gendarmerie Commander, Musa Çitil. As there was no

concrete evidence other than the applicant's abstract allegations that

the defendants had committed the alleged offences, they were freed from

prosecution.

     vii. Decision of non-jurisdiction of 4 May 1995

70.  This decision was made by the Derik public prosecutor Hüsnü Hakan

Yagiz. It also lists Harun Altin and Musa Çitil as defendants in

respect of the offences of maltreatment and threat, allegedly committed

on "15.2.1993 - 19.2.1993". It goes on to say that the applicant had

been taken into custody on 17 February 1993 for aiding and sheltering

members of the PKK terrorist organisation. The applicant had claimed

that he had been maltreated and that on the same day a threat to his

life had been made by Musa Çitil. In view of the fact that the

defendants were members of the security forces, it was decided that the

investigation was to be referred to the Derik District Administrative

Board pursuant to Decree No. 285.

     viii. Decision of non-prosecution of 13 September 1995

71.  This decision, issued by the Mardin Provincial Administrative

Board, was taken following the referral of the investigation by the

Derik District prefect to the office of the Mardin Provincial Governor.

Again, it lists Altin and Çitil as defendants of the alleged offences

of maltreatment and threats. The date and place of the offences are

given as 17 February 1993, Derinsu Gendarme Station and Derik District

Gendarmerie Headquarters. It says that the applicant, who is referred

to as the complainant, was detained for having sympathy with the PKK

terrorist organisation, for being a reporter on a like-minded organ of

the press and for having a hostile attitude towards the State and its

soldiers. Although the applicant had alleged to have been subjected to

maltreatment and threats at Derinsu Gendarme Station and Derik District

Gendarmerie Headquarters, he had failed to produce sufficient evidence

to substantiate his allegations. For that reason the Administrative

Board decided unanimously that the defendants Altin and Çitil were to

be exempt from public prosecution.

     ix.  Expert's examination report of 30 November 1995

72.  The report concerns an examination by a tailor, Abdullah Kaya,

of the piece of fabric which the applicant alleges had been used to

blindfold him and which he had given to the Derik public prosecutor on

19 February 1993. It appears from the document that the examination was

requested by the Ministry of Justice (International Law and External

Relations General Directorate) on 23 November 1995.

73.  According to the report, the piece of fabric was what is commonly

called a "kefiye", cut in half. A kefiye is used by men in the South

East of Turkey as a head cover and scarf. The piece of fabric had not

been produced in any special way; it had not been turned into a

blindfold nor had it been produced to serve as a blindfold.

     b.   Statements made by the applicant during his detention

     i.   Statement dated 19 February 1993

74.  Although the document does not indicate where the statement was

taken, it appears to have been drawn up in Derik District Gendarmerie

Headquarters. It is signed by the questioning officer, who is only

identified as "89/1007", a gendarme private called Abdurrahman Keben,

and the applicant.

75.  The applicant was asked to respond to the accusation against him,

i.e. that he had threatened the life of the village guards in the

district of Derik if they did not lay down their arms. The applicant

stated that he was a reporter with the Özgür Gündem newspaper. He had

travelled to Yassitepe hamlet three or four days earlier to visit his

family. The applicant denied the charges, saying that he had not

threatened anybody in order to make them lay down their weapons and

that he had not acted on behalf of the PKK.

     iii. Statement dated 19 February 1993 taken by the Derik public

          prosecutor Hasan Altun

76.  The applicant, referred to as the suspect, was informed of the

charges against him and was asked to make a statement. He repeated what

he had told the gendarmes on the same day (para. 75). A number of

unknown people had alleged that he had visited various villages in the

District of Derik where he had incited people to join the PKK and had

threatened the village guards to lay down their arms. The applicant

denied these allegations. He had come to the area to visit his family

in Yassitepe hamlet. He had been taken into custody as a result of the

fact that the gendarmes were prejudiced against him since he worked for

Özgür Gündem. He had been kept in custody in Derinsu and Derik Gendarme

Stations for four days. During his detention he had been forced to

sleep in the cold, he had been submitted to cold water torture and had

been beaten with truncheons. He had been forced to make up statements.

During his interrogation he had been blindfolded. He was told that he

would be shot if he returned to the area.

77.  The applicant told the public prosecutor that he wanted to file

a complaint with him against the officers in charge of the Derinsu and

Derik Gendarme Stations for having tortured him whilst he was in their

custody. He also handed the public prosecutor a wet blindfold.

78.  Underneath the signatures of the public prosecutor, the clerk who

wrote down the statement and the applicant, the document features a

short second statement signed by the same persons. In this, the

applicant stated that the fabric which he had shown to the public

prosecutor belonged to Derik District Gendarmerie Headquarters and that

it had been used to blindfold him. It had been forgotten and left

around the applicant's neck at Derik District Gendarmerie Headquarters.

     c.   Statements made by the applicant in support of his

          application

     i.   Statement, undated, handwritten by the applicant

79.  On 15 February 1993 the applicant was taken into custody together

with his father and his brothers in the hamlet of Yassitepe by

non-commissioned officers from Derinsu and Dumluca Gendarme Stations.

Throughout the four days of his detention at Derinsu Gendarme Station

he was in a cell where the temperature was -20°C. During this period

his request for a blanket was refused and in order not to freeze, he

had to keep walking and could not go to sleep. He was only given water

and was subjected to abuse. His father and brothers were kept in a

different place; they were not subject to the same procedures.

80.  On 19 February 1993 the applicant was taken to Derik District

Gendarmerie Headquarters, his eyes covered as he was taken inside the

building. During the interrogation which took place there he was

stripped naked, sprayed with cold water and beaten with truncheons.

This treatment caused him to faint. When he came to, he was taken up

to see Musa Çitil whom he assumed was the Station Commander. Çitil told

him that he would be killed if he visited the area again.

81.  The applicant was released on 19 February 1993 by a Derik Public

Prosecutor before whom he had been brought.

     ii.  Supplementary statement, undated, taken by Sedat Aslantas

          of the Diyarbakir branch of the Human Rights Association

82.  On 12 February 1993 the applicant went to Yassitepe hamlet to

visit his family. Although he was on holiday he did carry his press

card in view of the incidents taking place in the area. On his third

day there, i.e. 15 February 1993, his father's house was raided by the

commanders and soldiers of Derinsu and Dumluca Gendarme Stations. The

applicant, his father and three brothers were taken to Derinsu Gendarme

Station. The applicant was detained in the security room and his father

and brothers were put in the canteen.

83.  Around midnight, the Station Commander, of whom the applicant

only knew his first name Harun, took them in turn to the interrogation

room. The applicant was asked whether they had threatened village

guards in neighbouring villages in order to make them lay down their

weapons. Throughout the interrogation the applicant suffered verbal

abuse and was beaten. The applicant's father and brothers were released

at about 01.00 hours on the condition that they stay in a house in the

village.

84.  The applicant was returned to the security room. In order not to

freeze he was forced to pass two days and two nights without sleep as

he was held for four days in temperatures of -30°C. He was left hungry

and thirsty, and was not given a blanket or any kind of heating despite

the fact that he informed the soldiers that he only had one kidney.

85.  On 19 February 1993 the applicant was taken to Derik District

Gendarmerie Headquarters. In the interrogation room pressure was put

on the applicant to admit that he had threatened village guards and had

carried out propaganda for the PKK. He was taken to a different room

where there were three gendarmes who told him to strip naked. They then

proceeded to squirt the applicant with pressurised cold water from a

hose pipe and to beat him on the shoulders and buttocks with a

truncheon. Again, they wanted the applicant to admit to having

threatened village guards and having made propaganda for the PKK as

well as having written newspaper articles directed against them.

However, the applicant did not admit to anything. At some point he lost

consciousness. When he came to, the soldiers were dressing him. He was

taken up to Çitil's room where Çitil told him that he would be killed

if he came to the area again. Having been brought back down again, the

applicant was forced to sign a statement which had been prepared by the

gendarmes before he was taken to a public prosecutor. He told the

prosecutor that the accusations against him were false and, as evidence

of the torture to which he had been submitted, he handed the prosecutor

a wet blindfold that had been left around his neck. The prosecutor

included this in his report and also recorded that the applicant wished

to complain about Musa Çitil.

     iii. Supplementary statement dated 27 July 1995, handwritten by

          the applicant

86.  The applicant had started working as a reporter for Özgür Gündem

when this newspaper first started publishing. He subsequently became

the Özgür Gündem representative in their Cizre and Diyarbakir offices.

The interest of the authorities in the applicant increased as he

started working for the newspaper.

87.  The applicant went to visit his family in Derik District on 15

February 1995. When the security officers found out that he worked for

Özgür Gündem, the applicant, along with his father and three brothers,

was taken into custody by Derinsu Gendarme Station. His father and

brothers were released after one day and the applicant was taken to

Derik District Gendarmerie Headquarters. There he experienced five days

of torture: electric shocks, falaka, cold water treatment and crude

beatings.

88.  Although he was acquitted of the charges brought against him, he

has subsequently been exposed on numerous other occasions to torture

during detention, as have other reporters of Özgür Gündem.

     d.   Statements made by other persons

     Harun Altin

     Statement dated 20 April 1994 taken by public prosecutor at Daday

89.  This statement was taken upon the request of the Derik public

prosecutor Bekir Özenir (para. 55).

