EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22535/93

Mahmut Kaya

against

Turkey

REPORT OF THE COMMISSION

(adopted on 23 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-38) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-33) 1

C. The present Report

(paras. 34-38)              4

II. ESTABLISHMENT OF THE FACTS

(paras. 39-270) 5

A. The particular circumstances of the case

(paras. 40-53)              5

B. The evidence before the Commission

(paras. 54-258) 8

1) Documentary evidence

   (paras. 54-175) 8

2) Oral evidence

              (paras. 176-258) 31

C. Relevant domestic law and practice

(paras. 259-270) 51

III. OPINION OF THE COMMISSION

(paras. 271-400) 54

A. Complaints declared admissible

(para. 271) 54

B. Points at issue

(para. 272) 54

C. The evaluation of the evidence

(paras. 273-336) 54

D. As regards Article 2 of the Convention

(paras. 337-369) 72

CONCLUSION

(para. 370) 80

E. As regards Article 3 of the Convention

(paras. 371-381) 80

Concerning Hasan Kaya

(paras. 372-375) 80

CONCLUSION

(para. 376) 81

Concerning the applicant

(paras. 377-380) 81

CONCLUSION

(para. 381) 82

F. As regards Articles 6 and 13 of the Convention

(paras. 382-389) 82

CONCLUSION

(para. 390) 83

G. As regards Article 14 of the Convention

(paras. 391-394) 83

CONCLUSION

(para. 395) 84

H. Recapitulation

(paras. 396-400) 84

PARTLY CONCURRING AND PARTLY DISSENTING

OPINION OF Mr I.C. BARRETO 85

APPENDIX I: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF APPLICATION 84

APPENDIX II: SUMMARY OF THE SUSURLUK REPORT 94

APPENDIX III: EXTRACTS FROM "THE SECRETS OF MAJOR CEM                                                                ERSEVER                                                                                            98

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 Elazığ and born in 1958.  He is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both teachers at the University of Essex.

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

4 The applicant alleges that his brother Dr. Hasan Kaya was kidnapped, tortured and killed by or with the connivance of State agents and that there was no effective investigation, redress or remedy for his complaints. He invokes Articles 2, 3, 6, 13 and 14 of the Convention.

B. The proceedings

5 The application was introduced on 20 August 1993 and registered on 26 August 1993.

6 On 29 November 1993, the Commission decided to communicate the application to the Turkish Government

7 On 10 March 1994, the Government submitted their observations, after two extensions in the time-limit and the applicant's observations in reply and further information were submitted on 5 and 7 July and 2 August 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 3 April 1995, the Government submitted supplementary information. On 22 May 1995, after two extensions in the time-limit for that purpose, the Government submitted their observations on the merits.

11 On 7 July 1995, the Commission examined the state of proceedings in the application and decided that it should proceed to take oral evidence. It invited the parties to propose any witnesses whom they wished to be heard.

12 On 5 September 1995, the Government identified the public prosecutors relevant to the domestic investigation.

13 On 8 September 1995, the Government provided documents from the investigation file.

14 By letter dated 7 September 1995, the applicant proposed certain witnesses.

15 On 8 December 1995, the Commission granted the applicant legal aid.

16 On 20 December 1996, the Secretariat of the Commission requested the Government to assist in locating five witnesses for the purposes of serving summonses.

17 By letter dated 14 January 1997, the Government stated that it would not assist the Commission to transmit summonses in respect of witnesses who were not public officials or who were not proposed by the Government.

18 By letter dated 17 January 1997, the Delegates of the Commission repeated their request for assistance in serving summonses on five witnesses.

19 On 20 January 1997, at Strasbourg, three Delegates, Mr. G. Jörundsson, Mr B. Conforti and Mr N. Bratza, heard oral evidence from the applicant and two of his witnesses. The Government were represented by their Agent, Mr. A. Gündüz, assisted by Mr. A. Akay, Mr. M. Özmen, Ms M. Gülşen, Ms. A. Emüler, Mr A. Kaya, Mr A. Kurudal and Mr O. Sever. The applicants were represented by Ms. Françoise Hampson as counsel, assisted by Ms A. Reidy, Mr M. Şakar, Mr O. Baydemir and Mr K. Yıldız.

20 By letter dated 28 January 1997, the Government stated that they would do their best to transmit the summons to one of the five witnesses identified by the Commission; that the Commission should transmit the summons to a journalist witness itself and that it was not possible to transmit summonses to the three other witnesses since they were not known to the administration and their addresses had not been provided.

21 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 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, in particular the recent documents in the investigation file dated after May 1995 and providing explanations for the absence of certain witnesses.

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

23 By letter dated 17 March 1997, the Government provided  information concerning witnesses who had not appeared.

24 By letter dated 28 May 1997, the Secretariat reminded the Government that they had not provided documents from the investigation file dating after May 1995.

25 By letter dated 3 June 1997, the Government declined to assist the Commission in serving summonses on two witnesses who were not public officers nor proposed by the Government.

26 By letter dated 9 June 1997, the Delegates drew the attention of the Government to Article 28 para. 1(a) of the Convention and repeated their request for assistance, drawing to the attention of the Government the fact that the two witnesses had given statements to a public prosecutor.

27 By letter dated 1 July 1997, the Government stated that the two witnesses would not be present at the hearing.

28 Evidence was heard by the delegation of the Commission in Strasbourg on 5 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 Bağrıaçık. The applicants were represented by Ms F. Hampson and Ms A. Reidy, counsel, assisted by Mr M. Kaya (interpreter).

29 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. By letters dated 16 July and 22 October 1997, the Commission reminded the Government that the investigation file documents from May 1995 had not been provided.

30 Following two extensions of the time-limit until 3 February 1998, the Government submitted their final observations on the merits on 16 February 1998. This included proposals of friendly settlement.

31 By letter dated 10 April 1998, which reached the Commission on 19 May 1998, the applicant submitted his final observations.

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

33 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. An exchange of correspondence took place between 12 February 1998 and 29 July 1998. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

34 The present Report has been drawn up by the Commission in pursuance of 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

F. MARTINEZ

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

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

35 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.

36 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.

37 The Commission's decision on the admissibility of the application is attached hereto as Appendix I, the summary of the Susurluk Report  as Appendix II and extracts of Soner Yalçın's book, "The secrets of Major Cem Ersever", as Appendix III.

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

II. ESTABLISHMENT OF THE FACTS

39 The facts of the case, particularly concerning events in or about 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

40 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.

41 The applicant's younger brother Dr. Hasan Kaya worked in south- east Turkey, including Şırnak and Elazığ, where he was killed. He was a member of the Human Rights Association (HRA) and long-time friend of Metin Can, a lawyer who was president of the Elazığ Human Rights Association (HRA). Both his brother and Metin Can as educated, professional, intellectual Kurds were under surveillance by the authorities. His brother was considered as an enemy of the State as it was believed that he treated wounded members of the PKK. For this he was targeted and killed by agents of the State. Both he and Metin Can had received specific threats prior to their deaths. While Hasan Kaya was in Şırnak, his friend, Halit Güngen, a journalist, was killed by the contra-guerillas and at the funeral, the head of Şırnak security told him that he would end up like his friend. He was also detained and threatened following his attempts to treat victims during the Nevroz celebrations which had been broken up by the firing of the security forces. In July 1992, in Elazığ, his door had been broken down by the police and his house searched. Metin Can, as well as being president of the HRA, was a lawyer who defended Kurdish political prisoners. He had applied for a passport to go to Germany to attend a human rights conference shortly before his death. The Elazığ HRA branch had been the subject of attacks and harassment from the security forces and was later closed by the State.

42 On the evening of 20 February 1993, Metin Can received a telephone call at home from two unknown persons who wished to meet him. He refused to see them due to the lateness of the hour and told them to come to his office. Two persons had already come looking for him during the day but did not know where his flat was. On 21 February 1993, he received another call from the two men. He arranged to meet them at a coffee house. Şerafettin Özcan, Secretary of the HRA, and a former client of Metin Can's were present during the meeting at the coffee house.  One of the men was blonde, did not speak good Turkish and claimed to be Syrian. He appears to be a person identified as İdris Ahmet. The other man, slightly taller with dark curly hair, fits the description of a person called Orhan or Erhan Öztürk.

43 After discussion, Metin Can and the darkhaired man went to Metin Can's house, where Metin Can phoned Hasan Kaya. Şerafettin Özcan and the blondhaired man came to the house later. Hasan Kaya was needed because the two men claimed that they had need of medical assistance for a wounded person. They did not want to bring the wounded person into town but stated that they could bring him to a house in Yazıkonak village, not far from Elazığ. The two men left the house. At about 19.00 hours, Metin Can received a call from the two men, saying that they were ready. Metin Can and Hasan Kaya left in the red Doğan car (no. 23 EC 219) belonging to the latter's brother. They did not return.

44 On 22 February 1993, at about noon, Fatma Can, Metin Can's wife, received a phone call. The caller said "I'm Vedat. We killed both of them, my condolences..." He appeared to be the blond man who had visited the house the previous day.  Fatma Can called the police immediately. She and Şerafettin Özcan, as well as Şenol, a colleague from the HRA, went to the public prosecutor to make a statement. Neither Fatma Can nor Şerafettin Özcan mentioned the encounter of Metin Can with the two men in the coffee shop since the authorities would be able publicly to conclude that this was the work of the PKK and any protection which the kidnapped men might have would be lost.

45 At about 18.00 hours that day, the red Doğan car driven by Metin Can and Hasan Kaya was found abandoned in front of Çağsan Marine Vehicles Ltd in Yazıkonak village.

46 On 23 February 1993, there was another phone call, from a person claiming to be Dr Savur Baran. The caller said that Can and Dr. Kaya were in their hands, that Can would be released but would not go abroad and would continue the struggle. On the same day, four calls were made to the house of Hasan Kaya, consisting of sounds of persons being tortured in the background and Kurdish music. The police were informed and a request made that the calls be traced. Ahmet Kaya, the father of the applicant and Hasan Kaya, submitted petitions to the Governor of Elazığ and to the police in Elazığ.

47 On the night of 23 February 1993, Fatma Can and Şerafettin Özcan went to Ankara to try to find out more information and bring pressure on the investigation. The same night a watchman on duty near the SHP (Social Democratic People's Party) building, İhsan Denizhan, found a bag with two pairs of shoes, which he reported to the security forces. On 24 February 1993, one of the pairs of shoes was identified as belonging to Metin Can.

48    On 26 February 1993, news was heard that two people had been killed at Tunceli Security Headquarters. This information was passed onto the police who said that it was groundless. On 27 February 1993, the bodies of Metin Can and Hasan Kaya were found under Dinar bridge, 15 kilometres from Tunceli. The bodies were found with their hands bound behind their back and a single bullet wound to the head. Hasan Kaya had bruising on his forehead above the right eyebrow and bruising under the fingernails of both hands. There were marks from the wire which had bound their hands and wrists; he also had grazes on his knees and ankles. His feet showed signs of long exposure to water or snow. Metin Can had been subjected to strangulation. He had bruising to his forehead, nose, right eyelid and temple which could have been caused by a blow from a blunt object.

49 The applicant submits that the killing of his brother was executed and planned by agents of the State, pointing in particular, to the operation of undercover teams of security forces, "contra-guerillas", who implement a policy of identifying and eliminating those persons who are considered to be a threat to the State. Knowledge of these contra-guerilla teams has always been widespread throughout Turkey, especially in the south-east, although often denied by State officials. The existence of "contra-guerillas" was confirmed in the revelations of the former state of emergency gendarme intelligence officer, Major Cem Ersever, who gave interviews to journalist Soner Yalçın and, shortly afterwards, was killed. According to Ersever, a police chief, known variously as Ahmet Demir, Mahmut Yıldırım and "Yeşil", was the chief contra-guerilla in the Diyarbakır region. Erhan Öztürk was part of this group, with İdris Ahmet and Mehmet Mehmetoğlu. Öztürk confessed later that Yeşil gave instructions for Can and Kaya to be taken and that he received his orders from the Minister of the Interior. İdris Ahmet and Mehmet Mehmetoğlu interrogated and tortured Can and Hasan Kaya. Öztürk executed them. When the applicant's father on 14 February 1994 gave information to the authorities about what they read in the newspapers about "Yeşil", including his address,  the state prosecutor told him that "this investigation is beyond our powers".

50 Further evidence concerning the contra-guerillas has since come to light in the Susurluk report, made public by the Prime Minister in January 1998. This report reveals that rightist gunmen, "confessors", contra-guerillas and undercover organisations, acting on the direction,  or with the knowledge of the security agencies (including the Special War Department), the security forces themselves, including the intelligence agencies (MİT - Military Intelligence - and JİTEM - gendarme intelligence organisation), the gendarmerie and the village guards, were implicated in planning or arranging for the deliberate killing of citizens of Kurdish origin, particularly in the south-east, as well as being responsible for other crimes and human rights abuses. On page 74, the report refers to Metin Can as being one of the victims of this practice of targeting and killing but also appears to condone the policy of elimination of prominent Kurds who were subversive or dissident. The report mentions, inter alia, Ahmet Demir and Mesut Mehmetoğlu as involved in various killings.

b. Facts as presented by the Government

51 The Government state that the facts collected by the authorities clearly point to the fact that Hasan Kaya and Metin Can were called to a meeting point by unknown persons who most probably were recognised by the deceased. It may be deduced from the circumstances that the reason for their departure was to assist in treating a wounded or sick PKK member. The ballistic report conducted immediately after the incident pointed to the fact that the weapon used in the killing of Can and Kaya had been used in other terrorist incidents. Allegations that a person by the name of Yusuf Geyik at a beer house in Pertek claimed responsibility for the killings and was taken away by gendarmes were not clarified by the testimony given by witnesses. Nor is there any evidence that the two men were taken into custody by State officials or taken to Tunceli police headquarters. The Government dispute that the autopsy reports disclose any signs of torture. They also point out that unidentified killings were continuously carried out by the militants of the PKK terrorist organisation for the purpose of intimidation.

52 The preliminary investigation into the killings which began immediately after the bodies were found is still pending and will continue until the end of the statutory period, namely, twenty years.

53 The Government also refer to recent developments leading to progress in the investigation of killings by unidentified perpetrators.  They emphasise that official investigations are being carried out nationwide regardless of the status of the persons incriminated in the illegal acts and that they are struggling to clarify the deaths of each and every of its citizens.

B. The evidence before the Commission

1) Documentary evidence

54 The parties submitted various documents to the Commission. The documents included reports about Turkey (eg. report by the UN Special Rapporteur on Extrajudicial, summary or arbitrary executions dated 14 December 1994 E/CN.4/1995/61 and dated 23 December 1996 E/CN.4/1997/60/Add.1), domestic case-law, statements from the applicant and other persons, and documents from the pending domestic investigation.

55 The Commission had particular regard to the following documents:

a) Statements by the applicant

Statement dated 17 April 1993 taken by Kerim Yıldız

56 The applicant's brother, Hasan Kaya, born in Elazığ in 1966, had been practising medicine in Şırnak from November 1990 to May 1992, where he had been threatened for treating demonstrators wounded during the Nevroz celebrations in 1992. In February 1992 while attending the funeral of Halit Güngen, a journalist who had been killed, he was threatened by the Şırnak chief of security that his end would be the same. For eight months before the incident, he was working in a health clinic in Elazığ. He was not a member of any political organisation but has a file in the Elazığ security headquarters labelling him as "undesirable". He had been friends with Metin Can for 10 years.

57 Metin Can, born in Tunceli in 1966, was a Kurd and director of the Elazığ Human Rights Association. He had been practising law in Elazığ for two years and had conducted the defence of Kurdish political prisoners in Elazığ prison. He had publicised the poor conditions and ill-treatment in the prison. One week before the incident, he had applied to Elazığ Security Headquarters for a passport in order to attend a human rights meeting in Germany.  About a month before the incident, he had been threatened by unknown persons. He was married with a child.

58 Events occurred as follows. On 21 February 1993, at 12.00 hours, while he was at home with his wife, Metin Can received a call from two persons who asked to meet him. They came to the house and asked for help with the treatment of an injured person. Can called Hasan Kaya and Şerafettin Özcan by telephone. Together, they talked to the two men. The two men left the house having arranged a meeting for later in the day at 19.00 hours. At 19.00 hours, Can and Kaya left the house to treat the wounded person. Fatma Can and Şerafettin Özcan waited in the house. Can and Kaya did not return.

59 On 22 February 1993, at about midday, Fatma Can received a phone call from an unknown person who said, "We have killed them both. Commiserations." Fatma Can called the police immediately.  At about 15.00 hours, the car that Kaya had used was found. The applicant's father, Ahmet Kaya, presented a petition to the Elazığ Governor requesting that the missing men be found.

60 On 23 February 1993, Fatma Can received another call at midday. The caller said, "They are both in our hands. Metin Can will not go to Europe." Fatma Can went to Ankara to meet with various authorities. On the same day, at about 15.00 hours, sounds of torture and music were played over the phone four times at half hourly intervals at the home of Hasan Kaya.  An application was made to Elazığ public prosecutor for the calls to be intercepted. In the evening, the shoes of Metin Can were found and handed over to the police.

61  On 24 February 1993, the applicant met the Elazığ Governor and requested that his brother be found. On 25 February 1993. Fatma Can met the Minister of the Interior, who told her that the missing persons would be found. On 26 February 1993, she met the Prime Minister.

62 On 26 February 1993, it was heard that two persons had died at Tunceli Security Headquarters. The information was passed onto the Elazığ police who said it was groundless. On 27 February 1993 at 13.00 hours, Can and Hasan Kaya were found dead under Dinar bridge, 15 kilometres from Tunceli and one kilometre from a gendarme station. Their hands were bound behind their backs with copper wire. The autopsy established that they had died on 26 February 1993 at about 22.00 hours. The applicant identified the body of his brother. His brother and Can had been subjected to torture.

63 The Governor ordered the funeral to take place on 28 February 1993, before the date intended by the families. The bodies were buried in a ceremony at which 6000 people attended within police cordons and under police harassment.

64 The authorities had given no explanation for the murder, which the Prime Minister said that they were unable to solve. The applicant considers that his brother was killed by the Turkish secret police. He refers, inter alia, to the following information:

- Can and Kaya were seen on the evening of 21 February in Yazıkonak village by persons who did not wish their identities revealed. His brother and Can were forced, resisting, into another vehicle, by persons with walkie-talkies.

- the vehicle stopped for petrol outside the village and one of the garage attendants who knew Can asked  him where he was going to which Can replied, "We're going somewhere with the officers."

- the bodies were found in Tunceli, a neighbouring district. Other victims of murders, such as Vedat Aydın, a HEP leader, and Cemal Akar, an ÖZDEP leader, had also been kidnapped and their bodies found at some distance. Since the investigations are conducted not where the incident occurs but where the bodies are found, this serves to confuse and draw out the investigations.

- a uniformed policeman had stated in the presence of a lawyer, İsmail, and a judge at Hozat, that two persons had been killed in Tunceli Security Headquarters but no interest was shown by Elazığ police.

- it is 140 km from Elazığ to Tunceli, with 8 police control points constantly in operation along the route the car carrying Can and Kaya must have travelled.

- the Elazığ police showed no interest in the fate of Can and Kaya, who were held alive and interrogated for five days. When Can's shoes were found, they joked that his trousers would arrive the next day. When a strange call was received at Can's house on 25 February 1993, the police denied that they were able to record the calls, despite the request that had been made for the  interception of calls.

- according to information passed on by a security officer who did not wish to reveal his name, the State used secret forces, known as contra-guerillas, including people from the army, police and civilians. This source allegedly said that intelligence was gathered on particular persons, that contra-guerillas trapped and kidnapped them, and that they were interrogated with torture and then executed by the civilians in the group.

- some time after the murder, in a Pertek beerhouse, when a television programme was being shown in which the killing of Can and Kaya was being discussed and Erdal İnönü stated that there were no contra-guerillas, a man Yusuf Geyik, known as Bozo, said, "You're lying, we killed Metin and Hasan." At this some people reacted and jumped up. Geyik pulled out a pistol and called the Pertek district gendarme commander on his walkie talkie, giving him mobile team number and asking for urgent assistance. The district gendarme commander arrived a few minutes later and took Geyik away.

Statement dated 20 July 1994 addressed to the Commission

65 The applicant lists the complaints about the murder made to the authorities: on 18 March 1993 by his father Ahmet Kaya to Tunceli-Pertek State Prosecutor and to the Tunceli Chief State prosecutor; on 13 April 1993 by his father to the Tunceli Chief State prosecutor; in February 1994 by the journalist Soner  Yalçın to the Erzincan State Security Court; on 14 April 1994 to the Elazığ Chief State prosecutor by his father and by Anik Can.

66 The applicant states that information about the murder was brought to light by the media which commonly reported that it was committed with the knowledge and under the orders of the Government. He pointed out that although a year had passed from the murder no statements had been taken from his father, Soner Yalçın or other  relatives. A State prosecutor in Elazığ told his father that "this investigation is above our powers".

67 As regarded any denial by Ä°smail KeleÅŸ about a conversation overheard by him between a policeman and a prosecutor concerning two persons held in Tunceli, the applicant stated that this was because of fear.

b) Documents relating to the investigation into the killing of Hasan Kaya and Metin Can

Statement of Fatma Can dated 22 February 1993 taken by Elazığ public prosecutor Süleyman Tutal

68 The previous night, she had been home with her husband Metin Can and their friend Hasan Kaya. At 19.00 hours the telephone rang. Her husband said, "OK. We are coming." Her husband told her they would be back in two hours. They did not come back. That day, at about 13.00 hours, a person calling himself Vedat rang their house and said, "Accept my condolences. We killed Metin and his doctor friend." She wanted her husband to be found.

Statement of Fatma Can dated 14.30 hours 22 February 1993 taken by the police

69 She confirmed her statement to the public prosecutor. She wanted her husband to be found as soon as possible. If her husband was murdered, she wanted the perpetrators to be brought to justice.

Statement of Şerafettin Özcan dated 19.00 hours 22 February 1993 taken by the police

70 On 21 February 1993, he had gone with Hasan Kaya to his friend Metin Can's house. At about 19.00 hours, Metin Can received a phone call. Afterwards, he said to Hasan Kaya that they would go out together. Metin Can told him to stay and look after the children and that he would be back in a short while. They left in Mevlut Kaya's red DoÄŸan car. They did not say where they were going and left in a calm manner. They did not return and he stayed the night. The next day at the office, at about 12.00 to 12.30 hours, Fatma Can rang, crying. When he went to her house, she said that someone had rung, saying that they had killed Metin Can and Hasan Kaya. He took Fatma Can to the public prosecutor's office.

