EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23531/94
Mehmet TİMURTAŞ
against
Turkey
REPORT OF THE COMMISSION
(adopted on 29 October 1998)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-38)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-33)1
C.The present Report
(paras. 34-38) 5
II.ESTABLISHMENT OF THE FACTS
(paras. 39-209)7
A.The particular circumstances of the case
(paras. 40-63) 7
B.The evidence before the Commission
(paras. 64-197)11
1.Documentary evidence
(paras. 64-126)11
2.Oral evidence
(paras. 127-197) 22
C.Relevant domestic law
(paras. 198-206)33
D.Relevant international material
(paras. 207-209)35
III.OPINION OF THE COMMISSION
(paras. 210-342)36
A.Complaints declared admissible
(paras. 210-211)36
B.Points at issue
(para. 212)36
C.The evaluation of the evidence
(paras. 213-269)37
D.As regards the disappearance of the applicant's son
(paras. 270-301)48
1.As regards Article 2 of the Convention
(paras. 271-283)48
2.As regards Article 3 of the Convention
(paras. 284-288)51
3.As regards Article 5 of the Convention
(paras. 289-301)51
CONCLUSIONS
(paras. 302-304)54
E.As regards violation alleged by the applicant on his own behalf under Article 3 of the Convention
(paras. 305-309)54
CONCLUSION
(para. 310)55
F.As regards Article 13 of the Convention
(paras. 311-319)55
CONCLUSION
(para. 320)56
G.As regards Article 14 in conjunction with Articles 2, 3 and 5 of the Convention
(paras. 321-324)57
CONCLUSION
(para. 325)57
H.As regards Article 18 of the Convention
(paras. 326-329)57
CONCLUSION
(para. 330)58
I.As regards Article 25 of the Convention
(paras. 331-333)58
CONCLUSION
(para. 334)58
J.Recapitulation
(paras. 335-342)58
PARTLY DISSENTING OPINION OF MR S. TRECHSEL60
APPENDIX I:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION 61
APPENDIX IIa:POST-OPERATION REPORT SUBMITTED BY APPLICANT 71
APPENDIX IIb:TRANSLATION OF APPENDIX Iia72
APPENDIX IIIa:BLANK POST-OPERATION REPORT FORM SUBMITTED
BY GOVERNMENT73
APPENDIX IIIb:TRANSLATION OF APPENDIX IIIa74
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 1928 and resident in İstanbul. He was represented before the Commission by Mr K. Boyle and Ms. F. Hampson, both university teachers at the University of Essex, England. The applicant states that he brings the application also on behalf of his son, Abdulvahap Timurtaş, born in 1962.
3.The application is directed against Turkey. The respondent Government were represented by their Agents, Mr Ş. Alpaslan and Mr D. Teczan.
4.The applicant complains that his son Abdulvahap Timurtaş has been taken into custody by the security forces and has "disappeared". He invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. He also complains of an interference with his right to individual petition contrary to Article 25 para. 1 in fine of the Convention.
B.The proceedings
5.The application was introduced on 9 February 1994 and registered on 24 February 1994.
6.On 9 May 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. The parties were informed of the Commission's decision by letter of 20 May 1994.
7.The Government submitted preliminary observations on 11 October 1994 in which they requested the Commission to adjourn the examination of the application pending the investigation into the applicant's allegations at the domestic level. Having obtained the applicant's opinion on the matter, the Commission decided on 14 January 1995 not to accede to the request of the Government. The Government were invited to submit any further observations they might wish to submit.
8. The Government's observations were submitted on 16 March 1995, after the expiry of the time-limit set for that purpose. The applicant replied on 22 May 1995.
9.On 11 September 1995 the Commission declared the application admissible.
10.The text of the Commission's decision on admissibility was sent to the parties on 14 September 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates. Neither party availed itself of this possibility.
11. On 20 January 1996 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr N. Bratza, Mr G. Ress and Mr P. Lorenzen. It notified the parties by letter of 25 January 1996, proposing certain witnesses and requesting the Government to provide a copy of the documents contained in the investigation file. The Government were further requested to identify by name the commanders of the security forces allegedly involved and a public prosecutor, whereas the applicant was requested to identify a village muhtar and the latter's son who had allegedly been taken into custody at the same time as the applicant's son, and to submit the addresses of these witnesses and of the applicant.
12. By letter of 7 March 1996 the applicant's representatives informed the Commission that they were not yet in a position to submit the requested information.
13. On 2 April 1996 the Commission reminded the Government of the outstanding requests for information and documentation.
14. By letter of 17 April 1996 the Government provided the names of the security force commanders and the public prosecutor.
15. On 18 June 1996 the Commission urgently requested the Government to provide copies of the investigation file, and the applicant to submit the names of the village muhtar and his son, their address as well as the address of the applicant.
16. On 28 July 1996 the Government informed the Commission of two decisions which had been taken in the investigation into the applicant's allegations at the domestic level. They submitted a copy of a decision not to prosecute dated 3 June 1996.
17. On 1 August 1996 the Commission requested the Government to submit a copy of the other decision mentioned in their letter of 28 July 1996. In addition, the Government were requested on 12 August 1996 to submit copies of all documents to which reference was made in the decision not to prosecute.
18. On 5 September 1996 the Commission reminded the applicant's representatives of the outstanding request for information.
19. By letter of 12 September 1996 the Government submitted the contents of the investigation file, followed, on 20 September 1996, by a number of statements taken from villagers. From the documents submitted, the names of the muhtar and his son became apparent.
20. On 23 September 1996 the applicant's representatives informed the Commission that they were not yet in possession of the required information.
21. Evidence was heard by the Delegates of the Commission in Ankara on 21 and 23 November 1996 from the applicant, Bahattin Aktuğ (mayor of Güçlükonak district, Şĸrnak province), Azmi Gündoğan (commander of Silopi district gendarmerie, Şĸrnak province, until 4 August 1993), Erol Tuna (commander of Şĸrnak provincial centre gendarmerie headquarters between 1992 and 31 July 1994), Hüsam Durmuş (commander of Silopi district gendarmerie from 17 July 1993 until 1995), and Sedat Erbaş (public prosecutor at Silopi). Before the Delegates the Government were represented by Mr Ş. Alpaslan and Mr D. Teczan, Agents, assisted by Ms. M. Gülsen, Mr A. Kurudal, Mr N. Erdim and Mr A. Kaya. The applicant was represented by Ms. F. Hampson, counsel, assisted by Ms. A. Reidy, Mr O. Baydemir, Ms. D. Deniz (interpreter) and Mr M. Kaya (interpreter). Further documentary material was submitted by the parties during the hearing.
22. On 30 November 1996 the Commission examined the state of proceedings of the application. It decided that the parties should be asked a number of questions relating to a document which had been presented by the applicant's representatives at the hearing and which was said to be a photocopy of a post-operation report dated 15 August 1993. Furthermore, the Commission decided to hear evidence from two persons, Sadĸk Erdoğan and Nimet Nas, who had not appeared at the hearing in Ankara. In the subsequent letter of 6 December 1996, the Delegates' requests for certain information and documentation to be submitted by the Government were also confirmed in writing. The information requested included an explanation for the failure of two witnesses to appear before the Delegates and the relevant entries in the custody records of Diyarbakĸr E-type prison concerning Sadĸk Erdoğan and Nimet Nas.
23. By letter of 31 January 1997 the applicant's representatives informed the Commission that should it prove necessary, the person who had obtained the photocopied document was willing to give evidence before the Delegates subject to certain conditions.
24. On 26 May 1997 the Government were reminded of the outstanding request for information and documentation of 6 December 1996.
25. On 15 July 1997 the Government submitted some of the information and documents requested, including an explanation for the absence of one witness from the hearing in Ankara and information relating to the photocopied document.
26. On 29 August 1997 the Commission reminded the Government of the documents and information which had not yet been submitted.
27. By letter of 7 October 1997 the Government provided an explanation for the absence of a witness from the hearing in Ankara, and some further information relating to the reference number indicated on the photocopied document. They also announced that further information would be submitted. The latter information was produced on 22 October 1997 but did not include the entries in the records of Diyarbakĸr E-type prison for Sadĸk Erdoğan and Nimet Nas.
28. On 31 October 1997 the parties were requested to inform the Commission before 28 November 1997 whether they wished to maintain the hearing of the witnesses Sadĸk Erdoğan and Nimet Nas. The applicant informed the Commission on 3 December 1997 that he had no objection to these witnesses being heard, but that he was not in a position to confirm whether or not they could be contacted or were willing to give evidence. Having received no reply from the Government prior to the expiry of the time-limit set for that purpose, the Commission, on 6 December 1997, decided not to maintain the hearing of these witnesses. It also decided that the parties should be invited to present their written conclusions on the merits of the case before 3 February 1998.
29. In reply to the Commission's letter dated 9 December 1997, in which they were informed of the Commission's decision relating to the witnesses Sadĸk Erdoğan and Nimet Nas, the Government informed the Commission on 17 December 1997 that the witnesses concerned wished to give evidence and that the Government considered that their testimony might be of relevance for the establishment of the facts.
30. On 17 January 1998 the Commission decided not to reverse its decision of 6 December 1997.
31. On 11 February 1998 the applicant submitted his final observations on the merits, after two extensions of the time-limit fixed for that purpose.
32. No final observations were received from the Government.
33.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
34.The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:
MMS. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
MrsG.H. THUNE
MMF. MARTINEZ
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
D. ŠVÁBY
G. RESS
A. PERENIČ
C. BÎRSAN
P. LORENZEN
E. BIELIŪNAS
E.A. ALKEMA
M. VILA AMIGÓ
MrsM. HION
MMR. NICOLINI
A. ARABADJIEV
35.The text of this Report was adopted on 29 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
36.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.
37.The Commission's decision on the admissibility of the application is annexed hereto.
38.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
39. The facts of the case, in particular those which relate to the events on 14 August 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.Facts as presented by the applicant
40.The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B below. The version as presented in the applicant's final observations on the merits is summarised briefly here.
41. On 14 August 1993 the applicant received a telephone call from someone who did not identify himself. The caller said that the applicant's son Abdulvahap had been taken into custody near the village of Yeniköy, in Silopi district, Şĸrnak province, by soldiers attached to Silopi central gendarmerie headquarters. Abdulvahap had been arrested together with a friend, who was said to be Syrian, as well as with the muhtar and his son in front of all the villagers. The muhtar was released soon afterwards. The applicant later heard that Abdulvahap and his friend had been taken round a number of villages to see if the villagers recognised them. Moreover, within a week of Abdulvahap being apprehended, the muhtars from the surrounding villages were called to Silopi gendarmerie headquarters to see if they recognised the two men.
42. The applicant made various attempts to obtain news of his son's fate. He submitted petitions to the Silopi prosecutor's office which initially were not registered. At the Silopi gendarmerie headquarters he was told that his son was not detained. When he took a photograph of Abdulvahap to the gendarmerie headquarters the gendarmes said that they did not recognise Abdulvahap and suggested that the applicant should look for his son in the mountains. At some stage, the applicant was told by a gendarme that two people had been detained but that that had not been on 14 August 1993.
43. The applicant also telephoned a relative, Bahattin Aktuğ, who was the mayor of Güçlükonak district. Aktuğ rang him back and said that he had spoken to Sadĸk Erdoğan and Nimet Nas, two 'confessors' (persons who co-operate with the authorities after confessing to having been involved with the PKK) from his village who were at that time in Şĸrnak. They had told Aktuğ that Abdulvahap was being detained in Şĸrnak, that they were doing what they could to look after him and that Abdulvahap was refusing to make a statement.
44. After about forty-five days the applicant went to Güçlükonak to see Bahattin Aktuğ. Whilst there, he also met with Erdoğan and Nas who had been given twenty days' leave from Şĸrnak and who could not return to Şĸrnak on account of the conditions in the area. When they had left Şĸrnak, Abdulvahap had been alive. Erdoğan and Nas told the applicant that they had been with Abdulvahap for quite some time and that they had also seen the Syrian. Bahattin Aktuğ spoke to a gendarmerie captain at Güçlükonak who rang Şĸrnak for information but was told that Aktuğ should stop asking questions about Abdulvahap. The same message was given when a major whom Aktuğ knew in Iğdĸr rang Şĸrnak. These developments worried and bewildered Bahattin Aktuğ.
45. The applicant again went to the Silopi prosecutor's office and named Erdoğan and Nas as his witnesses. At that point, his statement was taken. The applicant also went repeatedly to Şĸrnak where he was told on one occasion that his son had been caught "in Germik village of Karabaş between those two villages".
46. In the spring of 1995 the applicant saw Erdoğan again. Erdoğan told him that he had gone to court where he had said that he had seen Abdulvahap in Şĸrnak. Upon this his interrogator had got very angry and Erdoğan had become scared. For that reason he had said at the second occasion that he was asked about Abdulvahap that he had seen a man who looked similar but that he did not know whether it had been Abdulvahap.
2.Facts as presented by the Government
47. In their observations on the admissibility and merits of the application the Government submitted that it had appeared from the investigation initiated by the Silopi public prosecutor on 15 October 1993 that the applicant's son had not been apprehended or detained.
3.Proceedings before the domestic authorities
48. On 15 October 1993 the applicant submitted a petition to a Silopi public prosecutor (see para. 91). On the same date the prosecutor sent the petition to both the Silopi district gendarmerie headquarters and the police headquarters with a cover letter requesting examination of the matter.
49. By letter dated 20 October 1993, with reference number 0623-1302-93/7502, Hüsam Durmuş, commander of Silopi district gendarmerie headquarters, informed the Silopi public prosecutor that Abdulvahap Timurtaş had not been detained by his headquarters and that Abdulvahap's name did not appear in their records.
50. On 21 October 1993 a Silopi prosecutor took a statement from the applicant (see para. 66). On that same date letters were sent to the Silopi district gendarmerie headquarters with a request to secure the presence at the prosecutor's office of the muhtars of Yeniköy and Esenli in order for their statement to be taken, and to the office of the public prosecutor in Şĸrnak for a statement to be taken from Nimet Nas and Sadĸk Erdoğan, who were said to be in detention either at the Şĸrnak police headquarters or the provincial gendarmerie headquarters, the applicant having named these persons as witnesses.
51. The prosecutor's office at Şĸrnak was informed by the Şĸrnak provincial gendarmerie headquarters on 29 December 1993 that they had been unable to comply with the request to summon Sadĸk Erdoğan and Nimet Nas since "confessor suspect" Erdoğan was being held in detention in Diyarbakĸr E-type prison and Nas was participating in operations in Güçlükonak.
52. By letter dated 25 January 1994 Hüsam Durmuş, commander of Silopi district gendarmerie headquarters, informed the Silopi public prosecutor that the presence of the muhtar of Esenli village had been secured as requested. On 26 January 1994 İsmail Birlik and Kamil Bilgeç, muhtars of, respectively, Esenli and Yeniköy, made a statement to Silopi prosecutor Ahmet Yavuz (see paras. 78, 80).
53. On 10 March 1994 Silopi prosecutor Yavuz wrote to the prosecutor's office in Cizre requesting them to ensure that the applicant would go to the prosecutor's office in Silopi. This request was passed on to the Cizre police headquarters, which replied on 28 March 1994 that the applicant and his family had left Cizre and that their present whereabouts were unknown. This reply was transmitted from the Cizre prosecutor's office to the office in Silopi on the same day.
54. On 10 August 1994 the Silopi prosecutor Sedat Erbaş again requested the public prosecutor at Cizre to ensure the applicant's appearance at his office in Silopi. On the same date Erbaş also requested the public prosecutor at Güçlükonak to ask Bahattin Aktuğ whether the latter personally knew Abdulvahap Timurtaş and whether he had been approached by the applicant and had discussed the fate of the applicant's son. Erbaş further wrote to the prosecutors of Diyarbakĸr and Güçlükonak concerning Erdoğan and Nas respectively, who were to be asked whether they had been kept in custody along with Abdulvahap Timurtaş. It appears that in respect of Erdoğan at least the Silopi prosecutor's office had previously requested that his statement be taken by a Diyarbakĸr public prosecutor, since the case-file submitted by the Government includes a letter dated 1 August 1994 from a public prosecutor at Diyarbakĸr to the E-type prison in that city requesting that Erdoğan be brought before him.
