SECOND SECTION

CASE OF KAVAKLIOÄžLU AND OTHERS v. TURKEY

(Application no. 15397/02)

JUDGMENT

(Extract)

STRASBOURG

6 October 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kavaklıoğlu and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Paul Lemmens, President, Işıl Karakaş, Nebojša Vučinić, Ksenija Turković, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 8 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15397/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seventy-four Turkish nationals (“the applicants”), on 23 September 2000.

2. The applicants were represented by a group of ten lawyers whose spokesperson was Mr K. Bayraktar, a lawyer practising in Ankara [1] . The Turkish Government (“the Government”) were represented by their Agent.

3. Referring to the circumstances of the anti-riot operation conducted in Ulucanlar Central Prison (hereinafter “Ulucanlar”), in Ankara, on 26 September 1999, the applicants – that is to say the nine relatives of the eight prisoners who had died and the sixty-five prisoners who had been injured during the operation – relied on Articles 2, 3, 6, 13 and 14 of the Convention and Article 1 of Protocol no. 1 to the Convention. They alleged in particular that the impugned operation had essentially consisted of a premeditated act of killing and torture. They further complained of the inadequacy of the criminal investigations conducted into their complaints.

4. By decision of 5 January 2010 (see Şaban Kavaklıoğlu and 73 Others v. Turkey (dec.), no. 15397/02, 5 January 2010), the Chamber – having joined to the merits the consideration of the Government’s objection that the application was premature – ruled that the complaints under Articles 6 and 13 of the Convention should be assessed solely from the angle of the procedural aspect of Article 2 and/or Article 3 (see Şaban Kavaklıoğlu and 73 Others decision, cited above, §§ 44, 54 and 55).

The Chamber declared the application inadmissible in respect of five applicants (Ms Döndü Özer, Ms Arife Doğan Tayanç, Mr Engin Günel, Mr İsmail Balcı and Mr Feyzullah Koca) for incompatibility ratione personae with the provisions of the Convention (Article 35 §§ 3 and 4), and struck it out of the list of cases in respect of the deceased applicants Ms Hatice Yürekli, Ms Fatma Hülya Tumgan, Mr Cafer Tayyar Bektaş, Mr Gazi Arıcı and Mr Cemal Çakmak, pursuant to Article 37 § 1 (c) of the Convention (ibid., §§ 48-53) [2] . The application was declared admissible in respect of the other applicants.

Nevertheless, it subsequently transpired that the application also had to be declared inadmissible in respect of Ms Saime Örs owing to her lack of victim status (under Article 35 §§ 3 and 4), for reasons that will be expounded below (see paragraph 152 below).

5. Updated information on the sixty-three applicants in respect of whom the proceedings have been maintained is set out in Appendix I [3] . The latter comprises two lists: List A contains the names of the nine applicants acting on their own behalf as well as on behalf of the eight prisoners who died during the impugned operation, and List B mentions the fifty-four applicants who were injured during that operation, acting on their own behalf.

6. Both the applicants and the Government submitted further written observations (under Rule 59 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Origin of the case

7. Although the present case primarily relates to the anti-riot operation of 26 September 1999, that operation in fact constituted the climax of a series of long-standing conflicts between the Ulucanlar prison staff and some of the 170 male and female prisoners convicted of belonging to illegal extreme left-wing organisations (“the leftist prisoners”).

It transpires from old classified documents exchanged among the office of the prosecutor attached to Ulucanlar Prison (“the prosecutor’s office”), the Governor of Ankara (“the Governor”) and the various regional gendarmerie commands, including the Ankara Gendarmerie Command (“the CDGA”), that the hostilities between the prison authorities and the prisoners dated back to 1996 (see paragraph 8 below). Since that time the authorities had been aware of the problems, particularly relating to overcrowding and the age and inadequate facilities of the Ulucanlar complex, which, moreover, had been intended as a short-term prison and should never have housed convicted prisoners. It transpires from the various information sources that the exiguity of the living area in the “dormitories” [4] was central to the leftist prisoners’ complaints and actions, which they conducted together despite their political differences and personal conflicts of interest.

A clearer picture might be gained of the present dispute by recapitulating the factors mentioned in the above-mentioned exchange of documents and the facts noted by the five-MP sub-commission set up under the Commission of Inquiry into Human Rights in the Turkish National Assembly (“the Sub-Commission”) in order to investigate and ascertain the circumstances under which the impugned incidents had occurred.

1. The first Action Plan

8. On 5 January 1996, under the Governor’s supervision, the prosecutor’s office, the CDGA, the gendarmerie unit on duty at Ulucanlar (“CGP”) and the other gendarmerie commands drew up their so-called “Anti-Prison Riot Action Plan No. 1”. The authorities in question were convinced that the leftist prisoners were planning a mass break-out, that they would therefore probably engineer an internal clash among the various extreme left-wing fractions in the prison and would dig tunnels, knock down walls, occupy the roofs, start fires and, finally, trigger an insurrection against the prison authorities. The authorities considered that as the CGP lacked the operational capacities to deal with such eventualities, they had to work together in order to identify the ringleaders and ensure durable security in the prison.

On 16 January 1996 the Governor ratified the plan, under which the CGP would be backed up by auxiliary forces, that is to say two senior officers and twenty gendarmes, to be seconded from other commands, accompanied by the local police.

9. However, that plan was not implemented as foreseen.

Accordingly, on 31 July 1996 the authorities met to reassess the situation and draw up a new Action Plan in accordance with the Prime-Ministerial Directive of 12 November 1993 concerning the suppression of rioting in prisons.

On 2 August 1996 the Secretary General of the National Security Council urged the relevant ministries and several decision-making bodies, as well as the Governors’ Offices, to implement that new plan promptly, drawing on some more specific coercive measures. In substance, the parts of the plan relevant to the assessment of the present case were based on short- and medium-term actions, as follows [5] :

– refusing any compromise with the “terrorist” organisations, as this would encourage them to make impossible demands;

– reaffirming the State’s determination to combat such propaganda-based movements;

– endeavouring to restore the State’s authority in prisons and to reform the legislation on internal prison surveillance;

– transferring the leaders of the “terrorist” organisations to other appropriate prisons;

– preparing television programmes involving specialists capable of analysing and assessing the mental state of insurgent prisoners and the difficulties encountered by the security forces in combating terrorism;

– conducting counter-propaganda vis-à-vis sections of the media being used by the “terrorist organisations” in relation to conditions of detention;

– making public declarations conducive to reducing the impact of propaganda sullying the reputation of and demoralising members of the security forces, and emphasising the determination of the ministries, political parties and senior officials to combat any form of insurrection in prisons.

2. The first search operation

10. Nevertheless, no practical action was taken until two years later, because of an escalation in criminal activities in Ulucanlar between 1 January and 1 August 1998, including one murder involving the use of a firearm, one murder by stabbing, one case of arson, one attempted escape, one case of hostage-taking of prison officers and four cases of infliction of serious bodily harm.

On 7 August 1998 the CDGA alerted the authorities (by letter, HRK no.: 0621-3094-98/ ASYŞ [7476]) to the risks arising from the aforementioned situation, which, it said, had robbed the prison staff of all their authority. According to the CDGA, although security outside the prison premises was duly guaranteed by the gendarmerie, “it was only a matter of time before the volcano inside the building erupted”.

Having received that information, the Governor drew the attention of the Justice and Interior Ministers and the prosecutor’s office to the following findings, which he considered called for urgent action:

– Ulucanlar is an old prison which no longer meets current standards, and its structure encourages prison breaks via tunnels, given that the prison premises, and in particular the living areas, contain vegetation and trees blocking the prison guards’ view, which facilitates the digging of such tunnels and concealment of the earth extracted;

– the passages between dormitories run through the living areas, thus hampering any necessary intervention by the guards; the fact that the dormitories are adjacent to each other promotes the hierarchisation of the prisoners, ideological indoctrination, racketeering and all modes of communication with the outside;

– under pressure exerted by leftist prisoners, the prison doctors use dietary pretexts to bring all kinds of foodstuffs and medicines into the prison; the prison staff are also unscrupulous; some of them act as messengers and smugglers; and the prison guards can only inspect the dormitories if the prisoners authorise it;

– the leftist prisoners post up ideological placards around the living areas; the doors to the dormitories and living areas are left open between presence checks, the prisoners are free to move around the premises as they wish, including the female dormitory, and they even stand guard over various parts of the prison;

– it is common knowledge that the prisoners in Ulucanlar have weapons, mobile telephones, shovels, picks, iron bars, cudgels and stones, ready to be used during riots; during the most recent searches, three handguns, two mobile phones and five SIM cards were discovered on the premises.

11. From September 1998 onwards the leftist prisoners gradually took over Ulucanlar Sector 3. That sector comprised male dormitories nos. 4 and 5 and the female dormitory, where virtually no routine inspections had been carried out since 1996.

According to the authorities, no concessions were to be made to those individuals, whose complaints concerning, in particular, inadequate living space in the dormitories, were pure fabrication.

The main developments during that period can be summarised as follows.

12. On 4 September 1998, at the request of the Ankara public prosecutor’s office (see letter no. 119083), the gendarmerie issued an order (HRK no.: 3590-553-98/ASYŞ [8221]) to carry out the hitherto impeded searches and transfers of the leftist prisoners.

13. At about 5 am on 6 September 1998 a search operation was instigated in Ulucanlar Prison. However, under explicit instructions from the Directorate General of Prisons attached to the Ministry of Justice (“DGPM”) and the prosecutor’s office, dormitories nos. 4 and 5 and the female dormitory, as well as the dormitory exclusively housing former MPs, were excluded from the searches. The reasons behind those instructions are still unknown.

Following that operation, 104 prisoners were transferred, and the authorities discovered, in particular, 19 skewers and stilettos, 5 large nails, 24 fruit knives, 7 Stanley knives, 1 packet of Stanley knife blades, 2 daggers, 2 penknives, 5 cudgels, 5 grams of cannabis and 2 mobile phones, complete with accessories.

14. On 9 September 1998 the Governor sent the Ministers of Justice and the Interior a confidential letter from the CDGA (HRK no.: 0621-3356-98/ ASYÅž 8373) listing the dysfunctions observed at Ulucanlar during the 6 September operation and the results of the latter, which can be summarised as follows:

– at the end of the operation, the prisoners convicted of terrorist offences forced the windows and doors of their dormitories open and began to move freely around the building, with a view to protesting against the search and the transfer of their cellmates;

– on 7 September the same individuals installed barricades in the corridors with banners proclaiming “the revolutionary prisoners shall never be slaves”; some prisoners smashed through the dormitory ceilings and climbed on to the roofs, while others began to prowl around in small groups, armed with cudgels;

– on 8 September the prisoners demanded to talk to the authorities, which was not authorised as they refused to submit to body searches and twice intentionally set off the prison alarm bell;

– continuing overnight until the next morning, the prisoners set up further barricades with beds and pieces of wood from doors and windows; they also plundered the kitchens, the dispensary and the canteen, purloining all the food items and also all the sharp instruments and storing them in dormitories nos. 4 and 5.

15. The talks mentioned in that letter finally took place at around 10 a.m. on 9 September. A delegation made up of a CDGA lieutenant-colonel, the public prosecutor, the Prison Director and the CGP commander heard the spokesmen for dormitories nos. 4 and 5 and the spokeswoman for the female dormitory, namely the applicants Sadık Türk, Halil Türker and Fatime Akalın, respectively. Complaining that they had been given no advance notice of the search operation, those persons, in particular:

– demanded the return of their leader, K.Ç., who had been transferred to the Eskişehir E-type prison;

– requested that the prison staff involved be spared any disciplinary sanctions in respect of the incidents which had occurred;

– requested leave to talk to their lawyers, Z.R. and K.B., and the families to be designated by the latter;

– denounced the ill-treatment inflicted and the visiting restrictions imposed by the gendarmes on their comrades in hospital, as well as the body searches, which they claimed had gone far beyond external inspection of clothing.

The case-file contains no mention of the authorities’ reaction to those demands.

16. A second series of searches was scheduled for 2 p.m. on 10 September 1998.

At the request of the Prison Director and the prosecutor’s office, dormitories nos. 4 and 5 and the female dormitory were once again excluded from the search on the grounds that the prison guards would take charge of that part of the operation. However, none of those dormitories was in fact inspected.

At the end of that second operation, the gendarmes confiscated the following items discovered in other parts of the premises:

– 1 7.65-mm semi-automatic Browning pistol (series no. 999666), 1 7.65-mm semi-automatic Browning pistol (no series number) complete with magazine and seven bullets and 1 7.65-mm pistol marked “ Fovmar Harsformp Polcon Faoil Sotm ” [6] (series no. 4443) with twenty-five 7.65-mm bullets;

– 1 large dagger, 6 knives, 1 flick knife, 6 home-made blades and 10 skewers;

– 3 cudgels, 2 metres of cabling and serum bottles containing mixtures for Molotov cocktails and pieces of iron;

– 5 SIM cards and 2 mobile phones, complete with accessories.

Moreover, the record of the search which was drawn up by the gendarmes mentioned the following facts:

– the skylights leading to the roofs had been dismantled,

– cudgels and stones had been strewn along the corridors,

– preparations had been made for manufacturing Molotov cocktails in the attic,

– barricades had been erected close to the entrances, using stovepipes and old cupboards, and

– the empty tanks on the roofs had been disconnected and moved to block access.

On 28 October 1998 the CDGA alerted, in vain, the Ministries of Justice and the Interior to the absolute necessity of acting to counter the situation whereby Ulucanlar had become a “terrorist training centre”.

3. Escalation of hostilities

17. In January 1999 the local gendarmerie unit began receiving complaints to the effect that the prisoners were still in possession of firearms and had started digging a tunnel in the female dormitory. The complaints continued until July 1999, when a number of prison guards were taken hostage for a few hours.

The gendarmerie had offered to intervene on several previous occasions, but the administrative authorities had consistently turned them down as regards dormitories nos. 4 and 5 and the female dormitory.

The main information on that episode are summarised below.

18. On 19 February 1999 the CDGA wrote to the authorities concerned to inform them of the following:

– in the absence of effective surveillance at Ulucanlar, the prisoners convicted of terrorism were free to do as they wish;

– during the inspection of the drains in the female dormitory, heaps of gravel had been discovered, and the authorities were duly informed; on 21 January 1999 an 18m-long tunnel was discovered and blocked;

– there was reason to suspect that similar works had also been conducted in dormitories nos. 4 and 5;

– it was well-known that “terrorists” housed in different prisons communicate via mobile phones which had been smuggled in, and that this was how they planned their joint actions;

– moreover, messages faxed from official machines showed that those persons also had access to standard office applications in order to devise their strategies.

19. There were no further incidents until 4.45 pm on 19 July 1999, when the prisoners from dormitories nos. 1 to 3, having declared that they had ended their protest actions, allowed the Deputy Governor of Ulucanlar and the Head Warden in, and then held them as hostages until 5.15 p.m. There were no injuries.

20. On 20 July 1999 the CGP informed the CDGA and the regional commands (via message HRK no.: 0621-2533-99) of that incident, following which the rebels had allegedly attempted to occupy the roofs, having climbed up through the ventilation shafts and forced the duty guards to back off; they had also reportedly stolen a gas cylinder and concealed iron bars and cudgels in their dormitories, probably, according to the CGP, in order to riposte to any possible intervention by the security forces.

Still on 20 July 1999, the CDGA reported (message HRK no.: 0621-2540-99) that Sector 3 for leftist prisoners housed 32 individuals in dormitory no. 4, 81 in dormitory no. 5 and 43 in the female dormitory, that is to say a total of 156 convicted prisoners, including 47 PKK members. According to the CGP, the latter had not supported the actions of the other prisoners and had disassociated themselves from them vis-à-vis the security forces, nor did the prisoners in dormitories nos. 1, 2, 3, 6, 7, 10 and 14 and the “officials’ dormitory” pose any kind of threat. On the other hand, according to the CGP, the leftist prisoners were potentially dangerous, because it was well-known that on a number of occasions they had obtained solvents, glue, fuel oil and bottles of serum in order to manufacture Molotov cocktails for use should the gendarmes raid their dormitories.

21. On the following day the CGP once again wrote to the CDGA (message HRK no.: 0621-752-99) to inform it that when the prison guards had recently been taken hostage, the attackers had stolen their victims’ uniforms and that they could therefore be expected to attempt to escape wearing the uniforms. That message was forwarded (HRK no.: 0621-2548-99) to all the officials and concerned.

22. Between 1 August and 1 September 1999 the CGP kept the CDGA informed every day (via telegrams HRK nos.: 0621 et seq.) of the continued refusal by the prisoners in dormitories nos. 4 and 5 and the female dormitory to answer the presence checks and to respect the curfew and the compulsory closing of doors. Each message was immediately forwarded to all the other bodies concerned.

23. On 2 September 1999, according to the faxes distributed by the CDGA (messages HRK nos.: 0621-3128-99 et seq.) and the CGP (messages HRK nos.: 0621-879-99 and 880-99), the leftist prisoners demolished the wall of dormitory no. 7 adjacent to their own dormitory, expelled its occupants and took over the premises. Following this takeover, they refused even more vehemently to comply with the presence checks, disrupted the prison rounds and impeded the prison guards in the exercise of their duties. That situation continued for about twenty days.

24. Still on 2 September 1999 the Director of Ulucanlar, backed up by the DGPM, once again complained of the criminal activities of the leftist prisoners in dormitories nos. 4 and 5 and requested the intervention of the gendarmerie to restore order (letter no. M-1999/2-12).

Nevertheless, immediately after that request, the Minister for Justice ordered that no such operation should be instigated.

The CGP then informed the CDGA (telegram no. 1999/2-12) that the operation had been cancelled, even though the leftist prisoners were still occupying dormitory no. 7 and continuing to refuse to comply with the evening presence checks. The prison guards and gendarmerie patrols at Ulucanlar were reinforced as a precaution.

On 3 September 1999 the CDGA informed all the authorities concerned of that cancellation (message HRK no.: 0621-3138-99).

On 4 September 1999 the gendarmerie intelligence department informed the CDGA (message ISTH no.: 3590-747-99) and the regional commands that prisoners convicted of terrorism in all the Turkish prisons were planning to initiate various insurrectional actions should the State attempt to intervene in any of the prisons housing such prisoners.

25. Up until 20 September 1999 the CGP continued to keep the CDGA abreast of the situation in Ulucanlar with daily updates, and the telegrams in question were consistently transmitted to all the authorities concerned. It transpires from those messages that throughout the whole period in question the prisoners in dormitories nos. 4 and 5 and the female dormitory had continued to occupy dormitory no. 7 and to refuse to submit to presence checks, and that the entrance doors to the dormitories, the exercise yards and the living areas had remained open and unguarded.

26. On 20 September 1999 the Prison Director submitted to the Ankara public prosecutor’s office a request for a search of dormitories nos. 4 and 5 and the female dormitory, which had so far been exempted from such inspection. On the same day the Deputy Director, Ş.D., was attacked with a makeshift flame-thrower while removing cardboard boxed placed by the prisoners in the ventilation zones on the roof.

Five days later the authorities reached the conclusion that the situation in Ulucanlar was no isolated case: the ringleaders in the different prisons were freely communicating via mobile phone and planning a series of riots and simultaneous break-outs. The facts relating to that episode are set out, in particular, in the internal reports of 7, 13 (report, HRK no.: 0627-926-99/877) and 21 September 1999 as drawn up by the CGP and CDGA and then forwarded, inter alia , to the Ministry of Justice and the Ankara public prosecutor’s office.

27. According to those reports, in the leftist prisoners’ dormitories, which had long remained unsupervised, there were two pistols of an unknown model and in dormitory no. 2, a 9-mm Astra-type pistol; all the other relevant parts of the prison contained large quantities of cannabis, brought in by prison guards D.S., F.D., H.U., A.D., D.A., P.G., S.K. and G.Ç., who had allegedly hidden them in their undergarments; lastly, the SIM cards had been provided by the prison guard G.S. The CGP and CDGA recommended that those members of the prison staff be immediately removed from their current duties and transferred to other prisons.

28. Still according to those reports, surveillance of dormitory no. 7 – which had been under the control of the insurgents since 2 September 1999 – was no longer possible and the persons occupying it were now in a position to instigate all kinds of actions. Furthermore, since Sector 3 was a no-go area for the authorities (see paragraph 11 above), according to the reports the prisoners would probably resume their tunnelling work with a view to a mass break-out.

In this connection, the reports pointed out that of the prisoners in the “terrorist dormitories”, 73 were prisoners who had been transferred to Ankara for medical treatment. Obeying instructions from the illegal organisations, of which they were still members, those individuals had managed to avoid returning and had congregated in Sector 3. The reports stated that it was absolutely vital and urgent that those 73 prisoners be transferred back to the prisons where they were supposed to be, otherwise insurrection and confrontation could be expected at any time.

B. The 26 September 1999 operation

1. The preparations

29. On 25 September 1999, in view of the foregoing considerations, the Director of Ulucanlar Prison requested the CDGA’s assistance to protect the prison staff members who had been tasked with inspecting the three dormitories housing the leftist prisoners.

In that regard, Action Plan no. 15541, classified secret, was drawn up and forwarded to the regional commands, the Governor, the prosecutor’s office, the Ankara Security Directorate and the National Directorate of Secret Services. Under the plan, at 4 a.m. on 26 September 1999 Ulucanlar Prison would be raided and subjected to a general search, and, if so requested by the public prosecutor, the transfers of leftist prisoners to other prisons, which had so far been blocked, would also be carried out.

30. The relevant parts of the plan might be summarised as follows:

– the task force would comprise ten CGP gendarmes, five commando squads, one riot squad, one special operations squad and sixteen officers, twenty-two junior officers and twenty-one sergeants on contract, and 201 gendarmes from the regional gendarmerie commands;

– within each command providing manpower, the gendarmes would be trained in frisking procedure and identification of prohibited items;

– the prison guards detailed to take part in the operation would be under the orders of the gendarme commanders;

– in order to guarantee the safety of the search teams and to act in the event of armed resistance, gendarme officers would operate with their official weapons and would take the requisite precautions to ensure that they could not be disarmed;

– during the searches, the passages between dormitories would be blocked, all outside access to the prison and all means of communication would be supervised, and no one would be allowed in or out, apart from the prosecutors and commanders;

– the searches would concerntrate on dormitories nos. 4, 5 and 7 and the female dormitory;

– no one would speak with the prisoners or let the latter persuade them to take any type of action, and a firm, strict attitude would be maintained in order to keep up the psychological pressure;

– in the dormitories, the prisoners known as “group leaders” would be kept under particular surveillance and prevented from inciting the others;

– all the prohibited items discovered on the premises would be inventoried and placed in safekeeping;

– any prisoners sustaining injuries during the operation would receive initial treatment in the prison dispensary and then transferred to hospital if necessary.

31. The plan also provided for an auxiliary force comprising one officer, four junior officers, four sergeants on contract and fifty gendarmes, as well as one gendarmerie commando squad, accompanied by an adequate number of police officers, specifying that all those forces would assemble at CGP HQ ready to spring into action.

Moreover, the plan also provided for the presence of two teams from the gendarmerie intelligence service equipped with one camera and two video cameras; one of the cameramen would work on tower no. 3, and the other cameraman and the photographer would operate inside the building. The personnel in situ was also to include four squadrons from the Special Forces Department, one bomb disposal team and the entire staff of the forensic and anti-drugs departments.

