CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 juillet 1998

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s2637CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s85A66119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sA182E63D { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sF18AFABB { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; font-size:12pt } .s64A09B87 { width:5.18pt; text-indent:0pt; display:inline-block } .s17F22A1 { width:8.71pt; text-indent:0pt; display:inline-block } .s9A3151F9 { width:235.96pt; text-indent:0pt; display:inline-block } .s653BD303 { width:233.28pt; text-indent:0pt; display:inline-block } .sE97F4D3 { width:2.71pt; text-indent:0pt; display:inline-block } .sB706C309 { width:199.28pt; text-indent:0pt; display:inline-block } .s5B44DAF8 { width:218.64pt; text-indent:0pt; display:inline-block } .sE8438B76 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; font-size:12pt } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s2ED8898C { width:121.88pt; text-indent:0pt; display:inline-block } .sF29B2586 { width:114.59pt; text-indent:0pt; display:inline-block } .s5AE3DA4A { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sB6686A27 { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s8D0BC531 { margin-top:30pt; margin-left:21.6pt; margin-bottom:30pt; text-indent:-21.6pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s2DC53EE5 { width:14.93pt; text-indent:0pt; display:inline-block } .s420BE900 { margin-top:30pt; margin-left:31.65pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s8750BF75 { width:8.15pt; text-indent:0pt; display:inline-block } .sAAD5D99A { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s836E1A5 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s489D9DF1 { margin-top:18pt; margin-left:31.65pt; margin-bottom:24pt; text-indent:-20.15pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s3EB11201 { width:3.65pt; text-indent:0pt; display:inline-block } .sFEAD9F27 { margin-top:24pt; margin-left:55.45pt; margin-bottom:6pt; text-indent:-33.85pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s719459F8 { width:11.09pt; text-indent:0pt; display:inline-block } .s7ACBD94A { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s6785ADBE { margin-top:12pt; margin-left:35.4pt; margin-bottom:6pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid } .s556ED54D { font-family:Arial; font-weight:bold; letter-spacing:-0.1pt } .s3A0F23BF { width:11.58pt; text-indent:0pt; display:inline-block } .s9A223E1B { width:11.03pt; text-indent:0pt; display:inline-block } .s9B8CC9C7 { margin-top:12pt; margin-left:35.4pt; margin-bottom:6pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s1B9C2EAE { font-family:Arial; font-size:10pt; font-weight:bold; letter-spacing:-0.1pt } .s23D77467 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s3AC9CA66 { margin-top:12pt; margin-left:35.4pt; margin-bottom:12pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid } .sFD98DDDA { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s5BD3D434 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.65pt; text-align:justify } .s5B1C7C9E { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.65pt; text-align:justify } .s74BA1778 { margin-top:18pt; margin-left:35.4pt; margin-bottom:6pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid } .s286D21C3 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sA21A85D1 { margin-top:6pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.65pt; text-align:justify } .s57058D7D { width:13.81pt; text-indent:0pt; display:inline-block } .s79054190 { font-family:Arial; font-weight:bold; font-style:italic; letter-spacing:-0.1pt } .s2ACD795E { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s820009A6 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.65pt; text-align:justify } .sA432F987 { margin-top:12pt; margin-left:35.3pt; margin-bottom:6pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid } .sF2492270 { width:14.36pt; text-indent:0pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF1541235 { width:8.25pt; text-indent:0pt; display:inline-block } .sFCB87528 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.65pt; text-align:justify } .sF3F78251 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.65pt; text-align:justify } .s269529CD { width:13.25pt; text-indent:0pt; display:inline-block } .sAE5BCF31 { margin-top:18pt; margin-left:21.6pt; margin-bottom:12pt; text-indent:-21.6pt; text-align:justify; page-break-after:avoid; font-size:12pt } .sF7A8F241 { width:11.6pt; text-indent:0pt; display:inline-block } .sC2354B74 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sC7640BE9 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-after:avoid; font-size:14pt } .sF7EA9B01 { margin-top:30pt; margin-left:21.6pt; margin-bottom:12pt; text-indent:-21.6pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s82F7D6C9 { margin-top:24pt; margin-left:35.4pt; margin-bottom:18pt; text-indent:-23.8pt; text-align:justify; page-break-after:avoid; font-size:12pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s28F67C2C { margin-top:18pt; margin-left:55.45pt; margin-bottom:6pt; text-indent:-33.85pt; text-align:justify; page-break-after:avoid } .sED46559C { margin-top:12pt; margin-left:55.45pt; margin-bottom:6pt; text-indent:-33.85pt; text-align:justify; page-break-after:avoid } .sFC353FA9 { margin-top:18pt; margin-left:31.65pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s9E658AED { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s990277FC { width:8.26pt; text-indent:0pt; display:inline-block } .s135FA932 { margin-top:6pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.65pt; text-align:justify } .s8BB842AB { margin-top:24pt; margin-left:31.65pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-after:avoid; font-size:12pt } .sB0336B7E { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s18493772 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; font-size:12pt } .s141F584E { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; font-size:12pt } .s6C9D9F1A { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; font-size:12pt } .sA0D91B4B { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt; text-align:justify; font-size:12pt } .s75AA6985 { width:198.4pt; text-indent:0pt; display:inline-block } .s678CC2E0 { width:73.85pt; text-indent:0pt; display:inline-block } .s41C62D77 { width:13.91pt; text-indent:0pt; display:inline-block } .sC2E0E68A { width:53.61pt; text-indent:0pt; display:inline-block } .sFF5CEE3D { margin-top:12pt; margin-bottom:12pt; font-size:12pt } .s63EB1168 { margin-top:12pt; margin-bottom:0pt; text-align:right; font-size:12pt } .sF1D05512 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:14pt } .s7BE5FA7B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:12pt } .s2C0F5E1D { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; line-height:150%; font-size:12pt } .sC202EACC { clear:both; mso-break-type:section-break } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF GÜLEÇ v. TURKEY   (54/1997/838/1044)                       JUDGMENT   STRASBOURG     27 July 1998       In the case of Güleç v. Turkey [1] , 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 [2] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   C. Russo ,   Mr   L. Wildhaber ,   Mr   G. Mifsud Bonnici ,   Mr   U. Lōhmus ,   Mr   M. Voicu ,   Mr   V. Toumanov , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 30 March and 26 June 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 28 May 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 21593/93) against the Republic of Turkey lodged with the Commission under Article 25 by a Turkish national, Mr   Hüseyin   Güleç, on 16 March 1993. 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 Article 2 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 he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). 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. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 3 July 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr C. Russo, Mr   L.   Wildhaber, Mr G. Mifsud Bonnici, Mr U. Lōhmus, Mr M. Voicu and Mr V. Toumanov (Article   43 in fine of the Convention and Rule 21 § 5). Subsequently the Vice-President of the Court, Mr R. Bernhardt, replaced Mr   Ryssdal, who died on 18 February 1998 (Rule   21 §   6). 4.     As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 27 January and 17 February 1998 respectively. 5.     On 28 January 1998 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the instructions of the President. 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 March 1998. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)   for the Government Mr   M. Özmen ,   Agent , Mr   A. Kaya ,   Counsel , Mr   K. Alataş , Mrs   A. Emüler , Mrs   M. Anayaroğlu ,   Advisers ; (b)   for the Commission M. H. Danelius ,   Delegate ; (c)   for the applicant Mr   H. Kaplan , of the Istanbul Bar,   Counsel , Mr   Ş. Yılmaz , of the Diyarbakır Bar,   Adviser .   The Court heard addresses by Mr Danelius, Mr Yılmaz and Mr Özmen, and their replies to questions from two judges. AS TO THE FACTS I.   the CIRCUMSTANCES OF THE CASE A.   Background to the case 7.     On 4 March 1991 there were a number of incidents such as spontaneous unauthorised demonstrations, shop closures and attacks on public buildings in the town of İdil in Şırnak Province. Two people were killed – one of whom was Ahmet Güleç, aged 15, a pupil at İdil Senior High School and the applicant’s son – and twelve others were wounded. 8.     The owners of thirteen rifles confiscated after the incidents, spent cartridges from which had been collected by the security forces, were prosecuted in the Diyarbakır National Security Court, but acquitted because they had proved that they had not taken part in the events concerned. 9.     According to the Government, Ahmet Güleç was hit by a bullet fired by armed demonstrators at the gendarmes. According to the applicant, his son was killed by the security forces, who fired on the unarmed demonstrators to make them disperse. 10.     On 5 April 1991 the applicant filed a criminal complaint with the İdil public prosecutor’s office against a person or persons unknown and against the commander of the security forces, Major Mustafa Karatan. 11.     On 19 April 1991 the public prosecutor’s office, after noting that the criminal complaint was directed against Major Karatan, declared that it had no jurisdiction to deal with it and transferred the case file to Şırnak Provincial Administrative Council for a preliminary investigation. On 18   October 1991 Şırnak Provincial Administrative Council halted the proceedings by means of a discontinuation order which was never served on the applicant’s lawyer. It found that the victim had died of bullet wounds received in the course of a confrontation between the demonstrators and the security forces. However, it found that it was impossible to identify those responsible. 12.     On 13 November 1991 the Supreme Administrative Court, to which the case had been automatically referred by law, upheld the above decision, holding that it was impossible to bring a prosecution against civil servants where the identity of those responsible and their status as civil servants had not been established. 