ITEMID: 001-70021
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TANIŞ AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Nicolas Bratza
TEXT: 12. The applicants were born in 1978, 1963, 1955 and 1975 respectively and live in Şırnak. They are close relatives of Serdar Tanış and Ebubekir Deniz, respectively the President and Secretary of the Silopi branch of the People's Democracy Party (Halkın Demokrasi Partisi (HADEP)).
13. The applicants alleged that Serdar Tanış and Ebubekir Deniz received death threats from the Silopi gendarmerie command and the Şırnak gendarmerie regimental headquarters on account of their political activities.
14. At about 1.30 p.m. on 25 January 2001, three people in a blue Fiat purporting to be police officers attempted to force Serdar Tanış to get into the car. Having informed them that he would go to the central gendarmerie station only if he received an official summons, he made his way to HADEP's offices. On receiving a call on his mobile phone from the gendarmerie commanding officer, he went to the station accompanied by Ebubekir Deniz. Three witnesses, Ömer Sansur, İsa Kanat and Hamit Belge, saw them enter the station.
15. An hour later, unable to reach the men on their mobile phones, their families and lawyers asked the Silopi public prosecutor and the Silopi gendarmerie command for information. The commanding officer, Süleyman Can, told them on the telephone that neither man had attended the station or been taken into custody.
16. On 1 February 2001, after the incident was reported in the press, the Şırnak provincial governor issued a written statement indicating that the two men had gone to the Silopi gendarmerie station on 25 January 2001, stayed for half an hour, and then left the premises.
17. The applicants said that they had received no news of Serdar Tanış or Ebubekir Deniz since 25 January 2001. Neither man had shown any sign of life.
18. The Government said that, on 17 and 18 January 2001 respectively, Serdar Tanış and his father, Şuayip Tanış, attended the Silopi gendarmerie station to speak to the commanding officer. They signed the visitors' register, which indicated the times of their arrival and departure.
19. At 2 p.m. on 25 January 2001, Serdar Tanış and Ebubekir Deniz went to the station to see the commanding officer. As he was not there, they spoke to another officer and left the building at 2.30 p.m. They signed the visitors' register on entering and leaving the building.
20. After criminal complaints were lodged by the two men's families, the Silopi public prosecutor launched an investigation and took statements from the applicants. The relevant authorities were notified that they were missing and their photographs and descriptions were circulated to the public prosecutor's offices and police headquarters in the province.
21. On 26 February 2001, at the request of the prosecutor leading the investigation, the district court made an order under Article 143 of the Code of Criminal Procedure restricting access to the preliminary investigation file.
22. On 3 March 2001 the authorities seized a letter discovered when searching a vehicle that had crossed the border from northern Iraq which indicated that Serdar Tanış and Ebubekir Deniz were in a PKK (Workers' Party of Kurdistan) camp in Doloki (Iraq). The driver and owner of the vehicle and Serdar Tanış's father were taken into custody, but released after making statements.
23. Three delegates from the Court took the following depositions in Ankara between 28 and 30 April 2003. The depositions of Divan Arsu, Mehmet Ata Deniz and Zehra Deniz were obtained through an interpreter.
24. Şuayip Tanış said that he was an applicant and Serdar Tanış's father. He was living in Cizre at the material time, and ran a petrol station in Başveren (Silopi). He last saw his son, who lived in Silopi, on 24 January 2001.
25. Before commencing his military service, that is to say prior to November 2000, his son had worked as a driver transporting fuel from Iraq. Serdar Tanış was the only child providing for the family, as the other children had not completed their studies. The witness said that he had heard that after returning from military service Serdar Tanış and a group of friends had taken steps to open a local branch of HADEP in Silopi.
26. In October 2000 the witness and his brother were arrested by gendarmes on their way to work. His brother was released, but the witness was taken to Cizre district gendarmerie station. On the same day the gendarmes searched his home in his presence and made him sign a record. He was then taken to Şırnak gendarmerie headquarters, where he was held for seven days. He was made to wear a blindfold during questioning, so could not identify his interrogator. His interrogator told him: “Give up your HADEP activities. If you don't, it will cost you your life.” The witness was tried with four co-defendants and spent approximately fifty-seven days in prison. The person who made the accusations against them subsequently sent a letter to the authorities informing them that he had been acting under duress and did not even know the defendants.
27. The witness then gave details of a meeting he had had with the commanding officer, Levent Ersöz, at the Şırnak regimental headquarters. The commanding officer had threatened him, saying: “Give up the idea of opening a local branch of HADEP in Silopi. I don't want to hear what you have to say, this is my area. If you don't give it up, I will not let you live.”
28. The witness said that he had also been summoned by Süleyman Can, the commanding officer of the Silopi district gendarmerie, in January 2001, approximately two weeks before his son went missing. Süleyman Can had said to him “Tell Serdar to give up this business” and had telephoned Levent Ersöz, who asked to speak to the witness and said: “Why didn't Serdar come and see me? You tell him that if he doesn't come today, I'll kill him if he ever sets foot in the Şırnak area again. Tell him that. He knows my position and rank.”
29. The witness and his son Müdür went back to see Süleyman Can, who repeated his earlier warning: “Tell him to give up that business. All his colleagues have resigned. He's the only one who's stayed on. If he doesn't resign, he'll come to grief.” Before leaving the premises, they asked Süleyman Can to convince Serdar Tanış himself or to put pressure on him.
30. On being asked by the witness why he had not gone to see the Şırnak commanding officer, Serdar Tanış replied that he had spoken to him on the telephone and added that after the party's inauguration he had received a call from Süleyman Can and had told him: “Commanding Officer, if I give it up, someone else will replace me. I was born in the area and know the situation better and am not carrying out any illegal activity; I will not leave the party.”
31. The witness's nephew Eyüp Tanış told him that on 25 January 2001 an attempt had been made to force Serdar Tanış into a vehicle outside the post office. He had told the occupants that he would only do as they said if he received a call from the “official” authorities.
32. The witness said that his son and Ebubekir Deniz went to the gendarmerie station after receiving a telephone call from that source. The two men got on well and worked together for HADEP. Ebubekir Deniz had also received threats because of his political activities and, like Serdar Tanış, had been forced into hiding before the branch opened. Owing to the intimidation, he had been unable to continue working. The witness added that the entire family had suffered as a result of Serdar Tanış's political activities.
33. He said that on the night of 25 January he was informed by his nephew İdris Tanış that Serdar Tanış and Ebubekir Deniz had not returned from the station. For four or five days the authorities denied that they had been there. On the sixth day the commanding officer said that, as he had been out on a tour of inspection, the two men had been seen by a non-commissioned officer, Selim Gül, and had left the premises half an hour later. The witness lodged a complaint with the public prosecutor on 28 or 29 January. Subsequently he and Mehmet Ata Deniz went to see the commanding officer Süleyman Can, who repeated that they had been on the premises for half an hour, but had then left. He told them: “We handed them over to the JİTEM [Jandarma İstihbarat Terörle Mücadele – Gendarmerie Anti-Terrorist Intelligence Branch] ... the JİTEM does not take orders from the regimental commanding officer.”
34. The witness affirmed that he had been held in custody at the Şırnak Security Directorate because of a letter addressed to him that had allegedly been seized in a vehicle that had entered Turkey from Iraq. The police told him that the letter said that his son was in the PKK camps. The witness considered that incident to be part of a “plot” against them.
35. Eyüp Tanış said that he was born in 1976 and was living in Silopi at the material time. He was a cousin of Serdar Tanış and a former administrator of the local branch of HADEP.
36. He too stated that threats had been made against Serdar Tanış by the regimental commanding officer of the gendarmerie because of his attempts to open a local branch of HADEP in Silopi. Serdar Tanış had been subjected to intimidation and followed by plain-clothes police officers. He had been forced to leave Silopi and had spent approximately one month in Diyarbakır. The witness said that he too had been followed on a number of occasions. All seven of the HADEP party administrators had received threats and three had resigned as a result.
37. On the morning of 25 January 2001, the witness and Serdar Tanış went to the HADEP offices, where the other party members were also present. Towards noon he went with Serdar Tanış to the post office. A car with three people inside pulled up in front of them. The driver and one of the passengers opened a rear door and asked them to get in. Serdar Tanış refused, saying: “We don't know you and if there's anything to be discussed, then we'll talk in an official institution, at the Silopi gendarmerie station or Security Directorate if you like – in an official place like that.” Unable to persuade the witness and Serdar Tanış to accompany them, the three people, who said they were police officers, left the scene. The witness and Serdar Tanış then returned to HADEP's offices. The witness left for a short period during which it appears that Serdar Tanış received a telephone call from the commanding officer of the gendarmerie and went to the station with Ebubekir Deniz. After waiting for approximately twenty minutes, the witness made several unsuccessful attempts to reach Serdar Tanış on his mobile phone. According to the witness, the driver of the minibus who took them to the station saw them enter the building.
