ITEMID: 001-61698
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF TAHSIN ACAR v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 32. The applicant was born in 1970 and lives in Sollentuna (Sweden). The facts of the case, as submitted by the parties, may be summarised as follows.
33. The applicant's brother Mehmet Salim Acar (son of Mehmet and Hüsna, born in Bismil in 1963), a farmer living in Ambar, a village in the Bismil district in south-east Turkey, disappeared on 20 August 1994. The facts surrounding the disappearance of the applicant's brother are in dispute between the parties.
34. The facts as submitted by the applicant are set out in Section 1 below. The facts as submitted by the Government are contained in Section 2. A summary of the documents produced is set out in Part B.
35. On 20 August 1994, while Mehmet Salim Acar was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off.
36. The scene was witnessed by Mehmet Salim's son İhsan Acar and İlhan Ezer, another farmer. After the car had driven off, İhsan ran home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim's daughter, had seen her father sitting in the back of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim's hands and feet were tied, he was blindfolded and his mouth was taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since.
37. Mehmet Salim's family filed a series of petitions and complaints about his disappearance to the authorities, including the Deputy Governor and the Bismil gendarmerie, in order to find out where and why he was being detained.
38. On or around 27 August 1994, Mehmet Salim's sister Meliha Dal personally handed a petition about her brother's disappearance to the Deputy Governor of Diyarbakır. After reading the petition and, in her presence, speaking on the telephone with Ahmet Korkmaz, a non-commissioned officer (NCO) of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing that she could do for the time being.
39. When leaving the Deputy Governor's office, Meliha Dal was approached by a police officer, Mehmet Şen, who volunteered to make enquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil gendarmerie command and that he could take him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take them to her brother in one or two days' time. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil gendarmerie command but that he did not know where he had been taken to.
40. On 29 August 1994 Hüsna Acar, Mehmet Salim's mother, filed a petition with the Bismil public prosecutor requesting an investigation into her son's disappearance. On 2 September 1994 the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer.
41. On 19 October 1994 Hüsna Acar asked the Bismil Chief Public Prosecutor for information about the progress of the investigation, but she received no reply.
42. In letters of 29 November 1994 and 19 January 1995, the applicant asked the public prosecutor at the Diyarbakır National Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters went unanswered.
43. On 15 March 1995 the Bismil public prosecutor wrote to the Bismil gendarmerie commander, seeking a reply to his enquiry about the case. He wrote again on 17 May 1995 to enquire whether or not the detention of Mehmet Salim Acar might have been politically motivated.
44. On 20 July 1995 the applicant asked the Bismil Chief Public Prosecutor for information about the case of Mehmet Salim Acar and accused gendarmerie officers İzzetin and Ahmet and village guard Harun Aca of being responsible for his brother's abduction.
45. On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother's whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995, the applicant requested the Minister for Human Rights to ensure his brother's safety and to take urgent action.
46. On 8 September 1995 gendarmes took further statements from Hüsna, Halise and İhsan Acar.
47. On 22 September 1995 the applicant spoke on the telephone with gendarmerie captain İrfan Odabaş, of the Bismil gendarmerie command, who told him that Mehmet Salim Acar's whereabouts were unknown and asked him whether the abductors had made any ransom demand. The applicant replied that no such demand had been made but that he would pay in return for his brother's release.
48. On 27 September 1995 the applicant was contacted by an unknown person who asked for 1,100,000,000 Turkish liras in return for his brother's release. The applicant accepted immediately. He was told that his brother would be interrogated at the Bismil gendarmerie command and that he would be able to meet him within a week.
49. On 5 October 1995 Mehmet Salim's family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these conditions. On 10 October 1995 Murat contacted the family again and asked them to reconsider their position, otherwise Mehmet Salim would not be released.
50. On 25 October 1995 Meliha Dal made a statement to the Bismil gendarmerie command to the effect that, in her opinion, the gendarmerie officers İzzet Cural and Ahmet Korkmaz and the former PKK (Workers' Party of Kurdistan) member Harun Aca, who had become a village guard, were responsible for her brother's abduction.
51. On 30 October 1995 the home of Meliha Dal was raided by officers of the anti-terrorism branch of the Diyarbakır police, who threatened her with death and attempted to abduct her 12-year-old son.
52. In November 1995 the applicant was informed by the Diyarbakır general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians claiming to be policemen.
53. The applicant also filed a petition about his brother's disappearance with the Investigation Commission for Human Rights of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Investigation Commission for Human Rights that the case had been investigated, that the two gendarmerie officers whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted to the applicant by the Human Rights Commission on 18 December 1995.
54. On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the progress of the investigation.
55. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction (görevsizlik kararı) and transmitted the investigation opened in respect of gendarmerie officers İzzet Cural and Ahmet Babayiğit and village guard Harun Aca to the Diyarbakır Provincial Administrative Council for further proceedings under the Law on the prosecution of civil servants (Memurin Muhakematı Kanunu).
56. On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim's disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor.
57. On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in reply to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother remained unidentified.
58. In a decision of 23 January 1997, the Diyarbakır Provincial Administrative Council decided not to take proceedings against the two gendarmerie officers and the village guard on the ground that there was insufficient evidence. This decision was confirmed by the Supreme Administrative Court (Danıştay) on 14 January 2000.
59. On 2 February 2000 at 11 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the news all night and saw him again on the following day during the 8 a.m. television news broadcast.
60. On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative.
61. Two days later, the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after making a statement.
62. On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor that she had seen her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She subsequently received no further information from the police headquarters.
63. On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the anti-terrorism branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the anti-terrorism branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar.
64. On 23 March 2000 three officers from the anti-terrorism branch came to Halise Acar's home and asked her for a copy of her family's entry in the population register. She was told that they were looking for Mehmet Salim Acar throughout Turkey and that it was not established that he was dead.
65. According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş Chief Public Prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and parents did not match the particulars of the applicant's brother.
66. On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast.
67. On 30 May 2000 the Diyarbakır Chief Public Prosecutor issued a decision not to open an investigation (tapiksizlik kararı) on the basis of the petition of 11 May 2000.
68. Later in 2000 Meliha Dal spoke with a prison officer at Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer's description of Mehmet Salim corresponded to her brother's appearance.
69. On 29 August 1994 the applicant's mother filed a petition with the Bismil public prosecutor's office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men.
70. The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses to the events, İhsan Acar and İlhan Ezer. İhsan Acar stated that two Turkish-speaking men wearing hats and glasses had asked his father to show his identity card and that he was then put in a grey car without licence plates. İlhan Ezer declared that a grey Renault TX-model car without licence plates had approached them, that one of the two men in the car, speaking with a western Anatolian accent and wearing glasses, had forced them to show their identity cards, saying they were police officers. The men did not give back Mehmet Salim's identity card, saying that they would bring him back after he had shown them someone's land.
71. On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor.
72. On 15 March 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to investigate whether or not Mehmet Salim Acar had been kidnapped. In a letter of 17 May 1995, the Bismil public prosecutor asked the Bismil gendarmerie commander for information about the case.
73. In a letter of 20 July 1995 to the Bismil public prosecutor, the applicant claimed that village guard Harun Aca, gendarmerie captain İzzettin and gendarmerie officer Ahmet had been involved in the kidnapping of his brother. On the basis of this letter, the public prosecutor decided to hear those allegedly involved and summoned all gendarmerie officers named Ahmet who worked at the Bismil gendarmerie command at the material time to be heard.
74. On 8 September 1995 gendarmes took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant's allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons who had abducted Mehmet Salim Acar had worked at the Bismil gendarmerie command, which he denied. He further stated that Mehmet Salim Acar's behaviour had also not indicated that he knew these men.
