ITEMID: 001-60509
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ORHAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2;Violation of Art. 3 in respect of applicant;Violation of Art. 5;Violation of Art. 8 and P1-1 in respect of applicant and brothers;Violation of Art. 8 in respect of applicant's son;Violation of Art. 13;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 9. The case mainly concerns events which took place in May 1994 at Deveboyu hamlet of Çağlayan village in the Kulp district of the Diyarbakır province in south-east Turkey. From Çağlayan village the road goes to Zeyrek, to whose gendarme station Çağlayan village and its hamlets are attached. Zeyrek is on the main road between the towns of Kulp and Lice.
The applicant alleges that on 6 May 1994 the State's security forces burned and evacuated the hamlet of Deveboyu and that on 24 May 1994 the same soldiers returned to Deveboyu detaining the applicant's brothers (Selim and Hasan Orhan) and his son (Cezayir Orhan), after which those three relatives (“the Orhans”) disappeared.
10. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 6 to 8 October 1999.
They heard the following witnesses: the applicant; Adnan Orhan (son of Selim Orhan); Mehmet Emre (the applicant's cousin from the neighbouring hamlet of Gümüşsuyu of Emalı village); Mehmet Can (son-in-law of Selim Orhan who lived in Diyarbakır at the relevant time); Ahmet Potaş (Commander of Zeyrek Gendarme station); Ali Ergülmez (Commander of Kulp District Gendarme Station); Ümit Şenocak (Deputy Commander of Kulp District Gendarme Station); Kamil Taşcı (Commander of Kulp Central Gendarme Station); Şahap Yaralı (Commander of Lice District Gendarme Station); Hasan Çakır (Commander of Lice Central Gendarme Station); Aziz Yıldız (succeeded Hasan Çakır); Mustafa Atagün (prosecutor in the office of Diyarbakır Chief Public Prosecutor); and Mehmet Yönder (a Kulp public prosecutor).
11. The transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. Additionally, the parties have provided further documents to the Court which had been requested by the Commission.
The submissions by the parties on the facts (Sections A and B), the material submitted by the parties in the present case (Sections C and D), relevant material submitted by the Government in the Çiçek case (Çiçek v. Turkey, no. 25704/94, ECHR 2001 – Section E below) together with the oral evidence to the Delegates (Section F) are summarised below.
12. Between 1992-1994 a large number of disappearances and unexplained killings occurred in south-eastern Turkey in the context of counter-insurgency measures against the PKK. The province of Diyarbakır and its districts of Lice and Kulp were particularly affected.
13. The applicant, Salih Orhan, was born in 1955. Selim and Hasan Orhan (born in 1954) and were his only brothers. His eldest son, Cezayir, was born in 1977. At the relevant time, all lived in Deveboyu, the applicant and his brothers each owning separate houses.
14. On 20 April 1994 military forces of 300-400 men with over 100 vehicles pitched camp near Deveboyu.
15. On 6 May 1994 at around 6.00 a.m. a number of the soldiers entered the village. The village imam announced that their Commander required the villagers to assemble in front of the mosque, which they did. The Commander then announced that Çağlayan village (including the Deveoboyu hamlet) was to be burnt, but that he would allow the villagers to remove their possessions. The applicant returned to his house and started to remove his possessions. As he was doing so, the soldiers set fire to his and others' houses. Having completed this task and given the villagers three days to leave the village, the soldiers moved on.
16. The following day the applicant, together with other villagers, went to Kulp District Gendarme Command to report the incident and to seek permission to stay in the area long enough to harvest the crops. Ali Ergülmez, the commander of that station, told him that the soldiers had come from Bolu and that the villagers could remain until the harvest.
17. On 24 May 1994 more soldiers were seen in the vicinity of the village. The Orhans were repairing their houses and did not notice the soldiers arriving. Each of the three men was taken into custody by the soldiers. One of the soldiers explained that the Commander wanted to see them, that the soldiers did not know the way and that they could come back to the village afterwards. They left on foot up the hills. At around 4.30 p.m. on the same day, the soldiers and the Orhans were seen in the neighbouring hamlet of Gümüssuyu. They were smoking cigarettes and appeared to be in good health.
18. On 25 May 1994 the applicant went to Zeyrek Gendarme station and enquired about their whereabouts. Ahmet Potaş told him that the Orhans had been taken to Kulp. He went to Kulp and spoke to Ali Ergülmez.
19. Having obtained no information as to the whereabouts of the Orhans, the applicant made formal complaints to the Kulp Chief Public Prosecutor, the Diyarbakır State Security Court, the State of Emergency Regional Governor and to the Diyarbakır Public Order High Command.
20. Approximately one month after the Orhans' disappearance the applicant was put in contact with Ramazan Ayçiçek. The latter had been detained in Lice Boarding School with the Orhans before being transferred to Lice prison. He had seen the Orhans and he told the applicant that all three Orhans appeared to be “in a bad way”.
21. The applicant received no further news about the Orhans or any response to his complaints about the burning of Deveboyu.
22. The Government did not dispute that there had been numerous counter insurgency military operations in the province of Diyarbakır at the relevant time.
23. However, they disputed three main questions of fact. In the first place, they maintained that there was no military operation on 6 or 24 May 1994 in Çağlayan village as alleged or at all and they referred in this respect to the operations' record submitted to the Court in August 2000 (see paragraph 124 below). Secondly, and consequently, the Orhans had not been taken into custody. The Orhans were not wanted for any offence. The military cannot take any person they apprehend into custody. They must turn such persons over to the gendarmes and the records of all relevant gendarme stations show that they were not detained. Thirdly, full investigations were carried out by the appropriate authorities on foot of the applicant's complaints, which authorities concluded that there were no facts requiring to be further pursued or offences requiring prosecution.
24. The Government considered therefore that it has not been proved beyond reasonable doubt that Çağlayan village was burned, or that the Orhans were detained, by the security forces. Accordingly, they submitted that it had not been demonstrated that any such destruction or disappearances were attributable to the State.
25. On 20 April 1994 between 300 and 400 soldiers with over 100 vehicles arrived in Deveboyu. The soldiers stayed near the hamlet. Along with other villagers, the applicant carried the soldiers' tents, backpacks and other equipment. During this time, Ahmet Potaş, the Zeyrek Gendarme Station Commander, and those under his command were bringing equipment to the soldiers. Ahmet Potaş had earlier told the villagers that the soldiers were from the Bolu Commando Unit, that no news had been received from persons who had been taken into custody earlier by that unit and that the villagers were to try not to be taken into custody and to be cautious.
26. After staying nearly 3 days beside the village, the soldiers went to the Bingöl Muş region on operation. At around 6.00 am on 6 May 1994, they returned to the hamlet and some of the soldiers gathered in front of the mosque. The village imam announced that the commander of the security forces required the villagers to assemble in front of the mosque. All villagers so assembled. The unit commander then told them to remove their belongings within one hour as the village would be burned. They went to their houses and began removing their belongings but, as they were doing so, the soldiers began burning the houses. After they burned the village, the soldiers gave them three days to evacuate the village and left in the direction of Kulp. After the soldiers left, the villagers managed to save a small part of their belongings, most of which were irreparably damaged by the fires.
27. On 7 May 1994 they went to Kulp District Gendarme Command and reported the incident. They were told that the soldiers had come from Bolu. They explained that they could live in tents until the harvest and were given permission to do so. They began to make preparations for the harvest and attempted to repair the houses which had not been completely destroyed. The soldiers were still on operations in the vicinity of the village and, on seeing them arrive, the villagers would hide outside the village.
28. On 24 May 1994 soldiers were seen in the vicinity of the village and the men hid. However, the Orhans were busy repairing the houses and did not see the soldiers. The women and children of the village saw the soldiers taking them away. The applicant hid from the soldiers that day but was told by the women and children of the village that the soldiers who took the Orhans were those who had burned the village. Neither of the Orhans had been in custody before and Selim was an honorary imam. At around 4.30 p.m. that day the soldiers and the Orhans had reached Gümüşsuyu and people from that hamlet saw the Orhans with the soldiers. The Orhans were smoking cigarettes with the soldiers and were fine.
29. On 25 May 1994 some villagers went to the Zeyrek Gendarme Station and recounted the incident to Ahmet Potaş who said that the Orhans had been taken to Kulp. They therefore went to Kulp. However, the Commander in Kulp told them that he had no information.
30. The applicant therefore filed, to no avail, applications with the Kulp Chief Public Prosecutor, the Public Prosecutor at the Diyarbakır State Security Court, the State of Emergency Regional Governor and the Public Order High Command in Diyarbakır.
31. One month later the applicant heard that a person called Ramazan Ayçiçek, who had previously been held in custody in Lice Boarding School, had been transferred to Lice Prison. The applicant went to see him there and Ramazan Ayçiçek told him that he had seen the Orhans during his detention in the Lice Boarding School and that they were in very bad condition.
32. The Orhans had been arrested in Deveboyu during an operation by gendarmes on 24 May 1994 and no news had been received since then from them despite applications made. The applicant requested information.
33. During a military operation in Çağlayan, the security forces had taken the Orhans with them, asking them to act as guides. The applicant had had no news since and he requested assistance in obtaining information.
34. The applicant also submitted:
35. He confirmed his intention to continue with the present application and the contents of his statement of 3 November 1994.
36. On 24 April 1995 Diyarbakır police officers came to his house and told his wife that that a public prosecutor wanted to take his statement. Although he hesitated to do so, he eventually went to the Diyarbakır Chief Public Prosecutor's office and made a detailed statement. The prosecutor asked in an angry voice why he had taken his case to a foreign country and who had so advised him. The applicant did not know what the prosecutor wrote down in the statement as it was not read back to him. He was asked to sign the statement and he did.
