against

(adopted on 9 September 1999)

(paras. 1-39) ............................................ 1

A. The application

(pa ras. 2-4) ........................................ 1

B. The proceedings

(paras. 5-34) ....................................... 1

C. The present Report

(paras. 35-39) ...................................... 4

(paras. 40-158) .......................................... 5

A. The particular circumstances of the case

(paras. 41-50) ...................................... 5

B. The evidence before the Commission

(par as. 51-146) ..................................... 7

1) Documentary evidence

(paras. 51-109) ..................................... 7

2) Oral evidence

(paras. 110-146) ................................... 19

C. Relevant domestic law and practice

(paras. 147-158) ................................... 28

(paras. 159-252) ........................................ 31

A. Complaints declared admissible

(para. 159) ........................................ 31

B. Points at issue

(para. 160) ........................................ 31

C. Evaluation of the evidence

(paras. 161-195) ................................... 31

D. As regards Article 2 of the Convention

(paras. 196-207) ................................... 42

CONCLUSION

(para. 208) ........................................ 44

E. As regards Article 3 of the Convention

(para. 209-219) .................................... 45

i. Concerning Muhsin Ta ÅŸ

(paras. 209-213) ................................... 45

CONCLUSION

(para. 214) ........................................ 45

ii. Concerning the applicant

(paras. 215-219) ................................... 46

CONCLUSION

(para. 220) ........................................ 46

F. As regards Article 5 of the Convention

(paras. 221-229) ................................... 47

CONCLUSION

(para. 230) ........................................ 49

G. As regards Art icle 13 of the Convention

(paras. 231-237) ................................... 49

CONCLUSION

(para. 238) ........................................ 50

H. As regards Articles 14 and 18 of the Convention

(paras. 239-243) ................................... 51

CONCLUSIONS

(paras. 244-245) ................................... 51

I. Recapitulation

(paras. 246-252) ................................... 51

CONCURRING OPINION OF SIR NICOLAS BRATZA ................. 53

PARTLY DISSENTING OPINION OF M. E. BUSUTTIL ................. 54

ADMISSIBILITY OF THE APPLICATION ................. 55

I. INTRODUCTION

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

A. The application

2. The applicant is a Turkish citizen born in 1943 and resident in Tatvan. He is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecture rs at the University of Essex.

3. The application is directed against Turkey. The respondent Government were represented by their Agents, Mr A. Gündüz and Mr S. Alpaslan.

4. The applicant complains that his son Muhsin Ta ÅŸ disappeared after being apprehended by the security forces in Cizre on 14 October 1993. He invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention.

B. The proceedings

5. The application was introduced on 7 June 1994 and registered on 14 June 1994.

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 24 Febr uary 1995 after an extension in the time-limit. The applicant submitted observations in reply on 3 May 1995.

8. On 11 September 1995, the Commission decided to invite the parties to make submissions on the admissibility and merits of the application at an or al hearing.

9. On 16 November 1995, the Government provided further information and documents.

10. At the oral hearing, held on 17 January 1996 in Strasbourg, the parties were represented as follows. The Government were represented by Mr M. Özmen and Mr S. Alpa slan, Co-Agents and Mr A. Kurudal and Mr F. Polat as advisers. The applicant was represented by Ms F. Hampson, counsel and Ms A. Reidy, legal assistant. Following the submissions of the parties at the hearing, the Commission decided to adjourn the case at the request of the Government in order that the Government provide, within two weeks, documents relating to the detention of the applicant’s son.

11. On 9 February 1996, the Government submitted copies of the documents to the Commission Delegates then in Anka ra.

12. By letter dated 23 February 1996, the applicant submitted comments on the documents provided by the Government.

13. On 5 March 1996, the Commission resumed its deliberations in the case and declared the application admissible.

14. The text of the Commissio n's decision on admissibility was sent to the parties on 14 March 1996 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.

15. On 25 April 1996, the applicant submitted a statement.

16. On 2 May 1996, the Government made a proposal as to a witness to be heard.

17. On 30 May 1996, the Government submitted further observations.

18. On 14 October 1996, the Government submitted a document.

19. On 19 October 1996, the Commission decided to take oral evidence in respect of the applicants’ allegations. It appointed three Delegates for this purpose: Mrs Liddy, Mr Pellonpää and Mr Lorenzen. The Government were requested to identify cert ain witnesses, including the three gendarmes who signed the operation report of 9 November 1993. The Government were also requested to provide copies of the custody records accounting for the detention of Muhsin Ta ş from 14 October to 9 November 1993.

20. By letter dated 28 October 1996, the Government provided information concerning the application. It identified the three gendarme officers who signed the report of 9 November 1993 as gendarme captain Şeyhmuz Kara, fir st lieutenant Burak Buğra and lieutenant Tarık Göktürk.

21. By letter dated 20 December 1996, the Commission’s Secretariat drew it to the attention of the Government that certain information and documents had not been provided.

22. By letters dated 14 and 24 Jan uary 1997, the Government provided further information.

23. By letter dated 31 January 1997, the Secretariat requested clarification from the Government concerning the documents submitted.

24. By letter dated 5 March 1997, the Government provided further clarifi cations.

25. By letter dated 4 April 1997, the Secretariat requested the Government to identify the officers involved in interrogating Muhsin Ta ÅŸ. This information was provided by letter of 17 June 1997.

26. By letter dated 18 March 1998, the Delegates requested the Government to provide certain documents and information, specifying that the Government identify the gendarme witnesses who personally w itnessed the alleged escape of Muhsin TaÅŸ from gendarme custody.

27. By letter dated 28 April 1998, the Government provided a petition by the applicant.

28. Evidence was heard by the Commission's Delegates in Ankara on 7 and 8 May 1998. Before the Delegates, the Government were represented by Mr M. Özmen, Agent, assisted by Ms M. Gülşen, Mrs Y. Renda, Mr A. Kaya, Mr Ş. Ünal, Ms B. Cankorel, Mr K. Alataş, Mr E. Genel, Mr F. Polat, Mr A. Karataş, 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.  nanç and Mr H. Bakiken.

29. On 12 May 1998, the Delegates requested that the Government provide a number of documents, including any transfer records and hospital records relating to Muhsi n Ta ÅŸ and information from the relevant military authority identifying the three officers who signed the operation report of 9 November 1993 or explaining why this was not possible.

30. On 23 May 1998, the Commission decided that the parties should be invited to submit their final observations on the merits following the transmission of the verbatim record.

31. On 17 July and 11 August 1998, the Government provided further information and documents.

32. Following requests by the parties for extension of the time-limit f or the submission of final observations, the applicant submitted his final observations on 24 November 1998 and the Government submitted their final observations on 25 January 1999.

33. On 9 September 1999, the Commission decided that there was no basis on w hich to apply former Article 29 [1] of the Convention.

34. 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. Between 22 June and 13 August 1998, proposals were under consideration. 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

35. The pr esent 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

C.L. ROZAKIS

Mrs J. LIDDY

MM J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PE RENI Č

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

36. The text of this Report was adopted on 9 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Coun cil of Europe, in accordance with former Article 31 para. 2 of the Convention.

37. 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 disclo se a breach by the State concerned of its obligations under the Convention.

38. The Commission's decision on the admissibility of the application is annexed hereto.

39. The full text of the parties' submissions, together with the documents lodged as exhibits, ar e held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

40. The facts of the case, particularly concerning events during October and November 1993 following the arrest of the applicant’s son Muhsin Taş at Cizre, 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 Com mission 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

41. The various accounts of events as sub mitted 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.

42. The applicant’s son Muhsin Ta ş (date of birth 1967) was detained on the morning of 14 October 1993 in Cizre. He had been shot in the leg in a clash and was taken to Cizre State Hospital for first aid treatment. Dr Palpas diagnosed him as having a bullet entry hole in the area of the r ight knee joint and bullet exit wound at the back. Mushin Taş was then transferred to the Military Hospital in Şirnak, where he was treated as an out-patient later that day. On 15 October 1993, the Cizre public prosecutor ordered the detention of Mushin Ta ş for fifteen days. That order was renewed on 29 October 1993 at the request of the Cizre district gendarme commander. At the request of the 23 rd Şirnak Border Brigade, Muhsin Taş had been transferred from Cizre to Şirnak.

43. On 9 November 1993, Muhsin TaÅŸ w as alleged by the authorities to have escaped, whilst showing the security forces the location of PKK shelters on Gabar mountain. The applicant believes that this escape story is a cover-up to conceal the fact that his son was killed by the security forces .

44. There is no record that Muhsin Ta ÅŸ was seen by a doctor at the Military Hospital after 14 October 1993 and no written record of where Muhsin TaÅŸ spent the period between 14 October and 9 November 1993. The applicant submits that there is no evidence that Muhsin TaÅŸ offered to show the sec urity forces the location of PKK shelters as alleged. When Muhsin TaÅŸ had been treated by the doctor at Sirnak, he was diagnosed as having a fracture of the lateral femoral condyle and partial severing of the infra-patellar tendon. He was treated by having his leg put in a splint, from the lower hip to the toes. There is no evidence of his receiving any treatment after this despite the need for the wound to be dressed every three days. He would probably have had to keep his leg in a splint for just under fo ur weeks and would normally have needed support in walking. The hypothesis that he ran away in rough terrain is not plausible on the basis of the medical evidence. The whole account of the escape was also incredible in operational terms. The failure to ide ntify the three officers who signed the account of the escape is also inexplicable, there being evidence that officers were not permitted to use code names in an official context or at all. The obscurity surrounding this report indicates that it was to cov er up something which could not be acknowledged, namely, that the security forces were responsible for the death of Muhsin Ta ÅŸ in custody. The statements from the confessors submitted by the Government to support the allegations of the escape are so full of serious inconsistencies as to be wholly unreliable.

45. On 15 October 1993, in Kastamonu, the applicant was asked by two polic emen about his son and told that he had been arrested and injured in Cizre. The applicant arrived in Cizre on 17 or 18 October 1993. He saw the public prosecutor who confirmed that his son had been arrested and told him that he should come back in fifteen days. The applicant visited the gendarmerie and public prosecutor repeatedly. After fifteen days, he was informed by the public prosecutor on such a visit that the detention had been extended and that he should come back in another fifteen days. He submitt ed a petition to the public prosecutor. He travelled to Şirnak and spoke to a taxi driver who had seen his son naked and being dragged along with his face on the ground. After the second period of fifteen days, he returned to see the public prosecutor. He submitted another petition, which said that he feared for his son’s life. The prosecutor signed it. The applicant took it to the gendarme commander who told him to take it back to the public prosecutor. Some time, around 15 or 16 November 1998, he was told that his son had allegedly escaped. He did not believe it and took it as a sign that his son had been killed in detention.  In January 1994, he went back to see the public prosecutor who told him that a decision of lack of jurisdiction had been taken and that he should go to the Diyarbakır State Security Court.  There is no evidence that the Cizre public prosecutor took any action in respect of the applicant’s petitions. He saw nothing to investigate on the basis of the “escape” report.

46. An investigation was started in Şirnak following the communication of the present application. Senior Major Doğan, who was from the same forces as those being investigated, was appointed to carry out the investigation. He sought unsuccessfully to identify the three signato ries to the 9 November report but was informed by the Gendarme Commando Special Forces Group Commander (which appears to be the same as the 23 rd Sirnak Border Brigade) that no-one of those names had ever worked there and as there had been a fire in 1993 wh ich destroyed their records they could not say who took part in any operation on Gabar mountain in 1993. Statements were taken from persons apparently identified by the land forces commander but the se three persons who had the names of Ozaricanlı, Tümöz and Çetin had no knowledge of the alleged operation and escape. Doğan did not interview these persons himself, who were apparently questioned by other authorities on the basis of written questions and there was no further probing in light of their replies. Doğan did not question those persons identified to the Commission as those who had interrogated Muhsin Taş. He submitted his report to the Administrative Council on 12 February 1998. His report, cons isting of one page, stated that it had not been possible to identify those working in the 23 rd Sirnak Border Brigade Special Forces Group command. His conclusion was that as the alleged suspect was not known the case be discontinued. The Administrative Cou ncil reached its decision on 18 February 1998 that there was no case to refer to the criminal courts.  The applicant was not informed of this decision and was therefore unable to make any representations to the Council of State.

2. Facts as presented by the Government

47. The Government's account of events as based on their observations is summarised as follows.

48. Muhsin Taş was apprehended on 14 October 1993 after an armed clash with the security forces in Cizre. He was captured in possession of a kalashniko v, a handgun and ammunition. He was wounded. A medical report from Cizre State Hospital indicated that his life was not at risk. Later that day, he was accepted at Şirnak Gendarme Headquarters Surgical Hospital as patient no. 2091, where he was treated for a fracture of the right knee.  On 15 October 1993, the gendarme commander made a written request to the Cizre public prosecutor for a fifteen day detention period. At the end of this period, another extension was requested on 29 October 1993.

49. On 19 Nove mber 1993, the Cizre gendarme commander sent a report to the Şirnak governor recounting that Muhsin Taş had been captured and that during his interrogation he had declared that he knew hideouts used by the PKK on Gabar mountain after which he was taken on 9 November 1993 with a search team to the site. While carryin g out a search on hill “1334” they were attacked by PKK terrorists. During the clash and the commotion, Muhsin Taş who was not handcuffed made use of the heavy rain, rough terrain and failing light to escape. After Muhsin Taş’s escape, a former PKK militan t, Nedim Kaya, who had become a confessor, reported that he had seen and had even talked to Muhsin Taş.

50. The aim of this application is to dishonour the security forces combating separatist terrorist violence. Events took place in 1993 when terrorist viole nce was at its peak and when public officials were often prevented from doing their public duties. No public building was safe from assaults carried out with rockets and mortars and fires frequently damage buildings and records.  What happened to a militan t captured during a clash has been officially recorded by the personnel responsible for the operation and no other evidence has been produced to overrule the facts stated in that document.

B. The evidence before the Commission

1) Documentary evidence

51.              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.

52.              The Commission had particular re gard to the following documents:

a) Statements of the applicant

Statement dated 24 January 1994 taken by the Human Rights Association (HRA)

53.              After being summoned by the police who asked the whereabouts of his son, the applicant was told that his son M uhsin had been apprehended wounded in a clash in Cizre. On 17 October 1993, he went to Cizre, submitting a petition to the public prosecutor. The prosecutor said that Muhsin was in custody and would be brought before the court after the custody period. Aft er fifteen days, the applicant returned to Cizre. The prosecutor told him that the custody period had been extended for fifteen days and told him to come back after that time. The applicant gave in another petition. He also gave a petition to the Cizre dis trict gendarme command. A month after his son had been taken into custody, he went to the prosecutor in Cizre once more. The prosecutor told him that the gendarmes had replied to his petition, saying that Muhsin had been taken to Gabar mountain on 9 Novemb er, a clash had broken out and he had fled. He returned again to Cizre on 18 January 1994 and saw the prosecutor who said that a decision of dismissal had been taken on Muhsin’s file, which had b een sent to the Diyarbakır State Security Court on 13 December 1993 under no. 93/240. He thought that his son had been killed in custody.