55. It appears that following the communication of the present application to the Government on 9 May 1994 the Ministry of Justice (International Law and Foreign Relations General Directorate) contacted the Şĸrnak public prosecutor's office which in its turn passed the request for information on to the prosecutor's office in Silopi. On 23 August 1994 Silopi prosecutor Erbaş informed his colleague in Şĸrnak of the state of the investigation, saying that it had appeared from their examinations that Abdulvahap Timurtaş had neither been detained by the gendarmerie headquarters nor by the police headquarters in the district. Furthermore, the village muhtars whom the applicant had referred to as witnesses had stated that they knew neither the applicant nor his son Abdulvahap. It had not been possible to question Sadĸk Erdoğan and Nimet Nas. In view of the facts that the applicant had moved from Cizre to an unknown destination and that he had not applied to the Silopi prosecutor's office since 21 October 1993 the impression had been created that Abdulvahap Timurtaş had been found. For that reason, the applicant had been summoned on 10 August 1994 to the Silopi prosecutor's office in order to close the file.
56. The case-file then contains a series of letters written mainly by public prosecutors at Silopi and Eruh aimed at securing the presence of Bahattin Aktuğ, Sadĸk Erdoğan and Nimet Nas in order for their statements to be taken. In another reminder sent on 2 February 1995 by Silopi prosecutor Yavuz to the prosecutor's office at Eruh, Yavuz stated that the subject was important and urgent since it was related to a matter followed by the Ministry of Justice and the European Commission of Human Rights. He continued by stating that Aktuğ, Erdoğan and Nas should be asked whether they personally knew Abdulvahap Timurtaş, whether they had seen Abdulvahap Timurtaş in August, September or October 1993 in Şĸrnak brigade or regiment headquarters and whether they had had any conversation with Abdulvahap whilst the latter was in detention. Moreover, they were to be asked whether they had furnished any information to the applicant and to be requested to give detailed information concerning the detention of Abdulvahap Timurtaş by the security forces.
57. In a letter dated 6 February 1995 in which Silopi prosecutor Yavuz informed the Şĸrnak prosecutor's office of the progress of the investigation, it is mentioned that the residents of Yeniköy had been summoned for their statements to be taken. Moreover, the public prosecutor's office at Şĸrnak had been requested to investigate the incident via the Şĸrnak brigade headquarters.
58. The case-file contains a statement drawn up and signed by Bahattin Aktuğ and two gendarmerie officers to the effect that the former was unable to comply with the summons from the Eruh public prosecutor as "road and life security and helicopter activity" could not be established. It also said that Nimet Nas was being held in Diyarbakĸr E-type prison. Although this statement is dated 9 September 1994 it would seem more likely that it was drawn up around 9 April 1995 as it refers to correspondence received from a district gendarmerie headquarters dated 9 September, 10 November and 25 December 1994 and 14 March 1995. Moreover, on 18 April 1995 Sedat Erbaş, prosecutor at Silopi, first wrote to the prosecutor's office at Diyarbakĸr to request that a statement be taken from Nas. Nas was to be asked, inter alia, whether he had seen Abdulvahap Timurtaş in detention at Şĸrnak brigade or regiment headquarters in August, September or October 1993 or at any other time. On 5 May 1995 Nimet Nas made a statement to a Diyarbakĸr public prosecutor (see para. 82).
59. By decision of 13 July 1995 Silopi prosecutor Yavuz issued a decision of lack of jurisdiction and referred the case to the prosecutor's office at Şĸrnak (see paras. 107-110).
60. Özden Kardeş, public prosecutor at Şĸrnak, commenced his investigation by requesting the Şĸrnak police headquarters and the provincial centre gendarmerie headquarters on 24 July 1995 to examine their records for August 1993 to see if Abdulvahap Timurtaş had been detained by them. By letter of 9 August 1995 the commander of the Şĸrnak provincial centre gendarmerie headquarters replied that the name Abdulvahap Timurtaş did not appear in their records.
61. On 13 August 1995 the Yeniköy muhtar Kamil Bilgeç made another statement at Silopi central gendarmerie headquarters (see para. 81). Moreover, on 13 and 15 August 1995 statements were taken from Bahattin Aktuğ and Sadĸk Erdoğan respectively by a gendarmerie officer (see paras. 87, 84). It does not appear, however, that these statements were immediately sent to the Şĸrnak prosecutor's office since he also entered into correspondence aimed at having the statements of Aktuğ, Erdoğan and Nas taken. By letter of 8 October 1995 a gendarmerie officer at the Şĸrnak provincial centre gendarmerie headquarters informed the public prosecutor that Nimet Nas was being detained in Diyarbakĸr E-type prison and that the address of Sadĸk Erdoğan could not be established. On 28 December 1995 Nimet Nas made a statement to a Diyarbakĸr public prosecutor (see para. 83).
62. Bahattin Aktuğ's statement of 13 August 1995 was forwarded to the Şĸrnak prosecutor's office by the Güçlükonak district gendarmerie headquarters on 19 November 1995. Nevertheless, by letter of 8 February 1996 to the Eruh prosecutor's office Şĸrnak prosecutor Kardeş again requested that he be supplied with a statement from Bahattin Aktuğ in which the latter was to clarify whether he personally knew Abdulvahap Timurtaş and whether he had any information concerning a detention of Abdulvahap Timurtaş. Kardeş sent the same request in respect of Sadĸk Erdoğan. Moreover, on 26 February 1996 another Şĸrnak prosecutor asked the prosecutor's office at Silopi to question the residents of the villages of Yeniköy, Germik, Kartĸk and Kutnĸs about their knowledge of Abdulvahap Timurtaş and a detention undergone by the latter. On 26 March 1996 the statements made on 7 and 8 March 1996 by residents of these villages were transmitted to the Silopi prosecutor's office by the Silopi district gendarmerie headquarters (see para. 89). Meanwhile, on 11 March 1996, Yusuf Bilgeç, the son of the Yeniköy muhtar, made a statement to a public prosecutor (see para. 90). Sadĸk Erdoğan made a statement to Şĸrnak prosecutor Kardeş on 2 April 1996 (see paras. 85-86). A public prosecutor at Siirt took a statement from Bahattin Aktuğ on 22 April 1996 (see para. 88).
63. On 3 June 1996 the Şĸrnak prosecutor Özden Kardeş issued a decision not to prosecute (see paras. 111-115).
B.The evidence before the Commission
1.Documentary evidence
64. The parties submitted various documents to the Commission. The documents included reports about Turkey (including extracts on Turkey from a number of Reports of the United Nations Working Group on Enforced or Involuntary Disappearances) and statements from the applicant and witnesses concerning their version of the events at issue in this case.
65. The Commission had particular regard to the following.
a.Statements by the applicant
i. Statement of 21 October 1993 taken by a Silopi public prosecutor
66. The applicant stated that his son Abdulvahap, after being angry with him, had left his house and had gone away two years previously. He had learnt from other people that Abdulvahap had gone to Syria. According to the latest information his son had been apprehended by security forces in Yeniköy. Although the applicant had not seen his son, he might have been seen by the Yeniköy and Esenli muhtars. The applicant had also heard that his son had been seen in Şĸrnak by Nimet Nas and Sadĸk Erdoğan who resided in Güçlükonak but, according to the applicant's knowledge, were being kept in detention.
ii.Statement of 2 December 1993 taken by Mahmut Şakar of the Diyarbakĸr branch of the Human Rights Association
67. The applicant was informed through an anonymous telephone call that his son Abdulvahap, together with a friend whom the applicant did not know, had been taken into custody in Yeniköy on 14 August 1993 by soldiers connected to Silopi central gendarmerie headquarters. The arrest had taken place in front of all the villagers. The muhtar of Yeniköy, Kamil, and the muhtar's son had also been arrested. About three days after being caught, Abdulvahap and his friend were taken around a number of villages in the area. The aim of this exercise was to find out whether the villagers knew them and whether Abdulvahap and his friend knew the villagers. To this end all the villagers were gathered in the village squares. The villagers were unwilling to give their names to the applicant because of the situation in the region, but they remembered Abdulvahap asking for water.
68. In view of the intensity of the clashes in the area at the time, the applicant did not give a petition to the Silopi public prosecutor's office until one week later. The petition was not processed and the applicant was told that Abdulvahap was not there. Within that week the muhtars of the villages in the area were called to Silopi to see if they knew Abdulvahap and his friend. Although these muhtars thus saw Abdulvahap and his friend at Silopi gendarmerie headquarters, they were unwilling to give their names to the applicant out of fear.
69. The applicant then telephoned a relative by the name of Bahattin Aktuğ who had been a village guard and was now the mayor of Güçlükonak district. By speaking to an officer on duty at Şĸrnak brigade headquarters Aktuğ found out that Abdulvahap was being detained there. Aktuğ told the applicant not to worry; Abdulvahap would be brought before the court and, as they all knew that he was in custody, the State could not make Abdulvahap disappear.
70. The information given to the applicant by Bahattin Aktuğ was confirmed by Sadĸk Erdoğan and Nimet Nas, two people who were from the same village as the applicant and his wife. Erdoğan and Nas had previously been tried on charges of PKK involvement, had confessed and were working with the State. Sadĸk Erdoğan told the applicant by telephone that Abdulvahap was well and that they, Erdoğan and Nas, were giving him tea and cigarettes and were having him shaved. On the twenty-fifth day of Abdulvahap's detention Erdoğan and Nas were sent to their district of Güçlükonak from where they telephoned the applicant and told him that his son was well.
71. In view of the situation in the region, the confessors Erdoğan and Nas could only travel by helicopter. As no helicopter was sent to them from Şĸrnak, they were forced to stay in their village in the Güçlükonak district. At the same time, the telephone numbers were changed all over Turkey and it was not possible to telephone anybody for a period of two weeks. Therefore, the applicant was unable to get any more news.
72. After Abdulvahap had been in detention for thirty days, the applicant went to Silopi in the hope of seeing him brought before the court but to no avail. He gave a petition to the prosecutor's office but this was refused and the applicant was told, "We do not have anyone like that." Assuming that his son's detention had been prolonged by fifteen days the applicant returned to the Silopi prosecutor's office when Abdulvahap had been detained for forty-five days. This time the prosecutor signed the petition and transferred it to Silopi police headquarters. When the applicant went there he was told that Abdulvahap was not in custody. The applicant then went to see the commander of Silopi gendarmerie. He told the commander that they were to bring Abdulvahap before the court if he was alive and to give him his body if he was dead. The commander replied, "Uncle, do we have the authority to kill your son? Maybe your son has gone into the mountains, go and look for him there." The commander further said that on 14 August 1993 they had caught two area leaders of an illegal organisation in the Silopi region and that these had been sent to Diyarbakĸr a week later. However, these two suspects had had different names.
73. Not being able to get any word of his son, the applicant began to panic. He went to Şĸrnak where he presented a petition to the prosecutor's office which was accepted and sent to Şĸrnak brigade headquarters. From there it was sent to the political branch or the fight against terrorism branch where the petition was not replied to but where it was said that Abdulvahap was not being detained.
74. The applicant and his wife then went to Güçlükonak to see Bahattin Aktuğ. Aktuğ contacted a number of people and was told that the authorities in Şĸrnak denied that Abdulvahap was there. Whilst in Güçlükonak, the applicant also met with Sadĸk Erdoğan and Nimet Nas. Erdoğan told him that he had learnt about Abdulvahap's detention at Şĸrnak brigade headquarters after Bahattin Aktuğ had telephoned him. He had gone to the custody rooms and had found that Abdulvahap was being interrogated by the authorities. He had said that Abdulvahap was a relative of his and that he would act as a mediator if the authorities wanted anything. The authorities had told him to persuade Abdulvahap to give a statement. Upon this Erdoğan had given a pen and paper to Abdulvahap. Some time later Abdulvahap had returned the paper to him and had asked him to give it to the officer. A little while later the commander had again given paper and pen to Erdoğan, saying that Abdulvahap was to write his statement again. This procedure had been repeated three or four times. Erdoğan had then asked Abdulvahap what he was writing to which Abdulvahap had replied that it was none of his business. After this the authorities had not tried to get any information from Abdulvahap while Erdoğan was still there. Sometimes he and Nas would take Abdulvahap out for some air and they had chatted.
75. Nimet Nas confirmed Sadĸk Erdoğan's account. After having met with them, the applicant and his wife left Güçlükonak. Following this, and on the fifty-fifth day of Abdulvahap's detention, the applicant took another petition to the Silopi prosecutor's office. He named Sadĸk Erdoğan and Nimet Nas as witnesses. Upon the applicant's insistence the prosecutor asked for a list of the persons in custody from a clerk. The clerk, hiding the list from the applicant, showed a name to the prosecutor who then proceeded to take the applicant's statement. The prosecutor said he would send the papers to Şĸrnak and the applicant was to return in a month's time. One month later the applicant returned but was told that his papers had not yet come back and that he should try again in ten days' time. However, ten days later there was still no news and the applicant was asked to come back one week later. When the applicant made the present statement that week was not yet over.
76. The applicant put three announcements in the Özgür Gündem newspaper saying that his son was missing. He applied to the Human Rights Association. He also spoke to a Member of Parliament for Şĸrnak, Mr Selim Sadak. On 4 November 1993 Mr Sadak put a question concerning Abdulvahap Timurtaş to the Ministry of the Interior. On 2 December 1993 the applicant presented a petition at the Diyarbakĸr State Security Court which informed him in writing that upon inspection of the records, Abdulvahap had not been found.
77. On 4 January 1991 an older son of the applicant, Tevfik, born in 1956, had been taken into custody. Ten days later police had come to get the applicant and they had shown him the dead body of his son. The applicant had seen large wounds on the soles of the feet. The commander of the Cizre police headquarters had told the applicant, "It's not over yet, it's Abdulvahap's turn, we shall send you his body too."
b.Statements by other persons
İsmail Birlik
i. Statement of 26 January 1994 taken by Ahmet Yavuz, Silopi public prosecutor
78. On the date this statement was taken İsmail Birlik was the muhtar of Esenli village in Silopi district. He stated that he did not know and had never seen the applicant or the applicant's son Abdulvahap. He had heard that someone had been taken into detention near Yeniköy village approximately four to five months previously but he was not aware of the identity of that person and thus did not know whether it was Abdulvahap Timurtaş.
ii. Statement of 22 January 1997 taken by officers of the anti-terror branch
79. İsmail Birlik was asked why he had failed to attend the hearing before Delegates in Ankara. He stated that during his term of office as muhtar of Esenli two or three persons had gone missing - he could not remember exactly how many. Two or three months before giving the present statement he had received a summons to go to Ankara but due to his old age and poor financial circumstances he had been unable to go.
Kamil Bilgeç
i. Statement of 26 January 1994 taken by Ahmet Yavuz, Silopi public prosecutor
80. Kamil Bilgeç, muhtar of Yeniköy village in Silopi district when this statement was taken, said that he did not know and had never seen the applicant or the applicant's son Abdulvahap. He did not know that two individuals had been apprehended nearby his village approximately four months previously and neither did he know why his name had been given.
ii. Statement of 13 August 1995 taken by gendarmes
81. In this statement Kamil Bilgeç was requested to state his observations and knowledge on the claim that he and his son Yusuf Bilgeç had seen the arrest of Abdulvahap Timurtaş by security forces between 4 and 7 August 1993 (sic). In response, Bilgeç stated that he had been muhtar of Yeniköy village for approximately fifteen years and that he had resided there between the dates mentioned. He had left Yeniköy in July 1994. He did not know, had never seen and would not be able to recognise Abdulvahap Timurtaş. He was prepared to come face to face with anyone who claimed that he knew something and who had given his name.
Nimet Nas
i. Statement of 5 May 1995 taken by a Diyarbakĸr public prosecutor
82. This statement was taken when Nimet Nas was serving a prison sentence in Diyarbakĸr E-type prison. After the instructions of the Silopi public prosecutor had been read to him (para. 58), Nas said that he knew Abdulvahap Timurtaş who was a close relative of his, a PKK militant and a cadre. Abdulvahap's code name was Baver and he was responsible for Syria. In 1990 Abdulvahap had been responsible for Cizre. Nas had not seen Abdulvahap in detention in Şĸrnak brigade or regiment headquarters or other security units in 1993 or at any other time. Therefore, he had not furnished any information to the applicant.
ii. Statement of 28 December 1995 taken by a Diyarbakĸr public prosecutor
83. When this statement was taken, Nas was still serving a prison sentence at Diyarbakĸr E-type prison. The instructions of the Şĸrnak public prosecutor were read out to him and he stated that he knew Abdulvahap Timurtaş who was his cousin. He did not know whether Abdulvahap had been taken into custody but only knew that Abdulvahap had been responsible for contacts with Syria at the time when he, Nas, had surrendered himself to the authorities.
