CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 mai 1998

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text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF KURT v. TURKEY   (15/1997/799/1002)                       JUDGMENT   STRASBOURG     25 May 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 – failure of authorities to account for whereabouts or fate of applicant’s son last seen surrounded by members of security forces I.   Government’s preliminary Objections A.   Non-validity of application Applicant testified before delegates – confirmed her wish to take part in proceedings before Court and was present at hearing in her case – cannot be maintained in circumstances that applicant was not seeking redress in respect of complaint against authorities. Conclusion : objection dismissed (unanimously). B.   Non-exhaustion of domestic remedies Government barred on procedural grounds from raising objection – in any event, objection would have been dismissed on merits given that applicant did everything that could be expected of her to exhaust domestic remedies. Conclusion : objection dismissed (unanimously). ii.   Articles 2, 3 and 5 of THE Convention in respect of THE disappearance of THE applicant’s son A.   Establishment of the facts Commission meticulously examined inconsistencies in applicant’s evidence as well as Government’s alternative explanations for disappearance of her son – applicant questioned extensively by delegates of the Commission and Government lawyers at hearing – applicant found credible and consistent on central issue, namely she had seen her son surrounded by soldiers and village guards in village – no exceptional circumstances which would lead Court to depart from Commission’s finding that applicant’s son detained in village in circumstances alleged and has not been seen since. B.   Article 2 No concrete evidence adduced proving, beyond reasonable doubt, that applicant’s son was killed by authorities – neither circumstances in which son detained nor materials relied on by applicant in support of allegation of practice of, inter alia , disappearances and extra ‑ judicial killing of detainees corroborate allegation of unlawful killing – in view of Court, applicant’s assertion that authorities failed to protect son’s life falls to be assessed under Article 5. Conclusion : not necessary to decide on complaint (unanimously). C.   Article 3 in respect of the applicant’s son As with Article 2 complaint, no evidence adduced to substantiate allegation of ill-treatment of applicant’s son in custody – complaint falls to be considered from angle of Article 5. Conclusion : not necessary to decide on complaint (unanimously). D.   Article 5 Reiteration of Court’s case-law on fundamental importance of Article 5 guarantees for protection of physical liberty and personal security of individuals. Unacknowledged detention of an individual must be considered a negation of these guarantees – assumption by authorities of control over individual requires them to account for individual’s whereabouts – Article 5 requires that authorities take effective measures to safeguard against risk of disappearance and to conduct prompt effective investigation into arguable claim that an individual has not been seen since being taken into custody. In instant case, no record kept of son’s detention in village – moreover, authorities failed to carry out any meaningful investigation into applicant’s allegation – applicant never interviewed – authorities must be considered in circumstances to have failed to discharge their responsibility to account for whereabouts of applicant’s son – can be concluded that son held in unacknowledged detention without protection of safeguards guaranteed by Article 5 – in view of Court, this gives rise to particularly grave violation of that Article. Conclusion : violation (six votes to three). iii.   article 3 of THE convention in respect of THE applicant herself No serious consideration given by authorities to applicant’s complaint – applicant a victim of authorities’ complacency in face of her anguish and distress – suffering endured over prolonged period of time and must in circumstances be considered ill-treatment within scope of Article 3. Conclusion : violation (six votes to three). IV.   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 arguable claim that applicant’s son detained by security forces in village – authorities obliged in circumstances to conduct, for benefit of relatives, thorough and effective investigation into disappearance – no such investigation conducted for reasons given for finding of violation of Article 5. Conclusion : violation (seven votes to two). V.   articles 2, 3 and 5 in conjunction with article 14 of THE convention Complaints not substantiated. Conclusion : no violation (unanimously). vi.   article 18 of THE convention Complaint not substantiated. Conclusion : no violation (unanimously). VII. article 25 § 1 of THE convention Reaffirmation of Court’s case-law on obligation of Contracting State to ensure that applicants are able to communicate freely with Commission without being subjected to any form of pressure to withdraw or modify their complaints – expression “any form of pressure” covers not only direct coercion and intimidation but also improper indirect acts intended to dissuade or discourage applicants or potential applicants, their families or legal representatives from pursuing a Convention remedy – in instant case, Court satisfied on facts that applicant subjected to indirect and improper pressure to make statements in respect of her application to Commission – furthermore, threat of criminal proceedings against applicant’s lawyer, even if not followed up, to be considered an interference with exercise of right of individual petition – allegations against a respondent State, even if proved false, must be tested in accordance with Convention procedures and not by threat of criminal measures against applicant’s lawyer. Conclusion : violation (six votes to three). viiI. article 50 of THE convention A.   