CEDH · CASELAW;REPORTS;ENG — 17 avril 1997

.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. 22496/93                             Salih TEKiN                               against                               Turkey                      REPORT OF THE COMMISSION                     (adopted on 17 April 1997)                          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). . . . . . . . . . . . . . . . . . .4   II.   ESTABLISHMENT OF THE FACTS      (paras. 41-168). . . . . . . . . . . . . . . . . . . . .6        A.    The particular circumstances of the case           (paras. 42-60). . . . . . . . . . . . . . . . . . .6        B.    The evidence before the Commission           (paras. 61-158) . . . . . . . . . . . . . . . . . .8             1)    Documentary evidence                (paras. 61-92) . . . . . . . . . . . . . . . .8             2)    Oral evidence                (paras. 93-158). . . . . . . . . . . . . . . 14        C.    Relevant domestic law           (paras. 159-168). . . . . . . . . . . . . . . . . 24   III. OPINION OF THE COMMISSION      (paras. 169-255) . . . . . . . . . . . . . . . . . . . 27        A.    Complaints declared admissible           (para. 169) . . . . . . . . . . . . . . . . . . . 27        B.    Points at issue           (para. 170) . . . . . . . . . . . . . . . . . . . 27        C.    The evaluation of the evidence           (paras. 171-200). . . . . . . . . . . . . . . . . 27        D.    As regards Article 2 of the Convention           (paras. 201-205). . . . . . . . . . . . . . . . . 35             CONCLUSION           (para. 206) . . . . . . . . . . . . . . . . . . . 35                          TABLE OF CONTENTS                                                             Page        E.    As regards Article 3 of the Convention           (paras. 207-215)   . . . . . . . . . . . . . . . . 35             CONCLUSION           (para. 216) . . . . . . . . . . . . . . . . . . . 37        F.    As regards Article 5 para. 1 of the Convention           (paras. 217-220). . . . . . . . . . . . . . . . . 37             CONCLUSION           (para. 221) . . . . . . . . . . . . . . . . . . . 38        G.    As regards Article 10 of the Convention           (paras. 222-225). . . . . . . . . . . . . . . . . 38             CONCLUSION           (para. 226) . . . . . . . . . . . . . . . . . . . 38        H.    As regards Article 6 para. 1 of the Convention           (paras. 227-231). . . . . . . . . . . . . . . . . 39             CONCLUSION           (para. 232) . . . . . . . . . . . . . . . . . . . 39        I.    As regards Article 13 of the Convention           (paras. 233-240). . . . . . . . . . . . . . . . . 39             CONCLUSION           (para. 241) . . . . . . . . . . . . . . . . . . . 41        J.    As regards Articles 14 and 18 of the Convention           (paras. 242-245). . . . . . . . . . . . . . . . . 41             CONCLUSIONS           (paras. 246-247). . . . . . . . . . . . . . . . . 41        K.    Recapitulation           (paras. 248-255). . . . . . . . . . . . . . . . . 42     PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . 43     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 44   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, born in 1964 and resident in Diyarbakir. He was represented before the Commission by Mr K. Boyle and Ms F. Hampson, both teachers at the University of Essex, England.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr A. Gündüz.   4.    The applicant alleges that he was ill-treated while he was being held in detention in Gendarme stations in Derinsu and Derik from 15 to 19 February 1993 and that this event was not adequately investigated by the State authorities. He invokes Articles 2, 3, 5 para. 1, 6 para. 1, 10, 13, 14 and 18 of the Convention.   B.    The proceedings   5.    The application was introduced on 14 July 1993 and registered on 16 July 1993.   6.    On 11 October 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 22 April 1994 after two extensions of the time-limit fixed for this purpose.   The applicant replied on 12 July 1994 after one extension of the time-limit.   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 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.   10.   On 18 May 1995 the Government submitted further observations after an extension of the time-limit fixed for this purpose.   11.   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 19 July 1995, proposing certain witnesses and requesting the Government to identify the public prosecutor at Derik to whom the applicant had complained on 19 February 1993, the public prosecutor who had conducted the investigation and the officers who had been involved in the interrogation of the applicant. The Government were also requested to provide the contents of the investigation file which should include, in particular, the notice dated 19 February 1993, signed by Musa Çitil, with three reports, and a copy of the decision not to prosecute. The applicant was requested to provide details of his medical history to which reference was made in the application. It was subsequently decided that oral evidence would be taken by the Delegates at a hearing on 8 November 1995.   12.   