CEDH · CASELAW;REPORTS;ENG — 24 octobre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s76CF415B { page-break-before:always; clear:both }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 22729/93                                 Mehmet KAYA                                   against                                   Turkey                          REPORT OF THE COMMISSION                        (adopted on 24 October 1996)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-40) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-35). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 36-40) . . . . . . . . . . . . . . . . . . . . . 5   II.    ESTABLISHMENT OF THE FACTS       (paras. 41-141) . . . . . . . . . . . . . . . . . . . . . . . 6         A.    The particular circumstances of the case            (paras. 42-137). . . . . . . . . . . . . . . . . . . . . 6         B.    Relevant domestic law            (paras. 138-141) . . . . . . . . . . . . . . . . . . . .19   III.   OPINION OF THE COMMISSION       (paras. 142-213). . . . . . . . . . . . . . . . . . . . . . .20         A.    Complaints declared admissible            (para. 142). . . . . . . . . . . . . . . . . . . . . . .20         B.    Points at issue            (para. 143). . . . . . . . . . . . . . . . . . . . . . .20         C.    The evaluation of the evidence            (paras. 144-173) . . . . . . . . . . . . . . . . . . . .20         D.    As regards Article 2 of the Convention            (paras. 174-182) . . . . . . . . . . . . . . . . . . . .26              CONCLUSION            (para. 183). . . . . . . . . . . . . . . . . . . . . . .28         E.    As regards Article 3 of the Convention            (paras. 184-187) . . . . . . . . . . . . . . . . . . . .29              CONCLUSION            (para. 188). . . . . . . . . . . . . . . . . . . . . . .29         F.    As regards Article 6 para. 1 of the Convention            (paras. 189-196) . . . . . . . . . . . . . . . . . . . .29              CONCLUSION            (para. 197). . . . . . . . . . . . . . . . . . . . . . .30                              TABLE OF CONTENTS                                                                    Page         G.    As regards Article 13 of the Convention            (paras. 198-201) . . . . . . . . . . . . . . . . . . . .30              CONCLUSION            (para. 202). . . . . . . . . . . . . . . . . . . . . . .31         H.    As regards Article 14 of the Convention            (paras. 203-207) . . . . . . . . . . . . . . . . . . . .31              CONCLUSION            (para. 208). . . . . . . . . . . . . . . . . . . . . . .32         I.    Recapitulation            (paras. 209-213) . . . . . . . . . . . . . . . . . . . .32   CONCURRING OPINION OF MM. S. TRECHSEL, L. LOUCAIDES AND B. CONFORTI. . . . . . . . . . . . . . . . . . . .33   PARTLY DISSENTING OPINION OF MRS. G.H. THUNE. . . . . . . . . . . .35   PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . . . . .36   PARTLY DISSENTING OPINION OF MM. J.-C. SOYER ET E. BIELIUNAS CONCERNING ARTICLE 2 OF THE CONVENTION. . . . . . . . . . . . . . .38   PARTLY DISSENTING OPINION OF MR. N. BRATZA JOINED BY MR. G.B. REFFI. . . . . . . . . . . . . . . . . . . . . .39   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .40   1.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Turkish citizen, born in 1949 and resident in Dolunay village in the district of Lice in South-East Turkey. He was represented before the Commission by Mr. K. Boyle and Ms. F. Hampson, both teachers at the University of Essex, England. The application is brought by the applicant on his own behalf and on behalf of his deceased brother, Abdulmenaf Kaya.   3.     The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. A. Gündüz.   4.     The applicant alleges that his brother was unlawfully killed by security forces on 25 March 1993 and that this event was not adequately investigated by the State authorities. He invokes Articles 2, 3, 6, 13 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 23 September 1993 and registered on 1 October 1993.   6.     On 29 November 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 11 April 1994 after one extension of the time-limit fixed for this purpose. The applicant submitted further information and observations in reply on 6 June and 7 July 1994.   8.     On 20 February 1995 the Commission declared the application admissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 8 March 1995. The Government were requested to provide a copy of the autopsy report of the applicant's brother and a copy of the findings of fact, with any supporting evidence, made by the Public Prosecutor at the Diyarbakir State Security Court. The parties were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates. Neither party availed itself of this possibility prior to the expiry of the time-limit fixed for this purpose.   10.    On 1 July 1995 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr. H. Danelius, Mr. B. Conforti and Mr. J. Mucha. It notified the parties by letter of 20 July 1995, proposing certain witnesses and requesting the Government to identify the commander or commanders of the security forces involved in the incident on 25 March 1993 and the Public Prosecutors at Lice and the Diyarbakir State Security Court involved in the investigation of that incident. The Government were also requested to provide the contents of the investigation file which should include, in particular, the autopsy report, the photographs taken at the scene and the field report of the security forces concerning the incident. It was subsequently decided that oral evidence would be taken by the Delegates at a hearing on 9 November 1995.   