37. In 1994 the witness was 12 years old. He attended Lice Boarding School from late 1993 until the end of April 1994. Otherwise he lived at home with his father (Selim Orhan) and family. Lice Boarding School had two main buildings: one for teaching and administration, and one for accommodation. The military building was about 200 metres away from the school accommodation buildings.
38. The witness saw many military vehicles coming to the military building. On one occasion, he saw people in plain clothes in one such vehicle and he and his friends believed that those people had been detained. He had also seen some soldiers with blue hats within the school compound.
39. Towards the end of April 1994 the witness returned to Deveboyu as he was unwell. There were many soldiers in the area and some of then had blue berets. About 15 days thereafter 250-300 soldiers came and burned the village. Two or three soldiers burned his father's house with dry grass and some kind of powder.
40. Two weeks later soldiers came back to the village on foot at about 7-8.00 a.m. The witness was in a garden about 20-25 metres from his house. The soldiers asked his father (Selim) for his identity card and he gave it to them. When they asked if any other men were in the village, Hasan and Cezayir came forward. They were asked for their identity cards and they produced them. When the soldiers asked the witness' father to go with them, his father asked why and the witness then moved closer. The witness asked his father where he was going and his father said that the soldiers wanted a guide. The witness asked the commander where he was taking the Orhans, and the latter replied that they would be released.
41. At that stage his mother, brothers and sisters had arrived and all followed the soldiers as they took the Orhans away. They were crying. His uncle's wife produced her Koran and begged them not to take the Orhans. At that stage the witness heard the commander speak on his radio saying that the named persons were with him, but that the families were objecting to them being brought away and asking what to do. The voice on the radio said to bring the Orhans anyhow. The group followed the Orhans and the soldiers for a while until the commander said that, if they continued following, bad things would happen. That was the last time the witness saw his father.
42. In May 1994 the witness was living in Diyarbakır. One day he returned home from work and his wife told him that Deveboyu had been burned. The following day he took his vehicle to Deveboyu to help the villagers, including his relatives. On his way there he saw a large number of soldiers in the area, about 300-400. The village was still burning when he arrived and he was told that the soldiers had burned the village. He helped about 8 families to remove their remaining possessions to Diyarbakır.
43. About 19 days later his wife told him that her father (Selim) together with Hasan and Cezayir Orhan had been taken into custody. He and his wife again then went to Deveboyu in his vehicle and were told when they arrived that the Orhans had been taken away by soldiers.
44. In May 1994 the witness was living in Gümüşsuyu. One day, he saw the Orhans in the custody of some soldiers in Gümüşsuyu. That evening, the applicant came to Gümüşsuyu and asked if anyone had seen the Orhans and he told the applicant what he had seen.
45. The next morning the witness went to Zeyrek Gendarme Station with an old man from Gümüşsuyu to ask what had happened to the Orhans. He spoke to Ahmet Potaş who said that the Orhans had been taken to Kulp. After leaving Zeyrek station, he met the applicant and told him what Ahmet Potaş had said.
46. These were submitted to the Delegates during the taking of evidence.
47. The sketch was completed by Adnan Orhan while giving evidence before the Delegates.
48. During a military operation conducted at Deveboyu on 24 May 1994, the Orhans were taken by soldiers who told them that they were needed as guides and that the soldiers' commander wanted them anyway. Since 15 days had passed without any news, the applicant requested reliable information about the Orhans' current circumstances.
49. The Orhans had been taken away from Deveboyu by soldiers on 24 May 1994. The soldiers asked them to act as guides and told them that, in any event, the soldiers' commander wanted them. Since then, the applicant had not heard from the Orhans and he requested an investigation into their fate.
50. The relatives of the Orhans of Deveboyu had made an application about the Orhans who were taken on 24 May 1994 by soldiers and about whom no news had been received. The addressee was requested to “investigate” and to revert within one week.
51. Reference was made to the applicant's complaint about the Orhans' apprehension on 24 May 1994 and their subsequent disappearance. It had been reported that the Orhans were, at the time, detained by the military units billeted in Lice Boarding School. The addressee was requested to investigate whether the Orhans were detained by/in the company of the units billeted at the school and whether the Chief Public Prosecutor's Office had any current proceedings against the Orhans.
52. Further to the Kulp public prosecutor's letter of 8 June 1994, an investigation and inquiry had been carried out. The Orhans had not been detained by his command and his command did not participate in an operation on or around the date indicated. The search for the Orhans would continue and further developments would be reported.
53. The addressee was requested to secure the presence of the applicant and of Kamil Ataklı (the muhtar of Çağlayan) at the office of the Kulp Chief Public Prosecutor as soon as possible.
54. The Orhans were apprehended by soldiers and were detained in Kulp overnight and then in Lice Boarding School for 20 days. The applicant had no news. He had petitioned, to no avail, the Diyarbakır State of Emergency Regional Governor, the Provincial Governor, the Provincial Gendarme Brigade Command and Kulp Central Gendarme Command. The soldiers had indicated that there was “complaint” against the Orhans.
55. The addressee was to confirm whether the Orhans had been referred to the addressee to be detained.
56. About four months previously Bolu Commando Brigade arrived in Deveboyu on operation. He was told about the Orhans being taken away by soldiers of that brigade a few days after it took place. He was told that the children of those taken away had followed the soldiers and the Orhans for some time but were told by the commanding officer on the radio that the Orhans would be released. He went to Zeyrek station and was told that the soldiers had gone towards Lice on operation, accompanied by civilians.
57. He had already submitted a petition (8 June 1994) and made a statement (22 August 1994) to that office. He still had no news of the Orhans and his search continued. He requested that the Orhans be found and that those who detained them be punished.
58. The persons mentioned in the letter of 18 August 1994 had moved.
59. The addressee was asked whether it had detained the Orhans. Stamps on the letter, of the Chief of Administration and of the Prevention of Terrorism Directorate, dated October 1994, stated that the Orhans were not wanted and did not have criminal records.
60. The addressees were asked to confirm, for the purposes of a preliminary investigation, whether the Orhans had been referred to them to be detained or whether they were under arrest. A stamp on the former letter indicates that the Chief Public Prosecutor of the Diyarbakır State Security Court did not find the Orhans' names in that office's records.
61. Pursuant to the letter of 3 October 1994, a search through the computer records for 1993 and 1994 did not reveal the Orhans' names. The addressee was referred to the Chief Public Prosecutor of the Diyarbakır State Security Court.
62. Pursuant to the Kulp Chief Public Prosecutor's letter of 30 September 1994, an inquiry had been carried out. The Orhans had not been detained and were not wanted by the Security Directorate.
63. The Orhans were not in that court's records.
64. A response was requested to the unanswered letter of 11 July 1994.
65. The statement records that a letter of 20 April 1995 from the Ministry of Justice, which was read to the applicant, had referred to the applicant's Strasbourg application and requested the Diyarbakır Chief Public Prosecutor to ensure the investigation of the matter by the Lice Chief Public Prosecutor and to take the applicant's statement. The applicant was also to be asked whether the signature on the form of authority in favour of British lawyers was his. Consideration was to be given to the necessity of determining, as a matter of priority, whether or not an investigation was to be opened under Decree no. 285. The Ministry was to be kept informed. The applicant was then asked to make a statement.
66. Along with his two brothers (Selim and Hasan), the applicant had a house in Deveboyu. On 6 May 1994 300-400 soldiers arrived in Deveboyu. The applicant was in the fields. He heard, on the mosque loud-speaker, that the villagers were to gather at the mosque and ran back. At the mosque, the commander told them to remove their belongings from the houses and to evacuate the village in an hour. The houses were set on fire as persons attempted to remove their belongings. His and his brothers' houses were burned. Prior to leaving, the soldiers ordered the evacuation of the village.
67. The following day they went to the Kulp District Gendarme Command and reported the incident. They asked to be allowed to stay to harvest the crops and the commander agreed. They pitched tents in the hamlet and tended their livestock and crops. They hid when the soldiers subsequently came (twice or three times) by the village. When the soldiers came on 24 May 1994, the applicant was again in the fields. The Orhans were repairing their houses. The soldiers told them that the commander wanted to see them and that they were to show the soldiers the way after which they would come back. The applicant did not see them being taken away but was told about the incident when he returned to the village.
68. The following day the village muhtar and some villagers went to Zeyrek Gendarme station and enquired about the Orhans. They were told that the Orhans had been taken to Kulp. One or two days later, the applicant went to Kulp District Gendarme Station. He asked the Commander about the Orhans who responded that there were 50 operations in the area and that the Orhans had not been taken into his station.
69. The applicant therefore applied to the Kulp Chief Public Prosecutor and to the Chief Public Prosecutor of the Diyarbakır State Security Court, the latter of whom had told the applicant that the Orhans were not in custody. He then filed a petition with the State of Emergency Regional Governor, who referred the applicant to the Diyarbakır Provincial Governor, who referred him, in turn, to the Provincial Gendarme Command. The latter telephoned “Lice”, but the response was that the Orhans were not there. Telephone calls to “Kulp” were not possible as the lines were down.
70. Approximately one month later the applicant was put in contact with Ramazan Ayçiçek who was in Lice prison and he went to see him. Ramazan Ayçiçek told him that he had been in custody in Lice Boarding School with the Orhans prior to being transferred to Lice Prison. Ramazan Ayçiçek was by then (May 1995) in Şanliurfa prison. Lice District Gendarme Command then told the applicant that the Orhans were not “there”.