Statement dated 20 January 1996 sent to the HRA

54.              On 15 October 1993, the Tatvan police had called him to the police station. They said that Muhsin had been caught wounded on 14 October in the Cudi district of Cizre and was being detained by the Regiment Command. He waited for fifteen days and then for another fifteen days. There was no development. His son never return ed from detention. As a father, he was in pain day and night. He appealed for justice.

Statement dated 21 November 1997 taken by lawyer Kenan Sidar

55.              In February 1994, he had been sent to Kastamonu province, where he remained until his retirement in Augu st 1997. During that time, his statement was taken twice concerning his son. Around the autumn of 1995, he was sent a summons by the gendarmerie and he went to the public prosecutor at Kastamonu, who took down his statement about how his son disappeared wh ile detained by the security forces. In early 1996, the gendarmerie of Kozyatagi district of Kastamonu summoned him. He gave his statement to the gendarme commander. The commander said, “You have applied to the European Court of Human Rights alleging that your son was made to disappear by the security forces. Do you want to continue with your case?” He replied that he did. He told the commander about the incident and the commander wrote it down.

b) Documents relating to the detention of Muhsin TaÅŸ

Sear ch report dated 14 October 1993, 10.00 hours, signed by gendarmes

56.              On the basis of information given by an individual who had been in custody, an operation was conducted at 00.00 hours, 14 October 1993, by the Cizre security directorate, district gendarme commando division and GKK commandos to raid houses identified as used by the PKK or their supporters. On arrival at one of these houses, in the Cudi district, an armed individual ran out. He responded to the “Halt” warning by firing his weapon. After a cl ash, he was captured wounded in the right knee, in possession of a Kalashnikov and a Beretta 9mm handgun. An investigation indicated that he was Muhsin TaÅŸ, member of the mountain militia of the PKK, code named “Kanemir”

Medical certificate issued by Ci zre State Hospital dated 14 October 1993, 05.50 hours

57.              This interim certificate, signed by Dr Zekeriya Palpas, stated that on examination Muhsin TaÅŸ was found to be conscious, with a bullet wound to the front lower part of the right knee joint, with entry point in front, exit point behind visible. His life was not in danger at present. Transfer to Mardin State Hospital Orthopaedics Clinic, where a final report could be obtained, was recommended.

Document probably dated 14 October 1993 from Cizre Distric t Gendarme Command to 23 rd Gendarme Border Regiment, Åžirnak provincial gendarme command, Tactical Gendarme Brigade Command, District Governor and Cizre public prosecutor

58.              This pro forma report with numbered items refers to the capture of Muhsin TaÅŸ as an injured terrorist with two militia. The date 14 Octob er 1993, 06.30 hours is given. The initial examination of the injured terrorist indicated that he was operating in the Gabar mountain. He stated that he was appointed by the mountain group to organise Cizre, recruit members and carry out activities. It was assessed that he could be in charge of the Gabar mountain. It was signed by Captain Temizöz.

Transfer document 14 October 1993

59.              Upon request of the Åžirnak Brigade Commander, Muhsin TaÅŸ, who had been captured at about 05.00 hours, was delivered by the Cizre security directorate to gendarme commander Erol Tuna, the convoy commander.

Åžirnak Military Hospital entry records

60.              The nam e Muhsin TaÅŸ was recorded at entry 2091 on 14 October 1993. It was noted that he had an injury to the right knee - the lateral femural condyle was fractured and the infra patellar tendon was partially cut. The leg was put in splints.

Request from Cizre d istrict gendarme command to the Cizre public prosecutor dated 15 October 1993

61.              This letter, signed by Captain Cemal Temizöz, requested an extension to the custody period in respect of Muhsin TaÅŸ, in order for the interrogation to be completed.  In manuscr ipt at the bottom of the document, the public prosecutor has granted a fifteen day extension.

Request from Cizre district gendarme command to the Cizre public prosecutor dated 29 October 1993

62.              This letter, signed by first lieutenant Hakan Kultur, reques ted a further fifteen day extension in the custody period for Muhsin TaÅŸ. This was granted in manuscript note on the bottom of the document by the public prosecutor.

Incident report dated 9 November 1993

63.              This document, in manuscript, is signed by three gendarme officers, Captain Åžeyhmuz Kara, First Lieutenant Burak Bugra and First Lieutenant Tarik Göktürk and is described as having been drawn up in the location at 16.30 hours the same day. It states that following his arrest and extension of his detenti on period for two periods of fifteen days, Muhsin TaÅŸ was taken to Åžirnak Provincial Gendarme Command Investigation Centre. During his interrogation, he declared his willingness to show the location of the PKK headquarters on Gabar, at hill altitude 1334 w est of Inceler village. On 9 November 1993, teams from the Special Operations General Command of the 23 rd Gendarme Border Regiment accompanied Muhsin TaÅŸ to this area. While the search for shelters and food depots was conducted on hill 1334, an unspecified number of terrorists started firing from the north of the hill at about 16.15 hours. The teams returned fire. Muhsin TaÅŸ, code name Hanamir, took advantage of the precipitation, fading daylight, rocky and bushy terrain and escaped. Following the fifteen m inute conflict, his escape was discovered. The following search failed to locate him. The radio messages from the terrorists which were monitored revealed that Muhsin TaÅŸ had joined the mountain group of the PKK.

Letter dated 19 November 1993 from Cizre district gendarme command to Cizre public prosecutor

64.              This letter signed by Major Temizöz recounted the apprehension and detention of Muhsin TaÅŸ. It further stated that following his willingness to locate PKK headquarters on Gabar mountain as well as oth er shelters, he was taken on 9 November 1993 by operation teams to Gabar mountain at about 16.00 hours. On arrival there, a clash broke out between the PKK and the security forces and Muhsin TaÅŸ escaped, taking advantage of the fading light, precipitation and rocky and bushy terrain, probably rejoining the PKK.

Decision of withdrawal of jurisdiction dated 13 December 1993

65.              The decision, signed by Attila Ceylan, concerned Muhsin TaÅŸ as defendant, with the offence indicated as being enrolment in a prohibit ed organisation and involvement in an armed conflict with the security forces. Following his apprehension on 14 October 1993, he had been handed over to Åžirnak Gendarme Command in order to locate hideouts. During an armed conflict on 9 November 1993 Muhsin TaÅŸ escaped and rejoined the prohibited organisation. As the offence lay within the jurisdiction of the State Security Courts, it was decided to withdraw from the case and transfer the file to the Diyarbakır State Security Court prosecution.

c) Investig ation documents

Petition dated 18 November 1993 by the applicant to the Cizre public prosecutor

66.              The applicant’s son Muhsin TaÅŸ had been taken into custody on 14 October 1993 in Cizre. The applicant had been told that his son was being held at the genda rme station and that this would last two periods of fifteen days. It was more than a week since this period had ended and his son had still not been brought before a public prosecutor. He was frightened for his son’s life. He asked that he be given informa tion immediately about the whereabouts of his son.

Letter dated 4 February 1994 from the Diyarbakır SSC public prosecutor

67.              This was addressed to the Cizre public prosecutor, the Cizre district gendarme command, the Åžirnak security directorate and Åžirnak provincial gendarme brigade command. It explained t hat the suspect Muhsin TaÅŸ had been apprehended but escaped following a clash. It required steps be taken to investigate and locate the suspects and for updates to be sent every three months.

Letter dated 5 October 1995 from the Diyarbakır SSC chief pub lic prosecutor to the Ministry of Justice (General Directorate of Legal and International Relations)

68.              This stated, inter alia , that following his capture Muhsin TaÅŸ stated that he could locate the PKK’s shelters and hideouts on Gabar mountain. A search te am took him to Gabar mountain on 9 November 1993. During a search on hill 1334 the security forces were fired upon. Muhsin TaÅŸ escaped by taking advantage of the terrain and fading light. From monitored wireless messages, it was understood that he had rejo ined the PKK. The efforts to recapture him were continuing. The region was vast and the PKK took advantage of the terrain, not returning for long periods to areas where they conducted attacks. Due to this, efforts to locate and capture members took time. T he investigation was being carried out by their office under file 1993/6057. BeÅŸir Taş’s claim that his son was killed in detention was abstract and there was no concrete evidence to support it in the investigation documents. He also did not make any claim to their office on this subject. There was no legal basis for deciding to wi thdraw from jurisdiction in order for an enquiry to be made into the misconduct of state officials.

Statement of Süleyman Fidan dated 4 November 1995 taken by a gendarme officer

69.              He was asked to state what he knew about “Hanemir” Muhsin TaÅŸ. He stated that he himself had joined the PKK in 1989. He was posted to the mountain group, where he became operations division commander. He gave himself up in April 1995. In the winter of 1993, he was in the active units at Gabar headquarters. He knew that Muhsin T aÅŸ code name Hanemir had worked as press correspondent and in 1992 had fought under PKK leader Sarı Hüseyin when the Turkish army had conducted operations in Northern Iraq. Muhsin TaÅŸ was wounded in two places in the leg during those clashes. In early wint er of 1993, they were posted so that they could conduct activities in Cizre central district and so that Muhsin TaÅŸ could have further treatment. As Muhsin TaÅŸ was not expert in these activities, he was soon caught. Muhsin TaÅŸ devised a plan to deceive the security forces, by having an extensive operation carried out in Gabar and then escaping under cover of darkness. He rejoined the headquarters. He and others went shortly afterwards to Northern Iraq where he carried out activities for the PKK at the Hafta nin camp.

Statement of Nedim Kaya dated 4 November 1995 taken by a gendarme officer

70.              He was asked to state what he knew about “Hanemi r” Muhsin TaÅŸ. He stated that he himself had joined the PKK in October 1993. When he was a fighter in the mountain group at Gabar under division commander Halil, he saw Muhsin TaÅŸ in the winter, in December 1993 he reckoned. Muhsin TaÅŸ said that his family lived in the Cudi area of Cizre and that he had worked as a “grab” [2] driver before joining the PKK. Muhsin TaÅŸ was 1.75m in height, fat, dark-skinned with receding hair and a chestnut moustache.  As they were on close terms, Muhsin told him that in 1992 he had fought for the PKK in the Northern Iraq operations, that he had come to the Gabar region for treatment for two bullet wounds in the leg, that on completion of his treatment he had been posted to active service in Cizre, that he had been caught but had misled them into thinking that he was going to show them the way and had escaped to return to the Gabar headquarters, that he had recounted the affair to Celal, the head of the Gabar region who took him into the ranks. Later, Celal and Muhsin TaÅŸ went tog ether to the Haftanin camp in Northern Iraq.

Letter dated 9 November 1995 from the Ministry of Justice (General Directorate of International Law and Foreign Affairs) to Åžirnak public prosecutor

71.              This stated that the applicant had complained to the Euro pean Commission of Human Rights that his son had been killed by the security forces while in detention. His claims which disclosed a complaint and the attribution of an offence, were to be proceeded with according to legal procedures and the steps taken an d decision reached reported.

Letter dated 27 November 1995 from the Cizre public prosecutor to the Cizre district gendarme command

72.              This referred to the claims that Muhsin TaÅŸ had been killed while in detention and to the names of three officers on the report of 9 November 1993. It requested that the command to which the three officers were attached be identified, as well as the locat ion where the report was drawn up and the officers be presented at the prosecutor’s office if they belonged to the district command.

Letter dated 29 November 1995 from Cizre district gendarme command to the Cizre public prosecutor

73.              According to the encl osed documents, during the investigation at their command, Muhsin Ta ÅŸ declared that he knew the Gabar headquarters of the PKK and other shelters. On this, on 14 October 1993, teams from the Investigation Bureau of the 23 rd Gendarme Border Regiment Command were sent to Åžirnak province. In his interrogation, the suspect decl ared that he knew the Gabar headquarters and other shelters. He later escaped after a clash. Those who signed the transfer document were not officers from their command but from the special warfare group command and other enquiries should be sent to the 23 rd Gendarme Border Regiment Command.

Decision of withdrawal of jurisdiction dated 7 December 1995 by the Cizre public prosecutor (prel. 1995/653)

74.              This stated, inter alia , that the personnel involved in the incident in which Muhsin Ta ÅŸ escaped belonged to the Åžirnak 23 rd Gendarme Border Regiment Special Operations Group Command and found that the claimed events took place outside their legal jurisdiction. The documents were transferred to the Åžirnak public prosecutor.

Letter dated 10 December 1995 from Åžirnak public prosecutor to Åžirnak 23 rd gendarme border regiment command

75.              This referred to reports that Muhsin TaÅŸ had been murdered while detained on 9 November 1993, concluded that he had been taken on an operation by appointed perso nnel of Special Operations Group Command and requested that the names of the personnel under their command be established and that they be brought to the prosecutor’s office. This request was repeated on 22 January 1996.

Statement dated 13 December 1995 of the applicant taken by a public prosecutor

76.              The applicant’s son had recently returned from his military service and worked for a building contractor in Diyarbakır, whom he named. The contractor worked also in Cizre. His son was putting up lamp posts for lighting in Cizre. On 14 October 1993, he was involved in a clash when he left a house with two individuals who were claimed to be terrorists. He learned this from a State Security Court prosecutor when he was called to make a statement. He has waited a month at Cizre for information about his son wh o had been seized wounded. He was not allowed to see him. He guessed that he was in gendarme custody but they would not let him see his son. Despite all his efforts, he had not discovered what had happened to his son and so he applied to the European Human Rights Office in Diyarbakır. His wish was to obtain information about his son.

Letter possibly dated 20 December 1995 from Sirnak public prosecutor to the Ministry of Justice

77.              This referred to the Ministry’s letter of 9 November 1995. It stated that do cuments had been received from the Cizre public prosecutor accompanied by a decision of withdrawal of jurisdiction. These were registered under file no. 1995/665 and a warrant sent to the 23 rd Gendarme Border Regiment Command to establish the identities of the defendants and secure their presence at the chief public prosecutor’s office. A response was awaited.

Statement dated 12 January 1996 of Nedim Kaya taken by a public prosecutor

78.              In September 1994, he ran away from the PKK and surrendered to the gen darmes. He joined the organisation in the first days of November 1993 though he could not remember the exact day. He was taken from his village to Gabar where he remained until he left the organisation. The regional commander was Celal and Süleyman Fidan, code named Mustafa, was his company commander.  During that time, Muhsin Ta ÅŸ code named Hanemir was his close friend. TaÅŸ told him his father’s name, that his family lived in Cudi district, Cizre and that he used to be a bulldozer driver. Towards the end of 1993, TaÅŸ was assigned to activities in Cizre, where he was wounded in a clash and surrendered to the security forces. He later heard from walkie-talkie conversations and from his friends that he brought the security forces to Gabar and fled, returning to tell Celal what had happened. Later, TaÅŸ was sent to the Haftanin camp in Northern Iraq to complete his medical treatment. He learned that from others in the organisation. He did not know what happened to him after that.

Letter undated from Åžirnak chief public prosecutor to the Ministry of Justice

79.              This referred to an enquir y made by fax on 23 January 1996, enclosed copies of the documents in the investigation file 1995/665, and stated that on 22 January 1996 a warrant had been dispatched to the Sirnak 23 rd Gendarme Border Regiment Command for the identities of the officials to be established and their statements taken. No response had yet been received to the warrant.

