CEDH · CASELAW;REPORTS;ENG — 15 avril 1998

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display:inline-block } .s544CEFDC { width:22.51pt; display:inline-block } .sB35F0F21 { width:25.29pt; display:inline-block } .s7A714F0F { width:29.3pt; display:inline-block } .s1E7F07A2 { width:13.95pt; display:inline-block }                             EUROPEAN COMMISSION OF HUMAN RIGHTS                               Application No. 23763/94     Selma TANRIKULU       against     Turkey             REPORT OF THE COMMISSION   (adopted on 15 April 1998)   23763/94           - i - TABLE OF CONTENTS                       Page I.   INTRODUCTION     (paras. 1-27)                 1     A.   The application     (paras. 2-4)               1     B.   The proceedings     (paras. 5-22)               1     C.   The present Report     (paras. 23-27)               4   II.   ESTABLISHMENT OF THE FACTS   (paras. 28-207)               6     A.   The particular circumstances of the case     (paras. 30-49)               6     B.   The evidence before the Commission     (paras. 50-194)             9     C.   Relevant domestic law and practice     (paras. 195-207)             34   III.   OPINION OF THE COMMISSION   (paras. 208-289)               36     A.   Complaints declared admissible     (paras. 208-209)             36     B.   Points at issue     (para. 210)               36     C.   The evaluation of the evidence     (paras. 211-239)             37     D.   As regards Article 2 of the Convention     (paras. 240-250)             44       CONCLUSION     (para. 251)               47     E.   As regards Article 3 of the Convention     (paras. 252-255)             47     CONCLUSION     (para. 256)               47                     - ii -         23763/94     TABLE OF CONTENTS                       Page     F.   As regards Articles 6 para. 1 and 13 of the Convention     (paras. 257-263)             47       CONCLUSIONS     (paras. 264-265)             49     G.   As regards Article 14 in conjunction with Articles 2, 6 and 13 of the Convention     (paras. 266-269)             49       CONCLUSION     (para. 270)               50     H.   As regards Article 25 of the Convention     (paras. 271-282)             50       CONCLUSION     (para. 283)               52     I.   Recapitulation     (paras. 284-289)             53   APPENDIX I:   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION       54     APPENDIX IIa:   PLAN OF THE AREA SUBMITTED WITH APPLICATION 63   APPENDIX IIb:   PLAN OF THE AREA ATTACHED TO INCIDENT REPORT 64   APPENDIX IIc:   PLAN OF THE AREA SUBMITTED BY GOVERNMENT 65   APPENDIX IId:   PLAN OF THE AREA SUBMITTED WITH APPLICANT'S       FINAL OBSERVATIONS           66         I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a Turkish citizen, born in 1964, and resident in Diyarbak_r.   She was represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both university teachers at the University of Essex, England. The applicant states that she brings the application also on behalf of Dr Zeki Tanr_kulu, her husband, now deceased, and their three minor children, born in 1983, 1993 and 1994 respectively.   3.   The application is directed against Turkey.   The respondent Government were represented by their Agents, Mr _. Alpaslan and Mr D. Tezcan.   4.   The applicant alleges that her husband was killed in Silvan on 2 September 1993 by either the state security forces or else in their presence in circumstances suggesting the collusion of those forces. She further alleges that this event was not adequately investigated by the State authorities. Finally, she complains that she has been hindered in the exercise of her right of individual petition. She invokes Articles 2, 3, 6, 13, 14 and 25 of the Convention.     B.   The proceedings   5.   The application was introduced on 25 February 1994 and registered on 28 March 1994.   6.   On 11 October 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. To this end the Government were provided with a copy of the application form, the power of attorney dated 27 September 1993 signed Selma Tanr_kulu and the documents submitted by the applicant.   7.   The Government's observations were submitted on 1 March 1995, after the expiry of the time-limit set for that purpose. The applicant replied on 20 April 1995.   8.   On 28 November 1995 the Commission declared the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 6 December 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. Neither party availed itself of this possibility.   10.   On 13 April 1996 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr N. Bratza, Mr G. Ress and Mr P. Lorenzen. It notified the parties by letter of 25 April 1996, proposing certain witnesses and requesting the Government to identify by name the three authors (police officers) of an incident report drawn up on 2 September 1993 and the public prosecutor at the Diyarbak_r State Security Court in charge of the investigation.   11.   By letter of 13 June 1996 the applicant requested that a further two witnesses be heard, including a public prosecutor at the Diyarbak_r State Security Court who, according to the applicant, had summoned her in the autumn of 1994 to question her about her application to the Commission. On 20 June 1996 the Commission requested the Government to identify this public prosecutor.   