CEDH · CASELAW;REPORTS;ENG — 5 décembre 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 }                     EUROPEAN COMMISSION OF HUMAN RIGHTS                       Application No. 24276/94                              Koçeri KURT                                against                                Turkey                       REPORT OF THE COMMISSION                     (adopted on 5 December 1996)                           TABLE OF CONTENTS                                                                Page   I.    INTRODUCTION      (paras. 1-29). . . . . . . . . . . . . . . . . . . . . . . 1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1        B.    The proceedings           (paras. 5-24) . . . . . . . . . . . . . . . . . . . . 1        C.    The present Report           (paras. 25-29). . . . . . . . . . . . . . . . . . . . 3   II.   ESTABLISHMENT OF THE FACTS      (paras. 30-152). . . . . . . . . . . . . . . . . . . . . . 4        A.    The particular circumstances of the case           (paras. 31-56). . . . . . . . . . . . . . . . . . . . 4        B.    The evidence before the Commission           (paras. 57-141) . . . . . . . . . . . . . . . . . . . 8             1) Documentary evidence              (paras. 57-95) . . . . . . . . . . . . . . . . . . 8             2) Oral evidence               (paras. 96-141) . . . . . . . . . . . . . . . . .17        C.    Relevant domestic law and practice           (paras. 142-151). . . . . . . . . . . . . . . . . . .25        D.    Relevant international material           (para. 152) . . . . . . . . . . . . . . . . . . . . .26   III. OPINION OF THE COMMISSION      (paras. 153-263) . . . . . . . . . . . . . . . . . . . . .27        A.    Complaints declared admissible           (para. 153) . . . . . . . . . . . . . . . . . . . . .27        B.    Points at issue           (para. 154) . . . . . . . . . . . . . . . . . . . . .27        C.    Concerning the existence of a valid application           (paras. 155-157). . . . . . . . . . . . . . . . . . .27             Decision           (para. 158) . . . . . . . . . . . . . . . . . . . . .28        D.    The evaluation of the evidence           (paras. 159-182). . . . . . . . . . . . . . . . . . .28                           TABLE OF CONTENTS                                                                Page        E.    As regards the disappearance of the applicant's son           (paras. 183-216). . . . . . . . . . . . . . . . . . .35             1.    As regards Article 2 of the Convention                (paras 184-189). . . . . . . . . . . . . . . . .35             2.    As regards Article 3 of the Convention                (paras 190-197). . . . . . . . . . . . . . . . .37             3.    As regards Article 5 of the Convention                (paras 198-214). . . . . . . . . . . . . . . . .38             CONCLUSIONS           (paras. 215-216). . . . . . . . . . . . . . . . . .   42        F.    As regards Article 3 of the Convention in respect of the           applicant           (paras. 217-220). . . . . . . . . . . . . . . . . . .42             CONCLUSION           (para. 221) . . . . . . . . . . . . . . . . . . . .   43        G.    As regards Article 13 of the Convention           (paras. 222-230). . . . . . . . . . . . . . . . . . .43             CONCLUSION           (para. 231) . . . . . . . . . . . . . . . . . . . . .45        H.    As regards Articles 14 and 18 of the Convention           (paras. 232-235). . . . . . . . . . . . . . . . . . .45             CONCLUSIONS           (paras. 236-237). . . . . . . . . . . . . . . . . . .46        I.    As regards Article 25 of the Convention           (paras. 238-254). . . . . . . . . . . . . . . . . . .46             CONCLUSION           (para. 255) . . . . . . . . . . . . . . . . . . . . .50        J.    Recapitulation           (paras. 256-263). . . . . . . . . . . . . . . . . . .51   DISSENTING OPINION OF MM. S. TRECHSEL, C.A. NØRGAARD, F. MARTINEZ, G. RESS AND K. HERNDL . . . . . . . . . . . . . . . . . . . . .52   APPENDIX I   :   DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . .53     APPENDIX II :   RELEVANT INTERNATIONAL MATERIALS . . . . . . . .64   I.    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 resident in Bismil and born in 1927. She is represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both lecturers at the University of Essex.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. B. Çaglar.   4.    The applicant complains that her son Üzeyir Kurt has been taken into custody by the security forces and has "disappeared". She invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. She also complains of intimidation by the authorities contrary   to Article 25 para. 1 in fine of the Convention.   B.    The proceedings   5.    The application was introduced on 11 May 1994 and registered on 6 June 1994.   