5.  The applicants’ seventeen close relatives were members of an outlawed organisation in Turkey, namely the Maoist Communist Party (hereinafter “the MKP”). On various dates since the 1970s criminal proceedings had been brought against the relatives for membership of a number of outlawed organisations and for carrying out activities on behalf of those organisations. They had spent various periods of time in prisons, and after their release some of them had left Turkey and settled in different countries in Europe.
6.  In early June 2005 the seventeen relatives began arriving in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, in order to hold a meeting of their organisation. They were all killed in that area by members of the security forces on 17 and 18 June 2005.
7.  The names of the seventeen relatives and the applicants’ relationship to them are as follows:
i.  Cafer Cangöz was the first applicant Mr Mustafa Cangöz’s son;
ii.  Aydın Hanbayat was the second applicant Ms Fatma Hanbayat’s son;
iii.  Okan Ünsal was the third applicant Ms Bahriye Ünsal’s son;
iv.  Berna Saygılı-Ünsal was the fourth applicant Mr Tevfik Fikret Saygılı’s daughter;
v.  Ali Rıza Sabur was the fifth applicant Mr Hıdır Sabur’s brother;
vi.  Alattin Ataş was the sixth applicant Ms Nari Ataş’s son;
vii.  Cemal Çakmak was the seventh applicant Ms Zekiye Çakmak’s son;
viii.  Ökkeş Karaoğlu was the eighth applicant Ms Hatice Karaoğlu’s son;
ix.  Taylan Yıldız was the ninth applicant Ms İmiş Yıldız’s son;
x.  Dursun Turgut was the tenth applicant Mr İbrahim Turgut’s son;
xi.  Binali Güler was the eleventh applicant Ms Elif Güler’s husband;
xii.  İbrahim Akdeniz was the twelfth applicant Mr Mehmet Akdeniz’s son;
xiii.  Ahmet Perktaş was the thirteenth applicant Ms Gülsüm Perktaş’s son;
xiv.  Çağdaş Can was the fourteenth applicant Ms Şükran Can’s son;
xv.  Gülnaz Yıldız was the fifteenth applicant Mr Teslim Yıldız’s daughter;
xvi.  Ersin Kantar was the sixteenth applicant Mr Erdal Kantar’s brother; and,
xvii.  Kenan Çakıcı was the seventeenth applicant Ms Dilek Çakıcı’s husband.
8.  The events which took place on 17 and 18 June 2005 are disputed between the parties. Thus, the parties’ submissions will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 9-13). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 14-20). The documentary evidence submitted by the parties is summarised in Section D below (paragraphs 21-76).
9.  At around 9 p.m. on 17 June 2005 some of the applicants heard on the television news that nine MKP members had been killed by soldiers in Ovacık and that armed clashes were continuing.
10.  The following day a number of family members, suspecting that their relatives might be among those who had been killed, went to the Ovacık District Gendarmerie Command to seek more information. When they failed to obtain any information there a lawyer representing one of the families went to see the local prosecutor. The prosecutor told the lawyer that seventeen people had been killed.
11.  The families were then taken to a nearby military base to identify the seventeen bodies, which had been placed in the car park of the military base. The families noted that most of the bodies were naked. As the faces and bodies of the deceased had been destroyed beyond recognition, it was not possible to complete the identification process that day.
12.  When all the bodies had been identified and autopsies carried out on them they were handed over to the families for burial.
13.  The photographs and video footage taken by the families while the bodies were being prepared for burial were submitted to the Court. Very extensive injuries on the bodies of the seventeen can be seen in the footage.
14.  In their observations the Government summarised a number of the steps taken by the national authorities (which are also summarised below between paragraphs 21-76), and added the following.
15.  The applicants’ relatives were members of the MKP terrorist organisation and some of them had entered Turkey illegally in order to participate in a meeting of that organisation in Tunceli. After receiving intelligence reports, a patrolling helicopter found the terrorist group in an area near Tunceli on 17 June 2005. The terrorist group opened fire on the helicopter. After determining the location of the group the security forces arrived in the area to arrest them. At 5 p.m. the security forces encountered the group. Despite warnings to surrender issued by the security forces, the terrorists opened fire and injured a soldier.
16.  At 9 a.m. on 18 June 2005 the armed clash between the security forces and the terrorists ended. Alongside the bodies of the terrorists the security forces found, amongst other things, a number of automatic rifles and ammunition. Three terrorists were apprehended alive and arrested.
17.  On the same day, just after the armed clash ended, the prosecutor arrived at the incident area, conducted an on-site inspection, prepared an incident report, and opened an investigation concerning the deaths of the seventeen terrorists. The prosecutor then ordered the destruction of the material which had no evidential or economic value.
