ITEMID: 001-92693
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ESAT BAYRAM v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1973 and lives in Istanbul.
6. The applicant’s brother Halim Bayram, who was a Turkish citizen of Kurdish origin, was called up for military service in 1998. He was 20 years old at the time.
7. On 23 May 1998 Halim Bayram started his initial two months’ training in Izmir. On 10 August 1998 he was granted leave for fifteen days. On his return, he was informed that he had been appointed to Çanakkale. On 28 August 1998 Halim Bayram went to Çanakkale to join his unit. His superior was Mr Hüseyin Arabacı.
8. A few days later the applicant received a telephone call from his brother, who stated that he was being bullied by his superior. He told the applicant that he had been threatened with death by Hüseyin Arabacı.
9. On 7 September 1998 the applicant’s brother was posted to sentry duty. At about 12.30 p.m. he was seriously wounded by one bullet and he was immediately taken to the Çanakkale Military Hospital, where he was operated upon. At 5 p.m. the same day, Hüseyin Arabacı called the applicant and informed him that there had been an accident and his brother had shot himself. The applicant went to Çanakkale immediately. Hüseyin Arabacı and another soldier took the applicant to hospital. His brother was in the intensive care unit, unconscious. When the applicant asked Hüseyin Arabacı how the incident had happened, he told the applicant that he had been 20-30 metres away from Halim Bayram when he saw him point the gun towards himself and fire. He explained that Halim Bayram had been taken immediately to the hospital where he had been operated upon.
10. On 8 September 1998, the applicant was able to speak to his brother briefly at the hospital. Halim Bayram allegedly told the applicant:
“I saw Hüseyin Arabacı approaching and I remembered his death threats. I thought he was going to shoot me. I do not remember what happened but I am sure that I did not shoot myself.”
11. The applicant’s brother told him that he wanted to be transferred to Istanbul. He also said that he had written a letter and given it to his friend Mr Kazım Ağın, also a conscript.
12. In the meantime, statements were taken from witnesses to the event, namely from Mr Barış Tulpar, Mr Celal Elbir and Mr Kazım Ağın.
13. In his statement Mr Tulpar said that after lunch, as he was walking around, he heard a single gun shot. When he went to see what had happened, he saw Halim Bayram lying on the ground, heavily injured. He was mumbling, saying “you have burnt me Emrah, I am burning, I am in pain”. Mr Tulpar said Halim Bayram’s rifle was between his knees.
14. Mr Celal Elbir said that when he heard the shot, he immediately went to the scene of incident. Halim Bayram was lying on the ground. He was alive but heavily bleeding. His rifle was between his legs.
15. In his statement, Mr Ağın maintained that Halim Bayram had told him that he would commit suicide as the girl whom he was in love with was getting married to someone else. He also said that Halim Bayram had given him a letter to be sent to his parents, should anything happen to him.
16. The same day, the applicant also spoke to Mr Kazım Ağın, who allegedly told him that Halim Bayram had been pressurised by his superior Hüseyin Arabacı. He told the applicant that the soldiers had been forced not to speak to Halim Bayram and added that Halim Bayram had no bed and was sleeping on the floor. Mr Ağın confirmed that Halim had given him a letter; however he explained that somebody had taken it from his bag.
17. The applicant wanted to transfer his brother to another hospital but the doctors refused. The applicant returned to Istanbul.
18. On 14 September 1998 the applicant’s brother developed disseminated intravascular coagulation and the doctors decided to transfer him to the GATA Military Hospital in Istanbul. He died from internal bleeding in the ambulance during the transfer.
19. On 15 September 1998 the applicant lodged an application with the Çanakkale Public Prosecutor’s office to clarify the circumstances in which his brother had died. He stated that he doubted that his brother had shot himself and requested an autopsy.
20. The body examination report, dated 15 September 1998, stated the following:
“A surgical incision measuring 30 cm begins from the area between the nipples and extends centrally to below the navel. Several old razor wound scars are noted between the left and right shoulders and elbows, measuring 10-15 cm each. The name Emrah is carved with a razor or another sharp object on the outer side of the left arm. A bullet exit hole on the left lumbar region measuring 1 cm is noted. A bullet entry hole was observed in the stitched wound in the chest area”
21. The applicant was also present during this body examination. He stated that he had doubts about his brother’s death and requested a second autopsy.
22. On 15 September 1998 the Çanakkale Public Prosecutor conducted an examination of the scene of incident.
23. On 16 September 1998 the military investigation board started an investigation into Halim Bayram’s death. On 18 September 1998 the board took a statement from Hüseyin Arabacı. Mr Arabacı explained that when he heard that the applicant’s brother had shot himself, he immediately went to see what had happened and called an ambulance. He saw that there was blood on Halim Bayram’s abdomen.
24. On 22 September 1998 the military investigation board delivered its report and concluded that no fault could be attributed to Mr Hüseyin Arabacı or the hospital.
25. In the meantime, on 17 September 1998 a second autopsy was conducted on Halim’s body by the Morgue Expertise Directorate of the Forensic Medicine Institute. The report stated that no bullet was found in the body and that the detailed report would be delivered at a later date. Samples of the wound from the xiphoid process and back were sent for further chemical examination.
26. On 18 September 1998 the Forensic Medicine Institute delivered its report concerning the chemical examination of these two pieces of skin. Large amounts of nitrite-nitrate ions were observed on the piece of skin taken from Halim Bayram’s back and none was found on the piece of skin taken from the xiphoid process.
27. On 28 September 1998 the Çanakkale Public Prosecutor delivered a non-jurisdiction decision and transferred the file to the Gölcük Military Prosecutor.
28. Upon the request of the Military Prosecutor, on 11 November 1998 an expert examination was conducted on the hive obtained from the scene of the incident. While conducting the examination, the expert fired two further shots using the rifle that had been used by Halim Bayram. On 13 November 1998 the three spent cartridge cases, namely the one found following the incident and the two obtained by the expert, were examined at the Istanbul Criminal Police Laboratory and it was concluded that they all came from the same rifle.
29. On 16 November 1998 Miss Emrah Baynal gave a statement to the gendarmes. When asked about Halim Bayram’s suicide, Miss Baynal said that she had been friends with Halim Bayram for nearly two years. She explained that they loved each other and denied that she was engaged to somebody else.
30. On 9 December 1998 the applicant gave a statement to the Military Prosecutor. He explained that his brother Halim Bayram had been threatened with death by Hüseyin Arabacı.
31. On 26 February 1999 the Forensic Medicine Institute delivered its medical report. Making reference to its previous examinations dated 17 and 18 September 1998, it concluded that Halim Bayram had been shot in the back. According to the report, a bullet had entered his back and exited from the right below the xiphoid process. In order to establish the exact range from which the shot was fired, a further chemical examination of Halim Bayram’s clothes was requested.
32. In a report dated 25 October 1999 the physical ballistics expertise branch stated that no traces of gunfire were found on either the shirt or the vest of Halim Bayram. The reports further concluded that there was a hole in the back part of the shirt, measuring 1x 0.5 cm.
