CEDH · CASELAW;REPORTS;ENG — 23 octobre 1998

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BARRETO               85   APPENDIX I:   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF APPLICATION         84   APPENDIX II:   SUMMARY OF THE SUSURLUK REPORT     94   APPENDIX III:   EXTRACTS FROM "THE SECRETS OF MAJOR CEM                         ERSEVER 98     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 Elazığ and born in 1958.   He is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both teachers at the University of Essex.   3   The application is directed against Turkey. The respondent Government were represented by their Agents, Mr. A. Gündüz and Mr. Ş. Alpaslan.   4   The applicant alleges that his brother Dr. Hasan Kaya was kidnapped, tortured and killed by or with the connivance of State agents and that there was no effective investigation, redress or remedy for his complaints. He invokes Articles 2, 3, 6, 13 and 14 of the Convention.   B.   The proceedings   5   The application was introduced on 20 August 1993 and registered on 26 August 1993.   6   On 29 November 1993, the Commission decided to communicate the application to the Turkish Government   7   On 10 March 1994, the Government submitted their observations, after two extensions in the time-limit and the applicant's observations in reply and further information were submitted on 5 and 7 July and 2 August 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 3 April 1995, the Government submitted supplementary information. On 22 May 1995, after two extensions in the time-limit for that purpose, the Government submitted their observations on the merits.   11   On 7 July 1995, the Commission examined the state of proceedings in the application and decided that it should proceed to take oral evidence. It invited the parties to propose any witnesses whom they wished to be heard.   12   On 5 September 1995, the Government identified the public prosecutors relevant to the domestic investigation.     13   On 8 September 1995, the Government provided documents from the investigation file.   14   By letter dated 7 September 1995, the applicant proposed certain witnesses.   15   On 8 December 1995, the Commission granted the applicant legal aid.   16   On 20 December 1996, the Secretariat of the Commission requested the Government to assist in locating five witnesses for the purposes of serving summonses.   17   By letter dated 14 January 1997, the Government stated that it would not assist the Commission to transmit summonses in respect of witnesses who were not public officials or who were not proposed by the Government.   18   By letter dated 17 January 1997, the Delegates of the Commission repeated their request for assistance in serving summonses on five witnesses.   19   On 20 January 1997, at Strasbourg, three Delegates, Mr. G. Jörundsson, Mr B. Conforti and Mr N. Bratza, heard oral evidence from the applicant and two of his witnesses. The Government were represented by their Agent, Mr. A. Gündüz, assisted by Mr. A. Akay, Mr. M. Özmen, Ms M. Gülşen, Ms. A. Emüler, Mr A. Kaya, Mr A. Kurudal and Mr O. Sever. The applicants were represented by Ms. Françoise Hampson as counsel, assisted by Ms A. Reidy, Mr M. Şakar, Mr O. Baydemir and Mr K. Yıldız.   20   By letter dated 28 January 1997, the Government stated that they would do their best to transmit the summons to one of the five witnesses identified by the Commission; that the Commission should transmit the summons to a journalist witness itself and that it was not possible to transmit summonses to the three other witnesses since they were not known to the administration and their addresses had not been provided.   21   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 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, in particular the recent documents in the investigation file dated after May 1995 and providing explanations for the absence of certain witnesses.   22   On 1 March 1997, the Commission decided to take further oral evidence in the case and proposed recalling four witnesses.     23   By letter dated 17 March 1997, the Government provided   information concerning witnesses who had not appeared.   24   By letter dated 28 May 1997, the Secretariat reminded the Government that they had not provided documents from the investigation file dating after May 1995.   25   By letter dated 3 June 1997, the Government declined to assist the Commission in serving summonses on two witnesses who were not public officers nor proposed by the Government.   26   By letter dated 9 June 1997, the Delegates drew the attention of the Government to Article 28 para. 1(a) of the Convention and repeated their request for assistance, drawing to the attention of the Government the fact that the two witnesses had given statements to a public prosecutor.   