EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22277/93

Nasır  lhan

against

Turkey

(adopted on 23 April 1999)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1-36) ............................................... 1

A. The application

(par as. 2-4) ........................................... 1

B. The proceedings

(paras. 5-31) .......................................... 1

C. The present Report

(paras. 32-36) ......................................... 4

(paras. 37-166) ............................................. 6

A. The particular circumstances of the case

(paras. 38-50) ......................................... 6

B. The evidence before the Commission

(para s. 51-151) ........................................ 9

1) Documentary evidence

(paras. 51-84) ......................................... 9

2) Oral evidence

(paras. 85-151) ....................................... 16

C. Relevant domestic law and practice

(paras. 152-166) ...................................... 33

(paras. 167-255) ........................................... 36

A. Complaints declared admissible

(p ara. 167) .......................................... 36

B. Points at issue

(para. 168) .......................................... 36

C. Evaluation of the evidence

(paras. 169-210) ...................................... 36

D. As regards the applicant’s standing in the proceedings

(paras. 211-212) ....................................... 51

E. As regards Article 2 of the Convention

(paras. 213-225) ....................................... 52

CONCLUSION

(para. 226) ........................................... 55

F. As regards Article 3 of the Convention

(para. 227-234) ........................................ 56

CONCLUSION

(paras. 235) ........................................... 57

G. As regards Articles 6 and/or 13 of the Convention

(paras. 236-248) ....................................... 58

CONCLUSION

(para. 249) ........................................... 63

H. As regards Artic le 14 of the Convention

(paras. 250-253) ....................................... 63

CONCLUSION

(paras. 254) ........................................... 63

I. Recapitulation

(paras. 255-258) ....................................... 64

SEPARATE OPINION OF MR M. PELLONPÄÄ .......................... 65

SEPARATE OPINION OF SIR NICOLAS BRATZA ........................ 67

JOINED BY MM A.S. GÖZÃœBÃœYÃœK AND A. WEITZEL .................... 68             

MM K. HERNDL AND E.A. ALKEMA .................................. 70

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ..................... 71

I. INTRODUCTION

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

A. The application

2.              The applicant is a Turkish citizen resident in I  ıklar, Urfa and born in 1950. He is represented before the Commission by Professor K. Boy le and Professor F. Hampson, both lecturers at the University of Essex. He brings this application on behalf of his brother Abdüllatif  lhan, who is partially paralysed and has authorised the applicant to act on his behalf.

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

4.              The applicant complains that his brother, Abdüllatif  lhan, was beaten and severely injured by gendarmes when they apprehended him at his village a nd that he did not receive the required medical treatment. He complains also of the lack of access to court and of any effective remedy in respect of these matters and alleges discrimination in the enjoyment of his rights on the basis of his brother’s Kurd ish origin. He invokes Articles 2, 3, 6, 13 and 14 of the Convention.

B. The proceedings

5.              The application was introduced on 24 June 1993 and registered on 20 July 1993.

6.              On 28 February 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 25 May 1994 after an extension in the time-limit. The applicant submitted observa tions and information on 13 July and 9 August 1994.

8.              On 22 May 1995, the Commission declared the application admissible.

9.              The text of the Commission's decision on admissibility was sent to the parties on 1 June 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.

10.              On 27 September 1995, the Government submitted supplementary information.

11.              On 26 October 199 5, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr Pellonpää, Mrs Liddy and Mr Lorenzen. The Government were requested to identify certain witnesses.

12.              By letter date d 6 December 1995, the applicant made certain proposals concerning the taking of evidence.

13.              By letter dated 8 December 1995, the Government provided information concerning witnesses.

14.              By letter dated 15 January 1996, the applicant provided certain info rmation concerning witnesses.

15.              By letters dated 14 and 23 January 1997, the Government provided certain documents.

16.              By letter dated 18 February 1997, the applicant provided information concerning the ability of his brother to attend the hearing of witn esses.

17.              By letter dated 16 July 1997, the applicant made requests concerning witnesses and documents.

18.              By letter dated 24 July 1997, the Delegates requested the Government to submit particular documents and information.

19.              On 26 September 1997, the Gover nment provided some documents.

20.              Evidence was heard by the Commission's Delegates in Ankara on 29 and 30 September 1997. Before the Delegates, the Government were represented by Mr A. Gündüz , Mr S. Alpaslan and Mr D. Tezcan, Acting Agents, assisted by Ms M. Gül  en, Mrs Y. Renda, Mr A. Kaya, Mr H. Karahan and Mrs N. Ayman. The applicant was represented by Ms F. Hampson, Ms A. Reidy and Mr O. Baydemir, as counsel, assisted by Mr S. Leader, Mr K. S ï‚¥ dar, Mr Metin Kilavuz and Mr Mahmut Kaya (interpreter).

21.              On 14 October 1997, the Delegates requested the Government to provide certain information and documents.

22.              By letters dated 27 and 28 November 1997, the Government provided some of the documents and information.

23.              On 18 December 1997, the Delegates informed the parties that they had decided to call two further witnesses to a hearing to take place in Ankara in May 1998. They requested the Government to provide copies of any notes made by medical gendarme personnel concerning the examination of Abdüllatif  lha n.

24.              By letter dated 18 March 1998, the Delegates requested information from the Government. The Government replied on 23 March 1998.

25.              Evidence was heard by the Commission's Delegates in Ankara on 4 May 1998. Before the Delegates, the Government were repre sented by Mr M. Özmen, Agent, assisted by Ms M. Gül  en, Mrs Y. Renda, Mr A. Kaya, Mr  . Ãœnal, Ms B. Cankorel, Mr K. Alata  , Mr E Genel, Mr F. Polat, Mr A. Karata  , Mrs N. Eser and Mrs N. Ayman. The applicant was represented by Ms F. Hampson and Ms A. Reidy , as counsel, assisted by Ms A. Akat, Ms Z.  nanç and Mr H. Bak ï‚¥ ken.

26.              By letter dated 12 May 1998, the Delegates requested further documents.

27.              On 13 July 1998, the Government provided further information.

28.              On 14 July and 7 August 1998, the applicant a nd the Government, respectively requested an extension in the time-limit for the submission of their final observations, which was granted until 15 October 1998.  The Government requested a further extension on 14 October 1998, which was also granted until 30 October 1998.

29. The Government’s observations were submitted on 6 November 1998. The applicant’s observations were submitted on 20 November 1998, following an explanation and apology for the delay.

30.              On 19 April 1999, the Commission decided that there was no basis on which to apply former Article 29 [1] of the Convention.  It also noted that in the applicant’s observations of 20 November 1998 the applicant complained for the first time of the fairness of Abdüllatif  lhan’s trial in March 1993. As these co mplaints were not included, expressly or impliedly, within the scope of the decision on admissibility, the Commission has not included them in its examination of the merits.

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

C. The present Report

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

MM S. TRECHSEL

E. BUSUT TIL

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 L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI 

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

33.              The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

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

(i) to establish the facts, and

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

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

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

II. ESTABLISHMENT OF THE FACTS

37.              The facts of the case, particularly concerning events during the apprehensi on and treatment of the applicant’s brother Abdüllatif  lhan between 26 and 28 December 1992, are disputed by the parties. For this reason, pursuant to former Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.

A. The particular circumstances of the case

1. Facts as presented by the applicant

38.              The various accounts of events as submitted in written and oral statements by the applicant are summarised in  Section B: "The evidence before the Commission". The versi on as presented in the applicant's final observations on the merits is summarised briefly here.

39.              The applicant’s brother, Abdüllatif  lhan, lived in Aytepe village. Aytepe was situated on a hillside with gardens to the south. While part of the gardens ar e on a slope, the main part is flat. The gardens are a relatively rocky area, with some trees and bushes. There were two rivers, one to the east and one to the west. On the morning of 26 December 1992, there were 3-4 inches of snow on the ground.

40.              At abou t 07.30 hours, when they heard that a military operation was on the way to the village, Abdüllatif  lhan and  brahim Karahan decided to hide in the gardens for fear of being beaten up. They hid in a flat area at the end of the gardens in the bushes, about 15-20 metres within sight of each other. The two men had however been spotted by soldiers who were on the hills above with a view of the gardens. After about 20 minutes, the soldiers arrived in the gardens and found them. One group of soldiers found  brahi m Karahan first and began to beat him and kick him. An officer arrived and told them to stop. Some minutes later, a second group of soldiers found Abdüllatif  lhan and began to beat him. They hit him with rifle butts, in particular inflicting a blow to the right hand side of the head, and kicked him. Neither  brahim Karahan or Abdüllatif  lhan had tried to run away.

41.              Abdüllatif  lhan slipped into unconsciousness and the soldiers dragged him to the stream nearby and immersed him in water to revive him. He was brought with  brahim Karahan to the gendarme commander,  eref  akmak. As a result of the blows, Abdüllatif  lhan’s left eye was bruised and swollen to the extent that the eye was shut, there was a mark over his right eye and bruises on other parts of h is body. His clothes were also soaked from the river. His clothes were not changed. The commander was conducting a search of the village.  brahim Karahan was asked to show his house and that of Abdüllatif  lhan. A third individual, Veysi Aksoy [2] , wanted on suspicion of aiding the PKK, was apprehended. Abdüllatif  lhan was unable to walk, and slipping in and out of consciousness. The commander ordered  brahim Karahan to carry Abdüllatif  lhan to the station. When they reached Ahmetlı, they were able to borrow a mule.  brahim had to hold Abdüllatif  lhan on the mule, otherwise he would have fallen off.  After a few hours, when it was dark, they reached Konak station. Abdüllatif  lhan was placed in the cafeteria while  brahim Karahan and Veysi Aksoy were place i n the custody room. After one to one and a half hours, a vehicle was arranged to take the commander and the suspects to Mardin station. En route, the gendarmes stopped twice for one to one and a half hours at Öguzköy and Akinci.  They reached Mardin statio n in the early hours of 27 December 1992.  Soon after their arrival, two men in civilian clothes appeared, one of whom was said to be a doctor. They looked at the detainees, without approaching, and said that they were OK. The commander,  eref  akmak, cons idered that Abdüllatif  lhan was acting ill on purpose. Neither Abdüllatif  lhan nor  brahim Karahan were entered into a custody record. They remained in the cafeteria, until about 17.00 hours, when they were taken to the main station and  eref  akmak took their statements. He then released them and told them to leave the station.

42.               brahim Karahan took Abdüllatif  lhan to a nearby coffee shop. There a customer offered to get his car and bring them to the State hospital. At about 19.10 hours, Abdüllatif  l han was seen by a doctor at the State hospital.  He was diagnosed as having concussion, hemadermy in the left eye, left hemiplegia and his life was considered to be in danger. His immediate transfer to Diyarbakır hospital was recommended.  brahim Karahan persuaded the doctor to allow the use of the ambulance. Abdüllatif  lhan was admitted to Diyarbakır State Hospital.  brahim Karahan telephoned the applicant shortly afterwards to inform him of what had happened.

43.              On 28 December 1992, the applicant arrived at Diyarbakır hospital. Abdüllatif  lhan was in intensive care. He had not been speaking and was slipping in and out of unconsciousness. The applicant could see that his brother had sustained an injury to the area around his left eye, which was completely black and blue and closed over. He had a mark four inches long above his eyebrow on the right hand side of his head, which had been bleeding. His legs were all bruised and marked. On 29 December 1992, the applicant took his brother to get a CAT scan at th e GulsaÄŸ health clinic as the hospital did not have this equipment.  On the basis of the scans, Dr Rahmanlı concluded that there had been haemorrhaging but that there was no need to operate. Abdüllatif  lhan remained for 19 days in hospital, being treated by medicine.

44.              On 29 December 1992, the applicant went to the Human Rights Association (HRA) to make a statement based on the few words his brother had spoken and the short account given by  brahim Karahan. On 11 February 1993, the public prosecutor, Abdü lkadir Güngören, decided to prosecute Abdüllatif  lhan for resisting arrest and not to prosecute the gendarmes for injuring him. On 30 March 1993, Abdüllatif  lhan appeared in a court in Mardin, without a lawyer or translator. The applicant was not allowed into the court with him. Abdüllatif  lhan told the court that it was not correct that he had tried to run away but the court recorded that he said that he had tried to run away.  It convicted him of resisting arrest and sentenced him to seven days’ impris onment, which was converted to a fine and suspended. None of the gendarmes or  brahim Karahan were called to give evidence.

2. Facts as presented by the Government

45.              The Government's account of events as based on their observations are summarised as foll ows.

46.              Based on intelligence reports, inter alia , indicating that the owner of a minibus at Aytepe village was giving shelter to two members of the PKK, an operation was conducted at Aytepe village on 26 December 1992.  As the teams approached the village, it was noticed that two persons, who were acting as lookouts started to run away. They continued to run away after they were ordered to stop and surrender. Since the direction of their flight was covered with snow, Abdüllatif  lhan slipped and fell over a rocky surface and received injuries to the left eye and left leg. He,  brahim Karahan and Veysi Aksu, who had been reported as making propaganda for the PKK, were apprehended and taken first to Konaklı gendarme headquarters and then to Mardin provincial g endarme headquarters. At Konaklı, Abdüllatif  lhan made a statement which said that he had run away from the soldiers and slipped while running. In his second statement taken at Mardin, he stated that while he was running away he fell over bushes onto rock s near the stream and was injured.

47.              By notice of 27 December 1992, the Mardin gendarme commander informed the Mardin public prosecutor of the incident, presenting documents as completing the investigation into the offence of resisting security officers, pursuant to Articles 258 and 260 of the Turkish Penal Code (TPC). The notice informed the prosecutor also that Abdüllatif  lhan had been sent to Mardin State hospita l, from where he had been transferred to Diyarbakır State Hospital.

48.              The public prosecutor issued an indictment against Abdüllatif  lhan for passive resistance to security officers contrary to Article 260 of the TPC. His trial took place on 30 March 1993 at the Mardin Justice of the Peace Court. He was present and questioned by the court. He accepted what was said in the indictment, namely, that at first he did not understand the order to stop and ran away and that later he understood their request but wa s afraid and continued to run away.  Having regard to the circumstances and his record, the judge sentenced him to seven days’ imprisonment but altered it to  TL 35 000 heavy fine pursuant to art. 4 of Code 647 on the Execution of Punishments (decision 199 3/74).

49.              On 11 February 1993, the public prosecutor issued a decision of non-prosecution concerning Abdüllatif  lhan’s injuries, since they resulted from an accidental fall while he fled from the security forces and no-one, directly, indirectly, intentiona lly or negligently, had caused them.

50.              Information received from the authorities indicated that the PKK terrorists used to come to Kaynak village, (Abdüllatif  lhan’s previous home) and ask for food and supplies. As the villagers refused to assist them, th ey were forced to evacuate their houses, moving to Yardere and Aytepe. The deserted village hamlet of Kaynak was burned down by the terrorists as an example to other villagers who might attempt to resist them.

B. The evidence before the Commission

1) Do cumentary evidence

51.              The parties submitted various documents to the Commission. These included documents from the investigation and court proceedings and statements from the applicant and witnesses concerning their version of the events in issue in this ca se.

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

a) Documents submitted by the applicant in his application to the Commission

Statement dated 29 December 1992 of the applicant taken by the HRA

53.              He stated that his brother Abdülla tif  lhan was 32 years’ old, married and the father of six children. On the day of the incident, his brother was living in Aytepe. Ten months before, his brother’s village had been burned down by the security forces and his brother had fled to I  ıklar to work as a shepherd.

54.              On the date of the incident, while carrying out an operation at Aytepe, the security forces inflicted severe ill-treatment on his brother and  brahim Karahan in very cold, snow conditions. They threw them on the ground and be at them viciously with rifle butts. After beating his brother for some time, they put him in water with his clothes on and forced him to ride on a horse and in a military vehicle. His brother was now receiving treatment in the brain surgery ward, Diyarbakı r State Hospital. There was a possibility that he was paralysed. He pressed charges against the persons who treated his brother in this inhuman fashion and requested an appropriate investigation.

Statement dated 4 January 1993 of  brahim Karahan taken b y the HRA

55.              On 26 December 1992, at about 07.30 hours, his village Aytepe was raided by soldiers from the local Konak station and soldiers from Mardin.  He and Abdüllatif  lhan hid in a garden as they were afraid that they might be ill-treated or detained. Three-four months before, soldiers had come to the village and beaten him and other villagers ferociously. The soldiers saw where they were hiding and, without asking anything, beat them with rifle butts and kicked them for a long time.  Abdüllatif lost c onsciousness because of blows to the head. He was plunged into the water several times and dragged through the snow to where Ibrahim was lying, 20-30 metres away.  He had to carry Abdüllatif on his back to the village and then he had to leave Abdüllatif on the ground in the snow while he showed the soldiers Abdüllatif’s house.

56.              After the house searches, the commander asked Abdüllatif what had happened to him. Abdüllatif said that he had been beaten by the soldiers.  The soldiers said that he was lying and that he had fallen over.  The commander told Ibrahim to carry Abdüllatif on his back to the station. He carried Abdüllatif, who was half-unconscious, to the village of Ahmetl ı, one kilometre away, where they got a mule. They put Abdüllatif on the mule and continued 2 km to Yardere and then 4-5 km to Konak, where the station was. They had left Aytepe at about 08.30 hours and arrived at Konak at about 13.00 hours. Abdüllatif was put in the station canteen while he was put in a cell. After two hours, both were placed in a military vehicle. On the way to Mardin, they stopped at the villages of OÄŸuz and Akinci. They were detained in Mardin central gendarme headquarters until the eve ning of the next day. After their statements were taken, they were released.

Statement dated 15 December 1993 of Abdüllatif  lhan taken by the HRA

57.              In this statement bearing his thumbprint, Abdüllatif  lhan stated that on 26 December 1992, he became di s abled due to severe ill-treatment by soldiers in Aytepe village. Because he was either in hospital or confined to bed, it was impossible for him to exercise his rights or to make a personal application. Therefore his brother Nasır made the application in h is place. At first, he had been unable to speak or move and his brother had to do the application himself.  Afterwards, when he recovered a little, he was not in a condition to make applications. When, after 18 days in hospital, he returned to Aytepe, ther e was a raid on the village by the captain, who was the commander of Mardin central gendarmerie headquarters, who talked to the villagers. He asked where Abdüllatif  lhan was and when told he was ill in bed, sent a NCO to see if he was really ill. A First Sergeant and two soldiers came to his house. The NCO talked to him, saying that it was his fault that he was ill as he jumped over a wall as he was running away and the wall fell down.  The NCO also asked whether it was true that he had made applications t o the HRA. From fear, he said that he had not. They made no official petitions as those who did were sent to the provincial gendarme command headquarters. They also knew that they would suffer more if they did so.

58.              Ten months before the incident, a warni ng had been issued that they should leave their village, Kaynak hamlet, Ahmetlı village, but they had not done so. At 09.00 hours one day their house was burned down by the soldiers with all their goods inside. He and his spouse fled to Aytepe village.  Wh en they went back to their own village, they found nothing usable left and returned to Aytepe. He used to make a living from his livestock. Of his 200 goats, some had been burned and others fled, 70 only being collected afterwards.  He sold them later for 30 million when he was ill. His brother had also spent about 40 million for the costs of his treatment. They had to pay 3 million for films of his head which showed that there were drops of blood in his brain.  Since he was not insured, he had to pay for a ll his treatment. He received drugs while he was in hospital and was still receiving them.  He returned to Diyarbakır hospital after 20 days at home for a check-up, and then at successive intervals of 40 days and 3 months. Each time he received a prescript ion. On the recommendation of the doctor, he went to  stanbul but there were no beds at the hospital. His costs were met by 20 million lira from the applicant.  He waited three weeks for a bed but as he had no money left he had to leave  stanbul for Mardin again.

