CEDH · CASELAW;REPORTS;ENG — 12 mars 1998

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line-height:12pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s3BF12DB0 { font-family:Arial; font-size:5.33pt; letter-spacing:-0.1pt; vertical-align:super; color:#0069d6 } .s91038723 { font-family:Arial; font-size:8pt; letter-spacing:-0.1pt } .s6495A1EA { font-family:Arial; font-size:7.33pt; letter-spacing:-0.1pt; vertical-align:super; color:#0069d6 }                   EUROPEAN COMMISSION OF HUMAN RIGHTS                         Application No. 23657/94         Izzet Çakici         against       Turkey                       REPORT OF THE COMMISSION     (adopted on 12 March 1998) 23657/94   - i -   TABLE OF CONTENTS   Page   I.   INTRODUCTION     (paras. 1-43) .................................................... 1     A.   The application     (paras. 2 ‑ 4) ......................................... 1     B.   The proceedings     (paras. 5 ‑ 38) ........................................ 1     C.   The present Report     (paras. 39-43) ............................................. 4   II.   ESTABLISHMENT OF THE FACTS   (paras. 44-189) .................................................. 6     A.   The particular circumstances of the case     (paras. 45-82) ............................................. 6     B.   The evidence before the Commission     (paras. 83-178) ............................................ 12       1) Documentary evidence       (paras. 83-105) ........................................... 12       2) Oral evidence        (paras. 106-178) .................................................. 17     C.   Relevant domestic law and practice     (paras. 179-188) ........................................... 32   D.   Relevant international material     (para. 189) ............................................... 34   III.   OPINION OF THE COMMISSION   (paras. 190-300) ................................................ 35     A.   Complaints declared admissible     (para. 190) ............................................... 35     B.   Points at issue     (para. 191) ............................................... 35     C.   The evaluation of the evidence     (paras. 192-246) ........................................... 36     D.   As regards the disappearance of the applicant’s brother     (paras. 247-271) ........................................... 48       1.   As regards Article 2 of the Convention       (paras 248-253) ...................................... 48         CONCLUSION       (para. 254) ......................................... 49       2.   As regards Article 3 of the Convention       (paras 255-259) ...................................... 49         CONCLUSION       (para. 260) ......................................... 50       - ii -   23657/94     TABLE OF CONTENTS   Page         3.   As regards Article 5 of the Convention       (paras 261-270) ...................................... 50         CONCLUSION       (para. 271) ......................................... 53     E.   As regards violation alleged by the applicant on     his own behalf under Article 3 of the Convention     (paras. 272-275) ........................................... 53       CONCLUSION     (para. 276) .............................................. 53     F.   As regards Article 13 of the Convention     (paras. 277-286) ........................................... 54       CONCLUSION     (para. 287) ............................................... 56     G.   As regards Articles 14 and 18 of the Convention (paras. 288-291) ..................................................... 56       CONCLUSIONS     (paras. 292-293) ........................................... 56     H.   Recapitulation     (paras. 294-300) ........................................... 56       PARTLY DISSENTING OPINION OF Mr E.A. ALKEMA, JOINED BY MM. S. TRECHSEL and G. RESS ............................... 58     APPENDIX :   DECISION OF THE COMMISSION AS TO THE         ADMISSIBILITY OF THE APPLICATION ................... 59   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 Diyarbak_r and born in 1953. He is represented before the Commission by Professor K.   Boyle and Ms. F. Hampson, both lecturers at the University of Essex. 3.   The application is directed against Turkey. The respondent Government were represented by their Agents, Mr. A. Gündüz and Mr.   S.   Alpaslan.   4.   The applicant complains that his brother Ahmet Çak_c_ has been taken into custody by the security forces and has "disappeared". He invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention.   B.   The proceedings   5.   The application was introduced on 2 May 1994 and registered on 9 May 1994.   6.   On 27 June 1994, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits before 11   November 1994.   7.   