CEDH · CASELAW;REPORTS;ENG — 20 mai 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. 23818/94                            Muharrem Ergi                               against                               Turkey                      REPORT OF THE COMMISSION                      (adopted on 20 May 1997)                          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. 30-111). . . . . . . . . . . . . . . . . . . . .5        A.    The particular circumstances of the case           (paras. 31-48). . . . . . . . . . . . . . . . . . .5        B.    The evidence before the Commission           (paras. 49-97). . . . . . . . . . . . . . . . . . .8             1) Documentary evidence              (paras. 49-64) . . . . . . . . . . . . . . . . .8             2) Oral evidence               (paras. 65-97). . . . . . . . . . . . . . . . 11        C.    Relevant domestic law and practice           (paras. 98-111) . . . . . . . . . . . . . . . . . 17   III. OPINION OF THE COMMISSION      (paras. 112-189) . . . . . . . . . . . . . . . . . . . 20        A.    Complaints declared admissible           (para. 112) . . . . . . . . . . . . . . . . . . . 20        B.    Points at issue           (para. 113) . . . . . . . . . . . . . . . . . . . 20        C.    Concerning the existence of a valid application           (paras. 114-116). . . . . . . . . . . . . . . . . 20             Decision           (para. 117) . . . . . . . . . . . . . . . . . . . 21        D.    The evaluation of the evidence           (paras. 118-138). . . . . . . . . . . . . . . . . 21        E.    As regards Article 2 of the Convention           (paras. 139-156). . . . . . . . . . . . . . . . . 26             CONCLUSION           (para. 157) . . . . . . . . . . . . . . . . . . . 30                          TABLE OF CONTENTS                                                             Page        F.    As regards Article 8 of the Convention           (paras. 158-161). . . . . . . . . . . . . . . . . 30             CONCLUSION           (para. 162) . . . . . . . . . . . . . . . . . . . 31        G.    As regards Article 13 of the Convention           (paras. 163-166). . . . . . . . . . . . . . . . . 31             CONCLUSION           (para. 167) . . . . . . . . . . . . . . . . . . . 32        H.    As regards Articles 14 and 18 of the Convention           (paras. 168-171). . . . . . . . . . . . . . . . . 32             CONCLUSIONS           (paras. 172-173). . . . . . . . . . . . . . . . . 32        I.    As regards Article 25 of the Convention           (paras. 174-181). . . . . . . . . . . . . . . . . 32             CONCLUSION           (para. 182) . . . . . . . . . . . . . . . . . . . 34        J.    Recapitulation           (paras. 183-189). . . . . . . . . . . . . . . . . 35   APPENDIX I:     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF APPLICATION 23818/94. . . . 36   APPENDIX II:    SKETCH MAP OF INCIDENT LOCATION                DATED 30 SEPTEMBER 1993   . . . . . . . . . . 41   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 Aydin in the province of Diyarbakir and born in 1954.   He is represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both teachers at the University of Essex.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. A. Gündüz.   4.    The applicant alleges that his sister Havva was killed by firing from the security forces and that there is no effective remedy for his complaints. He invokes Articles 2, 8, 13, 14, 18 and 25 of the Convention. He states that he complains on behalf of his sister and her young daughter.   B.    The proceedings   5.    The application was introduced on 25 March 1994 and registered on 7 April 1994 respectively.   6.    On 27 June 1994, the Commission decided to communicate the application to the Turkish Government, who were invited to submit their observations on admissibility and merits before 4 November 1994.   7.    By letter of 4 November 1994, the Government requested that the case be adjourned pending the investigation before the public prosecutor attached to the Diyarbakir State Security Court.   8.    On 3 December 1994, the Commission refused the requested adjournment and requested the Government to submit their observations before 23 January 1995.   9.    By letter dated 21 February 1995, the Commission's Secretary pointed out to the Government that the period for the submission of the Government's observations had expired long ago and that no extension of that time-limit had been requested. It was added that the application was being considered for inclusion in the list of cases for examination by the Commission at its February session.   10.   No observations were submitted by the Turkish Government before 2 March 1995 when the Commission declared the application admissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 9 March 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 which they might wish to put before delegates.   12.   On 9 March 1995, the Government submitted observations on the admissibility and merits. On 21 April 1995, the Government submitted observations on the Commission's decision on admissibility.   13.   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: Mrs. G.H. Thune, Mr. N. Bratza and Mr. E. Konstantinov. It notified the parties by letter of 27 July 1995, proposing certain witnesses and requesting the Government to identify security force personnel who were present during the operation in issue and two public prosecutors. The Government were also requested to provide the contents of the investigation files of the two public prosecutors apparently involved in investigating the alleged incident.   