13.     On 20 January 1993 Mr Güleç’s lawyer wrote to the Chairman of İdil District Administrative Council enquiring what had been done about the applicant’s complaint. On 3 March 1993 the Şırnak Provincial Authority sent the applicant’s lawyer copies of the discontinuation order of 18 October 1991 and the Supreme Administrative Court’s judgment of 13 November 1991. B.     The evidence before the Commission 1.   Documentary evidence 14.     The applicant and the respondent Government submitted various documents relating to the investigation carried out after the death of Ahmet   Güleç to identify those responsible. They also produced documents relating to the criminal proceedings brought against persons who were suspected of taking part in the demonstration. (a)   The criminal complaint lodged by the applicant on 5 April 1991 with the İdil public prosecutor’s office 15.     The applicant alleged that his son had been shot and killed by the security forces in the course of the incidents of 4 March 1991. He stated that eyewitnesses had seen the killing and asked that the gendarmes who had killed his son be identified. (b)   Petition lodged with the İdil public prosecutor’s office by four local councillors and eight leading members of the İdil branches of various political parties 16.     The petitioners, who had all witnessed these events, alleged that during an unauthorised demonstration the gendarmes had opened fire on unarmed demonstrators. Two people had been killed and more than twenty wounded. The gendarmerie commander had given the order to fire at will on unarmed people. In particular, the local councillors, who had been in a meeting in the district authority offices, had seen the security forces opening fire on young people. One senior-high-school pupil had been killed and others wounded in the shooting. The petition stated that the gendarmerie had acted without reference to the District Commissioner, the public prosecutor or the police. The signatories requested the public prosecutor to take the necessary steps to bring those responsible to justice. (c)   Report on the incidents of 4 March 1991 drawn up by the commanding officers of the gendarmerie, the İdil police and the army 17.     This document contains a detailed description of the events by the commanding officers of the various security forces present in İdil. It states that, on the morning of the day in question, the shopkeepers all closed the shutters of their shops. The security forces had been informed that a group of between 1,000 and 1,500 people from the neighbouring villages was advancing on İdil. The demonstrators said that they were going to a funeral. When they reached the middle of the Atakent district of the town, more people joined the group. The crowd then set off towards the town hall. The gendarmerie commander, the district chief of police and other civil servants intercepted them and made several announcements to the effect that the demonstration was illegal. However, the demonstrators continued to advance along Atatürk Street, shouting slogans like “Long live the PKK”, “Long live freedom”, “Long live Kurdistan” and “Freedom for Kurdistan”. The group, composed of men, women and students, was more than 3,000 strong. When they reached the junction with Milli Egemenlik Avenue, some demonstrators began to attack the police and gendarmes with stones and sticks and firearms. When the demonstrators reached the centre of town they began to break the closed shutters, windows and doors of the shops. At that moment, four reinforcement units sent in by the gendarmerie and police again barred the demonstrators’ way, requiring them to disperse. Sticks and stones were thrown at the security forces who were trying to disperse the demonstrators. Certain unidentified demonstrators opened fire on the security forces with the aim of spreading panic and disorder. After the shooting the demonstrators began to disperse through the centre of town. One group went to İdil Senior High School, the adult education centre, the gendarmes’ quarters, the police station, the gendarmerie headquarters and the security police offices. When they reached the post office, the group threw sticks and stones, breaking all the windows, and set fire to a post-office minibus. The windows of the school and adult education centre were broken and damage caused to the interior of both buildings. When the same group started to attack the gendarmes’ quarters and the town hall, the gendarmes and police fired warning shots and gave warnings over the town hall loudspeakers. The security forces began to disperse the group. In the course of these events Ahmet Güleç, a senior-high-school pupil, was killed on the spot by a shot fired by armed troublemakers who had mingled with the demonstrators. A number of civilians were wounded and taken to the public hospital in Cizre. Ekrem Oruç died in hospital. Seven soldiers were injured by flying stones. Some fifty men and seventeen women who had taken part in the unauthorised demonstration were taken into police custody. Twenty-nine spent cartridges from Kalashnikov-type weapons were found at the scene of the demonstration. (d)   Report on the medical examination and autopsy performed on Ahmet Güleç 18.     “Medical examination ... The body was stripped. At the mid-point of the right axillary line towards the victim’s back there was a wound 1 cm in diameter caused by a bullet fired from some distance. The exit wound measures 2   cm in diameter and is 20 cm lower, about 10 cm in from the outside of the groin. Approximately 5 cm below the entry wound on the same right axillary line there is a further wound caused by a bullet fragment measuring 1 cm by 1.5 cm. The body was still warm when the examination commenced. Rigor mortis had not set in and there was no cyanosis. It was concluded from this that death had occurred approximately one hour earlier. ... Two expert opinions were requested. These confirmed the public prosecutor’s finding (see above), that is that there is no exit wound relating to the bullet fragment which entered through the middle of the thorax, underneath the right arm. Further, they confirmed that, 5 cm above the point of impact of the fragment, there is an entry wound caused by a bullet striking at an oblique angle, with an exit wound on the same trajectory. Since neither the bullet nor the fragments touched any vital organ, the experts recommended that a full autopsy be carried out in order to determine the precise cause of death.” “Autopsy The ribcage and abdominal cavity were opened according to the usual procedures. A large quantity of accumulated blood was observed in the thoracic cavity. Approximately 3 litres of blood were pumped out. The left lung had been lacerated by the bullet fragment which, as noted above, struck the victim at the mid-point of the right axillary line. The bullet whose entry and exit wounds were identified and whose trajectory did not touch any vital organ could not have caused death. We conclude that death was caused by the bullet fragment which struck the victim at the mid-point of the right axillary line; this followed a horizontal trajectory, hitting the left lung and causing death by internal haemorrhaging and hypovolaemic shock. In the course of the full autopsy, the bullet fragment which struck the left lung was found in the left armpit and was placed under seal as an exhibit...” (e)   Statement of Abdülvehap Öner, a resident of İdil, taken on 28   March 1991 by the İdil public prosecutor 19.     The witness gave the following version of events: “On 4 March 1991 ... I came across the crowd of demonstrators. I did not join them, but went back the way I had come. At that moment I saw that shots were being fired at the ground from the armoured military vehicle, presumably to disperse the demonstrators. Something – I suppose pieces of lead – anyway, bits of metal – hit my left arm, right thigh and the inside of my left calf. I fell to the ground. I must have lost consciousness... I did not see who fired the shots which hit me, or what weapon they came from. However, shots did come from the Condor military vehicle.” (f)   Declaration of lack of jurisdiction ratione materiae made on 19   April 1991 by the İdil public prosecutor 20.     The İdil public prosecutor declared that he had no jurisdiction to examine the applicant’s complaint against the İdil gendarmerie commander, Major M. Karatan, for reckless and negligent homicide. The public prosecutor found that Major Karatan had been acting in the performance of his duties and observed that civil servants were subject to special provisions. He accordingly sent the case file to the İdil District Commissioner, who forwarded it to the Şırnak Provincial Administrative Council for investigation. (g)   Declaration of lack of jurisdiction made on 7 June 1991 by the İdil public prosecutor regarding the wounding of Abdülvehap Öner 21.     This declaration states: “On 4 March 1991 the security forces fired into the air from the armoured vehicle belonging to the İdil gendarmerie with the aim of dispersing the demonstrators. One person was wounded by the shooting... The bullets which hit the demonstrator were fired by civil servants acting in the performance of their duties. It has not been possible to identify the persons in question.” (h)   Letter of 12 June 1991 from the İdil District Commissioner to the İdil gendarmerie commander 22.     In this letter, the İdil District Commissioner stated:   “On 4 March 1991 an illegal demonstration took place in [İdil]. In order to make the demonstrators disperse, the security forces fired into the air from the armoured vehicle belonging to the gendarmerie of our district. One citizen was wounded. An investigation into the conduct of the gendarmes has been opened.” The District Commissioner also requested the gendarmes to inform him of “the identity and addresses of those gendarmes in the armoured vehicle who allegedly opened fire, wounding citizens”. He added: “This information will serve as a basis for the investigation to be carried out by my officials.” (i)   Letter of 14 June 1991 from the İdil gendarmerie, replying to the letter of 12   June 1991 from the İdil District Commissioner 23.     In this letter, the gendarmerie state, firstly: “Your authorities know perfectly well that this illegal demonstration was organised by terrorist PKK militants. It was not simply a demonstration, since the offices of public authorities were attacked. Moreover, the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was. The District Commissioner’s office asked us for backup in order to prevent the situation getting out of hand; in view of the urgency and dangerousness of the situation, all our available personnel were sent to the scene.” 24.     The gendarmerie gave the following reply to the District Commissioner’s request: “We hereby inform you that, as stated above, given the sudden and serious nature of the events in question, the exact position of each of our men was not noted in the log-book. We are no longer in a position to verify their position on the day in question, given that more than three months have since elapsed.” (j)   Documents relating to the investigation carried out by the military investigators 25.     