6.    On 30 August 1994, 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 before 11 November 1994. At the Government's request, this time- limit was subsequently extended until 11 December 1994.   7.    The Government's observations were received on 27 January 1995. The applicant's observations in reply were submitted on 27 March 1995.   8.    Following the receipt of information from the applicant's representatives dated 23 January 1995 and from the Government dated 9 February 1995 raising issues as to intimidation and validity of the exercise of individual petition, the Commission decided on 2 March 1995 to request the parties to respond to specific questions relating to this aspect of the case.   9.    Information was provided by the Government on 7 March and 10 April 1995 and by the applicant's representatives on 2 April and 5 May 1995.   10.   On 25 May 1995, the Commission declared the application admissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 2 June 1995 and they 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.   12.   The applicant's representatives made submissions on 19 and 25 May and 7 July 1995.   13.   On 6 September 1995, the Government made further submissions relating to the authenticity of the application in the context of the applicant's application for legal aid.   14.   On 21 October 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three delegates for this purpose: Mrs. G.H. Thune, Mr. N. Bratza and Mr. E. Konstantinov. It notified the parties by letter of 26 October 1995, proposing certain witnesses.   15.   On 27 October 1995, the Commission granted the applicant legal aid.   16.   On 6 November 1995, the Government wrote to the Commission enclosing a statement by the applicant dated 10 August 1995. The applicant's representatives responded by letter dated 4 December 1995, enclosing a statement by the applicant dated 2 December 1995.   17.   On 25 January 1996, the Government requested that additional witnesses be added to the Delegates' time-table.   18.   Evidence was heard by the delegation of the Commission in Ankara from 8 to 9 February 1996. Before the Delegates the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr. A. Sölen, Mr. A. Kurudal, Ms. N. Nerdim, Mr. A. Kaya, Mr. A. Polat, Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and Ms. A. Emüler. The applicant was represented by Ms. F. Hampson and Mr. O. Baydemir, as counsel, assisted by Ms. A. Reidy and Ms. D. Deniz (interpreter). Further documentary material was submitted by the Government during the hearing. At the conclusion of the hearing, and later confirmed by letter of 14 February 1996, the Delegates requested the Government to provide a certain document arising out of the hearing and for confirmation in writing of the explanation for the absence of certain witnesses.   19. On 2 March 1996, the Commission decided to invite the parties to present their written conclusions on the merits of the case by 20 May 1996.   20.   On 17 April 1996, the Government submitted a document, a copy of which the Commission already had in its file.   21.   At the request of the applicant, the time-limit was extended to 31 May 1996. Following a request by the Government, a further extension was granted until 1 July 1996.   22.   On 31 May 1996, the applicant submitted her final observations on the merits. The Government's final observations were submitted on 20 June 1996.   23.   By letter dated 19 September 1996, the Secretariat again asked the Government to provide a copy of the document which the Delegates had previously requested.   24.   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 can be effected.   C.    The present Report   25.   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                C.A. NØRGAARD                G. JÖRUNDSSON                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                E. BIELIUNAS                M. VILA AMIGÓ   26.   The text of this Report was adopted on 5 December 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.   27.   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.   28.   The Commission's decision on the admissibility of the application is attached hereto as an Appendix I.   29.   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   30.   The facts of the case, particularly concerning events on or about 23 to 25 June 1993, are disputed by 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 accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.   A.    The particular circumstances of the case   1.    Facts as presented by the applicant   31.   The various accounts of events as submitted in written and oral statements by the applicant and other members of her family are summarised in   Section B: "The evidence before the Commission". The version as presented in the applicant's final observations on the merits is summarised briefly here.        a.    concerning the disappearance of the applicant's son   32.   