CEDH · CASELAW;REPORTS;ENG — 23 octobre 1998

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CABRAL BARRETO       53   DISSENTING OPINION OF Mr L. LOUCAIDES JOINED BY MM S. TRECHSEL AND M.A. NOWICKI         54   APPENDIX I:   DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF APPLICATION 52   APPENDIX II:   SUMMARY OF THE SUSURLUK REPORT     63   I.   INTRODUCTION   1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a Turkish citizen resident in Şanlĸurfa and born in 1960.   He is represented before the Commission by Professors K. Boyle and F. Hampson, both teachers at the University of Essex.   3.   The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. A. Gündüz.   4.   The applicant alleges that his brother Kemal Kĸlĸç was killed by or with the connivance of State agents and that there was no effective investigation, redress or remedy for his complaints. He alleges that his brother was threatened and killed because he was a journalist. He invokes Articles 2, 3, 10, 13 and 14 of the Convention.   B.   The proceedings   5.   The application was introduced on 13 August 1993 and registered on 20 August 1993.   6.   On 11 October 1993, the Commission decided to communicate the application to the Turkish Government, who were invited to submit their observations on admissibility and merits before 4 November 1993.   7.   On 10 March 1994, the Government submitted their observations, after one extension in the time-limit. The applicant's observations in reply were submitted on 11 May 1994.   8.   On 9 January 1995, the Commission declared the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 19 January 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 which they might wish to put before Delegates.   10.   On 17 January 1995, the Government submitted supplementary information and on 22 May 1995, after two extensions in the time-limit for that purpose, observations on the merits.   11.   On 7 July 1995, the Commission examined the state of proceedings. It requested that the Government provide documents and information relating to the proceedings against Hüseyin Güney allegedly charged with the killing of the applicant's brother and that the applicant provide comments on the Government's submissions concerning the trial.   12.   By letter dated 11 September 1995, the applicant made submissions concerning the trial.   13.   By letter dated 2 October 1995, the Secretariat of the Commission reminded the Government that the documents and information requested had not been provided.   14. On 29 November 1995, the Government provided the indictment in the trial and information concerning the proceedings.   15.   On 2 December 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr. G. Jörundsson, B. Conforti and N. Bratza. It notified the parties by letter of 12 December 1995, proposing certain witnesses and requesting the Government to identify the public prosecutors involved in various proceedings. The Government were also requested to provide the contents of the investigation files, in particular, the ballistic reports.   16.   On 13 September 1995 and 6 November 1995, the Government submitted information identifying certain witnesses.   17.   By letter of 29 January 1996, the applicant's representatives made proposals as to witnesses.   18.   On 26 March 1996, the Government provided further documents.   19.   By letter dated 20 December 1996, the Secretariat repeated the request for the Government to identify a public prosecutor for the purposes of the taking of evidence.   20.   Evidence was heard by the delegation of the Commission in Ankara on 4-5 February 1997. Before the Delegates the Government were represented by Mr. S. Alpaslan and Mr. D. Tezcan, as co-Agents, assisted by Mr M. Özmen, Mr. F. Polat, Ms. M. Gülşen, Ms. N. Erdim, Mr. A. Kaya, Mr. A. Kurudal and Mr. O. Sever. The applicants were represented by Ms. F. Hampson, and Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and assisted by Ms. D. Deniz and Mr. M. Kaya, as interpreters. Further documentary material was submitted by the Government during the hearings. During the hearings, and later confirmed by letter of 19 February 1997, the Delegates requested the Government to provide certain documents and information concerning matters arising out of the hearings and providing explanations for the absence of certain witnesses.   21.   By letter dated 3 March 1997, the Government provided further information.   22.   On 1 March 1997, the Commission decided to take further oral evidence in the case and proposed recalling three witnesses.   23.   On 2 April 1997, the Government provided documents concerning the trial of Hüseyin Güney.   24.   Evidence was heard by the delegation of the Commission in Strasbourg on 4 July 1997. Before the Delegates, the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr S. Alpaslan, Ms. M. Gülşen, Mr. A. Kaya, Mr. D. Karaca and Dr. Mustafa Bağrĸaçĸk. The applicants were represented by Ms. F. Hampson and Ms. A. Reidy, counsel, assisted by Mr. M. Kaya as interpreter. Further documentary material was submitted by the Government during the hearings.   