On 11 April 1991 the Governor of Şırnak Province instructed Mr   Celal Uymaz, a gendarmerie lieutenant-colonel, to hold a preliminary investigation into the events of 4 March 1991. Lieutenant-Colonel Uymaz took evidence from the following witnesses:   Şakir Ece , mayor of the Atakent district of İdil (statement of 22   July 1991): “... We heard children’s voices coming from the Midyat road. The children carried on marching towards the centre. They were not carrying anything, but simply making “V” signs and chanting slogans... The major arrived. He was in front of the Ziraat Bank. The demonstrators, who had become more agitated, carried on marching. The major then gave the order to fire. We heard shots from all sides. I took refuge on the second floor of the building with the people who had been in front of the District Commissioner’s offices. Through the window I could see that four or five people had fallen to the ground as a result of the shooting, but I did not recognise them. Subsequently, the gendarmes and police arrived, dispersed the demonstrators and took the wounded to hospital...” Hüseyin Güleç (statement of 23 July 1991): “I live in the Asağı Mahalle district; the place where the events took place is 250 metres from my house. The sound of shots gradually intensified, lasting approximately two hours. I did not leave the house, I was afraid. I was unable to see anything of what was happening. Around noon, the sound of shooting stopped. Women passing my house in tears told me that my son Ahmet had been killed in the confrontation. That was how I learned that my son had been killed... According to what I was told, my son was killed in front of the bakery ... in the central market... He was on his way to school but, when he saw the demonstrators, he followed them. In the confrontation which arose during this demonstration, soldiers opened fire, killing my son. The district gendarmerie major, Mustafa Karatan, gave the order to fire. He is responsible for the death of my son.” Habip Aslançiçek (statement of 23 July 1991): “On the day in question, at about 8.30 a.m. ... I saw a group of demonstrators coming up Midyat Avenue towards the central market. There were men, women and children in the group. Most of the demonstrators had scarves over their faces. They were armed with stones and pieces of wood and were very worked up. Most of them went past the post office, but others stopped there and broke the windows. The Condor vehicle from the battalion arrived to make the crowd disperse. The men in the vehicle opened fire on the agitated demonstrators – or, rather, fired at the ground. Ahmet   Güleç, a relative of mine, who died later in hospital, fell to the ground. I believe he was hit by a bullet which was fired at the ground but ricocheted and hit him, because if the shots had been aimed at the crowd, everyone in the group would have been killed. When Ahmet Güleç fell, wounded, I took him to the medical centre in the town hall taxi. In the meantime, other people had been wounded. I did not see the soldiers who were in the Condor, nor the person who fired. However, the shots fired to disperse the demonstrators did come from the Condor. I repeat, they did not open fire on the crowd. Stray bullets could have caused the death.” Celal Sabuk (statement of 24 July 1991): “On the day in question, I had gone ... to the centre of town to do some shopping. I was making my purchases when I saw a large group of demonstrators approaching. They were chanting slogans, but I could not understand what they were saying. I heard shots. I saw that shots were being fired from an armoured military vehicle. In the ensuing confusion and surprise I was hit by three bullets, which I think were fired from the armoured vehicle. I was wounded and fell to the ground. I fainted and so I do not know what happened afterwards.” On 1 August 1991 Mr Uymaz had to withdraw from the investigation, as he had been transferred. 26.     On 8 August 1991 the Provincial Governor then appointed Mr   Osman Kurt, the gendarmerie battalion’s commanding officer. (k)   Summary of the investigation, filed on 14 October 1991 by investigator Osman   Kurt 27.     This document contains the results of the investigation carried out by the two investigating officers. Mr Kurt, who was at the material time a gendarmerie major, made the following findings of fact: “On 4 March 1991 an unauthorised demonstration started in the early morning and lasted into the afternoon. The demonstrators were chanting PKK slogans and shouting defiance of the Turkish Republic. This demonstration grew to a crowd of 3,000 people. The demonstrators then began to damage public buildings and vehicles and related property. They fired shots in all directions. Since there were not enough police officers, reinforcements were requested. The gendarmerie company command and the district gendarmerie headquarters responded to this request in accordance with the provisions of Law no. 2803 on the duties and powers of the gendarmerie. In the course of these events two citizens were killed and approximately thirteen others injured. The majority of the persons taken into custody were arrested after initial questioning. Twenty-seven officers, warrant-officers, sergeants and men from the security forces were also injured in the same incidents.” With regard to the identity of those responsible, he concluded: “The statement of Abdülvehap Öner ... reveals that he did not see, and does not know, who opened fire... Hüseyin