59.              He had been ruined financially by his illness. He had had six children. One of them, Güler, died from illness because they could not afford a doctor. The applicant supports them all. He has 8 children of his own and is also financially destroyed because of his illness.

Supplementary information on Nasır  lhan by Mahmut Sakar, Secretary of the HRA submitted on 13 July 1994

60.              After giving detailed information at the HRA on 15-16 December 1993, Abdüllatif  lhan nominated his brother Nasır  lhan t o follow his case as he was paralysed. He placed his fingerprint on this document as he was illiterate and did not know how to sign. It was therefore not possible that Abdüllatif  lhan signed the statements taken on 26 December 1992 by the gendarmes. An ex amination of these documents shows that the signature is not a signature but a scribbling made by forcibly holding the person’s hand.

b) Documents relating to the apprehension and detention of Abdüllatif  lhan

Incident report dated 26 December 1992 b earing signatures of Abdüllatif  lhan,  brahim Karahan and gendarme officers including  eref  akmak and Ahmet Kurt

61.              This statement, recorded as drawn up at the scene of the incident and read and signed by the persons present, stated that on the basis of records (nos. 329 of 23.12.92 and 331 of 24.12.92) from the Intelligence Unit of Mardin-  nci gendarmerie headquarters,  operation “Y ıldırım” was carried out at Aytepe village on 26 December 1992 by 2 squads from and 5 squads from Mardin headquarters. While the village was being cordoned off, it was seen that two persons were trying to run away. They were warned to stop . They could be followed due to their tracks in the snow.  They apprehended  brahim Karahan. Since the ground was stony and snow-covered, Abdüllatif  lhan who was running ahead of him fell down the slope of a hill, injuring his left eye and left leg and wa s apprehended.  In the village, they also apprehended Veysi Aksu who had been denounced by other villagers as having spread propaganda and having acted as a messenger for the PKK.  No further suspects or elements of crime were discovered in the search.  Ve ysi Aksu, Abdüllatif  lhan and Ibrahim Karahan who had failed to stop when ordered to do so, were taken to Konaklı headquarters for questioning and subsequent transfer to Mardin Provincial Gendarme Headquarters.

Statement dated 26 December 1992 of Abdül latif  lhan taken by gendarme sergeant Ahmet Kurt

62.              The statement, which was taken at Konaklı station and signed above the name Abdüllatif  lhan, stated that the suspect was asked why he had fled from the security forces during the operation at Aytepe vill age. He said that he saw the soldiers arriving at the village and because he was afraid of the soldiers he left his house and ran towards a wooded area. He could see the soldiers coming after him. They were shouting for him to stop. He became more afraid a nd headed for Yardere village.  The rocks were icy and, as he crossed the river and jumped over the bushes, he slipped and fell, hitting his head and shoulder on a rock. He hid behind bushes but the soldiers followed his footprints and found him.

Statem ent dated 26 December 1992 of  brahim Karahan taken by gendarme sergeant Ahmet Kurt

63.              This statement, taken at Konaklı gendarme station, stated that the applicant was questioned as to why he ran away from the security forces at Aytepe. It stated that he ha d been sitting in his house when he saw soldiers entering the village. As he was frightened of the soldiers, he intended to hide amongst the trees and gardens until they left. When the soldiers saw him and shouted after him, he was very frightened and ran away along the banks of the stream. When the soldiers approached, he hid in the bushes.  Soldiers coming from the other direction saw and apprehended him.

Statement dated 27 December 1992 of Abdüllatif  lhan taken by gendarme officer  eref  akmak

64.              This statement, taken at the provincial central gendarme headquarters at Mardin, stated that the applicant was asked why he had run away from the security forces during an operation at Aytepe. He stated that he was standing in front of his house when he saw th e soldiers coming to the village. PKK members had frequently been to his house and told him not to have anything to do with soldiers. He ran away towards the stream below the village.  The soldiers saw him. After running 200-300 metres, he fell on the rock s by the stream. He was injured in the eye and leg. He could no longer run and hid himself in the bushes near the stream. The soldiers followed his footprints from the garden and caught him in the bushes. He had not committed any offence. The statement was stated as being confirmed with a thumbprint as he did not have a signature.

Statement dated 27 December 1992 of  brahim Karahan taken by gendarme officer  eref  akmak

65.              This statement, taken at Mardin Central Gendarme Headquarters, stated that the suspe ct was asked why he had run away from the security forces at Aytepe. He stated that he was on his way to get the midwife for his wife who was about to give birth when he saw security forces coming from the hills opposite. As he was frightened, he hid in th e shrubs in the gardens. Members of the PKK had been coming to his house and had told him not to talk to soldiers.  The soldiers followed his footprints and pulled him out of the bushes.

Letter dated 27 December 1992 from  eref  akmak to the chief consul tant Mardin State Hospital

66.              The subject of the letter was identified as the transfer of Abdüllatif  lhan and  brahim Karahan. It requested that these persons who had fallen on steep, stony ground and hurt themselves while fleeing from the security forces at Aytepe be sent for treatment. They were under summons in connection with an ongoing preliminary investigation.

Report, date illegible, from Mardin provincial central gendarme command

67.              This report addressed to provincial governor, the Mardin provinci al gendarme command and Mardin chief prosecutor, is in a pro forma numbered format. It referred to the offence of resistance to security forces at item 1. At item 4., it stated that on receipt of provincial gendarmes command’s order relating to intelligenc e that Mehmet Koca, owner of a minibus and resident of Aytepe , was sheltering Bedirhan Ciçek and Hamdin Ciçek who were wanted for aiding and abetting the PKK, an operation was carried out on 26 December 1992 to apprehend the suspects.  On realising that Ab düllatif  lhan,  brahim Karahan and Veysi Aksoy were carrying out surveillance duty and saw the security forces approaching, an order to stop was given. They did not obey but ran towards the rocky terrain on the outskirts of the village. A pursuit was laun ched. As a result of the snow and mud-covered terrain, the feet of  brahim Karahan and Abdüllatif  lhan slipped and they fell on the rocky terrain. The suspects who were followed due to their footprints resisted the gendarmes with stones. They were apprehe nded. Abdüllatif  lhan and  brahim Karahan were injured due to falling and transferred to Mardin State Hospital for treatment.

68.              Under a section headed Abdüllatif  lhan, there was an item E. “aiding and abetting the PKK” and under separate sections headed  brahim Karahan and Veysi Aksoy, point E. also referred to aiding and abetting the PKK.

Report dated 27 December 1992 from  eref  akmak to the Mardin public prosecutor

69.              The subject was stated to be “resistance to security forces”. It stated that on rec eipt of intelligence that PKK members were in Aytepe village an operation involving seven teams was carried out in the village on 26 December 1992.  Upon the security forces entering the village, the two individuals,  brahim Karahan and Abdüllatif  lhan, r an away towards the outskirts of the village. Notwithstanding numerous orders to stop, they continued to run away. There was a lengthy pursuit. Upon the suspects being informed that they were going to be summoned to the station, they physically resisted by pushing members of the security forces. During their attempt to escape by pushing these persons, they fell from the rocks. As a result, Abdüllatif  lhan was injured to a life-threatening degree, having hit his head on the stones while escaping.

70.              Abdüllat if  lh an’s initial treatment was carried out at Mardin State Hospital and then he was referred to Diyarbakır.  brahim Karahan was sent to accompany him in the absence of relatives.

71. The investigation documents relevant to their offence of unarmed resistance to apprehending officers and not complying with an order to stop were enclosed.

Decision not to prosecute dated 11 February 1993 by public prosecutor Abdülkadir Güngören

72.              This identified Abdüllatif  lhan as the injured party and described the incident by stating that “He slipped and fell and injured himself.” The investigation documents had been examined. Since it transpired that the injured party fell and injured himself as a result of carelessness while fleeing from the security forces and that no-one ac ted deliberately or negligently, a decision of lack of grounds to proceed had been reached.

Indictment dated 11 February 1993 concerning Abdüllatif  lhan drawn up by public prosecutor Abdülkad  r Güngören

73.              The indictment specified that the offence was re sistance to officers, citing Article 260 of the TPC. It transpired from the defendant’s admission and a witness statement that in the course of an operation by the security forces who were searching for PKK terrorists the defendant fled, ignoring their ord ers to stop.

Minutes of the court hearing of 30 March 1993 at Mardin Justice of the Peace Court

74.              The defendant was asked to give evidence. He stated that the charge was true. On the day of the incident, he did not understand the security forces’ stop w arning. Although he understood it afterwards, he ran away for fear that they would harm him. He requested an acquittal or for the sentence to be converted into a fine and suspended.

Decision dated 30 March 1993 of the Mardin Justice of the Peace Court

75.              The court found that Abdüllatif  lhan had admitted that he had failed to comply with the gendarmes’ order to stop during an operation and thus had resisted the officers, contrary to Article 260 of the TPC.  The sentence of 7 days’ imprisonment was commute d to a fine of TL 35 000 and suspended, having regard to the fact that it was his first offence and that he would not commit a new offence.

Letter dated 13 May 1994 from the Mardin provincial gendarme command to the Mardin public prosecutor’s office

76.              Th is letter, signed by Lt. Col. Ridvan Özden, recounted that Abdüllatif  lhan and  brahim Karahan had been carrying out a surveillance duty for the PKK and ran away despite repeated “Halt” warnings.  After a lengthy pursuit, the suspects were apprehended hid ing in the bushes. Upon this, they attempted to escape by pushing and resisting the security personnel.  Due to the slippery ground, Abdüllatif  lhan was injured by falling amongst bushes and rocks. He was referred to Mardin State Hospital and transferred to Diyarbakır State Hospital due to his injuries.

c) Documents relating to Abdüllatif  lhan’s condition and treatment

77.              A number of documents have been provided, referring to Abdüllatif  lhan’s treatment. The documents relating to his care in hospital ar e largely illegible but indicate that he was admitted at Diyarbakır State Hospital, Brain Surgery Department on 27 December 1992 and discharged on 11 January 1993. The documents regarded as relevant by the Commission are summarised below.

Report dated 27 December 1992, at 19.20 hours, signed by Dr Mehmet AydoÄŸan, Mardin State Hospital

78.              This stated that the general condition of Abdüllatif  lhan, who was brought in as a result of a blow, was average, conscious, responsive. Hemadermy was present in the left eye periorbital. The report was interim and indicated the presence of a life threatening situation to the patient, who had left hemiparesis present.

Mardin State Hospital polyclinic register

79.              The entries for 27 December 1992 included no. 22833 Abdüllat if  lhan, referred to Diyarbak ır neurosurgery and no. 22834  brahim Karahan, with a largely illegible reference to trauma and right ear and a referral.

Addendum to the report 27 December 1992 by Dr Mehmet AydoÄŸan dated 26 December 1996

80.              This stated that the word “blow” had been incl uded in the report (above) because of the patient’s verbal explanation. However, the actual lesion was due to trauma which could have been caused by a blunt instrument or by a fall.

Medical report 27 December 1992 Diyarbakır State Hospital

81.              This report, signed by Dr Ömer Rahmanlı, stated: “General situation fair concussion left hemiplegion, risk of death, accepted in hospital.”

Medical report 16 December 1993 Diyarbakır State Hospital

82.              The report, signed by Dr Ömer Rahmanli and Dr Selahattin Varol, stated that Abdüllatif  lhan had been examined on 10 June 1993. It was established that he had left hemi-paresis,  which had caused a 60% loss of motor functions. Intracerebral haematoma  had been diagnosed as the result of the head trauma suffered, and he had been treated as an in-patient in their clinic. The findings (paralysis) had remained as after-effects.

CAT SCANS and report dated 9 February 1998

83.              The report, signed by a doctor at the Gunsa ÄŸ clinic, gave a technical description of the findings from the enclosed CAT scans of the brain of Abdüllatif  lhan, concluding that there was a encefelomasic area located at the right bazal ganglions and that the neighbouring right lateral ventricle front horn and its stem had been expanded compensatorily.

Report dated 17 April 1998 by Dr Alan Kermond

84.              This report, provided by the applicant, explained that the CAT scans and analysis, indicated that there was brain atrophy or loss of brain substance in the region of the right caudate nucleus extending posteriorly and laterally to involve the right internal capsule, with some expansion of the right lateral ventricle. The most common cause of this appearance in a man of this age was atrophy following traum a with intra-cerebral haemorrhage. In his view, the trauma would need to be severe as is commonly seen with a direct blow to the skull resulting from a road accident or similar major episode. A simple fall in this age group would not produce this appearanc e.

2) Oral evidence

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

(1) Abdüllatif  lhan

86.              The  witness was born in 1956.  In December 1992, he was living in Aytepe. He had been there for a year. An operation took place. He and  brahim Karahan were afraid of the soldiers as soldiers beat people and took them away. There had been other operations. Their houses were next to each other. They ran towards the southern part of the village, about 100 metr es from the village into the gardens below. The gardens were level, with trees and rocks. Some parts were separated by walls into small fields. He agreed with the Government Agent that at these parts a person could not see another at five to ten metres but added that in other parts a person could see for 200 metres. They sat down on the right hand side. There was a lot of snow. They could not hide. The witness was under a tree. He did not hear any soldiers shout at them to stop running. He sat under the tre e until the soldiers arrived and told him to stand up. He could see  brahim Karahan from where he was. Because of the snow, they could see the soldiers from a distance and the soldiers could see them. They thought that the soldiers could not see them in th e gardens but they were on a hill high up.

87.               brahim Karahan was about 10-15 metres away from him. The soldiers beat him quite a bit. Some stayed with  brahim Karahan and others came over to him. The soldiers kicked and beat him with rifle butts. When aske d how many soldiers beat him, he said that it was a lot: 10, 15 or 20. They did not ask questions beforehand. One of them had a rank, a non-commissioned officer.  When questioned more precisely by the Government Agent, he recalled being struck once on the right side of the head with a rifle butt and being kicked many times. He was hit on the hip with the barrel of a G3 which tore his skin all the way down. The blow to his head was very bad. He lost consciousness after being beaten for about 20 minutes. The witness was thrown in the river to revive him. There was a river close to the place where the beating occurred.

88.              He did not remember anything after he fainted. He was unconscious for a week.  He was taken from one station to another and again to another, and finally to the central station. He was on a mule at one point.  brahim Karahan told him that he held the witness on the mule. He did not know who was in the military vehicle with him or remember being placed near a stove.

89.              He was at the Diyarbakır S tate Hospital for 20 days. He went back every two months for a check up. His brother took him. His brother talked to the doctors as he did not know how to. He did not sign anything. He did not know how to. He signed no statement on 26 December 1992 saying that he fell on the rocks. He denied signing either that statement or the incident report, when they were shown to him.  When shown his statement of 27 December 1992, he said that it was his thumb print but he did not remember putting it on a statement. He remembered going to court as he was charged with running away but he did not run away and he told the judges that he did not. There was no lawyer with him in court and his brother had to wait outside as they would not let him enter the court. He had told the public prosecutor also that he had not run away.  He was now crippled. He had taken medication for a year and a half but had to give it up as he had no money.

(2) The applicant

90.              The applicant was born in 1950. In December 1992, he was living in I  ıklar village, Ceylanpınar, Urfa. He saw his brother two days after the incident. His friend,  brahim Karahan, had called him from Diyarbakır State Hospital, saying that his brother was seriously injured and that he should come quickly. He took the bus nex t morning and arrived at Diyarbakır. He saw  brahim Karahan first. He was in someone’s house, in bed as he was not feeling well. He asked which hospital his brother was in. He found his  brother was in the intensive care unit at Diyarbakır State Hospital. The nurse said that he had not spoken. He went in to see him. He responded to his name and said that he was hungry. He lost consciousness again after eating a biscuit. He was only able to talk a little at that stage. He did say that the soldiers beat him. His brother had injuries to his head. His left eye was swollen, black and shut and there was a mark on the right side of the head above the eyebrow. It was black as if it had bled a little. When asked how long the mark was, he indicated a distance of about 4 inches. His nose was swollen too. There were marks on his left side and his foot. The marks were all over the legs from the knees down. He had marks everywhere. He saw no scratches on his hands or arms.  brahim Karahan told him that the soldiers had bea ten his brother and that he had brought him from Mardin.  brahim Karahan had also many bruises on him from being beaten and kicked but he had not received a heavy blow.

91.              The doctor told the applicant that his brother might need a special operation and th at the applicant should obtain a special X-ray of his head. The doctor had asked how the injuries had occurred and he said his brother had been beaten by soldiers. His brother was X-rayed in a private clinic in a big machine to see if there had been haemor rhaging. The applicant paid 1 300 000 TL for the first X-ray and 1 400 000 TL for the second. The doctor looked at the films and said that there had been haemorrhaging but that they could treat it without operating.  He stayed with his brother all but two of the 19 days he spent at hospital. He could not walk. Though he could sometimes talk, he was not coherent. He confused names and made noises without meaning. The applicant also paid for medication given to the applicant intravenously and for various inje ctions, some of which he had to buy outside the hospital which did not have them.  It cost him about 32-33 million TL altogether. On follow up visits and treatment, he paid 20 million TL. Once his brother went to  stanbul to try to get treatment. The appli cant gave him 10 million and there was 10 million from the sale of his brother’s 70 goats for the trip.

92.              When his brother was moved from the intensive care unit, he asked his brother what had happened. His brother said that the soldiers had hit him. He ha d also heard about what had happened from the other villagers and relatives who came. He did not remember their names. According to what everyone said, there was an operation. His brother ran away as he was afraid that he would be beaten up by the soldiers . The soldiers saw where he was hiding in the garden and started to beat him. Some people saw this. He knew  brahim Karahan who was from a village near to his own old village. He carried his brother up to where the road dipped intending to take him home, b ut was told by the commander to leave him there.  Some soldiers stayed with his brother and others went to the village to carry out a search. They searched his brother’s house but did not find anything.  brahim carried his brother to Ahmetlı, about 1 km away. There they borrowed a mule for his brother but he had to be held on. They went to Yardere, and from there to Konak. On questions from the  Government Agent, he clarified that the other villagers had n ot seen his brother being beaten, but had seen him when he was being taken by the soldiers.

93.              In Mardin,  brahim Karahan  came across some-one and begged help to take them to Mardin State Hospital. The doctor there had said that they could do nothing for his brother and that they should take him to Diyarb akır.  brahim said that he did not know how to manage this as he was slightly injured himself and barely able to hold his brother up.  A friend appeared and he asked him to fetch a car. The friend asked the doctor as a favour for use of the hospital ambula nce and they used that to take him to Diyarbakır.

94.              The applicant was not questioned by a public prosecutor or gendarmes about events. He went with his brother to court and asked to go in to help his brother who did not speak Turkish. But they said that th ere was a translator and shut the door. He waited outside for half an hour. His brother told him that he had been asked how he had been injured. He told them that the soldiers had hit him but they said that apparently he fell from a wall.  He told them tha t he did not. His brother had not gone to school and could not sign anything. He had done his military service and knew a few words of Turkish.

95.              He went to the HRA the day after he arrived in Diyarbakır, on 29 December 1993. He had not heard that one of  brahim’s sons had gone to the mountains. His complaints to the HRA were based on what he heard from  brahim, his brother and the villagers. They did not make a complaint to the public prosecutor because they knew it would be useless.

(3)  brahim Karahan

96.              The witness was born in 1952. In December 1992, he lived in Aytepe. When the soldiers came, he and Abdüllatif went outside. The soldiers had s urrounded the village. Because they were afraid, they went and hid in the gardens, sitting down in the thorny shrubs. This was 200-300 metres from the village. The ground was icy and covered with snow, about four fingers thick. There were two gardens, sepa rated by a high wall 75cm to one metre high. On the other side of the wall, there was a river, 15-20 metres away from the gardens, with small stones on the bank from the river. There was no difficulty in walking. On previous occasions, the soldiers had com e and beaten the villagers. He had been beaten himself two months before. The soldiers must have seen them as they followed. They did not hear the soldiers shouting after them to stop. Neither of them slipped or fell on the way to the gardens.