The Government’s observations were received on 2 January 1995. The applicant’s observations in reply were submitted on 8 March 1995.   8.   On 15 May 1995, the Commission declared the application admissible.   9.   The text of the Commission’s decision on admissibility was sent to the parties on 18 May 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.   10.   The applicant’s representatives made submissions on 7 July 1995.   11.   On 21 October 1995, the Commission decided to take oral evidence in respect of the applicant’s allegations. It appointed three delegates for this purpose: MM. Pellonpää, Cabral Barreto and Bratza. It notified the parties by letter of 26 October 1995, proposing certain witnesses.   12.   By letter dated 6 December 1995, the applicant made proposals as regards witnesses.   13.   By letter dated 1 March 1996, the Government submitted further documents. On 1 April 1996, the Government submitted further observations and information relating, inter alia, to the report that the applicant’s brother’s body had been found.   14.   By letter dated 2 May 1996, the Secretariat, on behalf of the Delegates, requested the Government, inter alia, to provide investigation file documents referred to in their observations, to identify previous documents annexed and to clarify whether the body referred to had been identified by the family, providing a copy of any record of identification of the body. The applicant’s representatives were requested at the same time to clarify whether they had any information relating to the finding or identification of a body.   15.   By letter dated 15 May 1996, the applicant submitted a statement and information, including the location of the witness Hikmet Aksoy. He made further proposals as to witnesses.   16.   On 22 May 1996, the applicant provided further documents.   17.   By letter dated 24 May 1996, the Government provided further factual clarifications relating to earlier information.   18.   By letter dated 3 June 1996, the Delegates requested the Government to provide the original custody records for three places of detention (Hazro, Diyarbak_r provincial gendarmerie and Kavakl_bo_az).   19.   By letter dated 24 June 1996, the Government provided information about official witnesses.   20.   By letter dated 27 June 1996, the Commission’s Secretariat reminded the Government of the Delegates’ request to see the original custody records when they were in Ankara.   21.   By letter dated 27 June 1996, the Government informed the Commission that the witnesses Bayettin El and Abdurrahman Al were not in prison and that they could not establish the address of Hikmet Aksoy.   22.   Evidence was heard by the Commission’s Delegates in Ankara from 3-5 July 1996. Before the Delegates the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr.   A.   _ölen, Mr. A. Kurudal, Ms. N. Nerdim, Mr. A. Emülser, Mr.   C.   Çakir, Mr. O. Sever, Ms. B. Pekgöz, Ms. M. Gül_en and Ms. A. Emüler. The applicant was represented by Ms. F. Hampson and Mr.   O.   Baydemir, as counsel, assisted by Ms. A. Reidy and Mr. Mahmut Kaya (interpreter). At the conclusion of witnesses’ testimony, and later confirmed by letter of 10 July 1996, the Delegates requested the Government to provide certain information and documents, including documents relating to the identification of the body of Ahmet Çak_c_ and to provide an explanation for the failure to provide the requested custody records and to make proposals as to their disclosure.   23. On 7 September 1996, the Commission decided to call additional witnesses to an oral hearing to be held in Strasbourg and to summon the witness Hikmet Aksoy to appear before Delegates in Ankara in November 1996. By letter dated 13 September, the parties were informed of these decisions and the Government reminded that no explanation had been received in respect of the custody records which had been requested. The summons in respect of the witness Hikmet Aksoy who was in prison in Konya was served on the Government, requesting their co-operation in securing his presence on 20 November 1996 before the Commission Delegates in Ankara.   24.   By letter dated 8 October 1996, the Government provided a further document and by letter dated 20 October 1996, identified certain official witnesses by name and proposed additional witnesses.   25.   By letters of 15 and 30 October 1996, the Commission’s Secretariat reminded the Government of the Delegates’ requests concerning original custody records.   26.   By letter dated 8 November 1996, the Government informed the Commission that copies having been provided they did not consider it necessary to provide the original custody records.   27.   From 18-23 November 1996, three Commission Delegates, including Mr. Bratza, were in Ankara hearing witnesses in other cases. The witness Hikmet Aksoy did not appear. On 21 November, the Government provided the information that Hikmet Aksoy had been released from prison on 18 November. The Government Agent undertook to provide a fuller explanation and the relevant documents.   