12.   On 24 June 1996 the Government provided the names of the three police officers and the public prosecutor at the Diyarbak_r State Security Court who had been in charge of the preliminary investigation into the incident. On 5 September 1996 the Government were requested to confirm whether this public prosecutor was currently still in charge of the investigation. They were further reminded of the request to identify the public prosecutor who had allegedly summoned the applicant in the autumn of 1994. On 10 October 1996 the Government confirmed that the public prosecutor who had been in charge of the preliminary investigation was also in charge of the current investigation.   13.   On 28 October 1996 the Government were again requested to identify the public prosecutor who was claimed to have summoned the applicant in order to question her about her application to the Commission.   14.   Evidence was heard by the Delegates of the Commission in Ankara on 21 and 22 November 1996 from the applicant, Bekir Selçuk (chief public prosecutor at the Diyarbak_r State Security Court), Turan Da_, Mehmet _ahin and Durmu_ _ahin (police officers attached to the anti-terror department of Silvan security directorate), and Dr Murat Y_ld_r_m. Before the Delegates the Government were represented by Mr _. Alpaslan and Mr D. Tezcan, Agents, assisted by Ms. M. Gülsen, Mr A. Kurudal, Mr N. Erdim and Mr A. Kaya. The applicant was represented by Ms. F. Hampson, counsel, assisted by Ms. A. Reidy, Mr O. Baydemir, Ms. D. Deniz (interpreter) and Mr M. Kaya (interpreter). Further documentary material was submitted by the Government during the hearing. At the conclusion of the hearing the Delegates requested the Government to submit photographs and a map of the area where the incident had occurred, and a copy of the complete investigation/prosecution file as it had become apparent during the hearing that the Government held more documents than had so far been submitted to the Commission. At that occasion the Agent of the Government undertook to use his best endeavours to try and provide the Commission with the complete investigation file. These requests for documents were subsequently confirmed by letter of 3 December 1996. The Government were further requested to provide an explanation in writing for the failure of four witnesses to appear before the Delegates.   15.   On 3 December 1996 the Commission decided to invite the parties to present their written conclusions on the merits of the case by 31 March 1997.   16.   On 30 January 1997 the Government submitted a video film, a number of photographs and a map of the area where the incident had occurred. By letter of 21 February 1997 the Government were reminded of the still outstanding request for a copy of the investigation/prosecution file and an explanation in writing for the absence from the hearing of four witnesses.   17.   By letter of 17 February 1997 the Government provided explanations for the absence from the hearing of three witnesses.   18.   On 7 March 1997 the Commission granted the applicant legal aid for the representation of her case.   19.   On 25 March 1997 the Government submitted their final observations on the merits. The applicant's final observations were submitted on 1 April 1997. In these observations, the applicant put forward the complaint that Turkey had failed to comply with its obligations under Article 25 para. 1 of the Convention.   20.   By letter dated 30 May 1997 the Delegates put a number of questions concerning the location of the incident in relation to the video film, photographs and map to the Government. It was further pointed out to the Government that the investigation/prosecution file had not yet been made available. The Government replied to the questions about the location of the incident on 25 June 1997. However, the investigation/prosecution file has not been submitted.   21.   On 6 November 1997 the Commission requested the Government to comment on the applicant's allegations concerning Article 25 of the Convention. Following an extension of the time-limit until 29 December 1997, the Government submitted their Agent's observations dated 5 January 1998 by letter dated 29 December 1997.   22.   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   23.   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, President       J.-C. GEUS           G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       G. RESS       A. PERENI_       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELI_NAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   24.   The text of this Report was adopted on 15 April 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.   25.   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.     26.   The Commission's decision on the admissibility of the application is annexed hereto as Appendix 1.   27.   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   28.   