Letter dated 29 January 1996 from Major Doctor Tan to Åžirnak provincial gendarme command

80.              This explained that Muhsin TaÅŸ had been treated in the hospital emergency ward for a firearms injury, his treatment being recorded under civilian patients examination ledger entry 2091. The examination concluded that th e right knee was injured in that the lateral femural condyle was fractured and the infra patellar tendon was partially cut. The leg was put in splints.

Letter dated 4 April 1996 from the Åžirnak public prosecutor to the Åžirnak 23 rd Gendarme Border Regimen t Command

81.              This referred to previous letters sent on 10 December 1995 and 22 January 1996. It was understood that MuhsinTaÅŸ was taken by personnel from the Special Operations Group Command to indicate locations. It was repeatedly and urgently requested th at the names of these officers under their command be established and sent to the Chief Public Prosecutor.

Letter dated 25 May 1996 from Åžirnak public prosecutor to the Åžirnak 23 rd gendarme border regiment command

82.              This referred to previous corresponden ce (see para. 75 above), pointing out that no response had been received and again urgently requesting that they examine their records to identify the officers who took Muhsin TaÅŸ to Gabar mountain.

Letter dated 27 May 1996 from Åžirnak public prosecutor to the Åžirnak provincial central gendarme command

83.              This referred to the three names on the report of 9 November 1993 and urgently requested that the officers’ identities and addresses be communicated to the prosecutor.

Letter dated 29 May 1996 from Åžirn ak provincial central gendarme command to the Åžirnak public prosecutor

84.              Muhsin TaÅŸ had been taken by authorised personnel teams from the Special Operations Group Command.

Letter dated 14 June 1996 from Åžirnak Gendarme Commando Special Operations Group Command to the Åžirnak public prosecutor

85.              This stated that it had been established that Captain Åžeyhmuz Kara and First Lieutenants Burak Bugra and Tarik Göktürk were not on duty in their group. It listed the names of the Group Commander and team commanders on duty in 1993: K. Mehmet Ozaricanli, Infantry Captain, Group Deputy Commander; Isik Tümöz, tank first lieutenant, Team Commander; and Semseddin Çetin, gendarme first lieutenant, Team Commander. It gave the addresses of two of the officers in Ankara and stated that enquiries should be directed to Land Army Command for the third.

Letter dated 8 July 1996 from the Åžirnak public prosecutor to the Ankara chief public prosecutor

86.              It was requested that the group deputy commander and team commanders of the Special Operations Group Command who were on duty on 14 October 1993 be invited to their office and the following q uestions be put:

87.              The letter listed Captain Mehmet Ozaricanli, First Lieutenant Isik Tümöz and First Lieutenant Semseddin Çetin and requested their statements be taken.

Letter dated 8 July 1996 from Åžirnak public prosecutor to the Cizre public prosecutor

88.              This urgently requested a copy of the transfer record and the identification of the individuals who handed Muhsin TaÅŸ over to the 23 rd Gendarme Border Regiment Comman d.

Decision of withdrawal of jurisdiction dated 28 August 1996 by Åžirnak public prosecutor

89.              This identified Muhsin TaÅŸ as the victim of the offence of killing in custody, the complainant as BeÅŸir TaÅŸ and the defendants as teams under the command of 23 rd Border Regiment Special Operations Group. It stated, inter alia , that after being detained in custody, Muhsin TaÅŸ was delivered to the Åžirnak 23 rd Gendarme Border Regiment Special Operations Group in order to identify locations. He took advantage of a cla sh between the security forces and an armed gang on Gabar mountain and escaped to rejoin the organisation. The complainant claimed that his son was killed by the security forces. The Cizre public prosecutor began an investigation but a decision of withdraw al of jurisdiction was made as the incident was outside the provincial boundaries. It appeared from the investigations by their office that Muhsin TaÅŸ had been delivered to the Åžirnak 23 rd Border Regiment Special Operations Group Command but the identities of the officials could not be established. At the moment of delivery, the true identities were not written down. In order to establish them , an instruction warrant had been sent to the Ankara Attorney General and a response was still awaited. As the above gendarme command was under the authority of the State of Emergency Governor, the Official Conduct Act covered the investigation and the mat ter was referred to the Åžirnak Provincial Administrative Council.

Statement dated 29 August 1996 by Captain Kamil Mehmet Ozaricanli taken by Cumhur Sogut public prosecutor

90.              In March 1992, he was appointed to Åžirnak gendarme command special operation group command as a team com mander and group deputy commander. He was there until 15 July 1994. He did not receive Muhsin TaÅŸ. In such matters, transfer and delivery were conducted by the district gendarme command and the provincial gendarme brigade command interrogation section. His name and signature was on the document of 9 November 1993 which had been read out to him. Such an incident may have taken place though he did not recall it. He did not know the named officers Åžeyhmus Kara, Burak Bugra or Tarik Göktürk. He was infantry whi le they were gendarmes. He had as many as nine teams under his command. He did not use any code name and never used code names in such reports. As he did not know the three officers mentioned in the report, he could not say whether they worked in the Speci al Operations Group Command, though he did know Isik Tümöz and Semseddin Çetin who did. The identities of the three officers could be established by asking the Gendarme General Command.

Letter dated 3 September 1996 from the Åžirnak Provincial Governor to Major Yilmaz DoÄŸan of Åžirnak provincial gendarme command

91.              This referred to the Åžirnak public prosecutor’s decision of withdrawal of jurisdiction and notified the Major’s appointment to investigate the allegations that Muhsin TaÅŸ was killed by the security forces and in particular to establish the names of the perpetrators.

Statement dated 19 November 1996 of First Lieutenant Semseddin Çetin taken by a public prosecutor

92.              He did not recall witnessing the incident set out in the report of 9 November 1993. However a long time had passed and he had been involved in many operations, many of which were similar.

Letter dated 4 February 1997 from Major DoÄŸan to Special Operations Group Command

93.              This requested information as to wh ether the three individuals who signed the report of 9 November 1993 were in their unit, and that, if the names were code names, the names and addresses of any personnel who went to Gabar region on the same date be provided.

Letter dated 4 February 1997 f rom Major DoÄŸan to the Intelligence Branch Directorate

94.              This stated that Muhsin TaÅŸ was delivered by Cizre Security Directorate to Major Erol Tuna convoy commander in order to be handed over to the 23 rd Gendarme Border Regiment Command Interrogation Burea u. It requested information as to whether Muhsin TaÅŸ was received and if so to whom he was handed over, the 1993 records of the interrogation section to be consulted in that regard.

Letters dated 4 February/18 March 1997 from Major DoÄŸan to the Tatvan Se curity Directorate and Kastamonu provincial gendarme command

95.              This requested that a statement be taken from the applicant with reference to the rogatory letter.

Statement undated taken from the applicant by Kastamonu gendarmes on the basis of a rogator y request

96.              The applicant had heard from the police on 15 October 1993 that his son had been injured during an operation in Cizre. He went to the Cizre public prosecutor to find out how his son was. He was told to come back after fifteen days. He remained in Cizre. After fifteen days, the prosecutor told him his son had not yet been handed over. The applicant gave in a written petition. The prosecutor made a reference on it and he took it to the district gendarme captain who told him that an answer would be given to the public prosecutor who would tell him. However the applicant had received no official response to the fate of his son. He had applied to the European Commission of Human Rights. He could not name a suspect responsible for the murder or disappe arance of his son. He wanted to know the whereabouts of his son, and if he was dead, where the body was. He believed his son had been killed by the security forces and wanted those responsible brought to justice.

Letter dated 7 February 1997 from Åžirnak Gendarme Commando Special Operations Group Command to Åžirnak provincial gendarme command

97.              From their investigation into the records of their unit, the officers named in the report concerning Muhsin TaÅŸ did not carry out any duty in their group and their n ames were not found in any of their records. As a result of a fire in their group, which occurred in 1993, all information and documents relating to the past were absent and the identities and addresses of personnel who went to Gabar region around that dat e could not be established.

Letter dated 15 April 1997 from Major DoÄŸan to Cizre district gendarme command

98.              This requested documents relating to Muhsin TaÅŸ, including incident report, medical records, detention permits, petitions from the applicant and information relating to the t ime, accompanying individuals and fate of Muhsin TaÅŸ when he was taken to Gabar mountain.

Letters dated 16 April 1997 from Major DoÄŸan to the Military Training Brigade Command (Etimesgut/Ankara), to Ankara Support Units Command and Private Protection Ba ttalion Command

99.              This requested that their command appoint an officer to take a statement from First Lieutenant Isik Tümöz, Captain K. Mehmet Ozaricanli and First Lieutenant Semseddin Çetin respectively on the basis of the enclosed rogatory request and li sted questions.

Statement of Captain K. Mehmet Ozaricanli dated 5 May 1997 taken by gendarmes

100. The four questions (para. 86 above) were put to him. His answers reproduced the information set out in his earlier statement. Additionally, he stated that they had not had the authority to take and protect personnel. He did not remember a clash in which a terrorist escaped from their hands. Officials at all levels could not use code names.

Statement of Captain Isik Tümöz dated 13 May 1997 taken by tank office rs

101. He did not know the names on the report of 9 November 1997.  He did not recall Muhsin Taş being handed over nor did he know to whom he was handed over.  He did not know of any officers or NCOs using code names during his period of service. He did not know who these three persons were and after such a long time did not know how their identities could be established.

Letter dated 14 May 1997 from Major DoÄŸan to Idil District Gendarme Command

102. This requested that a statement be taken from Nedim Kaya, who sho uld be asked whether he personally knew Muhsin TaÅŸ code name Hanemir, whether he saw him before or after 9 November 1993 and about his knowledge/observations about Muhsin TaÅŸ.

Statement of First Lieutenant Semseddin Çetin dated 29 May 1997 taken by rogat ory request [3] by gendarme/infantry officers

103. He stated that from June 199(illegible) to 1995 he was working at the Special Operations Group Command. During that period, the persons named on the report did not work there. He did not know the signatories of the report. He did not receive Muhsin TaÅŸ as they did not have that authority. It was not possible for the Special Operations Group Command to receive personnel and detain them. He did not recall going on an operation during which a detained terrorist esca ped. Personnel were not permitted to use code names but had to use their correct names. The identities of the signatories could be established from Gendarme General Command.

Statement of Nedim Kaya dated 2 June 1997 taken by rogatory request by gendarmes

104. He had joined the PKK in October 1993. While he was at the Gabar mountain, he was with Muhsin Ta ÅŸ, code name Hanemir. Towards the end of 1993, he left with a group to carry out an action. Apparently he was apprehended and while indicating locations in the Gabar mountain, he escaped from the security forces and returned to the headquarters. Muhsin TaÅŸ stayed at Gabar until June 1994 and then was sent to Northern Iraq to carry out activities.

Statement of Erol Tuna dated 7 January 1998 taken by rogatory request by gendarmes

105. From 1992-1994, he was the Åžirnak provincial central gendarme commander. He used to take convoys from Åžirnak to Cizre two to three times per week, which included the transfer of suspects in custody. He did not recall the transfer of Muhsin TaÅŸ. It was certainly possible that he took him to Åžirnak Provincial Gendarme Command interr ogation section. The detention records would show to whom he delivered him.

Letter dated 12 February 1998 from Major DoÄŸan to Åžirnak Provincial Governor enclosing examination report

106. The letter enclosed the file and report, concluding that the matter ha d been investigated as requested. The report stated that it was established that Muhsin TaÅŸ was taken to Gabar mountain to locate shelters and depots by teams belonging to the 23 rd Gendarme Border Regiment Special Operations Group Command. From the report of 9 November 1993, it was concluded that he escaped using the failing light, rain and rocky terrain. Suleyman Fidan and Nedim Kaya in their statements indicated that he had escaped and that they saw him after this date. The identities of the persons whose names were on the report could not be established due to the continuous changes of locations of military units, records not being kept properly and having been destroyed for various reasons. According to the report dated 14 October 1993, Major Erol Tuna r eceived the victim as convoy commander and transferred him to the Åžirnak Gendarme Command Interrogation Centre. In turn he was taken on 9 November 1993 by Special Operations Group Command personnel. However his name was not found in the interrogation recor ds. It concluded that due to the inability to establish the names and addresses of the suspects, there was no need to open a public case and the case should be dropped.

Document dated 18 February 1998 drawn up by the Åžirnak deputy governor

107. This referre d to Major Doğan’s investigation. It cited the Council of State’s decision of 28 November 1991, No. 2719, in which it was stated that, “... in order to conduct an investigation about an officer, the identity of the officer subject to the investigation need ed to be established reliably. Where such establishment is not made, the opening of an investigation, the drawing up of a summary indictment and the making of a decision by an authoritative body is not possible. It was considered appropriate to terminate t he proceedings”. The document was noted “Approved.”

d) Miscellaneous

Custody records

108. The extracts from the custody room ledger for the Åžirnak provincial gendarme interrogation centre for the period of October 1993 contained no mention of Muhsin TaÅŸ. Another set of extracts apparently relating to the Cizre district gendarmes has been provided by the Government for the period October-Novemb er 1993, again containing no entry relating to Muhsin TaÅŸ.

Medical report dated 1 May 1998 of Dr Hughes submitted by the applicant

109. This report noted that the standard treatment for the injury suffered by Muhsin Taş would be to debride [4] the wound and rep air any tendon/ligament damage if possible. In the United Kingdom, an external fixation device would have been used to stabilise the wound but in other countries lacking the facilities, stabilisation by plaster of paris cast would be usual. The injury woul d have certainly impaired his movement. He would have been unable to bear his weight on that leg and due to the laceration of the infrapatellar tendon his quadriceps mechanism would not function, incapacitating him further. He would perhaps be able to limp on one leg with the help of crutches. It was very unlikely that he would be able to walk over rough terrain with this injury, hobbling at most very slowly with crutches. He would have been likely to have been in considerable pain in the early stages.  Per haps at about three to four weeks, he might be able to put some weight on this limb without severe pain. Normally it took 8-12 weeks for a fracture such as this to heal, assuming no infection or non-union problems. It was in her opinion highly unlikely tha t he could have run away over rough terrain with these injuries. In addition to the bone and tendon damage, he was likely to have suffered considerable soft tissue damage. In the acute stages, he would have needed a few days of bed rest and elevation of th e limb, with strong analgesics for the pain. He would then need to learn how to use the crutches without placing weight on his leg.

2) Oral evidence

110. The evidence of the 11 witnesses heard by the Commission's Delegates may be summarised as follows:

(1 ) BeÅŸir TaÅŸ

111. The applicant was born in 1943. In October 1993, he was living in Tatvan. His son Muhsin used to live at home with him. Before and after his military service, he worked for a building contractor in Diyarbakır. He used to work with the contract or installing lighting in villages for the Turkish Electricity Board. In early 1992, he went to work in Istanbul. He used to phone. He said that he was working for a building contractor in Istanbul. He came back once in mid-1993. He was unmarried and had n o home beside the applicant’s. The applicant did not see him again after mid-1993. His son had been in good health then, with no injury to his leg.