Statement of Hakkı Özdemir dated 19.15 hours 22 February 1993 taken by the police

71 At about 11.30 hours that day on arrival at his office in Yazıkonak, he noticed a red Doğan car 23EC219 parked opposite. At 18.00 hours, when it had not been taken away, he became suspicious and told the muhtar to inform the authorities. The traffic police arrived soon afterwards. They searched the car. He had not seen anyone and did not know when it was left there.

Police minutes, sketch, report and delivery protocol dated 22 February 1993

72 The minutes describe the location of the red Doğan car reported as abandoned in Yazıkonak. It was locked. The police photographed the scene and had it towed to the Security Directorate for examination. The sketch shows the position of the car. The report indicates that no evidence was found in the car and a lack of fingerprints established. The delivery protocol states that the car owner and relatives were present when the car was examined at the Directorate.

Statement of Ahmet Oygen dated 22.30 hours 22 February 1993 taken by the police

73 Metin Can lived in the same apartment block on the third floor. At about 21.00-22.00 hours, two people rang his doorbell. They addressed him as brother Metin. He told them that Metin lived upstairs. They went upstairs and he heard them ring the bell. He did not know if the door was answered or when they left. He gave a description of the men and said that he would be able to recognise them again.

Statement dated 22 February 1993 of Süleyman Tursum taken by the police

74 About two to three days earlier, their doorbell rang. He was asked by two persons where Metin Can was. He told them that he did not know.

Police note dated 13.30 hours 23 February 1993

75 This recorded that at 13.30 hours Şerafettin Özcan had rung the police, informing them that someone claiming to be Dr Savur Baran called Metin Can's house saying that Metin Can was going to be released but would not go abroad and would continue the struggle. He had then hung up.

Petition dated 23 February 1993 of Ahmet Kaya to Elazığ Governor

76 The applicant's father referred to the disappearance of Hasan Kaya and requested that necessary enquiries be made and every possible step taken to find his son.

Statement of Ä°hsan Denizhan dated 24.00 hours 23 February 1993 taken by the police

77 He was a night watchman at the Social Democratic People's Party ("SHP") building in Elazığ. At about 22.00 hours that day, he observed a bag lying horizontally inside the electric pylon 8 metres from the building. It was a shopping bag, containing two pairs of old shoes. He waited for a while, wondering if they would be picked up by customers at a nearby shoe repair shop. When no-one did, he picked the bag up. About then, a passer by said, "Those shoes look like my brother's" and tried to take them. He refused and reported to the station. Officials came and took the shoes.

Police minutes and sketch map dated 24 February 1993

78 Minutes record the handing over to the police of the bag and two pairs of shoes and describe the items. The sketch map indicates the location at which they were found.

Police minutes dated 12.30 hours 24 February 1993

79 Tekin Can, brother of Metin Can, identified one of the pairs of shoes found outside the SHP building as belonging to his brother. Hüseyin Kaya, brother of Hasan Kaya, stated that the second pair of shoes were not his brother's.

Discovery and autopsy report dated 27 February 1993, 16.25 hours

80 Following a telephone message at about 13.30 hours on 27 February 1993 to Tunceli central gendarme command that two male bodies had been found, Tunceli public prosecutor Hayati Erarslan, Dr İsmet Ünal and Dr. Cem Gören went to the location, 12 kilometres outside Tunceli on the road to Elazığ, under the bridge over the Dinar stream. The exact position of the bodies was described. Both men had been shot in the head and had their hands tied. Two cartridges were discovered. The bodies were taken to Tunceli State Hospital morgue for examination. One body was identified as Hasan Kaya by the applicant. There was a bullet entry hole at the back of the head and an exit hole in front of the right ear. The left hand side of the face and mouth was subsided and the facial construction disfigured. A total absence of any trace of violence or blow was observed. Cause of death was cerebral haemorrhage due to firearm wound.

81 Hüseyin Can identified the second body as Metin Can. His face was collapsed on the right hand side. The nose was haemorrhaging.  His lip had a three cm long, two cm wide wound, some teeth were missing and his ears were filled with dried blood. There were ecchymoses all round the neck,  on both knees and in various places on the torso and abdomen. Maceration was completely developed in the victim's feet. A total absence of any trace of violence or blow was observed. The doctors added to the public prosecutor's findings that the ecchymosis on the right eyebrow might have been caused by a blow.

82 Death was estimated as occurring within the last 14-16 hours.

Additional autopsy report dated 28 February 1993, 1.05 hours

83 The report states that during the first autopsy the bullet projectiles were not taken out and considering the evidential value a second autopsy was decided upon.

84 The applicant identified the body of his brother, Hasan Kaya. The bullet entry and exit holes were described. The right ear and adjacent area were marked with ecchymoses which could be explained by pressure on the body. There were ecchymoses around the nailbases on the upper side of the left hand; circular marks round both wrists, which might have been caused by the hands being bound by wire; a 1 x O.5 cm ecchymosis on the right knee, 2 x 1 cm light yellow ecchymosis on the inner lower frontal region of the right knee; O.7 cm wide ecchymosis on the left ankle outer upper region and 1 cm below that O.5 cm wide epidermal scratches; cyanosis in toe bases on both feet and athlete's foot on both feet, especially in soles and left regions, which was probably caused by remaining in water and snow for lengthy periods. The torso of the body was free from any blow, wound, burn, firearm injury save those noted above. Cause of death was brain damage and haemorrhage of the brain tissues due to the bullet wound. A classical autopsy was not necessary.

85. Hüseyin Can identified the body of his nephew Metin Can. The bullet entry and exit holes in the head were described.  There were areas of red ecchymosis, 1.5 x 1-2 cm, on the right hand side above the right eyebrow; a 3 x 2 cm red ecchymotic scratch beneath the right eye; a red 3 x 2 cm ecchymotic scratch between the right eye and ear; a haemorrhage in the right eye; a peri-orbital purple ecchymosis round the left eye; a 3 cm superficial scratch on the nasal bone; red coloured ecchymosis in the right ear; blood was observed in the inferior nasal cochna; on the neck thyroid region, a 8 x 1cm perpendicular ecchymosis; a 3 cm long ecchymosis on the left lower jawbone, with a 2 cm ecchymosis beneath; palpation and fragmentation of the lower jawbone; a 1.5 cm tear and ecchymosis on right lip; lower right 3rd and 4th and upper right 3rd, 4th and 6th teeth were missing; a 4 cm cut and ecchymosis on the outer right edge of the tongue; a hole in the upper palate right hand side, large enough to insert the middle finger; superficial scratches, with O.5 cm ecchymosis surrounding them, on medial inter-falangial joints of 3rd, 4th and 5th fingers, with a lesion on the right 3rd proximal joint; cyanosis on the nailbases of both hands; marks on wrists indicative of being bound; a 3 cm purple ecchymosis on 7th and 8th ribs right hand side; a 7 x 6 cm ecchymosis on the lower inner right knee; an ecchymosis 3 cm in diameter on the left kneecap; cyanosis on both feet and toes (document text illegible at this point). The bruises and scratches on the forehead, nose and under the right eye were thought to have been caused by blunt instruments (eg. stone, stick etc) and the lesions on the neck by string, rope or cable. This might have occurred immediately before the death and from application of force for short periods. These wounds would not have caused death. Death resulted from brain damage and brain haemorrhage.

86. Death was estimated as occurring within the last 24 hours.

Gendarme reports on the scene of the crime

87. By letter dated 1 March 1993, the central provincial gendarme commander sent to the Tunceli public prosecutor an incident report dated 27 February 1993 in which the location and position of the bodies and two cartridges were described and also a sketch map of the scene drawn up on 27 February 1993. The report stated that the gendarmes had received a report that two bodies had been found at about 11.45 hours.

Request dated 2 March 1993 for ballistics examination

88. The request addressed by Tunceli public prosecutor to the Diyarbakır regional police forensic  laboratory concerned examination of the two cartridges found at the scene.

Statement dated 8 March 1993 of Fatma Can taken by Elazığ public prosecutor Süleyman Tutal

89. On 20 February 1993, she and her husband came home between 22.30-23.00 hours. At about 24.00 hours, the phone rang. Her husband answered. As far as she could gather, the caller was reluctant to give his name, Metin got angry and hung up. He told her that some unknown people had come round to the house earlier looking for them while they were out. They wanted to come to the house now. He told them to see him in his office and refused when they asked him to come out. Metin did not recognise their voices.

90. On 21 February 1993, Hasan Kaya, a very close friend of her husband was at the house, as well as Şerafettin Özcan and her husband. They came and went a few times. At 19.00 hours when they were all in the house, the phone rang. She heard Metin say, "We are coming." It was a short conversation. They prepared to go out. Şerafettin offered to go with them but she told him to stay and help her with the children. Metin and Hasan left saying that they would come back in a few hours. They did not come back. At about 13.00 hours the next day, some-one rang, saying "I am Vedat. Accept my condolences. We killed them both." She screamed and dropped the phone. She went to file a complaint.

91. On 23 February 1993, when she was not at home, Metin's nephew answered a call. The caller, who said that he was Doctor Mehmet or Doctor Savur Baran, said, "Both of them are alive. We will not let the doctor go. We will release Metin. He will not go to Europe. He will continue the struggle." Metin was President of the Human Rights Association and had been invited to Germany. He had said that the police had raided the Association and were going to close it down. She had kept asking him to resign and he said he would. She did not know who he might see in Yazıkonak about Association matters. She did not hear that he was being threatened though he said that since he became President, the police followed him.  Once when she came back to the house, she smelled perfume and thought that a stranger had entered the house. She was suspicious that the house might have been bugged.

Statement dated 9 March 1993 of Ahmet Kaya to Elazığ public prosecutor Süleyman Tutal

92. Ahmet Kaya had not himself received threatening calls after the disappearance. He had gone himself to investigate at Yazıkonak where the car had been found. There the  elder Süleyman said that they had seen Metin Can in the village once in a while. There was a rumour going round but no-one said anything definite. According to rumour, Metin and Hasan had gone together to Yazıkonak. They were taken out of their car by people who argued amongst themselves. Then they left.

Magistrates' court order of 23 February 1993

93. In response to the request of the Elazığ public prosecutor of the same day, which requested monitoring in order to capture the perpetrators of the kidnapping and identify the persons making threatening calls, the court decided that the residential number of Metin Can should be monitored for one month.

Letter dated 10 March 1993 from Elazığ prosecutor Süleyman Tutal to the PTT

94. The letter referring to the magistrates' court order for monitoring of the telephone of Metin Can's home for one month requested details of calls to be sent.

Letter undated from PTT to Elazığ public prosecutor

95. While a recording device had been attached to the line, no recordings had been made since no request had been received that recordings should be made.

Decision of withdrawal of jurisdiction dated 11 March 1993 by Elazığ public prosecutor Süleyman Tutal

96. This decision refers to the offences of the kidnapping, detention and murder of Metin Can and Hasan Kaya by suspects unknown. Since the offence took place within the boundaries of Tunceli province, they ceded jurisdiction and sent the investigation file to Tunceli public  prosecutor.

Ballistics report dated 15 March 1993

97. This reported that the two 9mm parabellum type cartridges were fired from the same gun. This gun had also been used in the murder incident on 8 February 1993 involving Seyfettin Zengi and Abdullah Gencer at Kocaman petrol station on the Bitlis-Muş provincial border and in the murder and arson incident of 6 February 1993 involving lorry driver Mehmet Turan 8 km from Maden district, Elazığ province.

Decision of association dated 16 March 1993 by Tunceli public prosecutor

98. This referred to the decision of withdrawal of jurisdiction by Elazığ public prosecutor in respect of their investigation and decided to associate the existing investigations under one number.

Petition stamped 18 March 1993 of Ahmet Kaya

99. This petition, forwarded from Elazığ to Tunceli public prosecutor, stated that on the date of the incident his son was taken into custody in Yazıkonak district by police officers carrying radios and wearing civilian clothes. Along their route, the officers bought petrol from a station and said that they were taking the lawyer and doctor for interrogation.  Also, during a conversation in Hozat district which involved a district judge and a lawyer called İsmail, a police officer told them that Can and his son were taken into custody at Tunceli Security Directorate. This meant that they were killed there or deliberately delivered to the persons who killed them.  He requested that enquiries be made of the Hozat judge and the lawyer called İsmail and at Pertek, referring to his complaints made to the Pertek chief public prosecutor and that all procedures be carried out to catch the perpetrators of the murder.

Petition dated 19 March 1993 of Ahmet Kaya to Pertek public prosecutor

100. The applicant's father referred to an incident which occurred on 15 February 1993 in Pertek beerhouse. At about 20.00 hours, while a news programme discussed contra-guerillas, Yusuf Geyik, nicknamed Bozo, said, "You're lying. We killed Hasan Kaya and lawyer Metin Can." When people in the beerhouse attacked him, he pulled a pistol, called for help on a walkie-talkie and was taken away by the district gendarme first sergeant. Those present at the time and the owner of the beerhouse had information on this and he requested that the necessary enquiries be conducted.

Instruction dated 30 March 1993 from Pertek public prosecutor to Pertek Security Directorate

101. This requested an investigation into Yusuf Geyik, known as Bozo, and that he be summoned to their office.

Decision of withdrawal of jurisdiction dated 31 March 1993 of Tunceli public prosecutor

102. This decision set out the outline of the disappearance and finding of the bodies of Metin Can and Hasan Kaya and referred to the identities of the perpetrators being unknown. It was stated that the crime fell within the declaration of the state of emergency and was under the jurisdiction of the State Security Courts; the file was to be transferred to the Kayseri State Security Court prosecutor.

Report dated 6 April 1993 from Mustafa Özkan, Chief of Security, to the Pertek prosecutor

103. Their investigation proved that there was no such person as Yusuf Geyik in their district.

Letter dated 8 April 1993 from Tunceli public prosecutor to Hozat public prosecutor

104. This referred to the petition of Ahmet Kaya and requested that statements be taken from the Hozat district judge and the lawyer named Ä°smail who practised at Hozat and from the police officer, when his identity had been established.

Statement dated 12 April 1993 of Ä°smail KeleÅŸ taken by the Hozat public prosecutor

105. Ä°smail KeleÅŸ, an advocate practising freelance in Hozat district, stated that the claims in Ahmet Kaya's petition were groundless. No police officer or other member of the security forces or judge told him anything about the murder of Hasan Kaya and Metin Can. He could not confirm if they had been taken to Tunceli Security Directorate.

Petition dated 13 April 1993 of Ahmet Kaya to the Tunceli public prosecutor

106. The applicant's father referred to the circumstances in which  Hasan Kaya and Metin Can were seen being taken by plainclothes police officers at Yazıkonak despite the objection of Metin Can, "You cannot take us into custody" and to the report that the vehicles stopped to take petrol at a garage where an attendant recognised Metin Can, who told him that they were being taken somewhere by the officers. He referred to a report that a judge and police officer in a conversation with a lawyer referred to two persons being in custody at Tunceli and that at Pertek a man, who was drunk, claimed to have killed them. It was pointed out that the two men were taken 138 km through at least 8 official checkpoints and the opinion was expressed that the circumstances in which two young men were held for a week and the confidence displayed by the perpetrators indicated that the Government was involved.

107. The applicant's father stated that while in Elazığ the Minister of the Interior had told him that his son was a criminal. He requested that necessary enquiries and investigations be carried out to uncover the perpetrators of the murder. The petition named the Governor of Tunceli, the Tunceli chief of police and the Minister of the Interior as those against whom complaint was being made.

Hozat police report dated 14 April 1993

108. In answer to the Hozat public prosecutor's request of 12 April 1993, the police had investigated the complaint of Ahmet Kaya that a police officer had informed the Hozat district judge that Metin Can and Hasan Kaya had been held at Tunceli Security Directorate. Although every effort had been made to locate such police officer, the investigation proved that no police officer at Hozat had made such a statement.

Letter dated 16 April 1993 from Hozat public prosecutor to Tunceli public prosecutor

109. In answer to the instruction of 8 April 1993, it was stated that Ä°smail KeleÅŸ (presumably KeleÅŸ as above), a practising lawyer in Hozat, was called to give his statement. According to the Hozat chief of security's report of 14 April 1993, it was understood that no conversation had taken place concerning the murders of Metin Can and Hasan Kaya. Accordingly, the statement of the Hozat district judge was not taken.

Instructions dated 29 April 1993 from Pertek public prosecutor to Pertek Security Directorate

110. The first instruction requested that enquiries be made as to whether Yusuf Geyik, codenamed Bozo, lived within the municipal boundaries and if so, for him to be summoned. The second requested that the managers of the Pertek beerhouse opposite the PTT be summoned.

Letter dated 29 April 1993 from Pertek public prosecutor to Pertek district gendarme command

111. This outlined the alleged incident in the Pertek beerhouse involving Yusuf Geyik and requested information as to whether he had asked for help by radio from the district gendarmes on 15 March 1993, whether an NCO went to the public house and took him away and if so, the name of the NCO.

Letter dated 4 May 1993 from Mustafa Özkan, Pertek chief of security for referral to Pertek public prosecutor

112. Their investigation proved that there was no-one named Yusuf Geyik within their jurisdiction. He had been reported as being seen in the district and as having stayed at the district gendarmerie a month before but his whereabouts were unknown. (This sentence is obscurely and ambiguously phrased and has posed difficulties in translation.)

Statement dated 4 May 1993 by Hüseyin Kaykaç taken by Pertek public prosecutor

113. Hüseyin Kaykaç ran a beerhouse in Pertek. On 15 March 1993, a man about 30 years old, whom he knew as Bozo (he did not know his real name) was sitting at a table by himself.  When the news was on about the killing of Hasan Kaya and lawyer Metin Can, he made statements to the effect that "we killed him". He talked on the radio and after a while an NCO in civilian clothes from the gendarme station came and picked him up. He did not see other people in the beerhouse attacking him or Bozo drawing a gun.

Statement dated 4 May 1993 by Ali Kurt taken by the Pertek public prosecutor

114. Ali Kurt, who was employed as a waiter at the beerhouse, agreed with the statement made by Hüseyin Kaykaç. He did not wish to add anything.

Letter dated 5 May 1993 from Pertek district gendarme commander to the Pertek prosecutor

115. The commander was not aware of the incident involving Yusuf Geyik.  There was no instance of assistance being requested by radio from the beerhouse. It was not an NCO who took him away and it was not known where he went.

Decision of non-jurisdiction dated 22 July 1993 given by Kayseri State Security Court prosecutor

116. By this document, it is explained that the file had been transferred to Kayseri due to an earthquake but that since Erzincan State Security Court public prosecutors' office had resumed their work, the file was now returned to Erzincan.

Letter dated 3 September 1993 from Ali Demir and Mehmet Gülmez to the Elazığ public prosecutor's office

117. The letter from Ali Demir, a lawyer, and Mehmet Gülmez, President of the Tunceli Human Rights Association, enclosed for the prosecutor's information an extract from the Aydınlık newspaper  which referred, inter alia, to the murders of Metin Can and Hasan Kaya. It requested an investigation into the matter and that the persons named in the report be punished.

Statement dated 12 October 1993 by Ali Demir taken by a public prosecutor

118. Ali Demir stated that he had sent a copy of the Aydınlık newspaper of 26 August 1993 to shed light on the events. He did not personally know Ahmet Demir, known as Yeşil. However, between 1988 and 1991 when he was chairman of SHP in Tunceli he received complaints that an individual known as "the Beard" (Sakallı) was carrying out attacks on villages in the Ovacık-Nazımiye districts. He was constantly associating with the state security forces. They informed the Tunceli member of Parliament, Kamer Genç, and the then Chairman of SHP, Erdal İnönü.  He did not know Yazıcıoğulları or the special warfare officer mentioned in the article.

Instruction dated 14 October 1993 from the Tunceli public prosecutor to the Tunceli Security Directorate

119. This instructed that Mehmet Yazıcıoğulları, Ahmet Demir and Mehmet Gülmez be brought to their office for investigation.

Police report dated 18 October 1993

120. This stated that Mehmet Gülmez had been located but that no-one knew Mehmet Yazıcıoğulları and Ahmet Demir.

Statement dated 18 October 1993 of Mehmet Gülmez taken by the Tunceli public prosecutor.

121. Mehmet Gülmez did not know Ahmet Demir. He had heard that a man called "the Beard" was around 3-4 years before. He knew nothing of Yazıcıoğulları or the special warfare officer.

Instruction dated 8 November 1993 from the Erzincan State Security Court prosecutor to the Pertek prosecutor

122. This requested that Hüseyin Kaykaç and Ali Kurt be summoned to give detailed statements, that a description of "Bozo" be taken and a secret investigation made to identify him and that Hüseyin Kaykaç clarify whether or not he could identify the NCO mentioned in his statement. This request was later directed to Elazığ public prosecutor  on 25 November 1993 and 2 February 1994 in respect of Hüseyin Kaykaç.

Instruction dated 11 November 1993 from the Tunceli public prosecutor to the Tunceli Security Directorate

123. This again instructed that Mehmet Yazıcıoğulları and Ahmet Demir be brought to their office for investigation.

Instruction dated 12 November 1993 from Pertek public prosecutor to Pertek Security Directorate

124. This required Ali Kurt and Hüseyin Kaykaç to be summoned to their office.

Statement of Ali Kurt dated 17 November 1993 taken by Pertek public prosecutor

125. Ali Kurt worked as a waiter at the Pertek beerhouse. That year in the month of Ramadan, a person whom he had not seen before sat at one of the tables. He described the person.  The news was on the television, concerning the kidnapping and murder of a doctor and lawyer from Elazığ.  Erdal İnönü was saying that the killers would be caught soon. The person stood up, saying "I am Bozo. I shot them. I used to be Bozo of the mountains. Now I am here. Come and get me." He had been drinking. He spoke into a radio, saying that he wanted to talk to the regiment commander. Ali Kurt did not hear the rest as he was serving tables. Three people he did not know came to take Bozo away. He did not know if they were military or police. He never saw Bozo again. The beerhouse had been crowded that day. Hüseyin Kaykaç now worked in Elazığ.

Internal police report dated 6 December 1993

126. Following the Tunceli public prosecutor's request for Yazıcıoğulları and Demir to be summoned, the investigation and the village and district muhtars revealed that they did not reside and were not known within their jurisdiction.

Petition dated 31 January 1994 by Hale Soysu, Aydınlık editor, forwarded from İstanbul State Security Court prosecutor to Erzincan State Security Court prosecutor

127. The petition accused Mahmut Yıldırım as one of the active perpetrators of the murders of Hasan Kaya and Metin Can, the murder of Ayten Öztürk on 27 July 1992, the murders of five persons found after they had been taken into custody at Muratgören in Muş province and the murder of the journalist Halit Güngen on 18 February 1992. This complaint was based on information received by, and investigations of, the newspaper Aydınlık. It enclosed 12 pages from the series of articles, "The Secrets that brought death to Major Cem Ersever" that appeared in the newspaper from 19 to 30 January 1994.

