ITEMID: 001-67482
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ÜNAL TEKELİ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (victim, six-month period);Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant, Ayten Ünal Tekeli, is a Turkish national, born in 1965 and living in İzmir.
10. After her marriage on 25 December 1990 the applicant, who was then a trainee lawyer, took her husband’s name pursuant to Article 153 of the Turkish Civil Code. As she was known by her maiden name in her professional life, she continued putting it in front of her legal surname. However, she could not use both names together on official documents.
11. On 22 February 1995 the applicant brought proceedings in the Karşıyaka Court of First Instance (“the Court of First Instance”) for permission to use only her maiden name, “Ünal”. On 4 April 1995 the Court of First Instance dismissed the applicant’s request on the ground that, under Article 153 of the Turkish Civil Code, married women had to bear their husband’s name throughout their married life.
12. An appeal by the applicant on points of law was dismissed by the Court of Cassation on 6 June 1995. The decision was served on the applicant on 23 June 1995.
13. By one of the amendments made to Article 153 of the Civil Code on 14 May 1997, married women acquired the right to put their maiden name in front of their husband’s surname. The applicant preferred not to make use of that possibility because, in her view, the amendment in question did not satisfy her demand, which was to use her maiden name alone as her surname.
On 22 November 2001 the new Civil Code was enacted. Article 187 was worded identically to the former Article 153.
14. The Civil Code:
“Married women shall bear their husband’s name. ... .”
“Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage deed, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname... .”
15. The Constitution:
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.
...”
“...
International treaties that are duly in force are legally binding. Their constitutionality cannot be challenged in the Constitutional Court.”
“Where a court considers that the applicable provisions of a law or legislative decree are contrary to the Constitution or that one of the parties has raised a serious objection on grounds of unconstitutionality, it shall defer its decision until the Constitutional Court rules on the question.
...
The Constitutional Court shall rule and deliver its judgment publicly within five months of the date on which the case was referred to it. If judgment has not been delivered within the aforesaid time-limit, the lower court shall rule on the case in accordance with the statutory provisions in force. However, if it receives the judgment of the Constitutional Court before the judgment on the merits becomes final, the lower court is obliged to comply with it.
... .”
16. After Article 153 of the Civil Code was amended the Ankara District Court raised an objection with the Constitutional Court, arguing that the provision was unconstitutional. In a decision of 29 September 1998 (E 1997/61, K 1998/59) the Court dismissed the objection for the following reasons:
“The rule according to which married women bear their husband’s name derives from certain social realities and is the result of the codification of certain customs that have formed over centuries in Turkish society. According to the thinking behind family law, the purpose of the rule is to protect women, who are of a more delicate nature than men, strengthen family bonds, nurture the prosperity of the marriage, and preclude bicephalous authority within the same family.
For the sake of protecting family unity the legislature has recognised the primacy of the husband’s name over the wife’s. Considerations of public interest and policy have been decisive. Moreover, under the new provision women are now allowed to keep their maiden name in front of their surname ... .
Furthermore, the contention that this provision infringes Article 10 of the Constitution, which prohibits any discrimination on the ground of sex, is not founded either. The principle of equality within the meaning of Article 10 of the Constitution does not mean that everyone is subject to the same rules of law. The special characteristics of each person or each group of persons may reasonably justify the application of different rules of law... .”
17. Two texts of the Committee of Ministers deal with the issue of family name or equality between the sexes in general contexts: Resolution (78) 37 of 27 September 1978 on equality of spouses in civil law (which precedes the said Protocol) and Recommendation R (85) 2 of 5 February 1985 on legal protection against sex discrimination.
In the resolution the Committee of Ministers observes that certain forms of sex discrimination still exist in the legislation and practice of some member states and calls on these states to eliminate all such discrimination in the choice of family name and the transmission of parents’ surnames to their children. Paragraph 6 of the resolution proposes a number of solutions to this effect:
“6. ... regulate matters concerning the family name of the spouses to ensure that a spouse is not required by law to change his family name in order to adopt the family name of the other spouse and, in doing so, to be guided for instance by one of the following systems:
i. choice of a common family name in agreement with the other spouse, in particular the family name of one of the spouses, the family name formed by the addition of the family names of both spouses or a name other than the family name of either spouse;
ii . retention by each spouse of the family name he possessed prior to marriage;
iii. formation of a common family name by the operation of law by the addition of the family names of both spouses;”
In the recommendation the Committee of Ministers, aware that equality between men and women has not yet been fully achieved in this area in spite of the extensive work carried out by member states, recommends the member states to take or reinforce, as the case may be, all measures they consider appropriate with a view to achieving that equality in respect of, among other things, the family name. The measures may be implemented not only by legislative changes, but also by the creation of effective legal remedies against discrimination and sanctions in case of failure to comply with such provisions. It also recommends the adoption of suitable machinery to promote this equality (mediation body for example).
18. In its Recommendation 1271 (1995) of 28 April 1995 on discrimination between men and women in the choice of a surname and in the passing on of parents’ names to children the Assembly recommends that the Committee of Ministers identify those member states which retain sexist discrimination and ask them to take the appropriate measures to, inter alia, “ensure strict equality in the event of marriage with regard to the choice of a common surname for both marriage partners” (no. 5, ii).
19. In its reply of 3 April 1996 the Committee of Ministers accepted that each country had its own legal system in this area, depending on “customs and local traditions”, but stressed that these legal systems should not include any discriminatory provisions. It was with this in mind that the recommendation was transmitted to the Governments of the member states.
20. In its Recommendation 1362 (1998) of 18 March 1998 the Assembly considered that it was not enough for the Committee of Ministers merely to transmit the 1995 recommendation to member states. It recommended that the Committee of Ministers ask each member state to advise it of the period within which it undertook to comply with the principle of non-discrimination. As to the rest, it reiterated its previous recommendations.
21. In reply the Committee of Ministers stated on 20 October 1998 that it shared the views of the Parliamentary Assembly in that respect and informed it that it had transmitted both recommendations to the European Committee on Legal Co-operation (CDCJ) and to the Steering Committee for Equality between Women and Men (CDEG) for them to examine the situation in detail and suggest action to be taken within a reasonable time scale.
22. The Committee had already examined the issues raised by the choice of family name by married couples in 1982-1983 as a follow-up to Recommendation no. 2 of the XIIIth Conference of European Ministers of Justice. In its final activity report of 5 October 1983 concerning the acquisition of a family name the Committee concluded that the wide variety of solutions adopted by national laws made any attempt at harmonisation in this field difficult.
23. The Committee reconsidered the question in 1995 and then in 1999 after the Committee of Ministers had transmitted the two recommendations by the Parliamentary Assembly. The examination of the issue was entrusted to the Committee of Family Law Experts. Experts from different countries were asked to submit observations on the legal position and practice in their country. From the observations submitted by the various Governments it emerged that many countries had recently reformed their legislation or that a reform was then underway in respect of other countries (see, for example, Albania, CDCJ (99) 33, Switzerland, CDCJ (99) 9, Turkey, CDCJ (99) 23). The reforms promoted greater clarity and complete equality between men and women before the law regarding their surname.
24. The Committee examined these observations in the light of Resolution (78) 37 and Recommendation R (85) 2 of the Committee of Ministers. While noting that the solutions provided by the resolution were still valid, it found that implementation of the resolution by some countries was still incomplete even if most had eliminated all discrimination concerning the surname of spouses. Although the existence of different customs and traditions precluded a unique solution, paragraph 6 of Resolution (78) 37 provided a large choice of non-discriminatory solutions. The committee proposed, lastly, that the Committee of Ministers fix a time-limit for undertaking legislative reforms.
25. The European Committee on Legal Co-operation reconsidered the matter on the basis of that opinion. In 1995 it noted that certain States did not meet the conditions contained in the resolution regarding, among other things, the joint name of married couples (Extract from the report of the 64th meeting of the CDCJ, CDCJ (95) 76, Appendix III) and asked them to re-examine their laws on this subject. It also encouraged them to implement the principle contained in paragraph 1.g of Article 16 of the Convention on the elimination of all forms of discrimination against women (adopted by the General Assembly of the United Nations on 18 December 1979, Treaty Series, vol. 1249, 1981, no. I-20379, pp. 24 et seq.) and to withdraw the reservations made to this provision. In its conclusions the CDCJ considered that the diversity of customs and local traditions should be respected, but that the States concerned should be requested to take all necessary steps to avoid such discrimination between men and women (nos. 9 and 10).
26. In its draft opinion sent to the Committee of Ministers in 1999 the CDCJ found that several States had recently amended their domestic laws in this respect, but that others had not yet done so (no. 4). It considered that the diversity of customs and local traditions should be respected and that there was no reason to impose a uniform system. Paragraph 17 of Resolution (78) 37 already provided a large choice of solutions (no. 5). States which still have provisions that discriminate against women in respect of surnames must take all necessary steps, in due course, to avoid such discrimination (no. 6).