The facts of the case, in particular those which relate to the events on 2 September 1993, are in dispute between the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has examined written material, as well as oral testimony presented before the Delegates. The Commission first presents a brief outline of the events, as submitted by the parties, and then a summary of the evidence adduced in this case.   29.   The street where the incident at issue took place has been referred to as Gazi Road, Old Diyarbak_r Road and the Kaymakam Slope. Although it appears that its current official name is Gazi Road, it will be referred to in the report as the Kaymakam Slope by which name it is commonly known. This will avoid confusion with the name of the street where the front of the security directorate building is situated since this also appears to be called Gazi Road.   A.   The particular circumstances of the case     1.   Facts as presented by the applicant   30.   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.     a.   Concerning the killing of the applicant's husband   31.   At around noon on 2 September 1993 the applicant's husband, Dr Zeki Tanr_kulu, was shot dead on a steep road, known as the Kaymakam Slope, which runs between the State hospital and the security directorate in the town of Silvan. The applicant was on the low balcony of her hospital residence, close to the hospital gates, when she heard the sounds of automatic firing. She jumped off the balcony and ran towards the Kaymakam Slope. When she was running she heard the start of another type of firing.   32.   The applicant did not see anyone as she ran towards her husband who was lying near the top of the steepest part of the Slope close to the security directorate. However, as she knelt by him, she looked up and saw at least eight members of the security forces standing in a line across the street near the security directorate and brandishing machine guns, about fifteen to twenty metres away from her. They were dressed in plain clothes but were wearing special jackets enabling them to carry spare ammunition. Although there were usually at least eight members of the security forces near the security directorate, it was not usual for them to stand together in a line. The applicant appealed to the police present at the scene to do something to catch the perpetrator(s) but they did nothing. She ran back down to the junction with Old Bitlis Road, screaming for help. At the junction, she saw two young men running along Old Bitlis Road and she saw them turn up the next street on the left. She warned the police that they were allowing the perpetrators to escape. The street turning left from Old Bitlis Road that the men had run into joins Gazi Road near the security directorate.   33.   The applicant then turned and ran back to her husband, having recalled that there was a gun in his briefcase. At that time, people ran out of the hospital to help. They took Dr Tanr_kulu to the hospital where they sought unsuccessfully to resuscitate him. Meanwhile, three policemen on patrol in a vehicle had been summoned by radio and they arrived within five to ten minutes. Two of the police officers examined the scene and the third, Turan Da_, went to the hospital where he obtained a description from the applicant of the two young men and of the direction in which they had fled. He informed his two colleagues who went in pursuit of the alleged killers but not in the direction which had been indicated by the applicant.   34.   The applicant made several efforts to make a statement to the authorities. She contacted the police but they said that the Chief of Security was not there and hung up. She also tried to speak to the Governor but was unsuccessful.   35.   In April 1993 Dr Tanr_kulu had been taken in for questioning by the police. They had received a tip-off to the effect that he was sheltering a terrorist suspect. He had been released without charge the next day.   36.   Dr Tanr_kulu took his duties as a doctor seriously and would treat anyone in need. As the only doctor in the State hospital in Silvan for about eight months, he would have been the person to produce the medical reports on persons released from custody. Whilst generally seeking to protect the applicant from anything that might worry her, he did state, on more than one occasion, "If we let them, they would write the reports", and he also spoke about torture. Following the killing of another doctor in Silvan on 10 June 1992, which led a third doctor to seek and obtain a transfer from the area, Dr Tanr_kulu was reported in the press as having refused to talk about that incident out of fear. At the time a high number of killings by unknown perpetrators was being committed in Silvan. There were newspaper reports alleging that many of the killings were the work of contra-guerilla forces and it was reported that a military officer by the name of Captain Vural had a list and that the people on the list were killed one by one. Dr Tanr_kulu's name was rumoured to be on this list.   37.   Although Dr Tanr_kulu had sought to reassure the applicant that he was at no risk, he had acquired a gun, with the necessary licence, two weeks before his death. The day before his killing, Dr Tanr_kulu had requested permission from the Governor to take his annual leave. Permission had been refused, even though his leave was long overdue and other doctors had arrived in Silvan who could have replaced him.   38.   