Letter dated 2 February 1994 from Elazığ State Security Court prosecutor to Elazığ public prosecutor

128. This letter referred to Ahmet Kaya as being a witness who knew of Yusuf Geyik ("Bozo") and requested information about his address.

Letter dated 2 February 1994 from Erzincan State Security Court prosecutor to the Pertek prosecutor

129. This stated that there was a discrepancy between the documents from Pertek gendarmerie station and the police department. It requested a new investigation to be conducted by the prosecutor personally, in particular to clear up the contradiction in the documents, taking into account the police information and that the gendarmerie might be a party and to gather information about the identity of Yusuf Geyik, also known as Bozo, whom the police department claimed was staying at the gendarmerie station. This was labelled an urgent request.

Letter dated 2 February 1994 from Erzincan State Security Court prosecutor to the Ä°stanbul State Security Court prosecutor

130. This requested the tape and transcript of a programme on Show TV in or about December 1993-January 1994 in which an Aydınlık correspondent talked about Major Cem Ersever.

Petition dated 14 February 1994 by Ahmet Kaya to Elazığ public prosecutor

131. This letter referred to Aydınlık, Özgür Gündem, Soner Yalçın's book "Confessions of Major Cem Ersever" and Show TV having named Mahmut Yıldırım as the planner and perpetrator of the murders of Hasan Kaya and Metin Can. It stated that Yıldırım had been a state employee for 30 years, that he came from nearby in Elazığ, that he was described as a murderous individual by people at Aksaray and requested that action be taken against him.

Statement dated 14 February 1994 by Ahmet Kaya taken by Elazığ public prosecutor Süleyman Tutal

132. Ahmet Kaya stated that his son and friend had been killed a year ago and the perpetrators not found. Recently the press and TV were suggesting that an individual named Mahmut Yıldırım was involved. He did not know the man personally but in their district he was talked about as being involved in such incidents.

Instruction dated 14 February 1994 from Elazığ public prosecutor to Elazığ Security Directorate

133. This requested that Hüseyin Kaykaç, address specified, be brought to give a statement. An urgent reminder was sent on 21 March 1994.

Instruction dated 15 February 1994 from Elazığ public prosecutor Süleyman Tutal to Elazığ Security Directorate

134. This enclosed Ahmet Kaya's petition and statement (above paras. 131-132) and requested that a very confidential investigation be carried out and that upon identification and apprehension the suspect/suspects be delivered to their office.

Letter dated 17 February 1994 from Pertek prosecutor to the Erzincan State Security Court prosecutor

135. This listed information gathered on Yusuf Geyik. His description was given and it was stated that he was a member of an organisation "Partizan (TKP-ML)" with codenames "Çerkez Ethem" and "Bozo". He was identified as the perpetrator of an incident on 22 January 1990, when a van was strafed killing one person and injuring several others, and a robbery incident in 1990 . An arrest warrant had been issued against him dated 28 March 1990 but the Erzincan State Security Court prosecutor had withdrawn it on 4 November 1991. 

Statement dated 21 February 1994 by Ahmet Kaya taken by Elazığ public prosecutor Süleyman Tutal

136. He was asked about Yusuf Geyik on instructions from the Erzincan chief public prosecutor's office. He had learned of Geyik's involvement in the killing from a magazine called "Gerçek" published in Tunceli, which had been given to him by police officers from the Elazığ anti-terrorist branch. The article recounted how, during a TV discussion programme with Erdal İnönü and Akin Birdal, Geyik nicknamed "Bozo" said "You're lying. We killed doctor Hasan Kaya and lawyer Metin Can." He did not know Geyik but by word of mouth he had learned that Geyik was registered in Solhan district of Bingöl but was later registered in Tunceli.

Petition dated 21 February 1994 from Anik Can to Elazığ public prosecutor

137. The letter stated that he had been informed by the press, TV and books that his son Metin Can had been killed by Mahmut Yıldırım who worked at Elazığ Ferrakrom and lived at No. 13 Pancarlı Sokak, Aksaray Mah., Elazığ province. He filed a complaint against this individual.

Police report dated 14.00 hours 25 February 1994

138. Their team had investigated the information provided by Ahmet Kaya and Anik Can and concluded that Mahmut Yıldırım had left No. 13 Pancarlı Sokak, Bahçeler Mevkii, Aksaray Mah., 15-20 days prior to the investigation for an unknown destination. His present location was beyond establishment.

Statement of Hüseyin Kaykaç dated 6 April 1994 taken by Elazığ public prosecutor Süleyman Tutal

139. Hüseyin Kaykaç was resident in Elazığ. In reply to instructions from the Erzincan State Security Court, he was asked about an incident in Pertek. He owned a beerhouse at that time. There was a man who came there several times.  He did not know him but people said he came from a rural district. He later heard that his real name was Yusuf Geyik and that he came from Geyiksu village. A lot of people knew that he was nicknamed Bozo. One evening, Bozo was shouting in the beerhouse and calling on the radio, asking to be put through to the Tunceli regiment gendarme commander. When he could not get through, he called the Pertek district gendarme headquarters, saying "I am in the beerhouse in Pertek. The situation is calm. Come and get me." He described Bozo. Two NCOs and a civilian came to take him away. The NCOs were called Mehmet and Ali.  The man in plainclothes he also knew to be an NCO but did not know his name. After making his statement to the Pertek chief public prosecutor, he asked several people if they knew him and they told him that he was called Hüseyin and that he was still employed at Pertek district gendarme station.

Police report dated 11 April 1994 to Elazığ public prosecutor

140. This reported that an investigation had been carried out into Mahmut Yıldırım's whereabouts but had concluded that he had left the indicated address. No-one had been found who knew his new address or whereabouts. Investigation of his whereabouts was ongoing and in the event of establishing an address a statement would be taken. This was forwarded to the Tunceli public prosecutor.

Letter dated 11 May 1994 from Ä°stanbul Security Directorate forwarded to Erzincan State Security Court prosecutor

141. This enclosed a transcript and tape of the "32. Gun Programme" containing a live interview with an Aydınlık reporter.

142. The programme included taped excerpts of Major Cem Ersever talking in the Aydınlık office before his death. Soner Yalçın recounted various of his interviews with Cem Ersever. He said that Ahmet Demir, known as Yeşil, was in the Nationalist Action Party (MHP) in the 1970's, had been the bodyguard of Türkeş and employed by the public administration in Elazığ. He was responsible for the murder of Can and Kaya. Yeşil was a codename known throughout the police and gendarmes. The programme presenter mentioned that Yalçın had been due to meet Ersever on 25 October 1993 but nothing was heard from him after that.

Decision of withdrawal of duty dated 25 May 1994 by Erzincan State Security Court prosecutor

143. By this document, the Erzincan prosecutor referred the ongoing investigation of the murder of Metin Can and Hasan Kaya to the Malatya State Security Court following the re-organisation of jurisdiction for the Tunceli and Elazığ areas.

Instruction dated 13 March 1995 from Malatya State Security Court prosecutor to Bingöl, Tunceli, Elazığ and Diyarbakır prosecutors' offices

144. This requests:

- the location and arrest of Mahmut Yıldırım, known as Yeşil, Sakallı and superintendent Ahmet Demir, by Elazığ public prosecutor;

- that the Diyarbakır public prosecutor establish if Orhan (Ayhan) Öztürk, İdris Ahmet and Mesut Mehmetoğlu, were or had been in Diyarbakır prison and to provide their dates of arrest and release and their addresses;

- that the Bingöl public prosecutor establish the address of Mehmet (Mahmut) Yazıcıoğulları and continue the search for his apprehension;

- that the Tunceli public prosecutor establish the identity and address of Yusuf Geyik and continue the search for his apprehension.

Letter dated 15 March 1995 from Bingöl prosecutor to Malatya State Security Court prosecutor

145. This letter enclosed the address of Mehmet Yazıcıoğulları, who ran a petrol station on the Muş-Bingöl intercity road.

Letter dated 17 March  1995 from Diyarbakır prosecutor to Malatya State Security Court prosecutor

146. This enclosed information from Diyarbakır E-type prison. In the letter dated 14 March 1995 from the prison director, it was stated that:

- confessor Erhan Öztürk was arrested on 18 October 1991 for membership of the PKK. He was released from prison on  18 February 1993;

- confessor Ä°dris Ahmet, a Syrian citizen, was arrested on 14 September 1990 for PKK membership, transferred to the prison on 24 September 1990 and released on 16 December 1992;

- confessor Mesut MehmetoÄŸlu was arrested on 5 February 1992 for PKK membership, transferred to prison on the same date and released on 8 January 1993. He was arrested on 10 May 1994, inter alia, for aiding homicide, and transferred to the prison on 26 September 1994, where he was still detained.

Letter dated 17 March 1995 from Malatya State Security Court prosecutor to Solhan/Bingöl public prosecutors' office

147. This requests that a statement be taken from Mehmet Yazıcıoğulları in regard to allegations in the Aydınlık newspaper of 23 January 1994 that he and Ahmet Demir (Yeşil, Sakallı) were responsible for the killing of Metin Can and Hasan Kaya.

Letter dated 22 March from Malatya State Security Court prosecutor to Diyarbakır public prosecutors' office

148. This requests that a statement be taken from Mehmet Mehmetoğlu in regard to allegations in the Aydınlık newspaper of 23 January 1994 that he and two others released from prison killed Metin Can and Hasan Kaya.

Statement dated 28 March 1995 of Mehmet Yacızıoğulları taken by Solhan public prosecutor

149. The witness was told of the alleged offence. He stated that he had no connection with the killings of Metin Can or Hasan Kaya. He did not know Mahmut Yıldırım, İdris Ahmet, Orhan Öztürk or Mehmet Mehmetoğlu. His lawyer in Ankara had sent a denial of the Aydınlık article of 23 January 1994 and others.

Statement dated 6 April 1995 of Mehmet Mehmetoğlu taken by a public prosecutor in Diyarbakır E-type prison

150. The witness was told of the alleged offence.  He stated that he did not carry out any such act. He was formerly a PKK group commander but had become a confessor. Press organs like Aydınlık, Ülke and Gerçek which were known to support the PKK, published biased articles, targeting him and saying that he was excluded from society. He was in Antalya around 21 February 1993. When he had heard his grandfather had died, he went to Hazro and stayed there for two months. He knew İdris Ahmet and Erhan Öztürk, since they served prison sentences together from January 1992 to January 1993. He only knew them in prison.

Elazığ police report dated 7 April 1995 to Elazığ public prosecutor

151. This stated that, in response to a request (in March 1995) that the identity of Mahmut Yıldırım, known as Sakallı, Yeşil or superintendent Ahmet Demir, be established and that he be apprehended, superintendent Ahmet Demir did not exist in their Directorate and that according to the district's muhtar the address No. 13 Panarlı Sok., Aksaray Mah., Elazığ, did not exist and the individual could not be apprehended. The employment address, Ferrokrom Tesisleri, was within the jurisdiction of the gendarmes and outside their own jurisdiction.

Gendarme report dated 3 April 1995

152. The report by the local station commander, counter-signed by the muhtar of Geyiksu, stated that the investigation into the address of Yusuf Geyik registered at Geyiksu village concluded that he did not live there or at AtadoÄŸdu village. He did not have any relative and had moved to Ä°stanbul 8-10 years before. His present address was unknown.

Gendarme report dated 28 April 1995 to Elazığ public prosecutor

153. This report, from the Elazığ provincial gendarme command, referred to correspondence from the Malatya State Security Court prosecutor on 13 March 1995 and from the Elazığ public prosecutor of 6 April 1995 requesting the location and apprehension of Mahmut Yıldırım.  It stated that his address within their jurisdiction had been investigated and it was concluded that his identity and address were beyond establishment.

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

Newspaper reports

Aydınlık, 26 August 1993

154. In the article headed, "Here is the killer in the unidentified perpetrator cases", it was reported that a special warfare officer had revealed the killers of Halit Güngen, Metin Can and Hasan Kaya as being Ahmet Demir, known in Tunceli as Sakallı (the Beard), and DYP Parliamentary candidate Mehmet Yazıcıoğulları. He said both were responsible for most of the killings in the Diyarbakır, Tunceli, Elazığ, Bingöl and Bitlis areas. It was concluded that they were the underground civilian extension of the contra-guerillas, armed and paid by the State.

Özgür Gündem, 4 March 1994

155. In an article entitled "Killers are protected", Erol Anar outlined the killing of Metin Can and Hasan Kaya. He stated that Major Cem Ersever, who had been involved with contra-guerillas and who had given information to the Aydınlık newspaper, had named Ahmet Demir (Yeşil), the chief of the contra-guerillas, and Mahmut Yazıcıoğulları as their murderers. The Kurdistan news agency (Kurd-HA) in its bulletin of 14 October 1993 had announced that Ayhan Öztürk, the trigger man of the murders, had been captured in Malazgirt and his confessions later published in the Özgür Gündem.  In an inset report, entitled "Contra's confession" accompanied by a photograph of Ayhan Öztürk, details were given of Öztürk's statements as told by the Kurdistan news agency. Öztürk said that confessor Alaattin Kanat and İdris Ahmet trained him as a contra in Diyarbakır prison. When released, he was taken to one of the important contras codenamed Yeşil. Yeşil received orders from the Minister of the Interior. He, Öztürk, carried out the murder of Can and Kaya along with İdris Ahmet and Mesut Mehmetoğlu. Yeşil took their address and telephone numbers from the Elazığ Security Directorate. They introduced themselves to Can and Kaya as being from the PKK and asked them to treat a wounded person. Can and Kaya's interrogations were carried out in Elazığ Security Directorate.  Yeşil, the Syrian İdris Ahmet and two or three interrogation officers applied torture. He, Öztürk, executed them at a bridge  between Tunceli and Mazgirt. These confessions were stated as having been confirmed by witnesses of the incident and Major Ersever.

Aydınlık, January 1994 (exact date not indicated)

156. In an article entitled "The killer of Can and Kaya is Yeşil", Soner Yalçın cited Major Cem Ersever as implicating Yeşil in the killings of Ayten Öztürk and Can and Kaya. Ersever was cited as explaining how Yeşil committed all the murders in the Elazığ-Tunceli-Bingöl area. The name of Ahmet Demir (Yeşil) and Mehmet Yazıcıoğulları would crop up if the unknown perpetrator murders were investigated. They worked together. Yazıcıoğulları was the financier and received his money from the State, one way or another. He described  Yeşil as about 42 years old and alleged that he was known to a member of Parliament. Incidents were carried out by teams of 4-5, all of them from Bingöl, except for Yeşil. They spoke a Kurdish dialect. Yalçın referred to his earlier articles of 25-26 August 1993 where part of Ersever's revelations were revealed but his name not disclosed.

157. The article referred to the Kurdish news agency bulletin of 14 October 1993, concerning Orhan Öztürk. Öztürk was described as having been trained in the PKK camps and becoming a confessor after his apprehension. His confessions on being captured by the PKK were published in the Özgür Gündem on 18 November 1993. An alleged link between Yeşil and Elazığ Security Directorate was repeated.

Aydınlık, 23 January 1994

158. In the article "Official document: Yeşil is a state intelligence agent", a text from Mehmet Kocademir, mayor of Tunceli, was set out. This stated that in Tunceli, in particular in the Nazımiye and Ovacık districts, an individual known as "Sakallı" and "Yeşil" carried out threats, tortures and pressures with the aid of military teams. The council brought this to the attention of the Governor and brigadier general who said the individual was not connected with them. Then they contacted the Human Rights Committee of the Turkish Grand National Assembly who sent a delegation. The delegation met in the council and over three days met victims of Sakallı's torture.  A report was taken back to the assembly. Later, the chairman of the Committee sent a letter to him dated 10 September 1991 which letter was reproduced in the article. The letter stated that, following research and investigation, the bearded man ("Sakallı") and his friends who were alleged to be the source of persecution, were people who worked as intelligence operatives. This team was removed from office on 25 April 1991 as a result of complaints arising from their working methods.

Radikal, 9, 10 and 11 February 1997

159. In a series of articles under the heading "The killing squad of the gang talked to Radikal,  two journalists related a conversation with two self-confessed PKK confessors, Murat Demir and Murat İpek. In the first article, entitled "Two confessors from Ahmet Demir's squad: we met Çiller and Ağar", the confessors allegedly stated that they were members of the team of the mysterious "Yeşil" uncovered after the Susurluk incident. It was stated that a large part of the 3000 murders in the South-East region were conducted by JİTEM and the squad of Ersever and "Yeşil".

160. In the second article, Demir was cited as saying that the unattributed killings began with the murder of HEP leader Vedat Aydın. Yeşil carried out this killing with the involvement of JİTEM and an officer from the Special Operations Force. Cem Ersever gave the order to kidnap him. Yeşil, Alaattin Kanat and Hayrettin Toka were involved in the killing of Mehmet Sincar (DEP) in Batman. After the shooting, they came to the district gendarmerie to change their clothes. The order came directly from Ankara. All the police, soldiers and MİT knew about them. They used to stay in the police guest house in Diyarbakır and special places were prepared when they stayed with soldiers.  They got as much money as they needed. They were called contra-guerillas. İpek said he used to work with the police, gendarmerie and MİT  while Demir worked with JİTEM. İpek described how Musa Anter was killed, stating that the State of Emergency Governor knew about it. Demir stated that he was in the PKK for five years and when he surrendered he was told that his case would be closed if he worked in the struggle against terrorism. It was claimed that they were in prison but they came in and out as they liked. He served only five months of his 22 month sentence.  Demir stated that there were two "Yeşils". One had  the rank of colonel in the gendarmerie general headquarters, was from Muş and came to Ankara in 1992. The other was from the youth group of the right wing nationalists. Yeşil used to give Demir orders. He directed the organisation. Another confessor planned the unattributed killings. Özer Çiller and Mehmet Eymür were at the very top. Demir stated that Ersever was killed because he had asked for money, a share from the heroin business and was going to talk. His adopted son from Syria, Mete, killed him; Yeşil was also involved.

161. In the third article, Demir stated that at the beginning there was no Hizbullah organisation. They used the name "Hizbullah" until the end of 1992. Many operations were conducted by using the name "Hizbullah". But after a while, the Hizbullah organisation went out of the control of Yeşil and Adil, and Hizbullah started operations on their own behalf. Later on, they provoked fighting between Hizbullah and the PKK. This was Yeşil's idea. Yeşil did not have a particular region for which he was responsible but he made Elazığ his base. He recounted making a rocket attack on the lodgings office of a public prosecutor in Cizre/Şırnak who had been talking against them. The rocket was obtained from the district gendarmerie. After the killing of Ersever, the Yeşil who had military rank took over his responsibilities and wanted to get rid of the other Yeşil, Ahmet Demir from Bingöl. Yeşil gave the order to kidnap and kill Can and Kaya. Çatlı was said to be involved in this - he came to Elazığ to interrogate two people and then left again. Yazıcıoğulları did not get much involved in the unattributed killings. He was largely interested in the financial aspect of the business and was a friend of Yeşil.

Özgür Politika, 1 February 1997

162. In a cover page article entitled, "The triggerman of one out of a thousand operations is uncovered", there was a report on the confessor Murat Demir who was said to have worked for JİTEM. He said that they gave regular reports to the public security commander in Diyarbakır and that the JİTEM commander prepared lists of those to be killed. A photograph accompanied the article which was alleged to be that of Mahmut Yıldırım, codenamed "Yeşil".

163. In an article on page 11, entitled "The murderer of Işık and Karaağar is JİTEM", the confessor Murat Demir was cited as having said that the dirty war run by the State against the Kurds was supported by drugs money. He carried an ID card as a lieutenant as well as a JİTEM ID card. He was introduced to Ersever in 1990 and worked for him for many years. He joined in operations with Yeşil in villages, wearing guerilla uniforms. Details were given of alleged involvement of Demir and JİTEM in a number of incidents including the unattributed killings of Işık and Karaağar, both of whom were distributors of Özgür Gündem. The General Secretary of CHP (Republican People's Party) Sinan Yerlikaya said that the photo published earlier by newspapers was the real "Green", whose name was Mahmut Yıldırım, registered in Bingöl, Solhan and that the photograph was probably from a state archive. He gave the opinion that there was one Yeşil, not two.  When he was working in Dersim, Yeşil was referred to as Ahmet by the Tunceli police headquarters and the brigade commander. He was using at that time the ID card of Ahmet Demir and thereby hiding behind the Ahmet Demir who was the chief of police headquarters. He pointed out that in order to distort the target the number of Yeşils mentioned were two or three.

"The secrets of Major Cem Ersever", by Soner Yalçın

164. This book, first published in January 1994,  contained passages dealing with the killing of Metin Can and Hasan Kaya. It recounted the author's meetings with Major Cem Ersever, and what Ersever said about this incident. This implicated Yeşil, Mehmet Yazıcıoğulları, Orhan Öztürk, İdris Ahmet and Mehmet Mehmetoğlu. See Appendix III (pp. 98-100).

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

165. 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.

166. The report referred to statistics of 908 unsolved killings. It described an attitude of officials coming to the region (south-east) as seeing themselves as the final authority. A majority of positions in administration were identified as being filled by inexperienced people, including in the judicial system newly graduated judges and prosecutors. Comment was made that this blocked avenues of redress for citizens. Inexperienced officials had difficulties in using their authority, while certain people sought to prevent the few experienced judges and prosecutors from fulfilling their duties. Reference was 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 Diyarbakır courts of justice having occurred without any action being taken.

167. Reference was 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 walked openly in the streets and carried out illegal activities. The report cited information derived from the Deputy Governor and police chief of Batman to the effect that the Hizbullah 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.

168. The report concluded that on the whole the State was 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 concluded with 29 recommendations, including, inter alia, the launching of investigations into allegations of official involvement in the killings.

The Susurluk report

169. 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 Turkish Grand National Assembly committee dealing with the Susurluk incident. The report was issued in January 1998. The Prime Minister made the bulk of the report public, though certain pages and annexes were omitted.

170. 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 Çatlı, an former extreme right wing militant accused of killing seven students, who was 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.             

171. 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.

172. The report is summarised in Annex II to the present 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 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.

173. 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 inquiry 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.

