ITEMID: 001-61089
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TEPE v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 with regard to abduction and killing;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 5;Not necessary to examine Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to comply with obligations under Art. 38-1-a;Not necessary to examine Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, Mr İsak Tepe, is a Turkish citizen who was born in 1943 and is at present living in İstanbul (Turkey). At the time of the events giving rise to his application, the applicant was the provincial chairman of a political party, the DEP (Democracy Party), in the province of Bitlis (southeast Turkey). The application concerns the applicant’s allegations that his son, Mr Ferhat Tepe, was abducted and killed by undercover agents of the State.
9. The facts surrounding the death of the applicant’s son are disputed between the parties.
10. The facts as presented by the applicant are set out in Section 1 below. The facts presented by the Government are contained in Section 2.
11. A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the Court’s delegates at hearings conducted in Ankara is summarised in Part C.
12. In the beginning of July 1993, General Korkmaz Tağma, the commander of the Tatvan 6th Armoured Brigade, invited the provincial leaders of all political parties to a meeting at the army barracks. The applicant attended this meeting as the representative of the DEP and spoke in support of the cultural and democratic rights of the Kurdish population in Turkey. During the meeting, General Tağma claimed that there were no Kurds in Turkey and that those who had taken to the mountains were Armenians. He then asked the participants to report to him the names of the people who helped the PKK. The applicant replied to General Tağma that there were Kurds in Turkey as well as Turks and other minorities and that these people should be treated on the basis of equality in a democratic manner. He added that the denial of other people’s existence and the oppression or repression of others would not lead anywhere. General Tağma was furious and wanted to obtain information on the children of the chairmen, for example where they worked and how old they were. He warned the chairmen, including the applicant, that their children would be destroyed if they were not raised as loyal citizens of the State.
13. In the afternoon of 10 July 1993 the applicant’s son, Ferhat Tepe, born in 1974 and working as a reporter for the Özgür Gündem newspaper in Bitlis, was taken into police custody. No reasons were given for his arrest. He was released the same day in the afternoon.
14. On 28 July 1993 at around 7 p.m., while Ferhat was in the schoolyard of the Şemsi Bitlis primary school, a tall, bearded man who was known in the area to be a policeman, took him by the arm, put him in a car and drove away with him. Their car was followed by a white car, a Renault with the registration number 65 AD 095. There were two persons inside the white Renault, which was seen later that day parked next to Mahallebaşı police station.
15. Later on the same day, the applicant learned from İsmetullah Güzelsoy and Adnan Karslıoğlu that two plain-clothes policemen had made enquiries about Ferhat in the building where they lived. He went home in panic and realised that Ferhat was missing.
16. On 29 July 1993 at around 6 a.m. the applicant received a phone call from an anonymous person who claimed to be a member of an organisation called the “Ottoman Turkish Revenge Brigade” and said that they were keeping his son as a hostage. The caller said that Ferhat would be killed unless the applicant closed down the DEP’s Bitlis branch, released four French tourists who were in the hands of the PKK and paid one billion Turkish liras (TRL). The applicant said he could close down the Bitlis branch and try to find TRL 1 billion but had no power to secure the release of the French tourists, as he had no connection with the PKK. The caller warned the applicant that his son would be killed if the conditions were not met.
17. On the same day at 8 a.m. the applicant went with his wife and daughter to the Bitlis Security Directorate, where he told the director and the provincial governor of his suspicion that Ferhat had been abducted by contra-guerrillas operating within the State security forces. The governor and the director denied the existence of contra-guerrillas in Turkey and affirmed that the State did not commit murder.
18. On the same day the applicant applied to the Bitlis Public Prosecutor and asked that his home and office telephones be tapped in order to trace the caller’s number if another call was made. He also requested that all necessary action be taken to rescue his son.
19. On 30 July 1993 the applicant sent telegrams to the Prime Minister, the Minister of the Interior and the Governor of the state of emergency region asking for their aid in rescuing his son.
20. On 1 August 1993 the applicant and his wife went to Tatvan to talk to General Korkmaz Tağma at the brigade headquarters. They were told that the general was ill and had gone to Antalya. They were received by a colonel and attended a meeting at General Tağma’s office. During this meeting, Mrs Tepe stated that the bloodshed between Turks and Kurds had to stop and that she would sacrifice her son if this were to bring the animosity to an end.
During the second or the third telephone call, the anonymous caller said that Mrs Tepe had spoken well at General Tağma’s office, which proves that the caller was either present at the meeting or had been informed by someone who had attended the meeting.
21. Subsequently, the applicant informed the Security Director that according to Fatih Olcay and Adnan Karslıoğlu, eye-witnesses to Ferhat’s abduction, the people who had taken Ferhat away were policemen. The applicant also said that there was evidence that the white Renault, which had followed the car in which Ferhat Tepe was abducted, belonged to the security forces.
22. On 4 August 1993 the applicant received another phone call at around 3 a.m. He immediately alerted the authorities while he was on the phone and asked them to identify the caller’s number. The conversation that followed was recorded. The person on the phone said that the applicant had failed to fulfil their conditions for the release of Ferhat since the DEP branch had not been closed down, and the applicant had failed to pay and had reported everything to the authorities. The caller told the applicant to bring TRL 1 billion to an address in the province of Elazığ. After listening to the recording, the Security Director told the applicant that the State could give him special bank notes, the serial numbers of which had been noted by the police, and told him to come back later for the bank notes. Later on the same day, when the applicant called again, the Director told him that he was having difficulty in obtaining the bank notes.
23. On the same day the applicant, together with four policemen and four of his relatives, went to the address in Elazığ indicated by the caller but could not find anyone.
24. Still on 4 August 1993, Ferhat’s dead body was found by a civil servant at the Lake Hazar, in Karakem. On the same day the public prosecutor and a medical expert examined the body. The report of their findings concluded that the cause of death was drowning and that there was no need for a systematic autopsy. It also stated that no signs of blows or the use of force on the body or of friction on the wrists and ankles had been detected.
25. On 5 August 1993 the applicant, who had not yet been informed of Ferhat’s death, applied to the Public Prosecutor enquiring whether the anonymous caller’s number had been traced. His application remained unanswered.
26. On 8 August 1993 the applicant received a third anonymous telephone call in which he was told that Ferhat’s body was at the morgue in Elazığ. Later that day the applicant discovered that the body had been buried on 5 August 1993 in the Elazığ cemetery for persons with no known relatives.
