ITEMID: 001-57486
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF FELDBRUGGE v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 11. Mrs. Geziena Hendrika Maria Feldbrugge was born in 1945 and is resident at Anna Paulowna. She is of Netherlands nationality.
In or about 1978, although she had been unemployed for some time, Mrs. Feldbrugge ceased to register at the Regional Employment Exchange (Gewestelijk Arbeidsbureau). This was because she had fallen ill and did not consider herself sufficiently recovered to be fit to work. On 11 April 1978, the Governing Board of the Occupational Association of the Banking and Insurance, Wholesale Trade and Self-Employment Sector (Bedrijfsvereniging voor Bank-en Verzekeringswezen, Groothandel en Vrije Beroepen) in Amsterdam decided that as from 24 March 1978 she was no longer entitled to the sickness allowances she had been receiving until then, as the Association’s consulting doctor had judged her fit to resume work on that date.
12. She appealed to the Appeals Board (Raad van Beroep) in Haarlem.
The President of the Appeals Board sought the opinion of one of the permanent medical experts attached to the Board, a gynaecologist practising at Alkmaar, who examined the patient and gave her the opportunity to comment. After consulting three other doctors (a gynaecologist and two general practitioners, including Mrs. Feldbrugge’s), the expert concluded on 1 June 1978 that, gynaecologically speaking, she had been fit for work since 24 March; however, he felt it necessary also to consult an orthopaedic specialist.
On 18 August 1978, another permanent medical expert, an orthopaedic surgeon, examined the applicant and offered her the opportunity to comment. He also sought the views of the three practitioners mentioned above. In his report of 22 August 1978, he too found that Mrs. Feldbrugge had been fit to resume employment as from 24 March of that year.
On the basis of these two reports, the President of the Appeals Board ruled against the applicant.
13. The applicant filed an objection (verzet), alleging that she had not been given a fair hearing.
On 17 November 1978, the Appeals Board declared the objection inadmissible as it fulfilled none of the grounds laid down in section 142 (1) of the Appeals Act (Beroepswet - see paragraph 19 below). In an obiter dictum, it stated that the case had been given a fair hearing, in that two permanent medical experts had examined the applicant and allowed her to state her objections orally.
14. Mrs. Feldbrugge challenged this decision before the Central Appeals Board (Centrale Raad van Beroep) at Utrecht. In particular, she maintained that the limitations imposed by sections 141 and 142 of the above-mentioned Act infringed the principle of a fair trial enunciated in Article 6 (art. 6) of the Convention.
On 13 February 1980, the Central Appeals Board declared the appeal inadmissible by virtue of section 75 (2) of the Health Insurance Act (see paragraph 20 below).
15. As far as health insurance is concerned, social security in the Netherlands is managed jointly by the State - which in general confines itself to establishing the legal framework of the scheme and to seeing to co-ordination -, by employers and by employees.
The branches of the economy, including the liberal professions, are divided into sectors, each with an occupational association (bedrijfsvereniging) responsible for implementation of the social security legislation.
These associations are legal persons within the meaning of Article I of Book II of the Civil Code; the method of their establishment, their structures and their powers are laid down in the Social Security Organisation Act 1952 (Organisatiewet Sociale Verzekeringen). They are subject to approval by the Minister for Social Affairs and Employment on the basis of their representative character. The Minister may also decide of his own motion to set up such an association; in that event, he determines and amends their articles of association as needed and he appoints, suspends and dismisses the members of their governing boards. In addition, he stipulates the assurances to be given for the discharge of the duties of the occupational associations and he receives from each of them an annual report and an annual statement of their accounts.
The occupational associations are semi-public institutions and operate like private insurance companies.
They may entrust to a common administrative office (Gemeenschappelijk Administratiekantoor), recognised by the Minister, the administrative work resulting from the application of social security law.
A Social Insurance Council (Sociale Verzekeringsraad), set up by the Government and comprising representatives of the State, employers and employees, supervises the proper implementation of the legislation in question.
16. Under the Health Insurance Act 1913 (Ziektewet), as amended in 1967, insurance against sickness is compulsory for persons under 65 who are bound by a contract of employment with a public or private employer, or who can be assimilated to this category (sections 3 and 20). Persons formerly bound by a contract of employment who are unemployed and in receipt of unemployment benefits are also treated as salaried employees for this purpose. Self-employed workers may take out policies with private companies.
Sickness includes accidents, whether related to the employment or not. In case of unfitness for work through sickness, an employed person receives an allowance of 80 per cent of his daily pay. He or she applies directly to the occupational association to which his or her employer belongs.
The entitlement to an allowance flows directly from the Act (section 19).
17. The scheme is administered by the occupational associations (see paragraph 15 above), and the funding is provided entirely by employers and employees. The Act specifies the rates of contributions, which are at present 1 per cent for the employee and 5.05 per cent for the employer, calculated on a maximum daily wage of 262 guilders.
18. Disputes arising out of the application of the Health Insurance Act 1913 are governed by the Appeals Act 1955 (as last amended on 17 October 1978). For disputes concerning fitness or unfitness for work, there exists a simplified procedure known as the permanent-medical-expert procedure (vaste deskundige procedure) (sections 131 to 144). The expert - a doctor who is a specialist or a general practitioner - is appointed for a year by the Minister of Justice and he is placed under oath.
On the lodging of an appeal of this kind, the President of the Appeals Board (there are twelve in the Netherlands) may immediately instruct its permanent medical expert to carry out an enquiry (onderzoek) into the matter (section 135).
Within three days of notification of the appeal, the authority that delivered the decision which is challenged must submit all relevant files on the case (section 136).
The permanent medical expert consults the private practitioner of the person concerned and the relevant occupational association doctor, except where the file shows that they share his opinion (section 137 (2)). He summons and examines the appellant (section 137 (3)); he may consult another practitioner (section 138). Finally, he makes a written report to the President of the Appeals Board (section 140).
The President - who is a judge appointed for life - gives a reasoned decision (beschikking) which refers to the conclusions of the medical expert.
19. An appeal against the President’s decision lies to the full Appeals Board, but solely on one or more of the following four grounds (section 142(1): that the expert knew the patient in another capacity or failed to comply with the requirements of section 137 (see paragraph 18 above); that the President’s decision does not bear upon the dispute or has not followed the expert’s advice. Unless the Appeals Board declares the appeal inadmissible or unfounded, the normal procedure applies. The parties then have the opportunity of studying the case-file on the premises of the Appeals Board at a time determined by the clerk or of receiving copies. The President may however decide, in the mental or physical interest of the appellant, that he or she shall not have access to the medical reports but shall be informed of their contents and may designate a competent person, such as his or her private practitioner or lawyer, to inspect them on the premises (section 142 (2) in conjunction with section 114 (4) and (5)).
The Appeals Board gives its ruling after written pleadings have been filed and oral submissions heard.
20. Its decision is not subject to appeal before the Central Appeals Board (section 75 (2) of the Health Insurance Act). However, according to that Board’s established case-law, an exception is made where rules of a formal nature have not been observed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67030
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KJARTAN ÁSMUNDSSON v. ICELAND
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;Gaukur Jörundsson
TEXT: 8. The applicant was born in 1949 and lives in Reykjavik.
In 1969, at the age of 20, the applicant completed his training as a navigation officer at the Icelandic College of Navigation and started work as a seaman. This he continued to do until 1978, when he sustained a serious work accident on board a trawler. His right leg was struck by a 200 kg stone object, causing a compound fracture of his ankle. As a result, he had to give up work as a seaman. His disability was assessed at 100%, which made him eligible for a disability pension from the Seamen’s Pension Fund (“the Pension Fund”), to which he paid premiums intermittently from 1969 until 1981. The assessment was made on the basis of the criteria that applied under section 13(1) and (4) of the Seamen’s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”), notably that the claimant was unable to carry out the work he had performed before his disability, that his participation in the Fund had been intended to insure against this contingency, and that he had a sustained loss of fitness for work (of 35% or more).
The applicant underwent regular disability assessments by a physician accredited by the Pension Fund and was each time assessed as 100% disabled in relation to his previous job.
9. After his accident the applicant joined a transport company, Samskip Ltd, as an office assistant, and is still employed there as head of the claims department.
10. In 1992 the 1974 Act was amended by sections 5 and 8 of Law no. 44/1992 (“the 1992 Act”), which considerably altered the basis for the assessment of disability in that the assessment was to be based not on the Pension Fund beneficiaries’ inability to perform the same work but work in general. The new provisions had been enacted on the initiative of the Pension Fund and in view of the Fund’s financial difficulties (according to an audit, at the beginning of 1990 the Pension Fund had a deficit of at least 20,000,000,000 Icelandic krónur (ISK)). The Pension Fund applied the new provisions not only to persons who had claimed a disability pension after the date of their entry into force but also to persons who were already in receipt of a disability pension before that date.