By letter dated 13 September 1995 the Government provided the names of two gendarme officers and of three public prosecutors who had been involved in the investigation of the alleged ill-treatment.   13.   On 15 September 1995 the applicant replied to the Government's further observations and submitted a copy of a judgment of the Diyarbakir State Security Court of 2 August 1993 in which he was acquitted of the offence for which he had been arrested in February 1993. He also requested that his father be heard as a witness. His representatives, moreover, stated that it had not yet been possible to obtain details concerning the applicant's medical history. By letter dated 9 October 1995 the applicant submitted further information.   14.   On 9 October 1995 the Commission reminded the Government of the outstanding requests for a number of documents. Furthermore, the Government were requested to indicate to which of the three public prosecutors identified by them the applicant had complained.   15.   By letter of 24 October 1995 the Commission urgently requested the Government to provide copies of the still outstanding documents and to name the public prosecutor to whom the applicant had complained.   16.   On 25 October 1995 the Government requested that the hearing be postponed in view of the fact that following a misunderstanding as to which cases would be heard they had not had sufficient time to prepare themselves for the hearing.   17.   On 27 October 1995 the Commission granted the applicant legal aid for the representation of his case.   18.   The Commission notified the Government on 30 October 1995 that the hearing of evidence in the present case would be maintained but that any witness unable to attend might be heard at a later date.   19.   On 30 October 1995 the Government submitted a number of documents, including the decision not to prosecute.   20.   By letter dated 1 November 1995 the applicant's representatives informed the Commission that they were still not in possession of the applicant's medical history.   21.   Evidence was heard by the Delegates of the Commission in Diyarbakir on 8 November 1995 from the applicant and his father, Haci Mehmet Tekin. 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. Solen, Mr A. Kaya, Mr A. Kurudal, Ms N. Erdim and Mr A. Kaya. The applicant was represented by Mr K. Boyle, counsel, assisted by Ms A. Reidy, Mr M. Sakar, Mr O. Baydemir and Ms D. Deniz (interpreter). Further documentary material was submitted by the applicant and the Government during the hearing, including a document containing information of the applicant's medical condition.   22.   On 2 December 1995 the Commission considered that the evidence heard was not conclusive and decided that a further hearing of oral evidence would take place in Strasbourg on 7 March 1996.   23.   On 23 January 1996 the Government submitted documents concerning the piece of cloth which, according to the applicant, had been used to blindfold him.   24.   By letter of 25 January 1996 the Commission requested the Government to submit a document which had been referred to as an arrest report by the Agent of the Government during the hearing on 8 November 1995.   25.   On 26 January 1996 the Government informed the Commission that one of the witnesses summoned to appear at the hearing on 7 March 1996 would not attend. They also proposed that a further three witnesses be heard.   26.   On 13 February 1996 the Government provided the document requested by the Commission on 25 January 1996.   27.   Further evidence was heard by the Delegates of the Commission in Strasbourg on 7 March 1996 from Harun Altin, Musa Çitil, Sinan Dinç, Mehmet Dinç and Halit Tutmaz. One of the Delegates, Mr Conforti, was not able to attend and in his place Mr N. Bratza participated in the hearing. Before the Delegates the Government were represented by Mr A. Gündüz, Agent, assisted by Ms A. Emüler, Mr A. Solen, Mr A. Kaya and Mr A. Kurudal. The applicant was represented by Mr K. Boyle, counsel, assisted by Ms A. Reidy.   28.   On 13 April 1996 the Commission decided to invite the parties to present their written conclusions on the merits of the case. By letter dated 26 April 1996 the Commission also reminded the Government of their undertaking, expressed by the Agent at the hearing on 7 March 1996, to submit a copy of the statement taken by the Turkish authorities from Mr Musa Çitil, as well as copies of the custody records of Derinsu Gendarme Station for 1993.   29.   On 2 May 1996 the Government submitted the documents which had been requested by the Commission on 26 April 1996.   30.   The applicant submitted his final observations on the merits on 9 June 1996.   31.   By letter dated 2 July 1996 the Commission informed the Government that the time-limit fixed for the purpose of submitting final observations had expired without any such observations having been received from the Government or an extension of the time-limit having been sought.   32.   On 10 July 1996 the Government informed the Commission that they would be able to submit their final observations before the Commission's October session. In reply, the Commission drew the Government's attention to the fact that in the circumstances of the present case it would be for the Commission to decide whether or not any final observations submitted by the Government would be taken into consideration.   