CEDH · CASELAW;REPORTS;ENG — 29 octobre 1998

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s6A5D7EE7 { width:29.33pt; display:inline-block } .sFD1C8E96 { width:16.01pt; display:inline-block } .s70DF58E9 { width:3.3pt; display:inline-block } .sA047E36C { width:24.66pt; display:inline-block } .s893D1BA2 { width:9.98pt; display:inline-block } .s4D28B2E2 { width:24pt; display:inline-block } .s2D8A4020 { width:32.63pt; display:inline-block } .s6863D229 { width:26pt; display:inline-block } .sE32B62BB { width:25.96pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .s6F7073C7 { width:15.95pt; display:inline-block } .s38A5FCD7 { width:19.28pt; display:inline-block } .s5BA4079A { width:22.66pt; display:inline-block } .s636F3465 { width:13.3pt; display:inline-block } .sEB86F1CA { width:25.34pt; display:inline-block } .s7B92CF83 { width:23.33pt; display:inline-block } .s275C5FB8 { width:26.67pt; display:inline-block } .s2E9F4572 { width:22.62pt; display:inline-block } .s4E78A3E7 { width:1.31pt; display:inline-block } .s498DF152 { width:9.33pt; display:inline-block } .sC0E0C70 { width:35.96pt; display:inline-block } .s6E29ECFF { width:27.3pt; display:inline-block } .s2074421C { width:31.96pt; display:inline-block } .s8CC42A4A { width:23.97pt; display:inline-block } .sECFD4873 { width:2.65pt; display:inline-block } .s2E50B6C1 { width:27.96pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s8AFB426F { width:32.67pt; display:inline-block } .sB11B45BD { width:19.32pt; display:inline-block } .s4B5E05E0 { width:12.65pt; display:inline-block } .s3D66DD5D { width:15.98pt; display:inline-block } .sC82ACC0A { width:20.67pt; display:inline-block } .s2A75809F { width:2.67pt; display:inline-block } .sEA7DAF3 { width:30.64pt; display:inline-block } .sBF11BE31 { width:22.68pt; display:inline-block } .s17A98FAE { width:27.33pt; display:inline-block } .sFAEFE316 { width:32pt; display:inline-block } .s76EAD327 { width:12.64pt; display:inline-block } .s97AF86F8 { width:9.31pt; display:inline-block } .s64B1589E { width:19.33pt; display:inline-block } .sCD4D2F1A { width:24.67pt; display:inline-block } .sE4B66E67 { width:21.73pt; display:inline-block } .s544CEFDC { width:22.51pt; display:inline-block } .s71794E85 { width:20pt; display:inline-block } .sA55BC2D2 { width:8.62pt; display:inline-block } .sB35F0F21 { width:25.29pt; display:inline-block } .sFE846327 { width:27.29pt; display:inline-block }                         EUROPEAN COMMISSION OF HUMAN RIGHTS                                 Application No. 23531/94       Mehmet TİMURTAŞ         against       Turkey         REPORT OF THE COMMISSION     (adopted on 29 October 1998)       TABLE OF CONTENTS                                Page   I.   INTRODUCTION     (paras. 1-38)                   1     A.   The application     (paras. 2-4)                 1     B.   The proceedings     (paras. 5-33)                 1     C.   The present Report     (paras. 34-38)               5   II.   ESTABLISHMENT OF THE FACTS   (paras. 39-209)                 7     A.   The particular circumstances of the case     (paras. 40-63)               7     B.   The evidence before the Commission     (paras. 64-197)               11       1.   Documentary evidence       (paras. 64-126)             11       2.   Oral evidence       (paras. 127-197)               22     C.   Relevant domestic law     (paras. 198-206)               33     D.   Relevant international material     (paras. 207-209)               35   III.   OPINION OF THE COMMISSION   (paras. 210-342)                 36     A.   Complaints declared admissible     (paras. 210-211)               36     B.   Points at issue     (para. 212)                 36     C.   The evaluation of the evidence     (paras. 213-269)               37     D.   As regards the disappearance of the applicant's son     (paras. 270-301)               48       1.   As regards Article 2 of the Convention       (paras. 271-283)             48       2.   As regards Article 3 of the Convention       (paras. 284-288)             51       3.   As regards Article 5 of the Convention       (paras. 289-301)             51       CONCLUSIONS     (paras. 302-304)               54     E.   As regards violation alleged by the applicant on his own behalf under Article 3 of the Convention     (paras. 305-309)               54       CONCLUSION     (para. 310)                 55     F.   As regards Article 13 of the Convention     (paras. 311-319)               55       CONCLUSION     (para. 320)                 56     G.   As regards Article 14 in conjunction with Articles 2, 3 and 5 of the Convention     (paras. 321-324)               57       CONCLUSION     (para. 325)                 57     H.   As regards Article 18 of the Convention     (paras. 326-329)               57       CONCLUSION     (para. 330)                 58     I.   As regards Article 25 of the Convention     (paras. 331-333)               58       CONCLUSION     (para. 334)                 58     J.   Recapitulation     (paras. 335-342)               58     PARTLY DISSENTING OPINION OF MR S. TRECHSEL       60     APPENDIX I:   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION       61   APPENDIX IIa:   POST-OPERATION REPORT SUBMITTED BY APPLICANT 71   APPENDIX IIb:   TRANSLATION OF APPENDIX Iia       72   APPENDIX IIIa:   BLANK POST-OPERATION REPORT FORM SUBMITTED       BY GOVERNMENT             73   APPENDIX IIIb:   TRANSLATION OF APPENDIX IIIa       74       I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a Turkish citizen, born in 1928 and resident in İstanbul.   