27. Article 3 of the International Covenant on Civil and Political Rights (adopted by the General Assembly of the United Nations on 19 December 1966) provides that “the States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” This requirement of equality is confirmed in respect of marriage in Article 23, paragraph 4, the text of which served as a basis for Article 5 of Protocol No. 7 to the Convention, which Turkey has not yet ratified (see above):
“States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”
The Covenant has been ratified by many member states of the Council of Europe, but not by Turkey (which signed it on 15 August 2000).
28. The United Nations Human Rights Committee has interpreted Article 23, paragraph 4, as obliging States Parties to ensure that there is no discrimination between men and women, including in respect of the right of each spouse to keep using their own surname or to have an equal say in the choice of new surname.
29. In addition, Article 16, paragraph 1(g) of the Convention on the elimination of all forms of discrimination against women provides:
“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
...
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;”
30. Many member states of the Council of Europe have ratified this convention, including Turkey. When it ratified it, on 19 January 1996, Turkey made a reservation to the effect that certain provisions of the Civil Code concerning family relations might not be compatible with Articles 15 and 16 of the Convention, including Article 16, paragraph 1(g). In a declaration of 20 September 1999 the Turkish Government withdrew that reservation.
31. The committee with the task of applying this convention (Part V, Articles 17 et seq.) has, in reports concerning different countries (CEDAW Report of 1 May 2000, A/55/38 part I (2000) 21, §§ 172-75 and CEDAW Report of 20 April 2001, A/56/38 part I (2001) 26, §§ 211-16), affirmed women’s rights regarding the choice of family name and the possibility of keeping their own name if they so desire.
THE LAW
32. The Government raised two preliminary objections based, respectively, on the applicant’s lack of victim status and the failure to comply with the six-month time-limit.
33. The Government disputed that the applicant was a victim within the meaning of Article 34 of the Convention. They observed that at the time of her marriage the applicant, who was a trainee lawyer, was not qualified to practise as a lawyer. When she began practising she had already taken her husband’s name. The Government therefore maintained that the applicant’s change of name following her marriage could not have created problems in her professional life.
34. The applicant contended that it was during their legal training that trainees established their first professional links and that this period could not be dissociated from the rest of their career. She also submitted that, beyond the professional aspect, a person’s name was particularly important in the construction of their identity. The obligation on the applicant to change her maiden name as a result of her marriage had thus given rise to an irreversible severance with her past.
35. The Court is not required to determine whether the obligation on the applicant to change her surname as a result of marrying when she was a trainee lawyer may adversely affect her subsequent professional life. It reiterates that besides professional or business contexts, the surname concerns and identifies a person in their private and family life regarding the ability to establish and develop social, cultural or other relationships with other human beings (see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, § 29). The Court considers that in the instant case the refusal to allow the applicant to use just her own surname, Ünal, by which she claimed to have been known in private circles and in her cultural or political activities may have considerably affected her non-professional activities.
The applicant is therefore a victim of the impugned decisions (see, to the same effect, Burghartz v. Switzerland, judgment of 22 February 1994, series A no. 280B, § 18).
36. The Government pleaded failure to comply with the six-month rule. In their submission, given that the situation complained of flowed from the domestic law the national courts were not in a position to accede to the applicant’s request. In these conditions the application should have been lodged within six months of the date of her marriage, that is, by 25 June 1991 at the latest.
37. The Court reiterates that where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six-month time-limit in principle starts to run from the date on which the act complained of took place or the date on which an applicant was directly affected by such an act. However, special considerations might apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware of these circumstances (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000III (extracts)).
38. In the instant case it is true that the position complained of before the Court was actually in conformity with the provisions of Article 153 of the Civil Code. However, the Court notes that in the proceedings before them the domestic courts could have directly applied the provisions of the Convention, which forms an integral part of the domestic law by virtue of Article 90 of the Constitution, or raised an objection that Article 153 of the Civil Code was unconstitutional (under Article 152 of the Constitution) and, lastly, they could have granted the applicant’s request. Consequently, even if it is accepted that the remedy offered only a remote prospect of success, as alleged here, it was not a futile step. Accordingly, it had the effect at least of postponing the beginning of the six-month period (see, mutatis mutandis, A. v. France, judgment of 23 November 1993, Series A no. 277-B, § 30).
This preliminary objection of the Government must therefore be rejected.
II. ALLEGED BREACH OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
39. The applicant submitted that the national authorities’ refusal to allow her to bear only her maiden name after her marriage amounted to a breach of Article 8 of the Convention, read alone and in conjunction with Article 14.
Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
40. In view of the nature of the allegations made, the Court considers it appropriate to examine the case directly under Article 14 of the Convention taken together with Article 8.
41. The Government disputed the applicability of Article 8 of the Convention in the present case. They maintained that the choice of name was not entirely a matter of a person’s individual choice and that the States had a wide margin of appreciation in the area. In their submission, the legislation on assigning names had to remain within the State’s domain and did not come within the scope of the Convention.
42. The Court reiterates that Article 8 of the Convention does not contain any explicit provisions on names, but as a means of personal identification and of linking to a family, a person’s name nonetheless concerns his or her private and family life. The fact that there may exist a public interest in regulating the use of names is not sufficient to remove the question of a person’s name from the scope of private and family life, which has been construed as including, to a certain degree, the right to establish relationships with others (see Burghartz, cited above, § 24).
The subject-matter of the complaint thus falls within the scope of Article 8 of the Convention.
43. The applicant complained that the authorities had refused to allow her to bear only her own surname after her marriage whereas Turkish law allowed married men to bear their own surname. She submitted that this resulted in discrimination on grounds of sex and was incompatible with Article 8 taken together with Article 14 of the Convention.
44. The Government acknowledged that it amounted to a difference in treatment on grounds of sex but argued that this was based on objective and reasonable grounds which prevented it from being in any way discriminatory.
45. Referring to the Burghartz judgment cited above, they submitted that there was a link between family unity and the family name and that by providing that families should take the husband’s surname the Turkish legislature had opted for a traditional arrangement whereby family unity was reflected in a joint name. In the Government’s submission, family unity was a public policy consideration and private life ceased where the individual entered into contact with public life.
46. Referring to the Constitutional Court’s decision of 29 September 1998 (E 1997/61, K 1998/59, see above), the Government argued that the difference of treatment on grounds of sex was justified in view of the social reality in Turkey. Pointing out that “68.8% of women had very limited economic freedom”, the Government argued that a joint surname – reflected through the husband’s surname – was designed to strengthen the wife’s position in the family.
47. The Government reiterated that since Article 153 of the Civil Code had been amended on 14 May 1997 married women could now keep their maiden name in front of their family name.
48. The Government also pointed out that major difficulties would be occasioned by a change in the system of keeping registers of births, marriages and deaths.
49. The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, Reports of Judgments and Decisions 1997VII, § 88).
50. According to the Court’s case-law a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998II, § 30, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, § 177).
51. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 82). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001).
52. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background (see Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, § 40, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, § 41).
53. However, very weighty reasons have to be put forward before a difference of treatment based on the ground of sex alone can be regarded as compatible with the Convention (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 67).
54. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002IV).
55. The applicant’s complaint concerns the fact that, legally, married women cannot bear their maiden name alone after they marry whereas married men keep the surname they had before they married. This is undoubtedly a “difference in treatment” on grounds of sex between persons in an analogous situation.
56. The factual differences between the two categories (married men and married women) to which the Government refer, that is, those relating to their social situation and their economic independence respectively, do not lead the Court to a different conclusion.
It is precisely this distinction which is at the heart of the issue whether the difference in treatment complained of is justifiable.
57. In the Government’s submission, the interference in question pursued the legitimate aim of reflecting family unity through the husband’s surname and thereby ensuring public order. The applicant refuted that argument.
58. The Court reiterates that although the Contracting States have a certain margin of appreciation under the Convention regarding the measures to be taken in reflecting family unity, Article 14 requires that any such measure, in principle, applies even-handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment.
In the present case the Court is not persuaded that such reasons exist.
59. The Court reiterates in the first place that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. Two texts of the Committee of Ministers, namely, Resolution (78) 37 of 27 September 1978 on equality of spouses in civil law and Recommendation R (85) 2 of 5 February 1985 on legal protection against sex discrimination, are the main examples of this. These texts call on the member states to eradicate all discrimination on grounds of sex in, among other things, choice of surname. This objective has also been stated in the work of the Parliamentary Assembly (see paragraphs 19-22 above) and the European Committee on Legal Co-operation (see paragraphs 23-27 above).