33.   The final observations of the Government were submitted on 26 July 1996.   34.   On 8 April 1997 the Commission decided that the Government's final observations should be taken into consideration.   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 can 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                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   37.   The text of this Report was adopted on 17 April 1997 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 between 15 and 19 February 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 between 15 and 19 February 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 presented in the applicant's final observations on the merits is summarised here.   43.   On the morning of 15 February 1993 the applicant was arrested at his father's house in the hamlet of Yassitepe by gendarmes under the command of Harun Altin and taken to Derinsu Gendarme Station. The applicant was a journalist employed by the Özgür Gündem newspaper in Diyarbakir. That newspaper had been closed down by the authorities at the time. The applicant had travelled home to visit his family probably on 12 February 1993.   44.   The applicant was interrogated, assaulted and threatened with death at the Derinsu Gendarme Station where he was detained until the morning of 19 February 1993. He was kept in a cell without any lighting, bed or blankets and in freezing conditions throughout this time. He was not given any regular meals but only bread and water after the first day. When he protested about his detention he was assaulted in his cell by gendarmes including Harun Altin. He was prevented from freezing to death by the fact that on the night of 18 February 1993 he was joined in the cell by his three brothers who wrapped him in extra clothing they had.   45.   On the morning of 19 February 1993 the applicant was brought to the District Gendarmerie Headquarters at Derik. There he was stripped naked and subjected to torture with the purpose of having him sign a prepared statement of admission. He was brought before the District Gendarmerie Commander Musa Çitil who threatened him with death if he returned to the area.   46.   Late in the afternoon the applicant was brought before the public prosecutor Hasan Altun to whom he complained of his treatment and to whom he handed a wet blindfold that had been left around his neck. He was released on 19 February 1993 and having received attention and medication from his family he returned to Diyarbakir on the morning of 20 February 1993. The applicant did not go to see a doctor after his release.   47.   The applicant has subsequently been the victim of torture at the hands of other gendarmes on several occasions.        b.    Facts as presented by the Government   48.   In their final observations on the merits of the application the Government submit that the applicant, who had served a term of imprisonment prior to the events at issue for having indulged in illegal and separatist activities and who had continued these activities as a journalist working for Özgür Gündem, was arrested in Yassitepe village on 17 February 1993 and taken to Derinsu Gendarme Station. He was detained because intelligence information available suggested that he had threatened village guards in order to make them lay down their arms. His father and brothers were not arrested, but they followed the applicant to the Gendarme Station voluntarily. His brothers were not allowed to enter the security room where the applicant was kept.   49.   The security room at Derinsu Gendarme Station is situated in the centre of the building, is surrounded by other units and has no exterior walls, while the outer walls of the building are 50 cm. thick. Other rooms within the building being heated by coal-burning stoves, the temperatures in the security room cannot drop below zero. Moreover, the applicant had not been deprived of food, water or sleep. The applicant was not questioned while in Derinsu Gendarme Station, nor was he blindfolded and slapped in the face by Harun Altin.   50.   On 19 February 1993 the applicant was taken to Derik District Gendarmerie Headquarters. He was not exposed to torture or ill-treatment there.   51.   The applicant complained that he had been tortured and ill- treated at both Derinsu Gendarme Station and Derik District Gendarmerie Headquarters to the public prosecutor before whom he was brought on 19 February 1993. Although this public prosecutor recorded the applicant's allegations, he did not act upon them and for this reason the Supreme Council of Judges and Prosecutors has started an investigation which will probably lead to disciplinary proceedings against the public prosecutor.   2.    Criminal proceedings against the applicant   52.   Finding that the offences of which the applicant was accused fell within the competence of the State Security Courts, a public prosecutor at Derik issued a decision of non-jurisdiction and referred the case to the prosecutor at the Diyarbakir State Security Court.   53.   