Sadĸk Erdoğan
i. Statement of 15 August 1995 taken by gendarmes
84. Sadĸk Erdoğan was questioned on the subject of being an eye-witness to the presence of Abdulvahap Timurtaş in the Şĸrnak interrogation unit between 7 and 20 August 1993. In reply, he said that he definitely did not know Abdulvahap Timurtaş and that he had not even heard of that name. He also said that, "Their purpose is to alienate us from the state with which we are siding". Underneath Erdoğan's name and signature at the bottom of the document, it is indicated that he was a temporary village guard of Damlabaşĸ village.
ii. Statement of 2 April 1996 taken by Özden Kardeş, Şĸrnak public prosecutor
85. Sadĸk Erdoğan stated that he had been active within the organisation but that he had escaped from the organisation and surrendered to the security forces on 31 March 1993. Following this, he had been tried and released. He assisted the security forces as a confessor and at the same time served as a temporary village guard at Damlabaşĸ village in Güçlükonak district. He did not know and had not seen Abdulvahap Timurtaş whose mother came from his village and for that reason frequently visited the village. She used to mention her sons and therefore he only knew Abdulvahap Timurtaş as a name. He had no knowledge as to whether Abdulvahap had been detained or the circumstances of Abdulvahap's disappearance.
86. He acknowledged that he had previously given a statement in which he had said that he did not know and had not seen Abdulvahap Timurtaş. He had not heard anything about Abdulvahap's disappearance.
Bahattin Aktuğ
i. Statement of 13 August 1995 taken by gendarmes
87. In this statement Bahattin Aktuğ was questioned on the subject of "investigating Abdulvahap Timurtaş and informing his father Mehmet Timurtaş on the detention of his son". In response, Aktuğ stated that he definitely did not know these individuals and that they did not reside in his district (of Güçlükonak) or the villages belonging to the district. He had not met them under any circumstances and such incident had not taken place between them. He concluded by saying that, "They might have said this in order to affect me adversely".
ii. Statement of 22 April 1996 taken by a Siirt public prosecutor
88. Bahattin Aktuğ said that he did not know Abdulvahap Timurtaş and that he did not remember anyone residing in his district under that name. He had no knowledge about the detention of Abdulvahap Timurtaş. Moreover, he had no information about the reasons why he was being indicated as a witness since he had no knowledge or any form of information on the incident whatsoever.
Nine residents of Yeniköy and hamlets belonging to Yeniköy
Statements taken on 7 and 8 March 1996 by gendarmes attached to Silopi district gendarmerie headquarters
89. The following questions were put to all of the nine witnesses: "Do you know a person by the name of Abdulvahap Timurtaş who was questioned by the Şĸrnak prosecutor's office? If you know him, do you know where that person is at the present time and what his occupation is? Do you know whether that person was taken into custody? Do you know anything about these issues?" In reply, all the witnesses stated that they did not know Abdulvahap Timurtaş, that they had never heard his name and that, therefore, they did not know whether Abdulvahap Timurtaş had been detained.
Yusuf Bilgeç
Statement of 11 March 1996 taken by a public prosecutor
90. Yusuf Bilgeç stated that in 1994 he had been kept in custody for a period of time but that he had been acquitted by the Diyarbakĸr State Security Court. He was not acquainted with the applicant or the applicant's sons Mehmet and Abdullah (sic) Timurtaş. During his time in custody he had not witnessed anybody's death as a result of torture. As he was not acquainted with Abdullah Timurtaş he was not aware of his, Abdullah's, disappearance. The last line of the statement reads as follows:
"Upon the declaration that the witness is not acquainted with Mehmet Timurtaş, his sons Mehmet Timurtaş and Abdullah Timurtaş, the witness was not questioned in detail in relation to the incident."
c.Petitions submitted by the applicant
Petition of 15 October 1993 to the Silopi public prosecutor's office
91. This document, which was submitted to the Commission by the Government and is signed by the applicant, states that the applicant's son Abdulvahap Timurtaş left his house approximately two years previously and that the family had not heard from him since then. At a later stage, the family heard that Abdulvahap had been apprehended by the security forces near Yeniköy village in Silopi district on 14 August 1993 and that he had been taken into custody. The applicant, who stated that he was certain that his son was being held in detention, wished to be informed as to Abdulvahap's fate and as to the date on which his son would be brought before the public prosecutor.
Petition of 18 October 1993 to the Diyarbakĸr branch of the Human Rights Association
92. The applicant submits that his son Abdulvahap was apprehended on 14 August 1993 by soldiers belonging to Silopi central gendarmerie headquarters in front of all the villagers in Yeniköy in Silopi district. Abdulvahap was taken to Silopi central gendarmerie headquarters and after having been kept there for a while, he was taken around the villages in the area. He was taken back when it became clear that Abdulvahap had no relations with the villagers, but all the villagers had seen him in the hands of the military. He was later seen by other people in custody at Şĸrnak brigade headquarters.
93. Sixty-five days passed without Abdulvahap having been brought before a court. The applicant had not obtained any information about his son, despite making applications, with and without petitions, to all State offices in Silopi and Şĸrnak. All these offices denied that Abdulvahap had been taken into custody. As the applicant was concerned for the life of Abdulvahap, and as he had previously lost a son who had been taken into custody, he wanted Abdulvahap brought before a court immediately.
Petition of 30 November 1993 to the Cizre public prosecutor's office
94. This document, which was submitted to the Commission by the applicant himself, bears no official stamps or other signs of having been accepted or processed by the authorities. In the petition, the applicant states that his son Abdulvahap had been taken into custody on 14 August 1993 by State forces in Yeniköy. He had received no information about the whereabouts of his son despite having filed petitions with the Silopi prosecutor's office, Silopi police headquarters, the central gendarmerie headquarters there, the Şĸrnak prosecutor's office, the Şĸrnak central gendarmerie headquarters, the Şĸrnak prison, the National Intelligence Service and the brigade headquarters. He requested that he be assisted in finding out the fate of his son.
Petition of 30 November 1993 to the Cizre central gendarmerie headquarters
95.This petition is worded in terms similar to the petition to the Cizre public prosecutor's office (para. 94). The document was submitted to the Commission by the applicant and bears no official stamps or other signs of having been accepted or processed by the authorities.
Petition of 2 December 1993 to the prosecutor's office at the Diyarbakĸr State Security Court
96. In this petition the applicant requests to be informed of the fate of his son Abdulvahap who was taken into custody on 14 August 1993 by soldiers from Silopi central gendarmerie headquarters in Yeniköy and sent to Diyarbakĸr. A handwritten note at the bottom of the document, signed by "Clerk no. 34", reads, "Could not be found on examination of the records".
d.Decisions and reports
Photocopied document entitled "Post-operation report" dated 15 August 1993
97. This photocopied document was submitted by the applicant's representatives at the hearing in Ankara on 23 November 1996. It is in the shape of a filled-out pro forma document and corresponds to the standard post-operation report form submitted by the Government at the request of the Commission after the hearing.
98.According to the heading of the report it was sent by the Silopi district gendarmerie headquarters to the following addressees:
-the 23rd gendarmerie border brigade headquarters/Şĸrnak;
-the provincial gendarmerie headquarters/Şĸrnak;
-the tactical gendarmerie border unit headquarters/Silopi;
-the 1/61st mechanised infantry battalion headquarters/Görümlü;
-the 1/12th mechanised infantry battalion headquarters/Kapĸlĸ; and
-the 2/20th tank battalion headquarters/Silopi.
99.The report concerns the "incident of the apprehension of members of the PKK terrorist organisation" on 14 August 1993 around 11.00 hours. The incident had taken place at a terrain 500 metres north of the village of Yeniköy in Silopi district in the province of Şĸrnak. The names of the apprehended persons are given as Abdulvahap Timurtaş - code name Yasin, son of Mehmet, date of birth 1962, registered in Cizre, male, resident in Cudi Mahallesi -, and Hosnat Hasan Ahmet - code name Cemal-Besrif, son of Hasan, date of birth 1966, registered in Syria, male, resident in Kamĸslĸ-Dudan village, profession agricultural engineer. In respect of both men the report states that they were in charge of the PKK's Silopi lowlands section and that they were apprehended alive. Two pistols, two pistol magazines, twenty-nine rounds of pistol bullets and a large number of printed documents in Turkish and Arabic belonging to the PKK terrorist organisation as well as a letter written to the PKK Cudi headquarters were seized. The authority dealing with the incident is given as the Silopi district gendarmerie headquarters.
100.The brief summary of the incident contained in the report states that on 14 August 1993 at around 11.00 hours, during a preventive patrol operation between the villages of Yeniköy and Esenli in Silopi district, the individuals named in the report were searched at the location indicated in the report and the weapons and documents described in the report were found. The initial interrogation of the apprehended persons established that they were the leaders of the PKK's Silopi lowlands section. The investigation was commenced and the result would be transmitted in due course.
101.The report concludes with the date of its conception (15 August 1993) and its reference number: 0623-994-93/6038. Above the name "Durmuş" at the bottom of the report is a signature. There is also a handwritten note saying "To its file" at the bottom of the document.
102.The report and its translation have been annexed to the present Report as Appendices IIa and IIb. The blank post-operation report form submitted by the Government and its translation have been annexed as Appendices IIIa and IIIb.
103.On 23 November 1996, during the hearing before Delegates, the applicant's representatives stated that they had been given the document three days earlier and had been told that an original version of the document had been found in the files of the Cizre prosecutor's office in 1993 and that a copy had been made. The representatives were also told that apparently the original of the document was no longer in the file concerned. In reply to a written question by the Commission as to how the document had been obtained, the representatives submitted that should it prove necessary, the person who had obtained it was willing to give evidence before the Delegates subject to certain conditions.
104. The Commission subsequently requested the Government to submit written comments on the authenticity of the document and, if authentic, to provide the original. They were, moreover, requested to submit a blank pro forma report used by the Gendarmerie after the conclusion of an operation, an explanation of the reference number appearing on the photocopied report and copies of all documents bearing the same number.
105. The Government, by letter of 15 July 1997, informed the Commission that "the report as well as the documents relating to it and bearing the same reference are classified as secret. They cannot be submitted to the Commission". Moreover, despite an extensive search carried out by the Şĸrnak provincial gendarmerie no trace of the original of the photocopy could be found which, in the Government's opinion, cast doubt on the authenticity of the submitted document.
106.In respect of the reference number appearing on the photocopied report, 0623-994-93/6038, the Government submitted as follows: '0623' is the code number for the public order services; '994' refers to the number of the document in the chronological list of documents relating to the public order services issued in a given year; '93' indicates the last two figures of the year in question, and '6038' indicates the number of the document in the chronological list of documents processed in a given year.
Decision of lack of jurisdiction dated 13 July 1995 issued by Silopi public prosecutor Ahmet Yavuz
107.This decision names the applicant as complainant and describes the incident under investigation as the arbitrary detention, disappearance and unknown fate of Abdulvahap Timurtaş. The location of the incident is cited as Şĸrnak brigade headquarters.
108.In stating the applicant's complaint that his son was apprehended by soldiers in Yeniköy on 14 August 1993 the decision refers to the applicant's account contained in his petition to the Diyarbakĸr branch of the Human Rights Association of 2 December 1993 (paras. 67-77).
109.The correspondence conducted by the Silopi public prosecutor had resulted in a statement having been obtained from Nimet Nas. It had not been possible to take a statement from Sadĸk Erdoğan as his whereabouts were unknown. Furthermore, due to security reasons the witness Bahattin Aktuğ could not be brought to any public prosecutor's office and therefore it had not been possible to take his statement. Moreover, the Cizre public prosecutor's office had indicated that the applicant had left Cizre and that his whereabouts were unknown.
110.In order for the investigation to proceed rapidly and in view of the fact that the applicant's son was alleged to have been detained at Şĸrnak brigade headquarters, it was decided to refer the investigation to the public prosecutor's office in Şĸrnak.
Decision not to prosecute dated 3 June 1996 issued by Şĸrnak public prosecutor Özden Kardeş
111.This decision names the applicant as the complainant and his son Abdulvahap as victim and missing person. It describes the incident under investigation as the allegation of disappearance during detention. It mentions that the applicant filed a petition with the Silopi public prosecutor's office on 15 October 1993 and that in his statement to the public prosecutor on 21 October 1993 the applicant said that his son had become angry two years previously and had left the house and had gone to Syria.
112.The decision then describes the various inquiries made with, and replies received from, the Silopi district gendarmerie headquarters, the Silopi police headquarters, the Şĸrnak provincial centre gendarmerie headquarters and the Şĸrnak police headquarters. It mentions in this respect, inter alia, that the Silopi police headquarters dispatched a letter dated 13 October 1993 saying that Abdulvahap Timurtaş was not detained by their headquarters and that his name did not appear in their files. Also, on 28 July 1995 the Şĸrnak police headquarters reported that Abdulvahap Timurtaş had not been detained by them but that he was wanted by the Prevention of Terrorism branch for having carried out activities on behalf of the PKK terrorist organisation.
113.The statements made by Kamil Bilgeç, İsmail Birlik, Nimet Nas, Sadĸk Erdoğan, Bahattin Aktuğ and the residents of Yeniköy, Germik, Kartĸk and Kutnĸs are summarised in the decision. In respect of Kamil Bilgeç and İsmail Birlik it is stated that they were not aware of an incident involving detention.
114.The decision not to prosecute was reached in view of the abstract character of the applicant's complaint that his son disappeared whilst in detention. Account was also taken of the fact that the applicant had left for an unknown destination following the lodging of his complaint. Moreover, the possibility that Abdulvahap Timurtaş was a member of the mountain cadre of the PKK terrorist organisation was strengthened by the facts that he was alleged to have been in charge of Syria on behalf of the PKK and that he was wanted by the Prevention of Terrorism branch of Şĸrnak police headquarters.
115.In conclusion, the decision states that its contents are to be announced to the applicant and that appeal rights are reserved.
e.Custody records
Silopi district gendarmerie headquarters
116.A copy of the entries for the period 10 March 1993 until 19 December 1993 (entry nos. 16 to 50) was provided. Abdulvahap Timurtaş' name is not included, nor any entry for 14 August 1993. Between 10 March 1993 and 12 August 1993, three people are recorded as having been detained, all on suspicion of PKK-related offences. On 13 August 1993 a total of twelve persons was entered. The reason for the detention of ten of these persons is given as "enquiries" and they were all released the following day. The other two were suspected of PKK-related offences and held until 14 September 1993.
117.Until 19 December 1993 a further twenty persons were recorded as having been detained, all on suspicion of aiding and abetting the PKK. Four of these people, including Yusuf Bilgeç, son of Kamil, were detained on 31 October 1993 and are recorded as having left the gendarmerie headquarters on 17 November 1993.
Silopi police headquarters
118.A copy of the entries for the period 31 July 1993 until 2 December 1993 (entry nos. 129 to 320) was provided. Abdulvahap Timurtaş' name is not included, nor any entry for 14 August 1993.
Şĸrnak provincial centre gendarmerie headquarters
119.A copy of the entries for the period 23 September 1993 until 30 December 1993 (entry nos. 1 to 78) was provided. Abdulvahap Timurtaş' name is not included.
Interrogation unit at the Şĸrnak provincial gendarmerie headquarters (hereinafter "the Şĸrnak interrogation unit)
120.In their letter of 15 July 1997 the Government informed the Commission that no records were kept by the Şĸrnak provincial gendarmerie headquarters since detainees were registered in the records of the interrogation unit.
121.A copy of the entries for the period 31 July 1993 until 13 January 1994 (entry nos. 542 to 722, with entry nos. 681 to 686 missing) was provided. Abdulvahap Timurtaş' name is not included, nor any entry for 14 August 1993.
122.The Government have also provided a copy of a single page from the ledger containing entries nos. 421 to 426. Entry no. 424, Sadĸk Erdoğan, is recorded as having entered the interrogation unit on 3 April 1993 and to have left it on 1 May 1993. According to the record Erdoğan was not released but taken into detention on remand. The Government have further submitted that pursuant to a warrant of arrest dated 3 May 1993 Erdoğan was taken to Şĸrnak prison from where he was transferred to Diyarbakĸr E-type prison on 26 May 1993. He was released on 21 March 1994.
