ITEMID: 001-5545
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: J.L. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish citizen, born in 1954. He is detained in a mental hospital in Kuopio.
A. Circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
I.
In 1981 the applicant was charged with murder (committed in 1981), sexual intercourse with a minor (committed in 1979) and assault, and reckless driving and driving while intoxicated (committed in 1980). The examination concluded that the applicant had not been in possession of his senses at the time of the crimes of which he was accused. As long as he remained ill he had to be considered very dangerous to others. Agreeing with this finding, the National Medical Board (lääkintöhallitus, medicinalstyrelsen) in 1982 ordered the applicant to undergo compulsory psychiatric treatment in pursuance of Section 16a, subsection 1, and Section 34 of the 1952 Act on the Mentally Ill (mielisairaslaki, sinnessjuklag 187/1952). In 1983 the applicant was found guilty of the aforementioned offences but was not sentenced, given his mental state at the time of committing them. In 1984 he was placed under guardianship.
Following the entry into force of the 1990 Mental Health Act (mielenterveyslaki, mentalvårdslag 1116/1990) in 1991, compulsory care shall be reviewed at maximum interval of six months. Any prolongation order must be confirmed by the competent county administrative court (lääninoikeus, länsrätt). In so far as this is immediately relevant to the present application, the applicant’s care has been extended as follows.
On 4 April 1996 the Senior Physician responsible for the applicant’s treatment considered that he was still in need of compulsory psychiatric care and ordered its prolongation. The Deputy to the Senior Physician had found that the applicant continued to suffer from a psychosis (schizo-affectiva) and a personality disturbance. In 1974 and 1978 he had been convicted of deprivation of liberty and rape. In 1977 he had been convicted of a continued offence comprising deprivation of liberty, rape and assault. In addition, he had, in 1979, raped his then 14-year-old sister-in-law who had become pregnant. On 11 May 1981 he had murdered his wife by stabbing her 40 times while she had been holding their four-year-old son in her arms.
The applicant objected to the prolongation order and requested, inter alia, that his mental state be examined “impartially” in a “civil hospital”. On 21 May 1996 the County Administrative Court of Kuopio dismissed the applicant’s request for a further examination of his mental state and confirmed the prolongation order, having regard to the reasons stated by the Senior Physician and his deputy. The applicant appealed further, considering that his compulsory care was not justified and seeking damages from the State. On 21 October 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the applicant’s claims for damages and upheld the County Administrative Court’s decision. No oral hearing was held at either court level.
On 4 October 1996 the applicant’s compulsory care was again prolonged by the Senior Physician. His order was confirmed by the County Administrative Court on 19 November 1996. The applicant did not appeal.
On 2 April 1997 the Senior Physician prolonged the applicant’s compulsory care in the light of the Deputy’s opinion of 1 April 1997 which was very similar to the one issued in April 1996. On 6 May 1997 the County Administrative Court confirmed this prolongation order. It noted, inter alia, the opinion of the Senior Physician, the terms of his decision, the information in the applicant’s patient records regarding his state of health. The court concluded that the applicant remained mentally ill. His discharge would significantly aggravate that illness and seriously jeopardise the health and safety of himself and others. The other means of treating his illness had remained inapplicable or insufficient.
The applicant appealed and also requested that he be transferred to another mental hospital. The Supreme Administrative Court obtained opinions from the Chief Physician of the hospital and the Senior Physician responsible for the applicant’s treatment. In his rejoinder to those opinions the applicant requested a new and complete examination of his mental state. On 25 September 1997 the Supreme Administrative Court declined to examine the applicant’s requests and dismissed his appeal, thus confirming the County Administrative Court’s decision. No oral hearing was held at either court level.
On 19 September 1997 the Senior Physician again prolonged the applicant’s compulsory care. In her opinion the Deputy to the Senior Physician had found that the applicant continued to suffer from the aforementioned psychosis and personality disturbance. Should he be discharged, there would exist a very high risk that he would commit heinous violent offences. The Deputy again made reference to various crimes which the applicant had committed. On 21 October 1997 the County Administrative Court confirmed the above prolongation order. Similar prolongation orders were issued on 18 March and 11 September 1998 as well as on 9 March 1999, and subsequently confirmed by the County Administrative Court.
During a certain period starting in January 1997 the applicant was apparently placed in a closed ward.
According to an official extract from the National Criminal Record (rikosrekisteri, straffregistret), the applicant has been found guilty of the crimes mentioned below.
Judgment of 1974:
Deliberate refusal to perform military service, committed in 1974.
(The applicant was sentenced to conditional imprisonment.)
Judgment of 1978 (upheld on appeal in 1978):
1. Deprivation of liberty and rape, committed in 1977
2. Deprivation of liberty and rape, committed in 1977
3. Deprivation of liberty and rape, committed in 1978
4. Deprivation of liberty and rape, committed in 1978
5. Assault committed in 1978
(The applicant was sentenced to various prison terms.)
Judgment of 1982 (upheld on appeal in 1983):
1. Sexual intercourse with a minor, committed in 1979
2. Assault and reckless driving, committed in 1980
3. Murder and possession of edged weapon, committed on 11 May 1981
(The applicant was not sentenced for the above-mentioned offences after being deemed to have lacked criminal responsibility in view of his mental state.)
II.
In 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal against a decision of the Insurance Court (vakuutusoikeus, försäkringsdomstolen) whereby his request for compensation for an occupational injury had been dismissed.
B. Relevant domestic law and practice
Under section 8 of the Mental Health Act a person can be ordered to undergo compulsory care in a psychiatric hospital if he or she is diagnosed as mentally ill; if he or she needs treatment for a mental illness which, if not treated, would become considerably aggravated or severely endanger his or her health or safety or the health or safety of others; and if all other mental health services are inapplicable or inadequate.
According to section 28, subsection 1, a patient’s right to self-determination may be limited and coercive means may be used only to the extent necessary for the treatment of his or her illness, for his or her safety or for the safety of others. In a decision of 3 May 1996 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, statsrådets justitiekanslersadjoint) ad interim found that the restriction of telephone calls to a patient in a mental hospital could not be held to have been in clear violation of section 28, subsection 1. The Deputy Chancellor nevertheless drew the competent Ministry’s attention to the requirement that restrictions of fundamental rights should be sufficiently detailed. On this point the legislation should therefore be amended. An application lodged under the Convention in respect of the restriction in question was eventually settled (no. 30271/96; see “The Law” below).
According to the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter 785/1992), patient records shall be kept confidential. They may only be released to courts and other authorities entitled to such access and, on certain conditions, to institutions providing treatment to the patient, to a close relative or to researchers (section 13).
In her decision of 4 January 1994 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered that the Niuvanniemi hospital’s practice of photographing all patients was in violation of section 3 and section 5, subsection 2, of the 1987 Personal Files Act (henkilörekisterilaki, personregisterlag 471/1987). The Deputy Ombudsman noted that the hospital had not abolished this practice despite her earlier decision of 5 March 1992 in which she had reached the same conclusion. Prior to that decision she had heard the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), who had reached the same conclusion.
Section 3 of the Personal Files Act stipulates, inter alia, that the keeper of personal data files shall ensure that the personal integrity, interests and rights of anyone registered in such a file are not unduly encroached upon. Section 5, subsection 2, requires that only information of relevance to the purpose of the file shall be included. In her two decisions the Deputy Ombudsman underlined that an assessment should be made in respect of each patient as to the necessity of including and retaining photographs. Photographs should only appear in his or her records if the specific care needs of the patient so warranted. The Personal Files Act did not allow for the inclusion of photographs in patient records in the interests of the security of other patients, staff or society as a whole.
The keeper of a personal file shall speedily correct, delete or supplement information on file which is incorrect, unnecessary, incomplete or outdated and provided such information evidently jeopardises the protection of the integrity or the interests or rights of the person in question. If the file-keeper refuses a request to the above effect it shall provide a reasoned certificate thereof (section 15). At the request of the registered person the Data Ombudsman may order the file-keeper to take the requested action (section 35). If this order is not complied with or if the Data Ombudsman decides not to take action, the registered person may bring the matter before the Data Protection Board (tietosuojalautakunta, datasekretessnämnden), whose decision may be appealed to the Supreme Administrative Court (sections 35 and 38).
According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), as in force up to 1 March 2000, anyone who has suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, is entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought against him (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia, the right to privacy (section 8; as from 1 March 2000 section 10) and has been incorporated as such into the Constitution of 2000.
