EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24490/94

Cemile Sarli

against

Turkey

REPORT OF THE COMMISSION

(adopted on 21 October 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-38) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-33) 1

C. The present Report

(paras. 34-38) 4

II. ESTABLISHMENT OF THE FACTS

(paras. 39-174) 5

A. The particular circumstances of the case

(paras. 40-48) 5

B. The evidence before the Commission

(paras. 49-162) 6

1) Documentary evidence

(paras. 49-96) 6

2) Oral evidence

(paras. 97-162) 16

C. Relevant domestic law and practice

(paras. 163-174) 30

III. OPINION OF THE COMMISSION

(paras. 175-264) 32

A. Complaints declared admissible

(para. 175) 32

B. Points at issue

(paras. 176-177) 32

C. Evaluation of the evidence

(paras. 178-209) 33

D. As regards Article 2 of the Convention

(paras. 210-215) 41

TABLE OF CONTENTS

Page

CONCLUSION

(para. 216) 42

E. As regards Article 3 of the Convention

(paras. 217-226) 42

i. Concerning Ramazan and Cemile Sarli

(paras. 217-220) 42

CONCLUSION

(para. 221) 43

ii. Concerning the applicant

(paras. 222-225) 43

CONCLUSION

(para. 226) 43

F. As regards Article 5 of the Convention

(paras. 227-230) 43

CONCLUSION

(para. 231) 44

G. As regards Article 13 of the Convention

(paras. 232-241) 45

CONCLUSION

(para. 242) 47

H. As regards Articles 14 and 18 of the Convention

(paras. 243-247) 47

CONCLUSIONS

(paras. 248-249) 47

I. As regards former Article 25 of the Convention

(paras. 250-255) 47

CONCLUSION

(para. 256) 48

J. Recapitulation

(paras. 257-264) 49

Page

DISSENTING OPINION OF

MRS J. LIDDY AND MR J.-C. GEUS 50

APPENDIX:

DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              51

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen born in 1938 and resident in Istanbul. She is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecturers at the University of Essex.

3. The application is directed against Turkey. The respondent Government were represented by their Agent, Mr M. Özmen.

4. The applicant complains that her son Ramazan Sarli and her daughter Cemile Sarli disappeared after being taken from their homes by security forces at Ulusoy in December 1993. She invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. She also invokes former  Article 25 of the Convention in respect of measures taken against her lawyer in Diyarbakir.

B. The proceedings

5. The application was introduced on 23 June 1994 and registered on 28 June 1994 in the name of Ahmet Sarli, the father of Ramazan and Cemile Sarli.

6. On 11 October 1994, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to invite the respondent Government to submit written observations on the admissibility and merits.

7. The Government’s observations were received on 27 February 1995 after an extension in the time-limit. The applicant’s representatives submitted observations in reply on 15 May 1995, also after an extension in the time-limit.

8. On 28 November 1995, the Commission resumed its deliberations in the case and declared the application admissible.

9. The text of the Commission’s decision on admissibility was sent to the parties on 29 November 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.

10. On 25 January 1996, the applicant’s representatives submitted a document.

11. On 13 April 1996, the Commission decided to take oral evidence in respect of the applicant’s allegations. It appointed three Delegates for this purpose: Mrs J. Liddy, Mr M. Pellonpää and Mr P. Lorenzen. The Government were requested to identify certain witnesses.

12. By letter dated 29 April 1996, the Government submitted supplementary observations, requesting the Commission to re-open the admissibility of the application.

13. On 18 May 1996, the Commission decided not to suspend the examination of the merits of the application as requested by the Government.

14. By letter dated 13 June 1996, the applicant’s representatives provided information about witnesses.

15. By letter dated 28 June 1996, the Government provided information about witnesses.

16. By letter dated 2 July 1996, the Secretariat requested the Government to identify the public prosecutor relevant to the case and to inform the Delegates of the relevance of the testimony of two witnesses, Ali Veris and Kamil Kaya, proposed by them.

17. By letter dated 11 July 1996, the Government explained that the evidence of Ali Veris and Kamil Kaya, as eye-witnesses, was highly important.

18. By letter dated 31 July 1996, the Government identified the public prosecutor.

19. By letter dated 24 July 1997, the Delegates requested the Government to produce a document.

20. By letter dated 15 September 1997, the applicant’s representatives informed the Commission that Ahmet Sarli had died and that they would provide further information shortly.

21. On 26 September 1997, the Government provided the document requested by the Delegates.

22. Evidence was heard by the Commission’s Delegates in Ankara on 4 October 1997. Before the Delegates, the Government were represented by Mr A. Gündüz, Mr S. Alpaslan and Mr D. Tezcan, Acting Agents, assisted by Ms M. Gülsen, Mrs Y. Renda, Mr A. Kaya, Mr H. Karahan and Mrs N. Ayman. The applicant was represented by Ms F. Hampson, Ms A. Reidy and Mr O. Baydemir, as counsel, assisted by Mr S. Leader, Mr K. Sidar, Mr Metin Kilavuz and Mr Mahmut Kaya (interpreter). Evidence was taken from Cemile Sarli, the wife of the deceased Ahmet Sarli, and her son Menan Sarli.

23. By letter dated 14 October 1997, the Delegates requested the Government to provide the investigation file of the Tatvan public prosecutor.

24. By letter dated 17 October 1997, the Government provided investigation documents.

25. On 25 October 1997, the Commission decided that Cemile Sarli, the wife of Ahmet Sarli, could act as applicant in this case and that the taking of evidence continue.

26. On 6 January 1998, the Government provided further documents.

27. Evidence was heard by the Commission’s Delegates in Ankara on 4 to 6 May 1998. Before the Delegates, the Government were represented by Mr M. Özmen, Agent, assisted by Ms M. Gülsen, Mrs Y. Renda, Mr A. Kaya, Mr S. Ünal, Ms B. Cankorel, Mr K. Alatas, Mr E. Genel, Mr F. Polat, Mr A. Karatas, Mrs N. Eser and Mrs N. Ayman. The applicants were represented by Ms F. Hampson and Ms A. Reidy, as counsel, assisted by Ms A. Akat, Ms Z. Inanç and Mr H. Bakiken.

28. On 12 May 1998, the Delegates requested that the Government provide a number of documents, including any records, court decisions and statements relating to Ali Veris and Kamil Kaya and any statements made concerning the alleged death of Ramazan and Cemile Sarli.

29. By letter of 21 July 1998, the Government provided certain documents. By letter dated 31 July 1998, the Secretariat requested that the Government identify their unlabelled appendices and informed them that the documents appeared incomplete.

30. On 3 August 1998, the Government provided a further document and on 2 September 1998, a copy of a missing appendix.

31. Following requests by the parties for extension of the time-limit for the submission of final observations, the Government and the applicant submitted their final observations on 2 December 1998.

32. On 21 October 1999, the Commission found no grounds on which to apply former Article 29 of the Convention.

33. After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

34. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. SVÁBY

A. PERENIC

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

35. The text of this Report was adopted on 21 October 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

36. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

37. The Commission’s decision on the admissibility of the application is annexed hereto.

38. The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

39. The facts of the case, particularly concerning events during December 1993 and the disappearance of Ramazan and Cemile Sarli, are disputed by the parties. For this reason, pursuant to former Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.

A. The particular circumstances of the case

1. Facts as presented by the applicant

40. The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B: “The evidence before the Commission”. The version as presented in the applicant’s final observations on the merits is summarised briefly here.

41. At about 22.30 hours on 23 December 1993, four villagers who were guarding the village school observed a vehicle approaching. Firing commenced. The vehicle drove away. When the firing stopped, villagers gathered round the school to find out what had happened. The villagers, including the four men acting as guards, returned to their homes. There was the sound of intermittent firing until a final period of shooting at about 03.30 hours. The applicant submits that there is strong evidence that the security forces were deployed around the village from 22.30 hours onwards, possibly engaged in a planned ambush on the PKK in the vicinity.

42. At about 03.30 hours on 24 December 1993, six members of the security forces came to the applicant’s home in Ulusoy village, accompanied by a villager Ismet Orakçi. They were looking for her daughter Cemile, who was not there. Orakçi was left at the applicant’s home while her son Ramazan was told to take the six men to the home of Abdullah Milyas, where Cemile was staying for the night. The six men took Ramazan, Cemile and Abdullah to the village school, on the outskirts of the village near the road.  Abdullah was released. Ramazan and Cemile were taken away in a vehicle followed by an armoured car.

43. On the morning of 24 December 1993, the security forces carried out a search of the village, during which Keyvan, Ramazan’s wife, accused them of having taken Ramazan. They denied it. That day, Cemile’s red jacket and one of her black shoes were found on the road. Also that day, the applicant and her husband Ahmet went at separate times to the gendarme station at Yelkenli, where each made a statement, complaining that the security forces had taken Ramazan and Cemile.  Ahmet subsequently made complaints to the Tatvan public prosecutor in late December and after that to the Bitlis public prosecutor and governor. Ahmet’s brother, Tevfik, also made a complaint on 31 January 1994 to the Tatvan public prosecutor.

44. In January 1994, the applicant and her husband moved to Istanbul. Ahmet went from Istanbul to Diyarbakir to make a complaint to the Human Rights Association (HRA). Court proceedings were instituted against Mahmut Sakar for having taken the statement of Ahmet Sarli and having sent it to the authorities in Europe.

2. Facts as presented by the Government

45. The Government’s account of events as based on their observations are summarised as follows.

46. On the night of 23 December 1993, the PKK arrived at Ulusoy in a taxi and opened fire on the village school, which was guarded by four villagers. The firing lasted 10-15 minutes before the terrorists withdrew.  Terrorists, including an individual code named “Takosin”, later came to the house of the applicant wearing pesmerge  and took away Ramazan Sarli. They went to the house of Abdullah Milyas and took Cemile Sarli. They left in a taxi cab.  There was further firing by the terrorists on the school. The security forces arrived at about 03.00-03.30 hours and more shooting took place. It was known to Captain Ertugrul, the district gendarme commander, that the Sarli family were suspected of assisting the PKK.  He arrived in the village in the morning of 24 December. It had been reported to him that there had been a contact with the PKK during the night. He saw that the school had been damaged and it was reported to him that Ramazan and Cemile Sarli had been kidnapped by PKK militants. Ahmet Sarli told him this himself.

47. According to Ali Veris, a PKK militant who became a “confessor”, a militant called Mahir had conducted a meeting in Ulusoy and later kidnapped Cemile and Ramazan from the village.  They had been assisting the PKK and as their identity had become known to the security forces it was necessary for them to be kidnapped. Cemile had the code name “Roken”, Ramazan the code name “Dilgeç”. Later, they tried to run away from the PKK and to prevent this desertion, the PKK decided to have them executed.  Kamil Kaya, another PKK militant who became a confessor, had also heard from wireless communications that two people had been abducted from the village and later executed when they tried to leave.

48. On 27 December 1993, the Tatvan public prosecutor responded to an enquiry as to whether Ramazan and Cemile Sarli were in custody. He knew that they had not been taken into custody. On receipt of Tevfik Sarli’s petition of 31 January 1994, the Bitlis public prosecutor transferred the complaints to the Tatvan public prosecutor who commenced immediately a preliminary investigation 1994/505. On 1 February 1994, the public prosecutor replied that Ramazan and Cemile had been kidnapped by the PKK.  This was based on the testimony of seven villagers, including the applicant. The file was transferred for jurisdictional reasons to the Diyarbakir State Security Court (SSC) public prosecutor’s office. Following receipt of the allegation made by the HRA that Ramazan and Cemile had been abducted by the security forces, a statement was sought from Ahmet Sarli. His statement was taken by the Bakirköy public prosecutor and it denied the HRA allegations. The preliminary investigation file is still pending, and all relevant authorities report progress every three months.

B. The evidence before the Commission

1) Documentary evidence

49. The parties submitted various documents to the Commission. These included documents from the investigation and statements from the applicant and other persons concerning their version of the events in issue in this case.

50. The Commission had particular regard to the following documents:

a) Statement of Ahmet Sarli, introducing the application

Statement dated 2 March 1994 taken by the HRA

51. In November 1993, the muhtar (mayor) of Ulusoy, Ali Ilban, was summoned to the Tatvan district gendarme commander, who stated that the PKK were burning the village schools and that the villagers were responsible for preventing this. The villagers had been subject to threats before which sought to induce them to become village guards. Following the muhtar’s return, villagers kept watch at the school at night with guns. On the night of 24-25 December 1994 at about 02.00, Yakup Çaca, Naif Ariç, Kazim Aydin and Rasit Tarçin watching at the school saw a dark green military vehicle approaching, with a team of six men. When the vehicle did not stop in response to a warning, the four men fired a few shots. The men in the vehicle returned fire.  The vehicle withdrew. The villagers came out to see what had happened. About half an hour after they returned to their homes, a convoy of soldiers and special teams arrived. Soldiers went to the house of Ismet Orakçi and asked him to take them to Ahmet Sarli’s house. At about 03.00 hours, they knocked at the door. When he opened the door, they said they were soldiers and immediately asked for Cemile. They took the arm of Necla, the wife of his son Menan, but let her go when they saw she had a child and was not Cemile. His son Ramazan, aged 30 and a father of four children, told them Cemile was staying at a neighbour’s house. The soldiers left Ismet Orakçi there and took Ramazan to Abdullah Milyas’s house. The soldiers took Ramazan, Cemile and Abdullah from his house. Ahmet and Ismet went outside when it got light. Soldiers were still in and around the village. He learned from Abullah Milyas that he had been taken to the school with Ramazan and Cemile and he had been released one hour later. Ahmet and his family left the village soon after as they were afraid and because of the continued persecution of the security forces.

52. On the morning after the kidnapping, the district gendarme commander came to the village and gathered the villagers together.  He said that the villagers had fired at the military teams during the night and asked if there were any terrorists in the village. When the people and the first sergeant said that there were no terrorists, he grew angry with the sergeant, saying “Why have you done this to the poor people?”. Later, First Sergeant Yavuz, commander of the Yelkenli gendarme station in the next village, came to the house and asked Ramazan’s wife where Ramazan and Cemile were. She said that the soldiers had taken them away. Yavuz denied this.

