EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22492/93

Cemil Kĸlĸç

against

Turkey

REPORT OF THE COMMISSION

(adopted on 23 October 1998)

TABLE OF CONTENTS

         Page

I. INTRODUCTION

(paras. 1-39) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-34) 1

C. The present Report

(paras. 35-39)              4

II. ESTABLISHMENT OF THE FACTS

(paras. 40-170) 5

A. The particular circumstances of the case

(paras. 41-51)              5

B. The evidence before the Commission

(paras. 52-158) 6

1) Documentary evidence

   (paras. 52-119) 6

2) Oral evidence

              (paras. 120-158) 21

C. Relevant domestic law and practice

(paras. 159-170) 30

III. OPINION OF THE COMMISSION

(paras. 171-258) 32

A. Complaints declared admissible

(para. 171) 32

B. Points at issue

(para. 172) 32

C. The evaluation of the evidence

(paras. 173-203) 32

D. As regards Article 2 of the Convention

(paras. 204-234) 41

CONCLUSION

(para. 235) 49

E. As regards Article 10 of the Convention

(paras. 236-239) 49

CONCLUSION

(para. 240) 50

F. As regards Articles 6 and 13 of the Convention

(paras. 241-248) 50

CONCLUSION

(para. 249) 51

G. As regards Article 14 of the Convention

(paras. 250-253) 51

CONCLUSION

(para. 254) 52

H. Recapitulation

(paras. 255-258) 52

CONCURRING OPINION OF MR I. CABRAL BARRETO 53

DISSENTING OPINION OF Mr L. LOUCAIDES

JOINED BY MM S. TRECHSEL AND M.A. NOWICKI 54

APPENDIX I: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF APPLICATION                                                                                                                      52

APPENDIX II: SUMMARY OF THE SUSURLUK REPORT 63

I. INTRODUCTION

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

A. The application

2. The applicant is a Turkish citizen resident in Şanlĸurfa and born in 1960.  He is represented before the Commission by Professors K. Boyle and F. Hampson, both teachers at the University of Essex.

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

4. The applicant alleges that his brother Kemal Kĸlĸç was killed by or with the connivance of State agents and that there was no effective investigation, redress or remedy for his complaints. He alleges that his brother was threatened and killed because he was a journalist. He invokes Articles 2, 3, 10, 13 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 13 August 1993 and registered on 20 August 1993.

6. On 11 October 1993, the Commission decided to communicate the application to the Turkish Government, who were invited to submit their observations on admissibility and merits before 4 November 1993.

7. On 10 March 1994, the Government submitted their observations, after one extension in the time-limit. The applicant's observations in reply were submitted on 11 May 1994.

8. On 9 January 1995, the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 19 January 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 which they might wish to put before Delegates.

10. On 17 January 1995, the Government submitted supplementary information and on 22 May 1995, after two extensions in the time-limit for that purpose, observations on the merits.

11. On 7 July 1995, the Commission examined the state of proceedings. It requested that the Government provide documents and information relating to the proceedings against Hüseyin Güney allegedly charged with the killing of the applicant's brother and that the applicant provide comments on the Government's submissions concerning the trial.

12. By letter dated 11 September 1995, the applicant made submissions concerning the trial.

13. By letter dated 2 October 1995, the Secretariat of the Commission reminded the Government that the documents and information requested had not been provided.

14. On 29 November 1995, the Government provided the indictment in the trial and information concerning the proceedings.

15. On 2 December 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr. G. Jörundsson, B. Conforti and N. Bratza. It notified the parties by letter of 12 December 1995, proposing certain witnesses and requesting the Government to identify the public prosecutors involved in various proceedings. The Government were also requested to provide the contents of the investigation files, in particular, the ballistic reports.

16. On 13 September 1995 and 6 November 1995, the Government submitted information identifying certain witnesses.

17. By letter of 29 January 1996, the applicant's representatives made proposals as to witnesses.

18. On 26 March 1996, the Government provided further documents.

19. By letter dated 20 December 1996, the Secretariat repeated the request for the Government to identify a public prosecutor for the purposes of the taking of evidence.

20. Evidence was heard by the delegation of the Commission in Ankara on 4-5 February 1997. Before the Delegates the Government were represented by Mr. S. Alpaslan and Mr. D. Tezcan, as co-Agents, assisted by Mr M. Özmen, Mr. F. Polat, Ms. M. Gülşen, Ms. N. Erdim, Mr. A. Kaya, Mr. A. Kurudal and Mr. O. Sever. The applicants were represented by Ms. F. Hampson, and Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and assisted by Ms. D. Deniz and Mr. M. Kaya, as interpreters. Further documentary material was submitted by the Government during the hearings. During the hearings, and later confirmed by letter of 19 February 1997, the Delegates requested the Government to provide certain documents and information concerning matters arising out of the hearings and providing explanations for the absence of certain witnesses.

21. By letter dated 3 March 1997, the Government provided further information.

22. On 1 March 1997, the Commission decided to take further oral evidence in the case and proposed recalling three witnesses.

23. On 2 April 1997, the Government provided documents concerning the trial of Hüseyin Güney.

24. Evidence was heard by the delegation of the Commission in Strasbourg on 4 July 1997. Before the Delegates, the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr S. Alpaslan, Ms. M. Gülşen, Mr. A. Kaya, Mr. D. Karaca and Dr. Mustafa Bağrĸaçĸk. The applicants were represented by Ms. F. Hampson and Ms. A. Reidy, counsel, assisted by Mr. M. Kaya as interpreter. Further documentary material was submitted by the Government during the hearings.

25. On 10 July 1997, the Commission decided to invite the parties to present their written conclusions on the merits of the case, following transmission to the parties of the verbatim record. The time-limit was fixed at 4 December 1997, after the verbatim record was corrected and finalised on 17 October 1997.

26. On 24 July 1997, the Government provided information concerning the non-attendance of Mr. Ziyaeddin Akbulut.

27. On 3 December 1997, the applicant submitted his final observations. On 3 December 1997, the Government requested an extension in the time-limit for submission of observations, which was granted until 5 January 1998. No observations have been received from the Government.

28. On 11 February 1998 and 20 February 1998, the applicant submitted information and extracts from the Susurluk report issued by the Prime Minister's Office.

29. By letter dated 23 April 1998, the Commission requested the  Government to produce the pages and annexes of the Susurluk report which had not been made public.

30. By letter dated 5 June 1998, the Government declined to provide copies of the missing pages and annexes of the Susurluk report.

31. By letter of 6 July 1998, the Commission renewed its request to view the missing pages and annexes of the Susurluk report, subject to any necessary precautions to avoid prejudicing any ongoing domestic enquiries.

32. By letter dated 16 July 1998, the Government declined the Commission's request.

33. On 20 October 1998, the Commission decided that there was no basis on which to apply Article 29 of the Convention.

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

C. The present Report

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

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

36. The text of this Report was adopted on 23 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

37. The purpose of the Report, pursuant to 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.

38. The Commission's decision on the admissibility of the application is attached hereto as Appendix I and a summary of the Susurluk report attached as Appendix II.

39. 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

40. The facts of the case, particularly concerning events in or about 18 February 1993, are disputed by the parties. For this reason, pursuant to 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

a. Facts as presented by the applicant

41. The various accounts of events as submitted in written and oral statements by the applicant are summarised in Section B below. The version as presented in the applicant's final observations on the merits is summarised here.

42. The applicant's brother Kemal Kĸlĸç worked for the newspaper Özgür Gündem in Şanlĸurfa (also referred to as Urfa). He and other journalists, as well as newspaper distributors involved with that newspaper, had been threatened. On 23 December 1992, Kemal Kĸlĸç made a written request to the Governor, referring to attacks, beatings and arson and asking for protection for people working at the Şanlĸurfa offices, including himself.

43. On 30 December 1992, the Governor rejected the request, without any investigation having been conducted into the alleged threats.

44. On 5 January 1993, a newspaper shop burned down. Kemal Kĸlĸç issued a press release criticising the Governor for failing in his duty to protect and suggesting that the fire was caused by arson. On 18 January 1993, the police took Kemal Kĸlĸç briefly into custody on the basis of a complaint by the Governor about the criticisms made.  An investigation file was opened, which was closed on 5 March 1993 after Kemal Kĸlĸç's death.

45. Kemal Kĸlĸç told his friends around this time that he was being followed in Urfa by undercover agents of the National Intelligence Agency (MİT). Villagers and shepherds from Külünçe where he lived also noticed a white Renault car in the vicinity of the village, while villagers working in Urfa noticed a white Renault arriving at the bus station at the same time as Kemal Kĸlĸç did. Shortly after Kemal Kĸlĸç was taken into custody on 18 January 1993, a white Renault came into the village at about midnight or 01.00 hours and people knocked on the door of the house where Kemal lived with his father, asking for Kemal to open it. They left when some wood started burning.

46. On 18 February 1993, at about 17.30 hours, Kemal Kĸlĸç got on the bus which went from Urfa and passed Külünçe. Three cars overtook the bus on the road, one of which was a white Renault which turned up the untarmacked road to Külünçe, turned round and stopped with its engine stopped. Kemal Kĸlĸç was the only person to get off the bus at the Külünçe road. The watchman, Ahmet Fidan, at a bridge construction site nearby, saw two people get out of the white Renault to meet Kemal Kĸlĸç. He heard sounds of disagreement, a cry for help and two shots. The white Renault, in which there were four people, drove off towards Urfa. Fidan saw Kemal Kĸlĸç's body by the road and ran to the nearby petrol station to report the killing.

47. At the scene of the killing, the gendarmes made no attempt to investigate until the arrival of the public prosecutor. Items such as the tape binding Kemal Kĸlĸç's mouth and the two cartridges found at the scene were handled without attention to preserve any fingerprint evidence. The investigation which followed did not include, inter alia, any fingerprint testing, testing of the piece of paper found at the scene or any follow up visit to the site during daylight hours. The killing was treated as an ordinary crime.

48. The background to, and circumstances of the killing of Kemal Kĸlĸç, show that he was killed with the involvement or connivance of State agents, due to his involvement with Özgür Gündem, which was regarded by the authorities as a mouthpiece for the PKK.

49. The applicant and his family were not informed of the subsequent arrest of the alleged Hizbollah suspect Hüseyin Güney and were not called to give evidence although the indictment included the killing of Kemal Kĸlĸç. The only evidence linking the suspect with killing was the ballistics evidence that the gun allegedly found in the vicinity of Güney at his arrest had been used in the killing of Kemal Kĸlĸç and other persons. There was no evidence, or attempt to gain evidence, that Güney who came from Batman had ever been to Urfa or was linked to the killing in any other way. Güney had denied any involvement.

b. Facts as presented by the Government

50. The Government have made no submissions on the merits or with regard to the taking of evidence. From their previous submissions, their case is the following.

51. The Şanlĸurfa public prosecutor began the investigation into the killing of Kemal Kĸlĸç immediately. All necessary steps were taken in the investigation, including the collection of evidence. When a gun, found on Hüseyin Güney, a Hizbollah suspect, on his arrest in December 1993 in Diyarbakĸr, was subjected to ballistics examination, this revealed that the shells from the scene of Kemal Kĸlĸç's murder had been fired from the same gun. Güney was charged and is currently being tried in relation to this killing as well as others. Hizbollah was a separatist terrorist organisation which carried out violent attacks on the PKK as well as the State. They refer to the intense terrorist activity in the region at that time and the daily violent acts that were occurring.

B. The evidence before the Commission

1) Documentary evidence

52. The parties submitted various documents to the Commission. The documents included domestic reports (eg. 1993 Parliamentary Commission report on "unknown perpetrator" killings and the Susurluk report) and external reports about Turkey (eg. Helsinki Watch "Free Expression in Turkey 1993: Killings, Convictions, Confiscations", August 1993, Vol. 5 Issue 17 and see also Amnesty International report "Turkey: walls of glass" November 1992, AI Index Eur 44/75/92), domestic case-law, statements from the applicant and other persons, and sketch maps.

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

a) Statement by the applicant dated 1 March 1993 taken by Yusuf KarataÅŸ

54. The applicant stated that his brother was killed because he was a journalist. He had received many death threats in regard to his work for the Özgür Gündem newspaper.  He was also on the Management Committee of the Urfa Human Rights Association. For two months before he was killed, he was constantly being followed. Ten days before, he was followed by a vehicle said to be exactly like the white Renault registration 63 EO 443 in which his killers escaped after the murder. His brother had said that the persons following him were from the police, from the National Intelligence Agency. Because of this, the applicant's brother had made an application to the Governor for protection on 23 December 1993 which was refused. The Özgür Gündem newspaper could no longer be distributed in Urfa due to the threats at that time. The Urfa sales representative of United Press Distribution had been threatened so that they would not distribute the newspaper.  Some newsagents had also been set on fire. His brother wrote a press statement calling on the Governor's office to carry out their duty. The Governor lodged a complaint in relation to this and the applicant's brother was detained at the police security headquarters on 18 January 1993.

55. On 18 February 1993, his brother left the newspaper office at 17.00 hours to go home. He boarded the Akçakale bus at Kuyubaşĸ as usual at 17.30 hours and got off at the turn-off to Külünçe where he lived. Fifty metres up the village road, he was intercepted by persons waiting in ambush.  According to the only eye-witness, a building site watchman for Balaban construction, these persons argued with his brother for 15-20 minutes, and then taped up his mouth to kidnap him. They wanted to tie him up and apparently bit him on the left hand. When his brother resisted, they pulled his jacket over his head and shot him twice in the head, killing him.

56. The applicant learned of the shooting from villagers and went to the scene of the incident. The gendarmes were there. According to what was said, his brother was shot between 18.00 and 18.20 hours. The prosecutor came to the scene at 20.20 hours. In the examination of the scene, two empty 9mm cartridges were found and the tape was taken from his brother's mouth, without any care taken with regard to fingerprints. His opinion was that no efforts were made to find traces of the killers at the scene. The rope with which the men had tried to bind his brother was also just placed in a bag. It was unclear what had happened to a piece of paper found by a non-commissioned officer at the scene.