112. His son Muhsin was slim, of light build (65 kg), 1.66-1.67 metres in height, a lovely boy. He had definitel y not been in trouble with the authorities before October 1993. He first heard about what happened on 15 October 1993, when two policemen took him to the police station, where he was asked about his son. The police said that he had been injured and apprehe nded by the security forces during a clash in the Cudi district in Cizre. The applicant went to the Diyarbakır HRA but they said they could do nothing and he should go back at the custody period. On 17 October 1993, he went to Cizre (he later had doubts as to whether this was 18 October 1993).  He went to see the public prosecutor first. He told him that his son had been injured and was in the hands of the security forces and asked him for help. The prosecutor looked in a file and told him that after the fi fteen day detention period was over his son would be brought before the court and the applicant could see him. He showed the applicant a document from which he knew his son was injured. While he waited for the fifteen day period to end, he kept going to th e gendarmerie but they would not let him in. Though he pleaded to know how his son was, they told him nothing. He went back and forth from Şirnak, Cizre and Diyarbakır. He begged for news at the Şirnak provincial gendarme headquarters, saying that he was w orried about his son’s health. The guards would not let him in. As a father, he was distraught, in tears. He went back to the gendarmes practically every day, standing at a distance until evening, as they would not let him in. They used to tell him to go a way, to ask the public prosecutor if he had a problem.

113. After fifteen days, about 1 or 2 November, he returned to the public prosecutor, submitting a petition which he had paid a scribe outside the court to write down for him. [5] The prosecutor signed it. He took the petition and gave it to the district gendarme commander. The commander told him to go and get the reply from the public prosecutor. He returned many times to the public prosecutor, nearly every day.  He used to telephone as well to see if there w as news. The prosecutor told him that there was no problem and that he should be patient.  On one visit, he saw a different public prosecutor who rang the gendarme captain, telling him that the applicant was worried and requesting news. The captain said th at he would receive a reply. During November, the applicant handed in a second written petition. He also visited the Cudi district and questioned the people there about what had happened. They had seen his son fall to the ground, injured by firing when he tried to run away.

114. After the second fifteen day period, he went to the public prosecutor again on about 15-16 November. He told the public prosecutor that he had had no news for a month and that he was in a terrible state. The prosecutor said that he had been told that his son had been taken into the mountains where he had escaped. The applicant asked the prosecutor how a person who had been in custody for a month, was injured, blindfolded and had been tortured could escape. (At this point the applicant br oke down in giving his evidence before the Delegates.) He told the prosecutor this escape report was not convincing, that his son had been killed and asked the public prosecutor to show him his son’s body. He went home, waiting for a body to be found.

115. A t axi driver who drove him to Åžirnak told the applicant that he had seen his son. The taxi driver had been detained during the same operation as had many people but he had been released after two-four days. The driver had asked whether the young man caught i n the Cudi district was his son; he had seen the young man naked, blindfolded, injured, being dragged along on his face.

116. The applicant returned to the public prosecutor’s office in January 1994. The prosecutor said that a decision of lack of jurisdiction had been taken and that the applicant should go to the Diyarbakır State Security Court. The applicant went to the HRA. In 1995, he had been transferred to Kastamonu. He referred to it as exile, that it had occurred on the Governor’s orders and that he and a number of other Kurdish officials were transferred because of their opinions. While at Kastamonu he had been summoned by the public prosecutor there. The prosecutor asked how the incident happened. Later, the Kastamonu gendarme regiment commander summon ed him. He said that a letter had been received in Şirnak from the HRA and asked if the applicant had filed a complaint. When the applicant said that he had, the captain told him not to file a complaint against the State. The applicant had not heard that h is son had been seen later in a PKK camp in Northern Iraq. He had received no news from his son since. The applicant had never lived in Cizre.

2) Atilla Ceyhan

117. The witness was born in 1964. From about October-November 1992 to the same time in 1994 he wa s public prosecutor at Cizre. He had no definite recollection of the applicant coming to see him. It was a long time before. He confirmed his signature on the petition of 18 November 1993. In such a case, he would have given an instruction for the necessar y procedures to be carried out. He could not say what steps he took in this case. He had signed the request for extension of detention of 15 October. Though he could not remember exactly, he would have estimated that due to the working stresses, the gendar merie would not have sent the supporting documents (medical report, arrest report) until some time later. He regarded the gendarmes’ request as a sufficient basis for granting the extension. It was not his signature on the second detention extension docume nt. It could have been his colleague’s.

118. When shown the incident report of 9 November 1993, he did not recall noticing anything strange about the timing and the sequence of events. There was nothing in any document which might disclose an offence and he sa w nothing suspicious in the escape of a suspect who was showing the security forces locations. He could not recall anything definite as to whether official reports were signed with code names or not. He did not find it strange that an injured man had escap ed since he was unaware of the injury and perhaps thought it was a graze or minor injury. He made no enquiries as to the extent of Muhsin Taş’s injury as there was nothing to raise any doubts. He did not consider the lack of entries in custody records as s ignificant since the other official documents recorded that he had been taken into custody.

119. During that period, incidents and attacks were widespread in Cizre, occurring several times a week. On one occasion the courthouse was set on fire and it took ten days before the building became operational again. His office was sometimes out of service.

3) Dr Zekeriya Palpas

120. The witness was born in 1964. In October 1993, he worked in Cizre State Hospital. He did not recall seeing Muhsin Taş. Referred to his medical report, he confirmed that the time 05.50 hours indicated the time at which he received the patient. He read out t he text of the report. He emphasised that it stated that the patient’s life was not at risk at present. It was recommended that the patient be transferred to Mardin State Hospital. They did not have the adequate technology or equipment in Cizre. While they had an X-ray machine, he doubted that they took an X-ray as it needed a specialist to evaluate it. He estimated that he would have treated this patient for half an hour or an hour. The patient might have been able to walk with a stick but for no distance. But he did not know the extent of damage to the knee or how long afterwards the patient would have recovered.  He confirmed that it would have been important to keep the patient in an uninfected environment and to change the dressing or give oral medicati on to reduce the risk of infection. If some-one had a fracture of the lateral femoral condyle and parital slicing of the infrapatellar tendon, he would not have been able to run on the mountains four weeks later.

4) Dr Ahmet Can

121. The witness, born in 195 9, was an orthopaedic specialist who in October 1993 was doing his military service as an orthopaedic specialist in Şirnak Military Hospital. He was already specialised when he was there. At that time, Şirnak Military Hospital, which had to carry out large numbers of operations on men injured in incidents (mines etc), was extremely well equipped and had an excellent record. He did not remember Muhsin Taş as a patient. He confirmed that it was his writing and signature on the polyclinic record - this stated that there was a firearm injury to the right knee. In particular, there was a fracture of the lateral femoral condyle - a fracture in the area of the knee (the witness pointed to just above the knee on the right hand side - and partial severing of the infr apatellar ligament - the tendon that connected the kneecap or patella to the tibia. A long leg splint was applied. He would have done this himself, or supervised an assistant. A young patient like this would have had to keep it on for anything from three t o six weeks. His ability to walk would depend on his individual characteristics. He would not be able to walk easily for at least the first week to ten days. In this type of injury, a person could put weight on the leg but it would be extremely painful. Ac cording to this record, Muhsin Taş was an outpatient. It did not look like he was actually admitted.  He had no idea where he went.  From looking at the record, the witness stated that he did not recommend that Taş be admitted to the hospital. It would hav e been stated on the form. If he had returned later, that would also have been recorded.

122. He would expect such a patient to be on antibiotics for a week, but depending on the wound it could be extended to fifteen days. If the wound was not dirty and the en try and exit holes small the patient could be given simple tablets to take himself. The hospital had huge bags of pills and they used to give patients handfuls, telling them how many to take and for how long. He thought he would have done that in this case , without writing anything down. The dressing would be taken off after two or three days and then changed every three days. It would not be done by the patient but by medical or health staff. The patient would have to stay in bed initially. The witness wou ld have expected him to stay in bed until he was called back for a check-up in a week or ten days. Whether the patient would be able to run as well as walk by the end of three to six weeks depended entirely on the individual and the way the wound progresse d - some patients would be on their feet at the end of a month, others might take three months. He agreed with the applicant’s lawyer that such a patient would be bound to hobble. He would need the help of a crutch or stick. In the splint, the person could not run. But depending on the motivation and pain threshold (if a lion or gunman was chasing him) a person could run - the splint would break.

123. The fracture was not a shaft fracture which would hinder movement in combat for example. The person could put his weight on the leg and it would depend completely on the amount of pain. The long leg splint did completely encircle the leg but was an external support which ran round the back of the foot and knee and ended at the hip. The knee would be set at an angl e of about 15-20%, slightly bent. Such a person could walk but he would be in pain.

5) Major Cemal Temizöz

124. The witness was born in 1958. In October 1993, he was the Cizre district gendarme commander at the rank of captain. He carried out that duty for t wo years until August 1995. During that time, there was intensive terrorist activity. Armed PKK groups from the Gabar mountains were responsible for the activities in Cizre city, which had a population of about 70-80,000. They used to hang people from pole s in the centre to frighten the population and use them as a shield against the State. There were incidents when police officers on top floor of the government building were attacked by rockets and killed. The government building and the courthouse were on occasion rendered inoperative.

125. In September 1993, there were two major attacks in the city centre. He got wind that the Gabar group planned another attack in October They had infiltrated the city in very small units. He and the police chief drew up an op eration to search for the terrorists. Beginning in the evening, they secured the area and in the early morning the search units combed the streets. His teams saw Muhsin TaÅŸ jumping over the wall of a house with others. In the ensuing clash, he was injured and apprehended while the others escaped. The witness went to the scene to see what had happened. TaÅŸ was injured, carrying a hand grenade, revolver and kalashnikov infantry rifle. When asked if it was his intention to charge TaÅŸ with offences and bring hi m to court, the witness replied that it was and made a comment, implying that if they had been ill-intentioned, they could have finished TaÅŸ off on the ground.

126. The witness had him sent to the hospital where he received first aid.  The witness reported th e situation to his superior command, the Şirnak Brigade. Brigade Command then sent a request for Taş to be transferred. Taş was then sent in the convoy to Şirnak Military Hospital for treatment in a secure place. He remembered that Taş stayed in hospital f or about 20-25 days though he was not absolutely certain. He had talked to people on the telephone - maybe the hospital authorities but he was not sure. He did not have it followed up specifically as the hospital was in a secure place. He was in charge of bringing Taş eventually to court.

127. When they first caught TaÅŸ, the witness took statements from him orally. TaÅŸ told them that he had come from Gabar. He told them his identity and that he had come to carry out an action. From what he said, they knew that he was a commander. He could not remember that TaÅŸ had offered to show the locations of shelters but expressed the view that a commander from Gabar would be in a position to give the locations of shelters for his own 30-40 men, weapons stores, exit routes etc. Gabar was a vast range, where the PKK had 1,000-1,500 people scattered in different bases. It was about 15 minutes away along the main road from Cizre. No written statements were taken at Cizre though such statements might have been taken at Åžirnak. H e did not receive any statements when making the requests for the extension of detention periods. TaÅŸ was initially sent to Åžirnak for treatment and as it was Åžirnak that conducted operations in Gabar he would have had to go there for that reason. Many ter rorists agreed to give information to the State and helped the State, inter alia , by showing shelters. He did not know how common it was for such terrorists to escape on operations.

128. In making the requests for the extension of detention, they did not requi re any further information. Taş’s identity as an armed terrorist caught during a clash was clear.  Lieutenant Kultur who made the first request was his subordinate. The 23 rd gendarme border regiment was his superior command. The commander of the regiment w as General Sipahi. Şirnak provincial gendarme command and the border brigade were in the same area but in different buildings. The latter was his superior authority. The hospital was attached to the border brigade. The witness knew that there was a provinc ial gendarme interrogation section under the authority of the brigade and doubted that there was a separate brigade interrogation section.

129. In answer to questions by the applicant’s lawyer, the witness stated that Muhsin Taş would have been entered in his own custody register. He agreed that a suspect detained under the authority of the Cizre public prosecutor would be recorded in the Cizre gendarme records. It was the police chief who signed the transfer record as it was in Cizre city that he was handed ov er. He had signed the arrest report using his name. He had seen documents signed by code names by personnel in the anti-terrorism field. Officials’ names made public in legal proceedings were passed on by lawyers to the PKK training school in Damascus and used in targeting.

130. At about 16.30 hours in November, it would have been getting dark. He did not know the names on the incident report were code names. If he had, he would have asked the command concerned. He  noted that in typing out his report of 19 Nov ember 1993 he had made an error in the time. He should have put 16.30 hours not 16.00 hours. A report after a clash might not be drawn up at exactly that moment but after the team had withdrawn to a safe area. While the fundamental principle was that a rep ort was drawn up at the spot on the day and at the time, there were exceptions when there was a clash. He did not speak with anyone involved in the operation. He did not remember seeing the applicant. He was the only captain in Cizre. He was never asked to make a statement about Taş.

6) Burhanettin Kiyak

131. This witness, born in 1966, was a special sergeant in the Cizre district command in 1993. Due to intelligence about actions that the Gabar terrorists were preparing to carry out in Cizre, a large scale o peration was conducted by police, village guards and gendarmes on 14 October 1993. At about 05.00 hours, he heard gunfire. When he and the captain arrived, there was a man lying on the ground, injured in the right knee. It was reported that he was a terror ist who had fled. He heard the man say that he was a member of the PKK, that he was Muhsin Ta ş called “Hanemir” from the mountain branch. He did not hear any offer of assistance. The captain said that he was to get medical treatment. The man was helped to his feet and limped to the jeep which took him to hospital.

7) Colonel Erol Tuna

132. The witn ess, born in 1953, was serving in the provincial gendarmerie at Åžirnak in October-November 1993. He was frequently assigned to securing convoys on the Cizre-Åžirnak road from attacks and harassing fire from the PKK. He went three or four times a week. The d istance was about 50 kilometres. He did not exactly remember transferring Muhsin TaÅŸ in one of these convoys. On looking at the transfer document, and on the basis that the man was injured, he would definitely have taken him to the Åžirnak Military Hospital . He did not remember to whom he handed him over. It would have been recorded at the relevant division or the hospital. The man was not taken into his custody in the sense of any judicial responsibility for him. The reference in the transfer document to th e Åžirnak brigade commander he took to mean the Åžirnak border command. It was not important that the time of the transfer was not mentioned. Though he did not recall the incident, he expected that he would have carried the man in one of the armoured vehicles, not in an ambulance. He recalled the name of the provincial gendarme commander at that time but not the brigade commander who would have been a general.

133. In 1993, the Cizre district gendarmerie was attached to the Åžirnak provincial gendarme command. A per son transferred from Cizre would generally be recorded in the provincial gendarmerie custody records. He had no knowledge of the border brigades custody procedures or facilities.