He was represented before the Commission by Mr K. Boyle and Ms. F. Hampson, both university teachers at the University of Essex, England. The applicant states that he brings the application also on behalf of his son, Abdulvahap Timurtaş, born in 1962.   3.   The application is directed against Turkey. The respondent Government were represented by their Agents, Mr Ş. Alpaslan and Mr D. Teczan.   4.   The applicant complains that his son Abdulvahap Timurtaş has been taken into custody by the security forces and has "disappeared". He invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. He also complains of an interference with his right to individual petition contrary to Article 25 para. 1 in fine of the Convention.   B.   The proceedings   5.   The application was introduced on 9 February 1994 and registered on 24 February 1994.   6.   On 9 May 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. The parties were informed of the Commission's decision by letter of 20 May 1994.   7.   The Government submitted preliminary observations on 11 October 1994 in which they requested the Commission to adjourn the examination of the application pending the investigation into the applicant's allegations at the domestic level. Having obtained the applicant's opinion on the matter, the Commission decided on 14 January 1995 not to accede to the request of the Government. The Government were invited to submit any further observations they might wish to submit.   8.   The Government's observations were submitted on 16 March 1995, after the expiry of the time-limit set for that purpose. The applicant replied on 22 May 1995.   9.   On 11 September 1995 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 14 September 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates. Neither party availed itself of this possibility.     11.   On 20 January 1996 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr N. Bratza, Mr G. Ress and Mr P. Lorenzen. It notified the parties by letter of 25 January 1996, proposing certain witnesses and requesting the Government to provide a copy of the documents contained in the investigation file. The Government were further requested to identify by name the commanders of the security forces allegedly involved and a public prosecutor, whereas the applicant was requested to identify a village muhtar and the latter's son who had allegedly been taken into custody at the same time as the applicant's son, and to submit the addresses of these witnesses and of the applicant.   12.   By letter of 7 March 1996 the applicant's representatives informed the Commission that they were not yet in a position to submit the requested information.   13.   On 2 April 1996 the Commission reminded the Government of the outstanding requests for information and documentation.   14.   By letter of 17 April 1996 the Government provided the names of the security force commanders and the public prosecutor.   15.   On 18 June 1996 the Commission urgently requested the Government to provide copies of the investigation file, and the applicant to submit the names of the village muhtar and his son, their address as well as the address of the applicant.      16.   On 28 July 1996 the Government informed the Commission of two decisions which had been taken in the investigation into the applicant's allegations at the domestic level. They submitted a copy of a decision not to prosecute dated 3 June 1996.   17.   On 1 August 1996 the Commission requested the Government to submit a copy of the other decision mentioned in their letter of 28 July 1996. In addition, the Government were requested on 12 August 1996 to submit copies of all documents to which reference was made in the decision not to prosecute.   18.   On 5 September 1996 the Commission reminded the applicant's representatives of the outstanding request for information.   19.   By letter of 12 September 1996 the Government submitted the contents of the investigation file, followed, on 20 September 1996, by a number of statements taken from villagers. From the documents submitted, the names of the muhtar and his son became apparent.   20.   On 23 September 1996 the applicant's representatives informed the Commission that they were not yet in possession of the required information.   21.   Evidence was heard by the Delegates of the Commission in Ankara on 21 and 23 November 1996 from the applicant, Bahattin Aktuğ (mayor of Güçlükonak district, Şĸrnak province), Azmi Gündoğan (commander of Silopi district gendarmerie, Şĸrnak province, until 4 August 1993), Erol Tuna (commander of Şĸrnak provincial centre gendarmerie headquarters between 1992 and 31 July 1994), Hüsam Durmuş (commander of Silopi district gendarmerie from 17 July 1993 until 1995), and Sedat Erbaş (public prosecutor at Silopi). Before the Delegates the Government were represented by Mr Ş. Alpaslan and Mr D. Teczan, Agents, assisted by Ms. M. Gülsen, Mr A. Kurudal, Mr N. Erdim and Mr A. Kaya. The applicant was represented by Ms. F. Hampson, counsel, assisted by Ms. A. Reidy, Mr O. Baydemir, Ms. D. Deniz (interpreter) and Mr M. Kaya (interpreter). Further documentary material was submitted by the parties during the hearing.   