14.   On 13 September 1995 and 6 November 1995, the Government submitted information identifying certain witnesses.   15.   By letter of 14 September 1995, the applicant's representatives made proposals as to witnesses. By letter of 15 September 1996, the Government identified one of the witnesses proposed by the Commission.   16.   By letter dated 26 September 1995, the Commission requested the Government to confirm that the entire contents of the investigation files had been submitted in annex to their previous observations, to verify whether the two proposed gendarme witnesses had been present during the operation and, if not, to identify senior officers who would be able to give eye-witness evidence as to the conduct of the operation.   17.   By letter dated 21 November 1995, the Government informed the Commission that a proposed witness, the muhtar Senai Baran, had changed address and had not been located.   18.   Evidence was heard by the delegation of the Commission in Ankara on 7-8 February 1996. Before the Delegates the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen, Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat, Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz (interpreter). Further documentary material was submitted by the Government during the hearings. At the conclusion of the hearings, and later confirmed by letter of 14 February 1996, the Delegates requested the Government to provide certain documents and information concerning matters arising out of the hearings and providing explanations for the absence of certain witnesses. The time-limit expired on 5 April 1996.   19.   On 2 March 1996, the Commission decided to invite the parties to present their written conclusions on the merits of the case, following transmission to the parties of the verbatim record. The time-limit was fixed at 20 May 1996.   20.   On 30 May 1996, after an extension of the time-limit until 31 May 1996, the applicants' representatives submitted their final observations on the merits. On 30 July 1996, the Government submitted their final observations.   21. By letter dated 12 February 1997, the Secretariat informed the Government that it had not provided certain documents and items of information requested following the hearings in Ankara. The Government were requested to clarify whether they intended to provide the information or whether they were unable to do so, and were informed in light of the Commission's intention to resume examination of the case that their response should reach the Commission by 21 March 1997 at the latest.   22.   By letter dated 3 March 1997,   the Government submitted further documentation.   23.   On 20 May 1997, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   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                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                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           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   26.   The text of this Report was adopted on 20 May 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.   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 Appendix I and sketch maps of the incident area are attached as Appendix II.   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 in or about 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.    Concerning the alleged events in the village of Kesentas   31.   The village in which the events took place has two names: an old Kurdish name of Gisgis and an official Turkish name of Kesentas. The latter name has been used in this report, wherever the village has been referred to.        a. Facts as presented by the applicant   32.   The various accounts of events as submitted in written and oral 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.   33.   A week before the incident on 29 September 1993 at the applicant's village of Kesentas, Cuma Bali, one of the two "collaborators" in the village, had been killed by the PKK. The day before the incident, Ibrahim Halil, the other "collaborator" had moved, under the protection of Ziyaret village guards and with apparent assistance of gendarmes, from the applicant's village to Ziyaret village,   which is five kilometres away. A "collaborator" is described by the applicant as some-one spying for the State which is to be distinguished from the village guards.   34.   On 29 September 1993, the State security forces set up an ambush in the vicinity of the village purportedly to capture members of the PKK. They consisted, inter alia, of a commando unit and village guards from Ziyaret village. Security forces were located in or near a cemetery 600 metres north-west of the village and south of the village near the asphalt road. The security forces opened fire.   The shooting lasted for about one hour and consisted of the indiscriminate bombardment of civilian houses. It led to the loss of the life of the applicant's sister, Havva. No members of the PKK were killed or captured.   35.   The applicant's house was in the middle of the village. At the time of the incident, his father and his sister Havva were sleeping on the balcony, on the upper part of the house. As soon as the firing started, Havva and his father came inside the house for shelter, but Havva went out on the veranda to collect something. She was hit in her head by a bullet when she was on the threshold and died immediately.   