27. On 9 August 1993 the applicant identified Ferhat’s body, which had been exhumed by the authorities. In preparation for the funeral ceremony, the applicant washed the body himself in a mosque. He saw that his son’s testicles had been crushed and that there were marks on the arms, ankles, testicles and chest. He observed some cigarette burn marks on the body but no fractures. There were also deep wounds on the wrists and ankles showing that Ferhat had been bound hand and foot. The applicant alleged that, according to the eyewitnesses Mümtaz Çerçel, Ömer Aceban, Bahri Elçi, Miğdat Yaşar, Murat Koparan, Taner Şarlak, Erkan Dağdelen, Urfi Pasin and Rıza Demirtaş, who had been apprehended and questioned at the relevant time in the Diyarbakır Recruitment Office, Ferhat had been held there and tortured by members of the security forces between 28 July and 4 August 1993. Mümtaz Çerçel allegedly gave a statement, but withdrew it after being threatened by the police.
28. On 9 August 1993 the Sivrice Public Prosecutor issued a decision of non-jurisdiction, referring the investigation file to the Bitlis Public Prosecutor’s office.
29. At the funeral procession in Bitlis on 10 August 1993, there was a strong police presence. The police filmed those who attended, checked their identification and arrested fifteen persons. Later on the same day the police searched the applicant’s house.
30. On 12 August 1993 the Bitlis Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Elazığ Public Prosecutor.
31. On 19 October 1993 the applicant sent a letter to the Committee of the Turkish Parliament on Murders Perpetrated by Unknown Persons, alleging that secret forces within the State security forces had killed his son.
32. On 2 November 1993 the applicant filed a petition with the Ministry of Justice, alleging that the abduction and killing of his son had been the acts of State forces and requesting an investigation into the matter.
33. On 16 March 1994 the applicant asked the Bitlis Public Prosecutor whether any inquiry into the killing of his son had been initiated. The Public Prosecutor told him there were some obstacles which he had been unable to overcome. On the same day the applicant went to the Bitlis Provincial Security Directorate and asked the assistant director why no investigation had been carried out. The Assistant Director said he did not have to explain anything to the applicant.
34. On 28 September 1994 the applicant applied again to the Ministry of Justice asserting that certain State security forces had been responsible for the abduction and death of his son. He requested that his allegations be investigated.
35. On 15 November 1994 the Elazığ Chief Public Prosecutor issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe.
36. Following the applicant’s complaints to the authorities, the police took tight security measures. The applicant, his office, his home and the DEP party building were put under constant surveillance. The police filmed the applicant’s colleagues and his fellow-townsmen who came to console him, and checked their identity cards.
37. In the meantime, the applicant’s family had been under intense pressure from the State authorities in relation to his political activities, the investigation he had personally carried out into the killing of his son and his application to the European Commission of Human Rights. The applicant’s daughter was remanded in custody in December 1993; his son was remanded in custody in 1994 for four months and is currently being tried for an offence which carries the death sentence; another of the applicant’s daughters was taken into custody in April 1994; four of the applicant’s nephews were remanded in custody in 1994, one of whom is being tried for an offence which carries the death sentence; the applicant’s brother was taken into custody in April 1994 and the applicant’s cousin has been in Elazığ Prison since 1994. On 24 February 1996 the applicant was arrested in Bartın and held in police custody for eight days in Bitlis. During his detention, the police officers asked him why he accused the State and why he had taken his complaints to the European Commission. They further threatened him and said among other things: “We will kill you just as we killed Ferhat. You are complaining to the infidels about our State. Are they the ones who will save you? Well, let them come and save you.” After being released, the applicant was acquitted of the charges by the Diyarbakır State Security Court. On 4 March 1996 the applicant was allegedly taken into custody in Bitlis on charges of aiding the PKK. He was released on an unspecified date after being interrogated.
38. On 19 February 1997 criminal proceedings were brought against the applicant on account of a speech he had made on a private TV channel, where he had alleged that his son had been murdered by the State. The applicant was charged with insulting the security forces. On an unspecified date, the applicant was convicted as charged and sentenced to one year’s imprisonment.
39. In 1999 the applicant was arrested by police officers from the anti-terrorist department while entering the HADEP (People’s Democracy Party) party building in the Kadıköy district in Istanbul. He was kept in detention for one day. The police officers insulted him and threatened him with death. One of the police officers said that they would kill him just as they had killed Ferhat. The applicant complained to the Fatih Public Prosecutor in Istanbul, who decided to discontinue the proceedings, as there was no witness to confirm his allegations.
40. The applicant’s son Ferhat Tepe had been arrested on two occasions in 1991, as he was suspected of acting as a PKK courier.
41. The Government submitted that, according to various witnesses, on 28 July 1993 Ferhat had met someone in the schoolyard and had left with him of his own free will.
42. The authorities, at the request of the applicant, tapped the anonymous telephone call on 4 August 1993. Although a raid was carried out at the address mentioned in the telephone conversation, the premises were found to be empty. The authorities of the Ministry of the Interior nevertheless established that the residence searched belonged to reporters from Özgür Gündem in Elazığ and concluded that Ferhat’s killing had been the work of the PKK.
43. A report of 24 September 1993 from the Ministry of the Interior to the Ministry of Foreign Affairs and a letter of 16 November 1995 from the governor of Bitlis province indicate that the death of the applicant’s son was the work of the PKK.
44. In a letter of 10 November 1995 the Chief Public Prosecutor of Elazığ, charged with investigating Ferhat Tepe’s death, informed the Ministry of Justice that there was no indication or record of Ferhat’s having been taken into custody. Moreover, the custody records of the Bitlis Security Directorate contained no mention of him.
45. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Ferhat Tepe.
46. On 30 March 1995 the applicant’s lawyer filed a petition with the Chief Public Prosecutor’s office in Bitlis requesting information as to what steps had been taken to find the perpetrators of the abduction and killing of Ferhat.
47. On 31 March 1995, subsequent to the Bitlis Chief Public Prosecutor’s decision of non-jurisdiction, the applicant’s lawyer submitted a petition to the Sivrice Public Prosecutor’s office in Elazığ via the Şişli Chief Public Prosecutor in İstanbul and requested information about the current state of the investigation into the impugned incident.
48. The custody records of the Diyarbakır provincial gendarmes headquarters for the period between 28 July and 4 August 1993 do not contain the name of Ferhat Tepe.
49. The anonymous telephone caller told the applicant that their conditions for the release of Ferhat had not been fulfilled. The applicant replied that he was unable to close down the Bitlis branch of the DEP since this required a decision by the central board in Ankara. The applicant was then told to bring TRL 1 billion by 5 p.m. the next day to an address in Elazığ if he did not want his son to be killed. The person in question warned the applicant not to inform the authorities. The applicant’s request to talk to Ferhat was rejected.