90.  It says that Altin was informed of the allegations and that he

declared that on 15 February 1993 he had been Commander of the Derinsu

Gendarme Station which fell within the jurisdiction of Derik District

Gendarmerie Command. He had held this post for two years. During that

time numerous judicial procedures had been processed and some people

had been kept in custody. It was impossible for him to remember every

person by name and although the applicant may have been detained in

Derinsu, he did not remember him. However, during his term of office

no maltreatment, beating, torture, coercion or any other form of

illegal treatment had taken place in his Station.

     Musa Çitil

     Statement dated 14 July 1995 taken by a Gendarme Lieutenant

     Colonel

91.  It appears that this statement was taken within the framework of

the investigation carried out by the Derik Administrative Board

(para. 59).

92.  Çitil was informed of the allegations raised by the applicant in

his application to the Commission. In reply, he said that the applicant

had been taken into custody as he was suspected of having exerted

pressure on village guards and of having run a propaganda campaign

amongst them. The applicant had also been charged with aiding and

abetting the PKK terrorist organisation. The applicant had been duly

investigated and referred to the office of the public prosecutor and

the court. The applicant had not been subjected to ill-treatment or

threats, either by Çitil or by others. Had the allegations been true,

the applicant would have informed the legal authority before which he

was brought.

2.   Oral evidence

93.  Amongst the witnesses summoned to appear before the Commission's

Delegates on 8 November 1995 in Diyarbakir and subsequently on

7 March 1996 in Strasbourg were Hasan Altun (the public prosecutor at

Derik before whom the applicant appeared on 19 February 1993 and to

whom he complained about having been ill-treated in custody), Bekir

Özenir (the Derik public prosecutor who issued a decision of non-

prosecution in respect of Altin and Çitil on 4 May 1994) and Osman

Yetkin (public prosecutor at the Diyarbakir State Security Court). None

of these prosecutors appeared as the Government stated that they had

not had enough time to prepare themselves for the hearing (para. 16).

94.  Prior to the hearing in Strasbourg the Government informed the

Commission that as Osman Yetkin, in his capacity of public prosecutor,

had only been involved with the proceedings against the applicant which

led to the judgment of the Diyarbakir State Security Court of

2 August 1993 (paras. 53, 68), and since all documents relating to

these proceedings had been submitted, Mr Yetkin felt he would be unable

to add anything of interest and failed to see the necessity of his

attendance at the hearing. The Commission was further informed that

Hasan Altun was in an analogous situation.

95.  At the hearing on 7 March 1996 the Government informed the

Delegates that Bekir Özenir had sent word that he would not attend the

hearing. Mr Özenir had not given reasons for his absence.

96.  The evidence of seven witnesses heard by the Delegates may be

summarised as follows:

     i.   Salih Tekin

97.  Salih Tekin stated that he was born in 1964. Prior to becoming

a journalist he had worked in the Revenue Directorate of the Diyarbakir

municipality. However, in 1986 he had been convicted of membership of

the illegal Communist Labour Party and he had served a four and a half

years sentence. After his release he had been unable to return to his

post and he had applied for a job with the Özgür Gündem newspaper after

its launch.

98.  He could not remember the exact date when he had gone to the

Yassitepe hamlet to visit his family but it had been in the week prior

to his arrest. At that time Özgür Gündem had temporarily stopped

publishing and only archive work was being carried out. If a story had

developed in the area while he had been there, he would have made a

report about it which he would have sent to the paper for the archives.

99.  While he had been with his family, other relatives and friends

had come to see him and he had gone to other villages to visit people.

Some of his relatives and friends were village guards.

100. In the morning of Monday 15 February 1993, when he had had his

breakfast, the Commanders of the Derinsu and Dumluca Gendarme Stations

and a number of their soldiers had arrived in the middle of the village

and had called out for him. He had gone to them and had been told to

get into the taxi with the two Commanders. His father and three

brothers had followed them together with the soldiers. In the taxi the

officers had asked him why he had come to the area, why he was working

for Özgür Gündem, a banned newspaper, and why people had been reluctant

to give a statement about him. He had also been told that he had

threatened the temporary village guards.

101. Having been shown the custody note which states that he had been

arrested on 17 February 1993 (para. 64), he emphasised that his arrest

had taken place on 15 February. He denied ever having read or seen the

note before and said that there was something wrong with the signature.

102. He had been taken to Derinsu Gendarme Station where, upon arrival,

he had been informed that he had been arrested because he was suspected

of having come to the region in order to persuade the temporary village

guards to lay down their arms. He had not seen whether his detention

had been recorded in a register. At the Gendarme Station, he had been

separated from his father and brothers and put in a cell on his own.

The cell was square, with concrete walls and floor, about 1,80 metre

high, and it would have held fifteen people standing up. It had no

window or light and the door was made of iron and had a grid which

could be opened from the outside. There was no chair, no bed and no

blankets. Furthermore, the temperature in the cell was extremely cold

and there was no heating.

103. At around 23.00 hours he had been blindfolded by two soldiers and

taken to the room of the Station Commander whom he had known only as

"Harun". He had been interrogated for about forty-five minutes to one

hour. Harun had asked him why he worked for a banned newspaper and had

told him that he had threatened village guards and that he was an enemy

of the State. He had denied the accusations. At the end of the

interrogation Harun had slapped him three times in the face, saying

that he was a liar and that he should be killed. He had then been taken

back to the cell.

104.  When he was asked why he had said in one statement that it had

been -20°C (para. 79) in the cell and in another statement had

mentioned -30°C (para. 84), he explained that it had been impossible

for him to measure the exact temperature.

105.  In order to stave off the cold he had been forced to keep moving

in the cell. Following an operation in 1986 he had only one kidney.

Even though he had informed the Station Commander of this fact when he

had been interrogated and had said that for this reason he needed to

drink water and to keep inside a warm environment, he had been refused

both a blanket and food. When he had not been walking, he had been

leaning with one shoulder against the wall or had sat on his feet.

Sometimes he would sleep for twenty minutes like that. Around noon the

following day he had protested against this treatment by yelling loudly

"Stop this arbitrary treatment!". The Station Commander and five or

six privates had come into the cell and, at the order of the Officer,

the latter had struck him with fists and kicked him. He had been told

that they would give him things when they felt like it.

106.  That day, around 15.00 hours, he had been given a glass of cold

water. He could not remember exactly but he thought that it had been

on the second or the third day of his detention that he had been given

half a loaf of bread to eat. Once a day the Station Commander would

come to the cell accompanied by a number of privates. They threatened

him and said that he would freeze to death in the cell.

107.  On the third night of his detention, around 02.00 or 03.00 hours,

his three brothers had been brought to his cell. He had tried to keep

awake but at that time he had not been able to stand it any longer and

he had collapsed. His brothers had put a coat underneath him and had

also put some of their clothes on him. Although he did not remember

whether his brothers had been wearing the head scarfs typical of the

region he knew that if they had given him such a scarf he would have

put it around his head rather than neck. Then his brothers had sat on

him to warm him up. He did not know why his brothers had been allowed

to join him in the cell. They had told him that they had been made to

wait in the snow and had occasionally been allowed to wait in the

sentry box. At some stage they had quarrelled with the soldiers and had

told them that if they would not be released they should be put in the

same cell as their brother. His brothers had been taken away from him

the next day, 19 February 1993.

108.  That morning, i.e. 19 February 1993, he had been blindfolded, put

into a military vehicle and taken to Derik District Gendarmerie

Headquarters. Confronted with his supplementary statement to the Human

Rights Association, where it says that he spent two days and two nights

without sleeping in Derinsu, he said that when he had looked through

the document before signing it he had probably missed the discrepancy

in the number of days.

109.  Upon arrival at Derik District Gendarmerie Headquarters a second

blindfold had been put on him. After having been made to sit and wait

with his head on a table for ten minutes he had been taken towards a

corridor to the right of where he had been sitting. He had been made

to enter a room which he assumed must have been a washroom. Despite the

two blindfolds he had been able to see a little of the floor from

underneath the blindfolds. In this manner, he had seen three pairs of

military boots of the type soldiers wear. He had been ordered to strip

naked. One of the soldiers had yelled at him that the interrogation had

begun; the second soldier had then started spraying him with cold water

from a hosepipe while the third soldier had beaten him with a

truncheon. At some stage they had also subjected him to electric shocks

and falaka. They had continued this treatment despite his telling them

that he was ill and showing them his surgical scars.

110.  All the time one of the soldiers had put questions to him about

why he worked for Özgür Gündem and why he had come to the region. He

had been told that they had obtained information to the effect that he

had threatened the temporary village guards in his village. He had

denied all allegations and had told the soldiers that the people in the

village were his relatives and acquaintances, including the village

guards. After approximately three hours he had fainted. He did not know

how long he had been unconscious.

111.  When he had come to, he had found that he was being dressed by

the soldiers. He had been asked to sign a statement which the soldiers

had prepared but he had refused and had said that he would read it

first. He had then been taken upstairs to a room where he had heard

someone introduce himself as the District Gendarmerie Commander, Musa

Çitil. One of the soldiers accompanying him had told Çitil that a

statement had been prepared and that he had not signed it. Çitil had

repeated the questions that had already been put to him and had then

said to him that he was writing news about the region in a banned

newspaper and that he had threatened the village guards. Finally, Çitil

had told him that he was going to be sent to the public prosecutor but

that if he ever came back to the area two holes would be put in his

head. Çitil had then ordered the soldiers to write in a statement what

he, Tekin, had told them.

112.  He had been taken downstairs again and shortly afterwards had

been given a statement to read. His blindfold had not been removed but

while one of the soldiers had held his head over a table, the blindfold

had been slightly raised to enable him to read and sign the statement.

He confirmed that this was the statement of 19 February 1993

(paras. 74-75) and that its contents were correct.