57. His brother had no enemies, nor his family. This was told to gendarmes who kept repeating the same and only question about whether they had enemies. The gendarmes called him and his father to the station five times. Gendarmes and security headquarters people came 5-6 times, the house was searched and his brother's private things looked through. It was as though they wanted to show the killing of his brother to be a common criminal incident. He did not believe that the killers would be caught with their efforts. Four other reporters for Özgür Gündem had been killed and one paralysed from injuries received in an attack. He made this application to ensure that the files would not be closed as a murder with unknown perpetrators and that the killers would be caught.

b) Documents relating to Kemal Kĸlĸç prior to his death

Undated transcription of a telephone conversation between Kemal Kĸlĸç and a newsagent at the Özgür Gündem office

58. This recorded that a newsagent from Küçükoğlu Trade at Küçükoğlu market rang to inform the newspaper about a person who had made threats. He described the person and stated that he had received a telephone threat previously. He was wondering if it might be the police since they had come before and he had told them that he would sell whatever newspaper he liked. He sold Özgür Gündem.

Undated transcription of telephone conversations between Özgür Gündem journalist Bayram Balcĸ and the security headquarters

59. Balcĸ informed the officer at the Intelligence Centre that a person had been going round the newsagents in Urfa for two days, saying that he was from the Security Directorate and that they should not sell Özgür Gündem or other named newspapers or they would be bombed. When asked to specify from whom the complaints came, Balcĸ said that all the newsagents in Urfa had been complaining to the newspaper. The security officer said that he would send round a patrol to the newspaper offices to find out further information.

60. In a second call, Balcĸ informed another officer that journalists had been threatened. He was told to make a complaint at the nearest police station. When he said that a man was still going around threatening newsagents that morning and saying that he was from the Security Directorate, he was told that a patrol would be sent.

61. In a third call, when a patrol had not yet arrived, Balcĸ was told that he should make an application in writing at the nearest police station and then a patrol would be sent out to look for the man. The officer did not consider that it was an emergency requiring immediate response.

62. The document relates that persons went to the police station to make an application. A commissioner and an officer came to talk to them. Several days later, there was an arson attack on one of the newsagents who had been threatened.

Request to Şanlĸurfa governor dated 23 December 1992 signed by Kemal Kĸlĸç

63. The press release stated that due to death threats directed at the United Press Distribution representative carrying out the distribution of Özgür Gündem, distribution of the newspaper was being carried out by workers of the newspaper in Şanlĸurfa under extremely unsafe conditions. The driver and the owner of the taxi used for the distribution were being threatened by unknown persons.  As was known, persons working for the newspaper had been killed and attacked and those involved in sale and distribution had been subject to arson and armed attacks and beatings.

64. Reference was made to the fact that in many provinces in the south-east, like Diyarbakĸr, Batman, Van, and Mardin, where attacks and threats had been made on the newspaper, security officers were protecting the offices, workers and distributors. It was respectfully requested that measures be taken to assign the necessary security officers to guarantee the safety of people working for the Şanlĸurfa newspaper office, naming Bayram Balcĸ, Kemal Kĸlĸç and Nazĸm Babaoğlu, Ali Dadir (distributor) and Hasan Yaktaş (driver).

Reply of the Governor's office dated 30 December 1992

65. The request for protection had been examined. No protection had been assigned to any distributors of newspapers anywhere in the province or districts nor had there been any question of attacks or threats on distributors anywhere in the area. The request was refused.

Press release dated 11 January 1993 signed by Kemal Kĸlĸç

66. The press release stated that attacks aimed at newspaper distribution and sales in Urfa were continuing despite their persistent warnings to the authorities urging them to take measures. On 5 January 1993, there was an arson attack on the newsagent's stand belonging to Ahmet Divitçi, who was one of the persons repeatedly threatened by persons claiming to be the police because they were selling the Özgür Gündem newspaper. The Governor Ziyaeddin Akbulut had tried to conceal events by telling the Ministry of the Interior that no incidents were taking place and that the kiosk burned down due to a short circuit. He was thus supporting the actions of the hooligans threatening the newsagents. As a result of this irresponsible attitude, another newsagent's stand (no. 5) in the Akarbaşĸ district had been burned down the previous night. The main distributor in Ceylanpĸnar district, Aldülgaffar Ağar, had said that he would not continue to distribute Özgür Gündem since his safety could not be guaranteed. The Governor was condemned for not ensuring the free distribution of newspapers and he and the police authorities were called upon to fulfil their responsibilities.

Decision not to prosecute dated 5 March 1993

67. The decision refers to an offence committed by Kemal Kĸlĸç on 11 January 1993 in respect of statements and insinuations broadcast in the form of a press release on the radio, which constituted an insult to the Governor. Since the accused  had died, the prosecution was discontinued.

c) Documents relating to the investigation into the killing of Kemal Kĸlĸç

Incident report dated 18 February 1993

68. This report drawn up by the gendarmes, and signed, inter alia, by NCO Taner Seçkin and counter-signed by the muhtar of Külünçe village, states that on report by Ahmet Fidan, a watchman, that a murder had taken place at the entrance to Külünçe village at about 18.15 hours, a sufficient force was sent to the scene.

69. The report describes the body as being situated on the untarmacked road 500 metres from the village, and 100 metres from the E-24 Şanlĸurfa-Akçakale road.  A systematic investigation at the incident location disclosed, inter alia, that the victim's mouth was covered with four pieces of packaging tape, each 15 cm long and that there was a rope, 1 metre long, 0.5 cm wide, round his neck. One 9 mm cartridge was found under the left cheek and another under the right hand. The empty cartridges were given to the public prosecutor at the scene. The muhtar identified the victim as Kemal Kĸlĸç.

Sketches dated 18 February 1993

70. There is a sketch map drawn by NCO Seçkin indicating the location of the body and the distances relevant to the main road, village road and bridge construction. The shed of the watchman is indicated as being 50 metres from the body, on the righthand side of the village road about 10 metres from the main city road.

71. There is sketch drawn by NCO Seçkin of the position of the body, together with positions of the rope, cartridges, tape.

Report of examination of the body dated 18 February 1993

72. This document signed, inter alia, by the public prosecutor and a medical doctor, describes the location, position and state of the body found near Külünçe village. An external examination was carried out by the medical expert who concluded that due to the location and light the body should be removed to the state hospital for procedures to be carried out.

Autopsy report dated 19 February 1993

73. The examination report, carried out by a medical doctor in the presence of the public prosecutor, states that there was a bullet entry in the right ear and another in the right temporal region, and two exit holes. There was an ecchymotic blow mark 1 cm long on the left eyebrow, a superficial graze on the left hand index finger and a semi-circular lesion on the outer left hand, like a bite mark. Five ecchymosis marks were found in the right lumbar region. The internal organs were examined. Cause of death was due to destruction of brain tissue and brain haemorrhage.  Either bullet would have been fatal. No bullet was found in the body. The entry holes indicated firing took place from the same range and distance. The victim's coat had holes likely to be bullet holes and the large bloodstains indicated that it might have been used to cover the head before the killing took place.

Statement of Ahmet Fidan dated 18 February 1993

74. The statement, taken by NCO Seçkin, stated that the witness worked as a night guard at bridge works carried out by Balaban İnşaat construction company, in front of Külünçe village.  On the night of 18 February 1993, he started work on building a shed for use in his night duty. Around 18.20 hours a white saloon Renault car came from the Şanlĸurfa direction of the city road and entered the Külünçe village road. After doing a U-turn, it parked facing the main road and switched off its headlights.  About 15 minutes later, a man got off the Şanlĸurfa Cesur coach and headed towards Külünçe village. The witness, busy with his own work, heard arguments and talking and looked towards where they were coming from. However it was dark and he could not see anything. He then heard a cry "Help!" and two pistol shots. He crouched down in fear. After this, the car turned into the road and escaped towards Şanlĸurfa. The witness approached the incident location and using his torch saw the body of a dead man. There had been a fifteen minute gap between the passenger walking toward the village and the shots.  He did not see the victim, the perpetrators or the vehicle because of the darkness. He said he had nothing else to add.

Statement of Mehmet Şerbetiçen dated 19 February 1993

75. The witness, whose statement was taken by NCO Seçkin, was the driver of the Şanlĸurfa Cesur coach. He recalled leaving the Kuyubaşĸ district at about 17.30 hours, with 7-8 passengers. He remembered that having travelled about 14 km on the Şanlĸurfa-Akçakale road, three cars overtook the coach, one of which was an old white Renault. The Renault turned into the Külünçe village road but he did not see if it stopped or went on to the village. He stopped the coach at the turning to Külünçe for a passenger to get off but did not see in which direction the passenger went.

Statement of İbrahim Şerbetiçen dated 19 February 1993

76. The witness, whose statement was taken by NCO Seçkin, was the driver's assistant on the Şanlĸurfa Cesur coach. He did not see any cars overtaking the bus on 18 February 1993 after it left Kuyubaşĸ at 17.30 hours. A passenger got off at Külünçe turning and walked towards the village.

Statement of Mustafa Kĸlĸç dated February 1993

77. The witness, whose statement was taken by NCO Seçkin, was the father of Kemal Kĸlĸç. He stated, inter alia, that his son had no enemies, being very calm and quiet. He did not know what his son might have been investigating before his death. He himself had no ill-dealings with anyone and did not know why anyone would kill his son.  He did not know what meetings his son attended or which party he was a member of.

Statement of Mahmut Kĸlĸç dated February 1993

78. The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother had been working for Özgür Gündem for about a year and a half. As far as he knew, his brother had no problems with people at the paper, in the village or in Şanlĸurfa. He had recently been working on an article about infant deaths in Şanlĸurfa. If he was being followed or threatened, his brother would have told them. He never went outside provincial boundaries. He used to go frequently to the Human Rights Association and to HEP (People's Labour Party).

Statement of İbrahim Kĸlĸç dated 22 February 1993

79. The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother had not told his father or any of his brothers that he had been followed or threatened or that he had argued with anyone. He did not know what meetings his brother attended or what party he sided with. He was quiet and calm and did not interfere.

Statement of Mehmet Cemil Kĸlĸç dated 22 February 1993

80. The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother would have definitely told his family if he had been followed or threatened. He was not aware of his membership in any party or what he was investigating before he died.

Statement of Ali Eren undated

81. The witness, whose statement was taken by NCO Seçkin, was a teacher who used to travel on the Şanlĸurfa Cesur bus. He knew Kemal Kĸlĸç. On 18 February 1993, Kemal Kĸlĸç got on the bus at the Kuyubaşĸ district, not the coach station.  He did not notice if any cars overtook the bus before it stopped at Külünçe village. There was nothing extraordinary on the road or at the village junction.

Statement of Ömer Cavcan dated 19 February 1993

82. The witness, an infantry sergeant whose statement was taken by NCO Seçkin, stated that he got on the Şanlĸurfa Cesur coach at 17.00 hours on 18 February 1993. Before the coach reached the Külünçe junction, he saw three cars overtake it. One of these cars was a white Renault but he did not remember in which direction it went.

Search report dated 26 February 1993

83. This report, signed inter alia by Captain Cengiz Kargĸlĸ, relates that a search took place, under a search warrant, at the house in which Kemal Kĸlĸç lived, on 26 February 1993. It was carried out in the presence of Mehmet Kĸlĸç, the village muhtar and lasted from 16.00 to 16.50 hours. The stated purpose was to gather evidence to shed light on the murder of Kemal Kĸlĸç. It listed the books, papers, newspaper cuttings, a photograph and cassettes taken for examination.

Delivery report dated 26 February 1993

84. The report lists the items returned to Kemal Kĸlĸç's father from the search. A photograph of three civilians with a rocket launcher and two Sony cassettes were kept for evidence and further use.

Investigation report 26 February 1993

85. This report lists in detail the books, materials, cassettes found amongst Kemal Kĸlĸç's possessions during the search on this day, and sets out the transcript of conversations found on one of the tapes.

Letter dated 15 March 1993 from Captain Kargĸlĸ to the Şanlĸurfa chief public prosecutor's office

86. The letter informs the public prosecutor of the search and encloses two tapes and a photograph of a person carrying a gun. It also refers to a scrap of paper found at the scene of the crime, which bore the letters U and Y and was stained with blood (1cm by 2cm) and stated that this paper, which press reports had stated had not been added to the enquiry documents, was preserved in acetate and submitted together with the documents. The investigation was continuing along many different avenues.

Decision to continue the investigation until expiry of statutory limitation period dated 12 August 1993

87. This decision, signed by the Şanlĸurfa public prosecutor, states that it had not yet been possible to apprehend the perpetrator of the offence in which Kemal Kĸlĸç was killed nor to discover his identity. It was decided to continue the search for the unknown perpetrator until the expiry of the 20 year limitation period and for a copy of the decision to be sent to the Office for Public Order of the Police Headquarters.

88. By letter dated 12 August 1993 to the Office for Public Order of Police Headquarters at Şanlĸurfa, enclosing the above decision, the public prosecutor requested that information about the investigation should be forwarded every three months.

Letter dated 10 December 1993 from Ministry of Justice (General directorate of international law and foreign relations) to Şanlĸurfa attorney general

89. This letter outlined the allegations made by the applicant in his application to the European Commission of Human Rights and requested the file documents be sent together with comments on the allegations made.

Letter dated 21 December 1993 from Siverek chief public prosecutor's office to Şanlĸurfa chief public prosecutor's office

90. In answer to an enquiry, it was stated that according to a letter of 21 December 1993 from the Road Traffic Registration and Control Authority of Siverek police headquarters no vehicle had been registered with the number 63 EO 443 and that, since in Turkey the letters O and Ö were not used for that purpose, a registration plate with that number could not have been issued.

Report dated 22 December 1993 by Şanlĸurfa public prosecutor

91. In reply to the request for comments, the public prosecutor outlined the steps taken in the investigation. It was stated that all necessary steps were taken. The allegation about the deceased being followed by a white Renault was investigated but it was shown that the car with number plate 63 EO 443 did not exist since O and Ö were not used in number plates. Despite allegations to the contrary, the incident location was examined thoroughly and completely. There was however no piece of paper found at the scene as alleged by the applicant. Efforts to apprehend the perpetrator continued.