8) Sergeant-Major Kemal Kılıçlı

134. The witness, born in 1954, served in the Şirnak interrogation department of the provincial gendarme command from July 1993 to August 1994.  He personally had no links of co-operation with the Şirnak border brigade. He did not recall Muhsin Taş. He did not remember if he interrogated him. He only interrogated persons in custody at the provincial gendarmerie. There was a register in the interrogation office in which the interrogated persons were recorded. The times of interrogations might be written down if that was needed. When asked if there was a log recording any interviews which occurred in hospital, he stated that the log was in the interrogation office and they only had to ask the permission of the doctor to conduct interrogations in hospital. Notes were made of the information given by the su spect and shown to their superiors. When the evidence was gathered, the suspect would be asked to sign the statement. This might be one hour, one day, ten days or a month later.

135. The action to be taken by their superiors on the information gathered is not their concern. The number of interrogated persons who did not return from operations was not even one per cent. There were no leaks from them to the PKK. He possibly recalled receiving the incident report of 9 November 1993. He did not remember the names of the officers who signed it.  He did not think that an operation was conducted on the basis of the information which Taş gave but believed that an operation might have been going on in that area and he was taken there. In answer to the Government Agent, he agreed definitely that no specific operation took place as there was a massive operation going on already. He agreed that there would have been a record and some-one would have signed for responsibility for Muhsin Taş if he was transferred to the border brigade. He remembered interrogating injured persons who were in the hospital. Injured persons could also be held in the infirmary when the hospital was full. Taş could have been in either.

9) Senior Staff Sergeant Adem Akyüz

136. The witness, born in 1965, served as an interrogation NCO at Şirnak interrogation officer for two years from 16 July 1993. The interrogation office was attached to the provincial gendarme command and had no connection with the brigade command. They gave the information to the provi ncial command and where it went after that he did not know. His immediate superior was Kemal Kılıçlı. There were seven or eight in the office.

137. The witness remembered Muhsin Taş. Taş had an injury. They had a short interview with him in hospital under the supervision of a doctor. They took short notes and gave them to the provincial gendarmerie command. He could not remember exactly but probably Kemal Kılıçlı and Dursun Öztürk were there. He could not remember if it was the hospital or the infirmary where T aş was - it could have been either. After that interview, he did not see him again. No statement was taken. He did not know if the interrogation notes still existed. The information related to the area where the person had carried out activities. He was co -operative. He did not know how long Taş had been at the hospital before he saw him. He did not hear what happened to him afterwards. When asked why they did not go back to see Taş again, he said that they were waiting for him to be discharged from hospita l. At another point, he stated that they never tried to conduct a second interview.

138. He had not seen the report of 9 November 1993 before. He had no knowledge of the signatories. If a suspect confessed, they contacted the district gendarmerie and they cam e and took the statement. It was the district gendarmerie who referred the person to the judicial authorities. He did not know how he had been identified by the authorities as one of the persons interrogating TaÅŸ, whether it was from the interrogation note s or in another way. Perhaps it was because he had been serving there at the time. He had never been asked about Muhsin TaÅŸ before.

10) Staff Sergeant Dursun Öztürk

139. The witness, born in 1967, served in the Şirnak provincial gendarme interrogation depart ment from about mid-1992 to the end of 1994. They had no relations with the 23 rd gendarmerie border brigade. He did not recall anyone called Muhsin Taş and had not heard about his escape. He had not seen the report of 9 November 1993 before. He had worked with Akyüz during his time at Şirnak. He did not recall interviewing someone in their bed in the hospital or infirmary but he might have taken part. He did not remember. When asked how he had been identified to give evidence, he said that there would be a medical report showing the person had been brought to them or a permission to hold the person in custody. He did not think that he had been identified as a person who had interrogated Muhsin Taş but as a person who worked there. His name would be in the fi les showing that he worked there at the time. An interrogation could extend over fifteen days. No suspect had disappeared in the middle of being interrogated by them. The same people would interrogate throughout. When an interrogation ended, the person was handed over to the district gendarmerie who referred him to the court. The court would then free them or place them in detention on remand. They themselves did not take statements but short notes. He did not think that the 23 rd gendarme border brigade wou ld send someone to listen to interrogations but would have acted on the information from the short notes handed in. Only people from the district gendarmerie could take part in an interrogation.

11) Nedim Kaya

140. The witness was born in 1969. He met Muhsin Taş around October 1993 when he had joined the PKK in the mountains as a fighter. He met him during his fifteen day training period. They trained together as a team, eating, drinking tea, standing guard, sleeping in each other’s company. Taş told him that he was from Tatvan, that he used to drive an excavator. It was forbidden for PKK members to talk about families together. Each on joining received a code name, their real name staying in the file. He knew Taş as Hanemir but he asked Taş his real name and though it was against the rules they told each other as friends. Taş was an ordinary soldier, not a fresh recruit. After the training period, Hanemir volunteered to go to Cizre. He and six others went to Cizre to carry out activities under the command of H alil and Celal, high-ranking leaders. He told the witness that his family was in Cizre. The witness heard that after a short time there was a clash and Hanemir had been injured and captured. They learned about a month later that Hanemir was in the hands of the security forces.

141. The PKK had a camp in Karageçit in the Gabar mountains. One day, the witness saw that Hanemir had come to the camp. He said that he had escaped, that he had told the security forces that he would take them to the mountains to show th em routes, places, gaining their confidence while intending to use the opportunity to escape. He was treated as a hero. They all asked him how he had managed it. He said that he showed the soldiers a place and told them it was a shelter. The soldiers drew back. He told them not to go to the shelter as there might be terrorists who would shoot the soldiers but would not shoot him. He walked five-six metres from the soldiers and then ran away.  This place was about five to six kilometres from their camp. It w as mountainous, with two metres of snow on the ground. It was rocky and a person could lie down and hide. It was cold but perhaps not below zero as it was warmer where there were forests. There was no snow at their camp which was lower down.  He did not re member it raining.

142. The witness supposed that the soldiers must have trusted Muhsin Ta ÅŸ to be sincere. There was no clash at that time, though he did not know if the soldiers shot after TaÅŸ. They certainly did not chase after him to the camp. Probably they feared that TaÅŸ would bring the PKK in an ambush or trap them. The witness did not se e his wound but heard TaÅŸ say that he had had an injury in the leg. He was walking normally. At another point, he said that he did not see TaÅŸ again after the fifteen day training period. The witness was certain on being questioned that he had joined the P KK in October. Though he was not sure of the dates exactly, it had been October when he left home.

143. Taş was about 1,75 m tall, average build, the front of his hair was receding, he had a long nose, his moustache chestnut brown drooping towards his lips. Hi s first name was Mahsun in Kurdish, Muhsin in Turkish. He told the witness that he had been wounded in 1992 following a massive clash in Iraq. About 80 PKK men were shot, Hanemir being shot twice. He did not know why Taş had come to Gabar. He had fully rec overed and was in fighting condition when the witness knew him. Taş stayed with them for a week after his escape. Haftanin was the main headquarters at the time. There were doctors there so they sent him there to get good treatment. There was an operation in Gabar at that time and all the unfit people were sent away. At another point, the witness had said that the last time he saw Taş was in February (while he says 1993, this is presumably a slip for 1994). After escaping, Taş had spent time with the higher -up people, Celal and Halil, and Süleyman. The witness could not talk with him very much. He referred to the higher commanders interrogating him, holding a trial. The others could not approach him. The commanders had to find out what he had said to the Sta te, whether he was intending to shoot one of them. They had once executed someone who came from Cizre whose account contained contradictions. He said that the PKK would not forgive some one who brought the soldiers as they might be there at the time, regar dless of whether it was a headquarters.

144. Süleyman Fidan was the commander of the unit in which he and Taş were. Fidan surrendered, staying with the State for one year, then he and his wife joined the PKK again. He was now in Northern Iraq.

145. The witness w as obliged to tell the State everything that he had seen. He gave statements in 1994 and in 1995. He made his first statement about TaÅŸ in 1995. In 1996, the gendarmes called him, saying that he had to make a statement and he repeated his earlier statement about TaÅŸ. He had not made statements about other people. He must have made 30-40 pages of statements about the PKK. He made his statement about TaÅŸ because they asked him if he knew him. When asked why in his statement he had not mentioned that TaÅŸ was i njured, he said that at the time he did not speak good Turkish so maybe he had not been understood or maybe it had not been written down. He did not remember whether the statement was read out to him.

Witnesses who did not appear

146. The Commission's Deleg ates had also called as witnesses the three officers who had signed the report of 9 November 1993, which had described Muhsin Ta ş’s alleged escape. On the first day of the hearing, the Government Agent informed the Delegates that he had recently received information that the names were code names and that the authorities were unable to identify them or find their addresses.

C. Rel evant domestic law and practice

147. The Commission has based itself on 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, Reports 1998-III, p. 1152 and IV, p. 1504).

1. State of Emergency

148. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security force s 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.

149. Two principal decrees relating to the south-eastern region have be en 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.

150. The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to or der 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 Provincia l 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 prejudic e to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.”

2. Criminal law and procedure

151. 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).

152. For all these offences complaints may be lodged, pursuant to Ar ticles 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 sho uld 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 commi tted by members of the security forces

153. 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.

154. The public prosec utor 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 149 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 Go vernor 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

155. 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.”

156. 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 indivi dual life and property.

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

5. Civil law provisions

158. 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 of that Code.

III. OPIN ION OF THE COMMISSION

A. Complaints declared admissible

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

- that his son, Muhsin Taş,  who had gone missing, had been deprived of his life;

- that his son had been tortured and ill-treated;

- that the disappearance of his son caused the applicant inhuman and degrading treatment;

- that his son had been arbitrarily detained without the application of the requisite procedural safeguards;

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

- that these matters disclose discrimination;

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

B. Points at issue

160. 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;

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

- 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.

C. Evaluation of the evidence

161. 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 Conventi on. 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 applicants’ complaints. The Commission has based its findings on the evidence give n 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 orall y through interpreters: 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 c onflicting 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 th e conditions pertaining in the region. It was also hampered by difficulties in identifying eye-witnesses to events, in particular the three officers who signed the report of 9 November 1993 concerning Muhsin Ta ş’s alleged escape. 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 import ance 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

162. In October-November 1993, the Cizre region was su bject to intense terrorist activity. The town of Cizre was close to the Gabar mountain area, where there were numerous PKK camps and shelters. The road between Cizre and Åžirnak was subject to attack, necessitating armed protection for convoys passing on the main road between the two towns.

163. The district gendarme commander in Cizre at the time was Captain Temizöz. From his evidence and that of other gendarmes, it appeared that the provincial gendarme headquarters was at Şirnak. There was an interrogation centre for questioning suspects there. Close to the provincial gendarme headquarters were the headquarters of the 23 rd gendarme border brigade. Captain Temizöz described th e latter as his superiors. The interrogation officers, Kemal Kılıçlı, Adem Akyüz and Dursun Öztürk who worked for the provincial gendarmerie, were agreed in their evidence that they had no connections with the border brigade though their superiors would ha ve. From the descriptions given of the chain of command, it appears that the provincial gendarmerie, commanded by a colonel, was subordinate to the brigade command, which was commanded by a General.

2. The apprehension of Muhsin TaÅŸ

164. The evidence, writt en and oral, is relatively consistent on this aspect of the case. During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes jointly early in the morning of 14 October 1993, Muhsin Taş was shot in the knee an d taken into custody by gendarmes under Captain Temizöz’s command. Sergeant Burhanettin Kiyak gave the time as about 05.00 hours, as did later official documents (see transfer record, para. 59). It was alleged that Muhsin Taş had been found in possession o f a Kalashnikov rifle, handgun and hand grenades. There was a search report of 14 October 1993 detailing this incident. According to this report and the oral evidence of Captain Temizöz, Muhsin Taş immediately revealed to the gendarmes his name, that his c ode name was “Hanemir” and that he had come to Cizre to carry out actions for the PKK. Captain Temizöz gave evidence that it was apparent from what Muhsin Taş told him that he was a commander. However he did not recall that Taş made any offer to him to giv e assistance in finding PKK locations. Sergeant Burhanettin Kiyak, who was also on the scene at this time, heard Taş give his name and code name and say that he was from the mountain. He did not hear Taş volunteer any assistance to the security forces eith er.

165. After this initial exchange with the gendarmes at the scene of his capture, the Commission finds that Muhsin TaÅŸ was taken more or less immediately to the Cizre State Hospital. The hospital report by Dr Palpas gave the time of his admission for treat ment as 05.50 hours. Dr Palpas had no recollection of Muhsin TaÅŸ but was of assistance in deciphering his report for the Delegates. According to this, TaÅŸ had an entry and exit wound to the knee, with injury to the front lower right knee joint. He was cons cious and at that point his life was not in danger. Due to the lack of equipment and orthopaedic expertise, Dr Palpas recommended his transfer to Mardin.

166. At a time unknown the same day, Muhsin Taş was handed over to Captain Erol Tuna, an officer from the Şirnak provincial gendarmerie who was in command of the convoys going between Cizre and Şirnak. The applicant who arrived in Cizre in an attempt to find his son, told the Delegates that he talked at some point in October-November to a taxi driver who told him that he had been detained by the police in a big operation in Cizre. The taxi driver had seen a man who had been apprehended, injured, during that operation, whom the applicant thought must have been his son. The person concerned was naked, and being dragged face down. The Commission finds however that this evidence reported second hand cannot be relied on. It is largely supposition that this individual was the applicant’s son and the date and location of this sighting are not specified.

167. The Commissi on requested, on numerous occasions, the records which indicated the places and times of Muhsin Taş’s detention following his apprehension. No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to t he Şirnak convoy. It may perhaps be deduced from the transfer record signed by the police chief that he was under the responsibility of the police who had jurisdiction within the town of Cizre itself. However, while this may have been the jurisdictional po sition, there is in fact no evidence to indicate whether it was the police or the gendarmes who held him during this brief period. Captain Temizöz thought that Taş must have been entered in the Cizre district gendarme records as he was detained pursuant to the authority of the Cizre public prosecutor. Records provided by the Government however, apparently from Cizre district gendarmerie, contain no entry concerning Muhsin Taş.

168. The decision to transfer appears to have been taken by the Şirnak 23 rd gendarme border brigade. Captain Temizöz gave oral evidence that he reported the capture of Taş to the brigade command and that they requested his transfer to Şirnak. The transfer record of 14 October 1993 also refers to the brigade’s request. The reason for the tr ansfer was not expressed in that document. Captain Temizöz considered that Taş would have had to go to Şirnak as he was a commander with information about Gabar and it was the forces in Şirnak who conducted operations in the Gabar mountains.

3. Muhsin T aş’s detention in Şirnak

169. The only record relating to Muhsin Taş’s detention after his arrival in Şirnak is the entry in the Şirnak Military Hospital polyclinic record. This is dated 14 October 1993, giving no time. Neither Captain Erol Tuna nor the doctor who gave treatment had any recollection of the incident so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered.

170. Dr Can, who treated Muhsin TaÅŸ, considered on the basis of his entry in the hospital record that he would have treated the injury, placing a long leg splint or supervising an assistant in doing so. He was of the opinion that TaÅŸ would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessar y. Indeed from his description of the follow up treatment necessary - antibiotics, which he thought would most likely have been handed to the patient on the spot, and the requirement for the wound to be dressed at three day intervals - it did not seem that the injury was such that continuous hospital care was required.