113.  He had subsequently been taken to the office of the public

prosecutor which was located in a nearby building. His blindfold had

been removed somewhere near the exit of the Derik District Gendarmerie

Headquarters; however, the second blindfold had slipped down around his

neck and it had been left there. This blindfold had been made from the

head scarf material used in the area.

114.  The public prosecutor's office was situated in a building close

to the Gendarme Headquarters and as he had been brought before the

public prosecutor he had told the prosecutor that it must be possible

to hear the screams of the people being tortured in the Gendarme

Headquarters. He had said that during his interrogation he had been

sprayed with cold water and beaten with truncheons. He had removed the

wet blindfold from around his neck and had wrung it out over the

prosecutor's desk. He had denied the accusations which had been

levelled against him and had said that he wanted to file a complaint

against the people who had maltreated him. In reply, the public

prosecutor had said that he was a man of the law, that he had received

complaints of torture before, that he had warned the military on this

matter but that there was nothing he could do about it. However, the

statement which had subsequently been drawn up did include his

allegations of torture, and a separate statement at the bottom of the

second page indicated that he had submitted a piece of fabric which he

claimed had been used as a blindfold.

115.  He had further told the public prosecutor that he ought to be

sent to a hospital. However, the prosecutor had told him that he would

be released and that he would be informed of further developments in

his case.

116.  Upon his release, he had stayed the night at his father's house.

His mother and his wife had looked at his back and had said that it was

bruised. They had also washed his feet with warm water but he had been

unable to feel anything. The next day he had returned to his house in

Diyarbakir. He had not seen a doctor. Incidents of detention and

torture having become commonplace, he had only seen cause for happiness

at his release and had not thought about going to a doctor or obtaining

a medical certificate which would substantiate his allegations of

having been maltreated. Besides, he had been in a shock. From a

pharmacy in Diyarbakir he had purchased a medicine which cleanses the

kidney, some antibiotics and an ointment for his feet and shoulders.

He had then stayed at home for a week, after which he had gone to the

Diyarbakir branch of the Human Rights Association of which he was a

member. There he had been told that officials working in the region

where a state of emergency had been declared were not subjected to

prosecution and that for that reason he would have to complain to the

Commission.

117.  Subsequently he had been summoned to appear before the Diyarbakir

State Security Court on charges of having threatened village guards.

He had told the Court that these charges were fabrications. During the

hearing he had also said that he had been ill-treated during his

detention and he thought that this had been recorded in the minutes of

the hearing. He had not been present when witnesses had been heard by

the Court. He had been acquitted of the charges.

118.  About one month before appearing before the Delegates he had

received a decision issued by the Mardin Provincial Administrative

Board from which it appeared that no action would be taken against the

officers Harun and Çitil.

119.  Having taken the threats made against him seriously, he had not

been back to Derik since February 1993.

     ii.  Haci Mehmet Tekin

120.  Haci Mehmet Tekin said that he was born in 1923 and that he was

the applicant's father. He said that the applicant had come to visit

him on Monday 15 February 1993 and had been arrested the next day, but

also that the applicant had stayed at the family home for one night

before being arrested on 15 February 1993. His house had been

surrounded by soldiers from two Gendarme Stations and he and his four

sons, including the applicant, had been arrested and taken to Derinsu

Gendarme Station. Upon arrival, the applicant had been separated from

him and his other sons.

121.  Asked whether he had been informed of the reason for his arrest,

he said that he had been told that the applicant had been arrested

because he worked for Özgür Gündem. He had also been told to dissuade

the applicant from that kind of thing or else he would not see his son

again.

122.  He had been forced to wait outside the Gendarme Station in the

freezing cold with his three sons. They had been made to lie down in

the snow. Once they had been allowed to sit in the canteen for about

three hours but they had not been given anything to eat or drink.

Although he had not been locked up inside a building he maintained that

he had been detained and that there had been a large number of guards

and soldiers. Around 03.00 hours he had been able to leave. He was

unable to explain exactly how his release had come about. He said that

by 03.00 hours they had been so cold that they could stand no more. He

had then given his identity card to the Station Commander Harun and had

escaped, together with his sons, without informing anybody. However,

he also stated that in view of his age a soldier had told him that he

could go but that his sons had stayed behind. He had instructed his

sons to watch over their brother.

123.  He had not rested until the applicant had been released, knowing

that if he did nothing his son would be made to disappear. He had

submitted petitions to the office of the public prosecutor, to the

Provincial Governor in Mardin and to the chief public prosecutor in

Mardin. When he had eventually returned to Derinsu, a neighbour had

given him extra clothing for the applicant. He had given the clothes

to his sons and they had taken them to the applicant on the third day

of the latter's detention. They had also tried to give the applicant

a blanket but this had been refused. He was not very clear about how

his sons had obtained permission to enter the cell where the applicant

was held. He thought that his sons had pushed the Station Commander

Harun until the latter said, "You'll die too. Die with Salih."

124.  When his sons had entered the applicant's cell, they had found

their brother lying on the floor in a coma. They had given him the

clothes and warmed him up; they had saved the applicant's life.

125.  When the applicant had been taken to Derik District Gendarmerie

Headquarters on 19 February 1993 he had followed the armoured vehicle

in a taxi. He had gone there with a large number of relatives and they

had all waited outside. A village guard had told them that the

applicant was being tortured inside the Gendarme Headquarters. Upon the

applicant's release, they had immediately taken him away to a

relative's house in Derik.

126.  He had been told that, while in detention, cold water or ice had

been poured over the applicant's naked body. This had occurred at

Derinsu Gendarme Station as well as at Derik District Gendarmerie

Headquarters. There had been bruising caused by beatings with

truncheons on the applicant's body and there had been blood on his neck

and shoulders. The family had treated the applicant's wounds by

applying ointments and bandages.

127.  Although he first said that they had been afraid to stay in Derik

and had left after one hour, sending the applicant to Diyarbakir by

taxi, he also said that after the applicant's release the latter had

come by taxi and had stayed for one night. He had two houses.

128.   He thought that the applicant had seen a doctor in Diyarbakir

but he did not know when. The applicant had told him that he had gone

to a doctor and had got everything.

129.  About one month before appearing before the Delegates, soldiers

and guards had taken him to Üçtepe Gendarme Station where he had been

forced to sign a statement which said that the applicant had put

pressure on the village guards to disarm. Out of fear he had signed

this statement.

     iii. Harun Altin

130.  Harun Altin stated that he was born in 1966 and that he was a

non-commissioned gendarme officer. From July 1991 until August 1993 he

had been Commander of Derinsu Gendarme Station.

131.  He had arrested the applicant in February 1993 at the orders of

the District Gendarmerie Commander, Musa Çitil. The applicant had been

accused of making propaganda against the State. He did not remember the

exact date of the arrest but said that this would have been recorded

in the custody ledger of the Gendarme Station. When shown the custody

note of 17 February 1993 (para. 64), he stated that this indicated that

the applicant had been arrested on 17 February 1993.

132.  He had gone to Yassitepe hamlet towards evening in a commercial

taxi as the Gendarme Station did not have a vehicle, accompanied by two

soldiers. In Yassitepe he had asked in which house the applicant was

staying. The applicant had been the last person to come out of the

house he had been directed to. He had invited the applicant to come to

the Gendarme Station and the applicant had not resisted.  Although he

did not exactly remember, he thought it unlikely that he would have

spoken to the applicant while they had been travelling to the Gendarme

Station. Once there he would have informed the applicant of the reason

for his arrest.

133.  In Derinsu Gendarme Station the applicant had been put into the

security room. This room measured approximately 2,5 by 3,5 metres and

was 3 metres high. It had no window, but the grid in the door served

as such. The security room contained a bed with a mattress, a pillow,

a sheet and, as it was winter, two woollen blankets. Although there was

no heating in the room, it was surrounded by rooms which had coal

stoves in them. Furthermore, the outer walls of the Station were 50 cm.

thick. It was therefore not possible that it had been cold in the

security room. The applicant had not complained to him that it was

freezing cold in the security room.

134.  The applicant had received water and three meals a day inside the

security room. Ordinarily a person would have a medical examination

before being detained. However, as no doctor was present at Derinsu

Gendarme Station and the Station did not have a vehicle and District

Gendarmerie Headquarters was far away, the circumstances had not

permitted the applicant being seen by a doctor. But the applicant had

told him that he did not have any medical problems and had not

mentioned the fact that he only had one kidney.

135.  He had not arrested the applicant's father or brothers. He had

been told that members of the applicant's family had come to the

Gendarme Station and had requested permission to see the applicant.

However, he had refused permission. He had not seen the family himself

but had his refusal conveyed to them by a guard. Furthermore, he had

not allowed the applicant's brothers to join the applicant in the

security room.

136.  The applicant had not been interrogated by anybody whilst at the

Station, nor had he been blindfolded. Derinsu Gendarme Station had no

interrogation team. If suspects had to be interrogated, he would either

inform the District Gendarmerie Commander who would send a team, or he

would send the suspect to Derik District Gendarmerie Headquarters from

where he would subsequently be sent to Mardin Provincial Gendarme

Headquarters.

137.  Apart from noting down the name of a detained person in the

custody ledger, a custody note like the one dated 17 February 1993

would also be drawn up when a person was placed in detention. The

custody ledger would be sent to District Gendarmerie Headquarters at

the end of the year, whereas the custody note would be included in the

file concerning the detained person. He had not signed the custody note

of 17 February 1993 as this was the task of the Station's staff

members. The two people who had signed the custody note pertaining to

the applicant had in fact been intelligence personnel from Derik

District Gendarmerie Headquarters who had been assigned to Derinsu.