Following the killing of Dr Tanr_kulu, other doctors working at the State hospital told the District Governor that if the killers could not be found it was not safe for them to remain in Silvan. The Governor allegedly told them that they were safe and that Dr Tanr_kulu had been killed because he was a Kurd from Silvan. The applicant requested one of these doctors, Dr _lhan, to make a statement about his conversation with the Governor but he refused as he was frightened of the consequences.       b.   Concerning alleged intimidation and interference with the exercise of the right of individual petition   39.   On 17 November 1994 the applicant received a summons to appear at the prosecutor's office at the Diyarbak_r State Security Court the next day. The chief public prosecutor, Mr Bekir Selçuk, questioned the applicant about her application to the Commission and, in particular, about the power of attorney. Contrary to what is written in the report drawn up of her statement, the applicant did not tell Mr Selçuk during this interview that about ten days after her husband's death she had been telephoned by a person called Kevin who was from a centre in England and who was ringing from Diyarbak_r. The implied threat was made by Mr Selçuk that something might happen to the applicant on account of her application. Mr Selçuk also suggested that an application to the Commission was futile.   40.   Two days after the applicant's return home from the hearing before the Delegates in Ankara, on 25 November 1996, an attempt was made to force the door of the balcony of her home. She was disturbed by the incident and stayed away from her home from 26 to 30 November 1996. On 30 November 1996 she sent the baby-sitter to the house who found that it had been broken into. The applicant did not contact the police because she was scared and suspected that the break-in was the work of the police.     2.   Facts as presented by the Government     Concerning the killing of the applicant's husband   41.   Although the Government in their final observations do not dispute that Dr Tanr_kulu was killed at the Kaymakam Slope on 2 September 1993, they deny that this killing was in any way related to the State or any of its agents.   42.   At the time of day when the incident took place there were no police officers present outside the security directorate other than two officers standing guard. These police officers could not have been standing just twenty metres away and watching the shooting of Dr Tanr_kulu in view of the fact that the entrance to the security directorate is facing in an opposite direction to that of the site of the incident. The officers standing guard were under strict orders not to leave their posts even if they heard shooting or an explosion as that would render the security directorate vulnerable to a possible attack.   43.   The street into which the applicant said that she saw the two alleged perpetrators of her husband's killing turn from Old Bitlis Road does not come out at the security directorate building on Gazi Road but two blocks away from there.   44.   Dr Tanr_kulu had been happy and proud to be working for the State. Government officials were on good terms with him and police officers had felt free to request his help at any hour of the day or night. However, investigations have shown that many killings of State officials or persons working for the State, especially in the area where the state of emergency was in force, have been committed by militants of the PKK.   45.   In their observations on the admissibility of the application the Government further submitted that there was no relation between the death of Dr Tanr_kulu and his having been summoned to the police station on 6 April 1993 in order for his statement to be taken concerning the allegation that he was hiding a terrorist. As soon as it had been established that this allegation was false, Dr Tanr_kulu had been released.   46.   In respect of the refusal by the Governor to grant Dr Tanr_kulu leave, the Government submitted that he was the deputy head consultant of the hospital and that his leave would have interrupted the medical service.     3.   Proceedings before the domestic authorities   47.   Following the shooting of Dr Tanr_kulu police investigated the scene of the incident, drew up a plan of the immediate area, searched the area and took statements from three people who had been present in the area at the time of the incident (see paras. 68-75). Sixteen empty cartridges and one deformed bullet were found and transmitted to an expert at the Regional Criminal Police Laboratory. This expert issued a report on 9 September 1993. A post mortem examination was carried out on 2 September 1993, i.e. the day of the incident.   48.   On 5 November 1993 a public prosecutor at Silvan, Mustafa Düzgün, issued a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbak_r State Security Court. The applicant made a statement to Bekir Selçuk, chief public prosecutor at the Diyarbak_r State Security Court, on 18 November 1994.   49.   The investigation has so far not yielded any results but is still pending.   B.   