171. The Commission had requested the Government to summon the gendarme officers who had interrogated Muhsin Ta ş during his stay in Şirnak. Three officers appeared to give evidence: Kemal Kılıçlı, Adem Akyüz and Dursun Öztürk. They had all worked as interrogation officers for the provincial gendarme interrogation department at this time. Only one, Adem Akyüz, remem bered interrogating Muhsin Taş. It is not apparent on what basis the Government had put forward the other two witnesses. The Delegates requested that the Government provide the logs or records from the interrogation department recording Muhsin Taş’s interr ogation, as well as the interrogation notes which the witnesses said would have been taken. The Government replied that there was no information or record indicating that Muhsin Taş had been interrogated at the provincial gendarme interrogation unit and th at no interrogation notes existed. It seems, as suggested by Dursun Özturk, that his name was put forward principally because he had worked in the unit at the relevant time. The only source of information about the interrogation of Muhsin Taş therefore is the oral evidence of Adem Akyüz and the brief comments which appear in various gendarme reports following Taş’s alleged escape.

172. According to Adem Akyüz, he interviewed Muhsin Taş on one occasion, while Taş was confined to bed either in the hospital or in firmary. He remembered taking notes which they gave to their superiors. He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing loca tions. The Delegates had also requested the infirmary records concerning Ta ş’s presence and treatment. The Government stated the infirmary records contained no information about Muhsin Taş.

173. The Commission finds the absence of records as to Muhsin Taş’s location following his treatment by Dr Can to be highly unsatisfactory. It c annot exclude that the hospital or infirmary records were inaccurate but in its experience it has tended to find the records made by doctors to be generally reliable, if sometimes brief, whereas the inaccuracy of, and omissions from, gendarme records have been the subject of adverse findings in a number of cases (eg. Eur. Court HR, Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 185, para. 125, and Çakıcı v. Turkey judgment of 8 Ju ly 1999 to be reported in Reports 1999, para. 105, and No. 23954/94 Akdeniz v. Turkey, Comm. Rep. 10.9.99). It also finds Adem Akyüz’s testimony to present certain difficulties. From his evidence and that of two other interrogation officers, it was general ly expected for the same officers to follow through a suspect’s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor fo r judicial procedures to be followed. Akyüz had no explanation however for why he only visited Taş once. While Taş’s removal from the interrogation process must have been somewhat unexpected or unusual, he apparently knew nothing about it - nor about Taş’s apparent involvement in an operation to locate shelters or his apparent escape afterwards.

174. The Commission notes that while Sergeant-Major Kılıçlı claimed to have no memory of interrogating Muhsin Taş, he did think that he had seen the report of 9 Novemb er 1993 concerning Taş’s alleged escape. He also seemed confident to give evidence that no specific operation would have been set up to act on information given by Taş and that since a massive operation was going on at the time, Taş would have been taken o ut to join it. The Commission finds the testimony of the interrogation officers to be unconvincing, giving the impression of being selective or piecemeal accounts. It is not persuaded that a suspect in respect of whom the provincial gendarmerie had commenc ed interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation. Furthermore, a single, apparently brief interrogation does not explain why two fifteen-day extend ed custody periods were requested by the Cizre district gendarmerie.

175. In any event, Akyüz was unable to give any approximate date to when he saw Muhsin Taş in bed or give any indication whether Muhsin Taş had been there for long beforehand. If this is a t ruthful account which he gave, the Commission finds that it is incomplete (see para. 173 above) and the doubts as to its completeness gives cause for suspicion as to whether the evidence which places Muhsin Taş in a hospital subject to proper medical care is fortuitous. Consequently, the Commission finds that there is insufficient, unambiguous evidence for it to reach any finding as to where Muhsin Taş was held after he was treated by Dr Can on 14 October 1993.

176. The Commission notes that the Government in the oral hearing on admissibility and merits claimed that Muhsin Taş had been treated in the hospital throughout and that it had been reported that during his detention the dressing of his wound had been constantly controlled. The applicant emphasises the lack of any medical or infirmary records to substantiate that Muhsin Taş was either held in medical facilities or received further medical treatment after he had been seen by Dr Can. The Commission recalls that Dr Can indicated that the wound should have b een dressed every three days and that he would have expected himself, or another doctor, to check the patient’s state after a week or ten days. As the applicant alleges however, there is no evidence that he received any follow-up medical care after 14 Octo ber 1993. The Commission accordingly finds that the Government’s assertion about his treatment in hospital is unsubstantiated by the material before it.

4. Muhsin Taş’s alleged escape

177. The sole evidence from official sources supporting the allegation that Muhsin Taş escaped from the security forces while assisting them on an operation in the Gabar mountains to find PKK shelters is the hand-written incident re port dated 9 November 1993, 16.30 hours, signed by a gendarme captain group commander Şeyhmuz Kara and gendarme first lieutenants Burak Bugra and Tarik Göktürk, both of whom were team commanders.

178. The applicant, from the moment when he heard this report, f eared that this was a concocted story and that in fact it was being used to conceal the fact that his son had died during his detention. He relies on a number of features - the inherent unlikelihood that a prisoner, under guard, who had an injury in his kn ee would be able to effect such an escape, the operational implausibility of the operation and the inability to identify the three signatories of the report.

179. As regards the physical ability of Muhsin Taş to undertake an escape, the Commission recalls that many questions on this issue were put to the medical witnesses. The two doctors emphasised that the physical condition of the patient would depend on his particular characteristics and the vary ing progress of recovery that might be seen. It may however be considered as probable that Muhsin Taş was not rendered completely immobile by the injury to his knee. With the long leg splint, he would have been able to hobble, with a crutch or assistance. He would particularly in the early days after the injury have been in considerable pain. By 9 November 1993, a period of 25 days after his injury, it might perhaps have been expected that he had made some recovery. Dr Can, the orthopaedics expert, estimate d that the splint would have had to stay on for three to six weeks and that a patient might be able to run as well as walk within the same range of time. He pointed out that with sufficient motivation a person could run, notwithstanding a high level of pai n. In the absence of medical notes about the progress of Muhsin Taş’s recovery and mobility, the Commission cannot reach any firm conclusions as to what state of fitness he would have been in on 9 November 1993. It finds however that it is highly unlikely that he was fully fit or able to walk or run normally at this date.

180. The report concerning the escape is brief, raising many unanswered questions. It indeed seems remarkable, and disclosing carelessness of a significant degree, that a prisoner would be in a position where he could escape as alleged. The report states that Taş ran off after a clash broke out, under cover of the fading light, precipitation and rocky terrain. It does not mention how many gendarmes were involved in the operation, how many were guarding the suspect and whether - and if not, why not - the suspect was not restrained or handcuffed in some way. No details are given of what steps were taken to recover the suspect. The times given on the report are particularly implausible. It was sta ted that the clash broke out at 16.15 hours following which there was a sequence of events - the escape, the discovery of the escape, an unsuccessful search, the monitoring of various radio conversations - culminating in the drawing of the report and its s igning by the three officers at 16.30 hours.  This was put to Captain Temizöz who relied on the information in drawing up his own report for the public prosecutor. He pointed out that the times would have been approximate. The Commission finds however that this element amongst others renders the report an unreliable document and can understand why the story, recounted to the applicant, rendered him highly suspicious. In these circumstances, it was of crucial importance that the three signatories of the repo rt gave explanations of the document and what they in fact saw and did. The Delegates in requesting the Government’s assistance in summoning them to give evidence emphasised that the Government should identify the officers who personally witnessed Muhsin T aş’s escape as the Commission has had experience that the signatories of reports may not have any direct knowledge of the contents (see eg. No. 22277/93, İlhan v. Turkey, Comm. Rep. 23.4.99, para. 186, pending before the Court).

181. At the taking of evidence in May 1998, the Government Agent informed the Delegates that they had been unable to find three officers who signed the report and that they had recently received information that the names used were code names. The Delegates requested that steps be taken to identify the officers who used these code names in November 1993. After the hearing, they requested that the relevant commander of the 23 rd gendarme border brigade provide the identity of the officers or an explanation as to why this was not possible. In response, the Government repeated again that it was not possible to identify the three officers. The Delegates had also requested the other operation records or details which could cast light on the incident. The Government have stated that no other re cords exist.

182. Nonetheless, it appears that steps were taken in domestic enquiries by both the Şirnak public prosecutor and Major Doğan, the gendarme officer appointed by the Şirnak Provincial Administrative Council, to identify the three officers. The documents relating to these investigations were submitted to the Commission by the Government on 1 1 August 1998, after the Commission had closed the taking of evidence and invited the parties to submit their oral observations. They revealed that on 7 February 1997 the Şirnak gendarme commando special operations group command stated that the names of th e three officers were unknown and not found in their records and that due to a fire in 1993 all the documents relating to the past were unknown and the identities of persons who went to Gabar at that time could not be established. This appears to include s everal different explanations for an inability to provide the information, and fails to specify the date of the fire which wiped out the records. However, it seems from the other documents provided that three names of officers who worked in special operati ons in Şirnak in November 1993 were provided by the military authorities and statements were taken from a captain Ozaricanli and lieutenants Isik Tumöz and Semseddin Çetin. It is not apparent on what basis their names were put forward. The letter of 14 Jun e 1996 from the Special Operations Group Command named the first as the group commander and the other two as team commanders. Captain Ozaricanli in his later statement gave the information that he had been in charge of nine teams, which seems to indicate t hat there were at least seven other team commanders at the team. The three identified officers denied any knowledge of the “code names” or the incident. They also denied that personnel were allowed to use code names or to sign reports with code names. The Commission notes that their statements were taken by officers or prosecutors not involved in the investigation and on the basis of pre-arranged written questions. They accordingly give a minimum of information and are on some points ambiguous. In particula r, in his statement of 29 August 1996, Captain Ozaricanli seemed to accept that it was his name and signature that appeared on the report of 9 November 1993 though he went on to express ignorance about the names of the signatories.

183. Though the names of th ese officers were known to the investigating authorities in 1996, the Government did not bring them to the attention of the Commission or its Delegates who could have taken the decision to call them to give oral evidence. Their relevance to the case is the refore unestablished.

184. The Commission notes also a lack of any records which allow the transfer of Muhsin Ta ÅŸ to any particular operational command at Åžirnak to be identified. In particular, there is no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere. The Commission considers that th e assumption underlying the operation has also been unsubstantiated by the evidence. The report of 9 November 1993 stated that Muhsin TaÅŸ offered to show locations during his interrogation. The interrogation officers who gave evidence had no recollection o f this, nor have the Government been able to provide any notes or records of the interrogation which support this statement.

185. The Commission considers it to be a matter gravely affecting the credibility of the Government’s assertions that they have not be en able to provide any substantiating evidence, by way of testimony of relevant officers, or other documentary material, to support the allegation in the report of 9 November 1993 that Muhsin Ta ş escaped in the circumstances alleged gravely a. The Government instead rely on the evidence of two ex-PKK members or “confessors” - the written statements taken from Nedim Kaya and Süleyman Fidan, and the oral evidence of Nedim Kaya, as indicating that M uhsin Taş indeed escaped and rejoined the PKK in the Gabar mountain on 9 November 1993.

186. The Commission however does not find this material to be reliable or, on certain crucial aspects, credible. It refers to the following:

- The Government have not prov ided any explanation for how the two confessors came to be identified at the same time as persons with relevant information about Muhsin Taş. They were asked to provide this information specifically with relation to Nedim Kaya who in his oral evidence stat ed that he was summoned on two occasions by gendarmes and asked specifically to make a statement about Muhsin Taş. It notes that Süleyman Fidan was not available to give oral evidence in support of his written statements as he apparently had rejoined the P KK.

- Nedim Kaya’s and Süleyman Fidan’s statements of 4 November 1995 referred to injuries suffered by Taş in 1992 and made no reference to the injury which he had received in October 1993. Nedim Kaya’s statements referred inaccurately to Taş’s family as l iving in Cizre.

- Nedim Kaya’s statement of 12 January 1996 states that he joined the PKK in November 1993 becoming a friend of Muhsin Taş before his capture in Cizre, though that event occurred on 14 October 1993.

- Nedim Kaya in his oral evidence was unc lear on a number of points. At one time, he said that he did not see Muhsin Taş again after he left for Cizre but then went on to claim that he saw Muhsin Taş after his escape. While he recounted in detail his contacts and conversations with Taş prior to N ovember, his account of his meetings with Taş after his escape are vague and unspecific. When questioned about this, he stated that Taş was frequently with the senior commanders at this point which did not explain his lack of detail as to the occasions whe n he did see or talk to him. Kaya also contradicted himself as to when Taş was last seen at Gabar. He stated at one point that Taş left Gabar a week after his escape and then stated he last saw him in February 1993 or 1994. The reasons he gave for Taş’s de parture varied as well - on the one hand, he was sent away for treatment for his leg by the doctors at the Haftanin headquarters, though he was walking normally, while on the other hand he was evacuated with the unfit because there was a massive operation going on. His oral testimony in which he claims to have talked to Ta ş after his escape also contradicts his statement of 12 January 1996 in which he stated that he learned of Taş’s escape and subsequent movements from either radio messages or other people.

- Nedim Kaya’s accounts do not support the report of 9 November 199 3 in a number of points and they cannot be regarded as convincing corroboration of their respective contents. Nedim Kaya’s description of the escape refutes the claim that Taş escaped during a clash and refers to his tricking the gendarmes by saying that h e would show them a shelter and gaining a five-six metre distance sufficient to take to his heels.

- Nedim Kaya’s oral account refers to there being two metres of snow in the place where Taş escaped, the terrain being mountainous and affirms that Taş walke d five-six kilometres across this terrain to the headquarters. This is equally hard to reconcile with the known injury to Taş’s knee.

- Nedim Kaya was insistent that he spent a fifteen day training course with TaÅŸ after he joined the PKK in October, which explanation formed the basis for his claim of forming a close friendship with TaÅŸ. This timing is irreconcilable with the apprehension of a suspect claiming to be TaÅŸ in Cizre in the early hours of 14 October 1993.

187. The Delegates assessed Nedim Kaya as an intelligent witness who might have met Muhsin TaÅŸ at one point and who gave animated, detailed descriptions which were initially plausible. However, the increasing contradictions and inconsistencies as he gave evidence gave an impression of hasty embroider y. They concluded that they were not satisfied that he had seen Muhsin TaÅŸ after 9 November 1993 as asserted, which conclusion the Commission adopts.

188. Consequently, the Commission finds that Government’s claim that Muhsin Taş escaped while assisting the se curity forces on an operation is not sufficiently substantiated by the evidence given and cannot be regarded as established as a fact or a significant probability. There is accordingly no satisfactory explanation for what happened to Muhsin Taş after he wa s treated by Dr Can at Şirnak Military Hospital on 14 October 1993.

5. Domestic proceedings and investigations

189. The Delegates found the applicant to be a convincing witness, who demonstrated deep distress and ongoing suffering at the disappearance of his son. The Commission accepts his evidence as regards his contacts with the authorities. The Delegates found the Cizre public prosecutor however to be evasive and nervous. As previously adverted to, documents provided after the taking of evidence gave detai ls of domestic investigations by the Åžirnak public prosecutor and the Åžirnak provincial administrative council. No opportunity was therefore provided for taking evidence from the persons involved in these procedures. In light of the evidence available to it, the Commission finds as follows.