60. On an international level, developments in the United Nations concerning the equality of the sexes are heading in this specific area towards recognition of the right of each married partner to keep his or her own surname or to have an equal say in the choice of new family name (see paragraphs 23-27 above).
61. Moreover, the Court notes the emergence of a consensus among the Contracting States of the Council of Europe in favour of choosing the spouses’ family name on an equal footing.
Of the member states of the Council of Europe Turkey is the only country which legally imposes – even where the couple prefers an alternative arrangement – the husband’s name as the couple’s surname and thus the automatic loss of the woman’s own surname on her marriage. Married women in Turkey cannot use their maiden name alone even if both spouses agree to such an arrangement. The possibility made available by the Turkish legislature on 22 November 2001 of putting the maiden name in front of the husband’s surname does not alter that position. The interests of married women who do not want their marriage to affect their name have not been taken into consideration.
62. The Court observes, moreover, that Turkey does not position itself outside the general trend towards placing men and women on an equal footing in the family. Prior to the relevant legislative amendments, particularly those of 22 November 2001, the man’s position in the family was the dominant one. The reflection of family unity through the husband’s surname corresponded to the traditional conception of the family maintained by the Turkish legislature until then. The aim of the reforms of November 2001 was to place married women on an equal footing with their husband in representing the couple, in economic activities and in the decisions to be taken affecting the family and children. Among other things the husband’s role as head of the family has been abolished. Both married partners have acquired the power to represent the family. Despite the enactment of the Civil Code in 2001, however, the provisions concerning the family name after marriage, including those obliging married women to take their husband’s name, have remained unchanged.
63. The first question for the Court is whether the tradition of reflecting family unity through the husband’s name can be regarded as a decisive factor in the present case. Admittedly, that tradition derives from the man’s primordial role and the woman’s secondary role in the family. Nowadays the advancement of the equality of the sexes in the member states of the Council of Europe, including Turkey, and in particular the importance attached to the principle of non-discrimination, prevent States from imposing that tradition on married women.
64. In this context it should be recalled that while family unity can be reflected by choosing the husband’s surname as the family name, it can be reflected just as well by choosing the wife’s surname or a joint name chosen by the couple (see Burghartz, cited above, § 28).
65. The second question that the Court is asked to address is whether family unity has to be reflected by a joint family name and whether, in the event of disagreement between the married partners, one partner’s surname can be imposed on the other.
66. The Court observes in this regard that, according to the practice of the Contracting States, it is perfectly conceivable that family unity will be preserved and consolidated where a married couple chooses not to bear a joint family name. Observation of the systems applicable in Europe supports this finding. The Government have not shown in the present case that concrete or substantial hardship for married partners and/or third parties or detriment to the public interest would be likely to flow from the lack of reflection of family unity through a joint family name. In these circumstances the Court considers that the obligation on married women, in the name of family unity, to bear their husband’s surname – even if they can put their maiden name in front of it – has no objective and reasonable justification.
67. The Court does not underestimate the important repercussions which a change in the system, involving a transition from the traditional system of family name based on the husband’s surname to other systems allowing the married partners either to keep their own surname or freely choose a joint family name, will inevitably have for keeping registers of births, marriages and deaths. However, it considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the name they have chosen (see, mutatis mutandis, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 91, ECHR 2002VI).
68. Consequently, the objective of reflecting family unity through a joint family name cannot provide a justification for the gender-based difference in treatment complained of in the instant case.
Accordingly, the difference in treatment in question contravenes Article 14 taken in conjunction with Article 8.
69. Having regard to that conclusion, the Court does not consider it necessary to determine whether there has also been a breach of Article 8 taken alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
70. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
71. The applicant alleged that she had sustained non-pecuniary damage which she assessed at 15,000 euros (EUR).
72. The Government disputed that claim.
73. The Court considers that it is for the Turkish State to implement in due course such measures as it considers appropriate to fulfil its obligations to secure to each married partner, including the applicant, the right to keep their own surname or to have an equal say in the choice of their family name in compliance with this judgment.
While there is no doubt that the applicant has suffered distress and anxiety in the past, it is the inability of married women under Turkish law to keep their maiden name which lies at the heart of the complaints in the instant case. The Court does not therefore find it appropriate to make an award to the applicant, seeing that in the circumstances of the present case the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting just satisfaction.
74. The applicant also claimed EUR 1,750 for the costs and expenses incurred before the domestic courts and the Court. She referred to resolution no. 36 of 24 June 2003 of the executive committee of the İzmir Bar (rate applicable from 1 July 2003 to 31 December 2003).
75. Having regard to the information before it and to its relevant case-law, the Court awards the applicant EUR 1,750.
76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-68777
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF WHITFIELD AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 in respect of three applicants;Violation of Art. 6-3-c in respect of all applicants;Not necessary to examine Art. 6-3-b;No violation of Art. 5 alone or in conjunction with Art. 13;Non-pecuniary damage - findings of violations sufficient (with regard to three applicants);Non-pecuniary damage - financial award (with regard to one applicant);Costs and expenses award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 5. The first applicant was born in 1968 and is currently in prison in the Isle of Wight, the second was born in 1961 and lives in London and the third was born in 1980 and lives in Leeds. The fourth applicant was born in 1976.
6. On 15 March 1996 the applicant was sentenced to nine years’ imprisonment following a conviction for causing grievous bodily harm.
7. It was later alleged that on 5 June 1998, as he was being transferred to HMP Parkhurst, a fight broke out during which he “headbutted” one of the prison officers. On 6 June 1998 he was charged with assault contrary to Rule 47(1) of the Prison Rules 1964.
8. The adjudication hearing before the governor commenced on 22 June and continued on 23 June 1998 when a letter was received from the applicant’s solicitor requesting that he be legally represented at the hearing. The governor adjourned the hearing until 14 July 1998 to consider the request. On 7 July 1998 legal aid was granted by the Legal Aid Board for representation prior to and at the adjudication hearing.
9. On 8 July 1998 the applicant orally outlined to the governor why he needed legal representation but the governor rejected the request:
“I have considered the case for legal [representation]. I do not feel there is an issue of seriousness or potential penalty. You are able to conduct your defence. You have access to check original with the prisoners you may call as witness. I do not consider you have been unfairly treated in comparison with the other prisoner so charged. No points of law are in question”.
10. By letter of 28 July 1998 the applicant’s solicitors asked the governor to reconsider. By letter of 30 July 1998 the prison service responded explaining that in considering requests for representation governors did not need to be sure beyond reasonable doubt that representation was not needed before rejecting a request but were required to take account of the six criteria set out in the “Tarrant principles” (R. v. Secretary of State for the Home Department ex parte Tarrant [1984] QB 251).
11. The adjudication hearing resumed on 25 September 1998. The applicant again requested legal representation for the hearing without success. The governor found the applicant guilty (adding “whether your actions were deliberate or reckless, although you have not advanced that as a defence”) and sentenced him to 21 “additional days” pursuant to Rule 50 (1) (f) of the Prison Rules 1964.
12. On 5 November 1998 his solicitors appealed to the Secretary of State referring to the imminent incorporation into domestic law of Article 6 of the Convention and to the failure to grant legal representation for the hearing. By letter dated 10 December 1998 the Secretary of State rejected the appeal stating that the adjudication had been thoroughly reviewed, that the hearing had been fairly conducted and that the findings should be upheld.
13. The applicant was granted legal aid to obtain counsel’s opinion on the lawfulness of the governor’s decision of 8 July 1998. Counsel advised on 11 January 1999 that the applicant had no realistic prospects of success given the Hone and McCartan case (Hone and McCartan v. Maze Prison Board of Visitors [1998] 1 All ER 381). As to whether the governor’s exercise of discretion was unreasonable, the “Tarrant criteria”, the “relatively minor nature of the offence” and the capacity of the applicant, meant that the prospects of passing the “high hurdle of irrationality” on judicial review were remote.
14. In December 1987 the applicant was sentenced to seventeen years’ imprisonment for armed robbery and making threats to kill.
15. Following a fire in his cell, on 15 November 1998 he was charged with intentionally endangering the health or personal safety of others by his conduct, or of being reckless as to whether such health or safety was endangered, contrary to rule 49 of the Prison Rules 1964. He appeared at an adjudication hearing before the governor on 16 November 1998. He pleaded not guilty and the hearing was adjourned.
16. On 24 November 1998 a solicitor submitted a written request to the governor to represent the applicant at the adjudication hearing.