22.   On 30 November 1996 the Commission examined the state of proceedings of the application. It decided that the parties should be asked a number of questions relating to a document which had been presented by the applicant's representatives at the hearing and which was said to be a photocopy of a post-operation report dated 15 August 1993. Furthermore, the Commission decided to hear evidence from two persons, Sadĸk Erdoğan and Nimet Nas, who had not appeared at the hearing in Ankara. In the subsequent letter of 6 December 1996, the Delegates' requests for certain information and documentation to be submitted by the Government were also confirmed in writing. The information requested included an explanation for the failure of two witnesses to appear before the Delegates and the relevant entries in the custody records of Diyarbakĸr E-type prison concerning Sadĸk Erdoğan and Nimet Nas.   23.   By letter of 31 January 1997 the applicant's representatives informed the Commission that should it prove necessary, the person who had obtained the photocopied document was willing to give evidence before the Delegates subject to certain conditions.   24.   On 26 May 1997 the Government were reminded of the outstanding request for information and documentation of 6 December 1996.   25.   On 15 July 1997 the Government submitted some of the information and documents requested, including an explanation for the absence of one witness from the hearing in Ankara and information relating to the photocopied document.   26.   On 29 August 1997 the Commission reminded the Government of the documents and information which had not yet been submitted.   27.   By letter of 7 October 1997 the Government provided an explanation for the absence of a witness from the hearing in Ankara, and some further information relating to the reference number indicated on the photocopied document. They also announced that further information would be submitted. The latter information was produced on 22 October 1997 but did not include the entries in the records of Diyarbakĸr E-type prison for Sadĸk Erdoğan and Nimet Nas.   28.   On 31 October 1997 the parties were requested to inform the Commission before 28 November 1997 whether they wished to maintain the hearing of the witnesses Sadĸk Erdoğan and Nimet Nas. The applicant informed the Commission on 3 December 1997 that he had no objection to these witnesses being heard, but that he was not in a position to confirm whether or not they could be contacted or were willing to give evidence. Having received no reply from the Government prior to the expiry of the time-limit set for that purpose, the Commission, on 6 December 1997, decided not to maintain the hearing of these witnesses. It also decided that the parties should be invited to present their written conclusions on the merits of the case before 3 February 1998.   29.   In reply to the Commission's letter dated 9 December 1997, in which they were informed of the Commission's decision relating to the witnesses Sadĸk Erdoğan and Nimet Nas, the Government informed the Commission on 17 December 1997 that the witnesses concerned wished to give evidence and that the Government considered that their testimony might be of relevance for the establishment of the facts.   30.   On 17 January 1998 the Commission decided not to reverse its decision of 6 December 1997.   31.   On 11 February 1998 the applicant submitted his final observations on the merits, after two extensions of the time-limit fixed for that purpose.   32.   No final observations were received from the Government.   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. 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           MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. MARXER       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   35.   The text of this Report was adopted on 29 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 annexed hereto.   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, in particular those which relate to the events on 14 August 1993, are in dispute between the parties. For this reason, pursuant to Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has examined written material, as well as oral testimony presented before the Delegates. The Commission first presents a brief outline of the events, as submitted by the parties, and then a summary of the evidence adduced in this case.   A.   The particular circumstances of the case   1.   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 briefly here.   41.   On 14 August 1993 the applicant received a telephone call from someone who did not identify himself. The caller said that the applicant's son Abdulvahap had been taken into custody near the village of Yeniköy, in Silopi district, Şĸrnak province, by soldiers attached to Silopi central gendarmerie headquarters. Abdulvahap had been arrested together with a friend, who was said to be Syrian, as well as with the muhtar and his son in front of all the villagers. The muhtar was released soon afterwards. The applicant later heard that Abdulvahap and his friend had been taken round a number of villages to see if the villagers recognised them. Moreover, within a week of Abdulvahap being apprehended, the muhtars from the surrounding villages were called to Silopi gendarmerie headquarters to see if they recognised the two men.   42.   