11.    The Government submitted a copy of the autopsy report on 11 August 1995. On 11 September 1995 they provided the names of two Public Prosecutors who had been involved in the investigation of the incident.   12.    By letter dated 15 September 1995 the applicant requested that two further witnesses be heard.   13.    On 15 September 1995 the Government provided the name of the commander of the security forces involved in the incident.   14.    By letter of 26 September 1995 the Commission again requested the Government to submit copies of the investigation file, including in particular any photographs taken at the scene, any field reports by the security forces concerning the incident and any statements made by members of the security forces involved, and of the findings of fact made by the Public Prosecutor at the Diyarbakir State Security Court. The Government were further requested to indicate whether the commander of the security forces identified by them had in fact been on the scene of the incident when it happened and, if not, to identify the commanding officers who had been present.   15.    On 11 October 1995 the Commission requested the Government to identify the gendarmes present at the incident.   16.    By letter of 24 October 1995 the Commission urgently requested the Government to provide copies of the still outstanding documents, to confirm whether the commander of the security forces identified by them had in fact been on the scene of the incident, and to identify the gendarmes present at the incident.   17.   On 30 October 1995 the Government submitted a number of documents from the preliminary investigation file held by the Public Prosecutor at the Diyarbakir State Security Court.   18.    On 1 November 1995 the applicant's representatives notified the Commission that because of fear for reprisals the applicant did not find it possible to attend the hearing planned for 9 November 1995. They added that the applicant intended to provide an explanation for his absence in writing. The applicant's representatives further informed the Commission that a witness by the name of Hikmet Aksoy had been convicted and sentenced in absentia and would not appear at the hearing to give evidence.   19.    Evidence was heard by the Delegates of the Commission in Diyarbakir on 9 November 1995. For health reasons, one of the Delegates, Mr. Mucha, was not able to attend the hearing. Before the Delegates the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr. T. Özkarol, Mr. A. Sölen, Mr. A. Kaya, Mr. A. Kurudal, Ms. N. Erdim and Mr. A. Kaya. The applicant, who did not appear in person, was represented by Mr. K. Boyle, counsel, assisted by Ms. A. Reidy, Mr. O. Baydemir and Ms. D. Deniz (interpreter).   20.    By letter of 28 November 1995, the Commission requested the Government to submit a document which had been shown to the Delegates by Mr. Gündüz at the hearing containing a statement made by Hikmet Aksoy to a Public Prosecutor.   21.    On 2 December 1995 the Commission decided to take further evidence in the case in Strasbourg. The applicant would be heard on that occasion as well as other witnesses who had not appeared at the earlier hearing. The new hearing was to take place on 7 and 8 March 1996.   22.    The parties were informed of the decision to hold a further hearing by letter of 12 December 1995. The applicant's representatives were requested to confirm in writing that the applicant and the witness Hikmet Aksoy would attend. The Government were requested to submit copies of the photographs which had been annexed to the autopsy report regarding the applicant's brother.   23.    By letter of 10 January 1996 the applicant's representatives informed the Commission that the witness Hikmet Aksoy was too afraid to attend the hearing. The attendance of the applicant at the hearing could not be confirmed.   24.    On 16 January 1996 the parties were requested to inform the Commission whether in view of these circumstances they nevertheless wished to hear the remaining witnesses.   25.    On 20 January 1996 the Commission decided not to maintain the hearing of further witnesses if the parties had not responded to the request of 16 January 1996 before the expiry of the time-limit fixed for that purpose. It also decided that in that event the parties should be invited to present their written conclusions on the merits of the case.   26.    No reply to the request of 16 January 1996 was received from the parties before the expiry of the time-limit.   27.    By letter of 22 January 1996 the Government submitted a copy of the statement made by Hikmet Aksoy to a Public Prosecutor.   28.    On 7 February 1996 the Commission reminded the Government of the request still outstanding for copies of the photographs annexed to the autopsy report of the applicant's brother.   29.    