18.  On 18 June 2005 between 9.30 a.m. and 2.30 p.m. the bodies and everything else found were photographed.
19.  On 29 June 2005, at the request of the relatives of the deceased, the prosecutor asked the Forensic Medicine Institute to examine the clothes and bodies of the deceased with a view to establishing whether the security forces had opened fire from a distance without issuing any warning to surrender.
20.  On 1 July 2005 the Forensic Laboratories of the Police in Diyarbakır released the ballistic report, which stated that sixteen of the seventeen terrorists had actively fired at the security forces during the armed clashes.
21.  The following information appears from the documents submitted by the parties.
22.  According to a report prepared by three non-commissioned officers from the Ovacık District Gendarmerie Command on 18 June 2005 (hereafter “the Ovacık report”), intelligence obtained by the security forces suggested that members of the MKP were planning to have a meeting in mid-June in an area in the vicinity of the Mercan Mountains, near the border between Tunceli and Erzincan provinces. Security forces from Erzincan and Tunceli subsequently started a military operation in the area on 15 June 2005. The operation was also supported from the air. At around 5 p.m. on 17 June 2005 the security forces conducting the operation came across a group of “armed members of the organisation” and asked them to surrender. However, “the members of the organisation” responded with fire and an armed clash ensued. During the first fire opened by “the terrorists” a soldier was injured on the upper leg and airlifted to hospital by helicopter. As the area was mountainous with many caves and in some places covered with snow, and as the “members of the illegal organisation” refused to surrender and opened intense fire, the clashes continued until the following day. At around 10 a.m. the following day the fire directed at the security forces stopped and then a search was conducted by members of the security forces. The bodies of fifteen male and two female “terrorists” were recovered. “As instructed by the public prosecutor”, the bodies and weapons recovered in the area were then taken by helicopter to the Ovacık District Gendarmerie Command.
23.  According to the above-mentioned report, 13 automatic rifles (one M16, four G3s, seven Kalashnikov AK47s and one PKM), 23 spent cartridges discharged from G3 rifles, and 45 spent cartridges discharged from Kalashnikov rifles, 44 bullets for PKM-type rifles, 19 bullets for G3‑type rifles, 76 bullets for M16-type rifles and 77 bullets for Kalashnikov-type rifles, 11 Kalashnikov magazines, 7 M16 magazines and 12 G3 magazines were recovered together with the bodies. “Items which did not have evidential value”, including four rucksacks, fifteen items of male and two pieces of female clothing and shoes were destroyed in accordance with “the instructions given by the prosecutor”.
24.  The report summarised in the preceding paragraphs, together with the weapons and ammunition mentioned therein, were handed over to the Ovacık prosecutor’s office on 20 June 2005 together with a number of other documents. According to one of those documents which, in effect, is a list of the documents forwarded to the prosecutor by the military, two of the documents handed over to the prosecutor were a twelve-page military order, drawn up on 15 June 2005, for the carrying out of the operation and a sketch of the operation area. Those two documents were not made available to the Court.
25.  Another military report was drawn up on 18 June 2005 by the officer in charge of the District Gendarmerie Command of the neighbouring town of Kemah, and eleven gendarmes who had taken an active part in the operation (hereafter the “Kemah report”). The report states that “outlawed terrorist organisations had set up camp” in the area and that its members had been travelling between Erzincan city centre and Sarıyazı village. There was evidence and information showing that members of the terrorist organisation were in contact with three men from Sarıyazı village who were providing them with assistance. At 8 a.m. on 17 June 2005 two of the three men in question were apprehended and questioned by the soldiers. When they denied the allegations against them, the soldiers told them that the mobile telephone belonging to Ali Rıza Sabur – one of the applicants’ deceased relatives – was being intercepted and that the security forces were therefore aware that they had been in contact with members of the illegal organisation who had arrived in the area recently. One of the two men then told the soldiers that he had seen a number of armed men in the area and that he had subsequently helped them by supplying them with food and transport and by providing guidance about the local area. The man informed the gendarmes that the last time he had seen the armed men had been that very morning and that, given that three of the armed men were “limping” and thus walking slowly, they were probably at a location at approximately one hour’s walking distance away.
26.  According to the above-mentioned Kemah report, the soldiers then asked for a military helicopter and went to that area with the man to look for the applicants’ relatives. The armed men were spotted in a river bed from armed Cobra-type military helicopters at 11 a.m. When one of the armed men noticed the helicopter, he opened fire and an armed clash ensued during which nine of the armed men were killed. At 4.30 p.m. the same day a number of soldiers taking security measures in the area came under intense fire as a result of which another armed clash ensued and continued until 9 a.m. the following morning, that is 18 June 2005. After the operations ended the bodies of eight more people – two of whom were female – were recovered together with their weapons. One of the three men, who had been apprehended the previous morning and had assisted the soldiers in locating the applicants’ relatives, was with the soldiers at that time and identified the bodies as the persons whom he and his two friends had helped after their arrival in the area. The report further states that the incident took place on the border between the Ovacık and Kemah districts. The Ovacık prosecutor was then informed about the operation and instructed the soldiers to take the bodies of the seventeen and their belongings to the town of Ovacık.