They had been under the command of Musa Çitil. He did not know why they

had come but their work was to gather intelligence. Musa Çitil had told

him that he would send a car to collect the applicant and the

intelligence personnel. For that reason he had asked these two people

to sign the custody note. He regarded this procedure as normal since

he had taken the applicant into custody on the orders of the District

Gendarmerie Commander and had not himself executed any procedural acts

in connection with the applicant. He was not able to identify the

second person who had signed the note of whom only the registration

number "1989/1007" appeared on the document.

138.  The applicant had been kept at Derinsu Gendarme Station for two

days as no car had been available from Derik District Gendarmerie

Headquarters to collect him before then.

139.  When he had been asked to comment on the applicant's allegations

by a public prosecutor on 20 April 1994 (paras. 89-90) he had only been

given the applicant's name as a reference and that on its own had not

meant anything to him. When he had received the summons to appear

before the Delegates he had contacted his former colleagues since, out

of curiosity, he had wanted to find out the details of the incident.

He had been told that the applicant had been the journalist who had

been taken into custody. In that context and by association he had

remembered the applicant. However, he had not contacted Musa Çitil in

this respect.

     iv.  Musa Çitil

140.  Musa Çitil said that he was born in 1962. In February 1993 he had

been the Commander of the District Gendarmerie of Derik.

141.  He had received complaints that the applicant had been putting

pressure on relatives, who were village guards in the villages of the

district, to disarm. For this reason he had ordered the Commander of

Derinsu Gendarme Station, Harun Altin, to take the applicant into

custody. He had also assigned two intelligence officers who had been

on duty in the area to accompany Altin. He had not ordered the arrest

of the applicant's father or brothers. The applicant was to be kept at

Derinsu Gendarme Station until Derik District Gendarmerie Headquarters

had a car available to collect him. That day the Gendarmerie

Headquarters had only had one car at its disposal which was needed for

other purposes. The other cars had been sent to collect the persons who

had complained about the applicant so that they could make a statement.

142.  The applicant had not been taken into custody to be interrogated

but to have his statement taken. Interrogations would usually be

conducted by interrogation specialists from the interrogation unit

attached to the Provincial Gendarmerie. Since he had had the details

of the case he had thought it more advantageous for the applicant's

statement to be taken at Derik District Gendarmerie Headquarters rather

than Derinsu Gendarme Station. He thought that the applicant had stayed

two days at Derinsu Gendarme Station. The arrest records had been

prepared at Derinsu by the intelligence officers who had been on duty

there.

143. The persons who had complained about the applicant had

communicated with him directly; they had been his informants. In cases

such as this he would try to confirm the validity of the information

with the intelligence staff stationed at the Gendarmerie Headquarters.

If the information was correct, a member of his intelligence staff

would take a statement from the accused. The applicant's statement had

been taken by a gendarme soldier who had been assigned to intelligence

duty and by a specialist sergeant. The registration number "89/1007"

belonged to this specialist sergeant; his name was Mustafa Yanalak.

Headquarters in the morning. The intelligence officers had put the

accusations to the applicant and had noted down his response. This had

taken place in the room of the intelligence officers which was situated

on the ground floor, to the right of the entrance of the building. The

applicant had not been taken into the security room of the Gendarmerie

Headquarters, for this reason his name had not been entered into the

custody ledger. He had not taken the applicant into his office to put

questions to him. He had not been aware that the applicant was a

journalist until his statement had been taken. The applicant's arrest

had not been connected to his profession of journalist but only to the

allegations that had been brought against him.

145.   After having taken the applicant's statement, the specialist

sergeant had gone up to his room on the first floor and had told him

that the procedures had been completed. He had then gone down to where

the applicant was waiting, near the entrance, and had told him that he

would be sent to the public prosecutor. He had also asked the

applicant, pursuant to customary procedure, whether he had any

complaints. If the applicant had then told him that he had been

subjected to ill-treatment he would immediately have been sent to a

doctor and the time of this referral would be noted. However, as the

applicant had not made any complaints, the referral to the public

prosecutor had only contained the date (para. 67).

146.  The case had attracted a lot of publicity. The Minister of the

Interior had telephoned the Governor of the Province who in his turn

had verbally requested that the applicant's case be heard in court as

soon as possible. As to the further proceedings against the applicant,

he only knew that the applicant had not been held in detention during

the trial. He was not aware of the outcome of the proceedings.

147.  When shown the statement which the applicant had made to the

public prosecutor (paras. 76-78) he said that the applicant had not

been blindfolded nor ill-treated. The applicant had only been at Derik

District Gendarmerie Headquarters for one hour or so. He had not

threatened the applicant not to come back to the area.

148.  He had been asked to make a statement regarding the applicant's

allegations to his commander at his present place of work. This

statement had then been sent to the Derik District Governor.

     v.   Sinan Dinç

149.  Sinan Dinç stated that he was born in 1967. He was a farmer and

lived in Yassitepe hamlet. His house was situated twenty metres from

the house of the applicant's father. He had very good relations with

the applicant's family. He had been a village guard for the past

two years.

150.  In February 1993 the applicant had come to Yassitepe. During his

stay in Yassitepe, the applicant had also visited other villages. Five

or six days after his arrival the applicant had been taken to Derinsu

Gendarme Station. He had not witnessed this arrest as he had taken his

animals to graze and upon his return in the evening had been told about

it. The applicant's father and brothers had not been arrested; they had

gone to the Gendarme Station on their tractor to find out what was

happening to the applicant. However, they had told him that they had

been unable to find out anything.

151.  After three days the applicant had been released and had returned

to Yassitepe. He had gone to welcome the applicant back and had asked

him what had happened. The applicant had said that his statement had

been taken but that the Station Commander had treated him well. He had

not seen any bruising, swelling or wounds on the applicant's face.

     vi.  Mehmet Dinç

152.  Mehmet Dinç said that he was born in 1969. He lived in the hamlet

of Yassitepe along with his brother, Sinan Dinç, and the applicant's

family. The brothers' houses were about 100 metres apart, but he was

the closest neighbour to the applicant's family. He had become a

village guard at the same time as his brother.

153.  In February 1993 the applicant had been arrested. He had

witnessed the Commander of Derinsu Gendarme Station arrive in the

hamlet in a commercial taxi towards evening. The Commander had been

accompanied by a specialist sergeant and a soldier. They had gone to

one of the two houses belonging to the applicant's father and had

called the applicant. When the applicant did not appear, the soldier

had gone to the other house and had brought the applicant to the

Commander.

154.  The applicant's father, mother and brothers had followed the

applicant to the Gendarme Station. None of them had been arrested.

Towards evening the parents had returned. The applicant's father had

told him that the Station Commander had refused to let the applicant

go and that the Commander at Derik District Gendarmerie Headquarters

had sent for the applicant.

155.  Three days later the applicant had returned. He had seen the

applicant arrive. In the evening he had gone to welcome the applicant

back. On that occasion the applicant had told him that the Station

Commander had even given him a blanket and that he was very pleased

with the way he had been treated. The applicant had not looked tired;

nor did he have wounds on his face. The applicant had not told him that

he had been ill-treated.

     vii. Halit Tutmaz

156.  Halit Tutmaz stated that he was born in 1963. He was a farmer and

lived in Yassitepe, about 150 metres from the house of the applicant's

father. He had been a village guard for the past ten years. He had

never been asked questions about this matter before.

157.  He remembered that the applicant had been arrested in

February 1993 and thought that this had been for political reasons. He

had not been in the hamlet when the arrest had taken place. He had

returned towards evening and had been informed about it. He had also

been told that the applicant's father and his brothers had followed the

applicant to Derinsu Gendarme Station. They had returned the same

evening. The applicant's father had said to him that there was nothing

to worry about and that the applicant would perhaps be released the

next day.

158.  A few days later the applicant had returned and he had gone to

visit the applicant. The applicant had not said much and he had not

asked many questions. He remembered that the applicant had given a

statement to a public prosecutor but the applicant had not said to him

that he had told the public prosecutor that he had been ill-treated in

custody.

C.   Relevant domestic law and practice

159.  The parties have made no separate, detailed submissions with

regard to domestic law and practice applicable in this case. The

Commission has incorporated relevant extracts derived from, inter alia,

its summary of the relevant domestic law and practice as submitted by

the parties in the case of Aksoy v. Turkey (Comm. Rep. 23.10.95,

paras. 117-133, Eur. Court HR, judgment of 18 December 1996, to be

published in Reports 1996).

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

     Article 125 of the Turkish Constitution provides as follows:

     (translation)

     "All acts or decisions of the Administration are subject to

     judicial review ...

     The Administration shall be liable for damage caused by its

     own acts and measures."

161. 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.

162. The principle of administrative liability is reflected in the

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

Emergency, which provides:

     (translation)

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

     powers conferred by this law are to be brought against the

     Administration before the administrative courts."

163. The Turkish Criminal Code makes it a criminal offence

-    to deprive someone unlawfully of his or her liberty (Article 179

     generally, Article 181 in respect of civil servants),

-    to issue threats (Article 191),

-    to subject someone to torture or ill-treatment (Articles 243 and

     245)

164. For all these offences complaints may be lodged, pursuant to

Articles 151 and 153 of the Code of Criminal Procedure, with the public

prosecutor or the local administrative authorities. The public

prosecutor and the police have a duty to investigate crimes reported

to them, the former deciding whether a prosecution should be initiated,

pursuant to Article 148 of the Code of Criminal Procedure. A

complainant may appeal against the decision of the public prosecutor

not to institute criminal proceedings.