190. The applicant was informed on 15 October 1993 that his son had been apprehended and injured in a clash in Cizre. He arrived in Cizre to find his son on 17 or 18 October and went to see the public prosecutor immediately. He was told to come back after the f ifteen day extended custody period. Meanwhile, the applicant sought to see or discover further information about his injured son by approaching the gendarmerie in Şirnak and Cizre but was not allowed in. At the end of the fifteen day period, which would have been at the end of October or beginning of November, he returned to the public prosecutor handing in a written petition. The public prosecutor signed the petiti on and he took it to the district gendarme commander who referred him back to the public prosecutor. Though this petition has not been provided with the documents and Captain Temizöz has no recollection of this matter, the Commission has no reason to doubt the applicant’s evidence on this point. While waiting for the second fifteen day period to end, the applicant returned to the public prosecutor repeatedly seeking for news and on one occasion, the public prosecutor contacted the district gendarmerie by te lephone.  On the expiry of the second period, he went yet again to the public prosecutor. On 18 November 1993, he handed in a further written petition which stated that he had no news although a week had passed from the end of the second custody period. He requested information and stated that he feared for his son’s life. On or about this date, the public prosecutor informed him that it was reported that his son had escaped. The written report from the district gendarmerie to the prosecutor was dated 19 No vember 1993 but it is possible that the information was received by the public prosecutor prior to this date. The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed.

191. The public prosecutor at Cizre took no steps to investigate the alleged escape of Muhsin Ta ş while in custody in reaction either to the applicant’s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape. On 13 December 1993, the public prosecutor issued a decision of withdrawal of jurisdi ction and transferred the file concerning Muhsin Taş as a suspected member of the PKK to the Diyarbakır State Security Court public prosecutor.  It stated as an apparent fact that he had escaped to rejoin the PKK. The steps taken by the SSC prosecutor were related to investigating his membership of PKK and not related to investigating his disappearance (see paras. 66-67). The applicant returned to Cizre in January 1994 to see the public prosecutor, who informed him that the case had been transferred to Diya rbakır.

192. Following the communication of the case to the respondent Government in October 1994, it appears that an investigation was briefly pursued by the Cizre public prosecutor (no. 1995/653) This was limited to an enquiry dated 27 November 1995 to the C izre district gendarme command for the names of the officers who signed the report of 9 November 1993 to be identified. Following a letter dated 29 November 1995 from the Cizre district gendarmes which stated that enquiries should be addressed to the Åžirna k gendarme border regiment command, and that the special operations group command were responsible, the Cizre public prosecutor declined jurisdiction in a decision of 7 December 1995, transferring his file to the Åžirnak public prosecutor. The Åžirnak public prosecutor had also commenced an investigation (prel. 1995/665) under the prompting of Ankara. He appears to have taken the following steps:

- on 10 December 1995, a request was made to the Åžirnak 23 rd gendarme border regiment for the identities of the p ersonnel of the special operations group involved in the operation of 9 November 1993 to be identified;

- on 13 December 1995, a statement was taken from the applicant on 13 December 1995 by the Kastamonu public prosecutor;

- on 12 January 1996, a stateme nt was taken from Nedim Kaya by a public prosecutor;

- on 4 April and 25 May 1996, an urgent reminder was sent requiring a response to the above request of 10 December 1995;

- on 27 May 1996, a request for information about the identities of personnel was sent to Åžirnak provincial gendarme command who replied on 29 May that it was the Special Operations Group Command who had taken Muhsin TaÅŸ;

- following receipt of a letter on 14 June 1996, in which the Special Operations Group command denied knowledge of the three names on the report of 9 November 1993 but named three officers (Ozaricanlı, Tümöz and Çetin) as being group commander and team commanders at that time, a request was made for those three officers to be asked a list of four specific questions, na mely, about whether they were serving in the Special Operations Group Command at the time, whether they or the Special Operations Group Command received Muhsin Taş, whether they knew the names on the report and where it would be possible to identify the na mes on the report;

- on 8 July 1996, a request was made of the Cizre public prosecutor for the transfer record concerning Muhsin TaÅŸ.

193. On 28 August 1996, the Åžirnak public prosecutor decided to give up his investigation and issued a decision of withdrawal of jurisdiction, stating that it had not been possible to identify the officers involved in the alleged incident. The decision appears therefore to discount on this point the information provided by the Special Operations Group Command naming three officer s. The decision concluded that the matter should be investigated under the Official Conduct Act as it concerned special operations teams and that the file was to be transferred to the Åžirnak provincial administrative council.

194. The investigation was taken over by the administrative council who by letter of 3 September 1996 appointed Major Doğan, a gendarme officer from the provincial gendarme command to investigate the allegations that Muhsin Taş had been killed and to identify the perpetrators. This stage of the investigation lasted until February 1998. During this period, Major Doğan again asked the Special Operations Group Command specifically to identify the three persons who signed the report. He received the reply on 7 February 1997 that the names were not found in the records and that the records had been burned in 1993 with the result that the names of the personnel who were on operation in Gabar at the time could not be determine d. Major Doğan requested medical records, transfer details about Muhsin Taş from the Cizre district gendarmerie and, via a rogatory request, obtained statements from the applicant, Nedim Kaya, Captain Erol Tuna and the three officers previously named as ha ving served in Şirnak special operations at the relevant time. On the basis of this information, he found in his report of 12 February 1998, that it was established that Muhsin Taş had been taken to Gabar mountain to locate PKK shelters by teams from the 2 3 rd gendarme border brigade special operations group command and that according to the report of 9 November 1993 he had escaped. The statements of Nedim Kaya and Süleyman Fidan were referred to as supporting this. The report noted that there were no interr ogation records concerning Muhsin Ta ş though it appeared that Captain Erol Tuna had transferred him to the Interrogation Unit. The report concluded that it was not possible to establish the identities of the suspects, the identities of the persons of the report not being ascertainable due to changes in military personnel, the failure to keep records properly and the destruction of records. In those circumstances, a prosecution could not be brought. The provincial governor accepted this conclusion and the proceedings were terminated.

6. Conc erning former Article 28 para. 1(a) of the Convention

195. The Commission has referred above to late submission of documents concerning the domestic investigation into Muhsin Ta ş’s disappearance and the Government’s failure to inform it that three officers had been identified as serving in the Special Operations Group Command at the relevant time and as possibly having been concerned with events. While the Commission notes that t hese officers denied any knowledge of Muhsin Taş, their statements were not without ambiguity and they could potentially have provided relevant evidence, in particular concerning the way in which special operations functioned vis-à-vis the other gendarme s tructures and cast light on how and in what circumstances prisoners could be used on operations. It finds that in the circumstances the Government have fallen short of their obligations under former Article 28 para. 1(a) of the Convention to furnish all th e necessary facilities to the Commission in its task of establishing the facts of this case.

D. As regards Article 2 of the Convention

196. Article 2 of the Convention provides:

“1. Everyone's right to life shall be protected by law.  No one shall be depr ived 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."

197. The applicant submits that it is clear beyond reasonable doubt that Muhsin Taş is dead and that the authorities are responsible for his death.  Alternatively, it is clear that the authorities failed t o protect the life of Muhsin Taş as he died while in custody. In addition, there was an obligation to conduct an independent, thorough and effective investigation into an allegation of a probable suspicious death. However there was no investigation on the basis of the applicant’s petition to the Cizre public prosecutor while the investigation by the Administrative Council was not independent or thorough and did not permit the effective participation of the applicant.

198. The Government deny that there is evid ence beyond a reasonable doubt establishing that Muhsin Ta ÅŸ was killed while held in detention. They point out that he was a wounded militant who was treated for his injuries at a hospital and that what took place at the final stage of his detention was recorded by the personnel responsible for the reconnaissance operation. There is no evidence contradicting that position but evidence from Nedim Kaya corroborating it. They emphasise that the purpose of the application is to dishonour the security forces who were combating terrorist violence in a time of peak publi c disruption.

199. The Commission has found that there is no reliable evidence as to what happened to Muhsin TaÅŸ after he was treated by Dr Can at Åžirnak Military Hospital on 14 October 1993. It has not accepted the evidence of the confessors who claimed to have seen him aft er that date and has found that the report of 9 November 1993 cannot be relied on in light of its questionable content and the failure by the Government to provide an opportunity to question those responsible for drawing it up. In these circumstances, it f inds that there is no satisfactory explanation for what happened to Muhsin TaÅŸ during his detention and that he may be regarded as a victim of a disappearance.

200. The Commission recalls that there has been no information forthcoming about the whereabouts or fate of Muhsin TaÅŸ for a period of over five years and ten months. The Commission has had regard to the lack of official documentary or witness evidence to support the allegation made in the report of 9 November 1993. It draws strong inferences in particu lar from the failure of the authorities to identify the authors of that report and the lack of written records as to where Muhsin TaÅŸ was detained after 14 October 1993. It considers that where an unsubstantiated report of escape is relied on to explain th e disappearance of a detainee a strong presumption arises that the detainee has died. The Government which are under an obligation to account for the persons in their custody, have failed to rebut this presumption.

201. The Commission recalls that in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1152), the Commission and Court considered that the disappearance of the applicant’s son following his apprehension by gendarmes and village guards fell to be considered und er Article 5 of the Convention with its guaranteees against arbitrary deprivation of liberty rather than under Article 2 of the Convention. It notes that in the Kurt case few of the circumstances surrounding the disappearance and detention were known. Simi larly, in the case of Cyprus v. Turkey, (No. 25871/94, Comm. Rep. 4.6.99, paras. 173, 175, 214-218, 223-224) the factual circumstances surrounding the disappearance of a large number of persons in Cyprus in 1974 were not established.

202. The Commission finds however that in the present case there is sufficient circumstantial evidence to conclude, beyond reasonable doubt, that Muhsin TaÅŸ has died. Since his death occurred after his detention by the security forces and in the absence of any justifying explanatio n for his loss of life, the Commission finds that the respondent Government must be regarded as liable for his death, which has occurred in breach of Article 2 of the Convention.

203. The Commission further recalls that Article 2 imposes a requirement that, i n the cases of the use of lethal force, an effective investigation be undertaken:

“The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, a gents of the State.” (Eur. Court HR, McCann and Others v. the United Kingdom judgment of 27 September 1995, op.cit ., p. 49, para. 161)

204. The Commission finds that this principle applies equally to the present case.

205. In the present case, it recalls that no i nvestigation was instigated by the Cizre public prosecutor on receipt of the report that Muhsin Taş had escaped notwithstanding the applicant’s concerns, expressed in a petition and orally. Investigations were only commenced following the communication of the application to the Government. The documents provided to the Commission show that no steps were taken until the end of 1995, almost two years after the disappearance.

206. The investigation commenced by the Şirnak public prosecutor lasted approximately ni ne months - December 1995 to August 1996 - during which time he obtained a statement by the applicant and a further statement from Nedim Kaya and his efforts to obtain the identities of the signatories of the report of 9 November 1993 resulted in the ambig uous provision of names of three officers who were in the special operation teams at that time. His decision of the withdrawal of jurisdiction referred however to the inability to establish the identities of the signatories. The investigation taken over by the provincial administrative council lasted another six months during which statements were received from the three special operation team officers, Erol Tuna, the applicant and Nedim Kaya. No statement was taken from Captain Temizöz who as district gend arme commander had a role in and responsibility for Muhsin Taş’s detention. Also while it appears that some information was sought about the interrogation of Muhsin Taş at Şirnak, it is not apparent that steps were taken to identify or question the interro gation officers who might have been involved. This provincial administrative council investigation ended also with the conclusion that the identities of the three officers could not be established. The Commission has noted the limitations in the way in whi ch the operation team officers were questioned and the ambiguity in one statement which was not clarified by further interviews (para. 182). The somewhat vague explanations of the Şirnak brigade special operations group command as to their inability to ide ntify the signatories of the report were also accepted without further investigation. The Commission is struck by the alleged destruction of records of personnel which prevented identification of personnel who went to Gabar contrasted with the ability none theless to name three officers who were in the teams at the time. While the Commission accepts that a number of essential investigative steps were taken therefore, it finds that they were not followed up with any determination.

207. Accordingly, the C ommission finds that there was no prompt investigation into the allegation that Muhsin Taş had been killed by the security forces and that the later investigations which did take place were not thorough or effective. It has in previous cases found that the use of p rovincial administrative councils in this context does not comply with the requirement that the investigation be carried out by an independent body in a process accessible to the alleged victim’s close relatives (see eg. Eur. Court HR, Güleç v. Turkey judg ment of 27 July 1998, Reports 1998-IV, pp. 1732-33, paras. 80-81, Oğur v. Turkey judgment of 20 May 1999, Reports 1999-..., paras. 91-92). It recalls that the investigator in this case was an officer in the provincial gendarme command, subordinate to the same chain of command as the s ecurity forces which he was investigating and that the Administrative Council was composed of senior officials from the province and chaired by the Governor, who was administratively in charge of the operation of the security forces. The Commission recalls that the purpose underlying the requirement to provide an effective investigation is to ensure that the use of lethal force by agents of the State is subject to public scrutiny and that the State may be held accountable (see McCann and others v. the Unite d Kingdom, Comm. Rep.). Having regard to these defects, the Commission finds that the investigations did not provide any safeguard as regards protection of the right to life.  In the se circumstances, the Commission finds that there has been a failure to pr ovide an adequate and effective investigation into the circumstances in which Muhsin Ta ş disappeared, which discloses a failure to protect his right to life in breach of Article 2 of the Convention in addition to that found above (para. 202).

CONCLUSION

208. The Commission concludes, by 27 votes to 1, that there has been a violation of Articl e 2 of the Convention.

E. As regards Article 3 of the Convention

i. Concerning Muhsin TaÅŸ

209. Article 3 of the Convention provides as follows:

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

210. The applicant sub mits that while his son was detained he was kept naked, blindfolded and dragged face down. His son was also denied medical treatment. He should have had a check-up a week to ten days after the splint was placed on his leg, a check up two weeks after that a nd the dressing on his wound should have been changed regularly. This was not done. He was kept for at least 26 days incommunicado on the Government’s version of events. The insecurity and fear of ill-treatment, taken with the other elements, constituted t orture.

211. The Government reject any allegation that Muhsin TaÅŸ was ill-treated or tortured during his detention and submit that he received prompt and proper medical care.

212. The Commission has had regard to the strict standards applied in the interpretation of Article 3 of the Convention, according to which ill-treatment must attain a certain minimum level of severity to fall within the provision's scope. The practice of the Convention organs has been to require compliance with a standard of proof “beyond rea sonable doubt” that ill-treatment of such severity has occurred (Ireland v. the United Kingdom judgment, op. cit ., p. 65, paras. 161-162).

