CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 février 1998

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TURKEY   (158/1996/777/978)                       JUDGMENT   STRASBOURG     19 February 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC 's-Gravenhage) SUMMARY [1] Judgment delivered by a Chamber Turkey – alleged unlawful killing by security forces and failure of authorities to carry out effective investigation into killing i.   GOVERNMENT’S PRELIMINARY OBJECTIon ( applicant’s lack of standing and validity of application ) Government failed to raise this objection at the admissibility stage of the proceedings before the Commission – estoppel. Conclusion : objection dismissed (eight votes to one). ii.   ARTICLE 2 OF THE CONVENTION A.   Alleged unlawful killing of applicant’s brother Reiteration of case-law on Commission’s role in establishment of facts. In instant case, deeply conflicting accounts of circumstances in which victim was killed   – Commission’s fact-finding seriously hindered on account of failure of applicant and alleged key eyewitness to testify before delegates – while sharing Commission’s concerns about certain features of Government’s case, Court considers nevertheless there are no exceptional circumstances which lead it to depart from Commission’s finding of no violation – insufficient factual and evidentiary basis to conclude, beyond reasonable doubt, that deceased intentionally killed in circumstances alleged by applicant. Conclusion : no violation (unanimously). B.   Alleged inadequacy of investigation Reiteration of case-law on procedural obligation inherent in Article 2 requiring Contracting States to conduct some form of effective investigation when individuals killed by agents of State. In instant case, circumstances surrounding killing disputed – could not be considered a clear-cut case of lawful killing which could be disposed of by means of minimum formalities – investigation (forensic examination, autopsy, further enquiries) seriously deficient – investigating authorities proceeded throughout on assumption that deceased was a terrorist killed in an armed clash with security forces – not prepared to test that assumption – neither prevalence of armed clashes in region nor high incidence of fatalities can displace obligation under Article 2 to ensure effective investigation into deaths arising out of clashes with security forces – authorities failed to comply with obligation in this case. Conclusion : violation (eight votes to one). C.   Alleged lack of protection in domestic law for the right to life Conclusion : not necessary to consider complaint (unanimously). III.   ARTICLES 6 § 1 AND 13 OF THE CONVENTION A.   Article 6 § 1 of the Convention Applicant did not at any stage pursue a compensation claim before a civil or administrative court – not possible therefore for Court to determine whether domestic court would have adjudicated on claim notwithstanding applicant’s contention that legal proceedings would offer no prospect of success in view of inadequacy of official investigation into killing – complaint under Article 6 § 1 in reality linked to Article 13 complaint that seriously deficient investigation resulted in denial of effective remedy. Conclusion : not necessary to consider complaint (unanimously). B.   Article 13 of the Convention Reiteration of Court’s case-law on nature of an effective remedy in cases of alleged serious violations of Convention rights. In instant case, authorities confronted with an allegation of unlawful killing by security forces – relatives of deceased had arguable grounds for making allegation in view of doubts about exact circumstances of killing – authorities obliged in circumstances to conduct, for benefit of relatives, thorough and effective investigation – no such investigation conducted having regard to Article 2 conclusion – accordingly applicant and next-of-kin also denied on that account an effective remedy and thereby access to other remedies, including compensation proceedings. Conclusion : violation (eight votes to one). IV.   ARTICLES 2, 6 AND 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14 Complaints not substantiated. Conclusion : no violation (unanimously). V.     ARTICLE 50 OF THE CONVENTION Non-pecuniary damage Claim in respect of applicant disallowed – sum awarded to deceased’s widow and children. Conclusion : respondent State to pay a specified sum to deceased’s widow and children only (eight votes to one). B.   Costs and expenses Applicant’s claim allowed in part. Conclusion : respondent State to pay a specified sum (unanimously). COURT'S CASE-LAW REFERRED TO 27.4.1988, Boyle and Rice v. the United Kingdom; 27.9.1995, McCann and Others v. the United Kingdom; 18.12.1996, Aksoy v. Turkey; 25.9.1997, Aydın v. Turkey; 28.11.1997, Menteş v. Turkey   In the case of Kaya v. Turkey [2] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules   of Court A [3] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   Thór Vilhjálmsson ,   Mr   F. Gölcüklü ,   Mr   C. Russo ,   Mr   J.M.   Morenilla ,   Mr   K. Jungwiert ,   Mr   P.   