Under the 1974 Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State in view of its vicarious liability for actions taken by civil servants (chapters 3 and 4). In its decision no. 1992:144 the Supreme Court found a health centre physician guilty of negligent misconduct as he had failed to ensure that a patient was transported to the centre in accordance with the Act on the Mentally Ill. In the private prosecution proceedings in question the patient had been granted cost-free proceedings.
According to the 1992 Act on Social Welfare and Health Care Fees (laki sosiaali- ja terveydenhuollon asiakasmaksuista, lag om klientavgifter inom social- och hälsovården 734/1992) and the related Decree (912/1992), the fee collected from a psychiatric patient in long-term hospital treatment shall be based on his or her solvency and not exceed 80 per cent of the monthly income (section 15 of the Decree).


ITEMID: 001-96101
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF JANATUINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1971 and lives in Vierumäki.
6. The applicant was suspected of having supplied large amounts of illegal drugs to other persons for distribution. The pre-trial investigation against the applicant and other suspects was concluded on 24 September 2003.
7. During the pre-trial investigation, the applicant had been represented by a court appointed counsel, J.T. On an unspecified date prior to the trial J.T. informed the Kuopio District Court (käräjäoikeus, tingsrätten), which was the court of jurisdiction, of the dates when he would not be available due to other engagements. According to the applicant, the court had then informed J.T. that the trial dates had already been fixed. On 28 October 2003 J.T. was informed that in such a large case the court would not be able to arrange the trial dates to suit the lawyers' requests and that a representative should arrange for a substitute to deal with other pending cases. The court asked J.T. whether he would prefer that the applicant be appointed another representative.
8. On 31 October 2003 the public prosecutor brought charges against the applicant and twelve other defendants in the Kuopio District Court. The prosecution evidence comprised, inter alia, recordings of telephone conversations obtained through police interception.
9. The court's oral hearing was held in nine sessions between 11 and 21 November 2003. The applicant appeared in person at six of those sessions. At four of them he was represented by J.T. and at the other two by a different lawyer.
10. During the session of 13 November 2003 the applicant and two other defendants requested access to certain recordings in the possession of the police but not included in the case material. They contended that those recordings concerned business arrangements other than the alleged drugs trading, and other material supporting their innocence. The prosecutor opposed the request, stating that a number of recordings, to the necessary extent, had been included in the case file. He further maintained that recordings of such telephone conversations which did not support the charges had also been included in the file.
11. In order to provide the court with further evidence in the matter, the prosecutor called the investigating police officer to the stand. In its minutes, the court summarised his statement as follows:
“All recordings of telephone conversations pertaining to the offences in question have been included in the pre-trial investigation material available to the parties. Recordings not related to the matter were either destroyed at once or removed later. The threshold for including recordings to the case material has been low. In case of doubt as to whether a given recording was related to the matter or not, it has been attached to the case material. As far as the witness could recall, there had been 55 conversations between [the applicant] and [another defendant], of which 23 had been attached to the case material.”
The witness had also explained that the recordings gathered during the investigation had indeed disclosed a number of other dealings between the defendants concerning, inter alia, procuring and trading in cars and car parts.
12. Relying on the above witness testimony the court rejected the defendants' request finding that all relevant recordings had been included in the pre-trial investigation material, submitted at the disposal of the court and the parties. The court noted that the police had operated under the duty to include in the case file recordings both for and against the suspects. The court detected no evidence of misconduct by the police. Nor did the evidence support the alleged necessity of gaining access to the remaining recordings.
13. On 11 December 2003 the court found the applicant guilty of drugs offences and sentenced him to five years' imprisonment. In its assessment, the court relied mainly on recordings of telephone conversations, telephone metering information concerning telecommunications between the defendants and police observations recorded in the pre-trial investigation report.
14. The applicant appealed to the Itä-Suomi Court of Appeal (hovioikeus, hovrätten) claiming that the lower court had refused him the right to submit as fresh evidence recordings of telephone conversations concerning procuring, trading in cars and car parts and attempts by one of his co-defendants, R.V., to purchase drugs from sources other than the applicant. Those recordings, favourable to his defence, had not been included in the prosecution evidence. The applicant therefore requested that the police be ordered to provide the court with all the remaining recordings. Later he limited his request to only those recordings involving himself and R.V. He also asked for a chronological list of recordings destroyed by the police.
15. In his letter of appeal, the applicant also argued that he had not been given adequate time and facilities for the preparation of his defence as the District Court had fixed the dates for its oral hearing without consulting J.T., who had been forced to send a substitute for two sessions. The applicant also criticised the lower court's assessment of evidence specifying several telephone conversations which the court had allegedly interpreted to his disadvantage in breach of the presumption of innocence. He further maintained that the District Court had not given sufficient reasons for its conclusions.
16. On 28 May 2004 the Court of Appeal decided to grant the applicant's request concerning the remaining recordings, referring to Article 6 § 1 of the Convention in that connection. The court found that an opportunity to have access to those recordings still in the possession of the police was important for building a proper defence. The Court of Appeal refused, however, the applicant's request concerning a list of the destroyed recordings. It found that the applicant had not presented sufficient reasons in support of that request and that the fairness of the proceedings would not be compromised if he did not receive such a list.
17. In the subsequent oral hearing, held in eleven sessions between 24 August and 9 September 2004, the Court of Appeal was presented with the same evidence as the District Court. It also received fresh evidence, including recordings of telephone conversations submitted by the applicant.
18. During the oral hearing the applicant contested the fairness of the proceedings. He asserted that the evidence included in the pre-trial investigation material, and presented by the prosecution, was neither reliable nor sufficient as the telephone metering information was erroneous and a number of recordings of telephone conversations had been destroyed. He claimed that the pre-trial investigation had been insufficient in other aspects as well, for instance, not all of R.V.'s relevant drug dealings had been investigated. The court was also presented with the argument that part of the evidence had been obtained illegally through unlawful house searches.
19. On 7 October 2004 the Court of Appeal dismissed the applicant's appeal, upholding the District Court's judgment.
20. As to the arguments concerning the alleged unfairness of the proceedings, the court observed that the applicant had been given access to a number of fresh recordings, according to his request. The court noted that, pursuant to the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act No. 450/1987) as in force at the time of the investigation, the police had been obliged to destroy any information not related to the suspected offence.
21. The court went on to state that the facts of the case did not give any reason to believe that the destroyed recordings had been relevant to the case. As to those recordings submitted by the applicant at the appellate stage the court stated that, firstly, they had not contained any relevant new information and, secondly, they had been irrelevant to the case. Having also received testimony from the investigating police officer, the court did not subscribe to the argument about the alleged insufficiency of the pre-trial investigation. Nor did the court find any other reason to suspect that the fairness of the proceedings had been jeopardised.
22. As to the subject matter, the Court of Appeal firstly referred to the District Court's reasoning and stated that the fresh evidence produced on appeal did not contradict the evidence already presented in the case. The court concluded that, while no single piece of evidence as such was sufficient for a conviction, the evidence as a whole was enough for the guilty verdict. It went on to give more specific reasons of its own reflecting the evidence produced before it. The court stated, inter alia, that in assessing the evidence it had taken into account the arguments made against the charges and the fact that the applicant had not been the only person to have supplied drugs to R.V.
23. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) relying to a large extent on his previous arguments. He maintained that the police had destroyed relevant information which would have shown that he had not been the person supplying drugs to his co-defendants. He also contended that the Court of Appeal had failed to comment on his arguments concerning inadequate time and facilities for the preparation of his defence, the errors in and unreliability of the telephone metering information, and the lower court's insufficient reasoning. He further claimed that the Court of Appeal had not allowed him to submit telephone metering information as fresh evidence but had permitted the prosecution to do so.
24. On 27 May 2005 the Supreme Court refused leave to appeal.
25. In a decision given on 23 November 2005 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) found that, during the pre-trial investigation of the above case, the police had searched an apartment occupied by the applicant's co-defendant four times without following the lawful procedure, that is without informing the occupant about the search. During those searches a certain amount of drugs had been found. The Deputy Parliamentary Ombudsman issued a reprimand for unlawful conduct to the police officials involved.
26. Chapter 5a, section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences.
27. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket.
28. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence, or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no. 52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary.
29. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no. 199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties.
30. The same principle applies to the conduct of the police, who have the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect.
31. Section 40 of the Criminal Investigations Act, as in force at the relevant time (Act No. 449/1987), obliged the police to draw up a report of the pre-trial investigation, if this was necessary for subsequent proceedings. Among other things, the report was to include all documents and recordings obtained during the investigation, if they were deemed relevant to the case. The report was also to include a list of any material obtained in the investigation but not included in the report.