33. On 21 January 2000 the Forensic Laboratory Department delivered its final report. In its detailed report, it made reference to all of the previous forensic examinations. It stated that although when bullet entry and exit holes are examined, it is usually the small holes that are ascertained to be entry holes and large holes to be exit holes, it was medically possible for the opposite to be found as well. The report concluded that although the autopsy report dated 26 February 1999 had stated that the entrance hole had been in the back, as following the chemical examination no nitrite and nitrate ions had been found on Halim Bayram’s clothes, this should indicate that the bullet must have entered from the xiphoid process. In the report, it was further stated that there was no indication to determine whether the shot had been fired from close range or point blank range. It continued:
“We unanimously agree that the bullet had entered the body from the lower left part of the xiphoid process, passing through the muscle under the skin into the abdominal cavity, passing slightly to the left, leaving the body from the upper part of the lumber region; and that because persons move, the route of the bullet through the body cannot assist in medically determining the direction from which the bullet had been fired or the height above the ground”
As a result, in the report, it was unanimously accepted that the bullet had entered from the abdomen.
34. On 30 March 2000 the Military Prosecutor decided not to prosecute. The applicant appealed against that decision. On 9 August 2000 the Military Court rejected the applicant’s appeal and this was notified to the applicant on 22 August 2000.
35. On 20 July 2001 the applicant obtained a medical report from Mr Christopher Milroy, a professor of Forensic Pathology and Consultant to the Home Office. After making an analysis of the available documentary evidence, Mr Milroy concluded that the presence of a small circular gunshot wound in the back and a larger gunshot wound in the front of the abdomen was suggestive of the entrance wound being in the back. The presence of nitrate-nitrite ions on the skin taken from the back of the body and their absence on the front would provide confirmatory evidence that the back contained the entrance wound. However, it was also stated that these findings were inconsistent with the fact that no gunshot residue was identified anywhere on the clothing. In sum, Professor Milroy concluded that the evidence supported the theory that the entrance wound was in the back.
VIOLATED_ARTICLES: 2


ITEMID: 001-75302
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: McGILLEN and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national who was born on 15 July 1949 and who lives in Stoke-on-Trent. He is not represented before the Court. The United Kingdom Government (“the Government”) are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.
The applicant was widowed on 11 October 1989. There were two children of the marriage, born on 13 April 1978 and 2 November 1982. In 1997 the applicant applied for widow’s benefits and was refused. On 23 March 2001 he applied to the Benefits Agency for benefits equivalent to those which would have been received by a widow. He was finally refused such benefits by the Social Security Appeal Tribunal on 2 October 2001
The applicant is a British national who was born on 31 March 1945 and who lives in Birmingham. He is represented before the Court by Messrs Royds Treadwell, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 14 January 1986. There were two children of the marriage, born on 12 May 1978 and 10 December 1981. On 4 April 2001 he made a formal application to Birmingham Social Security Agency for survivors’ benefits. On 19 June 2001, it was determined that he was not entitled because he had no dependent children.
The applicant is a British national who was born on 2 April 1955 and who lives in Surrey. He is represented before the Court by Messrs Royds Treadwell, solicitors. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 29 March 1996. In 2000 he made an application for survivors’ benefits, which was refused in October 2000. The applicant continued to pursue a domestic remedy and was included in the schedule of widowers who took the benefit of the decision in R. v. Secretary of State for Work and Pensions ex parte Hooper and others [2005] UKHL 29, which was decided by the House of Lords on 5 May 2005.
The applicant is a British national who was born on 26 June 1942 and who lives in County Wexford, Republic of Ireland. He is represented before the Court by Ms D. Kennett. The Government are again represented by Mr C. Whomersley.
The applicant was widowed in April 1975, when he was 33 years old. There were two children of the marriage, born on 24 March 1967 and 26 January 1971. Shortly after his wife’s death he asked the Benefits Agency if he was entitled to benefits equivalent to those received by widows, but he was informed that he was not eligible because he was a man.
On 20 August 2002 the applicant made a formal application for widows’ benefits, to be backdated to the time of his wife’s death. The claim was finally refused by the Social Security Appeal Tribunal on 18 February 2003.
The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-23562
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: AALTO v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Elvi Aalto, is a Finish national, who was born in 1935 and lives in Helsingfors, Finland. She is represented before the Court by Mr Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked full-time as a cleaning assistant from 1979 until 1993 when she had to stop due to pain in her neck, shoulders, right arm, knee joints, wrists and finger joints. In March 1995 she was granted a disability pension. Alleging that her disability was the result of harmful effects in her work the applicant claimed compensation (livränta). In this respect she and her counsel attended a meeting with the Social Insurance Office (Försäkringskassan) of the County of Stockholm. Apparently, the applicant’s request that her husband be heard as a witness was refused. An opinion of 29 April 1996 from one doctor, and an opinion of 6 June 1996 from another doctor, attached to the Social Insurance Office in order to assist with medical matters (förtroendeläkare; “insurance doctor”), were submitted. They both found that the permanent reduction of the applicant’s working capacity was not as such a result of a “harmful effect”, rather her suffering emanated from many years of hard work and her developed age.
On 25 September 1996 the Social Insurance Office refused the applicant’s claim for compensation.
On appeal to the County Administrative Court in Stockholm (Länsrätten i Stockholm), the applicant requested that an oral hearing be held since, alleging that it was impossible for her to obtain a detailed opinion from a doctor in Sweden, her counsel wanted to submit oral arguments on her case.
By decision of 13 November 1996 the court stated as follows:
”The proceedings before the court are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings before the administrative courts may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing.
Having regard to the nature of the case and the evidence submitted, the court finds an oral hearing unnecessary
The court invites [the applicant] to submit no later that 16 December 1996 her final observations in the case. If no documents are submitted, the case will be determined on the basis of the available material”.
The applicant made further submissions in the case. Also, she reiterated her request for an oral hearing, stating that she questioned the professional competence of the insurance doctor, and asserted that, without an oral hearing, her case would be adjudicated in an incompetent, unlawful and partial manner. She did not invoke any witnesses or other oral evidence.
On 14 October 1997 the County Administrative Court refused an oral hearing and delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted, including the statements from the said two doctors. As regards the question of an oral hearing, the court held as far as relevant:
“Both [the applicant] and her representative were present at the meeting, after which the Social Insurance Office made their decision in the case. Moreover, she has described thoroughly in writing her place of work and the tasks assigned to her. In these circumstances, the court finds that the case has been clarified to the extent required. Therefore, an oral hearing is unnecessary.”
The applicant requested leave to appeal and an oral hearing in the leaveto-appeal proceedings. In support of the latter she stated that she wanted to hear the insurance doctor as a witness, in order that he confirm his written opinion under oath, so that he would bear some responsibility for his statements, which in the applicant’s view lacked relevance.
By decision of 29 April 1999 the Administrative Court of Appeal (Kammarrätten i Stockholm) refused an oral hearing, and gave at the same time the applicant an opportunity to submit within two weeks further observations she might wish to invoke regarding the leave-to-appeal issue. The applicant, reiterating her request for an oral hearing, stated that neither the Administrative Court of Appeal, nor the insurance doctor was adequately qualified.