36.   On the following morning, the applicant's uncle Hasan Ergi informed, possibly by telephone, the Ergani Gendarme Commander that the applicant's sister had been killed. The Commander was surprised to learn that only one person had died and stated that at least twenty people should have died. The applicant's uncle told the Commander that he would apply to the Public Prosecutor. But the Commander told them to go back home and said that he would himself inform the Public Prosecutor.   37.   Towards noon, the Public Prosecutor, a doctor and some soldiers came to the applicant's house and an autopsy was carried out.   While the autopsy was being undertaken inside the applicant's house, the applicant's brother, Seyit Battal Ergi, asked the soldiers why they were suffering such persecution. The answer of a non-commissioned officer was that, if the villagers accepted to become village guards, the persecution would stop and the reason why they shot at the village was that they saw terrorists at its entrance and that the indiscriminate firing at the entire village was to be explained by the clumsiness of the troops. The doctor, after completing the autopsy, said nothing except presenting condolences. He also issued a burial certificate. The applicant and his family were not asked by the Public Prosecutor about their version of the circumstances of the shooting. The gendarme officer, isa Gündogdu produced the incident report without interviewing or providing any statements from the villagers or members of the commando forces involved. No cartridges were found by the gendarmes in the area at which the PKK were said to be located during the incident. There is no evidence that the PKK were in fact present in the vicinity during the incident.   38.   The bullet which killed the applicant's sister was described in the ballistics report as a standard NATO 7.62 which is used by the Turkish security forces as well as many other forces.   The shot could not have been fired from the east due to the walls of the houses. It could only have been shot from the south or south-east from higher ground, which was where the security forces were stationed on a hillside.   39.   There has been no communication between the Public Prosecutor and the family since the day of the autopsy. He and his family remain in the dark as to the official view of the incident and do not know whether there has been any investigation or prosecution in regard to the shooting. He states that the village of 200 households has now been reduced to 20 families, the rest having abandoned their homes as a result of military incidents such as that which led to her sister's death.   b.    Facts as presented by the Government   40.   The security forces carried out an ambush operation in the vicinity of the village to catch the PKK who were active in the area. Units were concealed in the north-west and engaged in an armed clash with the PKK at a point to the south-east of the village, near the cemetery. Their position was 100 metres above the PKK. There were no units positioned to the south and there would have been no purpose in having men there since the PKK would not come from the south. The security forces could therefore not have fired the shot from the south which killed the applicant's sister.   41.   During the clash, only a few houses were slightly damaged, which does not support the allegations of prolonged indiscriminate firing by the security forces.   2.    Proceedings before the domestic authorities   42.   A preliminary investigation into the incident was commenced by the Public Prosecutor of the Ergani district.   43.   An autopsy was carried out on the applicant's sister on 30 September 1993 in his father's house. According to the report of that date by the medical examiner, an external examination disclosed a bullet wound to the head, probably an entry wound. The skull was opened and a 7.62 mm bullet found in the right parietal lobe and removed. Time of death was estimated to be about 10-12 hours prior to the examination.   44.   A letter dated 7 October 1993 to the Ergani Public Prosecutor, Gendarme major Ahmet Kuzu reported that the security forces had performed an ambush at the entrance of Kesentas village. The security forces opened fire on terrorists, who fled towards the northerly part of the village and a search party was sent in that direction without making any contact. He stated that it was reported that a telephone call had been made to the district gendarme command at Ergani at 08.00 hours on 30 September 1993, reporting that Havva Ergi had been killed in the clash. An investigation took place at 10.00 hours that day in the presence of the public prosecutor. Copies of the incident report and a sketch of the location were enclosed with the letter.   45.   On 12 December 1993, the Ergani Public Prosecutor, Mustafa Yüce, considering that the matter fell outside his competence, transferred the file to the competent public prosecutor attached to the Diyarbakir State Security Court where the matter is still pending. The decision of lack of jurisdiction named the defendants as "members of the illegal PKK organisation" and the offence as engaging in armed combat with the security forces and homicide. It indicated that Havva Ergi had died as a result of gunfire occurring in the course of an armed combat which broke out between members of the security forces who were carrying out an ambush operation on the outskirts of Kesentas village and members of the PKK who were approaching the village.   