From 23 to 25 November 1993, security forces, made up of gendarmes and a number of village guards carried out an operation in Agilli village. On 23 November 1993 pursuant to intelligence reports that three terrorists would visit the village, the security forces took up   positions around the village. Two clashes followed. During the two days in the village they had conducted a search of each house. A number of houses, 10-12, were burnt down during the operation, including that of Koçeri Kurt and Mevlüde and Ali Kurt. Only three of the houses were near the clashes. Other houses were burnt down on a second, later occasion. However, it is established that many of the houses in the village were burnt down about this time and the villagers were told that they had a week to evacuate the village. The villagers fled to Bismil, many as they were homeless and those who were not being too scared to remain.   33.   According to the applicant, around noon on 24 November 1993, when the villagers had been gathered together by the soldiers in the schoolyard, the soldiers were looking for herson Üzeyir who was not in the schoolyard. He was hiding in the house of his aunt Mevlüde Kurt. When the soldiers asked Aynur Kurt, his daughter, where her father was, Aynur told them he was at his aunt's house. The soldiers went to Mevlüde's house with Davut Kurt, another son of the applicant, and took Üzeyir from the house. Üzeyir spent the night with soldiers in the house of Hasan Kiliç. On the morning of 25 November 1993, the applicant received a message from a child that Üzeyir wanted some cigarettes. The applicant took cigarettes and found Üzeyir in front of Hasan Kiliç's house surrounded by about 10 soldiers and 5-6 village guards. She saw bruises and swelling on his face as though he had been beaten. Üzeyir told her that he was cold. She returned with his jacket and socks. The soldiers did not allow her to stay so she left. This was the last time on which she saw Üzeyir. There is no evidence that he was seen elsewhere after this time.   34.   On 30 November 1993, the applicant applied to the Bismil public prosecutor to find out information on the whereabouts of her son Üzeyir. On the same day, she received a response from Captain Cural at the provincial gendarme headquarters stating that it was supposed that Üzeyir had been kidnapped by the PKK (the Kurdish Workers' Party). He made an identical reply on 4 December 1993. The district gendarme command noted on the bottom of the applicant's petition of 30 November that Üzeyir had not been taken into custody and that he had been kidnapped by the PKK.   35.   On 14 December 1993, the applicant applied to the State Security Court in Diyarbakir which replied that he was not in their custody records. On 15 December 1993, she tried the Bismil public prosecutor again but was referred to the gendarmerie. Finally on 24 December 1993, the applicant approached the Human Rights Association in Diyarbakir for help.   36.   On 28 February 1994, Davut Kurt, Arap Kurt and Mehmet Kurt were taken to the gendarme command and questioned about what they knew of "Üzeyir Kurt who was abducted by representatives of the PKK terrorist organisation". On 21 March 1994, the Bismil public prosecutor issued a decision of non-jurisdiction on the grounds that a crime had been committed by the PKK.        b.    concerning alleged intimidation and interference with the           exercise of the right of individual petition        i.    in respect of the applicant   37.   Since the applicant has submitted her application, she has been the target of an extraordinarily concerted campaign by the State authorities to make her withdraw her application.   38.   On 19 November 1994, the applicant was called to give a statement on the instructions of the Diyarbakir Chief State Prosecutor. In this statement she was questioned about the statement made to the Human Rights Association and her application to the European Commission of Human Rights. The applicant's representatives make reference to a statement by Mr. Tim Otty that the Diyarbakir Chief State Prosecutor considers it an offence to make ill-founded and unwarranted applications to the European Commission of Human Rights.   39.   On 9 December 1994, the applicant signed a statement which said that her petitions were written by the PKK terrorist organisation and her petitions were being used for propaganda. A copy was sent to the Human Rights Association.   40.   On 6 January 1995, the applicant was called by the State authorities to go to a notary, and was accompanied there by a soldier. She did not pay the notary. The statement which was signed was identical to that of 9 December 1994 with the addition of a paragraph   purporting to say that she had withdrawn her application.   