32. The instructions for the operation were as follows:

– personnel involved in the operation should be fully equipped and have all the necessary service weapons, ammunition and other requisite equipment, such as truncheons, shields and glass-fibre helmets;

– each unit should also have as many torches available as possible and at least one sledgehammer, one pick and one chisel;

– the commands in question were required to provide equipment such as handcuffs (at least ten pairs per command), shields and gas-masks, as well as fire extinguishers (at least two per command) in case of fire;

– since the operation was likely to be protracted, an adequate quantity of food rations was to be provided;

– one hour before the operation, an ambulance with a doctor and medical assistants was to be placed at the disposal of the provincial command.

2. The operation

33. At around 4 a.m. – or, according to some of the prisoners, at around 3.30 a.m. – on 26 September 1999 the gendarmerie units, under the orders of Lieutenant-Colonel A.Öz., entered Ulucanlar prison. The police officers remained outside in order to secure the outside of the building.

Despite the warnings – although there is still disagreement among the parties on whether and how those warnings were in fact given – informing the prisoners about the searches scheduled for dormitories nos. 4 and 5 and the female dormitory, the violence escalated, quickly turning into a riot.

Ulucanlar was the scene of confrontations between the gendarmerie units and the leftist prisoners, particularly those who were cornered in dormitory no. 4. The account given below is a summary of the information provided, albeit with a number of uncertainties, in the five reports drawn up after the operation, between 5 and 6 p.m.

a) Entry into the prison

34. Once inside the building, at around 2.15 p.m., the gendarmes took up position in the watch towers located between the roofs of dormitories nos. 4, 5 and 6; they spotted two “terrorists” on the lookout at the end of each corridor; on seeing the gendarmes the latter shouted “traitor!” at the prison guard who had opened the door to the gendarmes and then ran off towards their dormitories.

The “terrorists” locked behind them the entrance gates to the central corridor, the female “terrorist” dormitory and the inside areas of dormitories nos. 4, 5 and 7. The gendarmes tried in vain to explain to the rioters that they would not be harmed if they allowed them to carry out the searches. The latter responded by chanting “the revolutionary prisoners will never give in! – Come on if you have the guts! – Long live our independence struggle!”

Arriving at the second gate, the gendarmes tasked with protecting the search units were attacked with Molotov cocktails and lumps of concrete. Junior officer M.E.’s uniform caught fire (although no such name is included in the list of injured persons in Appendix II).

In view of the deteriorating situation, the whole prison staff took shelter behind the gendarmerie units.

The “terrorists”, ignoring Commander A.Öz.’s warnings, continued to chant: “The prisoners will never give in – we will resist or die.” Half-an-hour later they attacked the gendarmes with flame-throwers made out of gas cylinders. The gendarmes responded to the attack with force.

b) Control of the female dormitory

35. Under a hail of stones, logs and pieces of coal, the gendarmes first of all dismantled the barricades in the central corridor and then broke down the entrance door to the female dormitory with sledgehammers.

While the gendarmes were preparing to go into the dormitory living area, four or five rioters lunged at them with iron bars and then aimed a home-made flame-thrower at them, which started a fire. The security forces used tear gas to drive the rioters back into their dormitory. Once they had taken control of the area, the gendarmes heard female prisoners shouting slogans from the upper floor. Those prisoners refused to comply with orders, and riposted with Molotov cocktails.

The gendarmes dismantled all the barricades in that zone and inspected the premises before heading towards the stairs to the upper floor. The rioting female prisoners, who had barricaded the staircase with cupboards, threw stones at them. Using their shields to ward off the stones, the gendarmes managed to clear the staircase. When they attempted to enter the dormitories, they were doused with bleach and pelted with stones, broken glass and porcelain and food jars.

The female prisoners, who had blocked the entrance with chairs, tables and bedsteads, continued throwing stones and Molotov cocktails. They set fire to the mattresses piled up outside the dormitory, which led to a massive blaze, completely filling the area with smoke. The gendarmes brought in the firemen stationed on the roofs to deal with the fire.

At that moment an official told the gendarmes that there were four PKK members inside who had to be evacuated, but that the female rioters were refusing to release them. The warnings issued were once again ignored and the female “terrorists” became more aggressive; they began to take direct aim at the gendarmes’ faces with the flame-throwers, skewers and broken glass through the door opposite the staircase. During that episode, junior officer S.D., who was responsible for video-recording the events, was injured on the hand by a glass fragment. The gendarmes broke down the door of the adjacent room in order to reach the room in a corner of which the female rioters were grouped, having been driven back by the tear gas and the fire hoses; when the gendarmes entered the room the rioters launched a final assault with iron bars, stones and skewers, still ignoring the calls to surrender.

The gendarmes resorted to force to neutralise the attack. Some of the women were slightly injured, as was gendarme conscript [7] K.Uça., who was wounded in the hip by a skewer, and conscripts A.Gök. and M.Ayd., who were injured in the abdomen and the right hand, respectively.

At about 7.15 a.m. the female prisoners were forced to exit one by one. Several knives were discovered in their dormitory and filmed. According to the documents on file, during this episode neither the prisoners nor the gendarmes used firearms.

c) Control of dormitories nos. 4, 5 and 7

36. The other operational units met with extremely violent resistance when they attempted to remove the barricades behind the doors to dormitories nos. 4, 5 and 7. While the gendarmes made their way towards the area of dormitory no. 7, “terrorists” behind the barricades opened fire, threw Molotov cocktails and stones and then retreated into dormitory no. 4. This withdrawal enabled the gendarmes to evacuate 29 prisoners who were PKK members [8] from dormitory no. 5; those prisoners had previously informed the prison authorities that they dissociated themselves from the rioters.

The rioters, thus cornered in dormitory no. 4, tried to climb on to the roofs, but were prevented from doing so by truncheon blows from the gendarmes. They nevertheless managed to start a fire in the dormitory by burning mattresses. Some of the gendarmes almost died of asphyxiation, and reinforcements were called in to take control of the area; several tear-gas canisters were thrown in, forcing a group of “terrorists” to take refuge in the aforementioned dormitory. Despite the calls to surrender, the surrounded “terrorists” opened fire, chanting: “Fascists, we’ll kill you! – bring on the flame-throwers, torch them!” Specialist sergeant M.İ. was hit in the abdomen.

The gendarmes stationed on the roofs of dormitories nos. 6 and 7 and in watch tower no. 3 riposted with tear gas and their official weapons, while the firemen used high-power hoses and carbon dioxide foam. Subsequently, the gendarmes saw “terrorists” going back and forth between the living area and the dormitory to fetch their comrades’ bodies; the prisoners who were severely affected by the gas and the foam and were squatting in various parts of the area were easily apprehended.

Despite low visibility due to the tear gas, the gendarmes saw some of the “terrorists” approaching the exit in order to surrender; at the same time shouts of “Traitors! Shoot the cowards!” were followed by “bursts of gunfire” inside the dormitory. Only two or three “terrorists” managed to get out; six or seven others were gunned down by their own comrades.

The remaining rioters, who were once again barricaded behind the door to dormitory no. 4, attempted to reach the gendarmes with stones, iron bars, cudgels and flame-throwers, and they picked up and threw back tear-gas canisters. During the confrontations junior officers E.A. and N.K. were injured on the arm and the nose, respectively, by stones; sergeant C.D. was hit on the right eyebrow, and conscripts A.Ö. and M.A. sustained a fracture of the right auricular and a traumatic injury to the right eyebrow, respectively.

Positioned in front of the aforementioned door, the gendarmes saw a rioter pointing a gun at them at one of the upstairs windows. When the gendarmes went up to the first floor and approached the door, the “terrorists”, including the person later identified as Mu.Gök., opened fire indiscriminately from the windows. During that attack one bullet seriously injured junior officer Ü.S. and another went through sergeant A.E.’s helmet, leaving him in a state of shock; the “terrorists” also shot and injured captain Z.E. and sergeant H.S.

At around 10 a.m. the gendarmes took control of dormitory no. 4, just as the rioters were trying to flee the area; prisoner A.D. died at around 11.30 a.m., following – according to the prisoners – a burst of gunfire.

The operation ended with that incident.

C. After the operation

1. Total dead and injured

37. During the first ten minutes of the raid on dormitory no. 4, prisoners Halil Türker and Abuzer Çat (relatives of the applicants Selame Türker and Hasan and Hüseyin Çat) were killed; their bodies were found in the dormitory no. 4 living area. Ümit Altıntaş (a relative of the applicant Melek Altıntaş) died about half-an-hour later inside the same dormitory.

According to the statements by the applicants and the prisoners, Under Gençaslan (the son of applicant Ali Gençaslan), Mahir Emsalsiz (the son of applicant Mehiyet Emsalsiz) and Zafer Kırbıyık (the brother of applicant Firdevs Kırbıyık) later died of their wounds, during the ensuing mayhem.

38. According to the official version, Nevzat Çiftçi (the husband of applicant Hanım Çiftçi), who was shot in the leg, died later in hospital. According to the applicant and witness statements, Mr Çiftçi and İsmet Kavaklıoğlu [9] (the son of the applicant Șaban Kavaklıoğlu) were beaten up and executed in an isolated room after the operation; several prisoners claimed to have heard İsmet Kavaklıoğlu’s screaming in the shower room. A certain A.S., who displayed no bullet wounds, had allegedly suffered the same fate, having also been dragged into the showers.

The Government contested those allegations, adhering to the aforementioned official version of events.

39. The result was as follows: ten prisoners dead and about seventy injured, four of whom had sustained life-threatening injuries; and fifteen gendarmes injured, one seriously.

According to the official version, once the situation was completely under control, the unharmed prisoners were placed in cells. The gendarmes took eighteen injured “terrorists” (no names are given) to the prison dispensary. The others, including several applicants (List B), were retained for six hours in the shower room, where they were given first aid before being transferred to various hospitals.

According to the injured applicants, however, it was in that shower room and the 200-m long corridor leading to it that they were dragged, stamped on and beaten up by the gendarmes and prison guards lined up on either side of them. In the said room they had been forced to strip and lie on the floor, under a rain of blows, particularly concentrating on their injuries, and making comments such as “why is this guy not dead yet? – we shot three of your mates, it’s your turn now! – no hospital for him, we’ll finish him off here!” The gendarmes allegedly pushed injured prisoners down the stairs or laid them out on stretchers only to immediately drop them. The torturers included officers from the Ankara police department’s anti-DHKP-C office with whom the convicts, as members of the DHKP-C, were well acquainted.

At the end of the operation, the transfers of the other prisoners to other prisons were also carried out.

40. The medical information on the officers injured during the operation is summarised in Appendix II.

It transpires from the case file that in the instant case the gendarmes, instead of being taken to the Ankara Forensic Medicine Institute – which was the usual practice – were examined at the GATA military hospital, which issued their medical reports.

According to those reports, the condition of gendarmes M.İşl., H.Sar. and Ü.Soy., who had bullet wounds, necessitated convalescence leave for ten, ten and twenty-five days respectively, on the understanding that Ü.Soy.’s life was in danger.

Contradicting the findings of the medical report concerning the conscript Z.Eng., indictment no. 1999/79635 of 1 December 1999 (see paragraph 136 below), identifies this person as one of the officers suffering from a gunshot wound.

According to the same reports, the condition of conscripts A.Er., A.Gök. and K.Uça. did not necessitate sick leave. The number of days’ unfitness for work prescribed for the other gendarmes was three for C.Doğ., M.Abd. and M.Ayd., five for N.Kar., S.Dağ. and Ş.Süm., and seven for E.Ayd. and M.Özk.

41. All the relevant medical data on the applicants’ eight deceased relatives (List A) are summarised in Appendix III.

Those data show that the eight persons in question all died of wounds caused by bullets from various types of firearms. In view of that fact, the Sub-Commission (see paragraph 7 in fine below) tasked a committee of five forensic scientists to assess the appropriateness of the autopsy and pathological exploration procedures followed in the present case. That committee found that there had been no major shortcomings attributable to the medical staff involved in the said examinations, having regard, in particular, to the shortage of personnel and the poor working conditions. However, it noted that, in breach of the principles set out in the “Minnesota Autopsy Protocol”, the forensic experts had omitted to dissect the corpses’ skin and sub-cutaneous tissue and to take samples from the traumatic and burn injuries in order to conduct histopathological research on them. Expressing doubts as to the origin of those burns, which had, on the face of it, been caused by chemicals, the committee regretted that more specific necropsies had not been considered, especially since some of the injuries observed on the corpses corresponded to acts generally classified as lethal acts or acts of torture.

42. As regards the applicants who were injured (List B), and whose clinical pictures are provided in Appendix IV, it should be noted that there is no medical evidence relating to Ms Fatime Akalın, Ms Sibel Aktan (Aksoğan), Ms Şerife Arıöz, Ms Gönül Aslan, Ms Esmahan Ekinci, Ms Zeynep Güngörmez, Ms Başak Otlu, Ms Fadime Özkan, Ms Derya Şimşek, Ms Edibe Tozlu, Mr Aydın Çınar, Mr Murat Ekinci, Mr Murat Güneş, Mr Gürhan Hızmay, Mr Ertuğrul Kaya and Mr Cemaat Ocak. Furthermore, the medical report on Mr İnan Özgür Bahar, which was obtained further to a complaint lodged on 9 June 2000, some eleven months after the events (see paragraph 110 below).

The Forensic Medicine Institute’s findings concerning those applicants also prompted a number of comments from the aforementioned committee (see paragraph 41 above):

“... 1. Some of the traumatic injuries displayed by the injured persons resemble lesions resulting from trauma caused by a blunt instrument; having regard to their distribution and orientation on the body, as well as their shape and extent, some of those lesions might have been caused during the confrontations and captures, but it is medically inconceivable that they all appeared during the operation; some of the lesions consist of ‘parallel lines of bruising’ and, having regard to their length, they characterise injuries resulting from direct blows struck with one or more long, blunt, convex or round instrument(s);

2. As the healing process for injuries depends on their nature and their position on the body, as well as the individual’s physical peculiarities, no medical opinion can be provided on which came first, the firearm injuries or the traumatic damage ...”

43. Appendix IV also sets out seven categories of applicant (List B) broken down by the number of days sick leave prescribed, as follows:

– one day for Halil Doğan and Veysel Eroğlu;

– five days for Mustafa Selçuk, Özgür Soylu, Cem Şahin, Sadık Türk, Kemal Yarar and Yahya Yıldız;

– seven days for Cenker Aslan, Resul Ayaz, Songül Garip, Aynur Sız, Cemile Sönmez, Sevinç Şahingöz, Barış Gönülşen (annotated “getting better within ten day”) and Devrim Turan;

– ten days for Gürcü Çakmak, Bülent Çütçü, Yıldırım Doğan (fifteen days according to the indictment of 25 December 2000 – see paragraph 113 below), Filiz Gülkokuer, Hayriye Kesgin, Mehmet Kansu Keskinkan, Önder Mercan (three days according to the aforementioned indictment), Duygu Mutlu and Filiz Uzal (Soylu);

– fifteen days for Ercan Akpınar, Serdar Atak, Küçük Hasan Çoban, İlhan Emrah, Erdal Gökoğlu, Savaş Kör, Behsat Örs and Ertan Özkan; and

– twenty-five days for Haydar Baran and Enver Yanık, in a condition described as life-threatening, and for Nihat Konak and Özgür Saltık.

2. Prohibited items discovered in situ

44. It transpires from the first two search resorts that, in view of the large haul, it had been decided to film the prohibited items found in the dormitories with a view to subsequently inventorying them, and that the officers had reprimanded the prison guards, accusing them of having brought the weapons into the Ulucanlar Prison. The inventory in question listed the following items:

– 1 AMD-65 assault rifle [10] (series no. EO 3841) with a magazine containing four bullets, 1 16-mm short-barrelled shotgun with eight cartridges (three of them empty), 1 “ Saddam Baretta” pistol [11] (series no. 31302622) with two magazines, 1 “14-shot Baretta pistol” [12] (series no. 245PY74657) with 1 magazine, 1 semi-automatic Mab pistol (series no. D 561777) with 3 magazines, 2 home-made pen guns, 2 “silencers” [13] , 76 Kalashnikov cartridges, 113 bullets for 9-mm pistol, 56 of them spent, 90 G-3 gun cartridges, 25 7.65-mm bullets, 10 of them spent, 3 8-mm blank bullets, 35 projectiles and 2 magazine cases;

– 29 knives, 24 Stanley knives, 73 stilettos, 2 machetes, 1 wooden dagger, 97 miscellaneous blunt instruments, 1 iron bar, 1 wooden sledgehammer, 2 cudgels and 15 catapults;

– 3 unused Molotov cocktails, 7 gas cylinders, 18 home-made gas masks, 15 packets of explosive powder, 1 home-made tear-gas canister, and miscellaneous solvents and combustible liquids;

– 1 welding machine, 1 drill, 10 wood chisels, 30 nails, 6 chisels, 39 different-sized saws, 1 screwdriver and one, 1 trowel;

– 15 firearms (Kalashnikov, M-16 and revolvers) and 17 bombes, 1 telescope, 2 truncheons and 3 fake training batons;

– 3 mobile portables with accessories, 1 hollowed-out book and 7 master-keys.

45. The third and fourth reports, which were drawn up later the same day specified that the aforementioned “Tarıq” semi-automatic pistol (series no. 31302622) had been used by prisoner Mu.Gök., who, having fired seven or eight shots, had retreated to dormitory no. 4 (see paragraph 36 in fine above). Two more reports drawn up the next day mentioned the discovery of a 9-mm Star semi-automatic pistol with one bullet in the magazine.

46. Four further searches were conducted between 2 and 6 October 1999, revealing:

– 1 hunting knife with a 21-cm blade, complete with sheath (2 October);

– 20 500 to 1,000 g bags of cement, 8 packets of floor tiles, 2 packets of plaster, and 4 blades and iron casts;

– 20 m of telephone cable (4 October); and

– 4 54-cm iron tubes soldered to 19-cm blades, to be used as picks or axes (5 October).

47. In the light of the foregoing considerations, it is important to reiterate the following statements made to the Sub-Commission by Colonel K.B., the commanding officer of the CDGA:

“... We drew up our plan and arrived at Ulucanlar on the morning of 26 September; the prisoners riposted with firearms and flame throwers, and we were attacked with knives; so we also used our arms in accordance with the powers conferred by Act No. 2803 [on the organisation of the National Gendarmerie]. My men were injured, and unfortunately on the other side prisoners were also injured or lost their lives. Their deaths have greatly saddened me. I am sad because there should not have been any weapons there. If there had been no weapons there would have been no confrontation and these people would not have died, and my men would not have been injured ... After those events the Ministry of Justice issued the directive of 5 October 1999 [14] . Prior to that date, we (gendarmes) were not empowered to search prison guards entering the prison; the prison guards were searched by other prison guards. Imagine two prison guards who have links with the … prisoners. What sort of links might these be? They might be material, pecuniary or ideological, or be based on fear. Therefore, if the ‘terrorist’ organisation told those two guards that someone would be bringing a gun from outside and that they had to hand it over to [a given prisoner], they would be certain to obey. The prison guard goes into the prison and [one of his colleagues] searches him, not a gendarme. A lawyer arrives and no one searches him. He has a private conversation with the detainee or prisoner and leaves, after which the detainee or prisoner is taken back to his cell, still without any body searches. Normally no such items should have been brought into the prison ... The prison in question has one more special feature: it is next to the open prison section, where individuals come and go, stroll around and do whatever they want, and they could easily throw whatever objects they wish over the wall. There have been lots of incidents of this kind. We drew up a report and informed the prison authorities that a package had been thrown inside; [the guards] searched the premises but found nothing. After all, we could never have interfered in the running of the prison! ...”

48. Lieutenant-Colonel A.Öz., the commanding officer of the task force, had stated the following:

“No search had been carried out in the section housing prisoners convicted of terrorist offences for six or seven years ... No request to that effect was ever submitted, and we did not act because the public prosecutor had never called on our services. As you know ... we can only act inside the prison if the prosecutor or Prison Director so requests ...”

49. The statement by Captain D.Y., commander of the CGP, on that matter can be summarised as follows:

“This affair did not begin on 2 September [1999]; its origins go back into the distant past. In Ulucanlar, but also in all the other prisons housing ‘terrorists’, the prison authorities had no control over the sections reserved for such prisoners; this is a well-known fact. In those sections ... the ‘terrorists’ ruled the roost ...; TV and the other media covered this: the State Prosecutor sitting down with the prisoners and negotiating with them, and the latter then taking hostages and obtaining everything they had been demanding. Despite all the denials, whole pages of such agreements have been published in the newspapers ...; it was obvious that a lot of weapons and mobile phones were circulating in the prison; during ordinary body searches, even where prison guards felt a weapon, they were all too scared to confiscate it ... An incident was sure to occur if gendarmes raided the ‘terrorists’’ dormitories ... because no gendarme had ever entered those premises to conduct a search for six or seven years ... Many staff have been caught red-handed smuggling weapons and drugs into the prison ...”

3. Incipient “escape tunnels”

50. On 2 October 1999 the gendarmes discovered a 50 cm², 10-15-cm deep hole in the middle of the concrete floor of dormitory no. 5, at a distance of 135 cm from the wall, which the gendarmes identified as the entrance to a future tunnel. The hole was filled with pieces of wood and blankets.

On 4 October 1999 the gendarmes inspected the floor of dormitory no. 7. In the kitchenette, underneath the worktop, they noted that an 85 x 35-cm area had been bricked up and replastered to merge in with the colour of the walls. The gendarmes broke through the bricks and found that the floor had been dug up to a depth of 20 cm. They deduced that what they had found was the beginnings of a tunnel.

On 6 October 1999 the floor of the dormitory no. 5 living area was inspected. The gendarmes dug into the ground around two poplar trees, and discovered a 45 x 75 cm plywood trapdoor covering a 50 cm x 100 cm tunnel entrance. The entrance led to an approximately 7-m long tunnel running towards the aforementioned hole inside dormitory no. 5. The tunnel was found to contain four home-made iron picks, a bag containing 15-20 kg of dug-out rubble and a bag with 15-20 kg of gravel.

51. Before the Sub-Commission, the ministerial authorities submitted that the occupation of dormitory no. 7 had been solely aimed at facilitating the preparation of a mass break-out; that had also been the aim pursued by the rioters in hitherto blocking the access of prison guards to the dormitories and preventing presence checks, as allegedly proved by the incipient tunnel discovered after the operation. According to those authorities, between 2 and 26 September 1999 the prison authorities had unsuccessfully attempted to put an end to the said occupation of the dormitory. In view of the failure of these attempts and the increasing number of leaks concerning an imminent prison break-out, an anti-riot operation had become inevitable.

Although the Sub-Commission accepted that the leaks concerning the tunnelling activities had played a major role in the decision to raid the premises in question, it considered that there was some doubt as to the real nature of the sites identified in the area of dormitories nos. 5 and 7 as incipient tunnels. The Sub-Commission pointed out that the first alleged tunnel, which was 7 m long, began in the living area of dormitory no. 5 and ended inside that dormitory. It took the view that it was implausible that the prisoners had ventured to dig a tunnel in an open yard which was overlooked by watch towers. Furthermore, the Sub-Commission considered that the second digging site found behind the worktop in the dormitory no. 7 kitchen did not really match the profile of an attempted escape tunnel.

D. Proceedings brought in the present case

1. Parliamentary inquiry

52. Between 14 October and 2 November 1999 the Sub-Commission was sent to Ulucanlar, where it held talks with a number of prisoners – including some of the applicants – prison staff, officers and other governmental and non-governmental officials. The Sub-Commission’s report covered 120 pages, 79 of which concerned the impugned operation, and comprised a plethora of damning observations.