53. He had made applications to Tatvan and Bitlis public prosecutors but had only received one reply of 1 February 1994 which said that his children had been taken by the PKK Takosin group. He did not know how the prosecutor could have reached such a conclusion. Not the slightest effort was made to find his children who were taken by soldiers. He had no other recourse open to him and he wanted his children found.

b) Documents relating to the investigation into the incident

Statement dated 24 December 1993 of the applicant taken by NCO Yavuz Gürbüz

54. At about 22.30 hours, on 23 December 1993, there was gunfire, which continued for about half an hour. At about 01.00 hours, there was insistent knocking at the door. They opened the door to find six armed PKK terrorists, wearing local pesmerge dress. Without saying a word, they took Ramazan and Cemile from the house and left the village. She was too frightened to leave the house. There was more gunfire from the village and in the surrounding hills. She did not know why her children had been taken or where. She wanted them found and returned safely.

Statement dated 24 December 1993 of Kazim Aydin taken by NCO Yavuz Gürbüz

55. On the night of 23-24 December 1993, he was guarding the village school with Resit Tarçin, Naif Ariç and Yakup Çaça. At about 23.30 hours, a taxi came from the tarmac road to the school, four persons got out. Yakup shouted, “Stop. Tell us who you are”. Two of the men ran away. Yakup, Resit and himself fired after. The men responded with intensive automatic rifle fire, for about 10-15 minutes. Villagers were roused and fired shots into the air. The men fled. About 20 to 25 minutes later, the men came back and fired intensively at the school for 20 minutes. At about 03.30 hours, the security forces arrived at the village. Firing continued for about half an hour. He and the three guards had left the school by the time the security forces arrived.  Next morning, he heard that the people who had come had taken Ramazan and Cemile Sarli.

Statement dated 24 December 1993 of Resit Tarçin taken by NCO Yavuz Gürbüz

56. On the night of 23-24 December 1993, he was guarding the village school with Kazim Aydin, Naif Ariç and Yakup Çaça. At about 23.30 hours, a taxi came from the tarmac road towards the village. At the school, five armed PKK members got out. It was dark and difficult to make them out.  Yakup shouted, “Stop. Tell us who you are”. Two of the men ran away. Yakup and himself fired after them. The men responded with automatic rifle fire, for about eight to ten minutes. Villagers were roused and fired shots into the air, gathering near the school. At about 23.30 hours, the six PKK men drove away at high speed towards the tarmac road.  About 20 to 25 minutes later, terrorists came back and fired at the school for 30 minutes. The villagers returned fire. The gunfire stopped at about 01.00 hours. At about 03.30 hours, the security forces arrived at the village and the villagers returned to their houses. Firing continued for about fifteen minutes. Next morning, he heard that six PKK members had taken Ramazan and Cemile Sarli with them when they fled.

Statement dated 24 December 1993 of Yakup Çaça taken by NCO Yavuz Gürbüz

57. On the night of 23-24 December 1993, he was guarding the village school with Kazim Aydin, Naif Ariç and Resit Tarçin. At about 23.30 hours, a taxi entered the village and stopped at the school. Four people got out.  He shouted, “Stop. Tell us who you are”. Two of the men ran away. He fired after them. His friends fired their shotguns too and the men responded with automatic rifle fire, for about 10-15 minutes. Villagers were roused and fired shots into the air, gathering near the school. The men made off in the taxi towards the tarmac road.  About 20 to 25 minutes later, they came back and fired at the school sporadically for about 20 minutes. The firing stopped. At about 03.30 hours, the security forces arrived at the village. Shooting began again, stopping after half an hour. Next morning, he heard that armed PKK members had taken Ramazan and Cemile Sarli with them.

Statement dated 24 December 1993 of Naif Ariç taken by NCO Yavuz Gürbüz

58. On the night of 23-24 December 1993, he was guarding the village school with Kazim Aydin, Yakup Çaça and Resit Tarçin. At about 23.30 hours, Yakup woke them up. A taxi stopped below the school. Five people got out. Yakup shouted, “Stop. Tell us who you are”. The people began to run away. Yakup fired after them. Resit and Aydin fired too.  The attackers responded with intensive automatic rifle fire, for about 10-15 minutes. Villagers were roused and fired shots into the air. The men made off in the taxi towards the tarmac road. At about 03.30 hours, the security forces arrived at the village. Shooting began again, stopping after half an hour. Next morning, he heard that terrorists had kidnapped Ramazan and Cemile Sarli.

Statement dated 24 December 1993 of Ali Ilban taken by NCO Yavuz Gürbüz

59. At about 23.30 hours, he was in bed. He heard gunfire and went outside. He arrived at the school, where all the villagers were. They said that six armed PKK members had clashed with the guards at the school. He told the villagers not to go back to bed in case they came back. At about 01.00 hours, the same people came back, firing at the school for 20 minutes. At about 03.30 hours, the security forces arrived at the village. Shooting began again, stopping after half an hour. Next morning, he heard that armed PKK members had kidnapped Ramazan and Cemile Sarli. Ismet Orakçi had taken them to their house and had then been released. The school was damaged, the windows all broken and part of the roof perforated.

Statement dated 24 December 1993 of Ismet Orakçi taken by NCO Yavuz Gürbüz

60. On 23 December 1993, he was watching the television, when he heard gunfire coming from the school. It continued for five to ten minutes. After five minutes, he went to the school where the villagers were gathering. After they discussed the need to keep on their guard, they dispersed. Half an hour later, there was intensive firing at the village from the tarmac road. There was a knock at the door. Six armed men came in and searched the house. They had beards and their heads were covered with scarves. They told him to take them to Ahmet Sarli’s house. He did so. They took Ramazan and Cemile Sarli with them and went off towards the tarmac road. He did not know who those people were. Immediately afterwards, about 03.30 hours, military vehicles were seen coming from the tarmac road. There was more gunfire for a while.

Incident report dated 24 December 1993 signed by gendarmes and the muhtar

61. At about 22.30 hours on 23 December 1993, six armed PKK members came to the primary school in a car. Resit Tarçin, Naif Ariç, Yakup Çaça and Kazim Aydin were on watch there. Çaça opened fire and a clash broke out for 30 minutes. The villagers came out and the PKK terrorists drove away. At about 03.30 hours, an infantry unit patrolling the Tatvan-Van road intervened and came under fire from terrorists positioned on the west side of the village. Firing lasted 15 minutes. The terrorists went away towards Anadere. At about 05.00 hours, a mechanised infantry unit, a security unit and a 2B unit arrived at the scene. An enquiry disclosed damage to the school. There was no other damage. No trace or evidence to identify the perpetrators was found.

62. A sketch map had also been drawn up by NCO Gürbüz, setting out the position of the school in the village.

Damage evaluation report of 24 December 1993 signed by Yavuz Gürbüz and the muhtar

63. This described the damage to the school arising from gunfire from PKK terrorists occurring from 23.30 to 23.40 hours and 01.00 to 01.20 hours.

Standard form incident report dated 24 December 1993 addressed from Tatvan district gendarme command

64. This was addressed, inter alia, to Bitlis provincial gendarme headquarters, Tatvan public prosecutor, Tatvan district governor, Tatvan police headquarters etc.  It listed in number form that an armed clash took place at about 22.30 hours on 23 December 1993 inside Ulusoy village. At point 4, it stated in detail that having learned that PKK members were going to meet at the village school in Ulusoy on 23 December 1993, security forces (teams) were in ambush positions around the village. At about 22.30 hours, a group of terrorists was seen in the school around the village and an armed conflict ensued. From the hill to the south of the village, shots were fired at security forces waiting in ambush. Because of the number of terrorists and intensity of firing, reinforcements were requested. Supported by mortar fire and tanks, the conflict continued intermittently until 03.30 hours. At 06.00 hours, the security forces entered the village.  From the investigation, it was understood that six terrorists had positioned themselves around the school and the remainder were in the hills to the south.  It was determined that the group of 20 terrorists were under the command of a man, code named Berham. Cemile Sarli and Ramazan Sarli, daughter and son of Ahmet a man from the village militia, had been in direct contact with the terrorist “Takosin”. After the conflict, they ran away with him/them into the Anadere region. It was thought they were to be inducted into the mountain group. The houses of the villagers suspected of helping the terrorists were searched. In the house of Fadil Tarçin two hidden C4s were found. He was taken into custody and interrogated. His details were given. At point 8, the incomplete text provided lists the personnel involved as including two internal security teams and one team from the centre.

Letter dated 27 December 1993 from the Tatvan district gendarme command to the Tatvan public prosecutor

65. Referring to the incident report of 24 December 1993 and the Tatvan public prosecutor’s letter of 27 December 1993, it stated that at about 22.30 hours on 23 December a clash broke out between the security forces and the PKK who had come to the village to hold a meeting. Following a loss of contact, the group of 20 PKK under the command of “Berham” ran away to the Anadere region, taking with them Cemile (born 1974) and Ramazan (born 1963), who were directly connected with the PKK member code named “Takosin”. It was considered that the two people had possibly been taken as recruits for the mountain group. They were not taken by the security forces as mentioned in the above letter and they were not taken into custody.

Decision of non-jurisdiction dated 11 January 1994 by the Tatvan public prosecutor

66. This listed Ramazan and Cemile Sarli as the victims, the complainant as the applicant, the offences as burning down a school for ideological reasons and kidnapping and the defendants as unknown. It stated that on 23 December 1993, at 22.30 hours, six armed PKK members arrived at Ulusoy intending to burn down the school. Upon the intervention of the villagers an armed conflict took place, during which the windows and roof of the school were damaged. Later, terrorists escaped, taking the victims with them. As this offence attributed to unknown perpetrators was within the jurisdiction of the SSC chief public prosecutor, he withdrew jurisdiction and despatched the file to Diyarbakir SSC.

Petition dated 31 January 1994 of Tevfik Sarli to Bitlis public prosecutor

67. Ramazan and Cemile Sarli were taken by the security forces at 03.00 hours about 40 days ago. He was terribly wronged and in a desperate situation. He would like to be informed whether his children  had been brought before a judge. If not, he requested that they be brought before a judge immediately. He requested that the necessary steps be taken.

Letter dated 24 January 1994 from Diyarbakir SSC chief public prosecutor to Tatvan public prosecutor and others

68. This requested the Tatvan public prosecutor, with the co-operation of the district gendarmes, to continue the search for the abductors of Ramazan and Cemile Sarli, reports to be made every three months, with copies of any pertinent statements or confessions. The police headquarters and provincial gendarme headquarters were also requested to notify them of any confession, statement or other pertinent information relating to the incident.

Reply dated 1 February 1994 from the Tatvan public prosecutor (28301)

69. It was understood from the letter of the district gendarme commander of 27 December 1993 that Ramazan and Cemile Sarli were not taken from their house by security forces but by the Takosin group of the PKK. The file had been sent to the Diyarbakir SSC public prosecutor, with the decision of lack of jurisdiction of 11 January 1994.

Letter dated 11 January 1995 from the Diyarbakir SSC prosecutor to the Tatvan prosecutor

70. This requested that Ali Ilban, Naif Ariç, Resit Tarçin, Yakup Çaça, Kazim Aydin, Cemile Sarli (the applicant), Ismet Orakçi and Abdullah Milyas be summoned urgently to give their statements. It also requested that Cemile Sarli, the daughter of the applicant, be summoned.

Statement dated 11 January 1995 of Ahmet Sarli taken by a public prosecutor

71. A petition letter from the European Human Rights Projects and a power of attorney were shown to the witness, who said that they were not his and he did not know if the signature was his. On 24 December 1993, at about 03.00 hours, he was in his house with his wife , his son Ramazan, his wife Keyvan, their four children and Necla, the wife of his son who was absent doing his military service, with her child. Six individuals arrived at Ismet Orakçi’s house at the entrance to the village. They wore waistcoats, boots and were not soldiers. Ismet Orakçi brought them to his house at about 03.00 hours. They asked for his daughter Cemile who was staying at Abdullah Milyas’s house. They took Ramazan, telling those left in the house not to go out.

72. The statement specified that the witness was asked again and that he insisted that the six men were not soldiers. Some wore scarves known as “desmal” around their necks while the others had nothing on their heads. The men took Cemile from Milyas’s house and went to the school. They left Abdullah there. At about 03.00 hours, they heard some long distance shots, apparently from soldiers. Captain Dursun arrived at about 09.00 hours and assembled the villagers. He asked if they had a terrorist group in the village. They said they did not. He asked the sergeant major the same question and received the same reply. He was angry with the sergeant major saying why did you put these poor people in this state. He only heard about that conversation as he was not there.

73. He did not remember submitting this petition himself. He did submit a petition to the Tatvan prosecutor and the Bitlis provincial governor for his children to be found. His only aim was to find his children. After the incident, they feared for their safety and moved to Istanbul.

Letter dated 11 April 1995 from Tatvan district gendarme command to Tatvan prosecutor

74. This reported that the persons summoned could not be found, stating that the various villagers had moved (giving the towns in each case) and that Cemile Sarli, the daughter, had been kidnapped by the PKK.

Letter dated 1 March 1995 from Tatvan district gendarme command to Diyarbakir SSC prosecutor

75. This stated the investigation to apprehend the suspects in respect of the abduction of Ramazan and Cemile Sarli was continuing. A report from the Yelkenli gendarme station was enclosed, stating no information had been forthcoming.

Letters dated 12 April and 25 August 1995 from Tatvan district gendarme command to Diyarbakir SSC prosecutor

76. This stated as above (para. 75).

Letter dated 26 April 1996 from the Diyarbakir SSC prosecutor to Tatvan public prosecutor

77. This referred to their earlier letter of 24 January 1994, pointing out that they had not been informed on a regular three month basis as requested. It requested compliance in future.

Letter dated 8 September 1997 from Van SSC chief public prosecutor to Tatvan public prosecutor

78. This referred to the decision of lack of jurisdiction of the Diyarbakir SSC prosecutor of 3 July 1997, stated that an investigation into the abduction of Ramazan and Cemile Sarli had begun, that steps should be taken to identify and apprehend the perpetrators and reports should be made every three months as to state of progress.

Report dated 15 September 1997 signed by Yelkenli gendarme station commander

79. In accordance with the Diyarbakir SSC chief public prosecutor’s request of 26 April 1996 (1994/505) an investigation had been carried out into the attack on Ulusoy during which Ramazan and Cemile Sarli were taken by terrorists. An examination of the statements made by terrorists captured or surrendered to the security forces within or outside the area of their command revealed no information about the incident. The enquiry was still pending and further information forwarded when it became available.