Kūris ,   Mr   E. Levits ,   Mr   J. Casadevall , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 27   October 1997 and 2 February 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 5   December 1996, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention. It originated in an application (no.   22729/93) against the Republic of Turkey lodged with the Commission under Article   25 on 23   September 1993 by Mr   Mehmet Kaya, a Turkish national, on his own behalf and on behalf of his deceased brother, Mr   Abdülmenaf Kaya, and the latter’s surviving widow and seven children. The Commission's request referred to Articles   44 and 48 and to the declaration of 22   January 1990 whereby Turkey recognised the compulsory jurisdiction of the Court (Article   46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles   2, 3, 6, 13 and 14 of the Convention. 2.     In view of the applicant’s lack of response to the enquiry as to whether he wished to take part in the proceedings and to designate representatives for this purpose (Rule   33 § 3 (d) of Rules   of Court A), the President of the Chamber, acting through the Registrar, took steps to clarify the applicant’s intentions by writing to him directly at his address in Diyarbakır Prison on 3   June 1997. In response to that letter, which was delivered with the assistance of the Agent of the Turkish Government (“the Government”), the applicant stated in a letter of reply dated 25   June 1997 and communicated through the intermediary of the Government that he wished to take part in the proceedings. He authorised his daughter, Miss   Leyla Kaya, to act as his intermediary for this purpose. The latter, acting on behalf of the applicant, designated the lawyers who would represent him (Rule   30). By letter dated 18   March 1997, the President of the Chamber refused the applicant’s request under Rule   27 for leave to provide for interpretation in a non-official language at the oral hearing having regard to the fact that two of the applicant’s lawyers used one of the official languages of the Court. 3.     The Chamber to be constituted included ex officio Mr   F. Gölcüklü, the elected judge of Turkish nationality (Article   43 of the Convention), and Mr   R. Bernhardt, the Vice-President of the Court (Rule   21 §   4   (b)). On   20   January 1997, in the presence of the Registrar, the President of the Court, Mr   R. Ryssdal, drew by lot the names of the other seven members, namely, Mr   Thór Vilhjálmsson, Mr   C. Russo, Mr   J.M. Morenilla, Mr   K.   Jungwiert, Mr   P. Kūris, Mr   E. Levits and Mr   J. Casadevall (Article   43 in fine of the Convention and Rule   21 §   5). 4.     As President of the Chamber (Rule   21 §   6), Mr   Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules   37 §   1 and 38). Pursuant to the order made in consequence on 11   March 1997, the Registrar received the Government's memorial on 25   June 1997 and the applicant's memorial on 8   September 1997, the applicant having been granted an extended deadline for the submission of his memorial by the President on 29   July 1997 in view of the steps being taken to clarify the applicant’s intention with respect to the proceedings (see paragraph 2 above). On 9   October 1997 the Commission supplied a number of documents from its case file, including the verbatim record of the hearing of witnesses before the delegates in Diyarbakır and the original application lodged with the Commission by the applicant. These documents had been requested by the Registrar on the instructions of the President. 5.     In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21   October 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)   for the Government Mr   A.S. Akay ,   Acting Agent , Mr   Abdülkadir Kaya ,   Counsel , Mr   K. Alataş , Mr   F. Polat ,   Advisers ; (b)   for the Commission Mr   H. Danelius ,   Delegate ; (c)   for the applicant Mr   K. Boyle , Barrister-at-Law, University of Essex, Ms   A. Reidy , Barrister-at-Law, University of Essex,   Counsel .   The Court heard addresses by Mr   Danelius, Ms   Reidy, Mr   Boyle and Mr   Akay. AS TO THE FACTS                the particular circumstances of the case The applicant 6.     The applicant, Mr   Mehmet Kaya, is a Turkish citizen born in 1949. At the time of the events in question (see paragraph 8 below) he was a farmer living in Dolunay village in the district of Lice which is situated in the province of Diyarbakır in south-eastern Turkey. He is currently detained in   Diyarbakır E-type Prison (see   paragraph   2   above). His brother, Mr   Abdülmenaf Kaya, who also lived and farmed in Dolunay before his death, was killed on 25   March 1993 in the vicinity of the village in circumstances which are disputed and which have given rise to the proceedings before the Convention institutions. 7.     The original application to the Commission was lodged by the applicant on his own behalf and on behalf of his deceased brother and the widow and seven children of the deceased. The facts in dispute 8.     