CEDH · CASELAW;REPORTS;ENG — 23 avril 1999

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margin-bottom:0pt; text-align:center } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     EUROPEAN COMMISSION OF HUMAN RIGHTS                       Application No. 22277/93     Nasır lhan     against     Turkey                     REPORT OF THE COMMISSION   (adopted on 23 April 1999)   TABLE OF CONTENTS Page   I.   INTRODUCTION   (paras. 1-36) ............................................... 1     A.   The application     (paras. 2-4) ........................................... 1     B.   The proceedings     (paras. 5-31) .......................................... 1     C.   The present Report     (paras. 32-36) ......................................... 4   II.   ESTABLISHMENT OF THE FACTS   (paras. 37-166) ............................................. 6     A.   The particular circumstances of the case     (paras. 38-50) ......................................... 6     B.   The evidence before the Commission     (paras. 51-151) ........................................ 9       1) Documentary evidence     (paras. 51-84) ......................................... 9       2) Oral evidence     (paras. 85-151) ....................................... 16     C.   Relevant domestic law and practice     (paras. 152-166) ...................................... 33     III.   OPINION OF THE COMMISSION   (paras. 167-255) ........................................... 36     A.   Complaints declared admissible     (para. 167) .......................................... 36     B.   Points at issue     (para. 168) .......................................... 36     C.   Evaluation of the evidence     (paras. 169-210) ...................................... 36     D.   As regards the applicant’s standing in the proceedings     (paras. 211-212) ....................................... 51     E.   As regards Article 2 of the Convention     (paras. 213-225) ....................................... 52       CONCLUSION     (para. 226) ........................................... 55     F.   As regards Article 3 of the Convention       (para. 227-234) ........................................ 56       CONCLUSION     (paras. 235) ........................................... 57     G.   As regards Articles 6 and/or 13 of the Convention     (paras. 236-248) ....................................... 58       CONCLUSION     (para. 249) ........................................... 63     H.   As regards Article 14 of the Convention     (paras. 250-253) ....................................... 63       CONCLUSION     (paras. 254) ........................................... 63     I.   Recapitulation     (paras. 255-258) ....................................... 64   SEPARATE OPINION OF MR M. PELLONPÄÄ .......................... 65   SEPARATE OPINION OF SIR NICOLAS BRATZA ........................ 67   PARTLY DISSENTING OPINION OF MR S. TRECHSEL JOINED BY MM A.S. GÖZÜBÜYÜK AND A. WEITZEL .................... 68   PARTLY DISSENTING OPINION OF MM K. HERNDL AND E.A. ALKEMA .................................. 70   APPENDIX:   DECISION OF THE COMMISSION AS TO THE     ADMISSIBILITY OF THE APPLICATION ..................... 71     I.   INTRODUCTION        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      The applicant is a Turkish citizen resident in Iıklar, Urfa and born in 1950. He is represented before the Commission by Professor K. Boyle and Professor F. Hampson, both lecturers at the University of Essex. He brings this application on behalf of his brother Abdüllatif lhan, who is partially paralysed and has authorised the applicant to act on his behalf.      The application is directed against Turkey. The respondent Government were represented by their Agents, Mr A. Gündüz and Mr S. Alpaslan.      The applicant complains that his brother, Abdüllatif lhan, was beaten and severely injured by gendarmes when they apprehended him at his village and that he did not receive the required medical treatment. He complains also of the lack of access to court and of any effective remedy in respect of these matters and alleges discrimination in the enjoyment of his rights on the basis of his brother’s Kurdish origin. He invokes Articles 2, 3, 6, 13 and 14 of the Convention.   B.   The proceedings      The application was introduced on 24 June 1993 and registered on 20 July 1993.      On 28 February 1994,   the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to invite the respondent Government to submit written observations on the   admissibility and merits.      The Government’s observations were received on 25 May 1994 after an extension in the time-limit. The applicant submitted observations and information on 13 July and 9   August 1994.      On 22 May 1995, the Commission declared the application admissible.      