The evidence before the Commission   1.   Documentary evidence   50.   The parties submitted various documents and plans to the Commission. The documents included reports about medical professionals in South-East Turkey (including the Amnesty International report "South-East Turkey: The Health Professions in the Emergency Zone, EUR 44/146/94", and extracts from a report of the Turkish Medical Association, "The Report on the Health Services and Health Personnel's Problems in the South-East, Human Rights Foundation Publication: 8") and statements from the applicant and witnesses concerning their version of the events at issue in this case. The Government also provided photographs and a video film showing the area where the incident took place.   51.   The Commission had particular regard to the following.         a.   Statements by the applicant     Statement of 27 September 1993 taken by the Diyarbak_r branch of the Human Rights Association   52.   This statement was accompanied by a hand-drawn plan of the area where the incident took place. This plan has been annexed as Appendix IIa. The statement states as follows.   53.   At 11.55 hours on 2 September 1993, about two minutes after she had seen her husband Dr Zeki Tanr_kulu leave the hospital from the balcony of the hospital residence where they lived, the applicant heard the sounds of heavy, automatic weapons. She rushed from the building but when she got outside she could only hear the sound of pistols. After having run for a few metres she could see her husband lying near a wall on the Kaymakam Slope about twenty metres from the security directorate, there being about fifty metres between that building and the hospital. When she arrived at her husband's side he was still alive but unable to speak. She told him, "Look what the State which you trusted has done to you." In order to see the perpetrators and having seen that there was only police around, she ran back down the Slope and saw two people running away. As she saw them from behind she did not see their faces but they had smart-looking haircuts. One was wearing a light blue T-shirt and jeans, and the other one a yellow T-shirt and brown trousers. She did not see any weapons in their hands. Although she shouted after them to show her their faces, they entered the street which led to the security directorate.     54.   Having run after the two men, she was out of breath and fell to the ground. She then remembered that her husband had a gun in his bag. She went back to where her husband was lying, retrieved the gun and ran in the direction where the two men had gone. When she got the gun she saw the police. Although she told them that the murderers were escaping, described the men to them and showed them the direction where the men had gone, the police did not react. While she was shouting at the police the hospital personnel were taking her husband into the hospital. She followed them within five minutes. The medical intervention having failed, her husband died fifteen minutes later.   55.   At the hospital she saw a man whom she assumed was the District Governor. She said to him, "My husband asked you for a few days' leave, was it because you knew that he was going to be killed that you refused it?" She was then told that this man was in fact the commander of the security directorate at which she replied that that made no difference as her husband had been killed in front of the security directorate.   56.   There were two ways out from the direction in which the two men had fled. If the two armoured cars which were habitually stationed in front of the security directorate had been moved to each of these exits, the murderers could have been caught immediately.   57.   Two days after the incident two doctors working at the State Hospital, Mustafa and _lhan, requested the District Governor, Mehmet Demirezer, to grant them leave, saying that should their request be refused they would resign. Mr Demirezer told them that Dr Tanr_kulu had been killed because he was a Kurd but as they were Turks nothing would happen to them. The two doctors were then granted leave. The applicant asked Dr _lhan to make a statement about this conversation with Mr Demirezer but he refused, saying that that would put his life in danger.   58.   The applicant's husband had never had any enemies. At around 02.00 hours on the morning of 6 June 1993 (this should presumably read 6 April 1993), he had been taken into custody by plainclothed police from the security directorate. He had been held for five and a half hours and was then released without having been brought before a public prosecutor.     Statement of 18 November 1994 taken by Bekir Selçuk, chief public prosecutor at the Diyarbak_r State Security Court   59.   The applicant's husband was chief consultant at the Silvan State hospital. He continuously received threats from the PKK for being an official of the State and from Hizbullah for not complying with Islamic rules.   60.   