41.   On 25 January 1995, a statement was taken by the Chief State Prosecutor's office, as part of a file prepared by the authorities for the purpose of bringing a complaint against the applicant's lawyer, Mr. Mahmut Sakar.   42.   On 8 August 1995, the applicant made another statement before a notary which purported to withdraw her application. While she was not forced to say anything to the notary and she told them what she wanted to be written, the statements do not represent her wishes and she had no opportunity to verify the contents of the statements.        ii. actions taken against the applicant's lawyer Mr. Sakar   43.   The applicant states that the authorities have taken steps with a view to prosecuting Mr. Mahmut Sakar for his involvement in her petition to the European Commission of Human Rights. She refers to a request made in a document dated 12 January 1995 by   Mr. Özkarol of the Foreign Ministry Human Rights directorate that an investigation be opened against Mr. Sakar, who was suspected of exploiting the applicant and had made a petition against Turkey.   2.    Facts as presented by the Government   44.   Agilli is a thirty-six household village. From this village and its surroundings, about fifteen men and women have joined the PKK, which is a high ratio for such a small village. These include Turkan Kurt, the daughter of Musa Kurt, one of the applicant's sons.   45.   While an operation did take place in the village and clashes occurred between the security forces and suspected terrorists, Üzeyir Kurt was not taken into custody by the security forces. He had no history of previous detention or problems with the authorities and there was no reason for him to be taken into custody.   46.   The Government submit that there are strong grounds for believing that Üzeyir Kurt has in fact joined or been kidnapped by the PKK. They refer to the fact that the family allege that his brother died in gendarme custody several years before; the fact that the applicant stated that he hid when the security forces arrived in the village; and the fact that his house was burnt down following the clash in the village. Further, some members of the family had already joined the PKK and several months after the operation in the village a shelter was found outside the village which it was said that Üzeyir Kurt had used in his contacts with the PKK. Villagers have also stated that they heard that he had been kidnapped by the PKK.   47.   The Government submit that Üzeyir could have hidden in the village at the commencement of the operation and then, under cover of darkness and poor weather, slipped through the security forces blockade. Mehmet Karabulut stated that in the night following the first clash Üzeyir was in Mevlüde's home sleeping but that when he woke in the morning Üzeyir was no longer there. The only person who claims to have seen Üzeyir after that is the applicant, whose accounts are inconsistent, contradictory and unsubstantiated. In particular, it is pointed out that she stated that persons in the schoolyard were blindfolded, which was not true; her statements to the HRA (Human Rights Association) and to the Commission in her application refer to one visit to her son to give cigarettes, whereas in her oral testimony she referred to two visits; her descriptions of how she received a message from her son vary and she could not identify the alleged child involved in delivering the message. In addition,   her account of making two visits passing through the village when the security forces stated they were keeping people in their houses for security reasons is implausible.   48.   The Government also point to the allegations originally made in the applicant's application to the Commission in which it was stated that the soldiers killed the livestock and pillaged goods as well as beating the villagers. These matters were denied orally by the applicant before the Delegates.   49.   The Government submit that the applicant was not subjected to any pressure not to give evidence before the Delegates as was alleged in strong terms by the applicant's representatives before and at the beginning of the proceedings.   50.   The Government submit that the applicant has clearly stated that she does not wish to make a complaint against the State. Her only concern is to find her son and it was for that purpose she went to the HRA. She had never been subject to pressure to make any statement; no soldiers were around her when she made statements; there was an interpreter and her statement was read out to her before she fingerprinted it.   3.    Proceedings before the domestic authorities   51.   