VIOLATED_ARTICLES: 6


ITEMID: 001-58207
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF GÜLEÇ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 2;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. On 4 March 1991 there were a number of incidents such as spontaneous unauthorised demonstrations, shop closures and attacks on public buildings in the town of İdil in Şırnak Province. Two people were killed – one of whom was Ahmet Güleç, aged 15, a pupil at İdil Senior High School and the applicant’s son – and twelve others were wounded.
8. The owners of thirteen rifles confiscated after the incidents, spent cartridges from which had been collected by the security forces, were prosecuted in the Diyarbakır National Security Court, but acquitted because they had proved that they had not taken part in the events concerned.
9. According to the Government, Ahmet Güleç was hit by a bullet fired by armed demonstrators at the gendarmes.
According to the applicant, his son was killed by the security forces, who fired on the unarmed demonstrators to make them disperse.
10. On 5 April 1991 the applicant filed a criminal complaint with the İdil public prosecutor’s office against a person or persons unknown and against the commander of the security forces, Major Mustafa Karatan.
11. On 19 April 1991 the public prosecutor’s office, after noting that the criminal complaint was directed against Major Karatan, declared that it had no jurisdiction to deal with it and transferred the case file to Şırnak Provincial Administrative Council for a preliminary investigation.
On 18 October 1991 Şırnak Provincial Administrative Council halted the proceedings by means of a discontinuation order which was never served on the applicant’s lawyer. It found that the victim had died of bullet wounds received in the course of a confrontation between the demonstrators and the security forces. However, it found that it was impossible to identify those responsible.
12. On 13 November 1991 the Supreme Administrative Court, to which the case had been automatically referred by law, upheld the above decision, holding that it was impossible to bring a prosecution against civil servants where the identity of those responsible and their status as civil servants had not been established.
13. On 20 January 1993 Mr Güleç’s lawyer wrote to the Chairman of İdil District Administrative Council enquiring what had been done about the applicant’s complaint. On 3 March 1993 the Şırnak Provincial Authority sent the applicant’s lawyer copies of the discontinuation order of 18 October 1991 and the Supreme Administrative Court’s judgment of 13 November 1991.
14. The applicant and the respondent Government submitted various documents relating to the investigation carried out after the death of Ahmet Güleç to identify those responsible. They also produced documents relating to the criminal proceedings brought against persons who were suspected of taking part in the demonstration.
15. The applicant alleged that his son had been shot and killed by the security forces in the course of the incidents of 4 March 1991. He stated that eyewitnesses had seen the killing and asked that the gendarmes who had killed his son be identified.
16. The petitioners, who had all witnessed these events, alleged that during an unauthorised demonstration the gendarmes had opened fire on unarmed demonstrators. Two people had been killed and more than twenty wounded. The gendarmerie commander had given the order to fire at will on unarmed people. In particular, the local councillors, who had been in a meeting in the district authority offices, had seen the security forces opening fire on young people. One senior-high-school pupil had been killed and others wounded in the shooting. The petition stated that the gendarmerie had acted without reference to the District Commissioner, the public prosecutor or the police. The signatories requested the public prosecutor to take the necessary steps to bring those responsible to justice.
17. This document contains a detailed description of the events by the commanding officers of the various security forces present in İdil.
It states that, on the morning of the day in question, the shopkeepers all closed the shutters of their shops. The security forces had been informed that a group of between 1,000 and 1,500 people from the neighbouring villages was advancing on İdil. The demonstrators said that they were going to a funeral. When they reached the middle of the Atakent district of the town, more people joined the group. The crowd then set off towards the town hall. The gendarmerie commander, the district chief of police and other civil servants intercepted them and made several announcements to the effect that the demonstration was illegal. However, the demonstrators continued to advance along Atatürk Street, shouting slogans like “Long live the PKK”, “Long live freedom”, “Long live Kurdistan” and “Freedom for Kurdistan”. The group, composed of men, women and students, was more than 3,000 strong. When they reached the junction with Milli Egemenlik Avenue, some demonstrators began to attack the police and gendarmes with stones and sticks and firearms. When the demonstrators reached the centre of town they began to break the closed shutters, windows and doors of the shops. At that moment, four reinforcement units sent in by the gendarmerie and police again barred the demonstrators’ way, requiring them to disperse. Sticks and stones were thrown at the security forces who were trying to disperse the demonstrators. Certain unidentified demonstrators opened fire on the security forces with the aim of spreading panic and disorder.
After the shooting the demonstrators began to disperse through the centre of town. One group went to İdil Senior High School, the adult education centre, the gendarmes’ quarters, the police station, the gendarmerie headquarters and the security police offices. When they reached the post office, the group threw sticks and stones, breaking all the windows, and set fire to a post-office minibus. The windows of the school and adult education centre were broken and damage caused to the interior of both buildings. When the same group started to attack the gendarmes’ quarters and the town hall, the gendarmes and police fired warning shots and gave warnings over the town hall loudspeakers. The security forces began to disperse the group.
In the course of these events Ahmet Güleç, a senior-high-school pupil, was killed on the spot by a shot fired by armed troublemakers who had mingled with the demonstrators. A number of civilians were wounded and taken to the public hospital in Cizre. Ekrem Oruç died in hospital. Seven soldiers were injured by flying stones. Some fifty men and seventeen women who had taken part in the unauthorised demonstration were taken into police custody. Twenty-nine spent cartridges from Kalashnikov-type weapons were found at the scene of the demonstration.
18. “Medical examination
... The body was stripped.
At the mid-point of the right axillary line towards the victim’s back there was a wound 1 cm in diameter caused by a bullet fired from some distance. The exit wound measures 2 cm in diameter and is 20 cm lower, about 10 cm in from the outside of the groin. Approximately 5 cm below the entry wound on the same right axillary line there is a further wound caused by a bullet fragment measuring 1 cm by 1.5 cm.
The body was still warm when the examination commenced. Rigor mortis had not set in and there was no cyanosis. It was concluded from this that death had occurred approximately one hour earlier.
... Two expert opinions were requested. These confirmed the public prosecutor’s finding (see above), that is that there is no exit wound relating to the bullet fragment which entered through the middle of the thorax, underneath the right arm. Further, they confirmed that, 5 cm above the point of impact of the fragment, there is an entry wound caused by a bullet striking at an oblique angle, with an exit wound on the same trajectory. Since neither the bullet nor the fragments touched any vital organ, the experts recommended that a full autopsy be carried out in order to determine the precise cause of death.”
“Autopsy
The ribcage and abdominal cavity were opened according to the usual procedures. A large quantity of accumulated blood was observed in the thoracic cavity. Approximately 3 litres of blood were pumped out. The left lung had been lacerated by the bullet fragment which, as noted above, struck the victim at the mid-point of the right axillary line. The bullet whose entry and exit wounds were identified and whose trajectory did not touch any vital organ could not have caused death. We conclude that death was caused by the bullet fragment which struck the victim at the mid-point of the right axillary line; this followed a horizontal trajectory, hitting the left lung and causing death by internal haemorrhaging and hypovolaemic shock. In the course of the full autopsy, the bullet fragment which struck the left lung was found in the left armpit and was placed under seal as an exhibit...”
19. The witness gave the following version of events:
“On 4 March 1991 ... I came across the crowd of demonstrators. I did not join them, but went back the way I had come. At that moment I saw that shots were being fired at the ground from the armoured military vehicle, presumably to disperse the demonstrators. Something – I suppose pieces of lead – anyway, bits of metal – hit my left arm, right thigh and the inside of my left calf. I fell to the ground. I must have lost consciousness... I did not see who fired the shots which hit me, or what weapon they came from. However, shots did come from the Condor military vehicle.”
20. The İdil public prosecutor declared that he had no jurisdiction to examine the applicant’s complaint against the İdil gendarmerie commander, Major M. Karatan, for reckless and negligent homicide. The public prosecutor found that Major Karatan had been acting in the performance of his duties and observed that civil servants were subject to special provisions. He accordingly sent the case file to the İdil District Commissioner, who forwarded it to the Şırnak Provincial Administrative Council for investigation.
21. This declaration states:
“On 4 March 1991 the security forces fired into the air from the armoured vehicle belonging to the İdil gendarmerie with the aim of dispersing the demonstrators. One person was wounded by the shooting... The bullets which hit the demonstrator were fired by civil servants acting in the performance of their duties. It has not been possible to identify the persons in question.”
22. In this letter, the İdil District Commissioner stated:
“On 4 March 1991 an illegal demonstration took place in [İdil]. In order to make the demonstrators disperse, the security forces fired into the air from the armoured vehicle belonging to the gendarmerie of our district. One citizen was wounded. An investigation into the conduct of the gendarmes has been opened.”