71. The applicant moved to Diyarbakır. On learning that some villagers had applied to the HRA, he applied and the HRA took his statement. He was shown his statement of 3 November 1994 and identified that statement and his signature. When his letter of authorisation appointing British lawyers was shown to him, he said that he had not been told, as such, that the HRA would appoint British lawyers, that he was only asked to sign a piece of paper and that he did not know that it was a letter of authorisation. He was only told that his statement would be sent to Ankara, but he was not told where in Ankara. His aim was to find the Orhans dead or alive, to be informed about their fate and to obtain compensation for the damage to his property. He had not commenced damage assessment proceedings in any court, although the village muhtar had informed the Regional Governor of the burning of the houses. The applicant therefore petitioned the Regional Governor for a house to replace the one which was burned. He wanted his rights granted by the Turkish authorities and did not want a case in Europe.
72. It is recorded that the statement was read out to the applicant, who confirmed the truth of it by signing it.
73. Referring to the letter of 20 April 1995 from the Ministry of Justice, Mustafa Atagün requested an investigation into the complaints of the applicant who had made a detailed statement and to revert with the results of that enquiry by 1 June 1995 for forwarding to the Ministry.
74. An investigation had been commenced but the Orhans were still missing. Copies of the relevant investigation documents were enclosed.
75. The applicant had claimed that the Orhans had disappeared on 24 May 1994 and had been detained by military units in Lice Boarding School. The addressee was to investigate whether the Orhans had been detained and to revert with the findings.
76. A claim about the Orhans' disappearance and their detention in the boarding school had already been received and investigated. However, and according to the records of that gendarme command, the Orhans had not been detained and their names were not in those records.
77. Referring to the Lice Chief Public Prosecutor's letter of 29 May 1995, that gendarme command had investigated. Since the Orhans' names were not in the records of that command, the conclusion was that that command had not detained them.
78. The addressee was requested to furnish information on the preliminary investigation on the applicant's complaints.
79. On 26 July 1995 the Kulp Chief Public Prosecutor decided that he lacked jurisdiction to pursue the investigation and transferred the matter to the Kulp District Governor.
80. The decision referred to the applicant's complaint: the burning and evacuation of his village on 6 May 1994, the taking into custody of the Orhans by soldiers on 24 May 1994, their later disappearance and the reports of their detention in Lice Boarding School. Since the incident took place while the security forces were carrying out their administrative duties, it was the Kulp District Administrative Council that had jurisdiction to investigate, to which organ the case was transferred.
81. On 24 May 1994 commando soldiers arrived in Çağlayan. He saw the soldiers take the Orhans. Since then, no news of them had been received.
82. The applicant and the Orhans were registered as living in Çağlayan.
83. The applicant had made an application to the European Commission of Human Rights claiming that the Orhans had been detained by security forces on 24 May 1994, that they had subsequently disappeared and that their houses had been burned. The addressee was to confirm by 9 May 1997 whether an investigation had been launched by the Provincial or District Administrative Councils. If so, a copy of the file was to be forwarded.
84. The Kulp Chief Public Prosecutor's file and jurisdiction decision had been sent to the District Administrative Council which had appointed Ali Ergülmez as the Adjudicator in the investigation. He was appointed elsewhere and the file had been put on hold without further progress. The District Governor had appointed a new Adjudicator, the investigation was ongoing and the addressee would be informed of the outcome.
85. Kamil Kündüz was requested to investigate, as Adjudicator, the claims (outlined in the Kulp Chief Public Prosecutor's file) according to the law on the prosecution of civil servants and to report within 3 months.
86. Deveboyu hamlet and Çağlayan village were empty and the residents had gone to Diyarbakır as a result of PKK pressure in 1993-1994. Since their addresses could not be established, more information about the Orhans and their alleged detention and disappearances could not be gathered. The applicant was not at his address in Diyarbakır, so his statement could not be taken. A search of the records showed that the Orhans had not been detained by Kulp District Gendarme Command. In the absence of any perpetrators, there was no need to investigate further.
87. The investigation report was submitted.
88. By letter of 4 June 1999, the Diyarbakır Provincial Governor required the file to be re-opened and an investigation conducted. This letter has not been furnished
89. An investigation was to be opened into the applicant's claims pursuant to the law concerning the prosecution of civil servants and a report was to be submitted as soon as possible.
90. The muhtar of Çağlayan was to be sent to the District Governor for his statement to be taken and the gendarme command confirmed that he would so attend.
91. That gendarme command was requested to confirm before 9 June 1997 whether any operations had been carried out in April-July 1994 and, if so, whether they covered Çağlayan, whether gendarmes had taken part in the operation and who was in charge. The custody records from Zeyrek gendarme station and from Kulp Central Gendarme Command for April-July 1994 were also requested.
92. That gendarme command's records had been examined and it was concluded that in April – July 1994 operations had taken place in the Kulp region but no information, documentation or record had been found which indicated that such operations included Çağlayan village. Extracts of the security and custody records of Zeyrek gendarme station were enclosed. Those of the Kulp Central Gendarme Station for 1994 had been archived and could be obtained from the Provincial archive department.
93. The addressee was to ensure the applicant's attendance before the Kulp District Governor for his statement to be taken.
94. The applicant's address was in Diyarbakır. Çağlayan village had been evacuated and, therefore, the applicant could not be contacted.
95. The Lice District Gendarme Command custody records for April-July 1994 were requested by 9 June 1999.
96. The Lice prison custody records for April-July 1994 were requested.
97. The applicant was to be summoned and sent to the Kulp District Governor for his statement to be taken.
98. The villagers from Deveboyu had told him in 1994 that military units belonging to the Bolu regiment, accompanied by Ali Ergülmez, had taken away the Orhans. He had asked Ahmet Potaş about their fate and he responded that the Orhans were not in Zeyrek Station and that he had no knowledge of them.
99. Given the applicant's allegations of 2 May 1995 that, inter alia, Ramazan Ayçiçek had seen the Orhans in detention and that he was in Şanliurfa prison, the addressee was to see if he was still in that prison, to take his statement if he was and to report back by 15 June 1999.
100. Ramazan Ayçiçek's name was not in the prison records.
101. Given the applicant's allegations of 2 May 1995 that, inter alia, Ramazan Ayçiçek had seen the Orhans in detention and that he was in Lice prison, the addressee was to see if he was still in that prison, to take his statement if he was and to report back by 21 June 1999.
102. Reference was made to a letter of 4 June 1999 from the Ministry of the Interior, to the Diyarbakır Provincial Governor's letter of 4 June 1999 and to the Kulp District Governor's letter of 8 June 1999. An investigation would be carried out to establish the applicant's current address, and his statement would be taken and forwarded by 18 June 1999.
103. The applicant acknowledged that he had been informed that he had to appear before the Kulp District Governor urgently to make a statement.
104. Ramazan Ayçiçek had been imprisoned by Lice Public Order Criminal Court on 10 June 1994 for aiding and abetting the PKK and he was transferred to Diyarbakır E Type secure prison on 25 July 1994.
105. The report repeated the information in the preceding paragraph and added that Ramazan Ayçiçek's village had been evacuated due to terrorist incidents and that his current whereabouts were unknown. It was not possible therefore to take his statement.
106. Nineteen days prior to 24 May 1994, military units said that the village was to evacuated in three days. The villagers began immediately evacuating. After three days they approached the Kulp District Gendarme Commander, Ali Ergülmez, in order to get permission to stay in the village to harvest the crops. Permission was granted.
107. On 24 May 1994 the applicant was told that the soldiers, who had been around the hamlet and acting on orders of their commander, had taken the Orhans to Ziyaret Tepe. He saw the soldiers taking the Orhans away as did other villagers. On the same day he learned that the soldiers had moved on to Gümüşsuyu hamlet of Emalı village. After dark, he went to Gümüşsuyu and asked Hacı Havina (also known as Havine Emre and the applicant's aunt) (his aunt) and Hacı Mehmet about the Orhans. They said that they had seen the Orhans.
108. On 25 May 1994 Mehmet Emre (Hacı Havina's son and the applicant's cousin) and Hacı Mehmet went to Zeyrek and spoke to Ahmet Potaş who said that the Orhans had been taken to Kulp District Gendarme Command by the soldiers in the evening. On 25 May 1994 the applicant, Hasan Sumer, Suleyman Nergiz and Huseyin Can asked Ali Ergülmez about the fate of the Orhans. Ali Ergülmez said that there were about 50 operations in the area and that he did not know who had taken the Orhans.
109. Later, the applicant petitioned Kulp District Gendarme Command, Lice District Gendarme Command and Kulp Chief Public Prosecutor. Approximately one month after the incident, the applicant was in Diyarbakır and he met Esref from the Inkaya district who had a shop in Kulp. He said that the Orhans had been detained overnight with him in Kulp District Gendarme Command. In the morning, they were taken in a military vehicle to the Lice District Gendarme Command where the Orhans and Esref were in custody together for a week. Esref was released at the end of that week.
110. About 35-40 days after the Orhans had been detained, Ramazan Ayçiçek of Mehmetil village, Lice sent a message to the applicant suggesting that they meet. The applicant went to Lice prison and met the Ramazan Ayçiçek. The latter said that, while he was being detained in Lice Boarding School, he had spent one week with the Orhans. On the same date, and many times thereafter, the applicant went to the Lice District Gendarme Command to ask about the fate of the Orhans. He was told that the Orhans were not in Lice.
111. About 50 days after the Orhans' apprehension, he petitioned the State of Emergency Regional Governor. That petition was referred to the Diyarbakır Provincial Government and, in turn, to the Provincial Gendarme Command from where a sergeant major telephoned Lice District Gendarme Command. Their reply was that the Orhans were not there.