165. Generally, if the alleged author of a crime is a State official

or civil servant, permission to prosecute must be obtained from local

administrative councils (the Executive Committee of the Provincial

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

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

this kind. If the offender is a member of the armed forces, he would

fall under the jurisdiction of the military courts and would be tried

in accordance with the provisions of Article 152 of the Military

Criminal Code.

166. Any illegal act by civil servants, be it a crime or a tort, which

causes material or moral damage may be the subject of a claim for

compensation before the ordinary civil courts. Pursuant to Article 41

of the Civil Code, an injured person may file a claim for compensation

against an alleged perpetrator, who had caused damage in an unlawful

manner whether wilfully, negligently or imprudently. Pecuniary loss may

be compensated by the civil courts pursuant to Article 46 and

non-pecuniary or moral damages awarded under Article 47.

167. Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

168. The applicant points to certain legal provisions which in

themselves weaken the protection of the individual which might

otherwise have been afforded by the above general scheme. Decree 285

modifies the application of Law 3713, the Anti-Terror Law (1981), in

those areas which are subject to the state of emergency, with the

effect that the decision to prosecute members of the security forces

is removed from the public prosecutor and conferred on local

administrative councils.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

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

that he was ill-treated while he was being held in detention at the

Gendarme stations in Derinsu and Derik from 15 to 19 February 1993 and

that this event was not adequately investigated by the State

authorities, that his right to receive and impart information has been

interfered with, that he has no access to court or no effective remedy

in respect of his complaints, that he has been subject to

discrimination and that his experiences disclosed restrictions on

Convention rights for ulterior purposes.

B.   Points at issue

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

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

     Convention;

     - whether there has been a violation of Article 3 (Art. 3) of the

     Convention;

     - whether there has been a violation of Article 5 para. 1

     (Art. 5-1) of the Convention;

     - whether there has been a violation of Article 10 (Art. 10) of

     the Convention;

     - whether there has been a violation of Article 6 para. 1

     (Art. 6-1) of the Convention;

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

     the Convention;

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

     the Convention;

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

     the Convention.

C.   The evaluation of the evidence

171.  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) (Art. 28-1-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 must to a large extent base its

     conclusions on statements by witnesses who have direct or

     indirect knowledge of the situation which is the basis of the

     application. The Commission has no means to force a person to

     come forward to give evidence as a witness, but it is clear that

     where an important witness fails to appear, this may affect to

     a considerable extent the possibilities of the Commission to

     establish the facts beyond reasonable doubt (cf. No. 22729/93,

     Kaya v. Turkey, Comm. Rep. 24 October 1996, currently pending

     before the Court). In this respect, the Commission notes that the

     three public prosecutors who had been summoned to give evidence

     before the Delegates did not attend the hearings (paras. 93-95).

     In the case of Bekir Özenir, no reason for his absence was

     provided. As regards Osman Yetkin and Hasan Altun the Delegates

     were informed that these prosecutors considered they had nothing

     to add to what appeared from the documents. However, public

     prosecutors are civil servants, and pursuant to Article 28

     (Art. 28) of the Convention it is the Government's duty to

     contribute to the investigation of an admissible case. Hence, a

     Government is under an obligation to see to it that its own

     officials contribute, as far as is required by the Commission,

     to the investigation. In the present case no convincing reason

     has been put forward which could have justified the absence of

     the witnesses concerned. Moreover, the Commission cannot accept

     that witnesses whom it or its Delegates wish to hear, make their

     own assessment of whether or not their evidence is relevant or

     important.

     ii.  In relation to the oral evidence, the Commission has been

     aware of the difficulties attached to assessing evidence obtained

     orally through interpreters: it has therefore paid careful and

     cautious attention to the meaning and significance which should

     be attributed to the statements made by witnesses appearing

     before its Delegates; in relation to both the written and oral

     evidence, the Commission has been aware that the cultural context

     of the applicant and witnesses has rendered inevitable a certain

     imprecision with regard to dates and other details (in

     particular, numerical matters) and does not consider that this

     by itself reflects on the credibility of the testimony.

     iii. In the assessment of the evidence 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 in

     the Ireland v. the United Kingdom case in relation to Article 3

     (Art. 3)  (Eur. Court HR, judgment of 18 January 1978, Series A

     no. 25, p. 65, para. 161) and applied by the Commission in a

     number of cases concerning allegations of Convention violations

     in South-East Turkey (cf. No. 23178/94, Aydin v. Turkey, Comm.

     Rep. 7.3.96, pp. 28-29, para. 163 sub iii; No. 22275/93, Gündem

     v. Turkey, Comm. Rep. 3.9.96, p. 23, para. 152, both cases

     currently pending before 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.

1.   Concerning the applicant's detention

172.  The applicant alleges that he was arrested on the morning of

15 February 1993 and that he was detained in Derinsu Gendarme Station

until the morning of 19 February 1993. He submits that during his

detention he was kept in a cold, dark cell, with no heating, bed or

blankets, and that he was denied food and liquids. Furthermore, he was

aggressively interrogated while being blindfolded, assaulted and

threatened with death.

173.  He further submits that he was taken blindfolded to Derik

District Gendarmerie Headquarters on the morning of 19 February 1993.

Upon arrival a second blindfold was put on him and he was forced to

strip naked. He was then hosed with cold water, beaten with a truncheon

and subjected to electric shock treatment. He was asked to sign a

statement but he refused to do so without having seen the statement.

This treatment continued until he lost consciousness. After having been

threatened with death by the Gendarmerie Commander, Musa Çitil, he

signed a statement which contained his denial of the allegations

brought against him. Towards the end of the working day he was rushed

to the office of the public prosecutor.

174.  According to the Government, the applicant was arrested towards

the evening of 17 February 1993 and kept in the security room of

Derinsu Gendarme Station until the morning of 19 February 1993. They

deny the allegations as to the conditions of the applicant's detention

and the treatment he was given at Derinsu. In particular, the

Government submit that it was impossible for the temperature in the

security room at Derinsu to be as low as claimed by the applicant.

Moreover, they maintain that while in Derinsu Gendarme Station the

applicant was not questioned or interrogated.

175.  While the Government acknowledge that on the morning of

19 February 1993 the applicant was taken from Derinsu Gendarme Station

to Derik District Gendarmerie Headquarters, they maintain that the

applicant only stayed at the Gendarmerie Headquarters for about one

hour, this being the time needed for the specialist sergeant Mustafa

Yanalak and the gendarme soldier Mustafa Keben to take his statement.

The applicant was neither blindfolded nor ill-treated.

176.  The Commission notes in the first place that it is not in dispute

between the parties that the applicant was arrested and detained in

Derinsu Gendarme Station until 19 February 1993. However, it has been

presented with diverging accounts as to the date on which the applicant

was arrested and as to the conditions of his detention.

177.  It has not become clear whether the applicant was kept at Derinsu

for two or four days. It is true that the Commission has  been provided

with a custody note (para. 64), purportedly bearing the applicant's

signature, and the Derinsu Gendarme Station's custody ledger

(paras. 65-66) from which it appears that the applicant was in fact

detained from 17 February 1993. Furthermore, in the statement which the

applicant made to the Human Rights Association, it is said that he was

forced to pass two days and two nights without sleeping as he was held

for four days in Derinsu Gendarme Station (para. 84). However, the

Commission notes that when confronted with this apparent inconsistency

in his account at the hearing before the Delegates, the applicant

stated that he had never seen the custody note (para. 101) and that he

must have overlooked the matter of the number of days he spent at

Derinsu when he read through the statement made to the Human Rights

Association before signing it (para. 108). In addition, the Commission

observes that the challenged passage from the applicant's statement to

the Human Rights Association could also be interpreted as meaning that

he had not been able to sleep in Derinsu Gendarme Station until the

third day of his detention. This interpretation would in fact tally

with the applicant's testimony that when his brothers joined him in the

security room on the third night they had found him unconscious

(para. 107).

178.  If there is an inconsistency in the applicant's evidence in this

respect, the Commission finds that it is of a minor nature in light of

the detailed, precise and on the whole consistent accounts presented

by him. Having regard, further, to the fact that the evidence given by

the applicant's father, which, although at times imprecise and perhaps

somewhat exaggerated, basically supports the applicant's accounts, the

Commission considers that this element is insufficient to question the

applicant's general credibility.

179.  In this respect the Commission also attaches relevance to the

fact that the applicant's account contains a number of unusual elements

which it would not expect to find in a fabricated story. The Commission

refers, as an example, to the applicant's statement to the Delegates,

which was confirmed by his father, that his three brothers had

persuaded the gendarmes to let them see the applicant in the security

room in Derinsu and that they warmed him up.

180.  It is true that as regards the temperature of the security room,

the applicant has said both that it was -20°C (para. 79) and -30°C

(para. 84). However, unlike the Government, the Commission cannot find

that this is an inconsistency which detracts from the credibility of

the applicant's accounts. The Commission accepts that the applicant

merely tried to express his feeling that it was very cold in the

security room.

181.  As to the veracity of this claim, the Commission notes that

according to Harun Altin, the Commander of Derinsu Gendarme Station at

the relevant time, the outside walls of the Station were 50 cm. thick

and that there were coal-burning stoves in rooms surrounding the

security room. He further stated that the security room was equipped

with a bed and, it being winter, with two woollen blankets. However,

the Commission is not convinced that the presence of coal-burning

stoves in spaces and offices in Derinsu Gendarme Station would suffice

to heat a room described by the applicant as having concrete walls, a

concrete floor and an iron door.