The text of the Commission's decision on admissibility was sent to the parties on 1 June 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.   On 27 September 1995, the Government submitted supplementary information. On 26 October 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: Mr Pellonpää, Mrs Liddy and Mr Lorenzen. The Government were requested to identify certain witnesses.   By letter dated 6 December 1995, the applicant made certain proposals concerning the taking of evidence.   By letter dated 8 December 1995, the Government provided information concerning witnesses.   By letter dated 15 January 1996, the applicant provided certain information concerning witnesses.   By letters dated 14 and 23 January 1997, the Government provided certain documents.   By letter dated 18 February 1997, the applicant provided information concerning the ability of his brother to attend the hearing of witnesses.   By letter dated 16 July 1997, the applicant made requests concerning witnesses and documents.   By letter dated 24 July 1997, the Delegates requested the Government to submit particular documents and information.   On 26 September 1997, the Government provided some documents.   Evidence was heard by the Commission's Delegates in Ankara on 29 and 30   September 1997. Before the Delegates, the Government were represented by Mr   A.   Gündüz, Mr S. Alpaslan and Mr D. Tezcan, Acting Agents, assisted by Ms   M.   Gülen, Mrs Y. Renda, Mr A. Kaya, Mr H. Karahan and Mrs N. Ayman. The applicant was represented by Ms F. Hampson, Ms A. Reidy and Mr O. Baydemir, as counsel, assisted by Mr S. Leader, Mr K. Sdar, Mr Metin Kilavuz and Mr Mahmut Kaya (interpreter).   On 14 October 1997, the Delegates requested the Government to provide certain information and documents.   By letters dated 27 and 28 November 1997, the Government provided some of the documents and information.   On 18 December 1997, the Delegates informed the parties that they had decided to call two further witnesses to a hearing to take place in Ankara in May 1998. They requested the Government to provide copies of any notes made by medical gendarme personnel concerning the examination of Abdüllatif lhan. By letter dated 18 March 1998, the Delegates requested information from the Government. The Government replied on 23 March 1998.   Evidence was heard by the Commission's Delegates in Ankara on 4 May 1998. Before the Delegates, the Government were represented by Mr M. Özmen, Agent, assisted by Ms M. Gülen, Mrs Y. Renda, Mr A. Kaya, Mr . Ünal, Ms B. Cankorel, Mr   K. Alata, Mr E Genel, Mr F. Polat, Mr A. Karata, Mrs N. Eser and Mrs N. Ayman. The applicant was represented by Ms F. Hampson and Ms A. Reidy, as counsel, assisted by Ms A. Akat, Ms Z. nanç and Mr H. Bakken.   By letter dated 12 May 1998, the Delegates requested further documents.   On 13 July 1998, the Government provided further information.   On 14 July and 7 August 1998, the applicant and the Government, respectively requested an extension in the time-limit for the submission of their final observations, which was granted until 15 October 1998.   The Government requested a further extension on 14 October 1998, which was also granted until 30 October 1998.     The Government’s observations were submitted on 6 November 1998. The applicant’s observations were submitted on 20 November 1998, following an explanation and apology for the delay.   On 19 April 1999, the Commission decided that there was no basis on which to apply former Article 29 [1] of the Convention.   It also noted that in the applicant’s observations of 20 November 1998 the applicant complained for the first time of the fairness of Abdüllatif lhan’s trial in March 1993. As these complaints were not included, expressly or impliedly, within the scope of the decision on admissibility, the Commission has not included them in its examination of the merits.   After declaring the case admissible, the Commission, acting in accordance with former 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   The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:       MM   S. TRECHSEL       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       J.-C. GEUS       M.P. PELLONPÄÄ       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO       B. CONFORTI     Sir   Nicolas BRATZA     MM   I. BÉKÉS       D. ŠVÁBY       G. RESS       A. PERENI       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELIŪNAS       E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention. The purpose of the Report, pursuant to former 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.   The Commission's decision on the admissibility of the application is annexed hereto.   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   The facts of the case, particularly concerning events during the apprehension and treatment of the applicant’s brother Abdüllatif lhan between 26 and 28 December 1992, are disputed by the parties. For this reason, pursuant to former 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   1.   