50. An autopsy was carried out on Ferhat’s body by the public prosecutor, a medical expert and the latter’s assistant in the presence of two witnesses and a clerk. It was observed that rigor mortis had not set in and the body had not yet turned blue, that water spurted out when the chest was pressed, that light violet-coloured cyanosis was perceptible on the ears and the nails of both the hands and the feet as a result of suffocation and that there were no signs of any blow or of the use of force on the body, nor were there any signs of friction on the hands and feet. It was therefore concluded that the cause of death was drowning and that there was no need for a systematic autopsy.
51. Nine photographs were submitted to the Court, taken when the body had been pulled out of the lake. No signs of any blows or ill-treatment are visible on the body in these photographs.
52. Following the finding of a corpse in Lake Hazar and its transfer to the morgue of Elazığ State Hospital, the applicant’s nephew, Mr Talat Tepe, went to the hospital to identify the body, which he recognised as being his uncle’s son, Ferhat Tepe.
53. This document states that Ferhat Tepe’s clothes and shoes were given to Mr Talat Tepe.
54. In his statement, Mr Aceban submitted that he had been kept in detention in a military detention centre in Diyarbakır between 25 July and 6 August 1993. He alleged that he had seen a detainee called “Ferhat” or “journalist” by the [officers] on the 3rd and 4th days of his detention. He described Ferhat as being a young man of about 18 or 19 years of age, with long, dark hair.
55. In this statement, the witness was asked to say what he knew about the incident. He replied that on 28 July 1993, at around 4 p.m., he had seen two plain-clothes men making enquiries about Ferhat. When one of them asked whether he knew Ferhat and the other residents of the building, the witness told them that Ferhat lived there and gave the names of the other residents. He claimed that he did not know whether these men were police officers but that they spoke Turkish with a western accent.
56. Mr Güzelsoy asserted that Ferhat had twice been taken into custody prior to his disappearance and that he was an irresponsible boy according to his father. The witness stated that on 28 July 1993, at 4 or 4.30 p.m., Mr Karslıoğlu had told him that two police officers had made enquiries about Ferhat. He had told Mr Karslıoğlu that this might have been an investigation in relation to the attack on police buildings which had taken place the previous day. Later that day, at approximately 5 p.m., he had seen Ferhat and had informed him that two police officers had been looking for him. Ferhat had replied to him that he had not done anything wrong. The next day, the witness had learned from the applicant of Ferhat’s disappearance.
57. On 28 July 1993, at around 6.30 or 7 p.m., the witness saw Ferhat Tepe talking to two women and one or two men next to a bakery. A white Renault Toros with the registration number “65” attracted the witness’s attention as its parking lights were on. There were two young men in the car. The driver was bearded and approximately 35-40 years old, while the man sitting next to him was about 25-30. According to the witness, these men could not have been police officers, otherwise he would have recognised them. The witness learned of the abduction of Ferhat Tepe when he went to the Social Democrat Populist Party building next day.
58. The witness was 17 years old at the relevant time. On 28 July 1993, at about 7 or 7.30 p.m., he was playing football with his friends in the Şemsi Bitlis primary school yard. He saw a bearded man aged about 20-25 waiting in the schoolyard. Two or three minutes later Ferhat arrived and they left the schoolyard arm in arm, like two friends. The bearded man did not use any force against Ferhat.
59. The witness was a police constable at the traffic registration and inspection department of Bitlis Security Directorate. On 28 July 1993 he was on duty, between 7.30 a.m. and 6 p.m., in charge of traffic control in the town centre. His car was parked in front of his house throughout the day. Next day he went to the city centre at around 1 or 1.30 p.m. and parked his car in front of the Çarşı police station. He returned home at 5 p.m. He did not lend his car to anyone on 28 and 29 July 1993.
60. In their statement addressed to the public, the witnesses alleged that they had been taken into custody on 24 July 1993 and kept in a detention centre in Diyarbakır where they were tortured for five days. During their detention, Mr Elçi heard some officers call out “Come on, journalist, it is your turn”. Mr Yaşar heard them asking a man “Journalist, where are you from?”, to which the reply was “I am from Bitlis”. Following their detention on remand they read in Özgür Gündem that a journalist called Ferhat Tepe had been killed under torture and that his corpse had been found in Elazığ. The witnesses submitted that Ferhat Tepe was the journalist whose voice they had heard during their detention.

61. The witnesses alleged that they had been kept in a military detention centre in Diyarbakır for twenty-two days. On the fourth or fifth day of his detention, Mr Dağdelen had seen a man called “journalist” by others. The journalist was chained by his hands to a water pipe and his body was bloody. He was unable to move or speak. Interrogators were torturing him and putting questions to him concerning his involvement with Özgür Gündem. Following their detention on remand, the witnesses read in Özgür Gündem that Ferhat Tepe had been killed. They identified him from his photos. They claimed that they were sure that they had seen Ferhat Tepe in the military detention centre in Diyarbakır.
62. The Chief Public Prosecutor informed the gendarmes and the police of Ferhat Tepe’s disappearance and asked them to verify whether he had been taken into custody for any offence. The Public Prosecutor further instructed that the whereabouts of Ferhat Tepe be determined, that those responsible for Ferhat’s disappearance be brought to his office and that all documents related to the case be sent to him.
63. The Deputy Gendarmes Commander informed the prosecuting authorities in this letter that Ferhat Tepe had not been taken into custody and that he had eventually been found dead.
64. The Elazığ Public Prosecutor requested the former authority to carry out a comprehensive investigation into the death of Ferhat Tepe and to inform him of the outcome. He requested the latter authority to find the person(s) responsible for the killing of Ferhat Tepe and to bring them to his office.
65. In this letter, the authorities of the Ministry of the Interior informed the Foreign Ministry of their conclusion that, having regard to the way in which Ferhat Tepe had been abducted and to the anonymous telephone calls, Ferhat must have been killed by members of the PKK, in a settling of scores within the organisation. They also noted that the allegation that the authorities had failed to respond to the applicant’s request for help was untrue since, following receipt of the applicant’s complaint, an investigation had been started and the photographs of Ferhat Tepe had been distributed to all the provinces and the security units had been alerted.
66. The Chief Public Prosecutor, Mr Süleyman Tutal, issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe. He requested the Elazığ Central Gendarme Commander and the Bitlis Chief Public Prosecutor to inform him every three months of any developments in the investigation.
67. In reply to the petition filed by the applicant’s lawyer on 31 March 1995, the Elazığ Public Prosecutor declared that the perpetrators of Ferhat’s killing had not yet been found and that the complainants would be informed of any developments in the investigation.