25.   On 10 July 1997, the Commission decided to invite the parties to present their written conclusions on the merits of the case, following transmission to the parties of the verbatim record. The time-limit was fixed at 4 December 1997, after the verbatim record was corrected and finalised on 17 October 1997.   26.   On 24 July 1997, the Government provided information concerning the non-attendance of Mr. Ziyaeddin Akbulut.   27.   On 3 December 1997, the applicant submitted his final observations. On 3 December 1997, the Government requested an extension in the time-limit for submission of observations, which was granted until 5 January 1998. No observations have been received from the Government.   28. On 11 February 1998 and 20 February 1998, the applicant submitted information and extracts from the Susurluk report issued by the Prime Minister's Office.   29.   By letter dated 23 April 1998, the Commission requested the   Government to produce the pages and annexes of the Susurluk report which had not been made public.   30.   By letter dated 5 June 1998, the Government declined to provide copies of the missing pages and annexes of the Susurluk report.   31.   By letter of 6 July 1998, the Commission renewed its request to view the missing pages and annexes of the Susurluk report, subject to any necessary precautions to avoid prejudicing any ongoing domestic enquiries.   32.   By letter dated 16 July 1998, the Government declined the Commission's request.   33.   On 20 October 1998, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   34.   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   35.   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           M.P. PELLONPÄÄ       E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           Mr   C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       M.A. NOWICKI       I. CABRAL BARRETO       N. BRATZA       I. BÉKÉS       D. ŠVÁBY       G. RESS       A. PERENIČ       C. BÎRSAN       P. LORENZEN       E. BIELIŪNAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV     36.   The text of this Report was adopted on 23 October 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.   37.   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.   38.   The Commission's decision on the admissibility of the application is attached hereto as Appendix I and a summary of the Susurluk report attached as Appendix II.   39.   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   40.   The facts of the case, particularly concerning events in or about 18 February 1993, are disputed by the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.   A.   The particular circumstances of the case     a. Facts as presented by the applicant   41.   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.   42.   The applicant's brother Kemal Kĸlĸç worked for the newspaper Özgür Gündem in Şanlĸurfa (also referred to as Urfa). He and other journalists, as well as newspaper distributors involved with that newspaper, had been threatened. On 23 December 1992, Kemal Kĸlĸç made a written request to the Governor, referring to attacks, beatings and arson and asking for protection for people working at the Şanlĸurfa offices, including himself.   43.   On 30 December 1992, the Governor rejected the request, without any investigation having been conducted into the alleged threats.   44.   On 5 January 1993, a newspaper shop burned down. Kemal Kĸlĸç issued a press release criticising the Governor for failing in his duty to protect and suggesting that the fire was caused by arson. On 18 January 1993, the police took Kemal Kĸlĸç briefly into custody on the basis of a complaint by the Governor about the criticisms made.   An investigation file was opened, which was closed on 5 March 1993 after Kemal Kĸlĸç's death.   45.   Kemal Kĸlĸç told his friends around this time that he was being followed in Urfa by undercover agents of the National Intelligence Agency (MİT). Villagers and shepherds from Külünçe where he lived also noticed a white Renault car in the vicinity of the village, while villagers working in Urfa noticed a white Renault arriving at the bus station at the same time as Kemal Kĸlĸç did. Shortly after Kemal Kĸlĸç was taken into custody on 18 January 1993, a white Renault came into the village at about midnight or 01.00 hours and people knocked on the door of the house where Kemal lived with his father, asking for Kemal to open it. They left when some wood started burning.   46.   