38. The witness said that he made a statement before the Silopi public prosecutor. He also answered questions by an investigating officer and provided a description enabling an identikit picture to be prepared of the two people who attempted to force Serdar Tanış and Ebubekir Deniz into the car. He subsequently attended the public prosecutor's office three times to examine photographs. At one of the sessions he indicated that he recognised the driver of the car in one of the photographs and found a strong likeness in another. In that connection, the witness confirmed the content of the identification record that was drawn up on 26 February 2001.
39. The threats prompted by their political activities in HADEP continued after January 2001 and on one occasion the police searched the party's offices.
40. The witness added that before starting his military service Serdar Tanış was in the business of transporting fuel from Iraq and did not engage in any political activity. He repeated that on 25 January Serdar Tanış went to the Silopi gendarmerie station with Ebubekir Deniz after receiving a telephone call from the commanding officer. The two men had been subjected to intimidation by the authorities when transporting fuel in their vehicles. They had threatened to withdraw Ebubekir Deniz's operator's licence and certificate. All the intimidation was linked to their political activities.
41. The witness said that following Serdar Tanış's disappearance he became the acting President pending the next HADEP congress. In 2002 he was taken into custody at Silopi gendarmerie station. Around 7 a.m. one morning a military vehicle drew up outside his house. He was taken to the Silopi gendarmerie station. He was blindfolded and told: “You must resign from HADEP!” He refused and was tortured and threats were made to kill him like Serdar Tanış and Ebubekir Deniz. He was brought before a judge and accused of having PKK documents at his home. He lodged a criminal complaint against the officers who were on duty when he was in custody.
42. Yakup Tanış said he was an applicant and one of Serdar Tanış's brothers. He was born in 1978 and was studying in Isparta at the material time. He returned to Silopi on 27 January 2001 following his brother's disappearance.
43. He saw his brother when their father was taken into custody by the gendarmerie. His father telephoned him to say that he was with an officer and asked him to contact Serdar Tanış to persuade him to resign from HADEP.
44. Yakup Tanış also confirmed that the family had been subjected to intimidation by the authorities on account of his brother's political activities. Serdar Tanış could not remain in Silopi. He feared that he would be arrested and had been threatened by Levent Ersöz and Süleyman Can, the commanding officers of the gendarmeries of Şırnak and Silopi respectively. Ebubekir Deniz was in the same position. Serdar Tanış had sent a complaint to the authorities about the threats that had been made against him and had asked for protection. The witness said that he had seen the complaint in question.
45. The witness said that despite various attempts he was unable to gain any information from the authorities about his brother. He had even been taken to the police station twice, where he was instructed not to write any further letters to the authorities. A person called Mahmut had threatened to kill him like his brother.
46. Mehmet Ata Deniz said that he was an applicant and Ebubekir Deniz's brother. He was assisted by an interpreter when giving evidence. He was born in 1963 and lived in Silopi.
47. He confirmed that before they went missing his brother and Serdar Tanış had been forced to go to Diyarbakır by the threats and intimidation to which they had been subjected on account of their activities as members of HADEP. Their wives, who lived in Silopi, feared reprisals by the authorities and moved frequently.
48. The witness said that approximately twenty days before his disappearance his brother had been arrested at the Habur checkpoint at the border with northern Iraq, and his operator's licence had been seized. The intimidation against his brother had begun when he joined HADEP.
49. The witness described a meeting he had had with Captain Süleyman Can. He and Şuayip Tanış had gone to the gendarmerie station to make enquiries about Serdar Tanış and Ebubekir Deniz. He had said to the captain: “You have handed them over to the JİTEM”, to which the captain had replied that the JİTEM was not under his orders or the orders of the Şırnak regimental commanding officer.
50. The witness said that he had made two statements to the Silopi public prosecutor without the assistance of an interpreter. His statements had been recorded by the public prosecutor, who had noted that he was illiterate and did not understand Turkish.
51. The three witnesses were born in 1981, 1978 and 1975. Zehra Deniz is the wife and Divan Arsu the partner of Ebubekir Deniz. Selma Güngen is Serdar Tanış's wife.
52. They confirmed that the authorities had threatened and intimidated both men on account of their activities as members of HADEP. They said that they had been afraid to remain in Silopi and had been forced to leave their home for a time.
53. Ömer Sansur was born in 1981 and was living in Silopi at the material time.
54. He said that he was present at HADEP's offices when Serdar Tanış received a telephone call from the gendarmerie station. Although it was Serdar Tanış who received the summons to go to the station, Ebubekir Deniz insisted on accompanying him.
55. The witness said that he had driven the two men to the station and dropped them off approximately 20 metres from the main entrance.
56. The two witnesses were born in 1963 and 1951 respectively and lived in Silopi at the material time.
57. They said that they saw Serdar Tanış and Ebubekir Deniz as they were about to enter the gendarmerie headquarters by the main entrance. The two men waved at them.
58. Ebcet Sunmez was born in 1978 and was living in Cizre at the material time. He was a lorry driver and travelled from time to time to Iraq with Serdar Tanış and Ebubekir Deniz. He knew Serdar Tanış well, as they were from the same village.
59. He said that Serdar Tanış had told him in telephone conversations that he had been subjected to intimidation and threats because of his political activities, and that he had had to leave Silopi for approximately one month and had attended to the administrative formalities required to open a branch of HADEP in Silopi in Diyarbakır.
60. The witness gave this account of a visit he and Şuayip Tanış had made to the commanding officer of the Silopi gendarmerie Süleyman Can:
“Approximately twenty days before Serdar Tanış's disappearance, I drove Şuayip Tanış to the Silopi district command. He had been summoned by Süleyman Can, who met us and told Şuayip Tanış that he wanted to speak to Serdar Tanış to get him to give up his activities as a member of HADEP. Süleyman Can said that Levent Ersöz, the commanding officer of the Şırnak regiment, had asked to speak to Şuayip Tanış. He reached Levent Ersöz on the telephone in İdil where he was on a tour of inspection. After speaking for approximately three minutes outside his office, Süleyman Can passed the telephone to Şuayip Tanış. As it was a cordless phone, I was able to hear the conversation. The commanding officer said to him: 'Tell Serdar to come and see me tomorrow, otherwise he had better not ever set foot in Şırnak again, or I'll kill him.' ”
The witness added that after leaving the station Şuayip Tanış telephoned Serdar Tanış to ask him to go and see the commanding officer. After that incident, he encountered Serdar Tanış in HADEP's offices in Silopi and told him that he had seen Süleyman Can.
61. The witness said that Şuayip Tanış had been arrested prior to 25 January 2001, probably as a result of his son's political activities.
62. Sezgin Tanrıkulu said that he was born in 1963 and was living in Diyarbakır at the material time. He was a lawyer and a representative of the Human Rights Association in Diyarbakır.
63. He did not know Serdar Tanış or Ebubekir Deniz personally. However, he had been informed of the threats that had been made against them on account of their activities as members of HADEP. He learnt of their disappearance on 26 January 2001.
64. The witness said that on 29 January 2001 he, the President of the Human Rights Association in Diyarbakır, Osman Baydemir, and two other people went to see the Silopi public prosecutor, Kubilay Taştan. Mr Taştan told them that he had spoken on the telephone with the commanding officer of the Silopi gendarmerie, who had affirmed that Serdar Tanış and Ebubekir Deniz had not been taken into custody or been to the station. The delegation from the Human Rights Association asked the public prosecutor why he had not gone to the station himself. The public prosecutor replied that he considered the answer he had received from the commanding officer on the telephone sufficient and urged them to pursue their enquiries in Şırnak.
65. The witness said that he and Osman Baydemir had failed to get an audience with either the commanding officer of the Silopi gendarmerie or the district governor. The delegation went the same day to see the Şırnak public prosecutor. He had been informed of the incident and was waiting for written information from the Silopi public prosecutor's office. He said that he would then enquire of the commanding officer of the Şırnak gendarmerie regiment whether the two men had been taken into custody. He told the delegation that he had no power to take any other action.
66. On 31 January 2001 the witness drafted a report with other lawyers entitled “The Silopi Disappearance Report”, which brought the matter to the attention of the public. As a result, the disappearance of Serdar Tanış and Ebubekir Deniz was widely reported in the media. Approximately four days after the media became involved, the Şırnak provisional governor issued a statement to say that the two men had attended the gendarmerie station but had left a short time later.
67. The witness said that on 4 February 2001 he and Osman Baydemir made a public statement asking the authorities to explain why they had denied the truth and to reply to various questions. As a result of their statement, they were prosecuted and tried before being acquitted of the charges.
68. Osman Baydemir was born in 1971. He lived in Diyarbakır and was the President of the Human Rights Association at the material time. He is now the mayor of Diyarbakır.
