FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31730/96 by HaÅŸim YURTSEVEN and Others against Turkey

The European Court of Human Rights (First Section) , sitting on 14 November 2002 as a Chamber composed of

Mrs F. Tulkens , President , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , Mr F. Gölcüklü , ad hoc judge , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 April 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Ali Yurtseven, Haşim Yurtseven, Abdullah Özeken and Sabri Sarıtaş are Turkish national s , born in 1966, 1975, 1934 and 1971 respectively and living in Yüksekova , in south-east Turkey. They are represented before the Court by Ms Şenal Sarıhan , a lawyer practising in Ankara.

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 27 October 1995, soldiers belonging to the Yüksekova Commando Battalion under the command of Major Mehmet Emin Yurdakul came to Ağaçlı village located within the administrative jurisdiction of Yüksekova district to conduct a military operation.

The villagers were convened in the village square on the commander’s orders. A search was conducted in the houses belonging to the villagers but nothing illegal was found.

Şemsettin Yurtseven, the father of the first and the second applicants, Mikdat Özeken, the son of the third applicant and Münür Sarıtaş, the younger brother of the fourth applicant, were singled out and put in a military vehicle and taken away by the soldiers. They were not released afterwards. Şemsettin Yurtseven was 73 years of age and was living in Ağaçlı village. Mikdat Özeken who was 18 years old and Münür Sarıtaş who was 13 years old, had come to Ağaçlı village that day to collect wood.

The applicants applied to the Yüksekova Commando Battalion and asked for information about their relatives. They were informed that on 2 November 1995 the Commander Mehmet Emin Yurdakul had notified the Hakkari Brigade Command of the suspects’ arrest. The Commander Yurdakul had also stated in his message no: 7130-3978-95/3443 that Şemsettin Yurtseven , Mikdat Özeken and Münür Sarıtaş had been released. Commander Yurdakul later denied the arrest of the applicants’ relatives. The applicants claim that they do not have a copy of this document in their possession.

On 6 November 1995 the applicants applied to the Ministry of Human Rights and to Mustafa Zeydan , the MP for their constituency. On the same day, they also sent two petitions to the Turkish Parliament and to the Ministry of Interior. On 7 November 1995 they filed a written petition with the Hakkari Gendarmerie Headquarters and on 13 November 1995 with the Yüksekova Public Prosecutor, Diyarbakır Gendarmerie Headquarters and the Governor of the Emergency Region in Diyarbakır . The applicants repeated their applications to the same authorities on subsequent dates.

On 27 December 1995 the Public Prosecutor of Yüksekova , after having examined the incident and having taken the witnesses’ evidence, decided that he lacked jurisdiction to examine the alleged crime committed by soldiers while on duty. He affirmed further that the military judicial authorities had jurisdiction to prosecute the soldiers for the alleged crime. Thus, he sent the file to the military prosecutor of the 21st Van Brigade Command.

Since the arrest of their relatives on 27 October 1995 the applicants have obtained no information about their relatives’ whereabouts.

2. The facts as submitted by the Government

According to the information obtained from the gendarmerie no security operation was conducted in Ağaçlı village on 25 [27] October 1995.

According to the information obtained from the Yüksekova District’s Security Headquarters, Şemsettin Yurtseven , Mikdat Özeken and Münür Sarıtaş had not been taken into custody.

Emin Yurdakul , the commander of the Yüksekova Commando Battalion, stated in his letter of 16 November 1995 that no operation had been conducted on 27 October 1995 in the area and that the applicants’ relatives had not been taken into custody.

Tuncay Kavuncu , the commander of the Hakkari Mountain Commando Brigade, stated in his letter of 4 March 1996 that the applicants’ relatives had been spotted on 27 October 1995 carrying some equipment in a vehicle to be delivered to the outlawed PKK organisation. It had not been possible to identify the licence plate number of this vehicle. The applicants’ relatives were never seen again. No operation was carried out by the Hakkari Mountain Commando Brigade in the village.

Five village guards, who were questioned by the gendarmerie , stated that they had no information about the events.