46.   On 1 April 1994, the Regional Criminal Police laboratory issued its expert ballistics report. It found that the bullet was 7.62 mm calibre and fired by a weapon with a barrel containing four ridges which rotated clockwise.   47.   In a letter dated 8 December 1994 from the Chief Public Prosecutor's office at the Diyarbakir State Security Court to the Ministry of Justice, it was reported that during the ambush operation clashes spread to the village and as a result a bullet hit the doorframe of a house, ricocheted and hit Havva Ergi who was standing near the door. The investigations instituted into her death were still continuing. A ballistics examination revealed that the bullet was misshapen and no material information could be obtained which could lead to a conclusion as to the weapon used. No empty cartridges were found at the scene. Thus there was no information in the file on the weapon causing the death. Since the armed combat took place from 21.30 hours and continued into the night, there was no eyewitness evidence as to what was seen or heard. Proceedings were continuing with a view to apprehending the members of the PKK involved in the armed combat but since they did not return to scenes of clashes for a long time it would take time to identify and arrest them. As regarded the allegations made in the applicant's statement of 9 October 1993 taken by the Human Rights Association (HRA), the claim that the State security forces opened harassing fire on the village was false and intended to denigrate the security forces involved in the fight against terrorism. It was the duty of security forces to maintain order and protect the population so there could be no question of them opening harassing fire on the village. The incident in Kesentas resulted from the type of ambush operation commonly carried out by the security forces on roads leading into and out of villages.   48.   By letter dated 26 December 1994, the Ministry of the Interior informed the Ministry of Foreign Affairs that on 29 September 1993 the security forces had come to the village with the purpose of apprehending terrorists whom they had heard were coming to the village. The security forces were attacked by the PKK. Village guards from Ziyaret were not involved in the operation. No raid was carried out on the village which was due to have village guards of its own. Although villagers had applied for posts as village guards they had not in fact been recruited since no suitable posts were available.   At the time of the incident there were 150 households not 200 and currently there were 180 households living there, not 20.   B.    The evidence before the Commission        1)    Documentary evidence   49.   The parties submitted various documents to the Commission. The documents included reports about Turkey, domestic case-law, statements from the applicant, photographs, plans and sketch maps.   50.   The Commission had particular regard to the following documents:        a) Statement by applicant dated 9 October 1993 taken by the Human      Rights Association (HRA), Diyarbakir   51.   At around 21.00 hours on 29 September 1993, security forces surrounded the village of Kesentas. They saw military armoured cars and heard the sounds of walkie-talkies. About a week before one of the two collaborators (ie. spying for the State) in the village, Cuma Bali, was killed by guerillas and a day before the incident, the second, Ibrahim Halil, had moved from the village to Ziyaret under the protection of its village protectors. They later heard that Ziyaret village guards took part in the operation.   52.   First, one or two shots were fired from the north side of the village (said by eyewitnesses to have been fired by the Ziyaret village guards), then there were volleys of firing, for about an hour, from the south side. The soldiers had placed themselves on higher ground to the south and were firing down on the village. Bullets hit most of the village. The family's house was two-storeyed the lower part used as a stable and the upper part for accommodation. There was a large balcony on the upper floor, where the applicant's father and his sister Havva were sleeping.   When the firing began, they came indoors. For a reason, maybe because his sister had forgotten something, she went to go outside again. When she was on the threshold a bullet which ricocheted from the door frame hit her in the head. She died immediately. On the following morning, they announced her death to the village.   53.   They went to the gendarme headquarters with the applicant's uncle Hasan Ergi. His uncle reported to the commander that Havva had been killed. The commander replied "Has one person died?". His uncle asked, "How many were supposed to die?". The commander stated, "At least 20 people should have died? How do you know there were security forces?" His uncle, "An armoured car passed my house." The station commander told the uncle to leave and stated that he would inform the public prosecutor.   54.   At about 11.00 hours, the prosecutor, a doctor and about 10 soldiers came to the village. The doctor, prosecutor and non-commissioned officer (NCO) and two plainclothed persons entered the house and remained for about two hours. The people in the house must have given the bullet removed from the body to the soldiers outside, since one soldier showed it to the NCO, asking what weapon could have fired it and the NCO replied that it must be from a G-1 or G-3. There was a conversation between the villagers (who did not wish their names to be revealed) and an NCO:        Villagers: Why do we suffer persecution?      