The applicant has alleged that his brother was deliberately killed by the security forces on 25 March 1993. The Government on the contrary have contended that Mr   Abdülmenaf Kaya was killed in a gun battle between members of the security forces and a group of terrorists who had engaged the security forces on the day in question. They claim that the applicant’s brother was among the assailants. The facts as presented by the parties are set out in Section A below. The applicant and the Government have defended their opposing accounts of the circumstances surrounding the death of Abdülmenaf Kaya on the basis of documentary material, which appears in Section B. The measures taken by the domestic authorities after 25   March 1993 to investigate the killing of Abdülmenaf Kaya are described in Section C. The Commission appointed delegates to take oral evidence from key witnesses at a hearing held in Diyarbakır on 9 November 1995. Having regard to the testimony of those witnesses who appeared before the two delegates and to its examination of relevant material, the Commission assessed the evidence and established its conclusions in respect of both the killing of Abdülmenaf Kaya and the adequacy of the domestic investigation into his death. These conclusions and the reasons supporting them are summarised at Section D. A.   The events of 25   March 1993 1.   Facts as presented by the applicant 9.     The applicant has based his account of the events surrounding the killing of his brother on 25   March 1993 on the evidence of villagers from Çiftlibahçe village whom he alleges witnessed the incident and on the testimony of Mr   Hikmet Aksoy, a villager from Dolunay whom he maintains was in the company of his brother on the day the latter was killed. The applicant was not himself an eyewitness to the events. 10.     The applicant alleges that on the morning of 25   March 1993 his brother was going to the fields situated 300–400 metres from the village of Çiftlibahçe and four kilometres from his own village of Dolunay together with Hikmet Aksoy. A military operation was being conducted at the time. Hikmet Aksoy turned off the road at one point to tend to his beehives but was detained by soldiers. Seeing this, Abdülmenaf Kaya began to run away as he was frightened that he would also be taken into custody. The soldiers saw him running and opened fire. Abdülmenaf Kaya ran towards Çiftlibahçe village and hid in some bushes. The soldiers gave chase and found him. According to villagers from Çiftlibahçe who witnessed the incident the soldiers killed him, riddling his body with bullets. The soldiers then planted a weapon near his body and took photographs of the scene. The villagers requested that the body be handed over to them. At first the security forces refused but when the villagers insisted that the deceased was not a terrorist but the uncle of one of the inhabitants of a neighbouring village they relented. The villagers were verbally abused and threatened by the security forces. Hikmet Aksoy was taken into custody and held at Lice gendarmerie headquarters for six days. 2.   Facts as presented by the Government 11.     The Government’s account of the circumstances which led to the death of the applicant’s brother is based on the statements made to the Commission’s delegates at the hearing in Diyarbakır on 9 November 1995 (see paragraph 8 above) by members of the security forces involved in the alleged clash with terrorists on 25   March 1993, namely: Alper Sır, a first lieutenant who had been in charge of the four teams of soldiers involved in the anti-terrorist operation on the day in question; Mr Ahmet Gümüs and Mr   Paşa Bülbül, both senior sergeants commanding units involved in the operation; and Sergeant Altan Berk who had been in one of the units. 12.     The Government maintain that the security forces arrived in the vicinity of Dolunay on 25   March 1993 having received information that terrorists had been seen in the area. While they were conducting a field search in line formation they came under fire somewhere between Dolunay village and Çiftlibahçe village. The gunfire was directed at them from a rocky area, a creek and from the hills around. The security forces, numbering about sixty, took cover and returned fire using mainly G3 and A4 guns with an effective range of between 300 and 1,000 metres as well as longer range MG3 and K23 machine guns. The firing distance between the security forces and their assailants varied between 300 and 500 metres. The terrorists retreated after about thirty minutes and in the lull a search of the scene of the attack was carried out during which the security forces recovered a dead body alongside of which lay an automatic assault gun (later confirmed as Chinese-made in the ballistics report – see paragraph   32 below) bearing the serial number 59339 together with ammunition including three cartridge clips, three rounds of which were spent and three unused. During the field search considerable traces of blood were found along the route used by the terrorists to make their escape. 13.     The team commander, First Lieutenant Alper Sır, secured the area and contacted the office of the public prosecutor of Lice about the incident. Two and a half hours later the public prosecutor, Mr Ekrem Yıldız, and the District Government doctor, Dr Arzu Doğru, arrived at the scene by helicopter accompanied by assistants. An on-the-spot autopsy was performed on the body by Dr Doğru and an autopsy report (see paragraphs   26–30 below) was prepared there and then. The public prosecutor drew up a burial certificate. 14.     