SECOND SECTION

Application no. 37715/11 Dursun SAYÄžI against Turkey lodged on 17 December 2010

STATEMENT OF FACTS

The applicant, Mrs Dursun Sayğı , is a Turkish national who was born in 1966 and lives in the town of Suruç , near the city of Şanlıurfa in south-east Turkey . She is represented before the Court by Mr Sedat Gözkıran , a lawyer practising in Şanlıurfa .

The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents submitted by her, may be summarised as follows.

Prior to 1994 the applicant ’ s husband Mustafa Sayğı was arrested on a number of occasions on suspicion of his alleged links with the PKK.

On 3 June 1994 Mustafa Sayğı was travelling on his motorbike from Suruç town centre to his nearby village when, according to a number of eyewitnesses who lived in nearby villages, he was stopped and detained by soldiers from a commando battalion which had set up a temporary base in a public building near Yoğurtçu village.

The eyewitnesses subsequently informed the family about the incident and Mustafa Sayğı ’ s elder brother, Mehmet Sayğı , went to the military base in Yoğurtçu village, where he was informed that his brother had been transferred to the gendarmerie station in Suruç . When Mehmet Sayğı went to the gendarmerie station in Suruç he was told that his brother ’ s questioning was continuing and that it would probably continue for another three days.

When Mustafa Sayğı was not released, Mehmet Sayğı went to the Suruç prosecutor ’ s office and informed the prosecutor of the detention of his younger brother. When the prosecutor contacted the military authorities he was told that Mustafa Sayğı had never been detained by the military. The family ’ s subsequent attempts to find Mustafa Sayğı did not yield any results.

In 2005 the applicant, together with the mother and elder brother of Mustafa Sayğı , made another application to the Suruç prosecutor and asked the prosecutor to make further enquiries in order to find Mustafa Sayğı .

After having conducted a number of inquiries and questioned the eyewitnesses and soldiers, Suruç prosecutor D.K. concluded in his decision of 13 July 2006 that Mustafa Sayğı had been unlawfully detained by the military in a temporary military base near Yoğurtçu village. The prosecutor did not attach any weight to the denials of the military personnel who had been on duty at the time of Mustafa Sayğı ’ s detention, and considered that the military personnel ’ s denials had been outweighed by the consistent eyewitness accounts of three villagers. Nevertheless, having regard to the fact that the statute of limitations for the offence of false imprisonment had already expired, the prosecutor concluded that he could not indict the military personnel responsible for the unlawful detention of Mustafa Sayğı . The prosecutor also considered that there was insufficient evidence to prove that Mustafa Sayğı had been killed while in the hands of the soldiers.

On 11 December 2009 a number of soldiers saw Mustafa Sayğı ’ s elder brother Mehmet digging an area. Mehmet Sayğı told the soldiers that he had had a dream and that, according to his dream, his brother Mustafa Sayğı was buried in that place.

Subsequently the Suruç prosecutor went to the area and ordered the place to be dug up. During the digging a number of bones, fabrics and the remains of a motorbike were found and, together with soil samples, they were sent for a forensic examination. The applicant informed the prosecutor about the disappearance of Mustafa Sayğı , and asked the prosecutor to establish whether the bones belonged to her disappeared husband.

Gendarmerie forensic experts who examined the metal parts found in the area considered that the parts belonged to a motorbike. The experts were not able, however, to identify the type or make of the motorbike due to corrosion.

The bones were examined at the Forensic Medicine Institute. It was established that the bones were animal bones but that the soil on the bones did not match the soil samples taken from the place.

On 7 April 2010 Suruç prosecutor M.A. decided to close his investigation on the basis that the bones were not human bones. He also stated in his decision that there was no evidence to show that Mustafa Sayğı had been arrested by the soldiers or to show that there had been a temporary military base near Yoğurtçu village at the time of the incident.

The applicant lodged an objection with the Siverek Assize Court against the prosecutor ’ s decision and argued that the investigation had been incomplete. She submitted, in particular, that the prosecutor had failed to have regard to the conclusion reached by his predecessor in 2006, namely that her husband had been unlawfully detained by soldiers. She also submitted that the bones had been dug up in the presence of a prosecutor and secured by that prosecutor. Thus, having regard to the finding that the soil on the bones did not match the soil samples, the prosecutor should have considered the possibility that the bones might have been switched.

The objection was rejected by the Siverek Assize Court on 7 June 2010. No mention was made in the decision about the points raised by the applicant in her objection. The Assize Court ’ s decision was communicated to the applicant on 21 June 2010.

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention that no effective investigation was conducted into the new evidence discovered in 2009.

QUESTIONS TO THE PARTIES

Having regard to the procedural protection of t he right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII ; see also Gasyak and Others v. Turkey , no. 27872/03 , § § 60 and 63 , 13 October 2009 ), was the investigation conducted by the domestic authorities after 11 December 2009 in breach of Article 2 of the Convention? In this connection;

i ) What steps were taken by the Suruç prosecutor or the Siverek Assize Court to establish why the soil on the bones did not match the soil samples obtained from the place where they were found?

ii) Did the failure of the Suruç prosecutor and the Siverek Assize Court to have regard to the finding of the decision reached by that prosecutor ’ s predecessor in 2006 (see Soruşturma No . 2005/208 and Karar No . 2006/298) that Mustafa Sayğı had been detained by soldiers in 1994, have an effect on the outcome of the investigation?

The Government are also requested to send to the Court a copy of the investigation file, including the following:

i ) Documentary evidence showing the exact location of the temporary military base set up by the commando battalion in 1995 near the Yoğurtçu village, as well as the exact location where the bones and the motorbike parts were excavated;

ii) Documents pertaining to the excavation of the bones and motorbike parts;

iii) Reports drawn up at the Gendarmerie Forensic Office ( Jandarma Genel Komutanlığı Kriminal Daire Başkanlığı ) on 28 and 29 December 2009; and

iv) Report drawn up at the Forensic Medicine Institute ( Adli Tıp Kurumu Morg İhtisas Dairesi ) on 27 January 2010.