Letter dated 2 January 1994 from Diyarbakĸr regional criminal police laboratory to Şanlĸurfa Security Directorate

92. Referring to a request of 11 March 1993, the laboratory returned two 9 mm cartridges and reported that these had been found to have been fired by a Ceska 9 mm semi-automatic pistol submitted for examination by the Diyarbakĸr police. A copy of the ballistics report (see 103 below) was enclosed.

Letter dated 21 January 1994 from the Şanlĸurfa Security Directorate to Şanlĸurfa provincial gendarme command

93. The letter stated that suspect Hüseyin Güney had been apprehended by the Diyarbakĸr Directorate of Security with a 9mm Ceska pistol which had been found to have been used in the Kemal Kĸlĸç murder incident. The ballistics report and interrogation minutes of Hüseyin Güney were enclosed.

Letter dated 8 February 1994 from Captain Kargĸlĸ to the Şanlĸurfa public prosecutor

94. The letter stated that the Diyarbakĸr Security Directorate had carried out operations against the Hizbollah organisation in December 1993. The accused Hüseyin Güney had been identified as the perpetrator of the Kemal Kĸlĸç murder incident. Reference was made to the ballistics match with a Ceska 9 mm pistol. The ballistics report and interrogation minutes of Hüseyin Güney were enclosed, as well as other file materials.

Decision of withdrawal of jurisdiction dated 16 February 1994 by the Şanlĸurfa public prosecutor's office

95. The decision referred to the ballistics examination revealing that the Ceska pistol confiscated from the defendant Hüseyin Güney was used in the killing of Kemal Kĸlĸç and states that this proves that this defendant killed the victim. It was concluded that the incident fell within the jurisdiction of the State Security Court prosecution and the preliminary file was to be transferred to Diyarbakĸr.

d) Documents relating to the proceedings against Hüseyin Güney

Incident investigation, apprehension and confiscation report dated 24 December 1993

96. An incident took place at the shop, Aydĸn Ticaret, Sağlĸkocağĸ Caddesi, Diyarbakĸr, on 24 December 1993. The shop was attacked by five armed individuals, first by a stone being thrown, then by shots being fired. An employee at the shop was wounded. The suspects were followed by police teams. A 9mm Czech pistol serial no. 100545 was located in front of the apartment block entrance to which the suspects had been followed. The gun contained live bullets, and was ready to be fired, with the hammer poised and a bullet in the barrel. At this stage, Hüseyin Güney, registered in Batman and resident in the same location, was seen trying to escape by running up the stairs and was apprehended in a breathless, perspiring state. It was understood that this individual had entered the apartment block and later returned to recover the pistol without wearing his coat (this sentence is obscurely constructed).

97. Further suspects were apprehended during a security check and search of the building. This included a wounded suspect, Abdullah Gülcan, hiding behind the elevator cabin. Another gun was found nearby, wrapped up in a grey duffle coat.

98. There are two hand drawn sketches, one showing the Aydĸn Ticaret shop, the positions of persons and the damage and another showing the immediate area, indicating the flight of the perpetrators of the attack along 64 Sokak ("64th Street"), and the locations where various weapons were found.

Identification record dated 24 December 1993

99. This records that an identification parade was held in which Hüseyin Güney and nine other suspects (seven of whom were later included with Güney in the indictment of 3 February 1994) were lined up at the police station for witnesses of the attack at Aydĸn Ticaret to identify the attackers. The witnesses had stated that there were five persons who carried out the attack and that they could identify them if they saw them again. The owner of the shop identified two of the suspects (Abdullah Gülcan and Abdurrahman Çelik). An employee of the shop identified the same two persons. The owner tentatively identified a third person (Abdülselam Elhaman) but was not sure.

Record of site showing dated 5 January 1994

100. This records that police officers took Abdullah Gülcan and Hüseyin Güney, who had stated that they had participated in the attack on Aydĸn Ticaret, to the location of the attack and asked them how they had carried it out. Gülcan stated that he had come to Diyarbakĸr from Batman at the request of Hasan, that he and others prepared for the attack, which began by Hasan throwing a grenade in the shop, following which the others opened fire with weapons. He was wounded as he ran away. Hüseyin Güney, codenamed Hakan, went with him up to the roof of the apartment block where they had been staying. Hüseyin went to get a taxi. Then the police arrived and arrested them. Hüseyin Güney stated that he agreed with the statement of Gülcan. He knew he had dropped the Ceska pistol as he entered the block of flats but did not know if it had been found or not.

101. There is a hand drawn sketch map showing where Gülcan and Hüseyin and other codenamed members of the group stood during the attack and the direction of their flight down street "64 Sokak".

Expert report dated 26 December 1993 Diyarbakĸr Regional Criminal Police Laboratory

102. The report refers to 14 swabs taken from the right hands of two suspects and from the right and left hands of six suspects, including Hüseyin Güney. These were tested by an atomic absorption spectrophotometer but no residues of firing a pistol could be found. It noted, inter alia, that if the hands used to fire were washed or wiped after shooting, no residue or only a minimal residue would remain. Results vary also according to whether gloves were used, the type of weapon, the way it was held or how it fired.

Expert ballistics report dated 27 December 1993, Diyarbakĸr Regional Criminal Police Laboratory

103. The 9 mm Ceska semi-automatic pistol serial no. 100545, one cartridge clip and 10 rounds of bullets found on Hüseyin Güney were submitted for examination at the request of the Diyarbakĸr police. Following test firing, it was determined that the pistol had been used in 15 incidents: the Kemal Ekinci murder, 15 December 1992, Diyarbakĸr;  the Kemal Kĸlĸç murder, 18 February 1993, near Şanlĸurfa; the Abdurrahman Akkamĸş murder 16 March 1993, Diyarbakĸr; the Abdullah Sapa(n) murder, 24 July 1993, Diyarbakĸr; the Cemal Burkay murder, 31 July 1993, Diyarbakĸr; the Abdülhalik Şaşmaz injury incident 18 August 1993, Diyarbakĸr; the Yaşar Çelik injury incident, 29 August 1993, Diyarbakĸr; the Abbas Demiroğlu murder, 18 September 1993, Diyarbakĸr; the minibus firing incident 22 September 1993, Diyarbakĸr; the Hüseyin Yĸldĸrĸm murder, 29 September 1993, Diyarbakĸr; the Zeki Murat Yĸldĸrĸm murder, 9 October 1993, Diyarbakĸr; the Abdülbekir Karakoç murder 14 October 1993; the Mahser Çelik murder, 27 October 1993, Diyarbakĸr; the Hasan Çarkanat injury incident, 23 November 1993, Diyarbakĸr; the Aydĸn Turmak murder, 24 November 1993, Diyarbakĸr.

Indictment dated 3 February 1994 No. 1994/238 issued by Diyarbakĸr State Security Prosecutor Cafer Tüfekçi

104. Hüseyin Güney appeared as the first of 17 defendants. The offence is described as membership of the outlawed Hizbollah organisation, carrying out activities with the intention to separate part of the country from the sovereignty of the State and to form a Kurdish state based upon Islamic principles, such offence being carried out from 1992-1993.

105. Hüseyin Güney was described as being a member of the Hizbollah organisation, Scientific Community Group, codenamed Hakan. He carried out various activities on behalf of the organisation and was caught after an armed attack on Aydĸn Ticaret on 24 December 1993. A Ceska 9mm calibre pistol was found on him. Laboratory examination showed that the weapon was used in fifteen incidents involving killing or injury(see para. 103 above), including the killing of Kemal Kĸlĸç on 18 February 1993.

106. One of the other defendants, Mustafa Gezer, who was arrested on 17 December 1993 after a separate shooting incident, is stated to have had a Takarof pistol found on him. This weapon had been used in ten other shooting incidents in Diyarbakĸr, one of which involved the injury of Burhan Karadeniz, an Özgür Gündem journalist, on 5 August 1992.

Interrogation notes concerning Hüseyin Güney undated at the Security Directorate

107. The defendant stated that he was born in Batman in 1975. He was a member of the Hizbollah organisation (Scientific Community Group).  He joined through a friend Hasan who visited him in Batman. Hasan told him that when he was called he should go to Diyarbakĸr and the defendant said that he was ready and that whenever he was needed they should let him know. Fifteen days before his arrest, he arrived in Diyarbakĸr following a call from Hasan. He was told that they were to carry out a retaliation in response to attacks on their group. Hasan provided the weapons to the group, including a Ceska for the defendant. On the day of the incident, Hasan threw a handgrenade through the window of the Aydĸn ticaret shop and the defendant and the others started firing. After the attack, they ran away. He came to the apartment block where they were staying. He dropped the gun. He knocked on the door of the flat  where they had been staying but no-one answered. He  went downstairs again and took a wounded member of the group, Gülcan, up to the flat roof. He was going down the staircase to get a taxi when he was apprehended by the police.  Later, they found the Ceska pistol that he had dropped. When asked about the previous incidents in which the gun had been used, including the killing of Kemal Kĸlĸç, he stated that he did not want to answer anything about them.

Statement of Hüseyin Güney dated 6 January 1994 taken by a public prosecutor

108. The defendant stated that he was not a member of Hizbollah or the Scientific Community Group. He did not know Abdullah Gülcan and he did not have a codename. He came to Diyarbakĸr from Batman to work as a central heating engineer. He was apprehended while trying to locate a colleague Servet, outside an apartment unknown to him. A pistol was not found on him and pistol 10045 was not his. He did not participate in any of the murders listed as connected with the gun. When his statement to the security forces was read out, he did not accept it.  Nor did he accept that he had carried out any identification of the location. He refused their questions even when tortured. He had not had a coat on as he was a central heating fitter and the weather was warm.

Proceedings before the State Security Court No. 3

1. Undated. Güney denied his statement to the security forces or that he had had a pistol on him. The court, inter alia, ordered a continuation of detention.

2. 7 February 1994. The court ordered a continuation of detention; submission of the defendants' criminal records and registration etc.

3. 3 March 1994. The indictment was read out to the defendants, who were asked to answer. Hüseyin Güney denied the charges. His statements to the police and to the public prosecutor were read out. He stated that he was forced to sign the first and accepted the second as true. He denied that a pistol was found on him. The court ordered the immediate release of four other defendants. Güney was to be kept in detention with the remaining defendants. Orders were made for the obtaining of various documents and witnesses.

4. 10 May 1994. It was noted that Hüseyin Güney had a licence for a Rekart 7.65mm pistol. Materials from files relating to various killings were read out. Güney denied his involvement. Other defendants addressed the court. Several witnesses relevant to another defendant were heard. Various orders and summonses were issued.

5. 6 July 1994. Orders were made with respect to continued detention and the issue of summonses for witnesses and documents.

6. 1 September 1994. (Güney was absent.) Requests were made by defence lawyers for various reports or witnesses, as well as the release of their clients. Orders made with respect to continued detention and the issue of summonses for witnesses and documents.

7. 27 October 1994.  In the absence of the defendants and their counsel, a number of police officers were called. They confirmed the incident investigation, capture and arrest records were correct and had nothing to add. Then, two defendants and two defence counsel took their places. Civilian witnesses concerning the attack on the Aydĸn Ticaret shop and the arrest of suspects were heard.  Orders were made, inter alia, for the release for one defendant.

8. 20 December 1994.(Güney absent.) One defendant was questioned. Defence counsel requested the release of Hüseyin Güney on the basis that the only evidence against him was the statement taken by the security forces and a gun found upon the ground. Requests made for release. Defendants remanded in custody. Miscellaneous orders,

9.-12. 16 February 1995, 4 April 1995, 13 June 1995, 31 August 1995. Defendants remanded in custody. Miscellaneous orders.

13. 24 October 1995. (Defendants absent.) Counsel made requests for confrontation of witnesses. Miscellaneous orders.

14. 19 December 1995. A witness was heard. Hüseyin Güney requested his release as he had been in prison for two years and he had no connection with the crimes. His counsel submitted that no witness had made a statement identifying the defendant as a perpetrator, that Hüseyin Güney had not been identified when confronted for identification following the incident and that he should be released. The court, inter alia, ordered the detention to continue.

15.-18. 23 January 1996, 12 March 1996, 7 May 1996, 18 June 1996. Requests made for release. Defendants remanded in custody. Miscellaneous orders.

19. 14 August 1996. A witness statement was read out. Requests made for release. Defendants remanded in custody. Miscellaneous orders.

20. 17 October 1996. Requests made for release. Defendants remanded in custody. Miscellaneous orders.

21. 17 December 1996. Requests made for release. Defendants remanded in custody. Miscellaneous orders, including request for documents relating to the killing of Kemal Kĸlĸç.

22. 25 February 1997. Requests made for release. Defendants remanded in custody. Miscellaneous orders.

23. 8 April 1997. Güney appeared, repeated that he had not been involved in any incidents and requested release. Defence counsel made applications for release. Defendants remanded in custody. Miscellaneous orders.

24. 10 June 1997. (Güney not present.) Witnesses heard. Miscellaneous orders.

e) Concerning reports of State involvement or responsibility for unknown perpetrator killings

Parliamentary Investigation Commission Report 1993 10/90 Number A.01.1.GEC

109. The applicant has provided extracts from the 1993 report into extra-judicial or unknown perpetrator killings by a Parliamentary Investigation Commission of the Turkish Grand National Assembly.

110. The report refers to statistics of 908 unsolved killings, of which 9 were the killings of journalists. It refers to an attitude of officials coming to the region (south-east) as seeing themselves as the final authority. A majority of positions in administration are identified as being filled by inexperienced people, including in the judicial system newly graduated judges and prosecutors. Comment is made that this blocks avenues of redress for citizens. Inexperienced officials have difficulties in using their authority, while certain people seek to prevent the few experienced judges and prosecutors from fulfilling their duties. Reference is made, with quoted statements from the judge concerned, to an incident in which a judge was attacked by members of the police and to other attacks on judicial personnel in the Diyarbakĸr courts of justice having occurred without any action being taken.