75. On 25 October 1995 İlhan Ezer made a statement to the Bismil notary public, in which he stated that he had seen the persons who had abducted Mehmet Salim Acar and that they were not Captain İzzet Cural and Sergeant Ahmet as alleged.
76. On 6 November 1995 the Bismil public prosecutor took a statement from the gendarmerie officer Ahmet Uyar, who stated that he had just taken up his duties at the time of the incident and that he did not know anything about it. He further stated that there were two other gendarmerie officers named Ahmet, namely Ahmet Korkmaz, who had been killed by the PKK, and Ahmet Babayiğit, who had been transferred to a region with a different climate on medical grounds.
77. On 23 November 1995 Harun Aca made a statement to both the gendarmerie and the Bismil public prosecutor, on which occasion he submitted a document proving that he had not been in Bismil between 19 July and 6 September 1994, when he had been participating in a security forces operation in Mardin.
78. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Captain İrfan Odabaş as inspector for the investigation into the applicant's allegations that his brother had been taken into detention by gendarmerie captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of temporary village guard Harun Aca.
79. On 9 December 1996 İlhan Ezer made another statement to the gendarmerie in which he declared that he knew Captain İzzet and NCO Ahmet very well and that they were definitely not the men who had abducted Mehmet Salim Acar.
80. On 25 December 1996 the gendarmerie took a statement from NCO Ahmet Babayiğit, who stated that he had not witnessed the incident and that he did not know anything about it.
81. On 1 January 1997 the gendarmerie took a statement from Captain İzzet Cural, who denied that Mehmet Salim Acar had been apprehended and detained.
82. On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca.
83. Mehmet Salim Acar has been included on the list of persons who are being searched for by the gendarmerie throughout Turkey, and the search for him continues.
84. The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant's brother. Several persons being held in detention have the same name as the applicant's brother. However, their dates and places of birth and particulars are different from his.
85. The parties have produced various documents concerning the investigation into the abduction of Mehmet Salim Acar.
86. On 29 August 1994 Hüsna Acar filed a petition with the public prosecutor's office in Bismil requesting an investigation into the disappearance of her son Mehmet Salih Acar, who had been abducted ten days before by two unknown persons – armed with Kalashnikov rifles and wearing civilian clothes – in a taxi. In her petition Hüsna Acar further stated that her family had already made enquiries with the gendarmerie and the police, who had told them that they knew nothing about it. Hüsna Acar requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible.
87. On 19 October 1994 Hüsna Acar filed a second petition with the Bismil public prosecutor, in which she requested an investigation into the disappearance of her son. She asked the public prosecutor in particular to verify whether her son had been apprehended and was being held by the security forces.
88. By a letter of 20 July 1995, the applicant requested the Bismil public prosecutor to grant his family permission to visit his brother Mehmet Salim Acar who, according to the applicant, had been apprehended in August 1994 by the Bismil gendarmerie commander. The applicant stated that gendarmerie captain İzzettin, NCO Ahmet and Harun Aca, an inhabitant of Ambar, were responsible for his brother's life.
89. By a letter of 26 July 1995, the applicant complained to the Ministry of Human Rights that in August 1994 his brother Mehmet Salim Acar had been apprehended by Captain İzzettin, NCO Ahmet and counter-guerrilla agent Harun Aca, and that since then his brother was being held at the Bismil gendarmerie command. The applicant further stated that his family had not received a positive reply from the Bismil public prosecutor and the Diyarbakır National Security Court, to which they had applied, and that they were disconcerted not to have been granted permission to contact Mehmet Salim even though they had evidence that he was being detained.
90. The applicant submitted a similar petition to the Ministry of Justice on 27 July 1995.
91. In a further letter of 30 August 1995 to the Ministry of Human Rights, the applicant stated that, in addition to his letter of 26 July 1995, he had learned from an official, who wished to remain anonymous, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cura on the basis of information supplied by the “confessor” Harun Aca. Having interrogated him, Captain İzzet had concluded that Mehmet Salim was innocent and that Harun Aca's information had been incorrect. However, as Captain İzzet feared sanctions for having detained Mehmet Salim incommunicado and for too long, for having denied him the necessary medical care and for having failed to respect his defence rights, he had kept Mehmet Salim in detention. Considering that his brother risked being killed by Captain İzzet in order to conceal the matter, the applicant requested the Ministry of Human Rights to intervene as a matter of urgency.
92. In an undated petition, Hüsna Acar requested the Investigation Commission for Human Rights of the Turkish Grand National Assembly to examine the case of her son Salih Acar, claiming that he had been taken into detention by Captain İzzet of the Ambar gendarmerie on 6 July 1994 and that nothing had been heard from him since. Hüsna Acar sent similar petitions, also undated, to the Ankara Human Rights Centre, the Diyarbakır Governor and the General Gendarmerie Command in Ankara.
93. On 10 November 1995 the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition concerning Salim Acar had been registered on 3 November 1995 under no. 4467/2872, that the matter would be investigated and that he would be informed of the results of the investigation.
94. By a letter of 10 June 1996 to the Bismil public prosecutor, Hüsna Acar requested to be provided with information about the steps taken in the investigation into the abduction on 29 August 1994 of her son Mehmet Salim Acar by Captain İzzet Cural and Sergeant Ahmet Kormaz. She further claimed that, on the day her son had been abducted, two other persons – whose names she did not mention – had been abducted in the same car, that one of them had been released and that her son had initially been taken to Bismil, then to Cınar and subsequently to Diyarbakır.
95. On 5 August 1996 Hüsna Acar requested the Ministry of the Interior to take the necessary steps to find out whether her son Mehmet Salim Acar, who had been abducted in 1994 in a white taxi by two persons whose identities she did not know, was dead or alive.
96. On 23 August 1996 Hüsna Acar and Halise Acar filed a criminal complaint of abduction and disappearance with the Bismil public prosecutor. They claimed that, three days before his disappearance, Mehmet Salim Acar had quarrelled with Mehmet Açan, who was also living in Ambar, about a pump. Mehmet Açan had told Mehmet Salim that he would definitely “disappear” within three days at the most. Three days later, Mehmet Salim was taken away by Captain İzzettin, Mehmet Açan and Harun Açan. Hüsna and Halise Acar requested the public prosecutor to carry out an investigation and to hand the three perpetrators over to the courts.
97. On 25 November 1996 Meliha Dal lodged a complaint with the Diyarbakır Governor, claiming that her brother Mehmet Salim Acar had had a quarrel with the brothers Mehmet and Harun Açan. On that occasion, Harun Açan had threatened her brother with death. Three days later, her brother had been taken away by Captain İzzettin and Mehmet and Harun Açan. Meliha Dal further stated that the petitions filed by Halise and Hüsna Acar with the Bismil public prosecutor and the Ministry of the Interior had not led to any results and that the Bismil Governor and the Bismil gendarmerie authorities had not even contacted Halise and/or Hüsna Acar to discuss the matter. Meliha Dal requested the Governor to question Captain İzzettin and the brothers Mehmet and Harun Açan, as she believed that her brother might have been killed by them.
98. On 10 December 1996 the applicant sent a letter to the president of the Diyarbakır Provincial Administrative Council claiming, inter alia, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca (see paragraph 142 below).
On the same day, the applicant sent a similar letter to the President of Turkey, requesting him to investigate what had happened to his brother.
99. On 11 December 1996 Hüsna Acar filed a petition with the Ministry of the Interior, claiming that the Ambar villager Şakir Gün had extorted money and jewellery from her family in exchange for the release of her son Mehmet Salim. Considering that Şakir Gün was thus aware of her son's whereabouts and involved in his abduction, Hüsna Acar requested the Ministry of the Interior to intervene and investigate the matter.