Güleç, the father of the victim [Ahmet Güleç] ... makes gratuitous and inopportune accusations against Major M. Karatan, who was simply obeying orders. The fact that the major has been made the target of the accusations, despite the fact that he was armed only with his handgun, reveals an ideological outlook and a complete lack of objectivity. The security forces did not aim at the citizens and have twice as many wounded as the demonstrators. The law was applied in order to prevent further incidents. There is, nevertheless, an imbalance (between the numbers of wounded on each side). The security forces did not reply ... to the shots from the crowd. In such circumstances, it is impossible to determine who was responsible for the incidents. In total, 200 police officers and gendarmes were deployed.” In the covering letter to the summary of the investigation he asserted: “The investigation has shown that the complaints filed by Hasip Kaplan [the applicant’s lawyer] and his fifteen friends contain unfounded and regrettable statements reflecting a lack of objectivity.” (l)   Discontinuation order of 18 October 1991 made by Şırnak Provincial Administrative Council 28.     This order stated that there were no grounds to commit for trial any civil servants belonging to the security forces responsible for maintaining order during the demonstration of 4 March 1991. According to this document, the material facts were as follows: “On the day in question, all the shops in the centre of İdil were closed. Their suspicions having been aroused by this situation, the security forces took security measures at the points of entry to the town, on the roads coming from the villages of Dirsekli, Yarbaşı and Bereketli. As they were doing this, a crowd of between 1,000 and 1,500 people was seen approaching İdil. The security forces personnel asked them what they were doing. The marchers replied that they were going to a funeral and carried on towards the centre of İdil. As they went through the Atakent district, a large number of men, women and children joined the group. It must then have numbered 3,000 persons, heading for the town hall. The district chief of police and the gendarmerie commander made several announcements to the effect that the march was illegal and that the participants should disperse. However, the unauthorised demonstration continued, accompanied by the chanting of slogans such as ‘Long live the PKK’ and ‘Freedom for Kurdistan’. The demonstrators fired shots at the security forces and attacked them with stones and sticks. Subsequently, they broke the windows of public buildings and housing and burned the post-office minibus parked outside the post office. The security forces, confronted with a situation which was becoming stormy, fired shots in the air in order to calm the demonstrators down and make them disperse. However, shots were also fired by demonstrators. Several persons died from wounds caused by shots fired during the demonstration; the medical report also proves that the wounds were caused by gunshots. A search of the scene of the incidents and the surrounding streets and alleyways after the demonstration produced fifty-two spent cartridges from bullets of various calibres coming from weapons registered with the security forces. An analysis of the cartridges showed that the bullets had come from thirteen different weapons. It was concluded that the demonstrators had used firearms.” The Administrative Council held that it was “not possible on the basis of the evidence on the case file to identify who had killed and injured the victims”. (m)   Judgment of the Supreme Administrative Court of 13 November 1991 29.     The Supreme Administrative Court upheld the above discontinuation order on the following grounds: “Offences committed by civil servants acting in the performance of their duties or by virtue of their powers must be dealt with in accordance with the procedures governing the prosecution of civil servants ..., [whereby] an administrative investigator is appointed by ordinance to carry out the investigation... ... Before an investigation can be opened into the conduct of a civil servant, the suspect must be precisely identified. In the absence of a precise identification, no judicial investigation can be carried out, no summary of such investigation can be prepared and no competent court can give a ruling on the matter. On 4 March 1991, in the course of a demonstration in the town of İdil, there were a number of confrontations between the security forces and the demonstrators, as a result of which two persons were killed and twelve others wounded. It has not been possible to identify those responsible. Although no judicial investigation can be carried out into this matter, the investigator appointed opened a preliminary investigation and prepared a summary of its findings, on the basis of which the Provincial Administrative Council made a discontinuation order. Since those responsible for the deaths and woundings are unknown, it is impossible for this Court to look into the case and give judgment. Having examined the case file, we hold that the Administrative Council’s decision was in accordance with the law and procedurally valid.” 2.   Oral evidence (a)   Hüseyin Güleç (the victim’s father) 30.     