174. 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 stated that the journalists named in the Susurluk report were Cengiz Altun, Hafiz Akdemir, Yahya Orhan, İzzet Kezer, 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

175. The applicant has submitted an article which reported on the Susurluk report as vindicating the newspapers such as Özgür Gündem, Özgür Ülke, Yeni Politika and Demokrasi, which had reported killings by contra-guerillas, confessors, village guards and special forces. The article  alleged that, according to the report, journalists, reporters and distributors of newspapers reporting on these matters were systematically killed. Minister of State Eyüp Aşık 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 Kılıç, were killed or kidnapped by the State. The Government have denied that the Minister made any such statement.

2) Oral evidence

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

The applicant

177. The applicant was born in 1958 and was living in Switzerland.  Before the disappearance of his brother, he was living in Antalya. He did not see his brother often but spoke to him frequently on the telephone. His brother was a Kurdish intellectual, but not involved to his knowledge with any political party. The applicant had also known Metin Can for 10 years. His brother was in close contact with the Human Rights Association ("HRA") and went there frequently. When asked whether his brother treated persons wounded in clashes, he stated that his brother treated wounded persons giving priority to the medical needs in accordance with the Hippocratic oath.

178. Between 1990 and 1992, his brother worked in Şırnak. His journalist friend Halit Güngen was killed and at his funeral, the Şırnak chief of security threatened his brother, saying that he would end up like that. On a second occasion, when people wounded during the Nevroz celebrations were left outside the hospital, the hospital staff having closed the doors, his brother broke the door down and took the patients into a treatment room. A nurse, the wife of a policeman, tried to stop him whereupon his brother slapped her. She telephoned her husband who came to the hospital, threatened his brother and took him into custody. While in custody, he was told by the Governor of Şırnak personally to give up these activities. He was released on the order of Selim Sadak, a former member of Parliament and HEP party member. He obtained a medical report to request leave for emotional and financial reasons but was dismissed from his post by the office of the Governor. He was then transferred to Elazığ to work in a public health care centre at Poyraz. In Elazığ, in July 1992, the door of his house was broken down by the police and a search carried out. In November or December 1992, he was again harassed by the police when he was in the hospital donating blood for Şurzan Demirkapı, the son of Rodi Demirkapı who had been killed by contra-guerillas. When the applicant had seen his brother at Christmas, his brother said that he was under constant surveillance, that the police made reports on him and that his life was in danger.

179. The applicant spoke to his brother on 20 February 1993. He again said that he did not feel safe but did not mention any specific threats. On 22 February, towards the evening, he was informed that his brother had disappeared. He left for Elazığ immediately. On 23 February, en route to Elazığ, he telephoned for news when his bus stopped. He talked to his brother, Hüseyin Kaya, who had mentioned receiving one or two telephone calls at the house in which Kurdish music was played, accompanied by sounds of torture (moaning and difficult breathing). They did not tell the applicant's father about this. On the same day, shoes and a handbag were found next to the place where persons were protesting about the missing persons. Metin Can's brother identified one pair of shoes as belonging to Metin Can but Hüseyin Kaya said that the other pair of shoes did not belong to their brother. A police officer who was present said mockingly, "And tomorrow their trousers will arrive."

180. The applicant sought to gather all the information he could. He was granted an interview with the Governor of Elazığ and asked him to make efforts to find the missing persons as soon as possible. The Governor said that it was impossible to carry out a search in such a large region. Rumours were spread that his brother had gone to tend PKK members. This was said to Şerafettin Özcan. While the applicant stayed in Elazığ, a "beggar" turned up near the entrance of the family's apartment building and stayed during 10-15 days, monitoring who was going in and out. He himself was followed while he was in Elazığ.

181. When the car his brother was travelling in was discovered in Yazıkonak, the applicant went there to investigate. Some of the villagers in Yazıkonak had seen his brother on the night when he disappeared. They said that two persons were forced into a car (a white military Landrover) by people who had radios. From other sources, he heard that, when the car stopped to get petrol, the attendant recognised Metin Can and asked where he was going to which Metin answered "I'm going somewhere with the officers." He did not know where the petrol station was.

182. The day  before the two bodies were found, the applicant heard that two people had been interrogated and died at Tunceli security headquarters and that the subject was discussed in the presence of a lawyer. He seemed to recall that this information came from a newspaper correspondent for "Cumhuriyet" or "Milliyet" but referred to many speculations, gossip, falsifications and manipulations occurring at that time. He referred to information being passed to the police from officials amongst the people gathered in the Social Democratic People's Party (SHP) building, from which information was being relayed to Ankara and other places.

183. The news of the finding of the body reached him in Elazığ at about 10.00 hours on 27 February 1993. It was a rumour, the source of which was Ali Demir, a lawyer in the Tunceli HRA. The President of the HRA in Tunceli passed on the news to the Elazığ HRA and the SHP party building. Children fishing in the creek found the bodies and told the police. There  was a police station about  two to three kilometres away. As soon as they heard that two unidentified bodies had been found, they went to the scene. They were not invited or informed by the authorities. When he came to Tunceli to the location of the bodies, they passed through 8-10 military checkpoints. Vehicles were usually stopped at these checkpoints.  First, the identity cards were checked, and then the boot and interior of the vehicles were searched. He referred to the alleged existence of vehicles with special number plates, used by contra-guerillas or narcotics dealers, which were never searched. This was uncovered by the Susurluk incident which also revealed the use of special identity cards, the holders of which could not be searched, checked or interrogated.

184. He arrived at the scene at about 14-15.00 hours. The bodies were on the ground, face down, hands bound behind them with copper wire.  The left side of his brother's face was on the ground. He saw a red cord mark round Metin Can's neck as if he had been strangled. His brother was wearing only a shirt and trousers, socks and shoes while Metin Can was wearing a sweater, trousers and socks. The socks of both were dry. He did not notice much blood. The ground was frozen with patches of ice. When they arrived, the police and gendarmes were  preventing the public from approaching the bodies. After the applicant identified the body, he was pulled away.  The Tunceli public prosecutor arrived later. On the way from the scene to Tunceli State hospital, the applicant's car was stopped and checked once or twice and searched.

185. The applicant was present at the autopsies. The first took place at Tunceli State hospital. His brother was unrecognisable and looked so awful that he left several times. He noticed signs of minor blows and injuries on various parts of his body. There were purple, circular bruises on his fingertips and bluish marks between the nails and the skin. There were marks on the extremities of his toes. There were also small scratches on his knees, small bruises on his arms,  marks on his forehead and marks cut into his wrists. His feet were swollen and all white, as if he had been a long time in the cold or in cold water.  They requested a second autopsy from the Elazığ public prosecutor as they thought the hospital was inadequate and the staff hasty and untrained. At the second autopsy, the marks were still there. The public prosecutor said that the two men had been tortured. He did not think that the second autopsy was adequate either since there was only an external examination and no blood, urine, or muscle fibre analysis done or X-rays carried out to establish if there was any internal bleeding.

186. The family wanted to have the funeral later but the Governor's office ordered it to take place on 28 February. 6000 people attended. He was at the head of the procession and the special team police tried to provoke him. The regular police were present to direct traffic and for crowd control while the special teams policemen were hostile and looked ready to attack. There were "panzers" in the sidestreets. When they returned to the house, a plain clothes police officer came to present his condolences, saying that an injustice had been done. He talked to the police officer in the kitchen, asking what had happened. The police officer said that this was a typical crime committed by the State, describing operations where intelligence was gathered, traps set, and persons abducted. The police officer said that the perpetrators were protected by the police and that once a month certain police and military authorities were informed of the place, manner and perpetrators of killings. The police officer asked that his name be kept secret.

187. He recalled hearing about the incident in Pertek involving Yusuf Geyik from villagers from Pertek who came into town frequently and talked to people who passed on the news to the applicant. According to information which he received from close friends, Mahmut Yıldırım, codename Yeşil, had been living in Elazığ and been involved in a neo-fascist movement. He was well-known in Elazığ and was real. Later, he had been employed by the police in crimes, intelligence matters and as a hitman. Because of his experience, JİTEM appointed him to command the contra-guerilla forces trained in that region. His address at Elazığ was known and the fact that he was working in the sales office of the mine in town (described as the Ferrokrom factory elsewhere), though the police said he worked at the mine 70-80 km away. He used different names, Yeşil, Sakallı and more recently was called Abdurrahman Buğday. He and his family were protected by the authorities. When Aydınlık published his telephone number, the applicant rang it but the woman who answered it refused to say who she was and hung up. In the 1990's, the name "Yeşil" began to be used however by a number of people, which succeeded in confusing the identity and the issues and was part of a policy of obscurity.

188. The police paid lipservice to making enquiries about the information passed onto them. Though they were given two addresses, No. 13 Pancarlı Street, and Mezarlık Mevkii Grup Everli, the police changed the first from Pancarlı to Pınarlı and said that it did not exist. Another enquiry however indicated that he had left his neighbourhood 10-15 days earlier.

189. About 20 newspapers and magazines of various leanings wrote about the incident. All shared the view that the crime had been committed by the State or did not deny that it had been committed by the State. They read in the newspapers and other published newspapers that it was Mehmet Mehmetoğlu and İdris Ahmet who summoned his brother and Metin Can to treat someone and that the third person, Erhan Öztürk, was the actual hitman. Their leader was Mahmut Yıldırım, who was responsible for the implementation of the  operation. The person who planned it was Alaattin Kanat, who was responsible to the office of the State of Emergency Governor. This was part of the systematic killings which occurred from 1993 onwards. He had been shown a document by a friend in Ankara, a decision of the National Security Council dated December 1992 or January 1993, which stated that individuals, families, tribes, villages, neighbourhoods and towns who sympathised or adhered to the Kurdish movement had to be made to turn away from it and be eliminated. The centre directing the operations was within the military.

Şerafettin Özcan

190. The witness was born in 1953 and was resident in Germany. In February 1993, he lived in Elazığ, where he was secretary of the HRA and worked as a journalist for "Cumhuriyet". Metin Can was his colleague in the HRA and Hasan Kaya was a close friend. They were all subject to threats before the incident. Also Metin Can complained that he was being constantly followed by plain clothes policemen and on one occasion claimed that people had been inside his house. He himself was taken into custody in 1992 about the time the HRA was founded. He was told by the police to leave the area or he would be found dead one night. The HRA was frequently searched and the identities of people there checked. Before the HRA was founded, they had taken the Elazığ prison administration to court, alleging torture by 72-74 prison officers. Metin was threatened by the prison officers and said that they wanted to have him killed. There were many attacks and threats made against the HRA in the south-east. The officers in Cizre and Hakkari were forced to close down.

191. On 21 February 1993, in the morning, (later he stated the time as being noon) he met Metin Can in the street in front of the coffee house. Metin Can told him that two people had telephoned him the evening before, wanting to meet and saying that they needed help. He had refused due to the lateness of the hour. They had called him in the morning and he had told the men to meet him at the coffee house. They had said that they were unable to meet him at the HRA. He asked Şerafettin Özcan to stay with him. A third man joined them at the coffee house, one of Metin's clients. The two men came to the coffee house, one tall with dark, curly hair, the other a few centimetres shorter with blond hair. He had had sketches drawn up of their faces. in Germany in about May 1993. He had never seen either before. Neither had Metin. Metin went to his house with one of the men, while the others remained in the coffee house. The one who stayed with Şerafettin Özcan spoke in Kurdish, saying in bad Turkish that he knew little Turkish and that he was Syrian. He was called Vedat. At around noon, when Metin called him by telephone from his house, Şerafettin went to Metin's house leaving the Syrian in the coffee house. Metin, his wife Fatma and the darkhaired man were there. Metin went to fetch the Syrian from the coffee house. The darkhaired man said that he was a Turkish Kurd.

192. The two men had told Metin that there was wounded person that they wanted him to see. He was hidden out of town. When they were told that medical treatment could not be given at such a place, they said that they could find people in Yazıkonak village who could help them and that the wounded person would be taken to a house there. It was arranged that, after the wounded person was taken to the house, they would call Metin by phone and they would come to meet the men at the entrance of the village. Metin called Hasan Kaya by phone and he came to the house. The two men left after that. At about seven, the two men rang to say that they were ready. Metin asked Şerafettin Özcan to look after Fatma and his child, saying that it would not take long and that they would be back early. Metin Can and Hasan Kaya looked calm as they left. Hasan Kaya carried medical equipment.

193. Şerafettin Özcan had guessed that they were heading for trouble. He did not know if Metin had similar suspicions.

194. Şerafettin Özcan stayed the night at Metin Can's house. In the morning, at his office, he checked whether any accidents or incidents had occurred. He frequently called Can's home and office to see if he had returned. Around noon, Metin's brother Hakan arrived, distraught, saying that Fatma had been crying on the phone. He went to the Can house. Fatma said that one of the men from the day before had called, saying, "We killed both of them." She recognised his voice and he gave his name as Vedat. Şerafettin, Şenol (from the HRA) and Fatma went to the public prosecutor to say that her husband and Hasan Kaya had disappeared. The prosecutor seemed slow to grasp the situation. He took Fatma's statement and told her to take it to the Security Directorate. She went there with Şenol. Şerafettin went to his office to notify the press and the HRA.

195. During that day, at a time unspecified, Şerafettin Özcan went to the SHP party building where there were 200 people, some of whom started a hunger strike in protest at the incident. Fatma received another call at home at about 13.30 hours from some-one calling himself Dr Savur Baran. The caller wanted to make it appear that Metin Can and Hasan Kaya were in the hands of the PKK. Şerafettin called the director of the Anti-terror department and requested that incoming calls be traced. He was told that Fatma Can should go to the prosecutor to make the request and that the Kaya family had already made a request.

196. Later, between 16.00 and 18.00 hours, the police came to his office and asked him to come with them to make a statement. Before he went with them, he made sure his people knew where he was going. When he was at the Security Directorate, the questions put to him implied that Can and Kaya were to be considered as being in the hands of the PKK. He did not tell the police all the details he had recounted above, since he was afraid. In particular, he did not want the police to know that he had seen the two men who had contacted Can. One police officer, the assistant to the director, threatened him with torture and said that Can and Kaya had gone to help the PKK. Another suggested that the doctor had gone to treat patients in Şırnak. The police asked him several times where and with whom Can and Kaya had gone and when he said that he did not know, they said that they were sure he knew. He replied that it was for Can and Kaya to answer such questions. He thought from the questions that the police were well aware of the meetings of the previous day. While he was there, news came that the car driven by Can and Kaya had been found at Yazıkonak. Şerafettin insisted on going with the police to see for himself. There were cigarette butts on the ground near the car, from which he deduced that Can and Kaya had waited for a while. The boot was locked but the doors were open. In his view, the police did not examine the car thoroughly. They made a joke when opening the boot about whether a bomb might be inside. They did not take enough fingerprints. The villagers had gathered. They told him that they had heard an argument. He did not hear directly that they had seen two men forced into a vehicle by two men with walkie-talkies. He later identified a photograph in a newspaper of Ayhan/Orhan Öztürk as resembling the brownhaired man but he could not be sure.

197. On or about the evening of 23 February 1993, he went to Ankara with Fatma Can and others. He did not return to Elazığ as he felt his life was in danger.  He referred to a press release issued by the Elazığ security director on 27 February 1993 on the day the bodies were found which stated that Metin Can's wife was hiding something and stating that the PKK was frustrated because it could not take over Elazığ and was punishing people who were not successful. His own view was that the Elazığ security director, the director of the Anti-terror department, the governor and the Minister of the Interior knew about the incident. The reason that Can and Kaya were held so long before they were killed was to allow them to prepare an ambience in which they could hold someone else responsible. It served a number of purposes to blame the PKK for killing their own people and showing how ruthless they were and also by the way in which Can and Kaya were held for a long time, their shoes found, sounds of torture being played over the telephone, it pursued the aim of terrorising their opponents.

198. There were no less than four checkpoints between Elazığ and Tunceli. He recalled that on a bus journey to Ovacık the passengers had to show their identity cards. He also saw that they noted down the numbers of all the cars going in and out of Tunceli on one occasion. It would have been possible to pass the checkpoints if one had a state employee's card or a police identity card, otherwise one would have been searched.

199. He knew Bira Zordağ. Zordağ had been in custody and interrogated. On leaving prison, he had visited them and said that they had asked questions about Metin Can and Şerafettin Özcan. He had warned Metin Can that he had received the impression that his life was in danger.

200. In reply to the Government Agent, Şerafettin Özcan confirmed that he had been convicted of membership of the Dev-Yol organisation. Originally sentenced to death by hanging, his sentence was commuted to a sentence of imprisonment. He was released after eight years.

Bira ZordaÄŸ

201. The witness was born in 1960 and lived in Switzerland with refugee status. He lived for about eight years in Elazığ until October 1992 and then worked in Adana. He had lived also for a year in Tunceli.  He had only met Hasan Kaya once. He knew Metin Can well, as he had been a member of the Tunceli HRA.

202. On 15 December 1992, the witness was taken from his work in Adana to the Adana-Kozan Security Headquarters, where he was kept two days. He was not asked any questions. On the third day,  he was transferred to Elazığ Security Headquarters. Three to five kilometres from the place known in Elazığ as "1 800 Evler", the torture place, he was blindfolded and told to put his head down on the seat. At the torture place, he was put in a cell. After a few hours, still blindfolded, he was taken to a room, where several people questioned him. They told him that they knew of his ties to the PKK (four of his nephews had joined). They questioned him about doctors in Elazığ, wanting to know about  Hasan Kaya and Dr Bektaş Yıldız in particular, saying that they treated wounded guerillas and supported the PKK. They said that Kaya had treated a wounded guerilla called Şahin brought from Hozat and that he would be punished. Zordağ said that he had no information. He was also asked about jurists and lawyers, in particular about Metin Can who they said was in contact with the PKK. He had said that he did not know anything about his political activities.

203. Shortly afterwards, he was taken to another room, stripped and hung from the ceiling for about an hour and a half. He was hit in the face. He was hosed down and taken to his cell, still naked.  This went on for twelve days.  He was always tortured at night.  He was told at one point that the contras were there and if he did not talk he would be handed over to them to be killed. The name of Yeşil was mentioned on several occasions as a threat of this kind. They also told him that they would inform PKK sympathisers that he had confessed and that the PKK would kill him but that if he made a statement containing the information they wanted the State would protect him.  On the twelfth day, he was taken to court. But when he refused to sign the prepared documents, he was taken back to the torture room and suspended again.  They took his hand, put it on the paper and told him to sign. When he was taken to court again, there were sixteen detainees present and they were passed in front of a civilian sitting in the hall, who was supposed to be a doctor signing reports that they had not been tortured. When it was his turn, he placed his hands, on which the fingers were all black, on the table but a police officer from the special action team removed them.  The doctor wrote that they had not been tortured. They were taken before the judge or prosecutor one at a time. On their way to the court, the special teams had threatened to torture and kill them if they denied what was in their statements. The police entered the room with them also.  He told the judge and prosecutor that he had not made a statement and that the statement prepared by the police was a fabrication. The judge told him that he fitted the profile of a terrorist and he was arrested.  On 3 February 1993, he was released. He was acquitted in November 1993.

204. On the day after his transfer to Elazığ prison, lawyers, including Metin Can, came to the prison to obtain powers of attorney. He told Metin Can that the police had said that they would kill him. After his release, sometime between 5 and 10 February 1993, he met Can in Elazığ and told him in detail about what he was asked under torture.

205. Later, after the bodies of Can and Kaya were discovered, he was threatened on three-four occasions by police officers in Mersin, who told him that he would suffer the same fate if he did not give information. He also received phone calls at night at home in which sounds of weapons and shouting were heard and threats were made.

Fatma Can

206. The witness was born in 1965. Before coming to live in Elazığ with her husband Metin Can, they had lived for several years in Kars (1990-1991). Her husband was one of the founders of the People's Labour Party there. Since he had come under tremendous pressure from the police, they had moved to Elazığ. While they were in Kars, the police searched their house and her husband used to receive threatening phone calls. At Elazığ, nothing happened for a while. Her husband founded the Human Rights Association and became the President. Then the threats began again. There were even more threats after her husband uncovered the torture occurring at Elazığ prison and the guards were disciplined.

207. A few months before her husband's death, a state official told him that a letter had arrived from the Ministry with a confidential file and that a conspiracy was being planned against him and warned him to be careful. Her husband was followed by plain clothes policemen. Her  husband was not a member of an illegal organisation. He did take cases of PKK people. He had told her that the police asked detainees about him. She knew Hasan Kaya who had been a friend of her husband's since their school days. Their families were friends. Hasan Kaya was attending English classes with her and her husband, and used to visit them often. About six months before the incident, Hasan Kaya told them that he was under great pressure at Şırnak and that he was being threatened. He told them there had been incidents during the Nevroz festival. In particular, the hospital doors had been closed on the injured people and he had taken them in for treatment. He had slapped the wife or girlfriend of a MİT official who would not open the door of the operating theatre. She had not heard that he was threatened in Elazığ. Afterwards she heard that he had gone to help PKK supporters, or guerillas. When she first went to the Security Directorate, she saw they had a file on him.

208. On the evening of 20 February 1993, after they came home, there was a phone call. The callers said that they had come to the house earlier and wanted to come to the house immediately. Her husband refused to allow them to come at such a late hour and said they should come to his office the next morning. They were rather nervous after this call, not knowing what it was about. The next day, 21 February 1993, was a Sunday. Her husband went out. He came back about midday. She was talking to her brother on the telephone and her call was cut off. Immediately, the phone rang. Her husband answered it and when he said, "I was waiting for you. Why didn't you come?" she realised it was the people who had called before. Her husband had waited in his office and they had not come. They would not give their names on the phone and arranged to meet her husband in a coffee house. They said that they were in trouble and needed help. She was terribly worried. She went to the coffee house, carrying their 18 month old baby. Her husband saw her and was angry, telling her to go home. When she asked what was happening, he said that the men had not yet arrived but his friends in the coffee house warned him that it could be a conspiracy against him by the police. She walked around, for 15 minutes to half an hour. Her husband came out again, told her that the men had come, that he knew them and that she should go home. On the way home, her husband passed her in his car and there was another person in the car. They arrived at the house after her.  The man with her husband was dark. They went into a bedroom and closed the door. Her husband came out and said, "Someone's been injured. I have to help him." At his request, she telephoned Hasan Kaya to come. They also called Şerafettin Özcan to come. Her husband wanted to ask Şerafettin to verify whether they had been sent by someone in Diyarbakır as they claimed. When Şerafettin arrived, the situation was explained and as their phones were tapped, he went out to the Post Office to phone Diyarbakır. However he was unable to speak to the person concerned who was not available. Hasan Kaya arrived in his brother's car. She was not sure who arrived first.  Either Özcan or her husband went to get the second man from the coffee house. When he arrived, he went straight into the bedroom. Hasan and Şerafettin went in and out of the room. They talked a long time. When the baby woke up, she had to go in. She thought from their reaction to the child that the two men were bad people. She was worried and wanted to warn her husband. She called Hasan Kaya out of the room and told him what she thought and that they should not believe what the two men said. He was angry with her.