17. On 16 December 1998 the adjudication reconvened. The applicant made written representations in which he admitted telling a prison officer that he had caused the fire by throwing a lighted taper on the bed. However, he explained that that was untrue and that he believed his cell had been deliberately set on fire by other prisoners who thought that he was an informant. He had not explained this to the prison officers at the time as he was in the presence of other prisoners and he feared reprisals. He consistently maintained throughout the hearing that he had not started the fire. He cross-examined various witnesses called by the governor. The hearing continued the following day when he formally applied for legal representation for the remainder of the hearing, on the grounds that there were a large number of witnesses to be called, that the charge was a serious one and that it was difficult to be his own representative given the issue about his false admission. The governor refused his request taking the view that the offence was not sufficiently serious to warrant legal representation and that the applicant had demonstrated that he was capable of presenting his own defence. The hearing was adjourned until 22 December 1998 to enable a particular prison officer to be called.
18. On 22 December 1998 the applicant was due for early release from custody pursuant to the provisions of the Criminal Justice Act 1991. On the morning of that day he fell down a flight of stairs and was injured. He was treated for head and back pain by a doctor at a hospital. Once informed of developments, the applicant’s solicitor submitted orally to the governor that, given the applicant’s injury, the interests of natural justice required the charge to be dismissed and the applicant to be released. Further written representations were also made: due to the nature of the injuries and the medication received, it was unreasonable for the applicant to represent himself and the charge should be dismissed and that the solicitor should be informed should the proceedings continue so that he could make further representations. These written representations were not seen by the governor until after the adjudication hearing. The applicant returned to prison after his treatment and was certified by the prison doctor as fit for adjudication. The adjudication recommenced that day (22 December 1998) and the applicant was accompanied at the hearing by a medical officer. While prison staff maintained that he was alert and able to conduct his defence (even asking for the hearing to commence), the applicant stated that he felt so dizzy and ill that he could not concentrate and was incapable of asking questions or putting forward his case. The same day he was found guilty as charged and was sentenced to 35 additional days’ detention to commence on that day.
19. The applicant applied to the Secretary of State to review the hearing. He maintained that he had been unable to conduct his defence properly because of the medication and that the governor erred in refusing legal representation given the seriousness of the charge. The Secretary of State upheld the finding and punishment. An application for leave to apply for judicial review was lodged, leave was granted, the High Court hearing took place on 18 January 1999 but the substantive application for judicial review was dismissed.
20. The applicant was released on 26 January 1999.
21. On 31 March 1999 the applicant was sentenced to 23 months’ imprisonment following conviction for violent disorder, affray, criminal damage and breach of a supervision order. He was detained at a young offenders’ institution in Doncaster.
22. On 5 April 1999 he was charged with assaulting (punch in the face) another inmate (H) contrary to Rule 50(1) of the Young Offender Institution Rules 1988. The applicant claimed that he asked to see a solicitor but was told that he was not allowed to do so. He then pleaded guilty to the charge. On 6 April 1999 the deputy controller of the prison commenced the adjudication of the charge. However, once it became apparent that H’s jaw had been broken, the adjudication was adjourned and the charge was referred to the police for investigation.
23. On 9 April 1999 the applicant’s solicitors wrote to the controller requesting confirmation that the applicant could be legally represented at any adjudication. On 12 April 1999 the controller responded stating that the adjudication had been adjourned as the charge had been referred to the police. He also noted that the applicant had not requested legal advice or representation at the hearing, had pleaded guilty to the charge and had apologised for the injuries caused. On 19 April 1999 the controller wrote to the applicant’s solicitors, stating that:
“I write to advise that the victim of the alleged assault will not co-operate with the police investigation and wishes for the matter to be dealt with internally.
In view of the foregoing it is our intention to complete the hearing forthwith. As your client pleaded guilty at the initial hearing I am not prepared to allow him to be legally represented. I have applied the ‘Tarrant’ criteria and am satisfied that he can adequately conduct his own defence and, if necessary, mitigate his actions.”
24. On 21 April 1999 the applicant’s solicitors asked the controller to re-consider his refusal of legal representation: since the applicant had instructed them that it was self-defence, his guilty plea was not satisfactory. The applicant submitted that his solicitor had also advised that that defence was potentially a good one. By letter of 21 April 1999 the controller rejected their request: the applicant could claim self-defence at the hearing and that claim would be examined on adjudication.
25. On 23 April 1999 he was refused leave by the High Court to seek judicial review of the controller’s decision of 21 April 1999: there was no arguable case that the controller had failed to exercise his discretion in accordance with the above-noted Tarrant criteria. On 26 May 1999 the applicant’s renewed application for leave to seek judicial review to the Court of Appeal was refused. It was considered a simple case in which the applicant had sworn an affidavit setting out his account of the incident including a passage which claimed self-defence and the adjudicator would have to decide whether he believed the applicant or H. The Convention case-law opened to the Court (Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, and Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I) did not establish an inflexible rule that legal representation should be accorded in every case or even a looser rule that it should be generally accorded. It was held that there was no need for legal representation and that there was no identifiable legal error in the controller’s refusal.
26. On 1 June 1999 the adjudication hearing took place. The applicant was found guilty as charged. He was awarded 35 additional days’ imprisonment and he was to be excluded from associated work for 14 days. Fourteen days of canteen privileges together with associated dining and recreation privileges were also forfeited.
27. On 22 July 1999 the applicant was sentenced to four months’ imprisonment for motoring offences. His ordinary release date would have been 18 September 1999.
28. On 6 September 1999 he was charged with a breach of prison discipline contrary to paragraph 51(16) of the Prison Rules 1999, it being alleged that he had thrown burning material from a cell window. The hearing was adjourned to allow it to be heard by the deputy governor.
29. On 13 September 1999, upon his return from annual leave, the applicant’s solicitor received a letter from the applicant denying the charges and requesting urgent assistance. The solicitor sent a facsimile to the governor at 9.30 a.m. on 13 September 1999 requesting an adjournment to enable him to take urgent instructions and provide legal advice. The hearing resumed on 14 September 1999 when the deputy governor refused an adjournment. It is recorded on the applicant’s “Record of Hearing and Adjudication” that the deputy governor stated the following:
“I have a letter from your solicitor requesting that you be allowed legal advice. I have considered your request and refuse it on the following grounds.
1. No points of law are likely to arise.
2. You can present your own case.
3. Although the charge is serious it does not require a solicitor to mitigate it.
4. There are no procedural difficulties.
5. There is a need for reasonable speed. There has already been a delay.”
The deputy governor found the applicant guilty as charged and awarded 18 additional days’ imprisonment.
30. An application for leave to apply for judicial review was made arguing that the imprisonment was based upon a punishment, the legality of which was seriously flawed both on grounds of irrationality and procedural unfairness. On 21 September 1999 Mr. Justice Moses granted leave but refused bail. On 23 September 1999 the Secretary of State quashed the punishment in the following terms:
“The adjudication detailed above has been reviewed and it has now been decided that the finding of guilt should be quashed on the grounds that the adjudicator should have offered Mr. Clarke a limited opportunity to consult with his solicitors. Although Mr. Clarke did not apply for legal advice or assistance at the original hearing on 6 September he should have been given the opportunity to discuss matters with his solicitor, possibly by telephone to arrange for a meeting the next day, and given a deadline for obtaining the advice he sought. A time limit could have been set to ensure that the prisoner did not delay the hearing unnecessarily. In view of the urgency of this case, please arrange for Mr. Clarke to be released immediately as this decision means that he is serving added days now.”
31. The applicant was released at 17.10 hours on 23 September 1999, having served five of the additional days awarded.
32. By letter dated 26 November 1999 the Treasury Solicitor refused to admit liability in respect of the alleged unlawful imprisonment. Counsel was therefore asked to advise whether there existed any effective domestic remedy which the applicant could pursue in respect of the relevant five-day period of detention. Counsel advised that there was no such remedy: under English law a disciplinary finding was presumed to be valid and, in effect, the order for additional days’ detention was valid until it was set aside.
33. On 28 January 2000 the applicant’s solicitor wrote to the Treasury Solicitor pointing out that, in the light of Counsel’s advice, no claim for false imprisonment or misfeasance in public office would be commenced. However, it was alleged that the deputy governor’s conduct violated Article 6 of the Convention. A request was therefore made for an ex gratia payment to compensate the applicant for the 5 days’ detention resulting from the adjudication. The Treasury Solicitor responded that the matter would be considered after the publication of the House of Lords judgment in R. v. Governor of Brockhill Prison, ex parte Evans. No. 2 ([1999] 2 WLR 103). The Government have not submitted that any payment was made.
34. The Court refers to the law and practice outlined in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, §§ 37-62, ECHR 2003X).
35. A charge was, in general, drawn up by a prison officer against whom the alleged offence was committed or who witnessed or dealt with the incident during which the alleged offence took place. Such reporting officers could consult a more senior officer on what charges were to be laid against the prisoner. A charge was formally laid when form a Notice of Report was handed to the accused. A charge had to be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the alleged offence being discovered.
Every charge laid against a prisoner had to be inquired into by the prison governor. The governor also determined the charge against the accused during the adjudication hearing and imposed punishments from those available to him under the prison rules.