123.In later proceedings Erdoğan was convicted by judgment dated 26 September 1994 of the Diyarbakĸr State Security Court and sentenced to a term of two years and four months' imprisonment. He started serving this sentence on 15 April 1996 but was conditionally released on 4 February 1997.
124.The Government have furthermore provided a copy of a single page which is said to have been taken from the Şĸrnak interrogation unit records for 1992. The layout is different from the records for 1993. The page submitted contains an entry, no. 137, for Nimet Nas who is recorded as having entered the interrogation unit on 16 June 1992 and to have left it on 16 July 1992. On the latter date Nas was taken into detention on remand. According to further information submitted by the Government, Nas was found guilty of PKK membership by the Diyarbakĸr State Court on 7 May 1993 and sentenced to six years' imprisonment. A decision for his conditional release was taken on 12 December 1996 and he left Diyarbakĸr E-type prison on 15 December 1996.
125.No copies have been provided from the records of Diyarbakĸr E-type prison concerning either Sadĸk Erdoğan's or Nimet Nas' detention there (para. 27).
126.In their letter of 15 July 1997 the Government submitted that in view of the fact that the border brigade did not detain people it did not have any custody records.
2. Oral evidence
127.The evidence of the applicant and five witnesses heard by the Delegates may be summarised as follows:
Mehmet Timurtaş
128.The applicant stated that he was born in 1928. Although he now lived in İstanbul, he had been living in Cizre at the time of the events in question. His son Abdulvahap had been living with the family when, either in 1991 or 1992, Abdulvahap had left to look for work in İstanbul. He denied that he had told the public prosecutor in Silopi that Abdulvahap had been angry when he left. It had not been unusual for Abdulvahap, who was a dye-maker, to work elsewhere. Usually Abdulvahap would send money home, but this time his family had not heard from Abdulvahap following his departure. There had been a rumour to the effect that Abdulvahap had gone to Syria but he did not know whether there was any truth in this.
129.On 14 August 1993 he had received a telephone call from a person whom he did not know and who had refused to give his name. This man had told him that his son had been arrested with a friend between two villages near Karabaş around Yeniköy. The applicant did not know who this friend was, but it was said to be somebody who did not speak Turkish, but Arabic so he may have been from Syria. His son and this friend had then been taken to a village where the muhtar of Karabaş and the muhtar's son had also been apprehended and then all four men had been brought to Silopi. The applicant knew that the muhtar was called Hacĸ Kamil but he did not know his surname. Hacĸ Kamil and his, Kamil's, son had been released the following day.
130.He had heard that a few days after their arrest, Abdulvahap and the friend had been taken round a large number of villages in the area. However, all the villagers who were asked had said that they did not know the two men. It was not clear how the applicant had heard about this; although he said that he had been telling people about the situation, he also said that he did not know anybody in the Yeniköy area. He further said that people had been unwilling to talk because they were afraid.
131.He had tried to obtain news of his son's fate from the authorities but he was unable to express clearly when he had gone to which authorities. It appeared that within a week of Abdulvahap's arrest he had gone to the Silopi public prosecutor's office where he had been told to come back in ten or eleven days. When he had gone back to the public prosecutor he was informed that Abdulvahap had not been brought there and that he should go to the police headquarters and the district gendarmerie headquarters. At the police headquarters he had been referred to the gendarmerie headquarters. All authorities had denied that they were keeping Abdulvahap in detention. On one of his visits to the district gendarmerie headquarters the commander there had said that he should look for his son in the mountains as maybe Abdulvahap had joined the PKK. The commander had also told him to bring a photograph of Abdulvahap, which he had done. He had then been told to return after five to ten days. The gendarmerie commander had further read out the names of people who had been caught smuggling around the time of Abdulvahap's arrest. Neither Abdulvahap's name nor those of the muhtar and his son had been amongst them. Moreover, he had been told that before August two area leaders of an illegal organisation had been caught and sent to Diyarbakĸr a week later but that their names were different from that of his son.
132.He had telephoned Bahattin Aktuğ after he had returned from Silopi the first time. Although Aktuğ, who was the mayor of Güçlükonak district, was a distant relative, he had been quite close to Aktuğ because they belonged to the same clan. Aktuğ had told him that he would look for Abdulvahap. Aktuğ had rung him back to say that he had contacted two confessors, Sadĸk Erdoğan and Nimet Nas, who had seen Abdulvahap in Şĸrnak. They had told Aktuğ that they were giving Abdulvahap cigarettes, were having him shaved and were looking after him. Aktuğ had told the applicant not to worry about Abdulvahap, that Abdulvahap was under torture in Şĸrnak, that he was not saying anything and that he would be brought before a court after thirty days. The applicant knew Erdoğan and Nas because they also belonged to the same clan.
133.Although he had felt somewhat more at ease after having received this information from Aktuğ he had continued asking the authorities about Abdulvahap's whereabouts. Apart from Silopi, he had also gone to the public prosecutor's office in Şĸrnak, the MİT organisation (Milli İstihbarat Teşkilatĸ - National Intelligence Service) in Şĸrnak, the Şĸrnak gendarmerie and the Şĸrnak brigade. At this last place he had been told that the reply to his petition would be sent to the political branch in Cizre.
134.Having failed to obtain any more information and as he had been unable to contact Bahattin Aktuğ due to the telephone connections having been cut off, he had gone to see Aktuğ in Güçlükonak together with his wife about forty-five days after Abdulvahap's arrest. Erdoğan and Nas had also been staying with Aktuğ; they had been sent on twenty days' leave to Güçlükonak. Abdulvahap had still been in Şĸrnak when Erdoğan and Nas had left there.
135.With Erdoğan and Nas no longer in Şĸrnak, Aktuğ had not been able to get any more news of Abdulvahap. Upon the applicant's arrival in Güçlükonak Aktuğ had gone to see the local gendarmerie captain who had made a telephone call to Şĸrnak. In response to his enquiries, the captain had been told that Abdulvahap was not there and that Aktuğ was to stop looking for Abdulvahap. Aktuğ had then contacted a major in Iğdĸr. The following day, the major had said to Aktuğ that Abdulvahap was not in Şĸrnak and told him not to have anything to do with Abdulvahap. Aktuğ had told the applicant that he was surprised by the answers he had received and that he felt he had lost face.
136.Whilst in Güçlükonak the applicant had also spoken with Erdoğan and Nas who had told him that they had been with Abdulvahap for twenty-five days. They had told the investigator in Şĸrnak that Abdulvahap was their relative and had asked that nothing be done to Abdulvahap. The investigator had then told Erdoğan and Nas that they should get Abdulvahap to make a statement but Abdulvahap had said that he did not know anything. Erdoğan and Nas had also told the applicant that they had given Abdulvahap cigarettes and that they had shaved him. They had not, however, indulged Abdulvahap's friend because the friend had been a stranger.
137.He had subsequently gone back to the Silopi public prosecutor's office and had named Erdoğan and Nas as his witnesses upon which the prosecutor had taken his statement and had told him to return in ten days. After ten days the prosecutor had said to him that the papers had not yet come back and that he would be contacted when Erdoğan and Nas had come forward. At that occasion, he had seen how the clerk had shown the public prosecutor a large volume that looked like a log book. They had hidden it from him and he had become suspicious. Not long after this he and his family had moved to Adana.
138.He had also spoken to Selim Sadak, a Member of Parliament. Selim Sadak had put questions to the Foreign Minister but had not obtained any information. The applicant had gone to Diyarbakĸr and had filed a petition with the prosecutor's office. A prosecutor had said to him that his son had not been brought to the prison there and that Abdulvahap's name was not known at the prosecutor's office.
139.He had never tried to get in touch with Hacĸ Kamil as he did not know whether he could trust this man. He had heard that Hacĸ Kamil had an interview with the authorities every week or every month.
140.In the spring of 1995 he had gone to Damlabaşĸ village in Güçlükonak to speak to Sadĸk Erdoğan. Erdoğan told him that he had been to court in Şĸrnak where he had been asked about Abdulvahap. Erdoğan had confirmed having seen Abdulvahap. Then the man asking questions had risen in anger and had said, "Look here, you! I am a full investigator, a man of authority here! I have not seen this man. Why would you have seen him?" This had scared Erdoğan. Afterwards his friends had said to Erdoğan that he had been silly to say he had seen Abdulvahap and that, as a result, he would be "gone". Erdoğan had become so frightened that at the second court he had changed his statement and said that he had seen a man who looked similar but that he did not know if it was Abdulvahap or not.
141.When the applicant was informed about the official statements made by Erdoğan and Nas, to the effect that they had not seen Abdulvahap in custody, he was not surprised since Erdoğan had already told him that he had changed his statement. As regards Nas' statement that Abdulvahap had had relations with the PKK he said that he did not know whether there was any truth in that.
142.The two statements made by Bahattin Aktuğ were read out to the applicant who reacted by calling them a lie. He stressed that he and his wife had spent two nights in Aktuğ's home. In respect of the statements made by Kamil Bilgeç and his son Yusuf Bilgeç he said that he did not know those men but that the people in the villages, people from Bilgeç's clan, had said that Abdulvahap had been apprehended together with the muhtar and the muhtar's son.
143.He had never received a decision not to prosecute.
144.Previously, in the winter of 1991, his eldest son Tevfik had been arrested in Cizre. He had made no further enquiries after the public prosecutor had told him that there was an ongoing investigation and that Tevfik would be released. However, after eleven days a number of policemen had come to his house and had taken him to Şĸrnak where he had attended the funeral of Tevfik who had died as a result of torture.
145.The Agent of the Government stated that medical and forensic examinations had revealed that Tevfik Timurtaş had had asthma and had died of associated heart failure.
Bahattin Aktuğ
146.Bahattin Aktuğ said that he was born in 1948. He had been the elected mayor of Güçlükonak district since 1990. He knew the applicant who was a member of his clan, as was the applicant's wife. The applicant had moved from Güçlükonak to Cizre about thirty-five to forty years ago but would visit the Güçlükonak area with his wife once, twice or three times a year. On those occasions the applicant would always come to see him, sometimes just to drink some tea, sometimes to stay the night. Although they would ask each other how their families were, he did not know how many children the applicant had or what they were called. He had heard that one of the applicant's sons had died in custody but the applicant had not told him how this son had died. The applicant had said that another son had gone to work in İstanbul but was not sending any money. This meant that that son had gone to the mountains to join the PKK. He could not remember when the applicant had told him this.
147.The applicant had not asked him for help in finding his son and they had never discussed this matter. He could not remember ever having spoken to the applicant by telephone. Neither had the applicant and his wife come to him in Güçlükonak to talk about Abdulvahap's detention. If the applicant had told him about his son's disappearance, he would have offered his assistance. It was normal for him to help people from his area if they were in detention or in hospital for instance.
148.He had found out that the applicant had given his name as a witness when he had been asked to make statements about the matter. He had first given a statement to gendarmes in Güçlükonak on 13 August 1995. When it was put to him that according to the text of that statement he had told the gendarmes that he knew neither the applicant nor the applicant's son he said that it must have been written down wrongly as he had only said that he did not know Abdulvahap Timurtaş. In respect of his statement that he had not met the applicant or Abdulvahap in any circumstances, he said that he had meant that he had not met Abdulvahap and that if he had been asked about the applicant he would have said that he did know him as the applicant was a member of his clan.
149.Asked why the applicant would have said anything to affect him adversely, as Aktuğ had claimed in his statement of 13 August 1995, he replied that the applicant must have thought it would look better if he named a mayor as a witness.
150.It was true that when he had made the second statement on 22 April 1996 he had been aware that Abdulvahap Timurtaş was the name of the applicant's son, yet he still did not know Abdulvahap. He had only met the eldest of the applicant's sons and that had been ten years ago.
151.He was not quite clear as to when had been the last time that he had seen the applicant, it might have been two years ago. He said that the applicant had not been to visit Güçlükonak since he had become aware that the applicant had named him as a witness. If he had seen the applicant after that time he would have asked the applicant why the latter had given his name to the authorities.
152.He knew Sadĸk Erdoğan who was from the same village. Whenever Erdoğan was in the area they would often see each other. However, he had not seen Erdoğan for six months or so as the latter was serving a prison sentence. He also knew Nimet Nas who was originally from the same village as the applicant. He had never discussed the disappearance of Abdulvahap Timurtaş with either Erdoğan or Nas.
153.It was correct that Erdoğan and Nas were confessors. However, this did not mean that they had to work with the gendarmes or at the gendarmerie. They had simply confessed and served their sentences.
154.Asked whether he remembered a time in the autumn of 1993 when the telephone numbers all over Turkey were being changed and for about two weeks it had been impossible to ring, for example, Cizre, he said that he did remember and that all telephone numbers had gone up to ten digits. The Agent of the Government added in this respect that although telephone numbers had indeed changed, this had occurred without communications having been lost.
Azmi Gündoğan
155.Azmi Gündoğan stated that he was born in 1955. He had been commander of the Silopi district gendarmerie for one year until 4 August 1993. Major Hüsam Durmuş had taken over from him. He had not heard of the alleged taking into custody of Abdulvahap Timurtaş on 14 August 1993 until he had been summoned to the hearing.
156.During his time in Silopi there had been many terrorist incidents. The area was situated close to Northern Iraq and the terrain was mountainous, allowing terrorists to take shelter and to disturb the villages.
157.At the Silopi district gendarmerie headquarters there had been a list of people against whom there were allegations of being involved with PKK activities, but as he could not remember who had been on that list he did not know whether Abdulvahap Timurtaş' name had figured on it.
158.Anybody taken into custody at the district gendarmerie headquarters would be entered into the custody ledger. Moreover, the public prosecutor would be informed. Apart from the name of the person taken into custody, any personal belongings brought in by that person would also be recorded.
159.He explained that as commander of a district gendarmerie headquarters he would report to the provincial gendarmerie headquarters in Şĸrnak. The Şĸrnak brigade was a different unit. Moreover, the provincial gendarmerie headquarters had a unit responsible for the legal, military and administrative duties in the province. That unit was called the provincial centre gendarmerie headquarters. This unit also had places where people could be detained.
160.Detainees would be interrogated in the district where the alleged offence had been committed. However, it would be possible for a person who had been arrested by Silopi district gendarmerie headquarters to be transferred to Şĸrnak provincial gendarmerie headquarters if the offences covered a larger area. Although detainees would sometimes be taken to a specific place in order to identify a location, they would never be taken round a number of villages in order to see if the villagers recognised them.
161.There had been no confessors working alongside him in Silopi. From time to time a confessor, who had left the organisation and who had mentioned certain places in his statement, would come to show them those locations.
162.Before going on an operation he would prepare a report in which he stated what activity would be carried out on which date and in what area. Afterwards, the results of the operation would be written up in a report according to a printed form. After 4 August 1993 it would most probably have been Hüsam Durmuş who would have signed such operation reports.
Erol Tuna
163.Erol Tuna said that he was born in 1953. Between 1992 and 31 July 1994 he had been commander of Şĸrnak provincial centre gendarmerie headquarters which meant that he was in charge of the gendarmerie in the central district of Şĸrnak province. Just like the Silopi district gendarmerie headquarters, he had reported to the Şĸrnak provincial gendarmerie headquarters.
164.There had been a security room at Şĸrnak provincial centre gendarmerie headquarters where people could be kept in custody. Anybody detained there would be entered into the custody record. If the provincial gendarmerie headquarters wished to put a person into custody for a short time, they would make use of the detention facilities of the provincial centre gendarmerie headquarters, both organisations being based in the same building. The provincial gendarmerie headquarters thus did not have a separate security room custody ledger, leaving the custody procedures to be carried out by the district gendarmerie headquarters where the person concerned had been taken into custody. However, if the provincial gendarmerie headquarters wished to detain a person for a longer period of time for interrogation they had a separate section for this. Custody for a short time was for forty-eight hours, whereas a longer period would be the period of thirty days provided for in the legislation concerning the state of emergency for crimes falling under the jurisdiction of the State Security Court. He assumed that persons detained at this special section of the provincial gendarmerie headquarters would be entered in a custody ledger.