111. Reference is made also to the unsurprising lack of confidence in the authorities on the part of citizens and to a situation of confusion and chaos in which persons armed with guns by the State authorities or left to operate unhindered walk openly in the streets and carry out illegal activities. The report cites information derived from the Deputy Governor and police chief of Batman to the effect that the Hizbollah had a camp in the area, where they received political and military training and assistance from the military units there. It was noted that despite the further request for information by the Parliamentarians, no further enquiry into this allegation was made by the authorities in Batman.

112. The report concludes on the whole that the State is not responsible for unknown perpetrator killings though there was a lack of accountability or control of officials by democratically elected representatives and that some groups with official roles might be implicated. It concludes with 29 recommendations, including, inter alia, the launching of investigations into allegations of official involvement in the killings.

The Susurluk report

113. This report was drawn up by Mr. Kutlu SavaÅŸ, vice president of the Committee for Co-ordination and Control, attached to the Prime Minister's Office, at the request of the Prime Minister. The report was issued in January 1998. The Prime Minister made the bulk of the report public, though certain pages and the annexes were omitted.

114. The report relates to concerns arising out of the so-called Susurluk incident, when in November 1996, there was a crash between a lorry and a Mercedes car at the town of Susurluk, and it was discovered that in the Mercedes car there were Sedat Bucak, member of Parliament and Kurdish clan chief from Urfa, Siverek district; Hüseyin KocadaÄŸ, a senior police officer who was director of the Ä°stanbul police college, founder of the special forces operating in the south east who had once been the senior police officer in Siverek; and Abdullah Çatlĸ, an former extreme right wing militant accused of killing seven students, at one time arrested by the French authorities for drug smuggling, extradited to and imprisoned in Switzerland from where he escaped and who was allegedly both a secret service agent and a member of an organised crime group.             

115. In the preface of the report, it is stated that it is not an investigation report and that the authors had no technical or legal authority in that respect. It is stated that the report was prepared for the purposes of providing the Prime Minister's Office with information and suggestions and that its veracity, accuracy and defects were to be evaluated by the Prime Minister's Office.

116. The report is summarised in Appendix II to the Report. In brief, it analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of Kurds and deliberate acts by a group of "informants" supposedly serving the State and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug trafficking sphere. References are made to unlawful activities having been carried out with the knowledge of the authorities and express mention is made of the blowing up of the Özgür Gündem building and the killing of Behçet Cantürk (one of the financiers of that newspaper), Musa Anter and other journalists. The page which followed (page 75) was not made public nor Appendix 9 which set out information about these matters.

117. On 23 April 1998, the Commission requested the Government to provide the pages (4, 68-71, 75, 77-80, 99, 103-104) and annexes of the Susurluk report which had not been made public. By letter dated 5 June 1998, the Government declined to provide copies of the missing pages and annexes of the Susurluk report, stating that the report, which concerned an internal investigation, was still confidential and the enquiry by the competent authorities into the allegations was in progress. It stated that giving the Commission a copy of the report at this stage might impede the investigations from progressing properly. Following a further request, the Government declined to make the missing extracts available subject to any necessary precautions to avoid prejudicing domestic enquiries.

118. The applicants have referred to the Turkish newspapers, Milliyet, Hürriyet and Ülkede Gündem, published on 22 February 1998, which listed the journalists who were named in the missing page 75 of the Susurluk report. These state that the journalists named in the report were Cengiz Altun, Hafiz Akdemir, Yahya Orhan, İzzet Keser, Mecit Akgün, Çetin Abubay and Burhan Karadeniz. The Government have not denied the accuracy of these reports.

Ülkede Gündem newspaper article dated 29 January 1998

119. The applicant has submitted an article which reports on the Susurluk report as vindicating the newspapers such as Özgür Gündem, Özgür Ülke, Yeni Politika and Demokrasi, which had reported the killings by contraguerillas, confessors, village guards and special forces. The article  alleges that, according to the report, journalists, reporters and distributors of newspapers reporting on these matters were systematically killed. Minister of State Eyüp Aşĸk is also quoted as confessing publicly that journalists in the Kurdish provinces had been killed by State officials. The article concludes that 29 named writers, reporters and distributors, including Kemal Kĸlĸç, were killed or kidnapped by the State. The Government have denied that the Minister made any such statement.

2) Oral evidence

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

The applicant

121. The applicant was born in 1958 and resides in Şanlĸurfa. He works for the Urfa City Council. He is the brother of the deceased Kemal Kĸlĸç. He lived in the same village as his brother but in a separate house. His brother lived with their father.

122. The applicant stated that his brother sat on the executive board of the Human Rights Association as well as working as a journalist at the Özgür Gündem journal. His brother had been taken to the police station, threatened but then released.

123. His brother had also been receiving threats that he would be killed if he continued working as a journalist and did not cease his union activities.  The applicant's brother had mentioned the threats to his father but the applicant only heard of them from his father some time after the murder. His brother had not told his father the source of these threats. The applicant had known that his brother had asked for a gun licence and protection from the security forces. These applications were refused. His brother had not told him any details about why he had taken these steps.

124. On the day that his brother was killed, the applicant arrived home at 17.30 hours. His brother generally left his work half an hour after he did. Some inhabitants of the village saw that his brother had been killed and one of them, a relative, came to tell him about the murder. When he and his father reached the site of the murder, there was no one else there. The body was lying at the edge of the road, 900 metres from the village. This was 500 metres from the first petrol station, a second petrol station being 300 metres further on. His brother's mouth  was taped and there was a rope around his neck. He had been shot twice in the head.

125. The gendarmes had been called from the first petrol station, to which the nearby watchman had run after the shooting. They arrived at the scene five minutes after the applicant. There were gendarmes, an expert sergeant and soldiers, at the second petrol station. They called for reinforcements from the city. At the scene, which was cordoned off, the gendarmes picked up two cartridges and gave them to the prosecutor. They placed the rope in a plastic bag. It was dark. After half an hour, the public prosecutor arrived. He asked the applicant questions as he and his family mourned near the body. The applicant asked for the killers to be caught. The public prosecutor also talked to the watchman of a building site nearby who had heard gunfire and was close to the murder site. The watchman was taken away. The body was taken to the state hospital and handed back to the family the next day for burial. The gendarmes did not return to investigate the scene in daylight.

126. The following day, the applicant's father went to see the watchman. The watchman told him he had seen a white Renault car with the number 63 EO 443. The watchman had seen four people in the car. Two of them got out of the car and shook hands with the applicant's brother, talking to him. They then went under the bridge and once there, one of them attacked him with a rope from  behind. When the applicant's brother resisted, others got out of the car and first tried to get him in the car. When the applicant's brother started shouting, they shot him and fled, driving in the direction of the city.

127. A white Renault car had been noticed on several occasions by the little canal or on the village roads by shepherds and villagers. They had noticed this car following the bus on which the applicant's brother  travelled. This had happened over two or three months before the killing, but more frequently towards the end. On the evening of the murder, according to the shepherds, the car had overtaken the bus and parked under a bridge close to where the applicant's brother got off. The applicant's brother had told his friends about being followed by some car from National Intelligence without specifying any details. His friends told the applicant about this after his brother died. Villagers who had shops in the town said that they had seen a white Renault following the applicant's brother in Şanlĸurfa also. The car was seen coming to the bus station when his brother arrived there. On the night of the killing, his brother got off the bus alone. If he had not been alone, the applicant considered that he would not have been killed.

128. On one occasion, the white Renault had come into the village. It had been seen by villagers. Men had knocked on the door of his father's house, where his brother lived, at about midnight or 01.00 hours, calling "Kemal" but his brother did not open the door. The car drove off again. His father told him of this incident.

129. The applicant, his father and two other brothers as well as the muhtar of the village went to the gendarme twice, morning and evening, on three consecutive days following the murder (18, 19 and 20 February). Each of them was questioned separately. He clarified that although he gave a statement to the gendarmes the day following the incident,the registration number of the suspected car did not figure in this statement as he learned it later on. Neither himself nor his family were summoned again to the gendarmerie or the public prosecutor's office on any further occasion. His father's house was searched twice and some tapes in Kurdish were seized. They were given no information about any investigation.

130. The applicant stated that he neither went to the administrative court for compensation nor lodged any complaints with the public prosecutor's office.

131. The applicant confirmed that on 27 February he went to the Urfa Branch of the Human Rights Association and spoke to the director Yusuf Karataş who took a note of their statements and requests for their rights to be upheld.  He went because he did not think that the gendarmes were investigating.

Cengiz Kargĸlĸ

132. The witness was born in 1960. From 17 July 1990 to 17 July 1994, he was provincial central district gendarmerie commander in Şanlĸurfa.

133. The witness did not know the applicant or any of his family before the incident. On the night of the incident, it was reported to him by radio from Uğurlu station. When he arrived there, it was dark. NCO Taner from Uğurlu station was already at the scene, together with Specialist Sergeant Yarĸmçam. The gendarmes were the first on the scene. Because there had been a series of petrol station robberies, the witness had ordered a patrol along the Mardin road and for security measures to be reviewed. When the watchman arrived at the petrol station, a specialist sergeant happened to be there. He was the first on the scene and he sent the muhtar to fetch the station commander. When the witness arrived, there were also villagers present. Measures had been taken to keep the people from site to preserve the evidence. The witness had called the public prosecutor by radio but he arrived some time later. The witness took charge at the scene. His role was to preserve the evidence, eg. stop the body being moved until the prosecutor arrived, and to place any witnesses under protection.

134. The only witness to the incident was a watchman Ahmet Fidan whom he talked to before the prosecutor arrived. The watchman told him that a car came from the direction of Şanlĸurfa and turned into the village road. After driving along for a while, it turned around and came back and stopped, switching off the engine. It was a white Renault but he had not seen the registration number of the car as it was dark and he did not know how many people were in it. He heard shouting, sounds of a quarrel, someone calling for help and then two shots. The watchman had been scared and knelt down inside his hut but judged from the headlights that the car drove off towards Şanlĸurfa. He had not noticed any suspicious movement during the day. The watchman was placed under protection to await the arrival of the prosecutor. The watchman said the shooting occurred at 18.20 hours.

135. The witness had the scene of the incident photographed with the camera which he carried in his car at his own initiative. They used car headlights to illuminate the scene and he took photographs from several angles, inter alia, of the body, the positions of the hut, and the road and the village. He could not remember if the photographs came out clearly but thought that they were not such as to reveal fully the evidence. They would still be at the station headquarters where he had worked.

136. When the prosecutor arrived, they examined the body together.  He had been shot in the head and his mouth was taped. There were two empty cartridges immediately below the head, which the prosecutor picked up himself. The gendarmes looked at the cartridges after he had done so.  The prosecutor took the cartridges for ballistics analysis, sent the body for an autopsy and left. The gendarmes looked around the immediate area for other cartridges but found nothing. The witness tried to examine for car tyre marks using headlights but could not see any. After the prosecutor left, he stayed and talked to the victim's relatives, to try to find a motive such as property disputes, or about a woman's honour. The family said that there were no such problems or disagreement.  He asked how the victim travelled home and was told he came by bus.

137. The next day, the witness asked at the bus company offices for the driver of the bus the previous evening. When the driver was identified and found, the witness asked him if he had seen a white Renault in the vicinity. He had deduced that the people who killed the victim knew that he travelled home on the bus and would have had to be sure that he got on the bus rather than stay in the city. He specifically asked the driver if he had been overtaken on the road to the village. The driver remembered three vehicles overtaking, one of which was an old model white Renault, which had overtaken and turned into the Külünçe road. He did not remember the licence plates of the car. The driver's assistant however had not seen such a car. The bus, which left at 17.30 hours, on its 14-15 kilometre route from Şanlĸurfa to the village made several stops. A passenger was picked up on the Akçakale road and the witness questioned the owner of the place that sold tickets there but he had not noticed a white Renault.

138. The witness found out that there were about seven to eight passengers on the bus and tried to find out their identities. The bus driver and his assistant did not know them. The Uğulur station commander told him of a teacher that used the bus and the witness questioned him. The teacher had not noticed anything suspicious. He found an infantry sergeant who had been on the bus, who also was unable to give any clues. The witness had been told by one of the victim's brothers that the victim always carried a notebook. He tried unsuccessfully to find the notebook at the victim's home but it was not there. He later obtained a search warrant to collect evidence at the house, in order to try to find a lead, for example, the victim might have taped threatening phone calls. During the search, they removed cassettes, books, notebooks. On examination, they revealed no clues and they were returned. On questioning by the applicant's representative, he added that a photograph showing a person with a rocket launcher and cassettes with Kurdish on them were sent to the prosecutor for examination.   His family had not given him any information which would give the investigation a direction.  He had asked the family, if the victim, who was a journalist, had enemies or received threats but they said that he had not.

139. The witness recalled going to the victim's house three or four times. He thought that during the period when persons made visits of condolence information might come to light of what people had  noticed. He went to look for the watchman again, in case there had been things which he had not remembered due to shock. The watchman had told him that he was scared. When he spoke to him again, the watchman did not remember anything else. He still did not remember the licence plate.

140. The day after the murder, in the evening, the witness went back to the scene, parking his car away from the watchman's hut. He noted that the chances of him seeing the registration were poor. He could not see the licence plate. The distance from the hut to where the car had been was about 50 metres. When asked if it would have been possible for the watchman to  see the number plate if the car passed in daylight, he explained that the hut was parallel to the road and next to the bridge, that it would depend if the watchman had been looking in the right direction from the right position, but that he doubted that it would be possible.

141. The witness put all the documents in the file and sent it to the prosecutor's office. He maintained a crime file and sent updates every three months to the State Security Court. He had sent an order to all their stations requesting a monthly update. There was a prosecution progress form on the top of the file but in the ten months that followed no additional information was discovered. On or about 24 January 1994, he was informed that a Hizbollah suspect Hüseyin Güney had been caught in Diyarbakĸr and that ballistics examination of the gun found on him matched the shells taken from the scene of the Kĸlĸç murder. Accordingly, he was told that the case had been solved and to close the file. The witness was curious about how the killing had been done but the perpetrator's statement only contained one sentence about it, stating that he did not wish to talk about it. He sent a copy of the statement and ballistics report to the public prosecutor and told the station commander to inform the family that the perpetrator had been caught. No fingerprint tests had been taken from the tape or empty cartridges since blood was all over them and they were not in a fit state.