11. Under an interim provision in section 5, the above change to the reference criteria was not to apply for the first five years after the commencement of the 1992 Act to a person who, before its entry into force, was already receiving a disability pension.
12. Under the new rules, a fresh assessment of the applicant’s disability was carried out by an officially accredited Pension Fund physician, who concluded that the applicant’s loss of capacity for work in general was 25%, and thus did not reach the minimum level of 35%. As a result, from 1 July 1997 onwards the Pension Fund stopped paying the applicant the disability pension and related child benefits he had been receiving for nearly twenty years since the accident in 1978.
13. According to information obtained by the Government from the Pension Fund and submitted to the Court, the applicant had been one of 336 Fund members who were receiving disability pensions in June 1992 under the interim provision in section 5 of the 1992 Act (see paragraph 21 below). On 1 July 1997 the total number of disability pension recipients was 689. This included Fund members who had not become entitled to a disability pension until after the commencement of the 1992 Act in June 1992. The cases of the aforementioned 336 persons receiving disability pensions from the Fund, who had acquired their entitlement before that time and were still drawing disability pensions in 1996, were reviewed in late 1996 and early 1997 in the light of their capacity for work in general. Altogether, 104 members of this group of disability pensioners had their benefits reduced in July 1997 as a result of the new rules on disability assessment under the 1992 Act. In the case of 54 Fund members, including the applicant, the disability rating for work in general did not reach the level of 35% required under the Act to retain entitlement to disability benefit, and so benefit payments were discontinued. The disability ratings of 29 members were reduced from 100% to 50% and those of 21 members from 100% to 65%.
14. The applicant instituted proceedings against the Pension Fund and, in the alternative, against both the Fund and the Icelandic State, challenging the Fund’s decision to discontinue the payments to him. In a judgment of 12 May 1999, the Reykjavik District Court found for the defendants.
15. The applicant appealed to the Supreme Court, which by a judgment of 9 December 1999 upheld the judgment of the District Court.
16. The Supreme Court accepted that the applicant’s pension rights under the 1974 Act were protected by the relevant provisions of the Icelandic Constitution as property rights. However, it considered that the measures taken by virtue of the 1992 Act had been justified by the Pension Fund’s financial difficulties. The Supreme Court stated:
“The pension rights that the appellant had earned under Law no. 49/1974 were protected under what was then Article 67 of the Constitution (currently Article 72 of the Constitution – see section 10 of the Constitutional Law Act, Law no. 87/1995). Under the constitutional provision referred to above, he could not be deprived of those rights except under an unequivocal provision of law. The Court does not consider that section 8 of Law no. 49/1974 provided authorisation for the [Pension Fund] Board to curtail the benefit provisions; this could only be done under an unequivocal provision of law. Nor can the Court accept that the wording of subsection (1) of section 13 of Law no. 49/1974 meant that the Fund member did not have an unequivocal right to have his disability assessed in terms of his capacity to do his previous job.
The evidence in the case shows that the Pension Fund was operated at a considerable deficit, and that at the end of 1989 more than ISK 20,000,000,000 would have been needed for the principal of the Fund, together with the premiums that it could expect, to cover its commitments, this estimate being based on an annual interest rate of 3%. In order to tackle this large deficit, the Fund’s Board asked for amendments to be made to the Act under which the Fund operated. It is clear that the reduction of the pension rights that resulted from Law no. 44/1992 was based on relevant considerations. Even though that Act was repealed by Law no. 94/1994, this does not change the fact that the appellant’s legal position had already been determined by Law no. 44/1992. The Court concurs with the District Court’s view that Law no. 94/1994 did not constitute a valid legal authorisation for making amendments to the rights that the Fund member had earned during the period of validity of the former legislation.
The reduction according to Act no. 44/1992 was of a general nature as it treated in a comparable manner all those who enjoyed or could enjoy pension rights. An adaptation period of five years applied to all pensioners, as stated above. All those who can be considered to be in a comparable situation have been treated equally ...”
17. On 1 July 1997 the applicant lost pension rights (disability and children’s annuity benefits) amounting to ISK 12,637,600. He presented the following breakdown of this figure:
Value of the principal, based on disability pension payment of ISK 61,356 per month until he reached the age of 65: ISK 9,373,300
Value of the principal of child benefit based on the same premises, until the children reached the age of 18:
Kristinn July 1997-March 1998 ISK 136,100
Anna Margrét July 1997-August 2006 ISK 1,469,600
Asmundur July 1997-January 2009 ISK 1,658,600
Total ISK 12,637,600
18. The applicant has supplied the following information about his income from 1997 onwards:
1997 ISK 2,789,995
1998 ISK 3,305,268
1999 ISK 3,454,445
2000 ISK 3,774,248
2001 ISK 4,187,987
2002 ISK 4,558,248
Total ISK 22,050,191
19. The applicant has also submitted certain figures from a survey of seamen’s salaries obtained from the Icelandic Merchant Navy and Fishing Vessels Officers’ Guild:
“Ordinary seaman” Second mate First mate Master
1997 5,153,424 6,441,780 7,730,137 10,306,849
1998 5,580,795 6,975,994 8,371,193 11,161,590
1999 6,166,029 7,707,537 9,249,044 12,332,059
2000 5,949,075 7,436,344 8,923,613 11,898,150
2001 6,415,252 8,019,064 9,622,877 12,830,503
2002 5,654,756 7,068,445 8,482,134 11,309,513
Total 34,919,332 43,649,164 52,378,997 69,838,663
Income derived by the applicant from office work:
22,050,191 22,050,191 22,050,191 22,050,191
Difference 12,869,141 21,598,973 30,328,806 47,788,472
20. Section 13(1) and (4) of the Seamen’s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”) read:
“(1) Each Fund member who has paid premiums to the Fund for the past three calendar years, and for at least six of the past twelve months, shall be entitled to a disability pension if he suffers a loss of fitness for work that the senior consulting physician assesses at 35% or more. This disability assessment shall be based mainly on the Fund member’s incapacity to do the job in which he was engaged and on which his membership of the Fund is based. Despite being disabled, no person shall be entitled to a disability pension while retaining full wages for the job that he used to do, or while receiving equally high wages for another job which grants pension rights, and the pension shall never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability.
...
(4) A disabled person who applies for a disability pension from the Fund or receives such a pension shall be obliged to provide the Board of the Fund with all the information on his health and earned income that is necessary to determine his right to receive the pension.”
Under section 15(3) of the 1974 Act the applicant was eligible to receive child benefits.
21. Section 5 of Law no. 44/1992 (“the 1992 Act”) read:
“For the first five years after the commencement of this Act, the disability assessment of disability pensioners who already receive benefit due to loss of working capacity before the commencement of the Act shall be based on their incapacity for the job in which they were previously engaged and on which their membership of the Fund is based, but after that time it shall be based on their incapacity for work in general. Furthermore, the change in the child benefit entitlement of the recipients of disability pensions resulting from section 8 of this Act shall not take effect until five years after the commencement of the Act.”
22. The 1974 Act, as amended by the 1992 Act, was replaced by Law no. 94/1994 (“the 1994 Act”) when it came into force on 1 September 1994. All the provisions covering the basis of disability pensions and child benefit payments were removed from the Act and included in the Regulations on the Seamen’s Pension Fund, which also came into force on 1 September 1994. According to the Government, this did not affect the applicant specifically, since the interim provision of the 1992 Act still applied to his situation until 1 July 1997. The applicant contended that the interim provision had been repealed on 1 September 1994.


ITEMID: 001-76621
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HAMDI YILDIRIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Hamdi Yıldırım, is a Turkish national who was born in 1942 and lives in the United Kingdom and in Istanbul. He was represented before the Court by Mr İmmihan Yaşar and Mr Selim Okçuoğlu, lawyers practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been living in the United Kingdom since the early 1970’s. He owned a house in the Kalkanlı village of Bingöl. His mother lived in this house until 1984 when she too moved to the United Kingdom. Since that year the house has not been resided in. Nonetheless, the applicant continued to keep it partly furnished and to stay there in his visits from time to time.
According to what the applicant heard from his acquaintances, most villagers left the village in 1994 and 1995 because of the security forces’ pressure. In mid September 1996 the applicant went to see his house. He noticed that the roof had been removed and that some of his belongings inside were stolen. On an unspecified date, he saw some of his stolen belongings in a gendarmerie station.
On 24 and 25 September 1996 the applicant filed a petition with the Governor’s Office, the County Governor’s Office, and Public Prosecutor’s Office in Yayladere. He reported that his house had been damaged by unknown persons and that some of his belongings had been stolen. He requested to be provided with alternative housing or financial aid in order to repair his house.
