ITEMID: 001-61442
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ELÇI AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 8;Not necessary to examine P1-1;No violation of Art. 34 (former Art. 25);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 13. On 23 November 1993 at around 8.30 a.m. two plain-clothed policemen went to the applicant Tahir Elçi's office in Cizre. After being searched, the applicant was taken to the gendarmerie. At 10 a.m. six policemen, including the two who had detained the applicant, returned with him to search his office. They seized all the applicant's note-books, powers of attorney, case files (particularly concerning applications to the Commission - no. 21689/93 Özkan and 31 others v. Turkey, no. 21895/93 Cağirge v. Turkey and no. 20764/92 Ertak v. Turkey). His collection of newspapers (the pro-Kurdish Özgür Gündem, Özgür Halk and Rawson), magazines and books were also seized. The applicant signed a procès-verbal concerning his provisional detention. At 11 a.m. the policemen took the applicant to his home, where they made a search but did not seize anything. He was kept at the police station until being handed over to the Cizre gendarmerie command a day or so later.
14. He alleged that he was ill-treated by the Cizre police. He was stripped naked, insulted, threatened and beaten up. His testicles were squeezed and cold water was poured on him. This lasted about an hour. Then they took the applicant to the Cizre district gendarmerie command where he was kept, blindfolded, for a couple of days in a basement. Thereafter he was handed over to the Diyarbakır provincial gendarmerie command.
24. Throughout this time the applicants had to leave their children with neighbours.
32. On 10 December 1993 he was brought to court after a cursory medical examination by a doctor who, apparently being frightened of the gendarmes, did not mention the evidence of torture in his report. After his release, the applicant received treatment for kidney and stomach problems. (For further details see the summary of his oral evidence, §§ 123-132 below.)
35. The applicant alleged that during his detention he was severely beaten, threatened with execution, insulted, deprived of sleep and food and blindfolded much of the time. He stated that Tahir Elçi, Niyazi Çem and Meral Daniş Beştaş had been tortured with cold water.
40. During his detention he was taken to the toilet twice a day, at 6 in the morning and evening. It was impossible to use the toilet or get drinking water at other times. He received a slice of stale bread every 24 hours.
64. On 16 November 1993 the applicant was taken into custody when he was leaving the Diyarbakır State Security Court. He was transported to the Diyarbakır provincial gendarmerie command. In general he was made aware by his interrogators that the PKK confessor, Abdülhakim Güven, had alleged that he was in league with PKK prisoners, had acted as a courier for them, and had smuggled unlawful materials into prisons, e.g. a flick knife. The applicant denied the allegations.
65. The applicant's brother had been detained in the same prison as Mr Güven. Mr Güven also attended all interviews with clients. The applicant was confronted, whilst blindfolded, with Mr Güven. He signed certain statements, the contents of which he did not know, because of the psychological pressure brought to bear on him. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 235-239 below.)
66. On 16 November 1993 the applicant was taken into custody by gendarmes after leaving the Diyarbakır State Security Court around 4.30 p.m., together with Meral Daniş Beştaş, Mesut Beştaş and Baki Demirhan. He was transported to the Diyarbakır provincial gendarmerie command. When he was interrogated, he was questioned about the cases he had defended before the State Security Court. He was accused of assisting PKK detainees by acting as a courier and not charging fees for his work. He was told that the PKK confessor, Abdülhakim Güven, had made certain allegations about him and other local lawyers. The applicant denied these allegations. He signed various statements, the contents of which he did not know, under physical and psychological duress. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 240-248 below.)
67. On 30 November 1993 the applicant was arrested at another lawyer's office. After the official search report noted that nothing incriminating had been found, he was taken into custody by gendarmes. He was transported to the Diyarbakır provincial gendarmerie command. He was accused of being a member of and assisting the PKK, and of constantly defending PKK cases. He denied the allegations. The applicant signed certain documents under duress in order to avoid being tortured. He did not know their contents at that point as he had been blindfolded. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 249-255 below.)
72. At no point were the applicants ill-treated. They were dealt with in accordance with the law and their conditions of detention were acceptable.
76. Other evidence against the applicants consisted of their statements at the gendarmerie command, which they subsequently repudiated as having been made under duress. The State Security Court reserved the issue of the admissibility of those statements. The remaining evidence comprised incriminating documents such as PKK notes, receipts and newsletters, which the applicants alleged had been fabricated.
77. On 22 February 2001 the State Security Court suspended the proceedings for 5 years, to be taken up again should any of the applicants commit an offence of the same or more serious kind during that time; otherwise they would be definitively closed (see Law No. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999, paragraph 573 below).
78. Three Delegates of the European Commission of Human Rights took evidence in Ankara between 7 and 11 December 1998. The applicants, with the exception of Hüsniye Ölmez, appeared before the Delegates, as did several Government witnesses. The applicants' representatives stated that Ms Ölmez maintained her application even though she did not testify for fear of having to re-live the events and because she was pregnant at the time. The oral evidence may be summarised as follows:
1. Tahir Elçi
79. Mr Elçi was born in 1966. At the material time he was a practising lawyer in Cizre, but was now working in Diyarbakır.
80. In 1993 there had been some 10 practising lawyers in Cizre. He himself was registered at the Cizre Bar and handled different types of criminal cases. However, many people were taken into custody at that time and the applicant found himself more and more defending people before the Diyarbakır State Security Court.
81. On 23 November 1993 he was in his Cizre office at around 8.30 a.m. preparing a case with a client. Suddenly two armed officials entered his office and demanded that he accompany them to the Cizre police station. Two other officials waited outside. He was taken to the Cizre police headquarters, and his car was removed.
82. After waiting there for some time, Mr Elçi was taken back to his office by several other officials (requiring 2 or 3 vehicles). His office was searched. All his belongings were put in sacks, including many case files, notebooks, books (except legal text books), newspapers, magazines, an address book and other documents. Amongst the case files were several involving applicants to the European Commission of Human Rights: Ahmet Özkan and others v. Turkey (No. 21689/93), Cağirge and others v. Turkey (No. 21895/93) and Ertak v. Turkey (No. 20764/92). A further application by Süleyman Kutluk and 50 others was in the course of preparation. These Commission files were never returned to the applicant in their entirety, unlike the domestic files.
83. In answer to questions from the Commission Delegates, Mr Elçi claimed that a document purporting to have been found in his office headed “Comrade Elçi” with an “ERNK” stamp on it, was a complete fabrication and was not to be found in the document delivery report.
84. The officials had drawn up a short, hand-written report, concluding that nothing incriminating had been found. His brother, Ömer Elçi, being present, had signed the report.
85. The applicant was then taken to his house where another search was conducted, but nothing incriminating was found. He was returned to the Cizre police headquarters where his personal belongings (belt, money and wallet) were removed. He was blindfolded and put in a dark cell in the basement.
86. Later he was taken out of the cell by a large group of officials and kicked, beaten, threatened with his life and insulted. He was made to remove his clothes, cold water was poured over him and his testicles were squeezed. He was asked why he took cases concerning villagers who had been evacuated from their homes, and why he denounced Turkey abroad. He did not think this was an interrogation, rather the officials were venting their anger on him. This ill-treatment lasted some 15 to 20 minutes before he was returned to his cell.
87. One of the Cizre policemen involved in this was a certain Ramaran Hoca or Kanlıdere, who had already accosted the applicant in the street to check his identity. As a member of the Diyarbakır Human Rights Association, assisting destitute villagers at a time of great tension in Cizre, involving clashes between the PKK and State forces, threats had been made to him previously by the Cizre police.
88. During the night he was transferred to the Cizre district gendarmerie command, where he was kept blindfolded in a corridor in the basement. He was not ill-treated there. Either the next day or the day after, he was taken to the Diyarbakır provincial gendarmerie command where he was made to lie, double-blindfolded, on a cement floor. There were other detainees, including the applicant Mehmet Selim Kurbanoğlu, but nobody really talked to each other except in short whispers.
89. On the second or third day Mr Elçi was taken for interrogation. He was asked about his dealings with the PKK; when he said he had none, he was punched very hard.
90. Two days later he was interrogated again. He was confronted with Abdülhakim Güven, a prisoner and PKK confessor, whom Mr Elçi had known as a neighbour and fellow student. Mr Güven recounted that Mr Elçi had acted as a courier for him, taking notes to PKK aids in Cizre. Mr Elçi vehemently denied the allegations, whereupon he was beaten.
91. The Delegates of the Commission asked Mr Elçi about a statement made by Mr Güven that he had met a PKK connection called Beriwan at Mr Elçi's house. Mr Elçi denied this, suggesting that Mr Güven might have slandered him out of jealousy because of his success as a lawyer, whereas Mr Güven was a common criminal and murderer.
92. Mr Elçi claimed that two documents purporting to be records of interviews with him and a confrontation with Mr Güven were complete fabrications, as shown by the fact that he had not signed them.
93. A few days later he was taken in a vehicle to a field where his execution was simulated - officials fired a gun about 10 times and ordered him to talk. Mr Elçi shouted insults in reply. On the way back to the detention centre, he was again ordered to get out of the vehicle on a gravel road and a couple of shots were fired. He had been extremely frightened.
94. Three or four days later he was presented to the Public Prosecutor to whom he recounted his background. However, to avoid any fabrication of his statement, he refused to sign anything, whereupon he was insulted and returned to his place of detention.
95. Perhaps a couple of days later, Mr Elçi was to be presented to a court. He was taken into a room where his blindfold was removed and placed at a simple table where a bright light was shone in his face. He refused to sign a statement that was put in front of him, despite efforts to trick him into doing so. He was then taken to a back room, stripped naked and hosed down with cold, pressurised water, to the front of his body and genitals. His testicles were squeezed two or three times and he was freezing, aggravated by the fact that it was winter.
96. There were other people detained with him, including the applicant Fuat Hayri Demır, who at one point covered Mr Elçi with his jacket to protect him from the cold. He heard the applicant Hüsniye Ölmez moaning and crying. Niyazi Çem also called out to him. Mr Elçi was returned to the previous detention room where co-detainees said they had signed documents out of fear.
97. He was subjected to cold water hosing whilst naked on another day, together with Niyazi Çem, who was screaming. It seemed to last an hour and a half. Loud nationalistic music was played at the same time. They were ordered to sign or die. However, neither of them signed any document. Mr Elçi believed at that stage that he was indeed about to die.
98. Mr Elçi had only met Mr Çem when they had been detained together. The latter had been brought from İstanbul. Mr Elçi was not in custody at the same time as Mr and Mrs Şahin, who were also brought from İstanbul.
99. During his detention, Mr Elçi received generally only one piece of bread a day and was taken to the toilet twice a day. Despite the bitter winter cold, he was given no blanket. He sat on concrete in his own clothes. Some of the other detainees had a thin smelly blanket.
100. Mr Elçi had not been seen by a doctor when he was first detained. He was presented to a doctor on 10 December 1993, when he was taken to the Public Prosecutor. Apart from asking him whether he had any ailments, this doctor did not examine him, and Mr Elçi did not mention the ill-treatment, in order not to prolong his detention any longer. Anyway, he had no corroborating injuries on his body as far as he knew then.
101. Mr Elçi told the Public Prosecutor and the Diyarbakır State Security Court about the ill-treatment to which he had been subjected, but his impression was that he was not taken seriously. In the statement to the Prosecutor he was recorded as having complained of having been left naked with cold water being poured on him, of torture by electricity and of having had his testicles squeezed. However the electricity claim was incorrect. He had signed his statement to the Public Prosecutor without reading it over, as nothing detrimental had been said about him. From 10 December 1993 to 17 February 1994, Mr Elçi was detained on remand without further ill-treatment. On the latter date, he was discharged after recounting to the court his allegations of ill-treatment, and nothing had happened since, although the prosecution against him was still pending. At first he was accused of being a member of an illegal organisation, modified later to assisting members of that organisation.
102. Some time in 1995 or 1996, Mr Elçi was summoned by the police headquarters in Diyarbakır to give a statement about the treatment to which he had been subjected in Cizre. Some three years later, he was required by the prosecution office to undergo a medical examination which, naturally, disclosed nothing so long after the events. However, he repeated his earlier allegations. In the summer of 1998 he was informed that the Administrative Council of Cizre had decided not to pursue criminal proceedings against any of the Cizre officials allegedly involved in the matter. Mr Elçi objected to that decision but did not know what the outcome of that had been.
2. İmam Şahin
103. Mr Şahin was born in 1958 and was a practising lawyer in İstanbul at the material time.
104. On 7 December 1993, whilst the applicant was waiting to plead a case in the İstanbul State Security Court, he was taken into custody by policemen from the İstanbul Anti-Terror Department. From there, the applicant was taken to his home, where his wife was waiting, and a search was made. Both were taken back to the Anti-Terror Department before their children came home from school, so a neighbour agreed to look after them.
105. The officials were unable to explain why the couple had been detained, other than saying that they were acting on the instructions of the Diyarbakır gendarmerie. Mr and Mrs Şahin were kept together in the same cell until around 11 a.m. Two or three officers from Diyarbakir arrived and Mr Şahin was taken to a Turkish Airlines office where he paid for everyone's tickets to Diyarbakır, for which destination they left at 7 a.m. on 11 December 1993.
106. At Diyarbakır airport they were handed over to other officers and taken in a minibus, with their heads covered, to what he later learnt was the Diyarbakır provincial gendarmerie command.
107. Mr Şahin was not told about the charges against him. During interrogation he was accused of being involved in the closure of Eskişehir Prison, of being a PKK courier between various prisons, in some of which he had never set foot, and of denigrating Turkey. He acknowledged involvement in the campaign to close Eskişehir Prison.
108. He was asked questions about Abdülhakim Güven, whom he had never met directly. It was alleged that Mr Güven had used him as a courier. He and his wife were accused of defending left-wing and PKK cases.
109. It was five days later, when he was presented to the Diyarbakır State Security Court, that he was informed that Mr Güven had made formal allegations against him. He was not confronted with Mr Güven during his detention as far as he was aware, having been blindfolded throughout.
110. Mr Şahin had not made any applications outside Turkey on behalf of any of his clients. He had contacted the Human Rights Association and similar institutions about the allegedly inhuman conditions in the cell system at Eskişehir prison. He had not filed any applications for clients to the European Commission of Human Rights.
111. He had signed a confrontation record and statement which he subsequently disavowed, as the signature had been made under pressure after being tortured.
112. He was taken before an Investigating Judge who apologised for having to arrest him and his wife despite the two children, but he had been ordered to do so by his “chief”.
113. Mr Şahin was released on 17 February 1994, together with his wife. It took him two and a half years to recover from the experience and before he could resume his legal practice in İstanbul. In the meantime he performed his military service. He had no clients left when he started work again.
3. Arzu Şahin
114. Mrs Şahin was born in 1961 and was a practising lawyer in İstanbul at the material time.
115. On 7 December 1993 she had been at home when her husband telephoned around 10 a.m. to say that he had been taken into custody and that she should wait for him to be brought home by the police.
116. Four police officers and her husband arrived between 11-11.30 a.m. and she was told that she was also to be taken into custody. A search of about 40 to 45 minutes was made of the house and a report drawn up which they did not sign there. Nothing was seized. She asked a neighbour to look after their two children, as she was expecting to be away for several days. Mr and Mrs Şahin were taken to the First Branch of the İstanbul Police Headquarters, without being told of the reasons for their detention, other than a reference to unspecified instructions from Diyarbakır.
117. Around 4 a.m. on 11 December she and her husband were handed over to two plain-clothed officials from Diyarbakır, to where they flew at around 7 a.m. They were taken, head-covered, to a place called the JITEM at the Diyarbakır provincial gendarmerie command, according to the officials there. She claimed that the JITEM had no legal status.
118. In Diyarbakır they were not informed of what they were accused. The questions put to them were unrelated to any possible criminal offence. She was asked about her work for newspaper publishers whose editions included “Özgür Gündem”, a purportedly separatist newspaper. She was asked why she had married a Kurd and why she defended dissidents. She was told that she was a traitor and a separatist. No mention was made of European complaints.
119. It was only before the Public Prosecutor of the State Security Court, to whom she was presented on 21 or 22 December 1993, that she heard that Abdülhakim Güven had made specific allegations against her. She had not been confronted with him, as far as she was aware, being blindfolded throughout. The Prosecutor said that Mr Güven accused her of acting as a PKK courier, serving as a PKK lawyer for the newspaper, being financed by them and the like. It was true that she had signed a confrontation document concerning Mr Güven, but this was at the end of the alleged torture period when she was disoriented, intimidated and tricked into signing a document, the contents of which she had been unable to verify due to the blindfold.
120. The indictment dated 22 December 1993 concerning her and other detainees was not shown to her until 20 to 25 days after its issue, by her lawyers, when she was on remand at the Diyarbakır central maximum security prison.
121. The indictment mentioned that Mrs Şahin had drawn up documents which had been faxed to human rights associations in European countries. Mrs Şahin acknowledged having prepared documents which colleagues in Europe would have submitted to the European Commission of Human Rights. She also actively campaigned in Turkey against unlawful events and had spoken to foreign human rights delegations who had visited Turkey.
122. Prior to her arrest, she had visited a prison in Diyarbakır where she researched an article for “Özgür Gündem”, and had acted as the newspaper's representative in a civil defamation claim. During that visit, Abdülhakim Güven had been in the room. She had not taken up the defence of any PKK prisoners.
4. Nevzat Kaya
123. Mr Kaya was born in 1961 and at the material time was a practising lawyer in Diyarbakır.
124. On 18 November 1993 at about 3 or 4 p.m., three plain-clothed policemen went to the applicant's office which they searched even though they did not have the proper authorisation from the Public Prosecutor pursuant to Articles 58 and 59 of the Law on Advocates.They had had Mr Kaya's agreement. A record of the search was drawn up, which he signed. Nothing was seized.
125. He was then taken into custody at the Diyarbakır provincial gendarmerie command without any reasons being given. Prior to that time, he knew that other colleagues of his had been taken into custody by the JITEM, but he was detained by the police, so he made no connection with the previous events. On arrival at the police station he was told that he had been detained on the JITEM's instructions. His personal belongings were removed and he was taken for a medical examination before being handed over to JITEM officers at the hospital.
126. During interrogation he was told that he had PKK connections, about which he was asked. It was said that he was a PKK lawyer. He was confronted with someone purporting to be Abdülhakim Güven. The applicant did not see him because of a double blindfold. He had met Mr Güven when interviewing clients in Diyarbakır prison, at which interviews the former had been present as a prisoners' representative.
127. Mr Güven accused him of recruiting lawyers for the PKK, which Mr Kaya denied. According to a written statement by Mr Güven, not put to the applicant orally during the interrogation, Mr Kaya was accused of having acted as a courier between Mardin and Gaziantep prisons. However, Mr Kaya had never set foot in the latter establishment, and he denied the allegation.