53. The Sub-Commission began by enumerating the obstacles encountered during the investigations. The Ankara Public Prosecutor responsible for investigating the case had failed to attend the scheduled meeting, and, furthermore, the forensic medical team and the prison authorities had refused to hand over specific items of physical evidence such as the video recordings made during the operation and the photographs taken during the autopsies. It noted that although the gendarmerie authorities – which merely presented a few photographs taken long after the events – had denied the existence of such audiovisual material, several of the individuals questioned had affirmed that the operation had indeed been filmed and that, in fact, “the junior officer responsible for the video recording had sustained an injury to his hand”.

According to the Sub-Commission, this situation had reinforced the suspicions of concealment of evidence, particularly since the authorities had refused to grant the victims’ lawyers leave to attend the autopsies, which refusal they alleged was in breach of the requirement to reassure the general public in such a sensitive case.

54. The report included several specific chapters, converging on an overall assessment of the impugned situation based on witness statements and other relevant evidence.

a) Occupation of dormitory no. 7

55. According to prisoners who did not actively participate in the riot, the occupation of dormitory no. 7 was intended, in particular, as a protest against overcrowding in the dormitories after the failed attempts to negotiate that issue with the prison authorities.

56. The Sub-Commission held that the prisoners in dormitories nos. 4 and 5 had certainly violated the law, infringed the rights of their cellmates in dormitory no. 7 and contributed to the escalating tensions by refusing to terminate their actions. However, the Sub-Commission pointed out that of the nineteen dormitories available in Ulucanlar, only five were exclusively earmarked for leftist prisoners, and that there was a real overcrowding problem liable to goad those concerned into action.

The Sub-Commission considered that if dormitory no. 7 had been raided on 2 September 1999, it was inexplicable why the authorities had waited for twenty-four hours before instigating an operation on that scale, with attempting beforehand to act in one way or another. It added that there was also no explanation for the fact that, at the height of the tension, the prison prosecutor had gone on leave or that the operation had been launched on the day of the Prime Minister’s departure on an official visit to the United States.

b) The underlying aim of the security forces’ reaction

57. According to the official version, before entering the dormitories the gendarmes had duly ordered the rioters to surrender, but the latter had riposted with guns, home-made bombs, gas cylinders transformed into flame-throwers and various sharp tools. The non-rioting prisoners explained that there had indeed been shouted orders such as “surrender! If you surrender you will be well treated!”, but that those orders had been drowned out by the noise of the gunfire. The security forces said that they had attempted to contain the attacks with tear-gas canisters and high-pressure foam sprays, but that that had not stopped the prisoners, who were wearing home-made gas masks.

58. According to the Sub-Commission, and contrary to the official version, the incidents of 26 September could not just be put down to the resistance of prisoners occupying a dormitory to prison officers assisted by the security forces. Similarly, the ten deaths which had occurred could not have been the result of an improvised reaction by the gendarmes.

The Sub-Commission explained that a plan had been drawn up twenty days beforehand, that the premises had been inspected on a number of occasions and that the situation had been discussed in detail with the prison guards and the administrative staff. The Sub-Commission held that the operation had even been prepared in such a way as to include special strike forces. In the light of the number of dead and injured, it should have been obvious that, owing to the absence of prior measures to protect the lives of the prisoners, who were incarcerated under the State’s responsibility, that operation had been a serious failure.

59. The Sub-Commission took the view that the real reasons for the operation lay elsewhere; there had been a serious longstanding problem of mutual confidence between the prisoners and those responsible for Ulucanlar Prison at all levels, including with the gendarmes on duty at the prison. Accordingly, all the officials questioned had begun by acknowledging that “the State was no longer in control of the prisons”.

Nevertheless, the Sub-Commission noted that the meaning of the word “control” was unclear. “Control” could not mean preventing escapes – such cases being extremely rare – or carrying out regular searches and presence checks; nor could control be aimed at preventing freedom of movement by the prisoners between dormitories, monitoring the prison activities of members of the “terrorist” organisations, undermining the authority of their leaders or preventing large quantities of foodstuffs from being smuggled into the prison.

All such aims could have highlighted only the structural inadequacy of the prisons, the shortage of public funds and a deficient prison regime, and not any legitimate need for control of prison life.

60. On that subject, the Sub-Commission reported that the prisoners interviewed had complained of the denial of their rights under a “protocol of understanding” which they claimed to have signed with the officials of the prison and the Ministry of Justice.

It pointed out that, whereas that Ministry had officially denied the existence of any such document, many of the prisoners and the prison administrators had confirmed its existence, explaining that before the operation the said protocol, which comprised 22 articles, had been deposited with the public prosecutor’s office, but that the document had been missing since the operation.

According to the Sub-Commission, in view of the difficulties encountered in effectively applying the prison rules, which situation would in fact have been difficult to reconcile with current human rights requirements, it was clear that the officials, who had already been under media pressure, had concluded agreements with the leaders of the leftist prisoners in order to define the terms and conditions of prison life. The Sub-Commission took the view that even though such agreements could be seen as useful for protecting prisoners’ rights, in the instant case it was precisely the issue of implementing the agreement in question which triggered the events at Ulucanlar. The Sub-Commission explained that when there had been changes in the management of a given prison or when government policy had changed, the rights afforded to prisoners under such agreements had been denied, with the successive authorities proclaiming the unlawfulness of such privileges and the prisoners refusing to give up rights which they now took for granted.

61. It added that one illustration of the feeling of powerlessness experienced by the prison staff (many of whom had a rather low standard of education) on this matter was their interpretation, for example, of the signs and tags which had been observed in the dormitories inspected following the operation as showing the prisoners’ belonging to an illegal organisation. The prisoners interviewed had firmly denied that the premises had ever been used as “terrorist” cells; they had said that in the dormitories they had considered themselves entitled to conduct activities of a strictly cultural and intellectual nature. The Sub-Commission considered that the reaction of the authority’s vis-à-vis the nature of those activities and the fact that they had sought to ban them as illegal had only exacerbated the situation.

Furthermore, the Sub-Commission highlighted the statement by Lieutenant-Colonel A.Öz., who had directed the operation, to the effect that the men had acted to “restore the State’s authority”, and emphasised that the CDGA had on several occasions invited the Ministers of Justice and of the Interior to take action to “restore the State’s authority and prevent Ulucanlar Prison from becoming a ‘terrorist’ training centre ...”.

62. In the Sub-Commission’s view, however, those facts alone were insufficient to explain the above-mentioned feeling of powerlessness; behind the “desire to control persons” above and beyond their physical confinement there also lurked a wish to stigmatise prisoners convicted of political or terrorist acts vis-à-vis the other inmates.

c) Necessity of the force used

63. The Sub-Commission took the view that although it was incontrovertible that in cases of absolute necessity the security forces could resort to firearms within the limits of the law, inflicting death out of frustration at a loss of authority was clearly inadmissible. The deaths and injuries in Ulucanlar Prison had revealed an intention to kill, rather than an intention to put an end to the occupation of dormitories or to break down resistance. It analysed the existence of mutual resentment powerful enough to induce individuals to take the risk of killing or being killed as a sign that the prisoners and gendarmes had viewed each other as enemies.

In that regard, it emphasised that the military-style training given to members of the gendarmerie had been inappropriate for such an operation because, to a “soldier”, any “adversary” would have become an “enemy” whom he had a mission to destroy. That was why, according to the Sub-Commission, no ordinary gendarmes should have been involved in situations such as that pertaining in the present case, unless the personnel to be sent in had received appropriate training for such missions, in the knowledge that their duty was not solely to prevent the prisoners from escaping, but also to protect their lives and ensure respect for human rights.

The Sub-Commission observed, however, that, in the present case the gendarmes had behaved as if they were facing a group of terrorists who had taken to the mountains, “whereas there were sixty or so prisoners suffering from the effects of gas and foam and confined to an area of some one hundred square metres, who could neither escape nor remain barricaded in for ever”.

64. It explained that it had asked a number of officers whether any methods other than firearms could have been used and why the forces involved had not concentrated more on the use of tear gas and carbon dioxide foam in order to bring the situation under control.

The officers had allegedly replied that they had begun by using all possible non-lethal methods, in particular tear gas, until the gendarmes wearing military gas masks had themselves been affected by the gas, as had all the persons inspecting the dormitories several days after the incident. Moreover, according to one colonel, it would have been pointless to wait or to fire off more tear-gas canisters because the rioters had protected themselves with masks.

According to the Sub-Commission, the only possible conclusion was that the tear-gas canisters in question had proved their efficacy in terms of their quantity and power. But since they had been insufficient to contain the rioters, should it not have been accepted that the prisoners, with their home-made masks, had been better protected from the gas than the gendarmes with their professional masks?

65. The Sub-Commission further recounted the explanations given by another captain, to the effect that “since we already had four wounded gendarmes and were facing violent resistance, we could no longer decide to retreat, to halt the combat; we had no say in the matter”. The Sub-Commission pointed out that Lieutenant-Colonel A.Öz. (see paragraph 48 above) had also acknowledged that he could not have called off an operation without undermining the morale of the troops and allowing the “adversary” to regain confidence. It quoted that officer’s words as follows:

“... In my view, it was impossible to restrain [the rioters] by any other means because they had larges stores of food in the dormitories. Furthermore, we had no ‘paralysing’ gas, and to my knowledge there is no such gas. We have tear-gas canisters ... We could not opt to ‘wait and see’ because that would have raised the problem that a long period of waiting would have enabled the other side to prepare better and step up their resistance ... Once the armed confrontation has begun it can no longer be stopped. I am glad that my next-in-command and my lieutenant survived, thanks be to God, but if one of them had been martyred, how could we have explained that to people? ... In the past, when we came here on an operation, we only searched the ordinary convicts’ dormitories, not those of the prisoners convicted of terrorism. When the operation was instigated the latter prisoners resisted to the death. Firearms were the last resort, and we held back until our personnel began to sustain injuries ... That is when you have to react; the longer you hold off the worse the eventual losses [in your own ranks] will be ...; if you wait too long before riposting you will allow the ‘terrorists’ to adjust their aim and erect barricades ... They even began killing each other; there were burst of gunfire inside the dormitory ... I shouted down from the first floor ‘but that’s automatic gunfire!’ and the reply came ‘we know, sir ... we have no hunting rifles, we don’t use them ...”

Finally, the Sub-Commission quoted Captain D.Y. on that specific issue (cf. paragraph 49 above), who had considered it unfair to ask them how they could have avoided “killing ten individuals”:

“... We didn’t kill them ... Honestly, if I had wanted to kill someone, why would I have chosen ordinary guys like A.S. or Mahir Emsalsiz, instead of shooting the group leaders? Those two were about to be released ... and pulled no weight in the organisation. Those were the kind of people who were killed. Didn’t you notice that [the first persons who died] did not include any of the leaders? It was because to begin with the other guys had wanted to surrender that many of them were executed by those [leaders] ... We do not deny that we used firearms, but it wasn’t us who killed those ten individuals; it should be realised that if we had intended to shoot to kill we would have targeted the group leaders, or else we would already have eliminated them in the past, during quieter times ...”

66. The Sub-Commission considered that those arguments were strictly military in nature and had, moreover, highlighted a lack of authority on the officers’ part over the actions of the men under their command.

d) Proportionality of the force used

67. The Sub-Commission considered that more information was required on the nature of the “violent resistance” which had to be “broken” by the security forces.

According to the official version, a Kalashnikov, seven pistols and a hunting rifle had been found in the dormitories. Of the ten fatalities, three had been the result of shots from that hunting rifle: in short, according to the gendarmes previous quarrels had induced the “terrorists” to kill each other.

The Sub-Commission observed that the prisoners questioned had admitted having seen some of their comrades using guns, but that none of them had seen any Kalashnikov-type automatic weapon or a hunting rifle. No such Kalashnikov (see paragraph 44 in limine above) had ever been mentioned before or discovered during the initial search, but it had been found later on, after a prisoner had told the prosecutor that “the first shot had been fired from an automatic weapon”. And the hunting rifle, which had also never been previously mentioned, had also only emerged after the operation.

Given that the only injuries noted by the gendarmes had been caused by gunshots, the Sub-Commission wondered why, if the rioters had indeed been in possession of such a powerful weapon as a Kalashnikov, they had not used it against the gendarmes, and also why, if they had actually used a hunting rifle to kill three of their comrades, they had not also turned it against the gendarmes.

68. Nevertheless, the Sub-Commission held that the main question was how so many firearms had been smuggled into Ulucanlar. They considered the official line that they had been hidden in food packages or thrown over the prison wall unconvincing in view of the existence of electronic alarm systems and the guards keeping watch on the towers.

Nor did the Sub-Commission consider it conceivable that the firearms could have been supplied with the assistance of a number of corrupt officers; only a major organisation could have managed such a feat by infiltrating the prison, which would have involved huge sums of money.

69. Furthermore, the Sub-Commission noted that since only 41 cartridges had been found in the dormitories, the shooting attributed to the rioters could not have been as intense as had been claimed; it therefore considered that the account of a violent exchange of fire in the dormitories could not be taken at face value and that consequently there was no proof that the force used by the gendarmes in response had been strictly proportionate to the danger, especially since the bullet impacts on the inside walls of the dormitories suggested that the shots fired by the gendarmes had been directly aimed at individuals.

70. The Sub-Commission also stated that the other argument, to the effect that the rioters had used gas cylinders as flame-throwers to prevent the gendarmes from entering the dormitories, could not be described as very convincing: the doors to the premises in question had not displayed any scorch marks and none of the gendarmes had sustained any serious burns.

71. The Sub-Commission further pointed out that according to the officers involved, the gendarmes had also been attacked with sharp instruments; still according to the officers, it was only to be expected that the deceased prisoners had displayed traces of blows and injuries because there had been “clashes and confrontations with the prisoners, who had attacked the gendarmes with iron bars and stilettos, and the latter had had to riposte with truncheons”.

Nevertheless, the Sub-Commission observed that it was unclear whether any knife wounds had been found on the gendarmes, nor was there any evidence that any such hand-to-hand fighting had ever taken place, never mind a confrontation lasting for five or six hours.

On the other hand, the Sub-Commission noted that many of the prisoners had claimed to have been beaten up, dragged along the floor and stamped on for no reason. It added that those allegations had been confirmed by forensic reports and that the forensic experts had established that some of the traces of violence observed on the injured prisoners and the corpses had indeed only been explicable by blows from blunt instruments and bodies being dragged across a hard floor (see paragraph 42 in fine above).

Moreover, the doctors responsible for providing first aid in the shower room prior to the transfer of the injured to hospital had also reported that the prisoners had begged them not to leave them alone, explaining that as soon as there were no witnesses, the gendarmes tortured them by exerting pressure on their wounds.

72. The Sub-Commission considered that the traces of blows and the injuries noted on the bodies of the prisoners and the corpses did not appear to have resulted from clashes and confrontations, and that the most likely scenario was that during and after the operation the security forces had resorted to excessive force and beaten the rioters. Furthermore, as regards the burns found on the bodies of the injured and dead prisoners, it pointed out that according to the forensic experts which it had appointed, they might have been caused by nitric or sulfuric acid, the presence of which chemicals it deemed unexplained.

e) The Sub-Commission’s conclusions

73. Having regard to all the foregoing observations, the Sub-Commission issued the following opinion.

In the absence of a constructive attitude on the part of the Ulucanlar and Justice Ministry officials, the impugned operation had ultimately been characterised by a level of violence surpassing its original aim, the commanding officers concerned having discharged the mission without preventing deaths and widespread injuries.

Clearly, sole responsibility for all those incidents could not be attributed to the gendarmes, the prison staff or the Ministry in question. However, the Ministry’s differentiated policy depending on prison type and the prison staff’s excessive zeal in “controlling” the prisoners convicted of political offences by inflicting penalties in addition to the sentences which they were already serving had certainly been the main factor in the escalating tension and the lack of trust between both sides.

Beyond the arguments put forward by the authorities, the real reason for such violence had boiled down to a longstanding dispute between the prison administration, which had been determined to impose its authority, and the prisoners, who had been demanding rights which they considered wholly legitimate.

The officials involved in that dispute had ended up calling in the gendarmerie, who had proved unsuited to managing that kind of situation and who, in the absence of appropriate instructions, had inflicted ill-treatment on the prisoners and used disproportionate force.

2. Ex officio proceedings against the prison staff

a) Disciplinary proceedings

74. On 27 September 1999, at the request of the Justice Ministry’s Disciplinary Board, inspectors initiated an administrative investigation against R.Cin., the Director of Ulucanlar Prison, and his four deputies, M. Çel., U.Sal., A.Gür. and T.Yıl., on the grounds, inter alia , of the discovery of weapons and various prohibited objects and substances on the prison premises (see paragraphs 10 and 27 above).

The five officials were charged with failing in their obligation to control and supervise the prisoners under their responsibility.

75. They argued in their defence that it was impossible to identify the prison guards involved in smuggling weapons and ammunition into the prison. They added that even though visitors passed through metal detectors, the prison regulations prohibited body searches, and that the old and dilapidated state of Ulucanlar Prison made it easy to hide prohibited items, which were sometimes even thrown over the prison wall from the outside.

The officials further submitted that in practice it was impossible to impose disciplinary sanctions on prisoners for such offences since the deputy directors were not on the Disciplinary Board and, moreover, the impugned occupation of dormitory no. 7 had in fact been brought to the attention of the Ministry of Justice and the public prosecutor’s office, but no action had been taken before the date on which the risk of a break-out had become imminent.

76. After the investigations, the inspectors had agreed on the need for sanctions. They stated that the officers in question should be declared responsible for:

– bringing prohibited items into the prison through the intermediary of certain officials who had acted unsupervised and with complete impunity;

– the failure to conduct body searches of detainees and convicted prisoners being transferred between Ulucanlar Prison and hospital;

– the absence of X-ray checks on lawyers and their personal effects;

– the absence of targeted or general searches throughout the prison premises in order to seize prohibited items;

– the failure to impose deterrent disciplinary sanctions on prisoners;

– the de facto tolerance, between August 1999 and 2 September 1999, of the prisoners’ unlawful actions, including their occupation of certain premises;

– the absence of presence checks in dormitories nos. 4 and 5 and the female dormitory; and

– the inability to block the access between those dormitories opened up by the prisoners.

77. On 7 December 1999, departing from the aforementioned opinion, the Director General of Prisons decided that no sanctions were required, giving the following reasons:

“... for years the prisons housing persons detained and convicted for acts of terrorism have been one of the main problems facing our country, and the incidents which have occurred in them has attracted a high level of public interest. We cannot overlook the fact that in prisons of this category searches are never properly carried out, presence checks raise problems and there are periods when no presence checks are carried out for days on end; the detainees and convicted prisoners control the opening and closing of the doors to the dormitories, and when groups of them take over the corridors it is impossible to intervene; even visits by and interviews with lawyers are arranged and controlled by the organisation leaders; the net result is that the prison staff are overwhelmed and struggling, or even failing, to discharge their duties.

Consequently, as regards such incidents, which stem from a number of issues which have been building up for years into a problem facing all the ‘anti-terrorist’ prisons in our country, not just [Ulucanlar], it would be unfair to say that the [Ulucanlar] staff, who are under pressure ... from the detainees and prisoners convicted of terrorism and are in a way being forced to work in breach of the regulations and instructions, were at fault or acted intentionally; in other words, it is unfair to attribute sole responsibility for these incidents to the [Ulucanlar] prison staff on the grounds that they acted negligently.

Moreover, even the investigation report of 25 September 1999 [ sic – see paragraph 74 above] accepted that the staff had not been guilty of negligence, wrongdoing or intentional mischief, because, despite all their efforts, it would have been impossible to prevent the situation from reaching such a pitch ...”

78. Finally, the Disciplinary Council concluded that no professional negligence was imputable to the Ulucanlar administrative staff.

b) Criminal proceedings

79. At an unspecified date, a mandatory criminal investigation was instigated against head prison officers H.A. and S.B. and prison officers Ş.A., Ç.Y., L.A., A.Ka., U.Y., N.Şa. and G.Ş., who were stationed at the Ulucanlar security checkpoint, for negligence in the exercise of their duties. In view of the number and type of weapons and ammunition discovered after the operation, those officers had been suspected of having internationally or accidently failed to carry out the requisite checks and searches on persons passing through the checkpoint, on 15 March 1999, in particular.

The suspects contested the accusations on the grounds that the gendarmes had received the same orders as the prison officers in terms of checking individuals entering the building, including ensuring security at the checkpoint. They submitted that although, occasionally, no checks had been carried out, that fact alone did not warrant any presumption of guilt.

80. By order of 2 December 1999 the prosecution discontinued the proceedings for lack of evidence. In support of that decision, the prosecution pointed out that it had been impossible to determine the dates or periods of time when the prohibited items in question had been smuggled into Ulucanlar Prison. They added that in the light of the architecture and organisation of the building, “light weapons” could quite easily have been thrown over the outside walls or else from the open area of the prison, or that they might have been brought in by other means or with the assistance of officers other than those who had been charged.

3. Criminal proceedings

(a) Mandatory investigation and complaints consequent thereupon

81. On 26 September 1999, immediately after the operation, the lawyers representing applicants Mehmet Kansu Keskinkan, Veysel Eroğlu, Behsat Örs, Erdal Gökoğlu, Sadık Türk, Enver Yanık, Aynur Sız, Devrim Turan, Haydar Baran, Resul Ayaz, Songül Garip, Filiz Uzal (Soylu) and İsmet Kavaklıoğlu applied to the Ankara State Prosecutor (“the Prosecutor”) for authorisation to be present during the autopsies should one of their clients die in the meantime, which was in fact the case of Mr İsmet Kavaklıoğlu.

The Prosecutor rejected that request.

Concurrently, Mr Bayraktar and seven fellow lawyers lodged a formal complaint on behalf of applicants Küçük Hasan Çoban, Savaş Kör, Nihat Konak, Fadime Özkan, Behsat Örs, Cenker Aslan, Veysel Eroğlu, Cemile Sönmez, Başak Otlu, Yıldırım Doğan and Hayriye Kesgin (List B), as well as on behalf of the deceased prisoners Zafer Kırbıyık, Nevzat Çiftçi, Önder Gençaslan and Mahir Emsalsiz (List A). Mt Bayraktar requested, also unsuccessfully, leave to be present during Mr Nevzat Çiftçi’s autopsy.

On the same date Mr Ayhan and Çıtak, defence counsel, lodged a first collective complaint on behalf of all the “prisoners who had been attacked”.

82. Both those complaints were added to mandatory investigation file no. 1999/101539. A preliminary investigation had already been instigated against 150 members of the gendarmerie for unjustified used of lethal force against Mahir Emsalsiz, Halil Türker, Abuzer Çat and Ümit Altıntaş (List A) and for bodily injury against 47 prisoners, including some of the applicants (List B) and excluding those set out below, who did not appear on the list of complainants: Fatime Akalın, Sibel Aktan (Aksoğan), Şerife Arıöz, Gönül Aslan, İnan Özgür Bahar, Aydın Çınar, Esmahan Ekinci, Murat Ekinci, Murat Güneş, Zeynep Güngörmez, Gürhan Hızmay, Ertuğrul Kaya, Cemaat Ocak, Başak Otlu, Fadime Özkan, Derya Şimşek and Edibe Tozlu.