On the same date Hüsna Acar sent an identical petition to the President of Turkey.
100. The submitted copy of the custody records of the Bismil gendarmerie for the period between 8 July and 13 November 1994 does not contain an entry in the name of Mehmet Salih Acar or Mehmet Salim Acar.
101. On 29 August 1994, in an instruction written by hand at the bottom of the petition filed on that day by Hüsna Acar (see paragraph 86 above), the Bismil public prosecutor ordered the taking of a detailed statement from Hüsna Acar and the making of enquiries with the gendarmerie and the security forces. On 31 August 1994 he instructed the Bismil gendarmerie to ensure that Hüsna Acar came to his office to make a statement.
102. On 2 September 1994 Hüsna Acar made a statement to the Bismil public prosecutor. She confirmed that she had filed a petition and stated that, about ten days before 29 August 1994, her son Mehmet Salih Acar had been taken away in a taxi by two men, who were wearing civilian clothes and armed with Kalashnikov rifles. Nothing had been heard from him since. Her grandson İhsan Acar had witnessed the incident. It appeared that the men had spoken Turkish and that they had driven off in the direction of Bismil.
103. On the same day, Halise Acar also made a statement to the Bismil public prosecutor. She stated that her husband had disappeared ten or fifteen days earlier when he was in a cotton field with their son İhsan Acar. Two armed men had forced him to get into a taxi, which had driven off in the direction of Bismil. Nothing had been heard from him since. She further declared that she had been told that her husband had been with İlhan Ezer when he was taken away and that the taxi was a dark grey Renault without licence plates.
104. Also on 2 September 1994, İhsan Acar (born in 1983) was heard by the Bismil public prosecutor. He stated:
“On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a twenty-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan's identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.”
105. İlhan Ezer, who was also heard by the Bismil public prosecutor on 2 September 1994, declared:
“On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX-model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih's identity card. They said: 'Mehmet Salih will show us someone's field and then we will send him back.' That is all I know and what I have witnessed in relation to the incident.”
106. On 13 September 1994 the Bismil public prosecutor informed the Bismil gendarmerie command that, about ten days before 29 August 1994, Mehmet Salih Acar had been abducted by two unknown persons – aged 25 or 26, speaking with a western Anatolian accent and one of them wearing glasses – who had come in a gunmetal Renault TX-model taxi without licence plates. The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted Mehmet Salih Acar and, when found, to bring them to his office.
107. On 25 January 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command, urging the gendarmerie to speed up compliance with his instruction of 13 September 1994.
108. By a letter of 7 February 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the requested investigation had been completed. Captain Cural appended to his letter a record dated 31 January 1995, signed by the gendarmerie officers İlhan Yücel, Ahmet Uyar and Yılmaz Pala of the Bismil central gendarmerie command, stating that enquiries had been made, but that it had not been possible to identify the persons who had abducted Mehmet Salih Acar.
109. On 15 March 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to conduct a thorough investigation into the alleged abduction of Mehmet Salih Acar and, if this had in fact taken place, to tell him who was responsible and whether it had been politically motivated. He sent a reminder of this instruction to the Bismil gendarmerie command on 17 May 1995.
110. By a letter of 22 June 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the investigation requested on 25 January 1995 had been completed. Captain Cural appended to his letter a record dated 20 June 1995, signed by the gendarmerie officers İlhan Yücel, Ismail Özden and Ahmet Uyar of the Bismil central gendarmerie command, stating that it had not been possible to locate or identify the persons who had abducted Mehmet Salih Acar.
111. On 14 August 1995, acting on the petition filed on 27 July 1995 by the applicant (see paragraph 90 above), the Ministry of Justice requested the Bismil public prosecutor, as a matter of urgency, to provide information about Mehmet Salim Acar, who had allegedly been taken into detention at the Bismil gendarmerie command in August 1994 and who had not been allowed to see his relatives since, and about the legal steps taken in his case.
112. By a letter of 21 August 1995, the Bismil central gendarmerie station commander Sergeant İlhan Yücel informed the Bismil district gendarmerie command that it was not known whether the abduction of Mehmet Salih Acar had, in some way or other, been politically motivated, that it was not known who had abducted him and that no news from him had been received since his abduction. Sergeant Yücel appended to his letter a record dated 14 August 1995, signed by himself, the gendarmerie officer Mustafa Candar and the Ambar muhtar Mehmet İhsan Tuncay, with the same contents as the letter.
113. Also on 21 August 1995 and in reply to the request of 14 August 1995, the Bismil public prosecutor informed the Ministry of Justice that it was asserted that Mehmet Salih Acar had been abducted about ten days before 2 September 1994 by two armed and unidentified persons, who had forced him to get into a taxi while he was working in the fields with his son İhsan Acar. The responsible authorities had been contacted in order to proceed with the search for him. However, the persons who had abducted Mehmet Salih Acar had not, to date, been identified and the investigation of the case was ongoing.
114. On 18 September 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to ensure that Harun Acar from the village of Ambar reported to his office in connection with the investigation into the disappearance of Mehmet Salim Acar. On 21 September 1995 the Bismil gendarmerie district command instructed the Bismil central gendarmerie command to find Harun Acar's address.
115. On 29 September 1995 Sergeant İlhan Yücel, the Bismil central gendarmerie commander, informed the Bismil gendarmerie district command that Harun Acar did not live in Ambar, that he was currently serving in an anti-terrorism unit and that his current address could be obtained from the Derik and Mazıdağı gendarmerie district commands. Sergeant Yücel appended to his letter an undated report, signed by the gendarmerie officers Mustafa Candal and Özay Yalbul, and the Ambar muhtar, Mehmet İhsan Tuncay, stating that Harun Acar had left no address when he was released from Diyarbakır E-type Prison but that he could be found by asking the Derik or Mazıdağı gendarmerie command. This information was transmitted to the Bismil public prosecutor on 10 October 1995.
116. On 12 October 1995 the Ministry of Justice requested the Bismil public prosecutor to provide information about the steps taken in the investigation into the disappearance of Mehmet Salih Acar, which formed the subject matter of a complaint filed by the applicant with the European Commission of Human Rights, in which he alleged that his brother had been taken into custody in Bismil on 20 August 1994 and that he was being tortured. The Bismil public prosecutor was asked in particular to inform the Ministry if an investigation into the matter had been opened and, if so, whether it had been opened automatically or in response to a request in respect of Mehmet Salih Acar.
117. On 16 October 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command of his instruction of 18 September 1995. On the same day he instructed the Bismil gendarmerie command to ensure that Halise Acar and all gendarmes who had served at the Bismil gendarmerie command at the material time and who were named “Ahmet” reported to his office in order to make statements. Finally, he instructed the Bismil gendarmerie command to provide him with the current address of Captain İzzettin Cural, who had left Bismil after being posted elsewhere.
118. On the same day the Bismil public prosecutor informed the Ministry of Justice that an investigation into the disappearance of Mehmet Salih Acar had been opened, in which statements had been taken from the complainants Halise and Hüsna Acar and from the witnesses İhsan Acar and İlhan Ezer, and that steps had been taken to obtain a statement from Captain İzzettin, NCO Ahmet and Harun Aça, and an additional statement from Halise Acar. He further informed the Ministry that, as it was possible that Mehmet Salih Acar had been kidnapped, letters had been written to the central police and gendarmerie authorities requesting that Mehmet Salih Acar be found.