In his petitions, the applicant stated that he and his family had been compelled to leave their village in 1993 for security concerns and had moved to Istanbul. He has not mentioned that he lived in the United Kingdom since the early 1970s and instead gave an Istanbul address for correspondence.
On 9 January 1997 the State of Emergency bureau of the Yayladere County Governor’s Office informed the applicant with a letter that an official investigation had revealed that he had moved to the United Kingdom many years before and that he had not left any valuables in the house. It explained that the roof had been blown away as a result of severe weather conditions and lack of proper care and maintenance. It also noted that the rest of the building stood intact. In the light of those facts and the applicable law, the County Governor’s Office concluded that the applicant was not entitled to compensation or any form of financial aid.
This decision was served to the applicant’s address in Istanbul – the same address he mentioned on his petition. Since he was allegedly in the United Kingdom at the time, he learned about this decision on 2 October 1997 when he returned to Turkey. The applicant did not challenge the decision before any administrative or judicial authority. By the time he lodged his application with the Commission, his petition to the prosecutor was pending.
The investigations carried out by the authorities indicated that the applicant had left his village of his own will and moved to the United Kingdom by taking all of his valuable property.
The investigations also revealed that the roof of his house was not removed but was blown away because of severe weather conditions throughout the years since he left his house unattended.
A description of the relevant domestic law can be found in the Court’s judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).


ITEMID: 001-58289
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF TANRIKULU v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 (killing of applicant's husband);Violation of Art. 2 (absence of effective investigation);Not necessary to examine Art. 2 (right to life);Violation of Art. 13;No violation of Art. 14+2;Violation of former Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. The applicant, Mrs Selma Tanrıkulu, is a Turkish citizen who was born in 1964 and is at present living in Diyarbakır in south-east Turkey. Her application to the Commission was brought on her own behalf, on behalf of her three minor children and on behalf of her deceased husband Dr Zeki Tanrıkulu who, she alleges, was killed by State security forces or with their connivance.
8. The facts surrounding the killing of the applicant’s husband are disputed.
9. The facts as presented by the applicant are set out in paragraphs 13 to 22 below. The applicant did not reiterate her version of the circumstances surrounding the killing in her memorial to the Court, relying on the facts as established by the Commission in its report of 15 April 1998 and her previous submissions to the Commission.
10. The facts as presented by the Government are set out in paragraphs 23 to 28 below.
11. A description of the material submitted to the Commission will be found in paragraphs 29 to 31 below. A description of the proceedings before the domestic authorities regarding the killing of the applicant’s husband, as established by the Commission is set out in paragraphs 32 to 38 below.
12. The Commission, in order to establish the facts in view of the dispute over the circumstances surrounding the killing of the applicant’s husband, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To that end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their assertions and appointed three delegates to take the evidence of witnesses at a hearing in Ankara on 21 and 22 November 1996. The Commission’s evaluation of the evidence and its findings are summarised in paragraphs 39 to 48 below.
13. At about noon on 2 September 1993 the applicant’s husband, Dr Zeki Tanrıkulu, was shot dead in the town of Silvan on a steep road, known as Kaymakam Hill (Kaymakam Rampası), which runs between the public hospital and the security directorate. The applicant was on the low balcony of her hospital residence, close to the hospital gates, when she heard the sounds of automatic firing. She jumped off the balcony and ran towards Kaymakam Hill. While she was running she heard another type of firing start.
14. The applicant saw her husband lying near the top of the steepest part of the hill, close to the security directorate, the moment she ran out of the hospital gates. She did not see anyone as she ran towards him. However, as she knelt by him, she looked up and saw at least eight members of the security forces standing in a line across the street near the security directorate and brandishing machine-guns, about fifteen to twenty metres away from her. They were dressed in plain clothes but were wearing special jackets that enabled them to carry spare ammunition. Although there were usually at least eight members of the security forces near the security directorate, it was not usual for them to stand together in a line. The applicant appealed to the police present at the scene to do something to catch the perpetrators but they did nothing. She ran back down to the junction with Old Bitlis Road (Eski Bitlis Caddesi), screaming for help. At the junction, she saw two young men running along Old Bitlis Road and she saw them turn up the next street on the left. She warned the security force members that they were allowing the perpetrators to escape. The street on the left of Old Bitlis Road that the men had run into joined Gazi Road (Gazi Caddesi) near the security directorate.
15. The applicant then turned and ran back to her husband, having recalled that there was a gun in his briefcase. At that point, people ran out of the hospital to help. They took Dr Tanrıkulu to the hospital where they tried unsuccessfully to resuscitate him. Meanwhile, three policemen on patrol in a vehicle had been summoned by radio and they arrived within five to ten minutes. Two of the police officers examined the scene and the third, Turan Dağ, went to the hospital, where he obtained from the applicant a description of the two young men and of the direction in which they had fled. He informed his two colleagues, who went in pursuit of the alleged killers but not in the direction which had been indicated by the applicant.
16. The applicant made several efforts to make a statement to the authorities. She contacted the police but they said that the Chief of Security was not there and hung up. She also tried to speak to the Governor but without success.
17. In April 1993 Dr Tanrıkulu had been taken in for questioning by the police. They had received a tip-off to the effect that he was sheltering a terrorist suspect belonging to the PKK (Workers’ Party of Kurdistan). He had been released without charge the next day.
18. Dr Tanrıkulu took his duties as a doctor seriously and would treat anyone in need. As the only doctor in Silvan Hospital for about eight months, he would have been the person who produced medical reports on persons released from custody. While he generally sought to protect the applicant from anything that might worry her, he did say, on more than one occasion, “If we let them, they would write the reports”, and he also spoke about torture. Following the killing of another doctor in Silvan on 10 June 1992, which led a third doctor to seek and obtain a transfer from the area, Dr Tanrıkulu was reported in the press as having refused to talk about that incident out of fear. At the time a large number of killings were being committed in Silvan by unknown persons. There were newspaper reports alleging that many of the killings were the work of counter-guerrilla forces and it was reported that a military officer by the name of Captain Vural had a list of names and that the people on it were killed one by one. Dr Tanrıkulu’s name was rumoured to be on this list.
19. Although Dr Tanrıkulu had sought to reassure the applicant that he was not at risk, he had acquired a gun, with the necessary licence, two weeks before his death. The day before he was killed, Dr Tanrıkulu had requested permission from the Governor to take his annual leave. Permission had been refused, even though his leave was long overdue and other doctors had arrived in Silvan who could have replaced him.
20. Following the killing of Dr Tanrıkulu, other doctors working at the hospital told the Governor that if the killers could not be found it was not safe for them to remain in Silvan. The Governor allegedly told them that they were safe and that Dr Tanrıkulu had been killed because he was a Kurd from Silvan. The applicant requested one of these doctors, Dr İlhan, to make a statement about his conversation with the Governor but he refused, as he was frightened of the consequences.
21. On 17 November 1994 the applicant received a summons to appear at the prosecutor’s office at the Diyarbakır National Security Court the next day. She was scared before the interview and found the experience frightening. The Chief Public Prosecutor, Mr Bekir Selçuk, questioned the applicant about her application to the Commission and, in particular, about the power of attorney she had given to her lawyers in an accompanying document. The report that was drawn up of the interview states that the applicant was shown a power of attorney in the name of Selma Tan and that she denied that the signature on that document belonged to her. The power of attorney which the applicant had submitted to the Commission, however, was in her full name of Selma Tanrıkulu. The implied threat was made by Mr Selçuk that something might happen to the applicant on account of her application. Mr Selçuk also suggested that an application to the Commission was futile.
22. The report of the interview was not a reliable record of what had been said. Contrary to what was written in the report, the applicant did not tell Mr Selçuk during the interview that about ten days after her husband’s death she had been telephoned by a person called Kevin, who was from a centre in England and was ringing from Diyarbakır.
23. At the time of day when Dr Tanrıkulu was shot, there were only two officers standing guard outside the entrance to the security directorate. These police officers would not have been standing just twenty metres away from the incident and watching it, since the entrance to the security directorate was round the corner from where the shooting took place. The officers standing guard were under strict orders not to leave their posts even if they heard shooting or an explosion as that would render the security directorate vulnerable to attack.
24. The street into which the applicant said that she saw the two perpetrators of her husband’s killing turn from Old Bitlis Road did not come out at the security directorate building on Gazi Road but two blocks away from there.
25. Dr Tanrıkulu had been happy and proud to be working for the State. Government officials were on good terms with him and police officers had felt free to request his help at any hour of the day or night. However, investigations had shown that many killings of State officials or persons working for the State, especially in the area where the state of emergency was in force, had been committed by militants of the PKK.