On 3 October 1996 a statement was taken from Sabri Yurtseven by the gendarmerie . Mr Yurtseven stated that his uncle had disappeared. He repeated his allegations in his statement taken on 5 March 1997.

The investigation conducted by the gendarmerie showed that Åžemsettin Yurtseven , who, according to the applicants had disappeared, was alive and living with his son Zinnar in Orman District. He was 73 years old and had difficulty in walking. He was also blind. Zinnar Yurtseven stated in his statement that it was not his father Åžemsettin who was missing but it was his uncle Abdulkerim who was missing.

On 30 September 1996 Sabri Yurtseven , Abdullah Özeken and Sabri Sarıtaş stated in their statement that Şemsettin Yurtseven , who was 73 years old, was missing.

On 21 May 1997 Sabri Yurtseven stated that his father “ Abdulkerim ” who was also known as Şemsettin or Şemo among the villagers, was missing.

On 22 May 1997 Zinnar Yurtseven stated that his uncle was missing and that Ali Yurtseven was his brother. A copy of this statement was not sent to the Court.

The fact that the alleged missing person was referred to in these statements as Sabri’s father and Ali’s uncle, disproved the allegation that Şemsettin Yurtseven was missing.

3. Documents submitted by the parties

The following information appears from documents pertaining to the investigation into the disappearance of the applicants’ relatives and the trial followed.

On 6 November 1995 Ali Yurtseven , the first applicant, submitted two petitions to the Turkish Parliament and to the Ministry of the Interior. He alleged that his father had been taken away on 27 October 1995 by members of the Hakkari Mountain Commando Battalion. Despite his repeated requests to the authorities, no information was given to him about his father’s fate. He also gave the names of six villagers who had witnessed the incident.

On 7 November 1995 Ali Yurtseven submitted a statement to the Security Commander’s Office. He repeated his allegations that his father had been taken away on 27 October 1995 by members of the Hakkari Mountain Commando Battalion and requested the authorities to give information about his father’s fate. In his statements the first applicant included the names of six villagers who had witnessed the incident.

On 13 November 1995 Ali Yurtseven submitted a petition to the Yüksekova public prosecutor. He stated that, despite his previous petition submitted to the prosecutor, he had not received any information about his father’s fate. He alleged that his father had been taken away by members of the security forces on 27 October 1995. He believed that his father was dead as the authorities did not give any information to the contrary. Furthermore, his statement addressed to the Hakkari Mountain Commando Battalion was not accepted; he was not even permitted to see the commander. He asked the prosecutor to give information about his father’s fate.

Also on 13 November 1995 Ali Yurtseven submitted a petition to the Governor of the Emergency Region in which he repeated his allegations and also requested information about his father’s fate.

On 27 December 1995 the Yüksekova public prosecutor’s office decided that it lacked jurisdiction to investigate the offence of kidnapping on the ground that the alleged perpetrators of the offence were members of the armed forces. The prosecutor sent the investigation file to the military prosecutor of the 21st Van Brigade Command.

On 28 May 1996 the military prosecutor of the 21st Van Brigade Command decided that the alleged offence was not a military offence as it was not committed in a military area and the victims of the offence were civilians. He took a decision of non-jurisdiction and sent the file to the prosecutor’s office at the Diyarbakır State Security Court.

On 14 April 1997 the prosecutor at the Diyarbakır State Security Court concluded that the ordinary criminal courts had jurisdiction to try the offence of intentional killing and took a decision of non-jurisdiction. In this decision the applicants’ relatives were referred to as “the deceased persons” and Mehmet Emin Yurdakul , Nihat Yiğiter and Kahraman Bilgiç were referred to as “the defendants who had been arrested and currently being detained”. According to this decision, the same defendants were also allegedly responsible for the killing of Abdullah Canan (this killing is the subject of another application currently pending before the Court; Canan v. Turkey, Application No.39436/98). According to the witness statements and the evidence in the prosecutor’s possession, an operation was conducted in Ağaçlı village between 25-28 October 1995 by the commandos attached to the Yüksekova Mountain Commando Battalion and under the command of Mehmet Emin Yurdakul . The applicants’ relatives were taken into custody and Şemsettin Yurtseven later died as a result of the blows he received to his body. The two remaining relatives were taken into the shooting range situated within the Battalion and were shot and killed by Nihat Yiğiter , an army captain and Kahraman Bilgiç , a confessor [1] .  They were buried in the same place but were later exhumed and thrown into the River Nil. The prosecutor sent the investigation file to the chief public prosecutor’s office in Hakkari for further steps to be taken.

