Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22729/93

Mehmet KAYA

against

Turkey

REPORT OF THE COMMISSION

(adopted on 24 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-40) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-35). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 36-40) . . . . . . . . . . . . . . . . . . . . . 5

II. ESTABLISHMENT OF THE FACTS

(paras. 41-141) . . . . . . . . . . . . . . . . . . . . . . . 6

A. The particular circumstances of the case

(paras. 42-137). . . . . . . . . . . . . . . . . . . . . 6

B. Relevant domestic law

(paras. 138-141) . . . . . . . . . . . . . . . . . . . .19

III. OPINION OF THE COMMISSION

(paras. 142-213). . . . . . . . . . . . . . . . . . . . . . .20

A. Complaints declared admissible

(para. 142). . . . . . . . . . . . . . . . . . . . . . .20

B. Points at issue

(para. 143). . . . . . . . . . . . . . . . . . . . . . .20

C. The evaluation of the evidence

(paras. 144-173) . . . . . . . . . . . . . . . . . . . .20

D. As regards Article 2 of the Convention

(paras. 174-182) . . . . . . . . . . . . . . . . . . . .26

CONCLUSION

(para. 183). . . . . . . . . . . . . . . . . . . . . . .28

E. As regards Article 3 of the Convention

(paras. 184-187) . . . . . . . . . . . . . . . . . . . .29

CONCLUSION

(para. 188). . . . . . . . . . . . . . . . . . . . . . .29

F. As regards Article 6 para. 1 of the Convention

(paras. 189-196) . . . . . . . . . . . . . . . . . . . .29

CONCLUSION

(para. 197). . . . . . . . . . . . . . . . . . . . . . .30

TABLE OF CONTENTS

Page

G. As regards Article 13 of the Convention

(paras. 198-201) . . . . . . . . . . . . . . . . . . . .30

CONCLUSION

(para. 202). . . . . . . . . . . . . . . . . . . . . . .31

H. As regards Article 14 of the Convention

(paras. 203-207) . . . . . . . . . . . . . . . . . . . .31

CONCLUSION

(para. 208). . . . . . . . . . . . . . . . . . . . . . .32

I. Recapitulation

(paras. 209-213) . . . . . . . . . . . . . . . . . . . .32

CONCURRING OPINION OF MM. S. TRECHSEL,

L. LOUCAIDES AND B. CONFORTI. . . . . . . . . . . . . . . . . . . .33

PARTLY DISSENTING OPINION OF MRS. G.H. THUNE. . . . . . . . . . . .35

PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . . . . .36

PARTLY DISSENTING OPINION OF MM. J.-C. SOYER ET E. BIELIUNAS

CONCERNING ARTICLE 2 OF THE CONVENTION. . . . . . . . . . . . . . .38

PARTLY DISSENTING OPINION OF MR. N. BRATZA

JOINED BY MR. G.B. REFFI. . . . . . . . . . . . . . . . . . . . . .39

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .40

1. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1949 and resident in

Dolunay village in the district of Lice in South-East Turkey. He was

represented before the Commission by Mr. K. Boyle and Ms. F. Hampson,

both teachers at the University of Essex, England. The application is

brought by the applicant on his own behalf and on behalf of his

deceased brother, Abdulmenaf Kaya.

3. The application is directed against Turkey. The respondent

Government were represented by their Agent, Mr. A. Gündüz.

4. The applicant alleges that his brother was unlawfully killed by

security forces on 25 March 1993 and that this event was not adequately

investigated by the State authorities. He invokes Articles 2, 3, 6, 13

and 14 of the Convention.

B. The proceedings

5. The application was introduced on 23 September 1993 and

registered on 1 October 1993.

6. On 29 November 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 11 April 1994

after one extension of the time-limit fixed for this purpose. The

applicant submitted further information and observations in reply on

6 June and 7 July 1994.

8. On 20 February 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 8 March 1995. The Government were requested to

provide a copy of the autopsy report of the applicant's brother and a

copy of the findings of fact, with any supporting evidence, made by the

Public Prosecutor at the Diyarbakir State Security Court. The parties

were invited to submit such further information or observations on the

merits as they wished. They were also invited to indicate the oral

evidence they might wish to put before delegates. Neither party availed

itself of this possibility prior to the expiry of the time-limit fixed

for this purpose.

10. On 1 July 1995 the Commission decided to take oral evidence in

respect of the applicant's allegations. It appointed three Delegates

for this purpose: Mr. H. Danelius, Mr. B. Conforti and Mr. J. Mucha.

It notified the parties by letter of 20 July 1995, proposing certain

witnesses and requesting the Government to identify the commander or

commanders of the security forces involved in the incident on

25 March 1993 and the Public Prosecutors at Lice and the Diyarbakir

State Security Court involved in the investigation of that incident.

The Government were also requested to provide the contents of the

investigation file which should include, in particular, the autopsy

report, the photographs taken at the scene and the field report of the

security forces concerning the incident. It was subsequently decided

that oral evidence would be taken by the Delegates at a hearing on

9 November 1995.

11. The Government submitted a copy of the autopsy report on

11 August 1995. On 11 September 1995 they provided the names of two

Public Prosecutors who had been involved in the investigation of the

incident.

12. By letter dated 15 September 1995 the applicant requested that

two further witnesses be heard.

13. On 15 September 1995 the Government provided the name of the

commander of the security forces involved in the incident.

14. By letter of 26 September 1995 the Commission again requested the

Government to submit copies of the investigation file, including in

particular any photographs taken at the scene, any field reports by the

security forces concerning the incident and any statements made by

members of the security forces involved, and of the findings of fact

made by the Public Prosecutor at the Diyarbakir State Security Court.

The Government were further requested to indicate whether the commander

of the security forces identified by them had in fact been on the scene

of the incident when it happened and, if not, to identify the

commanding officers who had been present.

15. On 11 October 1995 the Commission requested the Government to

identify the gendarmes present at the incident.

16. By letter of 24 October 1995 the Commission urgently requested

the Government to provide copies of the still outstanding documents,

to confirm whether the commander of the security forces identified by

them had in fact been on the scene of the incident, and to identify the

gendarmes present at the incident.

17. On 30 October 1995 the Government submitted a number of documents

from the preliminary investigation file held by the Public Prosecutor

at the Diyarbakir State Security Court.

18. On 1 November 1995 the applicant's representatives notified the

Commission that because of fear for reprisals the applicant did not

find it possible to attend the hearing planned for 9 November 1995.

They added that the applicant intended to provide an explanation for

his absence in writing. The applicant's representatives further

informed the Commission that a witness by the name of Hikmet Aksoy had

been convicted and sentenced in absentia and would not appear at the

hearing to give evidence.

19. Evidence was heard by the Delegates of the Commission in

Diyarbakir on 9 November 1995. For health reasons, one of the

Delegates, Mr. Mucha, was not able to attend the hearing. Before the

Delegates the Government were represented by Mr. A. Gündüz, Agent,

assisted by Mr. T. Özkarol, Mr. A. Sölen, Mr. A. Kaya, Mr. A. Kurudal,

Ms. N. Erdim and Mr. A. Kaya. The applicant, who did not appear in

person, was represented by Mr. K. Boyle, counsel, assisted by

Ms. A. Reidy, Mr. O. Baydemir and Ms. D. Deniz (interpreter).

20. By letter of 28 November 1995, the Commission requested the

Government to submit a document which had been shown to the Delegates

by Mr. Gündüz at the hearing containing a statement made by Hikmet

Aksoy to a Public Prosecutor.

21. On 2 December 1995 the Commission decided to take further

evidence in the case in Strasbourg. The applicant would be heard on

that occasion as well as other witnesses who had not appeared at the

earlier hearing. The new hearing was to take place on 7 and

8 March 1996.

22. The parties were informed of the decision to hold a further

hearing by letter of 12 December 1995. The applicant's representatives

were requested to confirm in writing that the applicant and the witness

Hikmet Aksoy would attend. The Government were requested to submit

copies of the photographs which had been annexed to the autopsy report

regarding the applicant's brother.

23. By letter of 10 January 1996 the applicant's representatives

informed the Commission that the witness Hikmet Aksoy was too afraid

to attend the hearing. The attendance of the applicant at the hearing

could not be confirmed.

24. On 16 January 1996 the parties were requested to inform the

Commission whether in view of these circumstances they nevertheless

wished to hear the remaining witnesses.

25. On 20 January 1996 the Commission decided not to maintain the

hearing of further witnesses if the parties had not responded to the

request of 16 January 1996 before the expiry of the time-limit fixed

for that purpose. It also decided that in that event the parties should

be invited to present their written conclusions on the merits of the

case.

26. No reply to the request of 16 January 1996 was received from the

parties before the expiry of the time-limit.

27. By letter of 22 January 1996 the Government submitted a copy of

the statement made by Hikmet Aksoy to a Public Prosecutor.

28. On 7 February 1996 the Commission reminded the Government of the

request still outstanding for copies of the photographs annexed to the

autopsy report of the applicant's brother.

29. By letter of 8 March 1996 the Government informed the Commission

that the attempts made by the Public Prosecutor at the Diyarbakir State

Security Court to locate and obtain the photographs which had been

annexed to the autopsy report had so far been unsuccessful. The search

for these photographs would, however, continue.

30. On 11 March 1996 the applicant submitted his final observations

on the merits.

31. The Government submitted their final observations on

29 April 1996, after expiry of the time-limit set for that purpose. On

30 May 1996 the Government submitted a reaction to the applicant's

final observations.

32. Upon instruction by the Delegates the Commission's Secretariat

requested the Government on 9 August 1996 to submit further information

and documents. The Government have not responded to this request.

33. On 2 October 1996 the applicant's representatives asked the

Commission whether they would be entitled to ask questions concerning

the present case of the witness Hikmet Aksoy during a hearing in a

number of different applications, scheduled to take place in

November 1996, in which he had also been summoned to give evidence. For

this hearing the Government had been requested to produce Hikmet Aksoy

since he was being held in detention.

34. The Commission decided on 15 October 1996 that Hikmet Aksoy

should not be asked again to give evidence.

35. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

could be effected.

C. The present Report

36. 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:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

37. The text of this Report was adopted on 24 October 1996 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.

38. 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.

39. The Commission's decision on the admissibility of the application

is annexed hereto.