26. There was no connection between Dr Tanrıkulu’s death and his having been summoned to the police station in April 1993 to make a statement concerning the allegation that he was hiding a terrorist. As soon as it had been established that the allegation was false, Dr Tanrıkulu had been released.
27. Dr Tanrıkulu had been refused leave because he was the deputy head consultant of the hospital and his leave would have interrupted the medical service.
28. The purpose of the Chief Public Prosecutor at the Diyarbakır National Security Court in questioning the applicant on 18 November 1994 had been twofold: firstly, doing so was part of his duty in relation to the preliminary criminal investigation into the death of her husband and, secondly, it was done to verify the validity of her application to the Commission. It was vital that the applicant should be asked about the authenticity of her application in view of the fact that forged statements had been submitted to the Commission in various other cases. It clearly appeared from the record of the interview, however, that the applicant had stated that she wished to pursue her application.
29. In the proceedings before the Commission the applicant and the Government submitted a number of statements which the applicant had made to the Human Rights Association in Diyarbakır and to the Chief Public Prosecutor at the Diyarbakır National Security Court. The parties further submitted a number of plans of the area where the shooting had taken place. At the Commission’s request, the Government also submitted photographs and a video film of the area.
30. The Government further provided copies of the incident report drawn up by three police officers on the day of the shooting (2 September 1993), the reports of the post-mortem examination and ballistic tests, statements taken by police officers from witnesses at the scene (Mr Şinasi Malgil, Mr Umut Yüce and Mr Fırat Kızıl) and a decision issued by Silvan public prosecutor Mr Mustafa Düzgün on 5 November 1993 to the effect that he had no jurisdiction.
31. The Commission repeatedly requested the Government to provide it with a copy of the complete investigation file, as it had appeared during the hearing of witnesses in Ankara that the Government held more documents than had previously been submitted to the Commission. The Government did not submit any other documents.
32. Following the shooting of Dr Tanrıkulu, police inspected the scene of the incident and retrieved sixteen empty cartridges and one deformed bullet. They also drew up a plan of the immediate surroundings, searched the area and noted down names of people who had been present in the area at the time of the shooting. The notes containing those names have not been kept. The incident report drawn up by three police officers (Mr Turan Dağ, Mr Mehmet Şahin and Mr Durmuş Şahin) at 1 p.m. on 2 September 1993 mentions that during the examination of the scene of the incident sixteen 9millimetre-long empty cartridges and one deformed bullet were retrieved. According to the incident report, residents of the area had stated that those who carried out the shooting had been two tall, thin people wearing jeans and trainers. One of these had been wearing a yellow T-shirt and the other a white striped T-shirt. In the general examination made of the area, no individuals fitting either of the descriptions were discovered.
33. On 2 September 1993 Mr Şinasi Malgil made a statement to the police in which he said that he had been walking behind Dr Tanrıkulu on Kaymakam Hill when he had heard a series of shots coming from behind them. He had thrown himself into the garden of houses on the right-hand side and had not seen the person or persons who had shot Dr Tanrıkulu.
34. Two other men, Mr Umut Yüce and Mr Fırat Kızıl, made a statement to the police on 6 September 1993 in which they related that when they were, respectively, walking towards the hospital and working in the grocer’s shop on the corner of Kaymakam Hill, they had heard shots and had found Dr Tanrıkulu lying in a pool of blood. Following the gunshots Mr Umut Yüce had seen two people running in the direction of Old Bitlis Road. Mr Fırat Kızıl had not seen the person or persons who had shot Dr Tanrıkulu.
35. A post-mortem examination of Dr Tanrıkulu’s body was carried out on 2 September 1993 by Dr Murat Yıldırım and Dr Tahir Buran, both general practitioners who worked at Silvan Hospital, and the public prosecutor, Mr Mustafa Düzgün. According to the report of this examination, thirteen bullet entry wounds and twelve bullet exit wounds were recorded, inter alia on the nose, left ear and left forearm, to the left of the fifth vertebra, on the thumb and the right nipple and above the right knee. One bullet was found lodged just below the skin on the inside of the left femur and removed. The cause of death was given as the injury to, and extensive bleeding in, the chest and vital internal organs. In view of the obvious cause of death, it was not considered necessary to carry out a full autopsy.
36. Ballistic tests on the cartridges retrieved at the scene of the incident were carried out by the regional police laboratory. A comparative examination showed up conformity in various respects indicating a single source. The cartridges and the deformed bullet were kept in the laboratory archives. The report of the examination, dated 9 September 1993, does not indicate with what kind of firearm the cartridges and bullet might have been used.
37. On 5 November 1993 the public prosecutor, Mr Mustafa Düzgün, issued a decision to the effect that he had no jurisdiction. In view of the nature of the offence, the way it had been carried out and the existing evidence, the investigation into the incident fell within the competence of the prosecutor’s office at the Diyarbakır National Security Court, where the case is still pending. The decision declining jurisdiction named the suspects as two unidentified persons.
38. The applicant was summoned to appear before the Chief Public Prosecutor at the Diyarbakır National Security Court, Mr Bekir Selçuk, on 18 November 1994. According to the report of her interview with Mr Selçuk, the applicant said that her husband had continually received threats from the PKK for being an official of the State and from Hizbullah for not complying with Islamic rules. She is also reported as saying that, approximately ten days after the incident, she received a telephone call from someone she believed was called Kevin, who invited her to come to the Diyarbakır branch of the Human Rights Association. The report further states that Mr Selçuk showed the applicant a petition signed by Selma Tan on 27 September 1993. The applicant denied having given anybody that document; her name was not Selma Tan and the signature on the document was forged. However, she confirmed that she had made an application to the Commission and that she herself had signed that.
39. Since the facts of the case were disputed, particularly concerning events on 2 September 1993, the Commission conducted an investigation, with the assistance of the parties, and received documentary evidence, including written statements and oral evidence taken from six witnesses: the applicant; Mr Bekir Selçuk, Chief Public Prosecutor at the Diyarbakır National Security Court; Mr Turan Dağ, Mr Mehmet Şahin and Mr Durmuş Şahin, the three police officers who investigated the area where the incident took place, drew up the incident report and made a sketch of the area; and Dr Murat Yıldırım, one of the doctors who conducted the post-mortem examination.
A further six witnesses had been summoned but did not appear: Mr Şinasi Malgil, Mr Umut Yüce and Mr Fırat Kızıl, the witnesses who made statements to the police shortly after the incident; Dr Tahir Buran, the second doctor who had performed the post-mortem examination; Mr Mustafa Düzgün, the Silvan public prosecutor in 1993; and Mr Ünal Haney, whom the Government had identified as the public prosecutor at the Diyarbakır State Security Court who was in charge of the investigation at the time of the hearing of witnesses by the Commission’s delegates. It appeared that Mr Umut Yüce and Dr Buran were ill and that Mr Fırat Kızıl was doing his military service and was involved in exercises which prevented his presence at the hearing. The Government had been unable to locate Mr Şinasi Malgil. Mr Ünal Haney informed the Commission that he was not prepared to attend the hearing. Although Mr Mustafa Düzgün was said to have boarded a bus bound for Ankara, he did not appear before the Commission’s delegates. No explanation for his failure to attend was submitted by the Government, despite a number of requests to that effect from the Commission.
The Commission made a finding in its report (at paragraph 238) that the Government had fallen short of their obligations under former Article 28 § 1 (a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts. It referred to the Government’s failure
(i) to provide copies of the complete investigation file (see paragraph 31 above); and
(ii) to secure the attendance of the witnesses Mustafa Düzgün and Ünal Haney.
40. In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by the witnesses appearing before its delegates.
In a case in which there were contradictory and conflicting accounts of what actually occurred, the Commission particularly regretted the absence of a thorough domestic judicial investigation. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problems of language adverted to above, it inevitably had no detailed, direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while twelve witnesses had been summoned to appear, only six gave evidence. The lack of documentary material has already been referred to. The Commission was therefore faced with the difficult task of ascertaining the facts in the absence of potentially significant testimony and with incomplete evidence.
The Commission’s findings may be summarised as follows.
41. The Commission observed that no findings of fact had been made by domestic courts as regards the subject-matter of the applicant’s complaints. The Commission had accordingly based its findings on the evidence given to its delegates orally or submitted in writing in the course of the proceedings. In this form of assessment the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (see, mutatis mutandis, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161).