The body, which was not identified at that stage (see paragraph 15 below), was handed over to First Lieutenant Alper Sır who signed the necessary forms. First Lieutenant Alper Sır’s team subsequently advanced to the nearest village, Çiftlibahçe, where the body of the deceased was handed over to the mayor and two other villagers for burial. They signed for the body. An incident report was drawn up in a handwritten form on 25   March. It was signed by six members of the security forces, amongst whom Alper Sır, Paşa Bülbül, Ahmet Gümüs and Altan Berk (see paragraph 11 above). The report confirms the above-mentioned account of the events (see paragraphs   12 and 13 above). 15.     The identity of the deceased was in fact only discovered some months after the incident. According to a handwritten report signed by three gendarmes and dated 5   May 1993, the investigation which was carried out after the incident revealed that the body was that of Abdülmenaf   Kaya, a resident of Dolunay village, who was killed in a clash with security forces conducting an operation in the outskirts of Dolunay. Materials adduced in support of these accounts 1.   Statements made by the applicant 16.     The applicant maintains that he personally confirmed the account of the events as set out above (see paragraph 10) in a statement which he made to Mr   Abdullah Koç of the Diyarbakır branch of the Human Rights Association on 31 March   1993, just six days after the fatal shooting and in a supplementary statement which he made to Mr   Sedat Aslantaş also of the Diyarbakır branch of the Human Rights Association on 20   September 1993. (a)   Statement dated 31   March 1993 taken by Abdullah Koç of the Diyarbakır branch of the Human Rights Association 17.     In his statement the applicant declared that at around 08.00 hours on the morning of 25   March 1993 Abdülmenaf Kaya and Hikmet Aksoy were going to the fields 300–400 metres from Çiftlibahçe village and four kilometres from Dolunay village. At that time a military operation was starting in Boyunlu, Dolunay, Çiftlibahçe and Ormankaya villages. Soldiers participating in the operation took Hikmet Aksoy into custody. Seeing this, Abdülmenaf Kaya started to run whereupon the soldiers opened fire. Abdülmenaf Kaya ran the remaining 300–400 metres to Çiftlibahçe and hid there in the bushes. The soldiers found him and, according to eyewitnesses, fired over 100 bullets into his body, planted a firearm on him and took photographs. They did not want to give the body to the villagers, but the villagers insisted that the deceased was from a neighbouring village and that he was not a terrorist. The soldiers finally gave the body to the villagers. Later, the commander of the military unit threatened the inhabitants of Çiftlibahçe and Dolunay with the destruction of their villages. Most of the people who came to offer their condolences on the death of Abdülmenaf   Kaya suffered abuse of various kinds. The applicant concluded in his statement that Hikmet Aksoy had been taken into custody and his whereabouts were unknown. (b)   Supplementary statement dated 20   September 1993 taken by Sedat Aslantaş of the Diyarbakır branch of the Human Rights Association 18.     In this statement, the applicant declared that Abdülmenaf Kaya was injured while running away and that the security forces followed him to the bushes and killed him there. The applicant stated that the security forces alone took photographs of the body and when the applicant's family received the body they had to bury it immediately. An autopsy was conducted but the applicant was not given a copy of the autopsy report although he had requested one. The applicant also declared in the statement that the witnesses who saw the body of Abdülmenaf Kaya had left the village, being frightened of the security forces and the intimidation to which they would be subjected if they spoke out publicly. He could not remember any of the names of the villagers who witnessed the killing. The applicant concluded his statement by mentioning that Hikmet Aksoy had been detained at Lice gendarmerie headquarters for six days for questioning and then released. 2.   Statements made by Hikmet Aksoy 19.     The applicant maintains that his account of the events is confirmed by statements made by Hikmet Aksoy to the authorities in circumstances which would have made it impossible for the latter to know of the content of his own statements (see paragraphs 17 and 18 above) to the Diyarbakır Human Rights Association. (a)   Statement dated 17   June 1994 taken by Özcan Küçüköz, Lice public prosecutor 20.     This statement was taken following a letter dated 17   May 1994 from the public prosecutor at the Diyarbakır National Security Court (see paragraph   33 below). When Aksoy made the statement, he was detained in Lice Prison for possession of hashish. 21.     