By decision of 18 June 1999 the Administrative Court of Appeal refused to grant the applicant leave to appeal against the County Administrative Court’s judgment of 14 October 1997. In her appeal to the Supreme Administrative Court the applicant stated that she considered the facts of the case to be clear due to her written observations and the fact that she had been present at the meeting with the Social Insurance Office. Nevertheless, her counsel wished to make oral submission on the appeal before the Administrative Court of Appeal.
On 7 February 2000 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal against the decision of 18 June 1999.
All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance (lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work.
Pursuant to chapter 8, Section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of whether an injury qualifies as an industrial injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the insurance doctor’s assessment of those opinions and any other information pertaining to the matter.
For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. What is meant by “harmful effect“ is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, the question whether a particular injury or illness incurred by the insured person was to be regarded as an industrial injury was subject to the following special rule of evidence. If the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion (chapter 2, Section 2 of the 1976 Act in its wording from 1 January 1993 until 30 June 2002).
The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, and if it is not unnecessary and there are no particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


ITEMID: 001-61711
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BULDAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 with regard to killing of applicant's brother;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 2 with regard to applicant;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü
TEXT: 9. On 3 June 1994 at about 4.30 a.m. while the applicant's brother, Savaş Buldan, was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with his two friends Adnan Yıldırım and Hacı Karay, they were approached by seven or eight people with walkie-talkies, firearms and bullet-proof vests who introduced themselves as police officers. The three men were then forced into three cars.
10. The applicant, who at this time was living in Turkey, was informed of what had happened to his brother at 5 a.m. that same day. With friends and family he began a search, especially along the Istanbul-Ankara motorway. Part of the search party came to an area called the Yedigöller (Seven Lakes). This was a national park. According to the applicant, there was a shooting polygon situated therein, open only to members of the security forces and high-level State officials. The Government on the other hand deny the existence of such a shooting polygon. The search party met a watchman at the national park, who told them that 10 or 11 people in three cars had entered the area on the same day at about 7.30 a.m. The watchman then gave a description of the three vehicles that matched the description given by those who had witnessed the abduction at the Çınar Hotel.
11. When the applicant learnt about the kidnapping of his brother, he immediately contacted members of Parliament, the Governor of Istanbul and the media. The Office of the Prime Minister was also informed about the kidnapping. The applicant and his legal representative made a further written application to the Bakırköy public prosecutor's office. The initial enquiries made by the authorities showed that the three persons had not been taken into custody.
12. The same day, Mr Nihat Buldan, one of Savaş Buldan's brothers, submitted another petition to the Bakırköy public prosecutor's office in which he claimed that his brother and two of his brother's friends had been abducted by people who had identified themselves as plainclothes police officers. Mr Nihat Buldan requested the prosecutor to investigate the matter. The prosecutor asked the family members to go to the Yeşilköy police headquarters, which was responsible for the area where the incident had taken place. The family members complied with this request but no written statements were taken from them at the police headquarters. The Yeşilköy police headquarters informed the Bakırköy police headquarters and also the anti-terrorist branch of the police about the events on the same day.
13. On 3 June 1994 at about 9 p.m., Mr İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu, some 270 kilometres from where the three men had been abducted. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. The same day at about 9.15 p.m. the gendarmerie arrived at the scene. During the preliminary search, no empty cartridges or other evidence could be found as it was very dark.
14. The public prosecutor and two doctors arrived at the scene of the crime at about 11 p.m. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. It was further noted that valuable items such as gold rings and wrist watches were intact. The preliminary investigation of the bodies revealed that rigor mortis had set in and that the three men had been shot at point-blank range. Subsequently, at about 2.45 a.m. on 4 June 1994 the corpses were taken to the Health Centre in Yığılca for further examination.
15. On the night of 3 June 1994, the gendarmerie in Bolu contacted the applicant and informed him that three corpses had been found in Yığılca.
16. On 4 June 1994 the applicant identified the bodies of his brother and his two friends at the Düzce State Hospital.
17. On 4 June 1994 a statement was taken from Mr Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr Uz explained that when the three persons who had disappeared, all of whom he knew as they were regular customers at the hotel casino, emerged from the hotel door sometime between 4.30 and 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, had approached them and held them against the wall and conducted body searches. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as statements had been taken from them. The Mercedes then left followed by the second car which, according to the doorman, was a sports car. The doorman was unable to describe any of the men as it was dark and they had been standing some distance from him.
18. Also on 4 June 1994 a statement was taken from Mr Hüseyin Kılıç, a security guard at the Çınar Hotel. Mr Kılıç stated that seven or eight men had approached the three disappeared persons as they walked out the door. The men all wore waistcoats and were carrying weapons. They forced the three disappeared persons into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car.
19. On 5 June 1994 a statement was taken from Mr Serdar Özdemir, who was a taxi driver waiting at the taxi rank outside the Çınar Hotel. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which had been driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of the seven or eight men.
20. Again on 5 June 1994 another statement was taken from another taxi driver, Mr Hüseyin Durmazer. Mr Durmazer stated that as he approached the taxi rank outside the hotel, he was able to see some people putting three other persons into a black car.
21. The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years in accordance with the statutory limit stipulated for kidnapping.
22. On 17 March 1995 the Bakırköy public prosecutor's investigation file, together with a report summarising the investigation, was forwarded to the Yığılca public prosecutor in order to authorise him to investigate the killings since the bodies were found within his area of jurisdiction.
23. When the bodies were brought to the Yığılca Health Centre in the early hours of 4 June 1994, post mortem examinations of the bodies were carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Savaş Buldan. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was also perceived that rigor mortis was fading. It was observed that when the body was touched, the skin peeled - which was most probably due to its damp condition. One bullet entrance hall on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm. in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out.
24. The bullets recovered from the bodies were sent for a ballistics examination to the Central Police Forensic Laboratory. The Central Police Laboratory prepared two forensic reports dated 6 and 14 June 1994. The ballistics report prepared by the Police Forensic Laboratory on 14 June 1994 showed that five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report also showed that two bullets recovered from the bodies of Savaş Buldan and Hacı Karay had been fired from the same 9 mm. pistol. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities.
25. The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. This report showed that the two bullets recovered from the bodies of Savaş Buldan and Hacı Karay, both 9 mm and Parabellum type, had been fired from the same pistol. The report further concluded that comparisons of five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities. These ballistics reports, together with the photo fits of suspects, were sent to the Yığılca public prosecutor on 21 June 1994.
26. On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of Mr İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994.
27. On 4 June 1994 the Yığılca gendarmerie took statements from 13 persons who claimed to have seen three luxury cars travelling in the direction of the spot where the bodies were later found. One of these witnesses, Fevzi Aydın, stated that at around 8 a.m. on 3 June 1994 he had been having his breakfast when he had seen three cars. The first car had stopped and one of the persons inside the car had asked him for directions to Bolu. The witness stated that it was a red car, but he was unable to remember the make of the car. There were two persons in the car, both around 40 years of age with one of them sporting a beard. The witness had also seen three persons in the third car. The witness was able to remember that the car registrations all started with '34', the prefix for cars registered in Istanbul. Most of the other witnesses also gave similar statements.