Non-pecuniary damage Separate sums awarded to applicant’s son and to applicant herself – first sum to be held by applicant for her son and his heirs. Conclusion : respondent State ordered to pay specified sums (eight votes to one). B.   Costs and expenses Applicant’s claim allowed in part. Conclusion : respondent State ordered to pay specified sum (eight votes to one). COURT'S CASE-LAW REFERRED TO 24.3.1988, Olsson v. Sweden (no. 1); 20.3.1991, Cruz Varas and Others v. Sweden; 27.8.1992, Tomasi v. France; 22.3.1995, Quinn v. France; 27.9.1995, McCann and Others v. the United Kingdom; 16.9.1996, Akdivar and Others v. Turkey; 15.11.1996, Chahal v. the United Kingdom; 18.12.1996, Aksoy v. Turkey; 25.9.1997, Aydın v. Turkey; 28.11.1997, Menteş and Others v. Turkey; 19.2.1998, Kaya v. Turkey In the case of Kurt 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   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   I. Foighel ,   Mr   J.M. Morenilla ,   Mr   G. Mifsud Bonnici ,   Mr   K. Jungwiert ,   Mr   U. Lōhmus , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 3   February and 27 April 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 22   January 1997, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention. It originated in an application (no.   24276/94) against the Republic of Turkey lodged with the Commission under Article   25 by a Turkish national, Mrs   Koçeri Kurt on 11   May 1994. The application was brought by the applicant on her own behalf and on behalf of her son. The Commission’s request referred to Articles   44 and 48 and to the declaration 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, 5, 13, 14, 18 and 25 §   1 of the Convention. 2.     In response to the enquiry made in accordance with Rule   33 § 3 (d) of Rules   of Court A, the applicant stated that she wished to take part in the proceedings and designated the lawyers who would represent her (Rule   30). On 18 March 1997 the President of the Chamber refused the applicant’s request to provide for interpretation in an unofficial language at the public hearing having regard to the fact that two of her lawyers used one of the official languages (Rule   27). 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 21   February 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   F. Matscher, Mr   L.-E. Pettiti, Mr   I. Foighel, Mr   J.M.   Morenilla, Mr   G. Mifsud Bonnici, Mr   K. Jungwiert and Mr   U. Lōhmus (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 Turkish Government (“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 17 April 1997, the Registrar received the applicant’s memorial on 23   September 1997 and the Government’s memorial on 3   November 1997, the Government having been granted by the President of the Chamber on 29   May 1997 an extension of the time-limit for the submission of their memorial. 5.     On 24   September 1997 the President of the Chamber granted leave pursuant to Rule   37 § 2 to Amnesty International to submit written comments on the case subject to certain conditions. These comments were received at the registry on 7   November 1997 and communicated to the Agent of the Government, the applicant’s lawyers and the Delegate of the Commission. 6.     On 27   September 1997 the Commission produced a number of documents from the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 7.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26   January 1998. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)   for the Government Mr   M. Özmen , Ms   D. Akçay ,   c o-Agents , Ms   A. Emüler , Mr   F. Polat , Ms   A. Günyakti , Ms   M. Anayaroğlu , Mr   A. Kaya, Mr   K. Alataş ,   Advisers ; (b)   for the Commission Mr   N. Bratza ,   Delegate ; (c)   for the applicant Ms   F. Hampson , Barrister-at-Law, Ms   A. Reidy , Barrister-at-Law,   Counsel , Mr   O. Baydemir , Mr   K. Yildiz ,   Advisers .   The Court heard addresses by Mr Bratza, Ms Hampson and Ms   Akçay. AS TO THE FACTS I.   The circumstances of the case The applicant 8.     The applicant, Mrs Koçeri Kurt, is a Turkish citizen who was born in 1927 and is at present living in Bismil in south-east Turkey. At the time of the events giving rise to her application to the Commission she was living in the nearby village of Ağıllı. Her application to the Commission was brought on her own behalf and on behalf of her son, Üzeyir Kurt, who, she alleges, has disappeared in circumstances engaging the responsibility of the respondent State. The facts 9.     The facts surrounding the disappearance of the applicant’s son are disputed. 10.     