Since the 1990s the management of certain prisons has been contracted out to private security companies. All such “contracted out” prisons have a “Controller” (a Crown employee) linking them to the Home Office and the governors are called “Directors”. Adjudcation hearings are conducted by the Controller rather than by the Director.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 13
5


ITEMID: 001-57521
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 1. The case of Le Compte, Van Leuven and De Meyere was referred to the Court by the European Commission of Human Rights ("the Commission") and the Government of the Kingdom of Belgium ("the Government") on 14 March and 23 April 1980, respectively. The case originated in two applications (nos. 6878/75 and 7238/75) against that State introduced in 1974 and 1975 by three Belgian nationals, Dr. Herman Le Compte, Dr. Frans Van Leuven and Dr. Marc De Meyere.
2. On 1 October 1980, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By a judgment of 23 June 1981, the latter held that there had been a breach of Article 6 § 1 (art. 6-1) of the Convention in that the applicants’ case had not been heard publicly by a tribunal competent to determine all the aspects of the matter. It found, on the other hand, that there had been no violation of that Article (art. 6-1) as regards the applicants’ other complaints, and no violation of Article 11 (art. 11) (Series A no. 43, points 2 and 3 of the operative provisions and paragraphs 54-66 of the reasons, pp. 24-28).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 34 of the above-mentioned judgment (ibid., pp. 7-17).
3. At the hearings of 25 November 1980, the applicants’ lawyer had asked the Court, in the event of its finding a breach of the Convention, to afford his clients just satisfaction under Article 50 (art. 50). He had, however, stated that he was not yet in a position "to establish the exact amount of any damages, in view of the possibility of compensation, if only partial, being granted under Belgian law".
In its judgment of 23 June 1981, the Court reserved the whole of the question of the application of Article 50 (art. 50) and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the same day, the Chamber invited the Commission to submit, within the next two months, its written observations on the said question, including notification of any friendly settlement at which the Government and the applicants might have arrived (ibid., p. 45).
4. The President granted extensions of this time-limit on 25 August and on 16 October.
On 15 December, the Secretary to the Commission informed the Registrar that the Agent of the Government found it impossible to put forward the slightest proposal on the Article 50 (art. 50) issue. On the instructions of the Delegates - who reserved the right to submit observations at a later date -, the Secretary transmitted to the Court a copy of a note drafted by the applicants’ lawyer. The note, dated 18 August 1981, may be summarised as follows:
The applicants sought an undertaking from the Government to take measures providing partial reparation in the shape of
(i) the complete and effective expunction of "all the disciplinary and penal sanctions" of which they complained;
(ii) the reimbursement of the legal expenses and fines, the former including the following fees of lawyers practising before the Court of Cassation:
- 25,000 BF for Dr. Le Compte;
- 11,000 BF for Dr. Van Leuven;
- 11,000 BF for Dr. De Meyere.
(i) as his principal claim, a provisional award of one Belgian franc, pending the outcome of his second application to the Commission (no. 7496/76, - judgment of 23 June 1981, Series A no. 43, p. 10, § 13 in fine), referred to the Court on 12 March 1982 (the case of Albert and Le Compte);
(ii) in the alternative, an award
- of "a fair proportion" of the 732,608 BF he had paid in legal costs;
- 30,000 BF for travel and subsistence expenses and by way of attendance allowances;
- 20,000,000 BF for pecuniary and non-pecuniary loss.
Dr. Van Leuven claimed
- 50,000 BF for legal costs;
- 30,000 BF for travel and subsistence expenses and by way of attendance allowances;
- 15,000,000 BF for pecuniary and non-pecuniary loss.
Dr. De Meyere claimed
- 60,000 BF for loss of income during the fifteen days’ suspension of his right to practise medicine;
- 50,000 BF for legal costs;
- such sum as the Court deemed fit for non-pecuniary loss.
5. By Order of 16 December, the President of the Court directed that the Agent of the Government should have until 1 February 1982 to submit observations, a time-limit which the President subsequently extended to 20 February at the Agent’s request.
The Government filed their memorial on 10 February and indicated, on 5 March, that they did not insist that hearings be held.
6. On 31 March, the Secretary to the Commission transmitted to the Registrar the Delegates’ memorial, adding that they too considered that no purpose would be served by hearings.
7. On the same day, the President directed that the Agent of the Government should have until 30 April to reply to the Delegates’ memorial. On 3 May, he extended this time-limit to 31 May.
The Government’s reply was received at the registry on 17 May.
8. Mr. F. Gölcüklü, a substitute judge, took the place of Mr. R. Ryssdal, who was prevented from taking part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).


ITEMID: 001-61940
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF IKINCISOY v. TURKEY
IMPORTANCE: 3
CONCLUSION: 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);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief);No violation of Article 14 - Prohibition of discrimination (Article 14 - Discrimination);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Josep Casadevall
TEXT: 9. The applicants were born in 1933 and 1974 respectively and live in Diyarbakır.
10. The facts surrounding the arrest and subsequent death of Mehmet Şah İkincisoy (“Mehmet Şah”) are in dispute between the parties.
11. On 22 November 1993 at about 1 a.m. plain-clothes police officers arrived at the first applicant, Abdurrazak İkincisoy's (“Abdurrazak”), apartment in Diyarbakır. They entered the apartment, carried out a quick search and inquired about Mehmet Şah. Abdurrazak informed them that Mehmet Şah was spending the night in his uncle Abdülkadir İkincisoy's apartment. Leaving one of the officers with Abdurrazak1, Garipşah İkincisoy, Hüseyin İkincisoy, Makbule İkincisoy and Nefise İkincisoy, the rest of the officers left taking the second applicant, Halil İkincisoy (“Halil”), with them to show them the way.
12. When they arrived at Abdülkadir İkincisoy's apartment, one of the police officers remained at the entrance of the building. Halil and two officers went up to the second floor. When they entered the apartment, the police officers carried out a search and an identity check. Several members of the İkincisoy family were present in the apartment, namely Mehmet Şah, Abdülkadir, Nasır, Adile, Sabriye, and Bilgi İkincisoy, as well as fourteen grandchildren of Abdülkadir İkincisoy and two of Mehmet Şah's friends. One of the police officers interrogated these two men in one of the rooms. The rest of the group was held in the sitting room. Suddenly, a gun shot was heard from the room and an armed clash broke between the police officers and the two men. The police officer who was interrogating the two men was shot dead. When the shooting started, the second police officer grabbed Mehmet Şah by his arm and dragged him downstairs. Halil and the others saw the two men try to escape. They heard further gunshots from downstairs. The group subsequently learnt that one of the men had died, the other had escaped and the officer who was waiting outside the building had been wounded.
13. Approximately ten minutes following the incident, several police teams surrounded the building. Halil, Abdülkadir, Adile, Nasır, Sabriye and Bilgi İkincisoy were arrested and taken to the Çarşı Police Station by a minibus. When they arrived at the Çarşı Police Station, they were detained in the entrance hall. On the right hand side of the entrance hall, there were three rooms, two of which were used for interrogation and the third was the office of the superintendent. Halil was called in to one of the small rooms for interrogation. When he entered the room, he saw his brother Mehmet Şah, lying on the floor face down, with his red leather jacket pulled over his head. In the meantime Abdurrazak, Hüseyin, Makbule, Nefise and Garipşah İkincisoy were also arrested and brought to the Çarşı Station by another minibus. When the second group entered the station, they were told to cover their heads with their jackets. Abdurrazak1 however was able to see through the parting of his jacket. He also saw his son Mehmet Şah standing behind him. The group was subsequently transferred to another location by a minibus. Abdurrazak1 saw Mehmet Şah also in this second location. They were then brought to the Rapid Intervention Headquarters for interrogation, where the applicants heard the cries of Mehmet Şah.
14. The first applicant was held in custody until 25 November 1995. When he was released, the police officers told him that if anyone asked about his son Mehmet Şah, the applicant had to say that he had fled to the mountains to join the guerrillas. The second applicant was released on 3 December 1993, eleven days after his arrest.
15. On 6 December 1993 the first applicant went to the Diyarbakır State Security Court Public Prosecutor and submitted a petition outlining his concerns for the fate of his son. The public prosecutor showed him some photographs and from these photos the first applicant identified the body of Mehmet Şah. The public prosecutor informed him that Mehmet Şah had died in an armed clash on 25 November 1993 and that his body had been buried. When Abdurrazak went to the cemetery, two unmarked graves were shown to him and he was told that one of them belonged to Mehmet Şah. On 13 December 1993 Abdurrazak1 submitted a petition to the Diyarbakır State Security Court Chief Public Prosecutor's office and requested permission to open his son's grave. His request was rejected verbally. On 13 December 1993 Abdurrazak1 lodged two petitions with the Diyarbakır State Security Court Chief Public Prosecutor's Office. He requested that an autopsy be conducted on Mehmet Şah's body in order to learn the true circumstances surrounding his death. He was told to go to the court to get permission for an autopsy. He filed another petition with the State Minister responsible for human rights and requested an investigation of the circumstances surrounding the death of his son. On 21 March 1993 the Ministry replied that Mehmet Şah had never been taken into custody.