28. On 6 June 1994 statements were taken from 11 other witnesses including a number of officials working at the Yedigöller National Park. One of these witnesses, Muzaffer Yıldız, confirmed that the cars' licence plates all had the prefix '34'. The witness also stated that one of the passengers had asked for directions to the Yedigöller National Park. Another witness, Şevket Öztürk, similarly stated that he had seen the three cars and that he had also been asked for directions to the Yedigöller National Park by a passenger in a Mercedes with darkened windows.
29. On 7 June 1994 five more witnesses were questioned. These witnesses also stated that they had seen the three cars at 9 or 9.30 a.m. One of them stated that he had been asked for directions to Bolu.
30. On 10 June 1994 all the witness statements and other documents were sent to the Yığılca public prosecutor.
31. On 21 June 1994 a statement was taken from Nihat Buldan, a brother of Savaş Buldan. He stated that he had been told about the kidnapping which was said to have been carried out by persons claiming to be police officers. This was the reason why he had contacted the police to verify whether his brother had been taken into custody. The witness concluded his statement by stating that his brother had no enemies and that he did not suspect anyone. He requested that the perpetrators responsible for the kidnapping and the subsequent killing be apprehended.
32. On 31 August 1995 the Yığılca public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the perpetrators. The prosecutor further stated in this report that no evidence had been found during the investigation. It was decided, therefore, to issue a continuous search warrant for the perpetrators of the killings, which remained valid for twenty years, the statutory time limit under Article 102 of the Turkish Criminal Code. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators.
33. On 10 January 1995 the Police Laboratory, which had carried out a forensic examination on a 9-mm Smith and Wesson pistol and 11 bullets found in a car in Istanbul, concluded that this weapon had not been used in any unknown perpetrator murder.
34. On 4 June 1996 a statement was taken from Mr İrfan Kurşunlu who had first seen the bodies together with his uncle at 8.15 p.m. on 3 June 1994. He stated that he had not heard any gun shots that day.
35. Also on 4 June 1996 the Yığılca public prosecutor visited the spot where the bodies had been found. He also went to take a statement from one Ayşe Araç who claimed that she had heard gun shots on the day of the killing. The house of Ayşe Araç was just outside Hacılar village and approximately two kilometres from the scene of the incident. In order to test whether this would have been possible, the prosecutor ordered a gendarmerie soldier to the incident scene and to fire a weapon similar to the one used in the killings. The prosecutor was able to hear the gun shot. The prosecutor summoned 12 persons who had seen the three cars on the day of the incident to his office in order to take further statements from them.
36. On 6 June 1996 a gendarmerie non-commissioned officer visited the spot where the bodies had been found and prepared a report. According to this report, the scene of the incident was exactly 7,000 metres from Yığılca town centre. It was impossible for a person in Hacılar village, which was eight kilometres away, to have heard the gun shots. According to the experiments carried out that day, the maximum distance from which gun shots could have been heard was five kilometres.
37. On 6 June 1996 a statement was taken by the Yığılca public prosecutor from Ayşe Uzun who had seen the three cars on the day of the incident. She stated that one of the cars had been a red Mazda with four persons in it. She had not seen any of the cars' number plates.
38. On 6 June 1996 another statement was taken by the prosecutor from one Bengü Çelebi who had also seen the three cars on the day of the incident. She was able to recall that one of the cars had been a red Mazda. She stated that there were three persons in the last car, which had darkened windows.
39. On 7 June 1996 the Ministry of Justice informed the Düzce public prosecutor about the application made to the former Commission by the applicant. The Ministry's letter stated that there were no documents in the investigation file showing that attempts had been made to trace the cars used in the kidnapping despite the fact that eyewitnesses had given the authorities the full registration number of one of the cars and the prefixes of the other two cars. In addition, some witnesses who lived near the spot where the three persons had been killed had stated that they had heard gun shots and that the timing of the gun shots coincided with the time of the killing. The Ministry's letter finally stated that although it was highly probable that further investigations would not produce any outcome, the investigating authorities should still take further steps in the investigation as this case would be scrutinised by the Commission which, in the past, had put prosecutors in difficulties when questioning them. The Ministry requested that the cars be traced, a check made as to whether witnesses could have heard the gun shots and whether any tyre marks had been subjected to forensic examination. It should also be confirmed with the local gendarmerie whether or not any of the witnesses had informed them on the morning of 3 June 1994 that they had heard gun shots.
40. In response to the Yeşilköy public prosecutor's office, on 15 November 1996 the Istanbul Security Department stated that the vehicle with registration number 34 CK 420 was a 1984 model, metallic grey Toyota which had belonged to a certain Mr J.H since 16 August 1995.
41. Between 14 July 1998 and 24 August 1999 the area where the three bodies had been found was visited 20 times by the gendarmerie and the police in an attempt to find the perpetrators there. It had not been possible, however, to find the perpetrators or any other evidence at the place.
42. After the Susurluk incident of 3 November 1996, the spent cartridges and bullets recovered from the scene were re-examined and compared with the bullets and cartridges of the guns found at the scene of the Susurluk incident by the Gendarmerie Criminal Laboratory. In a report dated 15 January 1997, it was concluded that there was no connection between them.
43. On 7 February 1997 Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, Mr Avcı referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following:
“The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”.
44. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, Mr Avcı stated that he did not know how and by whom the killings were carried out.
45. On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention as a result of the investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before.
46. The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison.
47. On 23 February 1998 the lawyer representing the families of the other two deceased persons lodged a petition with the Yığılca public prosecutor's office. He requested that the photograph of the red car, belonging to Tarık Umit, which was found abandoned after his abduction, be shown to the witnesses heard in Yığılca. When the photograph of the red sports car with registration number 34 ZU 478 was shown to Ali Osman Sivri, Halit Sivri and Fevzi Aydın, who had given statements about the incident in 1994, they all stated that it was not like the car they had seen that day, and that a long time had elapsed since the incident.
48. The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. At that time, Mr Öz was detained in the Metris prision in Istanbul in connection with another crime. On 5 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he had not been in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. Mr Öz explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping. On 7 May 1998 Yaşar Öz was formally arrested by the Bakırköy Magistrates' Court.
49. On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicant's brother and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Mr Sebahattin Uz, the doorman at the Çınar Hotel, and Mr Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person got out of the car and filled a container with water from a fountain and left. This witness was unable to recognise the red sports car with registration number 34 ZU 478. He was also shown pictures of Yaşar Öz. The witness stated that the person he had seen did not look like Yaşar Öz.
50. On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz.
51. On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor.
52. On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings.
53. On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends.
54. During the proceedings before the Düzca Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Yaşar Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar.
55. The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities.
56. Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction.
57. The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the Ankara State Security Court concluded that it too did not have jurisdiction to deal with the case. The court held that according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction.