The applicant made various attempts to obtain news of his son's fate. He submitted petitions to the Silopi prosecutor's office which initially were not registered. At the Silopi gendarmerie headquarters he was told that his son was not detained. When he took a photograph of Abdulvahap to the gendarmerie headquarters the gendarmes said that they did not recognise Abdulvahap and suggested that the applicant should look for his son in the mountains. At some stage, the applicant was told by a gendarme that two people had been detained but that that had not been on 14 August 1993.   43.   The applicant also telephoned a relative, Bahattin Aktuğ, who was the mayor of Güçlükonak district. Aktuğ rang him back and said that he had spoken to Sadĸk Erdoğan and Nimet Nas, two 'confessors' (persons who co-operate with the authorities after confessing to having been involved with the PKK) from his village who were at that time in Şĸrnak. They had told Aktuğ that Abdulvahap was being detained in Şĸrnak, that they were doing what they could to look after him and that Abdulvahap was refusing to make a statement.   44.   After about forty-five days the applicant went to Güçlükonak to see Bahattin Aktuğ. Whilst there, he also met with Erdoğan and Nas who had been given twenty days' leave from Şĸrnak and who could not return to Şĸrnak on account of the conditions in the area. When they had left Şĸrnak, Abdulvahap had been alive. Erdoğan and Nas told the applicant that they had been with Abdulvahap for quite some time and that they had also seen the Syrian. Bahattin Aktuğ spoke to a gendarmerie captain at Güçlükonak who rang Şĸrnak for information but was told that Aktuğ should stop asking questions about Abdulvahap. The same message was given when a major whom Aktuğ knew in Iğdĸr rang Şĸrnak. These developments worried and bewildered Bahattin Aktuğ.   45.   The applicant again went to the Silopi prosecutor's office and named Erdoğan and Nas as his witnesses. At that point, his statement was taken. The applicant also went repeatedly to Şĸrnak where he was told on one occasion that his son had been caught "in Germik village of Karabaş between those two villages".   46.   In the spring of 1995 the applicant saw Erdoğan again. Erdoğan told him that he had gone to court where he had said that he had seen Abdulvahap in Şĸrnak. Upon this his interrogator had got very angry and Erdoğan had become scared. For that reason he had said at the second occasion that he was asked about Abdulvahap that he had seen a man who looked similar but that he did not know whether it had been Abdulvahap.   2.   Facts as presented by the Government   47.   In their observations on the admissibility and merits of the application the Government submitted that it had appeared from the investigation initiated by the Silopi public prosecutor on 15 October 1993 that the applicant's son had not been apprehended or detained.   3.   Proceedings before the domestic authorities   48.   On 15 October 1993 the applicant submitted a petition to a Silopi public prosecutor (see para. 91). On the same date the prosecutor sent the petition to both the Silopi district gendarmerie headquarters and the police headquarters with a cover letter requesting examination of the matter.   49.   By letter dated 20 October 1993, with reference number 0623-1302-93/7502, Hüsam Durmuş, commander of Silopi district gendarmerie headquarters, informed the Silopi public prosecutor that Abdulvahap Timurtaş had not been detained by his headquarters and that Abdulvahap's name did not appear in their records.   50.   On 21 October 1993 a Silopi prosecutor took a statement from the applicant (see para. 66). On that same date letters were sent to the Silopi district gendarmerie headquarters with a request to secure the presence at the prosecutor's office of the muhtars of Yeniköy and Esenli in order for their statement to be taken, and to the office of the public prosecutor in Şĸrnak for a statement to be taken from Nimet Nas and Sadĸk Erdoğan, who were said to be in detention either at the Şĸrnak police headquarters or the provincial gendarmerie headquarters, the applicant having named these persons as witnesses.   51.   The prosecutor's office at Şĸrnak was informed by the Şĸrnak provincial gendarmerie headquarters on 29 December 1993 that they had been unable to comply with the request to summon Sadĸk Erdoğan and Nimet Nas since "confessor suspect" Erdoğan was being held in detention in Diyarbakĸr E-type prison and Nas was participating in operations in Güçlükonak.   52.   By letter dated 25 January 1994 Hüsam Durmuş, commander of Silopi district gendarmerie headquarters, informed the Silopi public prosecutor that the presence of the muhtar of Esenli village had been secured as requested. On 26 January 1994 İsmail Birlik and Kamil Bilgeç, muhtars of, respectively, Esenli and Yeniköy, made a statement to Silopi prosecutor Ahmet Yavuz (see paras. 78, 80).   53.   On 10 March 1994 Silopi prosecutor Yavuz wrote to the prosecutor's office in Cizre requesting them to ensure that the applicant would go to the prosecutor's office in Silopi. This request was passed on to the Cizre police headquarters, which replied on 28 March 1994 that the applicant and his family had left Cizre and that their present whereabouts were unknown. This reply was transmitted from the Cizre prosecutor's office to the office in Silopi on the same day.   54.   