40. 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

41. The facts of the case, in particular those which relate to the

events of 25 March 1993, are in dispute between 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 examined written material, as well as oral testimony,

presented before the Delegates. The Commission first presents a brief

outline of the events, as submitted by the parties, and then a summary

of the evidence adduced in this case.

A. The particular circumstances of the case

1. Concerning the events of 25 March 1993

a. Facts as presented by the applicant

42. The various accounts of events as submitted in written 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.

43. On the morning of 25 March 1993 the applicant's brother,

Abdulmenaf Kaya, was going to the fields situated 300-400 metres from

the village Çiftlibahçe and four kilometres from his own village of

Dolunay, with Hikmet Aksoy. At that time a military operation was going

on and Hikmet Aksoy was taken into custody. Seeing this, Abdulmenaf

Kaya began to run away as he was frightened that he would also be taken

into custody. The soldiers saw him running and opened fire injuring

Abdulmenaf Kaya. The soldiers pursued him and found him in the bushes.

They opened fire on him, riddling his body with bullets. Villagers

witnessed this. The soldiers then planted a fire arm on him and took

photographs. The soldiers eventually handed over the body of Abdulmenaf

Kaya to villagers in the neighbourhood who had first explained to the

soldiers that Abdulmenaf Kaya was an inhabitant of a neighbouring

village and not a terrorist.

b. Facts as presented by the Government

44. In their written submissions on the merits of the application the

Government submit that it appears from the oral evidence and other

material before the Commission that Abdulmenaf Kaya's death did not

occur in the manner and under the circumstances described by the

applicant. In their observations on the admissibility of the

application they stated that the facts were as follows.

45. On 25 March 1993 security forces conducting a field search at

Dolunay village came under fire. There was an exchange of fire for some

time and after the firing had stopped the search was continued. A body

was recovered next to which a Russian-made automatic assault weapon and

ammunition belonging to it were found. Photographs were taken of the

body and a field report was drawn up by members of the security forces

conducting the operation.

46. On the same day an official autopsy was carried out by the Lice

Public Prosecutor and the Lice State doctor. The autopsy report showed

that bullet wounds had caused the death. The identity of the deceased

was found out at a later stage.

47. Hikmet Aksoy was not taken into custody on 25 March 1993. The

authorities were seeking to arrest him as he was a member of the

illegal PKK terrorist organisation.

2. Proceedings before the domestic authorities

48. In their observations on the admissibility of the application the

Government submitted that a preliminary investigation had been

initiated by a Public Prosecutor at Lice. It appears from the documents

submitted to the Commission that this investigation concerned

Abdulmenaf Kaya's involvement in an armed clash with the security

forces on 25 March 1993. On 20 July 1993 Ekrem Yildiz, Public

Prosecutor at Lice, issued a decision of non-jurisdiction and

transferred the file to the Public Prosecutor at the Diyarbakir State

Security Court. It appears that the investigation is currently still

pending there.

49. On 17 June 1994 a Public Prosecutor, apparently at the request

of the Chief Public Prosecutor at the Diyarbakir State Security Court,

took a statement in relation to the death of Abdulmenaf Kaya from

Hikmet Aksoy while the latter was detained at Lice.

50. In their final observations on the merits of the case the

Government submit that the matter is currently also pending before the

Lice Administrative Board for further investigation. No further details

concerning this investigation have been submitted.

B. The evidence before the Commission

1. Documentary evidence

51. The parties submitted various documents to the Commission. These

included reports drawn up in the course of the investigation on the

domestic level into the death of the applicant's brother and statements

from the applicant concerning his version of the events in the case.

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

a. Official documents

i. Incident report of 25 March 1993

53. This report is a handwritten document, signed by six members of

the security forces, amongst whom Alper Sir, Pasa Bülbül, Ahmet Gümüs

and Altan Berk.

54. It states that on 25 March 1993 around 09.00 hours a group of

military forces, consisting of four teams, carried out a field search

near the village of Dolunay. During the search an unspecified number

of PKK members opened fire upon the teams and fire was returned. When

firing had ceased the search was continued and, at the location where

the firing had started, the body of a PKK member, a Kalashnikov rifle

with serial number 59339, a cartridge clip and three rounds of live

ammunition were found.

ii. Autopsy report of 25 March 1993

55. The report states that following a telephone call from the

District Gendarmerie Headquarters on 25 March 1993 to the effect that

the body of a person belonging to the PKK terrorist organisation had

been captured during a clash, the Public Prosecutor Ekrem Yildiz and

the District Government Doctor Arzu Dogru set out by military

helicopter, accompanied by a gendarme staff sergeant who was to act as

clerk.

56. On arrival at the scene the body was found to be lying on its

back in the bushes on the bank of a creek. It was moved to a flat piece

of ground. Beside the body there was a Kalashnikov rifle with serial

number 8125298 and one round of ammunition containing three full and

six empty cartridges. The body is described as being that of a

35-40 year old man with grey hair and dressed in blue and grey trousers

with a cummerbund round the waist, a sleeveless black vest and a

striped winter shirt, wearing rubber shoes but no socks. Since there

was no one at the scene of the incident who could identify the

deceased, the security forces took photographs from several angles.

57. A large number of bullet entry and exit holes were found in the

neck of the body, in the throat, above the heart, in the upper left

area of the abdomen, around the navel and around the groin, in the left

hip and in the femur of both legs. The bones of the legs were broken

as a result of the blows received.

58. The report goes on to say that the medical examiner was brought

over, that the body was handed over to him and that he made the

following statement:

"I established the above findings together with the Public

Prosecutor, and I agree that the findings are as described above.

As the result of these findings, the cause of death is clear.

There is no need to carry out a classical autopsy. The conditions

in the field combined with the fact that we do not have

sufficient security or instruments are in any case an impediment

to performing a full classical autopsy. From the above findings

I have come to the conclusion that the deceased died from

cardiovascular insufficiency as a result of the wounds caused by

firearms. That is my definite opinion."

59. The report further states that the rifle and the ammunition were

seized for safekeeping as corpus delicti. It concludes by stating that

the forensic examination of the body and the autopsy procedure had been

completed. The report is signed by, inter alia, Alper Sir as the person

receiving the body.

iii. Report of identification of 5 May 1993

60. This is a handwritten document signed by three members of the

security forces. It states that on 25 March 1993 a member of the

illegal PKK organisation entered into an armed conflict with the

security forces and was found dead as a result of the clash in the

fields of Dolunay village. An investigation established that the

deceased was Abdulmenaf Kaya, a resident of Dolunay.

iv. Decision of non-jurisdiction of 20 July 1994

61. This decision, issued by a Public Prosecutor at Lice, Ekrem

Yildiz, lists as accused of the crime of conducting an armed clash with

the security forces Menaf Kaya, who was killed, and a group of PKK

members. It states that the preparatory documents of investigation were

examined.

62. The decision goes on to describe the incident by stating that on

25 March 1993 search activities were carried out by the security forces

near the village of Dolunay. These forces were met by an unspecified

number of members of the illegal PKK organisation. The armed conflict,

which ensued between the parties, resulted in the finding of the dead

body of one terrorist, one Kalashnikov rifle, one cartridge clip, three

rounds of live ammunition and six rounds of empty cartridges. The rifle

was sent to a criminal investigation laboratory and a report is still

pending.

63. The Public Prosecutor concludes that the nature of the incident,

the aims of the suspect and the fact that the incident occurred at a

location where the state of emergency is in force indicate that the

incident should be investigated by the Public Prosecutor at the

Diyarbakir State Security Court in accordance with Section 11 of

Act No. 2845.

v. Letter of 9 March 1994 from a District Gendarme Commander

to the office of the Chief Public Prosecutor at the Diyarbakir

State Security Court

64. This letter appears to be a reply to a letter dated 7 March 1994

from the Chief Public Prosecutor at the Diyarbakir State Security

Court. It states that an investigation has shown that Hikmet Aksoy, who

has been summoned to the office of the Chief Public Prosecutor, is

understood to be a PKK member and to be alive. Upon his arrest he will

be transferred as summoned.

vi. Letter of 10 January 1996 from Bekir Selçuk, Chief Public

Prosecutor at the Diyarbakir State Security Court, to the

Ministry of Justice, International Law and External Relations

General Directorate

65. This letter concerns the search for the photographs which were

taken of Abdulmenaf Kaya. It states that the photography session was

recorded in the incident report and that the body of Abdulmenaf Kaya

was released to the village mayor for burial.

b. Statements by the applicant

i. Statement dated 31 March 1993 taken by Abdullah Koç of the

Diyarbakir branch of the Human Rights Association

66. At around 08.00 hours in the morning of 25 March 1993 Abdulmenaf

Kaya and Hikmet Aksoy were going to the fields 300-400 metres from

Çiftlibahçe village and four kilometres from Dolunay village. At that

time a military operation was starting in Boyunlu, Dolunay, Çiftlibahçe

and Ormankaya villages. Soldiers participating in the operation took

Hikmet Aksoy into custody. Seeing this, Abdulmenaf Kaya started to run

upon which the soldiers opened fire. Abdulmenaf Kaya ran the remaining

300-400 metres to Çiftlibahçe and hid there in the bushes. The soldiers

found him there and, according to eye-witnesses, fired over 100 bullets

into his body, planted a firearm on him and took photographs. They did

not want to give the body to the villagers, but the villagers insisted

that the deceased was from a neighbouring village and that he was not

a terrorist. Finally, the soldiers gave the body to the villagers.

67. Later, the commander of the military unit threatened the

inhabitants of Çiftlibahçe and Dolunay with the destruction of their

villages.

68. Most of the people who came to offer their condolences on the

death of Abdulmenaf Kaya suffered abuse of various kinds.

69. Hikmet Aksoy has been in custody ever since the incident.

ii. Supplementary statement dated 20 September 1993 taken by

Sedat Aslantas of the Diyarbakir branch of the Human Rights

Association

70. Abdulmenaf Kaya was injured while he was running. The security

forces followed him when he went to the bushes where they killed him.

71. Only the security forces took photographs of the body. When the

applicant's family received the body they had to bury it immediately.

An autopsy was conducted but the applicant was not given a copy of the

autopsy report.

72. The witnesses who saw the body of Abdulmenaf Kaya have left the

village, being frightened of the security forces and the intimidation

to which they would be subjected if they spoke out publicly.