On 30 November 1993, the applicant submitted a thumbprinted petition to the Bismil prosecutor. It stated that her son had been taken into custody following a clash between the gendarmes and the PKK at her village and she was doubtful as to his fate. She requested that she be informed of his fate. On the same date the prosecutor passed the petition to the district gendarme command with a handwritten request for the information to be provided. The district gendarme command noted in handwriting on the petition the same day that it was not true that Üzeyir Kurt had been taken into custody - it was supposed that he may have been kidnapped by the PKK.   52.   By letter dated 30 November 1993, Captain Izzet Cural, under heading of the provincial gendarme command, informed the Bismil Chief State prosecution in answer to their unnumbered letter that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists.   53.   By letter dated 4 December 1993, Captain Cural, district gendarme commander, under heading of the district gendarme command at Bismil, informed the Bismil Chief State prosecution that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists (identical terms to the letter of 30 November in the preceding paragraph).   54.   On 14 December 1993, the applicant submitted a fingerprinted petition to the Chief Prosecutor at the State Security Court at Diyarbakir. She stated that her son Üzeyir had been taken into custody 20 days previously by gendarmes and since they had had no news, they were concerned for his life. She requested that information be given to her as regarded his whereabouts. On the bottom of the petition, the Chief State Prosecutor noted in handwriting the same day that the name Üzeyir Kurt was not in their custody records.   55.   On 15 December 1993, the applicant submitted a second written petition to the Bismil public prosecutor which repeated the terms of her petition of 14 December. The prosecutor wrote on the petition an instruction to gendarme regional command to provide her with the information requested.   56.   On 21 March 1994, the Bismil public prosecutor, Ridvan Yildirim, issued a decision of dismissal. The document identifies the complainant as the applicant and the victim as Üzeyir Kurt. The crime was identified as membership of an outlawed organisation and kidnapping and the suspects as members of the PKK. The text of the decision stated that following a clash between the PKK and the security forces, PKK members escaped from the village, kidnapping the said victim. Since this crime fell with the jurisdiction of the State Security Courts, the case was dismissed and referred, with the file, to the Diyarbakir State Security Court.   B.    The evidence before the Commission        1)    Documentary evidence   57.   The parties submitted various documents to the Commission. The documents included reports about Turkey (including extracts on Turkey from the Report of the United Nations Working Group on Enforced or Involuntary Disappearances (E/CN.4/1995/36)) and statements from the applicant and witnesses concerning their version of the events in issue in this case.   58.   The Commission had particular regard to the following documents:        a) Statements by the applicant        Statement of 24 December 1993 taken by the HRA (Diyarbakir)   59.   On 23 November 1993, at about 18.00 hours, a clash broke out at Agilli village, during which three houses were set on fire and two people were killed, one of whom was Mahmut Cakmak. The following morning, the soldiers collected all the villagers in the village school, separating the men from the women. The men were ill-treated, being forced to lie on the ground. During the   three days that the villagers were kept in the school grounds during the day, and in places like stables at night, the soldiers burned down all the houses with all their contents and slaughtered the livestock.   60.   When the clash broke out, the applicant's son Üzeyir Kurt was at the home of his aunt Mevlüde where he remained during the first night. The following day, when the villagers were collected together, he hid in his aunt's house. He was afraid since two years previously his brother Abdulkadir Kurt had died from ill-treatment in custody. When the soldiers asked Aynur Kurt (15 years old) where her father Üzeyir Kurt was, she told them. The soldiers went to Mevlüde's house with the applicant's son Davut and Üzeyir was brought out. He was taken to the house of Hasan Kiliç and held there during the night. In the morning, a child told Hasan Kiliç's wife that Üzeyir wanted cigarettes and clothes. The wife came to the applicant with this message at about 07.00 hours. The applicant obtained half a packet of cigarettes from a soldier and a jacket and jumper from one of the burnt houses and took these to Hasan Kiliç's house. She found her son in the yard, with 8-9 soldiers around him. He had swellings round his eyes and had been tortured. She gave the things to her son and was told to go away by the soldiers before she was able to talk to him. She has not seen her son since that time.   61.   