69. On 26 January 2001 the association was informed by İdris Tanış that Serdar Tanış and Ebubekir Deniz were missing. It tried to contact the authorities but was unable to obtain any information.
70. The witness said that he went to Silopi on 29 January with Sezgin Tanrıkulu and two other people. He described the meetings with the public prosecutors and confirmed what Sezgin Tanrıkulu had said in his statement. He said that he had formed the view that the Silopi public prosecutor appeared to be bound by the gendarmerie's denials and had told them that he had not questioned any of the gendarmes concerned or gone to the scene to make enquiries.
71. Resul Sadak was born in 1959 and was living in Şırnak at the material time. In January 2001 he was the President of the local branch of HADEP in Şırnak. He knew Serdar Tanış and Ebubekir Deniz from their activities in the party.
72. He confirmed that members and leaders of HADEP were subjected to threats and intimidation. He himself had been taken into custody after the application was made to open a party office in Silopi.
73. In 1999, when he and others were in the process of trying to open a local branch of HADEP in Şırnak, they too had been subjected to intimidation and threats by the authorities. Three members of the party in Silopi had been forced to resign as a result of the intimidation. The party had only been able to assemble five members instead of seven. Serdar Tanış had informed him of the pressure being exerted on him and in January 2001 had handed over a letter in his presence to the President of the Diyarbakır office of HADEP giving details of the threats and intimidation to which he and members of the party in Silopi had been subjected by the commanding officer of the Şırnak regiment.
74. The witness asserted that at the beginning of January 2001 he was arrested by gendarmes on the road from Şırnak to Diyarbakır and summoned to the Şırnak regimental headquarters. The commanding officer threatened him and expressed his displeasure at the opening of local party branches in Silopi and Cizre. He asked him not to open the offices, saying: “If you do not give it up, I will strangle you at the Kasrik Pass. Go and complain to whoever you want. You'll be in big trouble.”
75. The witness said that Serdar Tanış had received a number of telephone calls in his presence from the commanding officers of the Silopi and Şırnak gendarmeries, and had informed him of the threats and pressure to which he had been subjected in an effort to persuade him to resign.
76. He said that he had informed the Şırnak public prosecutor of the threats and intimidation to which they had been subjected as a result of their political activities in HADEP and lodged a complaint.
77. Ali Ürküt was born in 1959 and was the President of the Diyarbakır office of HADEP at the material time.
78. He said that he had known Serdar Tanış and Ebubekir Deniz since the end of 2000 and that they often came to Diyarbakır. He personally oversaw their attempts to secure permission from the authorities to open a local party branch in Silopi and witnessed the enormous difficulties they encountered.
79. Serdar Tanış informed him of all the threats and intimidation to which he and his entourage had been subjected. The witness overheard a telephone conversation in which Serdar Tanış's father Şuayip Tanış, who was in custody at the time, called his son to ask him to see the commanding officer of the Şırnak gendarmerie regiment immediately.
80. The witness said that Serdar Tanış had been anxious and concerned about the threats and arranged for his lawyer to draft five or six copies of a petition to the public prosecutor and other authorities, informing them of the intimidation and pressure to which he and his entourage were being subjected by the commanding officer of the Şırnak gendarmerie regiment. On 8 January 2001 Serdar Tanış gave him the petitions. However, fearing reprisals, he kept them until 25 January 2001, when he handed them over to the lawyers dealing with the case.
81. Mahmut Damar was born in 1971. He was a sergeant at Silopi gendarmerie district command and a traffic team commander at the material time.
82. He said that approximately eighty people worked at the station. He described the premises and said that in addition to the main entrance there was a separate entrance for officers on the left-hand side of the building.
83. From 25 January until 9 a.m. on 26 January 2001 he was the duty officer and assisted non-commissioned officer Faruk Atalay. His duties were to monitor and record incidents and to supervise the activities of the soldiers. Sergeant Veysel Ateş was responsible for recording the names of visitors at the main entrance.
84. Mr Damar said that visitors were required to leave proof of identity and to sign the register. They were given a badge to enter the building.
85. He said that no incidents had been recorded on 25 January 2001. He did not know Serdar Tanış or Ebubekir Deniz and learnt of their disappearance from the press and from discussions within the gendarmerie.
86. Cemal Güldüler was born in 1968 and was a non-commissioned officer at Silopi district gendarmerie command at the material time. He had administrative duties relating to personnel.
87. He said that he did not know Serdar Tanış or Ebubekir Deniz. He had heard of them and was informed of the incident after receiving a summons from the Silopi public prosecutor.
88. The witness said that in January they carried out a tour of inspection. He could not remember whether the commanding officer of the Şırnak regiment had taken part. He confirmed that people entering or leaving the station were required to sign a register.
89. Arif Aydoğan was born in 1979. He was performing his military service at Silopi district gendarmerie command at the material time. He was on guard duty inside the building.
90. He did not know Serdar Tanış or Ebubekir Deniz. He had heard of them through the public prosecutor.
91. The witness said that he could not recall the following statement he made on 29 January 2001:
“The witness was shown photographs of Serdar Tanış and Ebubekir Deniz. He said, 'The persons you have shown me did not enter the station while I was on duty ... on 25 January 2001. As a great many civilians enter or leave the station, it is not easy to keep track of them'.”
92. Mehmet Taşdan was born in 1979. He was performing his military service at Silopi district gendarmerie command at the material time. He was on guard duty at the main entrance to the station.
93. He said that the visitors' registers were kept by Veysel Ateş.
94. He did not know Serdar Tanış or Ebubekir Deniz. He had made a statement to the public prosecutor, who showed him photographs of the men and asked him if he knew them and whether he had seen them previously at the station. That is how he learnt that they were missing.
95. Selim Gül was born in 1968. He was a non-commissioned officer engaged in operations intelligence at Silopi district gendarmerie command at the material time.
96. He said that his job was to gather intelligence for use in maintaining public order and preventing crime. He was the leader of a two-man team. He and his colleague reported to the commanding officer, Süleyman Can. The usual source of their information was individuals.
97. The witness knew Serdar Tanış and Ebubekir Deniz. Serdar Tanış contacted him by telephone at the end of 2000 to ask him for help as his father had been taken into custody for providing assistance and support to a terrorist organisation. Serdar Tanış offered to provide information in exchange. The witness first met Serdar Tanış in January 2001 in the commanding officer's office. Their discussion lasted several minutes, but the witness could not remember what it was about. They did not speak about Serdar Tanış's HADEP activities and he was not subjected to pressure or intimidation.
98. The witness said that Serdar Tanış provided him with information. He got in touch when he had information to pass on and in some ways acted as an agent for the witness and Captain Süleyman Can. The witness said that the first time he saw Ebubekir Deniz was on 25 January 2001.
99. On that date he saw both Serdar Tanış and Ebubekir Deniz in the waiting-room on the second floor of the gendarmerie station. They had come to see Süleyman Can about Ebubekir Deniz being disqualified from driving. The witness did not summon them to the building. As the commanding officer was not there, they left the waiting-room, Ebubekir Deniz first. The witness spoke with Serdar Tanış for approximately thirty seconds and he handed him documents wrapped in a newspaper he had taken out of the inside pocket of his jacket. One of the documents concerned HADEP, the other, contraband. The witness parted company with the two men in the building and saw them leave by the main entrance. However, he lost sight of them once they were in the street.
100. The witness did not recall when or how he was informed of their disappearance. He was questioned by the public prosecutor about it. He could not really remember whether he had handed the documents over to the public prosecutor.
101. He said that he gathered information about HADEP and other political parties as part of his job and that gendarmerie officers working in intelligence used unmarked vehicles when necessary. Taşkın Akgün worked for the intelligence service at the regimental headquarters of the Şırnak gendarmerie. The witness did not know whether Taşkın Akgün and other gendarmes came to Silopi in civilian dress on 25 January 2001. He contacted him after the men's disappearance in order to work with him on the investigation.
102. Veysel Ateş was born in 1975. He was performing his military service and had the rank of sergeant at Silopi district gendarmerie command at the material time. He was responsible for keeping the visitors' registers and carrying out the checks necessary for that purpose.
103. He said that once the checks had been carried out visitors were allowed to go to the relevant office unaccompanied.
104. He knew Serdar Tanış, who had already been to the gendarmerie station in the past. The witness was on duty on 25 January 2001. Serdar Tanış arrived with Ebubekir Deniz. They appeared relatively calm and he spoke with them briefly. They told him that they had come to see the commanding officer Süleyman Can. He informed them that he had gone out. Serdar Tanış asked when he would be back. The witness replied that the commanding officer did not give them any information about his schedule. Serdar Tanış decided to wait for him in the waiting-room. He entered their names in the register and the two men signed the book using his pen. The witness gave the following account of what ensued: “After a few minutes Serdar Tanış and Ebubekir Deniz returned to reception. I gave Serdar Tanış his mobile phone, they signed the register and left the premises. They did not say whether they had seen anyone else and did not ask to see Selim Gül.”