58. On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case.
59. Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. Nihat Buldan, one of Savaş Buldan's brothers, joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. 19 eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before.
60. On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence. The case file was sent back to the Yığılca public prosecutor's office to continue the search for the perpetrators.
61. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Savaş Buldan.
The documents listed below concern the statements taken from various witnesses and the investigation in relation to the kidnapping and subsequent killing of the applicant's brother.
(i) Statement of Sabahattin Uz, doorman of the Çınar Hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office.
(ii) Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office.
(iii) Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office.
(iv) Statement of Hüseyin Durmazer, dated 5 June 1994, taken by the Bakırköy public prosecutor's office.
(v) Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(vi) Statement of Ayşe Araç, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(vii) Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie.
(viii) Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(ix) Statement of Ayşe Uzun, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(x) Statement of Hazım Yıldız, driver of the school bus, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xi) Statement of Mehmet Baş, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xii) Statement of Seyfettin Akmak, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xiii) Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xiv) Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xv) Statement of İrfan Kurşunlu, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xvi) Statements of Hasan Baş; a villager, dated 4 June 1994 and 6 June 1994 taken by theYığılca District Gendarmerie.
(xvii) Statement of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.
(xvii) Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xviii) Statement of Şevket Öztürk, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xix) Statement of Yunus Öztürk, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xx) Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xxi) Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xxii) Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xxiii) Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie.
(xxiv) Statement of Muzaffer Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xxv) Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie.
(xxvi) Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.
(xxvii) Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.
(xxviii) Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie.
(xxix) Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie.
(xxx) Statement of Bahar Yıldırım, dated 7 June 1994, taken by the Yığılca District Gendarmerie.
(xxxi) Statement of Güngör Aydoğan, dated 8 June 1994, taken by the Yığılca District Gendarmerie.
(xxxii) Statement of Şemsettin Okyay, dated 8 June 1994, taken by the Yığılca District Gendarmerie.
(xxxiii) Statement of Nihat Buldan, dated 21 June 1994, taken by the Yığılca District Gendarmerie.
(i) Body examination report, dated 4 June 1994.
(ii) Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory.
(iii) Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory.
(iv) Photo-fits of three of the perpetrators.
(v) Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory.
(vi) Report of the Gendarmerie Forensic Laboratory, dated 15 January 1997.
(vii) Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın.
(i) Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander.
(ii) Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander.
(iii) Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994.
(iv) Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995.
(v) A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor.
(vi) Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident.
(vii) A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office.
(viii) An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots.
(ix) The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office.
(x) Periodic follow-up reports (twenty in all) of gendarmes between 1998 and 1999.
(xi) Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995.
(xii) Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996.
(xiii) Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted.
(i) Letter of Pervin Buldan, the wife of Savaş Buldan, to the Yığılca public prosecutor, requesting the extension of the investigation so as to cover the new evidence produced after the Susurluk incident.
(ii) Statements of Hanefi Avcı, dated 7 February 1997 and 24 March 1997, concerning the Susurluk incident.
(iii) Report of the Central Police Laboratory indicating that the photo- fits of the perpetrators had similarities with the photo of Yaşar Öz.
(iv) Statement of Yaşar Öz, dated 7 May 1998.
(v) Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before.
(vi) Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7 March 1998. The file was transferred to Ankara State Security court.
(vii) Non-jurisdiction decision of the Ankara State Security Court, dated 7 October 1998.
(viii) Non-jurisdiction decision of Düzce Assize Court, dated 24 November 1998, and transfer of case file to the Ankara State Security Court.
(ix) Non-jurisdiction decision of Ankara State Security Court, dated 16 December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction.
(x) Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court.
(xi) Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court.
(xii) Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence.
62. The applicant produced several press releases concerning the abduction and killing of his brother.
63. The applicant further submitted to the Court a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr Kutlu Savas, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.
64. The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.
65. The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. In the Report, reference is made to the killing of the applicant's brother:
“All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).”
66. The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken.
67. For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v. Turkey, no. 27602/95, §§ 111-18, 16 July 2002 and Tepe v. Turkey, no. 27244/95, §§ 115-22, 9 May 2003.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
2
3


ITEMID: 001-83578
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TANGIYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1958 and was a resident of Grozny, Chechnya. She currently resides in Ingushetia.
7. The submissions of the parties on the facts concerning the circumstances of the applicant’s relatives’ deaths and the ensuing investigation are set out in Part A below. A description of the relevant materials submitted to the Court is contained in Part B.
8. The applicant and her family lived in the Staropromyslovskiy district of Grozny in their own house at 166 Derzhavina Street.
9. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. The Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submitted that most residents of the district had left for safer areas. Following heavy fighting, as of December 1999 the Russian forces started to regain control over the city starting from the north, and by the end of January 2000 the central parts of the city were finally taken.
10. In the winter of 1999-2000 the applicant, her father Abdul-Vagap Tangiyev (born in 1926), her mother Khirzhan Ibragimovna Gadaborsheva (born in 1932), her uncle Ismail Ibragimovich Gadaborshev (born in 1924) and her sister Khanifa Gazdiyeva remained in their house in Grozny. In December 1999 they were joined there by five neighbours, all women, because their house had a large cellar where they could take shelter during shelling.
11. The applicant, her sister and a neighbour submitted written accounts of the events of December 1999 and January 2000. According to them, the district had first come under heavy bombardment on 22 November 1999, when one of the women who had been staying with them in the cellar had been killed. On the same day the applicant’s mother had been slightly wounded by shrapnel. After that the shelling intensified, and the applicant and her family were unable to leave the town.
12. After 23 December 1999 the shelling became very intense, and the persons who had been staying in their cellar decided to move somewhere safer. On 26 December 1999 most of them moved to a nearby five-storey building with a larger cellar in Pugacheva Street. The applicant’s father, uncle and one neighbour remained in their house to look after the property and cattle. In the evening of the same day the applicant heard the noise of tank engines in the streets. She said that they had been relieved because they had expected an end to the shelling.
13. In the morning of 27 December 1999 the applicant’s uncle met a group of Russian servicemen on the way from his house to the Pugacheva Street and told them that a group of forty to forty-five civilians had taken refuge in the cellar of that house. The servicemen then came into the cellar and checked the identity documents of the men, most of whom were about 50 years old. The soldiers then took up battle positions in the neighbourhood.
14. In the morning of 28 December 1999 the applicant noted that their house in Derzhavina Street was partially destroyed. When she and her mother arrived there, they found her father and a neighbour, who had remained in the cellar throughout the day upon orders of the soldiers who had been stationed around the house.
15. On 28 and 29 December 1999 servicemen came to the cellar of the apartment block at Pugacheva Street where the applicant was staying and ordered the men, under threat, to help them collect six bodies of servicemen from the street.
16. On 1 January 2000 a detachment of the OMON (special police forces) arrived in the district and took up position in a former hostel building near Pugacheva Street. On the same day servicemen from that unit took away three men from the cellar. The applicant later learned that they had been shot.