The applicant went to stay with her sister in Bismil since her house had been burned down. She applied to many places concerning her son's whereabouts but was told that he was not in custody but that he might have been killed by the PKK. She saw him in custody with her own eyes and suspects that he has been killed under torture.        Statement of 19 November 1994 taken by the Bismil public      prosecutor   62.   The applicant was asked about her complaint and shown her petitions. She said that she had petitioned the State Security Court and Bismil prosecutors and had given a petition to the HRA. She was an old person and could not remember if all the fingerprints she was shown belonged to her. The contents of the petition letters to the prosecutors were true. The letter to the HRA was written by someone else since she was illiterate. While it was true as stated in that letter that there was a conflict, that some houses were burnt and the villagers gathered by the security forces, she denied that they were tortured, the livestock slaughtered or the villagers' possessions plundered. She had not said anything like that. There was an armed conflict in the evening and the escaping terrorist was shot in the early morning. Later the villagers were assembled together. The soldiers told her that her son wanted   cigarettes and clothing. She got cigarettes from a soldier, collected clothing from home and delivered them to her son. It was not true that her son had been tortured, only that his face looked like it was swollen. When she gave the clothing to her son, he said that the State would do nothing to him. She did not see him being taken away by the soldiers. Since one of her other sons had died in custody, she was suspicious that Üzeyir would also die in custody. This was why she made the petitions.        Statement of 7 December 1994 taken by gendarmes   63.   On the evening of 23 November 1993 there were sounds of shooting. She did not leave her house, which she lived in with the family of her deceased son Abdulkadir. After sunrise, the security forces gathered everyone in the schoolyard, separating men and women. After identities had been checked they were released. Her son Üzeyir was with the soldiers - the place which he was in was crowded and there were other villagers. She heard some villagers were taken but according to them Üzeyir was not with them. He was not in the village and they made enquiries. The gendarmerie said that he was not in custody. She would very much like an investigation to be carried as to her son's whereabouts, whether he was dead or alive.        Statement of 9 December 1994 addressed to the HRA (Diyarbakir)   64.   The applicant stated that she had made many applications to find out news of her son's fate. She was illiterate and she had learned that certain institutions and individuals had made use of her for propaganda. The PKK is named as using incorrect petitions made in her name and with her fingerprint. Her intentions, that her son was missing and that she wanted the security forces to look for him, had been distorted and for this reason, she revoked all petitions written and sent off in her name. She did not want her son to be used as propaganda material for any terrorist organisation. She wanted his whereabouts to be investigated by the State, which she trusted and which would shed light on the matter.        Statement of 9 December 1994 addressed to the Foreign      Ministry, Ankara   65.   This statement is identical to that made to the HRA above.        Statement of 6 January 1995 taken before the Bismil notary   66.   After the confrontation between the terrorists and soldiers on 23 November 1993, the applicant's son was placed in custody by the soldiers and since then she had had no news of him. She had applied to several places, including the European Commission of Human Rights and Amnesty International. She had learned that an ill- founded petition had been made in her name and using her thumbprint by the PKK terrorist organisation, accusing the security forces of her son's disappearance. She had applied to the HRA for her son to be found which was her only aim. She rejected the application made to the European Commission of Human Rights in her name and did not wish to pursue it. Her only desire was for the State to find her son and she had trust in the State which would resolve the matter.        Statement of 25 January 1995 taken by the Chief Prosecutor's      office at Diyarbakir   67.   