Reports dated 20 February, 15 March, 15 April 1998 signed by Yelkenli gendarme station commander

80. The same as above (para. 75).

Letter dated 22 April 1998 from Ministry of Justice (Directorate of International Law and Foreign Affairs) to Van SSC chief public prosecutor

81. This requested information about the pending investigation 1997/1214, which had been referred to them following the decision of lack of jurisdiction 1997/2537 of the Diyarbakir chief public prosecutor on 3 July 1997.

Letter dated 4 June 1998 from Tatvan district gendarme command to the Tatvan public prosecutor

82. Referring to previous correspondence, it stated that no information was available concerning the perpetrators of the abduction of Ramazan and Cemile Sarli but that the search was continuing.

List of documents in investigation file 1997/1212 Van SSC

83. This lists 70 documents dated from 24 December 1993 to 4 June 1998.

c) Documents relating to Ali Veris

Incident report dated 9 April 1995

84. This recounted the capture of 18 terrorists following an operation in the Sehhi forest in Bitlis on 27 March 1995. These included Ali Veris (“Sefkan”). Nearly 70-75 terrorists were killed in the clash and one soldier died and two were injured.

Request dated 6 April 1995 from Bitlis provincial gendarme headquarters to the Bitlis public prosecutor

85. This requested an extended 30 day detention period in respect of the listed terrorists who included Deris , code name Sefkan.

Custody record, place of detention unattributed

86. This lists Ali Deris  code name Suphan  as detained on 2 April 1995, released on 1 May 1995.

Indictment undated by the Diyarbakir SSC chief public prosecutor concerning five accused including Ali Veris

87. The indictment listed date of custody for all accused as being 1 May 1995 and charged them with armed activities aimed against the territorial integrity of the state. Ali Veris, code named “Sefkan” was charged with 12 armed actions carried out in Cizre, Sirvan and Bitlis between 1992 and 1995, during several of which members of the security forces or village guards were killed. It described that during the final action in Sehhi forest between 26 February and 2 April 1995 Ali Veris and others surrendered as they could not escape.  That Ali Veris had carried out these actions was known from his declarations to security, the public prosecutor and the criminal court.

Decision of Diyarbakir SSC no. 2 dated 9 May 1997

88. This referred to the accused being detained since 9 April 1995 and released on 10 May 1996. This found that Ali Veris had joined the PKK in September 1989, returning to Turkey from Iraq in March 1991. It was established that he had carried out armed and gravely serious activities for the PKK aiming to form a separate state from the territory of Turkey. He and the other accused had indicated after their apprehension and during their trial that they regretted having joined the PKK and carried out armed activities and that they wanted to take advantage of the Remorse Act No. 4085.  The General Directorate of Security (Ministry of the Interior) had been asked for its view. Although their report gave an adverse opinion, it was reported by the security forces that the accused had indicated shelters and other terrorist locations, taken part in operations and sincerely provided information, thereby helping in the efforts to dismantle the PKK. It was decided to apply Act No. 4085 to the defendants.

89. The court sentenced the defendants to the death penalty pursuant to Article 125 of the Turkish Penal Code (TPC). The sentence of Ali Veris was converted into heavy life imprisonment pursuant to Article 59/1 of the TPC and pursuant to Act No. 4085 this sentence was reduced to six years’ heavy imprisonment, with prohibition of public service for life and to be kept under legal restriction during his sentence. The time spent in custody was to be deducted. Ali Veris was not present in court.

d) Documents relating to Kamil Kaya

Statement dated 19 August 1995 by Kamil Kaya taken at the Anti-Terror Department

90. This 27 page statement set out details of Kamil Kaya’s activities in the PKK under code name “Çektar” from 1992 to 1995 and answers to questions about particular incidents. It listed, inter alia, mainly code names of persons with whom he had come into contact and described how after his surrender he went on operations with police teams in Agri and Bitlis to identify places where food and arms were stored.

Additional statement, undated, by Kamil Kaya

91. In this statement, he was asked to identify the village committee members and village militia and gave information about people who assisted the PKK in Hasköy district in Mus, the town of Altinova and a number of other villages.

Statement dated 22 August 1995 by Kamil Kaya taken by a public prosecutor

92. This stated that he had escaped with others from the organisation on 22 April 1995 but that they had been frightened to give themselves up initially. They gave themselves up in Patnos. He had participated in the abduction of Kemal Elçi who was executed as a State collaborator, laid mines, burned a minibus, raided villages (during one incident a woman and child were injured), blocked a road and taken part in armed clashes in 1994 and 1995, though he did not know if any members of the security forces died as a result of these.

Indictment by Erzincan SSC public prosecutor dated 11 September 1995

93. This charged Kamil Kaya with separatist acts against the territorial integrity of the State, listing offences between 28 April 1993 and 22 April 1995. It stated that he had been in custody from 3 to 22 August 1995 and arrested from 22 August 1995. He and two other defendants were described as having escaped from the PKK on 13 April 1995 and having travelled in the mountains for months, voluntarily giving themselves up on 3 August 1995. In a detailed account of his recruitment and activities for the PKK, it stated that he was involved in arson, kidnappings and executions of abducted persons, clashes and attacks on villages in which civilians and security force personnel were killed. It referred to statements made by him to the police on 19 August 1995 and the prosecutor on 22 August 1995.

Decision dated 18 September 1995 of the Erzincan SSC no. 2

94. This stated that the offences committed by Kamil Kaya and his fellow accused were carried out within the jurisdiction of the Diyarbakir SSC. The accused were to remain under arrest and the case to be transferred.

e) Documents relating to the prosecution of the applicant’s lawyer in Turkey

Statement dated 7 November 1995 of Mahmut Sakar taken by the Diyarbakir SSC chief public prosecutor

95. This stated that Mahmut Sakar was registered at the Diyarbakir bar and vice president of the HRA, as well as President of the Diyarbakir branch.  He recalled Ahmet Sarli from Tatvan coming to see him two years before, telling him that his son and daughter had disappeared. He told Ahmet Sarli that domestic remedies had to be exhausted. He recalled writing to the Governor and SSC chief prosecutor for him and telling him to go to the Tatvan chief prosecutor.  After a long while, Ahmet Sarli came back to the HRA, saying that he had obtained no results from the authorities save a document which said that his son and daughter had been kidnapped by the PKK. As he disagreed with this, Mahmut Sakar told him that he could apply on the basis of the State’s ratification of the Convention. He confirmed that it was his signature on the document shown to him. His signature was not based on any power of attorney but on the basis of the purpose of the HRA. There was no requirement for a power of attorney for the application as it was all done by forms.

Indictment dated 21 March 1996 by Diyarbakir SSC chief public prosecutor

96. This stated that the defendant was Mahmut Sakar and that he had violated Law No. 3713 between 24 December 1993 and 2 March 1994. It was stated that the defendant had prepared an application titled European Human Rights Project without a client-solicitor relationship having been established. The purpose of this was to degrade the State and make propaganda in favour of the PKK. His prosecution under Law No. 2485 as well as appropriate action under Law No. 3717, Articles 1 and 8/1 was requested.

2) Oral evidence

97. The evidence of the 15 witnesses heard by the Commission’s Delegates may be summarised as follows:

(1) Cemile Sarli

98. The applicant was born in 1938. For four years, she had been living in Istanbul. She had seven children. She was at home in the village when Ramazan and Cemile were taken. Both lived in her house. Her husband was ill. He had had an operation. There were 36 houses in the village, but all had burned down and the people gone to Istanbul. The villagers were not getting on with each other. They were informing against each other. There were no village guards. The disagreements arose out of the elections for muhtar. The candidate who lost was in conflict with the one who won. As a result, the villagers had quarrelled for four to five years. They even shot at one another. When these two candidates withdrew, they elected Ali Ilban in 1993. No-one from the village had gone to the mountains. When asked about her family’s relations with Ali Ilban, she said in confused terms that they did not have friendly relations with him and had him beaten up but then said that it was not Ali but the former muhtar. Her husband had said that Ali should be elected when the former muhtar left his post.

99. There was a school below the village. The station gave a paper to the muhtar which said the school was to close. The gendarmes wanted the villagers to guard the school. She later stated that the paper said that. The villagers guarded the school for about 10 days. At a later point, she stated that though the school was intact at that time, it had not been used for two years. Then the State forces raided the village and the village did not exist any more.

100. It was after the last days of autumn that Ramazan and Cemile were taken. Cemile had been ill and had been taken to the doctor every day previously. On the day before the incident, she and Cemile had been at Abdullah’s house, where Cemile was teaching his daughter embroidery. They invited Cemile to spend the night there. The applicant returned to her own house. There was shooting against the village during the night from about midnight. The firing was lighting up the area. She and the villagers all remained inside. The men guarding the school (Yakup, Naif, Kazim, Resit) rushed back to the village. They had seen a military vehicle arrive and said that the soldiers had come. She stated that the soldiers were in the mountains and had surrounded the village. There was continuous shooting and explosions. The villagers had seen the soldiers when they arrived (at one point she mentioned them arriving in the afternoon) and the villagers ran back to their houses when the shooting started.

101. During the night, Ismet came to their house with men, about one hour before daybreak. She opened the door. There were three soldiers, dressed in multi-coloured, rose-patterned, grey and khaki-coloured clothes. They had long guns. One of them had a red mask on his face. It was not a pesmerge.  It was like a red scarf but he could see through it. He did not talk. The others were not talking in Turkish. She seemed to agree that they talked Kurdish. One asked Ahmet whether he was Ahmet Sarli and for his identity card. They looked at his identity card. Then they said he should go to bed as he was ill and had had an operation. She guessed that they had been denounced and others had given these details. They asked where Cemile was. They took Ramazan and slapped him, ripping up his identity card. They put their hands on Necla, her daughter-in-law, saying, “Is this Cemile?” The man in the red mask slapped her and told her in Kurdish not to cry. The family said that she was not Cemile. Then they took Ramazan by the shoulder and took him away. They told the family to stay inside until morning. Keyvan, Ramazan’s wife, was also present in the house. Her house was half an hour’s walk from the school.

102. Later, she heard from Abdullah that the men went to his house. They took him, Cemile and Ramazan to the school. They left Abdullah there. They put her children in a panzer, a high, grey vehicle. Later she said that the vehicles were green and she saw them by the school the next day. When asked if she was told why they took her children, she stated that the men told her that they had been denounced.

103. The soldiers flooded the village until midday the next day, about 300 in multi-coloured soldier uniforms. They came in vehicles and there were many vehicles round the school and the village and in the fields. They searched every house but only lifted the bedspread in their house. A captain, sergeant or someone came to the house. She said that they had taken Cemile and Ramazan and he wrote it down. During the search of their house, Keyvan told the soldiers that they had taken her husband and should go away.  That morning, a red undershirt and a shoe of Cemile’s were found on the road, a little way from the village. They found these when they were on their way to Sorp that morning.

104. The family stayed a month in Tatvan after that. They filed a petition there. They submitted it to the judge and the captain. They said, “We didn’t take them.” All the villagers fled after this, fearing that they would be arrested. She heard that the village was burned about one month after they came to Istanbul. It was the State that burned it.

105. Her husband was called to make a statement at the court in Istanbul. Police came for him. They asked what had happened to his children. She herself was not questioned by the authorities. When shown her statement, she said that she had been told to thumbprint it at the station in Sorp. She did not speak Turkish or read. She told them that they took her children. They said that she had made a statement to the detriment of her children, that the mountain people took them and that they would investigate. She did not say that the men wore pesmerge. The first sergeant wrote the statement. When asked if a Kurdish interpreter was there, she said that Haci Mehmet, her daughter’s father-in-law, was with her.

106. They had heard rumours about what had happened to their children. Some said that they had been killed and their bodies thrown somewhere. Some said that they were in prison in Bitlis, in a building with three levels below ground, though no-one had claimed to have seen them there.

107. When shown a letter of authority presented to the Delegates by her representatives signed the previous day, she denied signing it. She also appeared to deny that her legal representatives had visited her in her hotel the previous night. On being asked whether she wished to continue before the European Commission and Court of Human Rights the application introduced by her husband, she said that she did.

(2) Menan Sarli

108. The witness was doing his military service when his brother and sister were abducted. When he finished his service, the village was deserted and he returned to Tatvan, taking his family to Istanbul. According to his father, during an operation men had come to the house with guns and a list, reading out Cemile’s name. She was at Abdullah’s house about 10 metres away. They took Abdullah with his sister and brother letting him go after about an hour. There were armoured military vehicles and plenty of soldiers all around the village. Before his military service, they lived a peaceful life. The PKK did not come as they were near a station, close to the highway and there were no forests around. He did not recall problems with any neighbours.

109. At about the end of February or beginning of March 1994, he went with his father to the HRA in Diyarbakir. His father was suffering from cancer and was very sick. His father told the HRA that this had happened. He signed each of the four pages, which were typed on the same typewriter.  When it was pointed out that only one page was signed and there was a change of typewriter, he said that he had not watched every minute. When his father was called to give a statement in Istanbul, he was not present. His father came back after less than an hour - no-one from the family was with him or a lawyer. His father died some six, seven months, maybe a year later. From what his father had told him, his father had applied to the Tatvan public prosecutor, the gendarme commander and the district gendarme commander and the governor, who refused his application. When asked why his statement at Istanbul differed from the HRA statement, he said that his father was very ill and not fully aware of what he was saying in those days.

(3) Keyvan Sarli

110. The witness was born in 1965. In December 1993, she lived in Vanik (Ulusoy), in a house with her husband Ramazan, their four children, his father and mother, her husband’s sister-in-law and the wife of his paternal uncle. The school was opposite the house.  There were about 50 houses in the village. The nearest gendarme station was in Resadiye, half an hour away. There were no village guards in their village and there was no problem with the other villages who had guards. None of the neighbouring villages had guards. Nor was there any problem with the PKK, who did not come to their village. The land was flat, without trees or places to hide. Soldiers came from time to time as the village was on a road junction.

