SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75307/01 by Sıddık ASLAN, Yasin ASLAN, Türkan ASLAN and Nihari ASLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 19 October 2004 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze, judges , and Mr T . L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 4 October 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Messrs Sıddık Aslan and Yasin Aslan, are Turkish nationals, who were born in 1960 and 1952 respectively and live in the city of Van . They are represented before the Court by Mr Cihan Aydın, Ms Reyhan Yalçındağ, Mr Metin Kılavuz and Ms Ayla Akat, lawyers practising in Diyarbakır .

The applicants , Mrs Türkan Aslan and Mrs Nihari Aslan, also Turkish nationals, were born in 1965 and 1945 respectively and live in the city of Van . They are represented before the Court by Mr M. Sezgin Tanrıkulu, a lawyer practising in Diyarbakır .

The applicant Mrs Türkan Aslan has filed the application in her own name and also on behalf of her children Leyla, Berivan, Ümit, Fırat, Dilek and Mazlum Aslan.

The applicant Mrs Nihari Aslan has filed the application in her own name and also on behalf of her children Mehmet, Güllü, Aliye and Metin Aslan.

A. The circumstances of the case

As the facts of the case are disputed between the parties, the facts as well as the documents submitted have been set out separately.

1. The facts as submitted by the applicants

On 7 September 2001 Ebuzeyt Aslan, the first applicant ' s elder brother and Mrs Türkan Aslan ' s husband , and Halit Aslan, the second applicant ' s cousin and Mrs Nihari Aslan ' s husband, left their homes in Van for Beytüşşebap, a town within the administrative jurisdiction of the city of Şırnak. Nothing was heard about them until 15 September 2001 when Zübeyt Aslan, a relative, received an anonymous telephone call. The caller told Zübeyt Aslan that Ebuzeyt and Halit had been killed in an operation conducted by village guards and soldiers in the Dereyatağı area ( Dereyatağı Mevkii ) near the Geçitli hamlet, within the boundaries of Yeşilöz village. The person then hung up. After the call, the relatives of Ebuzeyt and Halit Aslan went to the local branches of the Human Rights Association in Diyarbakır and Van to ask for assistance.

A group of 30 relatives went to the Van public prosecutor ' s office where they were told to direct their inquiries to the prosecutor ' s office in Beytüşşebap which had jurisdiction to investigate the allegations as the purported incident had taken place within the boundaries of Beytüşşebap.

The group then went to the prosecutor ' s office in Beytüşşebap. The prosecutor confirmed what had been said by the anonymous caller. The prosecutor further stated that the place where the incident had taken place was in a dangerous area and that he could not therefore hand the bodies over to them. He further told the relatives to talk to the Provincial Gendarme Regiment ' s Commander. The identity cards of the members of the group who went to the Regiment were taken by the soldiers and they were kept waiting a t t he barracks for the rest of the day. The group was later escorted by the soldiers to the outskirts of Beytüşşebap and told not to return or they would suffer the same fate as their relatives.

On 21 September 2001 the Diyarbakır Branch of the Human Rights Association informed the Ministry of the Interior, the Human Rights Commission of the Turkish Parliament, the Emergency Region Governor, the Secretary of State Responsible for Human Rights, the Şırnak Governor, the prosecutor ' s office in Şırnak, the prosecutor ' s office and the governor in Beytüşşebap, by letters, of the deaths of Ebuzeyt and Halit Aslan. They requested the authorities to investigate this incident and to find the perpetrators. They further requested that official identifications of the bodies and autopsies be carried out.

Amnesty International w as also i nformed and requested to make an urgent appeal.

The applicants claim that neither Halit Aslan, who was born in 1939, nor Ebuzeyt Aslan, who was born in 1954, had any connections with the PKK. Moreover, Halit Aslan had been suffering from health problems.

2. The facts as submitted by the Government

On 10 September 2001 a m ilitary operation was initiated by the Beytüşşebap Gendarme Regiment ' s Commander (Beytüşşebap Jandarma Alay Komutanlığı) in the Yeşilöz-Faraşin area.

At around 5.30 p.m. on 12 September 2001 , i.e. on the third day of the operation, the gendarme soldiers were confronted by a group of terrorists in the vicinity of Dereyatağı. When the terrorists refused to surrender an armed clash ensued.

A search was conducted in the area by the soldiers after the clash ha d ended. During the search the bodies of two terrorists were found together with a Kalashnikov rifle, four cartridges, 27 rockets and 22 empty bullet shells.