On 23 November 1993, village guards and soldiers came to the village, searched it and burned several of the houses. They interrogated 10-15 persons who were released but took her son with them and left, since which time she had had no news of him. She had given petitions to Bismil, Tepe station, the State of Emergency Governor' office, the Chief Prosecutor's offices in Bismil and Diyarbakir; to the Diyarbakir State Security Court Chief Prosecutor's office. The Regional Governor's office and the Bismil battalion command sent replies saying that her son had been kidnapped by the terrorists. Ismail Sari was also taken from the village at the same time as her son. He came back to the village having been 15 days with village guards. He said he had not seen her son. She did not believe her son had been kidnapped by the terrorists. If her son had gone to the mountains, she would not have asked the State. She only wanted to see her son again dead or alive. The soldiers were constantly questioning her about this matter. She had no complaint against anyone.        Statement of 10 August 1995 taken by the Bismil notary   68.   The applicant stated that she had approached the HRA not in order to file a complaint but intending only to seek help in an effort to locate her son. The statement taken down at the HRA, which she could not read as she was illiterate, was beyond her request or aim. She did not think that the State or security forces had any intentions concerning the disappearance of her son and such complaints were put into her statement without her agreement.        Statement of 2 December 1995 addressed to the HRA (Diyarbakir)   69.   Following her application to the Commission, the security forces have asked her many times to make statements. Each time she mentioned that she had seen her son Üzeyir behind the village under the surveillance of soldiers, that his face was bruised, that she had brought him cigarettes and then a coat as he said that he was cold. When she asked him what was happening, he had told her "Mother this is the State. Nothing will happen." As regarded her statement to the Bismil notary, she was summoned through the village mayor to file a statement. However, she did not deny her application or the statements which she made to the Commission. She would like to continue with her case.   She was worried about the safety of her two sons Musa and Davut. She wanted her son to be found, whether dead or alive.        Statement of 7 February 1996 taken by Bismil public prosecutor   70.   The applicant stated that she had already given long statements about this matter. She did not want to go to Ankara. Neither the administrative authorities, nor the gendarmes nor the police had put pressure on her not to go to Ankara. She had not declared that she was being prevented from doing so. It was her own wish not to go.        b) Statements by other persons        Arap Kurt, mayor of Agilli village        Statement of 23 February 1994 taken by gendarmes   71.   In this statement, the witness was asked for "his knowledge and observations that following a clash between the PKK and the security forces, PKK members escaped from the village, kidnapping the said victim". In response, the witness stated that he was the uncle of Üzeyir Kurt. Since he was kidnapped by the terrorists, they had had no news. Üzeyir had been missing since 25 November 1993 and he guessed that he had been kidnapped and kept by the terrorists.        Statement of 7 December 1994   72.   On 23 November 1993, there was an armed conflict in the village. Afterwards, he learned that two members of the PKK and Senior Sergeant Uysal, Tepe station commander, had been killed. Following the clash, the security forces thoroughly searched the village and assembled the villagers in the schoolyard to check their identities. Twelve persons including himself and Mehmet Karabulut were taken into custody for one night at the gendarme command. Üzeyir Kurt was not with them. They were released after being interrogated.        Davut Karakoç        Statement of 28 February 1994 taken by gendarmes   73.   In this statement, the witness was asked for "his knowledge and observations about the hostage Üzeyir Kurt, taken by the PKK terrorist organisation". In response, the witness stated that he was the cousin of Üzeyir Kurt, who had been kidnapped by the PKK, since when they had had no news. They did not know his whereabouts, which mountain he was in or what he was doing. He had only heard that his cousin had been kidnapped by the PKK but did not know how. That was all he knew about the matter.        Mehmet Kurt        Statement of 28 February 1994 taken by gendarmes   74.   In this statement, the witness was asked for "his knowledge and observations about the hostage Üzeyir Kurt, taken by the PKK terrorist organisation". In response, the witness stated that he was the cousin of Üzeyir Kurt, who had been kidnapped by the PKK, since when they had had no news. They did not know his whereabouts, which mountain he was in or what he was doing. He had only heard that his cousin had been kidnapped by the PKK. That was all he knew about the matter.        