83. On 29 September 1999 the applicants Mustafa Selçuk, Cem Şahin, Barış Gönülşen, Erdal Gökoğlu and Sadık Türk – who had meanwhile been transferred to Burdur Prison – joined the complainants. They complained about the members of the security forces and the prison authorities, who they submitted had been responsible for the tragic events of 26 September. Those complaints were also added to the aforementioned file no. 1999/101539.

The applicant Murat Ekinci was questioned by the Prosecutor on 15 October 1999 (see paragraph 99 above), when he accused the gendarmes of having beaten and injured him.

Still on 29 September 1999, two of the lawyers for the applicants acknowledged receipt of the autopsy reports. They requested communication of the other necropsy reports, the documentation in support of the post-mortem examinations conducted in the present case and histopathological analyses of the tissue samples taken.

On the same date the morgue personnel replied that tissue samples had been taken and sent for analysis.

84. On 1 December the lawyers lodged a second collective complaint which did not include the names of Ms Kırbıyık (List A) or Mr Murat Ekinci (List B).

On the basis of a detailed statement of the facts, the lawyers accused the prison staff and members of the gendarmerie of premeditated murder, serious bodily injury and acts of torture. That complaint was recorded in a second file (no. 1999/107587).

85. On 13 March 2000 counsel for Ms Kırbıyık lodged a formal complaint against 47 gendarmes and officers who had taken part in the operation. That complaint, recorded in a third file (no. 2001/16237), was followed by further complaints lodged separately on 9 June 2000 by Veysel Eroğlu and İnan Özgür Bahar.

(b) First investigative measures

“[at the site of the incident] it was impossible to detect, on the dead persons’ clothing, any traces of stabbings or projectile entry holes, because the corpses had been laid out side by side on the wet, blood-soaked floor; furthermore, the clothing removed from the injured prisoners had been mixed with the clothes from the dead prisoners ...”

With the help of the photographs taken of the corpses before they had been stripped and thanks to the memory of prison officer N.Yar., the Prosecutor managed to identify the clothing of Önder Gençaslan, Ümit Altıntaş, Halil Türker, Mahir Emsalsiz, Nevzat Çiftçi and Abuzer Çat. The clothing of the first five dead persons displayed one, five, one, eight and two holes respectively, some of them resembling bullet holes. There were no holes in Abuzer Çat’s clothes. The clothing belonging to İsmet Kavaklıoğlu (see paragraph 38 above) and Zafer Kırbıyık was not to be found.

Still on 26 September 1999, the authorities checked the deceased prisoners’ criminal records. Mahir Emsalsiz and Önder Gençaslan had been former members of the illegal organisation TKP (ML) TİKKO, Abuzer Çat of MLKP, Ümit Altıntaş of TİKİP and Zafer Kırbıyık of Turkish İHT.KOM.BİRL., all three being extreme left-wing fractions.

All the ensuing investigative measures, including the numerous expert appraisals carried out, are summarised below, accompanied by references to the annexes, as appropriate.

87. Between 26 and 28 September 1999 the Prosecutor took statements from several (non-applicant) complainant prisoners, that is to say from Mu.Ö., E.G., M.M., V.Ç., Z.A.D., A.Ç., R.K., Me.Ö., A.Kan., H.E., M.E., R.T., A.K., B.Ö., Z.A.K., C.S., T.S., Ş.B., İ.B., F.K., M.B., F.A., İ.G., B.H.Y., A.Y., U.K., İ.E., S.S., N.U., H.G., Y.Z., H.K., Z.M. and K.B.

The latter confirmed the substance of the applicant party’s version.

88. On the other hand, two other (non-complainant) escaped prisoners, namely Ä°.D. and E.D. (from dormitories nos. 5 and 4 respectively) levelled accusations at some of the current and former applicants.

İ.D. explained that he had been kidnapped and interrogated under threat of death by the applicants Nihat Konak (whom he described as the boss of his dormitory), Halil Türker, Savaş Kör and Aydın Çınar. On the day of the operation, Savaş Kör had been instructed to prevent him from leaving dormitory no. 5. At one point Savaş had dragged him by the scruff of the neck towards dormitory no. 4, threatening him with a stiletto; when the gendarmes began spraying the premises with foam, Savaş had tried to throw a home-made bomb at them, but it had exploded in his hands. Taking advantage of the panic, İ.D. had run and taken refuge with the gendarmes. İ.D. added that he had heard that one of the guns had been used by Habib Gül [15] and that some of the prison officers had been on friendly terms with the extreme leftist prisoners. Finally, İ.D. had requested police protection.

89. For his part, E.D. stated that on 26 September 1999, in Ulucanlar Prison, the prisoners occupying dormitories nos. 4 and 5 had joined forces; the dormitory no. 4 “boss” had been Sadık Türk, while dormitory no. 5 had been led by someone known as Nevzat Çiftçi ( alias Habib Gül). Habib Gül, C.Ç., Sadık Türk and Erdal Gökoğlu had had real handguns, and during the operation they had opened fire on the gendarmes. The first shot had been fired from a handgun, and Habib Gül had, a priori , been holding that handgun. Subsequently, Habib Gül, C.Ç., Sadık Türk and Erdal Gökoğlu had moved towards the dormitory no. 4 exercise area; they had been unable to climb over the barricades, but Habib Gül had nevertheless fired at the gendarmes on the watch tower.

E.D. asserted that he had heard C.Ç. shout “fire at will at the towers!”. He continued:

“The prisoners who triggered this incident were therefore Habib Gül, under the identity of Nevzat Çiftçi, C.Ç., Sadık Türk and Erdal Gökoğlu, who all had handguns ... Subsequently, Habib Gül and Erdal Gökoğlu brought along something which looked like a gun roiled up in a blanket; Habib Gül was carrying it, but I didn’t see him using it. It could have been a hunting rifle.”

90. On 30 September 1999 E.D. had sent the Prison Director a second statement which he had written the day before, submitting that the first statement might have been incomplete because it had been written while he was still “in shock”. His second submissions had diverged somewhat, particularly as regards the afore-mentioned hunting rifle. Having pointed out that during the operation some of his fellow prisoners had wanted to surrender, E.D. continued as follows:

“but the bosses shot at them to stop them surrendering. There were several firearms and knives in the dormitory; there was even a hunting rifle. Apart from that there was some bomb-making equipment. I know that Habib Gül, the former leader of the Ekim organisation ... had a very much frowned-upon romantic relationship with the prisoner Fatime [Akalın] and that there were conflicts between the members of different organisations. Habib didn’t want to compromise and had been excluded from his own community ... At 11.30 p.m. on the evening before the operation they brought Habib to our dormitory, no. 4. C.Ç., İsmet Kavaklıoğlu, Enver Yanık, Sadık Türk and a few others whose names I do not know yelled at him that they were at war and he was fighting over a whore ... İsmet even told Cemal: ‘F... it, we should just put a bullet in his head ... it would be better to execute him.’ ... I saw that İsmet Kavaklıoğlu, Enver Yanık, C.Ç., Erdal Gökoğlu, Sadık Türk and C.T.B. [who was this time identified as the dormitory no. 5 ‘boss’] and a few other members of the organisation were armed. Me and a few of my comrades managed to escape, but those who didn’t get away were hit. I know this because they had also shot at us, but missed ... One month before the operation we had been forced into training in the use of explosives and how to react to an ‘enemy attack’ ... Everyone except İsmet wanted to be transferred, but Enver Yanık opposed the move. Erdal Gökoğlu and Veysel Eroğlu were also constantly wrangling over a ‘command’ post.”

At around 10.30 a.m., having read the above document, the Prosecutor once again questioned E.D., who provided the following details:

– Habib Gül and C.Ç. had always carried handguns in their back pockets in the dormitory;

– on the morning of the operation Habib Gül and C.Ç. had barricaded the entrance gate to the dormitory no. 4 area and then smashed the lights in the dormitory;

– when the gendarmes ordered us to surrender, Habib Gül riposted by firing a shot at the gate; some prisoners wanted to surrender; Enver Yanık then fired in our direction and the directly at Aziz Dönmez; a few seconds before the gendarmes had also fired a few shots, but Aziz Dönmez might have been killed by Enver;

– C.Ç. was holding something in his hands rolled up in a blanket; when the blanket was removed I saw that it was a hunting rifle; I think it was C.Ç. who used it, but I didn’t actually see him firing it.”

91. Some of the applicants were also questioned that day. Their statements are summarised in Appendix V.

92. On 26 and 27 September 1999 the corpses of Mahir Emsalsiz, Önder Gençaslan, A.D., Halil Türker, Abuzer Çat, Nevzat Çiftçi and İsmet Kavaklıoğlu were the subject of post-mortem examinations, first in situ in Ulucanlar (apart from Nevzat Çiftçi and İsmet Kavaklıoğlu) and then at the Ankara Institute of Forensic Medicine.

On 28 September 1999 conventional autopsies were carried out at the Institute of Forensic Medicine. A report signed by the forensic team and a prosecutor mentioned that the bodies had been photographed and filmed, that the films had been sent to the Institute, that the video cassette had been stored at the Mortuary Department, and that the photographs and films previously taken by the staff of the open area of Ulucanlar Prison should be transmitted to the prosecutor concerned.

On the same day counsel for the applicant party asked the Prosecutor for copies of the autopsy reports concerning Mahir Emsalsiz, Önder Gençaslan, Halil Türker, Abuzer Çat, Nevzat Çiftçi, Ümit Altıntaş, Zafer Kırbıyık and İsmet Kavaklıoğlu. That request was accepted.

The content of all those reports is summarised in Appendix III.

93. On the previous day, having questioned the Deputy Director of Ulucanlar Prison, the Prosecutor had visited the hospitals to which the injured prisoners had been transferred, including the applicants Haydar Baran, Resul Ayaz, Küçük Hasan Çoban, Barış Gönülşen, Veysel Eroğlu, Halil Doğan, Ertan Özkan, Behsat Örs, Yıldırım Doğan, Cenker Aslan, Erdal Gökoğlu, Mehmet Kansu Keskinkan, Savaş Kör, Bülent Çütçü, Özgür Saltık and İlhan Emrah.

Those prisoners declared that they would give statements after their recovery, and complained about the poor quality of the hospital treatment and intrusions by gendarmes into their rooms. The Prosecutor took note of their complaint and ordered the gendarmes stationed at the hospital to refrain from disturbing the prisoners.

On the next day two deputy prosecutors inspected the premises at Ulucanlar Prison in order to identify the damage caused to public property there.

c) Forensic and ballistic expert reports

94. On 6 October 1999 the Criminology Department of the Gendarmerie General Command with the Ministry of the Interior (“the DC”) issued two detailed reports on the expert assessments of the weapons and ammunition discovered on the site of the incident (see paragraphs 44 and 45 above).

According to the first ballistic examination of the bullets and lead shot extracted from the bodies of A.D., Ümit Altıntaş, Önder Gençaslan, Halil Türker and Zafer Kırbıyık, the two 9-mm projectiles which hit Önder Gençaslan had come from the same weapon, as had the two 7.62-mm projectiles which killed Halil Türker and Ümit Altıntaş.

95. The second ballistic assessment conducted by the DC found that the firearms, which were deemed in working order, corresponded to the spent cartridges and ammunition discovered during the searches of the dormitories. The results were as follows:

– batch no. 1 : 10 x 7.62-mm calibre projectiles, 1 deformed, and 63 spent 7.62 x 39-mm cartridges [16] , including 52 of military origin;

– batch no. 2 : 8 Cheddite 16-mm cartridges and 4 spent cartridges;

– batch no. 3 : 15 bullets and 10 spent cartridges, calibre 7.65 mm;

– batch no. 4 : 47 bullets and 10 9-mm projectiles, 2 pieces of bullet jacket and 56 spent 9 x 19 mm cartridges [17] ;

– batch no. 5 : 90 spent 7.62 x 51 mm cartridges [18] , of military origin, and 3 8-mm blank bullets, 3 more pieces of bullet jacket and 10 projectile cores;

– exhibit no. 1 : 1 7.62-mm calibre AMD-65 assault rifle (series no. EO 3841), corresponding to 11 spent cartridges in batch no. 1;

– exhibit no. 2 : 1 16-mm calibre hunting rifle, engraved with the name “Original”, corresponding to 3 of the Cheddite cartridges in batch no. 2;

– exhibit no. 3 : 1 7.65-mm calibre semi-automatic Mab pistol (series no. D 561777) corresponding to 3 spent cartridges in batch no. 3;

– exhibit no. 4 : 1 7.65-mm calibre home-made gun (numbered 555), corresponding to 7 spent cartridges in batch no. 3;

– exhibit no. 5 : 1 9-mm calibre Browning semi-automatic pistol (series no. 245 PY74657), corresponding to 37 spent cartridges, 7 9-mm projectiles and 1piece of bullet jacket in batch no. 4;

– exhibit no. 6 : 1 9-mm calibre Star B semi-automatic pistol (series BILA, model CAL 9M/M), corresponding to 2 spent cartridges in batch no. 4;

– exhibit no. 7 : 1 9-mm calibre Tarıq semi-automatic pistol [19] (series n o 31302622), corresponding to 13 spent cartridges, 3 9-mm projectiles and 1 piece of bullet jacket in batch no. 4;

– exhibit no. 8 : 2 white home-made pen guns.

96. On 14 October 1999 the DC issued two more reports. The first concerned the examinations conducted of thirty-three pieces of clothing, fourteen of them having belonged to the deceased prisoners Önder Gençaslan, Ümit Altıntaş, Halil Türker, Abuzer Çat, Mahir Emsalsiz, A.S., A.D. and H.G. It established the entry and exit holes of specific projectiles and the distances from which the fatal shots had been fired. It concluded as follows :

– Önder Gençaslan: the gunshot to the hip had been fired close up (between 4 and 100 cm) and that to the abdomen at long distance (100 cm or more);

– Ümit Altıntaş: the three gunshots to the lower limbs had been fired at long distance (100 cm or more);

– Halil Türker: the two gunshots to the lower limbs had been fired at long distance (100 cm or more);

– Abuzer Çat: no trace;

– Mahir Emsalsiz: the gunshots to the lower limbs had been fired at long distance (100 cm or more).

Those conclusions were only partly corroborated by the autopsies (Appendix III).

97. The second report concerned the chemical analyses of the explosive substances discovered in the dormitories after the operation. According to that report the explosive material had consisted of fuel, matches, home-made fireworks, window sealing, a Smith Wesson tear-gas cylinder dating from 1990, and cement.

98. On 1 December 1999 the DC issued the findings of the ballistic examination carried out on the 184 official weapons (29 pistols, 31 machine guns, 124 HK G3 assault rifles (Kalashnikovs) used by the gendarmerie units, as well as on the 26 spent cartridges found in situ . According to the reports, the projectiles extracted from the bodies of Halil Türker and Ümit Altıntaş had been fired from Kalashnikov no. 69 Y 4422. Moreover:

– 20 shots had been fired from Kalashnikov no. 1975 228278;

– 4 shots from Beretta pistol no. F 92381 Z;

– 42 shots from G3 assault rifle no. A4 703675;

– 16 shots from G3 assault rifle no. A4 648358;

– 11 shots from G3 assault rifle no. A4 648359;

– 7 shots from G3 assault rifle no. A4 756654;

– 4 shots from G3 assault rifle no. A4 648356;

– 5 shots from G3 assault rifle no. A3 541586; and

– 42 shots from G3 assault rifle no. A4 648358.

Finally, 11 7.62 x 51-mm projectiles, 25 7.62 x 39-mm projectiles and 3 7.62-mm projectiles had been shot from 9 different weapons, other than those covered by the expert assessment.

d) Subsequent hearings of witnesses and complainants

99. On 15 October 1999 the applicants Behsat Örs, Ercan Akpınar, Cenker Aslan and Özgür Soylu were heard pursuant to letters rogatory. However, they refused to give evidence before speaking to their lawyers.

On the other hand, applicant Murat Ekinci stated the following:

“... I am from dormitory no. 14 ... At around 3. 30 - 4 a.m. I was woken up by shouting before hearing gunshots; ... I could hear gendarmes yelling into their walky-talkies; ... I could make out that heavy artillery had been used and that people had been killed; at about 4.30 a.m. I heard a colonel ordering his men to open fire on anyone who resisted arrest ...; furthermore, tear-gas canisters were thrown in the dormitory no. 4 area ...; the gas also reached our dormitory; ...at about 6.30 - 7 a.m. the prison officers opened the door to the living area where we were holed up. ... At about 2.30 p.m. a captain and his men came into dormitory no. 14; they ordered me to collect my things and get out immediately, which I did; I had gone a few metres towards the corridor when hundreds of gendarmes and prison officers started hitting me; the whole way along the corridor, right up the showers, they kicked me and beat me with truncheons and cudgels; ... they had set up a special unit in the showers; they forced me in; there were 20 or 30 naked prisoners lined up; ... they had been tortured, even though they were already severely injured ...; they forced me to sing the national anthem and shout fascist and fundamentalist slogans, while they deliberately hit the most sensitive parts of my body; ... on the way to the prison vans we were beaten and forced to stumble over four corpses lying outside, while they threatened us with ending up like the corpses; ... in the van the four or five gendarmes who had got in with us continued to hit us; one of them cut strips out of my clothes with his bayonet; we were taken to Ermenek Prison ...; I got a report from the Ermenek civilian hospital confirming the abuse I had suffered ...”.

100. Between 18 and 28 October 1999 some of the applicants (List B) and gendarmes were heard either by the Prosecutor or pursuant to letters rogatory. Those witness statements, which are summarised in Appendix VI-A, did not provide any new evidence. Similarly, the prisoner/complainant R.E. and prisoners H.E. and Ä°.D., during a fresh hearing on 25 October 1999, reiterated their statements (see paragraphs 87 to 90 above).

Meanwhile, on 21 October 1999, S. Aslan, the father of the applicant Cenker Aslan, and the families of certain prisoners who had been killed or injured during the operation had lodged a collective application with the Balıkesir public prosecutor’s office, for purposes unknown. On 25 October 1999, However, S. Aslan, referring to that application, complained to the Balıkesir public prosecutor’s office that his son had been transferred to Yozgat Prison without having received medical treatment, despite a series of requests to that effect.

101. On 28 October 1999 the prisoner E.K. and the applicants Veysel Eroğlu, Ertuğrul Kaya and Hayriye Kesgin were heard, as was another applicant whose name is unknown (List B). The hearings continued until 26 November, embracing the applicants Halil Doğan and Filiz Gülkokuer, prisoners M.Ö. and H.D., officer D.Yıl. and the three gendarmes N.Özk., E.Gün. and M.Akç.

Those statements, which are in keeping with the versions of events given by the applicant party and the authorities, are reproduced or summarised in Appendix VI-B.

e) Application to the Governor of Ankara pursuant to Act No. 4483 on the prosecution of civil servants

102. On 26 November 1999 three Ankara deputy prosecutors responsible for investigating the first case (no. 1999/101539) brought against State agents (see paragraphs 82 and 83 above), declined jurisdiction ratione materiae . On 1 December 1999 they transmitted the case file to the Governor of Ankara, who was competent to determine the expediency of criminal investigations pursuant to the Law on the prosecution of civil servants.

On 8 December 1999 the Prosecutor followed suit as regards the other complaints which had been lodged against the said agents and were subsequently joined to the second case (no. 1999/107587) (see paragraph 84 above). In so doing he declined jurisdiction ratione materiae and, in turn, referred the case to the Governor of Ankara, requesting that it too be joined to the aforementioned first case (no. 1999/101539).

103. On 17 December 1999, at the request of the Governor of Ankara, the Gendarmerie General Command set up a preliminary investigation committee consisting of three Gendarmerie officers, namely Colonels Ö.K. and F.Y. and Captain M.K. (“the investigation committee”), mandated to determine the expediency of prosecuting the agents in question (see paragraph 107 below).

f) First series of interrogations of members of the security forces

104. On 11 October 1999 the Prosecutor questioned five gendarmerie officers who had been involved in the operation: Z.Eng., C.DoÄŸ., N.Kar., E.Ayd. and S.DaÄŸ. Their statements were based on repetitive elements which would be reprised later on before the investigating officers.

Between 21 and 28 December 1999, that is to say three months after the operation, some of the gendarmes who had taken part in the operation were once again questioned by the investigation committee.

The committee first of all re-heard the above-mentioned officers Z.Eng., C.Doğ., N.Kar. E.Ayd. and S.Dağ., and also A.Gök. and D.Yıl.

Subsequently, it questioned the following gendarmerie officers, for the first time: T.Akb., Y.Akt., C.Ala., A.Ali., Ş.Alt., F.Apa., M.Arı., S.Ata, M.Ate., N.Atm., H.Ayd., İ.Ayd., C.Ayg., M.Ayh., B.Bal., M.Bib., D.Bil., İ.Bil., H.Bil., C.Boz., Ş.Cab., A.Can, C.Can., B.Cey., M.Cey., M.Cih., M.Çağ., Ş.Çak., Y.Çav., B.Çiç., Ö.Çiv., İ.Dem., K.Dem., İ.Ede, A.Eme., M.Erk., D.Ert., A.Gem., T.Gid., A.Güç., H.Güm., M.Gür., T.Güz., M.Hak., K.İbi., A.İna., M.Kar., N.Kes., A.Kıl., M.Kıl., N.Kıl., S.Kıl., M.Kılı., Ö.Koç., A.Köy., H.Kul., İ.Ofl., H.Ok, M.Olu., B.Öna., Ö.Öre., A.Öz, G.Öza., M.Öze., K.Özm., U.Özm., G.Özt., O.Özt., B.Pal., E.Par., H.Sal., H.Sar., B.Say., Ü.Soy., E.Sub., Y.Sus., B.Tan., T.Tar., A.Tit., B.Usl., C.Üna., S.Ünl., S.Yağ., A.Yan., M.Yap., F.Yed., Y.Yed., Ö.Yıl., S.Yıl., M.Yüc., İ.Yük. and M.Yün.

105. In their statements, those officers provided the following details, in very similar terms:

– from the outset of the operation, the security forces constantly shouted orders to the prisoners, every three to five minutes, to surrender without resistance, so that no one would be hurt;

– during the operation, a team took photographs of the premises and the prohibited items discovered in situ , under the direction of junior officer M. Hak.; the photos were then transmitted to the intelligence services;

– the prisoners were singing anthems and chanting slogans such as “You should give up, Turkish fascist soldiers”, “The revolutionary prisoners will never surrender”, “The honour of humankind will win out over torture”, “Ulucanlar will be the tomb of the soldiers of the Fascist Republic of Turkey”, “No one will overcome the revolutionary movement, kill any traitors attempting to surrender”, “No capitulators will be left alive”;

– the prisoners set fire to the roof with flame-throwers made out of gas cylinders, and also torched their mattresses and blankets in the dormitories; the firefighters sprayed the premises with foam and water from the roofs; tear-gas canisters were also thrown;

– the gendarmes were accompanied by a few prison officers;

– after the intervention by the fire brigade, there was intermittent gunfire from inside the dormitories; a certain E.G. had fired the shots [20] ;

– the prisoners threw Molotov cocktails and wielded iron bars, stilettos and handguns ; some of the gendarmes had also noticed a long-barrelled gun wrapped in cloth; the prisoners in the female dormitory had no firearms, but did have some home-made flame-throwers;

– when the gendarmes broke down the dormitory door with sledgehammers and cranks, the prisoners threw Molotov cocktails, used flame-throwers and threw stones and pieces of metal, glass and brick which they had probably picked out of the rubble of the wall which they had demolished in dormitory no. 7;

– the commanding officers had used their walky-talkies to order their men not to ill-treat the prisoners and only to use weapons against persons who were themselves armed, exclusively targeting such persons;

– force was used exclusively within the framework of the law, when it was unavoidable in order to break the armed resistance and restore the State’s authority in the prison;

– firearms were used, in particular, by the gendarmes deployed on the roofs; inside the building the gendarmes only used anti-riot equipment, that is to say helmets, truncheons, shields, tear gas canisters and carbon dioxide foam;

– the gendarmes were also affected by the tear gas because some of them had no masks;

– behind the doors to their dormitories the prisoners had used mattresses, bedsteads and cupboards as barricades;

– one group of prisoners had been willing to surrender, but only two of them managed to do so; the others had probably been executed by their comrades for betraying the cause;

– at the end of the operation each prisoner was taken outside by at least four gendarmes holding them by the arms and legs;

– no one was ill-treated, dragged along the ground or sexually abused during the operation or during the transfer of prisoners to other establishments.

g) Outcome of the branch of the complaint of 1 December 1999 concerning the prison staff

106. On 30 December 1999, when the administrative proceedings before the Governor of Ankara were still pending, the Prosecutor gave an unreasoned discontinuance decision in respect of the 34 civil servants, members of the prison staff, who had been cited in the second case (no. 1999/107587) (see paragraphs 84 and 102 in fine above).