182.  This leads the Commission to an assessment of the general

credibility of the evidence given by Altin. The Commission notes that

when Altin was first questioned about the allegations brought against

him by the applicant, i.e. by a public prosecutor at Daday on

20 April 1994, he stated that he could not remember the applicant

(para. 90). Yet in his testimony to the Delegates, Altin appeared to

have detailed recollection of the applicant and the latter's arrest and

detention. He explained this by saying that he had contacted his former

colleagues at Derinsu Gendarme Station in order to refresh his memory

when he had received the summons to appear before the Delegates and

that, in his interview with the Daday public prosecutor, he had only

been confronted with the applicant's name which in itself did not mean

anything to him (para. 139).

183.  This explanation does not seem convincing to the Commission. In

this respect the Commission notes in the first place that it appears

from Altin's statement to the public prosecutor that he was informed

of the allegations made against him by the applicant (para. 90). Next,

the Commission observes that the custody ledger of Derinsu Gendarme

Station only contains six entries for the whole of 1993 and that the

applicant was the only detainee who was indicated as being charged with

carrying out PKK propaganda (para. 66). Furthermore, according to Musa

Çitil, the case against the applicant had received a lot of publicity

(para. 146). In these circumstances it is not credible that Altin would

have forgotten the applicant altogether when he was interviewed by the

Daday public prosecutor only about one year after the event, and that

he would have remembered so many details about the applicant and his

stay in Derinsu at the hearing before the Delegates at a much later

stage. Moreover, it is difficult to understand why Altin would not have

similarly refreshed his memory before he was heard by the public

prosecutor.

184.  In the Commission's view, these factors cast a serious doubt on

Altin's credibility as a witness. The Commission has similar doubts

concerning the evidence presented by the three villagers Sinan Dinç,

Mehmet Dinç and Halit Tutmaz (paras. 149-158). It finds that their

statements appear less than frank. It notes in particular that

according to Sinan Dinç and Mehmet Dinç the applicant told them that

he had been treated well by the Station Commander (para. 151), and that

he was pleased with the way he had been treated by the Station

Commander and had even been given a blanket by him (para. 155). The

Commission finds it in itself unlikely that the applicant should have

said this. However, it considers it incredible that he should have

expressed himself in this way at a time when he had just returned from

the office of the Derik public prosecutor to whom he had complained of

his treatment in, inter alia, Derinsu Gendarme Station.

185.  The Commission is furthermore surprised to note that according

to the Government's final observations the three villagers were among

the witnesses whose testimony helped secure the applicant's acquittal

in the criminal proceedings against him before the Diyarbakir State

Security Court (para. 53). When specifically asked, Halit Tutmaz denied

ever having been asked questions about the applicant prior to his

appearance before the Delegates (para. 156). In addition, the

Commission has also given weight to the Delegates' assessment of the

three villagers' appearance before them in Strasbourg which was that

they gave the impression of having been instructed on what to say or,

at the very least, of being anxious to express themselves in a manner

which was agreeable to the Government. For these reasons, the

Commission considers it unsafe to rely on the testimonies of

Sinan Dinç, Mehmet Dinç and Halit Tutmaz.

186. As regards the applicant's detention in Derik District Gendarmerie

Headquarters, the Commission finds the course of events as described

by the applicant not implausible. Information to the effect that he had

threatened village guards had been received by the District Gendarmerie

and he was questioned about these allegations. The piece of fabric

which the applicant said was used to blindfold him and which he gave

to the Derik public prosecutor Hasan Altun provides strong support for

his claim that he was ill-treated during this questioning, the more so

since the applicant's statement to the public prosecutor of 19 February

1993 expressly includes his account in relation to the blindfold

(paras. 76-78). The applicant's testimony that he wrung the wet cloth

out over the public prosecutor's desk is another element which the

Commission would not expect to find in a fabricated story. Moreover,

the Commission was informed that Hasan Altun had decided not to appear

before the Delegates since in his opinion all relevant information was

contained in the documents submitted. The Commission considers that

Altun would have been an important witness, since he was the person who

saw the applicant immediately before his release, who heard his

complaints of torture and ill-treatment and who received the piece of

cloth from him. His reference to the documents as containing all

relevant information must be interpreted, in the Commission's opinion,

as confirming that the cloth which was handed over to him was indeed

wet, as indicated in the recorded statement by the applicant of

19 February 1993.

187.  The Commission further notes that in his evidence, the applicant

indicated that after he had signed his statement at Derik District

Gendarmerie Headquarters he was rushed to the office of the public

prosecutor. Although the applicant attributed this haste to the fact

that the end of the working day was looming, the Commission attaches

relevance in this respect to Musa Çitil's testimony that the

applicant's case had received a lot of publicity and Çitil had received

instructions that the case should be heard in court as soon as

possible.

188.  The Commission notes that the applicant did not go to a doctor

following his release and that it has thus not been provided with any

medical evidence as to the marks allegedly left on the applicant's

body. However, it is not inconceivable that the applicant was at that

time in such a state of shock that he did not do what would have seemed

reasonable in the circumstances. Furthermore, it appears from the

applicant's testimony that he was able to treat the wounds which he

allegedly sustained by himself and that the medication he needed was

available from a pharmacy (para. 116). It may thus be that he was not

actually in need of any medical treatment to be administered by a

physician and that a visit to a doctor would have served the sole

purpose of obtaining a certificate pertaining to the existence and

possible cause of the wounds. Such a course of action would have

required the applicant to think clearly of any future steps he might

wish to take, and the Commission considers it not unreasonable to

accept that he was not capable of that at the time. The Commission,

moreover, observes that the applicant's father also testified to the

existence of wounds on his son's body (para. 126). Although his father

said that the applicant had told him that he had gone to a doctor, it

may well be that the applicant only told him that he had procured the

necessary medication, which is compatible with Haci Mehmet Tekin's

statement that the applicant "got everything" (para. 128), and that his

father had assumed that therefore the applicant must have seen a

doctor.

189.  Accordingly, the Commission does not consider that the

applicant's failure to provide it with a medical certificate impinges

on his general credibility.

190.  In its evaluation of whether there is sufficient evidence to

prove the applicant's allegations beyond reasonable doubt, the

Commission cannot exclude the possibility that the applicant's account

may contain certain exaggerations as regards the conditions in which

he was detained and the treatment to which he was exposed. The

Commission has found no reason, however, to question his general

credibility, and it finds essential elements in his allegations

supported by other evidence, in particular the testimony given by his

father and the remarkable fact of the piece of wet cloth that was

handed over to the public prosecutor. On the other hand, the Commission

has found reason to doubt the credibility of some of the other

witnesses heard in the case (Harun Altin, Sinan Dinç, Mehmet Dinç and

Halit Tutmaz), and it must also attach weight to the fact that one of

the essential witnesses, the public prosecutor Hasan Altun, failed to

appear, without any valid excuse, as a witness before the Commission's

Delegates. In these circumstances, and while applying a cautious

evaluation of the evidence, the Commission is satisfied that the

applicant was kept in a cold and dark cell and that he was blindfolded

and treated in a way which left wounds and bruises on his body in

connection with his interrogation. It would appear probable that the

applicant was subjected to this treatment on the basis of a suspicion

that he had threatened village guards to lay down their arms and to

join the PKK.

2.   Inquiries and investigations at the domestic level into the

     applicant's allegations

191.  Noting that the applicant also alleges that the investigations

by the domestic authorities into his allegations of ill-treatment were

inadequate, the Commission will next assess the evidence relating to

these investigations. The Commission has already noted that there have

been no findings of fact by domestic courts (para. 171 sub i). However,

the Commission will evaluate the investigations actually made insofar

as information regarding these investigations have been provided. The

Commission observes in this respect that the Government were requested

to submit the investigation file. The Commission must assume that the

documents which were received constitute the complete material deemed

relevant by the Government in relation to the investigation carried

out.

192.  The Commission notes in the first place that the applicant

brought his complaints of maltreatment in Derinsu Gendarme Station and

Derik District Gendarmerie Headquarters to the attention of the Derik

public prosecutor Hasan Altun. The Government do not dispute that Altun

failed to take any action whatsoever to investigate these allegations

(para. 51).

193.  It appears that a preliminary investigation was not commenced

until 18 December 1993, following the communication of the application

to the Government and ten months after the alleged events (para. 54).

Upon the request of the Derik public prosecutor Bekir Özenir, who was

in charge of the preliminary investigation, Harun Altin was heard by

a public prosecutor at Daday on 20 April 1994 (para. 55). Altin denied

the allegations, saying that he could not remember the applicant

(para. 90).

194.  Bekir Özenir issued a decision of non-prosecution in respect of

the two accused Harun Altin and Musa Çitil on 4 May 1994. Although

according to this decision there was no concrete evidence which

substantiated the applicant's allegations, this conclusion appears to

have been based solely on Altin's testimony to the effect that he did

not remember the applicant. There is no indication that any attempt was

made either to question the second accused person, Musa Çitil, or to

investigate what had happened during the detention at Derinsu Gendarme

Station or Derik District Gendarmerie Headquarters, such as an

examination of the custody records or the hearing of the applicant, his

father and brothers or any person who had been at Derinsu Gendarme

Station or Derik District Gendarmerie Headquarters at the relevant

time.

195.  At the instigation of the Ministry of Justice (International Law

and External Relations General Directorate) (para. 57) a decision of

non-jurisdiction was taken on 4 May 1995 and the case was referred to

the Derik District Administrative Council (para. 58). The Commission

notes with some surprise that according to the decision of non-

jurisdiction the applicant had been detained on the suspicion of having

assisted and sheltered PKK members since none of the other documents

submitted contain an accusation of this nature.