73. Abdulmenaf Kaya left a wife and seven children.

c. Statements by other persons

Hikmet Aksoy

i. Statement dated 17 June 1994 taken by Özcan Küçüköz, Lice

Public Prosecutor

74. This statement was taken following a letter dated 17 May 1994

from the Public Prosecutor at the Diyarbakir State Security Court. When

Aksoy made the statement, he was detained in Lice prison for possession

of hashish.

75. Like Aksoy, Abdulmenaf Kaya was from the village of Dolunay. On

25 March 1993 Aksoy left his house to go and tend his beehives which

were situated on a piece of land along a road between Dolunay and

Çiftlibahçe. When he reached the entrance of the village, he met

Abdulmenaf Kaya who wanted to come along with him.

76. When he reached the beehives, he heard some people running and

saw about ten soldiers approaching him. The soldiers tied up his hands

and asked who he was and why he was wandering about. Two or three

minutes later the soldiers noticed Abdulmenaf Kaya running away. The

soldiers shouted after Abdulmenaf Kaya and told him to stop, but he

either did not hear them or chose to ignore them as he increased his

walking pace. The second lieutenant ordered the soldiers to shoot at

Abdulmenaf Kaya's feet. At that time Abdulmenaf Kaya was approximately

fifty to sixty metres away.

77. When the soldiers started shooting at his feet, Abdulmenaf Kaya

started running towards Çiftlibahçe. The soldiers chased him, taking

Aksoy along with them. Abdulmenaf Kaya disappeared beyond a slope and

when the soldiers reached the slope he was nowhere to be seen. They

then came to the approximately ten houses which are situated at some

small distance from Çiftlibahçe where they encountered some other

soldiers who said that they had seen Abdulmenaf Kaya. Aksoy and the

soldiers waited in the street for about half an hour. Then he heard

shots being fired; he estimates that three full cartridge clips were

shot in succession. About ten minutes later a helicopter landed but it

was too far away from Aksoy for him to be able to see what was

happening. The helicopter left again after ten minutes. Later a first

lieutenant approached Aksoy and told him that they had killed Menaf.

78. Aksoy was taken to Lice and kept in custody for fifteen days.

ii. Statement dated 22 November 1995 taken by two police

officers of the anti-terrorist branch

79. This statement was submitted by the applicant's representatives

as an appendix to their final observations on the merits of the

application. Aksoy is said to have made this statement whilst in

detention following his arrest on 14 November 1995.

80. Aksoy states how from 1990 he provided food to groups of PKK

members who came to his village of Dolunay. From 1991 he was also

involved with ensuring the attendance of villagers at funerals of

terrorists.

81. In March 1992 six PKK members came to the village and told him

to go and get Abdulmenaf Kaya. After Abdulmenaf Kaya had appeared, he

and one of the PKK members talked to each other in a separate place.

Two months later three PKK members came with a group totalling ten

people. Abdulmenaf Kaya was told to organise the attendance of

villagers at a funeral. Two months after that the military staged an

operation during which Abdulmenaf Kaya died.

iii. Statement dated 23 November 1995 to a Public Prosecutor

82. Aksoy retracts the statement of 22 November 1995 (paras. 79-81),

saying that he was forced to sign a statement which the police had

written.

83. He denies the accusations that have been made against him, namely

that he acted as a courier for the PKK. In this statement he does not

mention Abdulmenaf Kaya.

2. Oral evidence

84. The applicant did not give evidence before the Commission's

Delegates at the hearing in Diyarbakir nor could it be confirmed that

he would appear at a subsequent hearing which the Delegates intended

to hold in Strasbourg and which was subsequently cancelled. It was

submitted on behalf of the applicant that he was afraid of possible

reprisals should he give evidence before the Commission.

85. Nor did it prove possible to ensure the appearance of all the

other persons summoned by the Delegates to be heard during the hearing

in Diyarbakir.

86. Hikmet Aksoy, witness to the alleged events, sent a note dated

8 November 1995 to the Commission in which he stated that he would not

give evidence during the hearing in Diyarbakir as police had put

pressure on him and his family in order to stop him from doing so.

However, he submitted that his earlier statements concerning the

killing of Abdulmenaf Kaya were correct. Moreover, the applicant's

representatives submitted that although Hikmet Aksoy was eager to give

evidence at a hearing in Strasbourg, he felt it would be irresponsible

to do so.

87. On 2 October 1996 the applicant's representatives requested that

Hikmet Aksoy should again be asked to give evidence in the present case

during a hearing relating to other cases in which he had also been

summoned as a witness and in which the Government had been requested

to ensure his appearance as he was being held in detention (para. 33).

The Commission decided, however, that Hikmet Aksoy should not be asked

again to give evidence on that occasion (para. 34). It considered in

this respect that Hikmet Aksoy had on two occasions clearly indicated

that he did not wish to appear before the Delegates to give evidence

and the Commission had not been informed that he had changed his mind.

Since in proceedings before the Commission witnesses cannot be forced

to give evidence, the Commission found that it would be inappropriate,

in view of Hikmet Aksoy's previous decision not to give evidence and

in the absence of any new declaration by him regarding his position on

this matter, to ask him questions in the present case at a time when

he was being held in detention and was thus unable to decide himself

whether or not he should appear before the Delegates.

88. At the hearing in Diyarbakir, the Public Prosecutor at Lice,

Ekrem Yildiz, who had been present at the autopsy performed on the body

of Abdulmenaf Kaya and who had issued a decision of non-jurisdiction

was also unavailable to give evidence as he had been assigned to a

Voting Committee and his presence was required elsewhere. In respect

of the Public Prosecutor at the Diyarbakir State Security Court, the

Government submitted that he had let it be known that he had only been

involved in the investigation before the Diyarbakir State Security

Court and not in the investigation conducted in the Lice Prosecutor's

office during which the evidence would have been gathered. He therefore

felt that he would be unable to give relevant information pertaining

to the investigation and had decided not to attend the hearing.

89. The evidence of five witnesses heard by the Delegates may be

summarised as follows:

i. Dr. Arzu Dogru

90. Dr. Dogru stated that he was born in 1969. In March 1993 he had

been practising as a Government doctor at the Lice Central Health

Clinic. Although he remembered the circumstances under which the

autopsy on the applicant's brother had taken place, he had no

independent recollection of his findings. At the time of the autopsy

he had been practising as a doctor for less than a year.

91. He explained that as a Government doctor he would be called upon

by a Public Prosecutor to conduct an autopsy if and when a body was

found. An autopsy would also be carried out if a death occurred in

suspicious circumstances.

92. On 25 March 1993 the Public Prosecutor had informed him that a

dead body had been found and that an autopsy was to be conducted. They

had gone to the site together with a clerk in several helicopters. The

helicopters had landed between some hills. He had been afraid since

something could have happened at any moment.

93. It had been his duty to decide whether the person who had been

found was dead or alive and, if dead, to find out the cause of death.

He could not remember whether he had been told in advance of the

autopsy that the body belonged to a terrorist.

94. The body had been found next to the river and he had had it moved

to a place where the surface was flatter. There had been no houses in

the area. Reading from the autopsy report, he described the dress of

the deceased. He confirmed that photographs had been taken and he

assumed that these would have been annexed to the autopsy report.

95. During the autopsy only the Public Prosecutor and the clerk had

been present. There had been no forensic expert and no other onlookers.

He had counted the number of entry and exit wounds and had dictated

that part of the autopsy report which dealt with the lesions on the

body. The report had been drawn up as the autopsy was being conducted

and he had signed it on the spot.

96. He explained from the autopsy report that there had been many

bullet wounds on various parts of the body. The legs had also been

broken. It had been determined that death had occurred through

cardiovascular insufficiency as a result of bullet wounds. He estimated

that the body must have been hit by approximately seven or eight

bullets. When it was put to him that according to witnesses the body

had been riddled with bullets, he said that if there had been more

entry and exit wounds they would have been included in the report. It

was not within the scope of his expertise to say whether just one or

two bullets were capable of fracturing the bones of both legs. However,

both legs must have been hit since the report stated that there was an

entry hole on the femur of each leg. He stated that it would be

impossible for a person with two legs broken in this manner to either

run or walk.

97. Since the report did not contain any finding of an entry wound

on the back of the body, it could be concluded that there had been no

such wound.

98. He had not drawn a map of the body indicating the location of the

entry and exit wounds, the recording of these wounds in the report

being sufficient. In this respect it was of no importance that the

deceased was said to have been a terrorist. He had no opinion as to

whether such a sketch of the body might be of assistance in any

subsequent investigation relating to criminal liability.

99. The autopsy had consisted of an external examination. In view of

the fact that this examination had enabled him to establish the cause

of death, there had been no need for a classical autopsy. Consequently,

he was unable to say whether any bullets had been lodged in the body.

He did not know whether bullets lodged in the body might have

contributed to the determination of the weapon which had fired them.

Moreover, his expertise did not extend to determining the distance from

which the bullets had been fired.

100. He did not remember to whom the body had been handed over after

the autopsy. Since the identity of the deceased had been unknown at the

time, he thought it unlikely that the body had been handed over to a

relative. He was not aware of any subsequent investigation into the

incident.

101. He was not a member of the Turkish Medical Association and was

unaware that this Association has called for greater independence for

doctors when conducting autopsies.

ii. Alper Sir

102. Sir said that he was born in 1967. In March 1993 he had been in

charge of a commando unit as a Gendarme First Lieutenant. He had begun

work in the area of the villages of Dolunay and Çiftlibahçe in 1991.

As regards the general security situation he said that the terrorists

were very active in the Lice area.

103. A military operation had been planned on 25 March 1993 after

information had been received that terrorists were hiding in the area

of the villages of Dolunay and Çiftlibahçe. He had taken part in the

operation with four teams, each consisting of thirteen or fourteen

soldiers. When the teams had arrived in the area assigned to them, he

had ordered them to deploy themselves in a line formation. As the teams

had been advancing, they had come under fire.

104. He had told his soldiers to take up their positions and to return

fire in the directions from where the shooting was coming. The shooting

had come from the hills and from the creek. Based on the heavy shooting

the number of terrorists had been estimated at between 30 and 35. The

shooting had continued for 35 to 40 minutes. After the shooting had

stopped, he had proceeded with his teams towards the area where the

terrorists might be found.