142. The witness had never heard that the registration number of the white Renault car had been recorded. If he had been informed, it would have been the key to the case and he could immediately have continued the investigation. The family had never mentioned it to him, though he had spoken to them many times.  He also had not heard that a villager had passed the scene and spotted the body first or that some men had come at night to the village in a white Renault.

143. The investigation continued under his supervision, though some tasks were undertaken by the station commander. He did not reach any conclusion about who might have killed Kemal Kĸlĸç. The family had been very co-operative and he had not received the impression that they had been concealing anything.

144. The witness had never heard that journalists were under threat in his area. There were some problems with newspaper distribution and delivery, which might have concerned Aydĸnlĸk and Özgür Gündem. A newspaper van had been burned. He had formed a team which met the United Distribution's vans coming from Suruç district to escort them safely to Hilvan district on the Diyarbakĸr road. The measures had however concerned the delivery of all newspapers, not just the two mentioned. He could not remember whether this occurred in 1993 or 1994 or before the killing of Kemal Kĸlĸç. The journalists who worked in the centre of town were outside his jurisdiction and he supposed they could have complained to the police. When shown Kemal Kĸlĸç's press release of 11 January 1993 concerning attacks on several newspaper distributors in Urfa, he recalled seeing it after the murder. Copies of the press release and the request for protection to the provincial governor's office were received by him from the police department and included in the file. He had heard stories in the press and contacted the police himself about it. He did not think he needed to investigate this and he did not read the documents as disclosing any personal threat against Kemal Kĸlĸç.

145. There had been an incident in Urfa in which the district chairman of HEP had been killed and the police had caught four Hizbollah.

146. When asked by the Government Agent, he confirmed that Renault cars were quite common in the area and white a popular colour.

Cafer Tüfekçi

147. The witness was born in 1954 and from September 1992 to September 1996 was public prosecutor at the Diyarbakĸr State Security Court.

148. He stated that on 7 January 1994 the preliminary investigation file involving numerous defendants including Hüseyin Güney was received by the prosecution department at the State Security Court. The initial investigation into the death of Kemal Kĸlĸç was carried out by the local security forces and the Şanlĸurfa chief prosecution department. The cartridges picked up near the body of the victim had been sent to the Diyarbakĸr police criminal laboratory for ballistics analysis by the Şanlĸurfa prosecution. This report was later sent to the witness who found that it revealed that the cartridges had been fired by the gun found on Hüseyin Güney who was in custody in relation to other matters. He interrogated Güney and ordered his arrest, the match of the cartridges with the gun constituting major material evidence. Following this, the Şanlĸurfa prosecution issued a decision of lack of jurisdiction and sent the file to Diyarbakĸr State Security Court prosecution.

149. When he questioned Güney, he denied that he was involved in the killing of Kemal Kĸlĸç, denied that he had been in the organisation or involved in its activities. He had initially stated when arrested by the police that the gun had been issued by the Hizbollah organisation but he denied that statement. The police records indicated that the gun had been found on his person. To the witness, Güney denied that he had been in possession of the gun. When shown Güney's statement of 6 January 1994, he confirmed that his own signature was on it. He stated that the date was wrongly recorded, the interview taking place on 7 January 1994. The content of the statement was accurate. He confirmed that there was no fingerprint evidence linking the gun with Güney but an official record drawn up by the security forces to the effect that Güney had thrown the gun away, fled and been caught shortly afterwards. No-one else could have thrown the gun there. It was a situation of pursuit. When asked if it was his understanding that Güney had been seen to throw the pistol on to the ground in front of the apartment door, the witness said that the record was to the effect that the weapon was obtained from the defendant and he had to trust to that. When asked, the witness did not mention any other evidence that linked Güney to the killing of Kemal Kĸlĸç. When it was drawn to his attention that the police incident report of 24 December 1993 referred only to the finding of a Ceska pistol in front of the apartment entrance door, he stated that later in the court proceedings it was confirmed by those who made the report that the weapon was recovered from Güney in the course of the pursuit. He agreed that the gun was not found on Güney's person and it was a mistake when it was written that the gun was found upon him. There was nothing which made him feel it necessary to take fingerprint evidence.

150. Once he had instigated the proceedings, drawing up the bill of indictment and referring it to the court within a month on 3 February 1994, he was no longer involved in the trial conducted before State Security Court No. 3 under registration no. 94/116. His colleague Yağlĸ attended.

151. The trial was to his knowledge still proceeding at this time. He referred to an interlocutory court judgment to the effect that the injured party and their eye-witness would be heard. There was a continuing investigation in Şanlĸurfa also into the incident. He cited a letter of 24 January 1997 from the Şanlĸurfa gendarmerie as indicating that the investigation was still continuing in respect of identifying any other suspects involved in the killing. There had been no evidence in the Şanlĸurfa file linking the killing to the Hizbollah organisation.

152. As regards the Hizbollah, he agreed that in such an organisation weapons could change hands, though they would only be given to trained members. The other man arrested at the same time as Güney said that Güney's assumed name was "Hakan" and it transpired that Güney was a member of the "İlim Cemaati" faction of the Hizbollah organisation. He agreed that members of organisations would work within defined boundaries, appointing members to particular areas. In the Urfa area, for example, they operate in the "GAP province", inter alia, to obstruct State projects in which the State is working to develop the economic prosperity of the region. In that region, they appoint an official with duties and under that person, there are local divisions (eg. for collecting money, intimidating people, making bombs) with their own people. The high ranking officers move the members around and if there is a possibility that the security forces have been tipped off, they remove them to other areas. Thus, there are zones where activists and rank and file members operate for months or years.

153. The witness was not surprised that, according to the offences charged, Güney carried out fourteen offences in or around Diyarbakĸr and only one in  Urfa. Diyarbakĸr was only one or two hours away, about 180 kilometres. Batman was 250 kilometres from Urfa. He confirmed that Güney had stated to the police that he had been in Batman until two weeks before he had moved to Diyarbakĸr. It would only take up to an hour and a half to go from Batman to Urfa.

154. The Hizbollah and the PKK  had carried out actions against each other as well as against the security forces. The Hizbollah, based on an Islamic philosophy, had carried out more intensive activities in Urfa, which was recognised by some as the birth place of the Prophet. Kĸlĸç worked for Özgür Gündem which was the press organ of the PKK, which was more Marxist-Leninist. The two organisations were mutually hostile and were in a struggle for power.

Mustafa Çetin Yağlĸ

155. The witness was born in 1951 and had been present as prosecutor in the court proceedings in which Güney was an accused until 18 June 1997 when he left Diyarbakĸr. When asked about why the proceedings had not been completed yet, he referred to there being 17 defendants charged with about 30 incidents and stated that it took time to assemble the documents, establish links with other files and find and hear the witnesses. The proceedings were in the final stages. Two files were still awaited from Security Courts Nos. 2 and 4, there being links between the cases and one accused had given names and addresses of witnesses in connection with another incident. Once the missing information had been completed, the case would reach the stage where the prosecutor gave his opinion on the merits of the case, unless he considered that there was still something needed in which case he could request an extension of the investigation. The prosecutor's opinion would then be served on the defendants who would be asked what they had to say in reply. The defendants could also ask for an extension in the investigation. Then the court would deliberate to reach a decision. It could take 18 months to two years after the prosecutor's opinion for the court to reach a decision.  The prosecutor is under a duty to collect evidence for both the prosecution and the defence. It is not the prosecutor who decides the case, merely whether the evidence is such as to support a prosecution.

156. The witness stated that there had been an attack in Diyarbakĸr in which Güney was involved. He fled, dropping his gun. The gun was recovered from where he dropped it and sent for testing. The ballistics analysis established a link with the killing of Kemal Kĸlĸç. This report was the basis for the prosecution as it showed the gun had been used in 15 incidents. The officials who apprehended Güney were heard as witnesses. There was no fingerprint evidence in the file. He agreed that it was a possibility that someone else had used the gun in the incident in which Kĸlĸç had been killed months previously but it could equally be argued that Güney did use it then. No witnesses had been heard by the court as regarded the killing of Kĸlĸç. No name of any witness had been given. He had not become aware of the night watchman witness until recently when the action file was transferred. There was no defence witness from Güney indicating where he was on 18 February 1993. Güney was represented by a lawyer. No step had been taken to investigate where Güney was on 18 February since he had not said that he was anywhere else but merely denied the accusations in their entirety. No eyewitness to the killing had been determined or come forward. He recalled that, in a decision of 17 December 1996, the court had asked for various action files and for witnesses to be heard, including the night watchman and members of the Kĸlĸç family.

Other witnesses

157. The following witnesses were summoned but did not appear:

- Ahmet Fidan, the night watchman at the scene;

- Hüseyin Fidanboy, who was the public prosecutor at Şanlĸurfa;

- M. Ziyaeddin Akbulut, the Governor of Şanlĸurfa.

158. It appears that Ahmet Fidan could not be traced. At the hearing on 4 February 1997, the Government agent informed the delegates that Mr. Fidanboy's flight from Şanlĸurfa had been cancelled due to snow conditions. In respect of Mr. Akbulut who failed to appear at both the hearings of 4 February and 4 July 1997, the Government have provided a letter dated 24 January 1997 from Mr. Akbulut explaining that he could not attend on 4-5 February 1997 due to his annual leave and a letter of 12 June 1997 in which he stated, inter alia, that he had no recollection of being petitioned by Kemal Kĸlĸç, that the applicant's allegations were false, that information about the matter could be obtained from the judicial authorities and that he could not attend the hearing on 4 July 1997 due to his annual leave.

C. Relevant domestic law and practice

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

1. State of Emergency

160. Since approximately 1985, serious disturbances have raged in the South East of Turkey between security forces and members of the PKK (Workers  Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

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

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

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

2. Criminal law and procedure

163. The Turkish Criminal Code contains provisions dealing with unintentional homicide (sections 452, 459), intentional homicide (section 448) and murder (section 450).

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

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

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

166. 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  1, provides that all security forces under the command of the Regional Governor (see paragraph 161 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State.

4. Constitutional provisions on administrative liability

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

All acts or decisions of the Administration are subject to judicial review ...

The Administration shall be liable for damage caused by its own acts and measures. 

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

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

5. Civil law provisions

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

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

- that his brother, a journalist for Özgür Gündem, was killed by or with the connivance of State agents;

- that his brother was threatened and killed in order to deter the lawful exercise of his freedom of expression as a journalist;

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

- that the applicant's brother has been subject to discrimination.

B. Points at issue

172. 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 10 of the Convention;

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

- whether there has been a violation of Article 14 of the Convention in conjunction with any provision of the Convention.

C. The evaluation of the evidence

173. Before dealing with the applicant's allegations under specific Articles of the Convention, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect.

i. There have to date been no judicial findings of facts on the domestic level as regards the killing of Kemal Kĸlĸç on 18 February 1993. While there are pending proceedings against the alleged perpetrator, these have been pending for more than four years since February 1994 without any sign of the first instance examination of the case terminating in the near future.  The Commission has accordingly based its findings on the evidence given orally before its Delegates and submitted in writing in the course of the proceedings; in this assessment the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and in addition the conduct of the Parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25 p. 65 para. 161).

ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters: 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 particularly regrets the absence of a thorough domestic judicial examination or other independent investigation of the events in question. It is  aware of its own limitations 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 compelling powers as regards witnesses. In the present case, while seven witnesses were summoned to appear, only four in fact gave evidence before the Commission's Delegates. Significantly, Mr. Akbulut, the Governor of Şanlĸurfa, failed to appear, though summoned on two occasions, no satisfactory reason for his absence being provided by the Government. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant testimony and evidence. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1. General background

174. Since approximately 1985, a violent conflict has been conducted in the south-eastern region of Turkey, between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Kurdish Workers' Party). According to the Government, the conflict by 1996 had claimed the lives of 4,036 civilians and 3,884 members of the security forces.

175. At the time of events in issue in this case, ten of the eleven provinces of south-eastern Turkey had been under emergency rule since 1987.

176. Kemal Kĸlĸç was a journalist working for the Özgür Gündem newspaper in Şanlĸurfa in the state of emergency area. He had worked there for about eighteen months before his death on 18 February 1993. Özgür Gündem was a daily newspaper which was published in İstanbul from 30 May 1992, with a national circulation of some thousand copies and a further international circulation. According to the representatives of the owners of the newspaper, it was a Turkish language publication, seeking to reflect Turkish Kurdish opinion. It had been subject to numerous prosecutions on grounds that it, inter alia, published the declarations of the PKK and disseminated separatist propaganda. On 3 December 1993, the police in İstanbul carried out an operation on the newspaper's headquarters, carrying out a search and taking the employees into detention. On 5 April 1994, an indictment was issued, charging 13 persons, including editors, journalists and workers at the newspaper, with being members of the PKK and rendering the PKK assistance and making propaganda on its behalf. In or about April 1994, Özgür Gündem ceased publication, and was succeeded by another newspaper, Özgür Ülke. The Özgür Ülke's headquarters in İstanbul and its office in Ankara were bombed on 3 December 1994.

177. In application No. 23144/93 Ersöz and others v. Turkey, declared admissible on 20 October 1995, the applicants, who were editors and owners of Özgür Gündem, claim that the Government of Turkey, directly or indirectly, sought to hinder, prevent and render impossible the production and distribution of Özgür Gündem. This was allegedly carried, inter alia:

- by encouragement of or acquiescence to unlawful killings and forced disappearances;

- by failure and refusal to provide any or any adequate protection for journalists and distributors when their lives were clearly in danger, and despite requests to do so;

- by harassment and intimidation of journalists and distributors;

- by means of unjustified legal proceedings.