42. The Commission noted that it was not in dispute that Dr Tanrıkulu had been shot on Kaymakam Hill on 2 September 1993. However, it had been presented with conflicting accounts as to the exact place on Kaymakam Hill where the incident had occurred. Whereas the applicant contended that her husband had been lying fairly far up Kaymakam Hill, near the security directorate, the three policemen who investigated the scene of the incident indicated in their report and in the sketch they made that Dr Tanrıkulu had been shot near the bottom of the hill. The Commission considered it doubtful that the applicant would have been able to see the body as she came out of the hospital gates, as she alleged, if he had been shot as far up Kaymakam Hill as she contended.
43. Neither the report of the post-mortem examination nor the oral evidence given by Dr Yıldırım to its delegates enabled the Commission to establish whether Dr Tanrıkulu was shot from the front or from behind, information which could have provided an indication of the place from where the bullets had been fired.
44. The applicant submitted that anyone trying to escape by going up Kaymakam Hill or via a side alley would have done so within sight of the members of the security forces – at least eight of them – who were standing at the top of the hill and that the perpetrators therefore could not have been concerned about the reaction of the police. The Government disputed that there would have been eight police officers as described by the applicant. They submitted that there were only two officers standing guard at the front of the security directorate, round the corner from the top of Kaymakam Hill, and that they were under strict orders not to leave their post. The Commission noted that, while this state of affairs was confirmed by police officers Turan Dağ and Mehmet Şahin before its delegates, it was at odds with the situation portrayed on the photographs and the video film which, according to the Government, corresponded to the situation on the day of Dr Tanrıkulu’s death. On the photographs and the video film, two uniformed police officers could be seen standing guard at the back of the security directorate as well.
45. As regards the general credibility of the applicant, the Commission found that her evidence was on the whole detailed, precise and consistent. However, even if it accepted that eight armed police officers had been present at or near the scene of the incident, the Commission considered that a finding to the effect that the killing of Dr Tanrıkulu had been carried out either by these officers or with their connivance would be based more on conjecture, speculation and assumption than on reliable inference. The Commission was of the opinion that the evidence available did not allow for inferences to be drawn capable of supporting such a finding. This was so even if account was taken of the background against which the applicant submitted that the incident should be seen: her husband’s arrest five months previously on suspicion of harbouring a PKK terrorist; the refusal of his leave; the fact that his name was rumoured to feature on a hit list; and the large number of civil servants being killed in Silvan by unknown assailants at the time.
46. In reaching the conclusion that the applicant’s allegations had not been sufficiently proved, the Commission pointed out that it had not been provided with any other eyewitness evidence or evidence corroborating the applicant’s account to a decisive extent. Moreover, the documentary evidence with which it had been presented was incomplete, inconsistent and on some points even contradictory.
47. In its evaluation of the evidence relating to the investigation into the killing of the applicant’s husband, the Commission noted that there had been no thorough domestic judicial investigation. Referring to the incomplete investigation file and the failure of two public prosecutors to appear before its delegates, the Commission further pointed out that it was only able to evaluate the investigation to the extent that information concerning that investigation had been made available. In this respect it also noted that it had not been provided with any evidence showing what, if any, inquiries had been conducted following the drawing up of the incident report by three police officers one hour after the shooting.
48. In its assessment of the various investigative steps that had been taken by the domestic authorities, the Commission was particularly critical of the limited scope of the initial investigation carried out by the three police officers who had arrived at the scene shortly after the shooting. It found the sketch map they had made to be both imprecise and uninformative. In the absence of information to the contrary, it had to assume that no photographs had been taken of the scene. The Commission was further struck by the fact that the applicant’s statement had not been taken until more than a year later and it was not persuaded that attempts had been made to speak to her sooner. Finally, the Commission noted that only very little forensic information had been gathered and it expressed doubt as to the expertise possessed in this field by the two physicians who had carried out the post-mortem examination.
49. Before the Court the applicant referred to the so-called Susurluk Report, which was first produced to the Court in the case of Yaşa v. Turkey (judgment of 2 September 1998, Reports of Judgments and Decisions 1998VI, pp. 2423-24, § 46). The report became available in February 1998, after counsel had submitted the final pleadings on behalf of the applicant in the proceedings before the Commission. This confidential report was initially intended to be only for the Prime Minister, who had commissioned it on 13 August 1997 from the Board of Inspectors within his Office. After receiving the report in January 1998, it would appear that the Prime Minister then made it available to the public, although eleven pages from the body of the report and its appendices were withheld.
50. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south-east Turkey and which tended to confirm the existence of a tripartite relationship involving unlawful dealings between political figures, government institutions and clandestine groups.
51. 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. It concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug-trafficking sphere.
52. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
53. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
54. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
55. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local Administrative Council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.
56. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 55 above) also applies to members of the security forces under the governor’s authority.
57. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 53 above) or with the offender’s superior.
58. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
59. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities shall be subject to judicial review.
…
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
60. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 59), provides:
“No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
61. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
2


ITEMID: 001-67460
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ISSA AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Not necessary to examine Art. 2;Not necessary to examine Art. 3;Not necessary to examine Art. 5;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Not necessary to examine Art. 18
JUDGES: Feyyaz Gölcüklü
TEXT: 10. The applicants are six women from northern Iraq, born in 1950, 1970, 1951, 1939, 1949 and 1947 respectively. The first applicant brought the application on her own behalf and on behalf of her deceased son, Ismail Hassan Sherif. The remaining applicants brought the application on their own behalf and on behalf of their deceased husbands, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff and Guli Zekri Guli respectively. The fourth applicant has also brought the application on behalf of her deceased son, Sarabast Abdulkadir Izzat.
11. The facts of the case are in dispute between the parties.
12. The applicants are shepherdesses who earn their living by shepherding sheep in the valleys and hills surrounding their village of Azadi in Sarsang province near the Turkish border. Their deceased relatives were likewise employed.
13. On 1 April 1995 the applicants learned that the Turkish army, which had crossed earlier into Iraq, was in their area. They saw military activity and witnessed military helicopters transporting soldiers and food in the valley below their village.
14. On the morning of 2 April 1995 Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izatthe, together with the first, third, fourth and fifth applicants, left the village to take their flocks of sheep to the hills. The second and sixth applicants remained in the village to take care of their children.
15. After the party of eleven shepherds (the first, third, fourth and fifth applicants and Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izzat) had walked for fifteen minutes in the direction of Spna, with the four women walking in front of the seven men, they met Turkish soldiers. The latter started to shout abuse at the eleven shepherds, hitting them with their rifle butts, kicking them and slapping them on the face. They separated the women from the men. They told the women to return to the village and then took the men away. The four applicants returned to the village and told the other villagers what had happened.
16. In the meantime, the second and sixth applicants had begun to worry about their husbands. They had heard gunfire and had been told by a fellow villager that the Turkish army was nearby and that the shooting had come from the direction of a cave situated outside the village in the direction of Spna. The villager thought that Turkish soldiers had been firing inside the cave. As a result, the second and sixth applicants together with three other identified women decided to go to look for their men in the direction of the cave. This occurred before the first, third, fourth and fifth applicants had returned to the village. When the second and sixth applicants and the three other women reached the Turkish soldiers they saw the shepherds with them. The soldiers fired in their direction. The women left and went down into the valley. There they met another group of soldiers and requested permission to talk to the men. The soldiers pointed their guns at them and the women left.
17. Instead of going to the village, the five women tried to hide in the valley but were spotted by the soldiers who threatened to kill them. Eventually the women reached the cave, but the men were not there. They saw a military helicopter land. They asked the soldiers for permission to see their men but the soldiers refused. The five women continued their search until about 1 p.m. with no success. They returned to the village and told their fellow villagers about what had happened.
18. Some of the village men, accompanied by members of the Kurdistan Democratic Party (“the KDP”), went to Anshki, a nearby town where a bigger Turkish military unit was based. This unit was responsible for overseeing the military operation in the area. The village men asked the officer in charge to release the shepherds and to allow them to fetch their sheep from the hills. The officer claimed at first that he did not know anything about the shepherds. He subsequently promised the representatives of the KDP that the shepherds would be released. As this did not happen, the KDP representatives made several additional attempts to obtain information. The officer said that if the shepherds had been detained, they would be released. He eventually gave permission for the men to fetch the sheep. He denied that the shepherds had been detained, but warned the men not to look for them. When the men asked why not, the officer became angry and did not reply. When the men went to fetch the sheep, they looked for the shepherds but could not find them.
19. On 3 April 1995 the Turkish army withdrew from the area around the village and the village men set off in the direction of Spna to look for the seven shepherds who had gone missing. In an area close to where the seven shepherds had last been seen with the Turkish soldiers they found the bodies of Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdulkadir Izat Khan Hassan, Sarabast Abdulkadir Izat and Abdulrahman Mohammad Sherriff. The bodies had several bullet wounds and had been badly mutilated - ears, tongues and genitals were missing. The bodies were taken to the main road and from there to Azadi hospital in Dohuk where autopsies were conducted.