128. Mr Kaya signed statements at the end of his interrogations after having been intimidated by harassment, kicking and beatings, and the fear of being left a cripple.
129. Among his co-detainees, the applicant saw that Tahir Elçi had been beaten up and was in acute pain. Meral Daniş Beştaş was moaning and freezing cold, presumably after being hosed down with cold water. This treatment had been inflicted on Tahir Elçi and Niyazi Çem in the toilet area at the end of the cell corridor, from which one could hear screams, shouting and pouring water. It was very cold outside at the time.
130. They were kept in a corridor and slept on the floor, one blanket for three people. Each day they were fed about half a loaf of left-over bread which had traces of other food on it. They were taken to the toilet twice a day and were given drinking water. Deafening nationalistic music was blaring all the time and they were blindfolded.
131. Before the Public Prosecutor Mr Kaya refuted the statement he had signed under torture.
132. On his release being ordered by a court, the applicant and several other lawyers were addressed by a gendarme regiment commander, Eşref Hatipoğlu, who warned them that, just because they had been released, they had not been cleared of suspicion as far as the security forces were concerned.
5. Şinasi Tur
133. Mr Tur was born in 1971 and at the material time was a practising lawyer in Diyarbakır.
134. On 15 November 1997 around 8.30 p.m. police arrived at his house and conducted a search. A report was drawn up concluding that no incriminating evidence had been found, and nothing was seized. Mr Tur was taken into custody at the Diyarbakır provincial gendarmerie command.
135. Mr Tur protested at the lack of authority and jurisdiction for his detention by the gendarmerie. He was told that he was in the hands of a gendarmerie intelligence service - the JITEM.
136. He was detained for 26 days (25 days according to official records) and interrogated about his professional activities and alleged involvement with the PKK, given his legal representation of cases before the State Security Court.
137. Mr Tur was confronted with Abdülhakim Güven, a PKK confessor whom the applicant had met as a prisoners' representative in Diyarbakır Prison when visiting clients there. The applicant's name and that of several lawyers had been cited in his confessions, but Mr Tur believed that these events would in any event have happened to him, without such denunciations, because of his human rights involvement. Mr Tur vehemently denied Mr Güven's allegations.
138. Contrary to official claims, he had not been confronted with his maternal aunt's husband, Seyfettin Aslan. He denied having carried out PKK tasks with him, including aiding, abetting and harbouring a wounded PKK member, who, in the applicant's view, had never existed.
139. Mr Tur was kept in a cell 2 x 1 metres. When in the cell, he was able to remove his blindfold. He received about a quarter of a loaf of bread a day and, as far as he could remember, he was taken to the toilet once every 24 hours. Drinking water was not readily available. He was forbidden to speak to other co-detainees. Those who disobeyed were severely beaten, insulted and tortured.
140. He claimed to have been severely beaten, insulted and threatened with execution. He was deprived of sleep due to very loud music being played all the time. He had been blindfolded throughout and had signed statements 25 days later under duress. He repudiated the contents of those statements.
141. Tahir Elçi, Hüsniye Ölmez and Meral Daniş Beştaş (and possibly Niyazi Çem) were also tortured, particularly with cold water hosing, which he heard being used on them in the toilet area. He recognised their voices, as he knew them well. They lost weight and their overall demeanour deteriorated as a result.
142. The officers who escorted them to interrogation were not the same as those who performed the interrogation. As far as he could tell, being blindfolded, 3 or 4 people conducted his interrogation.
143. Mr Tur was taken to a doctor at the end of the custody period but, as he showed no visible marks of torture, the doctor said he was unable to record anything. He nevertheless related his complaints of torture to the doctor, the Public Prosecutor and the Investigating Judge.
144. Before being released, he and some of his colleagues were addressed by a Diyarbakır regiment commander who warned them that the case was not closed and they would still be followed.
145. Mr Tur had been detained three times previously in connection with the PKK activities of his brother, Cesur Tur. His brother was killed in a clash in 1992. The applicant was convicted and sentenced to imprisonment twice for assisting and harbouring the PKK. This background might have explained his detention in December 1993. At the time of his appearance before the Delegates, he was serving a 6 year prison sentence for PKK related offences.
6. Sabahattin Acar
146. Mr Acar was born in 1964 and at the material time was a practising lawyer in Diyarbakır. His work involved both civil and criminal cases, including State Security Court defendants. He had visited some clients in the various regional prisons.
147. Around 9.15 p.m. on 15 November 1993 some 15 policemen, gendarmes and members of a special team went to the applicant's house and made a three hour search, without asking his permission and without any explanations. All his personal correspondence, articles and reports which he had written, and books which they considered to be illegal, were seized. However, the latter had all been lawfully purchased from book shops. A report was drawn up, listing the seized items. Nothing was ever returned to the applicant. Some of the materials were put in the prosecution file.
148. Mr Acar was escorted to hospital by police superintendent Numan, where a certificate of good health was delivered. He was then blindfolded and taken to the Diyarbakır provincial gendarmerie command in a taxi, during which trip he was punched and insulted. He was severely beaten on arrival, causing him earache. He was then thrown into a cell. He believed he was at the JITEM interrogation centre of the gendarmerie in the Ofis neighbourhood of Diyarbakır.
149. Two or three days later he was interrogated, double blindfolded. Three or four people seemed to speak. He was asked why he went to the prisons to talk to political prisoners; why he took on their defence; why he was a member of the Human Rights Association; why he prepared reports, inspected and gathered evidence of human rights abuses; and what connections he had with the PKK for whom he was said to be working. He was insulted, kicked, slapped and beaten during the interrogations, as well as being threatened with death.
150. Abdülakim Güven made allegations against him. Mr Acar knew Mr Güven, who had been present as a prisoner's representative when he had visited clients in prison. Although blindfolded, he accepted that he had been confronted with Mr Güven during the second (or third) interrogation.
151. Mr Acar denied all of Mr Güven's allegations against him, particularly the allegation that he had brought cyanide into Diyarbakır prison. In order to mitigate his own crimes, Mr Güven had obviously made things up, copying from another PKK confessor's statement involving a similar allegation about someone else (paragraph 532 below). He signed certain incriminating statements, unbeknownst to him at the time, under the pressure of torture, for fear of resuscitating a previous kidney injury he had sustained in a car accident, and of being left a cripple.
152. He was kept in custody 26 days (25 days according to official records) and recognised other colleagues who were there by their voices, such as Meral Daniş Beştaş, Mesut Beştaş and Arif Altinkalem. Tahir Elçi, Vedat Erten, Fuat Hayri Demir and Nevzat Kaya were in the corridor. Hüsniye Ölmez, together with Mr and Mrs Beştaş, were in cells.
153. Tahir Elçi, Niyazi Çem who had been brought from İstanbul, Meral Daniş Beştaş and Hüsniye Ölmez were subjected to a different form of torture than him - cold water hosing. He could tell from their screams and moaning.
154. The cell in which he was detained was small, dark, damp and very cold (below freezing). There was no heat or light. A filthy, worn out blanket was provided. He received a piece of stale bread once a day, drinking water twice daily and was allowed two visits, at 6 a.m. and 6 p.m., to the toilet per day.
155. He was brought to a doctor on 10 December 1993 who was afraid to note the applicants' allegations of torture in the absence of any visible injury, all bruising or other injury having cleared up during his 26 days' detention. He told the Public Prosecutor about the alleged torture, but it was not recorded. The Investigating Judge before whom he was brought noted some, but not all, of the applicant's allegations.
156. Mr Acar was indicted before the State Security Court and the proceedings were still pending.
157. Prior to his detention, Mr Acar had reported on human rights matters to Amnesty International and other international non-governmental organisations. He had been the Director of the Diyarbakır branch of the Human Rights Association between 1990 and 1992. Human rights abuses were frequent in the area at that time. The Association's premises were bombed and he was threatened and insulted in public by policemen. In this way he was harassed in his legal practice. The articles and reports which he had written about human rights abuses and which were seized during the search on 15 November 1993 were used by the Prosecutor against him.
158. In the indictment, reference was made to faxes he was alleged to have sent to human rights associations in Europe. He did not know whether this was a reference to the European Commission of Human Rights. He presumed it had meant non-governmental associations.
7. Niyazi Çem
159. Mr Çem was born in 1965 and at the material time was a practising lawyer in İstanbul.
160. On 23 November 1993 he participated in a press conference given by the İstanbul Human Rights Association and lawyers of the İstanbul contemporary Jurists' Association, in front of the building of the İstanbul State Security Court, in order to denounce the allegedly unlawful detention and interrogation of fellow lawyers by the JITEM. At some time between 12 and 1 p.m., he was taken into custody.
161. He was held for two days in Gayrettepe, İstanbul (the police centre for political detainees), then he was transferred to the Bursa Orhangazi Gendarme Station. Around 25 or 26 November 1993, he was taken to Diyarbakır, where he was held at the Diyarbakır provincial gendarmerie command for 15 days.
162. Mr Çem's house was searched, but not his office. Nothing was seized.
163. In Diyarbakır he was taken by a team of plain-clothed policemen to an unknown destination. He was not interrogated on the first day.
164. On 27 or 28 December 1993 he was interrogated and accused of assisting a certain Rıza Altun to make contact with the PKK, which organisation the latter then joined. The applicant denied the allegation. He was told that Abdülhakim Güven had made the allegation. He had met Mr Güven as a prisoners' representative when interviewing clients. He was purportedly confronted with Mr Güven during the interrogation but, as he was blindfolded, he did not know if it was truly him. He refused to sign any confrontation report or statement, as he was not allowed to know their contents.
165. During the first days of detention he was severely beaten, his hair was pulled and he was threatened with various kinds of torture. He was stripped naked and hosed down with cold water. He was deprived of sleep by blaring military and Arab music.
166. Tahir Elçi was hosed too. He heard the screams of Meral Daniş Beştaş and Hüsniye Ölmez under torture. He had not met these people prior to his detention. He and Tahir Elçi whispered their names to each other.
167. On the day of his release, 10 December 1993, he was taken with others to see a doctor who asked if any of them had any visible wounds. Only one person, possibly Arif Altinkalem, had a bruise which the doctor recorded. Any injuries to the applicant had cleared up.
168. Mr Çem told the Public Prosecutor and the Investigating Judge about the ill-treatment to which he had allegedly been subjected. He repudiated the statements he had purportedly given. Neither recorded the torture allegations.
169. He was indicted before the State Security Court for having connections with the PKK. He was falsely accused of such activities as transporting heroin for the PKK and taking money from Mr Güven to assist the financially ailing newspaper, “Özgür Halk”, in İstanbul. Mr Güven subsequently withdrew the latter allegation. The proceedings were still pending.
170. During his detention Mr Çem was detained in a corridor with 10 to 15 other people; 3 or 4 people would share one blanket. Once a day he received a quarter of a stale loaf of bread and was taken to the toilet first thing in the morning. In case of urgency, people would be taken to the toilet. No washing facilities were provided.
171. Mr Çem saw two of his interrogators when his blindfold slipped whilst he was being hosed down with cold water. He saw them later when he was taken to the Prosecutor's office, but the escorting officer stifled any protest. He told the Prosecutor that he could identify at least two of his torturers, but it was not taken up.
172. When he was released by the court, he and other lawyers were addressed by a regiment commander called Eşref Hatipoğlu, and warned to be careful as they would be followed.
8. Mehmet Selim Kurbanoğlu
173. Mr Kurbanoğlu was born in 1970 and at the material time was a practising lawyer in Diyarbakır. Most of his cases were before the State Security Court.
174. On 20 November 1993 at 7.20 a.m. armed men rang at his door. He opened up and they searched his apartment without introducing themselves. He was allowed to telephone a cousin, Sadik Ateş, who came over. Nothing was seized. His cousin countersigned the search report.
175. He was taken into custody, blindfolded, at the Diyarbakır provincial gendarmerie command where, but a week before, colleagues of his had also been detained. He was held in a corridor for 21 days (20 days according to official records). After 2 or 3 days he was taken to another side of the corridor where there was a blanket on the floor. Around midnight he was interrogated. He was accused of doing more than just providing legal representation for PKK people. His interrogators tried intimidating him by saying he was not being detained in Diyarbakır but in Elazığ where it was known that the bodies of “disappeared” persons had been found.
176. He was constantly beaten when taken back and forth from interrogation, always after midnight, 5 or 6 times. He was kept blindfolded throughout the 21 days without any washing facilities. The corridor was crowded and he was unable to stretch out his legs. A piece of bread was given out in the evening, a quarter or half a loaf. In the beginning it was fresh, but after a few days it was stale and was obviously left-overs. They were given drinking water once a day and taken to the toilet twice a day. In case of urgency they would be allowed to go to the toilet. It was cold in winter, with a fan which made the air even colder. Loud martial music was played continuously except for a 2 or 3 hour break during the night.
177. Tahir Elçi and Niyazi Çem were held with him. They were taken to the toilet, from where he heard them screaming and shouting. They were beaten up and hosed with cold water. Mr Çem returned soaking wet and the applicant tried to dry his hair for him.
178. He believed that Gazanfer Abbasioğlu and Fuat Hayri Demir arrived after him and were in cells, as were Şinasi Tur and Arif Altinkalem. Mr and Mrs Beştaş were detained also.
179. Mr Kurbanoğlu had met Abdülhakim Güven when visiting clients in the Diyarbakır E-type prison where the latter was the prisoners' representative. He was confronted with someone purporting to be Mr Güven during an interrogation, but the applicant was not sure whether it was truly him due to the blindfold. This person made remarks about the applicant's associate, Şinasi Tur, but said nothing about the applicant. The applicant had had no prior knowledge of Mr Tur's purported PKK activities for which he was subsequently convicted and sentenced. They had just been school friends and had shared a legal practice together.
180. Later an interrogator told Mr Kurbanoğlu that Mr Güven had alleged that the applicant had acted as a PKK courier. Mr Kurbanoğlu denied this.
181. He signed certain statements, including a second fabricated search report, after being beaten and threatened with death. He was punched, slapped and kicked, with blows to his whole body. However, he was never stripped naked or doused with cold water like some of the other lawyers.
182. Prior to being presented to the Public Prosecutor, Mr Kurbanoğlu was seen by a doctor, to whom he recounted the beatings. However, nothing was noted as he had no corroborating marks on his body.
183. Before the Public Prosecutor, he denied Mr Güven's allegations and that any incriminating document had been seized at his home. No such document had been openly put to him during his interrogation.
184. Neither the Prosecutor, nor subsequently the Investigating Judge, commented on or recorded the applicant's account of torture.
185. Before being released on 10 December 1993, he and his colleagues were addressed by a plain-clothed officer who warned them that they were still under surveillance. Eventually he was released around 1 a.m.
186. Four days later the Public Prosecutor filed an ex parte objection to the applicant's release, as a result of which he was arrested on 20 December 1993 and detained for a night at police headquarters. Then he was transferred to the Diyarbakır E-type prison. Some 9 or 10 days later he and other lawyers were transferred to Mardin prison. He saw a doctor there about a chill he had caught and internal problems.
187. Criminal proceedings were still pending against him.
9. Meral Daniş Beştaş
188. Mrs Beştaş was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
189. On 16 November 1993 around 5 or 6 p.m., when the State Security Court was closing down for the day, the applicant and her husband were stopped by four plain-clothed officials when they were leaving the court building. Her husband was told he was to be detained and interrogated and he gave her his personal belongings, whereupon she was told that she was also to be detained. Baki Demırhan and Arif Altinkalem had been detained at the same time. They gave their personal belongings to another colleague, F.L., who was with Gazanfer Abbasioğlu. They were blindfolded and there was talk of taking them to Silvan or Elazığ where the bodies of murdered persons had been found lately.
190. They were driven around, then taken into a building, separated, and left waiting, standing with their blindfolded faces to the wall for a couple of hours. Mrs Beştaş was then taken to a small room where she was ordered to hand over all her personal belongings, after which she was put in a cell, where her blindfold was removed.
191. Half an hour later she was taken out of the cell blindfolded to an interrogation room. She was made to sit on a stool and was pushed. Someone said, “Admit that you are a courier - a courier for the organisation”. She denied it and was slapped hard. She was threatened with electric shocks and being suspended. She was taken back to her cell to reflect on her situation.
192. The following night, around midnight, she was interrogated again. She denied that she was the branch manager of the Human Rights Association, and stated that she was its secretary. She was told that she had ties with the PKK. She was asked about her work for the Association, its links with the PKK, complaints made about Turkey to Europe and human rights abuses put before the European Commission of Human Rights. She acknowledged that she had denounced human rights abuses to foreign visitors and had sought to take measures to prevent further abuses. She had prepared cases for presentation to the European Commission of Human Rights. She insisted, however, that she had no ties with any illegal organisation.
193. Such interrogations went on for a week, including a more gentle interrogation when the interviewer talked with her about her work for the Association, her opinions and the legal profession.
194. Two days before being brought to court, attempts were made to get her to sign documents, the contents of which were not known to her. When she refused she was taken somewhere else, ordered to strip and hosed down with cold water for about an hour, fainting at one point. She was threatened with being tortured in front of her husband. However, she did not sign anything.
195. Mrs Beştaş knew Abdülhakim Güven as the brother of one of her clients and a prisoners' representative. When visiting clients at Diyarbakır E-Type prison he would be present. She was purportedly confronted with him while she was still blindfolded, but did not recognise his voice. She had been told that he had made accusations concerning her. She acknowledged in his presence that she had denounced human rights violations involving detained persons and had defended cases before the State Security Court.
196. Through a peep-hole in her cell she saw Tahir Elçi and Niyazi Çem (who had shouted out his identity on arrival in the corridor) standing naked in the toilet, which was near her cell. They were hosed with cold water twice and she heard screams and shouts.
197. Sabahattin Acar and Arif Altinkalem were in the cell to her left, Şinasi Tur to her right. Across from her was Hüsniye Ölmez who cried loudly “Don't do this”. Tahir Elçi and Niyazi Çem were kept in the corridor, where they and others were kicked and insulted.
198. She was in a large, damp cell on her own with two pieces of wood on the floor and a disgusting blanket. It was very cold. There was no heating or lightning. She was only allowed out for interrogation and the use of the toilet morning and evening. In the evening she was given a piece of bread, sometimes fresh, sometimes stale and sometimes obviously left over from someone's meal. There were no female officials or separate sanitary facilities for women.
199. On 10 December 1993 she was put before a doctor, to whom she said she was sick. He refused to examine her or assess the cough she had, only being prepared to note visible injuries from ill-treatment.