At around midday on 2 September 1993, when she was feeding her child on the balcony of her house, she saw her husband leave the hospital by the main gate. One minute later she heard gun shots and ran to the location from where the shots were coming. She saw her husband lying face upward. Two women in the garden nearby were shouting, "They shot Zeki". She looked around but saw no one. She then returned in the direction of Old Bitlis Road from where she had come and saw two men who were approximately seventeen to eighteen years old running away. One of them was wearing a yellow T-shirt and brown trousers, and the other one was dressed in a blue T-shirt and jeans. Both wore trainers on their feet and had short haircuts. One was blond, the other had brown hair. She did not see whether they had guns.   61.   She returned to where her husband was lying and saw the arrival of the policemen. She shouted at the police that the murderers were running away. The policemen walked around pointing their weapons at the surroundings but they did not go after the two men. She ran after the men but eventually gave up. Meanwhile, hospital personnel had arrived and they took her husband to the hospital. She returned to her children.   62.   Approximately ten days after the incident she received a telephone call from a person whom she believed was called Kevin. He gave her the name of the institution in England to which he belonged, the year of its foundation and said that this institution defended the rights of medical professionals who had become the targets of armed attacks. He asked her if her husband had belonged to any political party or organisation which she denied. He told her he was in Diyarbak_r and telephoning from the Diyarbak_r branch of the Human Rights Association. He asked her to come there. She replied that she could not leave the house because of the prevailing customs, but said that they could come to Silvan. Nobody came. Twenty days after the incident she went to the Human Rights Association in Diyarbak_r and told them about the attack on her husband. A statement was drawn up which she signed.   63.   Bekir Selçuk showed her a petition signed by Selma Tan on 27 September 1993. She denied having given anybody that document; her name was not Selma Tan and the signature was forged. It might have been drawn up in her absence. However, her right to make an individual application to the Commission was valid and the signature on the petition to the Commission was hers. She could not remember the contents of that petition but the incident had occurred just as she had told Bekir Selçuk.   64.   The statement was read back to her and she confirmed it with her signature.     Statement of 3 December 1996 submitted with the applicant's final observations on the merits of the application   65.   Around midnight on 25 November 1996, two days after returning from the hearings before Delegates in Ankara, the door of the balcony of the applicant's home in Diyarbak_r was forced. She looked through the window for a while but could not see anything. However, she was disturbed.   66.   She did not go to her house at all from 26 to 30 November 1996. On 30 November 1996 she sent her baby-sitter to her house in order to collect some things for her children. The baby-sitter found that the house had been broken into. The house had been searched, the books which had belonged to her husband were on the floor and his photograph hanging on the wall in her children's room had been taken down and put onto her daughter's bed.   67.   Since nothing had been taken away she thought it must have been the police rather than burglars who had broken into her house. She did not contact the police because of her fears and anxiety.     b.   Statements by other persons     _inasi Malgil     Statement dated 2 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_   68.   Although the date on the statement is actually given as 2 September 1994 it was accepted by the parties at the hearing before Delegates in Ankara that the statement was made on 2 September 1993. At the time he made the statement, the witness was fifteen years old.   69.   According to the statement the witness said the following "with regard to the armed attack in which Dr Zeki Tanr_kulu was killed": he was a self-employed worker at the State hospital. He knew Dr Zeki Tanr_kulu, the deputy chief consultant at the hospital, well. On 2 September 1993 he left the hospital around midday to go on an errand and just as he had reached the junction where Old Bitlis Road meets the Kaymakam Slope he saw Dr Zeki Tanr_kulu walking along the side of the Kaymakam Slope towards the market. After they had both crossed the junction Dr Tanr_kulu was walking five or six paces ahead of him, not aware of his, Malgil's, presence behind him. At that moment he heard a series of shots coming from behind them and he threw himself immediately into the garden of houses on the right-hand side.   70.   When the shooting had stopped he heard shouts coming from the hospital: people were shouting that Dr Tanr_kulu had been shot. When he saw the applicant and members of the hospital staff coming up the road he got out of the yard where he had taken cover and saw Dr Tanr_kulu lying on the road in a pool of blood. When the applicant and the hospital staff carried Dr Tanr_kulu to the hospital the police officers on duty arrived. He then also returned to the hospital. He did not see the person or persons who had shot Dr Tanr_kulu.     