By letter of 8 March 1996 the Government informed the Commission that the attempts made by the Public Prosecutor at the Diyarbakir State Security Court to locate and obtain the photographs which had been annexed to the autopsy report had so far been unsuccessful. The search for these photographs would, however, continue.   30.    On 11 March 1996 the applicant submitted his final observations on the merits.   31.    The Government submitted their final observations on 29 April 1996, after expiry of the time-limit set for that purpose. On 30 May 1996 the Government submitted a reaction to the applicant's final observations.   32.    Upon instruction by the Delegates the Commission's Secretariat requested the Government on 9 August 1996 to submit further information and documents. The Government have not responded to this request.   33.    On 2 October 1996 the applicant's representatives asked the Commission whether they would be entitled to ask questions concerning the present case of the witness Hikmet Aksoy during a hearing in a number of different applications, scheduled to take place in November 1996, in which he had also been summoned to give evidence. For this hearing the Government had been requested to produce Hikmet Aksoy since he was being held in detention.   34.    The Commission decided on 15 October 1996 that Hikmet Aksoy should not be asked again to give evidence.   35.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement could be effected.   C.     The present Report   36.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ   37.    The text of this Report was adopted on 24 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   38.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   39.    The Commission's decision on the admissibility of the application is annexed hereto.   40.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   41.    The facts of the case, in particular those which relate to the events of 25 March 1993, are in dispute between the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has examined written material, as well as oral testimony, presented before the Delegates. The Commission first presents a brief outline of the events, as submitted by the parties, and then a summary of the evidence adduced in this case.   A.     The particular circumstances of the case   1.     Concerning the events of 25 March 1993         a.    Facts as presented by the applicant   42.    The various accounts of events as submitted in written statements by the applicant are summarised in Section B below. The version as presented in the applicant's final observations on the merits is summarised here.   43.    On the morning of 25 March 1993 the applicant's brother, Abdulmenaf Kaya, was going to the fields situated 300-400 metres from the village Çiftlibahçe and four kilometres from his own village of Dolunay, with Hikmet Aksoy. At that time a military operation was going on and Hikmet Aksoy was taken into custody. Seeing this, Abdulmenaf Kaya began to run away as he was frightened that he would also be taken into custody. The soldiers saw him running and opened fire injuring Abdulmenaf Kaya. The soldiers pursued him and found him in the bushes. They opened fire on him, riddling his body with bullets. Villagers witnessed this. The soldiers then planted a fire arm on him and took photographs. The soldiers eventually handed over the body of Abdulmenaf Kaya to villagers in the neighbourhood who had first explained to the soldiers that Abdulmenaf Kaya was an inhabitant of a neighbouring village and not a terrorist.         b.    Facts as presented by the Government   44.    In their written submissions on the merits of the application the Government submit that it appears from the oral evidence and other material before the Commission that Abdulmenaf Kaya's death did not occur in the manner and under the circumstances described by the applicant. In their observations on the admissibility of the application they stated that the facts were as follows.   45.    On 25 March 1993 security forces conducting a field search at Dolunay village came under fire. There was an exchange of fire for some time and after the firing had stopped the search was continued. A body was recovered next to which a Russian-made automatic assault weapon and ammunition belonging to it were found. Photographs were taken of the body and a field report was drawn up by members of the security forces conducting the operation.   46.    On the same day an official autopsy was carried out by the Lice Public Prosecutor and the Lice State doctor. The autopsy report showed that bullet wounds had caused the death. The identity of the deceased was found out at a later stage.   47.    Hikmet Aksoy was not taken into custody on 25 March 1993. The authorities were seeking to arrest him as he was a member of the illegal PKK terrorist organisation.   2.     Proceedings before the domestic authorities   48.    In their observations on the admissibility of the application the Government submitted that a preliminary investigation had been initiated by a Public Prosecutor at Lice. It appears from the documents submitted to the Commission that this investigation concerned Abdulmenaf Kaya's involvement in an armed clash with the security forces on 25 March 1993. On 20 July 1993 Ekrem Yildiz, Public Prosecutor at Lice, issued a decision of non-jurisdiction and transferred the file to the Public Prosecutor at the Diyarbakir State Security Court. It appears that the investigation is currently still pending there.   