17. Each day from 3-10 January 2000 the applicant went to check up on her relatives in the house at Derzhavina Street. On several occasions there they met an officer who said his name was Tima and who was the commander of a tank crew stationed at 164 Koltsova Street. The officer was often drunk and aggressive, and had once threatened to shoot them all, but the applicant’s father had managed to calm him down. Tima said that he was from Ossetia and that he had fought in Dagestan before. The applicant submitted that she could have identified him or composed a sketch of him. She submitted that the situation had been very tense, because the soldiers had regularly visited both houses for identity checks, ordered the residents to help them collect dead bodies under threat, selected men for “exchange” with the fighters, and so on. The applicant also saw the houses in the neighbourhood being systematically set on fire.
18. In the evening of 10 January 2000 the applicant, her family and some neighbours finally decided to leave Grozny on the following day, until the situation grew calmer. The applicant and her sister went to get water from the hostel where the OMON troops were stationed and warned an officer there that old people were staying in the house at Derzhavina Street, and that they should not shell it or shoot at them when they were carrying water. She then returned to the cellar of the house at Pugacheva Street, while her mother, father, uncle and a neighbour, Valentina Fotiyeva, stayed in their family home at Derzhavina Street.
19. In the morning of 11 January 2000 the applicant, her sister and three other women went to the house at Derzhavina Street to pick up her uncle and to say good-bye to her parents. They found the gates closed and smoke coming out of the house. They received no reply to their calls, and forced the doors open. The cellar was burning and they were unable to access it. In the kitchen they found the applicant’s father’s body and the body of Valentina Fotiyeva, both with gunshot wounds. The documents, money and valuables were intact. The applicant and her sister took the two bodies out of the burning house, but did not have time to extinguish the flames or to bury them because they were afraid that the killers would come back. They ran to the house in Pugacheva Street and related what had happened. A neighbour told them to leave immediately and promised to take care of the burials. The applicant and her sister took only their personal documents with them and walked several kilometres to the roadblock in Sobachevka, where they took a bus to Ingushetia.
20. On the following day, 12 January 2000, the applicant returned to Grozny with two cars, in order to collect and bury the bodies. At one of the military roadblocks on the way they picked up three servicemen as an escort for security. They also met by chance their neighbour, who explained where he had buried the applicant’s father’s body. When they arrived at 166 Derzhavina Street, the house was completely burned down. They could not go down to the cellar, because it was still smouldering. They dug up the applicant’s father’s body and took it away for burial in the village of Chermen in North Ossetia.
21. One month later relatives of Valentina Fotieyeva collected her body and buried it in a cemetery in Grozny.
22. Later, on 6 March 2000, the charred remains of the applicant’s mother and uncle were extracted from the cellar by officials of the Russian Ministry of Emergencies (Emercom). Personal belongings and bullets were found near the bodies. The applicant’s family buried them at a village cemetery in Ingushetia.
23. In addition to her own statements and three witness statements, the applicant submitted drawings of the neighbourhood and of their house at 166 Derzhavina Street, with indications of the places referred to and the locations of the bodies of her relatives. She also submitted photographs of the ruins of their house and of the cellar in Pugacheva Street.
24. The applicant did not apply to any authorities or contact a medical doctor after the incident. However, her story was related in a number of press articles and NGO reports, copies of which the applicant submitted to the Court.
25. On 26 January 2000 the Literaturnaya Gazeta newspaper in the article “Welcome to Hell! Interviews with Persons Who Escaped from Besieged Grozny” reported the story of the killing of the applicant’s relatives, based on an interview with her.
26. In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least thirty-eight civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the deaths of Abdul-Vagap Tangiyev, Khirzhan Gadaborsheva, Ismail Gadaborshev and Valentina Fotiyeva, based on interviews with the applicant and another witness in Ingushetia.
27. Several human rights NGOs assisted the applicant and addressed the law-enforcement authorities in relation to the events in the Staropromyslovskiy district of Grozny in January 2000, where several dozen local residents had allegedly been executed by unidentified military units.
28. On 10 February 2000 Human Rights Watch wrote to the Russian authorities, including the President, the Prosecutor General and the Minister of Defence with a request that they investigate credible allegations of the mass murder of civilians in the Staropromyslovskiy district.
29. On 3 May 2000 the applicant was questioned by a prosecutor in the Staropromyslovskiy District Prosecutor’s Office. The applicant submitted that the investigator had asked her questions about the killings, to which the applicant herself was not a witness. When she had stated that only the Russian servicemen stationed around the house could have committed the murders, and had spoken of their previous visits and threats, the investigator had told her that there were no direct witnesses to the murders, and that she could be held responsible for false accusations. The applicant had suggested that officer Tima could be responsible for the killings, and the investigator had told her that he had died. After that the applicant had been convinced that the investigation would not be effective and did not turn to any other official body.
30. She was called for questioning once again, as a witness, on 31 May 2000, but it appears that she failed to attend.
31. It appears that no death certificates were ever issued in respect of the applicant’s relatives. The applicant’s cousin, the son of Ismail Gadaborshev, submitted that he had had difficulties in obtaining a death certificate for his father and for other relatives.
32. The applicant’s representatives, NGO Memorial, asked prosecutors at various levels on several occasions to submit information about the investigation of the killings of civilians in the Staropromyslovskiy district. In response, they received conflicting information with references to different criminal case numbers. On several occasions they were informed that their requests had been forwarded to different prosecutors’ services for processing.
33. On 19 June and 18 July 2002 the Chechnya Prosecutor’s Office informed Memorial that on 5 March 2000 criminal case no. 12011 had been opened into the murders committed in Grozny on 10 January 2000 and that it had been transferred for further investigation to the Northern Caucasus Department of the Prosecutor General’s Office.
34. However, on 22 August 2002 the Northern Caucasus Department of the Prosecutor General’s Office forwarded Memorial’s request for information to the Chechnya Prosecutor and asked him to issue an update of the investigation of criminal case no. 12011.
35. On 17 February 2004 the applicant wrote to the Staropromyslovskiy District Prosecutor asking for news about the investigation into her relatives’ murder. She did not receive a reply.
36. On 28 May 2004 the Staropromyslovskiy District Prosecutor’s Office granted victim status to the applicant’s brother Shamsudin Tangiyev in criminal case no. 33024 concerning the murder of his parents and uncle in Grozny on 11 January 2000.
37. In March 2005 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 33024. In their memorials submitted in reply the Government gave some details of the investigation, without specifying the dates of the investigative measures. They did not submit any copies of the documents to which they referred. The Government stated that the investigation was pending and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”.
38. In May 2006 the Court declared the application admissible and reiterated its request for the documents. In response, the Government submitted an update of the investigation and several documents from the criminal investigation file (see Part B below). They did not submit any of the witness statements or other important procedural documents, such as descriptions of the sites or results of the ballistic expert reports.
39. Referring to the information from the Prosecutor General’s Office, the Government submitted in their memorials that the investigation had established that between January and February 2000 detachments of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district, including the applicant’s relatives, had been killed by unknown persons.