111. A paper had been sent by the station to the villagers telling them to guard the school. The teacher had left on leave and people might set the school on fire. The night of the incident, Cemile was at Abdullah’s house teaching embroidery. At about 22.00 hours there was a raid, sounds of weapons, bombs being thrown. The sound came from the direction of the asphalt road. There was shooting at the village and at the mountains. It continued until the morning.  Towards morning, six men came to the house, bringing Ismet Orakçi who was frightened. Ismet called out that there were soldiers and asked to open the door. Before they could open the door, the men broke it. Three came in and three stayed outside. They spoke Turkish. They had a paper in their hands. The names of Ahmet and Cemile were on the list, not Ramazan’s. She heard the man read the names out from the list. No explanation was given to them as to why they were wanted.  They asked about Ahmet Sarli. They asked Ahmet Sarli if he was ill and he said that he was. They put him on a bed and told him not to go outside.

112. The men said to her sister-in-law, Necla, “You’re Cemile” and wanted to take her. They grabbed her shoulders and struck her twice. She was holding a baby. They threw the baby on the bed and dragged her to the door. The others said that she was not Cemile. Ramazan explained to them.  They told Ramazan to take them to Cemile. They struck the witness’s daughter Hülya who was crying. The men told them not to follow and took Ramazan outside. The men wore speckled grey commando uniforms like her husband had on his military service. They wore the shoes that soldiers did. They carried guns and all three had masks on their heads. The faces were red, with moustaches and thick hair, as if there was a painted face in front of you. She seemed to be saying that she had seen soldiers wear this kind of mask before. They also wore soldiers hats and had red rank insignia. They were big, burly men. They spoke Turkish. Ismet told them that they were asking where Cemile was, where Ahmet was. They did not speak in Kurdish. They had also asked to see Ramazan’s identity card. They threw it on the floor and he picked it up and put it in his pocket. They were in the house for about ten minutes.

113. When the men left, they also went out of the house and followed them, watching from the hill by the school. At that time, the shooting had died down and was mainly towards the mountain. The men took Ramazan to Abdullah’s house, picked up Cemile and Abdullah and took all of them to the school. They took a statement there from Abdullah and released him. They put Cemile and Ramazan in a car, drove up the asphalt road, followed by two military trucks and four panzers. That was at dawn, at the call for morning prayers. They also took Fazil but that was when they came during the day.  There was one car but many panzers, a lot of military jeeps. She later seemed to say that there was no-one but the six men near the school, which they threatened to burn.

114. When the soldiers came in the morning, they carried out a search. Two soldiers came to her house, the commander of Resadiye and the muhtar Ali, asking about Ramazan. She said that the Government had taken him away. Later Cemile’s sweater and shoe were found on the asphalt road. Two days later, they left the village and went to Tatvan for five days. Then they moved to Istanbul. They left as Ahmet was ill, her husband was taken, another brother was doing his military service and there was no-one to take care of them. She had never been questioned about the incident. Cemile had been ill, with a kidney problem before this. The doctors had said that she might need an operation.

(4) Necla Sarli

115. The witness was the wife of Menan Sarli. In December 1993, she was living in Ulusoy with her father-in-law, mother-in-law and other members of the family. The firing started at about midnight, with guns and cannon, coming from the direction of the road directed towards the village. The firing continued until morning prayer time.  When it was almost daylight, soldiers came to the house, with Ismet, calling out for the door to be opened. As they were about to open the door, it was broken in at the lock. There were six men who all came inside. They wore speckled soldier’s uniforms and had guns and torches. Three wore military hats, three wore masks. The masks were red and covered the face, with long beards and moustaches stuck on. She had seen teams and soldiers wearing such masks in the market place when she had been in Tatvan that summer. The men spoke Turkish. Ismet told them what the men were saying. One of them had a sheet of paper. Ismet told her that Ahmet’s and Cemile’s names were on it.

116. The three men with masks asked the witness if she was Cemile and slapped her twice. Ismet and Ramazan said that she was not Cemile. They also beat Ramazan and when his little girl cried at that, they beat the little girl too. Ramazan told them that he would take them to Cemile at Abdullah’s house. After the men left, they also went outside after them, watching from the hill by the school. The men took Cemile, Ramazan and Abdullah to the school. Cemile was protesting, saying that she was ill. They took Abdullah apart, asking him and took his statement. When asked to explain this, she said that they were asking him questions and he was answering. They put Cemile and Ramazan in a car and a tank followed after. There were soldiers also there but not many. There were lots of uniformed people around the village. At about 09.00-10.00 hours, the soldiers searched the houses but not theirs. There were about 50-100 soldiers. She saw only one car and a tank. At another point, she said that the soldiers entered the village when the six men had left.

117. The next morning, two soldiers and the muhtar came to their house, asking, “Where are your men?” They answered, “You took them”. The men had been gathered near the mosque. The soldiers entered the house but not beyond the living room.  They had heard no news of Ramazan or Cemile since. Cemile’s vest and shoe were found on the road. Her mother-in-law went to Sorp station after the soldiers left at midday. Haci Mehmet Ates went with her. He spoke Turkish a little. When her mother-in-law came back, she said that she had asked about her children and they had said that if she put a fingerprint on a piece of paper they would find her children. She had said that the soldiers took them, not the PKK.  Ahmet Sarli went to Sorp two or three hours later in the minibus. He told the soldiers that they had taken his children but they said that it was the PKK. He did not sign anything. The next day, he went to Tatvan on the minibus and went to see the public prosecutor. He told the prosecutor that the soldiers had taken them but the prosecutor said that it was Takosin. The prosecutor accepted his petition and gave him a piece of paper. Ahmet came back that day and the next day, they all left for Tatvan. After two or three days, they went to Bitlis to apply to the public prosecutor there. Ahmet also applied to the governor. He said that he gave a petition but did not get a paper in return. After two months, Ahmet went to the HRA in Diyarbakir with his son. He had received no reply from the authorities. After they left, the village was burned down by the Government as “who else could it be?”

118. About a year after they arrived in Istanbul, Ahmet was called to the prosecutor. He was ill, suffering from cancer and could stand only by taking medicines. He was not fully aware of what was going on around him or what he was saying. Ahmet did not sign anything. He had already been in poor health when they took his children. After that he was strongly affected and almost completely confused.

(5) Ali Ilban

119. The witness was born in 1952 and was living in Tatvan. In December 1993, he was living in Ulusoy, which had about 45 houses. He had been elected muhtar in 1993. He did not recall any disagreement about the election or with the Sarli family. He later recalled that there had been a disagreement between Fadil Tarçin and Mehmet Emin Güney. Nobody had run for the elections and the station commander had told him that he should put his name forward. The village had good relations with the security forces.  The nearest gendarme station was at Sorp. Yavuz Gürbüz was the station commander. Dursun Ertügrül was the Tatvan district gendarme commander, based 35 km away. The PKK used to come to the village. The villagers were forced to give them help, then they went away. There were no sympathisers in the village. The station commander had told them to protect their school as the PKK might come to burn it. So, they were guarding the school themselves. They guarded it for five days and after that the village was destroyed. The village used to keep animals. There were farmlands and also orchards. The village was one to one and a half kilometres from the Van-Tatvan road. There was a mountain and a forest on the upper part and the other part, where the road was, was open. Behind the village were mountains, forests, oak trees.

120. On the night of the incident, he was sick in bed. At around 22.00 or 23.00 hours, he heard gunfire (at another point, he said at midnight or half past one). He went outside and looked around. The villagers had gathered around the school. He was told that five or six people dressed like the PKK had come to the school, where the villagers on guard had opened fire. The men fired, ran away and a half hour, hour later came and took the children away. The shooting was coming from the hill, from the school and lasted only a short time. He went home after that.  To further questioning, he recalled that Ramazan Sarli had been with the villagers at the school and was taken later from his house. He heard about the abduction at about 01.00 hours and talked to Ahmet then.

121. The soldiers arrived at sunrise, carrying out searches. This was about 05.30 hours. He did not recall the part of his statement which referred to 03.30 hours. The men gathered outside the mosque. There were about a hundred soldiers. Captain Dursun was in command. Yavuz Gürbüz left for another incident.  He saw military vehicles but no tanks. He went later to the station together with the four villagers from the school, the girl’s mother and father to make statements. It was Abdullah Milyas and Ismet Orakçi who told him that the terrorists kidnapped Ramazan and Cemile. They said that their faces were stubbled and they wore mekap shoes (heavy footwear) on their feet. They had baggy trousers and salpa (kind of headgear) on their heads. No-one mentioned masks. He had never seen soldiers wear masks. The soldier found two explosive devices in Fadil’s house and he was taken away for about 28 days.

122. The witness had talked to Ahmet Sarli. Ahmet said that the men wore PKK dress too. He had heard of “Takosin” - she came to the village and tried to persuade the girls. Everyone knew her.  The PKK wanted food and to recruit the young people.

123. After that day, the villagers started to leave the village. He left after a week or ten days. There was no choice as the PKK were always coming to the village. After six months, the village was burned. The State burned all the villages because of the terrorists. If there had been no terrorists, the State would not have done so - the State built and did not burn. He did not see the burning himself. To further questions, he emphasised that the State did not burn villages.

(6) Ismet Orakçi

124. The witness was born in 1969 and was living in Tatvan. In December 1993, he was living in Ulusoy. Anadere was behind the village. There was a forest behind the village, at about 200-300 metres. In front of the village the land was flat. His house was about 1,300 metres from Ahmet Sarli’s.

125. On the night of the incident, at about 22.30 hours, he heard gunfire coming from the school. The clash lasted about five or ten minutes. All the villagers gathered and then went back to their homes. At about 03.30 hours, six men came to his house, forcing him to open the door. They threatened him, telling him to show them Ahmet Sarli’s house. They hit him. He took them to the house. They knocked at the door and went inside. He waited near the wall. Five minutes later, the mother and father started crying, shouting that their children had been taken. The men told the witness to stay at the house. He stayed in Ahmet’s house until morning. There was more shooting after he arrived at Ahmet’s house. He stated that he heard before the Delegates for the first time that Cemile was taken from Abdullah Milyas’s house. When his statement was read to him, he denied saying anything about Ramazan and Cemile being taken away as he had not seen this happen or any vehicles.

126. When asked to describe the men, he said that they were definitely not Turkish soldiers. He said that he could describe one, the others staying concealed in the dark, though he later said that some of them came into the house. They were 25-30 years of age. The one he saw wore a black short jacket and trousers (not a uniform), a black and white scarf round his neck, a thin beard and mekap shoes (heavy footwear). He had a kalashnikov. He was not wearing a mask. He spoke Kurdish. This one was the commander. The others wore similar clothes and shoes. The witness did not see any piece of paper in their hands. The door was opened without being broken.  All the men went inside. He did not see who was with them when they came out after five minutes. He only saw from a sidelong glance that they were dragging some-one. The family did not tell him who had been taken but cried for their children. At about 06.00 hours, he went home.  The security forces arrived in the village. His house was searched. He was questioned by the captain.  He gave his statement later at the station, signing it after reading it.  He went on his own to the station.

127. He had heard the name “Takosin” in connection with brigandage, massacres etc but did not know if it was a man or a woman. He guessed that maybe Ahmet Sarli had been threatened to make him complain that the soldiers had taken his children. He had not talked to Ahmet Sarli after that time. He had heard from other villagers in Tatvan that Ahmet had filed a complaint with the HRA.

(7) Abdullah Milyas

128. The witness was born in 1952 and living in Tatvan. In December 1993, he was living in Ulusoy. His house was 250-300 metres from Ahmet Sarli’s. The PKK used to come to the village, taking food, sometimes gathering the people and talking to them. He had seen them twice in the village. Sometimes they had red scarves, or sort of purplish as well as black and white scarves. Some wore normal clothes, others wore baggy trousers with waistcoats. The PKK came mainly from Anadere, one and a half to two hours away. He had heard of “Takosin”, a woman said to be in charge of the region.

129.  At about 22.30-23.00 hours on 23 December 1993, a clash broke out at the school where villagers were keeping guard. The villagers went out to see if the guards were hurt. The crowd dispersed to their houses, including the guards. He did not hear any more firing after that.

130. Cemile was at the witness’s house showing his daughters embroidery. At about 03.30 hours, there was a knock at the door. Ramazan spoke, asking if Cemile was there and asking for her to come. The witness said that she should be left to spend the night in his house. Ramazan told him to open the door. The witness did so and saw there were armed men with him. They asked for Cemile and Ramazan identified her. The men asked why she was at the witness’s house and they explained. The men took Cemile, Ramazan and the witness. They asked him to show them the way. There were two roads - a highway for cars and a path. He showed the men the path. The men told him not to come any further and he went home.  It was a very dark night.

131. When asked if Cemile went with the men voluntarily, he answered that they said, “Come” and that she was not in a position to say that she could not come.

132. The two men who entered the house were 20-25 years of age, wearing civilian clothes - black and white scarves, mekap shoes (thick shoes often worn by shepherds, farmers) - with a month’s growth of beard. The two outside near the street lamp were also wearing civilian clothes. The men spoke Kurdish all the time.

133. The soldiers arrived in the village at sunrise and carried out searches. He was not questioned. He had told the muhtar what had happened and supposed he told the soldiers. He had not been asked to make any statement. He moved from the village one week later. The villagers left as they no longer felt safe, because of the clashes and fearing that if they raided the village their children might be shot. Seven to eight months later, the village was burned.

(8) Ali Veris

134. This witness stated that he joined the PKK in 1989. He was in the 2nd region of Garzan, closer to the Siirt region. He was a team commander, second in command of the region under Buyuk Orhan and had a big radio. They transmitted information about new recruits to “Cemal” in Northern Iraq. Cemile and Ramazan Sarli had been supporting the PKK since 1990-1992, by way of propaganda and logistics. In 1993, “Mahir” went to the village of Vanik (Ulusoy) to hold a meeting. As their identities had been disclosed, the PKK took them to the mountains with their consent. They were in the 1st region of Garzan (the area of Tatvan and Bitlis) where “Berham” was the leader. Berham was in command of the team that took them. They got that information a few days after it happened.

135. When asked to explain further the reason for the abduction, the witness stated that the villagers knew about the activities of Cemile and Ramazan and were against them but he did not know if their identities were revealed to the authorities or if the muhtar knew as it was not his region. Members generally did not go from one district to another or interfere in each other’s districts.