The search of the vicinity continued the next morning and during this search the body of a third terrorist was found. The booby trap on this third body was made safe by the soldiers. Also, quantities of food, tobacco, tea, etc ., which had been found during the search , were destroyed by the soldiers since it was impossible to carry them back to the barracks.

It was established by the soldiers that the remaining terrorists had escaped towards the city of Van .

According to a record of the operation drawn up by the soldiers, it had been impossible to transport the bodies of the terrorists since the area was very mountainous, the distance between the location of the bodies and the city centre was too great and the soldiers had no vehicles at their disposal. A decision was therefore taken to leave the corpses in the area and they were covered with stones to protect them from attacks from wild animals. It was also impossible for the soldiers to take photographs of the bodies since they had no cameras with them.

Following the incident the weather conditions allowed the authorities to visit the scene on 29 September, 17 October, 22 October, 4 November, 21 November, 17 December 2001 and , finally , on 8 January 2002. On those dates the authorities visited the scene eight times to take photographs of the bodies and to carry out autopsies. However, despite all the extensive searches, the bodies , allegedly those of Halit Aslan and Ebuzeyt Aslan , could not be found. It is assumed that the bodies decayed naturally or were abducted by terrorists.

It ha s not yet been established whether the bodies recovered after the operation on 12 September 2001 were those of the applicants ' relatives. Furthermore, contrary to what has been claimed by the applicants, the Beytüşşebap public prosecutor did not make any claims to the effect that it was not possible to hand over the bodies to the relatives.

3. Documents submitted by the parties

The following information appears from documents submitted by the parties.

a) Documents pertaining to the military operation

According to the record of the operation drawn up on 13 September 2001 by the gendarme soldiers who took part in the operation, three bodies were found. Quantities of food and ammunition were also found during the searches. The report also lists the amount of ammunition used by the soldiers. According to the list, the gendarme soldiers from the 5 th Gendarme Battalion fired a total number of 1 , 553 bullets, 15 hand grenades and 3 RPG-7 rockets. The soldiers from the Beytüşşebap District Gendarme fired a total of 1 , 128 bullets.

On 13 September 2001 the Emergency Region Governor ' s office issued a public statement stating that two members of the PKK had been killed during an operation in the Şırnak area on 12 September 2001 and another had been injured and detained.

On 18 September 2001 the ammunition left by PKK members w as handed over to the Beytüşşebap Gendarme Commander ' s office.

b) Documents pertaining to the investigation carried out by the Beytüşşebap public prosecutor ' s office

On 17 September 2001 Hazım Aslan, Zübeyit Aslan and Hacı Aslan submitted two petitions to the Van public prosecutor ' s office and informed the prosecutor about the anonymous telephone call. They asked the prosecutor to assist them in obtaining the bodies of their relatives. These petitions were forwarded to the Beytüşşebap public prosecutor ' s office in whose jurisdiction the incident had taken place.

On 17 September 2001 the Beytüşşebap public prosecutor asked the Beytüşşebap Gendarme Commander ' s office to clarify the accuracy of the allegations.

On 19 September 2001 the Beytüşşebap public prosecutor questioned the three relatives in connection with their petitions. They gave a description of their disappeared relatives and stated that neither had ever been involved in any PKK activity. They also stated that Yeşilöz village , where their relatives were allegedly killed , had been evacuated and that no one was living there. Zübeyit Aslan further stated in his evidence that his brother Halit Aslan might have gone to that area to smuggle Iraqi and Iranian persons into Turkey.

On 24 September 2001 the Beytüşşebap public prosecutor questioned Kürşat Soysal, the gendarme captain in charge of the military operation , and Tevfik Baştürk, the sergeant-major who also took part in the operation. Captain Soysal stated in his evidence that as he and the soldiers under his command approached Geçitli village on 12 September 2001 they were informed by radio that an armed man was walking towards the lower part of the village. Captain Soysal also saw an armed man near the Dereyatağı area. Captain Soysal stated, inter alia , the following:

“I then ordered my soldiers to be quick and not to lose sight of the armed men. It was around 5.30 p.m. As far as I know, the village where these two men were seen had been un inhabited for between 8 and 10 years. The area is not suitable for grazing animals. It is an area used by the terrorist organisation. The firing began approximately one minute after I alerted my soldiers. After the firing had stop ped I saw one of the bodies. There was a Kalashnikov rifle next to the body. The body belonged to a man o ver 40. There were no documents on the body to help identify the person. When I examined the rifle it became apparent that it had recently been fired. We also found four empty cartridges in the area. I was informed by the soldiers that there was another body at the upper part [of the village] but I did not personally see that body. We aborted the search as it was getting dark and moved to a more secure area. When we resumed the search next morning I saw the other body. It was that of a man of approximately 35 years of age. There were no weapons near the body. Also, there w ere no identification documents on the body. We then saw the third body of a man of approximately 25 years of age. His body had been badly damaged, possibly by a rocket missile. I thought it possible that he had killed himself. There was a booby trap on this body and we made it safe . We covered the bodies with stones as we did not have any equipment with which we could dig graves for them. The area where we left the bodies is approximately 45 kms. from here. We did not have any vehicles at our disposal. There are also landmines on the roads in that area.”