Like Hikmet Aksoy, Abdülmenaf Kaya was from the village of Dolunay. On 25   March 1993 Hikmet Aksoy left his house to go and tend his beehives which were situated on a piece of land along a road between Dolunay and Çiftlibahçe. When he was leaving Dolunay village, he met Abdülmenaf Kaya who asked if he could accompany him. When he reached his beehives, he heard some people running and saw about ten soldiers approaching him. The soldiers tied up his hands and asked who he was and why he was wandering about. Two or three minutes later the soldiers noticed Abdülmenaf Kaya running away. The soldiers shouted after him to stop, but he either did not hear them or chose to ignore them as he increased his pace. The lieutenant ordered the soldiers to shoot at Abdülmenaf Kaya's feet. At that time Abdülmenaf Kaya was approximately fifty to sixty metres away. When the soldiers started shooting at his feet, Abdülmenaf Kaya began to run towards Çiftlibahçe. The soldiers chased him, taking Aksoy along with them. Abdülmenaf Kaya disappeared beyond a slope and when the soldiers reached the slope he was nowhere to be seen. They then came to the ten or so houses which are situated at a short distance from Çiftlibahçe where they encountered some other soldiers who said that they had seen Abdülmenaf Kaya. Aksoy and the soldiers waited in the street for about half an hour. He then heard shots being fired; he estimates that three cartridges were fired. About ten minutes later a helicopter landed but it was too far away from Aksoy for him to be able to see what was happening. The helicopter left again after ten minutes. Later a lieutenant approached Aksoy and told him “we have killed Menaf”. Aksoy was taken to Lice and kept in custody for fifteen days. (b)   Statement dated 22   November 1995 taken by two police officers of the anti-terrorist branch 22.     Aksoy is said to have made this statement whilst in detention following his arrest on 14   November 1995. According to the applicant the statement cannot be taken to be reliable and must be considered to have been obtained under pressure, as confirmed by Aksoy’s subsequent retraction (see paragraphs 24 and 25 below). 23.     Aksoy states how from 1990 he provided food to groups of Workers’ Party of Kurdistan (“PKK”) members who came to his village of Dolunay. From 1991 he was also involved with ensuring the attendance of villagers at funerals of terrorists. In   March 1992 six PKK members came to the village and told him to go and get Abdülmenaf Kaya. After Abdülmenaf Kaya had appeared, he and one of the PKK members talked to each other in a separate place. Two months later three PKK members arrived with a group of ten people. Abdülmenaf Kaya was told to organise the attendance of villagers at a funeral. Two months later the military staged an operation during which Abdülmenaf Kaya died. According to the Government, this last part of his statement is an inaccurate translation of Aksoy’s words. They maintain that Aksoy in fact related that Abdülmenaf Kaya died during an armed clash. (c)   Statement dated 23   November 1995 to a public prosecutor 24.     In this statement Aksoy retracted the statement of 22   November 1995 (see paragraphs 22 and 23 above), saying that he was forced to sign a statement which the police had written. 25.     In the statement he denies the accusations that have been made against him, namely that he acted as a courier for the PKK. No mention is made of Abdülmenaf Kaya in the statement. 3.   The autopsy report of 25 March 1993 26.     This report was drawn up by Dr   Arzu Doğru who had been flown to the scene of the fatal shooting to perform the field autopsy. It was prepared on-the-spot (see paragraph 13 above). 27.     The report states that following a telephone call from the district gendarmerie headquarters on 25   March 1993 to the effect that the body of a person belonging to the PKK terrorist organisation had been captured during a clash, the public prosecutor Ekrem Yıldız and the District Government doctor Arzu Doğru set out by military helicopter, accompanied by a gendarme staff sergeant who was to act as clerk. On arrival at the scene the body was found to be lying on its back in the bushes on the bank of a creek. It was moved to a flat piece of ground. Beside the body there was a Kalashnikov rifle with serial number 8125298 and one round of ammunition containing three full and six empty cartridges. The body is described as being that of a 35–40 year-old man with grey hair and dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but no socks. Since there was no one at the scene of the incident who could identify the body, the security forces took photographs from several angles. 28.     A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and around the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the blows received. 29.     The report subsequently mentions that the medical examiner was brought over, that the body was handed over to him and that he made the following statement: “I established the above findings together with the public prosecutor, and I agree that the findings are as described above. As the result of these findings, the cause of death is clear. There is no need to carry out a classical autopsy. The conditions in the field combined with the fact that we do not have sufficient security or instruments are in any case an impediment to performing a full classical autopsy. From the above findings I have come to the conclusion that the deceased died from cardiovascular insufficiency as a result of the wounds caused by firearms. That is my definite opinion.” 30.     The report further states that the rifle and the ammunition were seized for safekeeping as corpus delicti . It concludes by stating that the forensic examination of the body and the autopsy procedure had been completed. The report is signed by, inter alia , First Lieutenant Alper Sır as the person receiving the body. C.   Proceedings before the domestic authorities 31.     