The Governor observed that those staff members had not been actively involved in the operation as they had been strictly ordered to wait outside the building and, moreover, none of them had been injured, nor had any action taken by them had been mentioned in the official documents.

On 16 February 2000, before that decision was served separately on the lawyers concerned [21] , the applicant party had directly appealed against it to the President of the Kırıkkale Assize Court, which finally dismissed that appeal on 21 February 2000.

h) Continued proceedings pursuant to Act No. 4483 on the prosecution of civil servants

107. On 30 December 1999 the investigation committee (see paragraph 103 above) submitted its report to the Governor of Ankara, expressing the opinion that the persons in question could not be charged with any kind of wrongdoing or negligence.

On 3 January 2000 the Governor of Ankara followed that opinion and prohibited the prosecution of the 150 [22] members of the gendarmerie in respect of the incidents impugned in the first two cases (nos. 1999/101539 and 1999/107587) (see paragraph 102 above). The following reasons were given for that decision:

“On 26 September 1999, in dormitories nos. 4 and 5 housing prisoners convicted of terrorist offences, as well as in the female ‘terror’ dormitory in Ulucanlar Prison ... the prisoners rebelled against the searches and opened fire; on 3 January 2000, therefore, I decided, pursuant to sections 3 and 6 of Act No. 4483 on the prosecution of civil servants, not to authorise the prosecutions, considering that the personnel stationed in the prison had only had recourse to the powers vested in them by Act No. 1721 on the administration of prisons and Act No. 2803 on the organisation of the national gendarmerie.”

108. On 1 March 2000 the decision of the Governor of Ankara was served on counsel for the applicants, who appealed to the Ankara Regional Administrative Court.

In their memorial, counsel submitted, in particular, that the Governor’s decision was not based on any cogent reasoning and was thus in breach of section 6 of Act No. 4483; they added that the laws on which the decision had been based were completely immaterial to the actions attributable to the gendarmerie forces and that the impugned decision had not established any facts capable of justifying the use of firearms in the particular circumstances of the case.

By judgment of 17 May 2000 the Regional Administrative Court set aside the Governor’s decision and ordered the referral of the case to the Prosecutor with a view to instigating a criminal investigation against the members of the gendarmerie.

That decision was served on the appellants on 29 June 2000, and additional investigative measures were implemented.

(i) Final complaints lodged by the applicants for ill-treatment (List B) and re-hearing of the persons in question

109. On 9 June 2000 the applicant Veysel Eroğlu lodged a formal complaint with the Ceyhan (Adana) public prosecutor’s office concerning, inter alia , ill-treatment which he had sustained during the impugned operation. On 7 July 2000 the Ceyhan public prosecutor’s office decided to transmit the case file to the Prosecutor inasmuch as it concerned the acts allegedly committed in Ulucanlar Prison.

110. Still on 9 June 2000, the applicant İnan Özgür Bahar lodged a complaint with the Ceyhan public prosecutor’s office and the Sub-Commission regarding the abuse which he had suffered. The Prosecutor invited the Ceyhan public prosecutor’s office to arrange for the applicant to be examined by a doctor in order to verify his claims.

On 6 July 2000 both applicants were questioned by the Ceyhan public prosecutor’s office regarding their complaints.

111. Between 25 July and 13 December 2000 the Prosecutor again interrogated many of the officers who had already been heard by the investigation committee (see paragraph 104 above), that is to say D.Yıl., A.Öz, İ.Ede, M.Kar., K.Özm., Ş.Alt., H.Sar., M.Olu., Ü.Soy., M.Hak., H.Ayd., İ.Kar., A.Güç., A.Ali., N.Kes., C.Ayg., T.Güz., A.İna., F.Apa., S.Yıl., İ.Ofl., M.Cih., A.Köy., T.Akb., M.Cey., B.Tan., Y.Çav., K.İbi., G.Özt., Y.Akt., G.Öza., Ö.Çiv., Y.Yed., S.Ünl., N.Atm., H.Güm., M.Çağ., A.Yan., M.Yap., A.Gem., B.Cey., Ş.Çak., H.Ok, B.Çiç., B.Öna., N.Kıl., A.Can, M.Bib., M.Arı., B.Bal., H.Kul., C.Boz., S.Yağ., B.Say., M.Öze., Ö.Yıl., C.Üna., A.Eme., S.Ata, Ş.Cab., M.Yüc., M.Yün. B.Usl., Ö.Öre., A.Tit., H.Sal., O.Özt., M.Kıl., S.Kıl., D.Bil., C.Ala., İ.Bil., C.Can., T.Güz. and Y.Sus.

Most of the latter reiterated their statements and contested any accusation of disproportionate use of lethal force.

Furthermore, gendarmes Y.Baş., C.Uçu., M.Yıl., A.Er, Ü.Şah., A.İma., M.Çet. and S.Erb. were questioned for the first time.

j) Proceedings against the members of the gendarmerie

112. Unlike the prison staff, who had benefited from a final discontinuance decision (see paragraph 106 above), the members of the gendarmerie were placed under formal investigation after the close of the administrative proceedings before the Governor of Ankara (see paragraph 108 above).

On 25 December 2000 the consequent additional criminal investigation led to the commencement of proceedings under indictment no. 2000/5455.

The Prosecutor accordingly referred 161 gendarmes to the 6 th Division of the Ankara Assize Court (“the AAC”) on charges of the murder of Mr Ümit Altıntaş, Mr Halil Türker, Mr Abuzer Çat and Mr Mahir Emsalsiz (List A), and bodily injury against 69 prisoners, including all the injured applicants (List B).

That being the case, in his indictment the Prosecutor requested that no penalty be imposed on the gendarmes in question on the grounds that they had acted quite legitimately for the sole purpose of executing their superior officers’ orders, and that in any case the perpetrators of the impugned acts were unidentifiable.

113. Several applicants, who had meanwhile been heard pursuant to letters rogatory, joined those proceedings as intervening parties, which gave rise to the opening of case no. 2001/13.

On 4 April 2001 the Prosecutor decided to take no action on the complaint lodged on 13 March 2000 by Ms Kırbıyık and registered under the third case no. 2001/16237 (see paragraph 85 above). Referring to the two sets of proceedings which were pending before the AAC and the 5 th Division concerning the same facts (cases nos. 2001/13 and 2000/175 respectively), he considered it sufficient to include that complaint in the case files currently under examination.

Ms Kırbıyık appealed against the decision to drop her complaint, arguing that the case pending under file no. 2001/13 only concerned members of the gendarmerie, whereas her complaint had also targeted the prison staff.

That appeal was dismissed by the President of Kırıkkale Assize Court.

114. The most important facts in relation to that judicial episode before the AAC are set out below.

The remainder of the information largely concerned procedural questions relating to amendments to the court records necessitated by changes to the composition of the bench, complementary witness and defence statements, determination of the addresses of certain appellants and defendants and the enforcement of warrants of escort or arrest warrants against defendants who were untraceable or had absconded.

Those subsidiary elements are summarised in Appendix VII.

115. At the 14 May 2001 hearing the applicant Hüseyin Çat lodged a fresh complaint on behalf of his late son Abuzer Çat, accompanied by a request to join the proceedings as an intervening party. A similar application was lodged on behalf of the applicant Sadık Türk and Şaban Kavaklıoğlu, the father of the late Mr İsmet Kavaklıoğlu.

The trial judges accepted Sadık Türk as an intervening party, but on the other hand, they pointed out that Kavaklıoğlu was not one of the complainants in the proceedings.

Counsel for Sadık Türk, joined by counsel for Yıldırım Doğan, sent several questions to be put to the defendants, asking, inter alia, which gendarmes had had firearms during the operation and which of them had actually used those firearms. Some of the defendants requested more time before answering, whereas A.Öz. immediately admitted having used an injured gendarme’s assault rifle; Z.Eng. pointed out that he had been in the midst of the operation and had used both his official handgun and a gendarmerie assault rifle; for his part, Ö.Yıl. said that he had used two weapons in addition to his official assault rifle.

The intervening parties also questioned M.Yüc. about the video recording which had been made from the watch tower where he had been stationed. The defendant denied the existence of any such recording.

116. On 6 June 2001 the prisoner/complainant H.E. was once again questioned pursuant to letters rogatory at Afyon Prison. He confirmed, in particular, that he had seen guns in the hands of İsmet Kavaklıoğlu and Nevzat Çiftçi.

117. On 9 July 2001 the complainants/applicants Melek Altıntaş and Filiz Uzal appeared in court. The latter identified C.Üna. as one of his torturers. Questioned by the complainant party, the defendants stated that they had only been informed about the operation the day before it was launched and that they did not know whether it had been planned earlier. They explained that they had all been carrying weapons in order to ward off any armed attacks, but that they had not used them, adding that they had seen prisoners killing two of their comrades who had wanted to surrender. Finally, they stated that they knew nothing about the circumstances under which the deceased prisoners had been stripped of their clothing.

118. During the proceedings on 17 October the complainants/applicants present set out their allegations in detail, complaining of the violent acts committed during and after the operation, and their lawyers requested a face-to-face meeting between their clients and their assailants, considering that they were capable of describing the latter.

The AAC adjourned the question of the expediency of such face-to-face meetings.

119. On 24 April 2002 some of the complainants’ lawyers appeared, as did, for the first time, the applicants Cemaat and Ocak, Esmehan Ekinci, and the defendant A.Eme., who contested all the accusations.

The applicants described their allegations in detail and provided a description of some of the presumed torturers.

The judges also heard H.M., an eye-witness from dormitory no. 7. He confirmed the substance of the applicants’ submissions, specifying that he had seen Abuzer Çat, Halil Türker and Ümit Altıntaş being killed while they were attempting to evade the bullets, but that he had not seen İsmet Kavaklıoğlu, who had allegedly been executed in the shower room after having been tortured.

120. At the hearing on 27 June 2002 the applicants stated that they had been unable to identify those responsible from the photographs on file, firstly because of the poor quality of the images and secondly because some of the gendarmes had been wearing masks during the operation.

121. On 25 December 2002 the applicants Melek Altıntaş and Hayriye Kesgin appeared, as did counsel for the defendants. In order to assist with the identifications, some twenty additional photographs had been put on file; having examined the latter, Ms Kesgin was unable to affirm that she recognised any faces, explaining that most of the members of the security forces in question had been wearing balaclavas and had raised their shields .

The AAC concluded that it would be unrealistic to try to use childhood portraits or pictures taken in a civilian context to identify fully equipped gendarmes operating in a gas- and smoke-filled environment. The judges therefore decided to exclude such evidence.

122. On 4 March 2003 the applicant Cem Şahin was heard. He reiterated his complaint, explaining that the persons who had beaten had included a head prison officer, one “Yusuf”, and a prison officer, one “Mehmet”.

123. On 9 June 2004 the applicant Şerife Arıöz was heard pursuant to letters rogatory in Isparta. Complementing her previous statements, she explained that the manner of quelling the prison riot in question had been unacceptable because the operation had been launched on an impromptu basis, without prior warning; she pointed out that previously it had been the prisoners in the female dormitory themselves who had called on the prison officers to carry out the presence check, which they had generally refused to do because they feared for their safety, even though, unlike the male dormitories, the female ones posed no problems. She added that she had fainted during the operation and could therefore not have committed the offences with which she had been charged.

124. On 1 February 2006 the judges took note of a letter in which the Gendarmerie Command stated that no video recordings had been made or photographs taken during the operation. The judges ordered that that matter should be clarified in consultation with the prison authorities.

125. Two more years passed before the case was ready for trial. The AAC delivered judgment on 24 September 2008. It found that, pursuant to Article 49 of the former Criminal Code, the defendants should be acquitted given that they had acted strictly within the framework of their duties, in accordance with the orders issued by their senior officers.

The applicants appealed to the Court of Cassation on points of law.

126. On 14 March 2012 the State Prosecutor with the Court of Cassation issued the following opinion:

– the appeals on points of law lodged by certain of the applicants (applicants nos. 13, 15, 16, 18, 20, 21, 23, 28, 35, 37, 38, 43, 44, 45, 50, 53, 54, 57, 58, 60, 63 and 64 on List B) through the intermediary of their lawyers were inadmissible, since the latter had no power of attorney;

– nevertheless, all the provisions of the impugned judgment should be invalidated on the grounds that the present case no. 2001/13 should have been examined in conjunction with case no. 2002/76 before the 5 th Division of the AAC (“the 5 th Division”), that is to say after assessment of all the evidence included in both case files.

127. The case is still pending before the Court of Cassation.

4. The applicants’ administrative proceedings against the State

128. Concurrently with their criminal appeals, all the applicants (List A and List B) filed claims for damages with the Ministries of Justice and the Interior, seeking compensation for the damage which they had sustained during and after the impugned operation.

In the absence of a reply from the authorities, amounting to a tacit refusal, some of the applicants brought proceedings against the State before various chambers of the Ankara Administrative Court.

129. It transpires from the case file that despite the dismissal of their prior claims, the following applicants (List B) failed to apply to the administrative courts: Ms Songül Garip, Ms Hayriye Kesgin, Ms Fadime Özkan, Mr Serdar Atak, Mr Aydın Çınar, Mr Küçük Hasan Çoban, Mr Bülent Çütçü, Mr İlhan Emrah, Mr Ertuğrul Kaya, Mr Ertan Özkan and Mr Özgür Saltık.

130. Moreover, some of the claims were discontinued as not having been lodged:

– on the grounds of non-payment of court fees despite reminders (applicants Şerife Arıöz, Filiz Uzal (Soylu), Zeynep Güngörmez, Ercan Akpınar, Fatime Akalın, Aynur Sız, Edibe Tozlu, Sibel Aktan (Aksoğan), Derya Şimşek, Filiz Gülkokuer, Sevinç Şahingöz, Esmahan Ekinci, Gürcü Çakmak, İnan Özgür Bahar, Gürhan Hızmay, Cem Şahin, Behsat Örs, Veysel Eroğlu, Cemaat Ocak, Özgür Soylu, Erdal Gökoğlu, Duygu Mutlu, Murat Güneş et Yahya Yıldız);

– on the grounds that the applicants were not accompanied by copies of the previous claims for compensation and/or because the full court fees had not been paid (applicants Gönül Aslan, Devrim Turan, Sadık Türk, Mehmet Kansu Keskinkan, Önder Mercan and Halil Doğan);

– in the absence of locus standi , the persons concerned having acted without the prior leave of their legal guardians (applicants Haydar Baran, Mustafa Selçuk and Enver Yanık);

– on unidentifiable grounds (applicants Kemal Yarar and Cemile Sönmez).

Information on the decisions given to that end, which had meanwhile become final, is provided in Appendix VIII-A.

131. On the other hand, applicants Şaban Kavaklıoğlu, Mehiyet Emsalsiz, Selame Türker, Ali Gençaslan, Hanım Çiftçi, Hasan et Hüseyin Çat, Firdevs Kırbıyık et Melek Altıntaş (List A), as well as applicants Resul Ayaz, Nihat Konak, Savaş Kör, Barış Gönülşen, Murat Ekinci, Başak Otlu and Cenker Aslan (List B) applied successfully and were awarded pecuniary and non-pecuniary damages.

In all those cases, the relevant Chambers of the Ankara Administrative Court based their decisions on the following reasons:

“The right to life is the most fundamental individual right. Accordingly, pursuant to Article 19 of the Constitution, which provides that ‘[e]veryone has the right to personal liberty and security’, that right is guaranteed by the Constitution, exceptions to which right are listed in the subsequent provisions of the same article. It transpires from those exceptions that custodial sentences passed by the courts are indeed cases in which a restriction of individual rights may be justified. However, where an individual must serve a custodial sentence ... it is always incumbent on the State to protect that individual’s fundamental right to life while in prison and, throughout his prison term, to take all the necessary action and precautions to that end. In the present case, it is clear that the authorities must account for official shortcomings as regards the events in question and the consequent loss of life; because the reason why prisoners were able to obtain the stones, iron bars, cudgels and firearms with which they attacked the security forces and were able so easily to organise a riot was that inadequate measures had been taken [to prevent such eventualities].”

132. The respondent party challenged all those judgments before the State Council, whose 10 th Chamber subsequently set them aside on the following grounds:

– failure to answer the question whether, and to what extent, the authorities had been involved in the occurrence of the events giving rise to the alleged damage (applicants Resul Ayaz, Cenker Aslan and Barış Gönülşen [List B]);

– lack of a causal link between the injuries complained of and any act attributable to the State agents (applicant Başak Otlu [List B]);

– the first-instance court had not had jurisdiction ratione personae , since the person concerned had not obtained prior authorisation from his guardian to seek locus standi (applicant Murat Ekinci [List B]);

– the break of the causal link between the damage and the act which the authorities had allegedly committed, as the persons concerned had played an active role in the incidents at issue and had only themselves to blame for their injuries (applicants Nihat Konak and Savaş Kör [List B] and the nine applicants on List A).

133. As regards the applicant Yıldırım Doğan (List B), his case was dismissed at first instance by the 8 th Chamber of the Ankara Administrative Court on the grounds of his presumed involvement in the impugned incidents. Nevertheless, the State Council also quashed that judgment, on the grounds that the mere fact that a military operation had had to be launched in order to impose discipline and order in a prison demonstrated that gross official negligence attributable to the State had been the root cause. The respondent authority’s application for rectification of the judgment was dismissed.

The 8 th Chamber insisted that its initial judgment should be upheld, being convinced that “the injuries complained of in the instant case had been attributable to Mr Doğan himself, which broke the causal link between the alleged damage and the act allegedly committed by the authority”.

The case was therefore sent back to the plenary State Council. The Court has not been informed of the outcome of those proceedings.

134. The known developments in the above-mentioned proceedings are summarised in Appendix VIII-B. They are still pending before the relevant courts, and the applicants still concerned by them are Melek Altıntaş, Hüseyin and Hasan Çat, Hanım Çiftçi, Mehiyet Emsalsiz, Ali Gençaslan, Şaban Kavalıoğlu, Selame Türker and Firdevs Kırbıyık (List A), and Resul Ayaz, Başak Otlu, Yıldırım Doğan, Cenker Aslan, Barış Gönülşen, Murat Ekinci and Savaş Kör (List B).

135. It should be recalled that before the State Council adjudicated, the authority found against at first instance had apparently made payments to the successful applicants (see paragraph 131 above). Once those judgments had been set aside, the authority instigated enforcement procedures in order to recover those sums, which were no longer payable.

It transpires from the case file that since 2011, some of the applicants have reimbursed the sums in question in part or in full.

5. Criminal proceedings against the applicants

136. Initially, the criminal case against 86 prisoners, including all the applicants on List B, had been registered under file no. 2000/47 before the 5 th Chamber pursuant to indictment no. 1999/79635 of 1 December 1999.

The victims/complainants in that case were, on the one hand, the 15 gendarmes injured during the operation (Appendix II), and on the other, the late prisoners A.D., Nevzat Çiftçi ( alias Habib Gül), Zafer Kırbıyık, İsmet Kavaklıoğlu and Önder Gençaslan (relatives of the applicants on List A).

137. On 1 December 1999, however, the Prosecutor – who had issued indictment no. 1999/79635 – concurrently gave a discontinuance decision. That decision concerned the deceased Mr Çiftçi ( alias Habib Gül), Mr Kırbıyık, Mr Kavaklıoğlu, Mr Gençaslan, Mr Altıntaş, Mr Çat, Mr Emsalsiz and Mr Türker (relatives of the applicants on List A) in their capacity as “victims/defendants”, as well as 27 non-applicant prisoners, in their capacity as “defendants”. The latter included İ.D. and E.D., whose submissions (see paragraphs 88 to 90 above) had played a major role in establishing indictment no. 1999/79635. In short, the Prosecutor decided to cancel the prosecution of the deceased persons on grounds of death, and he discharged the 27 prisoners in question on grounds of lack of evidence as regards the charges linked to the impugned riot.

138. Initially, by decision of 22 February 2000, the 5 th Chamber declined jurisdiction in favour of the 2 nd Chamber of the Ankara State Security Court, considering that the impugned acts had amounted to terrorist offences. On 3 April 2000, however, the latter court also declined jurisdiction ratione materiae and sent the case file back to the 5 th Chamber.

After that clash of jurisdiction was settled by the Court of Cassation, the case was finally reassigned to the 5 th Chamber, under a new file number (no. 2000/175).

The main stages in those proceedings may be summarised as follows. The other relevant information is to be found in Appendix IX, bearing in mind that the information goes no further than 5 July 2007.

139. The indictment included in the new case file closely followed that of 1 December 1999 (see paragraph 136 above), and its content is therefore mainly based on the statements of prisoners E.D. and Ä°.D. (see paragraph 137 above).

140. According to the Prosecutor, applicants Enver Yanık, Sadık Türk and Erdal Gökoğlu and former applicants Cemal Çakmak and Cafer Tayyar Bektaş had used firearms; during a quarrel between the rioters and the prisoners wishing to surrender, Enver Yanık and Cemal Çakmak had allegedly shot at the other three, considering them as traitors; Cemal Çakmak had brought a hunting rifle rolled up in a blanket, and fired it at A.D., Zafer Kırbıyık, İsmet Kavaklıoğlu, Küçük Hasan Çoban and Nevzat Çiftçi.

Consequently, in addition to the charges of serious bodily injury of the fifteen gendarmes against all the applicants, the Prosecutor accused Cemal Çakmak of having killed A.D., Zafer Kırbıyık and İsmet Kavaklıoğlu and injured Küçük Hasan Çoban with a hunting rifle. Still according to the Prosecutor, Önder Gençaslan had been killed by a bullet from handgun no. 245PY74657 (see paragraph 44 above), which had been subsequently found in dormitory no. 4; the person responsible for that crime was allegedly one of the five rioters Enver Yanık, Cemal Çakmak, Sadık Türk, Erdal Gökoğlu and Cafer Tayyar Bektaş; Nevzat Çiftçi had allegedly been killed later on by a bullet in the back following indiscriminate shots fired by the five aforementioned rioters.

141. On 5 December 2000 the 86 defendants challenged and lodged complaints against the judges of the 5 th Chamber; they withdrew from the case pending the decision of the 6 th Chamber of the same court, which had been called upon to adjudicate.