119. On 20 October 1995 the Bismil public prosecutor requested the public prosecutors in Derik and Mazıdağı to summon and take a statement from Harun Aça in relation to the disappearance of Mehmet Salih Acar.
120. On 3 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Captain İzzet Cural.
121. On 6 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor that, in response to his request of 16 October 1995, Sergeant Ahmet Uyar had been sent to his office. In a statement of the same day to the Bismil public prosecutor, Ahmet Uyar declared, in his capacity as a person suspected of an offence, that he had no information about the incident and that he had not witnessed it. He had taken up his duties at the Bismil district gendarmerie eight days before the incident took place. The person who had served before him was Sergeant Ahmet Korkmaz, who had been killed by the PKK. Ahmet Babayiğit had also served before him, but had had a road accident and was currently on sick leave. Ahmet Uyar denied having been involved in the incident and stated that he did not know the person mentioned by the public prosecutor.
122. On 10 November 1995 the Mazıdağı gendarmerie district command informed the Mazıdağı public prosecutor that Harun Aça did not serve at that command.
123. On 16 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Harun Aça, who had been found to serve at the Derik gendarmerie district command.
124. On 23 November 1995 Harun Aca made a statement at the Bismil gendarmerie central command, in which he declared that he had left Ambar in 1988. He had later joined the PKK until he had surrendered himself voluntarily on 4 April 1994 to the Derik gendarmerie district command. Owing to his participation in military anti-terrorist operations as a guide, it was impossible for him to return to Ambar. He had only done so on very rare occasions and for reasons of security had then always stayed on the premises of the Bismil gendarmerie district command. His parents, his spouse and family lived in Ambar. They did not have a hostile relationship with the other families living there, but owing to his personal position his family had become a PKK target. He confirmed that Mehmet Salim Acar and his family also lived in Ambar, but he had not seen them since 1988 and no longer had any contact with them. For security reasons, he would only enter and leave Ambar during the day and in secret, and was particularly careful not to be seen by anyone. He denied having given any information about Mehmet Salih Acar to gendarmerie captain İzzet Cural or to NCO Ahmet, as he had had no mission to Bismil and did not know what was going on there. The PKK had incurred many losses in the provinces of Mardin and Şırnak on the basis of information provided by him and he was convinced that the PKK had organised the abduction as a result of those losses. He further denied having apprehended anyone with the assistance of gendarmes serving in the Bismil district. In any event, he had no such powers. His function was limited to giving information to the security forces, which he could not provide in respect of the Bismil district or even the Diyarbakır province as he did not have any.
125. Also on 23 November 1995 Harun Aca, in his capacity as a person suspected of an offence, made a similar statement to the Bismil public prosecutor. In addition, Harun Aca declared that he had a document proving that he had participated in an operation conducted in the Kelmehmet mountains near Mardin between 19 July and 6 September 1994, and submitted, inter alia, a letter of commendation from the command of the Mardin gendarmerie commando battalion at Kızıltepe certifying that he had participated in an operation conducted between 19 July and 20 August 1994 in the Şırnak and Mount Cudi area. He again denied that he had provided any information to Captain İzzet or NCO Ahmet and maintained that he knew nothing about the disappearance of Mehmet Salim Acar, whom he had not seen since 1988.
126. On 30 November 1995 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Captain İzzet Cural in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.
127. On 19 December 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to provide him with the current address of Sergeant Ahmet Babayiğit for the purposes of obtaining a statement from him. On 25 December 1995 Captain İrfan Odabaş, the Bismil gendarmerie district commander, provided the Bismil public prosecutor with Ahmet Babayiğit's current address.
128. On 27 December 1995 Captain İzzet Cural, in his capacity as a person suspected of an offence, made a statement to the Ankara public prosecutor Osman Aşrafoğlu in which he declared that, in response to a report that Mehmet Salih Acar had been abducted, an investigation by the gendarmerie had been carried out which had not resulted in finding the abducted person or in identifying the perpetrators. He further stated that he did not know where Mehmet Salih Acar currently was.
129. On 8 January 1996 the Bismil public prosecutor took a further statement from Halise Acar, who maintained the account contained in her previous statement and complaint. She added that, three days before his disappearance, her husband had had a quarrel with Mehmet Aça about a water pump. Mehmet Aça was the brother of Harun Aça, a former PKK member who had later joined the security forces, for whom he was still working. That is why she believed that her husband had been taken away by the security forces acting on instructions given by Harun Aça.
130. On 9 January 1996 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Ahmet Babayiğit in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.
131. On 26 January 1996 Captain İrfan Odabaş, the Bismil gendarmerie district commander, informed the Bismil public prosecutor, in reply to his request of 16 October 1995, that no officers or NCOs called Ahmet were currently serving under his command. Captain Odabaş further informed the Bismil public prosecutor that the expert gendarmerie sergeant Ahmet Uyar had been ordered to report to the public prosecutor's office as he was present, that the expert sergeant Ahmet Babayiğit was currently on sick leave and that Ahmet Korkmaz had been killed on 31 October 1994 in an armed clash in Bismil.
132. On 5 February 1996, at the request of the Bismil public prosecutor, Ahmet Babayiğit made a statement at Dikmen police station to the police constable Mehmet Cabbar. He declared that he knew nothing about the alleged abduction of Mehmet Salih Acar by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie apparently acting on instructions given by Harun Aça. He did not remember any incident of that nature. He further stated that he did not at present remember the persons named Captain İzzettin and NCO Ahmet.
133. In a certified document, dated 25 February 1996 and signed by the Mardin gendarmerie commando battalion commander Major Hurşit İmren, it is stated that Harun Aça, who had been serving as a village guard under the orders of the Derik gendarmerie district command since 27 May 1994, had participated in operations carried out from 19 July to 6 September 1994 by the Mardin gendarmerie commando battalion command in the Şırnak province and the Kelmehmet mountains.
134. In the Bismil public prosecutor's decision of non-jurisdiction of 17 June 1996, the stated offence is abuse of authority. Mehmet Salih Acar is mentioned as the victim of this offence, Hüsna and Halise Acar and the applicant as the complainants, and the gendarmes İzzet Cural and Ahmet Babayiğit and the village guard Harun Aça as the accused. Since, at the material time, İzzet Cural and Ahmet Babayiğit were serving at the Bismil gendarmerie and Harun Aça was working with the gendarmerie, the Bismil public prosecutor held that he was not competent to deal with the matter and that, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the case was to be determined by the Diyarbakır Provincial Administrative Council.
135. On 26 June 1996 the Diyarbakır Provincial Administrative Council transmitted the decision of non-jurisdiction of 17 June 1996 and the relevant case file on the preliminary investigation carried out by the Bismil public prosecutor to the Diyarbakır provincial gendarmerie command, requesting it to examine the facts on which this decision was based, to conduct – if necessary – an investigation and to communicate the results thereof.
136. On 24 September 1996, in connection with the applicant's petition of 27 July 1995 (see paragraphs 90 and 111 above), Captain İrfan Odabaş took a statement from Harun Aça who declared that between 19 July and 6 September 1994 he had participated in the security forces' operations in the provinces of Şırnak and Mardin. He denied the accusation against him, stating that he had nothing to do with the matter and that he had no information about it. He added that, since he had taken up his duties with the gendarmerie, he had only been able to go on leave when given permission to do so and that his leave record could be checked at his duty station.
137. On 9 December 1996, in connection with the applicant's petition of 27 July 1995, İrfan Odabaş took statements from İlhan Ezer, İhsan Acar, Hüsna Acar and Halise Acar.