105. As regards the visitors' register, the witness explained that when his turn of duty came to an end he would show the register to the officer relieving him, who would check it and sign at the foot of the last page. The witness was unable to explain why there was no signature in the register for 25 January 2001, whereas the corresponding page for 5 January 2001 did have one.
The visitors' register showed that Serdar Tanış had been to the station on 18 January 2001.
106. The witness said that he clearly recalled that he had not seen any vehicle pass through the entrance to the building on that date, other than military vehicles.
107. Yücel Erteki was born in 1979. He was performing his military service as a sentry at Silopi district gendarmerie command.
108. He said that he had not been informed of the disappearance of Serdar Tanış and Ebubekir Deniz. From his post, he could not see people entering or leaving the building. He could not recall being summoned by the public prosecutor. However, he acknowledged that the signature on a statement taken by the public prosecutor was his.
109. Mehmet Bozca was born in 1966. He was a non-commissioned officer serving in the operations unit of the Şırnak gendarmerie at the material time.
110. He said that he had heard of Serdar Tanış and Ebubekir Deniz following anonymous information received at the gendarmerie station in March. While he could not remember the precise content of the information, the gist was that two people, who may have been Serdar Tanış and Ebubekir Deniz, had been taken by lorry to PKK camps in northern Iraq. The gendarmerie passed the information on to the anti-terrorist branch of the Security Directorate and drew up a report. He played no further part in the case.
111. The witnesses were born in 1972, 1970, 1949, 1970 and 1972 respectively. They were police officers at the Habur Security Directorate and responsible for immigration control at the border with northern Iraq.
112. They were informed that Serdar Tanış and Ebubekir Deniz were missing and were asked whether the two men had left or entered Turkey through the Habur checkpoint.
113. Acting on information from an anonymous informant, the witnesses stopped a lorry that had entered Turkey from Iraq and, during a search that took approximately five hours, seized a letter and a small bottle filled with green powder. They were somewhat surprised as the information related to a possible haul of leaflets issued by an illegal organisation. The driver was present during the search and denied any implication in the incident. They informed the Silopi public prosecutor, who came out to the checkpoint. The letter was intended for Şuayip Tanış and said that Serdar Tanış and Ebubekir Deniz were in PKK camps in northern Iraq.
114. Süleyman Can was born in 1968 and was the commanding officer of the Silopi district gendarmerie at the material time.
115. He said that his superior was Colonel Levent Ersöz, the commanding officer of the Şırnak gendarmerie regiment. He would converse with him several times a day.
116. He described the location of his office. Visitors waited in the waiting-room opposite his office and he saw them when he had time.
117. He had not known Serdar Tanış and Ebubekir Deniz before November 2000. He knew the former through his political activities as a member of HADEP. Serdar Tanış was in contact with non-commissioned officer Selim Gül and provided important information on the trafficking of arms, fuel, drugs and illegal products.
The witness met Şuayip Tanış for the first time in January. As the witness had only just been appointed to the post, Şuayip Tanış paid him a courtesy visit. He was accompanied by another person. Şuayip Tanış mentioned that his son, Serdar, had just become President of the local branch of HADEP in Silopi and would shortly be paying him a visit. The witness asked Şuayip Tanış to congratulate his son on his behalf.
118. The witness said that in principle the establishment of a local party office or a change in its membership would be of no interest to him. However, certain information and material in his possession had raised concerns about possible links between HADEP and the terrorist organisation KADEK (Kurdistan Freedom and Democracy Congress). He did not at any stage ask Serdar Tanış and Ebubekir Deniz to give up their activities as members of HADEP.
119. He met Şuayip Tanış again on 17 January 2000. He came to pay him a visit with his brother Mustafa Tanış and two other people. This too was a courtesy visit. On 18 January Serdar Tanış himself came to visit him. The witness had already spoken with him on the telephone but this was the first time he had seen him. Serdar informed him of his new position at the local branch of HADEP and confirmed that he continued to see non-commissioned officer Selim Gül. Serdar told the witness: “Do not have any suspicions about me, I wish to collaborate closely with the State, with all the agents of the State, the gendarmerie, the police and the district governor.” He added that party leaders and other people had been putting pressure on him. He had left Silopi for a time and had travelled to Van, Cizre and Diyarbakır to attend to personal matters and HADEP's affairs. The witness said that their meeting took place in a very friendly atmosphere and he even called in Selim Gül. This was the first time Selim Gül had met Serdar Tanış, as they had previously only spoken on the telephone. Serdar Tanış had contacted Selim Gül for help when his father was in custody and offered to provide information in exchange. The witness said that he had never met Ebubekir Deniz; however, he had seen his name mentioned in an official document as someone engaged in the transport of fuel from northern Iraq.
120. On the morning of 25 January 2001, the witness played host to a team of eight or nine inspectors whom he accompanied on a tour of inspection of the Ortaköy and Botaş gendarmerie posts (having left the station at approximately 1.30 p.m.). He did not return to the station until 5.30 p.m. or 6 p.m. and did not speak to Selim Gül that day. He saw him at about 5 p.m. the following day. The witness said that he was replaced by the duty officer during his absence. None of his superiors or other officers from the Şırnak regimental headquarters visited the Silopi district command on 25 January.
121. The witness said that on his return to the station in Silopi he received a telephone call from the Silopi public prosecutor, Kubilay Taştan, enquiring whether two people, who were members of HADEP, had been taken into custody at Silopi district gendarmerie command. He said that they had not, but that he would make enquiries at other gendarmerie posts. The public prosecutor rang back at about 9 p.m. and the witness informed him that his enquiries indicated that neither Serdar Tanış nor Ebubekir Deniz had been taken into custody at any stage.
It was not until the following day that Süleyman Can learnt that Serdar Tanış and Ebubekir Deniz had come to see him. Selim Gül told him that he had spoken with the two men, who said that Ebubekir Deniz was having problems with his fuel transport business and needed his help. Before leaving the building Serdar Tanış handed some documents on HADEP to Selim Gül. The witness refused to divulge the content of those documents.
122. It was the witness's understanding that the public prosecutor was fully empowered to inspect the gendarmerie station (or to carry out an investigation). When visiting the station, the public prosecutor would inspect the registers and cells and thus perform routine checks.
123. With regard to HADEP's activities, the witness said that they were relatively concerned about the party's links with KADEK. He added:
“KADEK is a terrorist organisation and has a great deal of influence over HADEP. I informed Serdar Tanış about this and asked him to keep me informed of any developments. He assured me that Selim Gül and I would be informed without delay and that he would not be doing anything illegal. Prior to 26 January 2001 I had not spoken about Serdar Tanış and Ebubekir Deniz to my superior, Levent Ersöz. He had not asked me any questions about them. Following their disappearance, the public prosecutor and the Ministry of the Interior investigators made enquiries. All the enquiries focused on the Silopi district gendarmerie command. We also made enquiries: we questioned a number of people, some 400 soldiers, worked in close cooperation with the police and circulated posters bearing their photographs. However, when the letter was seized by police at the Habur border control, we directed our investigations to northern Iraq.
I repeat that no pressure was exerted by command as a result of HADEP's activities. The resignations of some of HADEP's members was an internal party affair. The allegations of threats and intimidation made by Şuayip Tanış are without foundation. He came to pay me a courtesy visit and brought me a gift, which I declined. No one ordered Serdar Tanış and Ebubekir Deniz to come to the station. I did not witness a call by Levent Ersöz to Şuayip Tanış on 5 January 2001; he did not say that unless Serdar Tanış came to see him he would never be able to set foot in Şırnak again and he would kill him. I repeat that neither Serdar Tanış nor Ebubekir Deniz were at any stage taken into custody. On 25 January they came to the station and then left.”
124. The witness said that after returning from his tour of inspection at about 5.30 p.m. on 25 January 2001 he was contacted by Mr İdris Tanış and the public prosecutor Kubilay Taştan. He told them that neither of the missing men was in custody and gave the same reply to the district governor the following day. In response to the district governor's comments, he checked the register of visitors' arrivals and was informed of Serdar Tanış and Ebubekir Deniz's visit. On 28 or 29 January 2001 the public prosecutor summoned the gendarmes and requested the registers.
125. As to the allegation that the visitors' register was not signed by the duty officer on 25 January 2001, the witness explained that there was no rule on the subject and that it was left to the duty officer's discretion. The important point was to note comings and goings.
126. The witness did not know the officers on the interrogation and intelligence team at the Şırnak regimental headquarters. He was unable to comment on the document the Silopi public prosecutor had sent to the Şırnak public prosecutor asking to be allowed to interview the officer who had telephoned Serdar Tanış (on his mobile phone) at 1.44 p.m. on 25 January 2001 and indicating that the persons who had attempted to force him into their car at around 1.30 p.m. had been identified.