27.  On 18 June 2005 a press release was issued by the Gendarmerie Headquarters in Ankara, stating that “seventeen terrorists were recovered dead and three terrorists were apprehended alive” during the operations.
28.  Also on 18 June 2005, the applicants’ legal representative Ms Meral Hanbayat submitted a petition to the prosecutor’s office in Malatya and asked the prosecutor to order the carrying out of necessary forensic examinations on the body and clothes of the second applicant’s son, Aydın Hanbayat, with a view to establishing the distance from which he had been shot. The legal representative also asked the prosecutor to examine Aydın Hanbayat’s hands for gunpowder residue in order to establish whether or not he had opened fire.
29.  According to a report drawn up by the Ovacık prosecutor on 18 June 2005, the area where the applicants’ relatives had been killed was not safe and therefore it was not possible for the prosecutor to go there to examine the bodies. Thus, a decision was taken to bring the bodies to the town of Ovacık in a military helicopter. When they were brought to the Ovacık District Gendarmerie Command the bodies were placed in the car park reserved for military vehicles. As their identities had not yet been established, each body was given a number.
30.  The Ovacık prosecutor, assisted by two doctors, arrived at the car park and examined the bodies. The prosecutor noted that all seventeen were clothed and instructed that the clothes be removed for the examinations to be carried out. The bodies were also photographed, both with their clothes on and after they were taken off. The prosecutor and the doctors noted in their report the extensive injuries they observed on the bodies. A search was carried out of the clothes, in which sixteen identity documents were found. The prosecutor decided to keep the number tags on the bodies in place as he suspected that some of the identity papers might be forged. It was later established that ten of the identity papers belonged to the deceased and the remaining six identity documents were in the names of other people.
31.  The two doctors concluded that all seventeen had died as a result of injuries caused by bullets and shrapnel, but considered it necessary to have detailed autopsies carried out. The bodies were then handed over to a gendarme non-commissioned officer, who took them to the Forensic Medicine Institute’s nearest branch in the city of Malatya at around 8 p.m. the same day. No mention is made in the document whether the clothes removed from the bodies of the seventeen were also handed over to that non-commissioned officer.
32.  The same evening three people who claimed to know some of the deceased arrived at the Forensic Medicine Institute’s Malatya Branch and identified the bodies of Cafer Cangöz, Aydın Hanbayat, Ökkeş Karaoğlu, Okan Ünsal, İbrahim Akdeniz and Gülnaz Yıldız.
33.  The same evening forensic pathologists started carrying out the autopsies; they completed their examinations at 6.30 the following morning. A detailed verbatim report of the actions taken during the autopsies was prepared in the presence of the Malatya prosecutor. Blood and urine samples taken from the bodies were sent for further analysis to verify whether the deceased had consumed alcohol or used drugs. Swabs were taken from their hands and sent for ballistic examinations with a view to establishing whether they had any gunpowder residue on their hands. Bullets and shrapnel found in the bodies were also sent for further analysis. Fingerprints were taken for identification purposes.
34.  According to the findings of the forensic pathologists which are set out in the autopsy report, eight of the deceased had been killed by explosives, three of them by bullets, and the remaining six by both explosives and bullets. The forensic pathologists considered that to establish the distances from which the seventeen persons had been shot, further examinations had to be conducted on their clothes. They noted, however, that with one exception all the deceased had been stripped of their clothes and that the clothes belonging to thirteen of the remaining sixteen had not been provided.
35.  After the autopsies were concluded the Malatya prosecutor ordered the return of the bodies and the clothes to the Ovacık prosecutor’s office.
36.  On 21 June 2005 the Ovacık prosecutor wrote to his opposite number in Kemah and requested a copy of the investigation documents relating to the arrest of the three men (see paragraphs 25-26 above). According to the documents submitted to the Court, the Kemah prosecutor complied with that request and forwarded a copy of his investigation file to the Ovacık prosecutor.
37.  It appears from the Kemah prosecutor’s file that on 9 June 2005 the security forces had obtained authorisation from a judge to intercept the applicants’ relatives’ mobile telephones, and telephone conversations some of the applicants’ relatives had had with a number of local people, including the men who were subsequently arrested for providing them with logistical support, were intercepted by the authorities between 9 and 17 June 2005. According to the transcripts of the intercepted telephone conversations drawn up on 11 June 2005, the applicants’ relatives had discussed over the telephone issues such as renting vehicles and facilitating their movements in the area.