40. The Government submitted that a number of investigative measures had been carried out by the prosecutors. On 17 April 2004 they inspected the Tangiyevs’ house. On 28 May 2004 the applicant’s brother Shamsudin Tangiyev was questioned and granted victim status in the proceedings. On 5 May 2004 the applicant, her sister and two relatives were also questioned and granted victim status in the proceedings. On the same day the investigating officers recovered from the applicant two cartridges she had collected near the body of her father. A ballistic examination was carried out and concluded that they were the type of ammunition used for a 5.45 mm calibre automatic rifle and could be used to identify the firearm used.
41. The Government submitted that the applicant and her relatives had refused to allow the bodies of their relatives to be exhumed for forensic tests to be carried out. They had also refused to identify their places of burial, which made it impossible to establish the cause of their deaths.
42. The Government further informed the Court that between April and July 2004 the investigating officers had questioned more than twenty neighbours and acquaintances of the Tangiyevs, who had stated that they had no information about the perpetrators of the killings. One witness stated that the Staropromyslovskiy district had been the scene of heavy fighting between the federal forces and the illegal armed groups. Another witness stated that the applicant’s father had had a dispute with the members of the illegal armed groups. The investigators failed to identify the relatives and the place of burial of Valentina Fotiyeva, the woman who had been killed in the Tangiyevs’ house.
43. The investigators looked into the possibility that the killings could have been committed by the servicemen, but found no information to support it. According to the information from the Northern Caucasus Military Circuit, between January and February 2000 the detachments of the federal forces in the Staropromyslovskiy district had been subjected to numerous attacks by illegal armed groups, who could be implicated in the killings. On 3 June 2005 a military prosecutor questioned the commander of one of the military units which had taken part in the counterterrorist operation in Grozny. He stated that he had not been aware of the applicant’s relatives’ killings. The prosecutors continued to carry out investigative measures with the participation of the servicemen.
44. According to the Government, the victims had been systematically informed of the adjournments and reopening of the case. The investigation was pending with the Staropromyslovskiy District Prosecutor’s Office and was under the special supervision of the Prosecutor General’s Office.
45. In November 2004 the applicant submitted additional documentary evidence in support of her allegations. In addition to her own detailed statements of facts, the applicant submitted three witness statements.
46. The applicant’s sister Khanifa Gazdiyeva stated that on 10 January 2000 they had decided to leave Grozny on the following day because of constant harassment by soldiers. In the morning of 11 January 2000 the witness, along with the applicant and two women named Galina and Birlant M., went to collect her parents and uncle from their house at Derzhavina Street. She then described how they had discovered the bodies of her father and of Valentina, both with gunshot wounds to the head. The house was turned upside down and there were a lot of bullet holes. Some of the furniture was smouldering, the cellar door was closed and smoke was coming out of it. The women took two bodies out of the house but could not extinguish the flames in the cellar. They then left the bodies with the neighbour out of fear that the soldiers might return and kill them as witnesses, and left Grozny on the same day. They buried their father’s body on 12 January 2000. On 6 March 2000 the remains of their mother and uncle were removed with the assistance of Emercom and buried in Ingushetia.
47. The applicant’s cousin, Magomet Gadaborshev, testified about the death of his father, the applicant’s uncle. The witness himself was in Ingushetia at the relevant time and learnt of his father’s death from the applicant and other relatives.
48. The applicant’s neighbour in Grozny, “Galina P.”, testified that she had been with the applicant and her sister on 11 January 2000 when they had found their parents’ and uncle’s bodies in the house at Derazhavina Street. The witness submitted that the Chechen fighters (“boyeviki”) had left the district by mid-December, and that before that they had caused no harm to the residents, and had sometimes even helped them. From 25 December 1999 the Russian servicemen started to enter the Staropromyslovskiy district. Some of the soldiers helped them and gave them food. Others asked them, sometimes under threat, to help them collect the dead bodies of servicemen, because the “fighters” would not shoot at civilians. She corroborated the relatives’ statements about the discovery of the bodies on 11 January 2000.
49. In addition to the documents submitted by the applicant, in the proceedings in the case of, Makhauri v. Russia (application no. 58701/00), the Government submitted a copy of the investigation file in criminal case no. 14/33/0262 (joined in July 2004 with criminal case no. 50100) opened by military investigators in relation to an attack on Mrs Makhauri in January 2000 in the Staropromyslovskiy district. The file also contained a witness statement by Galina P. (born in 1937), made during the investigation in August 2000. On the basis of this information, in 2000 the military investigators requested the Grozny Town Prosecutor’s Office to give them information about the murder of the three members of the Tangiyev family and the woman named Valentina. It appears that no reply was received.
50. Galina P. stated to the military investigators that in winter 1999-2000 she had remained in Grozny. She moved in to the Tangiyevs’ house at Derzhavina Street, where nine people had stayed in the cellar, and remained there until 24 December 1999. Then they moved to another house, at 144 Pugacheva Street, because the shelling had become too intense and the first house had been damaged. About sixty people, mostly elderly, had stayed in the big cellar at 144 Pugacheva Street. The Chechen fighters left their district around 18 December 1999. The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve the wounded and dead. On 1 or 2 January 2000 the three youngest men from the cellar (aged below 50) had been taken away by soldiers and later found dead. The witness described the soldiers as wearing blue-grey camouflage uniforms. She also testified that on 10 January 2000, along with the two Tangiyev sisters, she visited their house, where four persons had been staying: Abdul-Vagap Tangiyev, his wife Khirzhan Gadaborsheva, his brother Ismail Gadaborshev and an elderly woman, “Valya”. They found the bodies of Mr Tangiyev and Valya in the house with gunshot wounds, while the cellar was closed and burning. A neighbour told them to leave because the killers could return, and later told them that he had buried the four bodies in the courtyard. On the same day, on 10 January 2000, the witness left for Ingushetia.
51. In September 2006 the Government submitted about seventy pages of documents from the file of the criminal investigation carried out into the murder of the applicant’s parents and uncle. Those documents include the prosecutors’ decisions to open, transfer, adjourn and reopen the investigation, and to grant victim status to the applicant and her brother. They can be summarised as follows.
52. On 3 May 2000, following the publication of “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000, the Grozny Town Prosecutor’s Office opened criminal investigation file no. 12038 under Article 105 part 2 of the Criminal Code (murder of two or more persons in aggravating circumstances) “concerning mass murder by the ‘205th brigade’ of members of the civilian population in the Katayama settlement in Grozny on 19 January 2000”. In connection with these proceedings the applicant and her brother were questioned in May and June 2000.
53. On 14 August 2003 an investigator of the Grozny Town Prosecutor’s Office decided that the killing of four persons at 166 Derzhavina Street had constituted a separate episode and forwarded the relevant part of the file to the Staropromyslovskiy District Prosecutor for further investigation.
54. On 20 August 2003 the Staropromyslovskiy District Prosecutor’s Office refused to carry out an investigation under Article 24 part 1 paragraph 2 of the Code of Criminal Procedure – due to the absence of information indicating that the deaths had occurred as a result of criminal actions. The investigator stated that the information about the circumstances of the applicant’s relatives’ deaths had been incomplete. Turning to the applicant’s statement, he concluded that the deaths and the fire in the house had most probably been a result of shelling, because at the relevant time the district had been the scene of heavy fighting. In the absence of more reliable information about the reasons and circumstances of the deaths, the investigation was closed.