97.              After 20 m inutes, the soldiers found him. He did not try to run away. They beat him. He was thrown to the ground and kicked in the head. His ears were bleeding. They said, “You also have a friend.” A NCO approached, and was angry, telling them to stop the beating. H e asked the witness if he had a friend. The witness denied it to prevent his friend being beaten. There were footprints in the snow. The soldiers followed the tracks and found Abdüllatif 15-20 metres away. There were two groups of soldiers. The group with the witness was about eight in number. Three stayed with him, five left to join another group, six or seven, coming from the other direction. They caught Abdüllatif. One or two beat him with their rifle butts and others kicked him. The witness saw them rai se and lower their weapons. He did not see where the rifle butt actually struck. They were gathered round his head. Abdüllatif passed out. They dragged him by his jacket to the river nearby and immersed him in the water. The witness spoke to him, but he wa s not fully conscious or coherent. His left eye was very swollen and black and closed up completely within five minutes. There was a mark on the right side also, all the way to the ear. He saw that Abdüllatif’s hips were all black from the kicking later, a t Mardin, when he helped Abdüllatif  at the lavatory. The soldiers told the witness to carry him on his back. He carried Abdüllatif to the road,  not far from the village. The company commander,  eref  akmak, told the witness to come to the village. Abdüll atif was left. The witness showed the commander his house and Abdüllatif’s, which was facing it, 5-10 metres away. They searched the houses but found nothing.

98.              The commander then went with the witness to Abdüllatif. The commander asked Abdüllatif who had beaten him. Abdüllatif said, “You did.” He was not altogether himself. The commander asked the soldiers who had beaten him. The soldier said, “He fell off a wall.” The commander told the witness to carry Abdüllatif to Konak. The witness carried him as far as Ahmetlı. There he found a mule and he held Abdüllatif on. From there, they went to Yardere and from there to the station at Konak, where they arrived at about 16.00-17.00 hours. Abdüllatif was taken to the cafeteria and the witness was placed in a cell . He was not questioned during this time. He was asked details of his name and his parents which were noted on a piece of paper, not in a book. After one or one and a half hours, they were placed in a vehicle and driven to OÄŸusköy where they got out as the soldiers had something to do there. After a while (15 or 20 minutes or half an hour), they were taken to the gendarmerie in Akıncı, where the commander got out and talked to the soldiers for 30-35 minutes. After that, they were taken to the central gendar merie station. The commander ordered the NCO to take them to the cafeteria or a warm place, and keep the stove going until morning. Abdüllatif did not have the strength to sit. The witness had to hold him. The witness told the commander that Abdüllatif was dying and a doctor should be called. He said that a doctor would come. Within five minutes of their arrival, two men in civilian dress came - one supposedly a doctor. They stood and looked at Abdüllatif, without removing his clothes or examining him. The doctor asked Abdüllatif what had happened but Abdüllatif did not speak. The commander said, “He’s in this state because of the cold. He’s behaving like this on purpose. Take him somewhere warm.” The doctor also said that his condition was due to the cold, that he was pretending and that they should be taken somewhere warm. Abdüllatif was not given any dry clothes during this time, though at Mardin they were given blankets.  Veysi Aksoy was kept with them during this time in the cafeteria.

99.              They remained i n the dining hall all night. The witness stayed with Abdüllatif throughout as otherwise he would have fallen down. He had to be supported on his chair. At about 17.00 -17.30 hours, they were taken to the station to give their statements again. When they en tered the office, Abdüllatif could not control his bowels and defecated in his trousers. They gave their statements. It was after that they were released. He gave varying times for this, from being asked to leave between 20.00-21.00 hours and 21.00 or 22.0 0 hours. He knew it was after dark, and that it had been dark for some time. The witness asked the company commander, if they could stay the night as he did not know where to take Abdüllatif. The commander told them to go away and that there was nothing el se he could do. The witness carried Abdüllatif over his shoulder and going to the main road signalled unsuccessfully for a minibus to stop. They went into a coffee house nearby. There were many customers. The witness asked for a car to take Abdüllatif to t he hospital but nobody answered. Later, when two or three men had left, people started to talk. A young man offered help and fetched his car. They went to the State Hospital. The doctor said that Abdüllatif should go to Diyarbakır immediately. The witness said that he had no money and could not go to Diyarbakır in that state. He knew an attendant in the hospital and the attendant talked to the doctor, asking for the ambulance. The doctor let them have the ambulance and they went to Diyarbakır State  Hospita l. He phoned the applicant from Diyarbakır in the evening. The applicant arrived the next day between 12.00 and 13.00 hours at his uncle’s house. The applicant went to the hospital immediately. At Mardin, the witness was not examined. He did not want to be . He only had a minor injury to his ear, that they cleaned and put iodine on.

100. When the witness was shown the incident report of 26 December 1992, he denied that his signature was on the bottom. He only signed one document, when he was released from custo dy. This was a statement taken by a NCO.  eref  akmak was not present though they met him in the hall afterwards. The statement was not read out to him afterwards. He was illiterate. He denied having said that PKK members came to his house. He was never pr osecuted for resisting arrest nor brought before a public prosecutor. He was never questioned about Abdüllatif’s injuries. He saw Abdüllatif place a thumb print on a document at Mardin. Abdüllatif was incoherent at this time. When they questioned him, he t ried to answer but could not speak.

101. About two months later, when there was another operation in the village,  eref  akmak took him into custody  and after five days at the central station, he was released.  akmak told him to leave his village. The witnes s went to  stanbul for 8 months. In the autumn, he returned. Three or four days later, there was an operation at the village.  eref  akmak took him into custody again for 19 days at Mardin. During that time, he was tortured and suspended. He was released w ithout being taken before the public prosecutor.

102. His son Hasan disappeared and went to the mountains a year after the incident in this case.

(4)  eref  akmak

103. The witness was born in 1966. In December 1992, he was the commander of the central gendarme rie of Mardin province. He had taken up that post in July 1992. He had the primary responsibility for the security and order in the villages within the jurisdiction of the central district of Mardin province. He was also responsible for judicial matters co ncerning village guards and in civilian matters to the provincial governor. He answered to the courts in judicial matters and also had military duties.

104. On 26 December 1992, he carried out an operation in Aytepe village. The purpose of the operation was st ated in the messages wired at the time. He remembered that there were rumours about the village but did not recall the details, save that they did not go there to apprehend Abdüllatif  lhan. They left Konaklı station on foot at midnight. There was snow on the ground, of a hand’s span depth, and it was snowing continuously, changing to drizzle as it grew warmer.

105. Half an hour before daybreak, they surrounded the village and waited. He was above the village, probably to the west or north west. After daybreak, he checked the village was completely surrounded. At that moment the team to the south-west of the village radioed that two people who had escaped from the village were heading speedily towards Yardere village. He gave the order to capture them. He contin ued to search the village.

106. At some point, he received news that one of them,  brahim Karahan, had been caught. He knew  brahim from a previous occasion. He gave instructions for the search to continue for the second person, as there was a chance that he w as a terrorist.  After about half an hour, he was informed on the radio that they had caught the second person,  Abdüllatif  lhan. He remembered telling the villagers with them that they had run away for nothing. He was told on the radio that Abdüllatif  l han had resisted the first gendarme who had seen him. He did not want to surrender and pushed the gendarme. The witness ordered the gendarmes to bring Abdüllatif  lhan to an accessible area. He met the group on the Ahmetlı road 200 metres from the village. Abdüllatif  lhan was sitting on the ground, his clothes were wet. He had been hiding in the snow and there were scratch marks from the thorn bushes on his hands and parts of his face, which was bleeding.  brahim was in the same state. Abdüllatif  lhan had an additional injury, a wound above his eye but he did not remember on which side. He would have remembered if his eye had swollen shut. There was no injury to Abdüllatif  lhan’s legs either. But when referred to the reference in the incident report, he a greed that there must have been but that they did not know what the injury was. He mentioned seeing a wound on the foot. He asked the gendarmes what had occurred. They said that Abdüllatif  lhan fell from one of the stone walls in the garden. According to the soldiers, he fell several times. The upper layer of water in the river had frozen and he had fallen there in the running water. There was so much water that it could have swept away and drowned a child.  It was very cold at that time. He ordered a fire to be built and that the two suspects should stay there and warm up as they were shivering and cold from hiding in the snow, and in Abdüllatif  lhan’s case, from being completely soaked in the icy river.  He may even have covered Abdüllatif  lhan with a s oldier’s parka and gloves. He returned to the village to carry on the search. They did not find anything else but apprehended a wanted individual, Veysi Aksoy.

107. The witness described the area as follows. Below the village were gardens, each between 10 and 20 square metres, separated from each other by walls the height of a man. The walls had been built gradually by the villagers using stones gathered in the gardens. Inside the gardens were thorny bushes, fruit shrubs and other plants, including blackberry bushes. The walls were difficult to climb over. At specific spots, the villagers had put pieces of wood to assist climbing over.  On the right and left side of the gardens were two river beds. The water level was high in both and with erosion there were st eep banks that could only be descended by rope. In his opinion, it was probable that Abdüllatif  lhan fell twice - once on the wall, once into the water. Crossing the river, the ice broke and he fell into the water. That was what he imagined. Any scenario was possible in that terrain. When he talked to the soldier who found Abdüllatif  lhan, the soldier said that Abdüllatif  lhan pushed him and ran away about 5 to 10 metres. That meant that he had to jump a wall, cross the river, go over an archway, manoeuv re between thorn bushes. He had no reason to suspect any other cause of injury. The ground was covered with snow and ice. He himself slipped many times as he was going down hill towards the village. He thought it would have been impossible for  brahim Kara han to see Abdüllatif  lhan from where he was hiding, as they were 50-60 metres apart. This was what he was told. There was one team in the arrest area, under Ahmet Kurt commander of Konaklı. A team was anything from 8 to 20 soldiers. They would have been spread out,  7, 8 or 10 metres apart.

108. When he first saw them, he asked Abdüllatif  lhan and Ibrahim Karahan why they had run away. They replied that they were frightened of the soldiers but could not explain it clearly. When he enquired about their injuries, they gave evasive a nswers and said that they were fine.  He noticed that Abdüllatif  lhan’s speech was impeded and that he was not speaking normally.  He did not know Abdüllatif  lhan’s state of health or if he had a speech impediment however. As they had resisted the gendar mes, he told Abdüllatif  lhan and  brahim Karahan that he would take them to the public prosecutor. Abdüllatif  lhan did not lose consciousness nor did anyone tell the witness that he had.

109. The incident report was drawn up at Aytepe. Abdüllatif  lhan wante d to sign it and did so, as did the other two suspects. If Abdüllatif  lhan had complained that the soldiers had beaten him, the witness would have brought them to court. But he did not suspect any transgression because of what the soldiers said and the la ck of complaint from Abdüllatif  lhan. He did not recall who saw Abdüllatif  lhan falling. At least three persons had to sign an incident report and it was not possible that they had each witnessed everything that had occurred. He did not permit soldiers u nder his command to ill-treat people and knew of no occasion on which they had done so, save for one allegation that they bound handcuffs too tightly when transferring a particular prisoner.

110. The operation would have ended at noon or after. As they had no vehicles, he asked  brahim Karahan to help Abdüllatif  lhan. Ahmetlı village was 300-500 metres away. The witness, in answer to questions by the applicant’s representative, said  brahim Karahan only had to hold him by the arm. At an earlier point, he expl ained that since Abdüllatif  lhan could not walk, he obtained a mule from the villagers at Ahmetlı. Abdüllatif  lhan sat on the mule until they reached Konaklı station. It took a long time to climb the steep road and they did not arrive until evening. He t old the station commander’s assistant to take the two men’s statements to ease his own workload the next day. The witness requisitioned a vehicle as it would not be right to return on foot. Normally they would not have returned to Mardin in a vehicle. The soldi ers burdened with their weapons would be unable to assist another person. Because of the risks of mines however, a certain portion of the road had to be checked with a mine detector before the vehicle could reach Konaklı station. By midnight, they were sti ll waiting for the road to be secured. Finally, the vehicles could leave. He was with Abdüllatif  lhan in the covered vehicle. Abdüllatif  lhan had been warmed up by the stove in the station. He seemed to have slightly improved at that time and could sit m ore comfortably.

111. They arrived in Mardin towards morning on 27 December 1992. As Abdüllatif  lhan did not seem to be improving, the witness called their doctor as soon as they arrived. He was aware from his experience as a gendarme that a blow to the head can be very serious. Within half an hour, maybe 10 or 15 minutes, the doctor came in his civilian clothes from his bed. He looked at Abdüllatif  lhan and said, “I can’t find anything. He’s probably trying to trick you in order to be released.” The doctor was accompanied by a paramedic soldier. The doctor told the paramedic to wipe off the blood and put a dressing on his wound above his eye. He listened to Abdüllatif  lhan’s heart, pulled up his clothes on his back, checked the back of his head and his puls e. The paramedic took Abdüllatif  lhan’s blood pressure. The doctor said the signs were normal. He did not see the doctor make notes of the examination. The doctor did have a notebook which he always carried with him but he did not know if the doctor made any entries on this occasion. The witness was reassured by the doctor. He took the statements of both men. He doubted that Abdüllatif  lhan was signing properly and had him put his thumb print on it. At one point, he said that he would have finished the fo rmalities by noon, but in answer to further questions was more hesitant in remembering the time. He admitted that, perhaps, as he was less concerned now, he waited too long to take the statements A new working day had started and there were many duties to perform. Because Veysi Aksoy was wanted, he was taken to the custody room, his name recorded, his statement taken and then sent to the public prosecutor.

112. Abdüllatif  lhan was speaking haltingly. Though he could make himself understood, he was not very ar ticulate. He could speak Turkish. After taking the statements, the witness prepared the incident report. He discussed the matter over the telephone with the public prosecutor, informing him that he was sending Abdüllatif  lhan to see a doctor. He prepared the documents for the public prosecutor and sent both men to the hospital under escort. At another point, he referred to the conversation with the public prosecutor occurring after Abdüllatif  lhan was sent urgently to Diyarbakır.  He then sent the investigation file to the public prosecutor, charging Abdüllatif  lhan with obstructing a security officer, disobeying a stop order. On the orders of the doctor, Abdüllatif  lhan was taken urgently to Diyarbakır in an ambulance with the paramedic. The scratches on Ibrahim Karahan were very different and he would not have been concerned about those. When referred to a document from which it seemed that both Abdüllatif  lhan and  brahim Karahan were refe rred for treatment in Mardin, the witness stated that he had to obtain medical reports of persons who were to be sent to the public prosecutor as part of the file. He was not surprised when one of his men informed him that Abdüllatif  lhan was in a serious condition but he had not noticed him deteriorate particularly at the station.

113. In 1995, he was asked questions about what had happened to Abdüllatif  lhan, when written requests were received from the prosecutor’s office and the European Commission of Hum an Rights. He gave a reply in writing.  He agreed that it was an aggravating factor that Abdüllatif  lhan had pushed the soldier in resisting him. When referred to the fact that the incident report did not mention this, he said that they were in a hurry an d neglected to do so. It would have been better to mention it but they simply forgot. When referred by the Government Agent to the letter of 13 May 1994, he agreed that Ridvan Özden could have obtained the information from him about the pushing and that th is completed the information in the case.

114. When taking up his duties in July 1992, he had been informed that the  lhan family in Aytepe co-operated readily with the PKK. The names of Hasan or Mehmet  lhan may have been mentioned. There had been many incide nts in the six months preceding the operation in Aytepe. One of his soldiers had stepped on a min e in a hamlet of Ahmetlı and a gendarmerie was raided. He carried out 30 operations in that time and he often went to Aytepe. He knew that  brahim Karahan had been involved in taking two female terrorists up to the terrorist cell in the mountains, though h e did not have any proof of it.

115. Abdüllatif  lhan’s name and data were not placed in Konaklı custody register as they were only in transit, not staying there. Also they could not take anyone into custody until they had been seen by a doctor. He was probabl y not entered at Mardin station either since they had come from 60 to 70 kilometres away and they turned over the file to the public prosecutor the same day. It would not have been necessary. He did not give the order for the entry to be made.  He was unab le to remember when Abdüllatif  lhan and  brahim Karahan left the station. The statements were taken at noon. Nor could he recall when they went to Mardin State Hospital. He confirmed that the vehicle in which Abdüllatif  lhan was carried would have passed by that hospital on the way to the Mardin central provincial gendarme station.

(5) Ahmet Kurt

116. The witness was born in 1972. In December 1992, he was the deputy commander of Konaklı gendarme station under the command of Mardin provincial gendarmerie hea dquarters. When asked to recount what happened at Aytepe on 26 December 1992, he requested to refresh his memory from the documents, which were duly given to him. He then stated that he had accompanied units from the central station on an operation in Ayte pe. He was assigned to a particular area. The weather was cold, but not snowing, with about 20 cm of snow on the ground. While watching with binoculars, he saw two persons running away from soldiers carrying out the search. He notified the unit commander w ho ordered him to capture them. He went with his team of 17 men in the direction of the escapees. That area was very woody, with many walls.  There were hundreds of small gardens south of the village. It was about 1 km from where he had first spotted them and it took them about half an hour to get to the gardens. He slipped three of four times as he came down the hill as the stones were icy and covered with snow.

117. After half an hour, a private informed him that they had caught one. He went to the place and recognised  brahim Karahan. The soldier told him that they had followed his footprints and caught him hiding in the snow, under some trees. The witness asked  brahim Karahan where the second person was. Karahan said that he was alone.  They insisted but h e still denied it.  He saw no sign that the soldiers had beaten him.

118. About 15-20 minutes later, a private shouted that a man was fleeing. The witness headed in that direction and was informed that the man had been caught. When the witness went up to him, he saw that it was Abdüllatif  lhan. He was told by the private that the man, while jumping over one of the garden walls, slipped, fell and hit his head. The scratches on his face were from the thorny bushes under which he had been hiding. The private said that he had seen Abdüllatif  lhan, ordered him to stop and that Abdüllatif  lhan had panicked and tried to escape by pushing the soldier. The soldier called out to the other soldiers that some-one was trying to escape. Abdüllatif  lhan fell when he was ju mping the wall and that is when he was caught. The witness did not himself see Abdüllatif  lhan slip and fall. There were two or three other soldiers at the scene who had come to help and subdue Abdüllatif  lhan. They were holding him, standing, by the arm s, as he had tried to flee by pushing the private and resisting.  The walls were one and a half or two metres high. It would have been difficult for some-one to see another person at 15 to 20 metres.  brahim Karahan could not have seen Abdüllatif  lhan’s c apture as it took them another 15-20 minute search to uncover him.

119. The witness saw that Abdüllatif  lhan was bleeding on the head, not on the face - he guessed on the left side. He did not look closely. Abdüllatif  lhan was limping slightly, but he did not remember on which side and he did not check if there was a wound. His clothes were wet from the river. When asked how his clothes were wet, the witness denied saying that he had fallen in the river but stated that the soldiers said that he got wet when he fell. In answer to further questions by the Government Agent, he stated that he fell in the creek when he was jumping over the wall which was near the water. The river had a strong current and was difficult to cross in autumn and winter. They brought A bdüllatif  lhan to the commander who ordered a fire to be lit. They asked him why he had tried to escape and not stopped when ordered. He said that he was afraid and had panicked. His speech was clear.