The District Commissioner also requested the gendarmes to inform him of “the identity and addresses of those gendarmes in the armoured vehicle who allegedly opened fire, wounding citizens”. He added: “This information will serve as a basis for the investigation to be carried out by my officials.”
23. In this letter, the gendarmerie state, firstly:
“Your authorities know perfectly well that this illegal demonstration was organised by terrorist PKK militants. It was not simply a demonstration, since the offices of public authorities were attacked. Moreover, the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was. The District Commissioner’s office asked us for backup in order to prevent the situation getting out of hand; in view of the urgency and dangerousness of the situation, all our available personnel were sent to the scene.”
24. The gendarmerie gave the following reply to the District Commissioner’s request:
“We hereby inform you that, as stated above, given the sudden and serious nature of the events in question, the exact position of each of our men was not noted in the log-book. We are no longer in a position to verify their position on the day in question, given that more than three months have since elapsed.”
25. On 11 April 1991 the Governor of Şırnak Province instructed Mr Celal Uymaz, a gendarmerie lieutenant-colonel, to hold a preliminary investigation into the events of 4 March 1991. Lieutenant-Colonel Uymaz took evidence from the following witnesses:
Şakir Ece, mayor of the Atakent district of İdil (statement of 22 July 1991):
“... We heard children’s voices coming from the Midyat road. The children carried on marching towards the centre. They were not carrying anything, but simply making “V” signs and chanting slogans... The major arrived. He was in front of the Ziraat Bank. The demonstrators, who had become more agitated, carried on marching. The major then gave the order to fire. We heard shots from all sides. I took refuge on the second floor of the building with the people who had been in front of the District Commissioner’s offices. Through the window I could see that four or five people had fallen to the ground as a result of the shooting, but I did not recognise them. Subsequently, the gendarmes and police arrived, dispersed the demonstrators and took the wounded to hospital...”
Hüseyin Güleç (statement of 23 July 1991):
“I live in the Asağı Mahalle district; the place where the events took place is 250 metres from my house. The sound of shots gradually intensified, lasting approximately two hours. I did not leave the house, I was afraid. I was unable to see anything of what was happening. Around noon, the sound of shooting stopped. Women passing my house in tears told me that my son Ahmet had been killed in the confrontation. That was how I learned that my son had been killed... According to what I was told, my son was killed in front of the bakery ... in the central market... He was on his way to school but, when he saw the demonstrators, he followed them. In the confrontation which arose during this demonstration, soldiers opened fire, killing my son. The district gendarmerie major, Mustafa Karatan, gave the order to fire. He is responsible for the death of my son.”
Habip Aslançiçek (statement of 23 July 1991):
“On the day in question, at about 8.30 a.m. ... I saw a group of demonstrators coming up Midyat Avenue towards the central market. There were men, women and children in the group. Most of the demonstrators had scarves over their faces. They were armed with stones and pieces of wood and were very worked up. Most of them went past the post office, but others stopped there and broke the windows. The Condor vehicle from the battalion arrived to make the crowd disperse. The men in the vehicle opened fire on the agitated demonstrators – or, rather, fired at the ground. Ahmet Güleç, a relative of mine, who died later in hospital, fell to the ground. I believe he was hit by a bullet which was fired at the ground but ricocheted and hit him, because if the shots had been aimed at the crowd, everyone in the group would have been killed. When Ahmet Güleç fell, wounded, I took him to the medical centre in the town hall taxi. In the meantime, other people had been wounded. I did not see the soldiers who were in the Condor, nor the person who fired. However, the shots fired to disperse the demonstrators did come from the Condor. I repeat, they did not open fire on the crowd. Stray bullets could have caused the death.”
Celal Sabuk (statement of 24 July 1991):
“On the day in question, I had gone ... to the centre of town to do some shopping. I was making my purchases when I saw a large group of demonstrators approaching. They were chanting slogans, but I could not understand what they were saying. I heard shots. I saw that shots were being fired from an armoured military vehicle. In the ensuing confusion and surprise I was hit by three bullets, which I think were fired from the armoured vehicle. I was wounded and fell to the ground. I fainted and so I do not know what happened afterwards.”
On 1 August 1991 Mr Uymaz had to withdraw from the investigation, as he had been transferred.
26. On 8 August 1991 the Provincial Governor then appointed Mr Osman Kurt, the gendarmerie battalion’s commanding officer.
27. This document contains the results of the investigation carried out by the two investigating officers.
Mr Kurt, who was at the material time a gendarmerie major, made the following findings of fact:
“On 4 March 1991 an unauthorised demonstration started in the early morning and lasted into the afternoon. The demonstrators were chanting PKK slogans and shouting defiance of the Turkish Republic. This demonstration grew to a crowd of 3,000 people. The demonstrators then began to damage public buildings and vehicles and related property. They fired shots in all directions. Since there were not enough police officers, reinforcements were requested. The gendarmerie company command and the district gendarmerie headquarters responded to this request in accordance with the provisions of Law no. 2803 on the duties and powers of the gendarmerie. In the course of these events two citizens were killed and approximately thirteen others injured. The majority of the persons taken into custody were arrested after initial questioning. Twenty-seven officers, warrant-officers, sergeants and men from the security forces were also injured in the same incidents.”
With regard to the identity of those responsible, he concluded:
“The statement of Abdülvehap Öner ... reveals that he did not see, and does not know, who opened fire... Hüseyin Güleç, the father of the victim [Ahmet Güleç] ... makes gratuitous and inopportune accusations against Major M. Karatan, who was simply obeying orders. The fact that the major has been made the target of the accusations, despite the fact that he was armed only with his handgun, reveals an ideological outlook and a complete lack of objectivity. The security forces did not aim at the citizens and have twice as many wounded as the demonstrators. The law was applied in order to prevent further incidents. There is, nevertheless, an imbalance (between the numbers of wounded on each side). The security forces did not reply ... to the shots from the crowd. In such circumstances, it is impossible to determine who was responsible for the incidents. In total, 200 police officers and gendarmes were deployed.”
In the covering letter to the summary of the investigation he asserted: “The investigation has shown that the complaints filed by Hasip Kaplan [the applicant’s lawyer] and his fifteen friends contain unfounded and regrettable statements reflecting a lack of objectivity.”
28. This order stated that there were no grounds to commit for trial any civil servants belonging to the security forces responsible for maintaining order during the demonstration of 4 March 1991. According to this document, the material facts were as follows:
“On the day in question, all the shops in the centre of İdil were closed. Their suspicions having been aroused by this situation, the security forces took security measures at the points of entry to the town, on the roads coming from the villages of Dirsekli, Yarbaşı and Bereketli. As they were doing this, a crowd of between 1,000 and 1,500 people was seen approaching İdil. The security forces personnel asked them what they were doing. The marchers replied that they were going to a funeral and carried on towards the centre of İdil. As they went through the Atakent district, a large number of men, women and children joined the group. It must then have numbered 3,000 persons, heading for the town hall. The district chief of police and the gendarmerie commander made several announcements to the effect that the march was illegal and that the participants should disperse. However, the unauthorised demonstration continued, accompanied by the chanting of slogans such as ‘Long live the PKK’ and ‘Freedom for Kurdistan’. The demonstrators fired shots at the security forces and attacked them with stones and sticks. Subsequently, they broke the windows of public buildings and housing and burned the post-office minibus parked outside the post office. The security forces, confronted with a situation which was becoming stormy, fired shots in the air in order to calm the demonstrators down and make them disperse. However, shots were also fired by demonstrators. Several persons died from wounds caused by shots fired during the demonstration; the medical report also proves that the wounds were caused by gunshots. A search of the scene of the incidents and the surrounding streets and alleyways after the demonstration produced fifty-two spent cartridges from bullets of various calibres coming from weapons registered with the security forces. An analysis of the cartridges showed that the bullets had come from thirteen different weapons. It was concluded that the demonstrators had used firearms.”
The Administrative Council held that it was “not possible on the basis of the evidence on the case file to identify who had killed and injured the victims”.
29. The Supreme Administrative Court upheld the above discontinuation order on the following grounds:
“Offences committed by civil servants acting in the performance of their duties or by virtue of their powers must be dealt with in accordance with the procedures governing the prosecution of civil servants ..., [whereby] an administrative investigator is appointed by ordinance to carry out the investigation...
... Before an investigation can be opened into the conduct of a civil servant, the suspect must be precisely identified. In the absence of a precise identification, no judicial investigation can be carried out, no summary of such investigation can be prepared and no competent court can give a ruling on the matter.