On 25 December 2000 the 6 th Chamber dismissed the grounds for challenging the judges but recorded its agreement to their withdrawal from the case in order to protect the court’s impartiality. A new bench of judges took over the case.

142. Following the failure of the attempt to join that case no. 2000/175 with case no. 2001/13 (see paragraph 126 above) – which had led to a temporary adjournment of proceedings – the present case had to be re-registered with the 5 th Chamber under the new file number 2002/76.

The parties to proceedings remained the same, and the records of the hearing in 2000 of some of the defendants/applicants pursuant to letters rogatory had meanwhile been added to the case file. All the latter had demanded leave to appear before the trial judges in order to defend themselves. Indeed, it transpires from the case file that initially, most of the applicants had acted in concert and submitted similar requests.

143. On 13 March 2002 the proceedings were reopened before the 5 th Chamber, which ordered some twenty procedural measures geared to summoning and hearing the defendants/applicants and the complainants.

Prior to 25 January 2006 the hearings had mainly served to relaunch those same measures and to add the few new statements obtained to the case file.

On 25 January 2006 the judges took note of the reply from the CDGA, explaining that it had been unable to accede to the request for urgent transmission of the video recordings made and the photographs taken during the impugned operation on the grounds that it was not in possession of the material in question.

144. According to the latest information, the 5 th Chamber had scheduled a hearing for 4 October 2007. The Court has no documentation on the progress of the proceedings in question, which is being conducted under file no. 2002/76 and has not yet been concluded because not all the defence statements of the persons involved have been collected, nor have all the measures ordered by the judges been enforced.

…

THE LAW

…

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION UNDER ITS SUBSTANTIVE LIMB

A. The parties’ submissions

1. The applicants

153. As they did during the assessment of admissibility, the applicants submitted that in the instant case the impugned operation had in no way been intended to quell a riot, a prison break-out, an attack against the prison staff or a prisoner takeover of a security zone.

They pointed out that the prisoners’ actions had lasted only twenty-four hours and had ended when the adjacent dormitory had been annexed to dormitory no. 5, and that over the subsequent twenty-three days no further incident had been reported. They submitted that it had been a case neither of an insurrection nor of an attack, which would by definition have required the use of force, but of the occupation – which had clearly met with official disapproval – of premises which they had effected in order to highlight an urgent need for living space.

154. They considered that in any case, even supposing that that action might have justified intervention, the latter should have been solely aimed at evacuating the said premises and imposing the appropriate disciplinary or administrative measures on the prisoners in question. The fact was that the prisoners had been killed, either at a distance by assault rifles or after having been tortured in the shower room, in particular.

In that connection, the applicants deplored the fact that the gendarmes, who, they maintained, should have been equipped with various neutralising devices, have observed to the letter the regulations on the use of firearms, and have been trained to control individuals with respect for their right to life, had opened fire without even waiting for the non-lethal chemical substances to take effect; as regards the prisoners affected by gas, instead of being apprehended they had been dragged along the corridors, beaten and, in some cases, executed.

155. According to the applicants, the force used in the present case could in no way be considered as having pursued a legitimate aim within the meaning of Article 2 § 2 of the Convention, and even less so as having been proportionate. The impugned operation had boiled down to a premeditated, planned massacre, and the authorities’ version to the effect that prisoners had killed each other was a complete fabrication.

In that regard, the applicants drew attention to the common features shared by the prisoners who had allegedly been killed by their comrades: they had all been spokesmen or dormitory leaders who had attracted the ire of the authorities. They submitted that the photographs of their corpses had shown obvious signs of serious ill-treatment, which, they said, proved that they had been either tortured and then killed or injured by gunshots and then tortured to death. They argued that none of the prisoners could have had the time or means of successively inflicting such acts of violence while such an operation was in hand. They added that it would be ludicrous to think that prisoners animated by so much mutual hatred could have lived together for years, until such times as a military raid enabled them to kill each other at last.

156. The applicants also contested the official thesis of “armed prisoners”, and put the following questions:

– was it certain that the arms allergy discovered in the dormitories, were not unregistered weapons held by the “Counter-Guerrilla” which existed within the security forces?

– could it seriously be believed that the prisoners had hoped that with a few handguns they could overcome a company of gendarmes armed with assault rifles?

– why, over the years, had the prisoners never thought of using those weapons in Ulucanlar to achieve their alleged insurrectional ends?

Furthermore, the applicants pointed out that the first reports on searches did not mentioned any Kalashnikovs or hunting rifles held by the prisoners, which arms were much harder to conceal than a few handguns. They added that no State agents had been injured by a Kalashnikov or a hunting rifle. As regards the two prisoners who had reported the presence of such firearms in the dormitories (see paragraphs 88 to 90 above), the applicants affirmed that they had only been repeating an official version, which had been confirmed by the prosecution’s lenient treatment of those informers.

The applicants therefore considered that the weapons in issue could quite easily have been subsequently planted on the premises by gendarmes in order to simulate a legitimate response against the rebels. Nor did the applicants rule out the possibility that in the heat of the moment in a chaotic, confined space, unexperienced conscripts had been injured by ricocheted bullets.

157. The applicants considered that, in response to the questions which they had raised, the authorities could not minimise their responsibility on the grounds of the appalling dilapidated conditions prevailing at Ulucanlar. They could not be expected, on the sole basis of their ideological differences, to tolerate their conditions of detention without protest. Moreover, in their view, it had been strictly on the basis of those conditions that the prison authorities had always agreed to parley with the dormitory spokespersons and to sign protocols on stop-gap solutions.

Nor did the applicants consider that the authorities could rely on the quantity of provisions stored by the prisoners or the number of kitchen utensils, heaters and other facilities in their possession; they stated that they themselves had had to provide such amenities in order to survive, as the authorities were incapable of meeting their vital needs.

158. In short, the applicants submitted that all the prisoners’ demands had been dictated by the imperatives of “communal” life and that their actions had been commanded by their aspiration to decent living conditions. The authorities, however, had seen that situation as a “state of emergency” to be decreed against “armed terrorists” belonging to “organised groups of political assailants” preparing to endanger the State.

159. In support of their submissions the applicants presented a body of evidence, including a compilation of video recordings made by extreme left organisations. Entitled Don’t be silent on massacres , that propagandist documentary criticised the deaths and violence which had occurred during the so-called “Return to Life” operations [23] (see, for example, Vefa Serdar v. Turkey, no. 7309/04, §8, 27 January 2015), which the security forces had conducted in various Turkish prisons. Even though the intervention in Ulucanlar Prison had not been a “Return to Life” operation, the documentary showed images of the bodies of the applicants’ eight imprisoned relatives (List A).

2. The Government

160. In its first written observations of 7 January 2008, the Government had stated that they would be unable to answer the questions put to it by the Court at the time of communication of the case until the conclusion of the current criminal proceedings before the 6 th Chamber of the AAC. They therefore invited the Court to “suspend the examination of the application on the merits” pursuant to the principle of the subsidiarity of the Convention protection mechanism and reserved “the right to submit subsequent observations and documents”. However, in the light of the Court’s decision to terminate, in the present case, the application of Article 29 § 3 of the Convention (see Şaban Kavaklıoğlu and 73 Others , decision cited above, § 45), the Government communicated its observations on the merits.

161. First of all, the Government acknowledged that they had been aware of the problems concerning prison life at Ulucanlar since 1996. They referred to numerous exchanges of information among the competent authorities, and submitted that the main problem had been the fact that it had proved impossible to transfer the 73 ringleaders to establishments to which they could have returned following their medical treatment.

Nevertheless, the Government provided no explications concerning the specific question put by the Court concerning the measures which had been envisaged and/or taken to remedy those problems at an early stage.

162. As regards the episode in question, the Government referred, in particular, to the reports on the seriousness of the situation observed in Ulucanlar Prison between 2 and 20 September 1999 and on the conduct of the impugned operation; they relied on the legitimacy of the aim pursued in the instant case by the security forces, which had been mandated to conduct a “general search” with a view to containing the said situation.

In that regard, they criticised the extent of the violence generated by the rioters, who had ignored all the announcements and warning given, had used all sorts of weapons and home-made devices, including handguns and explosives, and had allegedly killed fifteen gendarmes, five of them shot dead and two struck by blunt instruments (see Appendix II). The Government said that the rioters had also killed Zafer Kırbıyık, İsmet Kavaklıoğlu, Nevzat Çiftçi ( alias Habib Gül) and Önder Gençaslan and had injured the applicant Küçük Hasan Çoban.

163. Accordingly, the Government, referring to the Court’s findings in Gömi and Others v. Turkey (no. 35962/97, 21 December 2006) and Ceyhan Demir and Others (cited above), considered that the actions of the rioters in the present case had rendered strictly necessary the ultimate recourse to lethal force, and that that force had been proportionate to the violence which had been perpetrated by the prisoners in question during the riot.

The Government therefore rejected any allegation of deliberate killing, citing the example of the fact that no firearms had been used to evacuate the prisoners belonging to the PKK or to control the female dormitory, where neutralising devices had proved sufficient. In that connection, the Government emphasised the weight of the following case-law (see Gömi and Others , cited above, § 55):

“In the light of the facts before it and in view of the circumstances examined above, the Court considers it unnecessary to speculate in abstracto on the potential expediency of using other neutralising methods. In that regard, the Court’s task is not to substitute its own assessment of the situation for that of the security forces and thus to impose the use of other neutralising devices such as stun grenades. It is clearly desirable that such facilities be widely used in order gradually to restrict recourse to methods likely to cause death. However, to establish such an obligation of principle without having regard to the circumstances of the individual case would impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others, particularly in view of the foreseeability of human nature (see, mutatis mutandis , Andronicou and Constantinou v. Cyprus , 9 October 1997, § 192, Reports of Judgments and Decisions 1997 ‑ VI).”

164. As regards tangible evidence for the involvement of certain applicants and their relatives in the impugned violent acts, the Government said that they had based their conclusions on official documents, including the indictment of 1 December 1999 referring 86 prisoners to the AAC 5 th Chamber (see paragraph 136 above); they also referred to the reports drawn up in the present case, and in particular the submissions of E.D. and İ.D. (see paragraphs 88 to 90 above), which had, they stated, been taken into consideration by the prosecution. They further mentioned the witness statements given by the four injured gendarmes (Z.Eng., N.Kar., C.Doğ. and E.Ayd.), the medical information on Önder Gençaslan, Nevzat Çiftçi, Zafer Kırbıyık and İsmet Kavaklıoğlu – who had died – and Küçük Hasan Çoban – who was injured – and, finally, all the ballistic reports included in the case file.

In the light of all that data, the Government voiced their conviction of the relevance of the charges of murder or attempted murder against the applicants Enver Yanık, Sadık Türk and Erdal Gökoğlu and the former applicants C.Ç. and C.T.B., as well as the charges of serious bodily injury, assault and destruction of public property against the other applicants, including Savaş Kör in particular.

165. As regards the question of protecting the lives of the applicants’ relatives (List A) from other prisoners – which the Government had raised themselves – they merely pointed out that among the rioters who had died, İsmet Kavaklıoğlu and Nevzat Çiftçi had fired handguns, whereas, according to the Government, after the tear-gas canisters and clear warnings had failed to have any effect, the gendarmerie forces had done everything within their power to “break down resistance with a view to protecting the lives of all the prisoners”.

166. As regards the alleged involvement of prison staff in smuggling firearms into Ulucanlar, the Government submitted that a criminal investigation had been instigated against nine prison officers on charges of negligence in the discharge of their duties, ending in a discontinuance decision in the absence of concrete evidence. According to the Government:

“... apart from the two head prison officers, the other defendants had been recently appointed to those duties ... the exact date of the entry of the weapons into the prison was unknown and ... it had been a long time since any general search had been conducted of the ‘terrorist’ prisoners’ dormitories.”

167. In reply to a question from the applicant party (see paragraph 153 in fine above), the Government stated that demolishing the wall of dormitory no. 7 in order to expel those housed in that dormitory and then unlawfully occupying was not the expression of a legitimate need for more living space.

B. The Court’s assessment

1. General principles

169. As transpires from the wording of Article 2, the use of lethal force by the security forces may be justified under certain circumstances. However, Article 2 does not grant them carte blanche. The use of the words “absolutely necessary” indicates that the force used must, in particular, be strictly proportionate to the aims mentioned in Article 2 § 2 (a), (b) and (c) (see, among other authorities, Aydan , cited above, § 65; Finogenov and Others , cited above, § 210; and Gül v. Turkey , no. 22676/93, §§ 77 and 78, 14 December 2000).

170. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident (see, among other authorities, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 96 and 97, ECHR 2005 ‑ VII, and Finogenov and Others , cited above, § 207). Members of the security forces should not be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect (see Makaratzis v. Greece [GC], no. 50385/99, §§ 58 and 59, ECHR 2004 ‑ XI, and Anık and Others v. Turkey , no. 63758/00, § 54 in fine , 5 June 2007 – for the UN basic principles on this matter, see Aydan , cited above, § 47).

171. In particular, law enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value (see Nachova and Others , cited above, § 97; see also in McCann and Others v. the United Kingdom , 27 September 1995, §§ 211 to 214, Series A no. 324, the Court’s criticism of “shoot-to-kill” military training).

172. When lethal force is used by the authorities within such an operation, it is often difficult to separate the State’s negative obligations under the Convention from its positive obligations under Article 2 (see Finogenov and Others , cited above, § 208). When considering a case of that kind, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, and take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination (see Musayev and Others v. Russia , nos. 57941/00, 58699/00 and 60403/00, § 142, 26 July 2007; Erdoğan and Others , cited above, § 68; Nachova and Others , cited above, § 93; and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII [extracts]). That applies even where domestic proceedings and investigations have already taken place (see Bektaş and Özalp v. Turkey , no. 10036/03, § 59, 20 April 2010, and Erdoğan and Others , cited above, § 71).

173. The Court will examine whether the police operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses, and whether all feasible precautions in the choice of means and methods of a security operation were taken (see Finogenov and Others , cited above, § 208; Bektaş and Özalp , cited above, § 57; Anık and Others , cited above, § 54 in limine ; Erdoğan and Others , cited above, § 69; Isayeva , cited above, § 175; Hugh Jordan v. the United Kingdom , no. 24746/94, §§ 102-104, 4 May 2001; Ergi v. Turkey , 28 July 1998, § 79, Case-Law Reports 1998-IV; Andronicou and Constantinou , cited above, §§ 171, 181, 186, 192 and 193 ; and McCann and Others , cited above, §§ 146-150 and 194).

174. However, it should not be forgotten in that regard that the positive obligations under Article 2 of the Convention are not unqualified: not every presumed threat to life obliges the authorities to take specific measures to avoid the risk. A duty to take specific measures arises only if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life and if the authorities retained a certain degree of control over the situation. Since a respondent State is only required to take such measures which are “feasible” in the circumstances, the positive obligation in question must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Finogenov and Others , cited above, § 209, with the references therein).

175. In that context it should also be remembered that the use of force by State agents in pursuit of one of the aims set out in Article 2 § 2 may be justified under that provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see Makbule Kaymaz and Others v. Turkey , no. 651/10, § 100, 25 February 2014; Aydan , cited above, § 67; Andronicou and Constantinou , cited above, § 192; and McCann and Others , cited above, § 200).

2. Application of the aforementioned principles to the present case

(a) As regards the late Mr Ümit Altıntaş, Mr Abuzer Çat, Mr Nevzat Çiftçi, Mr Mahir Emsalsiz, Mr Halil Türker, Mr İsmet Kavaklıoğlu, Mr Zafer Kırbıyık and Mr Önder Gençaslan

176. When called upon to examine whether the use of lethal force was legitimate in a case in which individuals were, as in the instant case, injured or killed in an area exclusively controlled by the State authorities, the Court has a limited capacity for establishing the facts. As a result, and in line with the principle of subsidiarity, the Court prefers to rely, where possible, on the findings of competent domestic authorities, such as the parliamentary body which intervened in the present case (see paragraph 52 above) (see Perişan and Others v. Turkey , no. 12336/03, § 75, 20 May 2010, and Ceyhan Demir and Others , cited above, § 95), without completely renouncing its supervising power, on the understanding that in the instant case it may entertain a fresh assessment of the evidence (see, mutatis mutandis , Finogenov and Others , cited above, § 237, and the references therein).

177. It is undisputed in the present case that in Ulucanlar Prison on 26 September 1999, shortly after the beginning of the operation at around 4 a.m. (see paragraph 34 above), there was a confrontation between the security forces and some one hundred leftist prisoners who had been occupying dormitories nos. 4 and 5 and the female dormitory.

The assessment set out below will concentrate exclusively on the circumstances of the action against dormitories nos. 4 and 5 (see paragraph 36 above), following which Mr Ümit Altıntaş, Mr Abuzer Çat, Mr Nevzat Çiftçi, Mr Mahir Emsalsiz, Mr Halil Türker, Mr İsmet Kavaklıoğlu, Mr Zafer Kırbıyık and Mr Önder Gençaslan died of gunshot wounds (see paragraphs 37, 38 and 41 above) (Annexe III).

i. The underlying aim of the use of lethal force

178. The applicants submitted that the authorities’ real intentions had had nothing to do with any of the grounds listed in Article 2 § 2, that is to say: (a) defending any person from unlawful violence; (b) effecting a lawful arrest or preventing the escape of a person lawfully detained; and (c) quelling a riot or insurrection. They considered that even supposing that a military intervention had been necessary, it should only have concerned the evacuation of dormitory no. 7, which had been occupéd for twenty-three days, and the imposition of disciplinary sanctions on the guilty parties. The fact was that the impugned operation had amounted to a well-planned massacre (see paragraphes 154 and 155 above).

179. The Government replied that the security forces had acted for the sole purpose of conducting a “general search” and that recourse to lethal force had been necessary solely against the rioters who had put up violent resistance by taking up arms, whereas no such measure would have been required to control the situation in the female dormitory (see paragraphs 35 and 163 above).

180. According to the Court, although the aim of conducting a “general search” (see paragraph 162 in limine above) is unrelated to those listed in Article 2 § 2 of the Convention, it should nonetheless be interpreted in the light of the request submitted on 25 September 1999 by the prison administration (see paragraph 29 above) based on the apparent need to “protect the prison staff” mandated to conduct the said search.

If sole regard were had to the letter of the discontinuance decision of e 30 December 1999 (see paragraph 106 above), such a need could not have been deemed relevant, because, according to the Prosecutor, the prison staff, who had been ordered to wait outside the building, had not “actively participated in the operation”. However, the Court is convinced that that indication relates to the episode consequent upon the first acts of violence which had occurred shortly after the gendarmes had entered the building. It transpires from the sparse information on the role of the prison officers and warders during the operation that, following the Molotov cocktail attack on junior officer M.E., the prison staff had taken refuge behind the gendarmerie units (see paragraph 34 above); that was probably when they received the order to leave the building.

Accordingly, the Court considers that it can accept that, at least for an initial period, the aim pursued by the authorities had been compatible with that set out in Article 2 § 2 (a).

181. The total number of armed personnel deployed in the instant case (a response team comprising 211 gendarmes and 59 gendarme officers, an auxiliary team comprising 50 gendarmes and 9 officers, a commando unit, four squadrons of special forces and an unknown number of police officers – see paragraphs 30 and 31 above) demonstrates that the authorities had anticipated potentially violent resistance and been determined to take exceptional action to regain control over Ulucanlar Prison. The Court will come back to this point, but at the outset it must disagree – as did the Sub-Commission (see paragraph 56 above) – with the applicants when they attempt to minimise the seriousness of the situation by limiting it temporally and factually (see paragraphs 153, 157 and 178 above): the situation could not be explained solely by a purportedly legitimate occupation of dormitory no. 7 by leftist prisoners demanding more room and better conditions of detention, but probably had more to do with a series of acts of disobedience, which were carried out in protest but were also unlawful, and constant breaches of the prison rules, particularly as regards presence checks, curfews, inter-prisoner contact and prison staff security.

The Court is aware of the potential for violence in prison and the risk of violent acts quickly breaking down into active resistance against the law enforcement agencies, or even an insurrection (see Leyla Alp and Others v. Turkey , no. 29675/02, § 84, 10 December 2013; Perişan and Ohers , cited above, § 78; İsmail Altun v. Turkey , no. 22932/02, § 73, 21 September 2010; and Gömi and Others , cited above, § 57). Even though the Court cannot make any final factual findings, it observes that that is what seems to have happened in Ulucanlar Prison; shortly after entering the building the gendarmes met with barricades and forceful resistance, and once the first slogans had been chanted and the first Molotov cocktail thrown (see paragraph 34 above), the prisoners’ actions gradually evolved into an attempted uprising.

182. After that stage, it was no longer a matter of protecting civil servants responsible for carrying out searches (see paragraph 180 above), but of quelling a potential insurrection (see Perişan and Others , cited above, § 78, and Ceyhan Demir and Others , cited above, § 97). Therefore, the requisite measures could embrace potentially lethal force, which could be reconcilable with the aims set out in Article 2 § 2 (a) and (c) of the Convention, especially § 2 (c).

183. However, although the use of force was justifiable in the instant case, a fair balance should clearly have been struck between the aims and the means used to achieve those aims. Having regard to the number of dead and injured in the present case (see paragraph 39 above), the question arises whether the impugned acts exceeded the degree of the recourse to force which was absolutely necessary. In that regard the Court considers that it must first and foremost assess the manlier in which the operation was prepared and controlled (see Vlaevi v. Bulgaria, nos. 272/05 and 890/05, § 69, 2 September 2010).

ii. The issue of the “predictability of the hazard”

184. The Court has already held that it may occasionally depart from that rigorous standard of “absolute necessity” if its application is simply impossible, especially where certain aspects of the situation lie far beyond the Court’s expertise and where the authorities had to act under tremendous time pressure and where their control of the situation was minimal. On the other hand, it has also considered that the more predictable a hazard, the greater the obligation to protect against it (see Finogenov and Others , cited above, § 211, and, mutatis mutandis , § 243).

In the present case the Court considers that it can conduct a very strict scrutiny of the impugned operation because, as regards predictability, the situation here was highly exceptional. In the instant case the Turkish ministerial, prison, judicial, gubernatorial and military authorities (see paragraphs 7 to 9 above) had been aware of the situation in Ulucanlar Prison at least since January 1996. It is true that among the cases against Turkey concerning anti-riot operations in prisons (for a full list see Vefa Serdar , cited above, § 76) similar situations had been noted (see, for example, Düzova v. Turkey , no. 40310/06, § 42, 5 June 2012, and İsmail Altun , cited above, §§ 37 and 46), but the ability of the Court to properly assess that aspect had been impeded by the fact that little information had been available on the subject, which does not apply to the present case.

185. In that regard, the Government’s recognition of the problems arising from the fact that the authorities had lost control of prison life in Ulucanlar in 1996 has no effect in terms of the provisions of Article 2, not only because no explanation was provided on the concrete measures taken or merely envisaged in order to prevent the problems from escalating over the years (see paragraph 161 in fine above), but also because, in any event, those problems in no way discharge the State from its responsibility vis-à-vis the planning and execution of the impugned operation.