On 18 February 1993, at about 17.30 hours, Kemal Kĸlĸç got on the bus which went from Urfa and passed Külünçe. Three cars overtook the bus on the road, one of which was a white Renault which turned up the untarmacked road to Külünçe, turned round and stopped with its engine stopped. Kemal Kĸlĸç was the only person to get off the bus at the Külünçe road. The watchman, Ahmet Fidan, at a bridge construction site nearby, saw two people get out of the white Renault to meet Kemal Kĸlĸç. He heard sounds of disagreement, a cry for help and two shots. The white Renault, in which there were four people, drove off towards Urfa. Fidan saw Kemal Kĸlĸç's body by the road and ran to the nearby petrol station to report the killing.   47.   At the scene of the killing, the gendarmes made no attempt to investigate until the arrival of the public prosecutor. Items such as the tape binding Kemal Kĸlĸç's mouth and the two cartridges found at the scene were handled without attention to preserve any fingerprint evidence. The investigation which followed did not include, inter alia, any fingerprint testing, testing of the piece of paper found at the scene or any follow up visit to the site during daylight hours. The killing was treated as an ordinary crime.   48.   The background to, and circumstances of the killing of Kemal Kĸlĸç, show that he was killed with the involvement or connivance of State agents, due to his involvement with Özgür Gündem, which was regarded by the authorities as a mouthpiece for the PKK.   49.   The applicant and his family were not informed of the subsequent arrest of the alleged Hizbollah suspect Hüseyin Güney and were not called to give evidence although the indictment included the killing of Kemal Kĸlĸç. The only evidence linking the suspect with killing was the ballistics evidence that the gun allegedly found in the vicinity of Güney at his arrest had been used in the killing of Kemal Kĸlĸç and other persons. There was no evidence, or attempt to gain evidence, that Güney who came from Batman had ever been to Urfa or was linked to the killing in any other way. Güney had denied any involvement.   b.   Facts as presented by the Government   50.   The Government have made no submissions on the merits or with regard to the taking of evidence. From their previous submissions, their case is the following.   51.   The Şanlĸurfa public prosecutor began the investigation into the killing of Kemal Kĸlĸç immediately. All necessary steps were taken in the investigation, including the collection of evidence. When a gun, found on Hüseyin Güney, a Hizbollah suspect, on his arrest in December 1993 in Diyarbakĸr, was subjected to ballistics examination, this revealed that the shells from the scene of Kemal Kĸlĸç's murder had been fired from the same gun. Güney was charged and is currently being tried in relation to this killing as well as others. Hizbollah was a separatist terrorist organisation which carried out violent attacks on the PKK as well as the State. They refer to the intense terrorist activity in the region at that time and the daily violent acts that were occurring.   B.   The evidence before the Commission     1)   Documentary evidence   52.   The parties submitted various documents to the Commission. The documents included domestic reports (eg. 1993 Parliamentary Commission report on "unknown perpetrator" killings and the Susurluk report) and external reports about Turkey (eg. Helsinki Watch "Free Expression in Turkey 1993: Killings, Convictions, Confiscations", August 1993, Vol. 5 Issue 17 and see also Amnesty International report "Turkey: walls of glass" November 1992, AI Index Eur 44/75/92), domestic case-law, statements from the applicant and other persons, and sketch maps.   53.   The Commission had particular regard to the following documents:     a) Statement by the applicant dated 1 March 1993 taken by Yusuf Karataş   54.   The applicant stated that his brother was killed because he was a journalist. He had received many death threats in regard to his work for the Özgür Gündem newspaper.   He was also on the Management Committee of the Urfa Human Rights Association. For two months before he was killed, he was constantly being followed. Ten days before, he was followed by a vehicle said to be exactly like the white Renault registration 63 EO 443 in which his killers escaped after the murder. His brother had said that the persons following him were from the police, from the National Intelligence Agency. Because of this, the applicant's brother had made an application to the Governor for protection on 23 December 1993 which was refused. The Özgür Gündem newspaper could no longer be distributed in Urfa due to the threats at that time. The Urfa sales representative of United Press Distribution had been threatened so that they would not distribute the newspaper.   Some newsagents had also been set on fire. His brother wrote a press statement calling on the Governor's office to carry out their duty. The Governor lodged a complaint in relation to this and the applicant's brother was detained at the police security headquarters on 18 January 1993.   55.   