200. On 10 December 1993 she was brought before a Public Prosecutor, Ünal Haney, and an Investigating Judge, Cafer Sadik Üral, to whom she recounted her ordeal in detention, but neither showed any interest.
201. They failed to acknowledge her ill-health even though, unusually, she had to sit down in front of them rather than stand up. They ignored her claims that she could identify her torturers.
202. Before being released, she and other lawyers were addressed by a gendarme regiment commander called Eşref Hatipoğlu, who warned them that he knew that suspicious dealings were being carried out in the guise of human rights' advocacy.
203. After her release, she was so ill that on 13 December 1993 she went to a doctor, who diagnosed pneumonia and ordered her to stay in bed for 15 days. He gave her a medical certificate to that effect. She did not tell the doctor what she had experienced in detention.
204. Some time, perhaps in 1996, on an evening before the general election, Mrs Beştaş was followed by Abdülhakim Güven and 2 gendarmes, one of whom was from the JITEM. She and her husband were then followed by other people. She contacted fellow lawyers and the Bar association, and talked to the Chief Public Prosecutor, Bekir Selçuk, who advised her not to walk alone in the street.
10. Mesut Beştaş
205. Mr Beştaş was born in 1966 and was a practising lawyer in Diyarbakır at the material time.
206. The applicant gave the same account as his wife concerning their being taken into detention at the Diyarbakır provincial gendarmerie command (paragraphs 189-190 above). He was separated from her in the detention centre and taken to a cell upstairs. In the cell his blindfold was removed. Forty-five minutes later he was taken blindfolded to a room downstairs and asked questions about his position in the Human Rights Association, of whose administration he was not a member. He only worked in the same building as the Association, on the same floor.
207. At a second interrogation the next day he was accused of helping the PKK, acting as a courier between prisons, in some of which he had never set foot, as could be verified from prison visiting records. Similar accusations were made concerning certain provinces of whose whereabouts he was unsure. He denied any such involvement.
208. During the three or four interrogations, he was threatened that he would be tortured - suspension and electric shocks - in front of his wife, during which both of them would be naked. He was frequently slapped, kicked and pushed on his way to interrogation and punched a couple of times during interrogation. On the 24th or 25th day of his detention, he was taken to sign documents, the contents of which were unknown to him. He signed out of fear of what might happen to his wife. On his signature he wrote “IMT”, indicating his refusal.
209. There was a wooden board in his cell. It was dark and cold. He was taken to the toilet in the morning and evening where there was drinking water. In the evening he was given a piece of bread. There was so little of it that he was constipated throughout his detention. He had a stinking half-torn blanket which was too small to cover himself with, so he wrapped it around his feet.
210. A couple of days before the end of this detention period, loud music was played and he heard horrible screaming. He learned afterwards that probably people had been hosed with cold water.
211. He managed to make his wife aware of his presence in the building by coughing loudly, to which she replied with a similar cough.
212. He was purportedly confronted with Abdülhakim Güven during his detention, although he did not see him because of the blindfold. Mr and Mrs Beştaş had represented his brother. Mr Güven was also a prisoners' representative and was present during client interviews in the Diyarbakır prison. Mr Güven had not accused him of anything at that point.
213. Before being brought before the Public Prosecutor he was taken to a doctor who refused to examine the applicant's lung complaint. He was only prepared to note visible marks or bruises, of which the applicant apparently had none.
214. He was video filmed when brought before the Public Prosecutor. This film was relayed on television.
215. He gave a statement to the Public Prosecutor and Investigating Judge and told them of his ill-treatment.
216. Before being released he and his colleagues were addressed by gendarme regiment commander, Eşref Hatipoğlu, who called them “slime” and warned that he would not forget them. The applicant arrived home around 1 a.m. on the Friday.
217. After his release he consulted a doctor at the Mardin State Hospital Emergency Department, who diagnosed pneumonia. He did not recall what became of the medical certificate which he was given.
218. The following Monday, 15 December 1993, he was re-arrested following the Public Prosecutor's ex parte objection to his release. He was remanded in custody at the Diyarbakır E-Type prison for about 25 days before being transferred to Mardin prison for another 35 days. At a hearing on 17 February 1994 he was released. Proceedings were still pending before the Diyarbakır State Security Court.
219. He consulted the Diyarbakır prison doctor who prescribed medicine for him. He did not ask for a certificate.
11. Vedat Erten
220. Mr Erten was born in 1965 and was a practising lawyer in Diyarbakır at the material time.
221. On 23 November 1993 when leaving the Diyarbakır State Security Court around 11.50 a.m., he and a trainee lawyer were stopped by two plain-clothed officials who asked for their identity cards. After confirming Mr Erten's identity, he was obliged to go with them, giving his personal belongings to the trainee.
222. He was put in a car, blindfolded and taken to the Diyarbakır provincial gendarmerie command where he was kept for 18 days (17 days according to official records). He had been aware that colleagues of his had been detained in recent days. According to prosecution sources, this was because of accusations being made by a PKK confessor called Abdülhakim Güven. He realised he was being detained for the same reason, and was told as much by the detaining officers.
223. On entering the building he was asked if he was Vedat Erten and, when he confirmed that, he was slapped twice in the face, causing him to fall over. He was made to crouch down for 15 minutes and then told to strip off his clothes. Mention was made of taking him to a helicopter which, from a previous experience as a student detained by the JITEM in 1987, he had understood to refer to the form of torture known as “Palestinian hanging”. Ultimately his clothes were slung back at him and he was taken to some narrow place a few metres along where he was obliged to sit on a wet concrete floor, which smelt of toilets. He was ordered not to remove his blindfold. He heard the voices of some of his colleagues.
224. He was given about a quarter of a loaf of bread a day, sometimes a bit more if he asked for it. Drinking water was available in the toilet area where he was taken twice a day. One day no bread was distributed and he sensed that his colleagues must have been staging a protest. Loud music was played.
225. His interrogators ate food smelling of oil, onions and tomato purée. They threw their left-overs into a bin in the toilet, which the applicant took as a provocation to humiliate the detainees even more should they take food out of the bin in desperation. However, no prisoner touched the bin. Once when Mr Erten complained of the way the prisoners were being treated, he was kicked in the face, belly and chest. Thereafter he would be kicked whenever an official passed by.
226. After 10 to 12 days in custody, he was taken for interrogation. He sat on a stool and was allowed to remove his blindfold but was blinded by a very bright lamp shining directly into his face, which made it impossible to see anyone or anything else in the room.
227. He was ordered to “tell” and when he replied that he had nothing to say, he was beaten up. He was accused of acting as a PKK prison courier, which he denied. He was again beaten with the light off. He was forced to confess that he had taken several diaries, pens and cigarettes between prisons.
228. In the narrow place where he was held, he could hear Tahir Elçi's appalling screams, and his and Niyazi Çem's chattering teeth after they had been hosed with cold water. He heard Meral Daniş Beştaş sobbing. He heard someone threatening Hüsniye Ölmez with death if she did not tell all, after which she cried, “They'll kill me. They're out to get me. If I don't die, I'll be killed outside.” Mr Erten was slapped when he tried commiserating with Tahir Elçi, whose clothes were wet. Mr Erten was also slapped for chasing a fly from his face when the guard thought he was tampering with his blindfold.
229. Two days before being brought to the Public Prosecutor he was made to sign documents, the contents of which were unknown to him, for fear of being beaten up again. He heard other colleagues screaming and shouting, “Don't kill me. That's enough”, both before and after this document session.
230. He was taken to a doctor who refused to examine the applicant fully, just noting that the applicant had no marks on his face. The doctor did not therefore see the marks which were left after he had been beaten on the belly, back and the nape of his neck.
231. Two days later, around midnight, he was taken to the Public Prosecutor, who told him that he was accused of being a PKK courier both between prisons and between PKK members at large and prisoners. He was also accused for the first time of carrying on his person a document concerning the function of a PKK co-ordinator in the region.
232. Mr Erten claimed that he had been illegally framed and that the documents allegedly found on his person were inadmissible fabrications. A record of a purported confrontation with Abdülhakim Güven was read out to him, but the applicant could not confirm that Mr Güven was indeed the person who had been presented to him during an interrogation, and who had, in a forced, hoarse voice, accused the applicant of an offence. He had met Mr Güven when the latter was a prisoners' representative accompanying the applicant's clients at Diyarbakır prison.
233. Mr Erten told the Public Prosecutor, and subsequently the Investigating Judge, that he had been tortured and that the statements had been signed under duress. He told the Judge that he had resisted pressure from Abdülhakim Güven to act as a courier. The Judge released him. However he was kept blindfolded and returned with his colleagues to the interrogation centre. He was convinced they were going to be killed. Instead they were addressed by an officer who uttered warnings. He was released on 10 December 1993.
234. The Public Prosecutor lodged an ex parte objection to Mr Erten's release. Consequently, he was taken back to court a couple of days later and remanded in custody at the Diyarbakır E-Type prison. He was again presented to the court on 17 February 1994 and released. He told the court that he had been tortured and that the statements which he had signed were false. He denied the charges made against him.
12. Baki Demırham
235. Mr Demırham was born in 1966 and was a practising lawyer in Diyarbakır at the material time.
236. On coming out of the Diyarbakır State Security Court on 16 November 1993, he and Arif Altinkalem were stopped by members of the security forces who they guessed were from the JITEM. On disclosing their identities they were put in a car where they waited while a similar procedure was performed in respect of Mr and Mrs Beştaş. They were taken to the Diyarbakır provincial gendarmerie command, blindfolded. The applicant and Mesut Beştaş were put in cells on the upper floor, where he was held for 26 days (24 days according to official records).
237. He had anticipated his arrest as several of his colleagues had been detained the day before. On the first night he was taken for interrogation. In general he was made aware that the PKK confessor, Abdülhakim Güven, had alleged that he was in league with PKK prisoners, had acted as a courier for them, and had smuggled unlawful materials into prisons, e.g. a flick knife. The applicant denied the allegations.
238. The applicant's brother had been detained in the same prison as Mr Güven. Mr Güven also attended all interviews with clients. The applicant's brother said he had been under pressure to join the PKK and Mr Güven had told the applicant that his brother had not kept his promises.
239. The applicant was confronted, blindfolded, with Mr Güven. He signed certain statements, the contents of which he did not know, because of the psychological pressure brought to bear on him. During interrogation no mention was made of European human rights associations. He had assisted the Diyarbakır Human Rights Association prepare papers for clients. He was unaware of what the European reference could mean. He himself had never filed a petition for a client with the European Commission of Human Rights.
13. Arif Altinkalem
240. Mr Altinkalem was born in 1965 and was a practising lawyer in Diyarbakır at the material time.
241. He gave a similar account of his detention on 16 November 1993 as Mr Demırham (paragraph 236 above).
242. In the Diyarbakır provincial gendarmerie command he was made to crouch down, face to the wall, in a corridor. After an hour or two he was put in a cell. He did not know if he had been detained by the JITEM or the anti-terror department of the police. He was not told of the reasons for his detention even when he asked for explanations.
243. He was not taken for interrogation for one or two days. When he was interrogated, he was questioned about the cases he had defended before the State Security Court and asked if he had been paid. The implication was that there was a link between his cases and the PKK. He was accused of assisting PKK detainees by acting as a courier and not charging fees for his work. He was told that the PKK confessor, Abdülhakim Güven, had made certain allegations about him and other local lawyers. Mr Güven had been the prisoners' representative and attended the consultations he had had with his clients at the Diyarbakır E-Type prison.
244. He was confronted with someone purporting to be Mr Güven, but did not recognise him due to the blindfold. Mr Güven implied that the applicant's legal work made him a possible PKK sympathiser but no specific allegation was formulated. r Güven acknowledged that he had not given the applicant any notes to pass on as a courier.
245. He signed various statements. Being under physical and psychological duress, he was unaware of the contents of the statements except for a report which was headed “ERNK Receipt”, being evidence of financial assistance to the PKK, which document he had never possessed.
246. A medical certificate dated 10 December 1993 recorded that he bore marks of blows and violence on his body. He saw the doctor before being brought before the State Security Court and released. Once formally released, he and his colleagues were subjected to a warning speech by a gendarme.
247. The applicant discovered later that his name had never been mentioned in any of Mr Güven's earlier statements to the police. Afterwards he thought that he must have been detained because of his membership of the Human Rights Association and his assistance in preparing cases to the European Commission of Human Rights.
248. He stayed out of Diyarbakır for the next few months as there was an in absentia arrest warrant issued against him.
14. Gazanfer Abbasioğlu
249. Mr Abbasioğlu was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
250. On or around 15 November 1993, coming out of the State Security Court, he and several colleagues were subjected to an identity check. Several lawyers had previously been taken into custody and, that day, others were detained, but not the applicant.
251. On 30 November 1993 he was at a colleague's office when plain-clothed policemen and gendarme officers entered and checked his identity. He was told he was being taken into custody. He was taken by gendarmes to see a doctor. He was then taken somewhere, blindfolded, where he realised there were some of his colleagues. He was not given any reason for his detention until a couple of hours later, when he was accused of being a member of and assisting the PKK. He denied the allegations.
252. He had known earlier that Abdülhakim Güven had become a confessor; it was then that the arrests had started. He had met Mr Güven as a prisoners' representative who was present when the applicant interviewed a client accused of political offences. Whilst blindfolded, he was confronted with Mr Güven during his first interrogation. He recognised his voice. He was accused of being a member of and assisting the PKK, and of constantly defending PKK cases.
253. On release and after examining his case file, he realised more detailed false allegations had been made, such as that of being a courier.
254. The applicant signed certain documents under duress in order to avoid being tortured as Tahir Elçi, Meral Daniş Beştaş, Niyazi Çem and Hüsniye Ölmez had been. He did not know the contents of those documents at that point as he had been blindfolded.
255. After being technically released by the Judge, he and his colleagues were subjected to a warning speech by the gendarme regional commander, Eşref Hatipoğlu. The applicant understood the speech as a threat. It was only then that he was actually released.
15. Fuat Hayri Demır
256. Mr Demır was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
257. Mr Demir was leaving the Diyarbakır State Security Court at lunchtime on 3 December 1993 with a colleague when he was stopped by two people in plain-clothes who checked their identity. They said they were from the gendarmerie intelligence unit. After confirming the applicant's identity, he was told that he was to be taken into custody.
258. He was put in a vehicle and his scarf was tied over his eyes. He was driven for about five minutes, got out of the car and was told to wait by a wall. Later he was taken into a building and made to crouch down in a corridor where he heard the whispers of some of his colleagues, such as Gazanfer Abbasioğlu and Tahir Elçi. They sat on a blanket on the concrete floor for some 8 days (7 days in custody according to official records).
259. He was not told why he had been detained although he knew that there were colleagues already in custody who, as rumour had it, had been incriminated by the PKK confessor, Abdülhakim Güven. He had met Mr Güven as a prisoners' representative in Diyarbakır prison. He had accompanied the clients whom the applicant had interviewed. The applicant did not suspect that Mr Güven had made allegations against him as he had no connections with him whatsoever, either professional or otherwise.
260. One or two days later he was taken for interrogation and accused of being a courier for the PKK between prisons, and assisting and harbouring the PKK. Someone calling himself Mr Güven was apparently present and urged the applicant to confess like him. The applicant said to this person, whom he presumed to be Mr Güven, that he knew very well that the applicant had not carried notes between prisons.
261. A few days later there was a terrible noise, with martial music blaring, and he heard people being ordered to sign documents or be killed. He was similarly threatened with torture - electric shocks - and felt obliged to sign documents, the contents of which were unknown to him. He had heard Tahir Elçi, Niyazi Çem and Meral Daniş Beştaş being subjected to cold water ill-treatment.
16. Abdülhakim Güven
262. Mr Güven was born in 1962 and had no specific profession other than trading. At the material time he was remanded in custody in Diyarbakır E-Type prison, charged with membership of the PKK. In 1993 he had left the PKK over a disagreement and became a confessor, giving information to the State about the PKK, starting with certain lawyers whom he had known before his imprisonment (which started in 1989). The PKK had made him the representative of its organisation in prison and he was in charge and supervised all members' contacts with the outside world, including their defence lawyers. This was part of the education given to PKK associates.
263. Mr Güven had little recollection of the events and allegations he had made concerning the applicants, but confirmed many leading questions from the Delegates and the parties, which resulted in the following account:
264. Mr Güven confirmed a statement he had given in November 1993 (paragraph 425 below), which revealed that he had met a PKK member, code name Beriwan, at the house of Tahir Elçi, and that he had given Mr Elçi messages for certain PKK members outside the prison. Mr Elçi sometimes brought back the replies. He had known Mr Elçi since they were teenagers.
265. As regards Şinasi Tur, all he could remember was that Mr Tur had had contacts with the PKK in the area.
266. Mr Güven confirmed his allegation that in 1992 Sabahattin Acar had brought cyanide poison into the prison in order to harm PKK opponents who were putting pressure on members' families. Mr Acar had handed over the poison to Mr Güven directly. He had no comment on the statement of another PKK confessor, Abdülhakim Bakir, who had earlier identified someone else as having brought the poison into the prison (paragraph 530 below).
267. Without recalling details, Mr Güven said that Niyazi Çem had contacted a PKK association in Bursa prison. He stated that Mehmet Selim Kurbanoğlu, Vedat Erten, Mesut Beştaş, Meral Daniş Beştaş, Nevzat Kaya and Hüsniye Ölmez had all acted as couriers between prisons and with outsiders.
268. He confirmed his allegation that Baki Demırhan had given him a knife in prison, which Mr Güven had asked Sabahattin Acar to procure. He had no comment on the earlier statement made by Abdülhakim Bakir that he had obtained the knife from someone else (paragraph 532 below). Mr Güven did not recall what had happened to the knife or the cyanide poison. Perhaps the knife had been confiscated in a later search before any harm was done.
269. Mr Güven said that he had had only one or two contacts with Arif Altinkalem who, as far as he could remember, had helped in the exchange of notes once or twice. Gazanfer Abbasioğlu and Fuat Hayri Demır had acted as couriers.
270. Mr Güven was unable to specify the content of any particular note or document which any applicant had passed on, given the voluminous material involved and the passing of years. He remembered that İmam Şahin had been an İstanbul lawyer who had visited a client at the Diyarbakır E-Type prison, and Mr Güven had received notes from the Bursa and Gaziantep prisons via Mr Şahin. He had no special information about the services which Mr and Mrs Şahin had rendered the PKK. He could not recall exactly when he had met Arzu Şahin. According to information he had obtained from his friends, Mr Güven considered that he could trust Mr and Mrs Şahin.
271. Mr Güven had made statements to the Public Prosecutor about all the lawyers and had repeated them before the State Security Court, perhaps in late 1994. However, he had not answered the summons to attend the applicants' State Security Court hearings out of concern for his personal safety, having made an enemy of the PKK.