120. They arrived back at Konaklı at about 15.30 or 16.00 hours. He estimated that Abdüllatif  lhan remained there about four or five hours before leaving in a vehicle at about 21.00 or  21.30 hours. The witness took Abdüllatif  lhan’s statement at Konaklı on t he order of  eref  akmak. He put a pen in Abdüllatif  lhan’s hand and told him to sign the statement, which he did. Abdüllatif  lhan was talking normally at this time. However, he would not say that he was in a very good condition. He knew Turkish well eno ugh to make himself understood. He recalled signing the report drawn up by  eref  akmak after he had taken the statement at Konaklı. Abdüllatif  lhan did not sign the incident report in his presence. It took four to five hours to go from Konaklı to Mardin. He thought that they must have arrived in Mardin at between 01.00 and 02.00 hours . Though it was 40 km, vehicles had to proceed slowly while the road was checked for mines.

121. The witness was never asked any questions about Abdüllatif  lhan’s injuries. The report omitted mentioning that Abdüllatif  lhan pushed the soldier probably due t o his inexperience, as he had only held the post one year. He was not surprised that Abdüllatif  lhan’s signatures on various documents looked different as the man was illiterate.

(6)  Selim Uz

122. The witness was born in 1972. In December 1992, he was doi ng his military service in Konaklı station, Mardin. He confirmed that it was his signature on the bottom of the incident report.

123. On the day of the incident, they were approaching Aytepe village, going down a hill and dispersed to comb the area. They saw two persons running away into dense woods and bushes and going in different directions. They split into two groups to follow and find them. The witness had difficulty getting through the trees. At one point, he found himself in a thicket where the trees an d undergrowth were so dense that he could not get through. He had to turn back. As he did so, he saw a person there. The witness immediately told him to lie down on the ground and not to move. As the witness approached him, the man suddenly got up and push ed him. At another point, he described the man as pushing him when he dived to the ground. When questioned further, he said that he shouted at the man to stop and to lie down, that the man did lie down and when he went over and caught hold of him, the man pushed the witness. The witness was bewildered, anxious, as the man might be carrying a weapon. When he had seen the man, his first reaction was fear. It was a hair-raising situation and his adrenalin was flowing. When he was pushed, he was afraid. He real ised that the man did not have a gun but he reckoned that the man might have a sharp instrument and that he might attack. It did not occur to him that the man would run away. He expected that the man would grapple with him and attack him with the sharp ins trument.

124. When the man hit him, the witness staggered. Then the man jumped over the bushes. He lost his balance and fell. He got up and fell down. There was a stream further on, where the ground was slippery. The man fell because it was slippery and crack ed his head against the stones and a big boulder on the bank of the stream. He did not fall in the stream. He fell on his left side of the body and probably hit that too. Then, the witness’s colleagues got to him. Two of them had been about 15-20 metres aw ay. They threw water on his face to wash a cut and then picked him up. The witness collected himself and went over.  He did not run. There had been no need for him to follow the man as he was fleeing straight for his colleagues. If his colleagues had hit h im, he would have seen it. If they had he would have intervened. If the witness had intended to hit him, he would have done it. The witness had been the first one to see him and had felt his life in danger, so why should anyone else have hit him.

125. He notic ed that the man was bleeding a little on the forehead above the left eyebrow and that there was purple bruising. He had injured his left foot, where there was a slight scratch, which was bleeding. The witness presumed that he tore his trousers as he jumped over the bushes. There were also scratches on his face and hands from the bushes. They helped the man to stand up. The witness held him by the arm. Their commander arrived and they took him to the station. When asked whether he had seen the man fall, he a ppeared to confirm this.  The incident definitely was not intentional. If he had struck the man with his rifle butt or kicked him on the ground, the man would never have been able to run away. The witness stated that when he saw the man he was so agitated and afraid that if he had hit him he would not have known how he would have hit him. If he had hit him, he would have been bound to die as the first place that he would have hit him would have been the head.

126. When referred to the incident report’s referenc e to a warning shout, he stated that they had been spread out over the hillside and that when they first saw the men running they were too far away to shout out to stop. It took 25 to 30 minutes to find them from the moment they saw them from the hill.  Th e stream was only 1-2 metres wide. A person could step into the water and cross it. There was no risk of being swept away. The man was trying to run back towards the village again to hide.

127. When asked if Abdüllatif  lhan’s clothes were wet, he said that A bdüllatif  lhan was bound to have crossed the stream when he left the village so his clothes would have got wet then.  When he fell by the stream, his head was partly in the water. Maybe in the excitement, without being deliberately doused, he might have g ot wet when they washed his cut to stop the bleeding. There was snow on the ground, so it was pretty cold. They did not provide him with dry clothes as they could not go into the village. When asked if anything else was done to dry or protect him, the witn ess said that they sat him down, gave him a cigarette or a drink and wrapped him in the soldiers’ ponchos. When the Government Agent pointed out that  eref  akmak said that on their way along the road, they lit a fire to dry Abdüllatif  lhan, the witness s aid that that might well have been but he did not seem to have any personal knowledge of this.

128. The witness did not see  brahim Karahan being apprehended. It was not possible to see from one place to another at that location, as the thicket was very dense. When searching the area, the soldiers were walking in a line at about 15-20 metres. While there was no-one with him when he came across Abdüllatif  lhan, the others were within a few metres. When Abdüllatif  lhan ran away from him, he jumped a hedge fence , the bottom of which was built of stone and there were bushes wedged in. It was high in some places. It was waist high where Abdüllatif  lhan jumped it. When he had jumped over, he could not see exactly what had happened. Since the other soldiers were wal king along in a line and the man was running back towards the village, nobody could have seen him fall or exactly how he fell. But he definitely slipped. His footprints could be seen clearly at the edge of the stream.

129. The witness returned with the others to Konaklı station, arriving towards evening. He could not recall after the lapse of time but he thought that  eref  akmak and his men returned to Mardin that same day between 17.00 and 20.00 hours. Abdüllatif  lhan’s condition was normal while at the sta tion. There was no stove in the station canteen, only in the dormitories and station commander’s room. When Abdüllatif  lhan arrived, his shoes and things were changed because they were wet.  eref  akmak and his men went back in military vehicles. There wa s no other way, since it was quite impossible for them to walk to Mardin from there. Road security measures were taken as a matter of course. When asked if he had told Ahmet Kurt, his team leader, that he had been pushed, he said first that he did not thin k it was necessary and then that he could not remember whether he had told any of his superiors or not. At another point, to the Government Agent, he commented that things were a bit stressful when they got back to the station because of the commander's qu estioning and they did not think it necessary to give so many details. He was unclear as to where the incident report was signed but, to one question, stated that it was not signed by all the people together.

(7) Dr Me hmet AydoÄŸan

130. The witness was born in 1970. In December 1992, he was working in the emergency ward of Mardin State Hospital. He had graduated in August 1991 and taken up his duties in October 1991. He confirmed his signature on two medical reports but coul d not recall seeing Abdüllatif  lhan. He wrote the second report following an official letter from the Ministry of Foreign Affairs. The time 19.10 hours on the first report referred to the time the patient was received at the hospital, not the time of exam ination. Unless another urgent case required life-saving treatment, he would generally treat a patient when he arrived.

131. When his report stated that Abdüllatif  lhan was conscious, this would mean that his answers were making sense. Referring to his report of December 1996, he wrote the word “blow”  because of what the patient said. Though he did not recall this patient, that was when they used the word “blow”. In reply to later questions, he stated that the word “blow” covered a fall anyway. He could no lo nger recall if Abdüllatif  lhan had told him that he had been hit. If Abdüllatif  lhan had been drifting in and out of consciousness, he would have noted it.  The report only indicated that he did not observe it himself.

132. In his opinion, a patient with th e injuries described should be seen immediately by a doctor.  If not, there was the risk that the lesion on his head might develop and paralysis occur. While the paresis (semi-paralysis) could not be prevented whether the patient was seen immediately or wi thin five days, the condition could only be prevented from developing further if a doctor was consulted immediately.

133. The gendarmes used to bring in people to the hospital. Generally, their own doctor brought them. They also had their own ambulance. He di d not recall if this patient was accompanied by gendarmes.

134. A person without medical experience would have seen the haematoma around the eye. But hemiparesis could only be diagnosed by a doctor. It could decrease muscular strength and sensation, without i mpeding ability to walk or other movements.  On the morning of 27 December 1992, a doctor who carried out a detailed neurological examination would have been aware of the need to transfer Abdüllatif  lhan to hospital. Without the necessary equipment, if th e patient was conscious, replying to questions, it would depend on the doctor’s opinion - he might not consider the patient to be an urgent case.

135. If there had been other major injury, he would have noted it in his report. But they were a busy hospital, t hey could not devote all that much time to a patient. To save time, they did not look everywhere unless the patient said he had a problem. If it was an urgent case, it was more important to refer the patient as soon as possible. It took the ambulance an ho ur and a half - two hours and a half in bad weather - to reach Diyarbakır. He commented that he would not have expected hemiparaplegia (complete paralysis) to have developed in the short time which it would have taken for Abdüllatif  lhan to reach Diyarbak ır.

(8) Dr Ömer Rahmanlı

136. The witness was born in 1955 and he was currently professor at the brain surgery department of the Faculty of Medicine at Lice University. In December 1992, he was working as a brain surgeon at Diyarbakır State Hospital. He re membered treating Abdüllatif  lhan. As far as he could recollect and from what he understood from the file, his general condition had been middling, his state of consciousness somnolent (he was inclined to sleep), there was a decrease in the movements of t he left arm and leg, called hemiplegia. There was a risk of death when he was admitted. The trauma was on the right side of the head. He did not recall that there was any serious wound requiring stitching, which would have been noted.

137. The injury to the h ead resulted from a blunt head trauma, which could be caused by a fall from a high place, a car accident, hitting against a surface or by a blow. It could have been caused by a single blow or several blows, depending on the force used.  This was a trauma o f medium or medium-light severity. In a very severe trauma, there was always a skull fracture. He thought that Abdüllatif  lhan told him that he had received the injury from being beaten.

138. In his opinion, delay in Abdüllatif  lhan coming to the hospital w ould not have affected the treatment of his condition. The head trauma was not very serious. There were some contusions, an oedema and small intracerebral haematomas in the brain. A surgical intervention was not necessary as the bleeding in the brain could be resorbed spontaneously so the delay did not have much effect on his recovery or the risk of death. He thought that Abdüllatif  lhan would have been incapacitated on the day that he was admitted. Afterwards, he could walk, though he limped. Earlier inte rvention could not have prevented the paralysis. In time, the degree of paralysis might decrease and this could be reduced to a minimum by physical therapy and rehabilitation. There was no CAT scanner at the hospital at that time and the patient would have gone to the Günsağ clinic, where the people with him would pay for the scans.

139. In respect of patients with head trauma, the clinical picture became clear within 24 to 48 hours. In the first one or two hours, it was probable that nothing would be found. In acute cases, the picture might take shape within an hour or two. In the case of Abdüllatif  lhan, it would have taken longer. This included the manifestation of the oedema, the weaknesses in the arm and leg and the intracerebral contusions. A doctor who e xamined him at noon that day might not have been aware of brain damage.  He agreed that head traumas were unpredictable and that it was important to keep the person under observation. After the trauma, in general, the patient loses consciousness for a shor t time but regains it. Such patients have headaches, nausea, vomiting and can give illogical answers to questions.

140. When shown the recent CAT scans of Abdüllatif  lhan, he commented that he could see light lesions remaining in the brain. That could be conn ected with a slight loss of strength or loss of movement.  He recalled seeing him on three or four subsequent occasions when the loss of strength in his left arm and leg had been considerably restored.

(9) Dr Selahattin Varol

141. The witness was born in 1 952. In December 1992, he was a chief consultant at Diyarbakır State hospital. He was a urologist. He stated that he did not sign the report of 16 December 1993 but that it was his assistant’s signature on his behalf. He did not remember anything of Abdüll atif  lhan.

142. When referred to the medical report concerning Abdüllatif  lhan, he stated that the danger to life resulted from the violence of the blow. With a light blow there might be no oedema in the brain but with a violent impact with a blunt object t here can be brain oedema. If it was more severe there might be paralytic lesion; if less serious, there could  be paraesthesis,  which gave a numbing, tingling sensation. In the hospital notes, he read out the findings of the tomography or CAT scan report as indicating that Abdüllatif  lhan had cerebral oedema, contusion, oedema of the right parietal bone and left hemiparesis.

143. He was unable to state at what time the symptoms of hemiparesis would have become apparent. From the reports,  if Abdüllatif  lhan’ s con dition at Mardin had been as it was on arrival at Diyarbakır, he would not have been able to make any statement or be described as conscious. In his view, a doctor who saw the swelling above the eye of a patient as described here, who was conscious, should have been aware of the possibility that paralysis could develop.

(10)  Abdülkadir Güngören

144. The witness was born in 1959. In December 1992, he was public prosecutor at Mardin, where he had taken up office at the end of 1991. He recalled the case of Abd üllatif  lhan. There had been a record in the file, drawn up by the gendarmes as to the incident, a medical report and a statement from the suspect in line with what the gendarmes had said. He only recalled one statement from Abdüllatif  lhan. The gendarme s had apparently warned him to stop, he had ignored them and fallen off the rocks trying to get away, as the ground was snow-covered and wet. There was nothing in the file or evidence to arouse suspicion or anything claiming that the contrary had occurred, so they opened criminal proceedings in the magistrates’ court.

145. When asked if he had questioned any of the gendarmes involved, the witness had received an oral statement from  eref  akmak. From the information he was given  eref  akmak was present when A bdüllatif  lhan was arrested. He was not told that Abdüllatif  lhan had pushed a gendarme and tried to flee. This was more serious and he would have instituted proceedings under Article 258 of the TPC. The witness knew Aytepe and the area around it. He was not aware of the name of the gendarme who gave the warning to stop. He would have been a person under  eref  akmak’s command. He agreed that he had been concerned that Abdüllatif  lhan had suffered serious injuries on arrest. He did not feel the need to t ake a statement from him personally as the statement from the other person who had fled, the incident record signed by five people and his own statement all tallied. The medical report had stated that he was conscious as well. The signatures on the inciden t report were regarded as an admission of the correctness of the record.

146. When asked whether he had looked to find medical reports of the detainees in the file, the witness stated that they had not been questioned and not taken into custody. He did not re call seeing a document signed by  eref  akmak concerning the transfer of the two suspects to hospital. When shown the statement of Abdüllatif  lhan dated 27 December 1992, he stated that this was the first time that he was aware that Abdüllatif  lhan had n ot been sent to hospital until late on 27 December 1992. In those circumstances, he would expect to see a record of that detention in the gendarmerie. There would be an entry in the custody record if he was actually detained in custody but not everyone tak en into the commander’s room was in custody, for example, if he was receiving treatment or had nowhere to go. People taken into custody go to a special unit. The offence with which they were charged in this case was punishable with a fine of TL 3500. No-on e was taken into custody for that. He knew that these two suspects were not detained. Abdüllatif  lhan was sent to hospital and since he did not have anyone else,  brahim Karahan went with him. Also it was impossible in 1992 for civilians or military to tr avel at night, so they might not have been able to send him for that reason. When the applicant’s representative told him that  eref  akmak had kept Abdüllatif  lhan to take his statement a second time, the witness said that this should not have happened a s once was sufficient.

147. When asked why  brahim Karahan was not prosecuted, he explained that there was no reason to prosecute him as he did not run away. He merely hid before the order to stop was given. When it was pointed out that in his statement Karah an said that he tried to escape, the witness stated that trying to escape was an attempt stage. Though the incident report indicated that both had failed to stop, this had been clarified orally by  eref  akmak. Since court proceedings are public, Abdüllati f  lhan could have been accompanied when he appeared in court.

(11) Nuri Ay

148. The witness was born in 1972. In December 1992, he was a soldier. He served as a medical orderly, having had three months’ training. He was based at Mardin where the doctor at the time was Dr Hayri Savur. They looked after the health of the soldiers. If the health of detained persons needed to be checked, it was part of his function also. He was involved in that frequently, once a week, once a month or thereabouts. He did not re call assisting in the examination of Abdüllatif  lhan or anyone injured in the face. He was never called out at night. Initially, he stated that he never heard anything about some-one trying to trick them by pretending to be in a worse condition than he wa s. Then he said this sometimes happened, when somebody said they had a headache or a pain. But there were no external injuries in those cases.  His commander was the station commander, not  eref  akmak, who was the commander of the provincial central comma ndo company. He did not recall if  eref  akmak had ever called him out but it was not in his functions to examine his detainees. He would have remembered if he had been called by him during the night.

149. He was not involved in the keeping of records about e xaminations. The doctor compiled those. He did not know where they were filed or sent. When the doctor examined people, it took 15-20 minutes and he looked all over.  They only examined people in the infirmary, nowhere else. Records were taken of those per sons brought into the infirmary.

Witness who did not appear

150. The Commission's Delegates had also called as witness Dr Osman Hayri Savur.

151. By undated letter which was provided to the Commission during the hearing, Dr Savur stated that he could not attend the hearing on 4 May 1998 as his child was ill.

C. Relevant domestic law and practice

152. The Commission has referred to submissions made by the parties in this and previous cases and to the statements of domestic law and practice recited by the Court (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, pp. 1169-1170, paras. 56-62 and Tekin v. Turkey judgment of 9 June 1998, pp. 1512-1513, paras. 25-30, Reports of Judgments and Decisions 1998).

1. State of Emergency

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

154. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorat e 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.

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

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

2. Criminal law and procedure

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

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

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

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

159. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Decree No. 285, Article 4 para. 1, provides that all security forces under the command of the Regional Governor (see para. 154 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 receiv es a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State.

4. Consti tutional provisions on administrative liability

160. 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 a cts and measures.”

161. 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 li ability 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 d uty to maintain public order and safety, or in its duty to safeguard individual life and property.

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

5. Civil law provisions

163. Any ill egal 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 clai m 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-pecu niary or moral damages awarded under Article 47.

6. Offences of resistance to officers etc

164. Article 258 of the Turkish Penal Code provides in its first paragraph:

“Whoever, by force or threat, resists a public officer or his assistants during the perf ormance of their official duties, shall be punished by imprisonment for not less than six months nor more than two years.”

165. Article 260 of the Turkish Penal Code provides:

“Whoever exerts any influence or force to prevent the execution of any of the prov isions of law or regulations, shall be punished by imprisonment for not more than one year.”

166. The Commission notes that Abdüllatif  lhan was convicted under Article 260 for failing to stop during an operation which was deemed by the Mardin Justice of the Peace Court to disclose resistance to public officers in contravention of this provision (see para. 75).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

167. The Commission has declared admissible the applicant's complaints:

- that his bro ther Abdüllatif  lhan was subjected to life-threatening treatment by the gendarmes who apprehended him;

- that his brother suffered torture and denial of medical treatment for serious injuries;

- that there was no effective investigation, access to cou rt, redress or remedy provided in respect of these matters;

- that his brother suffered discrimination in respect of the above matters on the grounds of his Kurdish origin.

B. Points at issue

168. 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 ;

- whether there has been a violation of Article 6 and/or 13 of the Convention;

- whether there has been a violat ion of Article 14 of the Convention.

C. Evaluation of the evidence

169. 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 form er Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:

i. The Commission has based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proce edings; 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 con cordant 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 1 978, Series A no. 25, p. 65, para. 161).

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

iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission is acutely aware of its ow n shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while 12 witnesses were summoned to appear, one potentially key-witness failed to give evidence before the Commission's Delegates. It was also hampered by difficulties in identifyi ng eye-witnesses to events and in obtaining documents relating to the incident. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant evidence. It acknowledges the unsatisfactory nat ure of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1. General b ackground

170. The incident in which Abdüllatif  lhan was injured occurred near the village of Aytepe, which is located in the south-east of Turkey, approximately 60-70 kilometres from the town of Mardin. At this time, December 1992, this region was subject to considerable threats to peace and security. The PKK organisation was engaged in activities of a violent character, necessitating counter-measures by the security forces. The Commission notes that the road leading from Mardin to Aytepe had to be checked fo r mines to ensure the safety of military and civilian vehicles and that the gendarme stations in the area had been subject to attack.