On 18 February 1993, his brother left the newspaper office at 17.00 hours to go home. He boarded the Akçakale bus at Kuyubaşĸ as usual at 17.30 hours and got off at the turn-off to Külünçe where he lived. Fifty metres up the village road, he was intercepted by persons waiting in ambush.   According to the only eye-witness, a building site watchman for Balaban construction, these persons argued with his brother for 15-20 minutes, and then taped up his mouth to kidnap him. They wanted to tie him up and apparently bit him on the left hand. When his brother resisted, they pulled his jacket over his head and shot him twice in the head, killing him.   56.   The applicant learned of the shooting from villagers and went to the scene of the incident. The gendarmes were there. According to what was said, his brother was shot between 18.00 and 18.20 hours. The prosecutor came to the scene at 20.20 hours. In the examination of the scene, two empty 9mm cartridges were found and the tape was taken from his brother's mouth, without any care taken with regard to fingerprints. His opinion was that no efforts were made to find traces of the killers at the scene. The rope with which the men had tried to bind his brother was also just placed in a bag. It was unclear what had happened to a piece of paper found by a non-commissioned officer at the scene.   57.   His brother had no enemies, nor his family. This was told to gendarmes who kept repeating the same and only question about whether they had enemies. The gendarmes called him and his father to the station five times. Gendarmes and security headquarters people came 5-6 times, the house was searched and his brother's private things looked through. It was as though they wanted to show the killing of his brother to be a common criminal incident. He did not believe that the killers would be caught with their efforts. Four other reporters for Özgür Gündem had been killed and one paralysed from injuries received in an attack. He made this application to ensure that the files would not be closed as a murder with unknown perpetrators and that the killers would be caught.     b) Documents relating to Kemal Kĸlĸç prior to his death     Undated transcription of a telephone conversation between Kemal Kĸlĸç and a newsagent at the Özgür Gündem office   58.   This recorded that a newsagent from Küçükoğlu Trade at Küçükoğlu market rang to inform the newspaper about a person who had made threats. He described the person and stated that he had received a telephone threat previously. He was wondering if it might be the police since they had come before and he had told them that he would sell whatever newspaper he liked. He sold Özgür Gündem.     Undated transcription of telephone conversations between Özgür Gündem journalist Bayram Balcĸ and the security headquarters   59.   Balcĸ informed the officer at the Intelligence Centre that a person had been going round the newsagents in Urfa for two days, saying that he was from the Security Directorate and that they should not sell Özgür Gündem or other named newspapers or they would be bombed. When asked to specify from whom the complaints came, Balcĸ said that all the newsagents in Urfa had been complaining to the newspaper. The security officer said that he would send round a patrol to the newspaper offices to find out further information.   60.   In a second call, Balcĸ informed another officer that journalists had been threatened. He was told to make a complaint at the nearest police station. When he said that a man was still going around threatening newsagents that morning and saying that he was from the Security Directorate, he was told that a patrol would be sent.   61.   In a third call, when a patrol had not yet arrived, Balcĸ was told that he should make an application in writing at the nearest police station and then a patrol would be sent out to look for the man. The officer did not consider that it was an emergency requiring immediate response.   62.   The document relates that persons went to the police station to make an application. A commissioner and an officer came to talk to them. Several days later, there was an arson attack on one of the newsagents who had been threatened.     Request to Şanlĸurfa governor dated 23 December 1992 signed by Kemal Kĸlĸç   63.   The press release stated that due to death threats directed at the United Press Distribution representative carrying out the distribution of Özgür Gündem, distribution of the newspaper was being carried out by workers of the newspaper in Şanlĸurfa under extremely unsafe conditions. The driver and the owner of the taxi used for the distribution were being threatened by unknown persons.   As was known, persons working for the newspaper had been killed and attacked and those involved in sale and distribution had been subject to arson and armed attacks and beatings.   64.   