28.   By letter dated 25 November 1996, the Commission’s Secretariat informed the Government that the Commission had given instructions that the original custody records be produced and that a failure to produce them might be taken into account in any eventual consideration of the merits.   29.   By letter dated 29 November 1996, the Commission’s Secretariat informed the Government of the Delegates’ concern that the original custody records be provided in the context of the examination of certain witnesses.   30.   Evidence was heard by the Commission’s Delegates in Strasbourg on 4 December 1996. Before the Delegates, the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr. A. Akay, Mr. M. Özmen, Mr. A. Kaya and Ms. M. Gül_en. The applicant was represented by Ms. F. Hampson as counsel, assisted by Ms. A. Reidy. One of the three requested original custody records was provided by the Government. Further documentary material was submitted by the Government during the hearing. During the hearing, the Delegates requested the Government to provide certain information and documents, namely, to provide an explanation for the failure to provide the requested custody records and proposals as to their disclosure and to provide clarifications as to the release of the witness Hikmet Aksoy.   31.   On 12 December 1996, the Government submitted a letter explaining the absence of an official witness and on 24 December 1996, the documents relating to Hikmet Aksoy.   32.   By letter dated 24 January 1997, the Commission’s Secretariat reminded the Government of their undertaking at the hearing on 4   December 1996 to provide the two outstanding original custody records and reminded them that documents had still not been provided in respect of the identification of Ahmet Çak_c_’s body. The Government were requested to provide these materials by 28 February 1997 and it was drawn to their attention that one of the Delegates, Mr. Bratza, would be in Ankara from 3-8 February 1997. 33.   By letter dated 29 April 1997, the Commission requested the parties to submit their final observations on the merits by 20 June 1997. At the request of the applicant this was extended to 1 July.   34.   On 19 June 1997, the Government submitted their final observations.   35.   On 1 July 1997, the applicant submitted his final observations.   36.   On 18 October 1997, the Commission considered the state of proceedings in the case.   37.   On 3 March 1998, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   38.   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. Between July and October 1997, proposals to settle the case were under consideration. 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   39.   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:       MM   S. TRECHSEL       J.-C. GEUS           M.P. PELLONPÄÄ       E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           MM   F. MARTINEZ     Mrs   J. LIDDY     MM   L. LOUCAIDES       M.A. NOWICKI       I. CABRAL BARRETO       B. CONFORTI       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       G. RESS       A. PERENI_       C. BÎRSAN       P. LORENZEN       E. BIELI_NAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV 40.   The text of this Report was adopted on 12 March 1998 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.   41.   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.   42.   The Commission’s decision on the admissibility of the application is annexed hereto.   43.   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   44.   The facts of the case, particularly concerning events on or about 8 November 1993 and concerning the alleged detention of the applicant’s brother Ahmet Çak_c_, are disputed by the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.   A.   The particular circumstances of the case   1.   Facts as presented by the applicant   45.   The various accounts of events as submitted in written and oral statements by the applicant and other members of his family are summarised in Section B: "The evidence before the Commission". The version as presented in the applicant’s final observations on the merits is summarised briefly here.   46.   On 8 November 1993, the applicant’s brother was detained during an operation in the village of Çitlibahçe carried out by gendarmes and village guards under the command of Lieutenant Alt_noluk. When the operation commenced early in the morning, Ahmet Çak_c_ hid in a house near the fountain while the other men were gathered in an open area. The security forces began setting fire to the houses. Ahmet Çak_c_ retrieved money (approximately 4-5 million lira) which he had hidden in the roof of the house and was caught leaving the house, probably because it had been set on fire. Ahmet Çak_c_ was taken from the village by the security forces.   