112. A report on Ramazan Ayçiçek in Lice prison was enclosed.
113. Custody records of Lice District Gendarme Command for April–July 1994 were submitted.
114. The Lice District Gendarme Command report on Ramazan Ayçiçek was enclosed. The Adjudicator's decision (see paragraph 117 below) later detailed this report: the village of Ramazan Ayçiçek had been evacuated as a result of terrorist incidents and his whereabouts were not known.
115. The Adjudicator's report on his investigation was enclosed.
116. The investigation had taken place between 7 June and 5 July 1999 and the list of documents attached were dated 7 June-July 1999.
117. The Adjudicator concluded that it was unnecessary to prosecute and make a decision. In the first place, the Orhans' names did not appear in the custody records of Zeyrek gendarme station or of Kulp or Lice District Gendarme Commands. Secondly, there were contradictions between the applicant's statement of 2 May 1995 and that of 23 June 1999 regarding whether he had personally seen his brothers being taken away. Thirdly, the muhtar was not a direct witness; he had been told by the villagers that the Orhans had been taken away. Fourthly, the applicant had said in his statement of 2 May 1995 that Ramazan Ayçiçek was in Şanliurfa prison but investigations indicated that he was not, his village had been evacuated due to terrorist activity and his whereabouts could not be established. There was a doubt whether the applicant had met Ramazan Ayçiçek. Fifthly, there existed no document, information or record in Kulp District Gendarme Command as to any operation conducted in April-July 1994.
118. The investigation file and the report were examined. In the absence of any information, documentation or witnesses indicating that the Orhans had been detained by military units or by the Lice or Kulp District Gendarme Commands, the Council decided unanimously not to prosecute pursuant to the law concerning the prosecution of civil servants.
119. Ramazan Ayçiçek had been arrested for possession of a weapon and for aiding and abetting the PKK. He had been referred to a public prosecutor on 10 June 1994. The Lice Boarding School had no gendarme personnel stationed there for detention purposes. It was not possible for Ramazan Ayçiçek, who was detained by Lice District Gendarme Command on 7 June 1994, to have seen the Orhans as claimed as Lice Boarding School was 2 kilometres away from that command.
120. Entry No. 43 refers to Ramazan Ayçiçek as having been detained on charges noted above. The fourth column notes that his detention was ordered by District Gendarme Command and the fifth column notes his detention on 7 June 1994 at 16.00. The entry spills over to a second line, noting that he departed from Lice District Gendarme Command on 10 June 1994 at 14.00 as he had been referred to a public prosecutor.
121. The incident location establishment report dated 7 June 1994 referred to a gendarme operation on that day, to their finding a rifle on Ramazan Ayçiçek's premises and to his arrest that day. In his statement of 9 June 1994 he stated that he had assisted the PKK and inherited the rifle.
122. In contrast, the “minutes of interrogation” dated 10 June 1994 noted that the applicant stated that he had been apprehended during a military operation around 22 May 1994 and taken “to District”. It was there he had made the above-described statement which he denied, pointing out that he had been made to sign it without knowing what was in it. On 17 August 1995 the State Security Court decided that there was insufficient evidence of aiding and abetting the PKK and ordered his release. However, the illegal possession of firearms issue was retained for trial.
123. The Lice records are dated February–August 1994, those of Zeyrek are dated March – November 1994 and those of Kulp are dated February-December 1994. There is no reference to the Orhans in those records.
124. This is a one-page table-style document summarising 30 military operations in the Diyarbakır province which took place from 2 to 31 May 1994. No operations are noted for 6 May 1994, but many are recorded for the day before and after. Operations also took place on 23, 24 and 25 May 1994. No reference is made to Deveboyu, Çağlayan or to Gümüşsuyu, although two operations are noted as having taken place both in the Kulp (10 and 16 May) and Lice (11 and 13 May) districts.
125. Upon the request of the Delegates in the above-cited Çiçek case, the Government furnished plans of Lice Boarding School. These constituted three pages, each page covering a floor in one building.
126. The Delegates heard the testimony summarised below.
127. He was born in 1955. Selim and Hasan Orhan are his elder and only brothers and Cezayir Orhan his eldest son. In April and May 1994 he was living in Deveboyu. Cezayir lived with him and he and his brothers each owned a house in that hamlet.
128. On 20 April 1994 300-400 troops arrived, passed the village and set up tents just above the village. The following day their provisions arrived by military vehicles. The villagers helped the soldiers take the provisions to their tents either on their backs or by using pack animals. The applicant first said that the force was made up of both gendarmes and regular infantry soldiers, he later affirmed that they were “ordinary soldiers” and then clarified that he could not distinguish between commandos and gendarmes. In any event, they were all dressed in military uniform. He did not know any of them. From time to time the village council and the muhtar visited Zeyrek gendarme station where Ahmet Potaş said that the soldiers were from the Bolu regiment.
129. After a week or two, the soldiers went on operation towards the Bingöl-Muş border. In the afternoon of 6 May 1994 they returned and surrounded the village. Using the loudspeaker of the village mosque, they called to villagers to gather at the mosque. The villagers assembled quickly. The commander said that the villagers had one hour to take their belongings after which the village would be burned and evacuated.
130. The villagers returned to their houses immediately, but as they were going back, the soldiers began burning the houses. A commander and a platoon of soldiers was assigned to each neighbourhood in the village. The applicant managed to move some of his family's possessions outside but soon after they started burning his house using hay he had stored. His house, those of his brothers, the majority of their possessions and most of the houses in Cağlayan village were burned.
131. The soldiers stayed in the village that night and left in the morning.
132. The following morning, 5 or 6 villagers (including Selim Orhan and the village muhtar) went to Zeyrek gendarme station to ask permission to stay to harvest the crops. Ahmet Potaş said that Kulp District Gendarme Commander had the authority to decide such things but he did not. At Kulp, Ali Ergülmez gave them permission. They therefore stayed in make-shift shelters in Deveboyu until the harvest.
133. Some villagers started to repair their houses in the hope that they would be allowed to return someday. Every three or four days, soldiers went by the hamlet and proceeded up into the hills.
134. On 24 May 1994, in the early morning, the soldiers came back to the village. The applicant had gone to a work in a field some distance away. Most of the men had already left for the city, but his brothers and his son remained and were working on the houses. When a group of soldiers came into the village, the remaining men hid in the fields. The soldiers asked about the Orhans and took their identity cards. Everyone including the children were there, although it was a coincidence that Cezayir was there as he had just come home the previous day (for a religious holiday) from his work as a plasterer with a sub-contractor at Malatya İnönü University.
135. When they said that they would take the Orhans, the women implored them not to, but they responded that the commander was farther up the hill waiting, that the Orhans had to give a statement and that they were needed, in any event, as guides. They would be released later. A crowd gathered. The applicant saw, from where he was in the field, the soldiers accompanied by the Orhans going up the hill towards Gümüşsuyu. The women and children followed them for approximately 50-100 metres imploring the soldiers not to take the Orhans.
136. The hamlet of Gümüşsuyu is 15 minutes away from Deveboyu on foot on a rough tractor track. The villagers in Gümüşsuyu have fields in Deveboyu and so the villagers of both hamlets knew each other. The applicant's aunt, Hacı Hevina, lives in Gümüşsuyu. The soldiers arrived in Gümüşsuyu on foot with the Orhans. That evening, the applicant went to Gümüşsuyu to see if he could get some news from the villagers. He met Mehmet Emre who told him that, when the soldiers initially came, they had left their vehicles in Gümüşsuyu and then walked from there to Deveboyu. On the way back through Gümüşsuyu, they brought the Orhans where they were seen taking a rest by numerous villagers who took water to them. The Orhans appeared to be in good condition and were smoking cigarettes. Mehmet Emre and an old villager, Hacı Mehmet, spoke to the Orhans. Hacı Mehmet also asked the soldiers what the Orhans had done and the commander threatened to take him into custody instead. The Orhans were put into military vehicles and taken away in the direction of Zeyrek.
137. The next morning the applicant set out for Zeyrek Gendarme station. On the way, he met Mehmet Emre and Hacı Mehmet coming back from the station. They had seen Ahmet Potaş who had told them that the Orhans had passed through with soldiers the previous evening and had been taken to Kulp. The applicant then went to Zeyrek station with the village muhtar and other villagers, to ask what had become of the Orhans. Ahmet Potaş said that they had apparently been taken to Kulp.
138. On about 6 June 1994 the applicant went to Kulp District Gendarme Command where Ali Ergülmez said that there were 50 operations taking place, that he did not know which unit had taken the Orhans, that he would make enquiries and that the applicant should return in couple of days. The applicant went back many times, but obtained no news of the Orhans.
139. He identified the petitions he then lodged with the Kulp Chief Public Prosecutor, with the State Security Court prosecutor in Diyarbakır and with the State of Emergency Governor in June and July 1994.
140. Some time later the applicant was in Diyarbakır and bumped into “Eşref”. He said he had been detained with the Orhans in Kulp District Gendarme Command for one night. The following morning they were taken by military vehicle to Lice “Central District” station where all were detained for three nights. Eşref was released and the Orhans remained. Subsequently, the applicant could not trace Eşref.
141. About a month after the Orhans were detained, Ramazan Ayçiçek sent word to the applicant to contact him. The applicant was allowed to see him in Lice prison as he told the prison officers that Ramazan Ayçiçek was a close acquaintance and that he was asking about his brothers and his son. Ramazan Ayçiçek told him that he and the Orhans had been detained in Lice Boarding School for a few days after which he was transferred to prison. The Orhans remained in the school. The applicant confirmed that Ramazan Ayçiçek had said nothing about the Orhans' condition. The applicant understood that Ramazan Ayçiçek was transferred from Lice to Şanilurfa prison, served his year sentence and was released after which he and his family left home. The applicant had been unable to trace him. This was the last information received by the applicant about the Orhans.