49.    On 17 June 1994 a Public Prosecutor, apparently at the request of the Chief Public Prosecutor at the Diyarbakir State Security Court, took a statement in relation to the death of Abdulmenaf Kaya from Hikmet Aksoy while the latter was detained at Lice.   50.    In their final observations on the merits of the case the Government submit that the matter is currently also pending before the Lice Administrative Board for further investigation. No further details concerning this investigation have been submitted.   B.     The evidence before the Commission   1.     Documentary evidence   51.    The parties submitted various documents to the Commission. These included reports drawn up in the course of the investigation on the domestic level into the death of the applicant's brother and statements from the applicant concerning his version of the events in the case.   52.    The Commission had particular regard to the following documents:         a.    Official documents         i.    Incident report of 25 March 1993   53.    This report is a handwritten document, signed by six members of the security forces, amongst whom Alper Sir, Pasa Bülbül, Ahmet Gümüs and Altan Berk.   54.    It states that on 25 March 1993 around 09.00 hours a group of military forces, consisting of four teams, carried out a field search near the village of Dolunay. During the search an unspecified number of PKK members opened fire upon the teams and fire was returned. When firing had ceased the search was continued and, at the location where the firing had started, the body of a PKK member, a Kalashnikov rifle with serial number 59339, a cartridge clip and three rounds of live ammunition were found.         ii.   Autopsy report of 25 March 1993   55.    The report states that following a telephone call from the District Gendarmerie Headquarters on 25 March 1993 to the effect that the body of a person belonging to the PKK terrorist organisation had been captured during a clash, the Public Prosecutor Ekrem Yildiz and the District Government Doctor Arzu Dogru set out by military helicopter, accompanied by a gendarme staff sergeant who was to act as clerk.   56.    On arrival at the scene the body was found to be lying on its back in the bushes on the bank of a creek. It was moved to a flat piece of ground. Beside the body there was a Kalashnikov rifle with serial number 8125298 and one round of ammunition containing three full and six empty cartridges. The body is described as being that of a 35-40 year old man with grey hair and dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but no socks. Since there was no one at the scene of the incident who could identify the deceased, the security forces took photographs from several angles.   57.    A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and around the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the blows received.   58.    The report goes on to say that the medical examiner was brought over, that the body was handed over to him and that he made the following statement:   <translation>       "I established the above findings together with the Public       Prosecutor, and I agree that the findings are as described above.       As the result of these findings, the cause of death is clear.       There is no need to carry out a classical autopsy. The conditions       in the field combined with the fact that we do not have       sufficient security or instruments are in any case an impediment       to performing a full classical autopsy. From the above findings       I have come to the conclusion that the deceased died from       cardiovascular insufficiency as a result of the wounds caused by       firearms. That is my definite opinion."   59.    The report further states that the rifle and the ammunition were seized for safekeeping as corpus delicti. It concludes by stating that the forensic examination of the body and the autopsy procedure had been completed. The report is signed by, inter alia, Alper Sir as the person receiving the body.         iii. Report of identification of 5 May 1993   60.    This is a handwritten document signed by three members of the security forces. It states that on 25 March 1993 a member of the illegal PKK organisation entered into an armed conflict with the security forces and was found dead as a result of the clash in the fields of Dolunay village. An investigation established that the deceased was Abdulmenaf Kaya, a resident of Dolunay.         iv.   Decision of non-jurisdiction of 20 July 1994   61.    This decision, issued by a Public Prosecutor at Lice, Ekrem Yildiz, lists as accused of the crime of conducting an armed clash with the security forces Menaf Kaya, who was killed, and a group of PKK members. It states that the preparatory documents of investigation were examined.   62.    The decision goes on to describe the incident by stating that on 25 March 1993 search activities were carried out by the security forces near the village of Dolunay. These forces were met by an unspecified number of members of the illegal PKK organisation. The armed conflict, which ensued between the parties, resulted in the finding of the dead body of one terrorist, one Kalashnikov rifle, one cartridge clip, three rounds of live ammunition and six rounds of empty cartridges. The rifle was sent to a criminal investigation laboratory and a report is still pending.   