On 13 June 1997 the Hakkari chief public prosecutor filed a bill of indictment with the Hakkari Assize Court. The chief public prosecutor stated that the information obtained indicated that Şemsettin Yurtseven was beaten to death by Mehmet Emin Yurdakul after he was taken into custody during an operation conducted in Ağaçlı village between 25-28 October 1995. Mikdat Özeken and Münür Sarıtaş , who had witnessed this killing, were themselves later shot to death by Kahraman Bilgiç and Nihat Yiğiter . The prosecutor, referred to a statement given by Sabri Yurtseven on 21 May 1997. Sabri Yurtseven stated that it was not his uncle Şemsettin but it was his father Abdulkerim who was taken away. This was confirmed by Zinnar , the son of Şemsettin . Both Sabri and Zinnar confirmed that the missing Abdulkerim was also known as “ Şemsettin ” among the villagers. The public prosecutor decided to refer to the missing person as “ Abdulkerim Yurtseven ” and submitted that the evidence in the file justified the prosecution of Mehmet Emin Yurdakul , Nihat Yiğiter and Kahraman Bilgiç for the murders of the applicants’ relatives.

On 31 October 1997 the Hakkari Assize Court decided to seek authorisation from the Administrative Board of the district of Yüksekova to put Mehmet Emin Yurdakul and Nihat Yiğiter on trial. The ground invoked for the request to obtain authorisation was that these defendants were working as army officers at the time they had allegedly committed the offences. The court also took a decision to release Mehmet Emin Yurdakul on bail. It appears from this decision that the Nihat Yiğiter had already been released on bail on 7 May 1997. The Hakkari Assize Court also decided to continue the trial of Kahraman Bilgiç .

On 4 June 1998 the Yüksekova district administrative board declined to grant authorisation for the prosecution of the two army officers on the ground that there was not sufficient evidence to prove that they had committed the offence with which they were charged. Pursuant to the relevant domestic law, this decision was appealed ex officio to the Regional Administrative Court in the province of Van.

On 10 November 1998 the Regional Administrative Court in Van quashed the decision of the Yüksekova district administrative board and granted the authorisation sought by the Hakkari Assize Court.

On 12 November 1999 the Hakkari Assize Court acquitted Mehmet Emin Yurdakul , Nihat Yiğiter and Kahraman Bilgiç for lack of sufficient evidence to prove that they had killed the applicants’ relatives. The statement taken from Kahraman Bilgiç on 25 February 1997 during the course of the preliminary investigation was regarded by the trial court as the main evidence in the case and was extensively referred to in the judgment . Mr Bilgiç stated, inter alia , the following:

“I have joined the soldiers who were carrying out an operation in the area covering Yediveren and Dirik villages. However, the terrorists we were pursuing managed to escape to Iran. On our way back from the operation we came to Ağaçlı village where we gathered the male villagers in the village square and beat them up. We took three of these villagers to the Battalion. The older of the three villagers died as a result of having been kicked by Mehmet Emin Yurdakul , the commander of the Battalion. We then had a meeting to consider the situation and Mehmet Emin Yurdakul gave us an order to kill the other two villagers as they had witnessed the killing. Nihat Yiğiter and I took the two villagers to the shooting range located in the Battalion and shot them dead by firing from G3 rifles. I later learned that these persons were Şemsettin ( Abdulkerim ) Yurtseven , Mikdat Özeken and Münür Sarıtaş ”.

It also appears from the judgment that Kahraman Bilgiç repeated his allegations during a hearing on 17 November 1997. However, this time he alleged that it was not him who shot the two villagers but that Captain Nihat Yiğiter and Bülent Yetüt , a first-lieutenant, had shot them in the shooting range.