The applicant was subsequently summoned to appear before the Diyarbakir State Security Court to answer charges under Articles 188-191 of the Criminal Code (issuing threats). A hearing took place on 13 May 1993 at which the applicant protested his innocence. He was acquitted on 2 August 1993. According to the Government's final observations, the three villagers who gave evidence before the Delegates (Sinan Dinç, Mehmet Dinç and Halit Tutmaz) had been among the witnesses who testified in the criminal proceedings that the applicant had not threatened the village guards.   3.    Proceedings before the domestic authorities   54.   Following the communication of this application by the Commission to the respondent Government on 11 October 1993, the Ministry of Justice (International Law and External Relations General Directorate) contacted the public prosecutor's office in Derik on 18 December 1993, informing them of the complaints made by the applicant. A preliminary investigation was opened.   55.   On 20 April 1994 Harun Altin, the commanding officer of Derinsu Gendarme Station at the time of the alleged incident, was questioned by a public prosecutor in Daday district at the request of the Derik public prosecutor Bekir Özenir.   56.   A decision of non-prosecution in respect of Harun Altin and Musa Çitil, the Derik District Gendarmerie Commander at the relevant time, was issued by the public prosecutor Bekir Özenir on 4 May 1994. It stated that there was no concrete evidence other than the applicant's abstract allegations that the defendants Altin and Çitil had committed the alleged offences of maltreatment and threat.   57.   Hereupon, the Ministry of Justice (International Law and External Relations General Directorate) informed the office of the Mardin public prosecutor in an undated letter that as the decision of non-prosecution had not yet been notified to the applicant, the proceedings remained incomplete, the applicant still having the opportunity to file an appeal against the decision. Having regard, furthermore, to the identities of the defendants and the nature of the crime the Ministry of Justice submitted that the alleged offence might fall within the scope of the law on the prosecution of civil servants and suggested that an investigation be carried out to see whether a decision of non- jurisdiction would be appropriate. This letter was transmitted to the public prosecutor's office at Derik on 26 April 1995.   58.   A decision of non-jurisdiction was issued on 4 May 1995 by the Derik public prosecutor Hüsnü Hakan Yagiz. The investigation was referred to the Derik District Administrative Council.   59.   On 14 July 1995 a statement was taken from Musa Çitil by a Gendarme Lieutenant Colonel.   60.   The Derik District Administrative Council submitted its summary investigation report dated 5 September 1995 to the office of the Mardin Provincial Governor from where, on 12 September 1995, it was referred to the Mardin Provincial Administrative Board. On 13 September 1995 the Mardin Provincial Administrative Board decided that due to lack of evidence Altin and Çitil were exempt from public prosecution.   B.    The evidence before the Commission   1.    Documentary evidence   61.   The parties submitted various documents and newspaper articles to the Commission. These included reports about Turkey, documents relating to, inter alia, the applicant's detention in Derinsu and Derik Gendarme Stations and to the investigation on the domestic level into the applicant's allegations, and a floor plan of Derinsu Gendarme Station.   62.   The Commission had particular regard to the following documents:        a.    Official documents        i.    Urological examination report of 15 January 1991   63.   The report states that the applicant's right kidney had been surgically removed in 1986.        ii.   Custody note dated 17 February 1993   64.   This is a handwritten note, signed by the applicant, a gendarme officer with number 1989/1007 and a gendarme private by the name of Abdurrahman Keben. It states that the applicant was taken into custody on 17 February 1993 around 16.00 hours following information to the effect that he had threatened and incited the village guards of Derinsu- Yassitepe hamlet to adhere to the PKK and fight against the State.        iii. 1993 security room ledger from the Derinsu Gendarme Station   65.   The ledger contains an entry to the effect that the applicant was brought to Derinsu Gendarme Station on 17 February 1993 at 16.30 h. According to the ledger, the applicant was arrested on suspicion of making propaganda for the PKK. His arrest had been ordered by the Derik District Gendarmerie Headquarters. He was transferred to Derik District Gendarmerie Headquarters on 19 February 1993 at 09.00 h.   66.   It appears from the ledger that six people had been detained in the Derinsu Gendarme Station in 1993; the applicant had been the second, the first having been arrested on 15 January 1993, the third on 18 April 1993 and the last person on 5 September 1993. The applicant was the only detainee to have been held on suspicion of a PKK-related offence.        iv.   Notice of referral of a suspect, dated 19 February 1993,           from Musa Çitil to the public prosecutor's office at Derik   67.   In the notice the applicant is referred to as "the suspect". It states that he is charged with inspiring the village guards of the Yassitepe hamlet to lay down their weapons, join the PKK and fight against the State. He is referred to the authority of the public prosecutor's office. The letter contains the mention that, inter alia, three witness statements are enclosed. These statements have not been made available to the Commission (paras. 