142. The applicant then returned to Lice District Gendarme Commander, who said that no one by the name of Orhan was in custody in his command.
143. The villagers stayed in Deveboyu for the harvest and left in late 1994. They spent the summer in make-shift shelters.
144. Having been summoned, on 2 May 1995 the applicant made a statement to a prosecutor of the Diyarbakır State Security Court. The prosecutor, the applicant and a typist were in a room. The prosecutor got very angry and shouted, wondering how the State could kidnap people and make them disappear and saying that people get the punishment they deserve. The applicant said that he was upset, grieving and sad. He broke down, became confused and completed the statement in that state. He did not remember giving a statement in which he said that he did not wish to take proceedings before the Commission.
145. He submitted copy photographs of the Orhans to the Delegates. He had never been asked for photographs or for the names of those in Deveboyu who had witnessed the Orhans being taken away. He had never received any information from the authorities about their investigations into the destruction of Deveboyu or the disappearance of the Orhans.
146. The applicant explained the sorrow and hardship suffered by him and the Orhans' families: their continuing wish was to find the Orhans, whether dead or alive.
147. The witness was born in 1982. He is a nephew of the applicant and the eldest son of Selim Orhan. He lives in Diyarbakır with his family. He and his brothers and sisters were agricultural workers.
148. In April 1994 the witness was in the first year of junior high at Lice Boarding School, situate on the outskirts of Lice about 15-20 minutes walk from the centre of town. He had joined the school about 5 months earlier. There were roughly 10-12 classes with 70 to 80 students in each class. There were three buildings in the school complex each of three stories. One was the dormitory building, the second contained the classrooms and the third was the military housing. The complex was a large area surrounded by barbed wire with soldiers on guard duty and completing identity checks at the entrance. At the Delegates' request, the witness roughly sketched the three buildings in the complex.
149. The witness was shown the plans of the boarding school submitted by the Government in the above-cited Çiçek case. The plans covered the three floors of the classroom building. The classrooms were in the upper part of the building and the refectory (yemekhane) was on the lower floor (with a library and administrative offices). The plans did not therefore cover the military building.
150. The military building was not separated by any form of barrier or fencing from the other school buildings. While the witness could have gone to that building, he never had or wanted to. Soldiers were based permanently at the military building and soldiers also came and went frequently. Military vehicles (tanks, panzers and the like) would also come and go and were parked just next to the military housing. The witness did not recognise specific uniforms. All he knew was that they were soldiers. About 15-20 days before the witness left the school, he saw soldiers in blue berets for the first time. One day when the witness was sitting with his friends, he saw military vehicles entering the military building. The witness had wondered about certain persons in those vehicles in civilian clothing. Since he was not used to seeing civilians among soldiers, he asked a friend who said that the civilians had probably been taken into custody.
151. In April 1994 he was home from school in Deveboyu as he was ill. A few days later, about 250-300 soldiers arrived and went up the hill. They were dressed in the usual green uniforms. While he initially said they had blue berets, he confirmed later that he was not sure.
152. A few days after that, they returned to Deveboyu. They came into the village, set the houses on fire, including his home, and there was smoke everywhere. He was in his father's house when they set it on fire. The soldiers surrounded the houses and two or three went inside to start the fire although he was not sure precisely how they started it. His family managed to throw some belongings outside before the fire caught. Other houses also burned and, while the smoke made it difficult to see precisely how many burned, his own and the applicant's houses burned. Having waited for the houses to burn, the soldiers left the village. Thereafter, he and his family lived in the garden under bits of nylon and plastic awaiting the harvest.
153. One or two weeks later, around sunrise, the soldiers came down the hill towards the tents of the applicant, Selim Orhan and of Hasan Orhan, which tents were next to each other. The soldiers stopped at the witness' family's tent which was the first in their path. The commander saw the witness' father (Selim), called him over (not by name) and asked for his identity card. The soldiers asked what other men were there and his father told them that his uncle (Hasan) and cousin (Cezayir) were. As ordered, his father called them over and their identity cards were taken. The Orhans were told that they were all needed as guides.
154. The witness went for a moment behind his nylon tent and, when he came out, the soldiers had started taking the Orhans up the hill. His brothers, his mother, his aunt and her children started to beg the soldiers not to take them away. His aunt even brought the Koran over and asked the soldiers, for the love of the Koran, not to take them away. But the soldiers did not pay any attention and said that they were not to be followed. The Orhans would be released, whereas if the villagers followed bad things could happen. More pleading led to the commander calling a more superior officer on the radio. The former said that he had “these people” and queried whether he should bring them in. The superior commander ordered the soldiers to bring the Orhans. The soldiers and the Orhans went up the hill on foot in the direction of Gümüşsuyu and the villagers went back. The hill is so high that the group was visible from the village and, indeed, from some of the families' fields where the applicant had gone that morning.
155. The witness never saw his father again. He could not return to school, something he enormously regretted: since he was the oldest surviving male in his family and had become the head of the family, he had to work to support his family.
156. The witness was born in 1971 in Deveboyu. He is the son-in-law of Selim Orhan. Since 1984 he had been a migrant worker, never spending more than a month per year in Deveboyu. The witness' father had a house in Deveboyu. The applicant, Selim Orhan and Hasan Orhan had houses close to each other in Deveboyu. Cezayir Orhan lived with the applicant.
157. In 1993 Güldiken and Derecik villages were destroyed. His brother-in-law and sister-in-law had lived in Güldiken and after its destruction they stayed with Selim Orhan for a while. Rabia and Mahmut Kaya stayed with his father for a year after Derecik had been destroyed. Those villagers said that the soldiers had burned the villages because they had been accused of assisting and harbouring terrorists. The witness had considered that it was just a matter of time before the same would happen in Çağlayan, so he and his wife moved to Diyarbakır. He lived in Diyarbakır at the relevant time.
158. One evening in April 1994, when he returned home from work, his wife told him that their village had been destroyed by soldiers. The next morning he got up early, hired a lorry and went to the village. He went through a military check point in front of Zeyrek gendarme station where he saw innumerable tanks, panzers and other military vehicles.
159. From there to the centre of Çağlayan, the witness saw a large number of soldiers (300-400) walking on the side of the road in the direction of Zeyrek. They were 20-30 metres apart from each other and streached all the way from Zeyrek to Çağlayan. They were infantry soldiers and commandos. He did not remember seeing gendarmes among them. They were wearing the uniform of regular soldiers. The uniforms of the commandos are a lighter green, those of the infantry are a darker green and those of the gendarmes are the same as the infantry's except that the gendarmes have insignia on the neck and shoulders which are different to the infantry. He did not recall seeing those insignia or any distinctive caps. They had the usual weapons, G3s, MG3s, regular bombs and so on. The witness was able to recognise uniforms and weapons as he had done his military service in the infantry in Çukurca near the Iraqi border.
160. When he arrived, the village, even the mosque, was in ruins. He could only stay a couple of hours as he had to get back to work. Smoke was still coming out of some of the houses including his own father's house.
161. The witness did not see Selim or Hasan Orhan that day as he was concentrating on his own family's problems. He did not actually see the houses of the applicant, Selim Orhan or Hasan Orhan that morning: their houses were about 10 minutes walk away and were surrounded by an orchard. However, he saw smoke coming from the area in which those houses were located.
162. The witness' father, his uncle and cousins told him that the previous day the soldiers had come, had gathered everyone in front of the mosque and had told them that they had one hour to vacate their houses and take their belongings, as they were going to burn the village. The villagers had gone back to their houses and saw smoke coming from the mosque before the soldiers began burning their houses. They had rescued whatever they could but most things had burned.
163. He loaded his lorry with as much of the rescued belongings of certain families as he could and took them to Diyarbakır.
164. Two or three days later the witness returned to Deveboyu. The houses were not habitable. The villagers had built shelters out of cloth, rags, trees and leaves in the vineyards, gardens and orchards, on the road, by the river and outside the village on the hills. He also saw Selim and Hasan Orhan and spoke to their families. They told him the same things as his own family about how the village had been burned. The witness tried to persuade Selim Orhan to leave but he wanted to stay as they had permission to do so until the harvest. On 8 May 1994 the witness went back to Diyarbakır.
165. 10-15 days after the village had been burned, his wife told him that they had taken the Orhans. The following morning, he and his wife went to the village. They stayed two or three days. His mother and father said that the soldiers had taken the Orhans. His wife did not stop at his father's house but went to Selim Orhan's house directly. Selim Orhan's wife and family said that the soldiers had come down the hill in the morning and had taken away the heads of their households, that they had gone after the soldiers all the way to the hill, that a soldier had even slapped a little girl who was following and that the soldiers did not let them follow any further.
166. During this stay in Deveboyu, the witness met certain villagers from Gümüşsuyu: Hacı Mehmet, an old man of 70-75 years old, Mehmet Emre and the latter's mother, Hacı Hevina. They confirmed the following: Numerous villagers saw the soldiers arrive with the Orhans to Gümüşsuyu. They gave them water, they rested 5-10 minutes and the Orhans were taken directly to Zeyrek station. The villagers of Deveboyu were informed that evening. That evening or the next morning, some villagers (including Mehmet Emre and Hacı Mehmet) went to Zeyrek gendarme station to enquire about the Orhans and they were told by Ahmet Potaş that the Orhans had been taken to Kulp. On their way back from Zeyrek, they met the applicant and told him what they had learned.
167. No village had been burned west or north of Çağlayan. But east and south countless villages burned within a short time including the hamlet of Gümüşsyu and the village to which it was attached, Elmalı. Demirli was also burned as were the hamlets of Karpuzlu (Kafan and Saban).