38.  On 21 June 2005 the Ovacık prosecutor also asked the Ovacık District Gendarmerie Command to send the weapons and the ammunition recovered together with the bodies of the applicants’ relatives to the Regional Forensic Laboratories with a view to establishing whether the rifles had been used in any other previous incident and whether the 23 G3 spent cartridges and the 45 Kalashnikov spent cartridges had been discharged from the G3 and the Kalashnikov rifles found together with the bodies and whether they had thus been used in the armed clash.
39.  On 19 and 20 June 2005 most of the bodies were formally identified by their family members and burial certificates were issued.
40.  On 22 June 2005 three of the deceased, namely Cafer Cangöz, Berna Saygılı-Ünsal and Ökkeş Karaoğlu, were formally identified after an examination of their fingerprints was conducted at the Malatya Police Headquarters.
41.  The same day the Ovacık prosecutor was provided with the report pertaining to the medical examination of the soldier who had been injured during the operation and airlifted to hospital (see paragraph 22 above). According to the report, the soldier in question had been kept in a military hospital in Elazığ between 18 and 30 June 2005 for the “injury to the skin of and a foreign object on the left femur, which is not life-threatening and which can be treated with a simple medical intervention”.
42.  On 27 June 2005 three of the applicants, namely Ms Fatma Hanbayat, Mr Mustafa Cangöz and Ms İmiş Yıldız, assisted by their legal representatives, submitted an official complaint to the Ovacık prosecutor’s office. The three applicants alleged in their complaint that the bodies of their three deceased relatives had been stripped of their clothes and displayed at the military base in Ovacık before they were taken to Malatya for autopsies. The three applicants added that they had not seen the clothes since the autopsies. They submitted that the way in which their relatives had been killed must be established before the investigation could proceed. They maintained that a forensic examination on the clothes was crucial and requested the prosecutor to ensure that it was done.
43.  In their complaint the three applicants also informed the prosecutor that there were “strong indications” that their relatives had been killed by being bombed from a distance, without any prior warning and without any attempts being made to ask for their surrender. They asked the prosecutor to promptly carry out an impartial investigation and visit the area where the operation had been conducted. They also requested the prosecutor to carry out the necessary investigation into the removal of their relatives’ clothes and the exhibiting of their bodies, which, they argued, constituted an offence. Finally, the three applicants asked the prosecutor to give them a copy of the documents from the investigation file.
44.  When the Ovacık prosecutor received the applicants’ complaint he wrote to the Ovacık Magistrates’ Court the same day and informed that court of his opinion that “when taken into account that [the three applicants] are related to the deceased members of the terrorist organisation, handing over to them documents from the investigation file would endanger the investigation”. The prosecutor asked the Magistrates’ Court to issue a decision classifying the investigation file as confidential so that neither the three applicants, their legal representatives, or anyone else would be able to examine the investigation file or obtain any documents from it, with the exception of the autopsy reports.
45.  The prosecutor’s request was granted on the same day by the Ovacık Magistrates’ Court. The same day the prosecutor forwarded the Magistrates’ Court’s decision to the three applicants and informed them that in the light of the Magistrates’ Court’s decision it was not possible to accede to their request and that he was therefore unable to give them any of the documents from the file, with the exception of the autopsy reports. The three applicants’ legal representatives were handed a copy of the autopsy reports the same day.
46.  On 29 June 2005 the Ovacık prosecutor wrote to the Forensic Medicine Institute’s headquarters in Istanbul, stating that although autopsies had been carried out on the bodies of the seventeen at the Malatya Branch of the Forensic Institute, clothes belonging to some of the deceased had been returned to his office without examination, because there was no expert in Malatya able to carry out that task. The prosecutor also informed the Institute about the allegation made by the three applicants that their relatives might have been killed without a warning and added that the applicants had requested that their relatives’ clothes be forensically examined. With his letter the prosecutor sent the clothes removed from the bodies of Cemal Çakmak, Cağdaş Can, Okan Ünsal and İbrahim Akdeniz, and asked the Institute to carry out the necessary examinations on them.