16. Following the communication of the application to the Government, Abdurrazak1 was summoned to the Diyarbakır public prosecutor's office on 6 June 1995. He was questioned about his application to the Commission and was forced to sign a statement in which he expressed his wish to retract his application. Thereafter he went to the Diyarbakır Human Rights Association and informed them about this incident.
17. The Government stated that while the Anti-Terrorism Department of the Diyarbakır Security Court was taking a statement from an arrested person in connection with an ongoing investigation, they were informed that a person called Mehmet Şah İkincisoy was aiding and abetting the PKK. Accordingly a team of police officers went to Abdurrazak's1 apartment searching for his son Mehmet Şah. When they arrived at the apartment, the officers were informed that Mehmet Şah was spending the night at his uncle's apartment. Taking Halil with them to show them the way, the officers subsequently went to Abdulkadir İkincisoy's apartment. The officers carried out a search and found four men sleeping in one of the rooms. As they interrogated them, one of the men opened fire and killed one of the police officers. Another officer was wounded during the incident. The Government further stated that the four men tried to escape however one of them was shot dead.
18. The Government further submitted that on 23 November 1993 the security forces received an anonymous telephone call, informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. Accordingly, an operation was conducted. When the officers arrived near the hut, an armed clash broke out and lasted approximately twenty minutes. Following the clash, two men were found dead in the hut. The officers took photographs of the bodies to enable their identification. On 24 November 1993 an autopsy was conducted on one of the bodies, which was later identified as Mehmet Şah from the photographs. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used on 22 November 1993 in Abdulkadir İkincisoy's apartment.
19. The parties submitted various documents to the Court. While delivering its judgment, the Court had particular regard to the following documents:
20. The report stated that in connection with an ongoing investigation, a search was conducted in a house on 22 November 1993. The officers were looking for Hanefi İkincisoy however they were informed that Hanefi İkincisoy was at his uncle's house. Accordingly, taking Halil with them to show them the way, the police officers left the apartment. When they arrived at the second apartment, the officers conducted a quick search and found four or five men sleeping in one of the rooms. When the officers asked the men to show their identification paper, they were attacked and a gun was fired. One person was arrested and while he was being taken to the police vehicle downstairs, another police officer was shot and wounded. The arrested person escaped and the person who had shot the officer was killed.
21. According to the report, which was signed by officer Mustafa Şen, on 23 November 1993 at about 3 a.m. the anti-terrorism department received an anonymous telephone call informing them that the perpetrators of the incident of the previous day, who had caused the death of a police officer and the wounding of another, had been seen in a hut near the Ongözlü Brigde.
22. The report states that following information from an anonymous telephone call at about 3 a.m. that two armed men were hiding in a hut near the Öngözlü Bridge, a police operation was carried out. Taking the necessary safety precautions, the officers positioned themselves 15 metres away from the hut and ordered the two men to surrender. Shots were fired from the hut in the direction of the security forces and a clash broke out. The clash lasted approximately twenty minutes. When the firing ceased, police officers entered the hut and found two dead bodies. One of the bodies had an ammunition belt with four cartridge clip holders, a Kalashnikov rifle and a cartridge clip. A Browning pistol was found on the second body. There were no identity cards on the bodies, which were subsequently taken to the State Hospital morgue.
23. The autopsy report stated that rigor mortis had set in and bruising had appeared on the body. Two bullet entrance holes on the back side of the neck and two exit holes in the chest were noted. The report further stated that no other signs were observed. As the gunshot wounds were the certain cause of death, it was not considered necessary to carry out a full post-mortem examination. Finally, the estimated time of death was given as thirty-six hours before the autopsy was carried out.
24. The Government have provided the photographs of the three dead bodies and photographs taken in the hut where Mehmet Şah was shot.
25. The custody records of the Diyarbakır Security Directorate concerning the period of 21 November and 26 November 1993 do not contain the name of Mehmet Şah İkincisoy. They further indicate that Adile, Nefise, Bilgin, Garipşah, Makbule, Sabriye, Halil, Abdülkadir, Abdurrazak, Nasır and Hüseyin İkincisoy were taken in custody on 22 November 1993 at 3 a.m.
26. In their police statements, Abdurrazak1, Makbule, Hüseyin and Garipşah İkincisoy submitted that on the night of the incident at about 1 a.m. police officers had arrived at their apartment, looking for Mehmet Şah. Abdurrazak1 informed them that Mehmet Şah was spending the night at his uncle's house. Accordingly, the police officers left, taking Halil with them to show them the way. About an hour later, the police officers returned and arrested them.
27. The report which was delivered by the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Bilgin, Adile, Nefise, Makbule, Hüseyin, Garipsah and Abdurrazak İkincisoy.
28. In his police statement Halil explained that on the night of the incident, he was at his father Abdurrazak's1 house. At about 1 a.m. police officers arrived looking for his brother Mehmet Şah. Abdurrazak1 informed the officers that Mehmet Şah was spending the night at his uncle Abülkadir's house. Accordingly, Halil went with the officers to show them the way. When they arrived at Abdülkadir's apartment, the police officers asked for Mehmet Şah and they were told that he was sleeping in one of the rooms. Halil waited in the living room together with the other family members while the officers entered the room where Mehmet Şah and his friends were sleeping. A few minutes later a gun shot was heard and everyone in the living room fled to the neighbour's apartment. Halil further stated seeing Mehmet Şah and his two friends running away.
29. As to the police statements of Abdülkadir, Nasır and Sabriye İkincisoy, they all stated that on the day of the incident Mehmet Şah had been staying at their apartment together with his two friends. At about 2 a.m. the same night, police officers came looking for Mehmet Şah. They conducted a search in the apartment and one of the officers entered the room where Mehmet Şah and his two friends were sleeping. A few minutes later, they heard a gun shot. All the family members fled to the neighbour's apartment whereas Mehmet Şah and his two friends tried to run away.
30. The report of the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Halil, Abdülkadir and Sabriye İkincisoy. The report further stated that there were certain marks on the body of Nasır İkincisoy.
31. In their statements to the public prosecutor, Halil, Abdülkadir and Nasır İkincisoy essentially repeated their police statements. As to Sabriye İkincisoy, while she reiterated the general account of the events, in her statement to the public prosecutor she did not mention that she had seen Mehmet Şah running away.
32. In their statements Abdülkadir and Nasır İkincisoy stated that on 22 November 1993, while they were sleeping at home, police officers had come to their apartment looking for Mehmet Şah. He and his two friends had been spending the night with them. Nasır and Abdülkadir İkincisoy further explained that while the officers interrogated Mehmet Şah and his two friends in one of the rooms, a gun shot was heard. The family members fled to the neighbours' apartment and they were all subsequently arrested by the police. Nasır and Abdülkadir İkincisoy further denied their statements taken by the police and the public prosecutor.
33. According to the report, prepared by the Regional Criminal Police Laboratory, a Kalashnikov automatic rifle, a Browning semi-automatic pistol, 251 bullet cases, and 12 bullets were taken into examination following the clash of 23 November 1993. It was further established that the bullets fired by the Kalashnikov rifle had been used in the killing of police officer Alişan Eol on 22 November 1993. The report further concluded that the Browning pistol had not been used in any previous incidents.
34. According to the report prepared by the Diyarbakır State Security Court Public Prosecutor, Abdurrazak identified the body of Mehmet Şah from the photographs.
35. The first applicant requested information about the fate of his son, who had been arrested on 22 November 1993 at Abdülkadir İkincisoy's apartment.
36. Upon learning from the public prosecutor that his son, Mehmet Şah, had died in a clash on 25 November 1993, the first applicant submitted to the prosecutor that he believed that his son had died in custody. He accordingly requested that an autopsy be conducted on the body of Mehmet Şah to clarify the exact cause of his death.
37. The first applicant maintained that his son was taken into custody on 22 November 1993 together with twelve members of his family. He further stated that he had seen him both at the Çarşı Police Station and at the Rapid Intervention Headquarters. Although the first applicant was informed by the Diyarbakır State Security Court Public Prosecutor that his son had died in a clash on 25 November 1993, he requested the Minister to conduct a further investigation into the real circumstances surrounding the death.
38. In his letter the Minister informed the first applicant that Mehmet Şah was never taken into custody.
39. In their letter, the Ministry of Justice requested the Diyarbakır Chief Public Prosecutor to conduct an investigation concerning the individual application of Abdurrazak1 and Halil İkincisoy to the European Commission of Human Rights. The prosecutor was asked to take statements from the two applicants concerning certain documents that they had sent to the Commission.