63.    The Public Prosecutor concludes that the nature of the incident, the aims of the suspect and the fact that the incident occurred at a location where the state of emergency is in force indicate that the incident should be investigated by the Public Prosecutor at the Diyarbakir State Security Court in accordance with Section 11 of Act No. 2845.         v.    Letter of 9 March 1994 from a District Gendarme Commander       to the office of the Chief Public Prosecutor at the Diyarbakir       State Security Court   64.    This letter appears to be a reply to a letter dated 7 March 1994 from the Chief Public Prosecutor at the Diyarbakir State Security Court. It states that an investigation has shown that Hikmet Aksoy, who has been summoned to the office of the Chief Public Prosecutor, is understood to be a PKK member and to be alive. Upon his arrest he will be transferred as summoned.         vi.   Letter of 10 January 1996 from Bekir Selçuk, Chief Public       Prosecutor at the Diyarbakir State Security Court, to the       Ministry of Justice, International Law and External Relations       General Directorate   65.    This letter concerns the search for the photographs which were taken of Abdulmenaf Kaya. It states that the photography session was recorded in the incident report and that the body of Abdulmenaf Kaya was released to the village mayor for burial.         b.    Statements by the applicant         i.    Statement dated 31 March 1993 taken by Abdullah Koç of the       Diyarbakir branch of the Human Rights Association   66.    At around 08.00 hours in the morning of 25 March 1993 Abdulmenaf Kaya and Hikmet Aksoy were going to the fields 300-400 metres from Çiftlibahçe village and four kilometres from Dolunay village. At that time a military operation was starting in Boyunlu, Dolunay, Çiftlibahçe and Ormankaya villages. Soldiers participating in the operation took Hikmet Aksoy into custody. Seeing this, Abdulmenaf Kaya started to run upon which the soldiers opened fire. Abdulmenaf Kaya ran the remaining 300-400 metres to Çiftlibahçe and hid there in the bushes. The soldiers found him there and, according to eye-witnesses, fired over 100 bullets into his body, planted a firearm on him and took photographs. They did not want to give the body to the villagers, but the villagers insisted that the deceased was from a neighbouring village and that he was not a terrorist. Finally, the soldiers gave the body to the villagers.   67.    Later, the commander of the military unit threatened the inhabitants of Çiftlibahçe and Dolunay with the destruction of their villages.   68.    Most of the people who came to offer their condolences on the death of Abdulmenaf Kaya suffered abuse of various kinds.   69.    Hikmet Aksoy has been in custody ever since the incident.         ii.   Supplementary statement dated 20 September 1993 taken by       Sedat Aslantas of the Diyarbakir branch of the Human Rights       Association   70.    Abdulmenaf Kaya was injured while he was running. The security forces followed him when he went to the bushes where they killed him.   71.    Only the security forces took photographs of the body. When the applicant's family received the body they had to bury it immediately. An autopsy was conducted but the applicant was not given a copy of the autopsy report.   72.    The witnesses who saw the body of Abdulmenaf Kaya have left the village, being frightened of the security forces and the intimidation to which they would be subjected if they spoke out publicly.   73.    Abdulmenaf Kaya left a wife and seven children.         c.    Statements by other persons         Hikmet Aksoy         i.    Statement dated 17 June 1994 taken by Özcan Küçüköz, Lice       Public Prosecutor   74.    This statement was taken following a letter dated 17 May 1994 from the Public Prosecutor at the Diyarbakir State Security Court. When Aksoy made the statement, he was detained in Lice prison for possession of hashish.   75.    Like Aksoy, Abdulmenaf Kaya was from the village of Dolunay. On 25 March 1993 Aksoy left his house to go and tend his beehives which were situated on a piece of land along a road between Dolunay and Çiftlibahçe. When he reached the entrance of the village, he met Abdulmenaf Kaya who wanted to come along with him.   76.    When he reached the beehives, he heard some people running and saw about ten soldiers approaching him. The soldiers tied up his hands and asked who he was and why he was wandering about. Two or three minutes later the soldiers noticed Abdulmenaf Kaya running away. The soldiers shouted after Abdulmenaf Kaya and told him to stop, but he either did not hear them or chose to ignore them as he increased his walking pace. The second lieutenant ordered the soldiers to shoot at Abdulmenaf Kaya's feet. At that time Abdulmenaf Kaya was approximately fifty to sixty metres away.   77.    