209. Neither her husband nor Hasan Kaya had seen the two men before. The dark one looked very worried. His eyes were bright red and when she asked he said that he had not slept for a week. The fairhaired one had hazel eyes and red cheeks. He said that he had been in the PKK for eight years and that he was Syrian. He was not at all hesitant. Both were cleanshaven and very tidy. She heard them discuss how the injured person could be helped. They said that there had been a clash three days ago, one person had been killed and one injured and that they had lost contact. They said that they had phoned Diyarbakır and had been told that the President of the Human Rights Association, Metin Can, would help them. They said that they did not know the area. They wanted her husband to go to the place where the injured person was.  She tried to dissuade them from going. She mentioned the name of a surgeon, saying that after three days the wounded person would need treatment by a surgeon in hospital conditions. That surgeon was later threatened. From the description given, her husband worked out that the injured person was in the Yazıkonak area. It was arranged that the two men would leave first and that after collecting the necessary medical equipment, her husband and Hasan Kaya would go. The men asked for directions to a taxi rank when they left. She left the house to go to a grocer's store and followed them. From her observation, they knew Elazığ very well but when she told her husband this, he was furious, stating that there was an injured person to consider and that she should not do such things without telling him. Hasan Kaya and her husband went out to get antibiotics, local antiseptics, material for sewing wounds etc. As soon as they returned in the evening, the phone rang. Her husband said, "We're on our way." He told her that they would be back in a couple of hours.  He told Şerafettin to stay and help her with the baby. He apologised to her for bringing the men to the house.

210. Her husband did not come back that night. She was worried and thought there might have been clashes. A man telephoned the house the next day at about noon.  He did not speak fluently and, though she could not be definite, she thought that he was one of the men from the day before. He said "This is Vedat" and that "We've punished Metin and his friend." She guessed from that that he was a policeman but he denied it. She was one hundred per cent sure that her husband was in the hands of the police. She was angry with the State but wanted to protect her husband. Later, when she knew her husband was dead, she gave up hope. That was why she did not tell the police all the details of what they knew already. Later, when she talked to the police, the public prosecutor and the Prime Minister, they all asked her to tell what she knew, insisting that she was not telling them everything, and she knew that they must already know. She thought that if she spoke it would be easier for them to blame the PKK and they would kill her husband at once. She thought that they would accuse her too. She did not lie in her statements but there were things which were missing. She did not want to talk to the public prosecutor or police at all but did so when her friends insisted and when she was summoned.

211. There were two further phone calls to the house, one from a man who said that he was Dr Baran. She was not there at that time. The day after the phone call, probably on the Tuesday evening, she went with Şerafettin Özcan and four others by bus to Ankara, arriving on the Wednesday, 23 February. They spoke to İsmet Sezgin, Minister of the Interior but did not get an appointment with the Prime Minister. Many groups made tremendous efforts, appealing for her husband to be released. Sezgin told her that her husband was alive, that he had talked to the anti-terror squads and that he would return home, but also kept asking her to tell what she knew. While she was in Ankara, her husband's shoes were found near the SHP headquarters. Her husband's brother had identified them.

212. After three days, she returned to Elazığ. That morning she read in Cumhuriyet that the police had made a statement about internal fighting in the PKK. When she heard this, she guessed that they had already killed her husband or were about to. When she reached Elazığ, she was told that two bodies had been found and that she should go to Tunceli to identify them. They drove there immediately, with Dr Mahmut Kaya and his sister. They drove through eight checkpoints on the way. When she saw the body of her husband under the bridge, wearing the pullover which she had knitted, she fainted.  The police were laughing at the scene.

213. She went to see his body in the morgue the next day. She could not bear to look at his entire body but she saw that he had been tortured and this upset her more than his death. There were marks of cigarette burns, his eyes were pierced, his lip burst and his neck marked with an open cut.

214. When shown the sketches of the two men, she stated that she had seen them before in the newspaper. She did not remember the dark one very well but the second sketch looked very like the fairhaired Syrian.

215. After her husband's death, many of her medical colleagues received threatening calls. One of them received a call from "Vedat" who told her colleague to leave Elazığ or he would come to a bad end. Many of her husband's colleagues left Elazığ. She was followed by the police in Elazığ. Once they called her to come to the police station, stating that there were two persons to identify but she did not go until her husband's brother said that they should go together. They went to a place known as "1,800 Evler" but the two persons were not the men involved in the killing. When she complained to the public prosecutor about the police around her, he said that it was for her own protection. She was summoned often to the Security Headquarters through the public prosecutor's office, through lawyers but she did not go.

216. As regarded any discrepancies between what she said and Åžerafettin Özcan's account, she pointed out that Åžerafettin was with the two men longer and probably knew more than she did. She was not long in the room with the men.  Even though the two men had said that they came from the mountains, she instinctively knew that they were working for the State. For example, they said they had been in clashes three days ago but were cleanshaven. She did not believe that the PKK were powerful enough to kidnap two men in the middle of the city, torture them, take them through eight checkpoints and execute them. When asked what she knew about the Hizbullah, she recalled that Hasan Kaya had asked the two men what they knew about the Hizbullah and the contra-guerillas. The men had replied that the contra-guerillas were an organisation within the State but Hizbullah were an separate organisation, which the State supported and turned a blind eye towards.

Süleyman Tutal

217. The witness was born in 1953. He has been a public prosecutor in Elazığ since December 1992. His career began in 1982. When he arrived in Elazığ, there were nine prosecutors.

218. The witness had met Metin Can once or twice. He had not met Hasan Kaya. He was not aware of any information or complaints that they had been involved in terrorist activities. He was not aware of any other previous incidents in which doctors or human rights lawyers were kidnapped or killed. He had not heard anything about contra-guerillas, civilians or confessors hired to eliminate persons regarded as enemies of the State. He then stated that he had read about them in the press but did not know if it was true.

219. The first he knew about the disappearance was about noon the day after it happened when the lawyer's wife came to report that he was kidnapped. He sent her to the police so that an investigation could begin. At the beginning, he did not suspect an abduction. From what Fatma Can said about the phone call to which Metin Can said "We are coming", he thought Metin Can knew the caller and had gone with them willingly. There was no indication of a fight or abduction, even when the car was found a day later.  He recalled that Fatma Can came to see him several times and on one occasion told him of receiving a telephone call where the caller told her that her husband had been killed.

220. When the car was found, he went to the scene. Police officers were there. They examined for fingerprints. Nobody had seen the car arrive or who had been in the car. People had seen it parked as they passed in the morning. He was informed that shoes had been found which were recognised by relatives. When the bodies were found, he did not go to the scene since they were in Tunceli, 130-140 km away. There was only one road between Elazığ and Tunceli. There were roadblocks on the road. He did not know how many. He did not know if all the cars would have been stopped at the roadblocks but did not think that all would be. The normal procedure was for an identity control to be carried out and for the contents of the car to be checked. It would have been very difficult for terrorists to move bodies from Elazığ to Tunceli without being stopped. It would have been possible, if they did not arouse any suspicion, for them to have been taken alive through the roadblocks. But he agreed that if they had been in the car against their will it would have been possible for them to inform the security forces at the checkpoint of their situation. Fatma Can had only come to the authorities because of the phone call. They thought that she knew where her husband was but was not telling them. Fatma Can and Şerafettin Özcan gave them no information about who the men were or whether Metin Can and Hasan Kaya had met them earlier. Fatma Can simply said that her husband had been kidnapped by the security forces, by the police, and asked them to find him. The public prosecutors have a complete list of the persons in custody so this was not possible.

221. A second autopsy was carried out as the relatives said that the men had been tortured. Later, in answer to questions by the Government Agent however, he stated that there was a second autopsy due to the condition of the bodies and that the relatives were not insisting that they had been tortured. There were however no marks of torture apart from a trauma mark on the forehead of Metin Can. When referred to the autopsy report, he agreed that there were bruises also on the nail bases of Hasan Kaya's hands, marks on the wrists, bruises on the knee etc but described these as minor. He thought that it was not possible to tell whether the blow to Can's head occurred when he was alive, or by being thrown over the bridge when he had died. He did not tell anyone that they had been tortured. Everyone reached the conclusion that they had not been tortured.

222. A month later, he relinquished jurisdiction since the bodies had been found in Tunceli. The file was sent to Tunceli. Afterwards, they would have complied with requests for information from Tunceli and passed on any information which they had received. He remembered that Ahmet Can made many petitions and came to see him often. He sent the petitions on. It was not for him to investigate the allegations that he made about incidents in Hozat, Tunceli or Pertek. He failed to give a reply to the question whether it was his responsibility to investigate the information that the two men had been seen in a petrol station in Yazıkonak. He later stated that these things about Yazıkonak were only allegations but that they must have investigated them. However there was no-one to ask about the allegations since there were no names in the petition. If the gendarmerie and Security Directorate had been informed, they would have done what was necessary. If he had been told that the two men had been detained in Elazığ, he would have asked to see the custody record.

223. When asked if he had at any stage in the investigation suspected that contra-guerillas were involved, he said that they did not know who had done it since they had no information but that he thought that there were no such thing as contra-guerillas. He had not heard of contra-guerillas in connection with Elazığ or that the Elazığ Security Directorate was dealing with such things. He had not heard of Mahmut Yıldırım or Yeşil. He was not aware of allegations in the press that Yeşil or Ahmet Demir was involved in the killings. He did not remember receiving petitions including Yıldırım's home address. Perhaps his colleagues received them. He did not recall what steps were taken to locate him. He was not aware of a newspaper interview in which Orhan Öztürk said the two men had been taken to Elazığ Security Directorate before being taken to Tunceli.

Hayati Eraslan

224. The witness was born in 1961. He was a public prosecutor in Tunceli from 1990 to July 1993. There were three prosecutors at Tunceli at that time. He knew neither Metin Can nor Hasan Kaya. He did not know if they were suspected of terrorist involvement. He first learned about their disappearance when their bodies were found. He went to the scene himself. The two bodies were near the creek at the Dinar bridge ten kilometres from Tunceli on the Elazığ side. He thought they had possibly been thrown off the bridge as their faces were crushed. There was also not much blood. The bodies had been there 7-8 hours. He could not tell whether they had been killed at the scene or dumped there but he thought the latter. Even though there were cartridges at the scene, these could have been thrown there. They did not find the bullets which killed the men at the scene.

225. There were permanent checkpoints on the Tunceli-Elazığ road at which all the vehicles were stopped and the occupants had to produce their identity cards. The cars were not always searched. This was the only road. There was a path in the hills which the PKK could use on foot. He did not think it was feasible that if the two men had been killed near Elazığ their bodies could have been brought to Tunceli without discovery at a roadblock. It might have been possible for them to go through the checkpoints alive since they might have escaped drawing attention. The police could have taken them through the roadblocks without problem. If there had been nothing to alert the security forces in their identity cards, no weapons or anything suspicious, they could have gone through easily. The PKK used to kidnap and kill people. Sometimes they set up roadblocks to ambush people.

226. He carried out the investigation in Tunceli since the bodies were discovered there. Later, this investigation was joined to that from Elazığ and sent to the State Security Court, which moved from Erzincan to Kayseri due to the earthquake. There was nothing else to do when they sent the file to Kayseri. On receiving the petition alleging involvement of the Tunceli police, they asked the Security Directorate on the phone if there had been any detention. They said no. He recalled asking for the custody records but did not know if they received them. Tunceli was a small town and he was close to the Security Directorate. He would have known if they had been detained. There would have been a written request for the custody records but no note of the enquiries with the Security Directorate. There were also rumours at the time that the two men had betrayed the PKK who had kidnapped and killed them.

227. He did not remember hearing about the allegations concerning the incident in Pertek. The information might have been sent directly from Pertek to the State Security Court.  Only if there had been clear evidence that security forces had been involved would he have sent the file to the Administrative Council rather than the State Security Court. Since the case involved elements of terrorism, he sent the file to the State Security Court. This conclusion was based on the evidence and on the fact that the perpetrator was unknown, the persons being abducted and dumped in Tunceli. He had no involvement in the case after it went to the State Security Court.

228. He did not see any sign of torture on their bodies. He attributed the depressions on their faces and cheeks to their having been thrown off the bridge. When they carried out the first autopsy, a big crowd had gathered to find out what had happened but they were under no pressure. However, one of the doctors refused to assist in the autopsy apparently as some people in the crowd had pressured him to state in his report that they had been tortured.  The witness told the doctor that he would be charged with omission of duty if he did not. This doctor was called İsmet. He did not remember his surname.

229. He had heard rumours in the press of contra-guerillas but there was no such activity in his area. He had heard in the press of Mahmut Yıldırım, also known as Ahmet Demir, YeÅŸil and Sakallı, who was said to be involved in incidents around Elazığ and Tunceli.  He had not himself received any complaints about this or heard that he carried out incidents on behalf of the State. He did not recall any visit to Tunceli in 1991 of a delegation of the Turkish Grand National Assembly to investigate claims that YeÅŸil had been torturing people. He did not hear anything about YeÅŸil being involved in killing Can and Kaya nor whether any steps were taken by his office after he left to investigate this. During his time in Tunceli, he did not receive any complaints about the police or security forces.

230. They forwarded the petition about Geyik to Pertek asking them to verify the allegations. Pertek replied that they were not true. There was no concrete evidence warranting a broader investigation. The allegations against the security forces were all groundless. When referred to the statements taken from witnesses which appeared to support some of the allegations, he stated that he had not seen them. The statements might have gone directly to the State Security Court.

Judge Major Ahmet Bulut

231. The witness was born in 1954. He had been a public prosecutor at the Malatya State Security Court since 13 July 1992. On 25 May 1994, the case-file concerning the killing of Can and Kaya was transferred to Malatya from the Erzincan State Security Court.  He had previously heard on the television and from the press about the case. He had been responsible for the case since its transfer. The case was sent to the State Security Court as the killings were politically motivated and occurred in the state of emergency region. It was not possible to say from the file whether it was a killing by the PKK or other people or organisations. It was the reason for the crime which determined the jurisdiction. A common crime by a PKK terrorist was prosecuted in the ordinary courts while a politically motivated crime by a state employee would be prosecuted in the State Security Court.

232. Three persons accused of the crime were found and their statements taken by the local public prosecutors. These were Mehmet Yazıcıoğulları, Mesut Mehmetoğulları and Ayhan Öztürk. They denied the accusations. When asked about Ayhan Öztürk, he checked his file in front of him and unable to find the statement, stated that perhaps his memory of taking the statement was wrong.

233. The witness was aware that allegations had been made of involvement of State officials but there was no evidence supporting them. He did not take steps to enquire from the Tunceli Security Directorate as to whether they had detained the two men nor ask the Tunceli prosecutors if they had made enquiries. However, it was not necessary to do so. He stated that the letter from the Pertek police of 4 May 1993 was phrased ambiguously so that it was not clear whether Geyik had stayed in the gendarmerie or not. In context with the letter from the gendarmerie, it could be interpreted that Geyik did not stay there. However to eliminate doubt, the writer of the letter should be asked. The person receiving the two replies must have judged that no further enquiries were necessary. He agreed that it would be appropriate to make further enquiries to eliminate the slightest doubt. He did not remember if enquiries were made to discover if gendarmes called Mehmet, Ali and NCO Hüseyin worked at Pertek.

234. The witness recalled the allegations of involvement of Mahmut Yıldırım. He did not recall that his attention was drawn to the contradictory replies given by the police on 25 February 1994 and 7 April 1995 concerning their enquiries at Yıldırım's reported address.  He explained the delay of ten months in seeking information on the increased workload of the State Security Court. He in fact received the file on 22 June 1994 and on 22 July 1994 requested the authorities to make enquiries with a view to identifying the perpetrators. He had about 500 files to deal with. Based on the news which appeared on 30 December 1996 in the Milliyet newspaper, they changed their tactic in the search for the person named Yeşil. They wrote to the Tunceli provincial regiment command to ask if Yeşil worked for them. The reply was negative. They enquired from the general gendarme headquarters (Ankara) about Yeşil, his identity and address. An answer was received from Tunceli on 30 January 1997. They sent another letter to the provincial regiment command the same day. Another pending line of enquiry derived from information from Mevlut Kaya, a lawyer and brother of Hasan Kaya, who had told him that a suspect Kahraman Bilgiç had been apprehended in Yüksekova, and his confessions contained information about the killing of Hasan Kaya. He had instructed the Diyarbakır State Security Court to send the statements of this suspect.  However there was nothing to support Mevlut Kaya's allegations. He sent written instructions for Bilgiç's statement to be taken on this.

235. The investigation had only lasted 4 years and could continue for another 16. The passage of time however adversely affected the prospects of success. He had no experience of a perpetrator being caught a long time after the crime. He had frequently heard the security forces accused of crimes. He did not know personally of any prosecution being brought against a member of the security forces for activities in Tunceli at the State Security Court

Hüseyin Soner Yalçın

236. The witness was born in 1966. He was currently editor of a private television channel in Ankara. In 1993-1994, he was employed at the Aydınlık daily newspaper office in Ankara. The office used to receive a lot of information about unknown perpetrator killings in south-east Anatolia. The name of Major Ahmet Cem Ersever always cropped up in that connection. Ersever was the head of the Diyarbakır unit of the gendarmerie anti-terrorism branch known as JİTEM. He was becoming an almost legendary figure in the region, where he had been for 13 years. He had been promoted rapidly and was virtually like a colonel or general. The witness had first heard of Ersever when working for the "2000 Doğru" magazine as news editor in Ankara. Reports of events and murders in the region landed on his desk. Contra-guerillas or "gladios" were reported as involved. Ersever's name was always mentioned particularly after 1990-1991. These reports, from close relatives or friends of the murdered persons, were biased of course and there was no way for him to check the information.

237. The witness explained contra-guerillas as follows. In 1953, Turkey, as a member of NATO, set up the Allied Mobile Force, paid for by the Americans, which had the mission of organising contra-guerilla action against the enemy in the event of occupation. It was later re-named the Special Military Department. In his view, this Department viewed socialist and left wing movements as occupying forces and carried out numerous actions against them.  It was possible that it also carried out actions against the PKK and its supporters on the same basis.

238. The Aydınlık newspaper wanted to get in touch with Ersever but the opportunity never arose. Later, by accident, the witness met Major Ersever in retirement. In 1993, he met Ersever five or six times in secret. They came to an agreement that Ersever would give information but that he would not publish it. The information concerned murders by unknown perpetrators and at one meeting he gave information about Hasan Kaya and Metin Can. Ersever explained that they had divided the region into three areas. In the Diyarbakır area, which included Elazığ and Tunceli, assassinations were carried out by a person known as Ahmet Demir with the assumed name of Yeşil. Ersever did not think that Ahmet Demir was his real name though. He was the ring leader in that area. People were also killed by a gang of confessors formed under the leadership of Mehmet Yazıcıoğulları, who was a True Path Party candidate in the 1991 general elections. Confessors were persons who had been members of the PKK but had either left or been caught and felt remorse. They were then used against the PKK.

239. Ersever said that they could only fight the PKK by using the PKK's methods. He set up teams of PKK confessors, who wore typical PKK style dress and spoke Kurdish.  Initially, the teams went round the villages to pick up intelligence but later they began to commit unknown perpetrator killings. If the information they obtained contained information about PKK sympathisers, they passed it on to the State and also began to carry out actions to eliminate them. They also interrogated people whom they kidnapped. Later they did not bother with interrogation. This pattern was illustrated by the Can and Kaya killings. Two PKK confessors went to Can's house. They regarded him as a PKK sympathiser. They told him that there had been a clash and that several comrades had been injured. They suggested meeting outside town. The witness did not know if Can and Kaya agreed for humanitarian reasons or because they were PKK sympathisers. They were taken and interrogated by the PKK confessors for about six days. Afterwards they were killed. Even though the Minister of the Interior and the Deputy Prime Minister made appeals, the people holding them were powerful enough to ignore them.

240. Ersever did not mention Can or Kaya by name but talked about a doctor and a lawyer and on investigation they were the only doctor and lawyer from Elazığ who were killed. The witness was not sure of the details of what Ersever said, since he did not take notes during the interviews, but afterwards. Ersever gave examples of how people were kidnapped and killed around Elazığ and Tunceli by teams of confessors acting and speaking like the PKK. If Ersever was to be believed, the authorities knew about the teams and gave them protection. When asked by the Government Agent however, he felt unable to say specifically whether the State knew about the actions which were being carried out. However having regard to the way in which confessors shoot people and come in and out of prison, he thought that the authorities turned a blind eye. He did not know if Ersever took his own decisions or received instructions from a higher level.

241. Ersever did not share the Government's views on how to combat the PKK and did not agree with their policy in Northern Iraq. As a result, he asked to retire. The witness received the impression that he was irked because he had not been given the opportunity to set up an organisation like the PKK to fight the PKK. There had been talk of appointing him to a new State intelligence unit, the Public Security Unit, but the Unit was not set up in 1994 and Ersever felt excluded. Ersever never admitted killing anyone himself. The witness thought that he organised the killings though through the gang he set up and that he gave it the mission to kill PKK militia and significant people in the area. Or he turned a blind eye to it. He never mentioned the names of any members of the security forces as involved in the killings. Ersever also had the idea of waging psychological warfare to counter the misleading views on the Kurdish question in the media. He had called a press conference to which no-one came and sent statements to the press none of which were published.

242. The witness stated that the Susurluk incident had shown that certificates had been issued to "outlaws". These had no legal value but might have served at checkpoints to give the impression that the holders were State officials. Possibly in the south-east there were unofficial ID cards which had the same function. Ersever named Alaattin Kanat as involved in planning the killings, as a kind of brain in the organisation. He did not recall the name of Geyik or Erhan Öztürk. He remembered that Mesut Mehmetoğlu and İdris Ahmet were PKK confessors.

243. The Aydınlık newspaper published a feature report about the Kurdish question, quoting statements of Ersever which he had given openly in an interview at the newspaper office. Because of what he had said, Ersever was sued by the Turkish armed forces, possibly in relation to the disclosure of State secrets. He asked the witness to testify for him, though not to mention the information given off the record. Ersever had arranged to ring the day before the court case but did not do so. On the evening the case started, someone rang the newspaper office saying that they had killed Ersever and that it was now Soner's turn. Two or three days later, Ersever's ID card was sent to the witness in a white envelope. Afterwards, Ersever was found shot in the head with one bullet, with his hands tied behind his back. The body was found 40 km outside Ankara. One day after that, the body of Ersever's right-hand man, a confessor was found. Then the body of a girl, Neval Boz. The three bodies were found at three different points around the capital Ankara. This must have involved persons who were able to get through checkpoints without fear of being caught. He did not consider the PKK powerful enough to do that. At one of their meetings, Ersever told him that they were being followed and observed. He said at one point that Yeşil was after him.