68. It is stated in this letter that there is no record of Ferhat Tepe’s having been taken into custody in Bitlis. According to the evidence given by the witnesses, Ferhat met a man in the Şemsi Bitlis Primary School yard and left the premises with that man arm in arm, without any force being used. It is also noted that, according to the autopsy report and the photos taken when Ferhat was found, there were no traces of ill-treatment and no blood stains on his body or his clothes, contrary to the allegations.
69. Following the lodging of the present application with the former Commission and its communication to the Government, in a letter of 27 October 1995 the authorities of the Ministry of Justice requested information from the Elazığ Chief Public Prosecutor’s office on the current state of the investigation into the applicant’s allegations.
70. The Chief Public Prosecutor wrote back stating that there was no evidence in support of the applicant’s allegations that Ferhat had been abducted, kept in custody and killed under torture by the security forces. He noted that the investigation into the murder was pending. He appended to his letter the post-mortem examination report, the autopsy and identification reports and copies of statements taken from İsmetullah Güzelsoy, Osman Pekdaşoğlu, Adnan Karslıoğlu, Fatih Olcay and the applicant as well as the decisions of non-jurisdiction, the permanent search warrant and 7 photos of Ferhat Tepe.
71. The subject of this letter was Ishak Tepe’s application to the European Commission of Human Rights. Having summarised the events, the governor concluded that the accusations made by the applicant were mere allegations since there was no evidence to substantiate them. He noted that on 4 August 1993 the applicant had received a phone call from a person who had told him to bring TRL 1 billion to an address in Elazığ if he wanted to rescue his son. When the applicant had gone to the address accompanied by police officers from the Elazığ Security Directorate, they had not been able to find anyone. Meanwhile, following inquiries made by the Elazığ police, it had been established that the residents at this address were two journalists from Özgür Gündem who had moved out 15 or 20 days before. The police had found the two journalists concerned and had taken statements from them. The governor concluded from these facts that the impugned incident had been a settling of scores within the PKK.
72. The Hozat Public Prosecutor took statements from the witnesses concerning the contents of the document signed by them on 16 August 1993 and entitled “To the Public”.
73. The witnesses admitted to having signed this document but claimed that the contents were untrue. Mr Şarlak and Mr Koparan submitted that a person called İrfan Güler, who was responsible for their prison ward, had written this document and made them sign it. They believed that nothing unpleasant would befall them if they signed the document. They further averred that they had not seen a person called Ferhat Tepe; nor did they know of how he had been killed. Mr Dağdelen, however, asserted that he did not remember when and where he had signed this document.
74. In this letter, the Chief Public Prosecutor was informed that statements had been taken from Murat Koparan, Taner Şarlak and Erkan Dağdelen, that these persons did not know Ferhat Tepe and that they had denied the contents of the document entitled “To the Public”. It was further noted that on 15 November 1996 a permanent search warrant had been issued to find the perpetrators of the killing of Ferhat Tepe.
75. The following documents concern the internal communication of the national authorities concerning the investigation into the disappearance and subsequent death of Ferhat Tepe:
(i) Letter of 29 July 1993 from the Bitlis Chief Public Prosecutor to the PTT Telephone Directorate;
(ii) Letter dated August 1993 from the Elazığ State Hospital Chief Doctor to the Sivrice Chief Public Prosecutor;
(iii) Letter of 4 August 1993 from the Bitlis deputy governor of Bitlis to the Bitlis governor requesting the latter to submit information pertaining to the fate of Ferhat Tepe;
(iv) Letter of 5 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(v) The Sivrice Chief Public Prosecutor’s decision of 7 August 1993 to indemnify those who were involved in the conduct of the autopsy on the body of an unidentified person (Ferhat Tepe);
(vi) Letter of 9 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(vii) Letter dated 9 August 1993 from Public Prosecutor no. 30760 to the PTT Telephone Directorate;
(viii) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Mayor of Elazığ;
(ix) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Registry Office enclosing Ferhat Tepe’s death certificate;
(x) Letter of 11 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Elazığ;
(xi) Letter of 16 August 1993 from the Sivrice Public Prosecutor to the Mayor of Elazığ;
(xii) Letter of 17 August 1993 from the Elazığ Public Prosecutor to the Minister and Deputy Minister of Justice;
(xiii) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Diyarbakır Chief Public Prosecutor’s office;
(xiv) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Bitlis Chief Public Prosecutor’s office;
(xv) Letter of 26 August 1993 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ;
(xvi) Letter dated 1 September 1993 from the public prosecutor, Süleyman Tutal, to the Chief Public Prosecutor’s office in Elazığ;
(xvii) Letter of 1 September 1993 from the Elazığ Chief Public Prosecutor to the Elazığ Governor’s office.
(xviii) Letter of 6 September 1993 from the Elazığ Chief Public Prosecutor to the Provincial Central Gendarme Command in Elazığ;
(xix) Letter of 15 September 1993 from the Diyarbakır Security Directorate Traffic Department to the Diyarbakır Chief Public Prosecutor’s office;
(xx) Letter dated 27 October 1993 from the Public Prosecutor Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(xxi) Report of 12 December 1993 prepared by the police officers Mr Nizamettin Elma and Mr Halit Yılmaz, informing the Security Director that it had been impossible to find those responsible for the killing of Ferhat Tepe;
(xxii) Letter of 28 December 1993 from the Bitlis Security Directorate informing the Chief Public Prosecutor of Elazığ it had been impossible to find those responsible for the killing of Ferhat Tepe.
(i) Letter of 1 February 1994 from the Elazığ Chief Public Prosecutor requesting information from the Public Prosecutor, Mr Tuna Güngör;
(ii) Mr Tuna Güngör’s letter of 3 February 1994 addressed to the Chief Public Prosecutor of Elazığ, informing the latter that no evidence had been obtained in regard to the death of Ferhat Tepe;
(iii) Letter of 16 March 1994 from the Elazığ Chief Public Prosecutor requesting the Public Prosecutor Mr Süleyman Tutal to inform him of developments in the investigation into the death of Ferhat Tepe;
(iv) Letter of 21 March 1994 from Mr Süleyman Tutal informing the Chief Public Prosecutor in Elazığ that no evidence had been obtained about the persons responsible for the killing of Ferhat Tepe;
(v) Letter of 25 October 1994 from the Deputy General Director for the Council of Europe and Human Rights Affairs to the Ministry of the Interior and to the Ministry of Justice;
(vi) Letter dated 7 November 1994 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ;
(vii) Letter of 17 November 1994 from Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ.