The Court reaffirms that “the State’s loss of effective control of its prison – for several years, according to the authorities – is the result of shortcomings in the organisation or normal operation of the public service, for which the State alone can be held responsible” (see İsmail Altun , cited above, §§ 85 and 70 respectively; see also Makbule Akbaba and Others v. Turkey , no. 48887/06, § 36, 10 July 2012, and Peker v. Turkey (no. 2) , no. 42136/06, § 51, 12 April 2011).

iii. Planning and execution of the operation: the authorities’ reluctance to intervene

186. Coming back to the facts of the case, the Court recalls the first operational plan of 5 January 1996, based on the belief that leftist prisoners were preparing a mass break-out (see paragraphs 8, 10, 17, 18, 21, 26 and 28 above), the second plan of 2 August 1996, which had reflected the States determination to combat “terrorist organisations” (see paragraphs 9 and 158 above), and the request for intervention of 7 August 1998, grounded on fresh threats, including connivance between members of the prison staff and the leftist prisoners (see paragraphs 10, 47, 49 and 68 above). Although none of those plans were ever implemented, they are nonetheless indicative of the fact that the authorities were well aware that they were confronted with potentially armed belligerents obeying a hierarchy led by “terrorist” organisations and capable of obtaining all sorts of prohibited items in the prison.

187. Despite that situation, the Court observes that from 4 September 1998 onwards the authorities gave the leftist prisoners in dormitories nos. 4 and 5 and the female dormitory (“the three dormitories”) special treatment, which dormitories had virtually never been inspected since 1996.

On 6 September 1998 a general search was finally conducted in Ulucanlar Prison, but, although the gendarmerie had had different plans (see paragraph 12 above), the prison authorities had decided to exclude the three dormitories from the search. The operation was conducted in the other parts of the prison without any particular problem (see paragraph 13 above), apart from angering the leftist prisoners, who allegedly began a series of protest actions (see paragraph 14 above). Among other things they plundered the kitchen, the dispensary and the canteen, storing away all the foodstuffs and other items which they had purloined.

The authorities considered those prisoners as rioters who had secured a degree of independence inside the prison, which had probably greatly perturbed Lieutenant-Colonel A.Öz., the commander of the operation (see paragraph 65 above).

188. On 9 September 1998 an interview was arranged between the spokespersons of the three dormitories and an official delegation (see paragraph 15 above). This interview had no practical results.

189. A second general search was planned for the next day. In view, in particular, of the number of weapons, including Molotov cocktail ingredients, and the defence structures discovered in the rest of the building (see paragraph 16 above), the authorities must have known what the situation was in the three dormitories, which had never previously been inspection and were deemed the most dangerous. Nevertheless, the authorities once again excluded them from the searches.

190. Between January and July 1999 the gendarmerie received many complaints to the effect that the leftist prisoners were still in possession of weapons and had begun to dig an escape tunnel (see paragraph 17 above). In February 1999 the beginnings of an 18-m long tunnel was discovered and blocked up; the CDGA alerted the authorities to a new factor which it claimed had emerged in the meantime: the “terrorists” in different prisons across the country were communicating with each other by mobile telephone in order to plan joint actions.

The CDGA had known since 20 July 1999 that “potentially dangerous” leftist prisoners were preparing to react to a possible intervention by the security forces (see paragraph 20 above). The CDGA even knew which prisoners in Sector 3 would break ranks with the potential rioters in the event of a security operation. In fact, it had been well known since 7 August 1998 that the leftist prisoners had been on guard in the corridors in anticipation of a military raid (see paragraphs 10 and 34 in limine above; see also the statements of the applicant Duygu Mutlu, Appendix V).

191. On 2 September 1999 the leftist prisoners took over dormitory no. 7 and expelled its occupants. The prison authorities then called on the gendarmerie, knowing that the intelligence services had meanwhile confirmed that the prisoners possessed at least three handguns and had provided the names of the prison officers who had helped smuggle those items and other prohibited objects into Ulucanlar Prison (see paragraphs 23, 27 and 67 above).

For the third time the ministerial authority prohibited the launch of any kind of operation, and there is nothing to suggest that nay alternative solutions were envisaged in order to deal with the said occupation, which was to persist until the critical date.

iv. The “premeditated lethal operation” hypothesis

192. The applicants (see paragraph 178 in fine above) agreed on the theory that the impugned operation had all the hallmarks of a premeditated massacre.

193. The Court accepts that the continued reluctance of the administrative authorities to take early action in the three dormitories despite the proven critical situation may have influenced the choices of those authorities and of the gendarmerie before instigating the impugned operation.

However, the Court, detached from the events at issue, takes the view that those factors are insufficient to establish the existence in the competent ministries, the prosecutor’s office and/or the military command, of a plot or a conspiracy to execute any particular leftist prisoner(s). Nor has it been proved that during the operation the gendarmes received an explicit order to that precise effect from their commanding officers (see paragraphs 202 and 203 above) (for comparable situations, see, among other authorities, Finogenov and Others , §§ 217-218; Erdoğan and Others , § 75; and McCann and Others , §§ 180 and 183, all cited above).

v. The “spontaneity” dimension and the authorities’ room for manoeuvre

194. It remains to be seen, first of all, whether the gendarmes had been properly briefed so as to impress upon them the need to discharge their duties with all the precautions to be expected from law enforcement agents in a European democratic society (see Mansuroğlu , cited above, § 88, and Erdoğan and Others , cited above, §§ 77 and 78), even when dealing with prisoners whom they might consider as dangerous “terrorists” (see, mutatis mutandis , McCann and Others , cited above, § 212).

The Court will continue its assessment with particular reference to this aspect, drawing on the events subsequent to 2 September 1999, that is to say the start of the last period during which the authorities were in full control of the situation inside the prison and completely aware of the potential dangers. The authorities had a great deal of information, which had been repeatedly confirmed, and had had some twenty-three days for final consideration and for making the necessary preparations to ward off those dangers on the basis of a plan tailored to that kind of crisis.

195. Consequently, in line with the Sub-Commission’s conclusion on this point (see paragraph 58 above), the Court considers that it can already conclude that no phase of the impugned operation can in itself be deemed to have been spontaneous, and that no State agent or gendarme can be deemed to have reacted “in the heat of the moment” (see, for example, Makbule Kaymaz and Others , cited above, § 112, and Anık and Others , cited above, § 64, 5 June 2007) to an honestly perceived danger to his or her life (see, among other authorities, Bubbins v. the United Kingdom , no. 50196/99, § 139, ECHR 2005 ‑ II [extracts]) or to another person’s life (see Andronicou and Constantinou , cited above, § 192) (see paragraph 175 above).

In the present case, in which several individuals were injured or died while under the control of the State authorities and/or agents, if the Government fail to provide a satisfactory and convincing explanation, strong inferences may be drawn from their attitude (for the principle, see Aydan , cited above, §§ 68-71; Finogenov and Others , cited above, § 237, with the references therein; and Mansuroğlu , cited above, §§ 78 and 79).

vi. The intervention plan and numbers of gendarmes deployed

196. Bearing that in mind, the Court notes that on 4 September 1999 the secret services had discovered that the problem was no longer limited to an insurrection planned by the Ulucanlar inmates; according to the information available it was a case of a wide-ranging general plan, established in several prisons, of resistance against any intervention on the authorities’ part, with the ultimate aim of triggering a series of simultaneous riots and break-outs. Clearly, the secret services considered that the risks, which had previously merely been suspected, had become imminent.

On 20 September 1999, therefore, the prison administration requested a general inspection of the three dormitories, where the presence of at least two handguns had once again been confirmed (see paragraphs 23 and 27 above). Five days later the prison administration repeated its request, which this time was granted (see paragraph 29 above).

On the same day, that is to say 25 September 1999, Secret Action Plan no. 15541 (“the Plan”) was drawn up by the gendarmerie authorities.

197. In addition to the auxiliary forces, the Plan provided for a main body of at least 250 gendarmes and some 70 fully equipped gendarmerie officers bearing their service arms, that is to say at least 29 pistols, 31 machine guns and 124 automatic assault rifles (see paragraphs 30 to 32 and 98 above).

The Court lacks the requisite expertise to assess whether and to what extent the deployment of such a heavily armed force was necessary in the circumstances of the case, but it is convinced of one thing: in January 1996, long before the situation came to a head, it had been considered that some twenty gendarmes would be sufficient to carry out searches in Ulucanlar (see paragraph 8 in fine above). At all events, the Court will not dwell on this point because the main question is whether that force had been directed and supervised in such a way as to minimise the risk to life and limb (see paragraphs 172 and 173 above).

vii. The issue of the gendarmes’ operational capacities

198. In that context, the Court is prepared to assume that the gendarmerie officers and junior officers, as well as the police auxiliary teams which participated in the operation had been professionally prepared for coping with this type of incident, if only as regards operational tactics and the use of arms; on the other hand, like the Sub-Commission (see paragraph 63 above), it cannot be quite so affirmative in connection with the conscripts – a total of some 250 young people on compulsory military service (see, for example, Perişan and Others , cited above, § 80). Since the case file does not refer to the training provided for such conscripts (see, mutatis mutandis , McCann and Others , cited above, § 212), the Court has no basis for considering that they were fit to participate in such an operation, on the understanding that the afternoon of training in body search procedures (see paragraph 30 above) which they had supposedly followed is immaterial in this regard.

viii. The question of a regulatory framework

199. That observation leads on to a second one of a regulatory nature. The Court reiterates that in cases concerning intervention by the security forces in prison it has criticised the lack of strict regulations capable of providing the requisite level of protection, particularly in cases such as the present one where recourse is had to potentially lethal force (see İsmail Altun , cited above, § 76, and Perişan and Others , cited above, § 82). The Court therefore once again wonders whether the impugned operation, even if it was authorised by national law, might be deemed sufficiently regulated by that law within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force (see, mutatis mutandis , Akpınar and Altun v. Turkey , no. 56760/00, § 50, 27 February 2007, and Hilda Hafsteinsdóttir v. Iceland , no. 40905/98, § 56, 8 June 2004).

200. That being the case, whatever the shortcomings in the relevant regulations at the material time, there was nothing in the instant case to prevent the authorities from remedying those shortcomings, in practice, by providing the gendarmes with practical instructions before and during the operation. This is the issue which the Court must therefore now address.

ix. Instructions and orders

201. In the present case, no specific instructions were given prior to the operation concerning the requisite form and intensity of the use of lethal force in order to keep the latter to a minimum (see İsmail Altun , cited above, § 75; cf. Ceyhan Demir and Others , cited above, § 98), the strategy implemented having been based on basic orders regarding the use of service arms.

According to the Plan, the “junior officers” had been ordered to use their weapons in the event of “armed resistance”. According to the statements given by the officers and junior officers in question (see paragraphs 105 and 111 above), the commanding officers had ordered them only to use their weapons, during the operation, against persons who were themselves using weapons, and solely to target such persons.

A second order was also given: during the operation, to prevent the “group leaders” from inciting the others (see paragraph 30 above); however, that instruction apparently had no beneficial effect since, among the presumed group leaders, that is to say Sadık Türk, Halil Türker, Nevzat Çiftçi and Nihat Konak (see paragraphs 15 and 88 to 90), only the first escaped the gunfire.

202. Nor does the case file refer to the orders and instructions received by the almost 250 armed conscripts before and during the operation. The Government having been unable to specify which of the junior officers and conscripts had fired the live rounds or identify the owners of the service arms which had caused the deaths (see paragraph 98 above), it must be assumed that the conscripts took part in the confrontations, and although it would be unreasonable to suggest that they had acted on their own initiative, it seems obvious that they had not been provided with clear instructions (see paragraph 170 above).

Under those circumstances, as the Sub-Commission rightly noted (see paragraph 63 above), those young conscripts, who probably lacked the requisite know-how (see paragraph 198 above), were at a grave risk of perceiving any person designated as an “adversary” by their commanding officers as an “enemy”, and of acting accordingly, “as if they were facing a group of terrorists”.

203. In sum, the authorities ought not to have relied on such a rudimentary and vague regulatory framework, which rendered the use of lethal force virtually inevitable. The authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to personnel who they knew had been trained to kill and would automatically use their firearms if they were convinced that they were facing formidable enemies in the framework of an anti-terrorist operation (see, mutatis mutandis , McCann and Others , cited above, § 211).

x. Alternative strategies

204. In order to do so, as the Court has already emphasised (see paragraph 195 above), the authorities had had ample time to plan their actions and to anticipate the leftist prisoners’ conduct, without having to shoulder an unrealistic burden. Moreover, it should not be forgotten that at that early stage, however intolerable those prisoners’ behaviour might have been, they had not yet become a very severe threat liable to seriously endanger the lives of their fellow-prisoners and the prison staff.

The Court is therefore not convinced that the danger posed by the leftist prisoners should have been treated as equivalent to that of a group of determined terrorists (cf., for example, Finogenov and Others , cited above, § 220). If the intention really was to restore the State’s authority in Ulucanlar Prison, the Turkish authorities should nonetheless have borne in mind that there could be no necessity for the use of lethal force where the individuals in question posed no threat to life or limb and were not suspected of having committed a violent offence (see Nachova and Others , cited above, § 95).

205. There is no indication, either in the Plan or in the case file, that before launching the operation the administrative or gendarmerie authorities had at any time genuinely assessed the nature of the threat posed by the leftist prisoners and drawn any distinction between lethal and non-lethal approaches, or that they had considered negotiating a peaceful surrender (see, for a similar scenario, Mansuroğlu , cited above, §§ 86 and 87, and Erdoğan and Others , cited above, § 79, with the references therein).

xi. Use of non-lethal methods

206. Among the non-lethal methods used in the present case, including water and foam hoses and tear-gas canisters, the gendarmes probably had greater recourse to the latter, although the Action Plan did not mention this aspect (see paragraphs 30 to 31 above).

The Court reiterates that it is generally acknowledged that tear gas and smoke bombs are, in principle, authorised for the purposes of maintaining order, including in domestic anti-riot operations (for the principles and international standards in that sphere, see Abdullah Yaşa and Others v. Turkey , no. 44827/08, §§ 30 and 40, 16 July 2013, with the references therein; see also İzci v. Turkey , no. 42606/05, §§ 35 to 42, 23 July 2013; Çiloğlu and Others v . Turkey , no. 73333/01, §§ 18-19, 6 March 2007; and Oya Ataman v. Turkey , no. 74552/01, §§ 17-18, ECHR 2006‑XIII). Nevertheless, the devices do contain potentially dangerous substances which can prove fatal, depending, inter alia , on their chemical composition and the physical condition of the person affected (see Finogenov and Others , cited above, §§ 200, 202 and 203) and, obviously, on the dexterity of the user.

207. Before determining this aspect, the Court reiterates the following observation from the Sub-Commission: there were sixty or so prisoners suffering from the effects of gas and foam and confined to an area of some one hundred square metres, who could neither escape nor remain barricaded in for ever” (see paragraph 63 in fine above).

As emphasised by the applicants (see paragraph 154 above), once the prisoners had been isolated in a securely controlled section of the prison, continuing with the controlled use of tear gas – in combination with water and foam hoses – and waiting for the situation to come to an end, would certainly have been a plausible solution which should have been envisaged before any lives were lost.

208. In that connection, the Court rejects the Government’s argument that the gendarmes had used tear-gas canisters until they had proved unsuccessful, aiming to “break down resistance with a view to protecting the lives of all the prisoners” (see paragraph 165 above). As it has previously noted (see paragraph 204 above), the Court cannot see that the lives of the Ulucanlar Prison population had been under any real imminent threat before the gendarmes’ raid of the building. Nor can it understand how the use of tear-gas canisters could have failed to contain the population of dormitories nos. 4 and 5, given that time was on the side of the security forces and that tear gas had proved effective in controlling the situation in the female dormitory (see paragraphs 35 and 163 above).

The gendarmes’ reaction to the attack against junior officer M.E. (see paragraph 34 above) would suggest that in fact they were quite simply not prepared to pursue such a non-lethal strategy or to wait for it to show results.

209. Certain officers did provide explanations in response to questioning by the Sub-Commission (see paragraphs 64 and 65 above). They stated that there had been no point in waiting or throwing more gas canisters because the insurgents “had been wearing masks”; further, the fact of waiting would not have helped restrain the rioter, because “they had considerable stocks of food”, and in any event it was forbidden to halt a military operation, on pain of undermining “the morale of the troops” and boosting that of the “opposite side”; according to the commanding officers in charge of the operation, they could not wait too long before riposting because that might have “enable[d] the ‘terrorists’ to adjust their fire and barricade themselves in”.

Without having to adjudicate on the kind of protection which the eighteen home-made masks discovered on the premises could have provided to the insurgents (see paragraph 64 above) or on how long their stocks of foodstuffs could have lasted (see paragraphs 14 and 187 above), the Court observes that the arguments concerning the presumed necessity of affording the “terrorists” no respite are sufficient to demonstrate – as the Sub-Commission quite rightly pointed out (see paragraph 66 above) – the extent to which the operation had been planned and directed on the basis of military considerations, requiring unconditional surrender.

xii. Possibility of negotiations

210. Although the Court is not in a position to indicate to member States the best policy in dealing with a crisis of this kind or to lay down rigid rules in this sphere, it nevertheless notes that no negotiations were conducted before the operation (cf., for example, İsmail Altun , cited above, § 73 in fine ; and see, mutatis mutandis , Nachova and Others , cited above, § 105), whereby the interview of 9 September 1998 could not be seen as any form of negotiation (see paragraph 188 above). Nor is there anything to suggest that the authorities attempted to negotiate between the launch of the operation and the final installation of the spiral of violence in dormitories nos. 4 and 5 (cf. Finogenov and Others , cited above, §§ 223 and 224, and Andronicou and Constantinou , cited above, § 183).

211. The Court must emphasise this latter point. The intended surprise effect of a raid launched by the gendarmes at 4 a.m. was quickly dispelled when the prisoners standing guard in the corridors – and the authorities were not unaware of the existence of such “look-outs” (see paragraph 10 in fine and 190 above) – realised the operation was taking place and alerted their comrades. The gendarmes noticed the prisoner barricaded behind the gates, and the first Molotov cocktail was thrown at the beginning of that episode. At that precise moment all the authorities’ forecasts about determined prisoners reacting violently against a military intervention and using weapons if they came up against the gendarmes had proved true.

Therefore, even supposing that in the instant case, some hesitation or improvisation was inevitable when this first attack occurred, nonetheless the situation was not yet irreversible, and this was probably the last opportunity for them to retreat in order to instigate negotiations.

212. However, since the gendarmes had certainly not been trained for such a complexes and sensitive assignment and received prior orders to keep up strong psychological pressure on the prisoners and not to speak to them or be talked into taking any particular course of action (see paragraph 30 above), they were no doubt incapable of taking the relevant decisions. In any event, they badly miscalculated, because from that crucial moment onwards the scene was set of a likely, or indeed inevitable, confrontation (see, mutatis mutandis , McCann and Others , cited above, § 205).

xiii. The Court’s preliminary conclusion

213. The Court does not consider that the Ulucanlar operation was conducted at random, in a manner which might have given rise to unexpected developments to which the authorities had to react without prior preparation (see Makbule Kaymaz and Others , cited above, § 112, and Rehbock v. Slovenia , no. 29462/95, §§ 71 and 72, ECHR 2000-XII).

As pointed out by the Sub-Commission (see paragraphs 59, 61, 62 and 73 above), those responsible for the operation, in their eagerness to recover the authority which had long been flouted in the prison and to stigmatise and control the lives of the leftist prisoners, beyond their physical confinement, failed to exercise the requisite vigilance to minimise any risk of endangering lives, and were negligent in their choice of measures taken before and after the operation.

Since insufficient attention had been paid to the information that had been available for years concerning the alarming situation in Ulucanlar Prison, no alternative strategy had been considered or analysed, making the use of lethal force virtually inevitable.

Being aware that weapons were indeed circulating in Ulucanlar Prison because of the negligence and tolerance shown by the authorities, the gendarmerie should have been particularly careful to protect the right to life not only of the prisoners but also of its own personnel, who, owing to the same shortcomings, has suffered fifteen injured, one of them severely (see paragraphs 39 and 40 above).

214. Under those circumstances, the Court, having regard to its foregoing considerations, finds that the force use in the present case was not “absolutely necessary” within the meaning of Article 2 § 2 of the Convention.

However, the question in respect of which deceased prisoners a finding of a violation on this head would be justified remains to be clarified.

xiv. The hypothesis that the prisoners were murdered by their comrades

215. The Government, adopting the official version of events, submitted that the late Mr Zafer Kırbıyık, Mr İsmet Kavaklıoğlu, Mr Nevzat Çiftçi ( alias Habib Gül) and Mr Önder Gençaslan were killed and the applicant Küçük Hasan Çoban severely injured by their fellow prisoners (see paragraph 162 in fine above) because they had betrayed the cause by attempting to surrender to the security forces (see paragraphs 105 and 117 above).

216. The applicants submitted that the hypothesis that prisoners who had lived together for years had waited until the full armed confrontation with hundreds of gendarmes to settle scores with their comrades was not credible; it was more realistic to suppose that after the operation the gendarmes had hidden weapons in the dormitories in order to simulate a situation of self-defence (see paragraphs 155 and 156 above).

217. The Court cannot possibly establish the precise facts on each of the deceased prisoners, or rule out the possibility that facts extraneous to the riot or the gendarme operation might have taken place in the chaotic circumstances prevailing.

That having been said, since the case file lacks any scientific evidence to link up the weapons allegedly found in the dormitories with the DNA of any of the prisoners deemed to have used them (see paragraphs 44, 94 and 95 above) (see, among many other authorities, Erdoğan and Others , cited above, § 68), the Court considers that the Government’s argument that Mr Zafer Kırbıyık, Mr İsmet Kavaklıoğlu, Mr Nevzat Çiftçi and Mr Önder Gençaslan were killed by their comrades is based on mere conjecture.

218. The Government’s plea in this regard nevertheless merits a reply, inasmuch as it may be considered as indicating that the four murders in question took place outside the authorities’ oversight, behind the barricades where the gendarmes had no control of the course of events.

The Court has already dealt with such affirmations in the past, and it will reply in the same manner in the present case: the allegation that the State lost control of a prison operating under its strict control during a security operation cannot absolve it from its obligations towards the inmates (see Peker (no. 2) , cited above, § 50, and İsmail Altun , cited above, §§ 69 and 70).

219. The requirements of Article 2 § 1 enjoin the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction whose life is at risk from the criminal acts of other individuals (see Aydan , cited above, § 91; Keenan v. the United Kingdom , no. 27229/95, §§ 88-89, ECHR 2001-III; and Osman v. the United Kingdom , 28 October 1998, § 115, Case-Law Reports 1998 ‑ VIII). In that context, the Court reaffirms that the State’s responsibility may also be engaged where its agents fail to take all feasible precautions in the choice of means and methods of an operation such as that conducted in the present case against an opposing group with a view to avoiding and, in any event, minimising, loss of life, whether incidental or not (see, mutatis mutandis , Isayeva , cited above, § 176, and Ergi , cited above, § 79).

220. In the present case, the Government emphasised the rescue of prisoners convicted of belonging to the PKK (see paragraphs 20, 36, 163 and 192 above) and the innumerable calls to surrender which the security forces had allegedly issued to the insurgents (see paragraphs 33, 35, 57, 105 and 165 above). Informed of all the risks at stake in Ulucanlar and militarily prepared to keep the situation under control during the operation, the authorities should then have acted in accordance with their duty to prevent attacks on the prisoners and adopt specific measures to avert or diminish those risks, for the purposes of evacuating, safe and sound, as many individuals as possible (see paragraph 173 above).