168. The witness was born in 1965. He is the applicant's cousin. In April and May 1994 he lived in Gümüşsuyu a hamlet of about 45 houses. The applicant, Selim Orhan and Hasan Orhan, whom he knew as he had fields in Çağlayan, each had a house in Deveboyu at that time.
169. He initially appeared to be confused as to the order of events (the destruction of Çağlayan and the passage of the soldiers and the Orhans through Gümüşsuyu). However, he later confirmed and re-affirmed that the burning of Çağlayan took place 15-20 days before he saw the Orhans with the soldiers in Gümüşsuyu.
170. In 1994 the witness saw smoke coming from houses in Deveboyu. He asked certain military officers who were in the village at the time what was going on and if an operation was to be carried out in Gümüşsuyu so that they might leave beforehand. They said that they had come to protect the villagers. The villagers in Deveboyu later said that soldiers had set their houses on fire.
171. The day after Deveboyu was burned, Gümüşsuyu was also burned by soldiers. The soldiers initially checked identity cards and then gave the villagers one hour to remove their belongings before burning their houses. Lighter items were removed but the heavier items burned. The witness asked the soldiers why they were burning the village and was told that it was to prevent the PKK from coming to seek shelter, that they would all be re-located by the State and that anybody caught in the village would be killed. The villagers obtained permission, from their local gendarme station, to stay in the village until the harvest, until which time they lived in shelters. The witness thought that they were regular soldiers, as opposed to gendarmes, because of their uniforms. The muhtar of Elmalı village had told the witness that the soldiers were from Bolu, the witness presuming that the muhtar had obtained this information from the gendarme station.
172. Approximately 15-20 days after Gümüşsuyu had been burned, soldiers arrived on foot with the Orhans. Practically all of the village saw them. The party stopped to rest near the village cemetery. They gave water and cigarettes to the Orhans and to the soldiers. The Orhans were free to move around and were not handcuffed. The witness, Hacı Mehmet and other villagers talked to them. The Orhans were upset saying that the soldiers had taken them. They asked for help and for their families to be told. Hacı Mehmet, an old man, enquired why the Orhans had been taken. They responded that they would take him instead. Having rested for 30 minutes approximately, the soldiers put the Orhans into a military vehicle and left. That evening, the applicant came to Gümüşsuyu and they told him what they had seen. The following morning Hacı Mehmet and the witness asked Ahmet Potaş at Zeyrek gendarme station what he knew. He told them that the Orhans had been taken to Kulp. On the way back from the station they met the applicant and filled him in.
173. The villagers left Gümüşsuyu in the autumn. The State never re-located them as the soldiers had promised.
174. The witness, born in 1965, was Commander of Zeyrek gendarme station during the relevant period until July 1994. His station was attached to Kulp District Gendarme Command so Ali Ergülmez was his commander.
175. Çağlayan was attached to his station, he went there from time to time and knew it well. Çağlayan and Gümüşsuyu were about 15-20 minutes walk apart. He knew the muhtar of Çağlayan personally, as he did almost all of the muhtars. He did not know Salih, Selim or Hasan Orhan personally. He did not recall that there had been a particular terrorist problem in Çağlayan at that time.
176. The witness initially said that he did not remember receiving a complaint or hearing about Çağlayan being burned by the security forces. He then accepted that the applicant had made this allegation to him in July 1994 when the Kulp Chief Public Prosecutor requested him to secure the applicant's attendance. However, since the prosecutor had already been seized of the matter, he had no power to investigate. He could not recall whether he had been to Çağlayan after May 1994. Nor could he recall ever seeing any village in the region burned.
177. He could not recall any complaint about the Orhans, or about any other three persons, being apprehended by the military and disappearing thereafter. He had no recollection of Hacı Mehmet or Mehmet Emre from Gümüşsuyu or of any conversation with them.
178. From time to time operations were carried out in the region by units from outside the area, but the gendarmes did not know the identity of the units. When operations were to be carried out in an area under his station's jurisdiction, Diyarbakır Provincial Gendarme Headquarters would give the co-ordinates to Kulp District Gendarme Commander (Ali Ergülmez) who would inform the witness orally so that gendarmes from his station would avoid the operation area. He was not informed of the identity of the relevant military unit and did not know if the District Gendarme Commander would have known. Since he was never informed of the identity of the units, he did not recall any operation on 20 April 1994 of the Bolu unit and he could not therefore have given this information to the muhtar of Çağlayan as alleged.
179. If military units from outside the region apprehended someone on operations, they had to surrender that person to the gendarme station in whose jurisdiction they operated. Therefore, if someone was apprehended within the jurisdiction of Zeyrek gendarme station, the detainee would be handed over to Zeyrek or directly to Kulp from where the person would be transferred to a public prosecutor as necessary. There was a small custody room at Zeyrek station (a capacity of 2 or 3 three people for 1 or 2 hours only). Generally, a military unit would have contact with Kulp District Gendarme Station rather than with his station. He did not recall any such contact even from units he saw passing his station and no detainees were ever handed over to him. If he had had any such contact, the witness said he would have remembered it.
180. Gendarme custody records would indicate by whom and on whose orders the person had been taken into custody. Accordingly, he confirmed that an examination of the Zeyrek custody records of the relevant period would demonstrate whether anyone had been handed over by the military. All detainees, whether kept in the custody room or elsewhere in the station, were entered in the custody record. The witness identified the custody records for the relevant period from his station. The date noted in that record was the date and time the person had been first taken into custody. Detainees for whom there was no space in the custody room, in Kulp District Gendarme Command would be detained in the cafeteria of the same building. The fact that that station's facilities were full would not have been a concern of the military units.
181. He did not recall ever being asked any questions by a prosecutor about claims concerning the Orhans' disappearance or the destruction of Çağlayan. He had no recollection of taking statements from those villagers.
182. The witness was born in 1956. He was Kulp District Gendarme Commander from 1993 to 1995. Zeyrek gendarme station was attached to his station. His command was attached to Diyarbakır Provincial Gendarme Headquarters.
183. The witness knew Çağlayan: it was attached to Zeyrek gendarme station. Çağlayan was about 50 kilometres from Kulp and was one of the 52 villages in the Kulp region. At the relevant time there was a terrorist threat in the entire Kulp area, in all its villages and hamlets without exception. The PKK would threaten the locals to obtain what they wanted. He agreed that the security forces did not have any problem with the local population, but rather with the PKK. He could not recall the applicant or how many houses were in Çağlayan.
184. He confirmed that there was a commando regiment at Bolu at the time. Diyarbakır Provincial Gendarme Headquarters would let him know, generally orally, that an operation was to be carried out in a particular manner and place between certain dates. They were told not to go out on mission between those dates. No details, not even the name of the military unit, would be mentioned. Any gendarme records of those military operations would be retained by the Provincial Gendarme Headquarters. He did not recall if there had been any major troop movements in Çağlayan or indeed in his area in April-May 1994.
185. When informed that it was claimed that Ahmet Potaş had told the muhtar that the relevant troops were from Bolu, he stated that he did not believe that Ahmet Potaş would make such a statement and suggested a direct confrontation between him and the people making such an accusation, a suggestion of confrontation he repeated during his evidence.
186. He did not recall a visit from the muhtar on 7 May 1994. Nor did her recall any allegation that Çağlayan had been burned or giving permission to stay until the harvest. He insisted that between 1993 and 1995 innumerable incidents took place in Kulp every day and that it was not possible for him to recall each one.
187. He did not recall any complaint, by the applicant or anyone, about the Orhans' apprehension on 6 May 1994 or any complaint of the applicant to that effect. It was many years ago and it was not possible for him to remember every complaint by every person to his station: during his two years at Kulp District Gendarme Command, he spoke to an average of 100 or 150 people each day. 1993-1995 was a period of intense terrorist activity, everyone believed himself to have been wronged by the terrorists and everyone asked for help.
188. He did not recall ever being contacted by any prosecutor asking about the disappearance of the Orhans and he denied any knowledge of any investigation despite being shown the letter of 9 May 1997 from the Kulp District Governor to the Provincial Governor (see paragraph 84 above). He did not recall Ümit Şenocak, let alone an investigation conducted by that officer, even when it was pointed out to him that Ümit Şenocak had been his deputy in Kulp District Gendarme Command at the relevant time.
189. There were custody facilities in Kulp District Gendarme Command. Those facilities accommodated 2 to 3 persons. People who were taken into custody for any offence were first searched and were then referred to a doctor for a medical examination and report. When the medical report issued, the detainee was entered into the custody register of the custody room by the commander of the station himself. After the interrogation was completed they would be referred to the public prosecutor. A medical report for the public prosecutor would be obtained and the detainee's valuables would be handed over to the gendarmes against a receipt. He considered his custody record to be sound. If the military apprehended someone requiring detention, they would contact Provincial Gendarme Headquarters
190. He initially confirmed that a person is entered into the record when he or she is put into the custody room. On further questioning he clarified that, where there is no place in the custody room and the person is detained elsewhere in the building, the detainee will still be entered in the custody record. However, the witness had never come across such a situation during his career.
191. He agreed that, generally speaking, if he had heard a complaint that a village had been destroyed by security forces, he would have thought that the PKK were responsible and that the complaint was a propaganda exercise designed to blame the security forces. He cited one example, from the innumerable similar incidents he recalled, of İslam in the Kulp area which everyone knew had been burned down by the PKK in or around 1992 but which fire was attributed to the State. Was it not true that the PKK was asserting itself and its struggle? Had the PKK not attained that goal by killing 30,000 innocent people? Had the PKK not intimidated the people? The PKK, the witness asserted, had burned down thousands of villages and killed thousands of people.