The facts presented by the applicant in her final observations on the merits of her application in the proceedings before the Commission are contained in Section A below. This account of the facts also addresses her allegation that she and her lawyer have been subjected to intimidation by the authorities on account of her decision to lodge an application with the Commission. The applicant did not reconstitute her version of the circumstances surrounding the disappearance of her son in her memorial to the Court, relying rather on the facts as established by the Commission in its report (Article 31) adopted on 5 December 1996. 11.     The facts as presented by the Government are set out in Section B. 12.     A description of the materials submitted to the Commission is contained in Section C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s son, as established by the Commission, is set out in Section D. 13.     The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s son, conducted its own investigation pursuant to Article   28 §   1   (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence of witnesses at a hearing conducted in Ankara on 8 and 9 February 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Section E. A.   Facts as presented by the applicant 1.   Concerning the disappearance of the applicant’s son 14.     From 23 to 25 November 1993 security forces, made up of gendarmes and a number of village guards, carried out an operation in the village of Ağıllı. On 23 November 1993, following intelligence reports that three terrorists would visit the village, the security forces took up positions around the village. Two clashes followed. During the two days they spent in the village they conducted a search of each house. A number of houses, between ten and twelve, were burnt down during the operation, including those of the applicant and Mevlüde and Ali Kurt, Mevlüde being her son’s aunt. Only three of the houses were near the clashes. Other houses were burnt down on a second occasion during the military operation. The   villagers were told that they had a week to evacuate the village. The villagers fled to Bismil, many as they were homeless, and those who were not being too scared to remain. 15.     According to the applicant, around noon on 24   November 1993, when the villagers had been gathered by the soldiers in the schoolyard, the soldiers were looking for her son, Üzeyir, who was not in the schoolyard. He was hiding in the house of his aunt Mevlüde (see paragraph 14 above). When the soldiers asked Aynur Kurt, his daughter, where her father was, Aynur told them he was at his aunt’s house. The soldiers went to Mevlüde’s house with Davut Kurt, another of the applicant’s sons, and took Üzeyir from the house. Üzeyir spent the night of 24–25 November 1993 with soldiers in the house of Hasan Kılıç. On the morning of 25   November 1993, the applicant received a message from a child that Üzeyir wanted some cigarettes. The applicant took cigarettes and found Üzeyir in front of Hasan Kılıç’s house surrounded by about ten soldiers and five to six village guards. She saw bruises and swelling on his face as though he had been beaten. Üzeyir told her that he was cold. She returned with his jacket and socks. The soldiers did not allow her to stay so she left. This was the last time she saw Üzeyir. The applicant maintains that there is no evidence that he was seen elsewhere after this time. 16.     On 30 November 1993 the applicant applied to the Bismil public prosecutor, Ridvan   Yıldırım, to find out information on the whereabouts of her son. On the same day, she received a response from Captain Izzet Cural at the provincial gendarmerie headquarters stating that it was supposed that Üzeyir had been kidnapped by the PKK (the Kurdish Workers’ Party). Captain Cural, who had proposed the plan for the operation in the village, replied in identical terms on 4   December 1993. The district gendarmerie commander noted on the bottom of the applicant’s petition of 30   November that Üzeyir had not been taken into custody and that he had been kidnapped by the PKK. 17.     On 14   December 1993 the applicant applied to the National Security Court in Diyarbakır which replied that he was not in their custody records. On 15 December 1993 she contacted the Bismil public prosecutor again but was referred to the gendarmerie. Finally, on 24 December 1993 the applicant approached the Diyarbakır Human Rights Association for help and made a statement on the circumstances surrounding her son’s disappearance. 18.     On 28   February 1994 Davut Karakoç (Üzeyir’s cousin), Arap Kurt (Üzeyir’s uncle and muhtar of the village) and Mehmet Kurt (another of Üzeyir’s cousins) were taken to the gendarmerie and questioned about what they knew of “Üzeyir Kurt who was abducted by representatives of the PKK terrorist organisation”. On 21   March 1994 the Bismil public prosecutor issued a decision of non-jurisdiction on the grounds that a crime had been committed by the PKK. 2.   Concerning alleged intimidation and interference with the exercise of the right of individual petition (a)   In respect of the applicant 19.     The applicant maintains that since submitting her application to the Commission on 11   May 1994 she has been the target of an extraordinarily concerted campaign by the State authorities to make her withdraw her application. 20.     