171. Abdüllatif  lhan was registered as being from Ahmetlı village. Approximately a year before the incident, he had come to live with his family, his wife and children, at Aytepe village nearby as his own hamlet Kaynak had apparently burned down. While there are differing alle gations as to whether it was the PKK or the security forces who burned down the hamlet, this element is not in issue in the current application.

172. There was a gendarme station at Konaklı station several villages away, and since the area came under the juris diction of the gendarme forces in Mardin, gendarme units from Mardin paid frequent visits. It appears from the testimony of  eref  akmak, the commander of the central gendarmerie of Mardin province, that he had often been to Aytepe. He stated that he had b een informed on taking up his functions in July 1992 that the  lhan family co-operated with the PKK. He also knew  brahim Karahan, the friend and neighbour of Abdüllatif  lhan in Aytepe village, whom he suspected of involvement with the PKK.

173. Aytepe vill age was located in a hilly area. The village was on high ground, with an area south below the village, described as containing gardens, where there were fruit trees and bushes. There were streams, or rivers, the descriptions differing, on the east and west sides of this garden area. There were also differing descriptions of the way in which the gardens were laid out. According to Abdüllatif  lhan, the gardens were on level ground, filled with trees and rocks, and separated in some parts by walls into small fields while in other parts, the terrain was open, with visibility of 200 metres.  brahim Karahan described the gardens as being split into two areas by a high stone wall of 75cm, with a river on one side of the wall.  eref  akmak stated that the gardens w ere divided in areas of 10 to 20 square metres, separated by stone walls the height of a man. These walls were difficult to climb over, with pieces of wood placed at various spots to assist persons in crossing. He described the rivers as having steep, erod ed banks, with the water level high and the current fast, though at this time the upper layer was covered with ice. Ahmet Kurt, the NCO from the nearby Konaklı station, said that there were hundreds of small garden areas, divided by stone walls and that th e area was woody. He also described the river as having a strong current and being hard to cross. Selim Uz, the gendarme, who claimed that he found Abdüllatif  lhan hiding in the garden area, stated that there were patches of dense thickets and trees, whic h obscured visibility. He described the water nearby as being a stream, not more that 1-2 metres wide, which could be stepped across, with no risk from any current. He made no mention of the water being iced over. The wall which he described was high, thou gh only waist high in some places.

174. The Commission observes that it is common ground that there were stone walls in the garden, which were in places quite high and that there were bushes and trees. The difference in the description of the rivers or stream s is striking. Selim Uz was the only gendarme witness who claimed to have seen Abdüllatif  lhan fall by the water.  eref  akmak who knew the area generally was not at the particular spot where the incident occurred.  This discrepancy in the accounts of the terrain however is closely bound up in the assessment of the credibility of the various accounts of events which have been given and is considered further below.

175. The weather at the time of the incident was very cold. There was snow on the ground, descri bed variously as 20cm or four fingers thick. According to  eref  akmak, it was snowing continuously, changing to drizzle as it got warmer. None of the other witnesses who had been at the village recalled that it was snowing at this time.

2. The operation at Aytepe on 26 December 1992

176. According to the report issued by the Mardin provincial central gendarme command, the operation at Aytepe, conducted by units from Mardin and Konaklı, took place pursuant to intelligence reports that Mehmet Koca, one of the villagers, was harbouring two persons wanted for aiding and abetting the PKK (see paras. 67-68). There is no indication that there was any intention to apprehend either  braham Karahan or Abdüllatif  lhan. The units were under the command of  eref  akmak.

177. The gendarmes proceeded from Konaklı station on foot, surrounding the village shortly before dawn. Ahmet Kurt was assigned with his team of 17 men to an area towards the south. He saw through his binoculars two men running away. He reported this to  eref  akmak on the radio and was instructed to find and catch the two men.  He and his men conducted a search, moving downhill and into the garden area south of the village, which was about 1 km from where he had been positioned when he sighted the men. Consider ing the distance involved, Ahmet Kurt’s oral testimony to the effect that there was no attempt to call a warning to stop to the two men is entirely credible. It is however in contradiction to the reports issued after the incident and the statements taken f rom the two men, which allege or imply that stop warnings were shouted when the men were first seen to be running away. This is one of the many elements which cast doubts on the reliability of the written official documents concerning the incident.

178. On thi s issue, the oral testimony of the two men concerned, Abdülattif  lhan and  brahim Karahan, also coincides with that of Ahmet Kurt. They both described that, when they decided to run out of the village to hide from the soldiers whom they realised were comi ng, they heard no-one shouting after them. Abdülattif  lhan explained how the soldiers had been high on the hills and that, naively, they had not realised that the soldiers would be able to see them running away to hide in the gardens.

179. The oral testimony before the Delegates and certain of the official documents in the case also show marked differences as regarded the motive for the two men to run away. Abdülattif  lhan and  brahim Karahan stated that they were afraid, from past experiences, that they migh t be beaten by the gendarmes.  eref  akmak stated that, though he asked them, he received no explanation for why they had run away, besides their assertion that they were frightened. The written statements attributed to the two men dated 27 December 1992 m ake reference to the fact that PKK members had visited their houses and warned them not to speak to soldiers. The undated gendarme report, and the later letter of  13 May 1994 from the Mardin provincial gendarme command to the Mardin public prosecutor, ass erted that the two men had been carrying out surveillance duty for the PKK, the former alleging that the two men had been aiding and abetting the PKK. The Government in their observations, which appear to rely on these latter two documents, also submit tha t the two men were acting as lookouts. There is no indication on what factual basis this assertion was made and there is no evidence before the Commission to substantiate it.  The Commission observes that in the course of the subsequent search no discovery was made of the presence of any PKK members and that the only other person detained was a villager, Veysi Aksoy, apparently wanted for aiding and abetting the PKK.

180. As regards events after that point, the accounts given orally by Abdüllatif  lhan and  bra him Karahan and the three gendarmes who gave evidence are completely at odds - the former asserting that, when they were discovered in the garden, they were beaten, Abdüllatif  lhan being injured in the head probably by a rifle butt, and the latter asserti ng that neither was beaten and that the injuries received by Abdüllatif  lhan were the result of his falling down several times, and hitting his head on a stone.

181. The Commission’s Delegates found that Abdüllatif  lhan was still visibly suffering from the a fter-effects of his injury. His account, given in Kurdish, was expressed in simple, unelaborate terms but was generally consistent and believable. While he did not recall much of what occurred immediately after he was beaten, he was clear that he remembere d being kicked by the soldiers and being struck by a rifle butt on the head.  His testimony was confirmed by  brahim Karahan, who claimed that after he had been found in the garden and had been beaten, he saw soldiers beating Abdüllatif  lhan who was disco vered hiding about 15-20 metres away. The way in which he gave his testimony was also credible and convincing.

182. The Government have submitted that the testimony of both men cannot be relied on as they are full of contradictions and are implausible. As rega rds Abdüllatif  lhan, they point out that at one stage he appeared to say that he had a lawyer and then that he did not; that he accepted that he had put a thumb print on the statement of 27 December 1992 but denied signing anything that day; that he said that there had been no incidents at the village before the operation and then that there had been previous operations at the village; that he alleged that they were hiding in such a way that they could be seen from the village and by the soldiers and had n o reasonable explanation for hiding in this way; that it was incredible that he could have been soaked in an icy river as alleged and not suffer pneumonia or at least a cold. As regards  brahim Karahan, they draw attention to the fact that he alleged that he had been beaten himself but made no complaint himself to the commander nor mentioned it in his statement of 27 December 1992, which he signed; that he admitted the terrain was rough, with lots of bushes and hedges which did not permit persons more than 5-6 metres from seeing each other, and that therefore he could not have seen what he claimed to have seen; that he initially claimed that 10-12 persons were beating Abdüllatif  lhan and then altered his allegation to one or two hitting him; that he said th at Abdüllatif  lhan’s eye was not bleeding although the gendarmes had mentioned this. They point out that, although he was willing to testify for his friend, in respect of his own allegations that he was later detained and tortured for 19 days in 1993 he h ad taken no steps whatsoever by way of complaint about his own treatment. They submit that it is hard to rely on the testimony of someone whose son has joined the PKK.

183. The Commission has considered these points, and the others made in the Government submi ssions but finds that they do not disclose any fundamental inconsistencies which might cast doubt on the reliability and honesty of the two witnesses.  It notes that Abdüllatif  lhan’s testimony on several points seemed contradictory but that on examinatio n of the transcript it appears that he might have misunderstood the ambit of some of the questions. For example, he replied that he had a lawyer to a question by the Commission’s Delegates but then later to questions by his own legal representative stated that there was no lawyer with him in court at Mardin. When asked by the Delegates to clarify this, he referred to a lawyer at Diyarbakır and maintained that there was no lawyer in court at Mardin. This would be consistent with his having been in contact with a lawyer in the HRA in Diy arbakır who was not however involved in the criminal proceedings at Mardin. The Government has furthermore not provided any minutes of the court proceedings which indicate that he was represented by a lawyer at Mardin. Abdüllatif  lhan’s denial of incident s occurring before the operation and his reply that there had been operations before the occasion on which he was injured may also be explained by a slowness of understanding as to what the questions concerned. In relation to the signature on the statement of 27 December 1992, the Commission notes that the applicant as illiterate would be unlikely to sign (see further below) and finds nothing inconsistent in his acknowledgement that he placed his thumb print on the statement. As regards his allegedly unsati sfactory explanation of the hiding places in the gardens, it would appear to the Commission that the way in which the two men fled in sight of the soldiers gave evidence of some panic in which rational thinking might not have been to the fore. It sees no w eight in the argument that if his story about being soaked was correct he would have suffered pneumonia or other ill consequences. On the account of the gendarme witnesses, on whom the Government rely, Abdüllatif  lhan had been wet or soaked and this is on e point on which all witnesses appear agreed. That he did not suffer illness additional to his other injuries is an element of good fortune rather than a sign of dishonesty.

184. As regards  brahim Karahan, the Commission finds no ground to discount his testim ony merely on the basis that one of his children is said to have joined the PKK. It does not find it surprising that  brahim Karahan did not issue any petitions in respect of alleged ill-treatment in late 1993 . On his own account, he had been the subject of repeated interest by the gendarmes and he might credibly have considered that complaining would not serve him any useful purpose but might attract further problems.  Similarly, his failure to complain to  eref  akmak about being beaten in the gardens on 26 December 1992 could be reasonably attributed to his vulnerable position, fearing further ill-treatment or a belief that the commander condoned the behaviour.  His apparent signing of the statement of 27 December 1992 though he rejected the contents is also not inconsistent in light of his explanation that he could not read and it was not read out to him. The Commission does not find that he unequivocally agreed to the description given by the Government Agent at the hearing to the effect that the garden s were not on one level and that bushes and walls prevented one from seeing something at 5-6 metres distance. The Government Agent’s description culminated in an invitation to  brahim Karahan to describe the terrain.  brahim Karahan answered only that the garden where he and Abdüllatif  lhan were was level and that the soldiers dragged Abdüllatif  lhan to the water and immersed him. The Commission sees no inconsistency in  brahim Karahan’s description of Abdüllatif  lhan’s eye as not bleeding. His descripti on that the eye was swollen and black referred to the left eye, whereas Abdüllatif  lhan also had received a blow to the right side of the head. The gendarmes’ descriptions of the injuries are not so clear or unequivocal as to indicate that this is a signi ficant contradiction (see further below). Finally, as concerns the number of soldiers that he alleged were beating Abdüllatif  lhan, his testimony is entirely consistent with his account that a group of soldiers gathered round Abdüllatif  lhan and were inv olved in beating him, of whom he saw one or two hitting with a rifle butt and another kicking. His  clarification that he saw the rifle butt going up and down but that he did not see it strike is also credible and discloses a clarification, rather than a c ontradiction.  The Commission has further considered the reliability of the testimony of both Abdüllatif  lhan and  brahim Karahan in conjunction with the documentary evidence and the oral evidence of the gendarme witnesses.

185. The Commission notes that in t he incident report of 26 December 1992 and in the statements taken by the gendarmes signed by Abdüllatif  lhan and  brahim Karahan on 26 and 27 December 1992, there is no mention of any ill-treatment and that Abdüllatif  lhan is described as receiving inju ries from falling. These contemporaneous documents present numerous difficulties however.

- The incident report and the statement of 26 December 1992 are purported to be signed by Abdüllatif  lhan. He however is illiterate and cannot sign his name, placi ng his thumb print instead. It is to be noted that the statement produced on 27 December 1992 bore a thumbprint, in addition to a signature. The signature on the incident report is an illegible scrawl, which differs considerably from the purported signatur es on the two statements. When Ahmet Kurt who took the first statement was questioned about this, he considered that, since Abdüllatif  lhan was illiterate, the difference in signatures, was hardly surprising.  eref  akmak told the Delegates that Abdüllati f  lhan volunteered to sign the incident report taking the pen in his hand, though he commented at a later point that he did not think that Abdüllatif  lhan was signing correctly but considered that this was still useful for undefined forensic purposes. Th e Commission finds this to be a remarkable explanation, when by  eref  akmak’s own account, Abdüllatif  lhan purportedly volunteered to sign the report shortly after striking his head on a rock and when he was in a condition whereby he had difficulty walki ng. It considers that grave doubts arise as to the circumstances in which the purported signature of Abdüllatif  lhan came to appear on these documents.

- There are doubts as to where in fact the incident report was drawn up.  eref  akmak stated that it w as drawn up at Aytepe, as the report itself stated. Ahmet Kurt however was sure that it was only presented to him to sign at Konaklı later that day. Selim Uz also recalled that the report was not signed by all the people together.

- The contents of the in cident report do not coincide with the events as they occurred according to the oral testimony of any of the gendarmes, in particular Selim Uz, the only one of the three gendarmes who claimed to have witnessed Abdüllatif  lhan receiving his injury. Accordi ng to his version, he found Abdüllatif  lhan hiding, ordered him to freeze but Abdüllatif  lhan pushed him and, running away, fell first as he jumped a wall and then by the edge of the stream.  eref  akmak and Ahmet Kurt admitted that they had no first han d knowledge of what occurred. It is not readily apparent therefore on what basis the report states that the two men were warned to stop when they were seen running from the village and Abdüllatif  lhan fell down the slope of a hill and injured himself.

- There is also some obscurity as to why statements were taken from Abdüllatif  lhan and  brahim Karahan on 26 December 1992 at Konaklı station and also on 27 December 1992 at Mardin. The public prosecutor Abdülkadir Güngören claimed that he had only seen the statements of 26 December 1992 and that there was no necessity for taking a second set of statements at Mardin. The secon d set of statements makes reference for the first time to the two men having run away because they had been warned by the PKK who had been to their homes not to have anything to do with the soldiers but apart from that they add no further details as to how the injury of Abdüllatif  lhan occurred. It is to be noted that the statements of Abdüllatif  lhan do not coincide on significant points with the oral testimony of the gendarmes. The statements give events in reverse order, alleging that Abdüllatif  lhan hid in the bushes after he had slipped and fallen whereas Selim Uz’s detailed oral explanation was to the effect that he fell after he had been discovered hiding.

- The incident report, which purports to be the most contemporaneous document,  makes no re ference to the alleged assault by Abdüllatif  lhan on Selim Uz. However, the report from  eref  akmak to the public prosecutor dated 27 December 1992 refers to both suspects physically resisting by pushing members of the security forces and the report to t he Mardin provincial central gendarme command alleges that they resisted the gendarmes with stones. These accounts, which all derive from the Mardin gendarmes, are strikingly inconsistent and give the impression that the story was increasingly embroidered with the passage of time.

186. The Commission has had occasion to observe previously that the reports drawn up after an incident have provided unreliable accounts of what occurred. [3] Though such reports are allegedly drawn up at the location of the incident an d immediately afterwards, the signatories of such reports have often proved to have no independent  knowledge of the events allegedly recounted and it has not been possible to identify the source of the information contained in them. It observes that the i ncident report in this case fails to identify which of the signatories could be regarded as a source for any one of the stated facts therein, while no one signatory could be regarded as a witness to the factual assertions as a whole. The report also fails to identify who drew it up for signature by the signatories. As indicated above (para. 185), the report misleadingly purports to have been drawn up and signed by all the signatories at the scene of the incident.

187. The Commission finds that there are serious doubts as to the reliability of both the incident report and the statements taken by the gendarmes. It has given careful consideration to the oral testimony of the three gendarmes, who were or should have been in a position to give an account of what occu rred. It would observe however that while it requested the Government to identify the gendarme or gendarmes who apprehended Abdüllatif  lhan the Government provided the name only of Selim Uz. On questioning by the Delegates, it appeared that while he indee d claimed to have found Abdüllatif  lhan in hiding, he was not in fact immediately on the spot when his colleagues allegedly caught Abdüllatif  lhan.

188. As mentioned above,  eref  akmak, the commander of the gendarme units, did not witness the incident himse lf. He did however provide the Delegates with an elaborate account. The Commission is not satisfied that it can be regarded as reliable. It has already noted above that his description of the scene of the incident differed strikingly from that of the genda rme Selim Uz who had apparently been there and that the alleged pushing of Selim Uz was not included by him in the incident report, despite it disclosing that a more serious offence had been committed. He also sought to explain the fact that Abdüllatif  lh an was soaked by referring to his alleged fall into the river, whereas Selim Uz referred only to Abdüllatif  lhan falling by the river and water being thrown on his face. The Commission accordingly gives little weight to his testimony about how the injurie s occurred. It also has reservations concerning his evidence as to what occurred after he went to meet the gendarmes and their prisoners 200m down the Ahme tlı road outside the village. On the one hand, he accepted that Abdüllatif  lhan showed sign of an injury to the head and that he spoke in an impeded, abnormal fashion, but on the other hand saw no reason for particular concern. Though the incident report and the statements of Abdüllatif  lhan drawn up at the time referred to the fact that Abdüllatif  lhan’s left leg was also injured,  eref  akmak told the Delegates that his leg was not injured and that  brahim Karahan only had to assist him by holding him by the arm. He later conceded that since Abdüllatif  lhan could not walk it was necessary to obtain a mule for him to ride on to the station. This seems to show not only an inconsistency but an inclination to attempt to minimise the visible extent of Abdül latif  lhan’s injuries.  eref  akmak also seemed at some pains to show that he was nonetheless attentive to the care of the suspects under his responsibility. He explained that since it was very cold and Abdüllatif  lhan was soaked from falling in the rive r he ordered a fire to be lit, though the possibility of allowing him to obtain dry clothes from his house did not occur to him. While Ahmet Kurt also referred to a fire being lit,  Selim Uz appeared to have no personal knowledge that this occurred and to be surprised by the suggestion. The Delegates found the testimony on this aspect to be unconvincing and lacking in credibility.

189. The Commission recalls that Ahmet Kurt, though in charge of the squad who searched for and found Abdüllatif  lhan, stated that he was not on the spot when the injuries occurred. He recounted what he said that he had been told by the soldiers, including the allegation that Abdüllatif  lhan had fallen into the river, though he was rather confused as to what he had been told and his explanation varied. He noticed on arrival at the scene that Abdüllatif  lhan was bleeding on the head and limping. He saw nothing to remark in the way in which Abdüllatif  lhan spoke though he conceded that he could not say that Abdüllatif  lhan was in a very good condition when he was at Konakl ı. The Commission perceives the same reluctance to admit that Abdüllatif  lhan was seriously hurt at Aytepe and places little weight on his account of how the injuries occurred.