11, 14, 15).        v.    Judgment of the Diyarbakir State Security Court of 2 August           1993   68.   The judgment states that the applicant was charged with having threatened temporary village guards whilst the latter were on duty. The applicant had denied the charges and the public prosecutor at the State Security Court had asked for the acquittal of the applicant. The Court held that it had not been possible to obtain sufficient credible evidence to the effect that the applicant had committed the alleged offence and it acquitted the applicant. The applicant was not present when the judgment was pronounced but he was represented by a lawyer, Mr Baki Demirhan.        vi.   Decision of non-prosecution of 4 May 1994   69.   This decision, issued by the Derik public prosecutor Bekir Özenir, lists as defendants of the offences of maltreatment and threat Harun Altin and Musa Çitil, and the applicant as the complainant. The date of the alleged offences is given as "15.2.1993 - 19.2.1993". It states that the applicant claimed that he had been maltreated whilst he was being held in detention in Derinsu Gendarme Station on 17 February 1993 on suspicion of aiding and offering shelter to the PKK terrorist organisation and that his life had been threatened by the Derik District Gendarmerie Commander, Musa Çitil. As there was no concrete evidence other than the applicant's abstract allegations that the defendants had committed the alleged offences, they were freed from prosecution.        vii. Decision of non-jurisdiction of 4 May 1995   70.   This decision was made by the Derik public prosecutor Hüsnü Hakan Yagiz. It also lists Harun Altin and Musa Çitil as defendants in respect of the offences of maltreatment and threat, allegedly committed on "15.2.1993 - 19.2.1993". It goes on to say that the applicant had been taken into custody on 17 February 1993 for aiding and sheltering members of the PKK terrorist organisation. The applicant had claimed that he had been maltreated and that on the same day a threat to his life had been made by Musa Çitil. In view of the fact that the defendants were members of the security forces, it was decided that the investigation was to be referred to the Derik District Administrative Board pursuant to Decree No. 285.        viii. Decision of non-prosecution of 13 September 1995   71.   This decision, issued by the Mardin Provincial Administrative Board, was taken following the referral of the investigation by the Derik District prefect to the office of the Mardin Provincial Governor. Again, it lists Altin and Çitil as defendants of the alleged offences of maltreatment and threats. The date and place of the offences are given as 17 February 1993, Derinsu Gendarme Station and Derik District Gendarmerie Headquarters. It says that the applicant, who is referred to as the complainant, was detained for having sympathy with the PKK terrorist organisation, for being a reporter on a like-minded organ of the press and for having a hostile attitude towards the State and its soldiers. Although the applicant had alleged to have been subjected to maltreatment and threats at Derinsu Gendarme Station and Derik District Gendarmerie Headquarters, he had failed to produce sufficient evidence to substantiate his allegations. For that reason the Administrative Board decided unanimously that the defendants Altin and Çitil were to be exempt from public prosecution.        ix.   Expert's examination report of 30 November 1995   72.   The report concerns an examination by a tailor, Abdullah Kaya, of the piece of fabric which the applicant alleges had been used to blindfold him and which he had given to the Derik public prosecutor on 19 February 1993. It appears from the document that the examination was requested by the Ministry of Justice (International Law and External Relations General Directorate) on 23 November 1995.   73.   According to the report, the piece of fabric was what is commonly called a "kefiye", cut in half. A kefiye is used by men in the South East of Turkey as a head cover and scarf. The piece of fabric had not been produced in any special way; it had not been turned into a blindfold nor had it been produced to serve as a blindfold.        b.    Statements made by the applicant during his detention        i.    Statement dated 19 February 1993   74.   Although the document does not indicate where the statement was taken, it appears to have been drawn up in Derik District Gendarmerie Headquarters. It is signed by the questioning officer, who is only identified as "89/1007", a gendarme private called Abdurrahman Keben, and the applicant.   75.   The applicant was asked to respond to the accusation against him, i.e. that he had threatened the life of the village guards in the district of Derik if they did not lay down their arms. The applicant stated that he was a reporter with the Özgür Gündem newspaper. He had travelled to Yassitepe hamlet three or four days earlier to visit his family. The applicant denied the charges, saying that he had not threatened anybody in order to make them lay down their weapons and that he had not acted on behalf of the PKK.        iii. Statement dated 19 February 1993 taken by the Derik public           prosecutor Hasan Altun   76.   