27   By letter dated 1 July 1997, the Government stated that the two witnesses would not be present at the hearing.   28   Evidence was heard by the delegation of the Commission in Strasbourg on 5 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 Bağrıaçık. The applicants were represented by Ms F. Hampson and Ms A. Reidy, counsel, assisted by Mr M. Kaya (interpreter).   29   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. By letters dated 16 July and 22 October 1997, the Commission reminded the Government that the investigation file documents from May 1995 had not been provided.   30   Following two extensions of the time-limit until 3 February 1998, the Government submitted their final observations on the merits on 16 February 1998. This included proposals of friendly settlement.   31   By letter dated 10 April 1998, which reached the Commission on 19 May 1998, the applicant submitted his final observations.   32   On 20 October 1998, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   33   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. An exchange of correspondence took place between 12 February 1998 and 29 July 1998. 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   34   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       F. MARTINEZ 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 E. BIELIŪNAS     E.A. ALKEMA M. VILA AMIGÓ Mrs   M. HION MM   R. NICOLINI A. ARABADJIEV   35   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.   36   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.   37   The Commission's decision on the admissibility of the application is attached hereto as Appendix I, the summary of the Susurluk Report   as Appendix II and extracts of Soner Yalçın's book, "The secrets of Major Cem Ersever", as Appendix III.   38   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   39   The facts of the case, particularly concerning events in or about 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   40   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.   41   The applicant's younger brother Dr. Hasan Kaya worked in south- east Turkey, including Şırnak and Elazığ, where he was killed. He was a member of the Human Rights Association (HRA) and long-time friend of Metin Can, a lawyer who was president of the Elazığ Human Rights Association (HRA). Both his brother and Metin Can as educated, professional, intellectual Kurds were under surveillance by the authorities. His brother was considered as an enemy of the State as it was believed that he treated wounded members of the PKK. For this he was targeted and killed by agents of the State. Both he and Metin Can had received specific threats prior to their deaths. While Hasan Kaya was in Şırnak, his friend, Halit Güngen, a journalist, was killed by the contra-guerillas and at the funeral, the head of Şırnak security told him that he would end up like his friend. He was also detained and threatened following his attempts to treat victims during the Nevroz celebrations which had been broken up by the firing of the security forces. In July 1992, in Elazığ, his door had been broken down by the police and his house searched. Metin Can, as well as being president of the HRA, was a lawyer who defended Kurdish political prisoners. He had applied for a passport to go to Germany to attend a human rights conference shortly before his death. The Elazığ HRA branch had been the subject of attacks and harassment from the security forces and was later closed by the State.   42   On the evening of 20 February 1993, Metin Can received a telephone call at home from two unknown persons who wished to meet him. He refused to see them due to the lateness of the hour and told them to come to his office. Two persons had already come looking for him during the day but did not know where his flat was. On 21 February 1993, he received another call from the two men. He arranged to meet them at a coffee house. Şerafettin Özcan, Secretary of the HRA, and a former client of Metin Can's were present during the meeting at the coffee house.   One of the men was blonde, did not speak good Turkish and claimed to be Syrian. He appears to be a person identified as İdris Ahmet. The other man, slightly taller with dark curly hair, fits the description of a person called Orhan or Erhan Öztürk.     43   After discussion, Metin Can and the darkhaired man went to Metin Can's house, where Metin Can phoned Hasan Kaya. Şerafettin Özcan and the blondhaired man came to the house later. Hasan Kaya was needed because the two men claimed that they had need of medical assistance for a wounded person. They did not want to bring the wounded person into town but stated that they could bring him to a house in Yazıkonak village, not far from Elazığ. The two men left the house. At about 19.00 hours, Metin Can received a call from the two men, saying that they were ready. Metin Can and Hasan Kaya left in the red Doğan car (no. 23 EC 219) belonging to the latter's brother. They did not return. 