221. However, the Government provided no information or documentation on any evacuation plan prepared, or even just envisaged, in order to protect any leftist prisoners who were prepared to obey the warnings issued. Noting that there was no plan or arrangement of that type, the Court considers that that exempts it from considering, in the instant case, the “difficulties involved in policing modern societies”, “the unpredictability of [the] conduct” of prisoners deemed guilty of murder, and, especially, the “the operational choices” which the gendarmes had had to make “in terms of priorities and resources”, because no choices of that kind had been made (re. those criteria, see, among many other authorities, Osman , cited above, § 116).

222. In short, the Government has been unable to establish that Mr Zafer Kırbıyık, Mr İsmet Kavaklıoğlu, Mr Nevzat Çiftçi and Mr Önder Gençaslan were killed by their comrades.

On close analysis, the Court can perceive no plausible reason for drawing a distinction between the situation of those four deceased persons and that of the late Mr Ümit Altıntaş, Mr Abuzer Çat, Mr Mahir Emsalsiz and Mr Halil Türker.

It therefore finds a violation of Article 2 in respect of the eight prisoners who died during the operation, whereby that finding exempts it from examining further the acts of torture allegedly inflicted on some of them while still alive (see paragraphs 41 in fine , 154 and 155 above).

(b) As regards the prisoners who survived their injuries

223. The Court reiterates that all the above-mentioned principles relating to the substantive head of Article 2 of the Convention (see paragraphs 168 to 175 above) also apply where the victim has not died, if the physical abuse suffered at the hands of State agents can be deemed to have violated Article 2, subject, inter alia , to the degree and type of force used, as well as the unequivocal intentions and the aim underlying such use of force (for a general summary of this matter, see Vefa Serdar , cited above, §§ 75 to 80, with the references therein; see also Makaratzis , cited above, § 55, and Yaşa v. Turkey , 2 September 1998, §§ 92-108, Case-Law Reports 1998-VI – cf. İlhan , cited above, §§ 77-78).

i. Injuries caused by firearms

224. It can generally be asserted that those principles apply to an attack where the victim survives but which, because of the lethal force used, amounted to attempted murder (see Isayeva , cited above, § 175 in fine ). In the context of cases against Turkey concerning similar anti-riot operations where the applicants finally survived, the Court has already found that Article 2 was applicable, considering that – regardless of whether or not the injuries had been life-threatening – the use of firearms in prisons was in itself “potentially lethal” (see, for example, Leyla Alp and Others, cited above, § 65; Şat v. Turkey , no. 14547/04, §§ 60 and 62, 10 July 2012; Düzova , cited above, § 71; and Peker (no. 2) , cited above, § 41).

225. In the instant case, it is undisputed that Mr Küçük Hasan Çoban (see paragraph 215 above), Mr Serdar Atak, Mr Erdal Gökoğlu, Mr Nihat Konak, Mr Savaş Kör, Mr Behsat Örs, Mr Ertan Özkan and Mr Enver Yanık sustained gunshot wounds (see paragraph 43 above) (see Appendix IV).

Therefore, the Court can only conclude that Article 2 is applicable to those applicants in the present case and that that provision was also violated in their regard.

ii. Injuries of a different origin

226. As regards whether the force used was “potentially lethal”, in the context of the precedents which concerned injuries caused by devices which were a priori non-lethal, the Court has already held that the decisive point was the fact that the victim’s life had been threatened (see Şat , cited above, § 60; Düzova , cited above, § 69; and Perişan and Others , cited above, §§ 89 and 90, with the references therein).

227. In the present case, therefore, the previous conclusion (see paragraph 225 above) also applies to the applicant Haydar Baran, who sustained a life-threatening physical assault (see paragraph 43 in fine above) (see Appendix IV).

Although the consultation reports drawn up at the İbni Sina hospital on 26 September 1999, at 12 noon in respect of Veysel Eroğlu and at 3.15 p.m. in respect of Özgür Soylu (see Appendix IV), mention the life-threatening aspect, it subsequently emerged that their state of health was not quite so serious.

The Court therefore holds that the situation of the applicants Veysel Eroğlu and Özgür Soylu calls for an assessment under Article 3 of the Convention ...

(c) Finale recapitulation

228. Having regard to the foregoing considerations, the Court rules that having regard to the manner in which it had been prepared and controlled, the impugned operation amounted to a substantive violation of Article 2 of the Convention in respect of Mr Ümit Altıntaş, Mr Abuzer Çat, Mr Nevzat Çiftçi, Mr Mahir Emsalsiz, Mr Halil Türker, Mr İsmet Kavaklıoğlu, Mr Zafer Kırbıyık and Mr Önder Gençaslan, who lost their lives, and of the applicants Küçük Hasan Çoban, Serdar Atak, Erdal Gökoğlu, Nihat Konak, Savaş Kör, Behsat Örs, Ertan Özkan, Enver Yanık and Haydar Baran (List B), who were seriously injured.

…

IV. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION UNDER THEIR SUBSTANTIVE LIMB

A. The parties’ submissions

1. The applicants

259. As regards the investigation conducted against the gendarmes, the applicants mainly refer to Secret Action Plan no. 15541 of 25 September 1999 (see paragraphs 29 and 30 above), according to which the Gendarmerie Command had planned to involve a force of 400 gendarmes, 100 reservists, in the operation. The applicants voiced their surprise that the investigations had only concerned 145 members of the gendarmerie.

Moreover, the applicants submitted that the prison staff had benefited from a decision not to prosecute after an investigation which they considered cursory (see paragraph 106 above), and that the police officers involved in the operation had quite simply been exempted of any investigation.

260. The applicants further drew the Court’s attention to the content of indictment no. 2000/5455 bringing the proceedings in the instant case (see paragraph 112 above). In breach, according to the applicants, of the procedural rules in force at the material time, the Prosecutor had instigated a semblance of a prosecution, explicitly requesting that the defendants should not be sentenced on the grounds that they had acted in self-defence. The applicants stated that pursuant to the former Code of Criminal Proceedings, Law No. 1412, the prosecutor was only authorised to make such pronouncements after the opening of proceedings, when presenting the prosecution case or pleas.

In the applicants’ view, such bias demonstrated the unscrupulousness of the prosecution, which had been irked by the Ankara Regional Administrative Court’s decision requiring it to investigate the case in question (see paragraph 108 above).

261. The applicants added that such pronouncements were incompatible with the principles flowing from Articles 2 and/or 3, on the grounds that the prosecutor who had been the hierarchical superior of the security forces which he had himself mandated to intervene in Ulucanlar Prison was the same prosecutor who had investigated the case. They took the view that that fact had thwarted any possibility of an independent and impartial investigation.

The applicants pointed out that although, under Turkish law, the appropriateness of the impugned investigation could be assessed by judicial inspectors ( adalet müfettişleri ) operating within the Ministry of Justice, that Ministry had been involved in all the stages leading up to the implementation of the lethal operation in issue and had confined itself to defending it publicly on behalf of the then Government.

262. In addition to those general considerations, the applicants submitted that in any event the investigation in question had been defective, if only because the prosecutors and judges involved had tolerated the dissimulation and removal from the scrutiny of the 6 th Chamber of the Ankara Assize Court of such decisive evidence as the video recordings of the operation – the existence of which had been confirmed by official documents.

Furthermore, the prosecutors had failed, for example, to examine the payment advice slips relating to the carbon dioxide foam sprayed during the operation, recordings of walkie-talkie conversations, the registration plates of the vehicles used during the operation, the analyses of the chemicals – other than tear gas – used by the gendarmes and the forensic medical reports drawn up by doctors in the prisons to which the applicants had been transferred.

Moreover, according to the applicants, no one had considered the impartiality of the ballistic reports included in the case file, even though they had been established by the services of the armed forces rather than by the Forensic Medicine Institute.

263. The applicants also pointed out that despite the many years that had since elapsed, the 6 th Chamber had not yet finished even gathering the defendants’ statements or identifying the perpetrators of the various acts in question. They submitted that during the proceedings some of them had stated that they would be able to recognise their torturers, but that the judges refused to arrange a face-to-face meeting or allow recognition from photographs on the grounds of “material impossibility”, excluding such evidence by sarcastically noting that it would be pointless to present them with photographs of members of the security forces dating from their childhood or many years previously (see paragraph 121 above).

264. Finally, in the context of establishing responsibilities for the impugned incidents, the applicants criticised the outcome of their action against the State. In that connection they submitted that in order to invalidate all the judgments that had been in any way unfavourable to them, the State Council had highlighted the issue of their possible involvement in the occurrence of the impugned incidents, whereas the applicants considered that administrative justice should aim to establish whether and to what extent the authorities were accountable in criminal and/or objective terms.

2. The Government

265. First of all the Government relied on the promptness of the ex officio instigation of the criminal investigation by the Ankara prosecutors and the large number of hearings of witnesses, complainants and suspects and of inspections of premises carried out, and of forensic medicine and ballistic reports produced, on the results of all of which detailed records had been drawn up. That work, which the Government stated had been performed very scrupulously, had led to the criminal prosecution of 161 members of the security forces. That complex case had been referred to the 6 th Chamber of the Ankara Assize Court, which had diligently pursued its investigations in order to complete, in particular, the complainants’ depositions and the defence memorials of the defendants summoned pursuant to letters rogatory.

According to the Government, the fact that those proceedings were still pending did not alter the efficacy and diligence of their conduct hitherto, or the judicial determination to establish the facts and responsibilities at stake in the present case.

266. As regards the alleged dissimulation of the video recordings made in situ during the operation (see paragraph 262 in limine above), the Government reiterated the reply provided on that subject on 25 January 2006 by the CDGA (see paragraph 143 above) regarding the non-existence of any such films.

267. Referring to the applicants’ pleas, the Government firmly rejected their insinuation that the security forces had drawn up false records and that the authorities had constructed scenarios with a view to denying justice. They considered that if Mr. Bayraktar had had the least evidence to back up such a serious accusation he should have lodged a timely official complaint.

268. Secondly, the Government considered that it was inappropriate for the applicants to infer irrelevant prejudices concerning the content of indictment no. 2000/5455 (see paragraph 260 above). They submitted that that indictment was in no way binding on the 6 th Chamber of the Ankara Assize Court, which held absolute discretionary power to assess the questions of fact and of law brought before it.

269. Thirdly, the Government criticised the applicants for confusing the prosecutors’ administrative and judicial prerogatives (see paragraph 261 above). In that regard, they pointed out that in Turkey and in all continental European countries, prosecutors were the “administrative directors” of the police and gendarmes as regards the taking of evidence during an investigation and that they could “issue orders within the bounds of that task”. In the present case the criminal investigation had naturally been directed by the prosecutor with ratione loci and ratione materiae competence, but the Ministry of the Interior had been responsible for directing the operation.

B. The Court’s assessment

1. General principles

270. The Court reiterates that under Articles 2 and 3 of the Convention, read in conjunction with Article 1 it requires an “effective official investigation” when – as in the present case - individuals have been killed as a result of the use of force by State agents (see, among other authorities, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 163 and 166-167, ECHR 2011; Bazorkina v. Russia , no. 69481/01, §§ 117-119, 27 July 2006; and McCann and Others , cited above, § 161), when lives are endangered by the force used (see Vefa Serdar , cited above, § 100, and İsmail Altun , cited above, § 80), or where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of State agents (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 317, ECHR 2014 (extracts); El-Masri , cited above, § 182; Keser and Kömürcü , cited above, § 69; Slimani v. France , no. 57671/00, §§ 30 and 31, ECHR 2004-IX (extracts); and Asenov and Others v. Bulgaria , 28 October 1998, § 102, Case-Law Reposts 1998-VIII).

271. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and prohibiting torture and inhuman or degrading treatment and punishment in cases involving State agents or bodies, and to ensure their accountability for deaths and ill-treatment occurring under their responsibility (see Mocanu and Others , cited above, § 318).

In that context, the investigation must above all be independent; in that regard, it may be broadly considered necessary that those responsible for the investigation and those carrying out the investigations should be independent from those targeted by it (see Mocanu and Others , cited above, § 321, and Aydan , cited above, § 107).

272. The investigation must also be effective in the sense that it must be capable of identifying and punishing those responsible; although that is not an obligation of result, but of means, the authorities must take the reasonable steps available to them to secure the evidence concerning the impugned facts (see Vefa Serdar , cited above, § 101, and Al-Skeini , cited above, § 166). The investigation must also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly and unlawfully used lethal force, but also all the surrounding circumstances (see Mocanu and Others , cited above, § 321), in particular the legal or statutory framework in force and the preparation and supervision of current operations, should those elements prove necessary in order to determine whether the State has honoured its obligation to protect life under Article 2 (see Aydan , cited above, § 107).

In that context, the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Mocanu and Others , cited above, § 325, and El Masri , cited above, § 183).

273. Any shortcoming in the investigation which undermines its ability to establish the full facts of the case or the relevant responsibilities will risk falling foul of the required standard of effectiveness (see, among many other authorities, Mocanu and Others , cited above, § 322; Leyla Alp and Others , cited above, § 97; İsmail Altun , cited above, § 80; and Nachova and Others , cited above, § 113).

A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force or allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Mocanu and Others , § 323; Leyla Alp and Others , § 98; İsmail Altun , § 81; and McKerr , § 114), bearing in mind that those principles also apply to acts prohibited under Article 3 (see Mehmet Yaman , cited above, § 70, and the references therein).

274. In that connection, the Court has previously held that the procedural obligations under Article 2 and 3 continue to apply in difficult security conditions, including in a context of armed conflict. Even where the events triggering the obligation to investigate occur in circumstances of generalised violence, and obstacles are placed in the way of investigators compelling the use of less effective measures of investigation or ones causing an investigation to be delayed, nonetheless Articles 2 and 3 require the adoption of all reasonable measures to ensure the conduct of an effective and independent investigation (see Mocanu and Others , cited above, § 318, and Al-Skeini and Others , cited above, § 164).

275. Lastly, the Court reiterates that the above-mentioned procedural requirements go beyond the stage of the official investigation, where, as in the present case, this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 2 (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, § 95, ECHR 2004 ‑ XII) and/or of Article 3 (see, for example, Okkalı v. Turkey , no. 52067/99, § 65, ECHR 2006‑XII (extracts)).

The Court has held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases. Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions (see Mocanu and Others , cited above, § 326, and the references therein).

276. In all case, as regards the obligations under Article 2 of the Convention, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests. Equally, with regard to Article 3 of the Convention, the victim should be able to participate effectively in the investigation (see Mocanu and Others , cited above, § 324).

2. Application of the above principles to the present case

277. The circumstances of the present case led to the commencement of disciplinary proceedings (see paragraph 74 above) and the institution of a criminal investigation (see paragraph 79 above) against a number of civil servants working in Ulucanlar Prison, criminal proceedings against the gendarmes (see paragraph 112 above), the suing of the ministerial authorities (see paragraph 128 above), and a Parliamentary inquiry (see paragraph 52 above), the findings of which have already been mentioned by the Court but which – owing to its purpose and aim – cannot be taken into account vis-à-vis the procedural obligations under examination; the same applies to the proceedings brought against the applicants (see paragraph 136 above).

a) Effectiveness of the proceedings against the prison staff

278. Having regard to the substantive breach found under Article 2 (see paragraphs 214 and 228 above), the Court reiterates that in order to provide a basis for its assessment of the preparation and execution of the impugned operation it had attached decisive importance to the authorities’ failings in the administration of prison life in Ulucanlar since 1996 and to the presence, in particular, of various types of weapons in the dormitories (see paragraphs 186, 203, 213 et 217 above).

Those are factual circumstances which pre-date the operation and which would appear never to have been duly examined in the context of the above-mentioned criminal proceedings and claims against the State, in breach of the relevant principle under Article 2 (see paragraph 272 above). On the other hand, it could not be ruled out that light had been shed, even partly, on those points during the proceedings against the prison staff.

279. However, the disciplinary investigation instituted on 27 September 1999 against R.Cin., the Director of Ulucanlar Prison, and his four deputies, M. Çel., U.Sal., A.Gür. and T.Yıl., failed because the Director General of Prisons (see paragraphs 76 and 77 above), that is to say the hierarchical and disciplinary superior of those civil servants, intervened in the case (see paragraph 271 in fine above) (see, among other authorities, Aydan , cited above, § 107, and Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 70, ECHR 2002 ‑ II).

280. Nor did the criminal investigation against the prison officers and warders H.A., S.B., Ş.A., Ç.Y., L.A., A.Ka., U.Y., N.Şa. and G.Ş. for negligence in the exercise of their functions relating to the smuggling of prohibited items into Ulucanlar Prison, lead to the identification of those who had really been responsible, even though the authorities had a solid body of evidence in their possession (see paragraphs 10, 23, 27 and 49 above) relating to other prison warders, namely D.S., F.D., H.U., A.D., D.A., P.G., S.K., G.Ç. and G.S., who stood accused of allowing unlawful substances and items into the prison.

281. The Court takes the view, therefore, that the Prosecutor’s argumentation in his discontinuance decisions, to the effect that he had been unable to determine “the dates on which those items had been brought in” and that the small handguns could have been smuggled in with the help of officials “other than those who had been charged” (see paragraph 80 above) does not stand up to scrutiny.

282. The Court therefore dismisses the Government’s plea on this subject (see paragraph 166 above) because it considers that it closely followed the statements, cited above, by the Director General of Prisons and the prosecutor. It finds that the authorities lacked any determination to identify the prison staff members possibly responsible for the impugned acts.

b) Effectiveness of the criminal proceedings against the gendarmes

283. In the framework of the violations of Articles 2 and 3 in their substantive limbs, the Court notes that the action taken by the authorities responsible for the preliminary investigation following the imputed operation (see paragraphs 86 to 101, 104, 105 and 109 to 111 above) and, subsequently, by the trial courts during the proceedings before the 6 th Chamber of the Ankara Assize Court (see paragraphs 112 to 127 above) (Appendix VII) is uncontroversial.

Nonetheless, in the light of the promptness and reasonable expedition requirement implicit in the context of the procedural obligations in issue and having regard to the difficulties which probably disrupted those proceedings owing, in particular, to the large number of suspects and victims involved and the obvious complexity of the case (see paragraphs 273 and 274 above) (see, mutatis mutandis , Leyla Alp and Others , cited above, § 102), it should be noted that today – more than fifteen-and-a-half years after the events – the case against the gendarmes is still pending before the Court of Cassation (see paragraph 127 above) and that it has not made the least tangible and reliable progress towards establishing responsibilities for the deaths and injuries caused in the present case (for comparable situations, see Vefa Serdar § 102; Perişan and Others , § 103; and Ceyhan Demir and Others , §§ 10 and 111, judgments cited above).

That observation makes it unnecessary for the Court to examine the applicants’ other arguments.

284. It also makes it unnecessary for the Court to examine the administrative compensation proceedings, even if it should be pointed out that the latter have also been continuing for some fifteen years (see paragraph 134 above) and that, like the criminal proceedings, those proceedings have still failed to confirm or invalidate the allegations against the respondent parties (see, mutatis mutandis , Vefa Serdar , cited above, § 104).

285. In short, the Court considers that to date the different investigations and proceedings conducted in the present case have not met the requirements as to promptness and reasonable expedition contained in Article(s) 2 and/or 3 of the Convention, and discerns no plausible factor potentially exempting the State from its responsibilities under the procedural limbs of those provisions.

Consequently, it rejects the Government’s preliminary objection to the effect that the application was premature (see paragraphs 149 to 151 above) and finds that there had been a procedural violation of Article 2 in respect of the applicants related to the deceased prisoners (List A), and a procedural violation of Article 3 in respect of all the injured applicants (List B) ...

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

…

3. Holds that there has been a violation, both substantive and procedural, of Article 2 of the Convention in respect of the late Mr Ümit Altıntaş, Mr Abuzer Çat, Mr Nevzat Çiftçi, Mr Mahir Emsalsiz, Mr Halil Türker, Mr İsmet Kavaklıoğlu, Mr Zafer Kırbıyık and Mr Önder Gençaslan, as well as the applicants Küçük Hasan Çoban, Serdar Atak, Erdal Gökoğlu, Nihat Konak, Savaş Kör, Behsat Örs, Ertan Özkan, Enver Yanık and Haydar Baran;

…

5. Holds that there has been a procedural violation of Article 3 of the Convention in respect of the applicants Ms Sibel Aktan (Aksoğan), Ms Şerife Arıöz, Ms Derya Şimşek, Ms Edibe Tozlu, Ms Fadime Özkan, Ms Başak Otlu, Ms Zeynep Güngörmez, Ms Fatime Akalın, Ms Gönül Aslan, Ms Esmehan Ekinci, Mr Cemaat Ocak, Mr Aydın Çınar, Mr Murat Güneş, Mr Gürhan Hızmay, Mr Ertuğrul Kaya, Mr Murat Ekinci, Mr Halil Doğan, Mr İnan Özgür Bahar and Mr Veysel Eroğlu;

Done in French, and notified in writing on 6 October, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Paul Lemmens Deputy Registrar President

[1] The other nine lawyers were Mr Kazım Genç, Mr Betül Vangölü, Mr Selçuk Kozağaçlı, Mr Elvan Okun, Mr Bozkurt Çağlar, Mr Kenan Arslan, Ms Rıza Karaman, Mr H. Yüksel Biçen and Mr Vedat Aytaç.

1. In the ensuing parts of the present judgment, these persons will be referred to, where appropriate, as “former applicants” and/or by their initials.

2. The summaries and exposés classified as Appendices form an integral part of the present judgment.

1. KoÄŸuÅŸ in Turkish. This word designates a collective cell with installations used daily by prisoners.

2. The definitions of terms such as “terrorist”, “terrorism” and “terror” hereinafter are those used by the signatories of official documents and in official declarations by agents of the State.

1. Make and model unknown.

[7] . At the material time the Turkish gendarmerie came under the Ministry of Defence, and was therefore organised along military lines. It has since been transferred to the Ministry of the Interior, alongside the police force.

1. A total of 41 prisoners were evacuated safe and sound.

1. İsmet Kavaklıoğlu is not mentioned in the reports.

1. An AMD 65 Kalashnikov (Automata Módosított Deszant 1965).

1. This was in fact a copy of the semi-automatic Beretta 951 manufactured under licence by Iraqi arsenals and referred to at the time as a “Tarıq”.

2. A Browning semi-automatic pistol.

3. It subsequently transpired that these items were just pieces of metal tubing.

1. That directive was issued by the Ministry’s as a reaction to the shortcomings noted after the impugned operation, and set out security measures governing access by individuals to the prison and the smuggling in of various items via prison airlock entrances.

1. “Habib Gül” was the pseudonym used by Nevzat Çiftçi at Ulucanlar. In the autopsy report of 19 October 1999 (Appendix III) this person is also referred to by another pseudonym, “Hüseyin Yadigar Özüdoğru”.

1. Ammunition of Soviet origin, known as “M43s”, specifically for Kalashnikovs.

2. “Parabellum”-type ammunition, standard issue in the armed forces of several countries.

3. US ammunition, known as “NATO 7.62 mm”, specifically for rifles and machine guns, particularly the German HK G3 assault rifle and the American M16, etc.

4. This was the weapon attributed to prisoner Mu.Gök (see paragraph 45 above).

1. Probably Erdal Gökoğlu, not the prisoner/complainant E.G. (see paragraph 87 above).

1. The decision was served later on, by letters of 29 March and 26 April 2000.

2. 155 gendarmes had been identified during the investigation.

1. This was the name given to a series of operations conducted after that in issue in the present case. On 19 December 2000 the security forces launched simultaneous raids in twenty prisons in which hundreds of prisoners had been on long-term huger strikes.