The applicant, referred to as the suspect, was informed of the charges against him and was asked to make a statement. He repeated what he had told the gendarmes on the same day (para. 75). A number of unknown people had alleged that he had visited various villages in the District of Derik where he had incited people to join the PKK and had threatened the village guards to lay down their arms. The applicant denied these allegations. He had come to the area to visit his family in Yassitepe hamlet. He had been taken into custody as a result of the fact that the gendarmes were prejudiced against him since he worked for Özgür Gündem. He had been kept in custody in Derinsu and Derik Gendarme Stations for four days. During his detention he had been forced to sleep in the cold, he had been submitted to cold water torture and had been beaten with truncheons. He had been forced to make up statements. During his interrogation he had been blindfolded. He was told that he would be shot if he returned to the area.   77.   The applicant told the public prosecutor that he wanted to file a complaint with him against the officers in charge of the Derinsu and Derik Gendarme Stations for having tortured him whilst he was in their custody. He also handed the public prosecutor a wet blindfold.   78.   Underneath the signatures of the public prosecutor, the clerk who wrote down the statement and the applicant, the document features a short second statement signed by the same persons. In this, the applicant stated that the fabric which he had shown to the public prosecutor belonged to Derik District Gendarmerie Headquarters and that it had been used to blindfold him. It had been forgotten and left around the applicant's neck at Derik District Gendarmerie Headquarters.        c.    Statements made by the applicant in support of his           application        i.    Statement, undated, handwritten by the applicant   79.   On 15 February 1993 the applicant was taken into custody together with his father and his brothers in the hamlet of Yassitepe by non-commissioned officers from Derinsu and Dumluca Gendarme Stations. Throughout the four days of his detention at Derinsu Gendarme Station he was in a cell where the temperature was -20°C. During this period his request for a blanket was refused and in order not to freeze, he had to keep walking and could not go to sleep. He was only given water and was subjected to abuse. His father and brothers were kept in a different place; they were not subject to the same procedures.   80.   On 19 February 1993 the applicant was taken to Derik District Gendarmerie Headquarters, his eyes covered as he was taken inside the building. During the interrogation which took place there he was stripped naked, sprayed with cold water and beaten with truncheons. This treatment caused him to faint. When he came to, he was taken up to see Musa Çitil whom he assumed was the Station Commander. Çitil told him that he would be killed if he visited the area again.   81.   The applicant was released on 19 February 1993 by a Derik Public Prosecutor before whom he had been brought.        ii.   Supplementary statement, undated, taken by Sedat Aslantas           of the Diyarbakir branch of the Human Rights Association   82.   On 12 February 1993 the applicant went to Yassitepe hamlet to visit his family. Although he was on holiday he did carry his press card in view of the incidents taking place in the area. On his third day there, i.e. 15 February 1993, his father's house was raided by the commanders and soldiers of Derinsu and Dumluca Gendarme Stations. The applicant, his father and three brothers were taken to Derinsu Gendarme Station. The applicant was detained in the security room and his father and brothers were put in the canteen.   83.   Around midnight, the Station Commander, of whom the applicant only knew his first name Harun, took them in turn to the interrogation room. The applicant was asked whether they had threatened village guards in neighbouring villages in order to make them lay down their weapons. Throughout the interrogation the applicant suffered verbal abuse and was beaten. The applicant's father and brothers were released at about 01.00 hours on the condition that they stay in a house in the village.   84.   The applicant was returned to the security room. In order not to freeze he was forced to pass two days and two nights without sleep as he was held for four days in temperatures of -30°C. He was left hungry and thirsty, and was not given a blanket or any kind of heating despite the fact that he informed the soldiers that he only had one kidney.   85.   