Umut Yüce     Statement dated 6 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_   71.   The statement states that the witness said the following "in relation to the murder of Dr Zeki Tanr_kulu by fire arms": he resided at the hospital and worked as an orderly at the Mother and Child and Family Planning Unit. On 2 September 1993, around midday, he left work and saw Dr Zeki Tanr_kulu and a teenager by the name of _inasi at the main gate of the hospital. He greeted them and continued walking towards the hospital. Dr Tanr_kulu walked up the slope away from the hospital. Before he (Yüce) reached the hospital he heard fifteen to sixteen gunshots from the direction where Dr Tanr_kulu was going. He went back to the hospital's main gate and saw Dr Tanr_kulu lying in a pool of his own blood. He shouted, "They have shot Dr Zeki." The applicant and hospital staff arrived and he helped carry Dr Tanr_kulu into the hospital.   72.   Following the gun shots he saw two people running in the direction of Old Bitlis Road. They were tall men wearing jeans and trainers. He did not see their faces. He did not know them.     F_rat K_z_l     Statement dated 6 September 1993 taken by police officers Mustafa _im_ir and Ferhat Karata_   73.   According to the statement the witness said the following "concerning the killing of Dr Zeki Tanr_kulu, since he had been ten metres away from the scene of the event": he was living above the grocer's shop at the Old Bitlis Road where he worked. He knew Dr Zeki Tanr_kulu very well, as Dr Tanr_kulu lived in the hospital residences and used to drive back and forth past the shop in his car several times a day. Since customers were constantly coming in and out of the shop he did not always notice who was going past.   74.   Around midday on the day of the incident he heard about fifteen to sixteen gunshots about ten metres up the road. He immediately threw himself on the ground and got up again a couple of minutes later. The incident had terrified him but when he came back to his senses Dr Tanr_kulu was lying on the ground in a pool of blood. Members of the hospital staff and Dr Tanr_kulu's wife then came to the scene of the incident and carried Dr Tanr_kulu to the hospital on their shoulders.   75.   He did not see Dr Tanr_kulu go past the shop, nor did he see the person or persons who shot Dr Tanr_kulu.       Mehmet Demirezer     Statement dated 4 June 1996 taken by the Deputy Provincial Governor of Giresun   76.   This statement was taken at the request dated 23 May 1996 of the Ministry of the Interior. The witness, who had been District Governor of Silvan in 1993, was asked for his knowledge on the applicant's claim that he, in 1993, had told two doctors, "Mr Zeki was killed because he was Kurdish and a local; I am your guarantor. You are Turkish, nothing will happen to you." The witness denied ever having said this. He suggested that the applicant might have used the name of the highest administrative authority in order to make her application more credible.     c.   Official decisions and reports     Incident report dated 2 September 1993 at 13.00 hours drawn up by police officers Turan Da_, Mehmet _ahin and Durmu_ _ahin   77.   When, around 12.00 hours on 2 September 1993, the police officers were informed by the district communications centre that shots had been heard, they, being the patrol on duty in the area, made their way rapidly to the place where the incident had occurred, i.e. 50 metres from the State Hospital in front of house no. 15. Upon arrival there they determined that Dr Zeki Tanr_kulu, chief consultant at the hospital, had been taken to the hospital by hospital staff who had run to the scene and that it had not been possible to save him.   78.   In the examination of the scene of the incident sixteen 9 mm long empty cartridges and one deformed bullet were retrieved and a small blood bath was discovered. During the investigations which they carried out at the scene and the area around it the residents declared that the perpetrators of the shooting had been two thin and tall people wearing jeans and trainers. One of these had been wearing a yellow T-shirt and the other a white striped T-shirt. In the broad investigation made of the area, no individuals fitting either of the descriptions were discovered.   79.   Police officer Mehmet _ahin drew up a plan of the area, which has been annexed to the present Report as Appendix IIb.     Report of post mortem examination dated 2 September 1993   80.   The report states that, upon information received from the police communications centre to the effect that Dr Zeki Tanr_kulu had died as the result of an armed attack which had occurred in Silvan Central District at about 12.00 hours on 2 September 1993, public prosecutor Mustafa Düzgün went to the State hospital accompanied by a clerk.   81.   