105. After having advanced approximately one kilometre they had found

the body of a dead man. It had been decided that the deceased must have

been a terrorist since an armed clash had just taken place in the area

and a gun was lying next to the body. He had ordered his teams to

secure the area. Next, he had requested the district gendarme commander

to come to the scene.

106. The district gendarme commander, together with the Public

Prosecutor and the doctor, had arrived by helicopter approximately 2 to

2,5 hours later. Theirs had been the only helicopter around that day.

An autopsy had been conducted after his soldiers had moved the body to

a flatter area at the request of the doctor. He had been in the

vicinity when the autopsy was being conducted but he had not watched

it. Afterwards the body had been handed over to him as there had been

nobody else around. He had signed the autopsy report as the person

receiving the body. At that time the body had not yet been identified

and for that reason photographs had been taken. He could not recall who

had taken the photographs but he remembered that front and side shots

had been made.

107. He had subsequently handed the body over to three villagers whose

names he could not recall. They had been living in a house belonging

to Çiftlibahçe village; he had summoned them to receive the body and

minutes had been prepared. The villagers had not recognised the dead

man. He had not found out the name of the deceased until three or four

months afterwards and he did not know who had identified the body.

108. The team commanders whom he had sent to secure the safety of the

helicopter and the area had reported to him that they had found traces

of blood. It had thus been established that the terrorists had fled in

the direction of Hazro and the commando unit there had been notified.

However, on that day no other terrorists had been found or captured.

None of his men had been injured or killed during the clash.

109. He accepted that Abdulmenaf Kaya must have been shot by a bullet

fired by one of his soldiers during the clash. However, he had not

observed the body closely and was therefore unable to estimate how many

bullets had hit Abdulmenaf Kaya.

110. He did not know that a person by the name of Hikmet Aksoy had

allegedly been present in the area at the time of the clash. He had not

seen anybody and submitted that it was impossible for a person to

remain in an area where a clash was enfolding. He had never experienced

villagers to be present during a clash.

111. He dismissed as ill-founded the allegation that the firearm found

next to the body had been planted by the soldiers in order to make the

deceased appear to be a terrorist. He was not aware of any

investigation having taken place about the circumstances of Abdulmenaf

Kaya's death.

112. Asked whether Turkish law allowed for the shooting of a person

who is running away he stated that he would only shoot, or give the

order to shoot, a person in flight if it was not possible to apprehend

the person in any other way and if the arrest was absolutely necessary.

In that case he would first ask the person to stop and then shoot in

the air and at his legs. He had not given an order to shoot at the legs

of Abdulmenaf Kaya since no escape had taken place during the clash.

113. He denied having threatened the villagers of Dolunay that he

would destroy their village next time he came.

iii. Ahmet Gümüs

114. Gümüs stated that he was born in 1970. In March 1993 he had been

a Non-Commissioned Officer with the rank of Senior Sergeant.

115. On 25 March 1993 he had been told that there was a terrorist

group in the area of the Dolunay and Çiftlibahçe villages and he and

his team had been ordered to stage a military operation. Approximately

sixty gendarmes had taken part in the operation. Just after having

arrived in the area they had come under heavy fire. They had

immediately taken up their positions and had retaliated. The shooting

had lasted half an hour to an hour and had come from the hillsides and

the bed of the creek. He had not seen the shooting from the creek but

he had perceived it. He estimated that about 20 terrorists had been

involved. The distance between the opposing forces had been around

300 metres to start with and had spread to perhaps 500 metres during

the clash.

116. Subsequently he had assured the safety of his team-mates who had

had to continue the operation and he had remained in the area. As a

result of the search of the terrain a body had been found in the bed

of the creek. When the body had been found the shooting had already

stopped. He had not seen the body but his team-mates had told him that

it was a terrorist and that he had been armed. He did not know what had

happened to the body of the terrorist and he was not curious about

this. He had experienced many incidents of this sort and when a

terrorist died the subject was closed.

117. He confirmed that he had signed the incident report (para. 53).

It was customary for all officers in the unit to sign such a report

even though they had not personally participated in every aspect of the

operation. He had been responsible for assuring the safety of the

gendarmes in the area and it had been his unit commander who had dealt

with the dead body. He had not seen the autopsy report.

118. He was unable to confirm whether it had been the gendarmes or the

terrorists who had killed Abdulmenaf Kaya. The wounds on Abdulmenaf

Kaya's body which were described to him were not inconsistent with the

intense shooting that had been going on. He said that it was not

impossible that when Abdulmenaf Kaya had first come under fire he had

not been adequately covered and that he had been shot while moving to

another spot. However, he had not seen Abdulmenaf Kaya run.

119. During the clash no gendarme had been injured and he had not

heard of any more casualties on the terrorists' side.

120. He had never heard of Hikmet Aksoy and he denied the account of

the facts as related by Hikmet Aksoy in his statement to a Public

Prosecutor (paras. 74-78). He said that no person named Hikmet Aksoy

had been present at the site of the incident.

121. The gendarmes had been using long-range G3 A4 infantry rifles.

Their range was from 400 to 600 metres. They had also used MG3 and K23

machine guns which had a longer range. He said that Kalashnikovs had

more or less the same range as MG3s but that they held more bullets and

were easier to use.

122. Asked about the rules in Turkish law concerning the circumstances

in which a gendarme may open fire on a person who is running away he

said that Law No. 2800 on the duties of the gendarmerie and Law No.

2559 on the duties of the police allowed these organisations to use

arms. First an attempt would be made to catch the fleeing person by

running after him. If this failed, the person would be ordered to stop

and surrender. Then shots would be fired in the air. If it was still

not possible to apprehend the person, an attempt would be made to stop

him by using the minimum amount of force necessary, i.e. by shooting

at the legs or feet. If the person had committed serious crimes against

the Government and it had not been possible to stop him by shooting at

his legs, he could be fired at indiscriminately. However, women and

children would not be shot at.

123. He confirmed hearing that sometimes the PKK would kill one of its

own members who had been wounded in order to prevent capture by the

security forces. He had sometimes heard shots coming from the direction

of the terrorists without these shots being aimed at the gendarmes.

iv. Pasa Bülbül

124. Bülbül said that he was born in 1970. In March 1993 he had been

a Non-Commissioned Officer with the rank of Senior Sergeant.

125. On 25 March 1993 his unit had gone to the area where a planned

operation was to take place. Just as they had been about to take their

places in the area assigned to them they had come under fire from the

hills and the creekbed. He guessed that there had been approximately

30 terrorists. His unit had immediately taken up their positions, which

means that the men lay down on the ground in order to reduce the target

area, and had retaliated. It had been possible for him to see the creek

from where he was.

126. Later they had started to advance in a line position and they had

seen traces of blood. They had been told that soldiers had found the

body of a terrorist and they had been ordered to secure the body. He

had seen the body but he had not looked at it closely and was unable

to tell how many bullets might have hit it. He had not been present

during the autopsy, but he had seen the helicopter arrive.

127. He knew that the deceased had been a terrorist as he had had a

Kalashnikov in his hands. He did not believe that the weapon had been

planted on the deceased.

128. In his opinion, the creekbed had not actually been a very good

place to have a terrorist attack from as the creek was not very long.

It was possible that the deceased had got caught in the crossfire and

he might have been shot by the terrorists who had been shooting from

the hills. He did not wish to express an opinion as to whether an

investigation of the body might assist in establishing what weapon had

fired the bullets.

129. He did not remember what clothes the deceased had been wearing.

Informed of the description of the deceased's dress contained in the

autopsy report (para. 56), he confirmed that this was the dress of

local men. He said that terrorists wore uniforms but also dressed like

villagers. Furthermore, it was not unusual for a 35 to 40 year old man

to be involved with PKK terrorists.

130. The clash had lasted about 30 to 40 minutes. There had been no

injuries on his side. He did not know whether any other terrorists had

been killed or wounded.

131. He did not know anybody called Hikmet Aksoy. He had not seen any

civilians in the area of the military operation. In his experience,

local people did not stay in areas where terrorists operated and they

would not walk around in the vicinity of a clash. Furthermore, there

were no tobacco fields in the region of the clash and no cattle was

kept there.

v. Altan Berk

132. Berk stated that he was born in 1970. In March 1993 he had been

a Non-Commissioned Officer with the rank of Sergeant.

133. He had participated in the security force operation in the region

of the Çiftlibahçe and Dolunay villages on 25 March 1993. The teams had

had to search an area of terrorist activity on a hillside. As the teams

had been advancing in a line formation, heavy shooting had come from

the hills and the teams had retaliated. He estimated that the clash had

lasted between 35 and 45 minutes and that the distance from which the

terrorists had been shooting had been between 800 metres and one

kilometre. The shooting had come from the hills and from the area

between two hills where the creekbed was. He confirmed that there were

bushes near the creek. There had been no casualties or injuries on the

side of the gendarmes.

134. During the land search following the clash a dead terrorist had

been found. He had seen the body of the deceased. However, he had only

glanced at the body and had not seen where the bullets had hit the man.

There had been blood on certain parts of the body. A Kalashnikov

infantry gun had been lying next to the body. The man had obviously

been a terrorist as a clash had taken place in the area where he had

been found and because there had been a firearm next to him. He denied

that the Kalashnikov could have been placed next to the body in order

to make him look like a terrorist. He had not been present during the

autopsy and said that the gendarmes might have shot the man but that

he could also have been shot by his own side. In his opinion it was not

impossible for someone to get hit by so many bullets during heavy

shooting even if he was trying to take cover.

135. He recalled that the man had been wearing something blue or

greenish like a T-shirt or a shirt. Informed of the description of the

deceased's dress contained in the autopsy report (para. 56), he said

that in general terrorists did not dress like that. Terrorists would

wear grey and brown clothing suitable for the terrain. He could not

remember whether some terrorists dressed as villagers.

136. He did not think that there was any inconsistency in the fact

that the deceased had been a terrorist as well as being a local

villager 41 years of age.

137. He had never heard of Hikmet Aksoy and he had not seen anybody

in the area that day who did not belong to the terrorists. He had never

experienced an incident in which a civilian had got caught in the

middle of a clash between PKK and gendarmerie.