On 4 March 1991, in the course of a demonstration in the town of İdil, there were a number of confrontations between the security forces and the demonstrators, as a result of which two persons were killed and twelve others wounded. It has not been possible to identify those responsible. Although no judicial investigation can be carried out into this matter, the investigator appointed opened a preliminary investigation and prepared a summary of its findings, on the basis of which the Provincial Administrative Council made a discontinuation order. Since those responsible for the deaths and woundings are unknown, it is impossible for this Court to look into the case and give judgment. Having examined the case file, we hold that the Administrative Council’s decision was in accordance with the law and procedurally valid.”
2. Oral evidence
30. Mr Güleç stated that he had not been in İdil at the time of the events of 4 March 1991. When he returned home in the evening he was informed that his son was dead and told that he had been shot. He heard that his son had gone to the scene of the demonstration to look for his younger brothers, at which point he was hit by a bullet. He did not know who had shot his son.
Mr Güleç said that he had not made any statement to the authorities. He remembered being in shock after the incident. Many people had come to visit him, including journalists and members of parliament. He did not know exactly where the body of his son had been found. He had seen it for the first time at the hospital.
As regards the investigation opened after the death of his son, he confirmed that he had signed the criminal complaint filed with the İdil public prosecutor’s office, but afterwards he had shut himself up at home. He did not know the details of how his son died. He did not know that he was entitled to compensation as a result of his son’s death. Even if his lawyer had advised him to apply for this, he was not in a fit state to understand anything at all at the time of the incidents.
31. Mr Güleç had been present in İdil during the incidents, visiting a sick uncle. He had remained in his uncle’s house throughout the demonstration and so was not an eyewitness. He had only heard the demonstrators and the shots. When told of Ahmet Güleç’s death, he had gone to the hospital where he had looked for but failed to find the body. Later, he had brought the body back to the village for the funeral, which he had attended.
Some of the leading citizens of İdil, together with the PKK, had organised the demonstration and publicised it energetically. All the villagers had taken part (both adults and children), except for the elderly, since those who did not take part in these demonstrations were killed or punished by the PKK. The victim, Ahmet Güleç, had been a pupil at the town’s senior high school and, as such, like all the pupils of the school, had been obliged to take part in the demonstration. If he had not done so, he would have been punished by the PKK.
At that time, İdil was a “protected” area: that is, the PKK controlled people’s movements. If he, Abdülselam Güleç, had been found in his uncle’s house, he would have been forced to participate in the demonstration.
The population of İdil district was essentially made up of nomads, who lived in İdil in winter and moved up into the mountains in summer. These people were armed, possessing one or two guns per family in order to protect themselves from the wolves and thieves in the region. There were contacts between members of the PKK and these nomads. In March winter was not yet over and the village nomads did not migrate to the mountains until May. At the time of the demonstration there must therefore still have been a large number of nomads in İdil.
Mr Güleç asserted that the victim had told him, on an unspecified date, that the PKK had contacted him to try to persuade him to join their movement.
32. On 4 March 1991 he had been in his office. The demonstration had taken place about a kilometre away. He had not realised it was happening until he heard shots. He had telephoned the police who had informed him that there were two dead and a number of wounded. He had not left his office. He was not responsible for security in the town. That was the responsibility of the police and the gendarmerie.
Mr Abay acknowledged that he had signed the complaint lodged by leading citizens of İdil against the gendarmerie commander. At first, he had thought that the gendarmes had used excessive force against the demonstrators. However, on reflection, he recognised that the gendarmes had acted in the way they had in order to avoid losing control of the situation, so he had withdrawn his complaint.
33. Mr Abay said that he had not met Ahmet Güleç. The town hall was 800 to 900 metres away from where the demonstration took place. The demonstration and associated incidents had taken place in the centre of town. He had not been present at these incidents, nor had he seen the demonstration. He had heard noises and shots.
He had been placed in police custody and held for two days after the incidents. He had been charged when he claimed not to have taken part in the demonstration. The charge-sheet stated that he had taken part in the demonstration, that spent cartridges from the weapons used during the demonstration had been found at the scene and that one of these weapons belonged to him.
Two months after being released from police custody he had been remanded in custody for one month. At the end of the criminal proceedings brought against him and many other inhabitants of İdil, the Diyarbakır National Security Court had acquitted them all.
He had a gun licence. On the day of the incident he had been working in the town hall and the gun in question had been at his house. He had been told that the security forces had gone to his house, taken the gun and fired shots from it inside their barracks, thus obtaining spent cartridges.
34. Mr Kaplan stated that during the demonstration of 4 March 1991 he had been at home and had not gone out. He was therefore not an eyewitness. His house was about 400 or 500 metres from where the demonstration took place, so he had only heard the demonstrators and gunshots. He did not know the exact reason for the demonstration.
With regard to the complaint filed with the İdil public prosecutor, he had signed it, but had done so as an emotional response in the heat of the moment.
He had not been interviewed in the course of the investigation conducted following the demonstration.
35. Mr Zerey stated that on 4 March 1991 the shutters of all the shops in İdil had been lowered very early in the morning. At the request of the İdil District Commissioner, the police had taken measures to prevent any untoward occurrences.
While he was at the district authority offices the gendarmes had informed him by walkie-talkie that a group of three to four thousand people was heading towards the centre of town. Mr Zerey and his men had gone out to meet the demonstrators in order to inform them that they were demonstrating illegally and should stop. However, the demonstrators had continued their march. Mr Zerey and his men had returned to the district authority offices.
After the arrival of the gendarmes, Mr Zerey had remained in the District Commissioner’s office and had not witnessed the incidents. Following a call from a group of gendarmes led by Mr Ersöz and stationed in front of the post office, the armoured vehicle had been sent to their assistance. Mr Zerey had not seen the shooting. The demonstrators had been armed and violent. They had damaged a post-office vehicle and other public property. The security forces had returned fire from the demonstrators.
The security forces had not been equipped with batons or riot shields which could have helped them to quell the demonstrators. They had been armed with handguns and rifles. Mr Zerey also asserted that if the security forces had fired directly on the crowd, more than two people would have been killed.
He also stated that the cartridges found in the streets after the incidents belonged to inhabitants of İdil. It was routine procedure for the security forces to pick up spent cartridges.
According to Mr Zerey, the MG-3 gun mounted on the armoured vehicle could not possibly have been used against a crowd. If it had been, at least twenty people in the front ranks of the crowd would have been killed.
36. Mr Ersöz stated that on the morning of 4 March 1991 he had learned that shops in the town had lowered their shutters. Finding this unusual, he had awaited developments in his brigade’s building. When he saw that the number of demonstrators had increased and that, despite warnings, they were continuing to advance towards the building, he had taken up position at its entrance with about thirty gendarmes.
Mr Ersöz stated that the crowd of demonstrators had been made up of women and children surrounding armed men with scarves over their faces. He had warned the demonstrators that the demonstration was illegal and advised them to disperse. The women and children had tried to obey but the armed men had forced them to go on.
He had given a second warning, but the armed men had continued to advance. Stones and sticks were then thrown at the gendarmes. The demonstrators had chanted many slogans, such as, “We want to enter the brigade building”. Mr Ersöz and some of his men in the front line had been wounded by flying stones.
The armed demonstrators had taken advantage of this to try and seize the gendarmes’ weapons. Mr Ersöz had fired warning shots in the air, which had made the women and children disperse. He himself, his second lieutenant and his orderly had each fired about five shots. Consequently, between the three of them they would have fired about fifteen bullets, which the witness considered sufficient to make the demonstrators disperse. He and his men had then retreated to the side of the road. Ten seconds later they had come under very heavy fire from Kalashnikov-type automatic weapons fired by the armed men, who were also shooting with the weapons which they had stolen from the gendarmes.
Mr Ersöz had used his radio to call up the Condor armoured vehicle as backup. The Condor had been standing about one kilometre away from his brigade building. When it reached his position it had managed to disperse the demonstrators without firing a shot. It had come from the gendarmes’ quarters and, in order to get to the brigade building, it must have gone past the post office, where the victim had been killed. However, Mr Ersöz did not know whether the Condor had opened fire on its way, but did remember that he had requested that the Condor be sent in exclusively as a deterrent and that the weapons mounted on the vehicle should not be used against the crowd. He knew the Condor crew but could not identify the person who had been driving the vehicle at the time.
Mr Ersöz emphasised that PKK members provoked and built up this kind of incident, and threatened the local population to force them to participate in PKK-organised demonstrations. Refusing to take part could be fatal.
There was a distance of 500 to 600 metres between the spot where the victim’s body was found and the place where he had taken up position with his men to defend his brigade’s building. They had been out of range of the place where the victim’s body was found and 100% of the spent cartridges found there had belonged to PKK members.