On 10 August 1994 the Silopi prosecutor Sedat Erbaş again requested the public prosecutor at Cizre to ensure the applicant's appearance at his office in Silopi. On the same date Erbaş also requested the public prosecutor at Güçlükonak to ask Bahattin Aktuğ whether the latter personally knew Abdulvahap Timurtaş and whether he had been approached by the applicant and had discussed the fate of the applicant's son. Erbaş further wrote to the prosecutors of Diyarbakĸr and Güçlükonak concerning Erdoğan and Nas respectively, who were to be asked whether they had been kept in custody along with Abdulvahap Timurtaş. It appears that in respect of Erdoğan at least the Silopi prosecutor's office had previously requested that his statement be taken by a Diyarbakĸr public prosecutor, since the case-file submitted by the Government includes a letter dated 1 August 1994 from a public prosecutor at Diyarbakĸr to the E-type prison in that city requesting that Erdoğan be brought before him.   55.   It appears that following the communication of the present application to the Government on 9 May 1994 the Ministry of Justice (International Law and Foreign Relations General Directorate) contacted the Şĸrnak public prosecutor's office which in its turn passed the request for information on to the prosecutor's office in Silopi. On 23 August 1994 Silopi prosecutor Erbaş informed his colleague in Şĸrnak of the state of the investigation, saying that it had appeared from their examinations that Abdulvahap Timurtaş had neither been detained by the gendarmerie headquarters nor by the police headquarters in the district. Furthermore, the village muhtars whom the applicant had referred to as witnesses had stated that they knew neither the applicant nor his son Abdulvahap. It had not been possible to question Sadĸk Erdoğan and Nimet Nas. In view of the facts that the applicant had moved from Cizre to an unknown destination and that he had not applied to the Silopi prosecutor's office since 21 October 1993 the impression had been created that Abdulvahap Timurtaş had been found. For that reason, the applicant had been summoned on 10 August 1994 to the Silopi prosecutor's office in order to close the file.   56.   The case-file then contains a series of letters written mainly by public prosecutors at Silopi and Eruh aimed at securing the presence of Bahattin Aktuğ, Sadĸk Erdoğan and Nimet Nas in order for their statements to be taken. In another reminder sent on 2 February 1995 by Silopi prosecutor Yavuz to the prosecutor's office at Eruh, Yavuz stated that the subject was important and urgent since it was related to a matter followed by the Ministry of Justice and the European Commission of Human Rights. He continued by stating that Aktuğ, Erdoğan and Nas should be asked whether they personally knew Abdulvahap Timurtaş, whether they had seen Abdulvahap Timurtaş in August, September or October 1993 in Şĸrnak brigade or regiment headquarters and whether they had had any conversation with Abdulvahap whilst the latter was in detention. Moreover, they were to be asked whether they had furnished any information to the applicant and to be requested to give detailed information concerning the detention of Abdulvahap Timurtaş by the security forces.     57.   In a letter dated 6 February 1995 in which Silopi prosecutor Yavuz informed the Şĸrnak prosecutor's office of the progress of the investigation, it is mentioned that the residents of Yeniköy had been summoned for their statements to be taken. Moreover, the public prosecutor's office at Şĸrnak had been requested to investigate the incident via the Şĸrnak brigade headquarters.   58.   The case-file contains a statement drawn up and signed by Bahattin Aktuğ and two gendarmerie officers to the effect that the former was unable to comply with the summons from the Eruh public prosecutor as "road and life security and helicopter activity" could not be established. It also said that Nimet Nas was being held in Diyarbakĸr E-type prison. Although this statement is dated 9 September 1994 it would seem more likely that it was drawn up around 9 April 1995 as it refers to correspondence received from a district gendarmerie headquarters dated 9 September, 10 November and 25 December 1994 and 14 March 1995. Moreover, on 18 April 1995 Sedat Erbaş, prosecutor at Silopi, first wrote to the prosecutor's office at Diyarbakĸr to request that a statement be taken from Nas. Nas was to be asked, inter alia, whether he had seen Abdulvahap Timurtaş in detention at Şĸrnak brigade or regiment headquarters in August, September or October 1993 or at any other time. On 5 May 1995 Nimet Nas made a statement to a Diyarbakĸr public prosecutor (see para. 82).   59.   By decision of 13 July 1995 Silopi prosecutor Yavuz issued a decision of lack of jurisdiction and referred the case to the prosecutor's office at Şĸrnak (see paras. 107-110).   60.   Özden Kardeş, public prosecutor at Şĸrnak, commenced his investigation by requesting the Şĸrnak police headquarters and the provincial centre gendarmerie headquarters on 24 July 1995 to examine their records for August 1993 to see if Abdulvahap Timurtaş had been detained by them. By letter of 9 August 1995 the commander of the Şĸrnak provincial centre gendarmerie headquarters replied that the name   Abdulvahap Timurtaş did not appear in their records.   