190. The Commission finds that the testimony of the gendarme Selim Uz is of partic ular significance. He claimed to be the gendarme who found Abdüllatif  lhan hiding in thick undergrowth and described with graphic detail how Abdüllatif  lhan lunged at him, pushing him and then ran away. He repeated several times that the incident was not intentional. He talked dramatically of how scared he was, that he had feared first that Abdüllatif  lhan had a gun, then that he might have a knife. When asked about whether any other soldiers had beaten Abdüllatif  lhan, he volunteered the comment that i f anyone had had the motive to hit Abdüllatif  lhan, it would have been him and that he was in a state in which he could have done anything. The Delegates found that he gave his evidence in a quite distinctive manner which contrasted with his denial that A bdüllatif  lhan had in fact been ill-treated. In answer to questions he tended to repeat the same explanation but would then abruptly volunteer information about his personal feelings, in such a way as to give the impression of trying to vindicate himself.   The Commission also notes that he was very unclear as to the information which he passed onto his superior officers about what had occurred and seemed to accept the possibility that the accounts which were given were not wholly accurate. He also explaine d the fact that Abdüllatif  lhan was soaked by describing how they splashed water on him to wash the cut on his face, but that, unintentionally, they could perhaps have do used him in the excitement. His comment that things were stressful at Konaklı due to the commander’s questioning also gives a distinct impression that the events were less than orderly and routine both at the scene of the incident and later and that the so ldiers themselves were considerably agitated and had to do some explaining.

191. The Commission also observes some difficulties with Selim Uz’s description of events. He stated that he found Abdüllatif  lhan hiding in dense thicket, which he could not push th rough and that he told him to freeze and lie down, which in itself seems contradictory. He also stated that Abdüllatif  lhan pushed him back and ran away, jumping over a wall, falling on the other side and by the river. However, he described himself as ree ling backwards, having to steady himself and admitted that he made no attempt to pursue the escaping man. It is not apparent how he would have been in a position to see himself that Abdüllatif  lhan had fallen twice in the way described or what occurred wh en he was caught by other gendarmes. When this was put to him, he admitted that he could not exactly see what happened. The Government have therefore not succeeded in producing a witness who could unequivocally state that they witnessed Abdüllatif  lhan re ceiving his injuries as a result of a fall.

192. The three gendarmes were adamant in refuting the testimony of  brahim Karahan, who alleged that he had himself witnessed Abdüllatif  lhan being beaten. It was stated in contradiction of these two men’s evidence that they were not hiding in the same vicinity and that the layout of the area, with walls and thickets, was such that his claim to have witnessed anything was impossible.  As stated above, the Delegates found  brahim Karahan’s testimony to be credible an d given in a convincing manner, whereas serious difficulties arise in relation to the accounts by the gendarmes. His claim that he himself was beaten receives substantiation from the fact that he received medical treatment at Mardin for trauma to the ear, which is unexplained by any of the testimony of the soldiers who stated that he had only received scratches from bushes.

193. As regards the visible extent of the injuries to Abdüllatif  lhan’s head, the accounts vary. According to  brahim Karahan and the appl icant, who saw him the next day, the area around his left eye was swollen and bruised and he also had a mark on the right hand side of his head. The applicant described this mark as four inches long above the eyebrow and stated that it looked as if it had bled a little. The gendarmes’ evidence also indicated that there was visible injury to the head.  eref Cakmak recalled that there had been scratches on his face but also a larger wound that bled, though he could no longer recall on which side. Ahmet Kurt r ecalled that Abdüllatif  lhan’s left side of his head was bleeding, rather than his face. Selim Uz was rather confused in his recollection, but stated that he was bleeding a little on the left hand side above the eyebrow, but also that he was bleeding from scratches from bushes on other parts of his face. He remembered bruising also. That there was bruising around the left eye is confirmed by the report of Dr Aydo ÄŸan, who recorded a periorbital haematoma on that side. However, the injury to the brain, which resulted in semi-paralysis on the left side, was caused by trauma on the right hand side (see Dr Rahmanli’s testimony). Abdüllatif  lhan indeed stated that he h ad been struck by the rifle butt on the right side of the head. This accords with  brahim Karahan’s and the applicant’s recollection of there being a mark on that side. The Commission finds the gendarmes’ accounts coincide to the extent that they recall wh at must have been the more visible signs of injury on the left hand side but are otherwise not particularly clear or consistent. The references to bleeding on the left hand side are difficult to reconcile with the medical evidence while reliance on scratch es from bushes on the face as accounting for other marks on the face is unconvincing. It is to be remarked that the gendarmes’ account of a fall is not easily reconcilable with Abdüllatif  lhan having received two injuries on different sides of his face.

194. As regards other injuries, Abdüllatif  lhan, who had emphasised his head injury, also referred to being kicked and hit in the hip by a G3 rifle.  brahim Karahan confirmed that he had seen that his hips were all black, when he had helped him at the lavat ory in Mardin. The applicant, who saw Abdüllatif at the hospital, described marks on his left side and foot, and marks over his legs. As mentioned above, the incident report referred to an injury to the left leg though  eref  akmak in his oral testimony sa id that there was no injury to his legs. Ahmet Kurt recalled however that Abdüllatif  lhan was slightly limping and Selim Uz explained that he had hurt himself on the left side, in the context of the alleged fall, and remembered a graze on the foot. In the Commission’s view, the weight of the evidence is clearly in support of Abdüllatif  lhan having been severely bruised on the left hip and leg.

195. While the medical report of Dr Mehmet Aydoğan made no reference to bruising elsewhere than on the face, he admi tted before the Delegates that he would have concentrated on the serious head injury which required urgent referral to Diyarbakır and the Commission finds that this does not contradict its own findings. There was some discussion before the Delegates as to the use of the phrasing in that report that Abdüllatif  lhan “had been brought in as a result of a blow”. Dr Aydoğan had produced an addendum to his report, apparently at the request of the Government, in which he explained that the word “blow” had been us ed because of the patient’s explanation but the injury could have been caused  by a trauma from a fall or a blunt instrument. Before the Delegates, he had little recollection of either report but thought that the word “blow” covered a fall anyway.  In the absence of his recollection that Abdüllatif  lhan had complained to him of being beaten, the Commission is unable therefore to draw any conclusions from his report, though it notes that Dr Rahmanlı in a more precise analysis distinguished a blow from a fall or a car accident.. However, Dr Rahmanlı, w ho treated the Abdüllatif  lhan in hospital, did have some recollection that Abdüllatif  lhan had told him that he had received his injury from being beaten, which is further substantiation of his account.

196. In light of the above, the Commission finds that Abdüllatif  lhan was beaten by one or more gendarmes after being discovered hiding in the gardens below the village. He received at least one blow to the head from a rifle butt, and briefly lost consciousness, following which the soldiers sought to revive him by dipping him in the water of the nearby stream. He was visibly injured on the head, with bruising around the left eye and a mark from a blow on the right hand side, which had bled. He was limping, indicating the presence of injury to the left leg. H e was having difficulty walking and there were also noticeable irregularities in his manner of speaking when he was questioned. Though his clothes were wet and the temperatures were low, no steps were taken to obtain dry clothing from the village for him. The Commission also treats with considerable scepticism the varying claims that he was covered with a soldier’s poncho or given gloves.

3.  Subsequent events: Konaklı

197. Notwithstanding the claims from the gendarmes to the contrary, Abdüllatif  lhan was i n a state unfit to walk after receiving his injuries. The Commission finds that  brahim Karahan was required to carry him to the next village of Ahmetlı, about 1 km from Aytepe. The soldiers who were carrying their arms and equipment were regarded by  eref  akmak as being unable to assist Abdüllatif  lhan. At Ahmetlı, a mule was found and Abdüllatif  lhan rode 5 km to the Konaklı station, with  brahim Karahan helping to hold him in the saddle.

198. At the station, Ahmet Kurt took the statements of both men. Ab düllatif  lhan otherwise was kept in the canteen while  brahim Karahan was placed in the custody area. Despite requests for the custody register of the station to be provided, the Government have not submitted it.  eref Cakmak explained that their names wo uld not have been entered since no-one could be detained without being seen by a doctor and anyway they were in transit. The Commission notes the explanations proffered by the prosecutor Abdülkadir Güngören who considered that persons in transit or not hel d in the actual cells themselves would not be registered and who considered that not all persons who were taken to a gendarme station could be regarded as being detained. However, the Commission finds no indication that Abdüllatif  lhan and  brahim Karahan were voluntarily in the company of the gendarmes. They were described as having been caught and were taken to the station to make their statement and continued to be held after that event.

199. According to Ahmet Kurt, they arrived back at Konaklı station at about 15.30 to 16.00 hours.  eref  akmak and his men, along with Abdüllatif  lhan and  brahim Karahan, stayed at the station for 4-5 hours while security checks were made on the road to enabl e them to proceed safely in their vehicles to Mardin, 60-70 km away. He placed the time of departure of the vehicles at about 21.00 or 21.30 hours. He considered that since it took about four to five hours to cover that distance while checking for mines th ey would have reached Mardin at about 01.00 or 02.00 hours. Selim Uz’s memory was less precise but he thought that the vehicles left for Mardin the same day between 17.00 and 20.00 hours.  brahim Karahan’s account placed them arriving at Konaklı at about 16.00  -17.00 hours and leaving after one or one and a half hours. His description also implies that they arrived at Mardin during the night, as he states that the commander instructed the stove to be kept going unt il the morning. While these accounts are more or less reconcilable, the small differences being referable to difficulties of memory after a lapse of time,  eref  akmak’s testimony stands out as markedly different. Though the operation finished at noon, he said t hat it took till evening to return to the station as the road was steep. He gave the impression that there were no vehicles at Konaklı and that if it had not been for the presence of Abdüllatif  lhan they would, remarkably, have returned to Mardin on foot.   Thus he explained that there was considerable delay while a vehicle was requisitioned and the road checked for mines, such that they did not leave until midnight. Consequently, on his version, they arrived in Mardin, not during the night, but towards mor ning. The Commission considers that this version lacks credibility and discloses a desire to account for as much time as possible elapsing before Abdüllatif  lhan received medical treatment. As regards the timing of events, the Commission  accordingly acce pts the testimony of Ahmet Kurt and finds that Abdüllatif  lhan and  brahim Karahan arrived at Mardin central provincial gendarme station during the night of 26-27 December 1992. It notes that the vehicle in which Abdüllatif  lhan was carried passed by the Mardin State Hospital on the way to the Mardin central provincial gendarme station.

4.  Subsequent events: Mardin central provincial gendarme station

200. On arrival at Mardin during the night, Abdüllatif  lhan and  brahim Karahan were taken to the cafeter ia, where it was warm. There they appear to have remained until  eref  akmak called them to his office to take a second set of statements. Until that moment, the only other significant event was the summoning of a doctor, who arrived with a paramedic, to l ook at Abdüllatif  lhan.

201.  eref  akmak stated that the doctor was summoned within half an hour of their arrival at the station, while  brahim Karahan stated that he arrived within five minutes. The Commission finds that the doctor must have been sent for m ore or less immediately and arrived quite quickly. The accounts of the examination which took place however differ considerably.  brahim Karahan said that the doctor merely looked Abdüllatif  lhan over from a distance without taking any steps to examine hi m physically.  eref  akmak stated that the doctor conducted a proper examination, involving the taking of blood pressure and checking other vital signs. The paramedic also put a dressing on the wound over Abdüllatif  lhan’s eye. The Delegates sought to res olve this significant dispute of fact by obtaining the testimony of the doctor and paramedic involved. Unfortunately, the doctor, identified by the Government as Dr Hayri Savur, did not appear to give evidence. The paramedic, identified by the Government a s Nuri Ay, did give evidence before the Delegates. He confirmed that he had assisted Dr Savur during this period, while he was stationed at Mardin. He had no recollection however of being called out during the night to help in the examination of a detainee and stated that he would have remembered such an event. The Delegates had also requested copies of any infirmary or medical records which would have indicated whether or not treatment was given to Abdüllatif  lhan at the station at Mardin. The Government have informed the Commission that there are no records and that civilians were only treated on an emergency basis at gendarme stations, in which cases no records would be made.

202. The Commission is left with considerable doubts as to the thoroughness of the examination of Abdüllatif  lhan by whoever may have been involved but finds it inappropriate to make any findings on this point. Both  brahim Karahan and  eref  akmak agreed that the “doctor” took the view that there was nothing wrong with Abdüllatif  lhan other than the cold and that he was exaggerating his symptoms on purpose. It is therefore undisputed that Abdüllatif  lhan received no more than cursory first-aid treatment and that the purported doctor discounted visible signs of distress, without taking any precautionary steps in respect of an evident trauma to the head.

203. The two detainees remained at the station until after they had given their statements to  eref  akmak. The Commission has already commented above that the necessity of taking a second statement is not apparent, yet it was for this reason that  there was a delay in Abdüllatif  lhan being taken for medical treatment.  eref  akmak showed some consciousness to the Delegates of the difficulties arising from this lapse of time. He explained t hat he had other duties, and that his mind had been put at rest by the doctor’s opinion that Abdüllatif  lhan was faking. He recalled in any event that he took the statements by noon, though he showed some hesitation when pressed on the point, but was sure that he sent the two men to the Mardin State Hospital when the statements were completed.  On the other hand,  brahim Karahan stated that their statements were not taken until 17.00 or 17.30 hours and that they were not released until 21.00 or 22.00 hours . Since the medical report on Abdüllatif  lhan issued by Dr Aydoğan at Mardin State Hospital includes the noted time of 19.10 hours, which Dr Aydoğan confirmed before the Delegates was the time of admission, the Commission is satisfied that the two men arr ived at the Hospital at or around that time. Insofar as  eref  akmak’s testimony sought to give the impression that the two men were released earlier in the day, the Commission finds it unreliable. However, to the extent that  eref  akmak stated that the t wo men were released from the station after having given their statements to him, this would be roughly consistent with  brahim Karahan’s recollection of the statements having been taken at about 17.00-17.30 hours, one and a half to two hours before their admission in the hospital. It therefore finds that Abdüllatif  lhan was detained at the station from the early hours of the morning until not long before his admission to hospital at 19.10 hours.

204. The circumstances in which Abdüllatif  lhan arrived at the hospital are disputed.  brahim Karahan stated that the gendarmes released them from the station, leaving it to him to take steps to obtain medical treatment for Abdüllatif  lhan. He gave a detailed account of how they eventually found some one to help the m in a coffee shop.  eref  akmak however stated that he arranged for them to be sent to the hospital, with a gendarme as escort. He explained that this was part of the procedure whereby he had to obtain medical reports of persons who were to be sent to the public prosecutor. He also stated that he spoke on the phone to the public prosecutor as he was about to send over the investigation file charging Abdüllatif  lhan with disobeying a stop order. However, at one point, he described talking to the public pro secutor before he sent the two men to the hospital and at another point, he placed the conversation as occurring after Abdüllatif  lhan had been urgently sent to Diyarbakır from Mardin State Hospital. His explanation has another difficulty. Since he had en tered neither man into the custody record, despite their long presence at the station, it is not apparent that they attracted the formal procedure of medical examinations for persons leaving custody.

205. Nonetheless, there is a document dated 27 December 1992 signed by  eref  akmak addressed to the Mardin State Hospital which requests that  brahim Karahan and Abdüllatif  lhan be sent for treatment. They are both described as being under summons in connection with a preliminary investigation. It is to be remark ed that the request is not merely for a routine examination but a request that both men be sent for treatment as they had both fallen and hurt themselves. The terms of this request are thus inconsistent with  eref  akmak’s testimony that he saw no need to obtain medical treatment for either person and that  brahim Karahan had not been injured beyond a few scratches. Similarly, the medical report described the patient as having been referred because of trauma. Furthermore, the public prosecutor Abdülkadir Gü ngören did not recall that he had seen the referral request and was surprised to learn that Abdüllatif  lhan had not been sent to hospital until late on 27 December 1992.

206. The Commission is left once more with substantial doubts as to the account given by  eref  akmak but in the circumstances considers it unnecessary to make any findings as regards this element.

207. As regards Abdüllatif  lhan’s condition prior to admission to hospital, the Commission has already noted that he was showing signs of distress and illness when he arrived at Mardin station. As the day progressed, according to  brahim Karahan’s description, Abdüllatif  lhan’s state did not improve. He needed to be supported, could not walk and before giving his statement, lost control of his bowels. He described Abdüllatif  lhan as talking in an incoherent fashion, as if he were semi-conscious.  eref  akmak stated that when he took Abdüllatif  lhan’s statement he was talking in a halting fashion but could make himself understood. When not long afterwa rds, he was examined by Dr Aydoğan, he was described as being conscious and showing signs of semi-paralysis on the left hand side (left hemiparesis). According to the evidence of Dr Rahmanlı, a specialist in brain surgery, the clinical picture resulting fr om a head trauma would be expected to become clear within 24 hours to 48 hours. By the time of his examination at Mardin State Hospital, Abdüllatif  lhan’s injury to his head was 36 hours old. The Commission is satisfied that during his detention at Mardin station he was showing symptoms of being seriously affected by his injuries. It recalls that  eref  akmak stated that he was not surprised when he was later told that Abdüllatif  lhan was very ill.

5. Abdüllatif  lhan’s treatment in hospital and conditi on

208. Having been admitted to Mardin State Hospital, Abdüllatif  lhan was diagnosed as being in a life threatening condition, with signs of semi-paralysis on the left side. He was taken to Diyarbakır State Hospital, where his condition was found to be fair, though risk to life remained, with concussion and left hemiplegion. As the hospital did not have the necessary equipment, the applicant had to take his brother to a nearby clinic and pay for CAT scans. On the basis of these films, which disclosed, inter al ia, cerebral oedema and left hemiparesis, Dr Rahmanlı decided that surgery was not necessary. Abdüllatif  lhan was treated with medicines and discharged from hospital on 11 January 1993. He returned for examination at approximately two monthly intervals fo llowing this. On 10 June 1993, he was diagnosed as suffering 60% loss of function on the left-hand side. Recent scans taken of his brain indicated an area of brain atrophy. When he appeared before the Delegates, a loss of function on his left-hand side was still visible.

209. The doctors who appeared before the Delegates were asked questions concerning the delay between the injury being inflicted and Abdüllatif  lhan’s admittance to hospital, and as to whether this delay had had any adverse effect on his condi tion. Dr Aydoğan stated that treatment could not have delayed the appearance of paresis but that it was necessary for a patient to see a doctor to prevent the condition developing further.  Dr Rahmanlı agreed that earlier intervention could not have preven ted the paralysis and explained that the CAT scan results indicated that there was no need for surgical intervention. The internal bleeding could be resorbed spontaneously by the brain so the delay would not have had much effect on his recovery. The Commis sion accordingly finds that the delay in obtaining hospital treatment has not been shown to have appreciably worsened the long term effects of the head injury.

6. Investigation by the domestic authorities

210. Neither the applicant nor his brother Abdüllatif  lhan made any petition to the public prosecutor as a result of the injuries which he suffered. The public prosecutor Abdulkadir Güngören was aware however that Abdüllatif  lhan had been injured at the time of his apprehension by the gendarmes and the mat ter was under his consideration. On 11 February 1993, he issued a decision not to prosecute. This concluded that the injury resulted from an accident for which no-one was at fault, either intentionally or negligently. In reaching this decision, he did not talk to Abdüllatif  lhan or  brahim Karahan or to any gendarme who had witnessed the alleged accident. He did recall talking to  eref  akmak on the telephone but took no notes of the conversation. He did not regard there as being any cause for investigatio n unless some-one made a specific complaint.