47.  On 1 July 2005 the three applicants mentioned above (see paragraph 42) lodged an objection to the Ovacık Magistrates’ Court’s decision to restrict their access to the investigation file and asked for that decision to be set aside. In their submission the three applicants added that they had spoken to the prosecutor and had repeated their request to have their deceased relatives’ clothes forensically examined. However, the prosecutor had told them that the clothes had been “destroyed after the operation because [the authorities] had deemed it necessary to do so”. The three applicants also stated in their submission that all they needed were the documents recording the actions taken during the investigation, and not any of the documents pertaining to the organisation of the military operation. They argued that they needed those documents to exercise their statutory right to effectively participate in the investigation. Furthermore, when the facts were known by the perpetrators and by the prosecutors, hiding those same facts from the complainants was not compatible with the principle of equality of arms. It was thus evident that an investigation conducted solely on the basis of the documents prepared by the perpetrators, the contents of which were not known to them and could thus not be challenged, would not lead to a fair conclusion.
48.  The applicants also challenged the logic behind the decision to restrict their access to the investigation file, and questioned how their involvement in the investigation, the aim of which was to establish the facts, would endanger it. They submitted that some of the evidence, such as the clothes worn by their relatives, had already been destroyed on the orders of the prosecutor. The applicants considered it telling that the clothes of those killed by explosives had been sent for forensic examinations whereas the clothes worn by those killed by bullets had been destroyed. They argued that those destroyed clothes could have been instrumental in establishing the distance from which the deceased had been shot. They complained, moreover, that the prosecutor had still not visited the place where the operation had been conducted; thus, there were serious questions about the way the evidence from that place had been collected. Lastly, the applicants referred to Articles 2 and 13 of the Convention and Paragraph 16 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (adopted by Economic and Social Council Resolution 1989/65 on 24 May 1989) and argued that their exclusion from the investigation was in breach of those provisions.
49.  The objection was rejected by the Tunceli Criminal Court of First Instance on 20 July 2005.
50.  Also on 1 July 2005, the Forensic Laboratories of the Police in Diyarbakır published their reports on the swabs taken from the hands of the seventeen deceased. According to the report, there was gunpowder residue on the palms and the backs of the hands of the sixteen of the seventeen relatives. It was stated in the report that the presence of gunpowder residue on the backs of the hands meant that the person had either fired a weapon or been in close proximity to a weapon when it was fired. The presence of gunpowder residue on the palm of the hand meant that the person had either been holding a weapon or had had contact with objects on which there was gunpowder residue, or that he or she had been standing close to a weapon when it was fired. It was stated in the same report that gunpowder residue could be found on the hand of a person who had not fired a weapon but whose hand had been in contact with objects such as a weapon, a bullet entry wound, or the hands of another person who had fired a weapon.
51.  On 6 July 2005 sixteen relatives, including fourteen of the applicants, submitted a complaint to the Ovacık prosecutor with the assistance of their legal representatives.
52.  The relatives began by stating that the arguments they were making in their complaint were inevitably based only on the autopsy reports and the things they had heard or witnessed personally; as they had been denied access to the investigation they had not had the opportunity to see any of the evidence or the information in the prosecutor’s file. In their submission they complained about the killings of their relatives and about the public displaying of the bodies by the security forces. The relatives also submitted that the fact that the bodies of some of their relatives had been destroyed beyond recognition by bombs had led them to form the opinion that there had not been an armed clash as alleged and that their relatives had been killed by unlawful fire from military helicopters. In any event, on account of their ages and the various physical disabilities of five of them, their relatives had not been in a position to actively participate in an armed clash with soldiers in a mountainous area. Furthermore, although it had been alleged that firearms had been found next to the bodies of their relatives, those firearms would not have been effective against military helicopters. Thus, it was obvious that they had been killed as a result of the use of disproportionate force.
53.  The relatives also repeated the criticism, which had already been voiced by three of them on a number of previous occasions (see paragraphs 42-43 and 47-48 above), of the fact that they had been denied access to the investigation file and the investigating authorities’ failures to take certain steps in the investigation. In that connection they highlighted, in particular, the destruction of their relatives’ clothes by the authorities. They also complained that crucial evidence had been collected without any judicial supervision and by members of the security forces who themselves had been implicated in the killings and were therefore under investigation.
54.  The relatives argued that the killing of their relatives had been unlawful and in breach of Turkey’s obligations under various international treaties, including the Convention. Contrary to the requirements of those international obligations, no attempts had been made to apprehend their relatives in a non-life-threatening fashion. Moreover, members of the security forces had committed another offence by publicly exhibiting their relatives’ naked bodies. They invited the prosecutor to carry out an independent and effective investigation that was proportionate to the seriousness of the killings.
55.  The applicant Tevfik Fikret Saygılı, together with his wife Necla Saygılı, submitted another complaint to the Ovacık prosecutor in addition to the one he had already submitted on 6 July 2005 together with the other applicants. In their complaint the couple complained about the killing of their daughter, Berna Saygılı-Ünsal, and alleged, in particular, that their daughter and her sixteen friends had been unarmed at the time and there had therefore not been an armed clash between them and the soldiers. They further complained that necessary precautions in the area where their daughter was killed had not been taken by the prosecutor, and the evidence in the area had thus been allowed to disappear. They also complained that their daughter’s body had been exhibited by the soldiers.