138. İlhan Ezer made the following statement:
“On the day of the incident I was eating lunch in the field below Ambar with Mehmet Salih Acar, who has been abducted. A grey Renault TX-model car without licence plates with two people in it drove towards us. They asked for our identity cards. After looking at them, they returned my card, but did not return that of my friend Mehmet Salih Acar. They told us to get into the car. I said that I definitely would not get into a car belonging to people I did not know. Mehmet Salih Acar got into the car without making any objection. The men said: 'Mehmet Salih will show us a field. We will bring him back', and they drove off towards Ambar. I then asked Mehmet Salih's son whether he knew the men. He said 'No', so I told him to go to the village and tell the people that strangers had taken his father away. The child went to the village. I know Captain İzzet and NCO Ahmet very well. If I saw them in the village, I would recognise them. The men who came were definitely not them. If they had been, I would have recognised them. I had not seen the men who abducted Mehmet Salih Acar before and did not recognise them. One was about 25 to 26 years old and the other 18 to 20. Both were wearing hats and the older one was wearing glasses and had a moustache.”
139. İhsan Acar's statement to İrfan Odabaş reads:
“On the day of the incident I was working with my father in the field we leased. Our neighbour İlhan Gezer was working alongside us on his own land. We had gone under a tree in our field to eat our lunch, but there was a distance of about ten metres between my father and myself. Then a grey Renault without licence plates with two people in it came towards us. It stopped by my father. İlhan Gezer also came over. They began to talk to the two of them. I was watching because I was further away. They asked my father and Uncle İlhan for their identity cards. They then returned İlhan Gezer's card. The conversation between them was in Turkish. Then, they took my father towards Ambar. There was no argument or struggle when they took him away. The men who came had a Kalashnikov rifle. They wore hats and the older one had a moustache. Then İlhan Gezer asked me if I knew them. After answering that I did not know them, I ran to inform the village. Since that day we have not heard anything from my father.”
140. Hüsna Acar made the following statement:
“Mehmet Salim Acar is my son. He has been missing since the date of the incident. I have no direct knowledge of the disappearance of my son Mehmet Salim Acar. I only know what my grandson İhsan Acar told me when we came to the village on the day of the incident. I do not know anything more than this. I do not know who abducted my son Mehmet Salim Acar or for what reason. I do not think that the gendarmerie took my son. The only thing that I want from my State is for my son to be found dead or alive and to be handed over to me. Apart from this, I have no complaint against Captain İzzet or Expert Sergeant Ahmet. I do not know these people and I have no feelings of animosity towards them. Because my son is not a terrorist, we had not had any dealings with the gendarmerie until then. I want those who abducted my son to be found and punished. Apart from that, I do not wish to complain about anyone.”
141. Halise Acar made the following statement to İrfan Odabaş:
“Mehmet Salim Acar, who has gone missing, is my husband. On the day of the incident he had gone to work in the field with my son İhsan Acar. My son later came running back to the house saying that Mehmet Salim Acar had been made to get into a car by two people whom he did not know and had driven off towards Ambar. I did not see the abduction of my husband Mehmet Salim Acar myself. I do not know who took my husband or why. We have been unable to get any news from him. All I want from the State is that they find my husband dead or alive and hand him over to me. I am making a formal complaint against those who abducted my husband. But I have no complaint against Captain İzzet or Expert Sergeant Ahmet as I do not believe that they abducted my husband. At the moment I am living with my mother-in-law and her daughter at [address]. My mother-in-law's son Tahsin Acar works in Sweden and has filed various petitions in order to find my husband.”
142. On 10 December 1996 the applicant wrote a letter to the President of the Diyarbakır Provincial Administrative Council, claiming that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca. The applicant further stated that an officer of the anti-terrorism branch of the Diyarbakır police had investigated the case in July 1995 and that the Bismil gendarmerie had admitted that his brother was being held by them. However, Captain İzzet Cural had later told this police officer that the person who was detained was not Mehmet Salim Acar but someone called Mahmut Acar, from Nusaybin. The applicant also described a telephone conversation he had had on 22 September 1995 with Captain İrfan Odabaş, who had replaced Captain İzzet as commander of the Bismil gendarmerie and who had asked the applicant whether a ransom had been demanded. The applicant had told Captain Odabaş that no such demand had been made, but that he would be willing to pay a ransom. On 27 September 1995 the applicant's family had been contacted by someone demanding a ransom in exchange for his brother's release. On 5 October 1996 another person – identified by the applicant as Namık Keser, from Diyarbakır – contacted the family and said that Mehmet Salim Acar was being held by the Diyarbakır gendarmerie and would be released if the applicant agreed to work as an informer for the authorities, which the applicant refused to do.
143. On 25 December 1996 İrfan Odabaş took a statement from Ahmet Babayiğit, who declared that he had not seen the abduction of Mehmet Salim Acar and that he knew nothing about it.
144. On 1 January 1997 İrfan Odabaş took a statement from Captain İzzet Cural, who declared:
“We received a report that Mehmet Salim Acar from Ambar, which lies within our command's jurisdiction, had been abducted by unidentified persons. I was at the unit centre when the report was received. I immediately gave the necessary information to the authorities concerned. We started to conduct the necessary searches at the entrances to and the exits from Bismil and Ambar, but we could not find the men in question. I do not know who abducted Mehmet Salim Acar or for what purpose. In spite of all our searches, we were unable to find the perpetrators or the victim. As a result of our search and investigation in and around the village, we established that he had been abducted by two persons, but we were unable to establish their identities. We definitely did not apprehend or detain this man, as alleged. It has still not been possible to obtain any information about the abduction of Mehmet Salim Acar.”
145. İrfan Odabaş submitted the report on his investigation to the Diyarbakır Provincial Administrative Council on 15 January 1997. The report names Tahsin Acar as the complainant, İzzet Cural, Ahmet Babayiğit and Harun Aca as the persons accused of the offence of abuse of authority, and İlhan Ezer, Halise Acar, İhsan Acar and Hüsna Acar as witnesses. The report contains, inter alia, a summary of the statements taken from the accused and the witnesses, and Captain Odabaş's advisory opinion that the applicant's claims remained unsubstantiated and found no support in the statements obtained, which indicated that the accused had not been involved. He therefore concluded that there was no need to open a judicial or administrative inquiry and that a decision not to prosecute would be appropriate.
146. In its unanimous decision of 23 January 1997, in which Hüsna Acar is named as the complainant, and Captain İzzet Cural, NCO Ahmet Babayiğit and Harun Aca as defendants, the Diyarbakır Provincial Administrative Council found that the accusation of abuse of authority allegedly committed by former Bismil gendarmerie district commander Captain İzzet Cural, NCO Ahmet Babayiğit and temporary village guard Harun Aca by having abducted Mehmet Salih Acar in August 1994 was not supported by evidence against the defendants that could be regarded as sufficient for instituting proceedings against them. It therefore decided to reject the request to take proceedings, in accordance with section 5 of the Law on the prosecution of civil servants and Article 164 of the Turkish Code of Criminal Procedure.
147. In its unanimous decision of 14 January 2000, following ex officio appeal proceedings, the Second Division of the Supreme Administrative Court held that the evidence available was insufficient to send the defendants for trial and thus upheld the decision of 23 January 1997 by the Diyarbakır Provincial Administrative Council.
148. On 24 August 1995 Minister Algan Hacaloğlu informed the applicant that his petition of 26 July 1995 (see paragraph 89 above) had been transmitted to the Diyarbakır Provincial Governor.
149. On 8 September 1995, on the basis of the applicant's allegations set out in his petition of 26 July 1995, statements were taken from İhsan Acar, İlhan Ezer, Halise Acar and Hüsna Acar at the Bismil central gendarmerie command.