127. The witness said that he was questioned by the public prosecutor in February 2002, by which time he had been transferred to the Baykan district. The public prosecutor had not summoned him earlier. He said that certain teams from the Şırnak regimental headquarters (dealing with intelligence) wore plain clothes and used unmarked cars.
128. The witness denied telling Mehmet Ata Deniz that the JİTEM was not under his orders or the orders of the commanding officer of the Şırnak gendarmerie regiment. He said that he knew nothing about the JİTEM and had never heard of the existence of such a unit within the gendarmerie.
129. Kubilay Taştan was born in 1969 and was one of the Silopi public prosecutors at the material time. There were three public prosecutors in Silopi at the time, Hakan Başverdi, Gündoğan Öztürk and the witness.
130. He did not know Serdar Tanış and Ebubekir Deniz and had never met them. He was informed of the incident at about 5 p.m. on 25 January 2001 by Mr İdris Tanış. He contacted the commanding officer of the Silopi gendarmerie on the telephone and asked his replacement to make enquiries of all the gendarmerie posts. Süleyman Can called him back to say that neither of the missing men had been to the gendarmerie station or taken into custody.
After receiving that information he did not consider an on-site inspection necessary. The procedure was that the commanding officer of the gendarmerie had a duty to inform him whenever anyone was taken into custody and of the reasons for the arrest. He regarded everything he was told by the gendarmes as true. He gave the following account of the events:
“We considered that Serdar Tanış and Ebubekir Deniz had not been taken into custody. The investigation proceeded orally. I found the information provided by the commanding officer to be satisfactory. On 26 January 2001 I contacted the Şırnak, Cizre and İdil public prosecutors' offices by telephone and asked whether the missing men had been detained within their sectors. They said they had not. Later that day Mr Tanış arrived with the father of one of the missing men. We took a statement from him, they lodged their complaint and the investigation began that day. On 27 and 28 January I took a statement from someone who said that he saw Serdar Tanış and Ebubekir Deniz enter the district gendarmerie command and gave instructions to the commanding officer to send full lists of the names of the soldiers and officers who were on the premises on 25 January 2001. I also questioned five or six soldiers who were on duty that day. I repeat that it would not have been possible to conceal any detention from me and that there would have been no point in my going to the station. On 29 January 2001, in accordance with our internal organisation procedure, I handed the investigation file over to my colleague Gündoğan Öztürk, who took evidence from various gendarmes and members of the armed forces. On the same day a delegation from the Human Rights Association came to see me and asked me questions about the investigation. I did not say that they should look for Serdar Tanış and Ebubekir Deniz in Şırnak. I always spoke to Süleyman Can on the telephone and did not meet him in person. We did not receive any information about what had happened to the missing men. I saw the visitors' register and the custody record on 29 January 2001 and checked the signatures.”
131. With regard to the investigation procedure, the witness said that, when investigating a case, the public prosecutor was in all cases entitled to enter the gendarmerie station, make enquiries on the premises and carry out judicial checks, such as inspecting the cells or checking the lawfulness and conditions of detention.
132. He expressed no view on the allegation that a gendarme had called Serdar Tanış to ask him to come to the station. He said that he could not divulge the name of that person as the investigation was confidential.
133. Gündoğan Öztürk was born in 1971 and was a public prosecutor in Silopi at the material time.
134. He did not know Serdar Tanış or Ebubekir Deniz. He was in charge of the investigation into the disappearance of the two men for a period of five months before being transferred on 12 July 2001.
He gave the following account:
“There were three public prosecutors in Silopi. One of us was on duty each week. I was given the file on the case by Kubilay Taştan. He had taken some statements and requested the registers from the station. I questioned the gendarmes who were present at Silopi district gendarmerie command on 25 January 2001 and carried out a proper investigation taking all possibilities into account. On a number of occasions I used Eyüp Tanış, who was a key witness in this case. I sent him to Diyarbakır so that an identikit picture could be made of the people who had attempted to force Serdar Tanış into a car. I asked for the people who had telephoned him to be identified and photographs of all personnel at Silopi district gendarmerie command were shown to Eyüp Tanış. The public prosecutors' offices in the region were informed that the two men were missing. Copies of the visitors' registers to the station were sent to the Institute of Forensic Medicine. I did not take a statement from Süleyman Can as I was not given the authority to do so, as when a commanding officer was accused of an offence authorisation was needed from the Ministry of Justice. I questioned the other gendarmes as suspects.
Until 26 February 2001 those concerned had access to the documents in the investigation file and a copy of the material in the file was given to İdris Tanış. However, the information had been disseminated by the media, including the media controlled by the illegal organisation. Therefore, further to an application by me with a view to bringing the investigation to a successful conclusion, the judge made an order on 26 February 2001 imposing restrictions on access to the file. It is true that the commanding officer of the Silopi gendarmerie had earlier sought an order making all the statements from the gendarmerie personnel confidential.”
135. In response to a question regarding the identity of the person who had telephoned Serdar Tanış on 25 January 2001, the witness replied:
“No call was made by the commanding officer of the Silopi gendarmerie. The list compiled by the telephone operators indicates the name of the person who rang Serdar Tanış. That name appears in the file. When we sent a copy of the investigation file to the Ministry of Justice, the names had not been deleted. Since the person concerned was not in Silopi, I had no jurisdiction to question him or her or to organise an identification procedure. I informed the competent public prosecutor's office and it was its responsibility to take the necessary action.”
136. Hakan Başverdi was born in 1968 and was a public prosecutor in Silopi at the material time.
137. He did not know Serdar Tanış or Ebubekir Deniz and was not personally responsible for the investigation. However, the other two public prosecutors worked with him.
138. The applicants alleged that Serdar Tanış and Ebubekir Deniz had been threatened and intimidated by the commanding officer of the Şırnak gendarmerie regiment on account of their activities as members of HADEP. They stated that after being summoned by the commanding officer of the Silopi gendarmerie the missing men had gone to the station on 25 January 2001. There had been no news of them since.
139. On 26 January 2001 the public prosecutor Kubilay Taştan took evidence from Eyüp Tanış and Ömer Sansur. The latter said that, following a telephone call from the commanding officer, he had taken Serdar Tanış and Ebubekir Deniz by car to the Silopi gendarmerie.
The telephone records showed that Serdar Tanış had received a call on his mobile phone at 1.44 p.m. on 25 January 2001.
140. On 27 January 2001 statements were taken from Eyüp and İdris Tanış at the Silopi Security Directorate. Eyüp Tanış described the men who had attempted to force him and Serdar Tanış to get into their car. İdris Tanış said that Eyüp and Serdar Tanış had been intimidated in the past on account of their activities as members of HADEP and that he was worried about their safety.
141. On 28 January 2001, further to an oral request from the Silopi public prosecutor's office, the commanding officer of the Şırnak gendarmerie regiment sent two notes to the Şırnak and Silopi public prosecutors' offices and to the Şırnak provincial governor indicating that:
(a) Serdar Tanış went to the Silopi district gendarmerie command of his own accord on 18 January 2001, and during his meeting there he was not threatened on account of his political activities or forced to resign from his position as leader of the local branch of HADEP;
(b) On 25 January 2001, Serdar Tanış and Ebubekir Deniz went to the station of their own free will and left the building at 2.30 p.m.;
(c) During the visit, the commanding officer was out inspecting the Ortaköy gendarmerie post;
(d) Serdar Tanış was a gendarmerie informant;
(e) On 25 January 2001 Serdar Tanış handed over certain documents to a non-commissioned officer and sought the latter's help with respect to the revocation of Ebubekir Deniz's operator's licence;
(f) The purpose of all the allegations that had been made was to tarnish the image of the security forces, to misinform the public and to put pressure on the courts following the arrest of HADEP leaders in Şırnak on account of their links with the PKK. The persons concerned had issued official statements indicating that they had received death threats and those allegations had appeared in the 5 January 2001 edition of the Yeni Gündem newspaper.
142. On 29 January 2001 the public prosecutor Kubilay Taştan took statements from two witnesses who said that they had seen Serdar Tanış and Ebubekir Deniz enter the gendarmerie station together, from the applicants Şuayip Tanış and Mehmet Ata Deniz, and from four gendarmes from Silopi station. The gendarme Veysel Ateş said that Serdar Tanış was wearing a suit and entered the building with Ebubekir Deniz. The two men left approximately half an hour after arriving. The gendarme Yücel Erteki stated that Ebubekir Deniz arrived at the station half an hour before Serdar Tanış.
143. On 30 January 2001 the public prosecutor Gündoğan Öztürk took statements from two gendarmes who said that the missing men had not been taken into custody in any of the gendarmerie posts and that they had no information about them.