On 19   November 1994 the applicant was called to give a statement to the Bismil public prosecutor on the instructions of the Diyarbakır Principal Public Prosecutor. In this statement she was questioned about the statement she made to the Diyarbakır Human Rights Association on 24   December 1993 (see paragraph 17 above) as well as about her application to the Commission. She denied in her statement to the public prosecutor that the villagers had been tortured by the security forces as had been alleged in the statement taken down by the Diyarbakır Human Rights Association and rejected the reference in the latter statement to the effect that her son had been tortured. She had simply told the Human Rights Association that her son’s face looked like it was swollen. 21.     On 9   December 1994 the applicant signed a statement addressed to the Diyarbakır Human Rights Association which said that her petitions were written by the PKK terrorist organisation and were being used for propaganda purposes. A similar statement was addressed the same day to the Foreign Ministry in Ankara. 22.     On 6   January 1995 the applicant was called by the State authorities to go to a notary in Bismil and was accompanied there by a soldier. She did not pay the notary. The statement which was signed indicated that her only wish was to find her son and that it was for this reason that she had contacted the Diyarbakır Human Rights Association. She indicated that an ill-founded petition had been made in her name by the PKK accusing the security forces of her son’s disappearance. She rejected the application made in her name to the Commission and did not wish to pursue it. 23.     On 25   January 1995 a statement was taken by the Principal Public Prosecutor’s office, as part of a file prepared by the authorities for the purpose of bringing a complaint against the applicant’s lawyer, Mr   Mahmut   Şakar (see paragraph 25 below). 24.     On 10   August 1995 the applicant made another statement before the notary in Bismil which purported to withdraw her application to the Commission. While she was not forced to say anything to the notary and she told him what she wanted to be written, the applicant maintained that the statements do not represent her wishes and she had no opportunity to verify the contents of the statements. (b)   Actions taken against the applicant’s lawyer, Mr Şakar 25.     The applicant states that the authorities have taken steps with a view to prosecuting her lawyer, Mr Mahmut Şakar, for his involvement in her application to the Commission. She refers to a request made in a document dated 12   January 1995 by Mr Özkarol of the Foreign Ministry’s Human Rights Directorate that an investigation be opened against Mr Şakar who was suspected of exploiting the applicant and had made an application against Turkey. B.     Facts as presented by the Government 1.   Concerning the disappearance of the applicant’s son 26.     Ağıllı is a thirty-six-household village. From this village and its surroundings, about fifteen men and women have joined the PKK, which is a high ratio for such a small village. These include Türkan Kurt, the daughter of Musa Kurt, one of the applicant’s sons. 27.     While an operation did take place in the village and clashes occurred between the security forces and suspected terrorists, Üzeyir Kurt was not taken into custody by the security forces. He had no history of previous detention or problems with the authorities and there was no reason for him to be taken into custody. 28.     The Government submit that there are strong grounds for believing that Üzeyir Kurt has in fact joined or been kidnapped by the PKK. They refer to the fact that the family allege that his brother died in gendarme custody several years before; the fact that the applicant stated that he hid when the security forces arrived in the village; and the fact that his house was burnt down following the clash in the village. Further, some members of the family had already joined the PKK and several months after the operation in the village a shelter was found outside the village which it was said was used by Üzeyir Kurt in his contacts with the PKK. There is also a strong tradition of villagers escaping to the mountains at the onset of any military action. Villagers have also stated that they heard that he had been kidnapped by the PKK. 29.     The Government submit that Üzeyir could have hidden in the village at the commencement of the operation and then, under cover of darkness and poor weather, slipped through the security forces’ blockade. Mehmet   Karabulut testified before the Commission’s delegates at the hearing in Ankara that on the night following the first clash Üzeyir was in Mevlüde’s home sleeping (see paragraph 15 above) but that when he woke in the morning Üzeyir was no longer there. The Government stress that Mehmet Karabulut testified that he had not seen or heard soldiers in Mevlüde’s house, which would confirm that Üzeyir went off of his own accord. 30.     