Reference was made to the fact that in many provinces in the south-east, like Diyarbakĸr, Batman, Van, and Mardin, where attacks and threats had been made on the newspaper, security officers were protecting the offices, workers and distributors. It was respectfully requested that measures be taken to assign the necessary security officers to guarantee the safety of people working for the Şanlĸurfa newspaper office, naming Bayram Balcĸ, Kemal Kĸlĸç and Nazĸm Babaoğlu, Ali Dadir (distributor) and Hasan Yaktaş (driver).     Reply of the Governor's office dated 30 December 1992   65.   The request for protection had been examined. No protection had been assigned to any distributors of newspapers anywhere in the province or districts nor had there been any question of attacks or threats on distributors anywhere in the area. The request was refused.     Press release dated 11 January 1993 signed by Kemal Kĸlĸç   66.   The press release stated that attacks aimed at newspaper distribution and sales in Urfa were continuing despite their persistent warnings to the authorities urging them to take measures. On 5 January 1993, there was an arson attack on the newsagent's stand belonging to Ahmet Divitçi, who was one of the persons repeatedly threatened by persons claiming to be the police because they were selling the Özgür Gündem newspaper. The Governor Ziyaeddin Akbulut had tried to conceal events by telling the Ministry of the Interior that no incidents were taking place and that the kiosk burned down due to a short circuit. He was thus supporting the actions of the hooligans threatening the newsagents. As a result of this irresponsible attitude, another newsagent's stand (no. 5) in the Akarbaşĸ district had been burned down the previous night. The main distributor in Ceylanpĸnar district, Aldülgaffar Ağar, had said that he would not continue to distribute Özgür Gündem since his safety could not be guaranteed. The Governor was condemned for not ensuring the free distribution of newspapers and he and the police authorities were called upon to fulfil their responsibilities.     Decision not to prosecute dated 5 March 1993   67.   The decision refers to an offence committed by Kemal Kĸlĸç on 11 January 1993 in respect of statements and insinuations broadcast in the form of a press release on the radio, which constituted an insult to the Governor. Since the accused   had died, the prosecution was discontinued.     c) Documents relating to the investigation into the killing of Kemal Kĸlĸç     Incident report dated 18 February 1993   68.   This report drawn up by the gendarmes, and signed, inter alia, by NCO Taner Seçkin and counter-signed by the muhtar of Külünçe village, states that on report by Ahmet Fidan, a watchman, that a murder had taken place at the entrance to Külünçe village at about 18.15 hours, a sufficient force was sent to the scene.   69.   The report describes the body as being situated on the untarmacked road 500 metres from the village, and 100 metres from the E-24 Şanlĸurfa-Akçakale road.   A systematic investigation at the incident location disclosed, inter alia, that the victim's mouth was covered with four pieces of packaging tape, each 15 cm long and that there was a rope, 1 metre long, 0.5 cm wide, round his neck. One 9 mm cartridge was found under the left cheek and another under the right hand. The empty cartridges were given to the public prosecutor at the scene. The muhtar identified the victim as Kemal Kĸlĸç.     Sketches dated 18 February 1993   70.   There is a sketch map drawn by NCO Seçkin indicating the location of the body and the distances relevant to the main road, village road and bridge construction. The shed of the watchman is indicated as being 50 metres from the body, on the righthand side of the village road about 10 metres from the main city road.   71.   There is sketch drawn by NCO Seçkin of the position of the body, together with positions of the rope, cartridges, tape.     Report of examination of the body dated 18 February 1993   72.   This document signed, inter alia, by the public prosecutor and a medical doctor, describes the location, position and state of the body found near Külünçe village. An external examination was carried out by the medical expert who concluded that due to the location and light the body should be removed to the state hospital for procedures to be carried out.     Autopsy report dated 19 February 1993   73.   The examination report, carried out by a medical doctor in the presence of the public prosecutor, states that there was a bullet entry in the right ear and another in the right temporal region, and two exit holes. There was an ecchymotic blow mark 1 cm long on the left eyebrow, a superficial graze on the left hand index finger and a semi-circular lesion on the outer left hand, like a bite mark. Five ecchymosis marks were found in the right lumbar region. The internal organs were examined. Cause of death was due to destruction of brain tissue and brain haemorrhage.   