C. Relevant domestic law and practice

138. The Government submit that the following domestic law is relevant

to the case:

139. Pursuant to Section 23 of the Act on the State of Emergency,

security forces, special forces on duty and members of the armed forces

are, under the circumstances stipulated in the relevant Acts, empowered

to use their weapons while carrying out their duties. The security

forces thus empowered are to open fire and to shoot at a person if a

command to surrender is not accepted, disobeyed or met with

counter-fire or if they have to act in self-defence.

140. The plea of self-defence is enacted in Section 49 of the Criminal

Code which, insofar as relevant, provides:

"No punishment shall be imposed if the perpetrator acted ...

2. in immediate necessity to repel an unjust assault against his

own or another's person or chastity."

141. Furthermore, the Criminal Code contains provisions dealing with

unintentional homicide (Sections 452, 459), intentional homicide

(Section 448) and murder (Section 450). For 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

142. The Commission has declared admissible the applicant's complaints

that his brother Abdulmenaf Kaya was unlawfully killed by security

forces on 25 March 1993 and that this event was not adequately

investigated by the State authorities.

B. Points at issue

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

- whether there has been a violation of Article 2 (Art. 2) of the

Convention;

- whether there has been a violation of Article 3 (Art. 3) of the

Convention;

- whether there has been a violation of Article 6 (Art. 6) of the

Convention;

- whether there has been a violation of Article 13 (Art. 13) of

the Convention; and

- whether there has been a violation of Article 14 (Art. 14) of

the Convention.

C. The evaluation of the evidence

144. Before dealing with the applicant's allegations under specific

Articles of the Convention, the Commission considers it appropriate to

assess the evidence and attempt to establish the facts, pursuant to

Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. The following

general considerations are relevant in this context:

i. It is the Commission's task to establish the facts, and in

doing so the Commission will be dependent on the co-operation of

both parties. In some cases, such as the present one, the

Commission must to a large extent base its conclusions on

statements by witnesses who have direct or indirect knowledge of

the situation which is the basis of the application. The

Commission has no means to force a person to come forward to give

evidence as a witness, but it is clear that where an important

witness fails to appear, this may affect to a considerable extent

the possibilities of the Commission to establish the facts beyond

reasonable doubt. In this respect, the Commission notes that both

the applicant himself and the witness Hikmet Aksoy have failed

to give oral evidence in the present case. Moreover, two Public

Prosecutors, whose presence had been requested by the Commission,

also failed to appear before the Delegates.

ii. There has been no detailed investigation on the domestic

level as regards the death of Abdulmenaf Kaya on 25 March 1993;

the Commission has accordingly based its findings on the evidence

given orally before the Delegates or submitted in writing in the

course of the proceedings.

iii. In the assessment of the evidence as to whether or not the

applicant's allegations are well-founded, the standard of proof

is that of "beyond reasonable doubt" as adopted by the Court in

the Ireland v. the United Kingdom case in relation to Article 3

(Art. 3) (Eur. Court HR, judgment of 18 January 1978, Series A

no. 25, p. 65, para. 161) and applied by the Commission in a

number of cases concerning allegations against the security

forces in South-East Turkey (cf. No. 23178/94, Sükran Aydin v.

Turkey, Comm. Rep. 7.3.96, pp. 28-29, para. 163 sub iii,

currently pending before the Court; No. 22275/93, ismet Gündem

v. Turkey, Comm. Rep. 3.9.96, p. 23, para. 152, currently pending

before the Court). Such proof may follow from the coexistence of

sufficiently strong, clear and concordant inferences or of

similar unrebutted presumptions of fact.

iv. 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.

1. Concerning the death of the applicant's brother

145. The applicant alleges that his brother Abdulmenaf Kaya was

deliberately killed by security forces on 25 March 1993. The Government

submit that the death of Abdulmenaf Kaya occurred during an armed clash

between the security forces and a group of terrorists. According to the

Government, the security forces retaliated in self-defence and did not

target any specific person.

146. The Commission notes that it has been presented with diverging

versions of the circumstances of the death of the applicant's brother.

The applicant was summoned by the Delegates to give evidence but failed

to appear. He explained his absence by claiming to fear the

consequences if he should appear before the Delegates. The Commission

feels concern about this explanation and is unable to determine whether

or to what extent such fear may have been justified. In this respect

the Commission observes that no written explanation for his absence,

which the applicant allegedly intended to provide (para. 18), has been

submitted.

147. Whatever reason there may have been for the applicant's absence,

it is clear that his failure to give evidence and explain in person the

elements on which he based the allegation that his brother had been

deliberately killed by security forces must to some extent affect the

evaluation of the facts of his case. At the same time, the Commission

notes that the applicant has not claimed to have been a direct witness

to the events and that his testimony would therefore have been of

limited importance as evidence.

148. What is of greater importance in the present case is the fact

that the only person who has claimed to have been an eye-witness to the

killing, Hikmet Aksoy, has not given evidence before the Delegates.

Here too, the reason was stated to be fear. The Commission notes that,

at the time of the hearing before the Delegates on 9 November 1995 in

Diyarbakir, Hikmet Aksoy was apparently sought by the authorities

(para. 47) and he seems to have been arrested shortly afterwards (para.

79). However, it also appears that on 17 June 1994, while held in

detention, he made a statement in relation to the death of the

applicant's brother to a Lice Public Prosecutor in which he confirmed

to a large extent the applicant's account of events (paras. 74-78). He

also told police officers of the anti-terrorist branch on 22 November

1995 in a statement which he retracted one day later that the

applicant's brother had died some time in the summer of 1992 and he did

not then recount the circumstances which he had described in his

previous statement (paras. 81, 82, cf. paras. 76, 77).

149. The Commission considers that in light of the above (para. 148)

it is difficult to make an assessment of Hikmet Aksoy's statements.

Since all gendarmes heard by the Delegates denied seeing a man not

belonging to the terrorists at the scene of the clash (Sir, para. 110;

Gümüs, para. 120; Bülbül, para. 131; Berk, para. 137) and as it is

claimed by the applicant that Hikmet Aksoy was close to the place where

Abdulmenaf Kaya was killed, it would have been of considerable

importance for the Delegates to hear his version of the events, to

question him about his various statements to the authorities and to get

a general impression about his personality and his credibility.

Nevertheless, for the reasons enumerated in para. 87 above, the

Commission did not find it appropriate to ask Hikmet Aksoy for a third

time to appear before the Delegates even though it is aware that the

lack of his testimony affects to a considerable extent the evaluation

of the facts which the Commission is called upon to make.

150. The Commission notes that the only clear and undisputed facts in

the present case are that on 25 March 1993 the body of Abdulmenaf Kaya

was found lying in the bushes on the bank of a creek near the village

of Dolunay. The body was dressed in blue and grey trousers with a

cummerbund round the waist, a sleeveless black vest and a striped

winter shirt, wearing rubber shoes but not socks. A large number of

bullet entry and exit holes were found in the neck of the body, in the

throat, above the heart, in the upper left area of the abdomen, around

the navel and the groin, in the left hip and in the femur of both legs.

The bones of the legs were broken as a result of the impact of the

bullets. The total number of bullet wounds is not recorded in the

autopsy report but was estimated by Dr. Arzu Dogru in his oral evidence

to the Delegates as seven or eight (para. 96). It is further not in

dispute that an autopsy, consisting only of an external examination,

was carried out on the body by Dr. Dogru at or near the site of the

killing and that subsequently the body was handed over on the

instructions of the Commander of the commando unit, Alper Sir, to three

villagers from the nearby Çiftlibahçe village.

151. Although some of the soldiers heard by the Delegates did not

exclude that Abdulmenaf Kaya might have been accidentally shot by

terrorists (Bülbül, para. 128; Berk, para. 134), they were in general

prepared to accept that he could have been killed by the security

forces (Sir, para. 109; Gümüs, para. 118; Berk, para. 134). However,

it was their evidence that the applicant's brother had not been

targeted and deliberately killed by the soldiers but had died in a

clash between the security forces and terrorists in which he had been

involved since he had been armed (Sir, para. 105; Gümüs, para. 116;

Bülbül, para. 127; Berk, para. 134).

152. The accounts of the clash given by the soldiers whose evidence

was heard, while deficient in detail, were broadly consistent with one

another. It was claimed that four teams, each consisting of thirteen

or fourteen soldiers, were in the area of the villages of Dolunay and

Çiftlibahçe when they came under fire from terrorists positioned in the

hills and in the bed of the creek. Based on the heavy fire to which the

soldiers were subjected, the number of terrorists involved was

variously estimated at 20 (Gümüs, para. 115), 30 (Bülbül, para. 125)

and 30-35 (Sir, para. 104). The soldiers, having taken up their

positions, returned the fire. The distances between the opposing forces

was variously estimated as between 300 and 500 metres (Gümüs, para.

115) and between 800 and 1,000 metres (Berk, para. 133). The clash was

claimed to have lasted between 30 and 60 minutes (Gümüs, para. 115;

Bülbül; para. 130, Sir, para. 104; Berk, para. 133).

153. It was further claimed that, after the shooting had stopped, the

soldiers searched the terrain and found the body of a dead man

approximately one kilometre away: a Kalashnikov was lying next to the

body (Sir, para. 105; Berk, para. 134) or in the hands of the body

(Bülbül, para. 127). No other bodies were discovered following the

clash and no terrorists were found or captured. None of the soldiers

had been injured or killed during the clash.

154. All the gendarmes heard as witnesses by the Delegates thus

supported the Government's version to the effect that there was nothing

suspicious about the circumstances of the death of the applicant's

brother. However, when evaluating the Government's account of events,

the Commission finds some elements which give reason for doubt.

155. It is at least surprising that during an armed clash between 50-60

soldiers and 20-35 PKK terrorists which lasted between 30 and 60

minutes, no one on either side should be killed or injured with the

single exception of the applicant's brother who, by contrast, was hit

by a considerable number of bullets in all parts of his body. To have

sustained such wounds he must have been fully exposed to the firing.

It was suggested in evidence by Ahmet Gümüs that it was not impossible

that, when Abdulmenaf Kaya had first come under fire from the soldiers,

he had not been adequately covered and had been shot while moving to

another spot (para. 118). However, since according to the soldiers' own

account this was a planned attack by the PKK terrorists, it is

difficult to understand why the applicant's brother, if he was himself

a terrorist, should have been inadequately covered. Moreover, there is

no evidence that any of the PKK terrorists had been seen or shot while

running for cover.