61.   On 13 August 1995 the Yeniköy muhtar Kamil Bilgeç made another statement at Silopi central gendarmerie headquarters (see para. 81). Moreover, on 13 and 15 August 1995 statements were taken from Bahattin Aktuğ and Sadĸk Erdoğan respectively by a gendarmerie officer (see paras. 87, 84). It does not appear, however, that these statements were immediately sent to the Şĸrnak prosecutor's office since he also entered into correspondence aimed at having the statements of Aktuğ, Erdoğan and Nas taken. By letter of 8 October 1995 a gendarmerie officer at the Şĸrnak provincial centre gendarmerie headquarters informed the public prosecutor that Nimet Nas was being detained in Diyarbakĸr E-type prison and that the address of Sadĸk Erdoğan could not be established. On 28 December 1995 Nimet Nas made a statement to a Diyarbakĸr public prosecutor (see para. 83).   62.   Bahattin Aktuğ's statement of 13 August 1995 was forwarded to the Şĸrnak prosecutor's office by the Güçlükonak district gendarmerie headquarters on 19 November 1995. Nevertheless, by letter of 8 February 1996 to the Eruh prosecutor's office Şĸrnak prosecutor Kardeş again requested that he be supplied with a statement from Bahattin Aktuğ in which the latter was to clarify whether he personally knew Abdulvahap Timurtaş and whether he had any information concerning a detention of Abdulvahap Timurtaş. Kardeş sent the same request in respect of Sadĸk Erdoğan. Moreover, on 26 February 1996 another Şĸrnak prosecutor asked the prosecutor's office at Silopi to question the residents of the villages of Yeniköy, Germik, Kartĸk and Kutnĸs about their knowledge of Abdulvahap Timurtaş and a detention undergone by the latter. On 26 March 1996 the statements made on 7 and 8 March 1996 by residents of these villages were transmitted to the Silopi prosecutor's office by the Silopi district gendarmerie headquarters (see para. 89). Meanwhile, on 11 March 1996, Yusuf Bilgeç, the son of the Yeniköy muhtar, made a statement to a public prosecutor (see para. 90). Sadĸk Erdoğan made a statement to Şĸrnak prosecutor Kardeş on 2 April 1996 (see paras. 85-86). A public prosecutor at Siirt took a statement from Bahattin Aktuğ on 22 April 1996 (see para. 88).   63.   On 3 June 1996 the Şĸrnak prosecutor Özden Kardeş issued a decision not to prosecute (see paras. 111-115).   B.   The evidence before the Commission   1.   Documentary evidence   64.   The parties submitted various documents to the Commission. The documents included reports about Turkey (including extracts on Turkey from a number of Reports of the United Nations Working Group on Enforced or Involuntary Disappearances) and statements from the applicant and witnesses concerning their version of the events at issue in this case.   65.   The Commission had particular regard to the following.     a.   Statements by the applicant     i. Statement of 21 October 1993 taken by a Silopi public prosecutor   66.   The applicant stated that his son Abdulvahap, after being angry with him, had left his house and had gone away two years previously. He had learnt from other people that Abdulvahap had gone to Syria. According to the latest information his son had been apprehended by security forces in Yeniköy. Although the applicant had not seen his son, he might have been seen by the Yeniköy and Esenli muhtars. The applicant had also heard that his son had been seen in Şĸrnak by Nimet Nas and Sadĸk Erdoğan who resided in Güçlükonak but, according to the applicant's knowledge, were being kept in detention.     ii.   Statement of 2 December 1993 taken by Mahmut Şakar of the Diyarbakĸr branch of the Human Rights Association   67.   The applicant was informed through an anonymous telephone call that his son Abdulvahap, together with a friend whom the applicant did not know, had been taken into custody in Yeniköy on 14 August 1993 by soldiers connected to Silopi central gendarmerie headquarters. The arrest had taken place in front of all the villagers. The muhtar of Yeniköy, Kamil, and the muhtar's son had also been arrested. About three days after being caught, Abdulvahap and his friend were taken around a number of villages in the area. The aim of this exercise was to find out whether the villagers knew them and whether Abdulvahap and his friend knew the villagers. To this end all the villagers were gathered in the village squares. The villagers were unwilling to give their names to the applicant because of the situation in the region, but they remembered Abdulvahap asking for water.   68.   In view of the intensity of the clashes in the area at the time, the applicant did not give a petition to the Silopi public prosecutor's office until one week later. The petition was not processed and the applicant was told that Abdulvahap was not there. Within that week the muhtars of the villages in the area were called to Silopi to see if they knew Abdulvahap and his friend. Although these muhtars thus saw Abdulvahap and his friend at Silopi gendarmerie headquarters, they were unwilling to give their names to the applicant out of fear.   69.   The applicant then telephoned a relative by the name of Bahattin Aktuğ who had been a village guard and was now the mayor of Güçlükonak district. By speaking to an officer on duty at Şĸrnak brigade headquarters Aktuğ found out that Abdulvahap was being detained there. Aktuğ told the applicant not to worry; Abdulvahap would be brought before the court and, as they all knew that he was in custody, the State could not make Abdulvahap disappear.   