Either bullet would have been fatal. No bullet was found in the body. The entry holes indicated firing took place from the same range and distance. The victim's coat had holes likely to be bullet holes and the large bloodstains indicated that it might have been used to cover the head before the killing took place.     Statement of Ahmet Fidan dated 18 February 1993   74.   The statement, taken by NCO Seçkin, stated that the witness worked as a night guard at bridge works carried out by Balaban İnşaat construction company, in front of Külünçe village.   On the night of 18 February 1993, he started work on building a shed for use in his night duty. Around 18.20 hours a white saloon Renault car came from the Şanlĸurfa direction of the city road and entered the Külünçe village road. After doing a U-turn, it parked facing the main road and switched off its headlights.   About 15 minutes later, a man got off the Şanlĸurfa Cesur coach and headed towards Külünçe village. The witness, busy with his own work, heard arguments and talking and looked towards where they were coming from. However it was dark and he could not see anything. He then heard a cry "Help!" and two pistol shots. He crouched down in fear. After this, the car turned into the road and escaped towards Şanlĸurfa. The witness approached the incident location and using his torch saw the body of a dead man. There had been a fifteen minute gap between the passenger walking toward the village and the shots.   He did not see the victim, the perpetrators or the vehicle because of the darkness. He said he had nothing else to add.     Statement of Mehmet Şerbetiçen dated 19 February 1993   75.   The witness, whose statement was taken by NCO Seçkin, was the driver of the Şanlĸurfa Cesur coach. He recalled leaving the Kuyubaşĸ district at about 17.30 hours, with 7-8 passengers. He remembered that having travelled about 14 km on the Şanlĸurfa-Akçakale road, three cars overtook the coach, one of which was an old white Renault. The Renault turned into the Külünçe village road but he did not see if it stopped or went on to the village. He stopped the coach at the turning to Külünçe for a passenger to get off but did not see in which direction the passenger went.     Statement of İbrahim Şerbetiçen dated 19 February 1993   76.   The witness, whose statement was taken by NCO Seçkin, was the driver's assistant on the Şanlĸurfa Cesur coach. He did not see any cars overtaking the bus on 18 February 1993 after it left Kuyubaşĸ at 17.30 hours. A passenger got off at Külünçe turning and walked towards the village.     Statement of Mustafa Kĸlĸç dated February 1993   77.   The witness, whose statement was taken by NCO Seçkin, was the father of Kemal Kĸlĸç. He stated, inter alia, that his son had no enemies, being very calm and quiet. He did not know what his son might have been investigating before his death. He himself had no ill-dealings with anyone and did not know why anyone would kill his son.   He did not know what meetings his son attended or which party he was a member of.     Statement of Mahmut Kĸlĸç dated February 1993   78.   The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother had been working for Özgür Gündem for about a year and a half. As far as he knew, his brother had no problems with people at the paper, in the village or in Şanlĸurfa. He had recently been working on an article about infant deaths in Şanlĸurfa. If he was being followed or threatened, his brother would have told them. He never went outside provincial boundaries. He used to go frequently to the Human Rights Association and to HEP (People's Labour Party).     Statement of İbrahim Kĸlĸç dated 22 February 1993   79.   The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother had not told his father or any of his brothers that he had been followed or threatened or that he had argued with anyone. He did not know what meetings his brother attended or what party he sided with. He was quiet and calm and did not interfere.     Statement of Mehmet Cemil Kĸlĸç dated 22 February 1993   80.   The witness, whose statement was taken by NCO Seçkin, was the brother of Kemal Kĸlĸç. He stated, inter alia, that his brother would have definitely told his family if he had been followed or threatened. He was not aware of his membership in any party or what he was investigating before he died.     Statement of Ali Eren undated   81.   The witness, whose statement was taken by NCO Seçkin, was a teacher who used to travel on the Şanlĸurfa Cesur bus. He knew Kemal Kĸlĸç. On 18 February 1993, Kemal Kĸlĸç got on the bus at the Kuyubaşĸ district, not the coach station.   He did not notice if any cars overtook the bus before it stopped at Külünçe village. There was nothing extraordinary on the road or at the village junction.     Statement of Ömer Cavcan dated 19 February 1993   82.   