47.   Ahmet Çak_c_ was taken to Hazro where he was kept in a common room or hall overnight before being taken to Diyarbak_r. In Diyarbak_r, he was detained in the provincial gendarme headquarters where, after 6-7 days, he was held for 16-17 days in the same room as Mustafa Engin, Abdurrahman Al and Tahsin Demirba_, who had been taken into custody on 8 November 1993 by the security forces in an operation at Ba_lan. Ahmet Çak_c_ had been beaten, a rib being broken and his head split open. He was taken out of the room for interrogation on several occasions and received electric shock treatment and was beaten. At the end of this period, the other three detainees were brought before the court. Engin and Demirba_ were released and Aburrahman Al was remanded in custody. Engin did not see Ahmet Çak_c_ again.   48.   After 85 days in the provincial gendarme headquarters, in or about late January-early February 1994, Ahmet Çak_c_ was taken back to Hazro where he was detained for several months. From there he was moved to the gendarme station at Kavakl_bo_az where Hikmet Aksoy saw him in detention in or about spring or early summer of 1994. During a period of 13 days, Hikmet Aksoy, who was also detained, saw Ahmet Çak_c_ when they were taken out of the cells for meals. At the end of that period, Hikmet Aksoy was transferred to Lice.   49.   In May 1996, following the transmission of Government submissions from the Commission, the applicant learned for the first time that it was claimed that Ahmet Çak_c_ had been killed in a clash between 17 and 19 February 1995 on K_ll_bo_an hill, Hani. The identification appears based solely on the claim that Ahmet Çak_c_’s identification card was found on one of the bodies.   2.   Facts as presented by the Government   50.   The Government’s account of events as based on their observations are summarised as follows.   51.   Ahmet Çak_c_ was not taken into custody by the security forces who carried out an operation at Çitlibahçe on 8 November 1993 and was not in detention over the subsequent period. The custody records indicate that he was not held at Hazro or at Diyarbak_r provincial gendarme headquarters. He was not taken to Kavakl_bo_az (the name given to the gendarme station at Tekneba__). The allegations with regard to his alleged movements in detention are baseless, since, inter alia, a person would not be transferred from a high ranking detention facility to one of lower degree.   52.   On 27 May 1995, it was reported to the Ministry of Justice that Ahmet Çak_c_ was a militant member of the PKK organisation and that following an armed clash between the PKK and the security forces, he was found dead with 55 other militants at K_ll_bo_an hill, Hani. Ahmet Çak_c_ had been implicated in the killing of five teachers from Dada_ whom he reportedly described as "servile dogs of the State". He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the PKK.   3.   Proceedings before the domestic authorities   53.   Mustafa Engin, Abdurrahman Al and Tahsin Demirba_, who had been taken into custody on 8 November 1993 during an operation in Ba_lan village, were questioned by gendarmes, who provided signed statements by them during their period of detention.   54.   In his statement of 15 November 1993, Abdurrahman Al is recorded as saying that he had listened to talks given by the PKK in the village. Ahmet Çak_c_ used to bring members of the PKK to the village occasionally and he used to go around with them. The PKK used to stay in a hideout in the woods in the hills above the village. He took them provisions and Ahmet Çak_c_ used to make him keep watch. On 23 October 1993, when he was chopping wood, Ahmet Çak_c_ told him to come over to the PKK group, who had seven people with them. He was given a gun by Ahmet Çak_c_ and told to keep watch. Later, when any of the teachers needed to relieve himself, he took a gun and kept watch on them. Serbahan [1] told him to go home in the evening. He heard the next day that one person had been released and the others killed.   55.   In his statement dated 30 November 1993, Tahsin Demirba_ is recorded as saying that he had PKK sympathies and used to attend meetings held by the PKK in his village. He began participating in PKK activities, acting as guide, collecting "taxes" and procuring weapons for example. On the day that the teachers were kidnapped, the PKK came to the hideout which they used above the village. He visited them. Ahmet Çak_c_ from Çitlibahçe was with them, carrying a gun. Tahsin Demirba_ participated in sentry duty, guarding the teachers. One teacher was brought down to the village and stayed the night with Mustafa Engin. He was not killed like the others, the PKK leader Serhabun saying that he was a Kurd from Tunceli.   56.   