156. The Commission also observes that Abdulmenaf Kaya's body was hit

by a large number of bullets which all appear to have entered from the

front and both his legs were broken from the force of the bullets. The

extent and severity of the bullet wounds cast serious doubt on the

suggestion that the applicant's brother was shot from a distance of

between 300 and 1,000 metres. In this regard, the Commission notes that

the evidence of Ahmet Gümüs was to the effect that the range of the

long-range G3 A4 infantry files which were being used by the soldiers

was from 400 to 600 metres, although it was said that MG3 and K23

machine guns which had a longer range had also been used (para. 121).

157. The Commission notes, moreover, that the clothes which Abdulmenaf

Kaya was wearing when he was killed were traditional for a local farmer

and unlike the clothes typically worn by PKK terrorists. In addition,

he wore no socks which would appear unusual for a terrorist living in

rough, mountainous terrain and taking part in a planned assault on the

security forces.

158. Furthermore, there is no forensic evidence to show that the

applicant's brother had handled any weapon or to connect the rifle

which was alleged to have been found beside or in the hands of the body

with the applicant's brother.

159. In addition, it is at least improbable that the body of a person,

who had not as yet been identified by the soldiers but who was believed

to be an active terrorist who had recently taken part in a planned and

sustained attack on the security forces should be handed over to three

unknown villagers from a different village.

160. Finally, the statements of the various gendarmes must also be

evaluated with caution, having regard to the fact that the security

forces are accused by the applicant of being responsible for his

brother's death and that it would not be surprising if the individual

gendarmes wished to defend these forces against such allegations.

161. The Commission is of the opinion that these elements cause

concern and are difficult to reconcile with the undisputed facts.

However, it cannot be concluded from this that the applicant's

allegations have been sufficiently proven. The Commission considers

that the actual circumstances in which the applicant's brother died

cannot be said to have been clarified but remain to some extent a

matter of speculations and assumptions. Having regard to the standard

of proof to be applied (see para. 144 sub iii), and on the basis of a

general assessment of the written and oral evidence, the Commission

cannot find it proved beyond reasonable doubt that the applicant's

brother was deliberately killed by soldiers in circumstances such as

those alleged by the applicant.

2. Inquiries and investigations at the domestic level into the death

of the applicant's brother

162. Noting that the applicant also alleges that the investigations

by the domestic authorities into his brother's death were inadequate,

the Commission will next assess the evidence relating to these

investigations. The Commission has already noted that there was no

detailed investigation at the domestic level (para. 141 sub ii).

However, the Commission will evaluate the investigations actually made

insofar as information regarding these investigations has been

provided.

163. As regards the autopsy on the body of the applicant's brother the

Commission notes that in his oral testimony Dr. Dogru told the

Delegates that the only purpose of the autopsy which he had conducted

on 25 March 1993 was to decide whether the person who had been found

was dead or alive and, if dead, to find out the cause of death (para.

93). The Commission notes that the autopsy was thus limited to an

external examination. The findings of the autopsy were laid down in a

report drawn up on the spot by Dr. Dogru and the Public Prosecutor

Ekrem Yildiz.

164. The Commission finds that the contents of the autopsy report are

rather imprecise. For instance, the report does not indicate the number

of bullets which had hit the applicant's brother but only mentions a

large number of bullet entry and exit holes (para. 57). Having to

resort to the autopsy report when asked about the number of bullets

which had hit the deceased, Dr. Dogru was thus unable to give an exact

answer and had to make an estimation (para. 96), although he also told

the Delegates that he had counted the number of wounds as part of the

autopsy proceedings (para. 95). Furthermore, the description in the

report of the location of the entry and exit wounds on the body appears

to lack precision.

165. It does not appear that any attempt at a classical autopsy or a

forensic examination of the body, including tests for finger prints or

for traces of gunpowder on the body, was made either at the time of the

autopsy or at a later date. It is true that such proceedings may have

been difficult to carry out on the spot in view of the security

situation in the area. However, the Commission finds it in any event

doubtful whether Dr. Dogru possessed sufficient expertise to conduct

a forensic examination. In this respect it refers to the

acknowledgement by Dr. Dogru that his expertise did not extend to

determining the distance from which bullets had been fired (para. 99).

166. In these circumstances it strikes the Commission as quite

remarkable that rather than taking the body by helicopter to a place

where further examinations could have been carried out, such as the

removal of any bullets lodged in the body, it was handed over for

burial to a number of villagers who, according to the witness Sir, did

not even know the identity of the deceased (para. 107), thereby

effectively precluding any subsequent examination.

167. The Commission further finds it surprising that apart from

information of a medical nature the autopsy report contains the phrase

that the deceased had been a PKK terrorist (para. 55), a statement

which casts doubt on the objectivity of any investigation which was to

follow.

168. The Commission notes that apart from the autopsy a short incident

report was drawn up on 25 March 1993 and signed by a number of

gendarmes in which the finding of the dead body of a PKK member was

described (paras. 53-54). Furthermore, the Kalashnikov and the

ammunition found next to the body were seized for safekeeping as corpus

delicti (para. 59). However, the Commission has not been provided with

any information concerning the forensic examination of these items,

despite the fact that the decision of non-jurisdiction states that they

were sent to a criminal investigation laboratory and that a report was

still pending (para. 62). The Government have, moreover, provided no

explanation as to the discrepancy between the serial numbers of the

rifle appearing in the incident report and the autopsy report (paras.

54, 56) despite an express request for such an explanation (para. 32).

169. As to any subsequent investigations into the death of the

applicant's brother, the Government refer to the preliminary

investigation which was instigated by a Lice Public Prosecutor, Ekrem

Yildiz, and the ongoing investigation by the Public Prosecutor at the

Diyarbakir State Security Court. The Commission observes, however, that

it cannot automatically be assumed that these investigations were

concerned with finding out how and by whom the applicant's brother had

been killed. It would rather appear from the text of the decision of

non-jurisdiction that the investigation examined the involvement of the

applicant's brother with terrorist activities, since it names him and

a group of members of the PKK organisation as accused of the offence

of conducting an armed clash with the security forces (para. 61). There

is nothing to suggest that the Public Prosecutor ever considered the

possibility that the account of the death of the applicant's brother

contained in the incident report of 25 March 1993 and in the autopsy

report was not based on true facts.

170. On the other hand, the Commission also notes that, apparently at

the request of the Public Prosecutor at the Diyarbakir State Security

Court, Hikmet Aksoy was questioned on 17 June 1994 about the killing

of the applicant's brother (paras. 74-78). The text of Aksoy's

statement does not suggest that he was specifically asked about any

involvement which the applicant's brother may have had with the PKK.

171. On the basis of the foregoing, the Commission first considers

that the autopsy conducted on the body of the applicant's brother on

25 March 1993 was defective and incomplete. Secondly, the Commission

notes that no detailed investigation about the circumstances of the

applicant's brother's death was carried out. It would seem that the

authorities took it for granted that the applicant's brother was a

terrorist and that they did not find it necessary to examine seriously

the possibility that he had been killed in circumstances which would

have involved the responsibility of the security forces.

172. In order to allow a full assessment of the investigatory measures

taken by the authorities, the Delegates had requested the hearing of

two Public Prosecutors, i.e. on the one hand Ekrem Yildiz, who had been

present at the autopsy and had subsequently issued a decision of non-

jurisdiction, and on the other hand the Public Prosecutor at the

Diyarbakir State Security Court in charge of the subsequent

investigation. However, both these Public Prosecutors failed to appear

before the Delegates for reasons which the Commission cannot find

convincing (para. 88). The Commission recalls, in this respect, the

respondent Government's duty under Article 28 para. 1 (a) (Art. 28-1-a)

of the Convention to facilitate the effective conduct of an

investigation into the facts of an admissible case. This must in

principle be considered to include an obligation to ensure the

appearance before Delegates of public officials who, in the

Commission's assessment, might be able to contribute to the

establishment of the facts.

173. On the basis of these findings the Commission will now proceed

to examine the applicant's complaints under the various Articles of the

Convention.

D. As regards Article 2 (Art. 2) of the Convention

174. Article 2 (Art. 2) of the Convention provides as follows:

"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."

175. The applicant complains that his brother was intentionally killed

by security forces in circumstances in which it was not necessary to

open fire and the force used was disproportionate. Alternatively he

submits that there was a violation of Article 2 (Art. 2) on account of

the killing of his brother in violation of the State's obligation to

protect his brother's right to life. Moreover, he alleges a violation

of Article 2 (Art. 2) on account of the lack of any effective system

for ensuring protection of the right to life and on account of the

inadequate protection of the right to life in domestic law.

176. The Government maintain that the death of the applicant's brother

occurred as a result of an armed clash between the security forces and

a group of terrorists during which the security forces retaliated in

self-defence in a fashion proportionate to the attack.

177. The Commission recalls its finding above (para. 161) that, on the

basis of the written and oral evidence before the Commission, it cannot

be considered to have been established beyond reasonable doubt that the

applicant's brother was deliberately killed by soldiers in

circumstances such as those alleged by the applicant. The Commission

considers, therefore, that it has an insufficient factual basis on

which to reach a conclusion that there has been a violation of

Article 2 (Art. 2) of the Convention on account of the killing of the

applicant's brother.

178. The Commission finds, however, that it should also look at the

manner in which the death of the applicant's brother was dealt with by

the authorities. In its Report in the case of McCann and Others v. the

United Kingdom, the Commission stated that the obligation to protect

the right to life under Article 2 (Art. 2) "includes the minimum

requirement of a mechanism whereby the circumstances of a deprivation

of life by the agents of a state may receive public and independent

scrutiny". And the Commission added:

"The nature and degree of scrutiny which satisfies this minimum

threshold must, in the Commission's view, depend on the

circumstances of the particular case. There may be cases where

the facts surrounding a deprivation of life are clear and

undisputed and the subsequent inquisitorial examination may

legitimately be reduced to a minimum formality. But equally there

may be other cases where a victim dies in circumstances which are

unclear, in which event the lack of any effective procedure to

investigate the cause of the deprivation of life could by itself

raise an issue under Article 2 (Art. 2) of the Convention."

(McCann and Others v. the United Kingdom, Comm. Rep. 4.3.94, Eur.