20. On 4 April 1995 the KDP held a press conference in Dohuk. Mr SN, the KDP Chief for the Amedi region, stated that, upon receiving information that several shepherds had been arrested by Turkish soldiers, he had visited the Turkish army commander in Kadish and had asked for their release. He had handed him a list of names. The commander had told him that he would take action. The commander had radioed his troops and had told SN that the men and sheep would be released. SN had returned to his office. Having received no news, he had returned to the commander who had promised that the shepherds would be released after the military operation. SN made four or five representations to the commander during that day. The Turkish army having withdrawn during the night, SN returned to the commander the following morning. On that occasion the commander denied that the shepherds had been arrested. He told SN that they might have been killed. At the press conference SN exhibited the list he had given to the Turkish commander containing the names of the seven shepherds. The six applicants were also present at the conference and answered questions.
21. On 5 April 1995 the bodies of Abdula Teli Hussein and Guli Zekri Guli were also found in a state similar to that of the bodies of the other five shepherds.
22. On 5 April 1995 the husband of the first applicant was killed in a separate incident. The four brothers of the husband of the fifth applicant were also killed in a separate incident. These incidents do not form part of the present application.
23. On 7 April 1995 the six applicants and other witnesses were interviewed by Dr RA and Mr Kerim Yildiz in the presence of the muhtar of the Tamim area of Sarsang province.
24. The six applicants have since filed several petitions with the authorities of the region requesting that an investigation be conducted into the deaths of their relatives. They applied to the Governor of Dohuk and gave statements. The Governor said that the deaths would be investigated. However, the applicants have not been informed of any follow-up to the Governor's undertaking.
25. The respondent Government confirm that a Turkish military operation took place in northern Iraq between 19 March 1995 and 16 April 1995. The Turkish forces advanced to Mount Medina. The records of the armed forces do not show the presence of any Turkish soldiers in the area indicated by the applicants, the Azadi village being ten kilometres south of the operation zone. There is no record of a complaint having been made to any of the officers of the units operating in the Mount Medina region.
26. Following the events, the applicants' statements were taken on 7 June 1995 by Dr Rızgar Amin and Kerim Yıldız in the Azadi village of Sarsang province in the governorate of Dohuk (Iraq) close to the Turkish border.
27. The applicant was the mother of Ismail Hassan Sheriff, who was allegedly killed under torture by members of the Turkish army on 2 April 1995, and the wife of Mala Hassan Mohammad Sheriff who was also allegedly killed by members of the Turkish army in a separate incident on 5 April 1995. The applicant claimed the following in relation to the alleged incidents:
“I and the rest of the villagers heard that the Turkish army was in the area the day before my son was killed. We had seen many military helicopters dropping soldiers and food in the valley near our village.
In the morning of 2 April 1995, I prepared food for my shepherd son as usual. We decided to go out to herd sheep. We thought the Turkish army would not harm us. We (seven shepherds and four women) left the village and walked towards the Spna area. The women were walking in front of the men. Then we met many Turkish soldiers who immediately arrested us and began to hit us. They slapped us around the face, kicked us and were very angry and rude. Then they separated us and asked the women to go back to the village. We saw the soldiers take the seven shepherds towards the cave. We went back to the village and told the rest of the village about what had happened.
Some of the men from the village went and asked one of the Turkish army officers to let them retrieve the flocks of sheep from the valley, but he refused and denied having arrested our men. Then some men went to Anshki and asked for the Turkish army officer in charge and requested him to release the shepherds and to let them recover their flocks of sheep. The men went at least five times that day to get information about the men. The Turkish army officer said that if the men were arrested they would be released. He gave permission for the men to bring back the flocks of sheep, but denied knowing anything about our shepherds and warned the men not to go and look for our shepherds. When they asked why they should not go looking for our shepherds, the officer got angry and did not answer.
Once again, some villagers went to the valley to look for our shepherds. They found our flocks of sheep in the early afternoon but still did not know what had happened to our shepherds. We also informed the party (KDP). They said that they met with the Turkish military officers on many occasions but this did not change our men's fate.
The following day, after the Turkish army withdrew from our area, the men went to the surrounding area to look for our shepherds. They found my son and four other shepherds that day. Their bodies were brought back to the main road and from there their bodies were taken to the hospital in Dohuk for medical examination. The other two bodies were found two days later.
The witness replied to the following questions:
Q: Where do you come from originally?
A: We are originally from the village of Terina and have been living in Azadi collective village ever since being moved here under Saddam's regime.
Q: How far is the place where they killed your son?
A: Around ¼ hours' walk from our village.
Q: How old was your son?
A: He was 20 years' old.
Q: Who were the other three women who were with you that day?
A: Fatima Darwesh, Fatima Salim and Salia Shawan.
Q: Can they give us testimonies?
A: Yes.
Q: How far from here is the place where they killed your son?
A: About 15 minutes' walk.
Q: Who do you think killed your son?
A: The Turks.
Q: How do you know that it was the Turks who killed your son?
A: I know it was the Turks. My son was innocent like the other shepherds and the Turks killed them. I saw the Turkish soldiers take away my son and the rest of the shepherds.
Q: Why would the Turkish army kill your son?
A: I don't know. He did not do anything wrong. He was innocent. They killed an innocent man. They (the Turks) want to kill Kurds.
Q: Was your son armed?
A: No, apart from a lighter he did not have anything on him.
Q: Do you have any witnesses that the Turkish army killed your son?
A: Yes. We were four women who saw the Turkish army take away our men. You can also ask the Party (KDP) because they talked to the Turkish army officers.
Q: How did they kill your son?
A: They cut him to pieces. His ears were cut off, they took his tongue out of his mouth. I cannot describe it to you. They have not left anything. They have chained him and dragged him. His body was full of bullets, his genitals were cut.
Q: Have you submitted a petition anywhere in relation to the Turkish army?
A: Yes.
Q: Where?
A: In Sarsang, Dohuk, and I and the others have spoken to many foreign groups.
Q: Is there an investigation into the killings?
A: No, they [Dohok Governor] keep telling us that they will investigate. Each one takes statements from us and they say God will help you.
Q: Have you been given autopsy reports on your son and husband?
A: No, I haven't. I will try to get one for you.
Q: Do you have anything more to add to your statement?
A: I would not be able to tell you everything that happened because my heart is burning. I know my son and husband were innocent and did not have any problem with anybody. The Turks left me with my children and I do not know how I will live. Please help to find out the truth.”
28. The applicant was the wife of Ahmad Fatah Hassan, a shepherd who was allegedly killed by members of the Turkish army. In her statement the applicant alleged the following:
“It was early in the morning, on 2 April, and I was at home when I heard the sound of gunshots in the distance. We had heard that the Turkish army was in the area and our shepherds were out with the sheep, so I was concerned. I went out to find out what was happening. Some other people were outside and a man was telling them that the Turkish army was near our village and that the shooting was coming from the direction of the cave. That is in the direction of Spna, not far from the village. The man said that it seemed to him that the Turkish troops were firing inside the cave.
We talked about what to do and we thought that we would go to find the shepherds. I and the other women went out to look for the men. We thought that we would not be harmed if it was only women who went to look.
When we saw the soldiers from a distance, our men were with them. The soldiers saw us and they began to fire at us to frighten us. We went away from them and watched what was happening. We saw our shepherds with the Turkish soldiers but we could not do anything. We saw some more soldiers down in the valley and we went over to them to ask them to let us go to the shepherds. We begged them, but they pointed guns at us so we went away from them.
We spent some time searching for the men and checked the cave, but there was no one there. We were still looking for the shepherds when we saw a Turkish army helicopter land nearby. We went to another group of Turkish soldiers and asked them to let us see the shepherds but they didn't let us. We searched for a long time but we could not find the shepherds. Then we went back to the village to tell the men of the village about what had happened. They went to the KDP (Kurdistan Democratic Party Officials) to get help and some men went to the Turkish officers in the area to have the men released. The men, headed by the local KDP chief, went to the Turkish officer in charge at Anskhi to ask him to let the men go and to let the sheep be brought back but he said he did not know anything. We had seen our shepherds with the Turkish soldiers and so we were frightened for the safety of the shepherds.
The next day some people went out again to search for the men. They found the five bodies near the cave. My husband's body was among them. The bodies were brought to the main road so they could be taken to Azadi hospital in Dohuk. The village people kept looking for the other two missing shepherds. Two days later they found their bodies.”