Lastly, in relation to the investigation, Mr Ersöz said that he had made the necessary statements to the Diyarbakır National Security Court, the Principal Public Prosecutor and the lawyers.
37. Mr Ayhan stated that the commanding officer of İdil gendarmerie was Major Karatan. The second in command was a lieutenant and he was third in rank.
He remembered that on the day of the incident, at 7.30 a.m., he had received a telephone call informing him that there was an unauthorised demonstration in town. He had gone round to the office of the İdil District Commissioner. The head of the security police and the gendarmerie commander had also been present. The crowd of demonstrators was coming towards the centre of town from the district behind the town hall and the immigrant districts. Mr Ayhan had ordered his men not to intervene.
By then, the crowd was 3,500 strong. At that point, the Condor armoured vehicle was standing near the gendarmes’ quarters, with a view to preventing any attack on them. It was parked in a narrow lane 50 metres from the main street where the demonstration was taking place. On the order of a young man whose face was masked, the crowd had begun to advance, chanting slogans like “Up the PKK”. They were heading for the centre of town. At that moment handgun shots had been heard coming from the crowd. Shots had also been fired at the security forces from the surrounding alleys and roofs of houses. The Condor had not moved.
At some point, the district gendarmerie commander (Major Karatan) had informed him by walkie-talkie that the demonstrators were attacking the school where his wife was teaching. The PKK militants were demanding that she be handed over to them. The commander had ordered Mr Ayhan to go and get his wife from the school. In order to get to the school, the Condor, driven by Mr Ayhan, had turned left into the main street, towards the centre of town, then took the first street on the right, which ran alongside the school. In that narrow street Mr Ayhan had fired two or three times in the air in order to gain the demonstrators’ attention. Shots were being fired at the vehicle from all sides. The windows of the school and of the adult education centre had been broken by stones. The Condor had been driven towards the demonstrators in order to disperse them, and a second armoured vehicle (a Land Rover) had succeeded in picking up the commander’s wife at the other entrance to the school and getting her away from the scene. The Condor had then returned to its position near the gendarmes’ quarters. Ten or fifteen minutes later Mr Ayhan had been informed by walkie-talkie that Lieutenant Ersöz was requesting assistance. He had started out for the infantry regiment barracks in the Condor. He had to go through the centre of town. In the middle of the main street, between the baker’s and the post office, he had seen a body stretched out on the ground. There was no one with it. Mr Ayhan had told the driver of the armoured vehicle to keep well away from the body because it could have been a trap. When the Condor came up behind the crowd, which had already got as far as the infantry regiment barracks, the people had moved aside. The demonstrators had run away and the disturbances had ended. When the Condor again returned to its position near the gendarmes’ quarters, the body was no longer lying in the main street.
Mr Ayhan stated that the Condor was equipped with an MG-3 automatic rifle. This was the weapon he had used to fire into the air. He had pressed the trigger two or three times. He did not know the exact number of bullets he had fired but he estimated that it must have been between fifty and sixty. The MG-3 machine gun was a combat weapon. If he had fired on the crowd, many people would have been killed.
Mr Ayhan stated that he knew that an investigation into these events had been opened but did not remember giving a statement to anyone in authority. He did not remember whether the spent cartridges from the weapon he had used had been passed on to the judicial authorities. If not, they would have been kept in the gendarmerie depot and handed over to superior officers.
In response to a question concerning the death of another demonstrator, Mr Ayhan stated that the Condor had fired in the air in a narrow street. As soon as the trigger of an MG-3 machine gun was pressed, it immediately fired at least ten bullets. Mr Ayhan thought the victims had been killed by bullets fired by the PKK. PKK militants were not professionals and often hit the wrong targets.
38. Mr Aldemir stated that on 4 March 1991 he was in İdil and had seen the demonstration. While on his way to his office, he had heard shots and slogans and had taken refuge in the gendarmerie building. At that moment, he had heard numerous gunshots coming from the centre of town.
From the garden of the gendarmerie building he could see the Condor armoured vehicle moving along Atatürk Street, firing in the air in order to disperse the crowd. Shots fired in the air made a different sound than straight shots. He had also heard Kalashnikov and MG-3 fire coming from the gendarmerie building.
As regards the investigation, he had conducted an inquiry following the criminal complaint filed with the İdil public prosecutor’s office by Hüseyin Güleç. He had taken a statement from Mr Güleç and other witnesses. He had ordered an autopsy on the victim’s body.
The autopsy, which was a full one, had been performed in İdil paramedical health centre and produced the following findings: the victim had been dead for about one hour as rigor mortis had not yet set in. The victim had been hit by a single bullet. The point of impact was below the right armpit and the bullet had lodged in the left shoulder, causing internal bleeding. The bullet had been found in the victim’s body. It had followed a rising trajectory.
Mr Aldemir considered that it was not impossible, in view of the trajectory followed by the bullet-core found in the victim’s body, that it had been fired from the Condor armoured vehicle and had then ricocheted. He referred to the autopsy report, which he had in front of him, and which stated that the fatal bullet must have ricocheted off a building or wall. The bullet-core found in the victim’s body had been knocked out of shape, and this could not be accounted for by the bullet’s passage through the victim’s body.
A ballistic report on the spent cartridges had been drawn up by the regional criminal police laboratory. According to that report, a bullet fragment which had passed through the body had been found and compared to twelve specimen bullets. No match had been found. Since the other fragments of the bullet had not been found, it had been impossible to identify the weapon which had caused the victim’s death. However, the bullet-core, which was an important piece of evidence, had been preserved as an exhibit, in accordance with the relevant procedure.
Mr Aldemir had seen to it that the wounded were examined by doctors. Ten medical reports had been filed and placed on the case file sent to the District Commissioner. According to those reports, certain demonstrators had wounds between the feet and the knees. None of them had been wounded on the upper body.
The position of these wounds might have been due to crossfire and bullets ricocheting off the ground or buildings.
Since the criminal complaint concerned civil servants, Mr Aldemir had made a declaration on 19 April 1991 to the effect that he had no jurisdiction to deal with it, in accordance with the legislation on prosecution of civil servants. He had then transferred the investigation file to the District Commissioner.
39. When appointed as the investigator in the Güleç case, he had opened an inquiry and compiled a case file. He had taken witness statements from Abdurrahman Abay, Hüseyin Demir and the other civil servants working in the town hall, who had taken part in the demonstration.
In his report he stated that the accusations against Major Karatan were unfounded and did not reflect what had actually happened. Before arriving at that conclusion, he had taken evidence from witnesses, read expert reports and gathered other evidence from various official and private sources. Finally, he had taken a decision on the basis of his personal conviction. He had put himself in the place of the security forces faced with the demonstrators. He had thought about the case for days before reaching his decision, weighing all the possibilities.
Mr Kurt had also taken evidence from the gendarmes and Major Karatan. He did not remember whether he had taken evidence from Güven Ersöz and had not taken a statement from Abdurrahman Abay, the mayor of İdil, whom he had seen by chance on his way to İdil town hall. Mr Abay had only told him that if the gendarmes had intervened sooner, they would have prevented most of the incidents.
In his statement, Hüseyin Demir had told Mr Kurt that he had not seen exactly what had happened. He had only heard shots and seen the crowd but had not seen people being killed or wounded. Mr Kurt’s case file also contained statements from demonstrators. These statements had been taken by the public prosecutor and the previous investigator.
Mr Kurt did not remember taking evidence from Mr Ayhan, the driver of the Condor vehicle. Nor did he remember how many shots had been fired in the air from the Condor.
Before reaching his conclusion, he had taken into account not only witness statements, but also the results of his own investigations. These indicated that the young man had been killed before the security forces intervened. The PKK militants had been in the middle of the crowd of demonstrators, surrounded by women and children. They had fired shots in all directions in order to create an atmosphere of terror. Some bullets had ricocheted and hit Ahmet Güleç. The gendarmes had not even been there when he was wounded.
He had found that the security forces had taken all necessary precautions. Those who had come forward as witnesses were reliable people. The mayor of İdil was one of them.
There had been three or four thousand demonstrators. If firearms were discharged haphazardly, accidents could happen, even in a group of twenty to twenty-five people. In the case in point, the three or four thousand demonstrators had not been aware of the danger. It had even been inevitable that someone would be killed. He had interviewed everyone, even the victim’s relatives, who had explained to him that Ahmet Güleç had very probably been killed by PKK bullets.
Mr Kurt had not immediately ruled out the possibility that the security forces had fired on the demonstrators. He had been completely impartial and had begun his investigation with an open mind. He had come to the conclusion that the gendarmes had intervened after the victim’s death. The complaint filed against the gendarmerie commander had really been an emotional reaction intended to tarnish his reputation. Major Karatan had been armed only with a handgun.