NCO: If you became village protectors as we tell you, it will      stop.      Seyit Battal (one of Havva's brothers): Why did you shoot at the      village?      NCO: We saw terrorists at the entrance to the village, that's      why.      Seyit Battal: Why did you not fire at them rather than the whole      village?      NCO: The clumsiness of our soldiers.   55.   The soldiers went to the hill from where the firing occurred and picked up five empty cartridges.   56.   There were instances of firing at the village before and after this incident and continued insistence that the villagers became protectors, which was the reason for a partial evacuation of the village. Out of 200 households, only 20 remained and some of those were on the point of leaving.   57.   The members of the family at home during the incident included the applicant's father Ibrahim Halil Ergi and mother Hacere Ergi, his sister-in-law Hazo and her daughter, the wife of his brother M. Emin Ergi and her four children. The applicant's brother Seyit Battal was not at home but came to the village the next day having heard the news.   58.   The applicant had not applied orally or in writing to the public prosecutor or to the district or provincial governors because of the military domination of the area.        b) Official Records        Incident report of 30 September 1993   59.   This report was drawn up by gendarme officer isa Gündogdu and countersigned by other gendarmes. It states as follows:   60.   On 29 September 1993, members of the security forces carried out an ambush operation for the purpose of apprehending or eradicating members of the PKK as they entered Kesentas village. When a group of terrorists was sighted at about 21.00 hours coming towards the village, clashes broke out as the security forces opened fire on them. The terrorists escaped to the north of the village. The security forces carried out a search in the direction in which the terrorists had fled. Three squads from District Headquarters arrived at the village in armoured vehicles but made no contact with the PKK, who had fled.   61.   At about 08.00 hours, the gendarmes headquarters were informed by telephone that one person, Havva Ergi, had died. A team of gendarmes accompanied the public prosecutor to the village arriving at about 10.00 hours. The investigation and search at the scene disclosed that the following had occurred. When firing was heard, the deceased and her brothers went into the living room of Ibrahim Ergi's house. Afterwards, when fetching their bedclothes, the deceased was hit in the head by a bullet which ricocheted off the frame of the living room door. A bullet mark was found on the beam in the (entrance hall) but no other marks elsewhere in the house. Elsewhere in the village, three window panes had been damaged in the house of the muhtar Senai Baran and there were ten bullet marks on a car. No other damage was found and no empty cartridges could be found due to the rough ground. It was concluded that Havva Ergi must have been killed accidentally as a result of shots fired by members of the PKK in the course of clashes with members of the security forces.        Sketch map of incident location dated 30 September 1993      (Appendix II to this Report)   62.   This map was drawn up and signed by the gendarme non-commissioned officer isa Gündogdu. It indicates, inter alia, by numbers the location of the deceased's body, terrorist firing position (7), security forces firing position (9), the road and the village slopes.        c) Documents relating to contacts by the authorities with the      applicant concerning his application        Statement dated 30 October 1995   63.   This statement, signed by the applicant and by officers of the Anti-Terror department, is set out in the form of questions and answers. The applicant was referred to his declaration of means and confirmed his signature. He was asked whether he had made application to the European Human Rights association or in Turkey and if so, he should explain. He stated that he had applied to the HRA about his sister, that he had not applied to the Kurdistan Human Rights Project and that he had applied to the European Commission of Human Rights indirectly through the HRA. He gave details of his material position.        Statement dated 3 November 1995   64.   This statement, signed by the applicant and by a public prosecutor, indicates that the applicant was shown his declaration of means and that he confirmed that it looked like his. He explained that he had made an application in 1993 to the HRA and to the European Commission and that he had done this since Turkey had recognised the Commission. His application did not concern anything else and he did not wish to add anything.        2)    Oral evidence   65.   The evidence of four witnesses heard by the Commission's Delegates may be summarised as follows:        Muharrem Ergi   66.   The applicant stated that he was born in 1954 and was resident in Aydin. At the time of the incident, he lived in the province of Diyarbakir. He was not in the village. He heard that from time to time minor incidents took place. He recalled hearing about a village guard from Kesentas being killed by terrorists just outside the village and that another had been moved to Ziyaret.   