40. In response to the public prosecutor's question about the individual application that he had lodged with the European Commission of Human Rights, the first applicant explained that following the death of his son, Mehmet Şah, he had gone to the Diyarbakır Human Rights Association where he had signed certain documents. However he stated that he did not recall giving authorisation to British lawyers to initiate proceedings in Europe. He further indicated that he wished to retract his application.
41. In his statement, which was addressed to the European Commission of Human Rights, the first applicant stated that he had been taken by plain-clothes police officers to the public prosecutor's office in May 1995. On the way to the public prosecutor's office, the officers forced him to deny that he wanted to pursue his application with the Commission. He maintained that he had to sign a statement in the public prosecutor's office out of fear and without knowing its content as he is illiterate.
42. The facts of the case being in dispute between the parties, three Delegates of the Commission took oral evidence in Ankara between 28 June and 2 July 1999 from ten witnesses, including the applicants. The evidence of those who attended the hearing may be summarised as follows:
43. The witness, who is the first applicant, stated that on the day of the incident at about 1 a.m. police officers had come to his house, looking for his son Mehmet Şah. He informed the officers that Mehmet Şah was staying at his uncle's house and told his other son Halil to show them the way. About half an hour after they had left, police officers came back and arrested everyone in the apartment, namely Hüseyin, Nefise, Makbule and Garipşah İkincisoy. They were first taken to the Çarşı Police Station. The police officers forced them to cover their heads with their jackets but the witness was able to see through the parting of his jacket. He saw that his two sons Halil and Mehmet Şah were also in the station. Thereafter, they were taken to the police headquarters by minibus. The witness further recalled seeing Mehmet Şah in the minibus. They waited for about half an hour at the police headquarters before being taken to the Rapid Intervention Force Headquarters, where they were blindfolded and the witness was able to hear the cries of Mehmet Şah. The witness and his daughters were released from custody three days after their arrest. At the time of his release, the officers told him that his son had fled to the mountains. They gave him Mehmet Şah's leather jacket but the witness refused to take it stating that his son would be cold without his jacket. The younger son of the witness, Halil, was released fourteen days after his arrest. When Mehmet Şah did not return home, the witness went to the Diyarbakır public prosecutor and asked about his son's whereabouts. The public prosecutor showed him some photos and asked him whether any of were of his son Mehmet Şah. The applicant identified his son's body. The prosecutor informed him that his son had died during an armed clash between the PKK and the security forces.
44. The witness further explained that after he filed his application with the European Commission of Human Rights, he was summoned to the public prosecutor's office in 1995. The public prosecutor was angry with him for filing an application with the Commission. Out of fear, the witness stated before the public prosecutor that he would retract his application. However, before the Delegates, the witness affirmed that he intended to pursue his application. Finally he stated that he was able to visit his son's grave and pray for him.
45. The witness, who is the second applicant, stated that on 22 November 1993 police officers had come to their house at about 1 a.m. He saw Feyzi Tatlı, a distant relative, with the police officers. The police officers carried out a quick search in the house and asked for his brother Mehmet Şah. His father, Abdurrazak, told them that Mehmet Şah was staying at his uncle's house. Accordingly, the witness accepted to accompany the three police officers to his uncle's house. When they arrived, the witness knocked on the door. Sabriye İkincisoy answered the door and let them in. One of the police officers remained outside and two of them entered. The officers conducted a search and carried out an identity check. When they found Mehmet Şah, they arrested him. Taking Mehmet Şah by his arm, one of the officers went out. The witness followed them. As they were walking along the corridor, they heard gunshots. The police officer, who was holding Mehmet Şah by his arm, dragged him downstairs. At that time, the witness saw Mehmet Şah's two friends running downstairs but he did not see where they went. The witness then fled to the neighbour's flat. His uncle Abdülkadir, his cousin Nasır, Nasır's wife and Abdülkadir's wife also joined him. Some time later, they were all arrested by the police and taken to the Çarşı Police Station. The police officers told them to cover their heads with their jackets. When they arrived at the Çarşı Station, they were forced to wait in a corridor. He described the entrance of the station and stated that there was a small hall followed by a long corridor, at the end of which there was a room. The witness saw Mehmet Şah lying face down on the floor in that room. Mehmet Şah was wearing a shirt, a pull over, a brownish leather jacket and denim jeans.
46. The witness further confirmed seeing his father and sisters in the Çarşı Station. Subsequently, they were taken to a second place in a car, where they waited for a few minutes. The witness stated that he did not see Mehmet Şah in the second place. Then they were taken to a third place. The witness did not see anyone in this third place but heard the voices of his uncle, Feyzi Tatlı, and Mehmet Şah. Mehmet Şah was screaming in pain. The witness was kept there for thirteen days and he was allegedly ill-treated. The officers told him that his brother had escaped to the mountains. He was forced to sign a statement without reading its content. When he was released from custody, the witness went to the public prosecutor with his father to discover the fate of Mehmet Şah. The witness stated that when Mehmet Şah's body was identified from the photographs, they were told that he had been buried. An officer showed them two graves and informed them that he did not know which one was Mehmet Şah's.
47. The witness, who is the first applicant's nephew, stated that on the night of 22 November 1993, he was at his father's house. His father (Abdülkadir İkincisoy), his mother (Adile), his wife (Sabriye), his children, his brother (Muhlis), and his brother's children were also at home. He recalled that his uncle's son, Mehmet Şah and his two friends had spent the night with them. The witness maintained that at about 1 a.m. two plain-clothes police officers had come to their house, together with his cousin Halil, searching for Mehmet Şah. At that time Mehmet Şah was sleeping in the guest room, together with his two friends and the brother of the witness, Muhlis. The police officers carried out an identity check and then told Mehmet Şah and his two friends that they had to come to the police station for interrogation. One of the officers held Mehmet Şah by the arm. At that moment they heard a gun shot. The police officer who was holding Mehmet Şah also started shooting. Mehmet Şah tried to prevent the police officer from shooting but the same police officer dragged him down the stairs. The witness further recalled that the family members fled to their neighbour's to protect themselves. After some time, more police officers arrived and arrested everyone. While they were being taken to the police station, the witness saw that one of the persons who had come with Mehmet Şah had been shot dead. The witness was put in a car and taken to the Rapid Intervention Headquarters. He remembered standing in a long corridor. Despite the fact that he was blindfolded, the witness was able to see around. He saw that his mother, his wife, the daughter of Muhlis and his uncle were also there. He also saw Feyzi Tatlı, a distant cousin. The witness said that he was taken to a room which was wet, where he saw Mehmet Şah, who was being tortured. Mehmet Şah was lying on the floor. He said to the witness “Our family is ruined. They will kill us all. What is this we are going through?”. The witness stated that this was the last time he saw Mehmet Şah.
48. The witness, who is the daughter of the first applicant and the sister of the second, was at her father's house on the night of the incident. She said that while they were sleeping at home, some police officers came to their house and asked about her brother Mehmet Şah. When her father explained to the police officers that Mehmet Şah was staying at his uncle's house, the police officers left the house, taking Halil with them. Some time after, the police officers came back and arrested everyone in the house, including the witness. They were first taken to Çarşı Police Station and then to the police headquarters. The witness explained that she had not seen Mehmet Şah in the Çarşı Station but she had seen him at the police headquarters. When they arrived at the police headquarters, they walked upstairs and were taken into a hall. Their eyes were not covered but they were forced to hold their hands behind the back of their necks. They were made to stand facing the wall. When the witness glanced over her shoulder, she saw that Mehmet Şah was standing next to her. This was the last time she saw him. However she recalled hearing his voice at the Rapid Intervention Force, which was the third place they were taken to. He was moaning. She was kept in a cell, together with Makbule, Nefise, Adile, Bilge and Sabriye İkincisoy. At some point, Sabriye and Makbule were taken out of the cell and when they came back they were shivering. They therefore requested a blanket from the guardians and the guardians gave them a brown leather jacket which belonged to Mehmet Şah.