When the soldiers started shooting at his feet, Abdulmenaf Kaya started running towards Çiftlibahçe. The soldiers chased him, taking Aksoy along with them. Abdulmenaf Kaya disappeared beyond a slope and when the soldiers reached the slope he was nowhere to be seen. They then came to the approximately ten houses which are situated at some small distance from Çiftlibahçe where they encountered some other soldiers who said that they had seen Abdulmenaf Kaya. Aksoy and the soldiers waited in the street for about half an hour. Then he heard shots being fired; he estimates that three full cartridge clips were shot in succession. About ten minutes later a helicopter landed but it was too far away from Aksoy for him to be able to see what was happening. The helicopter left again after ten minutes. Later a first lieutenant approached Aksoy and told him that they had killed Menaf.   78.    Aksoy was taken to Lice and kept in custody for fifteen days.         ii.   Statement dated 22 November 1995 taken by two police       officers of the anti-terrorist branch   79.    This statement was submitted by the applicant's representatives as an appendix to their final observations on the merits of the application. Aksoy is said to have made this statement whilst in detention following his arrest on 14 November 1995.   80.    Aksoy states how from 1990 he provided food to groups of PKK members who came to his village of Dolunay. From 1991 he was also involved with ensuring the attendance of villagers at funerals of terrorists.   81.    In March 1992 six PKK members came to the village and told him to go and get Abdulmenaf Kaya. After Abdulmenaf Kaya had appeared, he and one of the PKK members talked to each other in a separate place. Two months later three PKK members came with a group totalling ten people. Abdulmenaf Kaya was told to organise the attendance of villagers at a funeral. Two months after that the military staged an operation during which Abdulmenaf Kaya died.         iii. Statement dated 23 November 1995 to a Public Prosecutor   82.    Aksoy retracts the statement of 22 November 1995 (paras. 79-81), saying that he was forced to sign a statement which the police had written.   83.    He denies the accusations that have been made against him, namely that he acted as a courier for the PKK. In this statement he does not mention Abdulmenaf Kaya.   2.     Oral evidence   84.    The applicant did not give evidence before the Commission's Delegates at the hearing in Diyarbakir nor could it be confirmed that he would appear at a subsequent hearing which the Delegates intended to hold in Strasbourg and which was subsequently cancelled. It was submitted on behalf of the applicant that he was afraid of possible reprisals should he give evidence before the Commission.   85.    Nor did it prove possible to ensure the appearance of all the other persons summoned by the Delegates to be heard during the hearing in Diyarbakir.   86.    Hikmet Aksoy, witness to the alleged events, sent a note dated 8 November 1995 to the Commission in which he stated that he would not give evidence during the hearing in Diyarbakir as police had put pressure on him and his family in order to stop him from doing so. However, he submitted that his earlier statements concerning the killing of Abdulmenaf Kaya were correct. Moreover, the applicant's representatives submitted that although Hikmet Aksoy was eager to give evidence at a hearing in Strasbourg, he felt it would be irresponsible to do so.   87.    On 2 October 1996 the applicant's representatives requested that Hikmet Aksoy should again be asked to give evidence in the present case during a hearing relating to other cases in which he had also been summoned as a witness and in which the Government had been requested to ensure his appearance as he was being held in detention (para. 33). The Commission decided, however, that Hikmet Aksoy should not be asked again to give evidence on that occasion (para. 34). It considered in this respect that Hikmet Aksoy had on two occasions clearly indicated that he did not wish to appear before the Delegates to give evidence and the Commission had not been informed that he had changed his mind. Since in proceedings before the Commission witnesses cannot be forced to give evidence, the Commission found that it would be inappropriate, in view of Hikmet Aksoy's previous decision not to give evidence and in the absence of any new declaration by him regarding his position on this matter, to ask him questions in the present case at a time when he was being held in detention and was thus unable to decide himself whether or not he should appear before the Delegates.   88.    At the hearing in Diyarbakir, the Public Prosecutor at Lice, Ekrem Yildiz, who had been present at the autopsy performed on the body of Abdulmenaf Kaya and who had issued a decision of non-jurisdiction was also unavailable to give evidence as he had been assigned to a Voting Committee and his presence was required elsewhere. In respect of the Public Prosecutor at the Diyarbakir State Security Court, the Government submitted that he had let it be known that he had only been involved in the investigation before the Diyarbakir State Security Court and not in the investigation conducted in the Lice Prosecutor's office during which the evidence would have been gathered. He therefore felt that he would be unable to give relevant information pertaining to the investigation and had decided not to attend the hearing.   