The witness, an infantry sergeant whose statement was taken by NCO Seçkin, stated that he got on the Şanlĸurfa Cesur coach at 17.00 hours on 18 February 1993. Before the coach reached the Külünçe junction, he saw three cars overtake it. One of these cars was a white Renault but he did not remember in which direction it went.     Search report dated 26 February 1993   83.   This report, signed inter alia by Captain Cengiz Kargĸlĸ, relates that a search took place, under a search warrant, at the house in which Kemal Kĸlĸç lived, on 26 February 1993. It was carried out in the presence of Mehmet Kĸlĸç, the village muhtar and lasted from 16.00 to 16.50 hours. The stated purpose was to gather evidence to shed light on the murder of Kemal Kĸlĸç. It listed the books, papers, newspaper cuttings, a photograph and cassettes taken for examination.     Delivery report dated 26 February 1993   84.   The report lists the items returned to Kemal Kĸlĸç's father from the search. A photograph of three civilians with a rocket launcher and two Sony cassettes were kept for evidence and further use.     Investigation report 26 February 1993   85.   This report lists in detail the books, materials, cassettes found amongst Kemal Kĸlĸç's possessions during the search on this day, and sets out the transcript of conversations found on one of the tapes.     Letter dated 15 March 1993 from Captain Kargĸlĸ to the Şanlĸurfa chief public prosecutor's office   86.   The letter informs the public prosecutor of the search and encloses two tapes and a photograph of a person carrying a gun. It also refers to a scrap of paper found at the scene of the crime, which bore the letters U and Y and was stained with blood (1cm by 2cm) and stated that this paper, which press reports had stated had not been added to the enquiry documents, was preserved in acetate and submitted together with the documents. The investigation was continuing along many different avenues.     Decision to continue the investigation until expiry of statutory limitation period dated 12 August 1993   87.   This decision, signed by the Şanlĸurfa public prosecutor, states that it had not yet been possible to apprehend the perpetrator of the offence in which Kemal Kĸlĸç was killed nor to discover his identity. It was decided to continue the search for the unknown perpetrator until the expiry of the 20 year limitation period and for a copy of the decision to be sent to the Office for Public Order of the Police Headquarters.   88.   By letter dated 12 August 1993 to the Office for Public Order of Police Headquarters at Şanlĸurfa, enclosing the above decision, the public prosecutor requested that information about the investigation should be forwarded every three months.     Letter dated 10 December 1993 from Ministry of Justice (General directorate of international law and foreign relations) to Şanlĸurfa attorney general   89.   This letter outlined the allegations made by the applicant in his application to the European Commission of Human Rights and requested the file documents be sent together with comments on the allegations made.     Letter dated 21 December 1993 from Siverek chief public prosecutor's office to Şanlĸurfa chief public prosecutor's office   90.   In answer to an enquiry, it was stated that according to a letter of 21 December 1993 from the Road Traffic Registration and Control Authority of Siverek police headquarters no vehicle had been registered with the number 63 EO 443 and that, since in Turkey the letters O and Ö were not used for that purpose, a registration plate with that number could not have been issued.     Report dated 22 December 1993 by Şanlĸurfa public prosecutor   91.   In reply to the request for comments, the public prosecutor outlined the steps taken in the investigation. It was stated that all necessary steps were taken. The allegation about the deceased being followed by a white Renault was investigated but it was shown that the car with number plate 63 EO 443 did not exist since O and Ö were not used in number plates. Despite allegations to the contrary, the incident location was examined thoroughly and completely. There was however no piece of paper found at the scene as alleged by the applicant. Efforts to apprehend the perpetrator continued.     Letter dated 2 January 1994 from Diyarbakĸr regional criminal police laboratory to Şanlĸurfa Security Directorate   92.   Referring to a request of 11 March 1993, the laboratory returned two 9 mm cartridges and reported that these had been found to have been fired by a Ceska 9 mm semi-automatic pistol submitted for examination by the Diyarbakĸr police. A copy of the ballistics report (see 103 below) was enclosed.         Letter dated 21 January 1994 from the Şanlĸurfa Security Directorate to Şanlĸurfa provincial gendarme command   93.   