Sergeant-major Baştürk also gave a similar statement to the prosecutor.

On 24 September 2001 the Beytüşşebap public prosecutor asked the Beytüşşebap governor to clarify whether anyone was living in the Geçitli area near Yeşilöz village and whether the area was being used by villagers for grazing their animal s .

On the same day the prosecutor also asked for copies of registry documents relating to the two disappeared persons to be forwarded to him.

Again on the same day, the prosecutor asked the Beytüşşebap Gendarme Commander ' s office about the possibility of bringing the bodies from the area where they were killed. In the alternative, the prosecutor asked for body and hair samples to be obtained from the bodies for identification purposes.

On 1 October 2001 Hakan Torun, who is a first lieutenant and is the commander of the Beytüşşebap gendarme, informed the prosecutor that bringing the bodies back could only be achieved if the security forces organised an operation. Given the limited number of soldiers under his command, it was not possible for the gendarme commander to carry out such an operation alone. If it was not possible to organise such an operation , then it might be possible to obtain body and hair samples from the bodies.

On 2 October 2001 the Beytüşşebap governor informed the prosecutor that Geçitli hamlet of Yeşilöz village had been evacuated in 1989 and that no one ha d liv ed there since. Furthermore, the villagers were not allowed to take their animals out to graze in the area.

On 5 October 2001 the Beytüşşebap public prosecutor asked the Özalp public prosecutor in whose jurisdiction the two disappeared person s used to live, to establish the date on which the latter had left their homes. He also asked whether any official complaints had been lodged in relation to the disappearance. The prosecutor finally asked his opposite number in the town of Özalp to question Hacı Aslan, the son of the disappeared Halit Aslan.

On 9 September 2001 a statement was taken from Hacı Aslan. Mr Aslan stated that his mother had told him that his father and Ebuzeyt Aslan had left for Beytüşşebap where they had relatives. He further stated that his father had possibly been shot by the soldiers for having entered a military area. He stated that his father had left the Beytüşşebap area because of his fear of the PKK and it was therefore im probable that his father was a terrorist or that he had carried weapons. His father had never been arrested in the past; in fact , he had not even been to a police station. Even assuming that his father was a terrorist, this would not justify the refusal of the gendarme to hand over his father ' s body. When he had gone to the Beytüşşebap gendarme commander ' s office he had been told that the bodies could not be handed over because the deceased were terrorists. He had also been told that they would shoot him if he attempted to recover the bodies himself.

On 29 September 2001 C aptain Soysal drew up a report in which he stated that an attempt had been made on 28 September 2001 to recover the bodies , but that the operation had to be aborted as it was raining and foggy.

On 10 October 2001 the Beytüşşebap public prosecutor asked the 23 rd Gendarme Border Division Commander ' s office (23. Jandarma Sınır Tümen Komutanlığı) whether it would be possible to rec over the bodies or, in the alternative, to obtain body samples from them .

According to a report drawn up on 17 October 2001 by a gendarme sergeant-major, another attempt was made on 16 October 2001 by two fully equipped gendarme teams joined by two commando units. This operation also had to be aborted the following day as it was too cold, foggy and rainy.

On 18 October 2001 the 23 rd Gendarme Border Division Commander ' s office informed the Beytüşşebap prosecutor that the bodies could only be recovered by means of an operation conducted in the area. The prosecutor was also informed in the same letter that work on the feasibility of such an operation had begun.

On 18 October 2001 Hazım Aslan, a relative of the two disappeared men, stated in a statement made to the police that the family had made applications to the Beytüşşebap public prosecutor ' s office as well as to the Şırnak Brigade Commander ' s office (Şırnak Tugay Komutanlığı) .

According to a report drawn up on 22 October 2001 by a gendarme major, a third attempt was made on 21 October 2001 to recover the bodies . I t too had to be aborted as the area was covered with snow.

Similar attempts were made on 3 November, 20 November, 16 December 2001 and , finally , on 8 January 2002 . T he height of the snow had by then reached 50-60 centimetres and there was also a risk of avalanches, with the result that these operations had to be aborted.