The crew of the Condor armoured vehicle had controlled the situation effectively. If the machine gun mounted on the vehicle had been fired towards or at the crowd, there would have been a large number of deaths.
The fifty-two spent cartridges referred to in the Administrative Council’s decision had come from bullets fired in the air by the gendarmes. The twenty-nine spent cartridges referred to in the report on the incidents and in the public prosecutor’s report of October 1991 had come from weapons used by the demonstrators. The reference to “weapons registered” related to the weapons seized during searches and preserved as exhibits.
Mr Kurt had interviewed only those people who had been listed by the gendarmerie commander as injured. The difference between the number of injured referred to in his report and the number mentioned by the chief of police could be explained by the fact that some people had gone to hospital and received immediate attention there whereas others had been admitted. Some people did not immediately realise that they had been injured, while others did not inform all the relevant authorities.
He had seen the injured gendarmes in their barracks. Their injuries had been caused by stones and other hard objects which had been thrown at them, not by bullets.
The commanding officer was responsible for operations. The troops had taken up their positions on his orders. If a subordinate misapplied one of the commanding officer’s orders, or acted outside the scope of that order, the subordinate was answerable for the consequences.
He thought that the commanding officer of the district gendarmerie had given appropriate orders. When the police proved to be unable to handle the situation, the gendarmerie had intervened. Major Karatan had therefore intervened in good time and taken the appropriate steps.
Where the investigating officer was not a gendarmerie officer, the chief of police or his deputy could investigate the case. If no such person was available, someone else, an engineer for example, could act as the investigating officer.
Mr Kurt confirmed that he had worked in Şırnak from 1991 to 1993. He also confirmed that Major Karatan had worked in Şırnak for part of that period and stated that he had taken over the investigation in the case long after the events in question.
40. Mr Güven had been standing in for the Governor as Chairman of Şırnak Provincial Administrative Council when it discontinued the proceedings against the commanding officer of the gendarmerie forces ordered to suppress the demonstration of 4 March 1991. He himself had not been present at the scene of the incidents.
He described the rules governing prosecution of civil servants, which were as follows. The Governor appointed an investigator, who gathered all the evidence and submitted his conclusions to the Administrative Council. The case file was examined at a meeting of the Administrative Council at which each member expressed his or her views. The investigator did not attend that meeting. A decision to commit for trial or discontinue proceedings could be taken either unanimously or by a majority. The Administrative Council’s decision was transmitted to the Supreme Administrative Court which, after examining the case file, upheld or quashed it. These special rules governing the prosecution of civil servants applied in regions where a state of emergency was in force. A state of emergency had to be declared according to the democratic process by the National Assembly, by a majority vote.
In the present case, the Administrative Council had unanimously discontinued the proceedings, on the ground that the persons responsible had not been identified. No one had testified to seeing how Ahmet Güleç had died. In Turkey, gendarmes did not fire on citizens except when driven by necessity to do so.
41
The Administrative Council based its decisions on the documents which the investigator had placed on the case file, and was not strictly speaking empowered to conduct an investigation itself. That power belonged to the Governor. In general, the Administrative Council met once a month, although some months there was no meeting. If so, the Governor circulated a draft decision among the members of the Council for signature.
When the Administrative Council met, it was chaired by the Governor or his representative. The Council’s Secretary read the case file aloud. The members of the Council could examine the documents on the file. They were then invited to express their views and to sign a draft decision. In theory, the members could oppose the Governor’s proposal. Those who were not convinced of the correctness of what was proposed could ask for further investigations to be carried out. However, in the final analysis, the procedure was based on the trust placed in the Governor. Either the members of the Council were convinced and signed the decision, or they were replaced by others who were willing to sign it. In practice, it was not possible for the decision, as proposed by the Governor, not to be signed.
Mr Uysal stated that he thought the decision given in the present case had not been a discontinuation order but a decision not to commence criminal proceedings against civil servants and to transfer the case file to the public prosecutor for him to carry out a further investigation with a view to identifying those responsible. He had not been informed of subsequent developments in the case.
42. Mr Süsin stated that the local population had spontaneously organised a demonstration on 4 March 1991 in order to protest against acts of brutality committed by the gendarmes two days earlier in the village of Kömür. The District Commissioner had called him to the town hall. On his way there, he had seen the demonstrators in the street, and also the security forces and their armoured vehicles. When he got to the town hall, the demonstrators were already assembled.
At the town hall, the witness had seen and heard gendarmerie major, Mustafa Karatan, give the order to open fire by walkie-talkie. As the town hall was the tallest building in İdil he had seen a Panzer-type armoured vehicle open fire while travelling along Atatürk Street in front of the town hall. All the demonstrators were trying to run away. One of his friends had been killed before his eyes. He had seen shots being fired from the armoured vehicle. The vehicle was following the demonstrators and the soldiers manning it were firing at the ground, in the direction of the demonstrators.
More than fifty people had been wounded in the abdomen and chest by ricocheting bullets. Some of the wounded had refused to be taken to hospital because they were afraid of the authorities’ reaction.
Mr Süsin had not seen how Ahmet Güleç had been killed. With others, he had signed a complaint filed with the İdil public prosecutor’s office against Mustafa Karatan. A gendarmerie officer, Major Osman, had taken his statement in the course of an investigation into the incidents. But the investigation had come to nothing.
Mr Süsin had been arrested, in relation to another matter, in January 1993. In 1994 he had left Turkey while proceedings against him were pending. He had eventually been sentenced to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code for membership of an armed group, namely the PKK.
After examining the photograph of the armoured vehicle on the case file, Mr Süsin stated that it was a Panzer and that the Condor was smaller. In fact, a Condor was a jeep equipped with a machine gun. The Condor had fired for four or five minutes.
43. Mr Demir stated that he had been at home when the demonstration started. His house was one kilometre from the centre of town. From his balcony, he had been able to see the route taken by the demonstrators (mainly Atatürk Street) and the armoured vehicles belonging to the security forces following them.
The demonstration had been called to protest against what gendarmes had done to certain inhabitants of a village in Mardin Province. The demonstrators were not armed. At about 9 a.m. he had heard shots. From his balcony, he could see the armoured vehicles firing in all directions. Later he had gone to the health centre where there were a number of wounded people and Ahmet Güleç’s body. He had helped to take the wounded to various hospitals in the region.
The soldiers inside the armoured vehicle were not necessarily shooting to kill but might have been trying to disperse the demonstrators. However, they had fired without concern for the risk to the demonstrators’ lives. Most of the wounded had not gone to hospital for fear of being prosecuted for demonstrating illegally. Mr Demir had not seen any gendarmes injured in the course of the incidents.
While Mr Demir was at the health centre in the social security hospital he had been arrested by gendarmes and held in police custody for three days before being brought before one of the public prosecutors at the Diyarbakır National Security Court. Two members of his family had later been charged but then acquitted. The gendarmes had seized weapons and cartridges from citizens and fabricated evidence. However, this ploy had not fooled anyone for long.
44. Ms Demir stated that the demonstration had been called in protest against searches carried out by the army and arrests made on 2 March 1991 in a village near İdil.
Ms Demir had taken part in the demonstration together with Ahmet Güleç, who had been a school friend of hers. There were no lessons because of the demonstration. They had decided to take part with other pupils from the senior high school. There had been many demonstrators and they were not acting under anyone’s orders. They were not carrying weapons or stones.
With regard to the circumstances surrounding the death of Ahmet Güleç, Ms Demir stated that she was with him in the middle of the crowd when they found themselves trapped between the gendarmes who were barring the road in front of them (about 150 metres away) and a Panzer tank which was following close (5 or 6 metres) behind the demonstration, having come from the centre of town. The armoured vehicle had fired from behind the demonstrators, many times, at random and directly at the demonstrators, although this was not necessary to bring them under control. She had seen Ahmet Güleç fall to the ground beside her when the shooting first started. He had remained lying on the ground while the demonstrators were running off into the adjacent streets. She had taken refuge in a house from which she had called her father. She had got home about two hours later. At that time, she could still hear shots. She had later found out that her friend had died.
45. On the day in question Mr Demir had gone to his café at 6 a.m. At about 8 a.m. the demonstration began. It was a large one. The demonstrators did not have weapons, or stones or sticks. They were chanting slogans such as, “Stop the torture, stop the repression”.
The soldiers had formed a barricade in front of the demonstrators. The Panzer, which suddenly appeared behind the crowd, fired into the air, at the ground and in the direction of the demonstrators. One person was hit by a bullet and fell to the ground about ten to twenty metres in front of Mr Demir’s café. All the other demonstrators dispersed. The Panzer had been about 100 to 150 metres from the café. Ahmet Güleç was lying on the ground in front of the café, before the post office.