136. Some time later, Cemile and Ramazan wanted to run away, not liking the conditions in the mountains. The PKK did not accept defections but executed such people, saying that they were killed in clashes. It was said first that Ramazan and Cemile had been killed in a clash. Then some time after that, after he had surrendered, it was said that they had been executed by the organisation. He knew about the execution because it happened in his region. It happened during or about 1994, (in 1993 or towards 1994) - he could not remember. “Berham” informed him on the radio that they had been killed during an attempted ambush on the security forces during which seven or seventeen terrorists died.  Their code names were “Roken”  (Cemile) and “Dilgeç” (Ramazan). At one point, he said that it was only the code names which he was told over the radio. At another point, he said that after they had been executed he was told the real names and code names. As they were dead it was not important not to mention their names any more. When they joined the real names and code names were also given. He learned that in fact they had been executed in about February or March 1995, before he surrendered. Musa, a Syrian, who moved from the 1st to the 2nd district told him. He could recall the code names of three other persons killed in the clash but not their real names. He remembered Ramazan and Cemile as they had been killed by the organisation. Also many people could have the same code name and to identify them the real name was needed.

137. The witness left the PKK in 1995. During his six years, the PKK attacked and burned all the villages, including Ulusoy. They burned them so that the people would not come back and limit their facilities.  They left a few houses intact to use. He had not been to Ulusoy. He would have heard that it was burned on the radio, possibly in the summer actions of 1994. The witness began to say that when he surrendered, he told the authorities about Ramazan and Cemile but then said that he remembered about them recently. When asked if he had been tried by a court, he said that the trial was still pending in the Diyarbakir SSC and that he had asked to benefit from the remorse law. He had been detained until June 1996. He had given a statement to a public prosecutor.

138. When asked about “Takosin”, the witness initially stated that he did not know about it but then recalled that there was such a person in the 3rd or 4th district, probably the 3rd. He had given information about the clash in which seventeen people died to the authorities. He did not tell the SSC about it.

(9) Kamil Kaya

139. The witness, born in 1974, joined the PKK in 1992. In December 1993, he was carrying out activities close to the region, in the 3rd district of Garzan. He was a high ranking member of the PKK. As he had certain responsibilities, as a result of meetings and portable radio communications, he learned that Ramazan and Cemile Sarli had been helping the organisation for some time, that their identities had been disclosed and as they were unable to carry out their activities any more they had been taken to the mountains. He said that their real names were not known but their code names.  He never met them personally.

140. Adapting to PKK life in the mountains was difficult. He heard in meetings and on the radio that these two people were strongly insisting on going home and due to the risk that they would disclose information to the authorities, they were executed. Altogether, he estimated that there were about 1,000 to 1,200 persons based in the Garzan general district. Ulusoy was in the 1st district. He heard about the abduction from Berham, leader of that district, on the radio. Berham said they had been abducted to prevent them giving information to the security forces in the event that they were detained by the security forces. He remembered the man’s code name was “Dilgeç” and did not remember the woman’s code name. Only the code names were given not the real names on the radio. He knew that the two people were from Vanik. He only learned a few days before that this was the village of Ulusoy and heard the names Ramazan and Cemile Sarli when he received the summons to give evidence. There was only one brother and sister from there involved in helping the PKK - that was how he knew they must be Ramazan and Cemile Sarli. Berham told him on the radio that they had been killed. He said initially that the information was given briefly as in “As was found necessary the person has been killed.” but then said according to his information they had been killed as they had tried to run away. He clarified that he was told clearly on the radio that they had been executed but that they would announce to the others that they had been killed in the clash.

141. The PKK would use villages to provide for their needs. When the village realised that the PKK were causing them harm, they drew back. The PKK then used a policy of intimidation, trying to coerce support by force, carrying out actions and sometimes destroying the village. To ensure that they did not lose sympathy they made sure that these incidents were reported wrongly. He did not know Ulusoy himself. He was in the adjacent region and it was not possible to go from one region to another without permission. He knew the village had a constant connection with the PKK. He gave an example of the PKK executing someone who had begun to disobey the organisation. As the person belonged to a strong, well-known family, the witness was sent to them to say that the person had joined the organisation and could not return. On his surrender, he gave information to the authorities and showed them where the body was buried. He was detained for one or one and a half years. His trial had concluded and he had benefited from the remorse law. The time spent in prison was deemed sufficient and he was not detained again. He was not now under any obligation to give further information to the authorities. He had to consent.

142. He had heard of “Sefkan” while he was in the organisation but did not know his real name till after he surrendered. “Takosin” was a radio call sign used in Berham’s group when using wireless communications. He had also met many people with that code name, including his own 3rd district. When he surrendered he had not told anyone about this incident as it had not occurred in his district and no-one asked him about it. He was surprised to be summoned to give evidence as he did not know the real names and did not understand who they were. Then this morning, before the hearing, he saw some people from the village and he asked them the Kurdish name and they told him it was Vanik. He remembered it then. However he had told the authorities that he had been active in Garzan at a high level, and in contact with other groups.

(11) Dursun Ertugrul

143. The witness was born in 1961. In December 1993, he was Bitlis-Tatvan district gendarme commander. He was in charge of three outlying stations, including Yelkenli which was 30 km away under the command of Sergeant Yavuz Gürbüz. Ulusoy was under Yelkenli’s jurisdiction and about seven to eight kilometres distant from the station. There were good relations with the village. Gürbüz would have visited it at least once a month or every two months. He had visited it himself several times before the incident. He knew the muhtar who visited him from time to time. He did not know the Sarli family.

144. Operations had taken place around Ulusoy. The PKK used the Anadere area frequently, which was to the south. In Ulusoy, a few families helped the PKK as in all the villages. The Sarli family was suspected in this respect before the incident, from what they had heard on their visits to the village. He did not recall any questioning or searching of the Sarli family. It was only that they had given food, shown more interest perhaps. The authorities had contacts in the villages who gave them information too. He denied that the muhtar would have been instructed to defend the school but considered he might have tried of his own initiative to stop the PKK wrecking the school.

145. The witness did not recall being involved in any operation at the end of December but did go to Ulusoy to investigate after the incident on 23 December 1993 with Servet, the deputy commander from Yelkenli. Gürbüz was busy till noon with a task related to another incident. There had reportedly been a clash with terrorists. They went to find out about casualties and damage and to carry out a search. He was not there during the night but arrived at first light, 05.00 to 6.00 hours, with two or three teams. He had heard from the Yelkenli commander that at about 03.30 hours there had been a clash, that the fighting was over and that there was no emergency or request for assistance from the villagers. The Yelkenli commander heard it from the duty mechanised team which was providing security on the highway. He waited until daylight to go.

146. The mechanised team (about 20 men in four armoured vehicles) was on duty to secure the road from the PKK. While moving, they heard about the incident and that there had been an exchange of fire between the PKK and citizens. At around 03.00 hours the PKK above the village opened fire on the team who were on the road, thinking that they had arrived to help the villagers. The team fired back. The firing was at 700-800 metres and no damage was caused to the team. He heard the clash only lasted 15 to 30 minutes. As he understood it, there had been PKK in the village and a group above the village providing protection.  The mechanised team wore plain military green uniforms. His own men did so too but had caps not berets. He did not remember who used to wear or if they themselves would have worn camouflage uniforms at that time for field purposes. He had never come across men wearing masks as described. He had no special teams under his command but on that morning he had assigned to him a 2B team (a special team of commandos under the security commander trained in counter-terrorism), the mechanised unit and an internal security team from his own Yelkenli gendarmes.

147. In the morning, he established that there was minor damage to some houses, windows broken and roof damaged at the school and that two children had been taken away by the PKK. The parents were crying about it. He spoke to Ahmet Sarli and gave instructions for the deputy to take his statement at the station. Sarli told him the PKK took his son and daughter, describing them as wearing posu  and speaking sometimes Kurdish and  sometimes Turkish. The witness did not know if the children left voluntarily or not. For that reason perhaps, the sketch map did not show the location of the abduction. It also appeared to have been omitted from the scene of the incident report. There were about 10-15 people whose statements had to be taken. When Gürbüz returned he and his deputy worked on it. They searched all the houses - the village was small, about 15-20 houses. A demolition charge was discovered in one house. The man was detained and arrested. When he arrived, the mechanised team was on the asphalt road about 700-800 metres from the village.  He thought that they must have withdrawn after 03.30 hours and come back to the road later. It had not entered the village. They would have to obtain permission to leave the road to respond to an incident. He would have known if they had requested permission. The statements of the villagers only meant that the team was on the road near the village.

148. The witness had no recollection of being involved in the investigation into the abduction subsequently. It was the station who drew up the incident report, sketch and statements. He did not recall the letter of 27 December 1993 which he signed in reply to the public prosecutor. He did not think he would have needed to discuss it or consult documents as he knew they were not holding the two people. He appeared to say that when he went to the village people had told him that “Berham” and “Takosin” were involved in the abduction. He already knew the general organisation and leaders of the PKK in his area where he had served for three years. He did not recall if “Takosin” was a man or a woman but knew he or she worked in “Berham’s” group in the 1st region. While they listened into the PKK radio communications, it was coded. The PKK used code names, never real names. Even their own friends would not know their real names. He emphasised that the PKK never used real names when giving information. He agreed that one code name could be given to several people, however “Berham” and “Takosin” were unique in that region. He had heard the code names “Roken” and “Dilgeç” before but not their real names. The security forces did not use code names. They only used codes in radio communications.

149. The witness left his post on 2 August 1994. He did not know what happened to the village of Ulusoy. He had heard that it was evacuated as the villagers were fed up with the PKK.  When asked why Ahmet Sarli would have blamed the soldiers, he said that he could have acted to obtain money. The people in the area had many children, whom they could not support anyway and it meant nothing to them if one died.

(12) Yavuz Gürbüz

150. The witness was born in 1966. From December 1991 to August 1994, he was station commander at Yelkenli, with 50 men, two warrant officers and three special sergeants. He had 15 villages, 11 hamlets under his jurisdiction. He was on good terms with Ulusoy which he knew well. He knew the muhtar but not the Sarli family or Ahmet Sarli until the incident happened. He did not remember if there were PKK supporters in the village but thought it was possible that Captain Ertugrul suspected the Sarli family. The Captain might know more than the local station due to his wider contacts. The witness had his own local informers but did not remember if they said anything about the Sarlis. He agreed that he might have suspected generally that some villagers were pro-PKK. He did not remember if he carried out any operations in Ulusoy.

151. On 24 December 1993, he had been carrying out an investigation in another village. At about 03.00 or 3.30 hours the mechanised team on the road reported that they had been fired upon from above Ulusoy village. They did not ask for permission to enter the village. He reported the matter to the Tatvan district gendarmerie.  At around 05.00 hours a team arrived at Yelkenli with the district gendarme commander, picking up his deputy to carry out the investigation. He left for his duty at the same time. He arrived in Ulusoy at about 14.00 or 15.00 hours. The commander and others were still there, investigating. He later learned from a contact in another village that “Takosin” had come to the village and taken Cemile and Ramazan Sarli. He invited the villagers to the station to make statements. He did not visit the Sarli house himself. He denied the allegations that he had done so.

152.  He thought, though could not remember exactly, that they had taken the statement of the muhtar, Abdullah Milyas from whose house Cemile was taken, Ahmet Sarli, Ismet Orakçi and others. When he was summoned to give evidence, he asked Tatvan to send the statements and he saw that he had taken Abdullah Milyas’ statement. When it was put to him that this statement had not been provided to the Commission, he appeared to doubt whether he had seen it or not and that maybe his name had merely been mentioned. He accepted that it would have been his responsibility to take the statement of Abdullah Milyas. He thought that the abduction might have been omitted from the scene of the incident report as they might not have found out about it till later. Later, he agreed that it was overlooked in the sketch map as the abduction was known when he arrived in the village. In his later report to the public prosecutor, he did not mention the information about “Takosin” as it was only real names that were of any importance. He was not sure what sex “Takosin” was only that he or she operated in the rural area of Tatvan. If the public prosecutor felt the documents were incomplete, he would send the necessary instructions.

153. Mechanised teams, as he did, wore plain khaki uniforms. He recalled that the mechanised team was outside the village and that the 2B team was in the hills above. What Cemile Sarli alleged about the security forces was false and untrue. He denied that he changed her statement.

(13) Servet Urhan

154. The witness, born in 1972, had been second in command at Yelkenli station from August 1993 until 1996. He recalled that Ulusoy was a good village. He had not carried out any operation there. He knew there were some PKK sympathisers in the village but did not recall who. He did not meet any of the Sarli family until the incident.

155. At about 05.00 or 6.00 hours, he received orders to accompany the district commander to the village as during the night the PKK had opened fire on vehicles on the road and there had been a brief clash. The station commander arrived later, about noon. When the witness reached the village, the mechanised team was there on the road already. People in the village said that Ramazan and Cemile had gone voluntarily with the PKK. No-one mentioned forcible abduction. He saw no contradiction in the statements of the villagers recorded at the station but later, in answer to the Government Agent, conceded it was possible that they had been abducted.

156. In the village, he checked the school for damage and participated in a search. He was with the muhtar during the searches. Captain Dursun talked to people as did warrant officer Yavuz when he arrived. They told people to come to the station to give statements. He was present when the statements were taken but did not remember if Ahmet Sarli gave on.  He rejected as slander allegations that soldiers took the two people.

(14) Mustafa Yabanoglu

157. The witness, born in 1965, was prosecutor in Tatvan from May 1993 to September 1996. The abduction of Cemile and Ramazan Sarli was reported to him by the gendarmerie who sent the documents when the investigation was completed. They included the statement of the guards at the school, the statement of the mother, a sketch map and a scene of incident report. As far as he could remember, the two people were abducted from the same house. He did not remember a statement from the father in the file. He considered the statements taken to be sufficient - the offences were clear. He did not order any other steps to be taken but sent the file to the SSC. He could not recall the gendarme letter of 27 December 1993 without seeing the letter to which it replied. But he agreed that it could be inferred that a complaint must have been received that the two people were in custody. He did not remember if he received a petition from Ahmet Sarli. When shown Tevfik Sarli’s letter and the reply, he remembered them though did not sign them himself- it was the other prosecutor.

158. The witness stated that code names of PKK terrorists were of no use to the prosecuting authorities. He had not received any information about the alleged execution of Ramazan and Cemile Sarli. He did not remember whether he informed Cemile Sarli about the decision of lack of jurisdiction. Since it was open to appeal, it should have been notified, and that was usually done by post and a signature obtained to show that it had been served.