44   On 22 February 1993, at about noon, Fatma Can, Metin Can's wife, received a phone call. The caller said "I'm Vedat. We killed both of them, my condolences..." He appeared to be the blond man who had visited the house the previous day.   Fatma Can called the police immediately. She and Şerafettin Özcan, as well as Şenol, a colleague from the HRA, went to the public prosecutor to make a statement. Neither Fatma Can nor Şerafettin Özcan mentioned the encounter of Metin Can with the two men in the coffee shop since the authorities would be able publicly to conclude that this was the work of the PKK and any protection which the kidnapped men might have would be lost.   45   At about 18.00 hours that day, the red Doğan car driven by Metin Can and Hasan Kaya was found abandoned in front of Çağsan Marine Vehicles Ltd in Yazıkonak village.   46   On 23 February 1993, there was another phone call, from a person claiming to be Dr Savur Baran. The caller said that Can and Dr. Kaya were in their hands, that Can would be released but would not go abroad and would continue the struggle. On the same day, four calls were made to the house of Hasan Kaya, consisting of sounds of persons being tortured in the background and Kurdish music. The police were informed and a request made that the calls be traced. Ahmet Kaya, the father of the applicant and Hasan Kaya, submitted petitions to the Governor of Elazığ and to the police in Elazığ.   47   On the night of 23 February 1993, Fatma Can and Şerafettin Özcan went to Ankara to try to find out more information and bring pressure on the investigation. The same night a watchman on duty near the SHP (Social Democratic People's Party) building, İhsan Denizhan, found a bag with two pairs of shoes, which he reported to the security forces. On 24 February 1993, one of the pairs of shoes was identified as belonging to Metin Can.   48     On 26 February 1993, news was heard that two people had been killed at Tunceli Security Headquarters. This information was passed onto the police who said that it was groundless. On 27 February 1993, the bodies of Metin Can and Hasan Kaya were found under Dinar bridge, 15 kilometres from Tunceli. The bodies were found with their hands bound behind their back and a single bullet wound to the head. Hasan Kaya had bruising on his forehead above the right eyebrow and bruising under the fingernails of both hands. There were marks from the wire which had bound their hands and wrists; he also had grazes on his knees and ankles. His feet showed signs of long exposure to water or snow. Metin Can had been subjected to strangulation. He had bruising to his forehead, nose, right eyelid and temple which could have been caused by a blow from a blunt object.     49   The applicant submits that the killing of his brother was executed and planned by agents of the State, pointing in particular, to the operation of undercover teams of security forces, "contra-guerillas", who implement a policy of identifying and eliminating those persons who are considered to be a threat to the State. Knowledge of these contra-guerilla teams has always been widespread throughout Turkey, especially in the south-east, although often denied by State officials. The existence of "contra-guerillas" was confirmed in the revelations of the former state of emergency gendarme intelligence officer, Major Cem Ersever, who gave interviews to journalist Soner Yalçın and, shortly afterwards, was killed. According to Ersever, a police chief, known variously as Ahmet Demir, Mahmut Yıldırım and "Yeşil", was the chief contra-guerilla in the Diyarbakır region. Erhan Öztürk was part of this group, with İdris Ahmet and Mehmet Mehmetoğlu. Öztürk confessed later that Yeşil gave instructions for Can and Kaya to be taken and that he received his orders from the Minister of the Interior. İdris Ahmet and Mehmet Mehmetoğlu interrogated and tortured Can and Hasan Kaya. Öztürk executed them. When the applicant's father on 14 February 1994 gave information to the authorities about what they read in the newspapers about "Yeşil", including his address,   the state prosecutor told him that "this investigation is beyond our powers".   