Facts as presented by the applicant   The various accounts of events as submitted in written and oral statements by the applicant are summarised in   Section B: "The evidence before the Commission". The version as presented in the applicant's final observations on the merits is summarised briefly here.   The applicant’s brother, Abdüllatif lhan, lived in Aytepe village. Aytepe was situated on a hillside with gardens to the south. While part of the gardens are on a slope, the main part is flat. The gardens are a relatively rocky area, with some trees and bushes. There were two rivers, one to the east and one to the west. On the morning of 26   December 1992, there were 3-4 inches of snow on the ground.   At about 07.30 hours, when they heard that a military operation was on the way to the village, Abdüllatif lhan and brahim Karahan decided to hide in the gardens for fear of being beaten up. They hid in a flat area at the end of the gardens in the bushes, about 15-20 metres within sight of each other. The two men had however been spotted by soldiers who were on the hills above with a view of the gardens. After about 20 minutes, the soldiers arrived in the gardens and found them. One group of soldiers found brahim Karahan first and began to beat him and kick him. An officer arrived and told them to stop. Some minutes later, a second group of soldiers found Abdüllatif lhan and began to beat him. They hit him with rifle butts, in particular inflicting a blow to the right hand side of the head, and kicked him. Neither brahim Karahan or Abdüllatif lhan had tried to run away.   Abdüllatif lhan slipped into unconsciousness and the soldiers dragged him to the stream nearby and immersed him in water to revive him. He was brought with brahim Karahan to the gendarme commander, eref akmak. As a result of the blows, Abdüllatif lhan’s left eye was bruised and swollen to the extent that the eye was shut, there was a mark over his right eye and bruises on other parts of his body. His clothes were also soaked from the river. His clothes were not changed. The commander was conducting a search of the village. brahim Karahan was asked to show his house and that of Abdüllatif lhan. A third individual, Veysi Aksoy [2] , wanted on suspicion of aiding the PKK, was apprehended. Abdüllatif lhan was unable to walk, and slipping in and out of consciousness. The commander ordered brahim Karahan to carry Abdüllatif lhan to the station. When they reached Ahmetlı, they were able to borrow a mule. brahim had to hold Abdüllatif lhan on the mule, otherwise he would have fallen off.   After a few hours, when it was dark, they reached Konak station. Abdüllatif lhan was placed in the cafeteria while brahim Karahan and Veysi Aksoy were place in the custody room. After one to one and a half hours, a vehicle was arranged to take the commander and the suspects to Mardin station. En route, the gendarmes stopped twice for one to one and a half hours at Öguzköy and Akinci.   They reached Mardin station in the early hours of 27 December 1992.   Soon after their arrival, two men in civilian clothes appeared, one of whom was said to be a doctor. They looked at the detainees, without approaching, and said that they were OK. The commander, eref akmak, considered that Abdüllatif lhan was acting ill on purpose. Neither Abdüllatif lhan nor brahim Karahan were entered into a custody record. They remained in the cafeteria, until about 17.00 hours, when they were taken to the main station and eref akmak took their statements. He then released them and told them to leave the station.   brahim Karahan took Abdüllatif lhan to a nearby coffee shop. There a customer offered to get his car and bring them to the State hospital. At about 19.10 hours, Abdüllatif lhan was seen by a doctor at the State hospital.   He was diagnosed as having concussion, hemadermy in the left eye, left hemiplegia and his life was considered to be in danger. His immediate transfer to Diyarbakır hospital was recommended.   brahim Karahan persuaded the doctor to allow the use of the ambulance. Abdüllatif lhan was admitted to Diyarbakır State Hospital. brahim Karahan telephoned the applicant shortly afterwards to inform him of what had happened.   On 28 December 1992, the applicant arrived at Diyarbakır hospital. Abdüllatif lhan was in intensive care. He had not been speaking and was slipping in and out of unconsciousness. The applicant could see that his brother had sustained an injury to the area around his left eye, which was completely black and blue and closed over. He had a mark four inches long above his eyebrow on the right hand side of his head, which had been bleeding. His legs were all bruised and marked. On 29 December 1992, the applicant took his brother to get a CAT scan at the Gulsağ health clinic as the hospital did not have this equipment.   