The only person who claims to have seen Üzeyir after that is the applicant, whose accounts are inconsistent, contradictory and unsubstantiated. In particular, she affirmed to the delegates at the hearing in Ankara (see paragraph 13 above) that the villagers assembled in the schoolyard were blindfolded. She subsequently retracted this statement. Furthermore, her statements to the Diyarbakır Human Rights Association and to the Commission in her application refer to one visit to her son to give him cigarettes, whereas in her oral testimony before the delegates she referred to two visits; her descriptions of how she received a message from her son vary and she could not identify the child who allegedly delivered the message to her that her son wanted cigarettes (see paragraph 15 above). In addition, her account of making two visits passing through the village when the security forces stated they were keeping people in their houses for security reasons is implausible. The Government also maintain that it would have been impossible for the applicant to retrieve her son’s jacket and socks from his house on 25   November (see paragraph15 above) since it was alleged by the applicant that it had been burnt down the previous day. 31.     The Government place particular emphasis on the fact that Hasan   Kılıç (see paragraph 15 above) in his statement to the gendarmes of 7   December 1994 affirmed that the applicant came to his house, talked to her son who had spent the night there and then left with him. The soldiers had not left with Üzeyir. Furthermore, Üzeyir had not asked for cigarettes to be brought to him at the house; nor did he see Üzeyir being detained in front of his house by soldiers and village guards, as alleged. In fact, as Captain   Cural told the delegates at the hearing in Ankara, no village guards had entered the village to back up the military operation. 32.     In further support of the inconsistencies and contradictions in the applicant’s account of the events, the Government also point to the allegations originally made in the applicant’s application to the Commission in which it was stated that the soldiers killed the livestock, pillaged goods and beat the villagers. The applicant acknowledged that these allegations were incorrect when giving evidence to the delegates. 2.   Concerning the alleged intimidation and interference with the exercise of the right of individual petition 33.     The Government submit that the applicant was not subjected to any pressure not to give evidence before the delegates as was strongly alleged by the applicant’s representatives. 34.     The Government submit that the applicant has clearly stated that she did not wish to make a complaint against the State. Her only concern was to find her son and it was for that purpose only that she went to the Diyarbakır Human Rights Association. She had never been subjected to pressure by the authorities to withdraw her application to the Commission. She had freely made statements to a Bismil notary on 6   January and 10   August 1995 (see paragraphs 22 and 24 above) in which she rejected the application to the Commission which the Diyarbakır Human Rights Association had presented in her name. No soldiers were around her when she made these statements, there was an interpreter present and her statements were read out to her before she fingerprinted them. 35.     According to the Government, the applicant has been manipulated by the representatives of the Diyarbakır Human Rights Association who distorted the information which she gave them about the disappearance of her son into unfounded allegations that the soldiers, inter alia , slaughtered and ate the villagers’ livestock during the operation in the village, looted their goods and tortured the persons kept in the schoolyard (see paragraph   32 above). These and other serious allegations were later shown to be fabrications and the applicant has herself denied that she made them. She had never been put under pressure by the authorities not to attend the delegates’ hearing in Ankara. In fact, she had been minded not to attend since she was anxious to discontinue the application. It was in fact her lawyers who put pressure on her to appear since they discovered that she in fact did not want to attend. 36.     As to the prosecution of the applicant’s lawyer, Mahmut Şakar, the Government state that he has been instrumental in the manipulation of the application to the Commission and has exploited the Convention system for propaganda purposes. The Government’s decision to take proceedings against him was justified. C.   Materials submitted by the applicant and the Government to the Commission in support of their respective assertions 37.     In the proceedings before the Commission the applicant and the Government submitted a number of statements which she had made between 24   December 1993 and 7   February 1996 to the Diyarbakır Human Rights Association, the Bismil public prosecutor, the gendarmes, the Principal Public Prosecutor’s office at Diyarbakır and to the notary in Bismil. The applicant also submitted official documents concerning the inquiry into the conduct of her lawyer, Mahmut Şakar. These materials were studied by the Commission when assessing the merits of the applicant’s allegations as regards both the disappearance of her son and the intimidation of both her and her lawyer. 38.     