213. The Commission recalls its findings above (para. 166). It has not found sufficient basis to establish that it was Mu hsin Taş who was seen being dragged naked in detention in Cizre. As regards the medical treatment provided to Muhsin Taş, the Commission’s case-law indicates that the failure to provide necessary medical care may disclose inhuman or degrading treatment con trary to Article 3 of the Convention (see eg. No. 22277/93, İlhan v. Turkey, op. cit ., para. 232). However, the evidence before the Commission indicates that Muhsin Taş received appropriate treatment for his injury on 14 October 1993 at Mardin State Hospit al and Şirnak Military Hospital. There is an absence of records as to the treatment, if any, which he received after that date. Dr Can was of the view that there would have been records if Muhsin Taş had been seen again at Şirnak Military Hospital and the Government have stated that there are no records of Taş at the infirmary at the headquarters. The Commission cannot however draw an inference from the lack of records that he did not in fact receive the necessary antibiotics or changes of dressing outside the hospital or infirmary. The feelings of insecurity which Muhsin Taş may have suffered, when and in what circumstances, are also a matter largely of speculation.  The Commission finds therefore that there is no evidential basis which would permit it to r each a conclusion to the applicable standard of proof that Muhsin Taş suffered treatment contrary to Article 3.

CONCLUSION

214. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of Muhsin TaÅŸ.

ii. Concerning the applicant

215. The applicant submits that the disappearance of his son, and the circumstances in which this occurred, caused him such a degree of suffering as to constitute inhuman and degrading treatment contrary to Article 3 of the Conve ntion. He relies in particular on the Court’s judgment in the Kurt case (Kurt v. Turkey judgment, op. cit ., pp. 1187-1188, paras. 133-134).

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

217. 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 detentio n. 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 a ny 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. In the subsequent case of Çakıcı v. Turkey (Eur. Court HR, judgment of 8 July 1 999, Reports 1999-..., paras. 98-99), it clarified that there was no general principle that a family member of a disappeared person was thereby the victim of treatment contrary to Article 3, such a finding being dependent on the existence of special factor s.

218. In the present case, the applicant spent over a month in Cizre, trying to obtain information about his son. He was referred from the public prosecutor to the district gendarmes who referred him back again. He was told by the public prosecutor to come b ack after fifteen days, only to be told to come back after another fifteen days. He tried going to Åžirnak and finding information from the gendarmes there. His written petition and oral complaints to the public prosecutor which expressed his fears that his son had been killed were ignored by the public prosecutor who did not commence any investigation into the circumstances of the case.

219. The Commission’s Delegates, who heard the applicant give evidence, were in no doubt as to the agony which he had suffered , and continued to suffer, in respect of the disappearance of his son, which left him in a limbo of doubt, dread and uncertainty. In light of these special features, the Commission finds that the ordeal experienced by the applicant following the apprehensi on of his son discloses treatment of which the applicant can claim to be victim in his own right and in the circumstances it reaches the severity of inhuman and degrading treatment within the meaning of Article 3.

CONCLUSION

220. The Commission concludes, u nanimously, that there has been a violation of Article 3 of the Convention in respect of the applicant.

F. As regards Article 5 of the Convention

221. 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 un derstands, 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 ex ercise 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.”

222. The applicant submits that his son was detained in breach of Article 5 para. 1 as the failure to ent er him in any custody records violated his right to “security of person”. There has been a violation of Article 5 para. 3, notwithstanding Turkey’s derogation, since a period of at least 26 days in incommunicado detention cannot be justified on any ground.   The circumstances of Muhsin Ta ş’s 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 o ut an independent, thorough and effective investigation, which was not complied with in the present case.

223. The Government deny that Muhsin TaÅŸ disappeared, relying on the report that he escaped while assisting the security forces on an operation in the Gab ar mountains. They submit that his apprehension and the escape were appropriately recorded. As regards the length of the period of his detention, they have referred to their derogation under Article 5, emphasising the threat posed by PKK violence and the e xtended detention periods necessitated by the nature and scale of the terrain in the south-east region.

224. The Commission is of the view that disappearances raise fundamental and grave issues under Article 5 of the Convention, which guarantees liberty and s ecurity of person. Article 5 aims to provide a framework of guarantees against abuse of power in relation to persons taken into custody. Such persons are vulnerable to a wide range of arbitrary treatment and infringements of their personal integrity and di gnity. Article 5 plays an essential role in the system of protection under the Convention in effectively preventing the risk of treatment contrary to Article 3 and extra-judicial execution contrary to Article 2 and in holding State authorities accountable to independent judicial control for the detention of persons taken into custody.

225. The Commission has found above (paras. 164 and 188) that the applicant’s son was detained by the security forces during the operation conducted on 14 October 1993 and that th e last reliable record of his detention concerned his treatment at Şirnak Military Hospital on the same day. The Commission finds that the Government have not provided a credible and substantiated explanation of what happened to him after that date. In these circumstances, whatever has happened to Muhsin Taş since he was detained, there is a presumption of responsibility of the Turkish Government for his fate, which has not been rebutted (Cyprus v. Turkey, Nos. 6780/74 and 6950/75, Rep. 10.7.76, para. 351).

226. The Commission has given consideration to what safeguards, if any , exist within domestic law and practice to protect against involuntary disappearances. It has previously emphasised that reliable and accurate records of persons in custody must be regarded as a prerequisite of any lawful exercise of power to detain. Inac curate records facilitate, even foster, arbitrariness, unaccountability and the risk of ill-treatment, extra-judicial execution and disappearances. It has found above (paras. 167 and 169) that no entry has been made in the custody records of the Cizre dist rict gendarmerie or the Şirnak provincial gendarmerie and that no records have been provided concerning where Muhsin Taş was held following his treatment in Şirnak Military Hospital, despite the apparent fact that he was under interrogation by the provinci al gendarme interrogation unit and at some point was allegedly handed over to special operation teams of the 23 rd gendarme border brigade. This lack of records concerning the detention of Muhsin Taş discloses an alarming and fundamental failure to provide necessary safeguards against arbitrary detention and the risk of “disappearance”.

227. The Commission notes that the Government have referred to their derogation in respect of the allegations made by the applicant under Article 5 para. 3. However, as it has p reviously found (No. 23657/94, Ç akıcı v. Turkey, Comm. Rep. 12.3.98, para. 270) a derogation can have no application in relation to a Government’s failure to account for some-one held in detention. It is unnecessary to consider whether the conditions pertaining in the south-east necessit ate long detention periods having regard to geographical considerations since, in any event, the time over which Muhsin Taş was held in detention is unknown and he has never in fact been brought before a judicial officer within the meaning of Article 5 par a. 3 of the Convention. The safeguards required by this provision have therefore also been denied in the circumstances of this case.

228. In addition, while Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable cla im that a person has “disappeared” during detention, the Commission has noted the defects in the investigations (paras. 205-207). It finds that there has been neither a prompt nor an independent or effective inquiry into the circumstances of the disappeara nce of Muhsin Taş.

229. The Commission concludes that the applicant’s son has been arbitrarily deprived of his liberty contrary to Article 5 and in disregard of the guarantees of that provision concerning the legal justification for such deprivation and requis ite judicial control. Such unaccounted disappearance of a detained person must be considered as a particularly serious violation of the right to liberty and security of person guaranteed by Article 5 of the Convention taken as a whole.

CONCLUSION

230. The Co mmission concludes, unanimously, that there has been a violation of Article 5 of the Convention.

G. As regards Article 13 of the Convention

231. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in this Conv ention 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.”

232. The applicant complains that in relation to both himself and his son 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 and members of administrative councils. He refers in particular to the lack of activity by the Cizre public prosecutor in response to his petitions and the failure of the later investigation to identify the three signatories of the alleged escape report. He submits that there is a practice of ineffective rem edies 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 e g. Kurt v. Turkey judgment of 25 May 1998, op. cit ., p. 1152, Çakıcı v. Turkey judgment, op. cit., and cases pending before the Court, Nos. 23531/94, Timurtaş v. Turkey, Comm. Rep. 29.10.98, 20764/92, Ertak v. Turkey, Comm. Rep. 4.12.98; 23954/94, etc).

233. T he Government dispute that the applicant has made proper use of the remedies available to him in respect of his 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 pe nding with the Diyarbakır State Security Court prosecutor.

234. The Commission recalls that Article 13 of the Convention, together with Article 1 of the Convention, reflects 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 Unite d 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 (Aksoy v. Turkey judgment of 18 December 1996, 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 shou ld not be required to, act as a first instance tribunal, a role which the national authorities are in the best position to fulfil.

235. In the present case, the Government have argued that in fact the applicant has not availed himself of the available remedies . The Commission recalls however that it has found that the applicant had made numerous approaches to the authorities in Cizre, namely, the public prosecutor and to a lesser extent the district gendarmerie. It has found that the applicant submitted two wri tten petitions to the public prosecutor as well as communicating orally his fears for his son’s life. In these circumstances, the Commission is satisfied that the matter was sufficiently brought to the attention of the relevant authorities, in particular t he 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. It does not find that the ongo ing investigation at the State Security Court in Diyarbakır concerning Muhsin Taş’s alleged PKK activities is in any way relevant to the applicant’s complaints.

236. The Commission recalls that, in concluding that there was a violation of Articles 2  and 5 of the Convention, it found that the investigation into the circumstances in which the applicant’s son disappeared was inadequate. It recalls however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of A rticle 2 to conduct an effective investigation (Eur. Court HR, Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 330, para. 107). Further, where an individual has an arguable claim that a member of his family has been killed by or disappeared at the hands of the agents of the State, 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 an d including effective access for the complainant to the investigatory procedure (see also, Eur. Court HR, Kurt v. Turkey, op. cit ., p. 1189, p ara. 140, Ergı v. Turkey judgment of 28 July 1998, Reports 1998-IV, para. 98).

237. The Commission recalls its findings above on the inadequacies of the investigation, in particular, the failure of the Cizre public prosecutor to take steps promptly in respons e to the applicant’s complaints and the lack of independence of the administrative council investigation, which failed thoroughly or effectively to pursue the enquiries made regarding the security force personnel involved in the alleged escape of 9 Novembe r 1993. It further notes that the applicant was not informed of the administrative council’s decision in this case, thus depriving him of the possibility of appealing to the Supreme Administrative Court. Having regard to these factors, the Commission finds that the applicant has been denied an effective remedy against the authorities in respect of his allegations and thereby access to any other available remedies at his disposal, including a claim for compensation. T here is no indication in light of these d omestic investigations that any practical purpose would have been served by any other proceedings.

CONCLUSION

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

H. As regards Articles 14 and 18 of th e Convention

239. 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, n ational or social origin, association with a national minority, property, birth or other status.”

240. Article 18 provides:

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

241. The applicant maintained in his application that his son had been subject to discrimination in that he was detained and has since disappeared because of his Kurdish origin. He has not included any further arguments in his final observations on the merits. Regarding Article 18, he submits that a disappearance of a person 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.

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

243. The Commission has examined the applican t’s allegations in the light of the evidence submitted to it but considers them unsubstantiated.

CONCLUSIONS

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

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

I. Recapitulation

246. The Commission concludes, by 27 votes to 1, that there has been a violation of Article 2 of the Convention (see para. 208 above).

247. The Commission concludes, unanimousl y , that there has been a violation of Article 3 of the Convention in respect of Muhsin TaÅŸ (see para. 214 above).

248. The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of the applicant (see para. 2 20 above).

249. The Commission concludes, unanimously, that there has been a violation of Article 5 of the Convention (see para. 230 above).

250. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (see para. 238 above).

251. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention (para. 244 above).

252. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (para. 245 ab ove).

M.-T. SCHOEPFER                S. TRECHSEL

               Secretary                                       President

      to the Commission                   of the Commission

(Or. English)

CONCURRING OPINION OF SIR NI COLAS BRATZA

As in the case of Akdeniz v. Turkey, I have voted with the majority of the Commission on each of the Articles of the Convention raised by the present applicant.  As in that case, my remarks are confined to the issues under Article 2.  I refe r to my Concurring Opinion in the Adkeniz case in which I concluded that there was sufficient circumstantial evidence to give rise to the presumption that the applicants’ relatives had died while in the custody of the authorities.  I consider that there is likewise sufficient circumstantial evidence to give rise to a presumption in the present case.

As is pointed out in the Report, a period of nearly six years has elapsed since the applicant’s son, Muhsin Taş, was taken into custody.  Since that date there has been no further contact between Muhsin Taş and his family and no written record as to where he was detained after 14 October 1993, when his name appeared in the Şirnak Military Hospital entry record.

It is true that, in contrast to the position in the Akdeniz case, the authorities have acknowledged that the present applicant’s son was detained .  It is also true that the authorities have afforded an explanation for his disappearance, claiming that he escaped pending a clash on a hillside while assisting the security forces to identify the location of a PKK headquarters, and have supported this a ccount by an incident report dated 9 November 1993.  However, for the reasons given in the Commission’s Report, this incident report is itself of doubtful reliability, no witness having been produced who was responsible for its preparation or who was able to give first-hand evidence of the alleged escape.  Further, the account contained in the report is itself implausible.  It is inherently unlikely that in mid-November the security forces would take a suspected PKK terrorist to a hillside in poor weather c onditions and in fading daylight in a search for a PKK headquarters.  It is still more improbable that a person, who had three weeks earlier been shot in the knee and whose leg had been placed in a splint, would be able to effect a complete escape from the security forces who were alleged to be accompanying him in the search.  Further, for the reasons given in paragraph 186 of the Commission’s Report, the evidence of Nedim Kaya that he saw Muhsin Taş after his escape and that Muhsin had rejoined the PKK is so full of contradictions and inconsistencies as to be lacking in any credibility.

Accordingly, there is in my view sufficient circumstantial evidence to justify the conclusion that Muhsin Taş has died.  Since his death occurred after his detention by th e security forces and in the absence of any plausible explanation for his loss of life, the responsibility of the respondent State under Article 2 is engaged.  As in the Akdeniz case, I further consider that the failure of the authorities to conduct an ade quate and effective investigation into the circumstances of the disappearance of Muhsin Taş discloses a breach of the State’s obligation to protect the right to life and that consistently with the Court’s judgment in the Cakıcı case, there has also been a violation of Article 2 of the Convention on this further ground.

(Or. English)

I have voted against finding a violation of Article 2 since I believe that the matter should be considered under Article 5 of the Convention.

The Commission has found that there is no reliable evidence as to what happened to Muhsin Taş after he was treated by Dr Can at Şirnak Military Hospital on 14 October 1993.  No information has been forthcoming as to his whereabouts or fate for a period of over five years and ten months and he may therefore be regarded as a victim of a disappearance.

In these circumstances, I consider that the applicant’s complaints that the respondent Government have failed in their obligations to protect the life of his so n should be assessed from the standpoint of Article 5.  While in the Çakıcı case the Commission found that there had been a violation of Article 2 in respect of the applicant’s brother who had disappeared during detention, the authorities concerned were al leging in that case that the brother’s body had been found.

In the present case, the period that Muhsin Taş was held in detention is unknown and his disappearance is totally unaccounted for.  Such unaccounted disappearance of a detained person must, in m y view, be regarded as a continuing and particularly serious breach of Article 5 of the Convention taken as a whole.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2]   This refe rs to a type of mechanical construction equipment.

[3]   The rogatory request repeated the questions set out in para. 86 above.

[4] A term for the removal of necrotic, infected or foreign material from a wound.

[5]   At a later point, he thought that he handed th e first petition in on a date in October.