50   Further evidence concerning the contra-guerillas has since come to light in the Susurluk report, made public by the Prime Minister in January 1998. This report reveals that rightist gunmen, "confessors", contra-guerillas and undercover organisations, acting on the direction,   or with the knowledge of the security agencies (including the Special War Department), the security forces themselves, including the intelligence agencies (MİT - Military Intelligence - and JİTEM - gendarme intelligence organisation), the gendarmerie and the village guards, were implicated in planning or arranging for the deliberate killing of citizens of Kurdish origin, particularly in the south-east, as well as being responsible for other crimes and human rights abuses. On page 74, the report refers to Metin Can as being one of the victims of this practice of targeting and killing but also appears to condone the policy of elimination of prominent Kurds who were subversive or dissident. The report mentions, inter alia, Ahmet Demir and Mesut Mehmetoğlu as involved in various killings.   b.   Facts as presented by the Government   51   The Government state that the facts collected by the authorities clearly point to the fact that Hasan Kaya and Metin Can were called to a meeting point by unknown persons who most probably were recognised by the deceased. It may be deduced from the circumstances that the reason for their departure was to assist in treating a wounded or sick PKK member. The ballistic report conducted immediately after the incident pointed to the fact that the weapon used in the killing of Can and Kaya had been used in other terrorist incidents. Allegations that a person by the name of Yusuf Geyik at a beer house in Pertek claimed responsibility for the killings and was taken away by gendarmes were not clarified by the testimony given by witnesses. Nor is there any evidence that the two men were taken into custody by State officials or taken to Tunceli police headquarters. The Government dispute that the autopsy reports disclose any signs of torture. They also point out that unidentified killings were continuously carried out by the militants of the PKK terrorist organisation for the purpose of intimidation.   52   The preliminary investigation into the killings which began immediately after the bodies were found is still pending and will continue until the end of the statutory period, namely, twenty years.   53   The Government also refer to recent developments leading to progress in the investigation of killings by unidentified perpetrators.   They emphasise that official investigations are being carried out nationwide regardless of the status of the persons incriminated in the illegal acts and that they are struggling to clarify the deaths of each and every of its citizens.   B.   The evidence before the Commission   1)   Documentary evidence   54   The parties submitted various documents to the Commission. The documents included reports about Turkey (eg. report by the UN Special Rapporteur on Extrajudicial, summary or arbitrary executions dated 14 December 1994 E/CN.4/1995/61 and dated 23 December 1996 E/CN.4/1997/60/Add.1), domestic case-law, statements from the applicant and other persons, and documents from the pending domestic investigation.   55   The Commission had particular regard to the following documents:   a)   Statements by the applicant     Statement dated 17 April 1993 taken by Kerim Yıldız   56   The applicant's brother, Hasan Kaya, born in Elazığ in 1966, had been practising medicine in Şırnak from November 1990 to May 1992, where he had been threatened for treating demonstrators wounded during the Nevroz celebrations in 1992. In February 1992 while attending the funeral of Halit Güngen, a journalist who had been killed, he was threatened by the Şırnak chief of security that his end would be the same. For eight months before the incident, he was working in a health clinic in Elazığ. He was not a member of any political organisation but has a file in the Elazığ security headquarters labelling him as "undesirable". He had been friends with Metin Can for 10 years.   57   Metin Can, born in Tunceli in 1966, was a Kurd and director of the Elazığ Human Rights Association. He had been practising law in Elazığ for two years and had conducted the defence of Kurdish political prisoners in Elazığ prison. He had publicised the poor conditions and ill-treatment in the prison. One week before the incident, he had applied to Elazığ Security Headquarters for a passport in order to attend a human rights meeting in Germany.   About a month before the incident, he had been threatened by unknown persons. He was married with a child.     58   Events occurred as follows. On 21 February 1993, at 12.00 hours, while he was at home with his wife, Metin Can received a call from two persons who asked to meet him. They came to the house and asked for help with the treatment of an injured person. Can called Hasan Kaya and Şerafettin Özcan by telephone. Together, they talked to the two men. The two men left the house having arranged a meeting for later in the day at 19.00 hours. At 19.00 hours, Can and Kaya left the house to treat the wounded person. Fatma Can and Şerafettin Özcan waited in the house. Can and Kaya did not return.   