272. Mr Güven said that there may not be records of any visits to himself or other PKK members in prison by the applicants because those lawyers could have given any remand prisoner's name and entered the prison, thereby seeing Mr Güven or his associates.
273. He confirmed his confrontation with certain lawyers during their interrogations. Most of them were co-operative. Only Tahir Elçi and Meral Daniş Beştaş objected to certain statements. Neither party was blindfolded during the confrontation. Two officers were always present. His signature on the confrontation report only confirmed the accuracy of what he alone had said.
274. Mr Güven denied a statement in which he had purportedly confessed to carrying weapons which were subsequently used to kill two police officers prior to his apprehension in 1989. He later conceded that he may just have forgotten the details. He acknowledged his involvement in a plan to kill a prison officer while he was still a PKK associate remanded in custody. He also acknowledged that some of his statements about being tortured during interrogation to make him sign incriminating statements had been lies.
275. Prior to becoming a confessor, he had expected to serve some 8 years in prison (a 15 year sentence with early release), rather than receiving the death sentence or life imprisonment for his role in the death of the police officers. He denied that, in order to avoid dangerous repercussions from the PKK when he became a confessor, he had given the names of persons who had had no connection whatsoever with the PKK. In no way did the advantages of the Remorse Law lead him to accuse the applicants. However, after the life sentence was imposed on him, his confessor statements permitted his release from custody. Since then he had been a target for the PKK, although he acknowledged that he had been able to move around freely in Diyarbakır. He had changed his identity and was initially provided with a little financial assistance by the gendarmerie, from Commander Eşref Hatipoğlu. He knew that, if he gave false testimony as a confessor, an additional 5 year term of imprisonment could be added to his original sentence.
276. Mr Güven denied being encouraged by any officials to denounce the applicants, or the Human Rights Association, or to become a confessor. He left the PKK because their original aims, in which he had believed, had been undermined, and they were inflicting damage on the Kurdish people.
277. Mr Güven said that the lawyers' confessions had been recorded on videotape. His confrontations with them had lasted a whole day from 8 or 9 a.m. until night-time, a few days after the lawyers had been apprehended. His own legal representative, F.V., had suggested the applicants' names to him as being people who were “patriots and could join the struggle”. It was PKK established policy that its members should systematically refute any incriminating statements they had made before a Public Prosecutor or Investigating Judge.
278. He knew of a Fatma Demirel who had been a PKK member but, once in prison, she had been isolated because she was suspected of being a State agent.
17. Fatma Demirel
279. Ms Demirel was born in 1970 and she had been detained on remand since January 1993 (7 years) for PKK offences, in particular the unlawful possession and transport of weapons. The criminal proceedings against her were still pending.
280. Ms Demirel had consulted the applicant, Hüsniye Ölmez, for legal advice in early 1992 prior to her detention, and they had become friends. Under torture, Ms Demirel had been obliged to become a confessor and had signed statements, the contents of which were not fully known to her. She discovered later that in such a statement, dated 26 January 1993, she had denounced Ms Ölmez, and other local lawyers whom she had never met, as being PKK couriers. However Ms Ölmez had not been her representative for these pending criminal proceedings and Ms Demirel had had no contact with Ms Ölmez or any other of the cited lawyers during her detention. There was no way, therefore, in which they could have delivered documents for her.
281. Before the Diyarbakır State Security Court on 22 November 1994, Ms Demirel refuted the contents of her original statement (paragraph 533 below).
282. Ms Demirel alleged that just before being brought before the Commission Delegates she saw somebody, with a name like Haci, on a higher floor of the court building who indirectly threatened her with unpleasant repercussions if she did not give testimony to the Delegates in the State's favour. He was apparently some expert sergeant.
18. Dr Lokman Eğilmez
283. Dr Eğilmez was born in 1958. At the material time he was a forensic expert at the Diyarbakır Forensic Medical Branch Office. Detainees were referred to him for a medical examination before or after they were taken into custody.
284. On 10 December 1993 Dr Eğilmez carried out an oral and external physical examination of the applicants. It was early in the morning. The security forces stayed outside and he examined them in groups of 3 or 4.
285. From the external examination he saw that one of the applicants had a simple lesion on his knee which he recorded. Although individuals had complained of ill-treatment, the doctor was not convinced of any systematic ill-treatment. Five or six people had said they had breathing difficulties. He began examining one or two of them with a stethoscope, whereupon the others decided not to be examined and withdrew their complaints.
286. They were all examined stripped to the waist. They were asked whether they had any marks on their bodies and they were told that, if there were, he would make a detailed examination. Apart from the bruised knee mentioned above, no one complained of any visible marks, although they all said they had been beaten. He saw no such marks himself. It was rare that he was presented with such a case and, when he was, he recorded it. The same day he re-examined Hüsniye Ölmez and Meral Daniş Beştaş who complained that they had been struck on their buttocks, but Dr Eğilmez found no marks.
287. He acknowledged certifying three days later, on 13 December 1993, two bruises on the lower knee of Hüsniye Ölmez. It had escaped his attention in the two earlier examinations because it was not shown to him. Sometimes ladies are reluctant to reveal parts of their bodies.
288. Hüsniye Ölmez had been examined on the 13 December 1993 in the company of Meral Daniş Beştaş. There were no marks on the latter. Another doctor had certified that Mrs Beştaş was suffering from pneumonia, which she had not mentioned to Dr Eğilmez on 10 December 1993. At that stage one would have expected her to show a fever, coughing and phlegm. However, she made no complaint.
289. Pneumonia is not a traumatic lesion. It can be contracted after catching cold and is often preceded by bronchitis. It would take about a week to develop and would induce fever. An x-ray would be needed to establish the condition and hospital treatment would also normally be required.
290. Dr Eğilmez could not remember how the applicants looked - whether the men were clean-shaven, unwashed or the like. He did remember, however, that they did not look tired, worn out or feverish.
291. As a forensic doctor his task was to record findings, not to take a patient's medical history or make a clinical examination. This is why he did not note people's general complaints and why he would only record visible marks.
292. If a man had had his testicles squeezed and had complained to him of that fact, Dr Eğilmez would have expected to see sensitivity in the genital area, reddening and swelling. None of the male lawyers complained of this, and he would not have examined genitalia unless asked to do so by a complainant.
293. The first question addressed in such examinations was whether there were any signs of blows, force or violence. However, if the individual was found to be suffering from an illness, such as a fever or heart condition, he would have noted the need for follow-up treatment in his report.
294. Around the relevant time he prepared some 4,500 reports, of which about 10% were custody examinations.
295. The examinations he conducted in the present case were recorded in a single report.
19. Dr Mahmut Demirel
296. Dr Demirel was born in 1967 and was a general medical practitioner at the material time. He did not recall having certified on 13 December 1993 that Meral Daniş Beştaş had had pneumonia. He had known her previously when she was a childhood neighbour.
297. Pneumonia would disclose symptoms of fever, malaise and lateral pain from coughing. It did not have to be preceded by bronchitis, but might be. A stethoscope examination could distinguish between the two. How someone reacted to the illness depended on his/her physical condition. Such a person would be able to stand up with assistance.
298. It may be caught by being exposed to cold. The diagnosis may be confirmed by an x-ray. Bed rest and antibiotics may be sufficient treatment. It is an acute illness which may not show any symptoms three days earlier.
20. Eşref Hatipoğlu
299. Mr Hatipoğlu was born in 1945. At the material time he was a senior gendarme colonel, responsible for law and order in the province of Diyarbakır.
300. There was an interrogation and detention centre under his command within the city boundary. This unit was headed by Lieutenant Colonel Hasan Bozoğlu, the director of operations. The person in charge of interrogations was a non-commissioned officer (“NCO”), Sergeant Firat Yavuz Yedekçi.
301. The detention centre had been inspected by the European Committee for the Prevention of Torture (the “CPT”) every year and had been found to be up to standard after improvements had been made. It was not overcrowded. If it was full, detainees would be kept in their original place of detention awaiting transfer.
302. Mr Hatipoğlu remembered the detention of the applicants as it was an unusual incident. Abdülhakim Güven had made certain allegations against them concerning events in prisons, and the role of these lawyers was raised, albeit not proved.
303. Mr Güven, being a top-ranking PKK member, had given much reliable information, not just about the lawyers. He had repented and was entitled, like every citizen, to take advantage of the law of the country. Mr Hatipoğlu had given orders for him to receive a small sum of money, some 50 US dollars, for his personal needs. Mr Güven did not enrich himself by his confession; he only received bare subsistence from the State.
304. The gendarmerie had its own intelligence too. Following a rural operation and a skirmish, a PKK shelter was captured which contained archives, including a list of 8 people to be killed. His own name was at the top of that list. It was said to have been smuggled out of prison in a fountain pen carried by a lawyer. Lawyers were serving as couriers for the PKK, but did not confess to this in order to protect themselves from a ruthless PKK reaction.
305. As the person responsible for law and order in that region, he had been the person most responsible for the decision to detain the applicants. However, before the decision could be implemented it was necessary to notify the Regional Commander, as his superior, the Regional Governor and the Chief Prosecutor. The actual decision to detain had to be taken by the Prosecutor. There was only a single decision taken to detain all the applicants, although they could not all necessarily be taken into custody at the same time.
306. The detention centre at the time could hold 20 people (later reduced to 10 on the recommendation of the CPT). He denied that 45 people would have been held there, as might have been suggested by the number of names in the custody ledger. One person was held in each cell, according to the rules, so that they could not communicate with each other and co-ordinate their stories. When there were too many arrivals to accommodate all the detainees in the detention centre, other places of custody - at the central gendarme station, the provincial gendarmerie regiment or the police headquarters - would be used, but this would be recorded in the custody ledger.
307. He denied the possibility that people had slept in a corridor. His staff were instructed to treat detainees warmly and humanely. There was no hostility towards the applicants. Inhuman treatment was impossible.
308. Each cell had a collapsible camp bed, with a wooden floor. A blanket was given to each detainee. The cells were not dark although, on the CPT's recommendations, lighting and ventilation were later improved. At the end of the stairs there was a toilet and bathroom. There was a hot water heater in there now; he could not remember if it had been installed at the time. When a detainee needed to use the toilet, he would be escorted there. There was heating in the corridor which was sufficient. There were no women guards or separate facilities for women.
309. Three meals a day were served: a bread breakfast, a light lunch at noon consisting mostly of bread, and in the evening detainees were served the same meals as the soldiers, with not less than 3 dishes. Water was freely available.
310. Mr Hatipoğlu was not a specialist in interrogation and did not attend such sessions. He was kept informed of their progress by Mr Bozoğlu.
311. A specialised interrogation officer was alone with the detainee and another typed the record. Video recordings were made too, which included the 16 applicants. The tapes had been handed to the Public Prosecutor. He had watched the tape of the applicants twice and was struck by the naturalness of their facial expressions. The lawyers' statements had not been obtained by force, as was shown by the fact that a few of them refused to sign the various documents. Nothing happened to those people who refused.
312. After their release he met the applicants and they had a friendly private chat, over some tea. They told him that they had experienced certain difficulties, that they had not committed any crime and that it was impossible for them to have done so. However, they did not allege any ill-treatment. If they had done so, he would have replaced the interrogators and taken legal measures against them, as was his duty. However, nobody who was detained during his three years in that job was ever injured or killed. The CPT once arrived at 3 a.m. but found nothing untoward and heard no complaints, otherwise they would have reported it.
313. When most of the applicants were released on 10 December 1993 they were brought back to the detention centre to collect their personal belongings and Mr Hatipoğlu addressed them collectively. They had not been blindfolded once released. He congratulated them that the matter was over and said, inter alia, that they should be more careful and that everyone's existence depended on that of the State. He exhorted them to be good in their future conduct, because they could see that people who committed crimes would be brought to places like the detention centre. Tea was served. The applicants said they had been wronged and slandered. After midnight they left, shaking hands with him and they were taken to the town centre, as they had requested. A minibus was put at their disposal with a military escort. He did not see them again.
314. Mr Hatipoğlu accepted that some of the applicants may have found him threatening, but others found him to be friendly. He had had the power to do whatever he wanted with them at that time - torture, ill-treatment, brute force, etc.; instead he had offered them tea and transport.
315. However, such allegations were only made by people who worked against Turkey - as had been legally established. Nevertheless, he extended a friendly hand to them. The judicial authorities had a separate duty to perform from his.
316. He denied having threatened any of the applicants and was embarrassed by any such allegation.
21. Hasan Bozoğlu
317. Mr Bozoğlu was born in 1948 and at the material time he was the law and order director of the Diyarbakır provincial gendarmerie command. He supervised, inter alia, the interrogation unit.
318. The detention centre in Diyarbakır could hold around 20 people in individual cells with peepholes for surveillance. The floors had wooden grids and collapsible beds. Blankets were provided. There was lighting and heating in the corridors which filtered into the cells. People were taken to the toilet according to their needs and there was a bathroom. Interrogations were held in a special room. Breakfast and lunch were offered, possibly below the standard soldier rations, but a full evening meal was provided.
319. The custody records were accurate; the 45 people mentioned in the record would not all have been held at the centre. They would have been in the attached units (of which there were around 17). Interrogations were performed by individual, trained specialists accompanied by a typist. In important cases, interrogations were recorded. The detainee was not blindfolded.
320. Mr Bozoğlu had never met any of the applicants. Reports were made to him and he had never heard any allegations of ill-treatment. He had not been involved in the decision to detain them, nor had he seen them on their release. They would not have been blindfolded on their way from the court to the detention centre after their release in order to fetch their personal belongings.
321. Mr Bozoğlu was unable to say whether the law required that an interrogator put his name to a statement rather than just his service code number, as had occurred in the present case.
22. Mithat Gül
322. Mr Gül was born in 1960 and was the gendarme captain and commander of the district centre of Diyarbakır at the material time. He had been under the direct orders of Mr Hatipoğlu.
323. Based on information from a confessor, Abdülhakim Güven, the gendarmerie obtained the Prosecutor's permission to detain the 16 lawyers. The regiment commander, the Public Prosecutor at the State Security Court and the Provincial Governor were aware of that authorisation. When people were taken into custody, the Public Prosecutor was contacted to determine the length of the detention period. Nobody could be taken into custody without the Prosecutor's knowledge and approval. His verbal instructions on the matter were equivalent to an order, but the instructions would be later recorded in written form. It was the decision of the Public Prosecutor to detain the applicants in the present case. A record would have been kept indicating the name of the person who had informed the Prosecutor and had requested his authority to detain. The gendarmerie could take people into custody on their own initiative as long as the judicial authorities were informed and approved the decision. Written authority could exceptionally be given after a person had been detained, but in such a case the authority would be back-dated to the day when the person had been taken into custody.
324. Mr Güven's accounts confirmed other information in the gendarmerie's possession, the most important of which had been publications, documents and materials which were deemed unlawful and had been found in prisons during searches.
325. Mr Gül did not participate in the interrogation, but followed the results. The chief of interrogations at that time was Firat Yavuz Yedekçi. There was a special interrogation room measuring some 15 to 20 square metres or more in the Diyarbakır provincial gendarmerie command. One person interrogated. If a statement were to be taken, there was sometimes a typist, although the statement was recorded elsewhere. In the meantime, notes were taken by the interrogator himself which were not archived. People were never blindfolded during interrogation, but were under spotlights which prevented the interrogators' identification. The detainee sat on a stool in a comfortable environment.
326. Adjacent to the interrogation room was a listening room, connected electronically, so that questions could be relayed from the (unseen) chief interrogator to the interrogator, to be put to the detainee.
327. The results of the applicants' interrogations were reported verbally to Mr Gül, but he no longer remembered what was said. The interrogations were carried out strictly according to the law, despite allegations to the contrary in the media and by the PKK.
328. Some of the lawyers refused to sign certain documents, such as the confrontation reports with Abdülhakim Güven who had recognised all the applicants and made certain allegations. People were free not to sign such documents.
329. The jurisdiction of the police and gendarmerie could sometimes overlap and they could operate within each other's jurisdiction provided that there was proper notification. The external security of places of detention was the gendarmerie's responsibility. Accordingly, even though most of the applicants were arrested within the municipal boundaries of Diyarbakır, under police jurisdiction, it was for the gendarmerie to effect their detention and interrogation.
330. Mr Gül acknowledged that the applicant Arif Altinkalem was detained with others on 16 November 1993. He could only assume that there must have been good reason for that even though Mr Altinkalem's name did not feature in the previous statements of Mr Güven, and the applicants had not at that stage been interrogated, so his name would not have arisen during questioning. Mr Gül denied the suggestion that Mr Altinkalem had been detained at random.
331. The applicants immediately accepted the allegations against them, but it took 26 days to verify and investigate the case in depth, and to consult the judicial authorities. It was out of the question that the applicants had had to wait 10 to 15 days unnecessarily before being brought before the Prosecutor to make statements.
332. Twenty people were kept in cells at the Detention Centre. The others would have been kept at the provincial central gendarmerie command and would have been brought to the Detention Centre for interrogation.
333. The cells had wooden planks in the form of a grill to prevent contact with the concrete floor. There was a camp bed and one or two blankets depending on the cold. Portable electric heaters were in the corridor. It was not necessary to provide separate facilities for women.
334. The interrogator's identity could easily have been found by the judicial authorities if that had been necessary, even though his identity may not have been disclosed in any of the applicants' statements. This was to protect the interrogators' security and was lawful. There would be clear records still in existence of who had interrogated whom.
23. Burhanettin Kayak

335. Mr Kayak was born in 1966 and was a gendarme special sergeant at the Cizre district gendarmerie command at the material time.
336. On 23 November 1993 he had received instructions to detain Tahir Elçi, who was to make a statement before the State Security Court. A police team was sent to detain Mr Elçi and he was handed over to the provincial gendarmerie command two days later for transfer to Diyarbakır. He had no other information about Mr Elçi.
337. Mr Kiyak was not involved in the actual arrest or subsequent searches of Mr Elçi or his premises. All seized documents were handed over with Mr Elçi to the Diyarbakır team and he had no involvement in the return of such documents.
338. Mr Elçi was kept in the custody room which was 3 square metres in size and had a camp bed.
24. Firat Yavuz Yedekçi
339. Mr Yedekçi was born in 1962 and at the material time he was chief of the interrogation unit at the Diyarbakır provincial gendarmerie command.
340. There was a team of 10 interrogators by whom interrogations were conducted under his control. From the listening room connected with a closed circuit television system and a microphone, he could intervene with the interrogators to direct questioning. He was always accompanied by someone in the listening room, but the interrogator was alone with the detainee. The interrogator would make notes of the interrogation, on the basis of which questions would be put again in an interview room and a statement typed up.