On 19 February 1993 the applicant was taken to Derik District Gendarmerie Headquarters. In the interrogation room pressure was put on the applicant to admit that he had threatened village guards and had carried out propaganda for the PKK. He was taken to a different room where there were three gendarmes who told him to strip naked. They then proceeded to squirt the applicant with pressurised cold water from a hose pipe and to beat him on the shoulders and buttocks with a truncheon. Again, they wanted the applicant to admit to having threatened village guards and having made propaganda for the PKK as well as having written newspaper articles directed against them. However, the applicant did not admit to anything. At some point he lost consciousness. When he came to, the soldiers were dressing him. He was taken up to Çitil's room where Çitil told him that he would be killed if he came to the area again. Having been brought back down again, the applicant was forced to sign a statement which had been prepared by the gendarmes before he was taken to a public prosecutor. He told the prosecutor that the accusations against him were false and, as evidence of the torture to which he had been submitted, he handed the prosecutor a wet blindfold that had been left around his neck. The prosecutor included this in his report and also recorded that the applicant wished to complain about Musa Çitil.        iii. Supplementary statement dated 27 July 1995, handwritten by           the applicant   86.   The applicant had started working as a reporter for Özgür Gündem when this newspaper first started publishing. He subsequently became the Özgür Gündem representative in their Cizre and Diyarbakir offices. The interest of the authorities in the applicant increased as he started working for the newspaper.   87.   The applicant went to visit his family in Derik District on 15 February 1995. When the security officers found out that he worked for Özgür Gündem, the applicant, along with his father and three brothers, was taken into custody by Derinsu Gendarme Station. His father and brothers were released after one day and the applicant was taken to Derik District Gendarmerie Headquarters. There he experienced five days of torture: electric shocks, falaka, cold water treatment and crude beatings.   88.   Although he was acquitted of the charges brought against him, he has subsequently been exposed on numerous other occasions to torture during detention, as have other reporters of Özgür Gündem.        d.    Statements made by other persons        Harun Altin        Statement dated 20 April 1994 taken by public prosecutor at Daday   89.   This statement was taken upon the request of the Derik public prosecutor Bekir Özenir (para. 55).   90.   It says that Altin was informed of the allegations and that he declared that on 15 February 1993 he had been Commander of the Derinsu Gendarme Station which fell within the jurisdiction of Derik District Gendarmerie Command. He had held this post for two years. During that time numerous judicial procedures had been processed and some people had been kept in custody. It was impossible for him to remember every person by name and although the applicant may have been detained in Derinsu, he did not remember him. However, during his term of office no maltreatment, beating, torture, coercion or any other form of illegal treatment had taken place in his Station.        Musa Çitil        Statement dated 14 July 1995 taken by a Gendarme Lieutenant      Colonel   91.   It appears that this statement was taken within the framework of the investigation carried out by the Derik Administrative Board (para. 59).   92.   Çitil was informed of the allegations raised by the applicant in his application to the Commission. In reply, he said that the applicant had been taken into custody as he was suspected of having exerted pressure on village guards and of having run a propaganda campaign amongst them. The applicant had also been charged with aiding and abetting the PKK terrorist organisation. The applicant had been duly investigated and referred to the office of the public prosecutor and the court. The applicant had not been subjected to ill-treatment or threats, either by Çitil or by others. Had the allegations been true, the applicant would have informed the legal authority before which he was brought.   2.    Oral evidence   93.   Amongst the witnesses summoned to appear before the Commission's Delegates on 8 November 1995 in Diyarbakir and subsequently on 7 March 1996 in Strasbourg were Hasan Altun (the public prosecutor at Derik before whom the applicant appeared on 19 February 1993 and to whom he complained about having been ill-treated in custody), Bekir Özenir (the Derik public prosecutor who issued a decision of non- prosecution in respect of Altin and Çitil on 4 May 1994) and Osman Yetkin (public prosecutor at the Diyarbakir State Security Court). None of these prosecutors appeared as the Government stated that they had not had enough time to prepare themselves for the hearing (para. 16).   94.   Prior to the hearing in Strasbourg the Government informed the Commission that as Osman Yetkin, in his capacity of public prosecutor, had only been involved with the proceedings against the applicant which led to the judgment of the Diyarbakir State Security Court of 2 August 1993 (paras. 53, 68), and since all documents relating to these proceedings had been submitted, Mr Yetkin felt he would be unable to add anything of interest and failed to see the necessity of his attendance at the hearing. The Commission was further informed that Hasan Altun was in an analogous situation.   95.   At the hearing on 7 March 1996 the Government informed the Delegates that Bekir Özenir had sent word that he would not attend the hearing. Mr Özenir h