In his statement dated 30 November 1993, Mustafa Engin is recorded as saying that he had attended meetings held by the PKK in the village and had given them money. He participated in several marches in which the crowds shouted PKK slogans. On 23 October, early in the morning, he went to the hideout used by the PKK near the village, where Serhabun and his group had arrived with 7 civilians. Ahmet Çak_c_ was there also, and he gave Mustafa Engin a gun, telling him to go and keep watch. That evening, he took one of the civilians, Ferhat from Tunceli, to his house overnight. Ferhat left at about O4.00 hours. On 8 November 1993, he tried to run away from the security forces because he panicked.   57.   Mustafa Engin, Abdurrahman Al and Tahsin Demirba_ signed further statements on 1 December 1993, taken by a public prosecutor.   58.   Mustafa Engin’s statement stated as follows. He partially accepted the statement given to the gendarmes. Certain individuals, including some-one called Ahmet, used to talk and meet in his village with members of the organisation. He later learned that the person’s surname was Çak_c_. On the night of 23-24 October, a man codenamed Serhabun arrived in the village with 7 others. He had heard that a group of teachers had been kidnapped near Hazro. While he was looking for his livestock, Ahmet Çak_c_ came up to him, pointed out a man, saying that he was a teacher and that the teacher would stay at his house. Mustafa Engin was scared but forced to accept at his nephew’s insistence. The teacher, called Ferhat, stayed in his house overnight and he took him as far as Yolcatin the next day. He denied charges of aiding and abetting, providing food for, and carrying provisions to the PKK.   59.   Abdurrahman Al’s statement said that Ahmet Çak_c_ and other named residents of his village were involved in activities for the PKK. On 23 or 24 October 1993, seven PKK members brought five teachers, an imam and the imam’s brother to the village. Ahmet Çak_c_ called him over. The group leader Serhabin told him to keep sentry duty, giving him a gun. Later, he and Ahmet Çak_ç_ were sent back to their villages and he did not see what happened to the teachers.   60.   In his statement, Tahsin Demirba_ stated that he had no connection with the incident. He had moved to Diyarbak_r and had only come back to the village to take his wife and children away. He did not give any such statement to the gendarmes, but was forced to sign an already prepared confession. He did not take any weapon or ammunition to the PKK, or act as sentry on their behalf, or prevent the kidnapped teachers from Dada_ village from running away.   61.   On or about 1 December 1993, Mustafa Engin and Tahsin Demirba_ were released from custody while Abdurrahman Al was remanded in custody.   62.   On 22 December 1993, Tevfik Çak_c_, the father of the applicant and Ahmet Çak_c_, submitted a handwritten petition to the Diyarbak_r State Security Court in Diyarbak_r requesting information as to what had happened to Ahmet Çak_c_ who had been taken into custody on 8   November 1993 by the security forces, along with Mustafa Engin, Abdurrahman Al and Tahsin Demirba_, who had been released 24 days later. An oral reply was given that Ahmet Çak_c_ was not on the list of persons in custody.   63.   On 28 July 1994, the Diyarbak_r State Security Court (No. 3) acquitted Tahsin Demirba_ due to lack of evidence and acquitted Mustafa Engin and Abdurrahman Al, taking into account their evidence that they had aided the PKK through fear. An order for Al’s release from prison was issued.   64.   By letter dated 4 April 1994, the Hazro public prosecutor (33344 - Aydin Tekin) informed the Chief Public Prosecutor’s Office at the Diyarbak_r State Security Court that, on examination of their records, Ahmet Çak_c_ had not been taken into police custody or detained on 8   November 1993.   65.   By letter dated 19 April 1994 to the Chief Public Prosecutor’s Office at the Diyarbak_r State Security Court, the Hazro public prosecutor Aydin Tekin confirmed the above letter of 4 April and stated that no application had been filed by Ahmet Çak_c_’s relatives to the effect that he was missing.   66.   By letter dated 30 June 1994, the Chief Public Prosecutor Bekir Selçuk informed the Ministry of Justice (General Directorate for International Law and External Relations), that Ahmet Çak_c_ and sixteen other named persons had not been taken into custody or questioned in relation to any offence falling within the jurisdiction of the State Security Court. There was no investigation file in their office concerning these persons. Having made enquiries with the provincial and district authorities following the Ministry’s letter of 14 June 1994, they were informed that those persons were not in police custody at that time.   67.   