144. As to the other statements taken by the Silopi public prosecutor's office, the Court notes that certain names and information have been deleted from the documents the Government produced on 5 March 2003. The Government stated that, owing to a confidentiality order made by the competent court, they were unable to disclose the name or details of the person who had telephoned Serdar Tanış on 25 January 2001, whom the public prosecutor Gündoğan Öztürk had identified, or to provide the unexpurgated investigation file containing the information that had been deleted from the file sent originally.
145. On 19 November 2001 Şuayip Tanış and his brother Nurettin were questioned by the public prosecutor. Nurettin Tanış stated that in January 2001 they were arrested on the Silopi road while on their way to Cizre by three people in civilian dress who asked Şuayip Tanış to go to the Şırnak regimental headquarters. Şuayip Tanış went to see the commanding officer Levent Ersöz, who told him that Serdar Tanış should resign from his position in HADEP.
146. On 22 April 2003 the Silopi public prosecutor sent the case file to the public prosecutor at the Diyarbakır National Security Court.
147. On 6 October 2003 the Government sent the Court a letter from General Levent Ersöz, stating that the investigation by the Silopi public prosecutor was still pending and that a simultaneous investigation by the Court would interfere with due process and undermine the investigation. He said that he had submitted his written statement to the domestic court authorities and refused to appear as a witness before the Court.
148. In a letter of 25 November 2003, the Government informed the Court of the outcome of the proceedings concerning the complaint lodged with the Şırnak public prosecutor by Resul Sadak of intimidation against HADEP party members. They said that the investigation had begun on 2 March 2001. The public prosecutor had declared that he had no jurisdiction ratione materiae and had returned the case file to the Şırnak Administrative Council. In an order dated 1 June 2001, the Administrative Council had concluded that there were no grounds for prosecuting the gendarmes against whom the accusations had been made.
149. In a letter to the Court dated 1 December 2003, the applicants' representative said that the person who made the telephone call to Serdar Tanış had been identified by the Silopi public prosecutor as the head of the intelligence and interrogation unit of the Şırnak gendarmerie regiment, Taşkın Akyün. He said that the file showed that Mr Akyün and two gendarmes from the same unit had attempted to force Serdar Tanış to get into the car on 25 January 2001.
150. On 20 May 2002 the Şırnak public prosecutor ruled that the commanding officer of the Şırnak gendarmerie, Levent Ersöz, had no case to answer on the charge of making threats in order to secure compliance with an ultimatum.
151. On 20 May 2003 Şuayip Tanış asked the President of the Siirt Assize Court to review that decision and again alleged that death threats had been made. His application was dismissed on 19 January 2004 on the ground that there was no evidence in the file to show that the accused had threatened Şuayip Tanış.
152. On 9 February 2004 the public prosecutor ruled that seventy-three of the defendants, including forty-eight gendarmes, had no case to answer. His findings were as follows:
“The document ... dated 22 April 2003 drafted by the Silopi public prosecutor's office on the kidnapping incident has been examined.
... the Silopi public prosecutor's office, on 22 April 2003, when referring the investigation file concerning the disappearance of the President and Secretary of the local branch of HADEP in Silopi, Serdar Tanış and Ebubekir Deniz, ... asserted that the events in this case fell within the jurisdiction of the National Security Court for the following reasons:
1. As regards defendants nos. 1 to 47 and defendant no. 71 – at approximately 1 p.m. on the date of the incident three individuals claiming to be police officers pulled up in a vehicle in front of Serdar Tanış and Eyüp Tanış outside Silopi Post Office and asked them to get in. Serdar Tanış and Eyüp Tanış refused, saying that they would go to the gendarmerie headquarters only if they received a call from the authorities. Serdar Tanış received a telephone call at about 2.30 p.m. and was summoned to the Silopi district gendarmerie command. Serdar Tanış and Ebubekir Deniz went to the gendarmerie headquarters and have not been heard of since.
Approximately twenty-five days before the incident, the commanding officer of the Şırnak gendarmerie regiment had summoned Serdar Tanış's father, Şuayip Tanış, and threatened him telling him that his son should resign from his position as President of the local branch of HADEP as otherwise neither he nor his family would be allowed to live. The missing men were abducted by the security forces. Acts of serving security forces in the region contravened Article 174 § 2 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court.
2. As regards defendant no. 70 – according to information received on police telephone numbers 155 and 156 approximately one month previously, the President of the HADEP provincial office in Şırnak, Resul Sadak, had sent Serdar Tanış and Ebubekir Deniz in a state of unconsciousness from Silopi to northern Iraq where they were to be handed over to the PKK in exchange for 5,000 [United States] dollars [USD]. Such conduct contravened Article 168 § 1 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court.
3. As regards defendants nos. 48 to 60, 62 to 69 and 72 – calls were made from their telephones after 25 January 2001 to number 0542 8078821, which is Ebubekir Deniz's telephone number. Such conduct contravened Article 169 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court.
4. As regards defendant no. 61, Zeki Genç – the defendant has made a statement to the press saying that he killed the two missing men.
Having regard to the material in the investigation file and information obtained from the additional investigation by this office:
1. As regards defendants nos. 1 to 47 and defendant no. 71, who are serving members of the security forces in the region and local informants.
Firstly, an order was made to sever the investigation file concerning the allegations of death threats made by the commanding officer of the Şırnak gendarmerie regiment, the head of the security forces in the region, against Şuayip Tanış, the father of the missing Serdar Tanış, and to send it to the Şırnak public prosecutor's office for investigation. Following the investigation by the Şırnak public prosecutor's office ..., a decision was made on 20 May 2002 that there was no case to answer as the only evidence was abstract allegations. Following an objection by Şuayip Tanış's representative, Tahir Elçi, the President of the Siirt Assize Court decided on 19 January 2004 ... to reject it, for want of sufficient evidence to institute proceedings or try ... the commanding officer of the Şırnak gendarmerie, and to uphold the decision that there was no case to answer.
Since that decision is final, the allegation that 'he [Serdar Tanış] was threatened with death twenty-five days before the incident', which constitutes the basis for the allegations that the said persons were kidnapped and executed by the security forces, is still pending and has not been made out.
Further, as regards the allegation that Serdar Tanış and Ebubekir Deniz were summoned by the commanding officer of the Silopi district gendarmerie shortly before they went missing, that it has been impossible to obtain any news about them since and that they were kidnapped by the security forces:
Having regard to the information provided to the investigators by the commanding officer of the Silopi gendarmerie and the examination by the local public prosecutor's office of the registers kept by the Silopi district gendarmerie command;
It has been established from the signatures in the visitors' register at the district gendarmerie command that the missing persons arrived at the Silopi district gendarmerie command at 2 p.m. on the day they disappeared; that the records state that they left at 2.30 p.m.; that their signatures on their arrival and departure appear opposite their names; that these signatures were sent to the Institute of Forensic Medicine for comparison with samples of their signatures obtained by the local public prosecutor's office from various public records; and that the department of the Istanbul Forensic Medical Institute specialising in handwriting analysis ... concluded in its report of 29 June 2001 ... that the signatures in the register opposite the names of the missing men ... were those of Serdar Tanış and Ebubekir Deniz.
Further, according to the Silopi gendarmerie, Serdar Tanış was a local informant. He provided information and documents about past or future incidents in the region. On the day of his disappearance he attended the gendarmerie headquarters for that reason. ... the visitors' register shows that on 5 and 17 January 2001 his father, Şuayip Tanış, and on 18 January 2001 Serdar Tanış himself, went to the gendarmerie headquarters; it was also noted that there was a fact sheet in the name of Serdar Tanış among the fact sheets giving details of the sources and means of obtaining information held by the central gendarmerie command at the Ministry of the Interior where the names of local informants were listed.
In the light of these explanations, the investigation file does not contain sufficient information and evidence to establish that the missing persons have been kidnapped by the security forces.
2. As regards defendant no. 70, Resul Sadak – in view of the information received by the security forces at 3.15 p.m. on 4 March 2001 from a person who did not disclose his or her identity and has not been identified ('I do not recall the date exactly, I negotiated with Resul Sadak, a member of HADEP, to take two people to the north of Iraq in exchange for USD 5,000. I smuggled them to the north of Iraq via the Habur border checkpoint in a lorry. On the way, the road was blocked by armed individuals who took the two men with them. They also took the USD 5,000. I asked Resul Sadak for this money on my return, but he did not give it to me.'), it was alleged that the defendant had sent the missing persons to the PKK in northern Iraq in exchange for money.
In view of:
(a) the denial of these accusations by the defendant;
(b) the failure to identify the informant;
(c) the informant's failure to ask the authorities to take action;
(d) the lack of concrete evidence to support the allegation;
the investigation file does not contain sufficient information and evidence to establish the truth of that allegation.