D. As regards the applicant’s standing in the proceedings

211. The Government have repeated the objections, made prior to the Commission’s adoption of its decision of admissibility, that the applicant is named as b eing Nasır  lhan and the application is therefore incompatible ratione personae with the Convention, since he cannot claim to be a victim of the alleged violations. They submit that, although the Commission rejected their previous objections by stating tha t exceptions could be made where a victim of violation had died or was severely injured or ill, Abdüllatif  lhan was able to appear in court proceedings in March 1993 and clearly was not barred physically from acting on his own behalf.

212. The Commission reca lls that both the applicant and Abdüllatif  lhan appeared before its Delegates to give oral testimony and that Abdüllatif  lhan has signed a letter of authority indicating that he wished the applicant to introduce the application on his behalf. While Abdül latif  lhan appears to have made some recovery from the injuries suffered in December 1992, the Commission finds that he is still suffering from visible infirmity and may legitimately claim that he requires assistance in pursuing his application. He has ma intained his complaints before the Delegates and the Commission perceives no element of bad faith or abuse in the fact that his brother has introduced the application on his behalf. While it would nonetheless be possible for the Commission to take the deci sion to replace the applicant’s name by Abdüllatif  lhan’s for the purposes of this application, it would observe that this would not effect any change in the substance of the complaints under examination or the way in which those complaints would be dealt with. It accordingly finds it neither necessary or appropriate to effect a change in the name of the applicant at this stage of the procedure.

E. As regards Article 2 of the Convention

213. Article 2 of the Convention provides:

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

2. Deprivation of life shall not be regarded a s 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 perso n lawfully detained;

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

214. The applicant submits that his brother Abdüllatif  lhan suffered violation of Article 2 on account of the life-threatening attack to which he was sub jected, the failure to provide him with prompt medical attention and the lack of any effective system for ensuring protection of the right to life including an effective prosecutorial system. Abdüllatif  lhan was subjected to repeated kicks and blows from rifle butts, in an attack of such severity that his life was diagnosed as being in danger at Mardin State Hospital. Despite the fact that he suffered this injury when being apprehended by the security forces, he was not taken to a hospital. Though he had a swollen left eye, a cut above the right eye, an injury to his leg and other cuts and bruises - all visible injuries - he was kept with the gendarmes, in circumstances which disclose a wilful denial of treatment and aggravated the situation. While the prot ection of the right to life includes an effective investigation leading to the identification and punishment of those responsible, there was the complete absence of an enquiry into how Abdüllatif  lhan’s life-threatening injuries occurred.  The applicants further submit that there is substantial, cumulative evidence to establish that the failure to investigate violations of the right to life is both systemic and systematic, disclosing a practice.

215. The Government submit that any bodily injury suffered by Ab düllatif  lhan was the outcome of a fall in an environment where even soldiers slipped and fell.  Since the beginning of terrorist activity in the area, even subjects who injured themselves were being advised to direct their complaints against the State. T hey state that his complaints are factually and legally unfounded.

216. The Commission recalls that generally Article 2 has been applied to cases where a person has been deprived of his or her life. Nonetheless, in at least two cases, complaints by an applican t have been considered under the ambit of this article, where that applicant was subject to a life-threatening attack but survived (see Osman v. the United Kingdom judgment of 28 October 1998, to be published in Reports 1998, where the child applicant was shot during an attack in which his father died, and Ya  a v. Turkey judgment of 2 September 1998 to be published in Reports 1998, where the applicant was hit by eight bullets when a gunman attempted to kill him in the street). In the present case, Abdüllati f  lhan received an injury to his head, which caused partial paralysis and which was described by two doctors as presenting a risk to his life. The Commission finds that the seriousness of the injury is such that it may be appropriately considered as falli ng within the scope of Article 2’s guarantee of the protection of the right to life.

217. The Commission recalls, firstly, that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention, and together with Article 3 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. It must be interpreted in light of the principle that the provisions of the Convention  be applied so as to make its safeguards pract ical and effective (Eur. Court HR, McCann and others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, paras. 146-147).

218. Article 2 not only protects the right to life but sets out, in its second paragraph, the limited circu mstances in which the deprivation of life may be justified. These exceptions are to be strictly construed and cover not only intentional killing, but also those situations where it is permitted to use force which may result, as an unintended outcome, in th e deprivation of life. The use of force must be no more than “absolutely necessary” for the achievement of one of the permitted purposes set out in sub-paragraphs (a), (b) and (c) and this term indicates that a stricter and more compelling test of necessit y must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achie vement of the aims set out in the sub-paragraphs of Article 2 para. 2  (McCann and others v. the United Kingdom judgment, op. cit., p. 46, paras. 148-149).

219. The Commission recalls its finding that Abdüllatif  lhan was beaten by one or more soldiers, and th at he was struck at least once by a rifle butt on the head. The gendarme witnesses described Abdüllatif  lhan as having pushed Selim Uz and having tried to escape. The Commission has not accepted this evidence. It has however noted Selim Uz’s references to the fear which he experienced and recalls that he, as presumably were others in his unit, was a young man (only 19) on his military service. However,  even assuming that Abdüllatif  lhan was injured in a situation where he was mistakenly thought to be a d angerous, escaping PKK terrorist, this does not provide in the circumstances any justification for the infliction  of a life-threatening blow to the head from a rifle butt, such force being disproportionate to any permitted aim under the second paragraph o f Article 2 of the Convention.

220. The Commission further notes that, although Abdüllatif  lhan had received serious and visible injury to the head on being apprehended by the gendarmes, there was a lapse of 36 hours before he was admitted to hospital. There was some debate in the hearing before the Delegates as to whether any civilian or doctor would have realised the seriousness of his injury during this period. Dr Rahmanlı was of the opinion that it would have taken a proper neurological examination to esta blish the injury to the brain but agreed that injuries to the head had to be treated with caution as they were unpredictable and the clinical picture took time to develop.  By the time Abdüllatif  lhan was seen by Dr Aydoğan at Mardin State Hospital, hemip aresis was apparent. The Commission has found that prior to this he was already showing signs of physical distress and incapacity. Since he was injured while being apprehended and was detained by the gendarmes throughout this period, the Commission conside rs that the authorities were under a responsibility for his welfare. This responsibility was not discharged by the apparent fact that a military doctor, called out in the early hours of the morning at Mardin central station, had a brief look at Abdüllatif  lhan and decided that he was faking. The Commission is not satisfied that there was any reasonable basis on which a doctor could come to that conclusion. It remained the case that he had a visible head injury and no reasonable explanation has been provide d for failing to take the precaution of sending him immediately on arrival in Mardin to the nearby Mardin State Hospital for examination. Even though the delay has not been established as affecting the long-term development of the injury, the Commission co nsiders that this is irrelevant to the responsibility of the authorities to obtain prompt and appropriate medical treatment for a detained person with serious injuries.

221. The Commission concludes that the infliction of injury on Abdüllatif  lhan and the de lay in sending him to hospital disclose a failure to respect his right to life.

222. The Commission further recalls that Article 2 imposes a requirement that, in 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 implic ation 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, agents of the State." (Eur. Court HR, McCann and others v. the United Kingdom, op. cit., p. 49, para . 161)

223. The Commission finds that this principle applies equally to the present case. It recalls that the public prosecutor was aware that Abdüllatif  lhan had suffered injuries at the time of his apprehension by the gendarmes. On 11 February 1993, he issu ed a  decision not to prosecute, finding that Abdüllatif  lhan had fallen and injured himself through carelessness while fleeing from the security forces and that no-one had acted deliberately or negligently.  In the proceedings before the Delegates, the p ublic prosecutor was questioned as to the evidential basis on which he reached this decision. It appeared that he relied on the investigation documents, which included the incident report and the statements of 26 December 1992 of  brahim Karahan and Abdüll atif  lhan. He also recalled having talked about the incident on the phone with  eref  akmak. He did not interview either Abdüllatif  lhan or  brahim Karahan himself, nor take any statement from a gendarme who witnessed the alleged injury occurring. He did not make notes of his conversation with  eref  akmak, though he appears to have relied on the information provided by him in concluding that no problems arose. He assumed that  eref  akmak had witnessed the arrest himself and claimed to be unaware of the statements taken on 27 December 1992 and that Abdüllatif  lhan was not transferred to hospital until 27 December 1992.

224. The Commission notes that the public prosecutor took the view that the incident report and statements were consistent and that since no- one made any claims to the contrary there was nothing to arouse suspicion. He acknowledged nonetheless that he was concerned that Abdüllatif  lhan had received injuries on arrest. It is also evident that he considered it his duty to consider whether or not to prosecute. However, since he relied wholly on what he was told, and the information was provided by the gendarmes concerned in the arrest, this decision appears to have been little more than a formality. Since he took no independent investigative steps himself to verify the account of the gendarmes, it was also not surprising that he failed to identify any contradictory elements in the file. However, it would appear that he should have been put on notice that the documents were not entirely accurate, si nce he decided not to issue charges against  brahim Karahan even though the incident report stated that he had failed to stop when ordered. He explained that on this point he relied on  eref  akmak’s oral explanations instead.  Further, while the public pr osecutor claimed to be unaware that there was any delay in transferring Abdüllatif  lhan to hospital, it would appear that the contents of the file before him should have alerted him. The incident occurred on the morning of 26 December 1992 but the convers ation with  eref  akmak during which the transfer to hospital was mentioned occurred on 27 December 1992. If he was provided with a copy of Dr Aydoğan’s report, to which he appeared to refer when commenting that he knew that Abdüllatif  lhan was conscious when making his st atement, this was clearly marked with the date and time of 19.15 hours, 27 December 1992. If he did not in fact see any medical report, as he seemed to claim at another point, it seems remarkable that he did not take steps to find out the exact extent of A bdüllatif  lhan’s injuries by asking for one.

225. In these circumstances, the Commission finds that there has been a failure to provide an adequate and effective investigation into the circumstances in which Abdüllatif  lhan was injured. Having regard to its findings above and the scope of the evidence taken in this case, it finds it unnecessary to decide whether there has been a practice of failure to investigate violations of the right to life.

CONCLUSION

226. The Commission concludes, unanimously, by 27 vot es to 5, that there has been a violation of Article 2 of the Convention in respect of the injury inflicted on Abdüllatif  lhan, the delay in sending him to hospital and the lack of effective investigation.

F. As regards Article 3 of the Convention

227. Art icle 3 of the Convention provides as follows:

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

228. The applicant submits that his brother, Abdüllatif  lhan, was subjected to a violation of Article 3 on three separ ate counts. Firstly, his initial treatment - the beating with rifle butts and kicking- amounted to torture due to the severity of the injuries caused. Secondly, the failure to bring him to a hospital despite his obvious injuries amounted to treatment contr ary to Article 3. Thirdly, the failure of the public prosecutor to investigate the case was a further blatant violation of Article 3, which required that there be an effective, official investigation into the infliction of serious ill-treatment, in which r espect they rely on the Court’s judgment in the Assenov case (Eur. Court HR, Assenov and others v. Bulgaria judgment of 28 October 1998, para. 106). While the applicant originally submitted that his brother had been tortured while in Mardin gendarme statio n, he has not provided any substantiation and has not pursued this complaint in his observations on the merits. The applicant also submits that he is the victim of a practice of torture which exists in Turkey and of a practice of failure to conduct effecti ve investigations into, and to combat, the incidence of torture.

229. The Government submit that any bodily injury suffered by Abdüllatif  lhan resulted from a fall in a slippery environment.

230. The Commission recalls its finding (para. 196 above) that Abdüllati f  lhan was beaten by one or more soldiers, with at least one blow to the head from a rifle butt. This resulted in Abdüllatif  lhan suffering a serious injury to the right side of the head which caused semi-paralysis on the left side, severe bruising round the right eye, and bruising to the left hip and leg.

231. 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 f all within the provision's scope. The practice of the Convention organs has been to require compliance with a standard of proof  "beyond reasonable doubt" that ill-treatment of such severity has occurred (see Eur. Court HR, Ireland v. United Kingdom judgme nt, op. cit., p. 65, paras. 161-162).

232. The Commission has had regard to both the physical injuries inflicted on Abdüllatif  lhan and the delay in providing him with medical treatment. In the latter context, it recalls that Abdüllatif  lhan has little recol lection of events which occurred after he received the blow to his head, in particular the process by which he was transported from Aytepe to Konak from there to Mardin, where he waited for over fourteen hours without more than cursory first aid. The Commi ssion deplores the failure to act speedily in the circumstances when Abdüllatif  lhan was reduced to an extremity of physical weakness and incapacity. However, it is not persuaded that this treatment, characterised by indifference and negligence rather tha n intentional  infliction of  pain for the purposes of coercion or punishment, falls within the special stigma of “torture” under Article 3 of the Convention (see Ireland v. the United Kingdom judgment, op. cit. p. 66, para. 167; also the definition of tor ture contained in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984) as argued by the applicant. There is however no doubt that his treatment may be describ ed as inhuman and degrading for the purposes of Article 3.

233. Furthermore, referring to its findings in the context of Article 2 of the Convention (paras. 223-225 above), the Commission finds that the inadequate investigation by the public prosecutor into t he treatment of Abdüllatif  lhan on, and subsequent to, his arrest discloses a breach of the obligation imposed on the authorities by Article 3 to provide an effective official investigation into suspected cases of ill-treatment. It notes the Court’s state ment of principle in the Assenov case (Eur. Court HR, Assenov and others v. Bulgaria judgment, op. cit., paras. 102-103):

“The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treat ed by the police, or such agents of the State unlawfully and in breach of Article 3, that 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 freedom s in [the] Convention”, requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see in relation to Article 2 of the Convention, the McCann and others v. the United Kingdom judgment ..... para. 86, the Kaya v. Turkey judgment of 19 February 1998, para. 86 and the Ya  a v. Turkey judgment of 2 September 1998, blished in Reports 1998> para. 98). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance ..., would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.”

234. Having regard to its findings above and the scope of the evidence taken in this application, the Commission finds it unnecessary to examine in t he present case whether there was a practice of torture existing in Turkey at that time or a failure to conduct effective investigations to combat the incidence of torture.

CONCLUSION

235. The Commission concludes, unanimously, that there has been a violati on of Article 3 of the Convention.             

G. As regards Articles 6 and/or 13 of the Convention

236. Article 6 of the Convention provides in its first sentence:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, e veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

237. Article 13 of the Convention provides as follows:

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

238. The applicant complained in his application of both a lack of access to court contra ry to Article 6 of the Convention and a lack of effective remedies under Article 13 of the Convention in respect of the life-threatening attack on, and torture of, Abdüllatif  lhan . In his observations on the merits, the applicant's submissions regarding r edress for this treatment concern solely Article 13. He argues that the behaviour of the public prosecutor denied them a remedy, in that there was a complete absence of an effective investigation, the prosecutor failing to question in any way the gendarmes ’ account of events. He submits that the numerous cases before the Convention organs establish beyond reasonable doubt that there are systematic and systemic violations of the right to an effective remedy which amount to a practice in violation of the Conv ention.

239. The Government have denied that there is any problem with remedies. They point out that the applicant did not make any complaint to the public prosecutor, nor make use of any other avenues of redress, referring to the possibility of instituting ci vil and administrative proceedings.

240. Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, para. 102, Kaya v. Turkey judgment of 19 February 1998, to be reported in Reports 1998-I, para. 105), the  Commission has found it appropriate to examine the applicant's complaints about remedies in relation to the injuries and ill-treatment of Abdüllatif  lhan under Article 13 of the Convention alone.

241. The Commission recalls that Article 13 of the Convention, together with Article 1 of the Convention, reflect the fact that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights and that it is first and foremost for Contracting States to secure to every individual within their jurisdiction their rights and freedoms under the Convention (see eg. Eur. Court HR, Handyside v. the United Kingdom judgment of 7 December 1976, p. 22, para. 48). Article 13 in particular pl ays 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 investigat ion, with the possibility of redress (see eg. Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260,  para. 95, Boyle and Rice v. the United Kingdom, Comm. Rep. 7.5.86, Series A no. 131, p. 40, para. 73). It would emphasise that a failure to provide effectively-functioning mechanisms of redress seriously undermines the protection to be afforded by the Convention, since the Convention organs cannot, and should not be required to act as a first instance tribunal, a role which the national aut horities are in the best position to fulfill.

242. In the present case, the Government have argued that in fact the applicant did not make any complaint to the public prosecutor or avail himself of any other avenue of redress. The Commission recalls that in it s decision on admissibility it stated that his brother Abdüllatif  lhan, when questioned at the village by the commander of the gendarmes, complained to him that he had been beaten up. It observed that pursuant to the  provisions of the Criminal Code, civi l servants, which included gendarme officers, were under an obligation to report to the competent authorities any alleged crime which came to their knowledge in the course of their duties. The Commission has accepted the evidence of  brahim Karahan who tol d the Delegates that Abdüllatif  lhan complained to the commander  eref  akmak. It would further note that the fact that Abdüllatif  lhan was injured during his arrest was reported to the public prosecutor, who considered whether or not to prosecute. In th ese circumstances, the Commission is satisfied that the matter was sufficiently brought to the attention of the relevant authorities and that the responsibility of the Contracting State to provide effective and adequate redress was engaged.