56.  On various dates the Ovacık prosecutor asked his colleagues in various towns and cities to take statements from the applicants living within their jurisdictions. According to the documents submitted by the parties, the prosecutors complied with that request and took statements from twelve of the applicants and four other close relatives of the seventeen deceased. In their statements the relatives repeated their allegations and maintained their complaints. The relatives also stated that, although they had not personally seen the bodies of their deceased relatives being exhibited, they had heard about it from others.
57.  On 19 August 2005 the Regional Forensic Laboratories of the Gendarmerie concluded their examinations in respect of the weapons and the spent cartridges found in the operation area (see paragraphs 23 and 38 above). It was stated in the report that 43 of the 45 spent Kalashnikov cartridges had been discharged from the seven Kalashnikov rifles found in the area. The remaining two had been discharged from two other Kalashnikov rifles, which were not among those recovered in the area. It was also established that 22 of the 23 spent G3 cartridges had been discharged from the four G3 rifles found in the area. As the remaining G3 spent cartridge had no markings on it, no examination could be carried out on it.
58.  On 23 September 2005 the Forensic Medicine Institute prepared its report in response to the Ovacık prosecutor’s request of 29 June 2005 for the clothes worn by four of the deceased at the time they were killed to be examined. It was noted in the report that the holes observed on three of the four sets of clothes were not bullet holes. The holes observed on the fourth set of clothes which belonged to Cemal Çakmak did not have any gunpowder residue and it was not therefore possible to establish the distance from which he had been shot.
59.  On 23 November 2005 the applicants asked the Ovacık prosecutor to give them a copy of the autopsy report and a copy of the document pertaining to the examination of the clothes removed from the bodies of their relatives. The prosecutor complied with that request on 8 December 2005.
60.  Between September 2005 and June 2006 a number of ballistic examinations were conducted; the Ovacık prosecutor was informed at the end of those examinations that the rifles and the spent cartridges found next to the bodies had not been used in any other incident.
61.  On 20 June 2006 the Ovacık prosecutor closed the investigation. After summarising some of the documents which are also set out in the preceding paragraphs, the prosecutor stated the following in his decision:
“Sections 86 and 87 of the Code of Criminal Procedure set out how post mortem examinations should be conducted. As stated in the autopsy reports, there was no one to identify the members of the terrorist organisation MKP/HKO who had been recovered dead. That was why they could not be formally identified in Ovacık. Moreover, their clothes were removed on the instruction of the prosecutor so that their bodies could be examined. Thus, the bodies were not stripped of their clothes by members of the security forces so that they could be publicly displayed. Removing the clothes was a necessity and did not constitute an offence.
As for the complaint concerning the killings, the terrorist organisation MKP/HKO issued press releases on 19 and 23 June 2005 in which it was made clear that the deceased had indeed been members of that terrorist organisation and in which the Turkish Republic was expressly referred to as the enemy. It was stated in the press releases, for example, ‘during the armed clashes that took place between the fascist Turkish State and the forces from the People’s Liberation Army (HKO) [acting] under the leadership of our Maoist-Communist Party, seventeen of our communist warrior comrades became martyrs’. Thus, those press releases not only confirm that the deceased were members of the terrorist organisation, but also that they died in armed clashes with the security forces.
The aim and strategy of the terrorist organisation MKP/HKO is to destroy the constitutional order of the Turkish Republic through armed struggle and to replace it with a different regime. The deceased were members of the MKP/HKO and were carrying out armed and unlawful activities on behalf of that organisation in order to change the constitutional order by force. The investigation documents, the nature of the weapons recovered, the other documents and information [in the file] and the fact that the deceased did not obey the security forces’ warning to surrender show conclusively that they were members of the MKP/HKO and were acting in accordance with that organisation’s aims to change the constitutional order through armed struggle.
In addition, it was openly stated in the press release issued by the terrorist organisation MKP/HKO that all the deceased were members of the MKP/HKO terrorist organisation.
As explained above, the deceased were members of the illegal MKP/HKO terrorist organisation, which carries out activities aimed at changing the constitutional order by force of arms; they were carrying out armed and unlawful activities on behalf of that organisation. A report showing that they were members of the unlawful MKP/HKO terrorist organisation and that they had carried out armed activities on behalf of that organisation and thus had committed the offence of attempting to change the Turkish republic’s constitutional order, was prepared [by me] and sent to the Malatya prosecutor.