89.    The evidence of five witnesses heard by the Delegates may be summarised as follows:         i.    Dr. Arzu Dogru   90.    Dr. Dogru stated that he was born in 1969. In March 1993 he had been practising as a Government doctor at the Lice Central Health Clinic. Although he remembered the circumstances under which the autopsy on the applicant's brother had taken place, he had no independent recollection of his findings. At the time of the autopsy he had been practising as a doctor for less than a year.   91.    He explained that as a Government doctor he would be called upon by a Public Prosecutor to conduct an autopsy if and when a body was found. An autopsy would also be carried out if a death occurred in suspicious circumstances.   92.    On 25 March 1993 the Public Prosecutor had informed him that a dead body had been found and that an autopsy was to be conducted. They had gone to the site together with a clerk in several helicopters. The helicopters had landed between some hills. He had been afraid since something could have happened at any moment.   93.    It had been his duty to decide whether the person who had been found was dead or alive and, if dead, to find out the cause of death. He could not remember whether he had been told in advance of the autopsy that the body belonged to a terrorist.   94.    The body had been found next to the river and he had had it moved to a place where the surface was flatter. There had been no houses in the area. Reading from the autopsy report, he described the dress of the deceased. He confirmed that photographs had been taken and he assumed that these would have been annexed to the autopsy report.   95.    During the autopsy only the Public Prosecutor and the clerk had been present. There had been no forensic expert and no other onlookers. He had counted the number of entry and exit wounds and had dictated that part of the autopsy report which dealt with the lesions on the body. The report had been drawn up as the autopsy was being conducted and he had signed it on the spot.   96.    He explained from the autopsy report that there had been many bullet wounds on various parts of the body. The legs had also been broken. It had been determined that death had occurred through cardiovascular insufficiency as a result of bullet wounds. He estimated that the body must have been hit by approximately seven or eight bullets. When it was put to him that according to witnesses the body had been riddled with bullets, he said that if there had been more entry and exit wounds they would have been included in the report. It was not within the scope of his expertise to say whether just one or two bullets were capable of fracturing the bones of both legs. However, both legs must have been hit since the report stated that there was an entry hole on the femur of each leg. He stated that it would be impossible for a person with two legs broken in this manner to either run or walk.   97.    Since the report did not contain any finding of an entry wound on the back of the body, it could be concluded that there had been no such wound.   98.    He had not drawn a map of the body indicating the location of the entry and exit wounds, the recording of these wounds in the report being sufficient. In this respect it was of no importance that the deceased was said to have been a terrorist. He had no opinion as to whether such a sketch of the body might be of assistance in any subsequent investigation relating to criminal liability.   99.    The autopsy had consisted of an external examination. In view of the fact that this examination had enabled him to establish the cause of death, there had been no need for a classical autopsy. Consequently, he was unable to say whether any bullets had been lodged in the body. He did not know whether bullets lodged in the body might have contributed to the determination of the weapon which had fired them. Moreover, his expertise did not extend to determining the distance from which the bullets had been fired.   100. He did not remember to whom the body had been handed over after the autopsy. Since the identity of the deceased had been unknown at the time, he thought it unlikely that the body had been handed over to a relative. He was not aware of any subsequent investigation into the incident.   101. He was not a member of the Turkish Medical Association and was unaware that this Association has called for greater independence for doctors when conducting autopsies.         ii.   Alper Sir   102. Sir said that he was born in 1967. In March 1993 he had been in charge of a commando unit as a Gendarme First Lieutenant. He had begun work in the area of the villages of Dolunay and Çiftlibahçe in 1991. As regards the general security situation he said that the terrorists were very active in the Lice area.   103.   A military operation had been planned on 25 March 1993 after information had been received that terrorists were hiding in the area of the villages of Dolunay and Çiftlibahçe. He had taken part in the operation with four teams, each consisting of thirteen or fourteen soldiers. When the teams had arrived in the area assigned to them, he had ordered them to deploy themselves in a line formation. As the teams had been advancing, they had come under fire.   104.   H