150. İhsan Acar made the following statement:
“I live in the village of Ambar with my family. Tahsin Acar is my paternal uncle. Mehmet Salim Acar is my father. Last summer we were irrigating the cotton field. I, my father and İlhan Ezer from the village of Üçtepe decided to take a break for lunch in the shade of a tree. A car approached us. It was a dark grey or grey Renault car without licence plates. It stopped near to us. Two men got out of the car. One was short and wearing a hat. The other one was young, tall and wearing a hat and glasses. They asked my father and İlhan from Üçtepe to show their identity cards. They refused, saying: 'We will not show you our identity cards because we do not know who you are.' The two men replied that they were from the police. So my father and İlhan showed them their identity cards. The two men looked at the cards and gave İlhan his card back. They did not give my father his card back. They spoke to us in Turkish. They said to my father: 'Get into the car with us, you will show us a field.' They made my father get into the car by force. They told me: 'We will bring your father back in half an hour.' They left and did not come back. I ran home to warn my mother and I told her what had happened. My mother left in order to tell the muhtar about what had happened. ... I had never seen those men before. I have never seen them in the area. They do not resemble any person living in my village. Moreover, they never got out of the taxi. It was my father and İlhan who approached the car in order to talk to them. They were not military or gendarmes. They both had moustaches. They had weapons under the seats of the car. Afterwards, we went to the Bismil tribunal and made statements. A search for my father was begun, but, to date, it has not led to any news from him.”
151. İlhan Ezer declared:
“I live in the village of Üçtepe. I do not share any property with Mehmet Salim Acar, but we have a cotton field in the village of Ambar. We planted cotton in the same place as him. I do not know his brother Tahsin Acar. I only heard his name in connection with the letter in question. This is what I can tell you about the events. In August last year I was irrigating the cotton we had planted. I went in the shade of a tree to have lunch. I noticed a dark grey-coloured taxi coming from the direction of Ambar. The vehicle had no licence plates. It stopped near to us. I was with Mehmet Salim Acar and his son. We were asked to show our identity cards. We refused, as we did not know these two men. A discussion took place between us and the two men, but we still did not show our identity cards. They said they were policemen. So we asked them to show us their police identity papers. They did not do so. They took our identity cards and told us that they would give them back. They looked at them and asked us to get into the car. We did not get into the car. They forced us, but I continued to refuse to get in. I noticed that at that moment Mehmet Salim Acar kept silent, he did not speak. They returned my identity card to me and the card of Mehmet Salim Acar. Subsequently, Mehmet got into the car. They told me: 'Your friend will accompany us to a field and then he will come back.' He left and did not return. I had never seen those two men before. They were dressed in civilian clothes. I did not know them. They were both wearing hats. I had never seen them before in the area. ... The two men were not officers of the Bismil gendarmerie district command. As I have already pointed out, I had never seen them before. Nor had Mehmet Salim Acar; he did not behave as if he knew them.”
152. Halise Acar stated that on the day in question her husband Mehmet Salim Acar and their son İhsan had left in the morning to work in a field close to the neighbouring village of Sarıtoprak. Around noon, her son had come running home, telling her that his father had been taken away in a car without licence plates. He also told her that there had been two men in the car. Halise Acar further stated that this Renault taxi had already been seen several times in the village. Her daughter had told her that she had seen her father in that car on the Dicle river bank and that she had thought that he was going somewhere. Halise Acar lastly stated that her family had alerted all the administrative authorities and the Bismil gendarmerie that her husband had disappeared, that they had made statements about the matter to the Bismil public prosecutor and that her husband had been searched for but without any results to date.
153. Hüsna Acar declared that she was the mother of Mehmet Salim Acar, that she was living with his family and that, in August 1994, her son had left in the morning to irrigate the cotton field. Her grandson, who had accompanied Mehmet Salim, had come running home around noon, saying that a car had stopped close to his father, that he had been told that they were going to look at a field and that they would return, that he had waited for an hour and that nobody had come back. Hüsna Acar further stated that nothing had been heard from her son since, that the Bismil gendarmerie had been informed and that the Bismil public prosecutor had summoned and questioned her and her relatives.
154. On 3 October 1995 the Ministry of Foreign Affairs, acting on the Commission's decision of 4 September 1995 (see paragraph 4 above), requested the Ministry of Justice and the Ministry of the Interior to gather and transmit information about the case of Mehmet Acar who, according to his brother Tahsin Acar, had been forcibly taken away by plain-clothes police officers and placed in detention. The respective ministries were requested to inform the Ministry of Foreign Affairs whether Mehmet Acar had been taken into detention, whether any proceedings had been taken against him and, if not, whether there were indications that he had been abducted by or joined the PKK.
155. By a letter of 22 November 1995, the Diyarbakır Provincial Governor, Mehmet Doğan Hatıpoğlu, informed the Ministry of the Interior that an investigation into the facts alleged by the applicant had been carried out. The conclusions of this investigation were that Mehmet Selim Acar had not been apprehended by Captain İzzet Cural and NCO Ahmet Korkmaz (deceased in the meantime) or by Hasan Acar. No mention of a taking into custody of Mehmet Selim Acar had been found in the custody records of the Bismil gendarmerie district command. The victim had been abducted by two unknown persons claiming to be policemen in a dark grey-coloured taxi without licence plates. The subsequent investigation of these leads had not led to any results. The matter had been raised before the judicial authorities and the Bismil public prosecutor had conducted the necessary investigations. The two eyewitnesses to the incident, İhsan Acar (Mehmet Selim Acar's son) and İlhan Ezer had made statements in which they had declared that they did not know the identities of the persons who had abducted Mehmet Selim Acar, that they knew gendarmerie captain İzzet Cural as well as the other officers of the gendarmerie, and that the two men who had abducted Mehmet Selim Acar were certainly not gendarmes. The Governor finally stated that Tahsin Acar's other allegations concerning the detention of his brother at the Bismil gendarmerie command thus remained wholly unfounded.
156. In a letter dated “November 1995”, the Diyarbakır gendarmerie regional commander, referring to a letter of the General Gendarmerie Command of 7 November 1995 and a letter of the provincial gendarmerie command of 24 November 1995, informed the applicant – in reply to a complaint filed by Hüsna Acar and/or the applicant to the General Gendarmerie Command (see paragraph 92 above) – that, according to the results of an investigation that had been carried out, Mehmet Selim Acar had not been apprehended by gendarmes but had been abducted in a car without licence plates by two unknown persons claiming to be plain-clothes policemen.
157. Appended to this letter were statements taken from İhsan Acar and İlhan Ezer, who had seen the incident, including a certified statement made by İlhan Ezer on 25 October 1995 to the Bismil notary public. This statement reads:
“While we were working in the cotton field situated within the boundaries of the village of Ambar in the district of Bismil, province of Diyarbakır, we took shelter in the shade of a tree in order to take a rest. A taxi arrived from the direction of Ambar. It was a Renault TX-model car without licence plates. Mehmet Salim Acar, his son İhsan Acar and I were sitting in the shade. We were asked to show our identity cards. We refused. The men then announced that they were policemen and took our identity cards. After looking at them, they gave them back. They asked us to get into the car. İhsan Acar and I were not willing to get into the car. Mehmet Salih Acar got into the car without objecting. They told us: 'Your friend is going to accompany us to a field and he will return later.' We have not had any news from our friend since then. I had never seen the men who arrived in the car before, I do not know them. It is being said that they were gendarmerie captain İzzet Cural and NCO Ahmet, of the central gendarmerie. I know these two men personally; they are not the ones who abducted my friend.”