29. The applicant was the wife of Abdula Teli Hussein, one of the shepherds allegedly killed by members of the Turkish army. She stated:
“That morning, the 2nd of April 1995, I set out with my husband and the other shepherds and women to tend to the sheep. There were seven shepherds and four women including myself. We had not gone very far from the village when we met the Turkish soldiers. There was a large number of soldiers and they surrounded us. They started to attack us and hit us with their rifle butts and shouted abuse at us. They hit the women as well as the men. After some time they told the women to go back to the village. The men were still with the soldiers when we left. At this time there were seven shepherds with the soldiers.
We went back to the village and told the men of the village what had happened.
The men of the village set out to go to the Turkish army officers to ask them to let the shepherds go as they were not doing any wrong. The men made many representations to the army officials throughout the day and they went to Anshki to make further representations. They said that they were told to return to the village and warned not to look for the men. The men went out to look for the shepherds and found the flocks of sheep but there was no trace of the shepherds. The following day the village men once again went off to look for the shepherds. They found the bodies of five of them. Two days later the bodies of the other two were found.
I saw the body of my husband. He had been killed by many bullets. The body was taken to the hospital.
I want you to take the necessary action against the soldiers for what they have done to my husband.”
30. The applicant was the mother of Sarbest Abdulkadir Izat and the wife of Abdulkadir Izat Khan (Hassan), who was allegedly killed under torture by members of the Turkish army between the 2 and 3 April 1995. She claimed the following:
“From our village we could see the army down in the valley on the day before the incident in which my husband was killed.
On the morning of 2 April 1995 I went with my husband and son to herd sheep. We met with the other women and men and set off in the direction of Spna. We went with the men because the men thought that if we were with them there would not be any trouble. We walked ahead of the men. There were seven men and four women in the group. The Turkish soldiers stopped us. They hit us and beat us with their rifle butts and humiliated us. I was frightened for my life. The soldiers told us to go back and they took our shepherds away with them. We ran back to the village and told the men in the village what had happened.
We went back to the valley and spent the rest of the day looking for our shepherds. Some men went to the Turkish soldiers to ask them to let our shepherds go. Then some men went to Anshki and asked a high-ranking Turkish army officer to release our shepherds and to let us bring the sheep back. The men went many times that day to get information about our shepherds. Party (KDP) representatives also went to the Turkish army officers many times, but nothing happened.
The next day the bodies of my husband and son were found with terrible things done to them. They were found in the cave. The bodies of three other shepherds were found with them. The other two shepherds' bodies were found a few days later.
It was a terrible thing that was done to our shepherds. My husband and son did not do anything wrong. I do not know why they did this to him and the others. Please help us. We have nothing left.”
31. The applicant was the wife of Mohammad Sheriff, who was allegedly killed under torture by the Turkish army between 2 and 3 April 1995. She stated:
“The day of the incident I got ready to go out to herd sheep with my husband and the other shepherds. We had heard that the Turkish army was in the area but we did not feel in danger. We went to do our work. I was going with my husband to the hills to herd the sheep. We all went together. I walked with the other women. We were walking along when the soldiers appeared in front of us. They came all around us and attacked us with their rifle butts and beat us.
They were shouting at us all the time they were beating us. Then we were told to go back to the village and the men were still with the soldiers. We saw the soldiers take our men towards the cave. There were seven men. We were four women. We went back to the village and told the rest of the villagers about what had happened.
I know that some of the men went and asked one of the Turkish army officers to let them bring the flocks of sheep back from the valley and petitioned the officer to release the men. Later that day the men also went to Anshki to the larger military base and asked the officer in charge to let our men go and to return the flocks of sheep, but they did not get any information about our men. The men were warned not to go looking for the shepherds.
The body of my husband was found the next day. His body was in pieces. He had been shot many times. I don't know why the Turks did this to him. He was an innocent man and we were on our way to herd our sheep. The Turks killed my husband and they also killed his four brothers [in a separate incident]. We had no trouble with the army and there was no reason to kill our men.
The body of my husband was brought to the hospital in Dohuk for medical examination. The Turks are gone now, but I am left with my children with no father. I do not know who to petition about the terrible things that have happened to us.”
32. The applicant was the wife of Guli Zekri Guli, one of the shepherds allegedly killed by members of the Turkish army. The applicant claimed the following in her statements:
“It was early in the morning of 2 April 1995 and I woke up to prepare breakfast for my children. While I was preparing breakfast I heard the sound of gunfire. I was startled and went out of the house. I saw our villager and asked him what had happened.
He told me that the Turkish army was near our village, and that the shooting came from the direction of the cave. The only cave near the village is in the direction of Spna. He told me that it seemed to him that the Turkish troops were firing inside the cave. After a while I and four other women, Beebin, Binafis, Safia, Bahia, left the village to go in the direction of the gunfire. We were very concerned about our husbands and sons who were grazing our animals in the mountains.
Then we saw the shepherds with the Turkish soldiers. We went towards them and when we were still far away from them the Turkish troops suddenly fired on us without any warning. Probably they wanted to frighten us, so that we would not approach them. We saw our shepherds being taken away by the soldiers. We went further down in the valley and met some other Turkish soldiers. We begged them to release our shepherds and to let us talk to them. They told us that they would kill us if we did not go back to the village. Despite many pleas and much begging they forced us to go back to the village.
We had to leave the soldiers and we went and hid ourselves in a place in the valley in order to be able to see what the soldiers were going to do next. Four soldiers saw us and came over to us and threatened us to go back to our village or we would be killed. They were very angry when they saw us and told us “We don't want to see you around again. Go back to your home, otherwise we will kill you.”
We left our hiding place and went to the cave to look for the shepherds. Our men were not there. Then we saw a Turkish army helicopter land nearby. For the third time we tried to see our husbands and sons, so we went to the Turkish soldiers and asked them to let us see the shepherds, but they didn't let us. When we didn't see them in the cave we thought that they might have taken them somewhere else. We spent until about 1 p.m. in the area trying to find them. Then we decided to go back to the village. The village men came towards us when we were near the village and wanted to find out what had happened. We told them that the Turkish troops took the men, but we don't know what happened after that. The village men went to Anshki with the representatives of the party, [Kurdistan Democratic Party] KDP and met the military commander there. They told him the story and asked him to release our shepherds. The Turkish army commander first told him that he didn't know anything about the arrest of the shepherds. Later on, the Commander told the KDP people that they will soon release the shepherds, but this never happened. We were left confused and not knowing what to do. They went back to Anshki and once again asked the Turkish troops to let them see the shepherds, but they did not get any further news about our men. I can't remember everything the Turkish commander told the party men, but you can ask the party, they will tell you everything.
The following day, the village people went to the valley once again to look for them and they found the dead bodies of five of them. They brought their bodies to the main road. Afterwards the village men took the bodies to Azadi hospital in Dohuk. The village people kept looking for the two other missing shepherds. Two days later they found their bodies. One of them was my husband's. They took their bodies to Azadi hospital in Dohuk.
The following questions were asked.
Q: How many soldiers were there?
A: A lot, but I don't know how many, but the soldiers were everywhere.
Q: How do you know that the soldiers were Turkish?
A: Because they were speaking Turkish and it was the Turkish army which was around at the time. The Turks had been in the surrounding area over the previous few days. They were all over the place. We do not have any other army here. The Iraqi army left some time ago and their uniform was different from the Turkish army uniform.
Q: You say you saw a Turkish helicopter landing nearby. How do you know it was a Turkish army helicopter and what happened?
A: I told you, we haven't seen any other army in the area for sometime. The other alternative is the Iraqi army. But you see, we haven't seen the Iraqi army recently and we know what they look like. The soldiers were not Iraqi soldiers. They left some time ago. The helicopters dropped the soldiers and food in the valley.
Q: You say the Turkish army threatened to kill you if you didn't leave the place? How?
A: By pointing their guns at us and using bad words and shouting at us. We were asked to leave the place and this kind of thing.
Q: Did you see your husband's body? Can you describe his body?
A: I saw it for a short time. I saw that his ears were cut [crying] I can't describe to you, those who committed this crime cannot be human beings and I can't understand why they didn't just shoot him with a gun. Why did they kill him in this way? How can they cut the body of my husband like this? They are not human.
Q: Was your husband armed?
A: No, he has never carried a gun in his life.
Q: Had your husband any connection with the PKK?
A: No. We have never seen the PKK. We have never seen their peshmargas. We never had trouble with them.
Q: So why did the Turkish troops kill your husband?
A: I do not know. Because we are Kurds, maybe they do not like us. They kill us because we are defenceless and there is no one to defend us against them.”
33. Mr Nerwayi claimed the following during the press conference:
“I was in Amadia town when reports came to me that the Turkish army had attacked the Spna area and the Bawrki area at 4.30 a.m.