59   On 22 February 1993, at about midday, Fatma Can received a phone call from an unknown person who said, "We have killed them both. Commiserations." Fatma Can called the police immediately.   At about 15.00 hours, the car that Kaya had used was found. The applicant's father, Ahmet Kaya, presented a petition to the Elazığ Governor requesting that the missing men be found.   60   On 23 February 1993, Fatma Can received another call at midday. The caller said, "They are both in our hands. Metin Can will not go to Europe." Fatma Can went to Ankara to meet with various authorities. On the same day, at about 15.00 hours, sounds of torture and music were played over the phone four times at half hourly intervals at the home of Hasan Kaya.   An application was made to Elazığ public prosecutor for the calls to be intercepted. In the evening, the shoes of Metin Can were found and handed over to the police.   61   On 24 February 1993, the applicant met the Elazığ Governor and requested that his brother be found. On 25 February 1993. Fatma Can met the Minister of the Interior, who told her that the missing persons would be found. On 26 February 1993, she met the Prime Minister.   62   On 26 February 1993, it was heard that two persons had died at Tunceli Security Headquarters. The information was passed onto the Elazığ police who said it was groundless. On 27 February 1993 at 13.00 hours, Can and Hasan Kaya were found dead under Dinar bridge, 15 kilometres from Tunceli and one kilometre from a gendarme station. Their hands were bound behind their backs with copper wire. The autopsy established that they had died on 26 February 1993 at about 22.00 hours. The applicant identified the body of his brother. His brother and Can had been subjected to torture.   63   The Governor ordered the funeral to take place on 28 February 1993, before the date intended by the families. The bodies were buried in a ceremony at which 6000 people attended within police cordons and under police harassment.   64   The authorities had given no explanation for the murder, which the Prime Minister said that they were unable to solve. The applicant considers that his brother was killed by the Turkish secret police. He refers, inter alia, to the following information: - Can and Kaya were seen on the evening of 21 February in Yazıkonak village by persons who did not wish their identities revealed. His brother and Can were forced, resisting, into another vehicle, by persons with walkie-talkies. - the vehicle stopped for petrol outside the village and one of the garage attendants who knew Can asked   him where he was going to which Can replied, "We're going somewhere with the officers." - the bodies were found in Tunceli, a neighbouring district. Other victims of murders, such as Vedat Aydın, a HEP leader, and Cemal Akar, an ÖZDEP leader, had also been kidnapped and their bodies found at some distance. Since the investigations are conducted not where the incident occurs but where the bodies are found, this serves to confuse and draw out the investigations.   - a uniformed policeman had stated in the presence of a lawyer, İsmail, and a judge at Hozat, that two persons had been killed in Tunceli Security Headquarters but no interest was shown by Elazığ police. - it is 140 km from Elazığ to Tunceli, with 8 police control points constantly in operation along the route the car carrying Can and Kaya must have travelled. - the Elazığ police showed no interest in the fate of Can and Kaya, who were held alive and interrogated for five days. When Can's shoes were found, they joked that his trousers would arrive the next day. When a strange call was received at Can's house on 25 February 1993, the police denied that they were able to record the calls, despite the request that had been made for the   interception of calls. - according to information passed on by a security officer who did not wish to reveal his name, the State used secret forces, known as contra-guerillas, including people from the army, police and civilians. This source allegedly said that intelligence was gathered on particular persons, that contra-guerillas trapped and kidnapped them, and that they were interrogated with torture and then executed by the civilians in the group. - some time after the murder, in a Pertek beerhouse, when a television programme was being shown in which the killing of Can and Kaya was being discussed and Erdal İnönü stated that there were no contra-guerillas, a man Yusuf Geyik, known as Bozo, said, "You're lying, we killed Metin and Hasan." At this some people reacted and jumped up. Geyik pulled out a pistol and called the Pertek district gendarme commander on his walkie talkie, giving him mobile team number and asking for urgent assistance. The district gendarme commander arrived a few minutes later and took Geyik away.   