244. After Ersever's death, the witness published the information that he had been given in articles and in a book called "The Secrets of Cem Ersever." He appeared on a television programme on Show TV but could not remember what he had said. No action had been brought against him by Ersever's family or anyone else concerning the contents of his book. He had no knowledge of any statement made by Mehmet Yazıcıoğulları on 28 March 1995 in which he referred to denying allegations made in the Aydınlık newspaper.

Mesut MehmetoÄŸlu

245. The witness was born in 1974. He had been detained in prison from 5 May 1994 to date. His trial was still pending on offences related to the killing of Mehmet Şerif Avşar. He had been in prison previously from 7 January 1992 to 7 January 1993 when he took advantage of the Remorse Act. He had been sentenced to 15 years' imprisonment for PKK offences. Following his release under the Act, the Supreme Court of Appeals acquitted him. One of the conditions of release was that the confessors told the authorities who they had talked to and been involved with for the PKK. Confessors also assisted by helping with information about PKK shelters and depots. He gave information about an action that he had been involved in and named persons who aided the PKK. He later stated that this information was given at the stage when the person was taken into custody. When he was released, he was unable to give any service to the State and went to work in Antalya, after staying one night in the Security Directorate, which was the usual practice. When he heard that his grandfather was ill, he went to Hazro in Diyarbakır province. When he arrived, his grandfather had already died, on 13 February 1993. He stayed there for a month or so.  He denied that he was involved with the security forces after his release.

246. While in prison, he met Erhan Öztürk who was in his dormitory for about 12 months. He was released before Öztürk. Ä°dris Ahmet was in his dormitory also for 10-11 months. He said that he was from Syria and had fought for the PKK for years before giving himself up near Siirt. He was released before the witness near the end of 1992. He knew neither man before this. 

247. He confirmed his statements given to the public prosecutor. He was not involved in the incident with Can and Kaya. He was, and could prove that he was, in his district at the time, mourning for his grandfather. He read that Erhan Öztürk had named him as involved in the newspaper about the middle of 1993. The only time that the authorities contacted him about this was when he gave his statement to the public prosecutor. According to what he heard, Erhan Öztürk fell into the hands of the PKK one month previously due to a trap set by his brother in Malazgirt in Muş province. The PKK sent him to a rural area in Serhat province and from there to a rural area in Bingöl. The witness had talked to a man who had seen Öztürk being tortured in Bingöl and knew that he had been executed, apparently by the PKK women.  He had been killed after he had been interrogated and statements made by him had been sent to the press. His statements were taken down in writing and recorded on video. The witness did not know why the PKK would have wanted Öztürk to make statements against him. The PKK tried to stamp out confessors and he lived in fear of their retaliation. He had never seen a person called Yeşil, assuming he existed.

Mustafa Özkan

248. The witness was born in 1946. From 1990 until June-July 1993,  he was in charge of Pertek police station.  Pertek was a small town, population of 5000. The police station had on average 20-25 staff. There were many terrorist incidents in the vicinity of Pertek, though none under his jurisdiction during his stay. When he arrived in 1990, he heard about a terrorist called Yusuf Geyik, also called Bozo or Çerkez Ethem, who had been involved in several wounding incidents and worked for a faction of the "Partizan" organisation. He was a wanted person, who apparently was from the area and was frequently seen in the villages where he was sheltered by the people. The gendarmes looked for him constantly but unsuccessfully in the rural areas under their jurisdiction. He had no knowledge about Geyik being detained.

249. There was a beerhouse opposite the post office about 100 metres from the police station, though the buildings were not physically in sight of each other. The beerhouse was about 200 metres from the district gendarmerie. From time to time, the police made general inspections when they would visit the beerhouse. The place was rather against the police. There was anti-police feeling in the region generally. He could not comment on whether the statements made by the beerhouse owner were reliable or not. At another point, he expressed the opinion that an owner of a beerhouse could not be a totally reliable person. The owner had made no report to the police at the time. If there was an incident in the beerhouse, it was the responsibility of the police, not the gendarmerie to deal with it. If the gendarmerie were involved in the incident, they should have reported to the police.

250. Shortly before he was transferred, he received a request from the public prosecutor asking about Yusuf Geyik and there was also a summons for the owners of the beerhouse. His assistant, who dealt with the correspondence, summoned the persons concerned and took them to the public prosecutor. It was reported that a person called Yusuf Geyik, nicknamed Bozo, had sworn and cursed in the beerhouse, causing some kind of scene, about one month before and had been taken away by the gendarmes and stayed at the gendarmerie. This might have come from the owners of the beerhouse or from other people. His assistant had said that he had heard something like that. He remembered that they sent a reply to the public prosecutor's enquiry about Geyik, including the hearsay that he had been with the gendarmerie. In relation to what steps had been taken to investigate the whereabouts of Geyik, he said that there was no need to investigate as Pertek was a small place. They would have heard if he was there or caught him in an identity check.

251. When the public prosecutor sent a second request for information, he informed the prosecutor of the information which his colleagues had passed on to him, when they went out to summon the owners of the beerhouse and also to conduct the enquiry, namely, the information that Geyik had stayed at the gendarmerie but where he went, whether he was really at the gendarmerie, or whether he was taken to the regiment, they did not know precisely. This was what his colleagues reported that they had heard. When he stated in his letter that Geyik had stayed in the gendarmerie and had left the district, this was not to be read as indicating any certainty, but related to rumour or an assumption. The police themselves did not take any statements.  It was not possible for the police to go to the district gendarmerie to enquire if Geyik had been there. The police communicated with the gendarmerie through the channel of the public prosecutor's office or the governor's office.

Bülent Ekren

252. The witness was born in 1960. From 1991 to 3 August 1993, he was district gendarme commander in Pertek. There were approximately 17 NCOs, 20 specialist sergeants and 190 men under his command. This included the men at the Pertek district gendarmerie headquarters and the five rural stations. There was also a commando company headquarters building about 7 km from the district headquarters. It was commanded by a first lieutenant under his command. There was no NCO or specialist sergeant called Hüseyin at the district headquarters, nor any commando of that name. There were men by the names of Mehmet and Ali, such names being common in Turkey. No non-military personnel stayed at the headquarters. There was no confessor assisting the gendarmes at Pertek. There was a custody room in the district gendarmerie headquarters.

253. Yusuf Geyik was a terrorist who was responsible for many incidents in the area before his time. He did not recall any action by him occurring while he was in Pertek. He was wanted for his activities before 1991. He never heard that he had been taken into custody. Geyik did not stay at his gendarmerie. The police would have been unable to make enquiries at the gendarmerie about him. Only the public prosecutor  and district governor could do so.

254. He had not heard of the alleged incident in the Pertek beerhouse until the public prosecutor wrote on 29 April 1993 to enquire. When he received the letter, he asked his personnel, including the commando unit,  who replied that no such incident had occurred. He did not know the beerhouse, spending most of his time in the areas under his jurisdiction outside the town. There was no question of his gendarmes intervening in an incident in the town, which was in police jurisdiction. About 70% of the people in the area tended to be left wing and to dislike the security forces. Stories may have been told to discredit the security forces.

Other witnesses

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

- Dr Ergin Toy, a doctor involved in the autopsy carried out on Hasan Kaya and Metin Can;

- Dr Ergin Dülger, as above;

- Fevzi Elmas, public prosecutor at Elazığ at the time of events

- Hasan Coşkul Çetinbinici, public prosecutor at Erzincan State Security Court

- Hüseyin Kaykaç, eyewitness at Pertek beerhouse

- Ali Kurt, eyewitness at Pertek beerhouse

256. The Government stated that the summonses for Hüseyin Kaykaç and Ali Kurt were delivered to their addresses but that they had not made any response and would not appear.

257. The Government were also requested to locate and serve summonses on Yusuf Geyik, Orhan Öztürk and Mahmut Yıldırım but stated that these persons were not known to the authorities.

258. Letters were received in which Dr Toy and Dr Dülger, Fevzi Elmas and Hasan Coşkul Çetinbinici explained their absence, due either to work or leave commitments and, save in the case of Dr. Dülger, gave their opinion that they would have no useful information to provide.

C. Relevant domestic law and practice

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

1. State of Emergency

260. 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.

261. 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.

262. 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

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

264. 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

265. 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.

266. 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 261 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecutor of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State.

4. Constitutional provisions on administrative liability

267. 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. 

268. 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.

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

5. Civil law provisions

270. 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

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

- that the applicant's brother Dr Hasan Kaya was killed by or with the connivance of State agents;

- that his brother was tortured and subject to degrading treatment in that he was discriminated against on grounds of race;

- that the applicant suffered inhuman and degrading treatment as a result of the disappearance of his brother;

- 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 in respect of the above matters.

B. Points at issue

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

- whether there has been a violation of Article 2 of the Convention in respect of the applicant's brother Hasan Kaya;

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

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

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

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

C. The evaluation of the evidence

273. 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 has been no judicial finding of facts on the domestic level as regards the kidnapping and killing of Hasan Kaya in  February 1993. While there is a pending investigation, this has been pending for more than five years. The Commission has accordingly based its findings on the evidence given orally before its Delegates or 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 twenty witnesses were summoned to appear, only eleven in fact gave evidence before the Commission's Delegates. Nor has the Commission been provided by the Government with all the documentary materials that it has requested. 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

274. 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.

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

276. Hasan Kaya worked in south-east Turkey. He had practised medicine in Şırnak from November 1990 to May 1992. During this time, it is not contested by the Government that he had treated demonstrators injured in the Nevroz celebrations in 1992 and that he was transferred from Şırnak to a post in a health centre in Elazığ following difficulties which he was experiencing. The applicant's evidence was supported on this by Fatma Can's recollections of what Hasan Kaya had told her.

277. The applicant gave evidence to the Delegates that, prior to his brother's disappearance with Metin Can on 20 February 1993, his brother had told him that his house had been searched by the police, that he was under constant surveillance and that he felt his life was in danger. Evidence was also given by Bira Zordağ, who had been taken into custody in December 1992, that the Elazığ Security Directorate questioned him as to whether Elazığ doctors, in particular Hasan Kaya, treated wounded PKK members and supported the PKK. They had also asked questions about lawyers, including Metin Can. He was able to recall that the questions had been specific and referred, inter alia, to their suspicion that Hasan Kaya had treated a wounded PKK member from Hozat. Fatma Can, the wife of Metin Can, also gave evidence that when she was in the Elazığ Security Directorate she saw that they referred to a file on Hasan Kaya. She explained how her husband had come under pressure in Kars where he had founded the People's Labour Party and how threats began against him again when in Elazığ he founded, and became President of, the Human Rights Association. He had taken cases for persons suspected of being members of the PKK and had told her that he had received warning from an official that steps were being planned against him. Şerafettin Özcan mentioned generally that he, Metin Can and Hasan Kaya were subject to threats at that time, but had more specific information about the position of Metin Can, with whom he worked in the Human Rights Association. He referred to Can's work as a lawyer taking a case to improve conditions in Elazığ prison which brought threats against him from prison officers. He said that the Human Rights Association in Elazığ had been searched and other branches in the south-eastern region were under pressure.

278. The Commission's Delegates found these four witnesses on the whole to be sincere and credible. Their comportment and the detail of their evidence generally gave a convincing impression. Their evidence was also consistent on essential points. However the Delegates noted that the applicant, understandably, felt very strongly about the death of his brother but also about events in south-east Turkey generally, and the Commission has approached his testimony with caution, perceiving a tendency perhaps to overstate his case in an effort to persuade. Fatma Can was also observed to be defensive at times, both on behalf of her husband and herself. This was perhaps a natural reaction to the allegations which had been made against her husband but also due to the position which she found herself in, since she revealed facts to the Delegates which she had not disclosed to the authorities at the time. The Commission has also borne this factor in mind in assessing her evidence.

279. The Commission is satisfied from the evidence above that Metin Can and Hasan Kaya, and their families and friends, had reasonable grounds to consider that they were subjects of interest to the authorities - Metin Can, as President of the Elazığ Human Rights Association and lawyer involved in defending PKK suspects, and Hasan Kaya, as a doctor suspected of treating wounded members of the PKK. It finds no reason not to accept the evidence that this involved a search of the Human Rights Association in Elazığ and the questioning of other suspected PKK sympathisers seeking information about them. There is no direct evidence as to whether they were under surveillance or followed or received threats from State officials and the Commission makes no findings on these points.

2. Events related to the kidnapping and killing of Hasan Kaya in February 1993

The disappearance of Hasan Kaya and Metin Can

280. Shortly before the disappearance of Metin Can and Hasan Kaya, two men were seen in the apartment building where Metin Can lived. The police took statements from two persons living there who stated that the two men were looking for Metin Can (see paras. 73-74).

281. The evidence as to what happened immediately before and on the day of the disappearance differs between the brief version which was given by Şerafettin Özcan and Fatma Can to the public prosecutor and police and the fuller, detailed version given by them to the Commission's Delegates. The Commission notes that both were asked why they did not assist the police by giving the fuller version. Şerafettin Özcan explained that he was frightened and did not want to disclose to the police that he had seen the two men. Fatma Can stated that her main anxiety was for the safety of her husband. She thought that if she kept quiet about what she knew there was a possibility that he would return alive. She was sure that it was the police who had taken her husband and that if she gave details it would make it easier for them to kill him. The Commission observes that the Government have not disputed that the account given to the Delegates is truthful in regard to the factual detail as to what occurred, although they reject the assertion of both Fatma Can and Şerafettin Özcan that the two men were acting for the State. It finds the explanations of Fatma Can and Şerafettin Özcan for being economical in their stories to the authorities to be genuine and that the account that they now give is credible and convincing in the explanation which it provides for the disappearance.

282. There are discrepancies between the two accounts. For example, Fatma Can recalled that she called Hasan Kaya while Şerafettin Özcan recalled that Metin Can did. Fatma Can remembered that Şerafettin Özcan went out to the Post Office to make a call to Diyarbakır to check on the two men but Şerafettin Özcan made no reference to this. The Government Agent pointed out to Fatma Can that her account differed from Şerafettin Özcan's as concerned the recollections of what the two men said. Her answer was that Şerafettin Özcan probably remembered more correctly than she did since she did not stay in the room talking with the men but came and went looking after the baby. The Commission considers however that after a lapse of about four years since the events occurred it is not surprising if recollections became confused as to details. It also notes that Şerafettin Özcan may have considered that it was preferable not to mention in front of the Government Agent and his team that he had rung a number in Diyarbakır in order to check the bona fides of two alleged PKK members. It finds therefore that the discrepancies are not of such a nature as to undermine the credibility of the two witnesses as regards the main outline of events on the day of the disappearance, which it finds as follows.

283. On 20 February 1993, after Fatma and Metin Can came home late in the evening, there was a telephone call which her husband answered. He later told her that the callers had come to the house earlier and wanted to see him. He refused, telling them that it was too late and that they should come to his office the next day.

284. On 21 February 1993, Metin Can waited for them at his office but they did not come. He returned home at midday. He answered a call from the same people. It was arranged that they should meet in a coffee house. Metin Can met Şerafettin Özcan near the coffee house and invited him to the meeting. Two men arrived, one darkhaired and one fairhaired. The fairhaired man, who gave his name as Vedat, spoke Turkish badly and said that he was from Syria. Metin Can went home with the darkhaired man.  Şerafettin joined him there. Metin Can returned to the coffee house and brought the fairhaired man back also. The two men told Metin that there was a wounded person hidden out of town who needed medical treatment. A telephone call was made to Hasan Kaya who came to the house.  It was arranged that the two men would bring the wounded person to Yazıkonak where Metin Can and Hasan Kaya would meet them. The two men left. At about 19.00 hours, they rang the house. Metin told them, "We are coming." He and Hasan Kaya left, in the car of Hasan's brother. Hasan Kaya took his medical bag. They did not return.

285. The Commission recalls that the Government have submitted that the evidence clearly points to the fact that Metin Can and Hasan Kaya were called to a meeting point by persons who most probably were recognised by them. They do not indicate the basis of this assertion. The Commission recalls that the public prosecutor Süleyman Tutal did not consider initially that the case necessarily concerned a kidnapping since there were no forensic signs of a struggle at the scene of the car in Elazığ (para. 219). In his oral evidence, Şerafettin Özcan said that neither he nor Metin knew the two men. Fatma Can also insisted on this, although she did at one point describe her husband as seeking to re-assure her outside the coffee house by telling her that they knew the men. The Commission considers that the whole tenor of the evidence of Fatma Can and Şerafettin Özcan implied anxiety and concern which included the element that they were dealing with two men who were unknown and doubts as to whether they could be trusted.  It does not find that an absence of signs of a struggle is decisive of whether or not there was lack of coercion. Given the immediate concerns of their families at their failure to return, it would appear highly improbable that the two men voluntarily stayed away from home without contacting their relatives to inform them of their safety. It does not find that it can be established from the facts that Metin Can or Hasan Kaya knew the men who took them away or later killed them.

Events following the disappearance

286. At about 12.00-13.00 hours, on 21 February 1993, Fatma Can received a call. The caller, who Fatma Can thought she recognised as one of the men from the day before, said words to the effect that, "This is Vedat. We have killed Metin and his friend." She was horrified and after informing Şerafettin Özcan, they went to report to the prosecutor that her husband and Hasan Kaya were missing. The accounts which both gave omitted all details of the two men meeting with Metin Can and Hasan Kaya and referred only to Can and Kaya leaving for an unknown destination after receiving a telephone call at 19.00 hours.

287. More telephone calls were allegedly received by the families of both men. In one call to the Can house on about 23 February 1993, the caller claimed to be Dr Savur Baran and made references to Metin continuing the struggle. This was reported to the police by Şerafettin Özcan immediately after it occurred at about 13.30 hours. The applicant told the Delegates that on 23 February 1993 he was informed by his brother Hüseyin that one or two calls had been made to Hasan Kaya's house in which Kurdish music was played, accompanied by apparent sounds of torture.  Şerafettin Özcan also had heard that this had occurred. In his petition of 13 April 1993, the applicant's father referred to disturbing telephone calls being received but it is unclear to what this refers as in his petition of 9 March 1993 he stated that he had received threatening calls. The applicant informed the Delegates that they did not inform his father of the calls. In any event, steps were taken by the authorities to monitor calls only to the Can house. The Commission finds that some strange calls were made to the Can house. There is no direct evidence before it that such calls were received at the Kaya house.

The discovery of the bodies of Hasan Kaya and Metin Can

288. It is undisputed that at about 11.45 hours on 27 February 1993 it was reported that two bodies had been found under the Dinar bridge, about 12 km outside Tunceli. These bodies were identified as being those of Hasan Kaya and Metin Can and the cause of death was brain damage due a single shot to the back of the head. The arms of both were tied behind their backs.

289. The applicant and other members of the families of both men claimed, and still claim, that they were tortured before they died. The applicant and Fatma Can saw the bodies themselves. According however to the public prosecutors of Tunceli and Elazığ who attended the scene and the autopsies, they were not tortured. Marks on their faces were attributed to an assumption that the bodies had been thrown off the bridge and occurred after death. Though Süleyman Tutal when referred to the autopsy reports accepted that there were various marks and bruises on the body of Metin Can he discounted them as minor.

290. There are two autopsy reports which detail the condition of the bodies. The first, less detailed, included the phrase that there was a total absence of any trace of violence or blows on either body, with the addendum from the doctors that the ecchymosis on Metin Can's right eyebrow might have been caused by a blow. The second autopsy, which is more thorough, more correctly states that there are no traces of violence or blows other than those previously noted. In the case of Metin Can, there is a catalogue of ecchymoses, scratches and wounds, including a tear in his lip and a wound round his neck as if from a wire or string. The conclusion is that some of the bruises and scratches might have been caused by blunt instruments, shortly before death. There is no mention of the possibility that the injuries were caused by the body impacting on the ground after a fall. The Commission finds that on the basis of this report it is a reasonable probability that Metin Can suffered deliberately inflicted and significant physical injury. However, as regards Hasan Kaya, the reports indicate fewer physical signs of ill-treatment.  The first autopsy report only mentioned that the lefthand side of the face was subsided but it is not apparent whether this resulted from the distorting effect of the body being frozen or from physical trauma. The second report noted ecchymoses on the right ear area but expressed the view that this might have resulted from pressure to the body. It is not apparent what this means. There were also marks on the wrists, which might have come from the hands being bound, ecchymoses on the nailbases of the left hand, the right knee and left ankle and scratches on the ankle, while the feet were in a condition probably caused by being kept in water or snow for a long time. The report does not comment on what might have caused the bruises. The Commission regrets that the two doctors involved in the report did not appear to give evidence to its Delegates. This might have clarified various of the findings in the report. Nonetheless, the Commission considers that the report provides uncontroverted evidence that Hasan Kaya suffered injuries prior to his death and that during his captivity with his kidnappers his feet were exposed to snow or water for a significant period of time.

291. The first autopsy, carried out at 16.25 hours on 27 February 1993, estimated death as occurring within the last 14-16 hours, namely, after midnight of the previous night.  The second autopsy, carried out at 1.05 hours on 28 February 1993, estimated death as occurring within the last 24 hours, which also places the death after midnight on 27 February 1993. Neither autopsy, as already noted, makes any reference to the possibility of either body having been thrown over the bridge. Nor is there any comment in these reports or any other forensic report as to whether the two victims were killed on the spot or killed elsewhere and transported to the Dinar bridge. Both public prosecutors who gave evidence were of the opinion that the two victims were killed elsewhere and dumped. Hayati Eraslan based this on the way the bodies' faces were crushed and the lack of blood at the scene. The gendarme incident report in describing the bodies at the scene also makes no mention of blood. Although two cartridges were found near the bodies, Eraslan thought that these might have been thrown there. The Commission does not find, in the absence of detailed forensic analysis of the crime scene and bodies, that it is in a position to make any findings as to where the victims were killed.

3. Investigation by the authorities

292. The Commission observes that the responsibility for the investigation changed hands four times. From the report of the disappearance on 22 February 1993 until shortly after the killing, the responsibility lay with the Elazığ prosecutor. Elazığ ceded jurisdiction to the Tunceli prosecutor on 11 March 1993 after the bodies were found in their jurisdiction. On 31 March 1993, the Tunceli public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file to the Kayseri State Security Court. This was a stopgap solution since an earthquake had disrupted the work of the Erzincan State Security Court prosecutor, who normally had jurisdiction. The file was transferred on 22 July 1993 from Kayseri to Erzincan on their resumption of functions. On 25 May 1994, following re-organisation of court jurisdictions, Erzincan transferred the file to the Malatya State Security Court prosecutor's office, where it has since remained.