The [deceased] had been wandering and hanging around as a group. Their aim was to inflict casualties on members of the security forces. It was the terrorists who fired first, despite an order to surrender issued by members of the security forces. When they first opened fire they injured a member of the security forces. Then, despite a warning to surrender, the terrorist group continued to open fire. Faced with an all-out armed attack, the security forces had no alternative but to open fire. Thus, the ‘absolute necessity’ and ‘reasonableness’ criteria were satisfied, which renders the killings lawful.
In order to realise their so-called ideals, terrorists make plans and act in accordance with those plans. Even when they are dying they think of killing. They prepare traps with explosives and hand grenades and set them to explode when members of the security forces approach them when they are seriously injured or after their death to lift their bodies. The response of the security forces to prevent the terrorists’ so-called last mission (the traps) which caused severe damage to the terrorists’ bodies must be regarded as a lawful action carried out within the ambit of ‘self-defence’ and ‘necessity’, because they acted with the aim of protecting their own physical integrity and lives.
According to the decision of the Grand Chamber of the Court of Cassation for Criminal Law Matters (10 October 1995, decision no. 1213/271), the existence of an attack must be interpreted widely; if it is definite that an attack is going to begin, it can be regarded as an attack already begun; if it has already come to an end but there is a fear that it might begin again, then it must be regarded as not yet ended.
In the present incident, it is established that members of the security forces had persistently warned the deceased, who were members of the MKP/HKO terrorist organisation, and asked them to stop and surrender. The deceased, who were members of the MKP/HKO terrorist organisation and who opened fire and injured a gendarme soldier, were then recovered dead together with their weapons.
In the course of anti-terrorism measures, members of the security forces have the power to use weapons pursuant to s. 1-3 of Law No. 1481 and s. 39-40 of the Regulations on the Establishment and Powers of the Gendarmerie: the latter was drafted in accordance with s. 24 of Law No. 280, and additional section 6 § 2 of Law No. 2559.
According to Article 2 § 2 of the European Convention on Human Rights, members of the security forces can use weapons if it has become absolutely necessary to do so.
In recovering dead the members of the MKP/HKO terrorist organisation, members of the security forces used their weapons in accordance with s. 24-25 of the Turkish Criminal Code, Article 2 § 2 of the ECHR and s. 17 § 4 of the Turkish Constitution, and they did so within the limits of their powers and duties. It is clearly established that their actions were lawful within the context of self-defence. Thus, no offence was committed by the members of the security forces who killed the deceased or by members of the security forces and the administrative officials who planned the operation and ordered it ... The decision is hereby taken not to continue with the investigation...”
62.  The applicants lodged objections to the prosecutor’s decision on 14 and 22 July 2006. In their submissions the applicants also referred to the Kemah report and drew attention to the discrepancies between that report and the Ovacık report. They argued, in particular, that in the Kemah report there was no mention of any warnings having been issued to their seventeen relatives to surrender. In the Ovacık report it was stated, however, that their relatives had been given warnings to surrender. The applicants pointed out in this connection that, instead of trying to assess which version had represented the truth, when closing the investigation the prosecutor had completely ignored the Kemah report, in which no mention was made of surrender warnings, and relied solely on the Ovacık report.
63.  The applicants further argued that no investigation had been conducted into the roles played by and the actions of members of the security forces during the operation. In fact, they had not even been named or questioned. Furthermore, no attempts had been made to find out what types of weapons had been used by the security forces in the operation.
64.  The applicants also referred to the documents in the Kemah prosecutor’s investigation file concerning the actions of the three men who had been arrested on suspicion of helping their relatives. They submitted that those documents showed that members of the security forces had not simply “come across” their relatives on 17 June 2005 as alleged in the Ovacık report (see paragraph 22 above). Instead, those documents showed that the operation had in fact started on 2 June 2005 and had been meticulously carried out. For example, twelve of their relatives had been under close observation by the security forces from the time of their arrival in Erzincan on 2 June 2005, and their telephone conversations with the three men who were under investigation for helping them had been intercepted and their meetings photographed. According to the applicants, this background information showed that, instead of arresting their relatives at a much earlier stage, members of the security forces had chosen to wait until their relatives went to the countryside where the conditions were suitable for an operation to kill them. Nevertheless, despite their importance and relevance, none of the above factors had been taken into account by the prosecutor in the investigation.
65.   The applicants argued that if the prosecutor had taken notice of the contents of the Kemah report he would have seen that no warnings had been issued by the soldiers before they opened fire on their relatives. Indeed, given that the first contact had been with their relative who had been on lookout duty and the members of the security forces who had been in the helicopter, it was improbable that such a warning had been issued first. Thus, the prosecutor’s reliance on the alleged warnings to surrender when concluding that the killings had been in self-defence was without basis.