(i) Letter dated 12 January 1995 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ;
(ii) Letter of 1 February 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s offices in Bitlis and Elazığ and to the Provincial Central Gendarme Command in Elazığ. Mr Tutal noted that there was a permanent search warrant for the person(s) responsible for the killing of Ferhat Tepe and requested those authorities to submit information every three months about the investigation;
(iii) Letter of 5 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(iv) Letters of 20 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(v) Letter of 20 March 1995 from the Elazığ Chief Public Prosecutor’s to Mr Süleyman Tutal;
(vi) Letter of 21 March 1995 from Mr Süleyman Tutal’s to the Chief Public Prosecutor’s office in Elazığ;
(vii) Letter of 27 March 1995 from the Elazığ Provincial Central Gendarme Commander, informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(viii) Letter of 13 June 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(ix) Letter of 26 June 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(x) Letter of 27 June 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xi) Letter of 11 July 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(xii) Letter of 27 September 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiii) Letter of 23 October 1995 from the Ministry of Foreign Affairs to the Ministry of Justice;
(xiv) Letter of 23 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xv) Letter of 27 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xvi) Letter of 27 October 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal;
(xvii) Letter of 21 November 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xviii) Letter of 22 November 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal;
(xix) Letter of 7 December 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xx) Letter of 7 December 1995 from Mr Süleyman Tutal requesting the Chief Public Prosecutor at the Diyarbakır State Security Court to submit information as to whether Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and Mr Ömer Aceban had been kept in detention on remand in July and August 1993 and whether these persons had seen Ferhat Tepe in detention. He further requested information regarding the current addresses of these persons;
(xxi) Report of 29 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department.
(xxii) Letter dated 31 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department.
(i) Letter dated 5 January 1996, from the Presidency of the State Security Court to the Chief Public Prosecutor’s office at the same court, indicating the addresses of Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and providing information about them;
(ii) Letter of 2 February 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Hazro
(iii) Letter dated 12 February 1996 from the Chief Public Prosecutor’s office in Hazro to the Bitlis Security Directorate;
(iv) Letter of 26 February 1996 from the Hazro Security Director to the Chief Public Prosecutor’s office in Hazro;
(v) Letter of 8 March 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(vi) Letter of 27 March 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(vii) Letters of 30 March 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(viii) Report of 30 March 1996 drafted by police officers, who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified;
(ix) Report of 31 March 1996 drafted by police officers who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified;
(x) Letter of 3 April 1996 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(xi) Letter of 3 June 1996 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ;
(xii) Letter of 23 June 1996 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(xiii) Letter of 3 July 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xiv) Letters of 30 September 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xv) Letter of 24 December 1996 from the Ministry of Foreign Affairs to the Ministry of Justice;
(xvi) Report of 25 December 1996, drafted by police officers, informing the Bitlis Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Letter of 27 December 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xviii) Letter of 30 December 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xix) Report of 31 December 1996, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified.
(i) Report dated 19 February 1997 drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ii) Letter of 5 March 1997 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(iii) Report dated 14 March 1997, drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iv) Letter of 17 March 1997 afrom Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ;
(v) Letter of 27 March 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(vi) Report of 28 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Report of 30 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(viii) Report of 31 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Letter of 1 April 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(x) Report dated 3 June 1997, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xi) Report of 30 June 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xii) Letter of 30 June 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiii) Letter of 2 July 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xiv) Report dated 13 September 1997, drafted by gendarmes; noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Report of 28 September 1997, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvi) Report of 30 September 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Letter of 30 December 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xviii) Report of 31 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xix) Letter of 2 October 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xx) Report of 12 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xxi) Letter of 31 December 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis.
(i) Follow-up report of 21 January 1998 about the suspects in respect of whom a search warrant had been issued;
(ii) Report of 31 March 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iii) Letter of 1 April 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(iv) Report dated 15 June 1998 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Follow-up report of 15 June 1998 about the suspects in respect of whom a search warrant had been issued;
(vi) Report of 25 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Letter of 25 June 1998 from the Mollakendi Gendarmes Station Commander to the Elazığ Provincial Central Gendarme Headquarters;
(viii) Report of 29 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Report of 30 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(x) Letter of 1 July 1998 from the Bitlis Şehit Fuat Bal Police Station Director to the Law and Order Department;
xi) Letter of 1 July 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xii) Letter of 6 July 1998 fro the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xiii) Letter of 15 July 1998 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiv) Report dated 11 August 1998, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Letter of 1 October 1998 from the chief of Bitlis Şehit Fuat Bal Police Station to the Law and Order Department;
(xvi) Letter of 2 October 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xvii) Follow-up report of 14 December 1998 about the suspects in respect of whom a search warrant had been issued.
(i) Letter of 1 January 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ii) Report dated 21 January 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iii) Report dated 1 February 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iv) Report dated 19 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Reports of 24 March 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vi) Report dated 24 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Letter of 7 April 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(viii) Report dated 14 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Report dated 21 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(x) Report of 30 June 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xi) Letter of 1 July 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xii) Report dated 22 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xiii) Follow-up report of 22 September 1999 about the suspects in respect of whom a search warrant had been issued;
(xiv) Report dated 29 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Report of 30 September 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvi) Letter of 4 October 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Follow-up report of 12 December 1999 about the suspects in respect of whom a search warrant had been issued.;
(xviii) Report dated 13 December 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xix) Letters of 31 December 1999 from the chief of the Bitlis Şehit Mustafa Yeter Police Station to the Law and Order Department;
(xx) Export of 31 December 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified.
(i) Letter of 5 January 2000 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the person(s) responsible for the killing of Ferhat Tepe could not be identified and that the investigation into the incident was still pending;
(ii) Letter dated 18 February 2000 from Public Prosecutor no. 24705 to the Chief Public Prosecutor’s office in Bitlis;
(iii) Follow-up report of 25 February 2000 about the suspects in respect of whom a search warrant had been issued.;
(iv) Report dated 25 February 2000 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Letter of 6 March 2000 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(vi) Letter of 13 March 2000 from the Elazığ Provincial Central Gendarme Commander;
(vii) Report dated 1 May 2000 drafted by Public Prosecutor no. 24705, noting that the negatives of the films taken of the body of Ferhat Tepe had been given to an officer from the Provincial Central Gendarmes Command;
(viii) Letter dated 26 June 2000 drafted by Public Prosecutor no. 24705, informing the Elazığ Chief Public Prosecutor that every three months reports on developments in the investigation were received from the Bitlis and Elazığ Security Directorates and the Provincial Central Gendarme Headquarters and that a permanent search warrant had been issued in respect of the person(s) responsible for the killing of Ferhat Tepe.
76. The applicant produced press releases concerning the alleged abduction and killing of Ferhat Tepe as well as the general situation in south-east Turkey at the relevant time. It was reported that Ferhat Tepe was the sixth correspondent of Özgür Gündem to be killed since the paper had gone into publication in May 1992. It was also stated that a previously unknown underground organisation calling itself the “Turkish-Ottoman Revenge Brigade” had claimed responsibility for the abduction of Ferhat in a telephone call to his family.