The body of Dr Tanr_kulu was identified by Mehmet _irin Ba_aran. In the forensic and medical examination which was then carried out in the presence of Dr Tahir Buran and Dr Murat Y_ld_r_m, both working at the State hospital, thirteen bullet entry and twelve bullet exit wounds were recorded, inter alia, on the nose, left ear, left forearm, to the left of the fifth vertebra, the thumb, the right nipple and above the right knee. One bullet was found lodged just below the skin on the inside of the left femur. This bullet was surgically removed and handed over to the clerk for safekeeping. Apart from these findings, there were no other signs of injury by a firearm or by any weapon which cuts, perforates or crushes, nor were there any traces of strangulation, hanging or poisoning.   82.   The body was then handed over to the medical examiners who stated that they agreed with the findings established by the public prosecutor. They expressed as their opinion that the cause of death had been the injury to, and extensive bleeding in, the chest and vital internal organs. In view of the obvious cause of death they felt that there was no need for a classical autopsy to be carried out.   83.   As the public prosecutor agreed with the opinion of the medical examiners, as the cause of death was obvious and as there were no bullets left lodged in the body, it was decided that no classical autopsy should be carried out. A burial licence was issued and the body was handed over to the identifying witness.     Expert's report from the Regional Criminal Police Laboratory dated 9 September 1993   84.   The examination, requested by the Silvan District Police on 3 September 1993, concerned the sixteen 9 mm cartridges and one deformed bullet found at the place where Dr Zeki Tanr_kulu had been shot by a fire arm in front of the house with number 15/A on the Kaymakam Slope by persons unknown. The comparative examination of the cartridges indicated conformity in various aspects demonstrating a single source. The report does not indicate with what kind of fire arm the cartridges and bullets might have been used.   85.   The cartridges were kept in the archives of the Police Laboratory in order to establish whether they might have been fired from guns sent for examination to the laboratories by various authorities of the fourteen provinces of the region. When and if the source of the bullets was identified, a report would be drawn up.   86.   An extremely deformed 9 mm bullet was also kept in the archives under the same entry number.     Decision of lack of jurisdiction dated 5 November 1993   87.   This decision, issued by a public prosecutor at Silvan, Mustafa Düzgün, lists two unidentified persons as suspects of the offence of murder of Zeki Tanr_kulu committed on 2 September 1993. It notes that at around 12.00 hours on the day of the incident the deceased was shot with (a) pistol(s) and killed by two unidentified persons between the State hospital and the security directorate.   88.   After the examination of the documents, and considering that the investigation into the incident fell within the competence of the prosecutor's office at the State Security Court in view of the quality of the offence, the way the incident was carried out and the existing evidence, the decision was taken that the Silvan prosecutor's office lacked jurisdiction and that the documents were to be transmitted to the prosecutor's office at the Diyarbak_r State Security Court in order for the legal proceedings relating to the incident to be considered and performed.     d.   Evidence concerning the scene of the incident     Plans of the area   89.   The Commission has been provided with a number of plans of the area where the incident took place and which have been annexed to this Report: the plan drawn up by the applicant and submitted with her application (Appendix IIa), the sketch of the area made by police officer Mehmet _ahin (para. 79, Appendix IIb), a plan on a scale of 1:1000 submitted by the Government on 30 January 1997 (Appendix IIc), and a further plan drawn up by an architect according to information provided by the applicant and submitted with her final observations (Appendix IId).     Photographs and video film   90.   The photographs and video film, submitted by the Government on 30 January 1997, show that the Kaymakam Slope is a steep road leading from the Gazi Road down to the Old Bitlis Road. Crossing the junction with Old Bitlis Road, the street continues as 19 May Street and runs along the hospital grounds. The gates to the hospital grounds are situated on the Old Bitlis Road, slightly to the left of the junction of that road with the Kaymakam Slope and 19 May Street. Opposite the hospital gates, at the other side of Old Bitlis Road, is a stone wall, about two metres high, which curves around the corner onto the Kaymakam Slope.   91.   The security directorate is a five-storey building. Seen from the bottom of the Kaymakam Slope, it is situated at the top on the right, on the corner of the Kaymakam Slope and Gazi Road, facing the latter. A uniformed, armed guard can be seen at the front of the security directorate. Next to the security directorate on the Kaymakam Slope is a four-storey dwelling. In between the two buildings is a passage way. A uniformed armed guard is standing in front of a sentry box at the entry to the passage way on the Kaymakam Slope. From the sentry box the lower half of the left side of the Kaymakam Slope is not visible. There is another sentry box with a uniformed armed guard further along the passage. By letter of 25 June 1997 the Go