Statement dated 20 July 1994 addressed to the Commission   65   The applicant lists the complaints about the murder made to the authorities: on 18 March 1993 by his father Ahmet Kaya to Tunceli-Pertek State Prosecutor and to the Tunceli Chief State prosecutor; on 13 April 1993 by his father to the Tunceli Chief State prosecutor; in February 1994 by the journalist Soner   Yalçın to the Erzincan State Security Court; on 14 April 1994 to the Elazığ Chief State prosecutor by his father and by Anik Can.   66   The applicant states that information about the murder was brought to light by the media which commonly reported that it was committed with the knowledge and under the orders of the Government. He pointed out that although a year had passed from the murder no statements had been taken from his father, Soner Yalçın or other   relatives. A State prosecutor in Elazığ told his father that "this investigation is above our powers".   67   As regarded any denial by İsmail Keleş about a conversation overheard by him between a policeman and a prosecutor concerning two persons held in Tunceli, the applicant stated that this was because of fear.     b) Documents relating to the investigation into the killing of Hasan Kaya and Metin Can   Statement of Fatma Can dated 22 February 1993 taken by Elazığ public prosecutor Süleyman Tutal   68   The previous night, she had been home with her husband Metin Can and their friend Hasan Kaya. At 19.00 hours the telephone rang. Her husband said, "OK. We are coming." Her husband told her they would be back in two hours. They did not come back. That day, at about 13.00 hours, a person calling himself Vedat rang their house and said, "Accept my condolences. We killed Metin and his doctor friend." She wanted her husband to be found.   Statement of Fatma Can dated 14.30 hours 22 February 1993 taken by the police   69   She confirmed her statement to the public prosecutor. She wanted her husband to be found as soon as possible. If her husband was murdered, she wanted the perpetrators to be brought to justice.   Statement of Şerafettin Özcan dated 19.00 hours 22 February 1993 taken by the police   70   On 21 February 1993, he had gone with Hasan Kaya to his friend Metin Can's house. At about 19.00 hours, Metin Can received a phone call. Afterwards, he said to Hasan Kaya that they would go out together. Metin Can told him to stay and look after the children and that he would be back in a short while. They left in Mevlut Kaya's red Doğan car. They did not say where they were going and left in a calm manner. They did not return and he stayed the night. The next day at the office, at about 12.00 to 12.30 hours, Fatma Can rang, crying. When he went to her house, she said that someone had rung, saying that they had killed Metin Can and Hasan Kaya. He took Fatma Can to the public prosecutor's office.     Statement of Hakkı Özdemir dated 19.15 hours 22 February 1993 taken by the police   71   At about 11.30 hours that day on arrival at his office in Yazıkonak, he noticed a red Doğan car 23EC219 parked opposite. At 18.00 hours, when it had not been taken away, he became suspicious and told the muhtar to inform the authorities. The traffic police arrived soon afterwards. They searched the car. He had not seen anyone and did not know when it was left there.   Police minutes, sketch, report and delivery protocol dated 22 February 1993   72   The minutes describe the location of the red Doğan car reported as abandoned in Yazıkonak. It was locked. The police photographed the scene and had it towed to the Security Directorate for examination. The sketch shows the position of the car. The report indicates that no evidence was found in the car and a lack of fingerprints established. The delivery protocol states that the car owner and relatives were present when the car was examined at the Directorate.       Statement of Ahmet Oygen dated 22.30 hours 22 February 1993 taken by the police   73   Metin Can lived in the same apartment block on the third floor. At about 21.00-22.00 hours, two people rang his doorbell. They addressed him as brother Metin. He told them that Metin lived upstairs. They went upstairs and he heard them ring the bell. He did not know if the door was answered or when they left. He gave a description of the men and said that he would be able to recognise them again.   Statement dated 22 February 1993 of Süleyman Tursum taken by the police   74   About two to three days earlier, their doorbell rang. He was asked by two persons where Metin Can was. He told them that he did not know.   Police note dated 13.30 hours 23 February 1993   75   This recorded that at 13.30 hours Şerafettin Özcan had rung the police, informing them that someone claiming to be Dr Savur Baran called Metin Can's house saying that Metin Can was going to be released but would not go abroad and would continue the struggle. He had then hung up.   