341. The interrogator would sit at a table with the detainee sitting opposite him, on whom spotlights were trained. The closed circuit television system permitted relevant video recordings to be made, which in the present case were handed to the prosecutor's office of the State Security Court. A hidden microphone hung above the person being interrogated.
342. A prisoner called Abdülhakim Güven, the political representative in prison, was interviewed over a few days and made a statement about PKK activities. The statement (more than 100 pages) was handed to the Chief Public Prosecutor at the State Security Court who then gave instructions to apprehend and interrogate certain people.
343. Some of the applicants immediately accepted having acted unlawfully. Others refused to sign statements.
344. Mr Yedekçi had not participated in the confrontation sessions between the applicants and Mr Güven which had taken place in the interview room. This room was not connected to the closed circuit television system and, therefore, the confrontations were not recorded on video. Mr Hüseyin Gaziankep had signed the confrontation documents in the present case.
345. None of the applicants were blindfolded during interrogations. Nor did any of them allege having been exposed to ill-treatment or threats during interrogation.
346. The interrogator would conduct the interview session when a statement would be typed up following the individual's responses. There was normal lighting in that room and blindfolds were not used. The interrogator had no fear of being identified. That was his job.
347. Murat Kirikçi conducted the applicants' interrogation. The statement procedure did not necessarily occur on the same day as the interrogation, but was based on the interrogator's notes.
348. Mr Yedekçi did not recall the exact reason why Arif Altinkalem was detained on 16 November 1993, the same day as Mr Güven's incriminating statement, even though Mr Altinkalem's name had not featured in that statement.
349. People were usually told when they were apprehended why they were being detained and it had to be recorded in the apprehension report. Although there was no specific mention in any of the applicants' apprehension reports, they must have been informed orally.
350. If people were unaware of the reason for their detention, his staff would tell them.
351. The detention area had two floors, with 20 cells, later reduced to 10 after the CPT's intervention. Each cell had metal doors with slits in the upper part. There was a wooden plank on the floor and a military camp bed. Detainees received the same food as the soldiers, and their needs were catered for. There was fuel central heating which had replaced burning stoves.
25. Ünal Haney
352. Mr Haney was born in 1958 and at the material time was a Public Prosecutor (no. 26050) at the State Security Court.
353. In Diyarbakır it was the Chief Public Prosecutor at the State Security Court who gave orders to detain people. Investigations could be instigated on the basis of verbal instructions; the law did not require a written order.
354. Mr. Haney stated that he had had nothing to do with the apprehension of the present applicants. They were apprehended on the instructions of the Chief Public Prosecutor, Bekir Selçuk, in accordance with Article 104 of the Code of Criminal Procedure. Such instructions could have been given orally. Mr. Haney did not know if the Chief Prosecutor would have kept a note of such oral instructions.
355. The applicants were brought before him on 10 December 1993. He explained the charges against them and asked to hear their defence. He read out their statements as recorded by the gendarmes, listened to their defence and recorded fresh statements.
356. They denied the charges and complained of ill-treatment, all of which was recorded. If there were corroborative evidence of ill-treatment in a file, he would take action.
357. He had been a Prosecutor for some 10 years by then and knew what an ill-treated person would look like. So he considered that the applicants' mere allegations were insufficient to be taken seriously. The bruise found on someone's knee did not indicate torture. 95% of detainees connected with terrorist offences claimed to have been tortured. It was a mere defence tactic. He never came across a case which required further action from him because of alleged ill-treatment. Anyway, it was not his duty to investigate allegations of torture, being a State Security Court Prosecutor, and the applicants, all lawyers, could have filed complaints in the normal courts.
358. Mr Haney had drawn up the indictment in the applicants' case based on Abdülhakim Güven's considerable evidence, and the incriminating documents about the PKK found in the offices of nine of the lawyers.
359. The search of Tahir Elçi's office revealed a note addressed to “Comrade Tahir Elçi”, bearing the stamp “ERNK” (the political wing of the PKK) and sent to him by the PKK. A note addressed “to the office of the co-ordinator of the Amed State (Amed being the PKK's name for Diyarbakır) was found in Vedat Erten's possession. It was a note written to PKK members in the mountains and who were active in the area. A note with the stamp “ERNK” was found on Mehmet Selim Kurbanoğlu. A note addressed to “Comrade Fuat Demir” with an “ERNK” stamp on it was found in Fuat Hayri Demir's office. A note addressed to “Comrades Mesut and Meral” were found in the possession of Mesut and Meral Beştaş. These notes were written by PKK members.
360. A report in Hüsniye Ölmez' possession was addressed to “Mr President”. A document was found in Sabahattin Acar's possession signed by the “Union of Patriotic Intellectuals of Kurdistan”, regarding the work and activities of the PKK's congress. Four receipts from the “ERNK” to be passed on to lawyers handling PKK cases were found in the possession of Arif Altinkalem. Mr Haney considered that the applicants' denial of the authenticity of these documents was another mere defence tactic.
361. The reference to European institutions in the indictment concerning Mr Elçi, Mr Demırhan and Mr and Mrs Şahin, related to the PKK campaign to discredit Turkey in the eyes of foreign Governments and to weaken it, in order to further their separatist objectives. In no way were these references to the European Commission of Human Rights, to whom individuals were entitled to complain, and the State had not put any obstacles in the applicants' way.
362. Mr Haney was involved in the initial court proceedings, during which the applicants denied the charges against them and were released. Perhaps the fact that the cases were still pending [in December 1998] was caused by the complexity of the case, involving a large number of suspects and numerous prison establishments.
363. Article 10 of Law No. 2845 on the establishment and judicial practice of the State Security Courts gave State Security Court Prosecutors powers to investigate the offences within that court's jurisdiction under Articles 154 and 156 of the Code of Criminal Procedure. This overrode the special jurisdictional protection given to the prosecution of lawyers for ordinary criminal offences under Articles 58 and 59 of Law No. 1136 on Advocates. This was also made explicit in Article 9 (a), (b) and (c) of Law No. 2845:
“Those who commit and who are accessories to the above mentioned crimes, regardless of their title and the nature of their official duty, must be prosecuted by the State Security Court”.
364. In other words the procedures in the present case were carried out in accordance with Articles 9 and 10 of Law No. 2845 and Articles 154 and 156 of the Code of Criminal Procedure.
26. Batuhan Özer
365. Mr Özer was born in 1971 and at the material time he was working at the Diyarbakır Detention Centre. His principal task was to take the completed criminal files of detainees to the State Security Court. He had had nothing to do with the applicants' detention or interrogation. He had just taken their files to court.
366. He knew of the 16 lawyers but had only met Mr and Mrs Şahin at the time, neither of whom had been blindfolded.
367. If a colleague forgot to sign a document, he would sign it for him. He had signed one such document in the case of İmam Şahin, although he had not formulated its contents. He thought that the person who typed the statement had been Hüseyin Gazi Ates; Murat Kirikçi had been the interrogator. As far as he could remember, the witness had had Mr Kirikçi's notes and he had put the latter's questions to Mr Şahin and had the replies typed up. Mr Özer was present when Mr Şahin signed his statement. He had chatted at length with Mr and Mrs Şahin many times and Mr Şahin had lamented the fact that he and his wife had been used by “them” and duped.
368. Mr Özer then said that he had not been present when Mr Şahin signed his statement. He had no opinion on whether it was desirable or not to keep a suspect unaware of the identity of the interrogator. The suspect was not, however, blindfolded.
369. Mr Özer acknowledged that a signature seemingly like his was on a statement purportedly made by Arzu Şahin but not signed by her, but he did not remember exactly.
27. Murat Kiricki
370. Mr Kiricki was born in 1971 and was an NCO for interrogation and investigation in the Diyarbakır gendarmerie. He had had a month's training for that job.
371. He had interrogated the 16 lawyers. He thought that the detention of so many lawyers was normal although he could not recall a similar incident. He had been guided during the interrogations via the closed circuit television system by his superior officer, Mr Yedekçi.
372. First the lawyers asked why they had been detained, even though they must have been given the reasons earlier. They were informed that they were there to answer Abdülhakim Güven's allegations, and the interrogation started with the allegation that they had acted as couriers between prisons. Mr Kiricki did not recall what had been the applicants' initial reaction to the allegations.
373. The interrogation was then interrupted and resumed later (lapse of time unspecified), when they confessed to the courier charges. The change of attitude was probably due to reformulated questions which had been drawn up after the first interrogation had been analysed by his superiors.
374. The lawyers were confronted with Mr Güven, who spoke first and to whom the detainees responded. They knew Mr Güven but disagreed about certain matters amongst themselves. However, there were no significant contradictions.
375. Mr Kiricki refused to comment on whether he should have further questioned those lawyers who refused to sign their statements. Then he explained that those had been busy days; the applicants' detention periods were coming to an end; there was little time left; he had taken statements from them; he accepted any refusal not to sign and, anyway, the Public Prosecutor was to take another statement.
376. Interrogations took place in the morning, after breakfast. The detainee would then have lunch and dinner. He would be taken to the toilet as needed and given water when it was requested. Interrogations varied in length from two to two and a half hours and could have been every day.
377. In the interrogation room spotlights were trained on the detainee so he could not see the interrogator, who sat at a desk. The closed circuit video system was on the back wall.
378. The inability to see the interrogator was a security precaution and had a psychological effect on the detainee. He took notes of the interrogation. Later the detainee would be taken to an interview room where his statement would be taken by a transcriber in his presence. Blindfolds were not forbidden, but were not used. He was not in fear of his safety in the interview room when he could be seen by the detainee.
379. Mr Kirikçi could not recall why Mr Özer's name appeared on Mr Şahin's statements. Mr Özer was one of the 9 or 10 people who made up the interrogation team.
380. He had not signed the record of Mrs Şahin's statement and could not recall the reason for that. He had interrogated her. A colleague must have signed it when he saw that Mr Kiriçki's signature was missing.
381. During interrogations, he communicated with the persons in the adjacent room with microphones and a closed circuit system.
28. Hüseyin Gazi Ateş
382. Mr Ateş was born in 1967 and at the material time was working as a typist at the investigation and interrogation branch headquarters. He had typed the statements of the 16 lawyers in the presence of the interrogator and each suspect. He typed what the suspect had said. He could not understand the question whether it was the interrogator who read out his notes, which the suspect would just confirm. He had never experienced a situation where the suspect disagreed with the interrogator about what the former had said on a previous occasion.
383. Mr Ateş would sign what he had typed; later the interrogator would sign the statement and take it to the suspect.
384. There had been another typist at the time called Adem Aktaş who could have signed the statement of Mrs Şahin.
29. Ercüment Dönmez
385. Mr Dönmez was born in 1962 and at the material time worked in the interrogation section of the anti-terror department at Cizre police headquarters.
386. A warrant order was received by fax from the Diyarbakır gendarmerie to apprehend Tahir Elçi. It was stated that Mr Elçi had links with the PKK and was involved in that organisation's activities, particularly as a courier. This information was conveyed to Mr Elçi when he was apprehended.
387. On 23 November 1993 he went with a team of six or so people, accompanied by the team responsible for external security, to Mr Elçi's business premises. The people in that team included Ali Kara and perhaps Ramazan Hoca.
388. During the search of Mr Elçi's office, which lasted about half an hour, many documents were seized which, for security reasons, could not be catalogued in detail on the spot. A first report was signed straight away indicating what had been seized. A subsequent confiscation report indicating the same documents would have been drawn up. The body search report was also drawn up at headquarters although it had been conducted when Mr Elçi was apprehended in the early morning.
389. The more detailed catalogue of the materials was made up at police headquarters and indicated that 68 case files had been seized.
390. The documents and Mr Elçi were handed over to the gendarmerie. Mr Dönmez could not explain why there was a faxed confiscation report in the Diyarbakır Prosecutor's file and not an original. Mr Dönmez knew nothing about the return of documents to Mr Elçi.
391. The return of documents would be recorded in writing and signed by the owner. Documents containing no incriminating evidence would be returned in this way by the judicial authorities. One of the seized files concerned the application to the European Commission of Human Rights by Süleyman Kutluk.
392. A large number of journals or newspapers were seized for examination as to their possible incriminating nature. He did not know the results of that examination.
393. The list of documents in the confiscation report was drawn up in Mr Elçi's presence in the office of the head of department, Ali Kara. Mr Dönmez did not recall a document with an “ERNK” stamp on it. Mr Elçi was not held in the detention room as he was a well-known lawyer. He did not see Mr Elçi after he had been handed over to the gendarmes.
30. Ali Kara
394. Mr Kara was born in 1967 and at the material time was the head of the Cizre district anti-terror department of the Şırnak police headquarters.
395. Mr Elçi was apprehended and his office searched following a fax from the Diyarbakır gendarmerie command headquarters in connection with alleged offences arising from the statement of Abdülhakim Güven. However Mr Kara did not recollect clearly whether Mr Güven's name had been cited in that fax. It appears that Mr Elçi was told this. According to new human rights rules, when someone was apprehended he was told of the offence of which he was accused. The Public Prosecutor may have been informed verbally as a matter of urgency.
396. Objects and documents that might have involved an offence would have been seized. If the location were unsuitable, the record would have been drawn up at headquarters, with the detainee's consent.
397. It was a sensitive matter to search a lawyer's office. Mr Kara did not know about confidential lawyer/client matters but, anyway, he did not examine the seized documents. He could not recall the signatures on various documents, but their identity could be established by the directorate general. All the documents and objects seized in Mr Elçi's office and home, including his 68 case files, were handed over to the Cizre district gendarmerie command. Mr Kara did not know anything about their return.
398. The document bearing the “ERNK” stamp was found in Mr Elçi's diary which he had on his person. Mr Kara's signature appeared on the faxed confiscation report which mentioned this document. As a rule, documents were handed over with the individual, but perhaps this one was overlooked at the time. The original would have been sent to court, if requested. If not, it would have been archived at the district police headquarters in the individual's file. Mr Kara had no explanation for the existence of two confiscation reports, one more detailed, but both with the hour 12h.00, 23 November 1993, on them.
399. The officers making the final delivery report must have forgotten to recover the significant “ERNK” document. Mr Kara did not have an explanation for the discrepancy of 67 case files seized in one report and 68 case files in another. Nor he could explain why the delivery report referred to the Commission case file of Süleyman Kutluk but not the confiscation report that he had signed.
400. Mr Kara had no knowledge of the systematic use of code-names by the PKK whereas the “ERNK” document referred directly to “Comrade Tahir Elçi”. Nor did he know why Mr Elçi would be carrying such a document on his person when the wave of arrests concerning lawyers had begun a week earlier. He denied having fabricated the document.
401. Mr Elçi stayed in Mr Kara's office, drinking tea, while at the Cizre police station, and would have been handed over around midday that same day, 23 November 1993, to the Cizre gendarmerie, as soon as the procedures had been completed.
402. Mr Kara denied that Mr Elçi had been put in a police cell and ill-treated. He did not know about any administrative investigation into this matter. He had been the subject of another investigation concerning a signature.
31. Hasan Şener
403. Mr Şener was born in 1964 and was a team leader in the Diyarbakır gendarmerie at the material time. He had apprehended Şinasi Tur, Nevzat Kaya and Ganzanfer Abbasioğlu.
404. Mr Tur was apprehended at his home on the evening of 15 November 1993, following an order from the provincial gendarmerie command in connection with the alleged PKK activities of the three applicants. Mr Şener did not see the written order himself.
405. Accompanied by Mr Yildirim, Mr Şener entered Mr Tur's house. A third member of the team, Mr Dogan, waited outside in a vehicle. Mr Tur was told that, according to the provincial gendarmerie command, he was active in the PKK; hence his apprehension had been requested. His house was searched, but nothing incriminating was found. He was taken to a doctor at the State Hospital and then delivered to the gendarmerie.
406. Nevzat Kaya was apprehended at his office on 18 November 1993. The office was searched but nothing incriminating was found. He was also taken to hospital before being handed over to the gendarmerie.
407. Mr Şener had no clear recollection of Mr Abbasioğlu's apprehension on 30 November 1993, other than the fact that the search had not revealed any incriminating evidence.
408. None of the detainees was blindfolded.
32. Cafer Öngün
409. Mr Öngün was born in 1960 and at the material time was a police officer in Diyarbakır.
410. He was involved in the apprehension of Sabahattin Acar on 15 November 1993 around 7 p.m. Officials from the provincial gendarmerie command had called at police headquarters and requested that Mr Acar be apprehended and handed over to them.
411. Mr Öngün went with 4 or 5 other officers to Mr Acar's house, Mr Acar refused to open the door until the authenticity of the procedure had been confirmed. He required an acquaintance of his, Chief Superintendent Numan, to call by and identify Mr Öngün and his colleagues as police officers.
412. Mr Numan arrived around 10 p.m., during which time documents could have been destroyed, although no evidence of that was found.
413. Mr Numan told Mr Acar that he was being investigated for suspected PKK connections and that he was to be taken into custody and handed over to the Diyarbakır gendarmes.
414. Mr Acar then allowed the team to enter and search his house. A record of seized documents was drawn up. He had no clear recollection of certain incriminating documents such as that bearing an “ERNK” stamp or another entitled the “Union of Patriotic Intellectuals of Kurdistan”. All he remembered was gathering and recording documents and books with a political content, without examining them.
415. Mr Acar was not blindfolded at any stage.
33. Mehmet Durmuş
416. Mr Durmuş was born in 1965 and at the material time was the head of a team at the İstanbul Anti-Terror Department.
417. He was involved in the apprehension of Niyazi Çem and İmam Şahin.
418. A fax message was received from the Diyarbakır gendarmerie that these lawyers were wanted for assisting the PKK by acting as couriers for prisoners.
419. On 23 November 1993 Mr Çem was accosted at the İstanbul State Security Court. He was told of the charges against him. He was taken to the Department where he was body searched. A team went to his house to conduct a search. A detention note was sent to the State Security Court for a period of time to be authorised for his detention pending the arrival of the Diyarbakır gendarmes. 7 days were authorised but, before the expiry of that period, he was handed over to the Diyarbakır gendarmes who apparently took him to Bursa.
420. Nothing was seized during the body or house searches.
421. Mr Durmuş knew Mr İmam Şahin and apprehended him at the State Security Court just before a hearing. Mr Durmuş recalled nothing about Azru Şahin.
422. He met Mr Şahin some time after these events at the State Security Court where they did not have any time to talk. All Mr Şahin said was that he had been detained in connection with some PKK confessor.