66.  The applicants also criticised the justification proffered by the prosecutor for the use of heavy weaponry by alleging that their relatives could have set up booby-traps. They argued that there was no evidence in the file to support the prosecutor’s conclusion. In particular, it was impossible to reach such a conclusion without first questioning the soldiers who, in any event, had not made any allegations that there were booby traps. The applicants argued that by doing so the prosecutor had replaced the lack of any evidence with his subjective assumptions and that the conclusion reached by him could not, therefore, have any legal significance and could not prove that the force used had not been excessive.
67.  The applicants alleged that the prosecutor had failed to establish with any clarity the way in which their relatives had been killed. They submitted that, according to the news coverage of the incident in the media on 17 June 2005, initially nine of their relatives had been killed by bombs, and that those media reports were compatible with the Kemah military report. The remaining eight relatives had been killed mostly by bullets, because after the initial heavy bombing the soldiers on the ground had formed a circle around the eight relatives and shot them.
68.  The applicants also criticised the fact that the swabs taken from the hands of their relatives were examined at the Forensic Laboratories of the Police in Diyarbakır rather than at the independent Forensic Medicine Institute. Moreover, when taking into account that their relatives had been killed in the course of a military operation during which heavy weapons had been used and that their bodies had been carried by soldiers who had taken part in the operation, the prosecutor’s conclusion, which was based on the forensic reports showing that they had gunpowder residue on their hands, that their relatives had taken part in the armed clash was not compatible with the other information in the file.
69.  Furthermore, no fingerprint analysis had been conducted on the rifles with a view to establishing whether they had their relatives’ fingerprints on them. Similarly, although the fact that only spent cartridges belonging to Kalashnikov and G3 rifles had been found after the operation could lead to the assumption that only G3 and Kalashnikov rifles had been used in the operation, the failure to specify exactly where those spent cartridges had been found and the added failure to collect the spent cartridges discharged from the rifles used by the soldiers discredited that assumption.
70.  In addition to the above, in their complaint the applicants also criticised the prosecutor’s failure to identify the names of the soldiers who had killed their relatives, to establish the exact locations and movements of both their relatives and the soldiers, to visit the scene, to identify the weapons used by members of the security forces, and to safeguard the clothes removed from the bodies of their relatives.
71.  The applicants argued that, in the light of the serious failures it could not be said that an effective investigation had been conducted. Indeed, when looking at the investigation as a whole, one could see that both the security forces who had prepared the military reports after the operation, and subsequently the prosecutor, had been convinced that their relatives had deserved to die and that that had been the real reason behind their failure to take even the most basic investigative steps. In that connection they also criticised the fact that evidence had been collected by the soldiers who were supposed to be under investigation.
72.  The applicants concluded their complaint by arguing that, in the light of the shortcomings in the investigation, the prosecutor had not been in a position to decide whether or not the use of force was justified under the national legislation set out in his decision.
73.  The objection lodged by the applicants against the prosecutor’s decision was rejected by the Erzincan Assize Court on 24 August 2006. The Assize Court’s decision is as follows:
“The complainants submitted through their legal representatives that, although their relatives who were killed on 17 May 2005 (sic) could have been apprehended alive, members of the security forces had acted with the intention to kill and that they had stripped the clothes off their relatives and displayed their bodies publicly. Their complaint was therefore against the military and administrative authorities who had ordered the operation, planned it, and carried it out.
At the end of the investigation carried out by the Ovacık prosecutor a decision was taken not to bring criminal proceedings against the military or administrative authorities who had ordered the operation, who had overseen it and who had executed it, for the killings of the deceased persons and for displaying their bodies. It was considered that no offence had been committed.
Having examined the file, a decision is hereby given to reject the objection lodged by the complainants because the Ovacık prosecutor’s decision is in accordance with the procedure and the legislation”.
74.  In the meantime, on the same date as he closed the investigation ‑ that is on 20 June 2006 – the Ovacık prosecutor also prepared a report and sent it to the Malatya prosecutor’s office. In his report the Ovacık prosecutor asked his colleague in Malatya to take the necessary action against the applicants’ deceased relatives who, according to the evidence in his possession, had committed the offences of membership of a terrorist organisation and had attempted to destroy the constitutional order through armed struggle, and had injured a soldier.
75.  On 18 August 2006 the Malatya prosecutor decided not to bring criminal proceedings against the applicants’ relatives, because they were dead.
76.  According to a document which was made available to the Court by the respondent Government and which was prepared by the Ministry of Justice on 12 May 2009 and sent to the Ministry of Foreign Affairs apparently in order to advise the latter when preparing its observations to be submitted to the Court, the applicants’ relatives’ clothes and a number of other items found on their persons were destroyed on the orders of the Ovacık prosecutor, on the ground that they had no evidential value.