On the basis of the scans, Dr Rahmanlı concluded that there had been haemorrhaging but that there was no need to operate. Abdüllatif lhan remained for 19 days in hospital, being treated by medicine.   On 29 December 1992, the applicant went to the Human Rights Association (HRA) to make a statement based on the few words his brother had spoken and the short account given by brahim Karahan. On 11 February 1993, the public prosecutor, Abdülkadir Güngören, decided to prosecute Abdüllatif lhan for resisting arrest and not to prosecute the gendarmes for injuring him. On 30 March 1993, Abdüllatif lhan appeared in a court in Mardin, without a lawyer or translator. The applicant was not allowed into the court with him. Abdüllatif lhan told the court that it was not correct that he had tried to run away but the court recorded that he said that he had tried to run away.   It convicted him of resisting arrest and sentenced him to seven days’ imprisonment, which was converted to a fine and suspended. None of the gendarmes or brahim Karahan were called to give evidence.   2.   Facts as presented by the Government   The Government's account of events as based on their observations are summarised as follows.   Based on intelligence reports, inter alia , indicating that the owner of a minibus at Aytepe village was giving shelter to two members of the PKK, an operation was conducted at Aytepe village on 26 December 1992.   As the teams approached the village, it was noticed that two persons, who were acting as lookouts started to run away. They continued to run away after they were ordered to stop and surrender. Since the direction of their flight was covered with snow, Abdüllatif lhan slipped and fell over a rocky surface and received injuries to the left eye and left leg. He, brahim Karahan and Veysi Aksu, who had been reported as making propaganda for the PKK, were apprehended and taken first to Konaklı gendarme headquarters and then to Mardin provincial gendarme headquarters. At Konaklı, Abdüllatif lhan made a statement which said that he had run away from the soldiers and slipped while running. In his second statement taken at Mardin, he stated that while he was running away he fell over bushes onto rocks near the stream and was injured.   By notice of 27 December 1992, the Mardin gendarme commander informed the Mardin public prosecutor of the incident, presenting documents as completing the investigation into the offence of resisting security officers, pursuant to Articles 258 and 260 of the Turkish Penal Code (TPC). The notice informed the prosecutor also that Abdüllatif lhan had been sent to Mardin State hospital, from where he had been transferred to Diyarbakır State Hospital.   The public prosecutor issued an indictment against Abdüllatif lhan for passive resistance to security officers contrary to Article 260 of the TPC. His trial took place on 30 March 1993 at the Mardin Justice of the Peace Court. He was present and questioned by the court. He accepted what was said in the indictment, namely, that at first he did not understand the order to stop and ran away and that later he understood their request but was afraid and continued to run away.   Having regard to the circumstances and his record, the judge sentenced him to seven days’ imprisonment but altered it to   TL 35 000 heavy fine pursuant to art. 4 of Code 647 on the Execution of Punishments (decision 1993/74).   On 11 February 1993, the public prosecutor issued a decision of non-prosecution concerning Abdüllatif lhan’s injuries, since they resulted from an accidental fall while he fled from the security forces and no-one, directly, indirectly, intentionally or negligently, had caused them.   Information received from the authorities indicated that the PKK terrorists used to come to Kaynak village, (Abdüllatif lhan’s previous home) and ask for food and supplies. As the villagers refused to assist them, they were forced to evacuate their houses, moving to Yardere and Aytepe. The deserted village hamlet of Kaynak was burned down by the terrorists as an example to other villagers who might attempt to resist them.   B.   The evidence before the Commission     1)   Documentary evidence   The parties submitted various documents to the Commission. These included documents from the investigation and court proceedings and statements from the applicant and witnesses concerning their version of the events in issue in this case.   The Commission had particular regard to the following documents:     a) Documents submitted by the applicant in his application to the Commission     Statement dated 29 December 1992 of the applicant taken by the HRA   He stated that his brother Abdüllatif lhan was 32 years’ old, married and the father of six children. On the day of the incident, his brother was living in Aytepe. Ten months before, his brother’s village had been burned down by the security forces and his brother had fled to Iıklar to work as a shepherd.   