49. The witness affirmed that he was a police officer at the Anti-Terrorism Branch of Diyarbakır Security Directorate at the time of the events. He recalled that after receiving information from Feyzi Tatlı, a person who was under custody, that Mehmet Şah had been aiding and abetting the PKK, an operation was prepared. Feyzi Tatlı was asked to point out the house of Mehmet Şah to a group of five police officers, including the witness. On 22 November 1993 at about 1 a.m. they arrived at the apartment of Abdurrazak, the father of Mehmet Şah. Abdurrazak1 told them that his son was staying at his uncle's house. Accordingly, taking a young person with them to show them the way, and leaving one police officer in the house of Abdurrazak1, they left. When they arrived at Mehmet Şah's uncle's house, one police officer remained near the patrol car, and the witness stayed outside the building. Two police officers went upstairs. A few minutes later the witness heard gun shots from upstairs. One of the police officers, Mustafa Hünerlitürkoğlu, came downstairs, holding someone by the wrist. He told the witness that the third police officer, Alişan, had been shot. The witness entered the building to help his colleague. At that time Mustafa went outside, still holding the detainee by the wrist. The witness then heard footsteps and he hid under the stairs. A person fired a Kalashnikov rifle at the witness and wounded him in the abdomen. The witness fired back and killed the person who had fired at him. He then went out of the building to get help. When officer Mustafa saw that the witness was wounded, he left the detainee and ran towards him. The person who had been in custody ran away. The witness was subsequently taken to hospital, where he underwent an operation. When he regained consciousness in the hospital, his colleagues asked him to sign the incident report they had prepared. The public prosecutor further took his statement while he was still in intensive care. The witness accepted that there had been a mistake in the names that appeared in the incident report. He agreed that instead of Hanefi İkincisoy, the name should have read Mehmet Şah İkincisoy. The witness further explained that he had not been involved in the arrests or interrogations of the people who had been in the house at the time of the incident.
50. The witness confirmed that he was one of the five police officers who had gone to Mehmet Şah's apartment on 22 November 1993 at about 1 a.m. He recalled that after Feyzi Tatlı, a detainee, confessed during a police interrogation that Mehmet Şah was aiding and abetting the PKK, an operation was conducted to apprehend this person. Feyzi Tatlı showed them where Mehmet Şah lived. When they set off to arrest Mehmet Şah, the officers did not know what he looked like. One of the police officers stayed in the car, and the other four went into the house. Feyzi Tatlı was sent back to the police station in another vehicle. An elderly person opened the door, and informed them that Mehmet Şah was staying at his uncle's house that night. A young person accompanied the officers to the house in question. One of the police officers stayed behind in the house to ensure that no one could call Mehmet Şah to warn him. Accordingly, the three police officers and the young person went to the house of Mehmet Şah's uncle. A middle aged lady opened the door. The witness stated that they told the lady they would carry out an identity check and they entered the apartment. The witness went inside the room that was on the opposite side of the entrance. In that room, there were women and children. In the meantime, his colleague Alişan went inside another room from which an old man and a younger man had come out. The officers found a third room, in which four persons were sleeping. The witness made them stand in the corridor, while Alişan stayed in the room and called them in one by one for an identity check. A few minutes later, the witness heard noises coming from the third room and when he went in, he saw that a man was struggling with officer Alişan. The witness tried to help however the other persons interfered. One of the men had a Kalashnikov rifle and he fired at Alişan. When the witness saw that Alişan was shot, he grabbed one of the men, who did not have a gun, to use him as a shield. The witness ran downstairs to get help, still holding that man by his wrist. Downstairs, he met the third officer, Şerif, and told him that an armed clash had broken out upstairs and that Alişan had been shot. The witness then went outside the building to go to the car to use the radio. At that time, he heard Şerif ordering someone to surrender and subsequently he heard gun shots. The witness ran back to the building, letting go off the person he was holding. When he entered the building he saw that Şerif had been shot and the person who had shot at him had been killed. They called for reinforcements. 15 to 20 minutes after the incident, they were able to send Şerif to the hospital and thereafter he drafted the incident report by hand. The witness further explained that he had given the incident report to his colleagues who had arrived at the scene of incident and they had typed it up. He remembered signing the typed incident report at the hospital. When asked about the names indicated in the incident report, the witness admitted that there was a mistake. He had written Mehmet Şah's name as Hanefi İkincisoy. The witness further maintained that he had given a statement to the public prosecutor in the hospital. The witness also stated that he had not seen the photos of the two terrorists who were killed in a clash, the day after the incident.
51. The witness confirmed that he had signed the autopsy report of Mehmet Şah İkincisoy. He is a doctor specialised in forensic medicine and pathology. He has been a forensic doctor since 1991. The witness did not recall the autopsy of Mehmet Şah however by looking at the documents he explained that the estimated time of death was 36 hours before the autopsy was carried out. There were no bruises on the body. There were certain discoloured spots but these were not signs of beating or force. The cause of death was the two bullets that had entered from the upper back region. There was an exit hole around the left breast, and another exit hole on the upper right side of the chest. Dr Eğilmez concluded that the entry and exit holes made it clear that the person had not been shot at close range.
52. The witness affirmed that he was the head of Diyarbakır Anti-Terrorism Department at the time of the incident. He recalled that on the basis of information received from a detainee, Feyzi Tatlı, an operation was carried out to apprehend certain people. The witness was the head of the Central Branch however the interrogation office was located in the Rapid Intervention Force Building, which was also known as the police school. Officer Sürücü stated that as a general rule, the detainees were taken directly to the police school for interrogation. When asked about the armed clash, during which Mehmet Şah had allegedly been killed, the witness stated that he had not been directly involved in the operation. Although his name appeared on the incident report, he explained that these reports were usually signed by the officers who were replacing him and who had the power to sign for him. He remembered however that, on the day of the clash, they had received an anonymous call indicating that the two terrorists, who had escaped the day before, were hiding in a hut.
53. The witness further confirmed that he had never been interrogated concerning the allegation that Mehmet Şah had died under torture.
54. The witness, who is a police officer, stated that he was serving at the interrogation office of the Anti-Terrorism Department of Diyarbakır police headquarters in November 1993. He was police superintendent. The witness explained that, at that time, there were three interrogation teams and he was in charge of the first team. When asked about the general procedure that was followed after a person was arrested, he explained that before being brought for interrogation, all arrested persons were first sent for a medical examination. He emphasized the fact that the detainees were not blindfolded during the interrogation and that no one had been ill-treated. The interrogation office command was located in the headquarters of the Rapid Intervention Force in Diyarbakır. All the interrogations were conducted there. He refused the suggestion that the detainees could first be taken to the Çarşı Police Station. When a detainee was interrogated, the officers first asked about his past, and then certain questions were put to him. There was no standard form of procedure for interrogation.
55. The witness affirmed that he had been involved in the interrogation of Feyzi Tatlı as well as the İkincisoy family members. However he could not remember the interrogation of the İkincisoy family members very clearly as it was almost six years ago. He recalled that upon receipt of intelligence to the effect that the two persons who had escaped the day before had been seen in a hut, an operation was conducted to apprehend them. The witness further took part in the operation together with 14 police officers. They were all wearing bullet proof vests. Before the armed clash, the officers asked the two persons to surrender but the two men started shooting at the officers. The clash lasted for about twenty minutes. They were about 15 metres away from the hut. No officer was wounded. When no-one returned their fire, the officers entered the hut and found two bodies. The hut was about ten square metres, it had a wooden door and a small window. Shortly after the armed clash, another team arrived and took photographs in the hut. The witness explained that he had never referred to this incident or showed the photographs to the İkincisoy family members during their interrogation.
56. The witness affirmed that he had been the Diyarbakır Public Prosecutor from December 1993 to September 1995. He recalled that he had taken a statement from the first applicant concerning his application to the European Commission of Human Rights on 6 June 1995. The witness explained that, by a letter dated 24 May 1995 from the International Law and Foreign Affairs Directorate of the Ministry of Justice, he was instructed to take the applicant's statement concerning his application to Strasbourg and to verify certain signatures on some documents. Accordingly, he had written to the Diyarbakır Security Department to notify the applicant that he was called to the office of the public prosecutor. The public prosecutor stated that the applicant had come to his office alone, of his own free will. No police officer had accompanied him to the public prosecutor's office. His statement was taken in the office of the clerks and not in the interrogation room. While they were in the office, the applicant seemed relaxed. The public prosecutor showed him certain documents, which were annexed to the letter from the Ministry. While accepting that these signatures belonged to him, the applicant stated that he did not remember signing these documents. The public prosecutor further recalled that the applicant had clearly stated that he did not want any foreign lawyers to make any applications before international bodies. The public prosecutor wrote down everything the applicant told him and read it out. The applicant accordingly signed his statement. The public prosecutor further admitted that he had not taken any steps to investigate the complaint, mentioned in the applicant's statement, that he had been ill-treated in custody and that his ribs had been broken.
57. A full description of the relevant domestic law may be found in Tanli v. Turkey (no. 26129/95, §§ 92-105, ECHR 2001-III) and Dalkılıç v. Turkey (no. 25756/94, §§ 15-16, 5 December 2002).
VIOLATED_ARTICLES: 13
2
34
5
VIOLATED_PARAGRAPHS: 2-1
5-3
5-4
5-5
NON_VIOLATED_ARTICLES: 14
3
5
8
9
NON_VIOLATED_PARAGRAPHS: 5-1
8-1
9-1