423. The parties submitted various documents to the Commission and the Court. The Government also presented two video cassettes. The Court has had particular regard to the following material:
1. The relevant parts of the four statements of Abdülhakim Güven (a PKK confessor) to the gendarmerie
a) statement of 15 November 1993
424. Lawyers acted as couriers between the PKK and prisoners. They set up firms, as required by that organisation, e.g. the partnership of E.Y. with Gazanfer Abbasioğlu, and Selim Kurbanoğlu with Şinasi Tür. Nevzat Kaya was making similar efforts. Gazanfer Abbasioğlu acted as a courier.
b) statement of 16 November 1993
425. Mr Güven stated that he had met a PKK guerrilla (code name Beriwan) at Tahir Elçi's house. Mr Elçi was a courier between prisons and the Hakari – Şırnak and Siirt areas.
426. At the PKK's request, Baki Demırhan brought a flick knife into prison, and Sabahattin Acar brought cyanide with the help of his client, the brother of Recip Akkus. Mr Demırhan was part of a team of lawyers who brought PKK publications and books into prison.
427. Hüsniye Ölmez, Meral Daniş Beştaş, Baki Demırhan, Vedat Erten, Mehmet Selim Kurbanoğlu and Fuat Demır (to a lesser extent) also acted as couriers between the Diyarbakır E-type prison, as well as the Mardin, Batman, Mus and Merkez (women only) prisons. They carried, inter alia, notes, instructions and educational materials.
428. Mr Tur had various PKK duties, including acting as a courier and transmitting the PKK's decisions to the prison and prisoners' statements recorded for the organisation. He was also part of the team bringing in PKK publications and books. He had the trust of the organisation and had official links with it.
429. Mr and Mrs Şahin were PKK contacts for İstanbul and its European organisation, passing on information from prisons.
430. Mr Çem was in touch with the PKK's centres in prison. Mesut Beştaş transmitted notes with the help of other PKK couriers. He was also part of the team of lawyers bringing in PKK publications and books. He passed on messages to two previous detainees in the PKK militia, called Cevat and Mahmut. He was the latter's legal representative. They were caught in possession of PKK money amounting to £ 90 million.
c) First supplementary statement
431. Mr Güven mentioned contact with a PKK member called Ahmet Elçi. The latter was in charge of the incidents in Cizre during Newroz in 1992.
432. Hüsniye Ölmez was asked on behalf of the PKK to find a buyer for furniture left in the apartment of a detained PKK member, F.A., who had been jailed. She did not manage to do so.
433. Mesut Beştaş acted as a courier for the PKK, transmitting notes. For example, once he passed information to a person called Fehim (code name Kocer) who was wanted by the security forces, and he also took notes to the militia members called Cevat and Mahmut.
d) Second supplementary statement
434. Mr Güven alleged the involvement of Hüsniye Ölmez in the disposal of the furniture of a PKK detainee, with the initials C.K.
2. Statement of Abdülhakim Güven before the State Security Court Public Prosecutor on 7 December 1993
435. Mr Güven stated that he had become a PKK sympathiser after being influenced by PKK propaganda provided by a certain Ahmet Elçi. He later met a PKK member (code name - Beriwan) at the house of Tahir Elçi, and thereafter began working for the organisation as a courier, propaganda and activity organiser, recruiter and fund raiser. After his capture, he became the PKK's political representative in the Third Dormitory of the Diyarbakır E-Type Prison, where plans were made to kill prison warders. There were also plans concerning turned confessors. To this end, Sebahattim Acar delivered cyanide to him and Bakir Demırhan brought him a flick knife. However, these items were found in the confessors' dormitory before they could be used.
436. Tahir Elçi had conveyed messages to Cizre by way of notes placed in an address book. Mesut Beştaş also took notes to Mr Güven's friends. Hüsniye Ölmez, Meral Daniş Beştaş, Bakir Demırhan, Vedat Erten and Mehmet Selim Kurbanoğlu frequently carried organisational notes and educational materials to other prisons and the rural section of the organisation. Fuat Hayri Demır did so less often. Şinasi Tur maintained relations between the prison and the rural section, conveying journals and conference reports. Mr and Mrs Şahin and Mr Çem maintained the co-ordination between the European and İstanbul organisations and between İstanbul and the prisons. Gazanfer Abbasioğlu acted as a courier and maintained contacts between the Diyarbakır and Gaziantep prisons.
437. Various applicants complained of the excessive pressure being placed on members to become confessors by Prosecutor Tanju at the State Security Court. Mrs Beştaş and Ms Ölmez stressed the matter more than others. They insinuated that he should be killed.
438. Mr Güven also mentioned plans to kill the provincial gendarmerie command's most senior officer.
3. Evidence of Abdülhakim Güven before the Diyarbakır State Security Court on 1 June 1995
439. At a Diyarbakır State Security Court hearing on 1 June 1995, Abdülhakim Güven appeared and the statement he had made to the gendarmerie was read out to him. He confirmed its correctness. [Defence counsel for the applicants repudiated his statements as being a self-serving attempt to gain an acquittal and release.]
440. Mr Güven stated that he was the general representative of the PKK in prison and used to attend the interviews which defence lawyers had with their clients. These lawyers thus mostly saw PKK members.
441. He denied that he had been tried as being a member of the PKK. An investigation against him was made, apparently concerning some written material, but a decision not to proceed was taken.
442. Once the prison PKK members identified a lawyer as being “patriotic”, a decision was taken to contact him, as had been the case with Şinasi Tur.
[Defence counsel denounced these declarations as fictitious.]
4. Statements (all subsequently repudiated by the applicants) taken by officers of the Diyarbakır provincial gendarmerie command
a) Tahir Elçi
(Undated statement which Mr Elçi was recorded as having refused to sign)
443. Mr Elçi was recorded as stating that since his school days he had had a circle of friends who had relations with the PKK. Names of PKK members were cited. He maintained PKK activities in the urban area. He had become a PKK sympathiser in Cizre in 1987. He was apprehended in 1989 and detained at the Diyarbakır E-type prison in 1990 where he received PKK ideological and theoretical training. As a student he organised forums, boycotts, protests and propaganda slogans.
444. Mr Elçi introduced Mesut Beştaş to Abdülhakim Güven, whom he had known for a long time and who liaised with Mr Elçi's brother. A PKK member (Beriwan) was in charge of the town of Silopi, Cizre, and frequently went to Mr Elçi's house. He had acted as a courier for Mr Güven once the latter was in prison, taking notes and the like, hidden in address books and diaries. He had helped a member, code name Firat, to transport sacks full of guns. Mr Elçi was said to have acknowledged his possession of an “ERNK” document and connections with Abdullah Öcalan, the leader of the PKK. He kept and disseminated propaganda publications.
b) İmam Şahin
(Statement dated 20 December 1993 and signed)
445. Mr Şahin was recorded as stating that he had sympathised with the PKK, being influenced by its propaganda. He carried out various tasks assigned to him, such as liaising between members held in different prisons and helping members settle in İstanbul. He had connections with certain high-ranking members (whom he named). His wife assisted the organisation by conveying correspondence and co-ordinating various activities in different prisons. He was the lawyer for the Özgür Gündem newspaper.
446. Mr Şahin took part in the campaign to close the Eskişehir Prison, having repeatedly been asked by “them” to put pressure on State authorities. He and his wife, Niyazi Çem and certain Diyarbakır lawyers analysed the situation. They pursued members' cases and passed on any State security information they obtained to the PKK.
447. He had direct contact with the European PKK organisation. He cited certain incidents and members' names. He brought together other İstanbul lawyers who were deemed “patriots”. He selected potential members of the DEP Party, which many lawyers joined, following the efforts of himself, his wife and Niyazi Çem.
448. Amongst his duties, he was to collect, fabricate and spread propaganda about, for example, ill-treatment in police custody, allegations of extorted statements, the unlawful operation of courts, and unlawful arrests and detention; and about the fact that the PKK was an organisation acting in self defence, not for terrorism, that villages were burned down and plundered and that State death “squads” were in operation, etc. The intention was to defame the State, and all kinds of lies were faxed to Europe on the instructions of the PKK. His wife was involved in this work, as were Selim Kurbanoğlu, Sebahattim Acar, Hüsniye Ölmez, Niyazi Çem, Meral and Mesut Beştaş, Vedat Erten, Gazanfer Abbasioğlu, Nevzat Kaya, Şinasi Tur, Fuat Hayri Demır, Arif Altinkalem, Tahir Elçi and Baki Demırham.
449. Mr Şahin was also recorded having admitted that he acted as a courier out of the Bursa, Gaziantep, Mardin, Elazığ and İstanbul prisons.
c) Arzu Şahin
(Statement dated 22 December 1993 and signed)
450. Arzu Şahin was recorded as stating that one of her PKK duties was to belittle the Republic of Turkey in the international arena. This was done by fabricating applications to the European Court of Human Rights, in which false allegations were made of torture being used against people, even lawyers.
452. On one occasion she believed she had transported documents and hand grenades for the PKK from Diyarbakır to İstanbul. Two people picked them up from her house. They stayed two days and then were taken away by Niyazi Çem. One of these people was a woman called Beriwan. Other lawyers working for the PKK were MM. Elçi, Acar, Tur, Erten, Çem, Beştaş, Demırhan and Demir, and Mrs Beştaş.
d) Nevzat Kaya
(Statement dated 6 December 1993 and signed)
453. Mr Kaya was recorded as stating that he had met members of the PKK for the first time in 1990. A young man came to his office saying that he was a PKK member and the “ERNK” leader in Diyarbakır. Mr Kaya was asked to help by acting as a PKK defence lawyer for a small fee. Mr Kaya was anyway charging low fees at that time. A week later he took a sealed envelope from this person to a client of his who was detained on remand at the Diyarbakır E-type prison. He acted as a courier between members, such as Abdülhakim Güven, in different prisons. On one occasion he brought many Tshirts, pyjamas, jackets and shirts for the PKK prisoners, together with pamphlets. He sent a fax on behalf of a representative called R.A. from the Diyarbakır Human Rights Association to the European Human Rights Association. He also smuggled audio-cassettes for this person. Almost all the lawyers were engaged in such activities, including all the applicants in the present case, whom he cited.
e) Şinasi Tur
(Statement dated 8 December 1993 and signed)
454. Mr Tur was recorded as saying that he had been imprisoned in 1993 when he underwent a high-level training course, after having made a “statement of self-criticism”. Before his imprisonment, he had had contacts with PKK leaders in the Gap district and the mountains, and had acted as a courier to such prisoners as Abdülhakim Güven, using cigarette packets, address books, diaries and the like. He had harboured a dying PKK member at a relative's house and, with the help of Selim Kurbanoğlu, delivered the body to a specific place in November or December 1992. Mr Tur cited various lawyers involved in similar activities, including all the applicants. Moreover Sebahattim Acar together with someone else were said to have smuggled cyanide into the Diyarbakır E-type prison.
f) Sabahattim Acar
(Statement dated 7 December 1993 and signed)
455. Mr Acar was recorded as stating that he had first met PKK members when visiting his father's village. He had considered them “liberators”, having sympathised with them since he was a schoolboy. He was taken to meet other members and advised that, as a Kurd, he should struggle against the “fascist Turkish State” in the urban areas, defending PKK detainees for a small fee. Mr Acar had mentioned that all the Diyarbakır lawyers working in the State Security Court, including the applicants, were voluntarily working for the PKK.
456. He informed these people that the commander of the Diyarbakır provincial gendarme command was anti-Kurdish, exerting extreme pressure on PKK supporters in the region, and that he should be assassinated.
457. Thereafter he acted as a courier between prisons, constantly meeting Abdülhakim Güven and other political representatives. He defended detained PKK militiamen for a small fee, spread propaganda and persuaded and threatened recalcitrant militiamen to return to the mountains on release.
458. The defence lawyers ensured PKK coordination between prisons, smuggled out press-releases for the Özgur Gündem newspaper, smuggled in poison, a knife, messages and prohibited publications, intimidated Public Prosecutors to ensure the aims of the PKK detainees, and disseminated false propaganda in Europe. He worked closely with Hüsniye Ölmez on all of this. He was paid between 500,000 and 1,000,000 lire in travel expenses each time he carried a message between prisons. He himself had smuggled cyanide to Abdülhakim Güven. He photocopied the State Security Court files of PKK confessors and other captured members, giving the files to a specified PKK member, code named Şehmuz. Other such incidents were described.
459. He had obtained books and articles praising the PKK in order to learn more about the organisation, and took them into prison for training people there. He used to write reports on incidents in the region which he faxed to Human Rights associations in Europe with a view to blackening and discrediting Turkey in its treatment of Kurds.
g) Niyazi Çem
(Statement dated 7 December 1993, which Mr Çem was recorded as having refused to sign)
460. Mr Çem was recorded as stating that he sympathised with the PKK because of his Kurdish origins and had used his professional skills to assist it - acting as a courier and defence lawyer. He was engaged in disseminating propaganda to discredit the Turkish State abroad. He conveyed oral instructions to Abuldhakim Güven regarding the interruption of a review called “Free people”. He was given 510 million lire, as his activities for the PKK prevented him doing more legal work, and once transported 2 kilos of heroin from Diyarbakır to İstanbul. For five days he also harboured an ailing PKK woman in his house and procured medicine for her.
461. Mr Çem was tipped off not to return to Diyarbakır as Abdülhakim Güven had become a confessor and might have been about to denounce him.
h) Mehmet Selim Kurbanoğlu
(Statement dated 6 December 1993 and signed)
462. Mr Kurbanoğlu was recorded as stating that he had sympathised with the PKK since his school days and had become more and more influenced by them when he acted as their defence lawyer and through his friend Şinasi Tur. He met Abdülhakim Güven who said he would provide him with cases, in return for which he had to act as a courier, as did other lawyers. He received occasional sums of up to 1,000,000 lire in travel expenses for carrying messages between prisons. He helped Şinasi Tur transport the body of a dead PKK member.
463. He had received an “ERNK” note about his courier activities one evening on his way home from the State Security court. He had forgotten to take it out of his pocket, so it was found on him when he was apprehended.
i) Meral Danis Beştaş
(Undated statement, which Mrs Beştaş claimed she had not signed, but her refusal was not recorded on the document)
464. Mrs Beştaş was recorded as stating that she had known PKK members for years, having become a sympathiser when she was a law student, it being an organisation engaged in an armed struggle with the Turkish State for Kurdish freedom and independence.
465. After marrying Mesut Beştaş and setting up a law practice with him, they gradually became involved as PKK couriers between prisons. Lawyers who did not support the PKK could not plead cases before the State Security Court. She spread propaganda belittling the Turkish State. She and Hüsniye Ölmez tried to expose the State Security Court to public scrutiny and she worked for the Diyarbakır Human Rights Association. She acted in solidarity with other applicants.
466. The PKK had told her that she would receive PKK funding to open an office. She had a close friendship with Abdülhakim Güven. She denounced to the PKK a particular prosecutor who intimidated and hindered her and Ms Ölmez in their defence work, and had threatened them with arrest. There was talk of eliminating him. Discussions were held about defence tactics, as some accused PKK members were too passive before the State Security Court, and the training of remand prisoners was raised.
467. Mrs Beştaş copied the court case files of confessors and showed them to the organisation. She and her husband converted PKK money into Deutschmarks. They took oral and written messages to the women's section of the Mardin Elaziğ Central Closed Prison. They delivered other messages to the Diyarbakır E-Type Prison. On one occasion she received 400,000 lire for travel expenses. She had had a PKK brochure in her bag when she was apprehended, which she had intended to photocopy and give to her friends.
j) Mesut Beştaş
(Statement dated 6 December 1993 which, although signed, had been marked by Mr Beştaş with the letters “IMT”, to signify his refusal)
468. Mr Beştaş was recorded as stating that he had become a PKK sympathiser at school due to the second-class status of Kurds and the PKK goal of Kurdish freedom and independence. He cited several applicants who, together with him, defended PKK members on the instructions of the organisation. If one did not support the PKK, one had no State Security Court work. He acted as a PKK courier to and from prisons and gave several specific examples. Militiamen visited him at home to receive information about the cases of detained members. At Abdülhakim Güven's request, he conveyed a message hidden in an address book and a pen to PKK members and he brought messages back to Mr Güven. He changed millions of lire into Deutschmarks, given to him regularly once a month, which he handed over to a high-ranking PKK member. He accused many of the applicants of being PKK couriers too. On the day of his apprehension he was carrying an “ERNK” sealed message which he had forgotten to take out of his pocket.
k) Vedat Erten
(Statement dated 8 December 1993 and signed)
469. Mr Erten was recorded as stating that he had become a PKK sympathiser through the influence of propaganda disseminated when he was a student. It was a “fashionable” opinion to hold. He cited many of the applicants as having close relations with the PKK, advocating its policies and defending its interests. They all acted as prison couriers, meeting people like Abdülhakim Güven. Mr Erten was paid for his travel expenses. He gave specific examples of messages he had carried. As he had no work, he asked the PKK representatives to refer cases to him. When he was not paid, he received a minimum 750,000 lire fee per client from the organisation.
l) Baki Demırham
(Statement dated 7 December 1993 and signed)
470. Mr Demırham was recorded as stating that he had commenced sympathising with the PKK at school where its publications were circulated. Once in legal practice, he visited clients in prison and met people like Abdülhakim Güven, who criticised him for providing insufficient support to the PKK. They threatened him with no work if he continued in this manner. As Mr Demırham was extremely poor and the PKK was fighting for Kurdish independence, he accepted all their assignments. Mr Güven used him as a courier and paid him 500,000 lire for travel expenses. He carried hidden notes in a diary and a pen. He cited a few examples. He smuggled a flick knife into prison and gave it to Mr Güven. Many of the applicants were also involved in courier work. They sent faxes to European human rights associations and denounced incidents as if they had been perpetrated by security forces, with the intention of blackening the reputation of the Turkish State. He recalled a PKK forum where certain lawyers had received political, theoretical and military training for 6 months. He felt no remorse for his PKK activities.
m) Mehmet Arif Altinkalem
(Statement dated 7 December 1993 and signed)
471. Mr Altinkalem was recorded as stating that he had been impressed at school with PKK exploits in 1978-1979. When the army took power in 1980, the PKK's activities were interrupted but as of 1984 they resurfaced. He supported the PKK, taking part in demonstrations and the like. He frequently visited the Diyarbakır Human Rights Association which was spreading PKK propaganda and receiving PKK visitors. He worked closely with another lawyer, Sedat Aslantaş, who had PKK connections. He accompanied Mr Aslantaş to see clients in prison and was introduced to Abdülhakim Güven. They took a message for him to the Gaziantep prison. They used an address book and a pen. They were to procure PKK publications for Mr Güven which were to be sent through himself, Baki Demırham or Meral Danis Beştaş. Mention was also made of Tahir Elçi's assistance. Messages were carried back from Gaziantep to Mr Güven. Mr Aslantaş and Mr Altinkalem were given 500,000 lire for travel expenses. He said that nearly all the Diyarbakır lawyers were engaged in PKK activities, and cited most of the applicants.