192. This witness classed the applicant's accusations as “unfounded libels” aimed solely at safeguarding his interests. He fixed at 1,000 to 1 the possibility of the State destroying a village. As to the security forces detaining citizens, killing those persons and then disposing of the bodies, the witness exclaimed that he would not even give that possibility a 1,000 to 1 chance, as the military would never do such a thing.
193. The witness was born in 1966. He was temporarily assigned to Kulp District Gendarme Command from approximately mid-July to November 1994. During that period he deputised for his superior officer, Ali Ergülmez, for approximately 20 days. Otherwise he was on operations.
194. The witness emphasised this peripheral connection to Kulp District Gendarme Command to explain his small involvement in, and limited memory of, the Orhan investigation. He identified a letter from him to the Kulp Chief Public Prosecutor dated 22 July 1994: this was the sum of his memory of the Orhans' complaint. He clarified that his confirmation therein, that the Orhans had not been detained by “our command”, included the stations attached to Kulp District Gendarme Command. Most of the investigation for that letter had been completed before he came to Kulp or had been done by subordinate officers while he was there. Accordingly, he had no idea of the concrete steps that had been taken during the investigation to which his letter referred. Indeed the letter he signed on 22 July 1994 would have been written by a subordinate officer and he may not even have looked at the letter of 8 June 1994 to which his own letter referred. He was unable to say who decided on what was “the necessary investigation” or whether some guidance would or could be sought or received from the relevant prosecutor's office. He could not describe the further investigative measures which his letter of 22 July 1994 promised.
195. The witness pointed out that an operations' unit does not normally apprehend people. They only do so when there has been a particular incident as, for example, someone found to be carrying a firearm without a licence. Once apprehended, a suspect is handed over to the relevant District Gendarme Command and that station that takes the suspect into custody.
196. He initially stated that one could tell from the custody records whether the gendarme or military had initially apprehended someone. However, on examining those records before the Delegates, he concluded that the custody records would not, in fact, yield such information.
197. He did not recall ever encountering any military units from outside the region carrying out an operation in the area during his time in Kulp. He too confirmed that District Gendarme Command is notified orally for security reasons of the co-ordinates of the area where a military operation would take place and asked to stay away.
198. Contrary to Ali Ergülmez, the witness would not even accept a 1000 to 1 possibility of a military unit being responsible for a village being burned and for persons disappearing: in his view it was simply not possible. In 1994 there was a great deal of PKK activity in the Kulp and Lice area and the witness had seen burned villages when out on operations in that area. He was of the view that the PKK was responsible, relying on his personal experience of two village raids by the PKK.
199. The witness was born in 1966. He was Kulp Central Gendarme Station Commander at the relevant time. Since his station was attached to Kulp District Gendarme Command, Ali Ergülmez was his superior officer.
200. The Kulp central and district gendarme stations were located in the same building. Therefore there was only one custody room in that building, with a capacity of two or three detainees, and that facility was attached to and under the authority of the central station. Any excess detainees were detained somewhere inside the Central Gendarme Station's building but would still be entered in the custody records. Ultimate responsibility for keeping the records lay with the witness as station commander but if he was not there his two assistants would complete the record.
201. The witness knew Çağlayan by name only and had never been there. He could not recall whether there had been an operation in April and May 1994 around Çağlayan involving units from outside the region. There had been many operations in the region and he did not remember the precise dates or areas covered. Since they were never told of the identity of the units (only the area of operation), he could not specifically say whether the Bolu unit had been there. His gendarmes did not carry out joint operations with units from outside the region. Operation units were generally based outside populated areas.
202. He did not know where troops were based in Lice. He knew that Lice had, like every district, a boarding school. He had never heard that military units from outside the region billeted in Lice Boarding School. He had never heard any allegation about the burning of Çağlayan village on 6 May 1994 by soldiers. His only recollection of the claim that the Orhans had been apprehended by a military unit and disappeared was a rather vague memory of correspondence with the prosecutor's office in Kulp. The witness also confirmed that, if someone had been apprehended by a military unit on operation, it would be obliged to hand over the detainee to the gendarmes: such units do not have custody facilities or power to detain.
203. Persons apprehended and sent by Zeyrek station to the Kulp District Gendarme Command would not have come through his hands as the latter command would have passed on the detainee to the public prosecutor unless the suspect could only be brought the following day to the prosecutor, in which case the central gendarme station would detain the suspect in its custody room until the following day.
204. Having initially confirmed that the custody record would not indicate whether it had been the gendarme or the military who initially apprehended an individual, in cross-examination he confirmed that the latter information could be gleaned from the custody records in the “reasons for arrest” section. He then reverted to his initial position, adding that what is important is the reason for apprehension and not who apprehended the person. Therefore he agreed that some of the persons listed in his custody records could have been handed over to him by military units from outside the region without the custody record showing that. He also agreed that this meant that the custody record would not provide any documentary proof to an individual who later alleged that the arresting forces had ill-treated him before handing him over the gendarmes. While he suggested that a further investigation would allow the identification of the unit who had initially apprehended a person, the witness could not refer to any specific records which would assist any such investigation.
205. Having confirmed that he was required to fill in all the columns in a custody record, the witness accepted, when shown the records from his station for the relevant time, that no date of release had been entered for 6 detainees. He accepted that it was not possible therefore to say with certainty from the custody records when those 6 persons had been released. It could be possible to verify if someone had been sent to the public prosecutor by checking the investigation report completed by the gendarme, sent with an individual to the public prosecutor and retained in the public prosecutor's records and, if someone had been released, by checking the hospital records as a detainee is medically examined on release.
206. The witness was Lice District Gendarme Commander from 1993 to 1995, a station situated on the outskirts of town near Lice Boarding School. Attached to his station was a central gendarme station (which was in the same building and commanded by Hasan Çakır) and four outlying stations. There was one set of custody facilities which was shared between the district and central stations and located in the central station.
207. He did not recall any allegations that soldiers were responsible for the burning of Çağlayan or of the disappearance of the Orhans. He did not know Çağlayan. He did not remember ever being involved in any way in the investigation into the Orhans' alleged disappearance or any correspondence to or from Lice District Gendarme Command about any such investigation.
208. He confirmed that large-scale military operations were conducted, inter alia, by the Bolu regiment in the Lice, Kulp and Şırnak districts many times in the course of the two years he served there. He could not recall any specific operation.
209. His command would be informed of the co-ordinates of a planned operation a day or half a day before its execution by the Provincial Gendarme Headquarters. They would be advised not to enter the operation area. If the operation had been planned in advance, that information would have been passed on in writing on a pre-printed form called a preliminary report form (whereas an emergency operation was notified orally only). A preliminary report form was not given to privates for confidentiality purposes: it would have been received by the person in charge of the information centre and brought to the witness. If alerting subordinate units was required, he would have done so by telephone.
210. He also confirmed that military units from outside the region were billeted at Lice Boarding School and that he knew the school. The students, teachers, military units and other employees were housed in the same buildings inside the grounds of the school. There was a security check on entering the grounds of the regional boarding school. There were three separate but almost identical buildings each with three floors. The first building contained classrooms, the second had student dormitories, bathroom facilities and a refectory (yemekhane).
211. The third building had been built with classrooms. He initially said that that building had been unused before the military units began to be billeted there. However, he later gave evidence that the third building had not been empty before it housed troops as its ground floor was used by school administrative staff and by students, with the second and third floor classrooms being used as dormitories by the military (a battalion of 700-800 people maximum). The third building was therefore jointly used by the military, students and teachers.
212. He initially testified that the sketch of the school submitted by the Government in the above-cited Çiçek case represented either of the first two buildings used by the students. He was subsequently unsure about that and then confirmed that those plans appeared to represent the shared third building.
213. The soldiers had higher ranks so it would have been professional discourtesy to pry into what was going on in Lice Boarding School. However, “judicial duties” were an exception to that rule. Accordingly, if a person was apprehended during an operation by a military unit (if that unit encountered someone already suspected of an offence or someone caught committing a crime), that person had to be handed over to the gendarmes. A delivery record was prepared and placed on the investigation file compiled by the gendarmes and transferred to the public prosecutor. That record would include a note of where and when the detainee was originally apprehended.
214. It was not possible to determine from the Lice Central Gendarme Station Command custody records whether a person noted therein had been originally detained by the military or by the gendarmes unless – and it was not obligatory - a note was entered to that effect in the column entitled “Comments”. Therefore, the identity of the gendarme or military unit which has originally apprehended an individual could not be gleaned from the custody records as was the case, for example, for entry No. 43 (Ramazan Ayçiçek).
215. In 1994 the capacity of the Lice Central Gendarme Station custody room was 7-8 persons. Any detainees in excess of this number would be put in a suitable place in the central building, a guard would be posted with them and they would be entered in the custody record if they were to be detained. However, certain persons who were not free to leave (as they were being retained pending questioning) would not necessarily be entered in the custody record unless and until a decision had been made to detain them.
216. The witness was born in 1962. He was Lice Central Gendarme Station Commander between August 1992 and July 1994. His station was attached to, and in the same building as, Lice District Gendarme Command and Şahap Yaralı was therefore his superior. The witness did not know Çağlayan: it was not attached to his station.
217. He knew Lice Boarding School as he had been there on several occasions. When reminded that his evidence in the above-mentioned Çiçek case suggested that there was only one building, he confirmed that there were, in fact, 3 large buildings.
218. However his evidence as to the layout of each building changed many times throughout his evidence, the last version being as follows.
219. The first building contained the refectory (yemekhane), the library and administration offices together with classrooms on the first and second floors. The second building contained only dormitories for the students.