178. The Government deny these allegations.

179. The Commission recalls that, in the case of Yaşa v. Turkey (No. 22495/93 Comm. Rep. 8.4.97, Eur. Court HR, judgment of 2 September 1998, to be published in Reports 1998) which concerned the wounding of an applicant and the killing of his uncle who both were involved in the sale of the Özgür Gündem newspaper, it found that the owner of the newspaper, Yaşar Kaya, had petitioned on 12 November 1992 the Prime Minister, the deputy Prime Minister and the Minister responsible for the press alleging persecution against the newspaper, including the killing of various journalists and referring to the threats against the lives of distributors and sellers, particularly in the emergency region. It noted in the context of that case that the Government had not denied that any of the incidents referred to, namely, killings, injuries, disappearances of persons and damage to property connected to Özgür Gündem, had occurred (paras. 52-59 and also para. 106 of the Court's judgment, op. cit.). While many similar factual allegations raised in the Ersöz case are still being examined on the merits , the Commission notes that it is still not in dispute that a number of journalists who had worked for Özgür Gündem died as a result of unknown perpetrator killings.

180. The applicant submits that, against this background and in light of the facts of this case, the Şanlĸurfa authorities were or should have been aware that persons working for Özgür Gündem, in particular journalists such as Kemal Kĸlĸç, were at risk of attack. The Commission recalls that in his evidence before the Delegates Captain Kargĸlĸ stated that he had not heard that Kemal Kĸlĸç had requested protection for newspaper workers until after Kemal Kĸlĸç was killed nor had he heard that journalists were under threat. While he referred to protection being organised for the distribution of newspapers generally, he did recall at one point that certain newspapers, naming Aydĸnlĸk and Özgür Gündem, were having difficulties. Further, according to the Government submissions in the Ersöz case, following a faxed message on 2 December 1992 from Merdan Yanardağ, the editor of Özgür Gündem to the Diyarbakĸr police requesting security measures for the distribution of Özgür Gündem, the employees of two companies (Birleşik Basĸn Dağĸtĸm A.Ş. and Gameda A.Ş.) dealing with distribution were escorted by the security officers from the border of Şanlĸurfa province to the distribution stores.

181. In his petition of 23 December 1992 (paras. 63-64), Kemal Kĸlĸç brought to the attention of the Governor of Şanlĸurfa the concerns of those working for Özgür Gündem in that city that they were at risk. The Government have also not denied that persons at the newspaper office in Şanlĸurfa contacted the police at this time passing on information about threats being made to newsagents selling Özgür Gündem (see paras. 59-62). However, the request of Kemal Kĸlĸç for protection for himself and other persons involved with the newspaper office was rejected by the Governor of Şanlĸurfa who denied that any protection was being given to the newspaper elsewhere in the province or that there had been any question of attacks or threats on distributors anywhere. This response conflicts with the fact that from December 1992 the Diyarbakĸr police were, according to the Government, in consultation about measures of protection and also with Captain Kargĸlĸ's recollection of the situation.

182. The Commission also notes that in his press release of 11 January 1993 Kemal Kĸlĸç made detailed allegations as to which newsstands had been subject to arson attacks and named persons who had been threatened. While Kemal Kĸlĸç was subject to a charge for insulting the Governor in the course of that press release, it is not apparent that any step was taken to verify or investigate the serious claims that were being made. The Commission regrets that it did not have the opportunity to hear the testimony of Mr. Ziyaeddin Akbulut, the Governor of Şanlĸurfa, who would have been able to shed light on what steps he took in response to the newspaper's claims and the information which was available to the authorities. This has hindered the Commission in its task of establishing the facts of this case. It is not satisfied with explanations for the Governor's failure to give evidence on two occasions before the Delegates (see para. 158). In this respect, the Commission considers that the Government have failed to comply with their obligation under Article 28 para. 1(a) to furnish the Commission with all necessary facilities for the ascertaining of the facts of the case. In the absence of this witness, the Commission also draws certain inferences supporting the applicant's allegations that no or no effective investigations were in fact made in response to Kemal Kĸlĸç's claims.

183. The Commission finds that by February 1993 it was known to the authorities in Şanlĸurfa that Özgür Gündem, and persons associated with it, considered that they were under harassment and threat of attack. It also finds that the claims made by Özgür Gündem at this time as regards attacks and incidents and the existence of a risk to personnel linked to the newspaper had a factual foundation.

2. Events related to the killing of Kemal Kĸlĸç on 18 February 1993

184. The Commission recalls that, according to the applicant, Kemal Kĸlĸç told his father that he had been threatened that he would be killed if he continued working as a journalist and did not cease his union activities. He also stated that his brother had told his friends that he was being followed by a car from the National Intelligence Agency. After his brother died, the applicant stated that villagers who had shops in the city of Şanlĸurfa told him that they had seen a white car following his brother and that a white car had been seen coming to the bus station at the same time as his brother. There had also been, according to the applicant, an incident one evening when a white Renault had come into the village and men had knocked on the door of the applicant's father's house calling for his brother. It appears that these matters were not reported to the authorities at the time. The Government have not however disputed that Kemal Kĸlĸç was subject to threats before his death or that he was being followed by persons using a white Renault.

185. The facts surrounding the events on the evening of 18 February are essentially not in dispute. In this respect, evidence was gathered by the authorities. It is established that at about 17.00 hours Kemal Kĸlĸç left his work and at about 17.30 hours caught the Şanlĸurfa-Akçakale coach from Kuyubaşĸ. Shortly before the coach reached the junction of the main road with the village road to Külünçe, the coach was overtaken by a white Renault car which turned into the village road, turned round and parked, with its headlights off. This was at about 18.20 hours. Kemal Kĸlĸç was the only passenger to get off the bus at the Külünçe junction. The watchman Ahmet Fidan at a nearby construction site heard argument and a cry for help. There were two pistol shots. Then the white Renault car drove off in the direction of Şanlĸurfa. The watchman found a body lying in the road and ran to the nearby petrol station to report the murder to the gendarmes.

186. The Commission recalls that the applicant has given further details of the incident, which he states that his father was told by Ahmet Fidan the day after the killing. In particular, he claims that Ahmet Fidan noted the registration number of the Renault car as 63 EO 443 and recalled that there were four persons in the Renault car, who tried to drag Kemal Kĸlĸç into the car before they shot him. These details do not appear in the statement taken from Ahmet Fidan by the gendarmes on the evening of the incident. Indeed the statement indicates that it was dark and that he could not see much of what was happening. Captain Kargĸlĸ was also doubtful whether at that time of the evening the watchman would have been able to see the registration plate and emphasised that this was a crucial point which they had specifically put to the night watchman who had denied having any further information. The Commission is hampered by the fact that Ahmet Fidan did not appear before its Delegates to give his testimony. But in the absence of convincing first hand evidence to the contrary, it accepts the testimony of Captain Kargĸlĸ that the night watchman did not give this information to the authorities. Nor can it be regarded as established that the car in fact had this registration number. It notes the Government's contention based on a document in the investigation file that the number could not exist in Turkey (para. 90) as it contained an "O". As the applicant points out this is hard to reconcile, inter alia, with another document in the file which records the car of the public prosecutor as 63 TO 679 (the autopsy report referred to at para. 73). The Commission is however unable to resolve these contradictions on the basis of the material before it.

187. The applicant has submitted that it was undercover security forces who were involved in the killing. He relies on a number of elements:

- the fact that the authorities regarded Özgür Gündem as the mouthpiece of the PKK;

- the evidence that, prior to the killing, persons stating that they were from the Security Directorate were going around threatening newspaper sellers (paras. 58-62);

- the fact that the persons following Kemal Kĸlĸç acted openly and were able to move freely;

- the lack of any response by the police or Governor to complaints of harassment and the request for protection;

- the assertion that it was a matter of notoriety that white Renaults were used as unmarked vehicles by plain clothed forces;

- the publications by international and non-governmental organisations suggesting that extra-judicial killings took place in Turkey (para. 52) and domestic reports issuing from various Turkish authorities which also support allegations of unlawful actions by the security forces, including assassinations (paras. 109-119). In particular, the applicant relies on the Susurluk report (see summary at Annex II).

188. The Commission notes that the first four elements only constitute indications consistent with the allegation but do not involve any direct evidence linking any State official with the killing of Kemal Kĸlĸç. As regards the fifth element, the applicant has not provided any evidence to support the assertion that white Renaults were used as unmarked police vehicles. As regards the last element, the Commission is aware that grave allegations about extra-judicial executions have been the subject of United Nations and NGO scrutiny and that Turkey has come under criticism from various organs. Even assuming that these reports could be regarded as disclosing the existence of a strong suspicion that extra-judicial killings had taken place, they do not provide any basis for the Commission to find that State agents or persons acting on their behalf or with their connivance had killed Kemal Kĸlĸç in particular.

189. The Commission has examined carefully the report issued by the Turkish Grand National Assembly relied on by the applicant (paras. 109-112) and the Susurluk report (paras. 113-118). It observes that steps have been taken to investigate allegations of abuse of power and unlawful activities in the south-east and to make public the critical findings. While it is highly disquieting that these reports indicate that State agents and other individuals acted with impunity and outside the law in pursuit of their own interests and the perceived interests of the State, there is no concrete fact adverted to which could constitute proof of wrongdoing by a State agent in this particular case. The statement in the Susurluk report that implies that Musa Anter was killed with the knowledge or involvement of State officials and the statement that journalists also had been killed casts very strong suspicion on the case of Kemal Kĸlĸç. However, the Commission considers that there is no evidence arising out of the circumstances of the killing of Kemal Kĸlĸç or the reports referred to which would allow any finding as to the identity of his killers to the requisite standard of proof beyond reasonable doubt.

3. Investigation by the authorities

i. Investigation into the killing at Şanlĸurfa

190. As regards the investigation carried out by the authorities into the killing at Şanlĸurfa, there are a number of disputes of fact.

191. The applicant alleges that the gendarmes were late at the scene of the crime arriving after him and his family; that the gendarmes were casual about the immediate investigation at the scene, inter alia, waiting until the public prosecutor arrived to take any steps; that they were careless in handling the evidence and  that they did not seriously pursue the investigation. In particular, he disputes the evidence of Captain Kargĸlĸ that he took photographs of the scene or came back for further investigations of the scene the next day and submits that the concern of the gendarmes in searching the applicant's father's house seemed to be to find evidence that Kemal Kĸlĸç was involved with the PKK.

192. The Commission finds that the gendarmes arrived at the scene of the killing shortly after it was reported to them. It notes that in his statement of 1 March 1993 the applicant stated that the gendarmes were there when he and others of his family arrived, a version with which Captain Kargĸlĸ concurred. In his oral testimony, the applicant said they arrived five minutes after he did. In any event, it is not apparent that there was any lack of expedition in the response to the report of the killing.

193. The Commission also finds no significant indication of negligence in the conduct of the investigation at the scene. There is nothing sinister in the apparent procedure of the gendarmes which was to wait for the arrival of the public prosecutor before taking physical steps in regard to the evidence eg. removing items on or near the body. The testimony of Captain Kargĸlĸ as to the necessity to preserve the scene and to act under the public prosecutor's instructions was on the whole convincing.

194. The Commission notes that the cartridges, the rope and tapes on the body and a piece of paper were taken as evidence from the scene. A forensic examination was however only carried out on the first. Captain Kargĸlĸ did not demur that no particular steps were taken as regarded preserving, or testing for fingerprint evidence on, the rope  or pieces of tape, explaining that in his view the bloodstains rendered forensic examination useless. Sketches were made at the scene of the position of the body and the location. As regards the photographs, the Commission finds no basis on which to discount Captain Kargĸlĸ's evidence on this point. Similarly, it accepts his evidence that he made an unsuccessful effort to look for tyre marks and that he returned to the scene the next day for further investigation. The fact that no villager told the applicant that the Captain had been seen doing so does not undermine the reliability of the Captain's evidence on this point.

195. Efforts were also made by the gendarmes to locate possible witnesses. Statements were taken from a number of persons - the applicant's father and three of his brothers, the night watchman Ahmet Fidan, the bus driver and his assistant and two of the passengers on the bus. A search, carried  out pursuant to a warrant, was conducted at the house where Kemal Kĸlĸç had lived. The Commission notes that the search report recorded that the purpose of the search was to look for clues which might shed light on the killing. There is no evidence which would indicate that this was not the purpose. The fact that certain items - books, papers, a photograph of some-one holding a weapon and Kurdish cassettes - were taken for examination is not, in the Commission's opinion, indicative of any ulterior purpose but entirely consistent with investigating any links of Kemal Kĸlĸç's which could be relevant to the killing.

196. It is not however apparent that any particular investigative steps relevant to the case were carried out in Şanlĸurfa after 26 February 1993, notwithstanding the statement by Captain Kargĸlĸ in his letter  of 15 March 1993 to the public prosecutor that the investigation was continuing along many different lines and the decision of the public prosecutor of 12 August 1993 to continue the search until the expiry of the statutory limitation period, both of which appear to repeat standard formulae.

197. The investigation also did not include any attempt to widen the enquiry to investigate any possible involvement of persons targeting journalists on behalf of the other State agencies. The Commission notes that the gendarme captain was not informed by the relatives of their suspicions directly, nor was he given vital information allegedly derived from the eye-witness Ahmet Fidan. However, the Commission finds that it cannot accept his claimed ignorance of Kemal Kĸlĸç's own belief that Özgür Gündem was being deliberately targeted. The Captain did reluctantly admit to hearing that there had been some difficulties by various newspapers but initially denied having heard anything about journalists having been threatened. He did recall seeing Kemal Kĸlĸç's press release and his request for protection to the Governor. This did not however lead him to any particular measures of investigation or enquiry. Indeed he stated that he saw no need to investigate these matters.

ii. The indictment and proceedings against Hüseyin Güney as the suspected perpetrator of the killing of Kemal Kĸlĸç

198. Since the case was declared admissible, the Government have provided information that a suspect member of the Hizbollah organisation, called Hüseyin Güney, has been arrested, charged and is currently being tried in respect of incidents, which include the killing  of Kemal Kĸlĸç. It appears that Hüseyin Güney was taken into custody by the police  on 24 December 1993 and on 3 February 1994 appeared on an indictment with 16 other defendants, in which the offence is described as membership of the outlawed Hizbollah organisation, carrying out activities intended to separate part of the country from the sovereignty of the State and form a Kurdish state based on Islam. Fifteen incidents of killings (including the killing of Kemal Kĸlĸç) and injuries are listed under Hüseyin Güney's name on the basis of the forensic matching of a Ceska 9mm pistol allegedly found on him. The proceedings against Hüseyin Güney were still pending in July 1997 and the Commission has not been informed that they have terminated. The public prosecutor in the case anticipated that the proceedings would last at least a further 18 months to two years from that point.