Mr Güleç stated that he had not been in İdil at the time of the events of 4   March 1991. When he returned home in the evening he was informed that his son was dead and told that he had been shot. He heard that his son had gone to the scene of the demonstration to look for his younger brothers, at which point he was hit by a bullet. He did not know who had shot his son. Mr Güleç said that he had not made any statement to the authorities. He remembered being in shock after the incident. Many people had come to visit him, including journalists and members of parliament. He did not know exactly where the body of his son had been found. He had seen it for the first time at the hospital. As regards the investigation opened after the death of his son, he confirmed that he had signed the criminal complaint filed with the İdil public prosecutor’s office, but afterwards he had shut himself up at home. He did not know the details of how his son died. He did not know that he was entitled to compensation as a result of his son’s death. Even if his lawyer had advised him to apply for this, he was not in a fit state to understand anything at all at the time of the incidents. (b)   Abdülselam Güleç (civil servant in Bor (Niğde Province), the victim’s cousin) 31.     Mr Güleç had been present in İdil during the incidents, visiting a sick uncle. He had remained in his uncle’s house throughout the demonstration and so was not an eyewitness. He had only heard the demonstrators and the shots. When told of Ahmet Güleç’s death, he had gone to the hospital where he had looked for but failed to find the body. Later, he had brought the body back to the village for the funeral, which he had attended. Some of the leading citizens of İdil, together with the PKK, had organised the demonstration and publicised it energetically. All the villagers had taken part (both adults and children), except for the elderly, since those who did not take part in these demonstrations were killed or punished by the PKK. The victim, Ahmet Güleç, had been a pupil at the town’s senior high school and, as such, like all the pupils of the school, had been obliged to take part in the demonstration. If he had not done so, he would have been punished by the PKK. At that time, İdil was a “protected” area: that is, the PKK controlled people’s movements. If he, Abdülselam Güleç, had been found in his uncle’s house, he would have been forced to participate in the demonstration. The population of İdil district was essentially made up of nomads, who lived in İdil in winter and moved up into the mountains in summer. These people were armed, possessing one or two guns per family in order to protect themselves from the wolves and thieves in the region. There were contacts between members of the PKK and these nomads. In March winter was not yet over and the village nomads did not migrate to the mountains until May. At the time of the demonstration there must therefore still have been a large number of nomads in İdil. Mr Güleç asserted that the victim had told him, on an unspecified date, that the PKK had contacted him to try to persuade him to join their movement. (c)   Abdurrahman Abay (mayor of İdil at the material time) (statement taken over the telephone) 32.     On 4 March 1991 he had been in his office. The demonstration had taken place about a kilometre away. He had not realised it was happening until he heard shots. He had telephoned the police who had informed him that there were two dead and a number of wounded. He had not left his office. He was not responsible for security in the town. That was the responsibility of the police and the gendarmerie. Mr Abay acknowledged that he had signed the complaint lodged by leading citizens of İdil against the gendarmerie commander. At first, he had thought that the gendarmes had used excessive force against the demonstrators. However, on reflection, he recognised that the gendarmes had acted in the way they had in order to avoid losing control of the situation, so he had withdrawn his complaint. (d)   Derviş Abay (civil servant at İdil town hall at the material time) (statement taken over the telephone) 33.     Mr Abay said that he had not met Ahmet Güleç. The town hall was 800 to 900 metres away from where the demonstration took place. The demonstration and associated incidents had taken place in the centre of town. He had not been present at these incidents, nor had he seen the demonstration. He had heard noises and shots. He had been placed in police custody and held for two days after the incidents. He had been charged when he claimed not to have taken part in the demonstration. The charge-sheet stated that he had taken part in the demonstration, that spent cartridges from the weapons used during the demonstration had been found at the scene and that one of these weapons belonged to him. Two months after being released from police custody he had been remanded in custody for one month. At the end of the criminal proceedings brought against him and many other inhabitants of İdil, the Diyarbakır National Security Court had acquitted them all. He had a gun licence. On the day of the incident he had been working in the town hall and the gun in question had been at his house. He had been told that the security forces had gone to his house, taken the gun and fired shots from it inside their barracks, thus obtaining spent cartridges. (e)   Şeymuz Kaplan (town councillor) 34.     Mr Kaplan stated that during the demonstration of 4   March 1991 he had been at home and had not gone out. He was therefore not an eyewitness. His house was about 400 or 500 metres from where the demonstration took place, so he had only heard the demonstrators and gunshots. He did not know the exact reason for the demonstration. With regard to the complaint filed with the İdil public prosecutor, he had signed it, but had done so as an emotional response in the heat of the moment. He had not been interviewed in the course of the investigation conducted following the demonstration. (f)   Yahya Zerey (head of the security police in İdil at the material time) 35.     