293. From the documents and evidence given, the investigation included the following:

Investigation into the disappearance

- notification dated 22 February 1993 by the Elazığ governor to all other State of Emergency governors for Metin Can and Hasan Kaya and the missing car to be located; photographs were provided by the Directorate of Security to be transmitted on 24 February 1993;

- the missing car was found at Yazıkonak on the evening of 22 February 1993. The police took a statement from the person who reported the car  and made a sketch and report concerning the car. It was noted that no fingerprints were found. The applicant queries whether a proper examination of the car could have been carried out, finding it highly unusual that no fingerprints were found even on the steering wheel.  Şerafettin Özcan who went to the scene was of the opinion that the police were not making a proper examination or taking enough fingerprints. The applicant notes that the prosecutor Süleyman Tutal referred to the fact that the fingerprints did not show a struggle. However, the Commission observes that he might also have meant this only in the context that there was no evidence from fingerprints that there had been a struggle. The Commission considers that there is insufficient material on which to base a finding that the police did not properly conduct a forensic examination of the car;

- the taking of statements from neighbours of Metin Can, which included descriptions of two men calling at the house;

- shoes belonging to Metin Can were found on the evening of 24 February 1994, the police taking a statement from the night watchman who discovered them, obtaining the identification from Can's brother and making a report and sketch;

- a telephone monitoring order was issued in respect of Metin Can's house. However this was not effective since it appears that the PTT failed to switch on the machine in the absence of an express instruction to do so. It is unclear if this was an oversight of the public prosecutor or an obstructive attitude from the PTT.

294. There is no evidence of statements being taken from villagers in Yazıkonak as to what might have transpired when the car was abandoned there. In his statement of 9 March 1993, Ahmet Kaya told the public prosecutor that he had gone to the village where a rumour was going round that his son and his friend had been taken from their car by persons arguing amongst themselves. In later petitions of 18 March and 13 April 1993, Ahmet Kaya said the persons had been plain clothes police officers with radios. The applicant told the Delegates that he had also gone to Yazıkonak and spoken to villagers, who said that they saw two men forced into a vehicle by persons with radios. When asked what steps were taken to investigate these reports, the public prosecutor Süleyman Tutal was vague but then seemed sure that the necessary investigative steps must have been taken. The Commission observes that it is possible that police officers attempted to question villagers but received no information. It is however to be noted that there is no record in the investigation file of Ahmet Kaya's petitions containing the information being transferred to the police or that the police received an instruction to investigate further or notified the public prosecutor that this avenue had been tried without success.

295. Similarly, it is not apparent that any steps were taken to investigate the information given by Ahmet Kaya in his petitions of 18 March and 13 April 1993 that the car in which Metin Can was being driven called for petrol at a garage near Yazıkonak and that he told the attendant that he was with officers.

Investigation into the killing

296. The Commission notes that the investigation after the death included:

- two autopsy reports. The first was brief and incomplete. The second was fuller, made findings as to causation in respect of some injuries but was unhelpful on others;

- scene of crime incident report and sketch map prepared by the gendarmes;

- ballistics report on the cartridges which identified the gun as having been used in two other incidents.

297. The Commission has already noted above that there is no forensic analysis as to whether or not the bodies were killed on the spot or transported there later. There is no material in the file relating to any steps taken to obtain evidence as to how the victims were transported there.

298. Remarkably, following these investigative measures, almost all the impetus in the investigation derived from information given to the public prosecutor by Ahmet Kaya and press sources. Ahmet Kaya seems to have obtained his information by word of mouth or rumour and also from what he read and heard in the media. As the applicant told that Delegates, there were many rumours circulating in the excitement following the disappearance. Some newspapers in particular provided  very detailed allegations as to the identity of the persons involved in the killings and placed responsibility on contra-guerilla groups operating in co-operation with sections of the security forces or security agencies.

The Hozat incident

299. In his petition of 18 March 1993, Ahmet Kaya told the Tunceli prosecutor that in Hozat a police officer had told a district judge and lawyer called Ä°smail that Can and Kaya had been held at the Tunceli Security Directorate. The prosecutor sent the petition to the Hozat public prosecutor and requested statements to be taken from the three persons involved. The Hozat public prosecutor took a statement from Ä°smail KeleÅŸ, a lawyer, who denied hearing any such conversation. In light of that, he informed the Tunceli prosecutor that he had not taken a statement from the district judge. A police report of 14 April 1993 indicated that following investigation it was concluded that no police officer at Hozat had made such a statement.

300. In answer to questions by the Delegates as to what steps were taken in answer to the allegation that the two victims had been detained at Tunceli Security Directorate,  Hayati Eraslan recalled enquiring of the Security Directorate on the phone and asking for the custody records. He did not remember if he received them. Since Tunceli was a small place and the Directorate was close to the prosecutors' office, he would have known if they had been detained. The Commission notes that there is no record in the file of custody records being requested or received but does not exclude that this might have occurred informally. It certainly does not appear that the prosecutor took any steps to interview officers of the Directorate in relation to the allegations.

The Pertek beerhouse incident

301. In his petitions of 18 and 19 March 1993 and 13 April 1993 (paras. 99-100 and 106), Ahmet Kaya drew the attention of various public prosecutors to an incident which occurred in a beerhouse in Pertek where it was reported that a man had claimed that he had killed Metin Can and his son. It was stated that the man, Yusuf Geyik known as "Bozo", had a radio and went away with a gendarme. On 30 March 1993, the Pertek public prosecutor requested that the Pertek police investigate Yusuf Geyik. By letter of 6 March 1993, the Pertek police reported, briefly, that he was not in their jurisdiction.  The Pertek prosecutor made a second request for information from the police on 29 April 1993, additionally asking whether an NCO, and if so who, had taken Geyik away. Also on 29 April 1993, the prosecutor enquired from the Pertek district gendarmes whether gendarmes had responded to a request for assistance from the beerhouse and who was involved. On 4 May 1993, the Pertek prosecutor took statements from two eye-witnesses to the incident. Hüseyin Kaykaç, the owner of the beerhouse, confirmed that Geyik had been in his beerhouse on 15 March and had claimed to have killed Can and Kaya. He talked into a radio and was picked up by a gendarme in plain clothes. Ali Kurt, a waiter, agreed with this. By a letter of the same date, the Pertek police reported that there was no-one called Geyik in their jurisdiction but that he had been reported as having been seen in the district. In the final sentence of the letter, there appeared a phrase which has been subject to varying interpretations due to its ambiguous construction in Turkish. This appears to state that it had also been reported that Geyik had stayed at the district gendarmerie a month before but his whereabouts were unknown. By letter of 5 May 1993, the district gendarme commander denied that any assistance had been sent to the beerhouse or that any NCO was involved in any incident.

302. The Commission notes that at this stage there was clear evidence implicating gendarmes in an incident possibly linked to the killing of Metin Can and Hasan Kaya. It also linked the gendarmes with a man who was wanted for various murders and robbery (see para. 303 below). However, no further steps were taken to elucidate the situation, until six months later, when on 8 November 1993, the Erzincan State Security Court prosecutor requested that more detailed statements be taken from Hüseyin Kaykaç and Ali Kurt, in particular to obtain a description of Geyik and whether the NCO could be identified. Ali Kurt's second statement was taken on 17 November 1993. He added the information that he had heard Bozo trying to get through to the regiment commander on the radio but that he did not know who took him away. Even though Ali Kurt gave details of Kaykaç's change of address to Elazığ and an urgent reminder was sent on 14 February 1994 to the Elazığ Security Directorate, Hüseyin Kaykaç was not brought to the prosecutor's office to give a statement until 6 April 1994. In this statement, he elaborated that he had heard that Geyik came from Geyiksu village and that he had called both the Tunceli and Pertek gendarmes on the radio. He recalled that three men came to pick him up, two NCOs called Mehmet and Ali and an NCO in plain clothes called Hüseyin who was still employed in Pertek.

303. The Erzincan prosecutor by this time appears to have become aware that the evidence was tending strongly to indicate that an incident had occurred at Pertek beerhouse in which the gendarmes were implicated. By letter of 2 February 1994, they informed the Pertek prosecutor that there was a discrepancy between the documents from the Pertek police and gendarmes and requested that the prosecutor personally undertake a new investigation to clear up this contradiction. It specifically pointed out that the gendarmerie might be a party and that the police had stated that Geyik had stayed at the district gendarmerie. By letter dated 17 February 1994 from the Pertek prosecutor, the Erzincan prosecutor was given information indicating that Yusuf Geyik was a member of the TKP-ML Partizan group and a suspect in a killing and robbery committed in 1989 and 1990.  On 21 February 1994, Ahmet Kaya was summoned to explain what he knew about Geyik. He explained that he had heard the story only in "Gerçek" magazine, a copy of which had been given to him by Elazığ police officers.

304. There are no other documents provided in the file which relate to any further investigation at Pertek, in particular, as to whether any statements were taken from gendarmes or any verification of the names given by Hüseyin Kaykaç. The investigation appears to have stopped proceeding along a potentially significant line of enquiry. The Commission notes that when the Malatya State Security Court prosecutor took up the case there was a new impetus, when on 13 March 1995, specific instructions were sent out. However, this was limited to the location and identification of Yusuf Geyik by the Tunceli public prosecutor. The only steps taken appear to have been to check his village of registration, Geyiksu-Atadoğdu, it being reported on 3 April 1995 that he had moved to İstanbul 8-10 years before and his address was unknown.

305. It is to be noted that Judge Major Ahmet Bulut, who had responsibility for the file, agreed, when shown the documents from the Pertek police and gendarmes, that it would have been appropriate to make enquiries to clarify any doubts.

Alleged involvement of Ahmet Demir and Mehmet Yazıcıoğulları

306. In a petition dated 3 September 1993, Ali Demir, a lawyer, and Mehmet Gülmez, President of the Tunceli Human Rights Association, drew the prosecutor's attention to an Aydınlık article appearing about 25-26 August 1993, which named Ahmet Demir and Mehmet Yazıcıoğulları as responsible for organising the murder of Metin Can and Hasan Kaya as contra-guerillas working for State authorities. Ali Demir was summoned to give further information and explained that though he had no personal knowledge of Ahmet Demir, he had heard complaints between 1989 and 1991 that an individual known as "the Beard" (Sakallı) who was associated with State security forces had been carrying out attacks in the Ovacık-Nazımiye district. Gülmez also told the prosecutor on 18 October that he had heard of "the Beard" 3-4 years earlier. By instruction dated 14 October 1993, the Tunceli prosecutor requested that the Security Directorate locate and summon Mehmet Yazıcıoğulları and Ahmet Demir. By reply of 18 October 1993, the Security Directorate replied that they were not known. The Tunceli prosecutor reiterated its instruction on 11 November 1993. A police report dated 6 December 1993 indicates that they were not found within their jurisdiction (in Tunceli). Though at this stage the responsibility for the investigation lay with Erzincan, no steps were taken to widen the search beyond Tunceli.

307. More allegations as to the involvement of Ahmet Demir, also known as Mahmut Yıldırım, were drawn to the attention of the prosecutors in early 1994. On 31 January 1994, Hale Soysu, editor of Aydınlık, formally accused Mahmut Yıldırım of a number of crimes, including the murder of Metin Can and Hasan Kaya, basing his complaints on information received by the newspaper. He enclosed extracts from the newspaper which in January 1994 ran a series of articles on interviews given to the journalist Soner Yalçın by Major Cem Ersever, a gendarme major with extensive experience in the south-eastern region who had been found murdered near Ankara. Ahmet Kaya made two similar petitions on 14 February 1994, referring to reports in Aydınlık, Özgür Gündem and a programme on Show TV in which Soner Yalçın talked about Major Ersever. He also stated that Mahmut Yıldırım was known in his district of Elazığ as someone involved in incidents and gave what he had heard to be Mahmut Yıldırım's home and work address.  On 21 February 1994, Anik Can gave the same information about the address.

308. In response to this information, Erzincan State Security Court requested a copy of the Show TV transcript from İstanbul, while on 15 February 1994, Ahmet Kaya's petition was sent to the Elazığ Security Directorate who were asked to carry out a "very confidential" investigation and apprehend the suspects. A police report dated 25 February 1994 stated that Mahmut Yıldırım had left his address 15-20 days previously and his location was unknown.  A further report of 11 April 1994 stated that the investigation of his whereabouts was ongoing. However no steps appear to have been taken in respect of Yıldırım's purported work address at this time. The transcript of the TV programme was received by the Erzincan State Security Court prosecutor in May 1994, disclosing that Soner Yalçın had given further details about Ahmet Demir or Yeşil, alleging that he had been employed by the public service in Elazığ and that Yeşil was a codename widely known in the security forces and police. No steps were apparently taken to contact Soner Yalçın and question him about this information or to trace in Elazığ whether or not such an individual had been employed by a State agency.

Period from April 1994

309. The Commission notes a complete absence of any investigative activity from about April 1994 until March 1995, when the Malatya State Security Court prosecutor took up the case actively. In an instruction of 13 March 1995, the prosecutor then made requests that Mahmut Yıldırım/Ahmet Demir and Mehmet Yazıcıoğulları be located and also that statements be taken from Ayhan Öztürk, İdris Ahmet and Mehmet Mehmetoğlu who had been named in various news articles. In response to this request, information was received from Diyarbakır E-type prison that the latter three were all confessors who had been detained for overlapping periods in 1992-1993, all released shortly before the disappearance of Can and Kaya. Mehmet Mehmetoğlu, who had been re-detained for a suspected new offence, gave a statement in the prison on 6 April 1995, in which he confirmed that he knew İdris Ahmet and Ayhan Öztürk but denied any involvement in the killing of Can and Kaya stating that he had been in Hazro at the time.  Mehmet Yacızıoğulları was also located and gave a statement  on 28 March 1995, denying any involvement. As regarded Mahmut Yıldırım, the police reported on 7 April 1995 that the home address given did not exist and that his work address was outside their jurisdiction. On 28 April 1995, the gendarmes reported that their investigation disclosed that his identity and location could not be established.

310. The Commission has not been provided with any other investigation documents dating after May 1995. It notes that there is no indication that any steps were taken to clarify the police claim that the home address attributed to Mahmut Yıldırım did not exist which was in conflict with the prior police report that Yıldırım was not present at his home address. The second police report indeed wrongly spells the address as Panarlı street rather than Pancarlı street. In his evidence to the Delegates, Judge Major Ahmet Bulut did not recall that he had noticed this discrepancy. It is not apparent that any further action was taken to verify the alibi given by Mehmet Mehmetoğlu or to investigate Mehmet Yazıcıoğulları's background. Judge Major Ahmet Bulut stated that following further revelations in the press at the end of 1996 in the Milliyet newspaper he had been able to make new enquiries, in particular contacting the Tunceli district gendarmerie and the gendarme headquarters to enquire whether they knew of Yeşil. He had also checked the statements of a suspect Bilgiç whom Mevlut Kaya had said had information but found that they contained no information. His words implied that no other avenues of enquiry were pending. There has been no information forthcoming from the Government as to whether, following the publication of the Susurluk report, which makes express reference to Metin Can in connection with unlawful activities by covert groups, any progress has been made towards identifying the perpetrators of the murder. In the absence of further documentation or information from the Government concerning the investigation, the Commission draws the inference that no significant steps, other than those referred to above, have been taken.

311. The Commission finds that there was a body of evidence implicating a number of persons in the killing of Metin Can. This evidence was in some cases derived directly from eyewitnesses, as in the Pertek beerhouse incident. In other cases, the evidence derived via hearsay,  rumours and press reports but showed a significant degree of consistency. The investigation followed most of those leads but only up to a certain point, coming inconclusively to a halt at the first denials or obstacles. It has therefore not provided sufficient evidence either to show that allegations were groundless or that they were substantiated.

4. Evidence as to the identity of the perpetrators of the killing

312. Notwithstanding the lack of progress in the official investigation, the applicant submits that there is overwhelming evidence that Hasan Kaya and Metin Can were killed by "contra-guerillas", agents of the State permitted to operate outside the legal framework of accountability. He relies principally on:

- the previous threats made against Metin Can and Hasan Kaya.

- evidence that Metin Can and Hasan Kaya were forced into a vehicle at Yazıkonak by persons using walkie-talkies and seen in a car at a petrol station in the company of police officers;

- the way in which the two victims were held for six days and transported from Elazığ to Tunceli through numerous checkpoints;

- evidence from the Pertek beerhouse, where two eyewitnesses gave statements that Yusuf Geyik, "Bozo", claimed responsibility for the killing and was taken away by gendarmes;

- information obtained from Major Cem Ersever, who gave interviews to the journalist Soner Yalçın, who wrote articles and a book, "The secrets of Major Cem Ersever". This source identifies an individual variously known as Ahmet Demir, Mahmut Yıldırım or "Yeşil" as a ringleader in unknown perpetrator killings in the Tunceli-Elazığ-Diyarbakır area and as having organised the kidnapping and killing of Metin Can and Hasan Kaya. Mehmet Yazıcıoğulları was named also as involved in the contra-guerilla group;

- newspaper report of the confession of Erhan Öztürk, who was the triggerman who killed Metin Can and Hasan Kaya, and named İdris Ahmet and Mehmet Mehmetoğlu as assisting him;

- the Susurluk report which confirms that confessors, contra-guerillas and undercover groups acting on the direction of, or with the knowledge of, the security agencies or security forces were implicated in the deliberate targeting of Kurdish citizens from 1992 to 1996. The name of Metin Can is listed as one of the victims of these activities. The report supports many of the alleged confessions of Major Ersever;

- the lack of any motive for the PKK to kill Metin Can and Hasan Kaya.

313. The Commission has considered each of these points in turn:

Threats made against Hasan Kaya and Metin Can

314. As found above (para. 279), there is no direct evidence that the two men received threats from official sources. The Commission has found however that both men were under suspicion by the authorities as being PKK sympathisers.

The circumstances of the disappearance and killing

315. The applicant and his father were suspicious from an early stage as to how two bodies, or kidnapped persons could be transported from Elazığ to Tunceli, approximately, 130-140 km away (see para. 64). The applicant submits that the impossibility for the victims to have been transported undetected from Elazığ to Tunceli is evidence that they were in fact being held by State agents or persons working for State, who, for example, had special identity cards which would have permitted them to pass without hindrance through the security force checkpoints, which numbered from four to ten according to various accounts.

316. When the matter was put to the two public prosecutors, they confirmed that there was only one road for traffic between the two towns and that at the time there would have been permanent checkpoints. Eraslan stated that at the checkpoints all cars would be stopped and identity cards checked. Not all cars would be searched. He did not think that it would have been possible though for two bodies to have been brought through the checkpoints from Elazığ without discovery.  Tutal also considered that that would have been very difficult. Both considered that it might have been possible for them to have been transported alive through the  checkpoints, though Tutal agreed that it would have been possible in that event for the two victims to seek to draw the attention of the security forces. The Commission would also note that, even if the victims were held under coercion, which would have been a risky action under the noses of the security forces at the checkpoints, their identity cards would still have had to be presented for examination. From the day after the disappearance however, Metin Can and Hasan Kaya had been reported as missing and were presumably being looked for by the authorities. Unless the kidnappers had taken their victims immediately from Elazığ and Tunceli before the alarm was given, it would appear impossible that they could have passed undetected between the two towns. PKK kidnappers certainly could not have attempted the journey without a serious risk of discovery. It is not apparent however that the authorities took any steps to investigate this highly relevant aspect of the case.

317. The Commission sees however no persuasive force in the argument that holding of the two victims over a six day period of itself indicated official involvement. There is nothing to suggest that non-official kidnappers would be incapable of hiding their victims for long periods of time.

Sightings of police officers at Yazıkonak and the petrol station

318. The evidence that police officers took Metin Can and Hasan Kaya into custody at Yazıkonak consists of the statements of Ahmet Kaya dated 18 March and 13 April 1993 and the oral testimony to the Delegates of the applicant and Şerafettin Özcan who heard from villagers that Metin Can and Hasan Kaya were seen being forced into a vehicle at Yazıkonak by persons using walkie-talkies. This evidence is rather vague and by way of hearsay.

319. The evidence that Metin Can, and impliedly Hasan Kaya, were seen in a car at a petrol station in the company of police officers comes from the same statements of Ahmet Kaya, which do not specify the source of the information. The applicant had also heard this but from equally unspecified sources. The Commission does not consider that this is sufficient basis for any findings of fact as to police involvement in the disappearance of Metin Can and Hasan Kaya.

The Pertek beerhouse incident

320. The Commission has noted above (paras. 301-305) the evidence of two eyewitnesses that Yusuf Geyik, a suspected terrorist wanted in respect of murder and robbery, claimed that he killed Metin Can and Hasan Kaya and was taken away by gendarmes. The investigation revealed a certain, unresolved discrepancy between the Pertek police report and the Pertek gendarme reply to enquiries, the Pertek police chief referring in ambiguous terms to Yusuf Geyik having stayed at the district gendarmerie.

321. Before the Delegates, both the Pertek chief of police and the district gendarme commander gave evidence. Geyik was known to both of them as a man wanted for various incidents which had occurred in the surrounding rural areas. The police chief recalled that enquiries had been made into the beerhouse incident at the request of the prosecutor. It had been his assistant who had taken the eyewitnesses, Kaykaç and Kurt, to make statements. He remembered that it had been reported that Geyik had been taken away from the beerhouse by gendarmes and had stayed at the district gendarmerie but could not recall exactly where this derived from. His officers might have told him this or it might have come from the owners of the beerhouse or other people. The police had not been able to pursue any enquiries themselves with the gendarmerie, this being beyond their powers. Bülent Ekren denied firmly that the gendarmes under his command were involved with any incident in the beerhouse or that Geyik had stayed at the gendarmerie, pointing out that 70% of the local population were hostile to the security forces and could have spread stories to discredit them.

322. The Commission is unable on the basis of this testimony to resolve the matter one way or the other. The police chief impressed as an honest man and if he was vague on the subject of the source of information about Geyik staying at the gendarmerie, this could be explained by the lapse of time. The district gendarme commander was polite, concise and categorical. There is no basis from the content of his evidence to draw the conclusion that he was untruthful in his denials. However, the possible theory that Ali Kurt and Hüseyin Kaykaç fabricated the story in order to discredit the security forces is not convincing either.

323. The Commission has found above that the investigation into the Geyik incident came to a halt in about February-March 1994, without seeking, inter alia, to trace the NCOs named by Hüseyin Kaykaç or to find other witnesses from the beerhouse. It concludes that suspicion remains as to the involvement of Geyik in the murder and as to his links with the security forces but that no fact in this respect can be regarded as established.