165.He had never heard of an incident on 14 August 1993 when Abdulvahap Timurtaş was said to have been apprehended in Yeniköy and taken into custody. Yeniköy did not fall within his area of responsibility. Neither did he remember having kept Abdulvahap Timurtaş in custody at his headquarters.
166.A procedure whereby a detainee would be taken to eight or nine villages in order for that detainee to be shown to the villagers and muhtars did not exist. A person would only be taken into custody if there existed some evidence which necessitated the detention. The relatives of a detainee would be informed that that person had been taken into custody but that information would not be passed on to a person who would telephone and ask whether a certain individual had been taken into custody.
167.He had heard of the name of Bahattin Aktuğ and knew that Aktuğ was the mayor of Güçlükonak district. However, he had never met Aktuğ and Aktuğ had never telephoned him to ask about the detention of Abdulvahap Timurtaş.
168.In accordance with certain laws, confessors could be used for location description, identification of individuals and to show places such as warehouses and shelters. Confessors would not be attached to a district gendarmerie headquarters.
169.He did not understand what was meant by "Şĸrnak gendarmerie brigade" but he assumed that term referred to the provincial gendarmerie headquarters. There had also been a border brigade in Şĸrnak but that had not been specifically formed to interrogate suspected PKK-members. In fact, the brigade had been there before the PKK terror started. The brigade had been formed to protect the borders, but it was also included in the chain of command in connection with terrorist incidents.
Hüsam Durmuş
170.Hüsam Durmuş stated that he was born in 1959. He had been the commander of Silopi district gendarmerie headquarters between 17 July 1993 and 1995. When he had taken up his duties in Silopi the general situation in the area was influenced by the authority vacuum in Northern Iraq and there had been regular clashes with the PKK.
171.He had first met the applicant in September or October 1993, he could not remember the exact date. The applicant had given him a photograph of his son, Abdulvahap Timurtaş, who, according to the applicant, had been taken into custody at Yeniköy. He had checked the custody records as well as the correspondence with the public prosecutor which had been conducted in mid-August 1993. He had told the applicant that there had been no operations in Yeniköy during that period and that nobody had been detained as a result of an operation. He had shown the applicant the custody records.
172.Asked whether he was certain that there had been no operations near Yeniköy around 14 August 1993, he said that there had been no operations in Yeniköy as such but that there had been operations around the foothills of the Cudi mountain which was near Yeniköy. Confronted with İsmail Birlik's statement to the effect that four to five months prior to 26 January 1994 someone was said to have been detained near Yeniköy, he replied that a person had been apprehended in Dader hamlet near Yeniköy but this had been towards the end of the autumn, around November 1993.
173.He had not told the applicant that on 14 August 1993 two area leaders of an illegal organisation had been caught in the Silopi region and sent to Diyarbakĸr a week later whose names had been different from that of the applicant's son. Whether such an arrest had in fact taken place could be checked in the records.
174.None of the PKK terrorists caught in his jurisdiction had carried authentic identity cards and it was correct that the gendarmerie had sometimes encountered difficulties in establishing a detainee's true identity. Asked whether it would have been possible for Abdulvahap to have been taken into custody in Silopi under a false or assumed name, he said that photographs were also taken of those detained and that he had compared, together with the central station commander, the photograph of Abdulvahap given to him by the applicant with the photographs featuring in the custody ledger.
175.He had read about the alleged apprehension, detention and disappearance of Abdulvahap Timurtaş in the Özgür Gündem newspaper before the applicant had come to see him. Already at that stage he had searched the records. He had obtained the impression that Abdulvahap was a member of the PKK since the newspaper article had accused the gendarmerie. The PKK had claimed that Abdulvahap had been one of its members and that citizens were being massacred by the gendarmerie. However, Abdulvahap's name had not featured on the list at Silopi district gendarmerie of persons suspected of PKK activities. He was not familiar with the information provided by Nimet Nas in the statement of 5 May 1995 to the effect that Abdulvahap was a PKK militant.
176.It would not be unusual for a person detained on suspicion of involvement with the PKK to be shown round a number of villages in order to obtain more information concerning the suspect's relations with certain villages and in order to find out about the PKK's activities. The village muhtars were also given duties in this respect - they would be invited to state their opinions. Detainees would be shown around since the PKK always used code names for their members and for the people in villages and hamlets who provided them with logistic support. Especially if a terrorist had a foreign nationality or was from another city in Turkey they would try to find out the identity by confronting the detainee with people in the villages. Although he could not remember exactly and it could be checked in the records, it seemed likely to him that he had also taken Syrian or Iraqi nationals into custody.
177.The applicant had come to see him several times. During one of the applicant's later visits, presumably around December 1993, he had told the applicant to look for his son in the mountains. He had said this since the applicant had mentioned that the muhtar of Yeniköy had allegedly been apprehended together with Abdulvahap. He had made a connection with an incident which had taken place towards the end of 1993 in which that muhtar had been kidnapped for twenty to twenty-five days by the PKK. The muhtar had told him that the PKK had wanted to get the tax from the cotton harvest and they had wanted the muhtar to collect these taxes. Also, at that time, one of the muhtar's sons had been serving a prison sentence for having provided logistical support to the PKK. He could not remember the name of this son, but the son had been apprehended before he had taken up his duties in Silopi, probably around April or May 1993. During that incident the muhtar himself had also been detained but the muhtar had been released by the court.
178.He had not taken a statement from the applicant at any time. He explained that it was his gendarmerie headquarters and therefore he himself who was being accused and it would thus have been inappropriate for him to have taken the applicant's statement. He had told the applicant to lodge a petition with the public prosecutor. He had also not registered Abdulvahap as a missing person. As Abdulvahap was from Cizre he had told the applicant to apply to the authorities there so that the procedures could be followed there.
179.He had never been telephoned by a mayor called Aktuğ and asked about the alleged detention of Abdulvahap Timurtaş. He did know, however, that Bahattin Aktuğ was the mayor of Güçlükonak.
180.As far as he remembered he had replied to a letter from the public prosecutor asking whether Abdulvahap Timurtaş had been taken into custody at Silopi district gendarmerie headquarters. They had gone through the records one by one and, thinking that they had perhaps omitted to enter Abdulvahap into the custody ledger, they had also checked all the correspondence with the public prosecutor but they had not found anything. He confirmed that he had signed the letter of 20 October 1993 informing the public prosecutor that Abdulvahap had not been apprehended by or detained at Silopi district gendarmerie headquarters (para. 49). He also acknowledged that he had written a letter to the public prosecutor relating to the securing of the presence of İsmail Birlik (para. 52).
181.Persons taken into custody at the district gendarmerie headquarters would be entered into the custody ledger by the central station commander. The written requests to the public prosecutor for a detention period would always be signed by him, Durmuş. Moreover, the area where temporarily detained people were kept was next to the main entrance. It was thus not possible that anybody could have been taken into custody without his knowledge.
182.Until 1994 there had been a border brigade in Şĸrnak. Later, this had begun to operate as a border division. Whereas the gendarmerie headquarters in the districts served in order to protect the lives and property of the citizens, the duty of the border brigade was to safeguard the borders with Syria and Iraq to prevent smuggling. However, PKK terrorism, with its links with Iran, Iraq and Syria, threatened both the lives and property of the citizens as well as the security of the border. Therefore, the border brigade, whose powers were far superior to that of a district gendarmerie headquarters, had become a co-ordinating unit and the district gendarmerie headquarters had begun working under its control.
183.The border brigade in Şĸrnak had its own facilities for temporary detention. He assumed that the border brigade also had its own custody records even though it was obliged to inform the district gendarmerie headquarters if it was detaining somebody since the request to the public prosecutor for a detention period would be made through the district gendarmerie headquarters.
184.A detainee of Syrian nationality apprehended by a district gendarmerie headquarters would not be transferred to the border brigade. For every detained person, the district gendarmerie headquarters would prepare the investigation documents and inform the public prosecutor to request a detention period. Interrogations would not be carried out at the district gendarmerie headquarters but at the special investigation/interrogation unit at the provincial gendarmerie headquarters. That unit did not have its own custody record. The records of a detainee transferred there from the district gendarmerie headquarters would be sent to the provincial centre gendarmerie headquarters. The detention area at the interrogation unit and the detention area at the provincial centre gendarmerie headquarters were the same place.
185.Before going on an operation, the district gendarmerie headquarters would record a plan on paper. Afterwards, another report would be drawn up. If documents or weapons had been seized or people had been apprehended an already prepared form would be filled out. Shown the photocopy of the post-operation report dated 15 August 1993 he remarked that the signature on that document looked like his but that this matter could be investigated. (At this point the Agent of the Government submitted that the witness ought not to be expected to answer questions about this document since he did not accept that the signature was authentic. The Delegates decided that the witness should answer the questions subject to the reservation that he did not necessarily accept that it was his signature.)
186.The document looked like the kind of report which would be drawn up after an incident for internal use. Although according to the document two persons had been apprehended, there had been no corresponding application for a detention period to the public prosecutor. He thought it very odd that this document would turn up at a public prosecutor's office when no permission for detaining the persons mentioned in the document had been obtained. Such permission would in any event have been requested from the public prosecutor at Silopi and not at Cizre. Moreover, there had been no initial report concerning the planning of the operation. The original of a report of this kind would remain at Silopi district gendarmerie headquarters. However, the document could have been drawn up in this format as part of a conspiracy. It would not have been difficult to produce a document like this for a soldier who had joined the PKK after having been discharged from military service, for example.
187.He maintained that the event described in the post-operation report had not occurred.
Sedat Erbaş
188.Sedat Erbaş said that he was born in 1969. He had been public prosecutor at Silopi from 4 July 1994 until October 1996. He had worked with Ahmet Yavuz until the latter left in August or September 1995.
189.He had never met the applicant. When the applicant had gone to the prosecutor's office to lodge a petition, he would have approached either Yavuz or Recai Köylü, the latter having been prosecutor in Silopi until July 1994. He had begun investigating the file upon taking up his duties. He had written warrants in order to find the witnesses named in the file. Delays had occurred due to the conditions prevailing in the South-East. It had only been possible to reach the mayor of Güçlükonak after more than six months. There had been no judicial organisation based in Güçlükonak district; in terms of judicial organisation Güçlükonak was a part of Eruh district in Siirt province. Thus, the mayor had had to travel to that district by helicopter in order to give a statement. One of the other witnesses had been in prison and despite his efforts it had not been possible to locate a third witness until later.
190.Letters had been sent to Silopi police headquarters as well as Silopi district gendarmerie headquarters asking whether Abdulvahap Timurtaş had been detained by them. The replies had been negative.
191.He had never seen the post-operation report of 15 August 1993 before. If such a document had been in the file a different investigation could have been carried out. He had seen similar documents; the gendarmerie would usually send such documents to the public prosecutor's office when people had been taken into custody. Despite the fact that there was a struggle against terrorism being waged in the region, the security forces were subordinate to the public prosecutor and the prosecutor had to be informed if an incident had occurred. In military matters the Silopi district gendarmerie headquarters fell under the command of the border brigade in Şĸrnak but the authority over judicial matters belonged to the public prosecutor in Silopi.
192.In July 1995 a decision of lack of jurisdiction had been taken by his colleague Yavuz. He had been on leave at the time.
193.It was not lawful in Turkey for a person to be detained without the authority of the prosecutor and without having been entered into a custody ledger. In order to ensure that those provisions were respected, prosecutors would make unexpected, on the spot visits to police headquarters and district gendarmerie headquarters. During those visits the detention areas would be checked. In case of unnotified detention or ill-treatment during detention the necessary measures against the persons in charge would be taken. During his period in Silopi he had carried out similar procedures. The frequency of these visits varied from once a week to once every twenty days.
Witnesses who did not appear
194.The Commission's Delegates had also called as witnesses: Kamil Bilgeç (muhtar of Yeniköy), İsmail Birlik (muhtar of Esenli), Özden Kardeş (Şĸrnak public prosecutor), Sadĸk Erdoğan and Nimet Nas. At the hearing in Ankara, the Agent of the Government informed the Delegates that Kamil Bilgeç had not been seen since 28 November 1995 and that he had allegedly been kidnapped by the PKK. They later submitted statements made to the authorities in Silopi by a number of Bilgeç's relatives and acquaintances on 29 and 30 November 1995. According to some of these statements Kamil Bilgeç had twice before been kidnapped by the PKK while he had still been living in Yeniköy.
195.After the hearing the Government submitted two statements made by İsmail Birlik explaining why he had failed to attend the hearing. Both statements were made on 22 January 1997, one before gendarmerie officers and one before officers of the anti-terrorist branch. The contents of the second statement have been summarised in para. 79 above.
196.The Government were also requested to provide an explanation in writing for the absence of Özden Kardeş from the hearing. By letter of 7 October 1997 they submitted a statement dated 21 November 1996 made by Kardeş in which he declared that he had nothing to add to the information contained in the file and that for this reason he would not be able to participate in the hearing on 21 November 1996.
197.During the hearing the Delegates were informed that both Sadĸk Erdoğan and Nimet Nas were in prison in Diyarbakĸr. On 22 November 1996 a member of the Commission's Secretariat spoke to both of them by telephone. Nimet Nas said that he had received the summons for the hearing but that he could not come as he was feeling unwell and feared for his safety. He also stated that if he was summoned to Diyarbakĸr he would be prepared to come and testify. He would have served his sentence by 12 December 1996 but was prepared to leave his address with the prison authorities. Sadĸk Erdoğan, on the other hand, stated that he had not received the summons for the hearing. His release date was 4 February 1997 and he would also leave his address with the prison authorities.
C.Relevant domestic law and practice
198.In this section the Commission has incorporated relevant extracts derived from, inter alia, its summary of the relevant domestic law and practice as submitted by the parties in the case of Aksoy v. Turkey (No. 21987/93, Comm. Report 23.10.95).
199.Article 125 of the Turkish Constitution provides as follows:
"İdarenin her türlü eylem ve işlemlerine karşĸ yargĸ yolu açĸktĸr ...
İdare kendi eylem ve işlemlerinden doğan zararĸ ödemekle yükümlüdür."
[Translation]
"All acts or decisions of the Administration are subject to judicial review ...
The Administration shall be liable for damage caused by its own acts and measures."
200.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.
201.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 subject someone to torture or ill-treatment (Articles 243 and 245).
202.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.
203.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.
204.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.
205.Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.
206.The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme. Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces.
D.Relevant international material
207.The phenomenon of forced or involuntary disappearance has been the concern of a number of other international judicial and human rights investigatory bodies. Extracts and summaries of materials from the Inter-American system and the United Nations were included in Appendix II to the Report in the case of Kurt v. Turkey (Comm. Report 5.12.96, Eur. Court HR, judgment of 25 May 1998, to be published in Reports 1998).
208.As regards deaths in custody the applicant refers to material submitted in the case of Kurt v. Turkey (op. cit.), including a list from the Human Rights Foundation of Turkey (Deaths in Detention places or Prisons, File on Torture, 12 September 1980-12 September 1995, HRFT Publications 5, Ankara March 1996, pp. 64-68) and the reports of the United Nations Special Rapporteur on Extra-Judicial, Summary and Arbitrary Executions.
209.In relation to the occurrence of torture in pre-trial detention in Turkey the applicant has made reference to reports of intergovernmental and nongovernmental organisations submitted in the case of Aksoy v. Turkey (Eur. Court HR, judgment of 18 December 1996, Reports 1996, p. 2274), and to the European Committee for the Prevention of Torture's Public Statement on Turkey issued on 6 December 1996.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
210.The Commission has declared admissible the applicant's complaints:
- that his son, Abdulvahap Timurtaş, who has disappeared, has been taken into unacknowledged detention and that his right to life was not adequately protected;
- that his son has been tortured and subjected to inhuman and degrading treatment;
- that his son has been arbitrarily detained without application of the requisite procedural safeguards;
- that his son's disappearance caused the applicant such anguish as to amount to inhuman and degrading treatment;
- that there is no remedy available in respect of these matters;
- that these matters disclose discrimination; and
- that these matters disclose restrictions on Convention rights imposed for ulterior purposes.
211.In addition, in the final observations on the merits of the application, the applicant complains that Turkey has hindered the exercise of his right to individual petition.