By letter dated 18 August 1994, the Ministry of Justice (General Directorate for International Law and External Relations) referring to correspondence from the Foreign Ministry of 19 July 1994 outlining the complaints made by the applicant to the the European Commission of Human Rights, requested the Diyarbak_r Attorney General to have the applicant’s complaints investigated, explained and evaluated according to law.   68.   By letter dated 5 October 1994, Hazro central gendarme command informed the Hazro district gendarme command in reply to their letter of 22 September 1994, that an examination of their custody records established that Ahmet Çak_c_ was not detained on 8 November 1993.   69.   By letter dated 2 November 1994, headed "Very urgent" the Ministry of Justice (General Directorate for International Law and External Relations) informed the Diyarbak_r Attorney General that they had received no response to their letter of 18 August 1994 and requested that information about the judicial procedure be provided.   70.   By letter dated 1 December 1994, Colonel E_ref Hat_po_lu of Diyarbak_r provincial gendarme command informed the Diyarbak_r Attorney General, in reply to his letter of enquiry of 22 November 1994, that their records indicated that Ahmet Çak_c_ had not been detained on 8   November 1994 <error for 1993>.   71.   By letter dated 2 December 1994, the Director of the Prevention of Terrorism branch of police at Diyarbak_r informed the Diyarbak_r Attorney General that Ahmet Çak_c_ had not been taken into custody by his directorate on 8 November 1993.   72.   By letter dated 8 December 1994, Colonel E_ref Hat_po_lu reported to the Diyarbak_r provincial authorities on the subject of the applicant’s application to the European Commission of Human Rights. It was stated that police officers had gone to the applicant’s address to take statements from the applicant, his father and Ahmet Çak_c_ but it was discovered that they were not living there. It proved impossible to find their addresses or the addresses of Mustafa Engin, Abdurrahman Al and Tahsin Demirba_. The latter three persons had been arrested by Lice district gendarme headquarters on 9 November 1993 and handed over the same day to the provincial headquarters, from where on 1 December 1993 they were sent to the Diyarbak_r State Security Court. Ahmet Çak_c_ was not taken into custody at the <provincial> headquarters. The homes of Ahmet Çak_c_ and Mustafa Engin at Çitlibahçe were not burned down. There were no terrorist incidents there since the people moved to other places for economic reasons. The houses, which were built of clay and had been abandoned, had decayed rapidly and collapsed. It had been established that Ahmet Çak_c_, who was claimed to be missing, was involved with the PKK, having participated in activities and killings. He was reported to have been a member of the PKK mountain team which on 23 October 1993 kidnapped seven persons (five teachers, an imam and the imam’s brother) from Dada_ village and killed five of them. Their headquarters were looking for him.   73.   By letter dated 1 March 1995, Colonel E_ref Hat_po_lu of Diyarbak_r Provincial Gendarme Command enclosed to Hazro district gendarme command documents found within the terrain and upon the bodies of 56 terrorists found dead as a result of an operation carried out in the K_ll_bo_an region, Hani district from 17-19 February 1995.   74.   By letter dated 14 March 1995, Hazro public prosecutor Mustafa Turhan (34812) requested that the Lice public prosecutors investigate whether Mustafa Engin and Tahsin Demirba_, were detained by the gendarmes on 8 November 1993, and seek observations from Mustafa Engin concerning Ahmet Çak_c_ who was alleged to have disappeared in custody.   75.   By letter dated 14 April 1995, the Hazro public prosecutor Mustafa Turhan (34812) requested the Hazro district gendarme command urgently to inform him concerning the operation carried out in Çitlibahçe on 8 November 1993 and to investigate and establish whether Ahmet Çak_c_ was detained along with Mustafa Engin, Abdurrahman Al and Tahsin Demirba_. If detained, the whereabouts of Ahmet Çak_c_ was to be established.   76.   By letter dated 17 May 1995, the Hazro district gendarme command informed the Hazro public prosecutor in reply that the operation on 8   November 1993 was intended to capture members of the PKK and those aiding and abetting them and that their records indicated that Ahmet Çak_c_, Mustafa Engin, Abdurrahman Al and Tahsin Demirba_ had not been detained. 77.   By letter dated 22 May 1995, the Hazro public prosecutor (35815) requested the Hazro district gendarme command as a matter of urgency to establish the whereabouts of Ahmet Çak_c_.   78.   