Statements were taken by gendarmes from twelve villagers between 23   February and 7 December 1994. On 23   February 1994 Arap Kurt, the muhtar of Ağıllı village at the relevant time, Davut Karakoç and Mehmet   Kurt (both cousins of Üzeyir Kurt) were interviewed by gendarmes and asked about “their knowledge and observations about the hostage Üzeyir Kurt who had been kidnapped by the PKK”. Hasan Kılıç (see paragraph 15 above), Mevlüde Kurt (see paragraph 15 above) and other villagers present at the time of the military operation were questioned by gendarmes on 7   December 1994. None of the villagers questioned saw Üzeyir Kurt being taken into custody. Hasan Kılıç affirmed in his statement that Üzeyir Kurt had arrived at his house on the morning of 24   November, spent the night there and left the following morning when his mother arrived. While there had been soldiers staying in the house overnight, Hasan Kılıç maintained that the applicant and her son left the house together and the soldiers definitely did not leave with Üzeyir Kurt. All the above statements were studied by the Commission when assessing the evidence before it. The Government rely on these statements to support their contention that the applicant’s son had not been detained in the village by the security forces as alleged and that there was a reasonable likelihood that he had either been kidnapped by the PKK or left to join the PKK. The Government also produced in the proceedings before the Commission the incident report drawn up by security forces on 24   November 1993; a report dated 19   November 1994 from the Bismil public prosecutor to the Diyarbakır Principal Public Prosecutor’s office suggesting that the evidence pointed to the applicant’s son having been kidnapped by the PKK following the clash on 23   November 1993; and a report dated 8   December 1994 prepared by Colonel Eşref Hatipoğlu of the Gendarmerie General Command, Diyarbakır, on the conduct of the operation in Ağıllı village and confirming, inter alia , that the applicant’s son had not been taken into custody. D.   Proceedings before the domestic authorities 39.     On 30   November 1993 the applicant submitted a thumb-printed petition to the Bismil public prosecutor, Ridvan   Yıldırım. It stated that her son had been taken into custody following a clash between the gendarmes and the PKK at her village and that she was concerned about his fate. She requested that she be informed of his fate. On the same date the public prosecutor passed the petition to the district gendarmerie command with a handwritten request for the information to be provided. The district gendarmerie command noted in handwriting on the petition the same day that it was not true that Üzeyir Kurt had been taken into custody and that it was supposed that he may have been kidnapped by the PKK. 40.     By letter dated 30   November 1993 Captain Cural, under heading of the provincial gendarmerie command, informed the Bismil Principal Public Prosecutor’s office in answer to their unnumbered letter that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists. 41.     By letter dated 4   December 1993 Captain Cural, district gendarmerie commander, under heading of the district gendarmerie command at Bismil, informed the Bismil Principal Public Prosecutor’s office that Üzeyir Kurt had not been taken into custody and it was thought that he had probably been kidnapped by terrorists (identical terms to the letter of 30   November in the preceding paragraph). 42.     On 14   December 1993 the applicant submitted a fingerprinted petition to the Principal Public Prosecutor at the National Security Court at Diyarbakır. She stated that her son Üzeyir had been taken into custody twenty days previously by gendarmes and since they had had no news, they were concerned for his life. She requested that information be given to her concerning his whereabouts. On the bottom of the petition, the Principal Public Prosecutor noted in handwriting the same day that the name Üzeyir   Kurt was not in their custody records. 43.     On 15   December 1993 the applicant submitted a second written petition to the Bismil public prosecutor which repeated the terms of her petition of 14 December. The public prosecutor wrote on the petition an instruction to the gendarmerie regional command to provide her with the information requested. 44.     On 21   March 1994 the Bismil public prosecutor, Ridvan   Yıldırım, issued a decision of dismissal. The document identifies the complainant as the applicant and the victim as Üzeyir Kurt. The crime was identified as membership of an outlawed organisation and kidnapping and the suspects as members of the PKK. The text of the decision stated that following a clash between the PKK and the security forces, PKK members escaped from the village, kidnapping the said victim. Since this crime fell within the jurisdiction of the National Security Courts, the case was dismissed and referred, with the file, to the Diyarbakır National Security Court. E.   The Commission’s evaluation of the evidence and its findings of fact 1.   The written and oral evidence 45.     The Commission had regard to the documentary evidence submitted by the applicant and the Government in support of their respective assertions (see paragraphs 37 and 38 above). Furthermore, at a hearing held in Ankara from 8 to 9   February 1996 the Commission’s delegates heard the oral testimony of the following witnesses: the applicant; Arap Kurt, the muhtar of Ağıllı village and brother-in-law of the applicant; Ridvan   Yıldırım, the public prosecutor in Bismil who had been first approached by the applicant about her son’s disappearance (see paragraph   16 above); Izzet Cural, commander of Bismil district gendarmerie, who had proposed the plan for the military operation in Ağıllı village (see paragraph 31 above); Muharram Küpeli, a commander of a commando unit which was deployed during the military operation in the   village; and Mehmet Karabulut, who had seen the applicant’s son for the last time at Ali and Me