77. In a press release issued by Amnesty International on 6 March 1996, calling for urgent action, it was reported that the applicant, Ishak Tepe, had been taken into custody on charges of aiding the PKK. It was claimed that İshak Tepe had met the police officers against whom he had filed an official complaint after the murder of his son and his nephew and that he had been released after being brought before a court in Bitlis on 4 March 1996. Mr Tepe had not been subjected to any form of ill-treatment and had been able to see his wife and his lawyer while in police custody.
78. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this respect, three delegates of the Court took oral evidence between 9 and 14 October 2000 from twenty-four witnesses. A further nine witnesses had been summoned but did not appear for various reasons. The evidence given by the witnesses may be summarised as follows.
79. The applicant; who is currently living in İstanbul, was the provincial chairman of the DEP in Bitlis in 1993. He was at the same time a building contractor. During the taking of evidence in Ankara, in addition to his submission of the facts, the applicant stated the following.
80. At the relevant time, the applicant’s son Ferhat lived with him and helped him at his building site. Ferhat also worked for Özgür Gündem as a provincial reporter. He was not politically active. However, he had been taken into custody on two occasions before his disappearance. His first detention, on charges of aiding and abetting the PKK, took place three or four months before his release on 2 February 1992. The second arrest was probably on 12 July 1993, when he had not been taken into police custody. Ferhat was taken to the police station, where he met a police officer from the anti-terrorist department called Nurhan Şentürk, known as “sakallı” (the bearded one) in Bitlis and bearing the nickname “Hacı”. There were also two other men in the room whom Ferhat had never seen before. Ferhat felt that Hacı had taken him there to show him to these two newcomers. 17 or 18 days later Ferhat was abducted.
81. In the morning of 29 July 1993, at 6 a.m., the applicant received an anonymous phone call from a person claiming to belong to an organisation called the “Turkish-Ottoman Revenge Brigade” who declared that they were keeping his son as a hostage. In the applicant’s opinion, the anonymous person on the phone was General Korkmaz Tağma. He recognised the general’s voice from their meeting some 15 to 20 days earlier, when General Tağma had held a meeting with the provincial chairmen of all the political parties.
82. Immediately after this call, the applicant and his wife went to the Bitlis Security Directorate where they met the security director, Mr Orhan Ekinci, and the provincial governor of Bitlis, Mr Fethi Tunç. At the latter’s request, the applicant wrote a petition to the administrative authorities and to the public prosecutor complaining that his son had been abducted by contra-guerrillas operating within the State. He asked the authorities to take immediate action to find him. He refrained from naming any suspects at the time, in particular General Korkmaz Tağma, as he hoped to get his son back alive. The chief of police told the applicant that his son had not been taken into custody.
83. Later that day the applicant contacted Fatih Olcay, who had witnessed Ferhat’s abduction. Fatih told him that a tall person with a slight beard had held Ferhat by the arm and had taken him away. From his manner and the fact that he was holding a walkie-talkie in his hand, Fatih had deduced that he was a policeman. However, Fatih was unable to repeat these allegations at the police station since he was under pressure.
84. A construction worker called Suat also told the applicant that he had seen Ferhat being taken away in a car with the registration number 65 AD 095. The applicant did not see Suat again and later learned that Suat had gone to İstanbul.
85. The applicant’s nephew, Safiye Tepe, contacted former PKK members who had later become “confessors” (i.e. persons who cooperate with the authorities after confessing to having been involved with the PKK) for information about this case. One of them, A.İ., stated that General Korkmaz Tağma had ordered the killing of Ferhat. Some police officers and the JITEM (the gendarmes’ intelligence agency), led by Major Cem Ersever and the Turkish-Ottoman Revenge Brigade, were involved in this plot. A warfare specialist, Ahmet Demir, code name “Yeşil” (“the Green”) was at the head of this plot. Another “confessor “called Kenan – code name Cihan – confirmed that General Tağma had been involved in the killing of Ferhat.
86. A journalist, Soner Yalçın, published his interviews with Major Cem Ersever, the head of JITEM, who said that Ferhat Tepe and another person had been abducted by Ahmet Demir’s team, who had been assigned to the Diyarbakır-Bitlis-Muş-Bingöl zone. The JITEM headquarters were at the gendarmes’ interrogation centre in Diyarbakır, where Ferhat had been taken and murdered.
87. The witness is currently living in Manisa. He was on a visit to Bitlis at the end of July 1993. He stated that in the evening of 28 July 1993, around 5.30 or 6 a.m., he had been playing football in the yard of the Şemsi Bitlis primary school when he had seen Ferhat walk over. He noticed that a young man around the age of 2025, who was slightly bearded and dressed in civilian clothes was following Ferhat. They shook hands and walked away arm in arm, like ordinary friends. The witness did not see any cars around. The next day he heard that Ferhat was missing.
88. The witness denied the allegation that he had told the applicant about a tall bearded man, known in the area to be a policeman, or that this man had approached Ferhat, taken him by the arm and put him in a car.

89. The witness is a practising lawyer in İstanbul. He was the lawyer of Özgür Gündem at the relevant time and became the applicant’s counsel following the killing of his son.
90. The witness interviewed Mümtaz Çerçel in the Diyarbakır prison. The latter told him that he had seen Ferhat Tepe (“the journalist”) while being held in custody by the gendarmes. However, Mr Çerçel did not maintain his statement for fear of persecution. He also met Urfi Pasin and Rıza Demirtaş, who mentioned having seen Ferhat Tepe in custody. They were also afraid to testify before the authorities. They told the witness that a person by the name of Çetin Demirhan had also seen Ferhat and had even talked to him. The witness’s attempts to reach Mr Demirhan also failed as the latter was under threat of death because of this incident. The witness has never spoken to Murat Koparan, Taner Şarlak and Erkan Dağdelen. He did not take statements from Bahri Elçi and Migdat Yaşar.
91. The witness was the applicant’s business partner at the time. On 28 July 1993 he was told by Adnan Karslıoğlu that two police officers had made enquiries about Ferhat and the applicant. He reported this to Ferhat and asked him not to go anywhere. Ferhat was very calm about it and told him that he would be at home. That was the last time he had seen Ferhat.
92. The witness was the provincial commander of the Bitlis Gendarmes Headquarters at the relevant time. He was in charge of security and law-and-order services outside the borders of the municipality. He had no judicial authority. He was not involved in the investigation into the disappearance and murder of Ferhat, as the incident had taken place within the police authority zone. He heard from the intelligence services in the area that Ferhat was suspected at the time of being involved in money laundering business and that he might have been killed by the PKK.