55. On 2 April 2004 the Chechnya Prosecutor’s Office quashed that decision. On 16 April 2004 the Staropromyslovskiy District Prosecutor’s Office opened criminal investigation file no. 33024 under Article 105 part 2 of the Criminal Code into the applicant’s relatives’ murder.
56. In May 2004 the applicant’s brother, and in May 2005 the applicant, were granted victim status in the proceedings.
57. At different stages of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators. On 26 August 2004 a prosecutor from the Staropromyslovskiy District Prosecutor’s Office ordered, among other things, that a plan of action be drawn up, that steps be taken to locate the places of burial and to carry out exhumations and forensic tests, that the bullets and cartridges from the crime scene be collected and sent for examination by a ballistic expert, that more personal information about the victims be collected, including the identification of the relatives of Valentina Fotiyeva. Similar orders were issued in October 2004, April and December 2005.
58. Between April 2004 and August 2006 the investigation was adjourned and reopened seven times. The latest document in the case-file reviewed by the Court is dated 14 August 2006. The prosecutor of the Staropromyslovskiy District Prosecutor’s Office resumed the investigation and again ordered the collection of missing information about the victims, the identification and questioning of other possible witnesses to the crime, including Galina P., and the implementation of other steps to identify the perpetrators of the killings.
59. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
60. Article 161 of the new Code of Criminal Procedure establishes the rule of impermissibility of disclosing data from the preliminary investigation. Under paragraph 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
VIOLATED_ARTICLES: 13
2
38
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-60803
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SMOLEANU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant was born in 1922 and lives in Ploieşti.
10. On 20 January 1944 the applicant received as a dowry from her father a house situated in Ploieşti (hereafter called “the house”), composed of two flats and a garage plus the adjoining land.
11. In 1950 the State took possession of the property, allegedly under Decree no. 92/1950 on nationalisation. The applicant was never informed of the grounds or legal basis for that deprivation of property. She was, however, allowed to use one of the flats in the house as a tenant of the State.
12. Between 1950 and 1955 the applicant made several complaints to the authorities, arguing that the provisions of Decree no. 92/1950 were inapplicable to her case and requesting that the house be returned to her. She did not receive any reply.
13. In 1954 the State demolished the garage.
14. In 1994 the applicant brought an action in the Ploieşti Court of First Instance for recovery of possession of the house. She submitted that she belonged to the category of persons whose property Decree no. 92/1950 exempted from nationalisation and requested that the State-owned company, R.P., which managed State-owned housing, be ordered to return her property. On 3 May 1994 the court dismissed her claim on the ground that she had not proved her allegations.
15. The applicant appealed against that judgment to the Prahova County Court. In a decision of 13 January 1995 the court allowed the appeal, declared the action to recover possession admissible and ordered the house to be returned. It found that, as a nurse and a war widow since 1941, the applicant belonged to the category of persons whose property the decree exempted from nationalisation.
16. R.P. appealed against that decision. In a judgment of 13 June 1995 the Ploieşti Court of Appeal allowed the appeal, quashed the judgment of 13 January 1995 and dismissed the applicant's claim on the ground that the house had become State property pursuant to Decree no. 92/1950 and that the courts did not have jurisdiction to review whether the decree had been properly applied to her. The court added that provision as to redress for any wrongful seizure of property by the State would have to be made in new legislation.
17. On 26 July 1995 the applicant requested the Procurator-General of Romania to lodge an application to have that final judgment set aside, submitting that it was unfair because the court had refused to examine whether Decree no. 92/1950 was applicable to her.
18. The Procurator-General replied on 8 August 1995, informing her that an application to have a final court judgment set aside could be made only, inter alia, where the decision was ultra vires, which had not been the case here. He added that final decisions could not be challenged on grounds of lawfulness or on the merits.
19. On 6 March 1996 the applicant lodged an application for restitution of the house with the administrative board established to deal with applications lodged in Ploieşti pursuant to Law no. 112/1995 (“the Administrative Board”). She submitted that she had been dispossessed of her property in breach of Decree no. 92/1950 on nationalisation, and that the Ploieşti County Court, in its decision of 13 January 1995, had held that the deprivation of property had been unlawful but that the Ploieşti Court of Appeal had refused to entertain her claim and had indicated that she should bring administrative proceedings.
20. In a decision of 17 July 1996 the Administrative Board vested ownership of the flat rented by the applicant in her and awarded her financial compensation for the rest of the house and the land. Having regard to section 12 of Law no. 112/1995, which put a ceiling on compensation, the Administrative Board awarded the applicant 11,581,867 Romanian lei (ROL) for the second flat and ROL 19,156,500 for the adjoining land that had not been returned and rejected her claim for compensation for the garage. According to the applicant, the amount she had received was substantially less than the value of the property.
21. On an unknown date the applicant challenged that decision in the Ploieşti Court of First Instance, arguing that she was claiming restitution of the actual house.
22. The proceedings were adjourned pending the outcome of the second action for recovery of possession, which the applicant had lodged concurrently.
23. The proceedings were resumed on an unknown date and ended on 23 April 1999 with a judgment of the Ploieşti Court of Appeal upholding the decision of the Administrative Board.
24. In the meantime, on 10 September 1996, the State sold one of the flats in the house to the former tenants.
25. On an unknown date the applicant lodged a further action for recovery of possession with the Ploieşti Court of First Instance.
26. In a judgment of 10 June 1997 the court dismissed the action on the ground that, by deciding to bring administrative proceedings, the applicant had acknowledged that the property had been nationalised with valid legal title and was consequently debarred from bringing an action for recovery of possession.
27. The applicant appealed. She stressed that she had consistently argued before the Board that her house had been wrongfully nationalised and that she had brought administrative proceedings under Law no. 112/1995 because the Ploieşti Court of Appeal had refused to examine her first action for recovery of possession. The County Court dismissed her claim on 27 November 1997 on the same ground as the Court of First Instance.
28. The applicant appealed. On 30 March 1998 the Ploieşti Court of Appeal dismissed her appeal in a final decision. It noted that the applicant had applied concurrently to the Board and the courts for restitution of the house and noted that the administrative proceedings had been adjourned. It concluded that the applicant, having chosen the remedy provided for in Law no. 112/1995, was now debarred from bringing an action for recovery of possession in the ordinary courts because that choice amounted to an implicit acknowledgment on her part that the nationalisation had been lawful.
29. On an unknown date the applicant applied for the judgment of the Ploieşti Court of Appeal to be set aside on the ground that the Court of Appeal had denied her access to a tribunal for the determination of her action for recovery of possession. Her application was dismissed on 16 December 1998 by the Braşov Court of Appeal.
30. The relevant domestic legislation and case-law are set out in the Brumărescu v. Romania judgment ([GC], no. 28342/95, ECHR 1999-VII, pp. 250-56, §§ 31-44).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1