Past experience with the Turkish army has taught us that, wherever they go, they assault poor people. As an example, before the current incident two of our citizens were on their way back to Hemzeki village. The Turkish soldiers arrested them. After assaulting and beating them, killing one and wounding the other. I reported this incident to the Turkish army commander and asked him to keep us informed about their operations, so that we can ask the villagers to leave their villages before the operations to avoid civilian casualties.
I heard about the Turkish army operation in Spna area, and I went early in the morning to the Turkish army commander in Kadish. I told him that I received information about the arrest of several shepherds by the Turkish army. I officially gave him this list (showing a list of names of the deceased) of the shepherds reported to have been arrested by the Turkish army. I told him that the people who had been arrested were shepherds and were known to us. I said that they were out herding their sheep and I asked the commander to send orders to release them as they were innocent people minding their own business.
He told me he would take action. Indeed, he radioed his troops, and then told me that he ordered them to release the men and the sheep. I went back to my office in Kadish. During the day, as I had not heard any news of the shepherds, I made 4 or 5 representations to the Turkish army commander, asking him to release the men as soon as possible. Each time, he promised that he would order his soldiers to release them and made excuses for not releasing them. He told me after the military operation he would let the men go. The Turkish army withdrew (from the Spna area) during the night, and the following morning I went back to the Turkish army commander.
At that time, he denied having arrested the men. He said go and look for them: they might have been killed. We told the shepherds' relatives, who went to the area once again and found the shepherds' bodies.
I am giving this account so that you know that we made representations to the Turkish army and asked the Turkish army to release the shepherds, but they did not. I hope that you publicise the incident so that who killed these men is known. I hope that you will do something both to prevent future atrocities by Turkish army and end the oppression they bring upon us.”
34. A post-mortem examination was performed by Dr Abdula Salih, a specialist surgeon, at the Baghdad Forensic Medicine Institute of the Iraqi Ministry of Justice, on the bodies of Ahmed Fattah Hassan, Ismail Hasan Muhammed, Abdulmalik Hussein, Abdulkader Izzat Khan, Abdulrahman Muhammad Sherriff, Sarias Abdulkadir and Gulei Thekeri.
35. Dr Abdula Salih diagnosed the cause of death as brain damage due to gunshot wounds. He noted the presence of gunshot wounds, cutting and other wounds on the bodies of the deceased.
36. This video recording, compiled from various Turkish TV stations, contains pictures of Turkish army presence in northern Iraq between 19 March and 2 May 1995. It further comprises interviews and news reports about the operations conducted by the Turkish army in northern Iraq.
37. On 4 April 1995 the Governor of Dahouk held a press conference attended by of the representatives of international human rights organisations and agencies, representatives of the Kurdistan Democratic Party (“KDP”) and of the local assembly in northern Iraq as well as by the relatives of the deceased persons. The KDP spokesperson stated that the purpose of the press conference was to give information about the Turkish army's encroachment on northern Iraq since 19 March 1995.
38. It was alleged that Turkish armed forces were in control of the Sersing, Amadia and Spna areas. As a result of the military campaign launched by the Turkish army at the relevant time, allegedly eleven persons had died, seven persons had been wounded, thirty one houses had been burned and the inhabitants of fifty-one villages had left their homes for reasons of insecurity.
39. The KDP spokesperson alleged that on 2 April 1995 eleven persons had been arrested by members of the Turkish troops. These persons were Abdulkader Izzet, Serbest Abdulkader, Ismail Hassan Sheriff, Abdullatif Hüseyin, Abdurrahman Muhammet Sheriff, Goly Zikry, Ahmed Fatah, Fatma Darwish, Fahima Selim, Safia Zwa and Halima Mussa. The latter four persons, all women, were released and informed their relatives in their village. The villagers informed a KDP officer in charge of the Amadia region, Mr Shookri, about the arrest and detention of seven men by the Turkish army. Mr Shookri went to speak to the leader of the Turkish troops and asked him to release these men. He also submitted a petition containing the names of the persons under arrest. The leader of the Turkish troops promised that they would be released. However, following the withdrawal of the Turkish army troops, the villagers found the corpses of five of the seven men. Their bodies had been mutilated and some of them had been decapitated. At the end of the press conference, Mr Shookri took the floor and stated that the leader of the Turkish troops had denied that they had killed these men. On 4 April 1995 two men were still missing.
40. The KDP spokesperson stated that they had condemned the acts of the Turkish army in the region and called on them to withdraw. He noted that they would seek compensation from the Turkish Government for the crimes committed by the Turkish army.
41. The KDP spokesperson also called on the PKK to withdraw from northern Iraq. He remarked that the inhabitants were unable to construct houses and set up new villages along the Turkish border on account of PKK activity over the last four years. He underlined in this connection the difficulties in controlling the 340 kilometres of border.
42. At the end of the press conference, the mutilated bodies of the deceased persons and bullets removed from them were shown.
43. In his written statements Koray Düzgören claimed that the Turkish army had carried out cross-border operations, called “hot pursuit actions”, against PKK militants in May 1983, August 1986, March 1987 before the Gulf war and on 5 September 1991, 11 October 1991, 16 May 1992 and 7 October 1992 after the Gulf war. He alleged that these operations were aimed at preventing the incursion of PKK militants into Turkey and from dissuading the Kurdish groups from setting up a Kurdish state in northern Iraq. He noted, with reference to the statements made by the former head of the General Staff, General Hüseyin Kıvrıkoğlu, in August 1992 that Turkish troops were positioned in the vicinity of a small airport in the Sersing area of northern Iraq.
44. In his report dated 5 June 1996, Mr Düzgören noted that since 20 April 1996 seventeen villages had been subjected to intermittent attacks from artillery fire from the hills on the Turkish border or from helicopters and aircraft. The artillery fire discharged by the Turkish army caused damage to buildings and killed one person and wounded eleven others. In his opinion, the reason for these attacks was to create a buffer zone south of the border and to cut off the logistic support given to the PKK by the villagers in the region.
45. The Turkish security forces carried out fourteen major cross-border operations between January 1994 and November 1998. The largest operation, called “Çelik (steel) operation” and carried out with the participation of seventy to eighty thousand troops accompanied by tanks, armoured vehicles, aircraft and helicopters, lasted almost six weeks between 19 March and 2 May 1995. The Turkish troops penetrated 40-50 kilometres southwards into Iraq and 385 kilometres to the east.
46. The Government submitted a document, furnished by the Kurdistan Democratic Party (“KDP”), one of the two main Kurdish factions in northern Iraq, which stated:
“At the time of the incident Mr Newayi was a co-ordinator with the Turkish military and no accusations were made against the army since no investigation was conducted yet in order to come to any such conclusions. The families of the killed individuals, being Iraqi Kurdish citizens, approached the KDP and local authorities to report the incident, which is a natural thing to do.
The PKK was active in the Bahdinan (Duhok province) region at the time of the incident and many confrontations were reported between KDP peshmergas and the PKK.”
47. A daily newspaper, “Binyıl”, reported in its edition of 5 October 2000 that one of the Kurdish Iraqi leaders, Mr Mesut Barzani, had stated during his visit to Ankara that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq on 15 August. Mr Barzani said that a serious investigation had been carried out into the incident. He further noted that the attack had not been deliberate and that the families had received the compensation awarded to them. According to sources close to Mr Barzani, the payment, which was unprecedented, was made in cash.
48. After having viewed video footage showing the bodies of a number of Iraqi peasants (see paragraph 42 above), Dr Milroy observed the following:
“...All the bodies show a number of gunshot wounds. The cameraman tends to concentrate on the larger wounds, but smaller circular wounds are also shown. The wounds all appear to be caused by high velocity bullets. A typical gun that would fire such bullets would be a 7.62 mm or 5.56 mm rifle. The larger wounds on the bodies are exit wounds of bullets, the wounds being made larger in some cases probably by bone fragments exiting the body. The smaller wounds are the entrance wounds of the bullets.
It is not possible to determine the range at which these people were shot at from this vdeo. Some of the wounds are near the genitalia, but these all appear to be bullet wounds, and there is no evidence of any other weapon being used, or of deliberate genital mutilation.
The video also shows bullet shells with the marking “MKE”. MKE is the mark of the manufacturer Makina Kimya Endustrisi Kurumu of Kırıkkale, Ankara, Turkey.
Overall the bodies all show multiple gunshot wounds in keeping with bullets fired from high velocity rifles.”
49. The Criminal Code makes it a criminal offence
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
(b) to subject an individual to torture or ill-treatment (Articles 243 and 245);
(c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450);
50. If the suspected authors of these criminal acts are military personnel, they may also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances may be initiated by the persons concerned (nonmilitary) before the competent authority under the Code of Criminal Procedure or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
51. A description of relevant international legal materials can be found in Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], application no. 52207/99, §§ 14-27, ECHR 2001-XII.