The following information appears from the judgment :

Mr Ayhan Kocabaş , who was the public prosecutor in Yüksekova at the time when the three villagers disappeared, stated in his testimony before the trial court that he had been informed about the incident by the relatives of the three disappeared persons. He had then phoned Mehmet Emin Yurdakul to verify the accuracy of the allegations but he had been told by Mr Yurdakul that he did not have to give any explanations on this matter.

Mr Hasan Sevinç , who was performing his military service under the command of Mehmet Emin Yurdakul at the time of the events, stated in his testimony before the trial court that he had heard that Mikdat Özeken , Münür Sarıtaş and Abdulkerim Yurtseven were detained in the Battalion and were killed. He did not know how or where these persons were killed.

Bedirhan Yemen, Salih Kına , Sabır Akçelik and Nazire Koray , who were living in the same village as the applicants, also testified before the trial court. They stated that the soldiers had come to their village and beat up all the men in the village. Afterwards they took Şemsettin Yurtseven , Mikdat Özeken and Münür Sarıtaş away.

A number of witnesses who had performed their military service at the Yüksekova Battalion at the time of the events stated that they had never witnessed anything illegal during their time in the army.

The Hakkari Assize Court reached, inter alia , the following findings in its reasoning:

“In the light of the evidence set out above and in particular the testimonies of the villagers in whose village the operation had taken place, there is corroborating evidence that an operation had been conducted by the Yüksekova Mountain Commando Battalion in Karlı village and Şemsettin ( Abdulkerim ) Yurtseven , Mikdat Özeken and Münür Sarıtaş were taken away by the soldiers in a military vehicle. There is, however, no evidence in the file to show what has happened to these persons after they were taken away on 27 October 1995. In other words, their fates are unknown. There is no evidence in the file other than the allegations made by Kahraman Bilgiç during the course of the preliminary investigation on 25 February 1997 -which he later repeated during the trial proceedings- to prove that the disappeared persons had been taken to the Battalion after the operation and that Şemsettin had died as a result of been beaten up by the commander Mehmet Emin Yurdakul , that the other two had been killed as they had witnessed the killing of Şemsettin . Furthermore, Kahraman Bilgiç did not mention these allegations when he gave a statement on 5 December 1996. He also changed his story on 17 November 1997 and stated that it was not him who killed the two remaining villagers together with Major Nihat Yiğiter but it was Bülent Yetüt , a first-lieutenant. Finally, the fact that the bodies were never recovered casts doubts on the accuracy of the claims that these persons had died”.

The court also decided to request the prosecutor to open an investigation into the disappearance of the three persons as there was evidence in the file indicating that Mehmet Emin Yurdakul had exceeded his powers and detained these persons without authorisation.

An appeal lodged by the applicants’ lawyer against the Hakkari Assize Court’s judgment was rejected by the Court of Cassation on 2 April 2001.

B. Relevant domestic law and practice

1. Criminal law and procedure

Under the Turkish Criminal Code ( T ü rk Ceza Kanunu , hereafter CC) unlawful deprivation of liberty (Article 179 generally, Article 181 in respect of civil servants), all forms of intentional homicide (Articles 448-455), unintentional homicide (Articles 452 and 459) constitute criminal offences.

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure ( Ceza Muhakemeleri Usulü Kanunu , hereafter CCP), with the public prosecutor or the local administrative authorities. Under Article 235 of CCP, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duty is liable to imprisonment. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of CCP. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

If a suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. If it concerns a “military offence” under the Military Criminal Code (Law No. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and the pertaining rules of criminal procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353).

2. State of Emergency

Since approximately 1985, serious disturbances have raged in the south-east part of Turkey between security forces and members of the PKK. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

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

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

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

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

Under section 3 of the Prevention of Terrorism Act (Law No. 3713 of 12 April 1991), the offence defined in Article 168 of CC is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of CC is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to section 9 (a) of Law No. 2845 on the Procedure in the National Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of National Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Articles 168 and 169 of the CC.

Public prosecutors are also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Article 4 § 1 of Decree No. 285 provides that all security forces under the command of the Regional Governor shall be subject, in respect of acts performed in the course of their duties, to the Law on Proceedings on the Prosecution of Civil Servants.

Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must issue a decision of non-jurisdiction and, depending on the suspect’s status, transfer the file to either the District or the Provincial Administrative Council ( İl ç e or İl idare kurulu ). These councils are made up of civil servants and are chaired by the District or Provincial Governor. They conduct the preliminary investigation and decide whether or not a prosecution should be instituted. These councils have been criticised for their lack of legal knowledge, as well as for being easily influenced by the District or Provincial Governors, who also head the security forces.

An appeal against a decision by a District Administrative Council lies with the Regional Administrative Court. If a decision not to prosecute is taken, the case is automatically referred to that court. An appeal against a decision taken by a Provincial Administrative Council lies with the Council of State ( Danıştay ). If a decision not to prosecute is taken, the case is automatically referred to the Council of State.

If a decision to prosecute has been taken, the case is referred to the public prosecutor for further action.

4. Constitutional provisions on administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts and decisions of the Administration are subject to judicial review ... The administration shall be liable for damage caused by its own acts and measures.”

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

Under section 13 of Law No. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring proceedings before the administrative courts, whose proceedings are in writing.

5. Civil law provisions

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Civil Obligations ( Borçlar Kanunu ), an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Civil Obligations and non-pecuniary or moral damages awarded under Article 47 of this Code. The civil courts are not bound by the findings of a criminal court as to a defendant’s liability (Article 53).

However, under section 13 of Law No. 657 on State employees, anyone who has sustained loss as a result of the exercise of official duties by a civil servant may, in principle, only bring an action against the public authority in whose service the civil servant concerned works and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Civil Obligations). If, however, the act is found to be illegal or tortious and, consequently, is no longer considered as an “administrative” act or deed, the civil courts may allow a claim for damages against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Civil Obligations).

COMPLAINTS

The applicants complain under Article 2 of the Convention that there was a substantial risk that their relatives died whilst in unacknowledged detention, given that there exists a high incidence of deaths in custody, some as a result of torture. They also complain of the lack of any effective State system for ensuring protection of the right to life.

Invoking Article 3 of the Convention, they refer to their inability to discover what has happened to their relatives.

They complain of a breach of Article 5 of the Convention in respect of the unlawful detention of their relatives, the failure of the authorities to inform their relatives of the reasons for their detention and to bring them before a judicial authority within a reasonable time, as well as the inability to bring proceedings to have the lawfulness of their relatives’ detention determined.

As to Article 6 of the Convention, the applicants submit that their relatives were not heard within a reasonable time by an independent and impartial tribunal established by law. They also complain that their relatives were not informed promptly or in detail of the nature and cause of the accusation against them.

Invoking Article 7 of the Convention, on the basis of the same facts, the applicants complain that the reasons for their relatives’ detention are not provided for by law.

THE LAW

The applicants complain of violations of Articles 2, 3, 5, 6 and 7 of the Convention in connection with the disappearance of their relatives. The relevant parts of these provisions provide as follows:

Article 2

“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.

...”

Article 3

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

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

Article 6

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....

...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...”

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government argue that the application should be declared inadmissible as being premature as the investigation into these allegations is still pending before the office of the Hakkari public prosecutor. They further argue that, as two of the family members gave conflicting statements concerning the identity of the missing person, the complaint concerning the disappearance of Åžemsettin Yurtseven should be declared inadmissible as being manifestly ill-founded.

The applicants maintain their allegations and submit that the trial of the three defendants who are allegedly responsible for their relatives’ disappearance began almost three years after their relatives’ disappearance and therefore it would not provide a remedy for their complaints.

The Court observes that the investigation mentioned by the Government was concluded on 2 April 2001 when the Court of Cassation rejected the appeal lodged by the applicants’ lawyer against the Hakkari Assize Court’s judgment .

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact 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 has been established.

For these reasons, the Court unanimously

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

Søren Nielsen Françoise Tulkens              Deputy Registrar President

[1] İtirafçı ; confessor; a term used to describe a defected member of an illegal organisation who provides the authorities with information about that organisation.