159. At that time the area was under intense pressure from the PKK. No-one walked the streets of Tatvan after dark. There were large numbers of terrorists in Anadere. Civil servants were killed. Bombs were placed in the courthouse in 1992. The security forces could not go to particular places without a large military operation. It limited their possibilities of gathering evidence. Many people refused to give information for fear also.

(15) Halis Küçüsubasi

160. The witness, born in 1941, was prosecutor at the Diyarbakir SSC from June 1990 to October 1996. He had no independent recollection of receiving a petition about Ramazan and Cemile Sarli. When shown documents, he recalled being in charge of the case from 19 January 1994 until he left. They issued warrants to the various authorities for the suspects to be apprehended and also wanted to take the statements of the people who had already given statements but he could not find them. With prompting, he recalled that the latter initiative flowed from the lodging of the complaints with the Commission. The documents addressed to the European Human Rights Project were in the file. He confirmed that the only statements that they had were the ones given to the Commission. Ahmet Sarli’s statement to the Human Rights Project was not a sufficient basis to warrant taking statements from commanders of the security forces. In light of his statement to the prosecutor in 1995, it would not have been fair to investigate the security forces.

161. No information had been received in response to their instruction for statements, confessions, information etc to be sent to the SSC. He did not recall seeing the letter of 27 December 1993 from the district gendarme to the Tatvan public prosecutor. It was new information to his recollection. If he had had it, he would have passed it on when writing instructions for the other investigating authorities and requested that to be investigated also. The statements made by Ali Veris and Kamil Kaya about the execution of Ramazan and Cemile Sarli were also new information. He took note of it, saying that their confessions would have to be checked. He would have been very happy to receive information about these confessors in 1996.

162. He recalled that the instruction of 26 April 1996 sent by the SSC was not sparked off by new information but aimed at having their previous warrant investigated more firmly and effectively. When asked why he did not request statements to be taken from other family members as eye-witnesses, he said that he did not know that they were in the house and also pointed out that the gendarmes had been told in his instruction to obtain any other evidence, including that of eye-witnesses. He agreed that it was important to obtain every item of evidence, particularly eye-witness evidence. He would have expected there to be something in the file if a gendarme officer took the view that the persons had joined the PKK voluntarily. There would be an index in file 1994/505 showing all the documents in it.  He also referred to the difficulties in obtaining information and evidence due to the fear people had of the PKK. The document from Tevfik Sarli was a request for information as far as he understood.

C. Relevant domestic law and practice

163. The Commission has referred to submissions made by the parties in this and previous cases and to the statements of domestic law and practice recited by the Court (see eg., Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, paras. 56-62, and Tekin v. Turkey judgment of 9 June 1998, paras. 25-30, to be cited in Reports 1998).

1. State of Emergency

164. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security forces and members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

165. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.

166. The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.”

2. Criminal law and procedure

167. The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (section 450). It is a criminal offence to subject someone to torture or ill-treatment (Articles 243 and 245) and to issue threats (Article 191).

168. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

3. Prosecution for terrorist offences and offences allegedly committed by members of the security forces

169. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.

170. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Decree No. 285, Article 4 para. 1, provides that all security forces under the command of the Regional Governor (see paragraph 165 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecutor of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State.

4. Constitutional provisions on administrative liability

171. Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the Administration are subject to judicial review ... The Administration shall be liable for damage caused by its own acts and measures.”

172. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

173. Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.

5. Civil law provisions

174. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

175. The Commission has declared admissible the applicant’s complaints:

- that her son, Ramazan Sarli, and her daughter, Cemile Sarli, who had gone missing, had been deprived of their lives;

- that their disappearance discloses torture and inhuman and degrading treatment;

- that her inability to discover what has happened to them discloses inhuman and degrading treatment;

- that they have been arbitrarily detained without the application of the requisite procedural safeguards;

- that there is no remedy available in respect of these matters;

- that these matters disclose discrimination;

- that these matters disclose restrictions on Convention rights imposed for ulterior purposes.

B. Points at issue

176. The points at issue in the present case are as follows:

- whether there has been a violation of Article 2 of the Convention;

- whether there has been a violation of Article 3 of the Convention in respect of the applicant’s son and daughter;

- whether there has been a violation of Article 3 of the Convention in respect of the applicant herself;

- whether there has been a violation of Article 5 of the Convention;

- whether there has been a violation of Article 13 of the Convention;

- whether there has been a violation of Article 14 of the Convention;

- whether there has been a violation of Article 18 of the Convention.

177. The applicant has alleged since the taking of evidence that Mahmut Sakar, the lawyer in Turkey who took her husband’s statement which introduced the application, has been subject to prosecution disclosing an interference with her right of individual petition contrary to former Article 25 of the Convention.

C. Evaluation of the evidence

178. Before dealing with the applicant’s allegations on these aspects, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to former Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:

i. There have been no findings of fact made by domestic courts as regards the subject-matter of the applicant’s complaints. The Commission has based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proceedings; in the assessment as to whether or not the applicant’s allegations are well-founded the standard of proof is that of “beyond reasonable doubt” as adopted by the Court. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).

ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in some cases via Kurdish and Turkish into English): it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates.

iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. It was also hampered by a failure of the Government to provide documents and information relating to the domestic investigation and to two ex-members of the PKK who provided oral testimony before the Delegates. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant evidence. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States’ primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1. General background

179. Ulusoy, known in Kurdish as Vanik, was a small village of not more than 50 houses, situated in the region of Tatvan in the south-east of Turkey. The nearest gendarme station was 7-8 km away at Yelkenli, known to some witnesses as Sorp or Resadiye. Ulusoy was itself about 35 km from Tatvan, where the district gendarme headquarters are based.

180. Ulusoy was about 1 kilometre from the highway leading from Van to Tatvan.  While the ground between the village and the highway was generally described by witnesses as being open and flat, there was higher ground behind the village and a forested area. About an hour to an hour and a half  behind the village to the south was the mountainous area known as Anadere. As elsewhere in the region in 1993, PKK activity was intense. Anadere was used by them as a base for their activities. Ulusoy lay in the so-called 1st district of Garzan (the name given by the PKK to this region) and was known by the security forces to be under the command of a man code named “Berham”. There was another terrorist known as “Takosin”, who was active in visiting the villages in this district. The existence of this terrorist was known to the muhtar Ali Ilban and had been heard of by the villagers Ismet Orakçi and Abdullah Milyas as well as the district gendarme commander Dursun Ertugrul and the local station commander Yavuz Gürbüz. The muhtar and Abdullah Milyas knew her to be a woman, while the gendarmes were unsure.

181. The village school was close to the main highway. In December 1993, it was closed. The reasons for this are unclear. It was however commonly feared that the school would be subject to attack.  The evidence, oral and written, from villagers indicated that the district gendarme commander Captain Dursun Ertugrul had instructed them to protect their village. Captain Ertugrul denied giving any such instructions to persons who were not part of the security forces or official village guards.  The Commission notes that this does not exclude that he might have nonetheless “encouraged” them to do what they could to protect their school. In any event for a short period before 23 December 1993 (ten days according to the applicant) villagers, armed with their own shotguns, stood guard during the night at the school.

2. The events of 23-24 December 1993

i. The incident at the school

182. On the night of 23 December 1993, four villagers, Kazim Aydin, Resit Tarçin, Yakup Çaca and Naif Ariç were at the school on guard. According to their statements taken by the gendarmes the next day, four to five armed men arrived in a vehicle below the school from the direction of the tarmac road at times given variously as 22.30 or 23.30 hours. After Yakup Çaca challenged the approaching men, it appears that the villagers started firing first and the men responded with automatic weapon fire. The shooting continued for not more than fifteen minutes before the men drove off in the direction of the tarmac road once more. The villagers gathered to see what had happened. They dispersed to their homes, the guards also.

183. The applicant relies on the statement of her husband Ahmet Sarli to the HRA that the men who came to the school were soldiers in a green military vehicle. She also points to the alleged improbability that the PKK would have arrived from the patrolled Van-Tatvan highway or that they would have fled in that direction. She suggests that the PKK would have been more likely to arrive on foot from the Anadere direction and departed in that direction. She also relies on the standard form operation report provided by the Government which she says is strong indication that a security force operation took place at that time in the vicinity of the village, perhaps an ambush of the PKK who were expected to arrive in the village. When the villagers challenged the soldiers arriving to position themselves near the school on the outskirts of the villagers, a clash mistakenly broke out.

184. The Commission notes that the incident report indeed refers to an armed clash having taken place at 22.30 hours at Ulusoy when security forces were in ambush positions round the village expecting the PKK to arrive for a meeting at the school. A conflict broke out when terrorists were seen at the school. Fire was also opened on the security forces from terrorists on the hill to the south. A description is given of intense firing, involving mortars and tanks, which continued until about 03.30 hours and which necessitated a request for reinforcements. Unfortunately, this document was not provided to the Commission before the hearing of witnesses and was not put to Captain Ertugrul, the district gendarme commander who gave oral testimony that there was no operation at Ulusoy that night. He described an altogether different scenario, according to which the PKK opened fire on a mechanised team patrolling the road near the village at about 03.00-03.30 hours, after which there was only a brief 15-30 minute conflict. The team, on his account, did not enter the village and would not have been able to do so without permission, which they did not request. On this version, the security forces did not enter the village until the morning at 05.00 to 06.00 hours after the applicants’ children had been taken away.

185. The Commission considers that the incident report casts grave doubts on the reliability of Captain Ertugrul’s evidence. As district gendarme commander, it would expect that he would be informed of operations conducted in his jurisdiction. Though the document is incomplete at the bottom and no signatory appears, it was sent from the Tatvan district gendarme command which was under his responsibility. It would also appear likely from the description of the units involved in the operation  that some of his own men were involved. Further, there is other evidence to support the incident report:

- the written statements of the villagers almost all refer to firing occurring after the incident at the school;

- the applicant in her oral testimony described heavy firing, which lit up the sky;

- Keyvan and Necla Sarli described firing as occurring over a long period during the night;

- the other villagers Ali Ilban and Ismet Orakçi also referred to more firing occurring. Only Abdullah Milyas recalled hearing no more firing after the first clash at the school.

186. The Commission also notes that notwithstanding Captain Ertugrul’s denial that the mechanised team would have entered the village they were already present on the outskirts of the village when he and Servet Urhan arrived at first light. He also had with him a special team, specifically trained in counter-terrorism. Their role in the events in the village is unspecified. However, Yavuz Gürbüz thought that the 2B team had been in the hills above the village - he did not specify when this was.  The Commission also notes the fact that the four guards who had apparently defended the school with some success abandoned their post immediately afterwards. While this might reflect their fear of further attack, it is also consistent with a realisation that the security forces were present and that their own role had become superfluous.

187. The Commission finds that an operation took place in close proximity to Ulusoy during the night of 23/24 December, involving heavy firing. While there is evidence, in the form of the incident report and the inferences which the applicant invites it to draw concerning the vehicle which arrived at the school, that there were also security forces at the school, it would appear at least likely that there were PKK men also in the vicinity. It notes that the applicant does not allege that the security forces were firing punitively at the village as a target throughout the night, as has been alleged in previous cases. On the evidence therefore, it cannot establish whether the men fired at by the villagers at the school were PKK or soldiers.

ii. The abduction of Cemile and Ramazan Sarli

188. The Commission finds the following can be established without difficulty. At about 03.00-03.30 hours, six armed men arrived at Ismet Orakçi’s house. While the muhtar claims he heard about the abduction at 01.00 hours, it prefers the written evidence of Ahmet Sarli and the oral evidence of Ismet Orakçi and Abdullah Milyas who were eyewitnesses. These six men required Ismet Orakçi to take them to the house of Ahmet Sarli. There, they found that Cemile Sarli was absent and leaving Ismet at the Sarli house, took Ramazan Sarli to show them the house of Abdullah Milyas where Cemile was spending the night. They left that house with Abdullah, Ramazan and Cemile. After a while, they released Abdullah and disappeared with Ramazan and Cemile, who were never seen by any of their family or the villagers since.

189. The crucial point of disagreement is whether the six men were soldiers or members of the PKK.

190. The evidence which supports the allegations that they were members of the security forces includes principally:

- Ahmet Sarli’s statement to the HRA of 2 March 1994;

- the oral evidence given by the applicant and her two daughters-in-law, Necla and Keyvan, all of whom were present during the incident.

191. An inference may also be drawn from the letter of 27 December 1993 from the gendarmes in answer to a letter from the Tatvan public prosecutor that an allegation had been made to the prosecutor that Ramazan and Cemile had been taken into custody. The letter from the public prosecutor has not been provided by the Government despite numerous requests. The Commission is satisfied that a complaint was made shortly after the event that the security forces were responsible for the disappearance of the applicant’s children and that an inference may be drawn that it derived from the applicant’s family. A similar allegation was made to the Bitlis public prosecutor by the Sarli family on 31 January 1994.

192. There is considerably more evidence which identifies the six men as members of the PKK. This includes principally:

- the written statements taken on 24 December 1993 from the applicant, the muhtar, Ismet Orakçi and the four village guards;

- the written statement taken on 11 January 1995 from Ahmet Sarli by a public prosecutor;

- the oral evidence given by two eye witnesses Abdullah Milyas and Ismet Orakçi which describe the men as wearing civilian clothes and items of dress consistent with PKK usage;

- the oral evidence of the two “confessors” Ali Veris and Kamil Kaya, who as members of the PKK, alleged that Ramazan and Cemile Sarli were taken to join the PKK and were executed when they tried to return to their home;

- the oral evidence of gendarme witnesses that Sarli family were known sympathisers and Ramazan and Cemile Sarli had left voluntarily.

193. There are difficulties with the evidence on both sides.

194. The applicant has argued that the way in which the gendarmes took the written statements is open to doubt - in particular, the way in which the statements of the four villager guards mirror each other and refer to an event (the alleged arrival of the security services at 03.30 hours outside the village) which they did not witness. She also contends that her own statement was recorded inaccurately as she maintained, and always had, that the soldiers took her son and daughter. The applicant also points to the failure of gendarmes to take a statement from Ahmet Sarli, even though he went to the station after she did, or from another key witness Abdullah Milyas. She relies, inter alia, on these elements as indicating that the gendarmes suppressed and distorted the evidence given by the people from the village.