B.Points at issue
212.The points at issue in the present case are as follows:
- whether there has been a violation of Article 2 of the Convention in respect of the alleged disappearance of the applicant's son;
- whether there has been a violation of Article 3 of the Convention in respect of the applicant's son;
- whether there has been a violation of Article 5 of the Convention in respect of the alleged unacknowledged detention of the applicant's son;
- whether there has been a violation of Article 3 of the Convention in respect of the applicant;
- whether there has been a violation of Article 13 of the Convention by reason of an alleged lack of an effective remedy before a national authority in respect of the above complaints;
- whether there has been a violation of Article 14 of the Convention in conjunction with Articles 2, 3 and 5 of the Convention;
- whether there has been a violation of Article 18 of the Convention; and
- whether there has been a failure by the Turkish Government to comply with their obligations under Article 25 of the Convention.
C.The evaluation of the evidence
213.Before dealing with the applicant's allegations under specific Articles of the Convention, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:
i. There have been no findings of fact made by domestic courts as regards the subject-matter of the applicant's complaints. The Commission has accordingly based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proceedings; in the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of "beyond reasonable doubt" as adopted by the Court. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).
ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters: it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates. In relation to both written and oral evidence, the Commission has been aware that the cultural context of the applicant and a number of the witnesses has rendered inevitable a certain imprecision with regard to dates in particular and other details and does not consider that this by itself reflects on the credibility of the testimony;
iii.In a case where there are contradictory and conflicting factual accounts of events, the Commission particularly regrets the absence of a thorough domestic judicial examination or other detailed independent investigation of the events in question. It is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while eleven witnesses were summoned to appear, only six, including the applicant, in fact gave evidence before the Commission's Delegates. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant testimony. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.
1.Concerning the alleged apprehension and detention of the applicant's son Abdulvahap Timurtaş
214.The Commission notes in the first place that it has not been presented with any eye-witness evidence of the alleged apprehension of the applicant's son by gendarmes attached to Silopi district gendarmerie headquarters on 14 August 1993 and his subsequent detention. The applicant himself stated that he had been informed of his son's apprehension through an anonymous telephone call. The people whom he said had provided him with information about Abdulvahap's whereabouts - Bahattin Aktuğ, Sadĸk Erdoğan and Nimet Nas - denied any knowledge of this in their various statements. Furthermore, the apprehension and detention have throughout been denied by the authorities and are not recorded in any of the custody records of which copies have been provided to the Commission.
215.On the other hand, the photocopied post-operation report with reference number 0623-994-93/6038 submitted by his representatives confirms in a detailed manner the applicant's allegations, setting out as it does the apprehension on suspicion of being a PKK area-leader of Abdulvahap Timurtaş, together with a person of Syrian nationality, effected between the villages of Yeniköy and Esenli on 14 August 1993. The Commission considers that, if authentic, this document is of crucial importance.
216.In this respect the Commission observes in the first place that at the hearing before its Delegates Hüsam Durmuş, the alleged author of the report, stated that the signature on the document looked like his (para. 185). It is also not in dispute that the style and format of the report correspond to the way in which such reports are usually drawn up. However, according to the Government, the fact that the original of the report, despite a thorough search, could not be found casts doubt on its authenticity (para. 105).
217.Although it is well aware that it should treat with caution any document purporting to be official and bearing out an applicant's allegations where only a photocopy, the provenance of which is unclear, has been provided, the Commission considers nevertheless that in the circumstances of the present case the Government's argument as to why the report's authenticity appears in doubt is insufficient and wholly unconvincing. This becomes even more apparent when account is taken of the fact that it would have been relatively straightforward for the Government to disprove the report's authenticity. After all, it follows from the system of reference numbers used by the gendarmerie (para. 106) that, if the submitted report is a forgery, there must be another document which bears a reference number ending in '93/6038'. The Commission observes in this regard that the case-file contains a letter written by Hüsam Durmuş on 20 October 1993 with a reference number ending in '93/7502' (para. 49) from which it may be concluded that at least 7,502 and thus more than 6,038 documents were processed at the Silopi district gendarmerie headquarters in 1993. Therefore, if the report submitted by the applicant is a forgery as the Government contend, it was incumbent on them pursuant to Article 28 para. 1 (a) of the Convention to produce the real document that was the 6,038th to be processed in 1993. In this respect the Commission cannot accept that it is denied access to that document for the reason that it has been classified as secret (para. 105).
218.As to why the post-operation report would have been found in the files of the public prosecutor in Cizre, who was not among the addressees indicated at the top of the document, the Commission notes that the material before it contains indications to the effect that the authorities in Cizre might well have been apprised of Abdulvahap's fate. The Commission observes in the first place that Hüsam Durmuş told the applicant to report his son's disappearance to the authorities in Cizre as that was where Abdulvahap was from and the procedures could be followed there (para. 178). Also, the applicant has submitted copies of two petitions which he said he lodged with the Cizre public prosecutor and the Cizre central gendarmerie headquarters respectively (paras. 94, 95). In addition, the applicant told the Delegates that he was informed by the Şĸrnak brigade that the reply to his enquiries would be sent to the political branch in Cizre (para. 133). The fact, therefore, that the original of the submitted document was said to have been found in Cizre is not, in itself, sufficient to establish that it is a forgery.
219.On the basis of the foregoing considerations the Commission accepts that the document submitted is indeed a photocopy of an authentic post-operation report from which it appears that Abdulvahap Timurtaş was apprehended on 14 August 1993.
220.Nevertheless, the Commission considers that the other material before it also requires a careful and cautious examination before any definitive conclusions can be drawn from the above.
221.As to the applicant's account in general, the Commission observes that his oral testimony was largely consistent with the statements he had given to both the Human Rights Association and various authorities, notwithstanding the fact that his account of the dates on which he went to these authorities to enquire about his son was somewhat imprecise. Moreover, the Commission's Delegates found him credible and convincing.
222.Certain aspects of the applicant's account were corroborated by other witnesses. Hüsam Durmuş, the commander of the Silopi district gendarmerie headquarters at the relevant time, acknowledged that the applicant had brought him a photograph of his son and that he had advised the applicant to look for his son in the mountains (paras. 171, 177). He also confirmed that detainees suspected of PKK-related offences could be shown around villages or be presented to muhtars in order for them to be identified (para. 176), although both Azmi Gündoğan (para. 160) and Erol Tuna (para. 166) denied that this practice existed.
223.The Commission further observes that Abdulvahap's alleged involvement with the PKK may have provided a reason for his apprehension. In this respect it notes that in his two statements to public prosecutors, Nimet Nas said that Abdulvahap was a prominent PKK member (paras. 82, 83). More importantly, the decision not to prosecute states that according to a letter dated 28 July 1995 from the Şĸrnak police headquarters the applicant's son was wanted by the Prevention of Terrorism branch for having carried out activities on behalf of the PKK terrorist organisation (para. 112).
224.As regards the applicant's claim that Sadĸk Erdoğan and Nimet Nas saw his son in detention in Şĸrnak, the Commission notes the following. From information submitted by the Government it appears that both Erdoğan and Nas were serving a prison sentence in August/September 1993. According to copies of the custody records of the Şĸrnak interrogation unit, Erdoğan was detained there from 3 April 1993 to 1 May 1993 and Nas from 16 June 1992 to 16 July 1992 (paras. 122, 124). Erdoğan is then said to have been detained at Şĸrnak prison until 26 May 1993 when he was transferred to Diyarbakĸr E-type prison. He was released from that prison on 21 March 1994 (para. 122). Nas is said to have been sentenced on 7 May 1993 and to have been released from Diyarbakĸr E-type prison on 15 December 1996 (para. 124).
225.The Commission notes, however, that it has not been provided with information as to the exact whereabouts of Erdoğan and Nas in August/September 1993. Despite an explicit request the Government have failed to produce the records from Diyarbakĸr E-type prison concerning Erdoğan's and Nas' detention there (paras. 27, 125). The Commission considers that it cannot automatically be assumed that Erdoğan and Nas were detained at the E-type prison throughout the time they were serving their sentence since the evidence would appear to suggest that the circumstances under which confessors serve their sentence enables them to leave prison from time to time. In this respect the Commission notes, for example, that Erdoğan said that he was a confessor and a temporary village guard at the same time (para. 85). Azmi Gündoğan told the Delegates that confessors would be used to identify certain locations (para. 161). Erol Tuna added that in accordance with certain laws, confessors could be used for location description, identification of individuals and to show places such as warehouses and shelters (para. 168).
226.The fact that Erdoğan and Nas may have been thus employed to assist the security forces is, at least as far as the latter is concerned, borne out by a letter from the Şĸrnak provincial gendarmerie headquarters informing the Şĸrnak public prosecutor that they had been unable to summon Nas as he was participating in operations in Güçlükonak (para. 51). This letter was written on 29 December 1993, i.e. at a time when Nas was said to be serving his prison sentence.
227.The Commission accordingly concludes that the information relating to their detention is not sufficient to establish that Erdoğan and Nas were not in Şĸrnak or subsequently in Güçlükonak at the time the applicant alleged they were there. Although not conclusive, the Commission notes in addition that neither man, when asked by the authorities about his knowledge of Abdulvahap's alleged detention in Şĸrnak in August 1993, said that he himself had not been in Şĸrnak at that time (paras. 82-86).
228.The fact remains that in their statements to the authorities both men denied having seen Abdulvahap in detention. The question arises, however, whether they might not have compromised their position with the authorities if they had admitted looking after a PKK-suspect. In fact, according to the applicant's account of a conversation he had had with Erdoğan the latter had been warned by friends not to admit having seen Abdulvahap after his first statement in which he confirmed that he had seen Abdulvahap had been met with anger and incredulity. Erdoğan had subsequently, on the second occasion that he was asked about this matter by the authorities, denied having seen Abdulvahap (para. 140). The Commission finds it significant that the applicant related this conversation to the Delegates before he was confronted with the statements in which Erdoğan was indeed said to have denied any knowledge of Abdulvahap's fate (para. 141).
229.If the applicant's account is correct, and Erdoğan told the authorities on 15 August 1995 that he had seen Abdulvahap, it means that the written record of that statement does not reflect what he actually said. The possibility that this is indeed the case seems strengthened by a startling contradiction contained in the two statements: in the first one Erdoğan is stated as saying that he had never even heard of the name Abdulvahap Timurtaş whereas in the second statement he said that he did know this name because Abdulvahap's mother had mentioned it when she visited Damlabaşĸ. The Commission, considering it unlikely that such a contradiction would appear in two truthful statements, finds that it detracts substantially from the credibility of the statements. Bearing in mind the applicant's account, it does not appear altogether implausible that the fact that Erdoğan told the gendarmes that he had seen Abdulvahap did not suit them and they wrote down something else.
230.As noted above, Bahattin Aktuğ also denied having provided the applicant with information concerning Abdulvahap's detention. He did so before the Delegates and in two statements to the authorities. The Commission notes that in his first statement Aktuğ denied all knowledge of the applicant and his son (para. 87). He told the Delegates that he had not said that he did not know the applicant and that this part of his statement must have been recorded wrongly (para. 148). Even assuming that to be the case, the Commission observes that Aktuğ was unable to offer a convincing explanation as to why he had told the gendarmes on 13 August 1995 that the applicant might have wished to affect him adversely. It can find nothing in either the applicant's or Aktuğ's own account of their relation to suggest that there was ever any bad feeling between them. Indeed, given that the applicant used to visit Aktuğ several times a year on which occasions they would talk about their children, including the death of the applicant's son Tevfik, it seems rather surprising that the applicant would not have mentioned the disappearance of his son Abdulvahap to Aktuğ. Aktuğ's evidence to the Delegates thus appeared less than frank.
231.For the above reasons the Commission considers it unsafe to rely on the statements made by Sadĸk Erdoğan, Nimet Nas and Bahattin Aktuğ.
232.As regards the statements taken from nine villagers (para. 89) the Commission finds that they cannot serve to establish that Abdulvahap was not apprehended on 14 August 1993. It notes that the villagers were asked what, if anything, they knew about the apprehension of Abdulvahap Timurtaş although it had at no time been suggested by the applicant that his son, who was from Cizre originally, was known in the area around Yeniköy. The fact that the villagers did not know Abdulvahap and hence knew nothing about his alleged apprehension by no means excludes the possibility that a person unknown to them had been apprehended.
233.The same applies to the statement made by Yusuf Bilgeç, the son of the Yeniköy muhtar Kamil Bilgeç, on 11 March 1996 (para. 90). Although it does not appear from the wording of this statement what questions were put to him, the public prosecutor who took the statement concluded that it was not necessary to question Yusuf Bilgeç in detail in view of the fact that Bilgeç did not know Abdulvahap (or Abdullah as he is called in the statement) Timurtaş.
234.In his statements of 26 January 1994 and 13 August 1995 Kamil Bilgeç said that he did not know and had never seen Abdulvahap Timurtaş (paras. 80, 81). Even though that in itself does not exclude the possibility that he did see a person whom he did not know was called Abdulvahap Timurtaş - bearing in mind also that according to the post-operation report Abdulvahap used a code name -, Kamil Bilgeç also said on 26 January 1994 that he knew nothing about two persons having been apprehended near his village of Yeniköy approximately four months previously. The mayor of Esenli, İsmail Birlik, however, said on the same day that he had heard of a person having been taken into custody near Yeniköy four to five months previously (para. 78) which casts doubt on the veracity of Kamil Bilgeç's account.
235.Finally, the Commission has examined the copies of all the custody records with which it has been provided (paras. 116-121) even though it would appear that those of the Silopi district gendarmerie headquarters and the Şĸrnak interrogation unit are of particular relevance in this case for the following reasons.
236.The Silopi district gendarmerie would have been responsible for any operations carried out in the area of Yeniköy, this village being located outside Silopi town where the police were responsible for maintaining law and order.
237.As regards the relevance of the records of the Şĸrnak interrogation unit the Commission recalls that the applicant claims that at some time following his son having been shown around a number of villages he was transferred to Şĸrnak brigade headquarters (paras. 69, 92). The Commission considers that it is not clear what is meant by "brigade headquarters". According to information provided by the Government, the border brigade does not detain people (para. 126). It would appear more likely that "brigade headquarters" refers to the provincial gendarmerie headquarters. Erol Tuna made the same assumption (para. 169). Furthermore, on 15 August 1995 Sadĸk Erdoğan was questioned about Abdulvahap's presence at the Şĸrnak interrogation unit (para. 84). The interrogation unit is the special section at the provincial gendarmerie headquarters where persons who are suspected of offences which cover an area larger than a district and who are detained for a longer period are held (Azmi Gündoğan, para. 160, Erol Tuna, para. 165). Moreover, the Government have confirmed that the Şĸrnak provincial gendarmerie headquarters does not keep a custody record since detainees are registered in the records of the interrogation unit (para. 120).
238.The Commission notes that the records submitted, apart from those of the Şĸrnak provincial centre gendarmerie headquarters - which only cover the limited period of 23 September to 30 December 1993 (para. 119) -, reveal the following anomalies.
Concerning the Silopi district gendarmerie headquarters records
239.Entries nos. 36-39 record four detainees (including one Yusuf Bilgeç, son of Kamil) being taken into custody on 31 October 1993, which predates the previous four entries nos. 32-35 where the detainees are recorded as entering custody on 4 November 1993.
240.In respect of the entries nos. 36-39 the Commission further notes that they were taken into detention on remand and that the date of their transfer is given as 17 November 1993, thus creating the impression that these four persons were detained at the Silopi district gendarmerie headquarters from 31 October to 17 November 1993. However, these same four men are also registered as having been detained in the Şĸrnak interrogation unit from 1 to 16 November 1993. Similarly, while the detainees with entry nos. 28 and 30 are recorded as having been detained at the Silopi district gendarmerie headquarters from 13 August to 14 September 1993, these persons also appear under entry nos. 556 and 559 in the custody record for the Şĸrnak interrogation unit where they are stated to have been detained from 22 August to 12 September 1993.
Concerning the Silopi police headquarters records
241.Three entries, nos. 152, 155 and 158, have been crossed through. Entries nos. 152 and 155 give 12 August 1993 as the date on which these persons entered into custody but no release date is given. The third entry, no. 158, has been entered out of sequence: the date on which this person was taken into custody is given as 15 August 1993 whereas the four entries that follow it are dated 13 August 1993. In addition, the suspect for entry no. 158 is stated to have left the police headquarters (either because he was released or transferred, this is illegible) on 24 August 1998 which appears peculiar if this entry was crossed through because the person concerned had not been taken into custody. The data concerning the suspects for these three entries (i.e. name of the suspect, name of his father and year and place of birth) appear again under nos. 185, 186 and 196 respectively, albeit that in respect of no. 186 a different place of birth is given than for no. 155 and that no. 196 contains a different year of birth from no. 158. Moreover, all three entries have been entered out of sequence: the detainees pertaining to the four entry numbers directly preceding nos. 185 and 186 were taken into custody on 17 August 1993 and nos. 185 and 186 on 15 August 1993. The detainee for entry no. 196 was taken into custody on 18 August 1993 whereas the preceding entry was dated 20 August 1993.