Court HR, Series A no. 324, p. 79, para. 193)

179. In its judgment in that case the Court confirmed the view of the

Commission that a formal legal prohibition of arbitrary killing by the

agents of the State would be ineffective, in practice, if there existed

no procedure for reviewing the lawfulness of the use of lethal force

by State authorities:

"The obligation to protect the right to life under this

provision, read in conjunction with the State's general duty

under Article 1 (Art. 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." (ibid., p. 49, para. 161).

180. Referring to its finding above (para. 161), the Commission

recalls that the circumstances of the death of the applicant's brother

were unclear. Having regard, furthermore, to the elements contained in

the Government's account which, in the Commission's view, gave reason

for doubting that the applicant's brother had been killed as a result

of an armed confrontation (paras. 155-160), the Commission considers

that the circumstances were such as to require the authorities to carry

out a thorough investigation.

181. The major deficiencies in the investigation which was carried out

have been specified in paras. 164-169. To some extent these

deficiencies may be explained by the security situation in South-East

Turkey and the extraordinary circumstances which prevailed and made

full investigations more difficult. The Commission does not in any way

underestimate the problems faced by the authorities, both military and

judicial, in this area. Nevertheless, even making full allowance for

these difficult conditions, the Commission considers that when a death

occurs in circumstances which are unclear and may involve the

responsibility of the security forces, the requirements of Article 2

(Art. 2) of the Convention demand an effective investigation into the

events giving rise to the death. The Commission finds that such an

effective investigation was not carried out in the present case.

182. It is possible that if the Commission had been able to examine

the two Public Prosecutors who had been summoned to give evidence

before the Delegates, a fuller assessment of the investigatory measures

taken by the authorities could have been made, and certain doubts as

to the adequacy of the measures might have been dispelled. However, as

has been noted above (para. 88), these Public Prosecutors failed to

appear before the Delegates. In the absence of their evidence, and on

the basis of the available material, the Commission considers that the

investigation into the death of the applicant's brother was so

inadequate as to amount to a failure to protect the right to life.

CONCLUSION

183. The Commission concludes, by 27 votes to 3, that there has been

a violation of Article 2 (Art. 2) of the Convention.

E. As regards Article 3 (Art. 3) of the Convention

184. Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

185. The applicant alleges that the risk of being unlawfully killed

is very much greater in South-East Turkey than elsewhere in Turkey and

that this constitutes discrimination against people of Kurdish origin.

In his opinion, such difference in treatment amounts to discrimination

on grounds of race or ethnic origin and constitutes degrading

treatment.

186. The Government maintain that there is no evidence to substantiate

the applicant's allegations.

basis of the written and oral evidence before the Commission, it cannot

be considered to have been established beyond reasonable doubt that the

applicant's brother was deliberately killed by soldiers in

circumstances such as those alleged by the applicant. It further notes

that the applicant's complaint in regard to Article 3 (Art. 3) relates

to the general conditions in South-East Turkey and finds no factual

basis on which to reach a conclusion that there has been a violation

of that Article in the present case.

CONCLUSION

188. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention.

F. As regards Article 6 para. 1 (Art. 6-1) of the Convention

189. Article 6 para. 1 (Art. 6-1) of the Convention provides as

follows:

"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 .."

190. The applicant complains of a denial of effective access to court

to seek compensation contrary to Article 6 para. 1 (Art. 6-1) of the

Convention. Without criminal proceedings, the applicant has no prospect

of success in civil proceedings. In this respect the applicant submits

that the facts of the present case indicate that there was no intention

to carry out an investigation, that there was in fact a failure to

carry out an investigation and to bring a prosecution for the killing

of his brother.

191. The Government contend that under domestic criminal and civil law

there are several effective remedies at the applicant's disposal.

Furthermore, there are pending investigations being carried out by the

Public Prosecutor at the Diyarbakir State Security Court and the Lice

District Administrative Council.

192. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention requires effective access to court for civil claims. This

requirement must be entrenched not only in law but also in practice.

The individual should have a clear, practical and effective opportunity

to challenge an act by the authorities that gives rise to a claim for

compensation (mutatis mutandis, Eur. Court HR, de Geouffre de la

Pradelle v. France judgment of 16 December 1992, Series A no. 253-B,

p. 43, para. 34).

193. The Commission refers to its decision on the admissibility of the

present application where it referred to the ongoing inquiry but

stated, in connection with the question of exhaustion of domestic

remedies, that it was not satisfied that this inquiry could be

considered as furnishing an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention.

194. In the present case, the effectiveness of any remedy depended on

the findings which were made in the course of the official

investigation regarding the events of 25 March 1993. A separate claim

for damages, based on an allegation that soldiers had deliberately

killed the applicant's brother, would hardly have any chance of

success, unless the investigation gave support for the allegation that

there was in fact responsibility of the authorities for his brother's

death.

195. The Commission recalls its finding that the autopsy in the

present case was defective and incomplete and that no full

investigation into the applicant's brother's death was carried out

(para. 171). It also appears that the authorities took it for granted

that the applicant was a terrorist who had been killed in an armed

confrontation and that they did not examine seriously any alternative

possibilities (para. 171).

196. In these circumstances, the Commission considers that the

deficiencies of the investigation also deprived the applicant of his

right under Article 6 (Art. 6) of the Convention to effective access

to a tribunal that could have determined his civil right to damages

within the meaning of Article 6 (Art. 6) of the Convention.

CONCLUSION

197. The Commission concludes, by 27 votes to 3, that there has been

a violation of Article 6 (Art. 6) of the Convention.

G. As regards Article 13 (Art. 13) of the Convention

198. Article 13 (Art. 13) of the Convention reads 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."

199. The applicant alleges that the lack of an independent

investigation into the killing of his brother and the absence of a

determination of the circumstances of the killing represent a denial

of an effective remedy for his complaint contrary to Article 13 (Art.

13) of the Convention. He refers to findings of the Commission in the

cases of Akdivar v. Turkey (Comm. Rep. 26.10.95, Eur. Court HR, to be

published in Reports of Decisions and Judgment 1996) and Aksoy v.

Turkey (No. 21897/93, loc. cit.) as well as reports by the European

Committee for the Prevention of Torture and the United Nations

Committee against Torture.

200. The Government contend that under domestic criminal and civil law

there are several effective remedies at the applicant's disposal.

Furthermore, there are pending investigations being carried out by the

Public Prosecutor at the Diyarbakir State Security Court and the Lice

District Administrative Council.

201. The Commission recalls its conclusion that the absence of an

effective judicial remedy in the present case constituted a violation

of Article 6 (Art. 6) of the Convention (para. 197). Having regard to

this conclusion, the Commission does not consider it necessary also to

examine whether Article 13 (Art. 13) of the Convention has been

violated.

CONCLUSION

202. The Commission concludes, by 28 votes to 2, that no separate

issue arises under Article 13 (Art. 13) of the Convention.

H. As regards Article 14 (Art. 14) of the Convention

203. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

204. The applicant complains of discrimination on grounds of ethnic

origin in the enjoyment of the rights guaranteed by Articles 2, 6 and

13 (Art. 2, 6, 13) of the Convention. In his opinion, the fact that it

is people of Kurdish origin who are the overwhelming majority of

victims of killings by security forces and that it is these people who

are most adversely affected by military operations, in conjunction with

the failure of the State to take adequate measures to minimise risks

to civilian lives when conducting such operations, means that the

protection of the right to life afforded to people of Kurdish origin

by the State is significantly lower than that afforded to people of

non-Kurdish origin.

205. The Government have not addressed these allegations beyond

denying the factual basis of the substantive complaints.

206. The Commission recalls its finding above (para. 161) that it has

not been established beyond reasonable doubt that the applicant's

brother was deliberately killed by security forces as alleged by the

applicant. The Commission has, however, found a violation of Article

2 (Art. 2) of the Convention on account of the inadequate investigation

into Abdulmenaf Kaya's death (para. 183) and the question could thus

arise whether the inadequacy of this investigation was due to

Abdulmenaf Kaya's Kurdish origin. The Commission has examined this

matter in the light of the evidence submitted to it, but considers the

allegation of a violation of Article 14 (Art. 14) in this respect to

be unsubstantiated.

207. As regards the right to a determination by a court under Article

6 (Art. 6) and the right to an effective remedy under Article 13

(Art. 13), the Commission also finds the applicant's allegations,

insofar as they relate to Article 14 (Art. 14), to be unsubstantiated.

CONCLUSION

208. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention.

I. Recapitulation

209. The Commission concludes, by 27 votes to 3, that there has been

a violation of Article 2 (Art. 2) of the Convention (para. 183 above).

210. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention (para. 188 above).

211. The Commission concludes, by 27 votes to 3, that there has been

a violation of Article 6 (Art. 6) of the Convention (para. 197 above).

212. The Commission concludes, by 28 votes to 2, that no separate

issue arises under Article 13 (Art. 13) of the Convention (para. 202

above).

213. The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention (para. 208 above).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

CONCURRING OPINION OF MM. S. TRECHSEL,

L. LOUCAIDES AND B. CONFORTI

The majority of the Commission is of the opinion that although

many elements of this case, as they appear after an evaluation of the

evidence, cause concern, the circumstances of the death of the

applicant's brother remain unclear. In our opinion, these elements make

the respondent Government's version of the facts quite unbelievable.

Let us recall them as they are indicated in paras. 155-159 of the

Report:

(1) It is at least surprising that during an armed clash

between 50-60 soldiers and 20-35 PKK terrorists which lasted

between 30 and 60 minutes, no one on either side should be killed

or injured with the single exception of the applicant's brother

who, by contrast, was hit by a considerable number of bullets in

all parts of his body. To have sustained such wounds he must have

been fully exposed to the firing. It was suggested in evidence

by Ahmet Gümüs that it was not impossible that, when Abdulmenaf

Kaya had first come under fire from the soldiers, he had not been

adequately covered and had been shot while moving to another

spot. However, since according to the soldiers' own account this

was a planned attack by the PKK terrorists, it is difficult to

understand why the applicant's brother, if he was himself a

terrorist, should have been inadequately covered. Moreover, there

is no evidence that any of the PKK terrorists had been seen or

shot while running for cover.