196. Musa Çitil only appears to have been questioned about the

applicant's allegations on 14 July 1995 (para. 59), within the

framework of the investigation carried out by the Derik District

Administrative Council. The Administrative Council apparently did not

find it necessary to question Harun Altin again. There is no indication

that the Administrative Council undertook any of the investigative

measures mentioned in paragraph 194.

197.  The investigations at the domestic level ended with the decision

of the Mardin Provincial Administrative Board of 13 September 1995, in

which it held that due to lack of evidence Altin and Çitil were exempt

from prosecution (para. 60).

198.  On the basis of the foregoing, the Commission considers that the

investigations carried out by the domestic authorities were flawed and

perfunctory. Not only were the allegations which the applicant brought

to the attention of the Derik public prosecutor Hasan Altun not acted

upon immediately, but the investigations eventually undertaken seem

superficial and do not appear to reflect a serious wish to find out

what had really happened in Derinsu Gendarme Station and Derik District

Gendarmerie Headquarters.

199.  In order to allow a fuller assessment of the investigatory

measures taken by the authorities, the Delegates had requested the

hearing of, inter alia, Hasan Altun and Bekir Özenir. However, both

these public prosecutors failed to appear before the Delegates for

reasons which the Commission cannot find convincing. The Commission has

already commented on this unsatisfactory state of affairs in para. 171

sub i.  In addition, the Commission notes that in their final

observations on the merits of the application the Government contend

that the reason for Hasan Altun's failure to act upon the applicant's

allegations cannot be ascertained since Altun had not appeared before

the Delegates. The Commission does not consider, however, that it

should be precluded from drawing conclusions from Altun's apparent

failure to act for the simple reason that it was not possible to put

questions to him. On the contrary, the Commission finds that Altun's

failure to give evidence before the Delegates or in any other form must

to some extent affect the evaluation of the facts in this case and

hence the examination of the complaints brought by the applicant.

200.  On the basis of these findings, the Commission will now proceed

to examine the applicant's complaints under the various Articles of the

Convention.

D.   As regards Article 2 (Art. 2) of the Convention

201.  Article 2 (Art. 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."

202.  The applicant submits that the threats made to his life by the

agents of the State Harun Altin and Musa Çitil while he was held in

custody constitute a violation of the obligation to protect the right

to life.

Government have not commented on this complaint. However, they maintain

that there is no evidence to substantiate the applicant's allegations

against the staff at Derinsu Gendarme Station and Derik District

Gendarmerie Headquarters.

204.  The Commission recalls that Article 2 (Art. 2) contains two

separate though interrelated basic elements. The first sentence of

paragraph 1 sets forth the general obligation that the right to life

shall be protected by law. The second sentence of this paragraph

contains a prohibition against intentional deprivation of life,

delimited by the exceptions mentioned in the second sentence itself and

in paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73, p. 155). The

present complaint centres on the first element.

205.  However, the applicant was not deprived of his life. Nor can the

Commission find any indication that his right to life was not protected

by law.

     CONCLUSION

206.  The Commission concludes, unanimously, that there has been no

violation of Article 2 (Art. 2) of the Convention.

E.   As regards Article 3 (Art. 3) of the Convention

207.  Article 3 (Art. 3) of the Convention reads as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

208.  The applicant complains that the treatment to which he was

subjected by gendarmes while in their custody between 15 and 19

February 1993 amounted to torture. This torture consisted of

blindfolding, aggressive interrogation, assault, threats to his life,

being stripped naked, being hosed with cold water, being beaten with

a truncheon and being subjected to electric shock treatment and falaka.

Furthermore, the conditions of his detention in Derinsu Gendarme

Station (being held in darkness in sub zero temperatures in a cell with

no bed or blankets, being denied food and liquids and the ignoring of

his medical condition) also constituted torture.

209.  The applicant further alleges that the treatment to which he was

subjected whilst in custody is part of a practice of torture in Turkey

which calls into question the commitment of the Government in

respecting the guarantees of Article 3 (Art. 3) and which creates an

aggravated violation of this provision. In this respect reference is

made to findings by the European Committee for the Prevention of

Torture (CPT), the United Nations Committee for the Prevention of

Torture, the United Nations Special Rapporteur and various non-

governmental organisations such as Amnesty International.

210.  The Government deny the applicant's claims and submit that they

are illogical, inconsistent and unsubstantiated. In their opinion, the

applicant's allegations of torture are part of the separatist campaign

in which he participates.

211.  The Commission does not consider it appropriate to analyse the

individual elements of the applicant's allegations as regards their

characterisation under Article 3 (Art. 3) of the Convention. It will

examine the treatment suffered by the applicant as a whole. Further,

while it notes with grave concern the considerable body of

documentation relating to allegations of other instances of torture on

persons held in custody in Turkey, it will confine itself to an

examination of the allegations in the present case (cf. Aydin

v. Turkey, Comm. Report 7.3.96, para. 185, currently pending before the

Court).

212.  The Commission reiterates that ill-treatment must attain a

minimum level of severity if it is to fall within the scope of

Article 3 (Art. 3) of the Convention. The assessment of this minimum

is, in the nature of things, relative. It depends on all the

circumstances of the case, such as the nature and context of the

treatment, its duration and its physical or mental effects (cf. Eur.

Court HR, Soering v. the United Kingdom judgment of 7 July 1989, Series

A no. 161, p. 39, para. 100). The Commission further notes that "the

Convention, with its distinction between 'torture' and 'inhuman or

degrading treatment', should by the first of these terms attach a

special stigma to deliberate inhuman treatment causing very serious and

cruel suffering" (Eur. Court HR, Ireland v. the United Kingdom

judgment, op. cit., p. 66, para. 167; Aksoy v. Turkey judgment, op.

cit., para. 63).

213.  The Commission has also had regard to the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

adopted on 10 December 1984 by the General Assembly of the United

Nations which provides in Article 1 (Art. 1):

     "For the purposes of this Convention, the term "torture" means

     any act by which severe pain or suffering, whether physical or

     mental, is intentionally inflicted on a person for such purposes

     as obtaining from him or a third person information or a

     confession, punishing him for an act he or a third person has

     committed, or intimidating or coercing him or a third person, or

     for any reason based on discrimination of any kind, when such

     pain or suffering is inflicted by or at the instigation of or

     with the consent or acquiescence of a public official or other

     person acting in an official capacity..."

214.  The Commission recalls its finding above (para. 190) that, on the

basis of the written and oral evidence before the Commission, it has

been established beyond reasonable doubt that the applicant was kept

in a cold and dark cell, blindfolded and treated in a way which left

wounds and bruises on his body in connection with his interrogation.

Moreover, it is clear that on 19 February 1993 he complained of torture

and ill-treatment before the public prosecutor and that no action was

taken in regard to his complaints.

215.  The Commission finds that the conditions of detention and the

treatment to which the applicant was subjected constituted at least

inhuman and degrading treatment within the meaning of Article 3

(Art. 3) of the Convention.

     CONCLUSION

216.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 3 (Art. 3) of the Convention.

F.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

217.  Article 5 para. 1 (Art. 5-1), insofar as relevant, provides as

follows:

     "1.  Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

     ...

          c.   the lawful arrest or detention of a person effected

     for the purpose of bringing him before the competent legal

     authority on reasonable suspicion of having committed an offence

     or when it is reasonably considered necessary to prevent his

     committing an offence or fleeing after having done so;

     ..."

218.  The applicant argues that the phrase "security of person" in

Article 5 (Art. 5) of the Convention should be interpreted as

encompassing the protection of the integrity of the individual and the

protection from such conditions of detention that violate that

integrity. In his opinion, the conditions of detention themselves are

part of the requirements of conformity of an arrest with Article 5

para. 1 (Art. 5-1). In view of the conditions of the detention

encountered by him, the applicant submits that his detention was

contrary to Article 5 para. 1 (Art. 5-1).

219.  The Government maintain that at the time of the applicant's

arrest there existed a reasonable suspicion which was supported by a

certain amount of evidence that he had threatened village guards to lay

down their arms. In their view, it is clear that the applicant was

arrested for the purpose of bringing him before a court.

220.  The Commission notes that it is not in dispute between the

parties that the applicant's arrest served the purpose provided for in

Article 5 para. 1(c) (Art. 5-1-c). The Commission considers that it has

already examined the applicant's complaints concerning the conditions

of his detention under Article 3 (Art. 3) of the Convention.

     CONCLUSION

221.  The Commission concludes, unanimously, that it is unnecessary to

examine the complaint under Article 5 para. 1 (Art. 5-1) of the

Convention.

G.   As regards Article 10 (Art. 10) of the Convention

222.  Article 10 (Art. 10) of the Convention, insofar as relevant,

provides as follows:

     "1.  Everyone has the right to freedom of expression.  This

     right shall include freedom to hold opinions and to receive and

     impart information and ideas without interference by public

     authority ...

     2.   The exercise of these freedoms, since it carries with it

     duties and responsibilities, may be subject to such formalities,

     conditions, restrictions or penalties as are prescribed by law

     and are necessary in a democratic society, in the interests of

     national security, territorial integrity or public safety, for

     the prevention of disorder or crime, for the protection of health

     or morals, for the protection of the reputation or rights of

     others, for preventing the disclosure of information received in

     confidence, or for maintaining the authority and impartiality of

     the judiciary."

223.  The applicant alleges that his arrest was essentially motivated

by the fact that he is a journalist with Özgür Gündem. He submits that

his right to receive and impart information was interfered with

contrary to Article 10 (Art. 10) through treatment at the hands of the

security forces intended to silence him.