472. He had been given four “ERNK” receipts to transmit to lawyers from outside the area who had made PKK contributions. These were allegedly found on his person when he was apprehended.
n) Mehmet Gazanfer Abbasioğlu
(Partial statement submitted, undated, unsigned)
473. Mr Abbasioğlu was recorded as saying that he had become a PKK sympathiser and had participated in demonstrations and the like in their support. The organisation suggested that the lawyers would be more effective working in teams, so Mr Abbasioğlu joined the office of a colleague. He used to visit the Diyarbakır E-Type prison where he met Abdülhakim Güven, a high-ranking PKK officer. Clients were referred to Mr Abbasioğlu.
o) Fuat Hayri Demir
(Partial statement submitted, dated 8 December 1993 and signed)
474. Mr Demir was recorded as stating that he had acted as a prison courier for people like Abdülhakim Güven, using a small address book and cigarette packets. He and his fellow lawyers were shocked when they learned that Mr Güven had become a confessor, and they feared denunciation. He cited the code names of various PKK members whom he had met. In one message he carried, there was mention of Hüsniye Ölmez and Nevzat Kaya. He procured 20 micro-cassettes for a PKK member. The message asking him to do this was found on him when he was apprehended.
p) Hüsniye Ölmez
(Statement dated 8 December 1993 and signed)
475. Ms Ölmez was recorded as stating that she had some sympathy with the PKK, being Kurdish herself. She was contacted by two PKK members and asked to assist. She had replied that she was already doing so in defending militants and militiamen captured by the security forces. She gave her visitors 300,000 lire as they said they had no money. On another occasion she doctored an identity card for one of these PKK members. Once she harboured a 2 kilo bag of heroin overnight. She gave more money and procured medicines on other occasions. On a visit to her father, she was photographed with PKK members, she being dressed in PKK colours, holding a gun. She received an increasing number of PKK defendants, but did not charge for her legal services. She worked for the PKK and acted on their instructions.
476. She became a prison courier, such work intensifying in 1992. She tried doing less but it was not possible. She carried messages for Abdülhakim Güven using a pen and a diary. She gave a few examples of those messages and cited various other PKK contacts, as well as many of the applicants. Lawyers who refused to assist the PKK received no cases. She was also required to assist in order to protect her family. She contributed to the defamation of the Turkish State with faxes addressed to the European human rights association. At one stage Mr Güven had asked Ms Ölmez about a particular Public Prosecutor, but she did not know him. She heard later that there were plans to assassinate this person. She cited many of the applicants who had also acted on PKK instructions.
477. A document in which she had denounced the Turkish army was found on her when she was apprehended.
5. An identification and confrontation report with statements
478. A collective statement in which Mr Güven identified the applicants, and they acknowledged him, was drawn up on 7 December 1993 and signed by Mr Güven as well as by most of the applicants. Although the names of MM. Elçi and Çem and Mrs Beştaş appeared, it was recorded that they did not sign the document.
479. Mr Güven alleged that the applicants had worked as PKK couriers and the applicants purportedly conceded that in a standardised form. Similar reports were drawn up on 8 December 1993 in respect of Mr Tur, and on 16 December 1993 in respect of Mr and Mrs Şahin.
6. Other statements by the applicants, their associates or relatives at the material time
480. Shortly after their initial period in gendarme custody, the applicants gave statements to the Diyarbakır Human Rights Association which were apparently forwarded to the London based Kurdish Human Rights Project in December 1993 and January 1994. The statements became part of the applications to the Commission and are summarised in paragraphs 13-69 above. Other statements were taken by the Association around that time, including a statement dated 30 November 1993 from Burhan Acar, the nephew of Sabahattin Acar, confirming the latter's description of his arrest and the search of his home on 15 November 1993 (paragraph 37 above). The brothers of Tahir Elçi, Ömer and Mehmet, confirmed in a statement dated 15 December 1993 the applicant's version of the search and seizures made at his office and home on 23 November 1993 (paragraphs 13 and 18 above).
481. An associate of Gazanfer Abbasioğlu, Zeynep Tasli, who had been present when the former was aprehended, stated that she and Mr Abbasioğlu had signed a search report of his office even though no such search was in fact made.
482. Further detailed statements were submitted to the Commission in late October and early November 1998 by MM Elçi, Çem, Beştaş, Altinkalem, Abbasioğlu and Demirhan, as well as by Mrs Beştaş, confirming their original allegations.
7. Search, seizure and apprehension reports
a) A disputed seizure record concerning the office of Tahir Elçi (faxed copy only provided by Government)
483. The report dated 23 November 1993 recorded a search at Mr Elçi's office around 10.30 a.m. and the seizure of several documents, including materials entitled “Kurdish-triumph”, “Kurdish-merciless”, “The DCP (the Democratic Party) Constitution”, “Kurdish-motherland”, “ERNK” (National Liberation Front of Kurdistan) publications - “The hope of the people”, 67 case files and a hand-written note saying:
“Comrade Tahir Elçi, Comrade, we have received the Mazlum Doğan Conference Resolution you sent to us, and we have passed on the note you gave to Ferhat to the leader. But there are not enough weapons. Put pressure on the smuggler; and our old messenger has been caught. Look after his case as well. Rescue him and tell Comrade Selahattin to do that job quickly. Revolutionary greetings. Signed Roserin”.
484. The note had Mr Elçi's signature on it, and was stamped “ERNK”, but no original was ever produced. Only a faxed copy existed in the State Security Court file.
b) Undisputed report concerning Tahir Elçi
485. This report described documents seized at Mr Elçi's office, including 68 case files (instead of 67), one of which was an application by Suleyman Kutluk to the European Commission of Human Rights. However, none of the Kurdish or “ERNK” documents mentioned in the preceding seizure report, other than the document entitled “Kurdish-merciless”, were noted. It stated that nothing incriminating was found on Mr Elçi. His personal belongings and all the seized papers were handed over, together with Mr Elçi, to the Cizre district gendarme command on 23 November 1993.
c) Undisputed confiscation record concerning the office materials of Tahir Elçi
486. This record was significantly shorter and stated that files, journals and documents had been confiscated and taken to the District Security Directorate. The report had the same date and times as the foregoing records, and an original version was in the State Security Court file bearing Mr Elçi's signature.
d) Search with consent report concerning Mr Elçi's office
487. This report stated that Mr Elçi's office was searched on 23 November 1993 at 10.30 a.m. with his consent, a large number of documents being seized for further examination. Mr Elçi indicated that no loss or damage had occurred as a result of the search.
e) Search with consent and confiscation report concerning the house of Sebahattim Acar
488. Gendarmes and police officer searched Mr Acar's house on 15 November 1993. The report was made up and signed at 11.30 p.m. It described the seizure of various documents, including those entitled “The paths and tasks of the Turkish Revolution”, “Thoughts on the PKK”, “Kurdistan under fire” and several publications by or concerning Abdullah Öcalan, such as “Facism and the PKK resistance” and “Questions of socialism and revolution”.
f) Undisputed search report of the home of Mehmet Selim Kurbanoğlu
489. The report noted the search of Mr Kurbanoğlu's home on 20 November 1993, during which nothing incriminating was found.
g) Disputed search report of the home of Mehmet Selim Kurbanoğlu
490. The report again recorded the search of Mr Kurbanoğlu's home on 20 November 1993, during which a note was found with an “ERNK” stamp on it.
h) Disputed report on the taking into custody and personal search of Meral Danis Beştaş and Mesut Beştaş
491. The report noted that a Kurdish leaflet entitled “BANG” from the “YRWK” (the intellectuals' wing of the PKK) was found on Meral Danis Beştaş and an “ERNK” document was found on Mesut Beştaş.
i) Disputed report on the taking into custody and personal search of Arif Alltinkalem
492. It was recorded that an “ERNK” receipt was found on Mr Altinkalem.
j) Apprehension and body search report concerning Fuat Hayri Demir
493. The report signed by the applicant and dated 3 December 1993, the day of his apprehension, stated that the applicant was wanted for his connections with the PKK and for acting as a courier. It also recorded that a note bearing an “ERNK” stamp on it and addressed to Comrade Fuat Demir was found. No other incriminating material was discovered.
8. Custody records from the Diyarbakır provincial gendarmerie command
494. The custody records showed that 73 people had been taken into custody by the gendarmerie from 15 November 1993, when Sabahattin Acar was detained, until 11 December 1993 when Mr and Mrs Şahin were noted as having been detained. The records revealed that some 45 people were being held at the same time.
495. To some extent the dates recorded corresponded to those set out in the indictment table (paragraph 534 below), except for the following:
- Tahir Elçi's custody was recorded as of 25 November 1993 (probably the date of his transfer to Diyarbakır from Cizre, where he had been apprehended on 23 November 1993);
- Mr and Mrs Şahin's custody was recorded as of 11 December 1993 (probably the date of their transfer from İstanbul, where they had been apprehended on 7 December 1993);
- Niyazi Çem's custody was recorded as of 28 November 1993 (probably the date of his transfer from İstanbul, where he had been apprehended on 23 November 1993); and
- Mehmet Selim Kurbanoğlu's custody was recorded as of 20 November 1993, although the indictment refers to 19 November 1993.
498. The aforementioned applicants said that they had started out as lawyers who, in the course of their work and in order to earn a living, sometimes had to represent people accused of terrorist, PKK involvement. When visiting such clients in prison, the “head of the political prisoners” systematically sat in on the interview to monitor the conversation and intervene when he thought appropriate. The prison officers stated that they had left the political prisoners to organise themselves in this and other business for fear of reprisals to either themselves or their families.
499. Most of the lawyers recounted that they had not actively collaborated with the PKK or its prison members. However, some of them acknowledged that they had carried notebooks, diaries, pens and the like between prisons from one client to another. They had not inquired as to the reason or the content, knowing that it was in their best interests to remain ignorant, if they wished to continue in legal practice without reprisal from the PKK.
500. Şinasi Tur recounted, inter alia, that his brother had been a member of the PKK who had been killed. He himself had been given 5000 Deutschmarks to buy mobile telephones for a PKK member. He had also prepared some fake identity cards for that organisation.
501. Baki Demırhan said, inter alia, that the Diyarbakır lawyers like himself had been manipulated by the PKK emotionally, politically and economically. He had received instructions from the “head of the political prisoners” at the Gaziantep Prison, and he had carried notes and booklets between prisoners, to and from that prison and the Diyarbakır Prison. The defence lawyers had been instructed to set up human rights commissions within the bar associations.
502. Hüsniye Ölmez stated, inter alia, that after two years of scraping a living as a lawyer in Diyarbakır, she had had to appear as a PKK sympathiser in order to get work. She was recognised as a good lawyer, which is why the Government accused her of being a PKK member. Her family and its considerable wealth had been attacked and intimidated in an attempt to force them to pay “tax” to the PKK. She had come under pressure from the “head of the political prisoners” to act as a courier. She had once taken some belongings out of one of the prisons.
503. Vedat Erten claimed, inter alia, that he had never knowingly or overtly assisted the PKK, and that his law practice had suffered as a result. He had had a few PKK clients.
10. The records of Prosecutor Haney at the State Security Court
504. Mr Haney took statements from the applicants at the end of their detention by the gendarmes. They all rejected the charges against them and the allegations of Abdülhakim Güven, as well as claims that they had been found with incriminating PKK or “ERNK” documents. Those who had signed statements at the gendarmerie said that they had been forced to do so.
505. Şinasi Tur and Sebahattim Acar specified that the severe torture of Mmes Beştaş and Ölmez and MM. Elçi and Çem had scared them into signing.
506. Mr Elçi alleged that he had been tortured, as had Mr Çem and Ms Ölmez. This was confirmed by Mr Çem in his statement to the Prosecutor, who also alleged that Mrs Beştaş had beeen tortured. The latter declared that she had been kept blindfolded in a cell and tortured. MM. Beştaş and Erten alleged they had been tortured, as did Ms Ölmez.
507. Several applicants said they had not been confronted with Mr Güven, one reason being that, as they had been blindfolded, they could not identify anyone who spoke to them. They all repudiated the confrontation records with Mr Güven and / or his statements about them.
11. Record of the applicants' interrogation by Cafer Sadik Ural, the Investigating Judge, on 10 December 1993
a) Baki Demırhan
508. Mr Demırhan refuted the charges read out to him by the Investigating Judge. He had had no relationship with the PKK other than acting as a defence counsel. He had not acted as a courier between prisons (especially Gaziantep prison where he had never set foot). Nor had he brought into prison any knife. At that time lawyers were searched before being admitted into the prison, so carrying in a knife would have been impossible. He knew Abdülhakim Güven, who was angry with Mr Demırhan for dissuading his brother from joining the PKK.
509. Mr Demırhan rejected the statement he had signed under pressure at the gendarmerie and the allegations of Mr Güven against him. He therefore repudiated the confrontation record concerning the latter. He denied having been confronted with him at all.
b) Gazanfer Abbasioğlu
510. Mr Abbasioğlu rejected the charges read out to him as groundless, as well as his statement to the gendarmes. He denied the accusations of Mr Güven with whom he had been purportedly confronted, but as he had been blindfolded he had not been able to identify him fully. He had been punched at that moment. He had not acted as a courier for him and had only signed the statements because he had been scared by the screams of Tahir Elçi, Meral Daniş Beştaş and Niyazi Çem when they had been tortured for a long time with cold water.
511. He acknowledged the statement he had made to the Public Prosecutor.
c) Mesut Beştaş
512. Mr Beştaş denied the charges read out to him as groundless. He had not acted as a courier or possessed a document stamped by the “ERNK” purportedly found on him. He said that the stamp was not of the usual kind which could be found and that it would have been illogical of him not to have destroyed it at the State Security Court before the end of the day after he had been identified earlier by the officers who were to detain him.
513. He repudiated a preliminary inquiry report dated 6 December 1993 and pointed out how he had tried to record an abstention on that document. This accounted for the difference in signature from the statement he had made to the Public Prosecutor, which statement he confirmed. He also rejected a confrontation record with Mr Güven, given that he had been held blindfolded and had not spoken to anyone.
d) Meral Daniş Beştaş
514. Mrs Beştaş denied the charges, read out to her, of having been a PKK courier and of having been found with an “ERNK” document on her. She repudiated the contents of a preliminary statement, which she had not signed. She alleged she had been in agony for 25 days, having been sexually harassed, stripped naked and doused with cold water for 3 hours. Despite that treatment, she refused to sign any documents.
515. She denied the allegations made by Mr Güven, whose brother she had defended, as she had defended other persons accused of PKK-related crimes. That was her sole contact with the PKK - acting professionally as a defence lawyer.
516. She confirmed the statement she had made to the Public Prosecutor.
e) Nevzat Kaya
517. Mr Kaya denied acting as a PKK courier. He had no relation other than that of lawyer/client with the prison. He repudiated the preliminary statement which he had signed after repression and torture – cold water and sexual harassment. He also rejected the confrontation report with Mr Güven, who had intervened in conversations he had had with his clients, being the prisoners' representative. He confirmed his statement to the Public Prosecutor.
f) Arif Altinkalem
518. Mr Altinkalem denied any relations with the PKK. He denied having been a PKK courier and having been found in possession of an “ERNK” receipt. If he had had a PKK document on him, he would have destroyed it during the day after he had been incorrectly identified as Baki Demırhan. He said that the signature on the arrest and search report was not his. A preliminary statement was taken from him by force, a fact of which he had medical proof. He confirmed his statement to the Public Prosecutor, but not the confrontation record with Mr Güven, as he had been blindfolded and had not recognised the voice of the persons who had spoken to him. Mr Güven was the prisoners' representative and had listened to the conversations between lawyers and their clients. Mr Güven had confirmed that he had never seen or heard of any note, information or PKK comment being transmitted by the applicant.
g) Vedat Erten
519. Mr Erten denied acting as a PKK courier and said that he used to get angry when Mr Güven approached him to listen to his conversations with his clients. He disputed Mr Güven's statements against him, the confrontation record and the preliminary statement, which he alleged had been forced from him under torture. He had not had any PKK document on him when apprehended. It would have been irrational to have carried such a document at that time.
h) Mehmet Selim Kurbanoğlu
520. Mr Kurbanoğlu denied assisting the PKK either alone or with his partner, Şinasi Tur. Nothing incriminating had been found on him and allegations that he had held PKK documents were groundless. He had not admitted the police officers to his home when they first arrived, and any such document would have been destroyed while the police waited outside. The house search report should also have had his cousin's signature on it. His signature on the arrest report and preliminary statement were made under pressure. He confirmed his statement to the Public Prosecutor.
i) Sabahattin Acar
521. Mr Acar denied the charges against him and alleged that he had been subjected to repression and torture during his detention, together with Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez. He had been stripped naked and beaten, whereas cold water had been poured on Tahir Elçi and Niyazi Çem. After seeing that, he had signed whatever was required in order to avoid aggravating a kidney problem he had.
522. His preliminary statement was taken by force. He denied any involvement in bringing cyanide into prison, as alleged by Mr Güven. He also denied that he had acted as a courier and that PKK documents were found during the search of his house. They had been attached to the file after the search had been made. He acknowledged a photograph of himself and his nephew, who was wearing a tie in PKK colours.
523. He had been working on files for the Human Rights Association between 1990 and 1992, which documents were seized, and following which he was victimised.
j) Fuat Hayri Demır
524. Mr Demır denied acting as a PKK courier, passing money, or the like. He claimed that no PKK documents had been found on him. As he was aware of the arrest of his friends earlier, it would have been irrational of him to carry around such documents.
525. He alleged that he had signed the preliminary statement after electric shock torture. He disputed Mr Güven's allegations, which he may have made because Mr Demır had tried to prevent him interfering in his discussions with his clients in prison.