199. The Government rely on these proceedings as indicating that  criminal justice is taking a normal and effective course in respect of the killing of Kemal Kĸlĸç. The applicant submits that the evidence against Hüseyin Güney relies wholly on the ballistics evidence concerning a gun which it is not in fact established had anything to do with him and that the prosecution authorities have done nothing to seek to obtain any corroborative evidence, for example, linking him to the area of the killing at the relevant time. He points out that the court has not summoned any witness relevant to the killing of Kemal Kĸlĸç even though the proceedings have been pending for more than four years. He states that the effect of the proceedings however ensures that no further steps are taken to identify any other suspect in respect of the killing.

200. The Commission notes that the evidence linking Hüseyin Güney with the killing of Kemal Kĸlĸç is the ballistics report concerning the gun found at the time of his arrest and his statements to the police that he was a member of Hizbollah and admitting to having used the gun or thrown it away (paras. 103 and 107). In respect of the latter, the Commission notes that before the public prosecutor Hüseyin Güney denied having made the alleged confessions. Further, the statement to the police indicates that the gun was obtained from another member of the group "Hasan" a day before the incident. There is no material in his alleged confessions to support the contention that Hüseyin Güney used the gun in any incident save that of 24 December 1993. Indeed, his evidence was that until two weeks before the incident when he came to Diyarbakĸr he lived in Batman. It is noticeable that all the incidents in which the gun was used, save the killing of Kemal Kĸlĸç near Şanlĸurfa, took place in Diyarbakĸr.

201. As regards the reliance of the prosecution on the fact that the gun was found on Hüseyin Güney,  it appears from the investigation and incident report drawn up by the police after the incident on 24 December 1993 (paras. 96-98) that the gun was found abandoned at the entrance to the apartment block in which Hüseyin Güney was later found and arrested. The statement in the report that it was understood that this was his gun is obscure. The public prosecutors who gave evidence before the Delegates appeared to take the view that the police assertions  linking the gun with Güney arose out of a situation of hot pursuit and had to be trusted. However it is not stated in the report that the police witnessed Güney throw down the gun. Further, when police officers came before the court, they merely confirmed that the contents of the report were correct and that they had nothing to add. No further questions were put to them by the public prosecutor or members of the court, and from the text of the court minutes, it appears that the defendants and defence counsel were not present in the court room at this time. Hüseyin Güney maintained in his various appearances before the court that he had nothing to do with the gun.  A forensic swab on his hands testing for traces of firing residue was negative. No step was taken by way of fingerprint evidence to establish whether he had handled the gun. The prosecutor Cafer Tüfekçi saw no reason to seek such evidence.

202. In any event, the Commission would comment that, whether or not the gun may be proved to the satisfaction of the State Security Court to have been used by Hüseyin Güney on 24 December 1993 in Diyarbakĸr, there is no other item of evidence linking him with the commission of any other of the crimes in which the gun was used, in particular that of the killing of Kemal Kĸlĸç in Şanlĸurfa. This absence is striking in view of the fact that the public prosecutor Cafer Tüfekçi confirmed to the Delegates that it was not unusual in terrorist groups for guns to be circulated amongst members.

203. Finally, the Commission notes that it was not until 17 December 1996 that the court made a request for the action file concerning the killing of Kemal Kĸlĸç. While the prosecutor Yağlĸ informed the Delegates that on this date the court also ordered that witnesses relevant to the case, such as members of the family and the night watchman be summoned, his recollection on this point is not supported by the signed minutes of the court session. The Commission does not find it established therefore that any witnesses concerning the Kĸlĸç case have been summoned or heard in the proceedings.

D. As regards Article 2 of the Convention

204. Article 2 of the Convention provides:

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

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

a. in defence of any person from unlawful violence;

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

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

205. The applicant submits that his brother Kemal Kĸlĸç was killed either by undercover agents of the State or by members of the Hizbollah, acting under express or implied instructions and to whom the State gave explicit or tacit support, including training and equipment. He was intentionally killed because of his work as a journalist with Özgür Gündem.

206. The applicant also submits that prior to his death his brother was subject to threats and requested protection in circumstances which indicated that there was a real and imminent risk that he would be killed. The failure to provide him with protection amounted to a wilful disregard of the obligation to protect his life.

207. Finally, the applicant submits that the Government failed to comply with the procedural requirements of Article 2 to provide an effective investigation into the circumstances of the killing. He submits that the investigation at the scene of the murder was negligent in the way the evidence was handled and in that there was a failure to take important and necessary measures, such as testing for fingerprints and fibres, further analysis of the bite-mark, the taking of statements from newsagents identified as having been under threat prior to the incident, or from villagers or journalists who might have seen the white Renault on previous occasions. He points out that the investigation only really lasted for eight days before it was effectively left dormant. The applicant further submits in this context that there was no effort to investigate Kemal Kĸlĸç's prior request for protection from the Governor, there being no evidence that he did anything in the face of serious allegations and a known background of a pattern of attacks against Özgür Gündem journalists, distributors and vendors.

208. The Government deny the applicant's complaints under Article 2. They appear to rely on the pending proceedings against Hüseyin Güney as indicating that the investigative processes were competently and efficiently handled and showing that the killing of Kemal Kĸlĸç was carried out by a proscribed organisation in a part of Turkey, where separatist terrorist groups direct violent acts against each other as well as the State. No detailed submissions on the merits have been forthcoming.

As regards State responsibility for the killing of Kemal Kĸlĸç

209. The Commission recalls its finding above (para. 189) that it is unable to determine who killed Kemal Kĸlĸç. It is not established that it was a member of the security services or contra-guerilla agents acting on their behalf. Nor is there any direct evidence before the Commission linking Hüseyin Güney, an alleged member of the Hizbollah organisation, with the shooting of Kemal Kĸlĸç (para. 202).

210. However, this does not exclude the responsibility of the Government. The Commission has examined in addition whether the circumstances disclose any failure on the part of the Government to fulfil any positive obligation under Article 2 to protect the right to life.

211. The Commission recalls that Article 2 of the Convention, 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  must be applied so as to make its safeguards practical and effective (Eur. Court HR, McCann and others judgment of 27 September 1995, Series A no. 324, pp. 45-46, paras. 146-147).

212. Article 2 extends to but is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. The first sentence of Article 2 para. 1 also imposes a positive obligation on Contracting States that the right to life be protected by law.  In earlier cases, the Commission considered that this may include an obligation to take appropriate steps to safeguard life (see e.g. No. 7154/75, Dec. 12.7.78, D.R. 14 p. 31).

213. As a minimum, the Commission considers that a Contracting State is under an obligation to provide a framework of law which generally prohibits the taking of life and to ensure the necessary structures to enforce these prohibitions, including the provision of a police force with responsibility for investigating and suppressing infringements. This does not impose a requirement that a State must necessarily succeed in locating and prosecuting perpetrators of fatal or life-threatening attacks. It does impose a requirement that the investigation undertaken be effective:

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

214. The Commission would emphasise that effective investigation procedures and enforcement of criminal law prohibitions in respect of events which have occurred  provide an indispensable safeguard.

215. The Commission is also of the opinion that for Article 2 to be given practical force it must be interpreted as requiring preventive steps to be taken to protect life from known and avoidable dangers. However, the extent of this obligation will vary inevitably having regard to the source and degree of danger and the means available to combat it. Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention.

216. The extent of the obligation to take preventive steps may  also increase in relation to the immediacy of the risk to life. Where there is a real and imminent risk to life to an identified person or group of persons, a failure by State authorities to take appropriate steps may disclose a violation of the right to protection of life by law. In order to establish such a failure, it will not be sufficient to point to mistakes or oversights or that more effective steps might have been taken. In the Commission's view, there must be an element of gross dereliction or wilful disregard of the duties imposed by law such as  to conflict fundamentally with the essence of the guarantee secured by Article 2 of the Convention (see No. 23452/94, Osman and Osman v. UK, Comm. Rep. 1.7.97, pending before the Court, paras. 88-92).

217. The Commission has therefore examined whether the State has in this case protected the right to life of Kemal Kĸlĸç by the preventative and protective framework in place at the time of his death and by the investigative procedures implemented after his death.

a. The preventative and protective structures

218. The Commission observes that Turkish law prohibits murder and that there are police and gendarmerie forces which have functions to prevent and investigate crime, under the supervision of judicial branch of public prosecutors. There are also courts which apply the provisions of the criminal law, in trying, convicting and sentencing offenders. However, where offences are committed by State officials, in certain circumstances the public prosecutor has no competence to proceed but decisions to prosecute are taken by administrative councils (see para. 166). Where it is considered that an offence is linked to terrorist or separatist elements, the jurisdiction of the ordinary courts is also removed and the cases determined by State Security Courts (para. 166).

219. The question remains whether this system functions in practice in respect of alleged killings perpetrated by State officials or by persons acting on their behalf.

220. The Commission recalls, firstly, that the administrative councils which have the jurisdiction to investigate allegations that killings have been committed by members of the security forces are comprised of civil servants (para. 166). In two cases, concerning alleged killings by the security forces, it has found that the members of the administrative councils who investigated the cases did not present the external signs of independence, that they were not safe from being removed and that they did not enjoy the benefit of legal guarantees protecting them against pressure from their superiors (see Nos. 21593/93, Güleç v. Turkey, Comm. Rep. 17.4.97, para. 226 and 21594/93 Oğur v. Turkey, Comm. Rep. 30.10.97, para. 136 pending before the Court). It noted in the Oğur case (op. cit., para. 140) that a member of an administrative council, who gave evidence before the Commission's Delegates, had stated that the members of the council had no effective freedom of decision and were bound to accept the views of the Governor. The Commission found in both cases that this procedure disclosed a breach of the State's duty to "protect the right to life by law", in that the investigations into the deaths were not carried out by independent bodies, were not thorough and took place without the party who had filed the criminal complaint being able to take part in them. In its judgment in the Güleç case (Eur. Court HR, judgment of 27 July 1998, paras. 80 and 82), the Court agreed that the administrative council did not provide an independent, investigative mechanism in respect of an alleged killing by the security forces.

221. The Commission has had careful regard in this context to the Susurluk report relied on by the applicant. It observes that this report, while expressly stated not to be an investigative or legal report, was drawn up under the instructions of the Prime Minister who has made the majority of it public. It is therefore a document of some significance. It does not purport to attribute responsibility or establish facts but describes and analyses certain problems brought to public attention. On this basis, it states that certain elements, particularly in the south-east, were operating outside the law and using methods which included extra-judicial executions of persons suspected of supporting the PKK. It also states that this was known to the relevant authorities. The report lends strong support to the allegations that State agencies, such as JÄ°TEM , were implicated in the planned elimination of alleged PKK sympathisers, including Musa Anter and other journalists.

222. It is of considerable concern that, according to the report, the rule of law ceased to apply. The fact that the authorities were aware of and connived at unlawful acts, including murder, and that JÄ°TEM and the groups acting under their auspices are described as operating outside the military hierarchy substantiates allegations that the persons who carried out these acts were unaccountable to the normal processes of criminal justice.

223. The Commission has investigated over forty cases relating to incidents in the south-east over the period 1992-1994. It has heard evidence from over 35 public prosecutors, over 29 police officers and over 64 gendarmes in fact-finding missions. In the investigated cases in which to date it has made findings on the merits, it is to be noted that no prosecutions have been brought in respect of alleged unlawful conduct by persons acting under the responsibility of the State. Problems of inadequate and superficial investigations have been a common feature, including a tendency for the authorities to attribute blame for killings, disappearances or damage to property on terrorist groups and to ignore complaints or evidence that security forces or State agents were incriminated in events. The Commission has repeatedly found that public prosecutors have failed to pursue investigations of complaints that members of the security forces have acted unlawfully, disclosing an attitude of restraint which gives the security forces a wide margin of unaccountability (see eg. Aydĸn v. Turkey, Comm. Rep. 7.3.96, para. 202, Eur. Court HR, judgment of 25 September 1997, Reports 1997-VI). Specific failings identified include the ignoring of visible evidence, failure to question officers named as suspects, failure to verify custody records, failure to identify security force members involved in incidents and the discounting of evidence which supports allegations of security force involvement.  The Commission has consistently observed a readiness on the part of the authorities to place the blame for unlawful acts on PKK terrorists, even where there was no substantiated evidence as to PKK responsibility (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, to be cited in Reports 1998, para. 141, Comm. Rep. 5.12.96, para. 228).

224. The Commission recalls in particular that in four cases where there have been allegations that security forces have used lethal force, there have been findings of violations, both regarding the failure to comply with the procedural requirements under Article 2 of the Convention to carry out effective investigations and the lack of effective remedy under Article 13 of the Convention.  In Mehmet Kaya v. Turkey, the Commission noted that the authorities took it for granted that the applicant's brother had been killed by the PKK and did not seriously consider any other alternative (Eur. Court HR, judgment of 19 February 1998, Reports 1998-I, Comm. Rep. 24.10.96, para. 195 - see also the Court's judgment at para. 108). In Ergi v. Turkey, where the Commission found that the applicant's sister had been killed during an operation by the security forces which failed, through adequate planning and control, to respect the right to life, it noted that no independent enquiry had been made by the public prosecutor into the circumstances of the death, which had been attributed on the basis of no substantiated evidence to the PKK (Eur. Court HR, judgment of  28 July 1998, to be cited in Reports 1998, Comm. Rep. 20.5.97, paras. 152-154 -see also  Court's judgment paras. 82-85). In Güleç v. Turkey, where the applicant's son was killed during a demonstration,  the Commission found that the investigation was inadequate, ignoring evidence that the son had been hit by bullets fired from an armoured vehicle of the security forces (Eur. Court HR, judgment of 27 July 1998, to be cited in Reports 1998, Comm. Rep. 17.4.97, paras. 227 and 237 - see also Court's judgment at paras. 79-80). In Oğur v. Turkey, where the applicant's son was killed by security forces at a mine, the Commission found the authorities failed to seek to identify the members of the security forces involved in the incident or make enquiry from the security personnel as to what occurred (No. 21549/93, Comm. Rep. 30.10.97, paras. 137-139, pending before the Court).