3. As regards defendants nos. 48 to 60, 62 to 69 and 72 – although the telecommunications records established that calls were made after the disappearance of the two men to telephone number 0542 8078821, which is registered in the name of Ebubekir Deniz, that telephone is not used by Ebubekir Deniz, but by his uncle Mehmet Reşat Tanış, who has used it since 2000 and who received the calls that were made to it. In view of that fact, the investigation file does not contain sufficient information or evidence to establish that the defendants established contact with Ebubekir Deniz after the date of his disappearance.
4. As regards defendant no. 61, Zeki Genç – it has been claimed that the defendant had stated in the press that he killed the missing men.
However, in view of:
(a) the statements made by the defendant on 10 May 2002 to the public prosecutor, in which he said that after seeing a group of HADEP party members set the Turkish flag on fire and insult martyrs [people who had been killed by PKK militants] he had snatched back the flag and injured a person in the leg for insulting his brother, a martyr, that he had no connection with the missing persons and the article in the 15 November 2001 edition of the Star newspaper was exaggerated, that he rejected the accusation and did not know the missing persons;
(b) the fact that it is impossible to find concrete evidence to support the newspaper article;
the investigation file does not contain sufficient information and evidence as regards this allegation.
In the light of the above findings:
The defendant's implication ... in the disappearance of the two men has not been sufficiently established to enable criminal proceedings to be instituted under Article 163 of the Code of Criminal procedure.
Decides, pursuant to Articles 164 and 165 of the Code of Criminal Procedure:
That, in the light of the lack of evidence, no criminal proceedings should be brought against the defendants;
That in view of the confidentiality order issued by the Silopi District Court on 11 December 2001 under the provisions of the Code of Criminal Procedure and the restriction imposed on the rights of the parties or their representatives to examine the case file and to take copies of documents, owing to the fact that when the investigation was carried out by the local public prosecutor's office statements were obtained from local informants in which their names and addresses were given, it is necessary to remove from the file and hold at the public prosecutor's office at the National Security Court pursuant to section 6 of the Prevention of Terrorism Act the statements of the local informants, the information relating to their identity and a copy of the documents, without prejudice to the merits;
To return the case file to the Silopi public prosecutor's office, which has jurisdiction in the area in which the incident took place, in order to discover the real culprits;
To serve a copy of the decision on the complainants, their representatives and the defendants;
To serve a copy on the Department of Criminal Affairs, on the Department of International Law and External Relations at the Ministry of Justice, as the case is the subject of an application to the European Court of Human Rights; and
To serve a copy of the decision on the commanding officer of the Şırnak provincial gendarmerie, as the accused include gendarmerie officers.”
153. The applicants appealed against the decision that there was no case to answer. Their appeal was dismissed by the Malatya National Security Court on 3 May 2004. The relevant passages from its decision read as follows:
“Having considered the grounds of appeal and the investigation file:
1. The decision that the defendants, who are public servants, have no case to answer concerns Article 174 § 2 of the Criminal Code [which governs offences against political freedom]. No such order has been made in the case concerning the disappearance. The decision contains an order to pursue the investigation into that incident.
2. A decision that there is no case to answer is not a final decision. The proceedings will resume if new evidence comes to light before the end of the limitation period. Proceedings may be brought de novo against an accused who has been found to have no case to answer or against other suspects (Article 167 § 2 of the Code of Criminal Procedure).
In the present case, the offence in respect of which the appeal has been made is within the jurisdiction of the National Security Court. No additional investigation has been ordered under Article 166 § 2 of the Code of Criminal Procedure since no defect liable to affect the merits has been found. However, it would appear advisable to take the following steps when gathering evidence in the course of the investigation:
(a) To obtain a new statement from Taşkın Akyün regarding the point referred to in the document issued on 11 June 2001 by the Silopi public prosecutor's office; to organise a confrontation between the witness Eyüp Tanış and Taşkın Akyün, in accordance with the procedure, in order to clear up the uncertainty over identification; to establish why Taşkın Akyün called Serdar Tanış at 1.44 p.m. on 25 January 2001;
(b) To trace the record drawn up on 12 January 2001 concerning the lorry with registration number 73 DK 558 and to obtain a statement from Sami Tanış, whose name is mentioned in the record, in order to determine why Ebubekir Deniz went to the gendarmerie headquarters;
(c) In order to determine whether Eyüp Tanış and Serdar Tanış were threatened on the day of the incident [attempt made to force them to get into a vehicle], to identify the registration number of the vehicle concerned, and establish why the eyewitness Eyüp Tanış failed in broad daylight to note a single letter from the number plate which was very close to him when he had given a detailed description of the people who had tried to force them to get into the vehicle;
(d) To send the photograph of Serdar Tanış in the case file and the photograph allegedly portraying Serdar Tanış with a militant from the organisation to the relevant department at the Istanbul Institute of Forensic Medicine to see whether the two photographs are of the same person.
Having regard to the aforementioned considerations:
Decides, following its examination of the case file, dismissing the appeal and sitting as a court of last instance:
1. To dismiss the complainants' objections to the public prosecutor at the National Security Court's decision of 9 February 2004 that there was no case to answer concerning the offence under Article 174 of the Criminal Code of using threats or violence to prevent the exercise of political rights, as the decision complied with the rules of procedure and the law;
2. To pursue the investigation, to send the case file to the Silopi public prosecutor's office to remedy the defects noted in the investigation and listed above ...
To remit the case file to the public prosecutor's office at the Diyarbakır National Security Court.”
154. The Criminal Code makes it an offence to:
(a) arbitrarily deprive a person of his or her liberty (Article 179 lays down the general rule, Article 181 the rule applicable to public servants);
(b) make threats (Article 191);
(c) subject a person to torture or ill-treatment (Articles 243 and 245);
(d) commit involuntary homicide (Articles 452 and 459), voluntary homicide (Article 448) or premeditated murder (Article 450).
155. For all these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, with the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against a decision by the public prosecutor not to institute criminal proceedings.
The public prosecutor had no jurisdiction to investigate alleged acts of terrorism, for which a separate system of national security prosecutors and courts operated throughout Turkey (at the material time).
156. Article 143 of the Code of Criminal Procedure provides:
“Counsel for the defence may examine all the material in the investigation file and the procedural file and take copies of any documents free of charge.
If it would be prejudicial to the preliminary investigation for this right to be exercised, a district court judge may, on an application by the public prosecutor, make an order restricting its exercise ...”
157. Article 174 of the Criminal Code provides:
“Anyone who by threats or violence ... totally or partly prevents another from exercising his or her political rights shall be guilty of an offence ...
If the offender is a public servant who has abused his or her authority to commit the offence, the prison sentence shall be ... and the offender shall be disqualified from public service for between one and three years.”
VIOLATED_ARTICLES: 13
2
3
38
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-98645
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MIAH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mr Jahed Tofur Miah, is a Bangladeshi national who was born in 1979 and now lives in Bangladesh.
2. The applicant was born in Bangladesh. Soon after his birth, his parents divorced and his father moved to the United Kingdom and remarried. His mother remained in Bangladesh. The applicant moved to the United Kingdom in 1991, when he was eleven years of age, to join his father, stepmother and two brothers. His father died there in 1994.
3. When he was sixteen years of age, the applicant began abusing drugs. In 1999, he was convicted of burglary and theft and sentenced to two years' detention in a Young Offender Institution. Between 2001 and 2003 he was convicted of two counts of theft, failing to surrender to custody, another count of theft, a further two counts of failing to surrender to custody, failing to surrender to bail and possession of a controlled class A drug. He was given a fine on each occasion. On 23 December 2005 he was convicted of burglary and theft and failing to surrender to custody and sentenced to a community order of twelve months. On 24 June 2006, he was convicted of theft and sentenced to twelve months' imprisonment. The trial judge described him as a “persistent thief and burglar”.
4. On 16 October 2006, the Secretary of State gave the applicant notice of intention to make a deportation order. On 28 November 2006, after considering representations from the applicant, the Secretary of State decided to make a deportation order. In the Secretary of State's opinion the applicant had not provided any details of legitimate employment he had held in the United Kingdom. He had spent his youth and formative years in Bangladesh and so it would not be unreasonable to expect him to readjust to life there. The deportation would therefore be compatible with Article 8 of the Convention.