Following the events of 25 March 1993 and the identification of the body as that of Abdülmenaf Kaya (see paragraph 15 above), a decision of non-jurisdiction was issued on 20   July 1993 by Ekrem Yıldız, public prosecutor at Lice, and the file was transferred to the public prosecutor at the Diyarbakır National Security Court. In his decision, the public prosecutor stated that “the preliminary documents have been examined” in respect of a crime committed by Abdülmenaf Kaya who, together with other PKK terrorists, took part on 25   March 1993 in an armed clash with the security forces The decision describes how the body of the deceased was recovered by the security forces after the clash together with an assault rifle and spent ammunition. The decision notes that the ballistics report on the weapon was not yet available. The public prosecutor concluded that, having regard to the aims of the terrorists and to the fact that the attack took place in an area subject to emergency rule, the investigation should be carried out by the prosecuting authorities of the National Security Court on account of the fact that he lacked jurisdiction in the matter. The National Security Court in turn transmitted the file to the Lice District Administrative Council for investigation. 32.     An expert report on the weapon and ammunition found beside Abdülmenaf Kaya’s body was drawn up by the Diyarbakır police forensic laboratory on 23   June 1993. The report, which was not available at the time the public prosecutor issued his decision of non-jurisdiction (see paragraph   31 above), stated that the weapon was a Chinese-made Kalashnikov automatic rifle serial no. 8125298/59339 and that the three spent bullets examined had been fired from the rifle “which was found with the dead terrorist”. 33.     On 17 June 1994 a public prosecutor, apparently at the request of the Principal Public Prosecutor at the Diyarbakır National Security Court, took a statement in relation to the death of Abdülmenaf Kaya from Hikmet Aksoy while the latter was detained at Lice (see paragraphs 20 and 21 above). 34.     During the proceedings before the Commission, the Government were requested to supply the photographs which were allegedly appended to the autopsy report (see paragraph 27 above). The authorities have so far been unable to retrieve the photographs. D.   The evaluation of the evidence and the Commission’s findings in respect of the death of the applicant’s brother and the adequacy of the official investigation 1.   The witnesses 35.     At the hearing held before two Commission delegates in Diyarbakır on 9 November 1995 oral evidence was taken from five witnesses: (i)   Dr   Arzu Doğru, who conducted the field autopsy on the deceased; (ii)   First Lieutenant Alper Sır; (iii) Senior Sergeant Ahmet Gümüs; (iv)   Senior Sergeant Paşa Bülbül; and (v) Sergeant Altan Berk. 36.     The applicant did not attend the hearing. He notified the Commission on 1 November 1995 that he feared reprisals if he were to give evidence at the hearing. The nature of his fears was not specified. Nor did Mr Hikmet Aksoy appear. In a letter dated 8 November 1995 Mr Aksoy, through the intermediary of the Diyarbakır Human Rights Association, informed the Commission that he and his family had been subjected to pressure by the police in order to prevent him from giving evidence at the hearing and he would not therefore be attending. 37.     Moreover, although summoned to give evidence, neither the Lice public prosecutor, Mr Ekrem Yıldız, nor the public prosecutor attached to the Diyarbakır National Security Court attended the hearing. The former was unavailable on account of other commitments and the latter had taken the view that he would be unable to give any relevant information to the delegates on the pursuit of the investigation into Abdülmenaf Kaya’s death since he had only become involved in the investigation after jurisdiction had been transferred to the Diyarbakır National Security Court. 2.   The approach to the evaluation of the evidence 38.     The Commission assessed the documentary and oral evidence before it on the basis of the evidentiary standard of proof beyond reasonable doubt, taking into account the fact that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this respect it noted that the failure of the applicant and of Mr Hikmet Aksoy as well as of the two public prosecutors to give evidence at the hearing in Diyarbakır had a considerable impact on the determination of whether the evidentiary standard had been attained. The Commission noted however that the applicant was not a direct witness to the events and his testimony would therefore have been of limited evidentiary value. On the other hand, the presence of Hikmet Aksoy would have been valuable since he claimed to be an eyewitness and his failure to attend meant that he could not be cross-examined with a view to assessing his credibility and the probative value of his evidence. Further, the absence of any detailed investigation at the domestic level into the circumstances surrounding the death of the applicant’s brother (see paragraphs 31–34 above) meant that the Commission had to reach its conclusions on the basis of the oral and documentary evidence which it itself had collected in accordance with its powers under Article   28   § 1 (a) of the Convention. 3.