158. On 18 December 1995, in reply to the petition filed by Hüsna Acar and/or the applicant (see paragraph 92 above), the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition registered under no. 4467/2872 had been examined. The Governor of Diyarbakır had conducted an investigation into the matter, in the course of which statements had been taken from İlhan Ezer and İhsan Acar, who had both stated that gendarmerie captain İzzet Gürlo and NCO Ahmet Korkmaz had not taken Mehmet Salim Acar away but that he had been abducted by two unknown men claiming to be police officers, who had made him get into a car without licence plates. The applicant was further informed that an investigation had been opened by the Bismil public prosecutor and was still ongoing.
159. In a letter of 14 May 1996 sent by fax, apparently on the basis of the applicant's reply of 20 March 1996 to the observations submitted by the Government to the Commission (see paragraph 4 above), the Ministry of Justice requested the Bismil public prosecutor to examine the various allegations set out in this reply of 20 March 1996.
160. On the same day the Bismil public prosecutor informed the Ministry of Justice that the investigation into the incident referred to by the applicant had been registered under no. 1994/445 in the preliminary investigation register at the Bismil public prosecutor's office. He further informed the Ministry that, in the course of this investigation, statements had been taken from the complainants Halise and Hüsna Acar, from the witnesses İhsan Acar and İlhan Ezer, and from the accused, Sergeant Ahmet Uyar, former Bismil gendarmerie commander İzzet Cural and Harun Aça, and that a request for judicial assistance had been sent to the Ankara Chief Public Prosecutor for the purposes of obtaining a statement from Ahmet Babayiğit. The Bismil public prosecutor lastly stated that, upon receipt of Ahmet Babayiğit's statement, he would issue a decision.
161. On 21 August 1996 the Ministry of the Interior transmitted Hüsna Acar's petition of 5 August 1996 (see paragraph 95 above) to the Diyarbakır police headquarters, requesting the latter to investigate the allegations set out in the petition, to institute the required proceedings and to communicate the results of the investigation to the Ministry of the Interior and to Hüsna Acar.
162. On 29 August 1996, referring to an order of 21 August 1996, the Diyarbakır police headquarters informed the Bismil District Governor that Hüsna Acar's daughter Meliha Dal was living in Diyarbakır and transmitted a statement that had been taken from her on 29 August 1996 in connection with the petition filed with the Ministry of the Interior on 5 August 1996 by Hüsna Acar.
163. In her statement Meliha Dal declared that she had lived in Diyarbakır for seven years. She stated that Mehmet Açan, who – like her older brother Mehmet Salim Acar – was living in Ambar, had had a quarrel with her brother in the café about a water pump in the course of which Mehmet Açan had threatened her brother with “disappearance” within three days. Three days later the Bismil gendarmerie station commander, Captain İzzettin, and another person had come to the village in a car without licence plates and asked for Mehmet Salim Acar. He was told that Mehmet Salim was in the cotton field. Captain İzzettin had then gone to the cotton field, where her brother was with his son İhsan Acar and a man called İlhan. Captain İzzettin asked Mehmet Salim Acar to show him the way to a place, made Mehmet Salim get into the car and left. Nothing had been heard from Mehmet Salim since. According to Meliha Dal, Captain İzzettin had handed Mehmet Salim Acar over to the brothers Mehmet and Harun Açan in return for money. Her mother Hüsna and her sister-in-law Halise knew this but, as Captain İzzettin was involved and as he was a State official, they could not tell the truth as they were frightened of being killed as well. Meliha Dal had heard from them what she was now stating.
164. By a letter of 25 December 1996, sent in reply to Hüsna Acar's petition of 11 December 1996 (see paragraph 99 above), the Office of the President of Turkey informed Hüsna Acar that an instruction had been issued to the Batman Provincial Governor to investigate her claim and to inform the Office of the President of the result of the investigation. Her petition was transmitted to the Batman Provincial Governor on 27 December 1996.
On 2 January 1997 the Office of the Prime Minister wrote a letter with a similar content to Hüsna Acar in respect of another petition she had sent on 11 December 1996.
165. On 17 January 1997 the office of the Governor of Diyarbakır informed Meliha Dal, in reply to her petition of 25 November 1996 (see paragraph 97 above), that an investigation had been conducted. According to the findings of this investigation, Mehmet Selim Acar had been abducted from his field in July 1994 by two unknown armed persons. The gendarmerie district command had been informed about the matter and had carried out an investigation. According to statements obtained from witnesses, the two perpetrators were unknown in the region. The witnesses further specified that they personally knew Captain İzzet Cural, NCO Ahmet Korkmaz and Harun Aca and that these three men were definitely not among the perpetrators. When the Bismil gendarmerie command had been informed of the abduction, it was Captain İzzet Cural himself who had given the necessary instructions, and the investigation conducted by the Bismil public prosecutor was currently ongoing.
166. On 16 February 2000 Meliha Dal informed the Diyarbakır public prosecutor that she had seen her brother Mehmet Salih Acar on an NTV news broadcast on 3 February 2000. Her brother's name and surname had been mentioned in this broadcast. It was reported that her brother and two others had been apprehended in Diyarbakır and taken into detention in Muş. She requested the Diyarbakır public prosecutor to investigate the matter and to inform her whether her brother was alive or dead. She sent an identical petition to the Governor of Diyarbakır on 18 February 2000.
167. On 24 March 2000 the applicant submitted a petition to the President of Turkey in relation to the disappearance of his brother Mehmet Salim Acar. In this petition, the applicant stated that, in the NTV news broadcast on 3 February 2000 around 11 p.m., it had been reported that three persons had been apprehended and taken into detention in Muş and that one of them was called Mehmet Salih Acar. His family had then applied to the Bismil police, the Bismil public prosecutor, the Governor of Diyarbakır, the public prosecutor at the Diyarbakır National Security Court, the Diyarbakır anti-terrorism police authorities and the Diyarbakır provincial gendarmerie authorities. They were told by the anti-terrorism branch that Mehmet Salim Acar did not wish to see them and they were not given any information about his whereabouts or his condition. The applicant requested the President to intervene in order to find out what had happened to his brother.
168. In a written statement dated 27 March 2000, Meliha Dal declared that she had gone to the Bismil public prosecutor to enquire about her brother Mehmet Salim Acar. She was told that three men by the name of Mehmet Salim Acar had been apprehended but that their particulars (parents' names, date and place of birth) did not match those of her brother. When she left the public prosecutor's office, the latter's clerk, Mehdi, told her that her brother was alive, that he was in the hands of the State and that he had been sent into exile. He further told her that they had scared her brother by threatening to destroy his family and that this was why he was concealing himself from them.
169. By a letter of 18 April 2000, Meliha Dal informed the Diyarbakır public prosecutor that two men had been sent to her house and that she had made statements about having seen her brother on television and having heard his name on television during a news broadcast in which it was reported that three men had been apprehended in Muş. The public prosecutor had, on her behalf, written and sent a petition to Muş. The public prosecutor had said at the end of their meeting that, as far as he understood, her brother was in the hands of the authorities in Muş.
170. By a letter of 19 April 2000, the applicant's representative informed the European Court of Human Rights that Meliha Dal, Hüsna Acar and Halise Acar had been watching the news on NTV on 3 February 2000 around 11 p.m. when the newsreader announced that four men had been apprehended in Diyarbakır, one of whom was named as Mehmet Selim Acar. Pictures of the apprehended men had been shown and they had recognised Mehmet Selim Acar as one of them. The women had continued to watch television all night and they had seen him again the following day at 8 a.m. The applicant's representative further informed the Court that, on 4 February 2000, the three women had gone to the Bismil public prosecutor to report their sighting on television of Mehmet Selim Acar and that, on 16 February 2000, Meliha Dal had filed a petition about the matter with the Diyarbakır public prosecutor and, on 18 February 2000, with the Governor of Diyabakir. The family had further attempted to obtain a video recording of the NTV news broadcast of 3 February 2000, but without success. Referring to the applicant's petition of 24 March 2000 to the President of Turkey, the applicant's representative finally informed the Court that, so far, no information had been obtained from the authorities contacted by the applicant about the whereabouts of Mehmet Selim Acar.