195. The Commission notes the patchy nature of the investigative work of the gendarmes (see further below) but finds in the circumstances of this case that this is as equally consistent with negligence and bad practice as with deliberate manipulation of the evidence. The written statements give largely similar but not identical versions of events and are also supported by the oral evidence of Ismet Orakçi and Abdullah Milyas. The key issue in this respect is whether the applicant’s oral evidence, supported by her daughter-in-law, or their oral evidence is to be preferred. The Commission considers their respective reliability and credibility below.

196. As regards Ahmet Sarli’s written statement of 11 January 1995, the applicant has submitted that he was seriously ill at the time, vulnerable to pressure and his state at times gave rise to doubts as to whether he knew what he or others were saying. Since however Ahmet Sarli died before the hearing the Commission was unable to obtain his evidence on these matters. It has accordingly accorded this written statement less weight vis-à-vis the oral testimonies received in this case. On the same basis, the Commission cannot place strong reliance on the written statement by him submitted from the HRA in support of the application.

197. Turning to the oral evidence of Abdullah Milyas and Ismet Orakçi, the Delegates found these witnesses to be frank and convincing in the way they told their stories. As pointed out above, the latter’s evidence was largely consistent with his written statement and the Commission finds no element in the evidence of either man which casts doubt on their credibility. The applicant has submitted that Abdullah’s account which has him acting as a guide for the PKK for a short distance and not accompanying the group to the school as alleged in her account is incredible as the PKK would not need a guide if they had previously visited the village. Since however on everyone’s account, they used Ismet and Ramazan to show them to various houses, it seems that the men had no detailed knowledge of the village. The applicant further submits that Ismet Orakçi was clearly frightened at the time and since. Ahmet Sarli had stated that both men refused to give evidence for him to the HRA since they were afraid. The Commission’s Delegates found no indication that these two witnesses were motivated by fear in giving their testimony. That Ismet Orakçi was frightened when six armed men came to his house in the middle of the night does not appear in the least surprising nor does it provide convincing proof in itself that he would be unlikely to give truthful evidence about it after the event. The Commission does not disregard the fact that witnesses from the south-east have demonstrated reluctance to give evidence against the security forces in previous cases but finds no evidence of that factor operating in respect of these witnesses.

198. The Commission gives little weight to the oral evidence of the two “confessors”. The account of Ali Veris was riddled with contradictions while Kamil Kaya made an unfavourable impression in the cold-blooded manner in which he gave his testimony. Neither was found to be credible by the Commission’s Delegates who were concerned as to how they were identified as being able to give relevant testimony, since neither had apparently made any statement to the authorities that they had knowledge of events. Kamil Kaya claimed, somewhat fortuitously, that it was not till he met villagers on the morning of the hearing that he realised that he knew anything about the abductions from Ulusoy, which he had known previously as Vanik. It was suggested that as they were high ranking members of the PKK the Government would have known that they would have had relevant information. The Commission finds this incredible. Neither witness was a member of the 1st district and both were at pains to point out that members from one district were unable to involve themselves in the affairs of other districts. Both claimed to have obtained information about the alleged execution of Ramazan and Cemile Sarli over the radio. Ali Veris claimed that, as he was a high ranking officer in charge of a radio, he was informed of their real names, which he had also heard when they joined the PKK. He was not however informed officially that they had been executed, only that they had been killed in a clash. Kamil Kaya, also a high ranking member with a radio, had not been told their real names but had been given the confidential information that they had been executed. At one point, Ali Veris also seemed to be saying that he had learned of the executions after he had surrendered to the security forces. While both knew and recalled one incident in Ulusoy/Vanik in the 1st district, neither were apparently aware of the existence of a female terrorist code named “Takosin” well-known as active in that area. The Government have not been able to provide any written statement from these witnesses referring to the alleged execution of Cemile and Ramazan Sarli and have not explained how they identified them as witnesses. Consequently, the Commission finds their evidence unsatisfactory and unreliable and will not base any findings of fact on their testimony.

199. The evidence that Ramazan and Cemile Sarli were PKK sympathisers consists of Captain Ertugrul’s oral testimony, the standard form incident report, which derived from his command and the two “confessors”. The Commission has discounted the evidence of the confessors. Captain Ertugrul based his evidence on information which he had received from State informers in the villages. However, it is to be noted that the two other gendarme officers from the local station, who might be expected to know more of the locality, had no knowledge that the Sarli family were suspected sympathisers. Servet Urhan expressed the opinion nonetheless that the two Sarlis had left voluntarily with the PKK, but was unable to give any firm ground for that belief beyond that this was being said in the village. As pointed out by the applicant, all the written statements referred to their abduction. The oral evidence of the applicant and Keyvan and Necla Sarli also indicated that the men were using force. Ismet Orakçi referred to seeing the men drag some-one out of the Sarli house while Abdullah Milyas described Cemile Sarli as acting under duress. The Commission finds therefore that there is insufficient evidence to conclude that Ramazan and Cemile Sarli left with the men voluntarily.

200. The remaining factor to be assessed is the credibility and reliability of the oral evidence given by the applicant and Keyvan and Necla Sarli. The Commission notes that their description of the incident at the house when the men arrived varies in some details. According to the applicant, three men entered the house, wearing camouflage uniform, one of whom wore a red mask. Keyvan said that the three men all wore red masks, specifying that they had beards and moustaches attached to the masks. According to Necla, all six men, three of whom had masks, came inside. She and Keyvan described them, in contradiction of the applicant, as speaking only Turkish. The Commission has not heard in any previous case of a practice of any security forces wearing masks. The masks as described also appear quite remarkable. It observes that Keyvan and Necla claimed to have seen special teams in Tatvan wearing such masks. The applicant submits that it is not surprising that special teams carrying out abductions would seek to conceal their identity and, once that is accepted, the nature of the covering or mask used is incidental.  The Commission has also considered whether the bizarre element of the masks could be regarded as adding to the likelihood of its truth since it would appear an improbable detail to fabricate.  Nonetheless, the Commission finds this aspect of their testimony unconvincing. It notes that the Delegates found the applicant, who was relatively old, to demonstrate a selective memory, in particular in categorically denying recent events, including her meeting the previous night with her own representatives. She was not altogether clear in her evidence on some points. Whether this was due to the lapse of time or her own advanced years, it detracted in the Delegates’ view from the reliability that could be placed on it. They also found that Necla, who was only sixteen at the time of events, gave an impression of being rehearsed in her account.

201. The Commission concludes, after careful consideration of the evidence and in light of the above, that it has not been established, to a standard of proof beyond reasonable doubt that the six men who came to the applicant’s house were from the security forces. It would point out, however, that it does not mean conversely that it is established that they were from the PKK.

3. Subsequent events in Ulusoy

202. Captain Dursun Ertugrul and the deputy station commander Servet Urhan entered the village at dawn. The station commander Yavuz Gürbüz arrived at some time at or shortly after noon. A search was carried out of the houses, the muhtar accompanying the gendarmes as they conducted it. While it appears that Captain Ertugrul talked to some of the villagers about the night’s events, the task of drawing up the incident report, damage evaluation report, sketch map and the taking of statements was assigned to Yavuz Gürbüz as the local station commander. Explosive devices were found during the search and a villager Fadil was taken into custody.

203. The applicant relied on Ahmet Sarli’s statement of 2 March 1994 and the oral evidence of the applicant and Keyvan and Necla Sarli to show, in support of her allegations, that Sergeant Yavuz came to the house with the muhtar and asked where Ramazan and Cemile were to which Keyvan replied that the security forces had taken them. The gendarmes and the muhtar denied this incident. While the Delegates were not impressed generally by the testimony given by these witnesses, the Commission finds insufficient basis to make any findings of fact on this aspect.

204. A number of villagers went to the station that day to make statements. These were the applicant, the muhtar, the four villager guards and Ismet Orakçi. Abdullah Milyas who had talked to the muhtar about his part in events was not summoned to give a statement by the gendarmes. The applicant did not mention in her oral evidence that Ahmet Sarli went to the station and stated that he did not accompany her as he was ill. Necla Sarli however stated that he went there some hours after the applicant.  Ali Ilban had yet a different version - that the applicant and Ahmet Sarli went together with him to make their statements. Yavuz Gürbüz seemed to recall taking a statement from him but was unsure. The Commission finds that there is no clear evidence on this point. What is established is that there is no written statement of Ahmet Sarli provided to the Commission, and none included in the list of file documents 1997/1214 from the Van SSC, which was sent the documents from the Diyarbakir SSC.

4. Domestic investigations

205. The Commission finds that a complaint that the security forces were involved in detaining Ramazan and Cemile Sarli was made to the Tatvan public prosecutor on or shortly before 27 December 1993 (see para. 191 regarding the inferences drawn from the letter of 27 December 1993 from the district gendarmes replying to the public prosecutor’s enquiry of the same date). It is satisfied that this derived from the applicant’s family. It notes that no letter of 27 December 1993 is listed in the ongoing investigation file 1997/1214 at the Van SSC. The only step taken by the Tatvan public prosecutor was to enquire from the district gendarme command whether they held the missing people. Captain Ertugrul on his own account made no investigation and discussed the matter with no-one as he stated that he knew that they were not in custody.

206. The Yelkenli gendarmes submitted the evidence which they had gathered to the Tatvan public prosecutor - this consisted of the sketch map, scene of incident report, damage evaluation report and the statements of the applicant, Ali Ilban, Ismet Orakçi and the four villager guards. It is not established whether or not a statement was ever taken from Ahmet Sarli. There is no evidence however that one was ever received by a public prosecutor dealing with the case. The Tatvan public prosecutor Mustafa Yabanoglu considered this material was sufficient to establish the offences clearly and proceeded to issue a decision of lack of jurisdiction on 11 January 1994 in respect of the kidnapping of Ramazan and Cemile Sarli, sending the case to the Diyarbakir SSC prosecution as it concerned unknown perpetrators.

207. The Diyarbakir SSC prosecution sent a standard letter to district authorities on 24 January 1994 requesting them to continue the search for the kidnappers and to report every three months, providing copies of any relevant confessions, statements etc. No information was forthcoming. The request made on 11 January 1995 for statements to be taken from the applicant, Ahmet Sarli, Abdullah Milyas, Ali Ilban, Ismet Orakçi and the four villagers guards was in light of the communication to the Government of the application to the Commission. Only one statement, that of Ahmet Sarli, was taken. The public prosecutor, Halis Küçüsubasi, attributed this to the fact that all the villagers had moved and could not be found. However, a letter dated 11 April 1995 from the Tatvan district gendarmes gave the towns to which the persons were thought to have moved. There is nothing to indicate that any further steps were taken to trace any of them. That Ali Ilban, Ismet Orakçi and Abdullah Milyas could be found is indicated by their appearance after being summoned to the hearing in Ankara.

208. On 26 April 1996, the Diyarbakir SSC prosecutor sent a reminder, more than two years later, that the earlier instruction of January 1994 for reports to be made regularly as to the investigation, had not been complied with. He told the Delegates that this was to obtain more effective action from the district authorities. It is not apparent from the material provided that any information was forthcoming. While by this time the two confessors, Ali Veris and Kamil Kaya, had surrendered (in April and August 1995 respectively) any information provided by them or the fact that they might be in a position to provide information was not passed on to the Diyarbakir SSC public prosecutor, who told the Delegates he would have regarded it as relevant to the investigation. Nor is it evident that any information relating to the alleged execution of the two missing persons was passed on to the local gendarme station which made occasional reports to the Tatvan public prosecutor or to the Tatvan district gendarme command.

209. On 3 July 1997, the file was transferred following a decision of lack of jurisdiction, which has not been provided, to the Van SSC prosecutors who on 8 September 1993 made the standard request for reports to be made on the investigation every three months. It is not apparent that they have been provided with any further information. The latest report from Tatvan district gendarme command stated that no information was available concerning the abductors of Ramazan and Cemile Sarli but that the search was continuing.

D. As regards Article 2 of the Convention

210. Article 2 of the Convention provides:

“1. Everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

a) in defence of any person from unlawful violence;

b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

211. The applicant submits that since the Government seek to rely on evidence that Ramazan and Cemile Sarli are dead it is clear beyond reasonable doubt that they are dead. As they were also abducted from their homes by the security forces, the authorities must be deemed to be responsible for their deaths.  Additionally, there is an obligation to conduct an independent, effective and thorough investigation into an allegation of a probable suspicious death, which the local gendarmes and public prosecutors variously in charge of the file failed to comply with as they did practically nothing at all.

212. The Government deny that Ramazan and Cemile Sarli were taken by the security forces and appear to rely on the evidence that they were taken by the PKK. In their earlier observations, they stated that most youngsters abducted by the PKK tried to escape but if they were not successful they were usually killed in the attempt or executed. It appears that they rely on the evidence of the two confessors whom they had called to give evidence to the effect that this is what occurred in this case. The Government state that all necessary steps were taken in the investigation which is still pending before the State Security Court.

213. The Commission has found that there is no reliable evidence as to what happened to Ramazan and Cemile Sarli after they disappeared early on 24 December 1993. It has not accepted that the evidence of the confessors can in any way be used as a basis of a finding of fact. It has also found that it is not established beyond reasonable doubt that Ramazan and Cemile Sarli were taken by the security forces.

214. The Commission recalls that in the case of Çakici v. Turkey (Eur. Court HR, judgment of 8 July 1999, Reports of Judgments and Decisions 1999-...) a violation of Article 2 was found in respect of Ahmet Çakici, although there were no established findings of fact as to what had happened to him after he had last been seen in custody. The Commission notes however that in that case it was found that Ahmet Çakici had been detained by the security forces and his death could be presumed as there was an official report by the gendarmes of the finding of the body which had formed the basis of a public prosecutor’s decision not to prosecute. In the present case, the responsibility of the authorities for the disappearance has not been established, nor is there any official record documenting the alleged death of the two missing persons - only the uncorroborated and unreliable oral testimony of the two confessors. The Commission observes that the fears of the applicant that her son and daughter have been killed are understandable. However, on the basis of the evidence submitted by the parties, it is unable to attribute any liability to the respondent Government under Article 2 of the Convention.

215. Insofar as the applicant invokes the procedural obligations contained in Article 2, the Commission finds that in the circumstances of this application issues concerning the effectiveness of the investigation into the disappearance of Ramazan and Cemile Sarli fall to be dealt with under Article 13 of the Convention.