67.   On 30 September 1993, his uncle telephoned a relative in town who informed the applicant of what had happened. He went to Kesentas arriving about 10.00 hours. His uncle had gone to the police station early in the morning before he arrived. He himself had not gone there. His uncle said that he had reported the death of Havva; that the commander queried whether one person was killed; that his uncle asked how many should have got killed and the commander said something like that at least twenty should have been killed.   68.   He talked to the villagers about what had happened and also to the gendarmes who arrived with the prosecutor. They (the villagers) said that the village was fired on from the opposite side and that the rumour was that it was the soldiers or guards who had done the shooting. He did not remember who it was who identified Ziyaret guards as having been present. No-one in his family had witnessed the incident with their own eyes since they could not leave their homes as they feared for their lives. At the time of the incident, which started about 22.00 hours (at another point he stated it was about 21.00 hours), it would have been dark, but there might have been moonlight. It was said that a number of shots were fired from the north and then five-six minutes later firing began from the south, which continued for one hour 10 minutes. His father Ibrahim, his mother Hacere, his sister-in-law Geriye and her children were in the house at the time. When the firing started, his sister Havva and his father were sleeping outdoors on the raised area. They carried their beds inside. Havva was shot in the doorway. She did not go out but was hit under the door as she rose. There was a slight mark, a line, on a wooden beam where the bullet hit it.   69.   There were signs of the presence of soldiers: they saw the floodlights of the armoured personnel carrier on the hill and heard its engine, and they also heard the sounds of wireless communication. The carrier passed through the village, in front of his uncle's house and returned to the road to the west of the village. The carrier arrived about 15-20 minutes after the first shooting.   70.   The prosecutor did not identify which gun the bullet came from. Neither the applicant nor other members of the family spoke to the prosecutor at a later stage. He had no information about any investigation into the incident. A soldier had said that the bullet came from a G2 or G3 gun which could be in the hands of anyone. (At a later stage the applicant said the soldiers said it was a G1 or G3 bullet.) He was not familiar with guns: he did not know whether it was G1 or G2 that was said. He had seen a bullet in the hands of that soldier. After it had been removed during the autopsy, they passed it out of the front window or so he had learned later. The applicant had been present when his brother Seyit Battal and the other villagers were talking to the NCO. When Seyit asked why they shot at the village, they said that they had run into members of the organisation at the entrance of the village and there was a clash. The soldiers had fired at the PKK. He did not remember any explanation that might have been given as to why there was firing at the village.   71.   The applicant went out to search for empty cartridges in the hill across from the village from where he had been told that the firing had come. Between the place where he found the cartridges and the house there was a distance of 700 m - the land between was not flat but a valley with a stream running through it. He found 15 cartridges, which he left at the HRA. He looked elsewhere   but found nothing. There was no obstruction between the hill and the house. He saw signs in the village of damage and took photographs of bullet marks. The marks were concentrated in the area where the family's house was and the eastern area. He estimated about one hundred houses were struck by bullets. He marked on the sketch of the incident where he found the cartridges ie. south of the village beyond the road. On being shown the photographs of the family house, he stated that the side of the house with the balcony faced south and that one photograph was taken from the hill looking north to the village and from the village across to the hill. The hills to the north of the village were higher; the village was on a slight slope being higher on the north and there was a main road running east-west to the south of the village.   All the photographs of the houses that were not his house showed bullet marks on the south.   72.   It was said that soldiers had gone to the same area as he had to collect cartridges but he did not say that they found five cartridges. He had noticed in that area stones piled up, like a wall, which he guessed had been placed by those who had been firing. There were sparsely distributed oak trees on the slopes of those hills and rocks.   73.   The PKK came from the north, which was rougher and farther from the main road.   From time to time, security forces may have come to protect the road and then they were positioned very close to the road. They patrolled the road from time to time. There were a number of entrances to the village, the south-eastern entrance being closest to the road.   74.   