On 21 December 2001 Hacı Aslan, son of the disappeared Halit Aslan, stated in his statement made at the Özalp public prosecutor ' s office that the family had not made any official complaints in relation to the disappearance of their relatives.

On 25 January 2002 the Beytüşşebap public prosecutor asked the Beytüşşebap gendarme commander ' s office to forward him copies of the documents concerning the evacuation of Yeşilöz village. The prosecutor also asked whether it could have been possible for the two disappeared men to have gone to the area on foot. The prosecutor finally asked for copies of documents concerning the clashes between the security forces, the village guards and terrorists in the area and also of documents concerning the cultivation of cannabis in the area.

On 28 January 2002 the Beytüşşebap gendarme commander ' s office informed the Beytüşşebap public prosecutor that the villagers had left the village of their own wi ll because of PKK terrorist activities . The prosecutor was also informed that the two persons could have taken the bus from Van to the town of Beytüşşebap but that there were no roads to the village and the area was not safe. The prosecutor was finally informed that there had been 31 attacks by the PKK in the area between 1989 and 2001.

A meeting was held on 20 November 2001 by the Provincial Human Rights Council (İnsan Hakları İl Kurulu) . The Council, which was presided by the provincial governor, consisted of the local mayor, the provincial gendarme commander, the police chief of the province and a number of civil servants. According to the minutes of the meeting, the Council, having examined the evidence in the file, reached the conclusion that innocent civilians had not been killed in the operation. The Council further noted that the preliminary investigation was still continuing and that autopsies could not be carried out due to the lack of transportation facilities and geographic difficulties. The Council stated that efforts to recover the bodies would continue.

On 30 January 2003 the Gendarme Headquarters in Ankara sent a letter to the Ministry of Interior setting out their answers to the questions put by the Court as to whether and what serious attempts had been made to recover the bodies during the spring and summer of 2002 and whether the ammunition recovered has been examined for fingerprints. According to the Gendarme Headquarter ' s letter, eight attempts had been made between 29 September 2001 and 8 January 2002 but that it had not been possible to find the bodies. It was possible that the bodies had decayed due to natural causes or that they had been taken away by the terrorist organisation. The area where the bodies were left is 2 , 668 metres in altitude and because of the weather conditions it had not been possible to reach the area by helicopter. The distance to the area had rendered it difficult for the soldiers to bring back the ammunition and that the examination of the ammunition carried out at the military base did not reveal any prints.

B. Relevant domestic law and practice

The relevant parts of Article 79 of the Turkish Code on Criminal Procedure provides as follows:

“An official examination of a corpse must be made in the presence of a physician. An autopsy shall be performed in the presence of a judge and, in those cases where it is necessary to avoid prejudicial delay, the autopsy shall be performed by two physicians in the presence of the public prosecutor, at least one of the physicians being a forensic practitioner.

...

When it is deemed necessary [during a preliminary investigation] to carry out an autopsy on a body which has already been buried, the permission of the public prosecutor is required and the necessary action will be taken by the [prosecutor].”

Article 80 of the Turkish Code on Criminal Procedure provides as follows:

“Unless there are reasons requiring otherwise, the formal identification of a body is carried out prior to an autopsy and by showing the body to the people who knew the deceased and, if a suspect has already been apprehended, the body is also shown to him or her.”

Article 152 of the Turkish Code on Criminal Procedure provides as follows:

“If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge . The body can only be buried after a written burial licence has been issued by the public prosecutor or by a criminal court judge.”

COMPLAINTS

Invoking Article 2 of the Convention, the applicants argued that none of the above-mentioned procedures had been complied with by the authorities. In particular , no autopsies had been carried out on the bodies, the bodies had not been shown to the family members for identification purposes, photographs of the bodies had not been taken and nothing had been done at the place of the incident to collect evidence. They finally stated that the family members were not told where the bodies were found and whether or not they have been buried. The applicants argued that all these failures prove that their relatives were unlawfully killed and that this killing was not justified under Article 2 § 2 of the Convention.

The applicants also argued that the uncertainty about the fate of their deceased relatives, coupled with the authorities ' indifference to their basic requests, such as to be informed about any burial of the bodies which might have taken place, constitute inhuman and degrading treatment within the meaning of Article 3 of the Convention.

The applicants further argued that, as a result of the authorities ' failure to investigate their claims under Article 2 and 3 of the Convention, they have been denied an effective remedy as required by Article 13 of the Convention.

The applicants finally invoked Article 14 of the Convention in conjunction with the above Articles in that their relatives were killed because of their Kurdish origins.