70.   The information given to the applicant by Bahattin Aktuğ was confirmed by Sadĸk Erdoğan and Nimet Nas, two people who were from the same village as the applicant and his wife. Erdoğan and Nas had previously been tried on charges of PKK involvement, had confessed and were working with the State. Sadĸk Erdoğan told the applicant by telephone that Abdulvahap was well and that they, Erdoğan and Nas, were giving him tea and cigarettes and were having him shaved. On the twenty-fifth day of Abdulvahap's detention Erdoğan and Nas were sent to their district of Güçlükonak from where they telephoned the applicant and told him that his son was well.   71.   In view of the situation in the region, the confessors Erdoğan and Nas could only travel by helicopter. As no helicopter was sent to them from Şĸrnak, they were forced to stay in their village in the Güçlükonak district. At the same time, the telephone numbers were changed all over Turkey and it was not possible to telephone anybody for a period of two weeks. Therefore, the applicant was unable to get any more news.   72.   After Abdulvahap had been in detention for thirty days, the applicant went to Silopi in the hope of seeing him brought before the court but to no avail. He gave a petition to the prosecutor's office but this was refused and the applicant was told, "We do not have anyone like that." Assuming that his son's detention had been prolonged by fifteen days the applicant returned to the Silopi prosecutor's office when Abdulvahap had been detained for forty-five days. This time the prosecutor signed the petition and transferred it to Silopi police headquarters. When the applicant went there he was told that Abdulvahap was not in custody. The applicant then went to see the commander of Silopi gendarmerie. He told the commander that they were to bring Abdulvahap before the court if he was alive and to give him his body if he was dead. The commander replied, "Uncle, do we have the authority to kill your son? Maybe your son has gone into the mountains, go and look for him there." The commander further said that on 14 August 1993 they had caught two area leaders of an illegal organisation in the Silopi region and that these had been sent to Diyarbakĸr a week later. However, these two suspects had had different names.   73.   Not being able to get any word of his son, the applicant began to panic. He went to Şĸrnak where he presented a petition to the prosecutor's office which was accepted and sent to Şĸrnak brigade headquarters. From there it was sent to the political branch or the fight against terrorism branch where the petition was not replied to but where it was said that Abdulvahap was not being detained.   74.   The applicant and his wife then went to Güçlükonak to see Bahattin Aktuğ. Aktuğ contacted a number of people and was told that the authorities in Şĸrnak denied that Abdulvahap was there. Whilst in Güçlükonak, the applicant also met with Sadĸk Erdoğan and Nimet Nas. Erdoğan told him that he had learnt about Abdulvahap's detention at Şĸrnak brigade headquarters after Bahattin Aktuğ had telephoned him. He had gone to the custody rooms and had found that Abdulvahap was being interrogated by the authorities. He had said that Abdulvahap was a relative of his and that he would act as a mediator if the authorities wanted anything. The authorities had told him to persuade Abdulvahap to give a statement. Upon this Erdoğan had given a pen and paper to Abdulvahap. Some time later Abdulvahap had returned the paper to him and had asked him to give it to the officer. A little while later the commander had again given paper and pen to Erdoğan, saying that Abdulvahap was to write his statement again. This procedure had been repeated three or four times. Erdoğan had then asked Abdulvahap what he was writing to which Abdulvahap had replied that it was none of his business. After this the authorities had not tried to get any information from Abdulvahap while Erdoğan was still there. Sometimes he and Nas would take Abdulvahap out for some air and they had chatted. 75.   Nimet Nas confirmed Sadĸk Erdoğan's account. After having met with them, the applicant and his wife left Güçlükonak. Following this, and on the fifty-fifth day of Abdulvahap's detention, the applicant took another petition to the Silopi prosecutor's office. He named Sadĸk Erdoğan and Nimet Nas as witnesses. Upon the applicant's insistence the prosecutor asked for a list of the persons in custody from a clerk. The clerk, hiding the list from the applicant, showed a name to the prosecutor who then proceeded to take the applicant's statement. The prosecutor said he would send the papers to Şĸrnak and the applicant was to return in a month's time. One month later the applicant returned but was told that his papers had not yet come back and that he should try again in ten days' time. However, ten days later there was still no news and the applicant was asked to come back one week later. When the applicant made the present statement that week was not yet over.   76.   