242.Entries nos. 166 and 167 are out of sequence: they have been entered on 13 August 1993 whereas the three preceding entries are dated 15 August 1993. Moreover, it appears that the suspects for these entries had already been released, namely on 14 August according to the ledger, before the suspects for the preceding entries had been taken into custody. In addition, entries nos. 231 and 284 are also out of sequence.
243.Entries no. 244 and 245 record detainees being taken into custody on a date after their stated date of release.
Concerning the Şĸrnak interrogation unit records
244.The apparently simultaneous detention at the Şĸrnak interrogation unit and the Silopi district gendarmerie headquarters of a number of persons has already been referred to above (para. 241).
245.The following entries are out of sequence:
-no. 566 records a detainee being taken into custody on 18 August 1993, predating the preceding entry which records the person entering custody on 23 August 1993;
-no. 622 records a detainee being taken into custody on 29 September 1993, predating the preceding entry which records the person entering custody on either 1 or 4 October 1993 (due to the poor quality of the photocopy this is not clear); and
-no. 658 records a detainee being taken into custody on 30 September 1993 predating the preceding entry which records the person entering custody on 20 October 1993. In this last case it thus appears that the suspect for no. 658 was not entered into the custody record for the first three weeks of his detention.
246.Entries no. 573 and 671 record detainees being taken into custody on a date after their stated date of release or transfer.
247.Although a number, but not all, of the anomalies described above might be explained by administrative error or a system of non-comtemporaneous recording of entries (cf. Izzet Çakĸcĸ v. Turkey, No. 23657/94, Comm. Rep. 12.3.98, p. 40, para. 209, currently pending before the Court), the Commission is disturbed by the frequency with which they occur, the more so as this does not appear to be an isolated incident. In previous cases involving events in South-East Turkey the Commission has also had reason to doubt the accuracy of custody registers (Aydĸn v. Turkey, Comm. Report 7.3.96, para. 172, Eur. Court HR, Reports 1997, p. 1941; Çakĸcĸ v. Turkey, op. cit.). As it did in those cases, the Commission concludes that the custody records disclosed to it cannot be relied upon to prove that Abdulvahap Timurtaş was not taken into detention.
248.The Commission considers that the examination of the other material before it as conducted in the preceding paragraphs has not revealed any facts or circumstances capable of disproving the applicant's allegations. Indeed, some of the evidence corroborates his claims. It recalls, moreover, that it has accepted that the post-operation report is authentic.
249.Accordingly, the Commission is satisfied that the applicant's allegations have been proved beyond reasonable doubt. It finds that on 14 August 1993 Abdulvahap Timurtaş was apprehended near the village of Yeniköy by gendarmes attached to the Silopi district gendarmerie headquarters and taken into detention at Silopi. At some stage thereafter he was transferred to a place of detention in Şĸrnak which was probably the interrogation unit at the provincial centre gendarmerie headquarters.
2.Concerning the treatment of Abdulvahap Timurtaş in detention
250.The evidence with regard to the alleged torture or ill-treatment of Abdulvahap Timurtaş in detention consists of the applicant's oral testimony. He said that Nimet Nas had told Bahattin Aktuğ that Abdulvahap was "under torture" but that the applicant was not to worry about his son (para. 132).
251.The Commission recalls that it has found the applicant credible and convincing. Nevertheless, it considers that in the absence of more direct evidence it cannot find it established beyond reasonable doubt that Abdulvahap Timurtaş was subjected to torture or ill-treatment whilst in detention.
3.Concerning the official investigation into the disappearance
252.Noting that the applicant also alleges that the investigations by the domestic authorities into his son's apprehension and subsequent disappearance were inadequate, the Commission will next assess the evidence relating to these investigations.
253.The Commission observes that the first documented action on the part of the authorities appears to have been taken on 15 October 1993 by the public prosecutor at Silopi who requested the Silopi district gendarmerie headquarters and the Silopi police headquarters to examine the applicant's claim contained in his petition of the same date that his son had been taken into detention on 14 August 1993 (para. 48). Yet it is the applicant's contention that he started asking various authorities about Abdulvahap's apprehension within a week of having been informed about it on 14 August 1993 (paras. 68, 131). The Commission's Delegates found the applicant to be credible and convincing in this respect as well; despite the fact that his account lacked precision as to dates, he was able to relate a number of his attempts to obtain news in terms of the number of days that had passed since Abdulvahap's apprehension. It thus appears that an official investigation into the apprehension was not commenced until two months after it had taken place. The Commission further finds it peculiar that the applicant's statement was not taken until nearly another week after his petition had been accepted, namely on 21 October 1993.
254.After the applicant's statement had been taken a large amount of correspondence was entered into, aimed mainly at obtaining statements from persons named by the applicant. The Commission notes that it took a long time for any of these statements to be produced. The first ones, from the muhtars of Esenli and Yeniköy, were not taken until 26 January 1994. As noted above (para. 234), however, despite the muhtar of Esenli saying that he had heard that someone had been taken into detention near Yeniköy village approximately four to five months previously, the investigation file does not disclose anything to suggest that this information was acted upon.
255.On 23 August 1994 Sedat Erbaş, public prosecutor at Silopi, apprised his counterpart in Şĸrnak of the state of the investigation in response to a query received from the Ministry of Justice (International Law and Foreign Relations General Directorate) following the communication of the application (para. 55). In his letter, Erbaş submitted that because the applicant had not been to the Silopi public prosecutor's office since 21 October 1993 the impression had been created that the matter had been resolved. For that reason, on 10 August 1994, he had summoned the applicant to his office in order to close the file.
256.The Commission is somewhat puzzled by the contents of Erbaş's letter for a number of reasons. Firstly, a summons for the applicant was sent to the Cizre public prosecutor's office on 10 March 1994 (para. 53), which office had, on 28 March 1994, transmitted to the Silopi public prosecutor's office the letter from the Cizre police headquarters to the effect that the applicant had moved from Cizre and that his whereabouts were unknown. Thus, Erbaş must have known that he would not reach the applicant in Cizre which casts doubt on the usefulness of the summons of 10 August 1994. Secondly, the Commission notes that on the same day on which Erbaş summoned the applicant in order to close the file, he also sent out requests to have statements taken from Sadĸk Erdoğan, Nimet Nas and Bahattin Aktuğ (para. 54) which does not appear to serve any useful purpose if he was intending to close the investigation.
257.From the documents submitted, it appears that Erbaş's request of 10 August 1994 for a statement to be taken from Aktuğ was the first such request. Erbaş told the Delegates that as a result of the conditions in the area it had taken six months to reach Aktuğ (para. 189). The Commission notes that in fact it took more than a year before Aktuğ made a statement, namely on 13 August 1995 (para. 87).
258.Sadĸk Erdoğan first made a statement on 15 August 1995, i.e. more than one year and nine months after the applicant had made his statement to the Silopi public prosecutor in which he had named Erdoğan. In the case of Nimet Nas, who made a first statement on 5 May 1995, it took more than one and a half years.
259.The Commission accepts that the conditions in the area may to some extent have hampered the speed with which examinations were carried out but it finds that they cannot justify such delays as occurred in the present case. Although a reproach can be made of the applicant if it is indeed the case that he moved from Cizre without leaving a forwarding address, the Commission observes that no serious attempts were made to trace him. Moreover, from 20 May 1994, when the Government was informed about the Commission's decision to communicate the application, the authorities were aware of the fact that the applicant's son was still missing and that the matter had thus not been resolved. The Commission fails to see why the authorities could not have addressed any queries they may have wished to put to the applicant to his representatives.
260.It does not appear, moreover, that the investigation was conducted with any more urgency following the communication of the application. This is quite graphically illustrated by the fact that it was not until 24 July 1995, i.e. almost two years after Abdulvahap's alleged apprehension, that enquiries were made at the provincial centre gendarmerie headquarters and the police headquarters in Şĸrnak as to whether or not Abdulvahap Timurtaş had been detained there in August 1993 (para. 60). The case-file provided to the Commission shows that up to that moment such enquiries had only been made with the district gendarmerie and police headquarters in Silopi. It is true that in a letter of 6 February 1995 Ahmet Yavuz, public prosecutor at Silopi, wrote that the public prosecutor's office at Şĸrnak had been requested to investigate the incident via the Şĸrnak brigade headquarters (para. 57), but no copies of documents have been provided which substantiate that any such enquiries were in fact made or that any replies were received.
261.Similarly, although Ahmet Yavuz wrote in the same letter that the residents of Yeniköy had been summoned to give statements, the only evidence to the effect that this step had indeed been taken is the letter written by a Şĸrnak prosecutor on 26 February 1996 (para. 62).
262.This leads the Commission to reflect on the general manner in which the investigation was conducted and the steps that were taken. It observes in this respect that a considerable number of the statements which were obtained were of limited value due to the particular questions put to the persons concerned. Emphasis was put on the question whether or not the person making the statement knew either the applicant or his son rather than if he had any knowledge of two persons having been apprehended near Yeniköy on 14 August 1993 and/or subsequently having been shown to the inhabitants of the villages in the area for identification purposes. The Commission has already commented on this issue above (paras. 233, 234). Where a witness stated that he had heard of two persons having been apprehended, as was the case with İsmail Birlik, this information was ignored and subsequently denied: in the decision not to prosecute of 3 June 1996 prosecutor Kardeş wrote that Kamil Bilgeç and İsmail Birlik were not aware of an incident involving detention (para. 113).
263.The Commission considers that the investigation was characterised by a lackadaisical approach on the part of the investigating authorities who do not appear to have taken the applicant's grave allegations seriously. It resulted in a seemingly endless stream of requests for information and instructions for statements to be taken without any decisive steps having been taken to hurry this process along. At no time did any of the public prosecutors involved personally go to inspect the detention areas in the various gendarmerie or police headquarters, nor did they question any of the officers in charge nor demand to see the custody records for themselves. Neither were the Silopi district gendarmerie asked if any operations had been carried out by them in the Yeniköy area on 14 August 1993 or were they expected to account for their movements on that day.
264.The Commission concludes that the investigation carried out was dilatory, perfunctory and superficial and did not constitute a serious attempt to find out what, if anything, had happened to Abdulvahap Timurtaş.
265.Finally, in its assessment of the statements made by Sadĸk Erdoğan and Nimet Nas the Commission noted the possibility that they may not have spoken the truth so as not to compromise their position. In respect of Erdoğan, moreover, the Commission also considered the possibility that the written record of his statement of 15 August 1995 did not reflect what he had actually said. Although it did not reach a finding to the effect that this statement had been falsified since this has not been proved beyond reasonable doubt, it is clear that such an act would make a travesty of any investigation process.
Concluding remarks
266.The Commission recalls that the Government, despite repeated requests, failed to provide copies of the records of Diyarbakĸr E-type prison concerning either Sadĸk Erdoğan's or Nimet Nas' detention there (paras. 22, 24, 26, 27, 125). It also notes that the Government have taken a passive attitude as regards the attendance of Şĸrnak public prosecutor Özden Kardeş who stated that he had nothing to add to the information contained in the file and that for this reason he would not appear before the Delegates. Kardeş's letter to the Commission of 21 November 1996, which was thus written at the time that the Delegates were in Ankara, was submitted by the Government nearly one year later, i.e. on 7 October 1997 (para. 196). The Commission reiterates that it is unacceptable that officials, such as Özden Kardeş, decline to attend on the basis of their own opinion that they have no useful testimony to give. It is not apparent that the Government have taken any step with a view to encouraging or advising him in regard to the desirability of co-operation with the Convention organs (cf. Tekin v. Turkey, Comm. Report 17.04.97, para. 171 sub i, Eur. Court HR, judgment of 9 June 1998, to be published in Reports 1998; Çakĸcĸ v. Turkey, op. cit., para. 245; and Tanrĸkulu v. Turkey, Comm. Report 15.04.98, para. 237, currently pending before the Court).
267.The Commission considers that in this case the Government have fallen short of their obligations under Article 28 para. 1(a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts of this case.
268.In his final observations on the merits the applicant invited the Commission to consider whether the fact that Hüsam Durmuş, a Government witness, had lied on oath to the Delegates also raised an issue under Article 28 para. 1(a) of the Convention. Although in itself a matter for grave concern, the Commission considers that in the circumstances of the present case this does not entail a failure of the Government to furnish all necessary facilities within the meaning of Article 28 para. 1(a).
269.On the basis of its findings above, the Commission will now proceed to examine the applicant's complaints under the various Articles of the Convention.
D.As regards the disappearance of the applicant's son
270.The applicant has invoked a number of provisions in respect of the disappearance of his son Abdulvahap Timurtaş.
1.As regards Article 2 of the Convention
271.Article 2 of the Convention provides:
"1.Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2.Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
a.in defence of any person from unlawful violence;
b.in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c.in action lawfully taken for the purpose of quelling a riot or insurrection."
272.The applicant submits that the disappearance of his son constitutes a violation of the State's obligations under Article 2. He argues that where his son was taken into detention by agents of the State it was incumbent on the State to provide a plausible explanation as to their failure to produce him alive. Not having produced such an explanation beyond a denial that the applicant's son was taken into detention the State has failed in its obligation to protect the right to life.
273.In this respect the applicant submits in the first place that there is evidence that Abdulvahap is dead. Although the applicant had for a while been able to obtain information about his son's whereabouts through Bahattin Aktuğ, the latter was then told to stop asking questions about Abdulvahap. This element combined with Hüsam Durmuş's attempt before the Delegates to cover up the fact of Abdulvahap's detention is, in the applicant's opinion, sufficient to establish the probability that his son died as a result of his treatment whilst detained in Şĸrnak.
274.Secondly, the applicant submits that the context in which his son was taken into unacknowledged detention was life-threatening. He points to the unreliability of the custody records and the ineffective investigation conducted by the domestic authorities. Moreover, there exists a well-documented high incidence of ill-treatment and extra-judicial killings of those in detention in South-East Turkey such as to justify a finding of an aggravated violation of Article 2.
275.Finally, the applicant asserts that the failure of the authorities to conduct a thorough, prompt and impartial investigation into his complaints constitutes a separate violation of Article 2. The applicant complains, furthermore, that there exists a practice of inadequate investigations, in aggravated violation of Article 2.
276.The Government deny that the applicant's son was detained by security forces. They contend that the investigation carried out has shown that the applicant's allegations that his son's disappearance occurred in custody are unsubstantiated.
277.The Commission recalls that it has found that Abdulvahap Timurtaş was taken into detention on 14 August 1993 (para. 249). For more than five years there has been no information as to his subsequent fate. Having regard to the fact that the need was felt to cover up Abdulvahap's apprehension the Commission considers that there is indeed a strong probability that Abdulvahap died whilst in unacknowledged detention.
278.The Commission has next to examine whether that strong probability is sufficient to trigger the applicability of Article 2 in the absence of concrete evidence that Abdulvahap has in fact lost his life or suffered known injury of illness. In the case of Çakĸcĸ v. Turkey, the Commission did reach the conclusion that Article 2 applied, finding that the "very strong probability" that the applicant's brother Ahmet Çakĸcĸ was dead arose in the context of an unacknowledged detention and findings of ill-treatment (op. cit., para. 253).
279.However, even though the Commission did not find that Ahmet Çakĸcĸ had been killed as alleged by the Government, he was regarded as dead in official terms (op. cit., paras. 239, 253). In the present case there is no official claim that Abdulvahap Timurtaş is presumed to be no longer alive. In addition, the Commission accepted evidence from a fellow detainee of Ahmet Çakĸcĸ to the effect that he had seen Ahmet Çakĸcĸ in the Diyarbakĸr provincial gendarmerie headquarters with injuries, that Ahmet Çakĸcĸ had told him that he had been tortured and that he himself had also been subjected to torture (op. cit., para. 252). The Commission recalls that in the present case it was unable to reach a finding that Abdulvahap Timurtaş was tortured or ill-treated (para. 251).