526. He confirmed the statement he had made to the Public Prosecutor.
k) Şinasi Tur
527. Mr Tur denied the new charges against him of having acted as a courier and of having harboured a PKK member at his brother-in-law's house. He said that Mr Güven's allegations were groundless.
l) Tahir Elçi
528. Mr Elçi denied the charges against him and any allegation that “ERNK” or illegal documents had been found in his office or house. He denied the preliminary statement and confrontation record with Mr Güven, both of which he had refused to sign. Mr Güven's only relation to him was as a neighbour. A faxed arrest report did not have his authentic signature on it. He confirmed the statement he had made to the Public Prosecutor.
m) Niyazi Çem
529. Mr Çem denied having acted as a courier for the PKK, having accompanied a PKK member by aeroplane and having transmitted money to Mr Güven. He repudiated the preliminary statement and the confrontation record with Mr Güven, which he had not signed. He confirmed his statement to the Public Prosecutor.
n) Hüsniye Ölmez
530. Ms Ölmez denied the contents of the preliminary statement which she was ashamed to say had been extracted from her under torture, including being stripped naked, sexually harassed and beaten while being doused with cold water. She also refuted the statements of Mr Güven and Fatima Demirel. (Ms Demirel had retracted her incriminating statement against the applicant later - paragraph 533 below.) Ms Ölmez had been a lawyer for 20 years and had not plotted with the PKK. Mr Güven had been a prisoners' representative and had given statements in order to benefit from the Remorse Law. She confirmed her statement to the Public Prosecutor and denied the slanderous allegation that she had hidden heroin.
o) The Court's decision
531. In conclusion, the Investigating Judge decided to remand in custody Sabahattin Acar, Tahir Elçi and Hüsniye Ölmez under Article 104 of the Code of Criminal Procedure; to release Bakir Demırhan, Gazanfer Abbasioğlu, Mesut Beştaş, Meral Daniş Beştaş, Nevzat Kaya, Arif Altinkalem, Vedat Erten, Mehmet Selim Kurbanoğlu, Sabahattin Acar, Fuat Hayri Demır, Şinasi Tur, Tahir Elçi, Niyazi Çem and Hüsniye Ölmez “having regard to the characteristics of the offence and the existing evidence”; and to release pending trial Mesut Beştaş, Meral Daniş Beştaş, Arif Altinkalem, Mehmet Selim Kurbanoğlu, and Fuat Hayri Demır “considering the date of their arrest, the evidence, the characteristics of the offence, and that the fact that their residence is known”.
12. Other third party statements
a) Statement of Abdülhakim Bakir on 17 March 1993
532. Mr Bakir, a PKK confessor like Mr Güven, described how poison and a flick knife had been smuggled into prison in January 1993 by a certain A.K.
b) Evidence given by Fatma Demirel to the Diyabakır State Security Court on 22 November 1994
533. Ms Demirel said that she had heard of Hüsniye Ölmez and Meral Daniş Beştaş but that she had never met them. She repudiated the statements she had given in custody, particularly the allegations regarding these two lawyers, which had been written by the interrogators and which she had been forced to sign.
536. The indictment required that all the defendants
“be tried according to the rules of Law No. 2845, penalised severely under Articles 168/2, 31, 33 and 40 of the Turkish Criminal Code, and 5 of Law No. 3713, and that the offending articles recorded as being in safe-keeping be confiscated.”
539. Some of the applicants who had been remanded in custody - Tahir Elçi, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş, Vedat Erten, Arif Altinkalem, Hüsniye Ölmez, İmam Şahin and Arzu Şahin - submitted a joint statement of defence to the court on 17 February 1994 and requested their release, which was granted. In their statements they denounced, inter alia, the lack of evidence against them, unlawful interrogation methods, which had led some of them to sign fabricated confession statements, and fabricated search reports by gendarmes in which it was falsely alleged that certain PKK documents had been found on them.
540. Mehmet Selim Kurbanoğlu lodged a defence statement with the court on 20 January 1997 in which, inter alia, he denounced the absence of evidence against him and disputed a fabricated search report of his home (paragraph 490 above) in which a note with an “ERNK” stamp on it had purportedly been found. He alleged that his statement to the gendarmes had been extracted under torture, contrary to Article 135a of the Code of Criminal Procedure, and that the whole case was based on an intolerance of defence lawyers before the court.
541. Vedat Erten lodged a separate objection to his arrest, detention and remand in custody with the State Security Court Prosecutor for submission to that court, and requested bail. He alleged, inter alia, that he had been treated shamefully in the custody of the gendarmes for 18 days (17 days according to official records), being interrogated with illegal and inhuman practices which led him to sign documents, the contents of which he repudiated. Despite the general awareness of the round-up of the Diyarbakır lawyers at that time, strangely enough all of them were purportedly found with compromising documents on them.
542. The Diyarbakır provincial gendarmerie commander submitted to the State Security Court a global statement which included, inter alia, the following elements:
- Tahir Elçi had been in contact with PKK members in the mountains, providing them with weapons, and had liaised between Cizre and Diyarbakır;
- Nevzat Kaya confessed to being a PKK courier and had procured clothing which he had given to Mr Güven, as well as two micro-tapes;
- Şinasi Tur had confessed to being a PKK courier, and had harboured an injured PKK member and, when he died, helped in the disposal of the body;
- a note had been sent by the “YRWK” (the intellectuals' wing of the PKK) which had been found on Sabahattin Acar;
- Niyazi çem had been a courier and had transported heroin for a PKK member to İstanbul;
- Mehmet Selim Kurbanoğlu acknowledged his involvement as a PKK courier and regional representative, and in the disposal of the body of a deceased PKK member;
- Meral Danis Beştaş admitted that she was a PKK courier, and had faxed PKK materials to Europe through the Human Rights Association which had defamed the Turkish State; she had given information to the PKK about a particular Public Prosecutor whom it was planned to assassinate and had been found in possession of a “YWRK” document called “BANG”;
- Mesut Beştaş had confessed to being a courier; he had defended PKK members, had had a PKK note on him when apprehended and had sent PKK people to the mountains;
- Vedat Erten had been a PKK courier and had been found with a note on him from a prisoner;
- Baki Demırhan had admitted that he was a PKK courier and that he had tried to smuggle a flick knife into prison;
- Arif Altinkalem had said that he was a PKK courier and had been found with a receipt from the “ERNK” and a PKK photograph;
- Gazanfer Abbasioğlu admitted that he was a PKK courier, and had given information to the PKK about a particular Public Prosecutor whom it was planned to assassinate;
- Fuat Hayri Demır was a PKK courier who had established connections between the Tunceli Human Rights Assocation and the prison there; he had been arrested with a PKK note on him; and
- Hüsniye Ölmez had said that she was a PKK courier; she had kept 2 kilos of heroin for the PKK at her home, had been planning to help an imprisoned PKK member sell his personal property, and had proposed that a Diyarbakır Public Prosecutor be killed; a PKK report had been found on her and the address book of another suspect in the case had been found at her home.
543. The commander also submitted to the court the video recordings that had been made of the applicants' interrogations, their statements, as well as that of Mr Güven, the PKK documents purportedly found on the accused and a weapon.
544. After the hearings on 17 February and 28 April 1994, the State Security Court took certain procedural decisions, although none related to the allegations of torture, ill-treatment or undue pressure.
545. Records of the hearing of the State Security Court dated 17 September and 7 November 1996, 21 January, 8 April, 16 June, 16 September, 4 November and 23 December 1997, and 3 March, 21 April and 9 June 1998, were submitted to the Commission. They showed constant adjournments and certain procedural decisions, with the case eventually being stalled due to the non-appearance of certain key witnesses, especially Abdülhakim Güven whose address was unknown.
15. Medical evidence
a) Medical examination of İmam Şahin and Arzu Şahin, 10 December 1993
546. Following their apprehension on 7 December 1993, Mr and Mrs Şahin were taken by the police to an İstanbul medical institute on 10 December 1993 which certified that they were fit.
b) Medical report by Dr Lokman Eğilmez, dated 10 December 1993 at 7.30 a.m.
547. Dr Eğilmez, in a one page collective report, certified that the applicants showed “no marks of blows or force”, except for Mr Altinkalem who had a small, violet coloured bruise on the outer side of his right knee.
c) Further medical report by Dr Lokman Eğilmez of Hüsniye Ölmez at her request on 13 December 1993
548. Dr Eğilmez noted two faded, green bruises, 1 cm in diameter on the left side and lower part of her knee.
d) Medical report of Dr Mahmut Demirel dated 13 December 1993 of Meral Daniş Beştaş
e) The medical opinion of Dr C.M. Milroy, Senior Lecturer in Forensic Pathology at Sheffield University [GB] (document dated 11 November 1998, submitted by the applicants' representatives)
550. In the context of the cases of Tahir Elçi, Niyazi Çem, Şinasi Tur, Sabahattin Acar, Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten and Hüsniye Ölmez, Dr Milroy commented on the medical procedures for the examination of detainees.
551. Much of the treatment alleged by the applicants (blindfolding, being spread-eagled, being subjected to continuous loud music, death threats, slapping or being stripped naked and doused with cold water) would not leave any external physical signs. However, the cold water treatment could result in hypothermia and pneumonia.
552. General beating may lead to bruising and a meagre diet would lead to weight loss, hence the need to record a prisoner's weight at the start and at the end of the detention period. A general assessment of the patient's physical condition would also provide evidence of the prisoner's nutritional status.
553. As regards Meral Daniş Beştaş, the findings of Dr Mahmut Demirel (paragraphs 296-298 and 549 above) on 13 December 1993 were consistent with the allegations of being stripped naked and doused with cold water, resulting in hypothermia, complicated by pneumonia.
16. Extracts from or summaries of general documentation submitted by the applicants
a) Diyarbakır Bar Association Report 1997
554. The report denounced the murder of several members of the Diyarbakır Bar between 1993 and 1995 by unknown perpetrators. Because of the state of war prevailing in the region at that time, most of the lawyers sided with the victims of violated rights. Lawyers were unlawfully detained, tortured, arrested and prosecuted on the basis of fabricated evidence. Some of the lawyers were convicted of offences. Others' trials were still pending. The applicants' “collective case” was referred to.
b) The opinion of Mehmet Nur Terzi, an Izmir lawyer, on Articles 58 and 59 of Law No. 1136 on Advocates
555. Mr Terzi confirmed the opinion of Prosecutor Ünal Haney that the protection afforded to lawyers as to their arrest, detention and interrogation (requiring the authority and / or presence of a Public Prosecutor) was overridden at the time by Law No. 2845 on the establishment and judicial practice of the State Security Courts in respect of suspected terrorist offences (see paragraph 363 above). The rationale for this was that crimes which fell within the remit of the State Security Courts were crimes against the State and therefore could have nothing to do with lawyers' professional duties, and were personal crimes.
556. However, circulars issued by the Ministry of Justice affirmed that such cases should still be investigated by the State Prosecutors, not the security forces. The fact that these compulsory directives were not followed in certain provinces led to a protest from many legal institutions, particularly the Bar Associations.
c) Extracts from the official Susurluk report on unknown perpetrator killings
557. Reference was made in this report to a certain Mahmut Yıldırım (code name “Yeşil”) who at one time was assigned to the Diyarbakır gendarmerie command. He was responsible for several murders of PKK members, the extortion of money and illegal interrogations which, if unsuccessful, resulted in the disappearance of the person concerned. In effect, he led a “death squad”, which went unpunished.

f) Preliminary report of a European Lawyer's Committee for Human Rights dated 7 November 1996

560. Members of this Committee held a 16-day inquiry in Turkey in 1996, out of concern for allegations of hostility from the Turkish authorities to Turkish lawyers engaged in the promotion of human rights. The pressures on lawyers were such that very few practitioners were prepared to take on State Security Court cases, particularly in the South East of the country. Nezmattullah Gündüz, a former President of the Diyarbakır Bar Association told the Committee that, “No one can fulfil his duties as a lawyer in these cases... The work is a kind of slow suicide”.
561. In contrast, in two interviews with the Diyarbakır Chief State Security Prosecutor, Bekir Selçuk, the latter maintained that there were no cases where lawyers had been prosecuted for defending terrorists. Rather they were prosecuted for having organic links with the PKK. In no way were lawyers sanctioned for their contacts with the European Commission of Human Rights.
562. The Committee expressed concern about the practice of prolonged incommunicado pre-trial detention in State Security Court proceedings. Such detention was devoid of essential safeguards, in particular prompt access to legal advice and judicial supervision of the detention of suspects and, thus, there was an enhanced possibility of torture with impunity.
g) The Report of the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1993
563. This report referred to allegations that no judicial or disciplinary proceedings appeared to have been taken against officials accused of unlawful practices, and listed examples of pressure being brought to bear on doctors to issue misleading reports and to note complaints perfunctorily if any investigations into such matters were commenced.
h) The United Nations Statement of the Basic Principles on the Role of Lawyers, adopted by consensus by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders on 7 September 1990
564. The applicants referred to several of the basic principles set out in this Statement:
- that lawyers, in protecting their clients' rights, shall seek to uphold human rights, should be able to act freely and diligently, in accordance with the law and professional ethics;
- that Governments should ensure that lawyers may exercise their profession without hindrance, intimidation or sanction;
- that lawyers should not be identified with the clients they defend;
- that lawyers should enjoy civil and criminal immunity for all statements they make in good faith; and
- that the lawyer/client relationship, correspondence and consultation should be confidential.
i) Report on the arrest of defence lawyers in Turkey by Jon Rud for the Norwegian Bar Association (26 April to 1 May 1994)
565. Mr Rud was looking into the allegations in the present case. In a meeting with the Chief State Security Court Prosecutor, Bekir Selçuk, he reported the latter as saying that he was aware of the applicants' complaints of torture, which had not been submitted to the proper authorities and were a classic defence tactic. When apparently asked why complaints to the European Commission of Human Rights featured in the indictment against the applicants, Mr Selçuk replied that the right of appeal to the Commission had been abused, which was an offence under Turkish law, being propaganda directed against the State, belittling Turkey. The lawyers had not exhausted domestic remedies and were making false allegations. Lawyers should examine their clients' cases more carefully before submitting unwarranted claims simply on the clients' instructions.
j) Amnesty International Urgent Action Communiqués, dated 19 and 24 November 1993, 9 and 17 December 1993 and 25 January 1994
566. The communiqués referred to the applicants' arrest and detention as they evolved. That of 17 December 1993 recorded the allegations of Meral Daniş Beştaş of having been tortured whilst in the custody of the gendarmerie. That of 25 January 1994 recorded the similar allegations of Tahir Elçi and Sabahattin Acar.
k) Amnesty International Report on Turkey - Human Rights Defenders at risk, dated September 1994
567. Amnesty International took up the allegations of the Turkish Human Rights Association concerning the harassment and prosecution of defence lawyers. Meral Daniş Beştaş was recorded as having complained of her detention by the gendarmerie in November 1993, and of torture and severe ill-treatment, including being doused with cold water.
568. The Court refers below to the submissions of the parties regarding the pertinent domestic law in force at the relevant time, especially their translations of various texts, as well as to the various summaries of domestic law set out in previous jugments (see e.g. the judgment dated 27 June 2000 in the case of Salman v. Turkey [GC], no. 21986/93, §§ 60-68, ECHR 2000-VII).
569. Article 104 of the Code of Criminal Procedure provided that a person could be remanded in custody where there was a fear that the accused would abscond, or there were attempts by the accused to remove evidence or interfere with witnesses, or where the offence was against public morals, the security of the public or the authority of the State or Government. When the offence was a felony, it was presumed that the suspect was planning to escape.
570. In the State of Emergency region at the material time, Article 26 of Law No. 2935 of 25 October 1983 permitted the detention of a person, in relation to terrorist offences to be tried by the State Security Court, for a period of 4 days in the case of individual offences, and 30 days for collective offences, as in the present case.
B. Terrorist offences
“Terrorism is any kind of act done by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation, endangering the existence of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, eliminating fundamental rights and freedoms, or damaging the internal or external security of the State, public order or general health by means of pressure, force and violence, terror, intimidation, oppression or threat.”
“Whoever establishes armed organisations or bands or undertakes the duty of chief or command or any particular duty in such organisations or bands, with the purpose of committing the felonies defined in Articles 125, 131, 146, 147, 149 and 156, shall be punished by heavy imprisonment for not less than 10 years.”
“Whoever in circumstances other than those prescribed in Articles 64 and 65, knowingly gives shelter, assistance, provisions, arms or ammunition to [a terrorist] organisation or band or facilitates their actions shall be punished by heavy imprisonment from 3 to 5 years.”
The offences in Articles 168 and 169 were deemed terrorist crimes under Article 3 of the Prevention of Terrorism Law 1991, Article 5 of which increased by one half any punishment imposed (see the judgment of 23 September 1998 in Demir and Others v. Turkey, Reports of Judgments and decisions 1998-VI, §§ 19-20). Proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within a five year period (Law No. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999).
C. Interrogations and statements
“Measures to be taken in cases of violent acts - Article 11
In times of state of emergency declared in accordance with Article 3 § 1 (b) of this law, the following measures can be taken, in addition to those set out in Article 9, in order to maintain general security and public order and to prevent the spreading of acts of violence : ...
c) to conduct a search of persons, their cars and materials and to seize the incriminating materials to be found which constitute evidence, ...”
“Article 3:- In the provinces which are under the state of emergency ...
d) [The state of emergency Regional Governor], at the request of the security forces or on his own motion, where delay is deemed prejudicial, can order the conduct of general searches on roads and in residential neighbourhoods. [He is empowered to order] the conduct of searches in houses, offices and their annexes belonging to persons and corporate bodies, as well as in places which are not open to the public.”
585. Since 1983, Article 9 of Law No. 2845 on the establishment and judicial practice of the State Security Courts dispensed with the requirement of ministerial authorisation, leaving the State Security Court Prosecutors with direct authority to investigate suspect lawyers.
586. However, a circular from the Ministry of Justice dated 14 February 1994 urgently reminded the prosecution authorities that Article 58 of Law No. 1136 on Advocates, and earlier ministerial directives, required that inquiries relating to lawyers were to be performed directly by Public Prosecutors even in matters of “individual offences” (i.e. outside their professional activities). They could not be left to law enforcement officers.
588. The Convention prevailed over incompatible domestic law.
589. The summary of the Derogation of 6 August 1990 and resultant Decrees, provided by the Government in several cases before the Convention organs, can be found in the aforementioned Demir and Others v. Turkey judgment (§§ 24-20). The Derogation refers to the terrorist threat to national security in South East Turkey and to the additional powers afforded by Decrees Nos. 424 and 425 to the Governor of the state of emergency region to meet that threat as regards the print media, residential prohibitions, labour disputes, looting, the evacuation of villages, the transfer of undesirable civil servants, and any official's immunity from suit in the exercise of those additional powers. Decree 430, promulgated on 16 December 1990, created certain safeguards in the exercise of those powers, including a right to sue the State for loss or damages arising out of emergency measures. On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General of the Council of Europe, limiting the effect of the Derogation to questions arising under Article 5 of the Convention.
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
“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.”
III. RELEVANT INTERNATIONAL MATERIAL
596. The European Committee for the Prevention of Torture (the “CPT”) carried out seven visits to Turkey between 1990 and 1997 in response to the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. The CPT issued two public statements during this period.
597. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, hosing with pressurised cold water was amongst the types of ill-treatment constantly alleged. Its medical examinations disclosed clear evidence consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention.
598. On its second visit in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. At the headquarters of the Ankara and Diyarbakır Security Directorates, it found equipment that could have been used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.
599. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of the Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1