Major Cem Ersever

324. It is undisputed that Major Cem Ersever was a gendarme officer in JÄ°TEM, who served in the south-eastern region for a considerable time. In or about 1993, he voluntarily retired from service and returned to Ankara. In or about the end of October 1993, he was found murdered, his hands bound and with a bullet in the back of the head near Ankara.

325. Soner Yalçın, a journalist for Aydınlık, interviewed him in Ankara before he died. The information which Cem Ersever gave him appeared in a series of articles in Aydınlık, from 26 August 1993 (in which the source given was an unnamed special warfare officer), until January 1994 and in his book, "The secrets of Major Cem Ersever".

326. Soner Yalçın gave evidence before the Commission's Delegates. He was an intelligent, articulate witness and he was careful to distinguish what he knew or had been told from what he deduced or implied. His evidence was credible and convincing. The Commission has no reason to doubt that he did meet Major Cem Ersever five or six times in 1993 and that Major Cem Ersever gave him information about events in the south-eastern region. The Commission notes from Soner Yalçın's evidence that Ersever did not confess as such to any wrongdoing himself or expressly attribute particular killings to any group under his control or general auspices.  He did describe how in order to fight the PKK by their own methods, he set up teams of PKK confessors, who spoke Kurdish and wore PKK dress. They initially went round the villages to gather intelligence. They passed on information about PKK sympathisers and later began to pick them up, interrogate and kill them. Yalçın stated that Ersever referred to the Can and Kaya murders as an example of this pattern. He said that Ersever did not refer to them by name but as the doctor and lawyer from Elazığ. He described how two PKK confessors went to the house of the lawyer, who was regarded as a PKK sympathiser and told him that there was a clash and that their comrades were injured. When they went to meet outside town, they were taken and interrogated before being killed. Ersever named Ahmet Demir, known as "YeÅŸil" as the ring leader of the group of confessors operating in the Diyarbakır-Tunceli-Elazığ area. He was responsible for the assassinations there. Mehmet YazıcıoÄŸulları was also named as involved.

327. The Commission observes that, when questioned by the Delegates about the information given to him by Ersever, Soner Yalçın was unable to say whether the State authorities knew about the actions that this group carried out or whether Ersever acted on his own initiative or on instructions from superior officers. His opinion was however that the authorities turned a blind eye.

328. The Commission notes that Yalçın's description of Ersever's account of the murder is consistent with the description of events recounted by Fatma Can and Şerafettin Özcan, which had not been made public previously. Further, as the applicant has submitted, Ersever's revelations are consistent also with the descriptions in the Susurluk report of the activities of confessor groups (see below). It concludes that Soner Yalçın's evidence concerning Ersever, although strictly speaking hearsay, is strongly probative concerning the formation of confessor groups by the security forces and the involvement of such groups in unlawful killings, including those of Metin Can and Hasan Kaya.

Erhan Öztürk's confessions

329. Erhan Öztürk was named in the Özgür Gündem and Aydınlık newspapers as having confessed that he had been trained as a contra-guerilla while in prison and on his release met YeÅŸil who took orders from the Minister of the Interior. According to this account, YeÅŸil obtained the address and telephone number of Metin Can from the Elazığ Security Directorate and on his instructions, they went to Can and Kaya, introduced themselves as PKK members and asked them to treat a wounded person. Can and Kaya were interrogated at the Elazığ Security Directorate by YeÅŸil, the Syrian Ä°dris Ahmet and two or three security officers. Öztürk later executed them both at a bridge near Tunceli.  Mehmet MehmetoÄŸlu was named also as involved. The source of this information appears to be a press release from the Kurdish news agency (Kurd-HA), which based itself on confessions made by Öztürk who had been captured by the PKK.

330. The Delegates heard evidence from Mehmet Mehmetoğlu. He confirmed that he knew İdris Ahmet and Erhan Öztürk but denied any involvement in any killings or contra-guerilla activities, stating that he had been at Hazro at the time of Can's and Kaya's murder. He had heard that Öztürk had fallen into a PKK trap set up by his brother in Malazgirt. A man told him that Öztürk had been tortured and executed by the PKK, after he had been interrogated. His statements and a video had been sent to the press. Mehmetoğlu's evidence was surprising to the extent that this was the first occasion that the Commission had been informed that Erhan Öztürk was allegedly dead. The Commission had requested the Government to summon Erhan Öztürk as a witness but had been informed by the Government that they were unable to contact him.

331. The Commission considers that the source of Öztürk's "confession", and the fact that it was derived under some degree of coercion, means that it must be approached with caution. The detailed version of the confession as cited in Soner Yalçın's book is also inconsistent with the account given by Fatma Can and Şerafettin Özcan, referring to the two men taking Metin Can from his home and then the doctor from his home. It also referred to the faces of the doctor and lawyer being smashed to pieces, which does not accord with the autopsy evidence in respect of Hasan Kaya. It stated that they were shot with a 16mm rifle, while the ballistics report mentions 9mm parabellum cartridges being found at the scene.

332. Şerafettin Özcan, who had had sketch drawings made up of the two men who came to Can's house, said that he had identified one of them from the photograph of Erhan Öztürk which appeared in the newspaper. It is also to be remarked that according to Fatma Can one of the men was Syrian, fairhaired, with hazel eyes which accords with the description given of İdris Ahmet in the press.  The Commission cannot however rely on these elements in reaching any findings of fact. It would note again however that it raises questions which could usefully have been pursued further in a domestic investigation.

Susurluk report

333. This report, issued by the Prime Minister's office, contains a remarkable analysis of the situation and events in particular in south-eastern region, covering the Special Warfare Department, MÄ°T, JÄ°TEM, confessors, village guards, organised crime, drugs smuggling and financial and banking connections. It reaches the conclusion that certain persons and groups, acting outside legal structures but with the knowledge of the authorities, carried out unlawful actions, including killings, in furtherance of perceived interests in suppressing PKK sympathisers or of their own interests. Ersever is named as the organiser of JÄ°TEM, which used confessors, and YeÅŸil, who with his group of confessors carried out extortions, kidnappings, rape, murder and torture, is mentioned as having close links with MÄ°T and JÄ°TEM.

334. The name of Metin Can is expressly mentioned in the report in the context of the unlawful acts carried out by such persons with the knowledge of the authorities. The Commission acknowledges that this is persuasive evidence that the drafter of the report was of the opinion that Metin Can, and presumably Hasan Kaya, was deliberately targeted as a PKK sympathiser by one of these groups acting outside the law and that the authorities were aware of it. However, though the drafter appears to have had wide, official sources to draw on, the basis of his opinion is not apparent. As the Government have pointed out, the report is not a judicial or factfinding exercise. The report is an indication that strong suspicions exist as to contra-guerilla and State involvement in the deaths of Metin Can and Hasan Kaya but no more.

Lack of motive of the PKK

335. The Commission agrees that in the normal course of events the PKK would appear to have no motive to murder two persons suspected of PKK sympathies, and who had provided legal and medical services to suspected PKK members. The Government have previously submitted that the PKK are capable of carrying out attacks in order to throw blame on the security forces. The Commission is aware of the ruthlessness of this organisation. It would observe however that from the testimony of Fatma Can and Şerafettin Özcan the two men who lured Metin Can and Hasan Kaya into an ambush claimed to be PKK members and there was no element of trying to throw suspicion on the security forces.  This however cannot be regarded as a particularly persuasive element.

Concluding finding

336. In light of the above, the Commission cannot find that it is established beyond reasonable doubt that Hasan Kaya and Metin Can were killed by PKK confessors acting under the direction or with the knowledge of any State authority. It does find however that there is a significant body of evidence which supports a strong suspicion of connivance or knowledge by some elements of State security or intelligence agencies.

D. As regards Article 2 of the Convention

337. 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."

338. The applicant submits that his brother Hasan Kaya was killed by contra-guerillas who were agents of the State, operating with full knowledge of the State organs and enjoying full immunity for their actions. They rely on the evidence referred to above (para. 312). They submit that the authorities at the very minimum tolerated and thus condoned the practice of "unknown perpetrator" killings as a counter-insurgency practice and that the comprehensive tolerance at a high level engages State responsibility in the killings. In that context, they refer to a repetition of acts - a pattern of unknown perpetrator killings - and a consistent indifference of the authorities who failed to take steps to end them.

339. The applicant also submits that there was a failure to provide the procedural protection required by Article 2 in that there was no adequate investigation into his brother's death. He points, inter alia, to the failure to collect forensic evidence at the scene of the crime and in the car, to take statements from possible witnesses at Yazıkonak and to the attitude of the public prosecutors, who refused to consider that the PKK were not responsible and failed to take a pro-active role in the investigation. He alleges that there is a practice of ineffective investigations, referring to the numerous Commission decisions in Turkish cases in which investigations had not been found to furnish an effective remedy for the purposes of Article 26, as well as to the six cases in which the Commission's opinion on the merits included findings of inadequate domestic investigations into killings.

340. Finally, the applicant submits that the case discloses a violation of Article 2 in that the right to life is inadequately protected in domestic law. He argues that, where the domestic law or legal authorities permit actions, behaviour and practices in violation of the right to life to occur without proper investigation, this is a failure of domestic law to provide adequate protection. In this regard, he relies in particular on the practices of the prosecuting authorities in this case.

341. In very brief submissions, the Government deny the applicant's complaints under Article 2. They state that the facts still implicate terrorist involvement and that allegations of gendarme involvement at Pertek have not been clarified. They emphasise that the domestic investigation is still pending and that progress has recently been made in the investigation of unknown perpetrator killings. They submit however that the Susurluk report cannot be relied upon as a judicial document.

As regards responsibility for the killing of Hasan Kaya

342. The Commission recalls its finding above (para. 336) that it is unable to determine who killed Hasan Kaya. It is not established beyond reasonable doubt that it was a member of the security services or contra-guerilla agents acting on their behalf or with their knowledge.

343. 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.

344. 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  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).

345. 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).

346. 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)

347. 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.

348. 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.

349. 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).

350. The Commission has therefore examined whether the State has in this case protected the right to life of Hasan Kaya 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

351. 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 the 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 (para. 266). 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. 265).

352. 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.

353. 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. 266). 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 it. 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.

354. 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.

355. 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.

356. 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. Aydın 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).

357. 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 to 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).

358. 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.

359. 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 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.

360. 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.

361. 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.

362. The Commission notes its finding that Hasan Kaya was suspected of being a PKK sympathiser and that he was victim of kidnapping and murder in an incident also involving his friend Metin Can, a lawyer suspected of being a PKK sympathiser, named as a victim in the Susurluk report.  The Commission further recalls its finding that there is strong suspicion, supported by some evidence, to substantiate the allegations that persons identified as PKK sympathisers were at risk derived from targeting by State officials or those acting on their behalf or with their connivance or acquiescence (para. 336). There are factors in this case which raise grave doubts that have not been dispelled by the official investigation. In particular, there is the circumstance in which the applicant's brother was transported from Elazığ to Tunceli (paras. 315-316); the eyewitness statements of gendarme links with a wanted suspect Yusuf Geyik; the consistency of Ersever's account of the killing of a doctor and lawyer at Elazığ with the evidence of Fatma Can and Şerafettin Özcan; and the substantiation of his general veracity by the Susurluk report.

363. 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. It is to be remarked that, while allegations of State-sanctioned contra-guerilla 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 into the killing of Hasan Kaya

364. The Commission notes that the investigation included many of the necessary initial measures, as regards the scene of crime and discovery of material evidence (para. 296). It has noted however a number of omissions and defects:

- the brief, unsatisfactory first autopsy report was remedied in some respects by the second. However the second report still did not make findings or give explanations as to the possible causes of some of the injuries;

- no attempt was made to analyse whether the victims were killed at the spot or transported there afterwards, in the autopsy reports or any other forensic analysis;

- there was no investigation of how Can and Kaya could have been transported from Elazığ to Tunceli;

- there was no documented attempt to check custody records at Tunceli;

- there was no documented attempt to find or take statements from possible witnesses at Yazıkonak;

- there was no follow-up of the conflicting evidence from Pertek, by way of verifying the existence of partly-named gendarmes or other witnesses;

- no attempt was made to interview Soner Yalçın as regards his sources of information;

- there was no follow-up of the allegations that Mehmet Mehmetoğlu, İdris Ahmet or Erhan Öztürk were involved in the killing;

- there was no serious attempt to locate Mahmut Yıldırım/Yeşil or discover information as to his background and identity.

365. The Commission notes that the prosecutors involved did respond to matters raised by members of the family and the press but rarely initiated their own lines of enquiry. It recalls its finding that they appeared to stop as soon as they met with denials or claims of ignorance (para. 311). Such steps as were taken were often dilatory. It notes an absence of any significant investigative input in the file from 5 May 1993 to September 1993 when activity was stirred by a petition from a lawyer and President of Tunceli HRA; the delay from May to November 1993 in seeking further information about the beerhouse incident in Pertek; a delay from 17 November 1993 to April 1994 in obtaining Hüseyin Kaykaç's second statement; and an absence of meaningful, investigative steps from April 1994 until Judge Major Bulut's request for action on the file in his letter of 13 March 1995. According to the evidence of Judge Major Bulut, from May 1995 to February 1997 only a limited number of steps were taken (paras. 234 and 310).

366. The Commission considers that the periods of inaction and the failure to follow certain leads may derive from, and certainly were not assisted by, the way in which the case was transferred on four occasions. It also notes Judge Major Bulut's explanation for the delay in taking action, namely, that he had 500 other files to deal with. This might explain the dilatoriness and lack of focused attention on the case but does not justify it in terms of Article 2.

367. The Commission has found that strong suspicions existed that a contra-guerilla group acting under the auspices of the State agencies was involved in the kidnapping and killing of Hasan Kaya (para. 336). In these circumstances, there was a particularly pressing need for the investigative authorities to act effectively and diligently in confirming or dispelling the rumours. The Commission is struck however by the apparent impotence of the public prosecutors faced with these allegations. It observes that the public prosecutors in the south-east at this time relied heavily on their police and gendarme collaborators, particularly where their own safety was at risk from terrorist activities. A reluctance to entertain the possibility that the police or gendarmes had acted unlawfully might in those circumstances be a natural reaction. The Commission acknowledges that there must also have been a practical dilemma as to how a public prosecutor could investigate the officers who were meant to be carrying out his investigations. Under those conditions, it would perhaps appear easier and safer to ignore or discount such allegations. The Commission notes that while allegations of State-sponsored counter-guerilla activities were current from an early stage in the media, known to ordinary citizens and subject to enquiry by a delegation of the Turkish Grand National Assembly (para. 158), two of the public prosecutors who gave evidence before the Commission's Delegates were reluctant to admit that they had ever heard of any such phenomenon. Süleyman Tutal, a public prosecutor at Elazığ, had never heard of contra-guerillas in Elazığ or of Yeşil. While Hayati Eraslan, the prosecutor from Tunceli, had heard rumours in the press about Yeşil and contra-guerillas, he was able to assert there was no such activity in his area and knew nothing of the National Assembly delegation which had come to Tunceli in 1991 or that Yeşil was alleged to work for the State and had been involved in killing Can or Kaya.

368. The Commission finds that in light of these fundamental defects the investigation cannot be regarded as providing an effective procedural safeguard under Article 2 of the Convention.

c. Concluding findings

369. Having regard to the facts of this case which disclose a lack of effective guarantees in respect of unlawful conduct by State agents and the defects in the investigative procedures carried out into the kidnapping and killing of Hasan Kaya, the Commission finds that the State did not comply with their positive obligation to protect Hasan Kaya's right to life.

CONCLUSION

370. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention in relation to the death of Hasan Kaya.

E. As regards Article 3 of the Convention

371. Article 3 of the Convention provides:

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

Concerning Hasan Kaya

372. The applicant submits that his brother was tortured before his death. He refers to the autopsy report which records bruises and other injuries.  He also argues that his brother was a victim of degrading treatment in that he was ill-treated because of his ethnic origin.

373. The Government have made no separate submissions on this point.

374. The Commission recalls its findings above (para. 290) that Hasan Kaya suffered physical injury prior to his death. The exact circumstances in which the injury was inflicted is unknown. However, the Commission is satisfied that the existence of bruises, scratches and wounds on the wrists from being bound from wire and evidence that Hasan Kaya's feet were exposed in winter conditions to water or snow for a long period establishes beyond a reasonable doubt that he suffered inhuman and degrading treatment within the meaning of Article 3.

375. As regards State responsibility for this treatment, the Commission recalls that it is not established that any State officer was involved or knew of Hasan Kaya's disappearance and killing. The same applies to the infliction of inhuman and degrading treatment. However,  the Commission found that State responsibility existed as regards a failure to protect Hasan Kaya's right to life by law under Article 2 of the Convention. It is satisfied on the same basis that State responsibility is engaged in respect of ill-treatment which he suffered between his disappearance and murder. It finds no separate issue arising in respect of the complaint that the applicant's brother suffered degrading treatment.

CONCLUSION

376. The Commission concludes, by 26 votes to 2, that there has been a violation of Article 3 of the Convention in relation to the treatment suffered by Hasan Kaya.

Concerning the applicant

377. The applicant submits that the anguish endured by himself and his family over the six days when his brother was missing constituted inhuman and degrading treatment. He relies on the uncertainty during this period and the heightened distress resulting from the telephone calls to the house during which sounds of torture were heard.

378. The Government have made no separate submissions on this point.

379. The Commission recalls that in Kurt v. Turkey (No. 24276/94, Comm. Rep. 5.12.96, para. 220, Eur. Court HR judgment of 25 May 1998, Reports 1998 at para. 133-134) and Çakıcı v. Turkey (No. 23657/94, Comm. Rep. 12.3.98, para. 259, pending before the Court) it found that the applicants had suffered inhuman treatment resulting from the prolonged anguish and distress suffered in respect of the disappearance of their son, and brother, respectively. These findings were however in the context of the years of uncertainty resulting from the disappearance. The disappearance in the present case lasted six days and cannot be considered as falling within the specific phenomenon of involuntary disappearances, the primary characteristic of which is that the family is never told anything, or very little, about the fate of the person concerned.

380. As regards the aggravating factor of the telephone calls, the Commission notes that the applicant did not himself receive one of these calls. The information concerning these calls is derived only from the applicant's recollection of what his brother said of them. His father did not make detailed mention of them in any of his statements to the public prosecutors. The Commission does not doubt that the applicant and his family suffered great distress from the circumstances in which his brother failed to return home and was found dead six days later. However, the Commission does not find that the uncertainty and anxiety suffered by the applicant reaches the threshold of severity imposed by Article 3 in respect of inhuman and degrading treatment (see eg. Eur. Court HR, Ireland v. the United Kingdom judgment, op.cit, p. 65, para. 162).

CONCLUSION

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

F. As regards Articles 6 and 13 of the Convention

382. 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."

383. 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."

384. The applicant complained in his application of both a lack of access to court contrary to Article 6 of the Convention and of 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 have violated human rights. He alleges that there are basic problems disclosed in official attitudes and practical inadequacies. He also refers to failings in autopsy and forensic practices. 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.

385. The Government have denied that there is any problem with remedies, relying on the pending investigation in this case which will continue until the end of the statutory 20 year period. They state that progress is being made into the investigation of unknown perpetrator killings and that nationwide investigation will definitely bring to light any illegal acts, whoever carried them out.

386. Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydın v. Turkey judgment of 25 September 1997, Reports 1997, 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.

387. 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., para. 96-98)

388. The Commission recalls its findings above on the inadequacies of the investigation, in particular, the failure to pursue enquiries as to the involvement of alleged contra-guerilla groups in the death of Hasan Kaya (paras. 364-368). Having regard to the fact that the investigation has already lasted more than five and a half years without any progress being made 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.

389. 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

390. The Commission concludes, by 27 votes to 1, that there has been a violation of Article 13 of the Convention.

G. As regards Article 14 of the Convention

391. Article 14 of the Convention provide 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."

392. The applicant maintains that his brother was clearly a victim of violations of his rights under Articles 2, 3 and 13 of the Convention because of his political opinions (namely, as person hostile to the State's policy towards the Kurdish question) and because of his Kurdish origin. Most of the victims of unknown perpetrator killings were Kurdish and the State chose to support an extrajudicial killing system to eliminate alleged PKK sympathisers, its attitude being in practice that all Kurdish civilians fell into that category.

393. The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.

394. The Commission has examined the applicant's allegations in the light of the evidence submitted to it. However, in light of its findings above (paras. 369-370), it considers that no separate issue arises under Article 14 of the Convention in conjunction with the provisions invoked by him.

CONCLUSION

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

H. Recapitulation

396. The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention (para. 370 above).

397. The Commission concludes, by 26 votes to 2, that there has been a violation of Article 3 of the Convention in respect of the applicant's brother (para. 376 above).

398. The Commission concludes, unanimously, that there has been no violation of Article 3 of the Convention in respect of the applicant (para. 381 above).

399. The Commission concludes, by 27 votes to 1, that there has been a violation of Article 13 of the Convention (para. 390 above).

400. The Commission concludes, unanimously, that no separate issue arises under Article 14 of the Convention (para. 395 above).

       M. DE SALVIA                        S. TRECHSEL

        Secretary                      President

     to the Commission                   of the Commission

(Or. French)

PARTLY CONCURRING AND PARTLY DISSENTING

OPINION OF Mr I.C. BARRETO

Je regrette de ne pas pouvoir me rallier à l'ensemble du raisonnement de la Commission concernant la violation de l'article 2 de la Convention.

Pour moi, s'il est clair que l'Etat turc a violé l'article 2 compte tenu de ce que l'obligation de protéger le droit à la vie inclut un aspect procédural, j'éprouve des difficultés à suivre l'approche de la majorité qui a vu, de surcroît, un manquement à l'obligation positive de protéger la vie du frère du requérant.

Je note qu'à la différence de l'affaire Kiliç, la victime ne s'est jamais adressée  aux autorités pour faire état des menaces proférées à son encontre.

Or on ne saurait déduire de l'article 2 une obligation positive d'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 c'est aller trop loin que de demander à l'Etat  turc de prendre des mesures spéciales pour protéger, dans le sud-est du pays, tous ceux qui, d'une façon ou d'une autre, se manifestent comme sympathisants du PKK.

Je me borne à dire que l'exigence de mesures de protection de la vie d'une personne doit être conditionnée par l'existence de menaces portées à la connaissance des autorités.

Ceci m'amène à ne pas constater un manquement à l'obligation positive découlant de l'article 2 de la Convention, puisque l'Etat n'était pas en mesure de prévoir ni, par voie de consequence, d'écarter la torture infligée à la victime.