220. The third had also been built as a teaching building with classrooms. He could not remember whether there was a library but confirmed that there was a refectory (yemekhane) on the ground floor from which soldiers could get hot meals. Students could use the canteen (kantin) (or a cafeteria - kafeterya) on the ground floor where they could buy things. Some administration offices from which teachers would work were also on the ground floor. The second and third floor classrooms were occasionally used as dormitories by the military, and could house a battalion of 700-800 soldiers. He did not agree that it was impractical to have soldiers and students in the same house: some measures were taken but the students and soldiers were on good terms.
221. He was shown the sketch of the school which had been submitted by the Government in the Çiçek case. He initially said that those plans related to the first building, he then said he was not sure and later confirmed that, in any event, it was not the third building.
222. He had no authority over, or any function concerning, the military in the boarding school. No gendarmes were based there and no gendarme controls were carried out while the military were there. He agreed that it was possible that a military unit could detain someone in Lice Boarding School without the gendarme knowing.
223. He confirmed that military units from outside the region (including the Bolu regiment) were on operation in his area. All gendarme officers at his level would know when an operation was taking place. They would not know all details, but would know generally from where the unit had come and where they would go on operation. Prior to such operations, military units were given a list of suspects and if suspects were apprehended during an operation, those persons could be held by the unit until it returned from operation when they would be handed over to the gendarmes.
224. The witness was clear in his evidence that it was not possible to determine from the custody record alone whether the detainee had been initially apprehended by gendarmes or by the military.
225. The witness was reminded that in the Çiçek case he was asked to explain why the names of certain persons, who had been noted in the Diyarbakır custody records as having been transferred from the Lice Central Gendarme Station, did not appear in that station's custody records. The explanation given by him in that case was that sometimes the detention room was “humid”, the detainees would be kept under supervision outside the detention room and, in such circumstances, they would not be entered in the custody record. He added that persons detained for further investigation or those detained on military charges could be detained outside of the custody room without being entered in the custody records for a few hours, while the relevant procedures were completed, before being handed over to the relevant prosecutor. This meant that the names of certain persons who were not free to leave the station may not have been in the custody record.
226. The witness was born in 1967. He succeeded Hasan Çakır as Lice Central Gendarme Station Commander in mid-July 1994, a post he held for 2 years.
227. Prior to giving evidence, the witness had never heard of allegations about the burning of Çağlayan or the disappearance of the Orhans. He felt it was wrong to discuss such allegations as the armed forces were there for the people and it was inconceivable that any such thing could happen.
228. The witness confirmed that, while he was at Lice, military units from outside the region frequently carried out operations in his area. The Lice District Gendarme Commander (Şahap Yaralı) would inform him orally that operations would be conducted in certain areas, giving him the map co-ordinates of those areas, only sometimes identifying the units. Many units came on operation and sometimes the unit was from Bolu.
229. While he could not remember a specific incident, units were not authorised to detain persons and were required to bring persons apprehended from the operation area to their unit and from there to a gendarme station.
230. He identified his own signature on the Lice Central Gendarme Station custody records from in July 1994. He agreed that the custody records would not indicate who (the military or gendarmes) had initially detained an individual but other gendarme records containing this information would be on the prosecutor's file. If a person was not sent to the public prosecutor, those additional records were retained in the gendarme station.
231. He also confirmed that persons could be at the gendarme station, not free to go and yet not be formally “taken into custody” and entered in the custody record (when, for example, the investigation documentation could be completed in the space of hours).
232. He further stated that military units were frequently based at Lice Boarding School in vacant rooms. Since it was a period of intense PKK activity in the region, the school was rarely empty of military personnel. Once the military were there, the school was under their jurisdiction and control.
233. The witness had visited the boarding school and said he could therefore guess its approximate structure.
234. When asked why he would therefore visit the school, he initially said that the military occasionally called his district commander when they had apprehended someone during an operation and he would be asked to go to the school for that purpose. On being asked to clarify whether a military unit would therefore take a detainee to the school first before handing them over to the gendarmes, the witness said that he would meet the military on their way to the school and he later added that the military would generally come almost as far as his station to hand over detainees.
235. Indeed it was “impossible” for a military unit to detain persons at the school. When he was informed that his predecessor in Lice Central Gendarme Station (Hasan Çakır) had said that it was possible, the witness responded that there was no point in taking detainees to the school and he had no idea what Hasan Çakır was talking about.
236. The witness remembered three main buildings together with several small staff living quarters. One of the buildings contained classrooms, the second contained the students' refectory (yemekhane) and dormitories. The military were billeted in the third building, probably in the rooms originally designed as classrooms. Some of the school's teachers used administrative offices on the ground floor. There was also a place in the basement where teachers, students and soldiers would play table tennis together. The library was also situated in the third building, and there was probably a further refectory (yemekhane) for the military in that building. He later confirmed that it was a canteen (kantin) that was in the third building where food and even clothes could be sold to both the students and the military.
237. He could not say to which building the sketch of the school submitted by the Government in the Çiçek case related.
238. The witness, born in 1949, was a public prosecutor in the office of the Diyarbakır Chief Public Prosecutor.
239. The only recollection he had of, and only involvement in, the allegations of the burning of Çağlayan and of the Orhans' disappearance was a statement he took from the applicant on 2 May 1995 in Diyarbakır and a follow-up letter dated 3 May 1995 to the Kulp Chief Public Prosecutor.
240. Given the location of Çağlayan, the judicial investigation would have been carried out by the Kulp Chief Public Prosecutor. He was not part of that investigation. He took the applicant's statement because of the letter from the Ministry of Justice of 20 April 1995. He was therefore a channel through which the Ministry would direct its requests to the subordinate and competent district prosecutors' offices (in this case, Kulp). The reason he had interviewed the applicant personally was because he had been requested by the Ministry to establish the applicant's wishes and whether the form of authority signed in favour of British lawyers was genuine, and, having done so, to determine what action had been taken in connection with his application. From the interview the prosecutor learned the district to which the complaint related, the scope and kind of complaint in question and what kind of documents were to be requested and from which district. Hence his letter of 3 May 1995 to the Kulp Chief Public Prosecutor.
241. The applicant's statement was taken with a clerk in a busy secretariat room at the Diyarbakır courthouse and not in a separate interview room. The witness followed the standard procedure for such matters: the witness put questions, the applicant answered, the witness listened and dictated to the clerk, who recorded the applicant's evidence as the applicant listened. The witness showed the applicant the form of authority and asked the applicant whether it was his signature, and whether or not he knew what it meant. The clerk typed the applicant's answers dictated in a loud voice by the witness; the witness made sure that the applicant had nothing to add, read the statement to the applicant and all three persons present signed it. The applicant told his story frankly, sincerely and without compulsion and it was accurately recorded in his statement. The witness could not understand why the applicant had later changed his mind.
242. The witness denied having been angry and pointed out that, had he wished to protect the State, he would have left out the applicant's remarks which were critical of the State.
243. The witness, born in 1969, was one of the two prosecutors at the Kulp Chief Public Prosecutor's office (January 1995 – October 1996).
244. The two prosecutors in Kulp divided the work between them. When the prosecutor dealing with the applicant's complaint was on holiday, he reviewed the file and considered two letters to be necessary: that of 6 April 1995 (to the Lice Chief Public Prosecutor) because no response had been received to his office's letter of 11 July 1994 and that of 16 May 1995 (to the Diyarbakır Chief Public Prosecutor).
245. The witness had reviewed the Kulp Chief Public Prosecutor's file prior to giving evidence and was asked some general questions about the investigation.
246. He initially confirmed that a very detailed investigation had been carried out by both the military and civilian authorities. However, it was then pointed out to him that the report dated 15 May 1997 noted several allegations that the Orhans had been detained by the Bolu regiment and that there was no evidence of any enquiry of that regiment on the file and he was asked whether this was a satisfactory state of affairs. He responded that there was “clearly a deficiency in the investigation”. As to why there were two investigation reports on file (one dated 15 May 1997 signed by Kamil Gündüz and one dated 6 July 1999 signed by Yunus Güneş), the witness pointed out that the President of the District Administrative Council may have chosen, in his discretion, to re-launch the investigation with a second investigator if he found the first investigation inadequate.
247. He also confirmed that a visit to Ramazan Ayçiçek in Lice prison by someone not a relative would have required the competent public prosecutor's permission.
248. Finally, the witness confirmed that it was a matter of discretion as to how much guidance a prosecutor would give to the gendarmes asked to conduct an investigation. Sometimes no guidance was given. He also confirmed that, as a matter of general practice, it would be normal to communicate to the complainant the prosecutor's decision on lack of jurisdiction.
249. Since approximately 1985 serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. By 1996 the violence had claimed the lives of 4,036 civilians and 3,884 members of the security forces. Since 1987 ten of the eleven provinces of south-eastern Turkey have been the subject of emergency rule.
250. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). Decree no. 285 (of 10 July 1987) established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. Decree no. 430 (of 16 December 1990) reinforced the powers of the regional governor.
251. The Turkish Criminal Code makes it a criminal offence, inter alia:
– to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to subject someone to torture and ill-treatment (Articles 243 and 245);
– to commit unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450);
– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382);
– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); and
– to damage another's property intentionally (Articles 526 et seq.).
252. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor's offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
253. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.
254. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the relevant local administrative council (for the district or province, depending on the suspect's status). That council will appoint an Adjudicator to conduct the preliminary investigation, on the basis of which the council will decide whether to prosecute. These councils are made up of civil servants, chaired by the governor. If a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. A decision not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.
255. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285, the 1914 Law on the prosecution of civil servants also applies to members of the security forces who come under the governor's authority.
256. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
257. Pursuant to section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage because of an act of the authorities may, within one year after the alleged act was committed, claim compensation. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
258. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
259. That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
260. However, Article 8 of Legislative Decree no. 430 (of 16 December 1990) provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
261. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
262. However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
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