When the soldiers inside the Panzer opened fire, they were not concerned to preserve human life. The MG-3 machine gun mounted on the vehicle was a very powerful weapon. A number of people were wounded.
Shots could be heard in all the streets of İdil until 8 o’clock that evening. Mr Demir had been trying to get home when he was arrested and held in police custody for three or four days. Mr Demir’s café and other buildings in İdil had been damaged during the incidents. On 29 April 1991 Mr Demir had made a statement to the İdil public prosecutor to the effect that he had stayed in bed on the day of the incidents and had not opened his café, but this was a lie.
46. Mr Arı stated that he had arrived in İdil on the morning of 4 March 1991 at 8 a.m. from the village of Yarbaşı. He had taken part in the demonstration.
With regard to the circumstances of Ahmet Güleç’s death, Mr Arı had seen him fall under fire from the Panzer. At that time Mr Arı had been in the middle of the demonstration and had seen soldiers and police officers open fire in the direction of the crowd, without giving any warning. The Panzer, which had come from the centre of town, had been behind the demonstrators when it fired several times, in their direction, at the ground and in the air. Five or six people had fallen close to him and the demonstrators had dispersed. Ahmet Güleç, who was 50 metres from the Panzer, had also fallen to the ground. Mr Arı had run away into the surrounding streets and helped the injured to make their way to the health centre. He had been arrested and taken to the gendarmerie headquarters.
The demonstrators had not been acting on anyone’s orders.
47. Mr Aslan’s parents lived in a village 15 kilometres from İdil, and he had been on holiday in the region in March 1991. He had not seen what took place in the centre of town, in Atatürk Street. He had arrived in İdil early that morning and seen people coming away from the scene of the incidents. Armoured vehicles were patrolling the streets. One of the vehicles had opened fire on him. He had hidden behind a rock, but his leg had been burned by bullet fragments. According to Mr Aslan, the gendarmes were out of control and were taking absolutely no precautions to preserve human life. They were acting like hunters.
48. Mr Aslan stated that he had taken part in the demonstration. He had seen the Panzer fire at the crowd from a distance of about 150 to 200 metres. The demonstrators had separated into two groups, but the firing had continued and he had received a bullet wound.
As regards the circumstances of Ahmet Güleç’s death, he had not been near him but about 400 to 500 metres away. He had seen a large Panzer and a small one. He had seen the large Panzer fire at the crowd without prior warning. He had been treated in secret after the incident by a doctor. More than fifty people who had been injured did not go to see a doctor for fear of being arrested.
49. Article 125 of the Turkish Constitution Turkey provides:
“All acts or decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
The above provision is not subject to any restrictions, even in a state of emergency or war. The second paragraph does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unidentified persons where the State may be said to have failed in its duty to safeguard individual life and property.
50. Under the Turkish Criminal Code, torture and ill-treatment are criminal offences (Articles 243 and 245 deal with torture and ill-treatment inflicted by civil servants respectively).
51. Under Articles 151 and 153 of the Code of Criminal Procedure, complaints may be lodged with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may also appeal against a decision not to institute criminal proceedings.
52. Under Article 4 § 1 of Legislative Decree no. 285 (which introduced the office of Governor of a State of Emergency Region), criminal offences committed by members of the security forces within the area covered by the state of emergency must be dealt with under the procedure for prosecuting public servants. Under this procedure, the administrative investigatory authorities conduct the preliminary investigation. If this investigation implicates an agent of the State or a civil servant, authorisation to initiate criminal proceedings must be given by the local administrative council (the executive committee of the provincial administrative authorities). Administrative councils’ decisions may be appealed to the Supreme Administrative Court; a decision not to proceed is subject to an automatic appeal of this kind.
53. Under section 1 of Law no. 466, a person who has been wrongfully held in police custody may apply to the local assize court for compensation within three months of a decision to drop the charges against him.
54. Furthermore, any illegal act by a civil servant, whether a crime or a tort, which causes pecuniary or non-pecuniary damage may be the subject of a claim for compensation before the ordinary civil courts.
55. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
VIOLATED_ARTICLES: 2


ITEMID: 001-104919
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF CERNIKOVS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Ineta Ziemele;Ján Šikuta;Kristina Pardalos
TEXT: 4. The applicant was born in 1970 and lives in Rīga.
5. On 30 August 1998 the applicant was taken into custody on suspicion of murders and robbery.
6. On 2 September 1998 a judge of the Ogre District Court ordered the applicant’s detention on remand.
7. On 21 October 1998 the Ogre District Court extended the applicant’s detention until 30 November 1998. An appeal lodged by the applicant was dismissed on 13 November 1998 by the Rīga Regional Court.
8. The Ogre District Court further extended the term of the applicant’s detention on the following dates: on 24 November 1998 until 30 January 1999; on 21 January 1999 until 30 March 1999; on 22 March 1999 until 30 May 1999; on 24 May 1999 until 30 July 1999; on 22 July 1999 until 30 September 1999; on 24 September 1999 until 30 October 1999; on 26 October 1999 until 30 December 1999. All the decisions contained an identical phrase which stated that the judge had taken into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal to the Rīga Regional Court against the aforementioned decisions.
9. Meanwhile, on 8 October 1999 the Latgale Regional Court sentenced the applicant to one year and one month imprisonment for an unauthorised acquisition and storage of weapons. The period of detention on remand from 30 September 1998 to 8 October 1999 was included in the term of the sentence, which the applicant served until 30 October 1999.
10. On 26 May 2000 the final indictment was presented to the applicant, and on 30 May 2000 the judge of the Rīga Regional Court remitted the criminal case for trial. The latter was scheduled to take place on 3 January 2002. By the same decision the preventive measure was left unchanged without giving reasons or setting a time-limit.
11. In November 2001 the applicant’s lawyer asked the Rīga Regional Court to adjourn the proceedings. On 3 January 2002 the proceedings were adjourned for an unlimited period.
12. On 6 March 2002 the court informed the applicant that the trial was scheduled to take place on 25 September 2002.
13. On 1 October 2002, the court granted the request of a co-accused to undergo a psychiatric examination, and stayed the criminal proceedings.
14. At the lower court’s request, on 1 November 2002 the Senate, in absence of the applicant or his lawyer, extended the applicant’s detention until 1 May 2003. The Senate relied on the serious nature of the charges, and on the necessity to ensure proper conduct of the court proceedings. The decision was not subject to an appeal.
15. On 28 December 2002 the forensic experts asked for an extension of fifteen days in order to complete their report.
16. On 27 January 2003 the Rīga Regional Court repeatedly requested the Senate to extend the applicant’s detention on remand. It relied on the fact that the case was particularly complex and that the hearing had been scheduled to take place on 4 June 2003. The Senate, in absence of the applicant or his lawyer, extended the applicant’s detention until 1 July 2003.
17. From 4 to 11 June 2003 the hearings were repeatedly postponed due to the absence of witnesses.
18. On 25 June 2003 the applicant was found guilty of two murders and sentenced to sixteen years’ imprisonment. On 2 December 2003 the Rīga Regional Court dismissed the applicant’s appeal, and on 20 August 2004 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law.
19. During the municipal election campaign, between 27 February and 11 March 2001, two private TV channels broadcasted an advertisement sponsored by a political party in which B., the Prime Minister at the material time, made statements that a candidate promoted by the political party had been credited with tracking down the applicant’s activities.
20. On 23 May 2001 the applicant brought a civil defamation claim against B., the political party and owners of the TV channels.
21. On 10 August 2001 the Rīga City Central District Court decided that the case felt within the jurisdiction of the Ogre District Court, which on 30 November 2001, following the defendants’ request, stayed the proceedings pending the outcome of the criminal proceedings against the applicant.
22. According to the information submitted by the Government, the next hearing had been scheduled to take place on 11 May 2005, but had been adjourned at the applicant’s request; the next one had been scheduled to take place on 30 August 2005.
23. No further information has been submitted by the parties in respect of the above proceedings.
24. On 17 December 1998 the applicant applied to the prosecutor for permission to receive letters from his relatives. On 30 December 1998 the prosecutor dismissed the applicant’s request, and the latter did not appeal. The applicant was allowed to receive short-term visits with his relatives as from May 2000, whereas on 31 August 2000 the Rīga Regional Court granted the applicant a permission to exchange correspondence with his relatives.
25. The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss) applicable at the material time (in force until 1 October 2005), and other relevant practice are found in Estrikh v. Latvia (no. 73819/01, §§ 54-65; 81-82, 18 January 2007).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1