5. The applicant appealed to the then Asylum and Immigration Tribunal. His appeal was dismissed on 22 May 2007. The Tribunal accepted that the applicant had indefinite leave to remain in the United Kingdom and that he had lived for a substantial period of time in the country and had family there. However, these factors were outweighed by other factors. The applicant had no employment record. He had a substantial number of convictions and had already been given a number of opportunities to mend his ways. He had stolen to fund a substantial drug habit (he had been using GBP 50 worth of heroin and crack cocaine per day) but was now in good health. He had given evidence in Bengali and therefore, as a relatively young man, in good health and speaking the language, there was no reason why he could not return to Bangladesh and take up work there. His mother had remained there and it was likely that there were other members of his extended family to whom he could turn for support. The Tribunal doubted that the applicant, as an adult, could be said enjoy family life in the United Kingdom with his stepmother or his brother, with whom he intended to live upon release from prison. It had no doubt that he had established private life in the United Kingdom but did not consider that, given that the applicant had been in and out of prison and abusing drugs for eleven years, the deportation would have consequences of such gravity as to engage Article 8. The Tribunal concluded that, even if it were wrong in respect of a lack of an interference with the applicant's private or family life, any interference would be proportionate to the legitimate aim of the prevention of disorder or crime.
6. The applicant sought reconsideration of the Tribunal's determination. This application was refused by a Senior Immigration Judge on 11 June 2007. A further such application was refused by the High Court on 8 October 2007. In each case, it was found that the application amounted to no more than a disagreement with the Tribunal's findings.
7. On 10 December 2007, the applicant lodged an application with this Court and sought interim measures under Rule 39 of the Rules of Court to prevent his removal to Bangladesh. The following day, he was informed that this request fell outside the scope of Rule 39. He was duly deported to Bangladesh on 12 December 2007. He has since indicated that he wishes to continue his application from Bangladesh.
8. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(b) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
9. The version of paragraph 364 of the Immigration Rules, which was in force prior to 20 July 2006, provided as follows:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.”
The amended version of paragraph 364, in force since 20 July 2006, provides as follows:
“Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects...”
Paragraph 380 of the Immigration Rules, referred to in both versions of paragraph 364, provides as follows:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
10. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate's Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.


ITEMID: 001-60471
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SZARAPO v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 7. On 17 November 1980 the first applicant lodged a claim, seeking that the paternity of the defendant be established in respect of the second applicant. The applicants also claimed child support. On 10 December 1986 the Zabrze District Court dismissed their claims. On 18 March 1987 the Katowice Regional Court dismissed the applicants' appeal. The applicants requested the Minister of Justice to lodge on their behalf an extraordinary appeal against the judgment. On 18 September 1987 the Minister of Justice lodged such an appeal with the Supreme Court, maintaining that the lower courts had committed serious errors of substantive law.
8. On 23 October 1987 the Supreme Court quashed the judgments and ordered the case to be reconsidered.
9. On 23 December 1991 the Zabrze District Court again dismissed the applicants' claims. On 12 May 1992, as a result of the applicants' appeal, the Katowice Regional Court quashed the judgment of 23 December 1991 and ordered the case to be reconsidered.
10. On 10 May 1993 the defendant informed the Zabrze District Court that he refused to undergo the DNA tests. Notwithstanding his refusal, three other dates (23 August, 9 September and 11 October 1993) were fixed for the purpose of these tests. The defendant did not report for the tests on any of these dates.
11. On 15 December 1993 the next hearing was held. The court fixed for the defendant a fourteen-day time-limit in which he was to take a final decision as to the DNA tests. In a letter of 27 December 1993 the defendant informed the court about his refusal to undergo them, submitting that the first applicant had on many occasions lied in the course of proceedings. He referred to the judgment of the Katowice Regional Court of 12 May 1992 in which it had been stated that the applicant had submitted inaccurate information as to her last menstruation before the pregnancy.
12. On 23 February 1994 the next hearing was held. During the hearing held on 23 March 1994 the court heard another witness and asked the defendant again whether he would undergo the DNA tests. He refused.
13. On 4 May and 7 June 1994 further hearings were held. The court questioned one witness and an expert who had been appointed earlier. The court again asked whether the defendant would agree to undergo the DNA tests and again he refused to do so. On the latter date he challenged one of the lay judges sitting on the court panel.
14. On 14 September 1994 another hearing was held. The defendant again refused to undergo the DNA tests and the court heard another witness. At the subsequent hearing, which was held on 26 October 1994, the court questioned the applicant and the defendant. At the hearing held on 30 November 1994 the defendant was absent. On 16 December 1994 the court decided to close the hearing and adjourned the delivery of the judgment until 28 December 1994.
15. On 28 December 1994 the Zabrze District Court dismissed again the applicant's claims. The court considered that the applicant's testimony contained contradictory information. It further noted that she had tried not to reveal to the court certain facts established in the course of the proceedings and relevant to the ruling in the case, such as the fact of spending a night in one room in the hotel “N” with another man during the period of possible conception. The defendant's testimony, on the other hand, was quite consistent.
16. On 8 March 1995 the applicant lodged an appeal against this judgment with the Katowice Regional Court.
17. The first hearing in the appellate proceedings was held before that court on 25 May 1995. On 8 June 1995 the Katowice Regional Court dismissed the applicant's appeal against the judgment, considering that her testimony was contradictory and that she had induced witnesses to give false testimony.
18. On 6 December 1995 the Minister of Justice again lodged an extraordinary appeal, considering that there had been serious errors of fact and law, in particular in that the court's conclusions as to the facts were incompatible with the evidence before it. It was argued that the defendant's repeated refusals to undergo the DNA tests should be assessed in a more critical manner in view of the fact that he was a physician and knew the value of such evidence in paternity proceedings.
As a result of the Minister's appeal, the contested judgment was quashed by the Supreme Court on 14 February 1996 and the case was remitted to the Zabrze District Court for reconsideration.
19. The first hearing in the proceedings took place on 28 October 1996 before the Zabrze District Court. The court ordered the defendant to take his final decision as regards the DNA tests within 21 days. On 9 May 1997 the next hearing was held. The witnesses summoned for that date failed to attend. The defendant was also absent due to his professional obligations. At the hearing held on 27 June 1997, the defendant was again absent. The applicant lodged a motion to have her claims secured by way of an interlocutory decision.
20. A next hearing took place on 25 November 1997 as the court encountered certain problems with locating and summoning witnesses called by the parties. The defendant again refused to undergo the DNA tests.
21. A next hearing was to take place on 22 December 1997, but it was adjourned as the parties were absent. The court decided to request the Warsaw District Court to hear two witnesses.
22. On 29 January 1998 another hearing was held. On 16 February 1998 the Warsaw District Court questioned one of the witnesses summoned by the Zabrze District Court. The other witness did not comply with the summons both on that date and later on 6 April 1998, when the Warsaw District Court imposed a fine of 150 PLN on that witness. He was ultimately heard on 15 June 1998.
23. The defendant failed to attend two hearings before the Zabrze District Court, held on 7 and 27 April 1998. On 15 June 1998 the Zabrze District Court decided to secure the applicant's claims. The delay in deciding the motion of the applicant of 27 June 1997 resulted from the defendant's failure to provide the court with the certificates concerning his financial situation. On 15 December 1998 the defendant lodged an appeal against this decision.
24. On 16 October 1998 the second applicant informed the Zabrze District Court that she wished to join the proceedings as a plaintiff alongside her mother. Unexpectedly, on 16 November 1998 the defendant informed the court that he agreed to undergo the DNA tests. On 23 November 1998 the court decided to allow the DNA tests evidence and on 22 January 1999 the court dismissed the defendant's appeal against the decision of 15 June 1998, by which the applicants' maintenance claims had been secured.
25. The DNA tests were made on 21 January 1999 in the Forensic Medicine Department of the Silesian Medical Academy in Katowice. The results of the tests gave nearly hundred per cent certainty that the defendant was the father of the second applicant. The opinion was sent to the Zabrze District Court on 25 August 1999.
26. At the hearing held on 19 October 1999, the applicants' counsel proposed a friendly settlement. The hearing was adjourned until 7 December 1999. The hearing which was to be held on that date was adjourned as the presiding judge had fallen ill. At the hearing held on 3 February 2000 the parties negotiated the terms of the friendly settlement.
27. On 10 February 2000 the court gave a decision in which it established the paternity of the defendant and discontinued the proceedings regarding the child support due to a friendly settlement concluded between the parties in this respect.
28. Articles 417 to 424 of the Code of Civil Procedure, as applicable at the material time, provided that an extraordinary appeal could be lodged against any final judicial decision with the Supreme Court by the Minister of Justice - the Prosecutor General, the President of the Supreme Court and the Ombudsman. An extraordinary appeal could be lodged on the ground that the decision was in flagrant breach of the law. A party to the proceedings could file a request to have such an appeal lodged with these authorities on his or her behalf. The Supreme Court, having examined the extraordinary appeal at a public hearing, could dismiss it if no grounds for allowing it had been established. If the extraordinary appeal was allowed, the Supreme Court could set the decision under appeal aside and rule on the merits of the case, or reject the claim and discontinue the proceedings.
29. The case-law of the Supreme Court establishes a principle according to which the court should critically assess, in the light of all evidence available in the case, the refusal of the alleged father to undergo the biological tests, relevant for the establishing of paternity.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1