Petition dated 23 February 1993 of Ahmet Kaya to Elazığ Governor   76   The applicant's father referred to the disappearance of Hasan Kaya and requested that necessary enquiries be made and every possible step taken to find his son.   Statement of İhsan Denizhan dated 24.00 hours 23 February 1993 taken by the police   77   He was a night watchman at the Social Democratic People's Party ("SHP") building in Elazığ. At about 22.00 hours that day, he observed a bag lying horizontally inside the electric pylon 8 metres from the building. It was a shopping bag, containing two pairs of old shoes. He waited for a while, wondering if they would be picked up by customers at a nearby shoe repair shop. When no-one did, he picked the bag up. About then, a passer by said, "Those shoes look like my brother's" and tried to take them. He refused and reported to the station. Officials came and took the shoes.   Police minutes and sketch map dated 24 February 1993   78   Minutes record the handing over to the police of the bag and two pairs of shoes and describe the items. The sketch map indicates the location at which they were found.   Police minutes dated 12.30 hours 24 February 1993   79   Tekin Can, brother of Metin Can, identified one of the pairs of shoes found outside the SHP building as belonging to his brother. Hüseyin Kaya, brother of Hasan Kaya, stated that the second pair of shoes were not his brother's.       Discovery and autopsy report dated 27 February 1993, 16.25 hours   80   Following a telephone message at about 13.30 hours on 27 February 1993 to Tunceli central gendarme command that two male bodies had been found, Tunceli public prosecutor Hayati Erarslan, Dr İsmet Ünal and Dr. Cem Gören went to the location, 12 kilometres outside Tunceli on the road to Elazığ, under the bridge over the Dinar stream. The exact position of the bodies was described. Both men had been shot in the head and had their hands tied. Two cartridges were discovered. The bodies were taken to Tunceli State Hospital morgue for examination. One body was identified as Hasan Kaya by the applicant. There was a bullet entry hole at the back of the head and an exit hole in front of the right ear. The left hand side of the face and mouth was subsided and the facial construction disfigured. A total absence of any trace of violence or blow was observed. Cause of death was cerebral haemorrhage due to firearm wound.   81   Hüseyin Can identified the second body as Metin Can. His face was collapsed on the right hand side. The nose was haemorrhaging.   His lip had a three cm long, two cm wide wound, some teeth were missing and his ears were filled with dried blood. There were ecchymoses all round the neck,   on both knees and in various places on the torso and abdomen. Maceration was completely developed in the victim's feet. A total absence of any trace of violence or blow was observed. The doctors added to the public prosecutor's findings that the ecchymosis on the right eyebrow might have been caused by a blow.   82   Death was estimated as occurring within the last 14-16 hours.   Additional autopsy report dated 28 February 1993, 1.05 hours   83   The report states that during the first autopsy the bullet projectiles were not taken out and considering the evidential value a second autopsy was decided upon.   84   The applicant identified the body of his brother, Hasan Kaya. The bullet entry and exit holes were described. The right ear and adjacent area were marked with ecchymoses which could be explained by pressure on the body. There were ecchymoses around the nailbases on the upper side of the left hand; circular marks round both wrists, which might have been caused by the hands being bound by wire; a 1 x O.5 cm ecchymosis on the right knee, 2 x 1 cm light yellow ecchymosis on the inner lower frontal region of the right knee; O.7 cm wide ecchymosis on the left ankle outer upper region and 1 cm below that O.5 cm wide epidermal scratches; cyanosis in toe bases on both feet and athlete's foot on both feet, especially in soles and left regions, which was probably caused by remaining in water and snow for lengthy periods. The torso of the body was free from any blow, wound, burn, firearm injury save those noted above. Cause of death was brain damage and haemorrhage of the brain tissues due to the bullet wound. A classical autopsy was not necessary.     85.   Hüseyin Can identified the body of his nephew Metin Can. The bullet entry and exit holes in the head were described.   