At the time of the incident there were about 200-250 households in the village and at the present time about 150-200, he did not know exactly. When asked why he had stated to the HRA that more households had left the village, he explained that some villagers returned one month later, some five months later. There were now village guards in the village. There was a telephone in the village but it did not work all the time.   75.   He recalled making a statement to the HRA. He had gone there with his father and mother. He had never stated that he had been in the village during the incident. Statements were taken from the three of them and compiled into a single statement. He signed the statement. He was not asked to make a statement by the prosecutor or gendarmes. He had not been told that the case had been transferred to the State Security Court.   76.   The other members of his family had not come to the hearing as they were afraid, he supposed, but he had no exact information and did not know if any of them had been contacted by the authorities. He had been questioned twice. First, he was contacted by telephone at his work place late November-early December 1995. He was questioned at the anti-terrorist branch of the police department of Aydin for about two hours. The one who asked the questions said he was a police superintendent. They said that he had lodged an application with the Commission and asked why he had done so. Ten-fifteen days later, he was called and asked to meet the police at the station in town. There were three persons in plainclothes who questioned him, asking why he had filed such a complaint, stating that he had committed an offence and that as he was a civil servant he could be dismissed. No physical pressure was applied. He was asked about the incident as well and maybe something to do with his application for legal aid.   77.   He thought that it was the soldiers or village guards who were responsible for the killing of his sister. He did not think it was the PKK because he did not hear that they were active there and had only heard of one incident in which a person was killed. Also the firing came from the south where the soldiers most probably were.        Ahmet Kuzu   78.   The witness was born in 1955. From July 1992 until August 1994 he was the gendarmerie commander in the district of Ergani, in command of five stations including the central station where isa Gündogdu was the NCO in charge. In the central district, he had 35-40 soldiers under his command. There were village guards in his area. The guards participated occasionally in operations but this generally amounted to checking the roads for safety. They tried as much as possible not to involve guards in operations.   79.   Kesentas was in his jurisdiction. He used to call at the villages every two or three months. He would have known the muhtar and a few other people at the village. At that time, there was intensive PKK activity in the area. The security forces did not hear of any actual collaboration of the village with the PKK but the PKK used to go to the village demanding or forcing the villagers to give food or medicine. Because the village was the remotest in the district, it was the most difficult to supervise. The PKK always came to the village from the north. There was a road running through the village and a mountain trail going off north from that road leading up to Sincik village. The PKK used that trail constantly. During the operation, the gendarmes were in positions on the ridges immediately to the west of that path. It was probable that the PKK would come down that path or from a point further east. There were riverbanks in the east, sharp rocks difficult to climb and they could use the banks of the stream which came down the mountainside. Apparently, that night, the PKK came down the banks of the stream and almost went into the village, going into an area of vineyards very close to the village (area marked 7 on the sketch). The PKK were in the south-east and the security forces in the north-west. The PKK gunfire would be towards the south of the houses. Both sides would have had field glasses with a range of 600-700 m. He had no idea which side saw the other first and opened fire.   During the crossfire bullets were apparently flying over the village, which was in a depression. The PKK fled north.   80.   At the time of the incident, he was absent, having been deputised to command another larger unit, a commando unit which constantly moved around the territory. He did not return to Ergani until maybe a week or more afterwards. He played no role, and had no knowledge of the planning of the operation at Kesentas. He supposed that the planning was done by the commander of the commando unit or the highest ranking NCO. isa Gündogdu was in charge of drawing up the local inspection records and sketches which were to be submitted to the legal authorities through the district gendarmerie.   81.   When he returned to the district, the autopsy and inspections had been carried out. He examined the records pertaining to the incident (the record of on-site inspection and the sketch) and transmitted them to the legal authorities. It was not for him to take any further steps in the case which had been referred to the public prosecutor, who was now responsible for the affair. He agreed that it was his duty to deal with any mistakes that might have been made by his men but on the documents he did not see anything which clearly pointed to any mistake. He supposed that he must have talked to the people who signed the documents and asked about the