On the date of the incident, while carrying out an operation at Aytepe, the security forces inflicted severe ill-treatment on his brother and brahim Karahan in very cold, snow conditions. They threw them on the ground and beat them viciously with rifle butts. After beating his brother for some time, they put him in water with his clothes on and forced him to ride on a horse and in a military vehicle. His brother was now receiving treatment in the brain surgery ward, Diyarbakır State Hospital. There was a possibility that he was paralysed. He pressed charges against the persons who treated his brother in this inhuman fashion and requested an appropriate investigation.     Statement dated 4 January 1993 of brahim Karahan taken by the HRA   On 26 December 1992, at about 07.30 hours, his village Aytepe was raided by soldiers from the local Konak station and soldiers from Mardin.   He and Abdüllatif lhan hid in a garden as they were afraid that they might be ill-treated or detained. Three-four months before, soldiers had come to the village and beaten him and other villagers ferociously. The soldiers saw where they were hiding and, without asking anything, beat them with rifle butts and kicked them for a long time.   Abdüllatif lost consciousness because of blows to the head. He was plunged into the water several times and dragged through the snow to where Ibrahim was lying, 20-30 metres away.   He had to carry Abdüllatif on his back to the village and then he had to leave Abdüllatif on the ground in the snow while he showed the soldiers Abdüllatif’s house.   After the house searches, the commander asked Abdüllatif what had happened to him. Abdüllatif said that he had been beaten by the soldiers.   The soldiers said that he was lying and that he had fallen over.   The commander told Ibrahim to carry Abdüllatif on his back to the station. He carried Abdüllatif, who was half-unconscious, to the village of Ahmetlı, one kilometre away, where they got a mule. They put Abdüllatif on the mule and continued 2 km to Yardere and then 4-5 km to Konak, where the station was. They had left Aytepe at about 08.30 hours and arrived at Konak at about 13.00 hours. Abdüllatif was put in the station canteen while he was put in a cell. After two hours, both were placed in a military vehicle. On the way to Mardin, they stopped at the villages of Oğuz and Akinci. They were detained in Mardin central gendarme headquarters until the evening of the next day. After their statements were taken, they were released.       Statement dated 15 December 1993 of Abdüllatif lhan taken by the HRA   In this statement bearing his thumbprint, Abdüllatif lhan stated that on 26   December 1992, he became disabled due to severe ill-treatment by soldiers in Aytepe village. Because he was either in hospital or confined to bed, it was impossible for him to exercise his rights or to make a personal application. Therefore his brother Nasır made the application in his place. At first, he had been unable to speak or move and his brother had to do the application himself.   Afterwards, when he recovered a little, he was not in a condition to make applications. When, after 18 days in hospital, he returned to Aytepe, there was a raid on the village by the captain, who was the commander of Mardin central gendarmerie headquarters, who talked to the villagers. He asked where Abdüllatif lhan was and when told he was ill in bed, sent a NCO to see if he was really ill. A First Sergeant and two soldiers came to his house. The NCO talked to him, saying that it was his fault that he was ill as he jumped over a wall as he was running away and the wall fell down.   The NCO also asked whether it was true that he had made applications to the HRA. From fear, he said that he had not. They made no official petitions as those who did were sent to the provincial gendarme command headquarters. They also knew that they would suffer more if they did so.   Ten months before the incident, a warning had been issued that they should leave their village, Kaynak hamlet, Ahmetlı village, but they had not done so. At 09.00 hours one day their house was burned down by the soldiers with all their goods inside. He and his spouse fled to Aytepe village.   When they went back to their own village, they found nothing usable left and returned to Aytepe. He used to make a living from his livestock. Of his 200 goats, some had been burned and others fled, 70 only being collected afterwards.   He sold them later for 30 million when he was ill. His brother had also spent about 40 million for the costs of his treatment. They had to pay 3 million for films of his head which showed that there were drops of blood in his brain.   