There were areas of red ecchymosis, 1.5 x 1-2 cm, on the right hand side above the right eyebrow; a 3 x 2 cm red ecchymotic scratch beneath the right eye; a red 3 x 2 cm ecchymotic scratch between the right eye and ear; a haemorrhage in the right eye; a peri-orbital purple ecchymosis round the left eye; a 3 cm superficial scratch on the nasal bone; red coloured ecchymosis in the right ear; blood was observed in the inferior nasal cochna; on the neck thyroid region, a 8 x 1cm perpendicular ecchymosis; a 3 cm long ecchymosis on the left lower jawbone, with a 2 cm ecchymosis beneath; palpation and fragmentation of the lower jawbone; a 1.5 cm tear and ecchymosis on right lip; lower right 3rd and 4th and upper right 3rd, 4th and 6th teeth were missing; a 4 cm cut and ecchymosis on the outer right edge of the tongue; a hole in the upper palate right hand side, large enough to insert the middle finger; superficial scratches, with O.5 cm ecchymosis surrounding them, on medial inter-falangial joints of 3rd, 4th and 5th fingers, with a lesion on the right 3rd proximal joint; cyanosis on the nailbases of both hands; marks on wrists indicative of being bound; a 3 cm purple ecchymosis on 7th and 8th ribs right hand side; a 7 x 6 cm ecchymosis on the lower inner right knee; an ecchymosis 3 cm in diameter on the left kneecap; cyanosis on both feet and toes (document text illegible at this point). The bruises and scratches on the forehead, nose and under the right eye were thought to have been caused by blunt instruments (eg. stone, stick etc) and the lesions on the neck by string, rope or cable. This might have occurred immediately before the death and from application of force for short periods. These wounds would not have caused death. Death resulted from brain damage and brain haemorrhage.   86.   Death was estimated as occurring within the last 24 hours.   Gendarme reports on the scene of the crime   87.   By letter dated 1 March 1993, the central provincial gendarme commander sent to the Tunceli public prosecutor an incident report dated 27 February 1993 in which the location and position of the bodies and two cartridges were described and also a sketch map of the scene drawn up on 27 February 1993. The report stated that the gendarmes had received a report that two bodies had been found at about 11.45 hours.   Request dated 2 March 1993 for ballistics examination   88.   The request addressed by Tunceli public prosecutor to the Diyarbakır regional police forensic   laboratory concerned examination of the two cartridges found at the scene.   Statement dated 8 March 1993 of Fatma Can taken by Elazığ public prosecutor Süleyman Tutal   89.   On 20 February 1993, she and her husband came home between 22.30-23.00 hours. At about 24.00 hours, the phone rang. Her husband answered. As far as she could gather, the caller was reluctant to give his name, Metin got angry and hung up. He told her that some unknown people had come round to the house earlier looking for them while they were out. They wanted to come to the house now. He told them to see him in his office and refused when they asked him to come out. Metin did not recognise their voices.     90.   On 21 February 1993, Hasan Kaya, a very close friend of her husband was at the house, as well as Şerafettin Özcan and her husband. They came and went a few times. At 19.00 hours when they were all in the house, the phone rang. She heard Metin say, "We are coming." It was a short conversation. They prepared to go out. Şerafettin offered to go with them but she told him to stay and help her with the children. Metin and Hasan left saying that they would come back in a few hours. They did not come back. At about 13.00 hours the next day, some-one rang, saying "I am Vedat. Accept my condolences. We killed them both." She screamed and dropped the phone. She went to file a complaint.   91.   On 23 February 1993, when she was not at home, Metin's nephew answered a call. The caller, who said that he was Doctor Mehmet or Doctor Savur Baran, said, "Both of them are alive. We will not let the doctor go. We will release Metin. He will not go to Europe. He will continue the struggle." Metin was President of the Human Rights Association and had been invited to Germany. He had said that the police had raided the Association and were going to close it down. She had kept asking him to resign and he said he would. She did not know who he might see in Yazıkonak about Association matters. She did not hear that he was being threatened though he said that since he became President, the police followed him.   Once when she came back to the house, she smelled perfume and thought that a stranger had entered the house. She was suspicious that the house might have been bugged.   Statement dated 9 March 1993 of Ahmet Kaya to Elazığ public prosecutor Süleyman Tutal   92.   Ahmet Kaya had not himself received threatening calls after the disappearance. He had gone himself to investigate at Yazıkonak where the car had been found. T