225. The Commission concludes that during the period relevant to this application, namely, during and about 1993, there was a consistent disregard of allegations made of involvement of security forces or State agents in unlawful conduct. Public prosecutors appeared unwilling, or unable, to pursue enquiries about matters involving the police or gendarmerie, with the result, inter alia, that assertions by the security forces attributing deaths or disappearances or destruction of property to the PKK, were accepted without seeking independent verification or substantiation.

226. The Commission observes that the functioning of the court system also gives rise to legitimate doubts as regards the independence and impartiality of the State Security Courts, which have jurisdiction to try offences purported to be carried out by terrorists. In practice, it appears that some killings by unknown perpetrators have been considered as falling under their jurisdiction also.  The main distinguishing feature of these courts which were set up pursuant to the Constitution to deal with offences affecting Turkey s territorial integrity and national unity, its democratic regime and its State security, is that, although they are non-military courts, one of their judges is always a member of the Military Legal Service. In finding a breach of Article 6 of the Convention in İncal v. Turkey (Eur. Court HR, judgment of 9 June 1998, to be cited in Reports 1998), the Court held that in cases concerning civilians the participation of a military member may give rise to legitimate fears that the State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. This discloses a significant procedural defect which potentially applies to the numerous cases in which suspects of alleged terrorist and separatist offences have been tried by the State Security Courts.

227. Having regard to the above factors, the Commission finds that the legal structures in the south-east of Turkey during the relevant period in this case, namely, in or about 1993, operated in such a manner that security force personnel and others acting under their control or with their acquiescence were often unaccountable for their actions. It considers that this situation was incompatible with the rule of law which should apply in a democratic state respecting fundamental human rights and freedoms.

228. This finding is not however sufficient by itself to found a violation of Article 2 of the Convention, which requires that an applicant demonstrate that he is himself a victim of the breach alleged. There must be a direct connection between the general failings above and the particular circumstances of the case.

229. The Commission notes in this case the following:

- its finding above that the applicant's brother fell into a category of people who were at risk from unlawful violence (para. 183);

- its finding that there is strong suspicion, supported by some evidence, to substantiate the  allegations that risk derived from targeting by State officials or those acting on their behalf or with their connivance or acquiescence (para. 189);

- its finding that the applicant had requested protection for himself as well as others working for Özgür Gundem (para. 181);

- its finding that the authorities in Şanlĸurfa were aware that the applicant's brother and those working for Özgür Gündem considered that they were at risk and required protection (para. 183);

- its finding that the authorities took no steps to investigate the extent of the alleged risks to Özgür Gündem personnel (para. 182).

230. The Commission consequently concludes that the applicant's brother fell into a category of people who were at risk from unlawful violence from targeting by State officials or those acting on their behalf or with their connivance or acquiescence. In respect of this risk, the applicant's brother did not enjoy the guarantees of protection required by the rule of law. In the absence of information as to the nature or extent of the threat to the newspaper or its staff, the Commission does not consider the authorities can be held to have omitted any particular, necessary protective measures. This however highlights the fact that without effective investigation into the attacks no adequate or appropriate preventive measures could be taken. It is to be remarked that, while allegations of State-sanctioned contra-terrorist groups, the misuse of confessors and the implication of State officials in unknown perpetrator killings were current from an early stage, the responsible State authorities ignored or discounted them, consistently laying the blame on PKK or other terrorist groups.

b. The investigation after the killing of Kemal Kĸlĸç

231. The Commission notes that the investigation included the necessary, initial measures and that the gendarme captain showed a responsible attitude to seeking eye-witnesses and other direct evidence at the scene of the crime (see paras. 193-195). However, it notes that the investigation was active for less than one month (18 February to 15 March 1993). It also did not include any attempt to widen the enquiry to investigate any possible involvement of persons targeting journalists by  or on behalf of State agents.

232. The Commission is also not satisfied that the prosecution of a suspect in respect of the killing compensates for these shortcomings but casts further doubt on the efficacy of the investigation and judicial processes. It notes the length of the trial, which has not come to a conclusion after more than four and a half years. It recalls its finding (para. 202) that there is no direct evidence in the investigation file provided to the Commission which links the suspect currently on trial  with the use of the gun on 18 February 1993 in Şanlĸurfa.  While the public prosecutor Cafer Tüfekçi referred the Delegates to a letter of 24 January 1997 from the Şanlĸurfa gendarmes, who stated that the investigation was continuing in respect of identifying any other suspects involved in the killing, the Commission recalls that Captain Kargĸlĸ had no hesitation in stating that on receiving the news of the arrest of a suspect he closed the file. There is no evidence before the Commission concerning any investigative steps being taken after that time. The Commission accordingly finds that the prosecution of Hüseyin Güney has had the practical result of closing the investigation in the case.

233. The Commission finds that in light of these fundamental defects the investigation and judicial proceedings cannot be regarded as providing effective procedural safeguards under Article 2 of the Convention.

c. Concluding findings

234. The Commission finds on the facts of this case, which disclose a lack of effective guarantees against unlawful conduct by State agents, that the State, through their failure to take investigative measures or otherwise respond to the concerns of Kemal Kĸlĸç about the apparent pattern of attacks on persons connected with Özgür Gündem and through the defects in the investigative and judicial procedures carried out after his death, did not comply with their positive obligation to protect Kemal Kĸlĸç's right to life.

CONCLUSION

235. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention in relation to the death of Kemal Kĸlĸç.

E. As regards Article 10 of the Convention

236. Article 10 provides:

"1. Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

237. The applicant alleges that his brother was killed because he was a journalist. This discloses an interference with the functioning of the press which raises issues under Article 10. He refers to the concerted attacks and measures implemented by the State against the newspaper Özgür Gündem and the pro-Kurdish press as disclosing a practice of interference with the freedom of expression. He cites the report of the Human Rights Foundation of Turkey to the effect that 13 journalists were killed in 1992, 52 victims of physical attacks and many others detained or arrested. He submits that the State authorities have failed to provide protection against attack or to properly investigate the incidents.

238. The Government have made no submissions addressing the issues alleged to arise under Article 10.

239. The Commission has not found it established that the killing of the applicant's brother was carried out by a member of the security forces or other State agent. It has found that the circumstances of the case disclose a failure by the State to protect his right to life. While it has noted as part of its reasoning that the applicant's brother's role as a journalist for Özgür Gündem placed him within a category of persons at risk of attack in the south-east, it does not consider that this raises separate issues under Article 10 of the Convention. Insofar as the applicant complains that the attacks disclose a policy of suppression of the Özgür Gündem newspaper, the Commission considers that it is not called upon in this individual application to assess whether there has been an unjustified interference with the freedom of expression of the newspaper or its freedom to impart information as guaranteed under Article 10, such complaints pending examination in Application No. 23144/93 Ersöz and others v. Turkey (declared admissible on 20 October 1995).

CONCLUSION

240. The Commission concludes, by 25 votes to 3, that no separate issue arises under Article 10 of the Convention.

F. As regards Articles 6 and 13 of the Convention

241. 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, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

242. 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."

243. The applicant complained in his application of both a lack of access to court contrary to Article 6 of the Convention and a lack of effective remedies in respect of his complaints under Article 13 of the Convention. In his observations on the merits, the applicant's submissions concern solely his complaints under Article 13. He argues that there was no effective investigation into the killing of his brother. He submits that the system in the south-east fails to satisfy the requirements of Article 13 due to the lack of judicial officials with the independence and willingness to contemplate the possibility that agents of the State had violated human rights. He alleges that there are basic problems disclosed in official attitudes and practical inadequacies. In particular, as in this case, there is an assumption that anyone connected with Özgür Gündem was associated with the PKK. The applicant further submits, relying on the findings of lack of effective remedies in other cases, that violation of Article 13 occurs as a matter of practice in the south-east and thus he is a victim of an aggravated violation of this provision.

244. The Government have denied that there is any problem with remedies, relying on the pending criminal proceedings in this case.

245. Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydĸn v. Turkey judgment of 25 September 1997, Reports 1997, para. 102, Kaya v. Turkey judgment of 19 February 1998, to be reported in Reports 1998, para. 105), the  Commission has found it appropriate to examine the applicant's complaints about remedies under Article 13 of the Convention alone.

246. The Commission recalls that in concluding that there was a violation of Article 2 of the Convention, it found that the system of criminal justice in the south-east disclosed serious problems of accountability of members of the security forces and that in the particular circumstances of the case the investigation into the applicant's brother's death was inadequate. It recalls however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of Article 2 to conduct an effective investigation (Eur. Court HR, Kaya v. Turkey judgment of 19 February 1998, to be cited in Reports 1998, para. 107). Where relatives have an arguable claim that the victim has been unlawfully killed in circumstances engaging the responsibility 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 relatives to the investigatory procedure (see also, Eur. Court HR, Ergi v. Turkey, op. cit., paras. 96-98)

247. The Commission recalls its findings above on the inadequacies of the investigation, in particular, the failure to pursue any enquiry into any other possible cause of the death of Kemal Kĸlĸç (paras. 196-197). Having regard to the fact that the investigation has effectively terminated with the institution of the proceedings against Hüseyin Güney, the apparent lack of evidence incriminating Güney in the killing of Kemal Kĸlĸç, the length of time of those proceedings and the failure to call any of the members of his family or other witnesses over that period, the Commission also finds that the applicant has been denied an effective remedy against the authorities in respect of the death of his brother, and thereby access to any other available remedies at his disposal, including a claim for compensation.

248. In light of its findings above, the Commission finds it unnecessary to examine the applicant's complaints as regards an alleged practice of failure to provide effective remedies under Article 13.

CONCLUSION

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

G. 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 the killing of his brother discloses discrimination in the enjoyment of his right to life and freedom of expression, since he was killed because he was a journalist of Kurdish origin working for a pro-Kurdish newspaper. This discloses discrimination on grounds of race or ethnic origin. He also submitted in his application that the discrimination suffered by his brother was such as to disclose inhuman and degrading treatment contrary to Article 3 of the Convention.

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 and in the context of Article 14 of the Convention. However, in light of its findings above (paras. 234-5), it considers that no separate issue arises under Article 14 in conjunction with Articles 2, 3 and/or 10 of the Convention.

CONCLUSION

254. The Commission concludes, unanimously, that no separate issue arises under Article 14 of the Convention.

H. Recapitulation

255. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention (para. 235 above).

256. The Commission concludes, by 25 votes to 3, that no separate issue arises under Article 10 of the Convention (para. 240 above).

257. The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (para. 249 above).

258. The Commission concludes, unanimously, that no separate issue arises under Article 14 of the Convention (para. 256 above).

       M. DE SALVIA                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

(Or. French)

CONCURRING OPINION OF MR I. CABRAL BARRETO

Je me rallie à la conclusion selon laquelle l'Etat turc a manqué à son obligation de prendre des mesures pour empêcher l'assassinat du frère du requérant.

Le 23 décembre 1992, moins de deux mois avant son décès, la victime avait fait part au gouverneur de Sanliurfa des menaces proférées contre ceux qui travaillaient au magazine Özgur Gundem, et avait demandé protection.

La réponse fut négative.

Or, aux termes de la première phrase de l'article 2, l'Etat  a l'obligation de prendre des mesures nécessaires à la protection de la vie. S'il est vrai que l'on ne saurait déduire de cette disposition une obligation positive pour empêcher toute possibilité de violence (voir N  9348/81, déc. du 28.2.83, D.R. 32, p. 190, et N  22998/93, déc. du 14.10.96, D.R. n  87-A, p. 24), il me semble que, lorsque quelqu'un demande protection pour sa vie, l'Etat a l'obligation d'évaluer les circonstances et de prendre, par voie de conséquence, des mesures adéquates.

En l'espèce, le fait que l'Etat n'a rien fait ne me parait pas justifié.

(Or. English)

DISSENTING OPINION OF Mr L. LOUCAIDES

JOINED BY MM. S. TRECHSEL AND M.A. NOWICKI

I am unable to agree with the majority that in this case no separate issue arises under Article 10 of the Convention.  I believe the facts are such as to justify a separate finding of a breach of the right to freedom of expression.

According to the evidence before the Commission it is clear that the killing of Kemal Kĸlĸç was due to the expression of his views as a journalist working for Özgür Gündem, a pro-kurdish newspaper considered by the authorities to support the PKK.

The Commission has found it established that Kemal Kĸlĸç fell into a category of people who were at risk for unlawful violence from targeting by state officials or those acting on their behalf or with their connivance or acquiescence, because he was a journalist for Özgür Gündem.  The authorities were aware that Kemal Kĸlĸç and those working for Özgür Gündem considered that they were at risk and required protection but took no steps to investigate the extent of the alleged risks.

The Commission found that through their failure to take investigative measures or otherwise respond to the concerns of Kemal Kĸlĸç about the apparent pattern of attacks on persons connected with Özgür Gündem and through the defects in the investigative and judicial procedures carried out after his death, the state authorities did not comply with their positive obligation to protect Kemal Kĸlĸç's right to life.

I believe that the obligation of the state to take the investigative measures and other steps mentioned above did not stem solely from their positive obligation to protect the right to life of Kemal Kĸlĸç but also, from their distinct obligation to secure the right to freedom of expression of the same person who was at risk from unlawful violence because of the expression of his views as a journalist.  In other words, the positive obligation of the state to safeguard the life of Kemal Kĸlĸç had, in the light of the particular facts of this case, two dimensions.  The first related to the right to life of the person in question under Article 2 of the Convention and the second to the right of freedom of expression under Article 10 of the Convention.

Therefore the failure of the state to take the investigative measures and other steps mentioned above amounted not only to a violation of Article 2 of the Convention but also to a violation of Article 10 of the Convention.