224.  The Government maintain that there is no evidence to substantiate

the applicant's allegations against the security forces.

225.  The Commission considers that it has not found evidence to

corroborate the application's complaint that his arrest and detention

were due to the fact that he was a journalist with Özgür Gündem. In

these circumstances, the Commission cannot find it established that

there has been an interference with the right protected by Article 10

(Art. 10) of the Convention in respect of the applicant.

     CONCLUSION

226.  The Commission concludes, unanimously, that there has been no

violation of Article 10 (Art. 10) of the Convention.

H.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

227.  Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

     "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. ..."

228.  The applicant, while not contending that the ability to seek

compensation would offer sufficient redress for torture or inhuman or

degrading treatment, complains of a denial of effective access to court

to seek compensation contrary to Article 6 para. 1 (Art. 6-1) of the

Convention. He submits that the public prosecutor Hasan Altun failed

to carry out a proper, objective and independent investigation into the

applicant's allegations which could have led him to reach a balanced

and informed decision on whether to bring a prosecution. Moreover,

without such a prosecution having been instituted, he would have had

no prospect of success in civil proceedings.

229.  The Government argue that the applicant did have access to court

and submit that there is evidence that he would have obtained the

results he desired if he had cooperated with the system of remedies

available under domestic law instead of turning to the Human Rights

Association.

230.  The Commission recalls the findings of the Court in the case of

Aksoy v. Turkey (op. cit., paras. 92-94) where it was found that,

although there is no doubt that Article 6 para. 1 (Art. 6-1) applies

to a civil claim for compensation in respect of ill-treatment allegedly

committed by agents of the State, the crux of the complaint concerned

the prosecutor's failure to mount a criminal investigation. The Court

considered that it was more appropriate to examine the complaint in

relation to the more general obligations on States under Article 13

(Art. 13) to provide an effective remedy in respect of violations of

the Convention.

231.  The Commission, noting that the nature of the complaint under

Article 6 para. 1 (Art. 6-1) in the present case is comparable to the

complaint in the Aksoy case cited above, finds that there are no

reasons to reach a different conclusion.

     CONCLUSION

232.  The Commission concludes, unanimously, that it is unnecessary to

examine the complaint under Article 6 para. 1 (Art. 6-1) of the

Convention.

I.   As regards Article 13 (Art. 13) of the Convention

233.  Article 13 (Art. 13) of the Convention reads as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

234.  The applicant submits that the lack of an independent

investigation into his allegations represents a denial of an effective

remedy for his complaints contrary to Article 13 (Art. 13) of the

Convention. In his opinion, this denial is part of an administrative

practice of failure to provide and implement effective remedies,

characterised by the attitude of public prosecutors and gendarmes and

the inadequate medical and forensic procedures practised in Turkey. The

applicant refers to other cases brought before the Commission involving

similar allegations of ineffective remedies in South-East Turkey, and

findings made by the CPT and the United Nations Committee for the

Prevention of Torture to the effect that the persistent nature of

allegations of human rights abuses reported from Turkey indicates a

failure to take effective action to address them.

235.  The Government have not specifically addressed this issue beyond

stating that the applicant's allegations have not been substantiated.

236.  Although the Commission is concerned about the apparent frequency

with which it encounters occasions where no action is taken upon

allegations of serious offences committed by security force personnel

which are brought to the attention of public prosecutors, it considers

that it should limit itself to an examination of the allegations in the

present case.

237.  The Commission notes that according to the Court in the above-

mentioned case of Aksoy v. Turkey, "the remedy required by Article 13

(Art. 13) must be 'effective' in practice as well as in law, in

particular in the sense that its exercise must not be unjustifiably

hindered by the acts or omissions of the authorities of the respondent

State" (op. cit., para. 95). The Court further held that in view of the

fundamental importance of the prohibition of torture Article 13

(Art. 13) imposes an obligation on States to carry out a thorough and

effective investigation of incidents of torture (op. cit., para. 98).

238.  The Commission observes that it is undisputed that the applicant

complained to the Derik public prosecutor Hasan Altun of having been

tortured during custody in Derinsu Gendarme Station and Derik District

Gendarmerie Headquarters. The Commission notes, moreover, that under

Turkish law the public prosecutor was under a duty to carry out an

investigation (para. 164). However, the Commission has found that no

investigation was instigated by the public prosecutor Hasan Altun

(para. 192).

239.  The Commission further considers that it cannot be said that the

investigation subsequently commenced - which was in itself inadequate

- made up for the initial inactivity. The major deficiencies in this

investigation have been outlined in para. 198.

240.  It is possible that if the Commission had been able to examine

the public prosecutors Hasan Altun and Bekir Özenir 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 certain doubts as to the adequacy of the measures might have

been dispelled. However, as has been noted above (para. 93-95), these

public prosecutors failed to appear before the Delegates. In the

absence of their evidence, and on the basis of the available material,

the Commission considers that the investigation into the applicant's

allegations of torture was so inadequate as to amount to a denial of

an effective remedy.

     CONCLUSION

241.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 13 (Art. 13) of the Convention.

J.   As regards Articles 14 and 18 (Art. 14, 18) of the Convention

242.  Articles 14 and 18 (Art. 14, 18) of the Convention provide as

follows:

     Article 14 (Art. 14)

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     Article 18 (Art. 18)

     "The restrictions permitted under this Convention to the said

     rights and freedoms shall not be applied for any purpose other

     than those for which they have been prescribed."

243.  The applicant submits that because of his Kurdish origin the

various alleged violations of his Convention rights were

discriminatory, in breach of Article 14 (Art. 14) of the Convention.

He also claims that his experiences represented an authorised practice

by the State in breach of Article 18 (Art. 18) of the Convention.

244.  The Government have not addressed these allegations beyond

denying the factual basis of the substantive complaints.

245.  The Commission has examined the applicant's allegations in the

light of the evidence submitted to it, but considers them

unsubstantiated.

     CONCLUSIONS

246.  The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention.

247.  The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention.

K.   Recapitulation

248.  The Commission concludes, unanimously, that there has been no

violation of Article 2 (Art. 2) of the Convention (para. 206).

249.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 3 (Art. 3) of the Convention (para. 216).

250.  The Commission concludes, unanimously, that it is unnecessary to

examine the complaint under Article 5 para. 1 (Art. 5-1) of the

Convention (para. 221).

251.  The Commission concludes, unanimously, that there has been no

violation of Article 10 (Art. 10) of the Convention (para. 226).

252.  The Commission concludes, unanimously, that it is unnecessary to

examine the complaint under Article 6 para. 1 (Art. 6-1) of the

Convention (para. 232).

253.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 13 (Art. 13) of the Convention (para. 241).

254.  The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention (para. 246).

255.  The Commission concludes, unanimously, that there has been no

violation of Article 18 (Art. 18) of the Convention (para. 247).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                  (Or. French)

              OPINION DISSIDENTE DE M. GÖZÜBÜYÜK

     Je ne considère pas, contrairement à la majorité, que dans la

présente requête la violation de l'article 3 a pu être prouvée au delà

de tout doute raisonnable.

     Premièrement, aucune preuve médicale n'a été soumise de la part

du requérant dont le statut de journaliste permettait de penser qu'il

devait être conscient de la valeur de preuve d'un rapport médical.

     Cela était d'autant plus important dans son cas qu'il prétendait

avoir subis de mauvais traitements le jour même de sa libération le

19 février 1993, donc à un moment où les traces de tels actes pouvaient

être facilement décelées.

     Deuxièmement, la nature des mauvais traitements que le requérant

prétend avoir subis sont de nature à laisser des traces surtout lorsque

l'examen médical intervient le jour même ou le lendemain. L'eau froide

aurait provoqué une hypothermie locale ou même des engelures étant

donné les basses températures, les coups de bâton des ecchymoses, les

électrochocs des brûlures.

     Je tiens à souligner notamment que lors de l'introduction de la

requête devant la Commission, le requérant n'a aucunement fait allusion

à des électrochocs. Je me réfère à cet égard à la décision sur la

recevabilité (p. 45 et 46).

     Or, le requérant a formulé ses griefs portant sur les

électrochocs pour la première fois devant les délégués de la Commission

à Diyarbakir. Oublier un tel traitement lors de la préparation de la

requête, si ce traitement a eu vraiment lieu, n'est pas possible. Se

souvenir des  électrochocs seulement après la recevabilité, devant les

délégués, fait planer à mes yeux un doute plus que sérieux sur la

crédibilité du requérant. Il faut ajouter que pareil traitement aurait

été le seul dont les traces auraient pu être décelées à la suite d'un

examen médical.

     Par ailleurs, j'estime que si l'on tente de remplacer l'élément

de preuve médical par les dépositions des membres de la famille du

requérant, on en prendrait des voies incertaines et dangereuses.

     Les conclusions de la Commission ne me paraissent pas

convaincantes et pour ces raisons, particulières à cette requête, je

ne partage pas non plus la conclusion concernant l'article 13 dans la

mesure où l'absence de preuves rend la question du recours effectif

illusoire. La Commission dans la requête 10427/83 (vol. 47, p. 85) a

estimé que des griefs "totalement dépourvus de substance" n'étaient pas

défendables au sens de l'article 13 de la Convention.

     Je considère que dans cette requête les conclusions de la

majorité de la Commission, au lieu de se fonder sur des preuves

matérielles tangibles, sont basées sur des déductions qui ne s'appuient

pas sur des éléments de preuves.

 

Full & Egal Universal Law Academy