280.The Commission considers, therefore, that the application falls to be distinguished from the case of Çakĸcĸ. In the circumstances of the present case it finds it more appropriate to follow the approach adopted by the Commission and the Court in the case of Kurt v. Turkey (op. cit.).
281.The Court held in that case that it was not necessary to decide on the applicant's complaint under Article 2 since there was no concrete evidence capable of proving beyond reasonable doubt that her son had been killed by the authorities either while in detention or at some subsequent stage. The Court further held that
"... in those cases where it has found that a Contracting State had a positive obligation under Article 2 to conduct an effective investigation into the circumstances surrounding an alleged unlawful killing by the agents of that State, there existed concrete evidence of a fatal shooting which could bring that obligation into play." (op. cit., para. 107).
282.The Commission notes that the present case similarly discloses no such concrete evidence of the killing of Abdulvahap Timurtaş. It observes in addition that the applicant has submitted the same "more general analyses of an alleged officially tolerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State" as those on which Koçeri Kurt relied and which were deemed by the Court to be not "sufficient to compensate for the absence of more persuasive indications that her son did in fact meet his death in custody" (op. cit., para. 108).
283.Consequently, the Commission considers that the applicant's allegations of the State's failure to safeguard his son from disappearance fall to be examined in the context of Article 5 of the Convention.
2.As regards Article 3 of the Convention
284.Article 3 of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
285.The applicant complains that his son was a victim of treatment contrary to Article 3 on account of the evidence that Abdulvahap was personally ill-treated or on account of the evidence of the practice of torture in detention in Turkey. He further submits that a prolonged period of unacknowledged detention involving a complete denial of any security of person in itself constitutes torture. He also complains of a separate violation of Article 3 in respect of the inadequate investigation of his allegations.
286.The Government submit that the applicant's allegations are unfounded.
287.The Commission recalls in the first place that it has found there to be insufficient evidence of Abdulvahap Timurtaş having been subjected to ill-treatment in custody (para. 251). It further refers to its considerations above in relation to Article 2 and to the reasoning adopted by the Commission and the Court in the case of Kurt as regards Article 3 (op. cit., judgment paras. 116-117, Comm. Report, paras. 194-197).
288.Considering that there is nothing in the present application which should lead to a different approach from the one adopted in the Kurt case, the Commission will examine the present complaints from the standpoint of Article 5 of the Convention.
3.As regards Article 5 of the Convention
289.Article 5 of the Convention, insofar as relevant, provides:
"1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a.the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c.the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2.Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3.Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5.Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
290.The applicant contends that the unacknowledged detention of his son amounted to an arbitrary deprivation of liberty contrary to Article 5 para. 1. He submits that there is no evidence that his son was informed of the reasons for his arrest as required by Article 5 para. 2 and that in violation of para. 3 his son was never brought before a judicial officer. Since it is futile to challenge the lawfulness of, and to claim compensation for, detention which is denied there is also a breach of Article 5 paras. 4 and 5 of the Convention.
291.In their observations on the admissibility of the application the Government denied that any restriction of liberty had been imposed on the applicant's son. While maintaining the validity of their derogation under Article 5, they submitted that there was no basis on which it could come into play since the applicant's allegations were factually and jurisprudentially unfounded.
292.The Commission considers that the disappearance of the applicant's son raises fundamental and grave issues under Article 5 of the Convention, which guarantees liberty and security of person. In its judgment in the Kurt case, the Court held that Article 5 guarantees
"... a corpus of substantive rights which are intended to minimise the risks of arbitrariness by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 paras. 3 and 4 with their emphasis on promptitude and judicial control assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention." (op. cit., para. 123)
293.The Court went on to emphasise that
"the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since." (op. cit., para. 124)
294.The Commission recalls its finding above (para. 249) that on 14 August 1993 the applicant's son was apprehended near the village of Yeniköy by gendarmes attached to the Silopi district gendarmerie headquarters, taken into detention in Silopi and at some stage thereafter transferred to a place of detention in Şĸrnak. Abdulvahap Timurtaş's detention was not recorded in any custody register either in Silopi or Şĸrnak. As the Court has held, the failure to record holding data is in itself incompatible with the very purpose of Article 5 of the Convention (Kurt v. Turkey, op. cit., para. 125).
295.However, the fact of Abdulvahap's apprehension was recorded in a post-operation report of 15 August 1993. It appears, therefore, that at some subsequent stage a decision was taken that the apprehension of Abdulvahap Timurtaş and the fate that had befallen him were to be concealed. As a result of that decision, the gendarme officers, including Hüsam Durmuş, to whom the applicant spoke and who replied to queries from public prosecutors at Silopi and Şĸrnak, denied that Abdulvahap had ever been apprehended. The existence of the post-operation report did not come to light until a copy of it was handed to the applicant's representatives on 20 November 1996.
296.As to the investigation conducted by the authorities, the Commission considers that this can be regarded as neither prompt nor effective. In this respect it refers to its findings above (para. 263) relating to the delay which occurred before an investigation even got under way, the lack of speed with which it was conducted, the manner of questioning as well as the absence of a number of important investigative measures. If the Silopi public prosecutor had immediately launched a thorough investigation, he might have discovered that the Silopi district gendarmerie had carried out an operation near Yeniköy on 14 August 1993 and the post-operation document might even have been recovered prior to the decision that is was to be suppressed.
297.Instead, at the conclusion of the investigation, such as it was, the authorities advanced as an explanation for Abdulvahap's disappearance the possibility that he was a member of the PKK mountain cadre (para. 114). This was based on Nimet Nas' statement that Abdulvahap had been in charge of the PKK in Syria and on the fact that Abdulvahap's name appeared on the list of wanted persons of the Prevention of Terrorism branch of Şĸrnak police headquarters. In the Commission's view, these elements could just as easily have served as an indication of the fact that Abdulvahap was indeed being sought by the security forces but it does not appear that the investigating authorities were willing to consider that option.
298.The Commission finds that the Government have failed to provide a satisfactory explanation for the disappearance of the applicant's son following his apprehension on 14 August 1993. In light of this finding, together with the nature of the investigation into the applicant's allegations, the Commission is of the opinion that the responsibility of the Government is engaged.
299.The Commission concludes that the applicant's son has been arbitrarily deprived of his liberty contrary to Article 5 and in disregard of the guarantees of that provision concerning the legal justification for such deprivation and requisite judicial control. Moreover, inaccurate custody records combined with a defective investigation process enabled the subsequent disappearance of the applicant's son to be effected, disclosing a violation of his right to security of person and raising grave doubts as to the treatment which he received and as to whether he is still alive. Such unaccounted disappearance of a detained person must be considered as a particularly serious violation of Article 5 of the Convention taken as a whole.
300.The Commission notes that in support of his allegation that there exists a practice of unacknowledged detention and disappearances in South-East Turkey the applicant relies on the same material which was submitted to the Court in the case of Kurt v. Turkey. In that case the Court found that the evidence submitted did not substantiate the applicant's allegations (op. cit., para. 169). The Commission considers that there is nothing in the present application which should lead it to come to a different conclusion and it does, therefore, not find that Article 5 has been violated in this respect.
301.As regards the derogation of 5 May 1992 under Article 15 of the Convention in relation to Article 5, the Commission recalls that the Government has placed no reliance on it in their observations on the merits. While they referred to it in their observations on admissibility, they stated that its application did not come into play since Abdulvahap Timurtaş had never been in detention. The Commission finds that, in the case of unacknowledged detention, a derogation which provides for measures relating to detention pursuant to criminal procedures provided for in law can have no application.
CONCLUSIONS
302.The Commission concludes, unanimously, that there has been a violation of Article 5 of the Convention in respect of the unacknowledged detention and disappearance of Abdulvahap Timurtaş.
303. The Commission concludes, by 28 votes to 2, that it is not necessary to examine separately the complaints made under Article 2 of the Convention in relation to Abdulvahap Timurtaş.
304. The Commission concludes, by 28 votes to 2, that it is not necessary to examine separately the complaints made under Article 3 of the Convention in relation to Abdulvahap Timurtaş.
E.As regards violation alleged by the applicant on his own behalf under Article 3 of the Convention
305.Article 3 of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
306.The applicant also complains that the disappearance of his son constitutes inhuman and degrading treatment contrary to Article 3 in respect of himself (see para. 284 above).
307.The Government have not addressed this issue, beyond their denials that State authorities were responsible for the disappearance of the applicant's son.
308.The case-law of the Convention organs establishes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).
309.The Commission recalls that the applicant has been living in the uncertainty as to what has happened to his son since he was informed that Abdulvahap had been apprehended, i.e. for more than five years. The fact that in 1991 one of his other sons, Tevfik, died whilst in detention, regardless of the cause of death, would only have served to enhance the applicant's anxiety. His attempts to find out where his son was being detained were met by blank denials on the part of the security forces, some of whom, like Hüsam Durmuş, deliberately concealed the truth. The Commission considers that the uncertainty, doubt and apprehension suffered by the applicant over a prolonged and continuing period of time has caused him severe mental distress and anguish. It has found above that the responsibility of the Government is engaged as regards the disappearance and their failure to account satisfactorily for what has happened to him. The Commission finds as a result that the applicant has been subjected to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
CONCLUSION
310.The Commission concludes, by 29 votes to 1, that there has been a violation of Article 3 of the Convention in respect of the applicant.
F.As regards Article 13 of the Convention
311.Article 13 of the Convention provides:
"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."
312.The applicant submits that he was denied access to an effective domestic remedy. In this respect he argues in the first place that there was a conspiracy to conceal the fact of his son's detention from him. Further, the gendarmes who took a statement from Sadĸk Erdoğan did not record what he told them and frightened him to such an extent that he subsequently changed his story before a public prosecutor. Moreover, the investigation carried out by the public prosecutors was superficial and incapable of uncovering the truth. Finally, the applicant contends that there is a practice of ineffective remedies, in aggravated violation of Article 13.
313.The Government deny that the applicant's son was detained and, in their submissions on the admissibility of the application, argued that the applicant had failed to make use of available domestic remedies.
314.The Commission recalls that Article 13 of the Convention requires the provision of a domestic remedy allowing the "competent national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. In the Kurt v. Turkey judgment, the Court held that where the relatives of a person have an arguable claim that the latter has disappeared at the hands of the authorities, the requirements of Article 13 are broader than a Contracting State's obligation under Article 5 to conduct an effective investigation into the disappearance of that person who has been shown to be under the authorities' control and for whose welfare they are accordingly responsible (op. cit., para. 140).
315.The Commission is of the opinion that the applicant had arguable grounds for claiming that his son was being held in detention. In this respect it notes that he went to the authorities with specific information concerning the time and place of his son's apprehension, and, at a later stage, also provided names of people who had told him that they had seen Abdulvahap in detention. The applicant was thus entitled, in addition to the payment of compensation where appropriate, to a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access to the investigatory procedure (Kurt v. Turkey, loc. cit.).
316.The Commission recalls its findings in the present case relating to the dilatory, perfunctory and superficial nature of the investigation (para. 264). It has previously held that allegations of disappearances require prompt and thorough investigation (Çakĸcĸ v. Turkey, op. cit., para. 284). The Commission is not persuaded that the applicant's concerns received sufficiently serious attention by the authorities.
317.There is no evidence before the Commission to indicate that, in the absence of an effective investigation of the circumstances of the case by the public prosecution authorities, any other remedy would have offered the applicant a possibility of obtaining redress for a disappearance resulting from an unacknowledged detention.
318.Accordingly, the Commission finds that the applicant did not have an effective remedy available to him in respect of his complaints about the disappearance of his son.
319.Referring to its reasoning under Article 5 the Commission would not find that there has been a separate breach of Article 13 in respect of the applicant's allegations of a practice of ineffective remedies.
CONCLUSION
320.The Commission concludes, by 29 votes to 1, that there has been a violation of Article 13 of the Convention in respect of the applicant's complaints that his son had disappeared in circumstances engaging the responsibility of the authorities.
G.As regards Article 14 in conjunction with Articles 2, 3 and 5 of the Convention
321.Article 14 of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
322.The applicant contends that the violations alleged - unlawful, life-threatening unacknowledged detention, disappearance and the lack of investigation - occur overwhelmingly against citizens of Kurdish origin and disclose a breach of Article 14 of the Convention. He relies on the same material as submitted to the Court in the case of Kurt v. Turkey (op. cit.).
323.In their observations on the admissibility of the application the Government stressed that the Turkish Constitution guaranteed the enjoyment of rights to everyone within its jurisdiction regardless of considerations of, inter alia, ethnic origin, race or religion. In any event, the applicant had not been subjected to any treatment contrary to Article 14 which could be attributed to the Government.
324.The Commission has examined the applicant's allegations in the light of the evidence submitted to it, but considers that this does not substantiate the applicant's claim that his son was the deliberate target of a forced disappearance on account of his ethnic origin.
CONCLUSION
325.The Commission concludes, by 29 votes to 1, that there has been no violation of Article 14 in conjunction with Articles 2, 3 and 5 of the Convention.
H.As regards Article 18 of the Convention
326.Article 18 of the Convention provides as follows:
"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."
327.The applicant, arguing that Article 18 imposes a requirement of good faith on Contracting States, submits that the conspiracy to conceal from him the unlawful detention of his son discloses a lack of respect for the principle of good faith by those acting in the name of the State. Such conduct, moreover, constitutes an abnegation of effective accountability, the rule of law and democratic values.
328.The Government, in their observations on the admissibility of the application, maintained that even in the difficult conditions of the struggle against terrorism the security forces in those areas subject to the state of emergency carried out all their operations in accordance with the law.
329.The Commission considers that it has already examined the merits of the applicant's allegations made under this provision in the context of Article 3 of the Convention. Since Article 3 does not provide for any restrictions there can be no application of Article 18 in relation to Article 3.
CONCLUSION
330.The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention.
I.As regards Article 25 of the Convention
331.Article 25 para. 1 of the Convention provides:
"1.The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."
332.The applicant also complains that the conduct of the Silopi and Şĸrnak gendarmes, as exemplified by Hüsam Durmuş, was calculated to frustrate the effective operation of the right of individual petition. Moreover, there was also an interference with this right as a result of Hüsam Durmuş, a witness for the Government, having lied on oath to the Commission's Delegates.
333.The Commission does not find it established that the conduct of the gendarmes concerned, however reprehensible, as such hindered the applicant in the exercise of his right of individual petition.
CONCLUSION
334.The Commission concludes, unanimously that Turkey has not failed to comply with its obligations under Article 25 para. 1 of the Convention.
J.Recapitulation
335.The Commission concludes, unanimously, that there has been a violation of Article 5 of the Convention in respect of the unacknowledged detention and disappearance of Abdulvahap Timurtaş (para. 302 above).
336. The Commission concludes, by 28 votes to 2, that it is not necessary to examine separately the complaints made under Article 2 of the Convention in relation to Abdulvahap Timurtaş (para. 303 above).
337. The Commission concludes, by 28 votes to 2, that it is not necessary to examine separately the complaints made under Article 3 of the Convention in relation to Abdulvahap Timurtaş (para. 304 above).
338.The Commission concludes, by 29 votes to 1, that there has been a violation of Article 3 of the Convention in respect of the applicant (para. 310 above).
339.The Commission concludes, by 29 votes to 1, that there has been a violation of Article 13 of the Convention in respect of the applicant's complaints that his son had disappeared in circumstances engaging the responsibility of the authorities (para. 320 above).
340.The Commission concludes, by 29 votes to 1, that there has been no violation of Article 14 in conjunction with Articles 2, 3 and 5 of the Convention (para. 325 above).
341.The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (para. 330 above).
342.The Commission concludes, unanimously, that Turkey has not failed to comply with its obligations under Article 25 of the Convention (para. 337 above).
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF MR S. TRECHSEL
I have voted against the wording of the Commission's conclusions in paras. 303 and 304. In the present case the Commission has undertaken an investigation in order to find out whether the respondent Government could be held responsible for the death and/or any treatment contrary to Article 3 of the Convention inflicted upon the applicant's son. The result of the investigation was that no such responsibility was established. In such a situation it does not seem fair to me to let the original complaint open by using the formula that “no separate issue arises”. At any rate, if there had been a violation of Articles 2, 3 and 5, the former would have had priority as they are the more fundamental guarantees.
In my view, in the present case the Commission ought to have concluded that there was no violation of Articles 2 and 3.
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