Mr Zerey stated that on 4 March 1991 the shutters of all the shops in İdil had been lowered very early in the morning. At the request of the İdil District Commissioner, the police had taken measures to prevent any untoward occurrences. While he was at the district authority offices the gendarmes had informed him by walkie-talkie that a group of three to four thousand people was heading towards the centre of town. Mr Zerey and his men had gone out to meet the demonstrators in order to inform them that they were demonstrating illegally and should stop. However, the demonstrators had continued their march. Mr Zerey and his men had returned to the district authority offices. After the arrival of the gendarmes, Mr Zerey had remained in the District Commissioner’s office and had not witnessed the incidents. Following a call from a group of gendarmes led by Mr Ersöz and stationed in front of the post office, the armoured vehicle had been sent to their assistance. Mr Zerey had not seen the shooting. The demonstrators had been armed and violent. They had damaged a post-office vehicle and other public property. The security forces had returned fire from the demonstrators. The security forces had not been equipped with batons or riot shields which could have helped them to quell the demonstrators. They had been armed with handguns and rifles. Mr Zerey also asserted that if the security forces had fired directly on the crowd, more than two people would have been killed. He also stated that the cartridges found in the streets after the incidents belonged to inhabitants of İdil. It was routine procedure for the security forces to pick up spent cartridges. According to Mr Zerey, the MG-3 gun mounted on the armoured vehicle could not possibly have been used against a crowd. If it had been, at least twenty people in the front ranks of the crowd would have been killed. (g)   Güven Ersöz (commanding officer of the 8th İdil Gendarmerie Company at the material time) 36.     Mr Ersöz stated that on the morning of 4 March 1991 he had learned that shops in the town had lowered their shutters. Finding this unusual, he had awaited developments in his brigade’s building. When he saw that the number of demonstrators had increased and that, despite warnings, they were continuing to advance towards the building, he had taken up position at its entrance with about thirty gendarmes. Mr Ersöz stated that the crowd of demonstrators had been made up of women and children surrounding armed men with scarves over their faces. He had warned the demonstrators that the demonstration was illegal and advised them to disperse. The women and children had tried to obey but the armed men had forced them to go on. He had given a second warning, but the armed men had continued to advance. Stones and sticks were then thrown at the gendarmes. The demonstrators had chanted many slogans, such as, “We want to enter the brigade building”. Mr Ersöz and some of his men in the front line had been wounded by flying stones. The armed demonstrators had taken advantage of this to try and seize the gendarmes’ weapons. Mr Ersöz had fired warning shots in the air, which had made the women and children disperse. He himself, his second lieutenant and his orderly had each fired about five shots. Consequently, between the three of them they would have fired about fifteen bullets, which the witness considered sufficient to make the demonstrators disperse. He and his men had then retreated to the side of the road. Ten seconds later they had come under very heavy fire from Kalashnikov-type automatic weapons fired by the armed men, who were also shooting with the weapons which they had stolen from the gendarmes. Mr Ersöz had used his radio to call up the Condor armoured vehicle as backup. The Condor had been standing about one kilometre away from his brigade building. When it reached his position it had managed to disperse the demonstrators without firing a shot. It had come from the gendarmes’ quarters and, in order to get to the brigade building, it must have gone past the post office, where the victim had been killed. However, Mr Ersöz did not know whether the Condor had opened fire on its way, but did remember that he had requested that the Condor be sent in exclusively as a deterrent and that the weapons mounted on the vehicle should not be used against the crowd. He knew the Condor crew but could not identify the person who had been driving the vehicle at the time. Mr Ersöz emphasised that PKK members provoked and built up this kind of incident, and threatened the local population to force them to participate in PKK-organised demonstrations. Refusing to take part could be fatal. There was a distance of 500 to 600 metres between the spot where the victim’s body was found and the place where he had taken up position with his men to defend his brigade’s building. They had been out of range of the place where the victim’s body was found and 100% of the spent cartridges found there had belonged to PKK members. Lastly, in relation to the investigation, Mr Ersöz said that he had made the necessary statements to the Diyarbakır National Security Court, the Principal Public Prosecutor and the lawyers. (h)   Nazım Ayhan (gendarmerie warrant-officer at the material time and driver of the Condor vehicle) 37.     Mr Ayhan stated that the commanding officer of İdil gendarmerie was Major Karatan. The second in command was a lieutenant and he w