93. The above witnesses were all police officers at the time in Bitlis occupying different functions in different departments, namely anti-terrorism, contraband and traffic. None of the witnesses were involved in the investigation into the disappearance and subsequent killing of Ferhat Tepe. Nor did they know of Ferhat, with the exception of Nurhan Şentürk, who said that Bitlis was a small town with a population of 28,000 where everyone knew each other. He had seen Ferhat before 28 July 1993, when the latter had made a statement at the police headquarters. Mr Şentürk did not remember when this statement had been made and what it had been about. However, the statement was sent to the Public Prosecutor, with a note that Ferhat was a PKK sympathiser. Mr Şentürk further stated that he had grown a beard at the time. He also stressed that Ferhat had never been taken into custody.
94. Mr Çavdar confirmed that Mr Şentürk’s nickname was “the bearded one”. Mr Pekdaşoğlu was first asked to give an account of what he had been doing on 28 July 1993 three days after the incident. He explained that he used to have a beige car at the time, with the licence plate number 65 DA 092, and that on 28 July 1993 this car had been parked in front of his house. He had not lent it to anyone. Eye-witnesses identified it as not being the vehicle involved in the incident. The car involved in the abduction had been a white Renault Toros.
95. The witness was a former member of the PKK, holding a leadership position in the organisation until he was caught on 28 December 1992. Benefiting from the confession law, he became a “confessor” in return for information he gave to the authorities. He was released in mid-1994.
96. In or around March 1992 the witness and two other local leaders of the PKK summoned Ferhat Tepe to Germak village in the Bitlis area and questioned him in relation to his activities. Subsequent to a second meeting held on 14 August 1992 in the mountains, in September 1992 Ferhat was sentenced to death on the grounds that he had been the cause of the killing of a female member of the PKK as a result of having had sexual intercourse with her and that he had used money collected for the PKK for his own purposes, i.e. to build a house and to buy a car.
97. The witness explained that the PKK carried out death sentences by shooting where security did not pose a problem. Alternatively, other methods were used, such as throwing people down from rocks and strangling or drowning. Subsequent to his arrest, the witness reported to the police that Ferhat was on the list of persons sentenced to death by the PKK. However, he did not know whether Ferhat had been killed by the PKK.
98. The witness was the commander of the Diyarbakır provincial gendarmes headquarters from 1992 to 1995. He was in charge of law and order and security in the rural areas within the boundaries of the province of Diyarbakır, which did not include the area around Bitlis. His organisation did not carry out any investigation into Ferhat Tepe’s death. He was asked by the Chief Public Prosecutor at the Diyarbakır State Security Court whether Ferhat Tepe had been taken into their custody. After examining the custody records and consulting his colleagues in all the gendarmes stations under his command, the witness reported back that no one of that description had been brought to their premises or taken into custody or involved in any incident in their region.
99. The witness admitted to mistakes or negligence in the keeping of the custody records at headquarters. He stated that, for security reasons, it was routine practice to blindfold people taken into custody when they arrived at headquarters. The blindfold was taken off once they were inside and, after that, they were never blindfolded. While he was serving in Diyarbakır, the witness heard some rumours about a Turkish-Ottoman Revenge Brigade, but there was never any concrete evidence of the existence of such an organisation.
100. The witness had been the head of the interrogation unit composed of ten officers at the Diyarbakır provincial gendarmes headquarters. His recollection of Ferhat Tepe’s death was limited to the question asked by his commander, Mr Eşref Hatipoğlu, namely whether Ferhat had been taken into custody. He consulted the records and told his commander that Ferhat had not been detained.
101. The witness was not in charge of keeping the custody records and there was an officer specifically responsible for that duty at the headquarters. He asserted that detainees were never blindfolded during interrogation and that there was never any physical contact between the interrogators and those detained. He denied the suggestion that anybody had been tortured in the interrogation unit, since medical certificates were issued at the end of the custody period. He further stated that, at the relevant time, there had been twenty detention cells. If more than twenty detainees were brought in, they were transferred to other districts and held there until a cell became vacant in Diyarbakır.
102. The witness was the Bitlis Security Director in command of a staff of eight hundred people at the relevant time. On 29 July 1993 he was on duty when the applicant, along with his wife and daughter, came to the Bitlis police headquarters to tell him that he feared for the life of his son who had disappeared. The witness reassured the applicant, saying that he had checked with his colleagues that Ferhat had not been taken into their custody. He explained that every morning he received a list of the persons taken into custody by any of the security forces in his zone. This list was drawn up by the provincial police headquarters in the form of a report, listing the incidents of the day in the municipal area. It was then sent to the governor’s office. A similar report was submitted to the governor by the gendarmes responsible for rural areas. There were also daily security meetings held in the province with the Governor, which the witness and Yüksel Özçelik attended.
103. The witness assigned a police superintendent to the task of keeping in touch with the Tepe family. Statements were taken from all the persons named by the family. The information regarding the disappearance of Ferhat was communicated by radio and telex to all provinces in Turkey. The witness confirmed that he had been asked by the applicant to trace phone calls, but this procedure had not led anywhere, as in 1993, it was not possible to trace calls made from public telephone booths. Unable to obtain traceable bank notes from the National Police Headquarters owing to bureaucratic obstacles, he could not give cash to the applicant to pay the ransom.
104. The witness was the doctor who signed the autopsy report. At the relevant time, he was a general practitioner working at the district health centre in the Sivrice district of Elazığ. He was not a pathologist qualified to conduct autopsies. He had, however, witnessed many autopsies carried out on persons drowned in Lake Hazar. He claimed that there were ten to fifteen drowning incidents per day at the relevant time.
105. The witness said he remembered the incident very well. He arrived at the scene of the incident at about 8 a.m. on 4 August 1993. After examining the body, he concluded that it was definitively a case of death by drowning which had occurred within a maximum of four hours. The deceased’s lips were discoloured as though he had been deprived of oxygen and cyanosis had occurred. Rigor mortis had not set in. He could not see any scratches on the body. Nor did he find any fracture or bruising thereon. There was no sign that the deceased had been either in a fight or hit, beaten, pushed, thrown or killed, or that the body had been brought and thrown into the water. However, the witness saw some marks on the neck and diagnosed them as being erythema, an allergic reaction. He did not think it was necessary to note this in the autopsy report. The witness considered it unnecessary to call in a pathologist or to apply to superior authorities for an autopsy, since he had no doubt that it was a case of ordinary drowning.
106. The witness found the body on 4 August 1993, at 7.30 a.m. He had gone to the lake early in the morning for fishing. He saw the body half submerged in the water. The body had underpants on. He pulled the body onto the shore and left it right by the edge of the water. He did not notice any particular features on the body, such as bloodstains or marks of any kind. He saw that there were some clothes – trousers and a shirt which had been placed on the shoes – about half a metre from the shore. He then went to a petrol station and called the Sivrice gendarmes station. He stayed on the spot for about an hour and a half and statements were taken from him by the public prosecutor.