The applicant put three announcements in the Özgür Gündem newspaper saying that his son was missing. He applied to the Human Rights Association. He also spoke to a Member of Parliament for Şĸrnak, Mr Selim Sadak. On 4 November 1993 Mr Sadak put a question concerning Abdulvahap Timurtaş to the Ministry of the Interior. On 2 December 1993 the applicant presented a petition at the Diyarbakĸr State Security Court which informed him in writing that upon inspection of the records, Abdulvahap had not been found.   77.   On 4 January 1991 an older son of the applicant, Tevfik, born in 1956, had been taken into custody. Ten days later police had come to get the applicant and they had shown him the dead body of his son. The applicant had seen large wounds on the soles of the feet. The commander of the Cizre police headquarters had told the applicant, "It's not over yet, it's Abdulvahap's turn, we shall send you his body too."     b.   Statements by other persons     İsmail Birlik     i. Statement of 26 January 1994 taken by Ahmet Yavuz, Silopi public prosecutor   78. On the date this statement was taken İsmail Birlik was the muhtar of Esenli village in Silopi district. He stated that he did not know and had never seen the applicant or the applicant's son Abdulvahap. He had heard that someone had been taken into detention near Yeniköy village approximately four to five months previously but he was not aware of the identity of that person and thus did not know whether it was Abdulvahap Timurtaş.     ii. Statement of 22 January 1997 taken by officers of the anti-terror branch   79.   İsmail Birlik was asked why he had failed to attend the hearing before Delegates in Ankara. He stated that during his term of office as muhtar of Esenli two or three persons had gone missing - he could not remember exactly how many. Two or three months before giving the present statement he had received a summons to go to Ankara but due to his old age and poor financial circumstances he had been unable to go.     Kamil Bilgeç     i. Statement of 26 January 1994 taken by Ahmet Yavuz, Silopi public prosecutor   80.   Kamil Bilgeç, muhtar of Yeniköy village in Silopi district when this statement was taken, said that he did not know and had never seen the applicant or the applicant's son Abdulvahap. He did not know that two individuals had been apprehended nearby his village approximately four months previously and neither did he know why his name had been given.     ii. Statement of 13 August 1995 taken by gendarmes   81.   In this statement Kamil Bilgeç was requested to state his observations and knowledge on the claim that he and his son Yusuf Bilgeç had seen the arrest of Abdulvahap Timurtaş by security forces between 4 and 7 August 1993 (sic). In response, Bilgeç stated that he had been muhtar of Yeniköy village for approximately fifteen years and that he had resided there between the dates mentioned. He had left Yeniköy in July 1994. He did not know, had never seen and would not be able to recognise Abdulvahap Timurtaş. He was prepared to come face to face with anyone who claimed that he knew something and who had given his name.     Nimet Nas     i. Statement of 5 May 1995 taken by a Diyarbakĸr public prosecutor   82.   This statement was taken when Nimet Nas was serving a prison sentence in Diyarbakĸr E-type prison. After the instructions of the Silopi public prosecutor had been read to him (para. 58), Nas said that he knew Abdulvahap Timurtaş who was a close relative of his, a PKK militant and a cadre. Abdulvahap's code name was Baver and he was responsible for Syria. In 1990 Abdulvahap had been responsible for Cizre. Nas had not seen Abdulvahap in detention in Şĸrnak brigade or regiment headquarters or other security units in 1993 or at any other time. Therefore, he had not furnished any information to the applicant.   ii. Statement of 28 December 1995 taken by a Diyarbakĸr public prosecutor   83.   When this statement was taken, Nas was still serving a prison sentence at Diyarbakĸr E-type prison. The instructions of the Şĸrnak public prosecutor were read out to him and he stated that he knew Abdulvahap Timurtaş who was his cousin. He did not know whether Abdulvahap had been taken into custody but only knew that Abdulvahap had been responsible for contacts with Syria at the time when he, Nas, had surrendered himself to the authorities.     Sadĸk Erdoğan     i. Statement of 15 August 1995 taken by gendarmes   84.   Sadĸk Erdoğan was questioned on the subject of being an eye-witness to the presence of Abdulvahap Timurtaş in the Şĸrnak interrogation unit between 7 and 20 August 1993. In reply, he said that he definitely did not know Abdulvahap Timurtaş and that he had not even heard of that name. He also said that, "Their purpose is to alienate us from the state with which we are siding". Underneath Erdoğan's name and signature at the bottom of the document, it is indicated that he was a temporary village guard of Damlabaşĸ village.     ii. Statement of 2 April 1996 taken by Özden Kardeş, Şĸrnak public prosecutor   85.   Sadĸk Erdoğan stated that he had been active within the organisation but that he had escaped from the organisation and surrendered to the security forces on 31 March 1993. Following this, he had been tried and released. He assisted the security forces as a confessor and at the same time served as a temporary village guard at Damlabaşĸ village in Güçlükonak district. He did not know and had not seen Abdul