The letter stated that suspect Hüseyin Güney had been apprehended by the Diyarbakĸr Directorate of Security with a 9mm Ceska pistol which had been found to have been used in the Kemal Kĸlĸç murder incident. The ballistics report and interrogation minutes of Hüseyin Güney were enclosed.     Letter dated 8 February 1994 from Captain Kargĸlĸ to the Şanlĸurfa public prosecutor   94.   The letter stated that the Diyarbakĸr Security Directorate had carried out operations against the Hizbollah organisation in December 1993. The accused Hüseyin Güney had been identified as the perpetrator of the Kemal Kĸlĸç murder incident. Reference was made to the ballistics match with a Ceska 9 mm pistol. The ballistics report and interrogation minutes of Hüseyin Güney were enclosed, as well as other file materials.     Decision of withdrawal of jurisdiction dated 16 February 1994 by the Şanlĸurfa public prosecutor's office   95.   The decision referred to the ballistics examination revealing that the Ceska pistol confiscated from the defendant Hüseyin Güney was used in the killing of Kemal Kĸlĸç and states that this proves that this defendant killed the victim. It was concluded that the incident fell within the jurisdiction of the State Security Court prosecution and the preliminary file was to be transferred to Diyarbakĸr.       d) Documents relating to the proceedings against Hüseyin Güney     Incident investigation, apprehension and confiscation report dated 24 December 1993   96.   An incident took place at the shop, Aydĸn Ticaret, Sağlĸkocağĸ Caddesi, Diyarbakĸr, on 24 December 1993. The shop was attacked by five armed individuals, first by a stone being thrown, then by shots being fired. An employee at the shop was wounded. The suspects were followed by police teams. A 9mm Czech pistol serial no. 100545 was located in front of the apartment block entrance to which the suspects had been followed. The gun contained live bullets, and was ready to be fired, with the hammer poised and a bullet in the barrel. At this stage, Hüseyin Güney, registered in Batman and resident in the same location, was seen trying to escape by running up the stairs and was apprehended in a breathless, perspiring state. It was understood that this individual had entered the apartment block and later returned to recover the pistol without wearing his coat (this sentence is obscurely constructed).   97.   Further suspects were apprehended during a security check and search of the building. This included a wounded suspect, Abdullah Gülcan, hiding behind the elevator cabin. Another gun was found nearby, wrapped up in a grey duffle coat.   98.   There are two hand drawn sketches, one showing the Aydĸn Ticaret shop, the positions of persons and the damage and another showing the immediate area, indicating the flight of the perpetrators of the attack along 64 Sokak ("64th Street"), and the locations where various weapons were found.     Identification record dated 24 December 1993   99.   This records that an identification parade was held in which Hüseyin Güney and nine other suspects (seven of whom were later included with Güney in the indictment of 3 February 1994) were lined up at the police station for witnesses of the attack at Aydĸn Ticaret to identify the attackers. The witnesses had stated that there were five persons who carried out the attack and that they could identify them if they saw them again. The owner of the shop identified two of the suspects (Abdullah Gülcan and Abdurrahman Çelik). An employee of the shop identified the same two persons. The owner tentatively identified a third person (Abdülselam Elhaman) but was not sure.     Record of site showing dated 5 January 1994   100.   This records that police officers took Abdullah Gülcan and Hüseyin Güney, who had stated that they had participated in the attack on Aydĸn Ticaret, to the location of the attack and asked them how they had carried it out. Gülcan stated that he had come to Diyarbakĸr from Batman at the request of Hasan, that he and others prepared for the attack, which began by Hasan throwing a grenade in the shop, following which the others opened fire with weapons. He was wounded as he ran away. Hüseyin Güney, codenamed Hakan, went with him up to the roof of the apartment block where they had been staying. Hüseyin went to get a taxi. Then the police arrived and arrested them. Hüseyin Güney stated that he agreed with the statement of Gülcan. He knew he had dropped the Ceska pistol as he entered the block of flats but did not know if it had been found or not.   101.   There is a hand drawn sketch map showing where Gülcan and Hüseyin and other codenamed members of the group stood during the attack and the direction of their flight down street "64 Sokak".     Expert report dated 26 December 1993 Diyarbakĸr Regional Criminal Police Laboratory   102.   The report refers to 14 swabs taken from the right hands of two suspects and from the right and left hands of six suspects, including Hüseyin Güney. These were tested by an atomic absorption spectroph