By letter dated 23 June 1995 to the Hazro public prosecution, the district gendarme command at Hazro referred to the prosecutors’ enquiry dated 22 May 1995 about the whereabouts of Ahmet Çak_c_ and to the letter dated 1 March 1995 from the Diyarbak_r provincial gendarme command. It stated that the investigation resulted in the following. Ahmet Çak_c_ was a member of the PKK. Following an operation carried out at K_ll_bo_an hill, Hani district, on 17-19 February which resulted in the capture of 56 terrorists, Ahmet Çak_c_’s identity was established by the identity card located amongst the documents found on the body of a terrorist. It was concluded that he was one of the terrorists.   79.   By letter dated 27 June 1995, the Hazro public prosecutor (33225) informed the Diyarbak_r Attorney General, in reference to their letter of 1 December 1994 and the letter of the Ministry of Justice of 18   August 1994, that an operation had been carried out on 8 November 1993 in order to apprehend members of the PKK and those assisting them and that Ahmet Çak_c_, Mustafa Engin and Tahsin Demirba_ were not detained as claimed according to the information from Hazro gendarmes. Referring to the letter of 23 June 1995 above, it was stated that Ahmet Çak_c_ was a member of the PKK and found dead during operations carried out in the K_ll_bo_an hill region, Hani district, on 17-19 February 1995. The Lice public prosecutor had been requested to obtain a statement from Mustafa Engin, a response to which was still awaited.   80.   By letter dated 4 July 1995, the Hazro public prosecutor’s office informed the Ministry of Justice (Directorate of International Law and Foreign Affairs) of the information provided above (para. 78) by the Hazro gendarmes. It stated that a preliminary investigation No.   1994/191 had been started and was still pending.   81.   By letter dated 5 March 1996, the Hazro public prosecutor (31562) informed the Ministry of Justice that upon its request Diyarbak_r Attorney General was instructed to take a statement from Mustafa Engin.   82.   By decision of 13 June 1996, the Hazro public prosecutor Mustafa Turhan issued a decision of lack of jurisdiction and transferred the file to the District Administrative Council. The decision named the applicant and Remziye Çak_c_, the wife of Ahmet Çak_c_, as the complainants and identified the victim as Ahmet Çak_c_. The offence was described as ill-treatment, torture and confiscation of money of a detainee and the defendants as unidentified individuals of Hazro gendarme station and village guards. It stated that the complainants claimed that soldiers from Hazro gendarme command arrived in Çitlibahçe on the morning of 8 November 1993 and detained the victim, who was taken to Diyarbak_r where he was tortured by electric shocks and ill-treated. A lieutenant removed 4,280,000 TL. The decision stated that an investigation was carried out and the following finding established. The victim was a member of the PKK terrorist organisation. The security forces carried out an operation in the K_ll_bo_an hill region, Hani district, on 17 and 19 February which resulted in the capture of the dead victim. The bodies of the dead terrorists were searched and the victim’s identity card located on one of the terrorists. Therefore the individual’s identity as Ahmet Çak_c_ was confirmed without doubt. Mustafa Engin had made a statement and stated that he had not seen Ahmet Çak_c_. The suspects fell under the Official Conduct Act and following the withdrawal of duty by the Hazro prosecution the documentation was transferred to the Presidency of Hazro District Administrative Council for the necessary action.   B.   The evidence before the Commission     1)   Documentary evidence   83.   The parties submitted various documents to the Commission. The documents included reports about Turkey (including Amnesty International report, "Turkey - More people disappear following detention" AI Eue 44/15/94 and extracts on Turkey from the Report of the United Nations Working Group on Enforced or Involuntary Disappearances (E/CN.4/1995/36)) and statements from the applicant and witnesses concerning their version of the events in issue in this case. 84.   The Commission had particular regard to the following documents:     a) Statements by the applicant   Statement of 23 December 1993 taken by the Human Rights Association ("HRA"), Diyarbak_r   85.   The applicant’s brother Ahmet Çak_c_ had moved to Diyarbak_r about one week before his disappearance. He had returned to pick up the rest of belongings. He was taken into custody by the 400 soldiers and guards who arrived in the village at around 10.00 hours on 8 November 1993. The soldiers came from Hazro district gendarme command and the guards from K_rmata_, Sar_erik, Me_eba_lar and Kavakl_bo_az villages. The soldiers and guards set fire to the houses. They took Ahmet away in a vehicle. Mustafa Engin and Tahsin Demirba_ of Ba_lan village were also taken. They saw Ahmet during their own custody.   86.   