171. Appended to this letter were, inter alia, Meliha Dal's petitions of 16 and 18 February 2000 (see paragraph 166 above), a statement dated 23 March 2000 in which Meliha Dal had declared that she had seen her missing brother on television on 3 February 2000, the applicant's petition of 24 March 2000 (see paragraph 167 above), Meliha Dal's statement of 27 March 2000 (see paragraph 168 above), an undated statement by Meliha Dal in which she declared that she had seen her brother Mehmet Salim Acar on a television news broadcast on 1 February 2000 around 11 p.m. and 2 February 2000 around 8 a.m., an undated statement by Halise Acar stating that she had seen her husband Mehmet Salih Acar on television one day, and an undated statement by Hüsna Acar stating that, quite a long while after his disappearance, she had seen her son Mehmet Salih Acar on television.
172. On 28 April 2000, having taken note of the letter of 19 April 2000 and the appended documents, the Court requested the Government to submit a copy of the NTV news broadcasts referred to by the applicant's representative, to confirm that Mehmet Salim Acar had in fact been shown and named during these broadcasts, to inform the Court of the circumstances of Mehmet Salim Acar's arrest, and to confirm whether he was currently being detained and, if so, to indicate in which detention facility.
173. By a letter of 22 May 2000, in response to the Court's request of 28 April 2000, the Diyarbakır Chief Public Prosecutor informed the Ministry of Justice that a person named Mehmet Selim Acar (son of Süleyman and Pevruze, born in 1965 in Sivrice) had been detained on 9 December 1996 and was currently serving a prison sentence in Gaziantep, and that a person named Salih Acar (son of Musa and Besnadan, born in 1979 in Batman) had been detained on 19 April 2000 and was currently being held in pre-trial detention in Batman.
174. On 30 May 2000, in response to the complaint filed by Meliha Dal, the Diyarbakır public prosecutor decided not to open an investigation. This decision reads:
“The complainant stated in her petition that her brother had disappeared six years ago and that nothing had been heard from him since, that she recognised one of the men shown on a news programme in February about persons apprehended during operations conducted against the terrorist organisation Hizbullah, that this man's name was the same as her brother's, and that she wished to be given the opportunity to watch a video recording [of the news broadcast] so that she could identify her brother.
It has been stated in the Muş Chief Public Prosecutor's decision of non-jurisdiction dated 2 May 2000 that the person detained in the province of Muş – a man called Mehmet Salih Acar, born in 1964 and the son of Yahya and Ayşe – is not the complainant's brother, and it appears from the above decision of non-jurisdiction and from the register of births that the person detained in Muş, who was put on trial by the Chief Public Prosecutor of the Van National Security Court, is not the complainant's brother.
It is therefore concluded, in accordance with Article 164 of the Code of Criminal Procedure and subject to the right of appeal, that there is no basis for pursuing the matter ...”
175. On 6 July 2000 the Government informed the Court that the person apprehended and named in the NTV news broadcast was not the applicant's brother and that there were several persons in detention with similar names to the applicant's brother. According to the Government, it was in all probability a case of a confusion of names.
176. On 13 July 2000 the Court reminded the Government of its still outstanding request of 28 April 2000 to be given the video recording of the NTV news broadcast referred to by the applicant's representative.
177. In a statement dated 28 September 2000, submitted to the Court on 4 October 2000, Meliha Dal declared that she had seen her brother Mehmet Salim Acar in an NTV news broadcast on 2 February 2000 at 8 p.m. and 3 February 2000 at 8 a.m.
178. On 18 October 2000 the Court requested the applicant's representative also to submit a video recording of the news broadcast referred to by the applicant's relatives.
179. By a letter of 24 January 2001, the NTV administration informed the applicant's representative that it could not grant his request. The required footage could only be made available upon a request made by the applicant himself. On the same day the applicant sent by fax a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.
180. In the meantime, on 17 January 2001, the Government had submitted to the Court a video recording containing the NTV news broadcasts of 3 February 2000 at 11 a.m. and 11 p.m.
181. On 16 February 2001 the applicant sent a reminder of his request of 24 January 2001 to the NTV administration, explaining that the video recording submitted by the Government to the Court did not contain the relevant news broadcasts.
182. On 20 February 2001 the applicant informed the Court that the video recording submitted by the Government did not contain the relevant news broadcasts, namely, those of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.
183. On 26 February 2001 the Court requested both parties to submit a video recording containing the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.
184. On 30 March 2001 the applicant informed the NTV administration that he had received the video recordings of the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m., but that these did not contain the relevant news item. He requested the NTV administration to search for the news item reporting the arrest of four men in Diyarbakır and their subsequent taking into detention in Muş or Van in the television news programmes broadcast between 31 January 2000 and 6 February 2000.
185. By a letter of 2 May 2001, in reply to a request made by the Government in April 2001, a lawyer employed by NTV informed the Government that their request to be provided with a copy of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. could not be met as it concerned broadcasts of more than one year ago. It was pointed out that, under section 28 of Law no. 3984 and Article 23 of the Regulation on Procedures concerning Radio and Television Programmes, broadcasting organisations were obliged to keep copies of each broadcast programme for one year. The Government informed the Court of this outcome on 13 June 2001.
186. Since approximately 1985, serious disturbances have raged in south-east Turkey between the security forces and the members of the PKK, a proscribed terrorist organisation under Turkish law. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
187. Two principal decrees relating to the south-eastern provinces of Turkey have been issued under the Law on the state of emergency (Law no. 2935 of 25 October 1983) and were in force at the material time. The first, Decree no. 285 (of 10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the gendarmerie Public Peace Command are at the disposal of the regional governor.
188. The second, Decree no. 430 (of 16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
189. Article 125 of the Turkish Constitution provides as follows:
“All acts and decisions of the administration are subject to judicial review ...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
190. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
191. The Turkish Criminal Code makes it a criminal offence:
– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to issue threats (Article 191);
– to subject an individual to torture or ill-treatment (Articles 243 and 245);
– to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450).
192. For all these offences, complaints may be lodged, under Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, in accordance with Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
193. If the alleged perpetrator of a crime was a State official or a civil servant at the material time, permission to prosecute must be obtained from local administrative councils (the executive committee of the provincial assembly). An appeal lies against a local council decision to the Supreme Administrative Court; a refusal to prosecute gives rise to an automatic appeal of this kind. If the suspect is a member of the armed forces, he comes under the jurisdiction of the military courts and is tried in accordance with the provisions of Article 152 of the Military Criminal Code.
194. Any illegal act by a civil servant, be it a criminal offence or a tort, which causes pecuniary or non-pecuniary damage may be the subject of a claim for compensation in the ordinary civil courts. Under Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts under Article 46 of the Code of Obligations and awards may be made for non-pecuniary damage under Article 47.
195. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
196. 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.
197. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 187 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to the administrative council. These councils are composed of civil servants, chaired by the governor. A decision by the council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
VIOLATED_ARTICLES: 2
3
38
5
6
8
VIOLATED_PARAGRAPHS: 2-1
6-1
8-1
NON_VIOLATED_ARTICLES: 2
NON_VIOLATED_PARAGRAPHS: 2-1