107. The witness, who signed the autopsy report, was at the time the Sivrice Public Prosecutor in Elazığ. Although it was not the usual practice, he had photographs taken of the body for identification purposes following the post-mortem examination. At the beginning of his testimony, the witness stated that he had not taken any steps to see whether the body he had found matched any person reported as missing. After consulting the doctor and having heard the witnesses, he decided that a systematic autopsy was unnecessary as there was nothing suspicious about the incident and that he had come across similar drowning incidents in the past. However, he had not encountered a case where the identity of the victim was unknown and the identity card missing. Later he said that he had instructed both the gendarmes and the police to investigate whether anyone had reported a relative missing. He had the body sent to the morgue of the Elazığ State Hospital as there was no suitable morgue in Sivrice. He was informed later that the body had been buried because of a technical problem in the morgue. However, he did not know when the body had been buried and who had ordered the burial. He did not know anything about Ferhat Tepe until Ferhat’s cousin, a lawyer, had applied to their office five days after the incident. When the witness learned that the scene of the incident fell within the territorial jurisdiction of Elazığ, he issued a decision of non-jurisdiction on 9 August 1993.
108. The witness was the public prosecutor in Elazığ, in charge of the investigation into the death of Ferhat Tepe. In the investigation file and the autopsy report he received, there were no findings indicating that the deceased had been tortured. There was no sign of any ill-treatment on the photographs. In their statements made at the Hozat Public Prosecutor’s office, Mr Murat Koparan, Mr Taner Şarlak and Mr Erkan Dağdelen had denied the allegations contained in the declarations addressed “To the Public”. There was therefore no evidence that Ferhat had been abducted or killed under torture. The witness considered the incident to be a case of ordinary death by drowning and, accordingly, did not deem it necessary to conduct any further investigation.
109. The witness was the Chief Public Prosecutor in Bitlis at the time of the events. He was on judicial leave from 20 July to 6 September 1993. On 28 September 1993 he was appointed as a judge to a court in İstanbul. He could not contribute to the elucidation of the facts.
110. The witness was one of the two Public Prosecutors who were deputies to the Chief Public Prosecutor in Bitlis. He was on duty when the Chief Public Prosecutor was on leave. He issued a decision of non-jurisdiction on 12 August 1993 after the body had been found and sent the preliminary investigation file he had prepared to the Sivrice Chief Public Prosecutor’s office. He said the case had struck him as a unique and unusual one at the time. However, he could not remember whether he had done anything about the case, but said: “I must have started the investigation”.
111. The witness was a trainee public prosecutor in Ankara in July and August 1993. He did not take part in any investigation concerning Ferhat Tepe.
112. The witness was assigned to the Bitlis office as a public prosecutor on 24 February 1993. He was on duty in July and August 1993 along with his colleague, Mr Erdal Poyraz. He confirmed that Mr Poyraz had been in charge of the investigation while he personally had not been involved in it. He did remember, however, that there had been some incidents during the funeral.
113. On 20 July 1993 all three witnesses were arrested on suspicion of aiding and abetting members of the PKK and taken into custody at the Hazro gendarmes headquarters, where they stayed for two days. The witnesses were then taken to Diyarbakır and kept at the gendarmes headquarters between 22 July and 13 August 1993. On the latter date, the Diyarbakır State Security Court ordered the witnesses’ detention on remand and they were transferred to Diyarbakır E-type Prison. They stayed in the same cell for two months until the State Security Court ordered their release following acquittal.
114. The witnesses denied the suggestion that, during their detention, they had seen Ferhat Tepe being tortured or killed. Nor had they known of him or heard of a journalist being detained in the same place with them. As regards the document addressed to the public which they had signed in prison, the witnesses alleged that the persons in the ward who had told them to sign this document had tricked them into it, as it contained statements which they had never uttered. They thought that it was a document prepared for the purposes of their defence in court; they had not read the document before signing it. The witnesses further stressed that they had been very young at the relevant time (16, 20, and 14 years old respectively) and that the persons who had made them sign the document had taken advantage of their youth and inexperience. The witnesses finally claimed that they had learned of the content of the impugned document when the Hazro Public Prosecutor had taken their statements about it on 26 February 1996.
115. The Turkish Criminal Code (Türk Ceza Kanunu), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450).
116. Under Articles 151 and 153 of the Turkish Code of Criminal Procedure (Türk Ceza Muhakemeleri Usulü Kanunu; hereinafter “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP).
117. If there is evidence to suggest that death is not due to natural causes, police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duties is liable to imprisonment.
118. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.
119. In so far as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).
120. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“All acts of decisions of the administration are subject to judicial review ...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
121. This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus, the administration may indemnify individuals who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
122. Under Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court as to the issue of the defendant’s guilt (Article 53).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
18
2
3


ITEMID: 001-98506
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BÍRO v. SLOVAKIA (No. 5)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1951 and lives in Bratislava.
5. On 3 December 2001 the applicant lodged an action for damages against two individuals. The Trnava District Court's decisions concerning the applicant's obligation to pay court fees and the appointment of a legalaid lawyer to the applicant were examined by the Trnava Regional Court for approximately half a year.
6. On 11 October 2006 the Trnava District Court discontinued the proceedings as the applicant had not paid the court fees. On 28 September 2007 the Regional Court upheld that decision. The latter was served on the applicant on 14 January 2008 and thus became final.
7. On 23 August 2006 the Constitutional Court found that the District Court had violated the applicant's right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. It held that the case was not complex and that the applicant's conduct had not contributed to the length of the proceedings. It awarded the applicant 20,000 Slovakian korunas (SKK), which was the equivalent of 531 euros (EUR) at that time in respect of non-pecuniary damage and ordered the District Court to proceed without further delay. It also ordered the District Court to reimburse the applicant's legal costs by paying SKK 5,788 to the lawyer. The amount corresponded to approximately half of the sum claimed by the applicant.
8. On 23 April 2008 the Constitutional Court declared another complaint inadmissible. The complaint was lodged on 19 January 2008 and delivered to the Constitutional Court on 23 January 2008. To the extent the applicant alleged that his right of access to a court had been violated, the view was expressed that the applicant had not exhausted the available remedies as he had not lodged an appeal on points of law. The Constitutional Court further rejected the applicant's length of proceedings complaint. That finding was based on the Constitutional Court's long established practice to examine length of proceedings complaints only when proceedings were still pending at the moment when a constitutional complaint was lodged.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1