243. In that conte xt, the Commission recalls that it has investigated over 50 cases concerning allegations of serious human rights violations occurring in south-east Turkey, all of which have involved complaints that the applicants were deprived of an effective remedy. [4] In particular, the Commission observes that there have been a number of findings by itself and the Court of violations of the procedural obligations under Article 2 and/or Article 13 in respect of allegations concerning deaths for which the security forces o r police were alleged to be responsible [5] and findings of violations of Article 3 in respect of ill-treatment of persons held in custody by police or security forces, accompanied by violations of Article 13. [6]

244. These cases have disclosed that investigations into deaths or alleged ill-treatment involving the security forces or police have frequently been superficial and inadequate, undermined by failures to seek evidence or witnesses, flawed forensic and medical examinations and a reluctance to pursue any lin es of enquiry into any alleged wrongdoing by members of the security forces or police force. The following defects in practices and procedures have been commonly found:

(a) a failure by public prosecutors to question, or take statements from members of th e security forces or police with regard to allegations of misconduct (see eg. Aydin v. Turkey judgment, op. cit., p. 1896, para. 106, Comm. Rep., para. 199; Kaya v. Turkey judgment, op. cit., p. 325, para. 89, Ergi v. Turkey judgment, op. cit., para. 83; T ekin v. Turkey, Comm. Rep., para. 194);

(b) a failure by public prosecutors to verify documentary materials eg. custody records or to pursue any contradictions, inconsistencies or gaps in the information provided by the police or security forces (see eg. Eur. Court HR, Aydin v. Turkey judgment, op. cit., p. 1896, para. 106, Comm. Rep., para. 199; Kaya v. Turkey judgment, op. cit., p. 326, para. 90, Comm. Rep., para. 168;  akıcı v. Turkey, Comm. Rep., paras. 283-284);

(c) a failure by public prosecutors, police or gendarmes to seek evidence, including eye-witnesses or forensic evidence at the scene of the incident such as fingerprints, testing for gunpowder traces (see eg. Aydin v. Turkey judgment op. cit. para. 106, Comm. Rep., para. 199, Kaya v. Turkey judgment, op. cit. p. 325, para. 89; Ergi v. Turkey judgment, op. cit. para. 83, Comm. Rep., para. 151; Güleç v. Turkey judgme nt, op. cit., para. 79; Oğur v. Turkey, Comm. Rep., para. 138; Cakıcı v. Turkey, Comm. Rep., para. 283; Mahmut Kaya v. Turkey, Comm. Rep., para. 364; Ertak v. Turkey, Comm. Rep., para. 187);

(d) a failure by police or security forces properly to record ev idence or take photographs at the scenes of incidents (see eg. Tanrıkulu v. Turkey, Comm. Rep., paras. 227-228, Ergi v. Turkey, Comm. Rep., para. 130);

(e) delays in seeking for evidence, or statements from applicants or witnesses (see eg. Cakıcı v. Turk ey, Comm. Rep., para. 282; Tanrıkulu v. Turkey, Comm. Rep., para. 232; Mahmut Kaya v. Turkey, Comm. Rep., para. 365);

(f) the making of reports which do not identify the source of the alleged facts contained therein, signed by persons who are not able to confirm the accuracy of such facts (see eg. Eur. Court HR, Ergi v. Turkey judgment, op. cit., para. 83, Comm. Rep., para. 153; Tanrıkulu v. Turkey, Comm. Rep., para. 233);

(g) an assumption by public prosecutors and the authorities that any unlawful acts must be the responsibility of terrorist groups (see eg. Eur. Court HR, Ergi v. Turkey judgment, op. cit. para. 83, Comm. Rep., para. 152; Güleç v. Turkey judgment, op. cit., para. 79; Ya  a v. Turkey judgment, para. 105; Mahmut Kaya v. Turkey, Comm. Rep., a nd Kiliç v. Turkey, Comm. Rep., where the killings of the victims by unknown perpetrators were investigated as being terrorist crimes);

(h) a failure by public prosecutors to react to visible signs of ill-treatment or complaints of ill-treatment (see eg. Eur. Court HR, Aksoy v. Turkey judgment, op. cit., p. 2287, para. 99, Tekin v. Turkey, op. cit., p. 1520, para. 67, Comm. Rep., para. 238; Akkoç v. Turkey, Comm. Rep. 23.4.99 pending before the Court);

(i) the lack of jurisdiction of public prosecutors to prosecute certain categories of offences committed by State officials, jurisdiction being vested in administrative councils which are non-legal, administrative bodies, subject to the authority of the executive and consequently not independent, and the lac k of effective investigative measures instigated by the administrative councils (see eg. Tekin v. Turkey, Comm. Rep., para. 196; Eur. Court HR, Güleç v. Turkey judgment, op. cit., para. 82, Comm. Rep., paras. 226-227; Oğur v. Turkey, Comm. Rep., paras. 136 -7, 140; Ertak v. Turkey, Comm.Rep ., paras. 183-184). The Commission has noted a tendency in public prosecutors to show no interest in pursuing the investigations in these cases and instead to prosecute the apparent victim of the misconduct (see eg. Ya  a v . Turkey, where the applicant who was shot seven times was prosecuted for carrying an unlicensed weapon; Kiliç v. Turkey, where the applicant’s brother who had complained about official inaction to threats made to newspaper workers was charged with insulti ng the Governor; the present case, where Abdüllatif  lhan, injured on arrest, was prosecuted for failing to stop on order of the security forces);

(j) a deferential or blinkered attitude by the public prosecutors towards members of the security forces, wi th a tendency to ignore or discount allegations of wrongdoing on their part (see eg. Eur. Court HR, Aydin v. Turkey judgment, op. cit. para. 106; Aksoy v. Turkey, Comm. Rep., op. cit., para. 189; Cakıcı v. Turkey, Comm. Rep., para. 284); a failure to widen investigations to include possible wrongdoing by State agents is also disclosed by gendarmes and police officers conducting investigations (see. eg. Kiliç v. Turkey, Comm. Rep., para. 197);

(k) inadequate forensic medical examinations of detainees, including lack of examination by appropriately qualified medical professionals (see eg. Aydin v. Turkey judgment, op. cit., para. 107); brief, undetailed medica l reports and certificates which do not include a description of the applicant’s allegations or any conclusions (see eg. Aydin v. Turkey judgment, op. cit. para. 107, Comm. Rep., para. 201); failure to provide thorough examinations (see eg. Akkoç v. Turkey , Comm. Rep., op. cit.); the practice of taking groups of detainees for collective examination to public hospitals (see eg. Akkoç v. Turkey, Comm. Rep., op. cit.); the practise of handing over an open report to the police officers (see eg. Akkoç v. Turkey, op. cit.); [7]

(l) inadequate forensic examinations of deceased persons, including reports which do not include thorough descriptions of injuries; failure to take photographs or make analyses of marks on the body  or examinations carried out by doctors wit h insufficient expertise (see eg. Eur. Court HR, Kaya v. Turkey judgment, op. cit., p. 325, para. 89; Tanrikulu v. Turkey, Comm. Rep. paras. 234-235; Mahmut Kaya v. Turkey, Comm. Rep., op. cit., para. 364, Salman v. Turkey, Comm. Rep., op. cit. para. 319);

(m) the issuing of decisions not to prosecute or non-jurisdiction without waiting for all the evidence to be received (Eur.Court HR, Kaya v. Turkey judgment,  op. cit., p. 325, para. 89; Ergi v. Turkey, Comm. Rep., para. 137);

(n) a  lack of accessibili ty of applicants or the relatives of alleged victims to the structures of remedies, including a failure to give information as to the progress of any proceedings or the results of investigations (see eg ., Eur. Court HR, Güleç v. Turkey judgment, op. cit., para. 82, Comm. Rep., para. 231; Oğur v. Turkey, Comm. Rep., para. 141;  akıcı v. Turkey, Comm. Rep., para. 239; Kiliç v. Turkey, Comm. Rep., paras. 129 and 203; Ertak v. Turkey, Comm. Rep., para. 188) and a  lack of information, or delay in information, being passed on to rel atives of persons involved in incidents (see eg ., Salman v. Turkey, Comm. Rep., para. 305).

245. In the present application, the Commission finds that similar features may be identified. It notes that the public prosecutor was under a duty under Turkish law to carry out an investigation into signs of possible torture or ill-treatment, whether or not the person concerned made an explicit complaint. Nonetheless, the public prosecutor, in reaching his decision not to prosecute, relied exclusively and unquestioning ly upon the documents and information submitted by the gendarmes, in particular upon the incident report which the Commission has found to present numerous difficulties eg. uncertainty as to where report was drawn up and signed, the circumstances in which the purported signature of Abdüllatif  lhan came to appear on the report, the report’s failure to coincide with the individual recollections of eye-witnesses or the oral explanations of  eref  akmak and  the inability to derive from the report the source o f the various items of information contained in it. The public prosecutor took no steps to interview Abdüllatif Ilhan or  brahim Karahan or any of the gendarmes who might have witnessed their apprehension. The Commission also has noted that the medical rep ort issued in respect of Abdüllatif  lhan’s injuries by Dr Aydoğan was brief, failing to give an unequivocal account of the stated cause of the injuries or to detail the minor injuries which Abdüllatif  lhan had suffered. While this brevity may be explained by the urgency of the case, the pub lic prosecutor took no steps to remedy these shortcomings after Abdüllatif  lhan had been admitted to hospital.

246. The Commission has concluded above that there was a violation of Articles 2 and 3 of the Convention. It has already found under those provision s that the investigation into the circumstances in which Abdüllatif  lhan received a life-threatening injury was  inadequate. It recalls however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of Art icle 2 to conduct an effective investigation (Eur. Court HR, Kaya v. Turkey judgment, op. cit., para. 107). Further, where an individual has an arguable claim that he has been tortured or seriously ill-treated by 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 and including effective access for the complainant to the investig atory procedure (see also, Eur. Court HR, Aksoy v. Turkey judgment, op. cit., p. 2287, para. 98).

247. Having regard to the defective investigation described above (para. 245), the Commission finds that Abdüllatif  lhan has been denied an effective remedy aga inst the authorities in respect of his ill-treatment and thereby access to any other available remedies at his disposal, including a claim for compensation. Notwithstanding the Government’s submissions as to the availability of civil and administrative pro ceedings, t here is no indication that in light of the public prosecutor’s findings any practical purpose would have been served by such proceedings.

248. In light of its findings above, the Commission considers it unnecessary to examine separately the applican t's complaints as regards an alleged practice of failure to provide effective remedies under Article 13.

CONCLUSION

249. The Commission concludes, by 29 votes to 3, that there has been a violation of Article 13 of the Convention.

H. As regards Article 14 of the Convention

250. Article 14 of the Convention provides as follows:

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

251. The applicant maintains that because of Abdüllatif  lhan’s ethnic and cultural identity as a Kurd he has been the victim of violations of the Convention in a disproportionate manner such as to amount to discrimination. He submits that the attitude of the gendarmes and public prosecutor indicates that Abdüllatif  lhan was treated as “guilty” and refers to their refusal to recognise his mother to ngue and to accept that he cannot speak Turkish.

252. The Government have denied the factual basis of the substantive complaints and that there has been any discrimination.

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

CONCLUSION

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

I. Recapitulation

255. The Commission concludes, by 27 votes to 5, that there has bee n a violation of Article 2 of the Convention (see para. 226 above).

256. The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention (see para. 235 above).

257. The Commission concludes, by 29 votes to 3, that there has be en a violation of Article 13 of the Convention (see para. 249 above).

258. The Commission concludes, unanimously, that there has been no violation of Article 14 of the Convention. (see para. 254 above).

M.-T. SCHOEPFER            S. TRECHSEL

       Secretary                       President

   to the Commission                             of the Commission

(Or. English)

I have voted with the majority on all points. My conclusion of the finding o f a violation of Article 3 (para. 235), however, is based on narrower grounds than those invoked by the majority. While I agree that Abdüllatif Ilhan was subjected to inhuman and degrading treatment (para. 232), I consider it neither necessary nor correct to base the violation also on the “procedural ground” of inadequate investigation (para. 233). In my view, Article 3 does not contain the kind of procedural obligation read into it by the (old) Court in the Assenov v. Bulgaria case relied on in the present report (para. 233).

The starting point in the interpretation of the various Convention articles is the ordinary meaning to be given to their terms in their context, having regard also to the object and purpose of the Convention.

The terms of Article 3 are clear. By prescribing that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment” Article 3 appears to be limited to obligations of a substantive nature. In this respect, Article 3 is different from Article 2. The l ast-mentioned provision contains - in addition to the prohibition of killing - in its first sentence a general obligation (“Everyone’s right to life shall be protected by law.”) which is broad enough to encompass also procedural requirements.  So far as Ar ticle 3 is concerned, ordinary interpretation would lead to the conclusion that the procedural obligations are contained in Article 13 requiring an effective remedy, among other things, with regard to allegedly inhuman treatment.

The question, however, r emains whether considerations related to the object and purpose of the Convention and its Article 3 should lead to a different conclusion. The Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical an d effective” (Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 12, para. 24).  The Court in Assenov indeed seems to be guided by the “principle of effectiveness” when it emphasizes that without a duty to carry out an effectiv e investigation  “capable of leading to the identification and punishment of those responsible ... the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance ... would be ineffective in p ractice and it would be possible in some cases for agents of the State to abuse he rights of those within their control with virtual impunity” (the Assenov v. Bulgaria judgment as quoted in para. 233 above).

If this indeed was the case, there would be mu ch to say in favour of reading a procedural obligation into Article 3.  I, however, doubt whether an interpretation of Article 3 along these lines adds decisively  to the obligations arising from  Article 13.  As reminded by the Commission, Article 13 enta ils in cases of torture or serious ill-treatment, among other things, “a thorough an effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigator y procedure” (see para. 246 and the Aksoy v. Turkey judgment cited therein).

In light of this obligation based on Article 13, I consider it unnecessary to read what appears to a more or less identical procedural obligation into Article 3 as well.  In my view, departure from the ordinary interpretation of the Convention provisions based on their wording in their context is called for only for important reasons, especially such as arise from the principle of effectiveness. Due to the role played by Article 13 there are no convincing reasons for such a departure in this case or similar cases.

(Or. English)

Although I have voted with the majority of the Commission on all points, like Mr Pellonpää my conclusion that there was in the present case a violation of Article 3 of the Convention is based exclusively on the fact that the applicant was subjected to inhuman and degrading treatment and not on the further ground that the authorities failed to carry out an effectiv e official investigation into the applicant’s complaints of ill-treatment.

I see considerable force in Mr Pellonpää’s argument that, in contrast to Article 2 of the Convention, Article 3 is limited to obligations of a substantive nature and that any proc edural obligations relating to the proper investigation of arguable claims of ill-treatment in breach of that Article are to be found in Article 13 of the Convention.

However, I do not find it essential finally to decide this point in the present case, s ince the reasoning in paragraph 233 of this Report is in my view unnecessary in any event.

In the Assenov case (Eur. Court HR, Assenov and others v. Bulgaria judgment of 28 October 1998 to be reported in Reports 1998) neither the Commission nor the Court found it possible to establish on the basis of the evidence before them whether or not the applicant’s injuries were caused by the police as he alleged.  Accordingly any breach of Article 3 could only be based (as the Court but not the Commission found) o n a failure on the part of the authorities to investigate where there existed a reasonable suspicion that the applicant’s injuries had been caused by the police.

In the present case, there is no need to resort to such reasoning.  The applicant has establ ished to the required standard of proof that he was seriously assaulted by one or more soldiers and that the severity of his ill-treatment reached the threshold required under Article 3 of the Convention.  In these circumstances, it was in my view neither necessary nor appropriate for the Commission to go further in finding a breach of that Article or to depart from the consistent approach adopted by the Court and Commission in other cases involving findings of violations of Article 3 in south-east Turkey ( see eg ., Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI; Aydin v. Turkey judgment of 25 September 1997, Reports 1997-VI; and Commission Reports in Tekin v. Turkey; Salman v. Turkey; and Akkoç v. Turkey).

(Or. English)

PARTL Y DISSENTING OPINION OF MR S. TRECHSEL

JOINED BY MM A.  . GÖZÜBÜYÜK AND A. WEITZEL

I fully agree with the majority’s finding according to which there has been a violation of Article 3 in the present case, inter alia , in view of the inadequate efforts to establish the facts and to prosecute the person who used grossly disproportionate violence on the applicant. However, I disagree on the two issues raised under Articles 2 and 13.

As far as Article 2 is concerned, I cannot find that there has been a viola tion. I do agree with two points made by the majority: I accept that Article 2 can be violated even in the absence of any death having been caused on the one hand, and in the absence of intent on the other hand. However, in my view a combination of both is not possible.

I shall not hide the fact that my thinking is influenced by teachings of penal law. There, we usually find (various forms of) intentional killing, attempted killing and causing death by negligence. An attempt would, however, always require the intent to achieve the aim, i. e. to cause death.

This distinction is in no way arbitrary. The fact that attempted murder is punished at all, finds various justifications in criminal doctrine - on the one hand, it is justified by reference to the evi l intent of the author, on the other hand by the danger incurred by the (almost-)victim. However, that danger again has its roots essentially in the evil intent of the author. Negligent behaviour which does not cause death need not necessarily remain unpun ished, but will often constitute an offence of endangering the life of others, e.g. by driving under the influence of alcohol, exceeding the speed-limits, undertaking construction work without the necessary safeguards etc.

In the present case, the Commis sion has found that one or several persons, engaging by their acts the responsibility of the respondent Government, have inflicted severe wounds upon the applicant. However, there is no hint of any intention to take his life. In fact, he has survived the i ncident, albeit not without remaining impaired in his movement.

I cannot find that, in these circumstances, that there has been a violation of his right to life under Article 2 of the Convention and have not been convinced by the arguments put forward i n the Report. It is true that Article 2 speaks of  force which is no more than absolutely necessary  , but the initial words of para. 2 are:  Deprivation of life shall not be regarded as inflicted in contravention of this article ...  In the present case there has been no deprivation of life. Article 2 can not, in my view, be interpreted in such a broad way that any disproportionate use of force in one of the three eventualities set out in sub-paras. a. to c. of Article 2 constitutes a violation of the right to life, irrespective of the results of such use o f force.

With regard to Article 13, I have voted against the finding of a violation, although I fully agree with the considerations set out in paras. 240-245 of the Report. In my view, no further issue arises, because the finding on Article 3 already tak es into account that there has been no serious investigation nor any adaequate proceedings after the incident.

(Or. English)

PARTLY DISSENTING OPINION OF MM K. HERNDL

AND E.A. ALKEMA

As we do not share the majority’s conclusion in para. 226 of the r eport that in the present case there has been a violation of Article 2 of the Convention in respect of the injury inflicted on Abdüllah Ilhan, the delay in sending him to hospital and the lack of effective investigation, we wish to state that our reasons f or not agreeing with the majority on this point are identical with those so convincingly set out by Mr Trechsel in his opinion.  We fully agree with Mr Trechsel’s argument as to the interpretation which has to be given to Article 2 in the present context.

On the other hand, as far as Article 13 is concerned, we are of the opinion that the failure of the Turkish authorities, notorious as it is, to investigate such cases and, if necessary, to proceed to prosecute any perpetrator, merits a separate finding u nder Article 14 (see para. 249 of the report) which also in our view has been breached.

[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]   Sometimes referred to as Veysi Aksu .

[3]   See eg. Eur. Court HR, Ergi v. Turkey judgment of 28 July 1998, Comm. Rep. 20.5.97, paras. 128 and 153.

[4] Of these, the following have been subject to judgments by the Court, which has largely upheld the Commission’s findings in substance: Eur. Court HR , Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1192; Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260; Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, p. 1866; Mentes and others v. Tu rkey judgment of 28 November 1997, Reports 1997-VIII, p. 2689; Kaya v. Turkey judgment of  19 February 1998, Reports 1998-I, p. 297; Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 891; Gündem v. Turkey judgment of 25 May 1998, Re ports 1998-III;  Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1152; Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1504; Guleç v. Turkey judgment of 27 July 1998, Reports 1998-IV; Ergi v. Turkey judgment of 28 July 1998, to be published in Reports 1998-IV. Additionally, there have been judgments in the cases of Ya  a v. Turkey (judgment of 2 September 1998, to be published in Reports 1998) and Aytekin v. Turkey (judgment of 23 September 1998, to be published in Reports 1998). In the latter case however, the Court rejected the case for non-exhaustion, where there had been a prosecution and conviction of a gendarme, with pending appeal proceedings, in relation to the shooting of the applicant’s husband at a road checkpoint.

[5]   Eur. Court HR, Kaya v. Turkey, op. cit.; Güleç v. Turkey, op. cit.; Ergı v. Turkey, op. cit.; Ya  a v. Turkey, op. cit.; see also the cases pending before the Court : OÄŸur v. Turkey, No. 21594/93, Comm. Rep. 30.10.97, Tanrikulu v. Turkey, No. 23657/94, Comm. Rep. 15.4.98,  akıcı v. Turkey, No. 23657/94, Co mm. Rep. 12.3.98, Ertak v. Turkey, No. 20764/92, Comm. Rep. 4.12.98, Mahmut Kaya v. Turkey, No. 22535/93, Comm. Rep. 23.10.98, Kiliç v. Turkey, No. 22492/93, Comm. Rep. 23.10.98, Salman v. Turkey, No. 21986/93, Comm. Rep. 1.3.99 and Akkoç v. Turkey Nos. 2 2947-8/93, Comm. Rep. 23.4.99.

[6] Eur. Court HR, Aksoy v. Turkey, op. cit.; Aydın v. Turkey, op. cit.; Tekin v. Turkey, op. cit.; see also cases pending before the Court :  akıcı v. Turkey, No. 23657/93, Comm. Rep. 12.3.98, No. 21986/93, Salman v. Turkey, Comm. Rep., op. cit.

[7] See also in this context the findings and concerns of the European Committee for the Prevention of Torture (CPT) relating to the failure by the medical profession properly to document injuries, and the pressure placed on them by the police and security forces (Firs t Public Statement adopted on 15 December 1992, Second Public  Statement adopted on 6 December 1996 and the CPT report on its visit to Turkey from 5 to 17 October 1997.. See regarding non-governmental organisations eg. Amnesty International reports, South- East Turkey: The Health professions in the Emergency Zone (Eur. 44/146/94); Turkey:Human Rights and the Health Professions (Eur. 44/159/96) referred to in the Tanrikulu v. Turkey case, op. cit , Comm. Rep., para. 50 and the applicant’s memorial to the Court , Appendix 3.