Their initiatives have so far proved unfruitful. Officials did not accept that Ahmet was taken into custody. There was nothing that the applicant could do in the Turkish legal system.   Statement of 9 September 1994 taken by a public prosecutor at Diyarbak_r   87.   He was reminded of his petition letter. He stated that his brother was apprehended in their village and detained on 8 November 1993 by Hazro gendarmes. Since then he had been detained at Hazro gendarme station. He had not seen his brother detained but there were eye-witnesses, Mustafa Engin and Abdurrahman Al, who were with him in custody in Diyarbak_r. He did not know their addresses. A month ago, some-one whose name was unknown to him told him that his brother was still in custody at Hazro gendarme station. He had petitioned the State Security Court prosecutors and the provincial governor but was told that there was no such individual. He was anxious to hear from his brother. He should be arrested if charged or otherwise released.     Statement of 13 May 1996 taken by advocate Osman Baydemir   88.   On 8 November 1993, at about 09.00-10.00 hours, his brother Ahmet Çak_c_ was taken from their house and placed in custody in front of his father, mother and all the villagers. The applicant made a petition to the prosecutor’s office at the Diyarbak_r State Security Court and the Provincial Governor’s Office but was given no information about the fate of his brother, formally or informally.   89.   The claim that his brother had been killed in a clash in 1995 was completely false. His brother had been detained in Diyarbak_r for 24   days together with Mustafa Engin, Abdurrahman Al and Tahsin Demirba_, who had told him this. If his brother had been killed, why did no-one tell them this? His family had not been informed of this. Also Hikmet Aksoy who had been detained at Kavakl_bo_az station had seen Ahmet and spoken with him. Hikmet Aksoy was now in Konya prison.     b) Statements by other persons     Remziye Çak_c_     Statement of 12 November 1993 taken by the HRA, Diyarbak_r   90.   The residents of Çitlibahçe were forcibly evacuated from their village by the soldiers and guards belonging to the Hazro district gendarme command. They raided the village at around 07.30 hours on 8   November 1993 and set all the houses on fire. Her own house was burned. Her husband Ahmet was roughly treated and detained. Her husband was still detained. She now lived in a rented house with three bedrooms, with her seven children, parents-in-law and two of her husband’s brothers.   Statement of 25 November 1994 taken by a public prosecutor at Diyarbak_r   91.   She was the wife of Ahmet Çak_c_, whose whereabouts were unknown, and she had seven children. On 8 November 1993, when they lived in Çitlibahçe, the gendarmes and guards arrived, evacuating the village completely and taking people outside, opposite the village. They searched the houses. There were some empty houses, which were burned. On their way back, they took her husband and another person, whose name she could not remember. They took her husband to Hazro gendarmerie and after that he was taken to Diyarbak_r. After some time, they brought him back to Hazro. They learned this from Hikmet, who was under arrest in prison. She had petitioned the State Security Court prosecution, the provincial governor and the State of Emergency Governor, without receiving any response. Her husband had no connection with the PKK. She wanted to know what had happened to him.     Mustafa Engin     Statement dated 22 December 1993 taken by HRA, Diyarbak_r   92.   He used to be a resident of Ba_lan village, Lice district. He was taken into custody in his village by soldiers on 8 November 1993, held overnight in Lice and brought, with hands tied and blindfolded, to Diyarbak_r. He did not know where he had been taken to. On the night of his arrival, he was tortured. They asked him whether he knew Ahmet. He knew Ahmet very well. He had known Ahmet since he was a child and his daughter was married to Ahmet’s brother. When he said that he knew Ahmet, they asked who had brought the teacher who had stayed in his house. He had said Ahmet had brought the teacher. When asked if Ahmet was armed, he said that he was unarmed. The following day, the anniversary of Atatürk’s death, he was forced to sing anthems. Seven-eight days after his arrival, he saw Tahsin Demirba_ there. Six-seven days after the torture he was taken to the second floor along with a number of other people. That night, some-one partially lifted his blindfold and said in Kurdish "Open your eyes, Uncle Mustafa." He saw that it was Ahmet. They could not speak much. In the morning they were taken to the basement. He stayed there with Ahmet Çak_c_ for 16 ‑ 17   days. They were blindfolded all the time. If they removed the blindfolds, they were beaten. When they could, they looked through the gaps and talked with the