CONCLUSION

216. The Commission concludes, unanimously, that there has been no violation of Article 2 of the Convention.

E. As regards Article 3 of the Convention

i. Concerning Ramazan and Cemile Sarli

217. Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

218. The applicant submits that her son and daughter were detained without any guarantees as to their security of person. This would have exposed them to acute anxiety, while in addition Cemile Sarli was ill and required medical treatment for her kidneys. The authorities were also under an obligation to carry out an independent, thorough and effective investigation into allegations of torture, which they did not comply with (see Assenov and others v. Bulgaria judgment of 28 October 1998, Reports 1998-..., para. 102).

219. The Government reject any allegation that Ramazan and Cemile Sarli were ill-treated by the security forces.

220. The Commission recalls its findings above that it has not been established that the security forces took the missing persons away. In these circumstances, no responsibility of the authorities has been established for whatever ill-treatment they may have suffered as a result of their disappearance.

CONCLUSION

221. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of Ramazan and Cemile Sarli.

ii. Concerning the applicant

222. The applicant submits that the disappearance of her son and daughter, and the circumstances in which this occurred, caused her such a degree of suffering as to constitute inhuman and degrading treatment contrary to Article 3 of the Convention. She relies in particular on the Court’s judgment in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, op. cit., pp. 1187-1188, paras. 133-134).

223. The Government dispute the factual basis of the applicant’s claim and also her motive for bringing the application.

224. The Commission recalls that in the Kurt case (Kurt v. Turkey judgment, loc. cit.) the Court found a violation of Article 3 of the Convention in respect of the applicant, who was the mother of a person who had disappeared during an unacknowledged detention. It referred to the fact that she had witnessed the detention with her own eyes and that the public prosecutor failed to treat her complaints with any seriousness, leaving her with the anguish of knowing that her son had been detained in the absence of any official information as to his subsequent fate. The Court emphasised that she was herself the victim of the authorities’ complacency in the face of her anguish and distress.

225. In the present case, however, the Commission has not found it established to the necessary standard of proof that the applicant’s son and daughter were detained by the security forces. Nor is there any indication that in the circumstances of this case the applicant was treated with any cruel or callous indifference by the authorities in seeking to obtain information or redress for her allegations. Issues as to the alleged ineffectiveness of the investigation fall to examined in this application under Article 13 of the Convention.

CONCLUSION

226. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of the applicant.

F. As regards Article 5 of the Convention

227. Article 5 of the Convention provides, as relevant:

“1. Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

228. The applicant submits that her son and daughter were detained in breach of Article 5 para. 1 as the failure to enter them in any custody records violated their right to “security of person”. There has been a violation of Article 5 para. 3, notwithstanding Turkey’s derogation, since a period of indefinite incommunicado detention cannot be justified on any ground.  The circumstances of their disappearance in detention also violate the fundamental safeguards provided for in Article 5 para. 4, as well as violating Article 5 para. 5. Additionally, where a person “disappears” in the custody of the authorities, there is an obligation to carry out an independent, thorough and effective investigation, which was not complied with in the present case.

229. The Government deny that Ramazan and Cemile Sarli were detained by the security forces, relying on the evidence that they in fact were taken by the PKK.

230. The Commission recalls once more its inability to reach any finding of fact as to whether Ramazan and Cemile Sarli were taken by the security forces or the PKK. It is unable therefore to find that their disappearance is attributable to the authorities. The Commission does not find it appropriate in those circumstances to examine whether the safeguards required by Article 5 were complied with.

CONCLUSION

231. The Commission concludes, by 22 votes to 3, that there has been no violation of Article 5 of the Convention.

G. As regards Article 13 of the Convention

232. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

233. The applicant complains that in relation to both herself and her children Ramazan and Cemile there has been a lack of an effective remedy, owing to the systematic and systemic failings in the remedies and by those whose job it is to make them effective (the public prosecutors, gendarmes, special forces etc). She refers in particular to the failure of the Tatvan and SSC public prosecutors to obtain crucial evidence, and to the fact that the decision of lack of jurisdiction was not notified to the family rendering any right of appeal illusory. She submits that there is a practice of ineffective remedies in south-east Turkey, relying on previous cases (eg. Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996--VI amongst others) and that there is a practice of “disappearances” in the south-east region in the period 1993-1994 (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, op. cit., p. 1152, Cakici v. Turkey judgment of 8 July 1999, Reports 1999-...., and cases pending before the Court, Nos. 23531/94, Timurtas v. Turkey, Comm. Rep. 29.10.98, 20764/92, Ertak v. Turkey, Comm. Rep. 4.12.98; 23954/94, Akdeniz and others v. Turkey, Comm. Rep. 10.9.99).

234. The Government dispute that the applicant has made proper use of the remedies available to her in respect of her complaints. They submit that the applicant cannot rely merely on the simple requests for information made to various administrative authorities but should have instituted proceedings which would have enabled the respective responsibilities to be judicially investigated in depth. They also refer to their previous observations which point to an investigation still pending with the State Security Court prosecutor.

235. The Commission recalls that Article 13 of the Convention, together with Article 1 of the Convention, reflect the fact that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights and that it is first and foremost for Contracting States to secure to every individual within their jurisdiction their rights and freedoms under the Convention (see eg. Eur. Court HR, Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48). Article 13 in particular plays an indispensable role in preventing abuse of power and the infringement of Convention rights by requiring Contracting States to provide the mechanisms whereby arguable claims of violations of guaranteed rights and freedoms may receive proper investigation, with the possibility of redress (see eg. Eur. Court HR, Aksoy v. Turkey judgment, op. cit., p. 2260, para. 95, Boyle and Rice v. the United Kingdom, Comm. Rep. 7.5.86, Series A no. 131, p. 40, para. 73). It would emphasise that a failure to provide effectively functioning mechanisms of redress seriously undermines the protection to be afforded by the Convention, since the Convention organs cannot, and should not be required to, act as a first instance tribunal, a role which the national authorities are in the best position to fulfil.

236. Further, where an individual has an arguable claim that a member of his or her family has disappeared in custody, the notion of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (Kurt v. Turkey judgment, op. cit., p. 1189, para. 140).

237. In the present case, the Government have argued that in fact the applicant has not availed herself of the available remedies. The Commission recalls however that it has found that the applicant’s family on two occasions made a complaint to the public prosecutor that Ramazan and Cemile Sarli had been detained by security forces. It rejects the Government’s assertion that the petitions made were merely requests for information. The content of the first communication has not been provided but the terms of Tevfik Sarli’s petition of 31 January 1994 state in unequivocal terms that the security forces have detained the two missing people and requests that the necessary legal steps be taken. In these circumstances, the Commission is satisfied that the matter was sufficiently brought to the attention of the relevant authorities, in particular the public prosecutor who is under a duty in Turkish law to investigate allegations of unlawful deprivation of liberty and that the responsibility of the Contracting State to provide effective and adequate redress was engaged.

238. The Commission also finds that for the purposes of attracting the guarantees of Article 13 the applicant’s complaints involved an arguable claim that her son and daughter had disappeared in circumstances attracting the responsibility of the authorities. It notes in this regard the lodging of complaints about the involvement of security forces shortly after the incident and the fact that security forces were conducting an operation in the village on the night in question.

239. Notwithstanding the lodging of complaints by the family after the disappearance, the Tatvan public prosecutor took no step beyond an enquiry from the Tatvan district gendarme command who replied negatively without making any enquiry. The file was sent on to the Diyarbakir SSC after only eighteen days, without statements having been obtained from other eye witnesses, in particular Ahmet Sarli and the other members of his family and the villager Abdullah Milyas. No further enquiry was made to discover from the gendarmes details of the operation conducted in the village that night or the assertion made in the standard form incident report that Ramazan and Cemile had been recruited voluntarily or to clarify the varying accounts from the applicant’s family and villagers.

240. The Commission notes that in the following years, the only step taken, beyond general instructions for relevant information to be passed on, was the obtaining, a year after the disappearance, of the statement of Ahmet Sarli on 11 January 1995. The effort to contact the eye witness Abdullah Milyas was apparently not pursued when it was discovered that he moved address. Nor was any effort made to contact the other witnesses who had previously made statements.

241. The Commission finds that the authorities failed to take steps promptly in response to the complaints about the disappearance and that the investigation carried out was inadequate. It further notes that the applicant was not informed of the Tatvan public prosecutor’s decision of lack of jurisdiction in this case, thus depriving her of the possibility of appealing against it. Having regard to these factors, the Commission finds that the applicant has been denied an effective remedy against the authorities in respect of her allegations and thereby access to any other available remedies at her disposal, including a claim for compensation. There is no indication in light of these domestic investigations that any practical purpose would have been served by any other proceedings.

CONCLUSION

242. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention.

H. As regards Articles 14 and 18 of the Convention

243. Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

244. Article 18 provides:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

245. The applicant maintained in her application that her son and daughter had been subject to discrimination in that they were detained and had since disappeared because of their Kurdish origin. She has not included any further arguments in her final observations on the merits. Regarding Article 18, she submits that the disappearance of persons in detention necessarily involves a cover-up, since the denial of the detention or continuing detention is part of the phenomenon. Such a cover-up is inconsistent with the requirement of good faith implicit in Article 18.

246. The Government have denied the factual basis of the substantive complaints and that there has been any discrimination or lack of good faith.

247. The Commission has examined the applicant’s allegations in the light of the evidence submitted to it but considers them unsubstantiated.

CONCLUSIONS

248. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention.

249. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention.

I. As regards former Article 25 of the Convention

250. Former Article 25 of the Convention provides in its first paragraph:

“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”

251. The applicant complains that the authorities’ conduct in indicting and prosecuting Mahmut Sakar, the lawyer who took Ahmet Sarli’s statement for the purposes of introducing this application with the Commission, is not consistent with the State’s obligation under former Article 25 of the Convention as it constitutes an interference with the applicant’s right of individual petition.

252. The Government have not made any submissions on this point.

253. The case-law of the Convention organs has established that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention that an applicant be able to communicate freely with the Commission without any form of pressure from the authorities to withdraw or modify his or her complaints (eg. Eur. Court HR, Ergi v. Turkey judgment of 28 July 1998, Reports 1998-... para. 105; Kurt v. Turkey judgment, op. cit., pp. 1191-1194, paras. 153-165; Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1219, para. 105). Improper pressure may also be disclosed by measures taken against an applicant’s representatives as this has the potential of dissuading an applicant or his or her representatives from pursuing a case, imposing significant obstacles in the pursuit of an application or discouraging the submission of future applications (Kurt v. Turkey judgment, op. cit., p. 1193-1194, paras. 164-165, Comm. Rep. at p. 1230, para. 253).

254. In the present case, the Commission notes that Mahmut Sakar was the lawyer at the Diyarbakir HRA who took down Ahmet Sarli’s statement which was the basis of the application introduced on his behalf at the Commission. The documents provided by the applicant show that Mahmut Sakar was questioned about his contacts with Ahmet Sarli and that a criminal prosecution commenced in respect of alleged criminal conduct in preparing an application without the proper solicitor-client relationship having been established. There is no information as to any subsequent proceedings.

255. Irrespective of whether the proceedings were in fact followed up, the Commission finds that the measures taken to institute criminal prosecution against Mahmut Sakar for his involvement in the introduction of this application with the Commission must be considered as an interference with the exercise of the applicant’s right of individual petition and hence incompatible with the respondent State’s obligation under former Article 25.

CONCLUSION

256. The Commission concludes, unanimously, that Turkey has failed to comply with its obligations under former Article 25 para. 1 of the Convention.

J. Recapitulation

257. The Commission concludes, unanimously, that there has been no violation of Article 2 of the Convention (see para. 216 above).

258. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of Ramazan and Cemile Sarli (see para. 221 above).

259. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of the applicant (see para. 226 above).

260. The Commission concludes, by 22 votes to 3, that there has been no violation of Article 5 of the Convention (see para. 231 above).

261. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (see para. 242 above).

262. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention (para. 248 above).

263. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (para. 249 above).

264. The Commission concludes, unanimously, that Turkey has failed to comply with its obligations under former Article 25 of the Convention (para. 256 above).

M.-T. SCHOEPFER    S. TRECHSEL

          Secretary        President

  to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF Mr F. MARTINEZ , Mrs J. LIDDY

AND Mr J.-C. GEUS

The Commission has not been able to establish whether Ramazan and Cemile Sarli were taken by the security forces or the PKK. Accordingly, their disappearance is not attributable to the authorities. Nonetheless, Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable claim that a person has “disappeared” during detention (Kurt v. Turkey judgment, op. cit., p. 1185, para. 124). The Commission has found that an allegation was made by the family within a few days of the disappearance to the Tatvan public prosecutor that the security forces had detained the two missing people - an allegation which was repeated to the Bitlis public prosecutor on 31 January 1994. It appears however that the only investigative step taken by the public prosecutor in response was to contact the district gendarmerie command. Captain Ertugrul in replying that they were not in custody relied solely on his own knowledge. Accordingly, this only established that the two missing people were not entered in the district gendarme custody record.

The initial investigation by the Tatvan public prosecutor lasted only 18 days before he transferred the file to the Diyarbakir SSC. He considered that the material supplied by the gendarmes established the offences clearly without the need to seek additional evidence. However, the file did not include at that stage statements from two important eye-witnesses - Ahmet Sarli and Abdullah Milyas.  It is true that the evidence supporting the allegations that the disappearance involved the PKK was significant. However, a complaint of security force involvement had been made and no steps were taken to clarify the basis of that complaint eg. by seeking further evidence from the family, many members of whom had been present during the incident. The complaint received only cursory attention and was almost immediately discounted. The further evidence gathered in the proceedings before the Commission indicates that the accounts given by the security forces were contradictory, with an apparent effort to conceal the fact that an operation took place at the village on the night in question. The standard form operation report, a copy of which was addressed to the Tatvan public prosecutor, also placed the accounts of the shooting at the school in an ambiguous light. None of these elements received any scrutiny by the public prosecutors involved in the case.

We note that a statement was later obtained from Ahmet Sarli on 11 January 1995. This step, taken more than a year after the disappearance, is not sufficient to remedy the lack of expedition and depth in the authorities’ response to the complaints. In the circumstances we consider that there has been neither a prompt nor an effective inquiry into the circumstances of the disappearance of Ramazan and Cemile Sarli.  We conclude that in this respect the applicant’s children have been deprived of the guarantees of Article 5 in respect of their unaccounted disappearance.  Accordingly, we have voted for a violation of that Article.