THE LAW

The applicants complained that their relatives were unlawfully killed because of their Kurdish origins and that the State failed to carry out an adequate investigation into the killings. They invoked Articles 2, 3, 13 and 14 of the Convention , which provide as follows:

Article 2 of the Convention:

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

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

(a) in defence of any person from unlawful violence;

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

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention:

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

Article 13 of the Convention:

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

Article 14 of the Convention:

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

Exhaustion of domestic remedies

The Government submitted that the investigation instigated by the Beytüşşebap public prosecutor into the incident wa s still continuing. The Government further claimed that there were no special circumstances which would dispense the applicants from exhausting domestic remedies. The detailed information submitted by the Government showed that the investigation wa s being carried out meticulously by the national authorities. The Government expressed doubts about the good faith of the applicants since they introduced their application with the Court only 18 days after their application to the public prosecutor.

The Government requested the Court to declare the application inadmissible as premature.

The applicants submitted that the investigation into the incident was not an effective one and that it would not yield any results. They submit ted that the prosecutor, other than taking statements from the applicants and from the soldiers who participated in the operation and requesting the bodies to be recovered , did not take any steps. They state d , in this connection, that no attempts were made to recover the bodies in the spring and summer months of 2002. A ballistic s examination o f the ammunition h as never been carried out. They finally state d that no steps have been taken by the authorities since January 2002.

The Court notes that it is not disputed between the parties that an investigation was started by the Beytüşşebap public prosecutor ' s office on 17 September 2001 .

In so far as the Government argue that the application is premature because the investigation is still continuing, the Court considers that the issue of exhaustion of domestic remedies requires a determination to be made of the effectiveness of the investigation. As such, it is inextricably linked to the substance of the applicants ' complaints under Articles 2 and 13 of the Convention concerning the alleged inadequacy of the investigation. It follows that this issue should be joined to the merits of the case.

Merits

The Government submitted that the identities of the bodies have not yet been established and , accordingly, there wa s no evidence to support the applicants ' claim that Halit Aslan and Ebuzeyt Aslan were killed by the security forces unlawfully.

The Government further argued that the only evidence relied on by the applicants was the alleged anonymous telephone call. However, the alleged telephone call could by no means serve to prove the applicants ' allegations to the standard of proof adopted by the Court in the case of Ireland v. the United Kingdom (judgment of 18 January 1978, Series A no. 25, § 161).

According to the Government, the investigation was instigated promptly and wa s being carried out with the utmost scrutiny and diligence.

As regards the effectiveness of the investigation into the applicants ' allegations, the Government stated that the documents submitted by them provided detailed information on the difficulties the investigating authorities have encountered. These difficulties provide d a plausible explanation as to why the bodies have not yet been identified or autopsies carried out.

In the opinion of the Government, they have complied with their obligations under Article 2 of the Convention.

In the applicants ' opinion, the Government ' s argument that the spot had been visited eight times by the authorities but that it had not been possible to find the bodies was contradicted by a number of documents submitted by the Government themselves. According to these documents , all attempts to reach the area had failed because of bad weather conditions. Furthermore, no explanation was given by the Government as to why no attempts had been made during spring or summer or why a helicopter had not been used to reach the area.

The applicants further submitted that the claim that the soldiers who participated in the military operation did not, contrary to common practice, have a camera with them to take photographs of the deceased men , was not convincing.

As regards the claim made on 13 September 2001 by the Emergency Region Governor that two members of the PKK had been killed during the operation on 12 September 2001 and that another had been injured and detained, the applicants argued that this too was contradicted by the reports drawn up on 13 September 2001 by the soldiers wherein it was stated that three terrorists had been killed. It has not been possible for the applicants, despite all their efforts, to obtain any information about the fate of the alleged injured person.

As to the investigation carried out by the Beytüşşebap public prosecutor, the applicants submitted that nothing had been done since January 2002. Furthermore, there were no records of any ballistic s reports containing details of the examination carried out at the military base. The applicants also criticise d the public prosecutor ' s reliance on the soldiers ' cursory examination of the rifle.

In the applicants ' opinion, the above - mentioned failures of the investigating authorities pointed to a deliberate cover - up of an incident in which their relatives were unlawfully killed by agents of the State. They submitted that the unwillingness of the authorities to recover the bodies was a deliberate attempt to prolong the uncertainty surrounding the killings of their relatives , thereby helping the respondent Government to avoid their obligation under the Convention.

The Court finds, in the light of the parties ' submissions, that the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Joins to the merits the Government ' s objection to the admissibility of the application;

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa Deputy Registrar President