(2) Abdulmenaf Kaya's body was hit by a large number of bullets

which all appear to have entered from the front and both his legs

were broken from the force of the bullets. The extent and

severity of the bullet wounds cast serious doubt on the

suggestion that the applicant's brother was shot from a distance

of between 300 and 1,000 metres. In this regard, the Commission

noted that the evidence of Ahmet Gümüs was to the effect that the

range of the long-range G3 A4 infantry files which were being

used by the soldiers was from 400 to 600 metres, although it was

said that MG3 and K23 machine guns which had a longer range had

also been used.

(3) Furthermore, there is no forensic evidence to show that the

applicant's brother had handled any weapon or to connect the

rifle which was alleged to have been found beside or in the hands

of the body with the applicant's brother.

(4). In addition, it is at least improbable that the body of a

person, who had not as yet been identified by the soldiers but

who was believed to be an active terrorist who had recently taken

part in a planned and sustained attack on the security forces

should be handed over to three unknown villagers from a different

village.

It seems to us that in the light of these elements the statement

made by Hikmet Aksoy on 17 June 1994 to the Lice Public Prosecutor

acquires a decisive importance. Hikmet Aksoy was the only person who

has claimed to be an eye-witness to the killing of the applicant's

brother and his statement of 17 June 1994 - a statement which was made,

moreover, to a Public Prosecutor and not to a lawyer or a

representative of a humanitarian association - gives full support to

the applicant's complaint (see paras. 74-77 of the Report). It is true

that subsequently, on 22 November 1995, in a new statement made to two

police officers of the anti-terrorist branch following his arrest,

Hikmet Aksoy gave a "pro-Government" version of the facts (paras. 79-81

of the Report). However, on balance, we do not think that the new

statement is capable of annulling the first one, not only because Aksoy

retracted his new statement one day later as having been made under

pressure but also since this retraction was once again made before a

Public Prosecutor (paras. 82-83 of the Report). It is also true that

the Delegates were unfortunately not able to question Hikmet Aksoy who

allegedly did not appear before them for fear of adverse consequences;

but again this circumstance is not capable of nullifying the statement

of 17 June 1994 which contains a convincing account of the events.

Furthermore, we have come to the conclusion that the behaviour

of the authorities after the shooting confirm the finding that the

applicant's brother was killed unlawfully. It can hardly be routine to

fly in a medical doctor by helicopter whenever there are casualties on

the side of the PKK. The only reasonable interpretation of the fact

that it was done here is, in our view, that a defence was built up

against the allegation of an unlawful killing. On the other hand, the

enquiry was so superficial and unprofessional, that there was no danger

that the truth would come to light.

In conclusion, we have reached the conviction that the

applicant's brother was deliberately killed by the security forces of

the respondent Government. It is a conviction which is derived from a

final and careful examination of all the elements of the case as well

as, insofar as Mr. Conforti is concerned, a personal reaction to the

statements of the witnesses made during the hearing in Diyarbakir.

(Or. English)

PARTLY DISSENTING OPINION OF MRS. G.H. THUNE

While I agree with the majority of the Commission that there has

been a violation of Articles 2 and 6 of the Convention in the present

case, I have voted against the conclusion that no separate issue arises

as regards the complaint under Article 13.

As I understand the applicant's complaints, he does not only

allege that he was denied effective access to court in order to seek

compensation, but also that there was a lack of an independent

investigation in order to try to establish the particular circumstances

of the killing of his brother. This seems to me to raise a broader

question than the one addressed by the majority in response to the

complaint under Article 6. Although the deficiencies in the

investigation carried out in the present case are to some extent

covered by the Commission's finding of a violation of Article 2, I

still consider this aspect of the case sufficiently serious to justify

an additional finding of a violation of Article 13.

Effective domestic remedies are, in my view, essential in order

to obtain respect for basic human rights. For this reason I find it

difficult to accept a restrictive interpretation of Article 13 of the

Convention. On this point I refer to my dissenting opinion in the case

of Sükran Aydin against Turkey (No. 23178/94, Comm. Rep. 7.3.96,

currently pending before the Court).

(Or. français)

OPINION PARTIELLEMENT DISSIDENTE DE M. A.S. GÖZÜBÜYÜK

A mon regret, je ne puis partager l'opinion de la majorité de

la Commission sur la question de la violation des articles 2 et 6 de

la Convention.

Je souscris pleinement au raisonnement de la Commission

développée dans l'affaire McCan et autres c. Royaume Uni, reprise dans

la présente affaire et selon laquelle :

"Considérant par conséquent la nécessité d'assurer la protection

effective des droits garantis par la Convention, qui prend une

importance accrue dans le contexte du droit à la vie, la

Commission conclut que l'obligation imposée à l'Etat, selon

laquelle le droit de toute personne à la vie sera "protégé par

la loi", peut inclure un aspect procédural. Ceci englobe la

condition minimale d'un dispositif par lequel les circonstances

d'un homicide commis par les représentants d'un Etat peuvent être

soumises à un examen approfondi, public et indépendant. La nature

et le niveau d'un examen qui satisfasse au seuil minimum doivent,

de l'avis de la Commission, dépendre des circonstances de

l'espèce. Des affaires peuvent se présenter dans lesquelles les

faits entourant un homicide sont clairs et incontestés et où

l'examen inquisitoire subséquent peut légitimement se réduire Ã

une formalité minimale. Mais, de la même manière, d'autres

situations peuvent se présenter dans lesquelles une victime meurt

dans des circonstances troubles, auquel cas l'absence de toute

procédure effective permettant d'enquêter sur la cause de

l'homicide pourrait par elle-même soulever une question au titre

de l'article 2 de la Convention" (rapport Comm. 4.3.94, Cour eur.

D.H., série A n° 324, p. 79, par. 193).

Toutefois, je n'approuve pas l'analyse suivie en l'espèce par la

majorité qui est parvenue à la conclusion qu'il existait des doutes

quant aux circonstances exactes du décès de Abdülmenaf Kaya.

J'observe en premier lieu que les dépositions faites par les

gendarmes devant les délégués de la Commission sont précises,

concordantes et convaincantes. En revanche, ni le requérant ni la

personne citée par le requérant comme principal témoin des faits en

cause n'ont comparu devant la Commission.

Je relève par ailleurs que les témoignages recueillis par les

délégués de la Commission mettent en évidence que les faits concernant

la mort de Abdülmenaf Kaya sont clairs et ne laissent planer aucun

doute quant aux circonstances décrites par les gendarmes qui ont pris

part à l'opération militaire en question.

Les doutes exprimés par la majorité de la Commission dans les

paragraphes 155-160 du rapport me paraissent relever quelque peu de la

spéculation et sans rapport avec la réalité des opérations militaires

se déroulant dans des régions montagneuses ou sur de grands espaces :

- le fait que la victime ait été touchée par sept ou huit balles

(par. 96) n'a rien d'étonnant, compte tenu de la rapidité et de la

puissance des fusils de guerre utilisés de nos jours. Il suffirait Ã

la victime un moment d'une seconde d'inattention ou de déplacement

pour recevoir autant de balles ;

- la thèse des gendarmes selon laquelle la victime aurait été

touchée au front et aux jambes à une distance de 300-1000 mètres parait

tout à fait plausible du fait de la longue portée des fusils de

guerre ;

- la tenue vestimentaire n'est pas réputée être un élément de

distinction entre un membre du PKK et un villageois, mais il s'agit

plutôt d'une méthode de camouflage utilisée par les militants du PKK

qui se déguisent en villageois ;

- on ne peut s'attendre des gendarmes en pleine opération

militaire dans les montagnes à ce qu'ils gardent avec eux le corps de

la victime, même si cette dernière est présumée être un terroriste. Il

faut observer que les constats par le procureur et par le médecin

avaient déjà été faits avant que le corps ne soit rendu aux villageois.

En ce qui concerne l'enquête pénale menée au plan national, les

procureurs qui sont intervenus dans la présente affaire ont constitué

le dossier et ont déclenché une instruction contre les présumés auteurs

de l'attaque contre les forces de l'ordre. Ni un membre de la famille

de la victime (y compris le requérant), ni une autre personne n'ont

soutenu devant les procureurs la thèse selon laquelle les forces de

l'ordre auraient délibérément tué Abdulmenaf Kaya alors que celui-ci

était non armé. Une telle allégation a été formulée pour la première

fois devant la Commission. Ni le requérant, ni le témoin cité par le

requérant n'ont comparu devant les délégués de la Commission. Par

ailleurs, la déposition faite par ce témoin le 17 juin 1994 devant le

procureur de Lice, lequel a fait également l'objet des poursuites pour

avoir aidé le PKK, est loin d'être précise et crédible, celui-ci ayant

pu inventer cette histoire afin d'échapper aux poursuites. En tout état

de cause, la Commission n'a pas eu la possibilité de vérifier ce

témoignage et ce, en raison uniquement d'un manquement imputable à la

partie requérante.

Je conclus dès lors que les faits relatifs au décès de Abdülmenaf

Kaya étaient "clairs et incontestés" et que "l'examen inquisitoire

subséquent" était suffisant et proportionné à la nature de l'incident.

Pour ces raisons, j'ai voté en l'espèce pour la non-violation des

articles 2 et 6 de la Convention.

(Or. français)

OPINION PARTIELLEMENT DISSIDENTE COMMUNE A MM. J.-C. SOYER

ET E. BIELIUNAS CONCERNANT L'ARTICLE 2 DE LA CONVENTION

A notre regret, nous ne pouvons partager l'opinion de la majorité

de la Commission sur la question de la violation de l'article 2 de la

Convention. Nous souscrivons à cet égard à l'opinion dissidente de

M. GÖZÜBÜYÜK dans la mesure où elle parvient à la conclusion que les

faits relatifs au décès de Abdulmenaf Kaya étaient clairs et

incontestés et que l'examen inquisitoire subséquent était suffisant

pour les besoins de l'article 2 de la Convention.

(Or. English)

PARTLY DISSENTING OPINION OF MR. N. BRATZA

JOINED BY MR. G.B. REFFI

I fully share the conclusion and reasoning of the majority of the

Commission that there has been a violation of Article 2 of the

Convention in the present case by reason of the lack of any effective

investigation into the circumstances of the death of Abdulmenaf Kaya.

Since the absence of any adequate and effective investigation

into the death similarly underlies the applicant's complaints under

Articles 6 and 13 of the Convention, I have not found it necessary to

examine separately the complaint under either Article.

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KAYA v. TURKEY

KAYA v. TURKEY