Hasan Kiliç        Statement of 7 December 1994 taken by gendarmes   75.   On the evening of 23 November 1993, there was an armed conflict between the PKK and the security forces as a result of which many houses were burnt. Towards midnight, at the beginning of 24 November, Üzeyir appeared at his house.   The security forces who were carrying out a search of the village arrived at his house and because it was very cold, the commanding officer, a first lieutenant, asked if they could sit down. The witness made them welcome and they had tea and talked until morning. The applicant came to his house and talked to Üzeyir by the door and then they both left together. The soldiers who were his guests also left that morning. He did not hear or see Üzeyir ask children for cigarettes or a pullover and it was not true that his children asked the applicant for these things. The soldiers definitely did not leave with Üzeyir.        Aynur Kurt        Statement of 7 December 1994 taken by gendarmes   76.   Aynur Kurt said that she was the daughter of Üzeyir. There was a conflict at the village on 23 November 1993.She was sitting at home with her father. The security forces arrived and evacuated the house. Her father hid himself in the house. They were taken to the school, identities were checked and afterwards they dispersed. She did not see her father being caught by the security forces.        Mevlüde Kurt        Statement of 7 December 1994 taken by gendarmes   77.   The witness stated that she was the step-sister of Üzeyir Kurt. On the night of 23 November 1993 she was at home. There was an armed conflict and they heard shooting. In the morning they were all gathered at the school where there was a brief identity check. The houses were searched.   There was a fire in the village as a result of the conflict. She did not see anyone being taken into custody.        Musa Kurt        Statement of 7 December 1994 taken by gendarmes   78.   The witness was Üzeyir Kurt's elder brother. On the evening of 23 November 1993, he was in his house and heard sounds of shooting. In the morning the security forces gathered the villagers, men and women separately, in the school yard. They carried out an identity check and searched the houses. He did not see his brother Üzeyir Kurt among the gathered people in the yard nor during the search. He did not see anyone being taken into custody. He heard that some villagers had been taken and when these persons were released he asked them, but they said that they had not seen his brother. All he asked was that the State investigated whether his brother was dead or alive and, if alive, notify of his whereabouts.        Hazal Karakoç        Statement of 7 December 1994 taken by gendarmes   79.   The witness was Üzeyir Kurt's elder sister. On the evening of 23 November 1993, she was in his house and heard sounds of shooting. In the morning the security forces gathered the villagers, men and women separately, in the school yard. They carried out an identity check and searched the houses. She did not see her brother Üzeyir Kurt among the gathered people in the yard nor during the search. Later they dispersed and everyone went to their houses. She heard that some villagers had been taken but did not know whether Üzeyir was amongst them. Some 3-4 days passed and they realised that he was not in the village. The people who were released said that he had not been with them. She did not see her brother being taken into custody.        Mekdeni Goktas        Statement of 7 December 1994 taken by gendarmes   80.   The witness was elected mayor of Bashan village and a village guard. He said that five days after the armed conflict in Agilli village, one of the villagers returned with Ismail Sari whom he was intending to hire as a shepherd with the agreement of the village. Since Sari demanded too much money, however, no agreement was reached. Sari stayed in the village two days. He asked also to be employed as a village guard but there was no post available. His mother came to the village and they left together. There was no-one called Üzeyir Kurt with Sari.        Mehmet Aydin        Statement of 7 December 1994 taken by gendarmes   81.   The witness was a village guard from Bashan. About five-six days after the conflict at Agilli, he saw Ismail Sari in front of the Bismil gendarme station. Sari said that he was afraid to go back to the village because of the PKK. The witness took him back to Bashan in order for him to take the job of village shepherd but they could not agree on the salary. Sari stayed in the village two days then left with his mother. There was no-one called Üzeyir Kurt with Sari.        Sadun Sari        Statement of 7 December 1994 taken by gendarmes   82.   The witness from Agilli village was the father of Ismail Sari. He said that Ismail had been in the village d