Since he was not insured, he had to pay for all his treatment. He received drugs while he was in hospital and was still receiving them.   He returned to Diyarbakır hospital after 20 days at home for a check-up, and then at successive intervals of 40 days and 3 months. Each time he received a prescription. On the recommendation of the doctor, he went to stanbul but there were no beds at the hospital. His costs were met by 20 million lira from the applicant.   He waited three weeks for a bed but as he had no money left he had to leave stanbul for Mardin again.   He had been ruined financially by his illness. He had had six children. One of them, Güler, died from illness because they could not afford a doctor. The applicant supports them all. He has 8 children of his own and is also financially destroyed because of his illness.     Supplementary information on Nasır lhan by Mahmut Sakar, Secretary of the HRA submitted on 13 July 1994   After giving detailed information at the HRA on 15-16 December 1993, Abdüllatif lhan nominated his brother Nasır lhan to follow his case as he was paralysed. He placed his fingerprint on this document as he was illiterate and did not know how to sign. It was therefore not possible that Abdüllatif lhan signed the statements taken on 26   December 1992 by the gendarmes. An examination of these documents shows that the signature is not a signature but a scribbling made by forcibly holding the person’s hand.       b) Documents relating to the apprehension and detention of Abdüllatif lhan     Incident report dated 26 December 1992 bearing signatures of Abdüllatif lhan, brahim Karahan and gendarme officers including   eref akmak and Ahmet Kurt   This statement, recorded as drawn up at the scene of the incident and read and signed by the persons present, stated that on the basis of records (nos. 329 of 23.12.92 and 331 of 24.12.92) from the Intelligence Unit of Mardin-nci gendarmerie headquarters,   operation “Yıldırım” was carried out at Aytepe village on 26 December 1992 by 2 squads from <name illegible> and 5 squads from Mardin headquarters. While the village was being cordoned off, it was seen that two persons were trying to run away. They were warned to stop. They could be followed due to their tracks in the snow.   They apprehended brahim Karahan. Since the ground was stony and snow-covered, Abdüllatif lhan who was running ahead of him fell down the slope of a hill, injuring his left eye and left leg and was apprehended.   In the village, they also apprehended Veysi Aksu who had been denounced by other villagers as having spread propaganda and having acted as a messenger for the PKK.   No further suspects or elements of crime were discovered in the search.   Veysi Aksu, Abdüllatif lhan and Ibrahim Karahan who had failed to stop when ordered to do so, were taken to Konaklı headquarters for questioning and subsequent transfer to Mardin Provincial Gendarme Headquarters.     Statement dated 26 December 1992 of Abdüllatif lhan taken by gendarme sergeant Ahmet Kurt   The statement, which was taken at Konaklı station and signed above the name Abdüllatif lhan, stated that the suspect was asked why he had fled from the security forces during the operation at Aytepe village. He said that he saw the soldiers arriving at the village and because he was afraid of the soldiers he left his house and ran towards a wooded area. He could see the soldiers coming after him. They were shouting for him to stop. He became more afraid and headed for Yardere village.   The rocks were icy and, as he crossed the river and jumped over the bushes, he slipped and fell, hitting his head and shoulder on a rock. He hid behind bushes but the soldiers followed his footprints and found him.     Statement dated 26 December 1992 of brahim Karahan taken by gendarme sergeant Ahmet Kurt   This statement, taken at Konaklı gendarme station, stated that the applicant was questioned as to why he ran away from the security forces at Aytepe. It stated that he had been sitting in his house when he saw soldiers entering the village. As he was frightened of the soldiers, he intended to hide amongst the trees and gardens until they left. When the soldiers saw him and shouted after him, he was very frightened and ran away along the banks of the stream. When the soldiers approached, he hid in the bushes.   Soldiers coming from the other direction saw and apprehended him.     Statement dated 27 December 1992 of Abdüllatif lhan taken by gendarme officer eref akmak   This statement, taken at the provincial central gendarme headquarters at Mardin, stated that the applicant was asked why he had run away from the security forces during an operation at Aytepe. He stated that he was standing in front of his house when he saw the soldiers coming to the village. PKK members had frequently been to his house and told him not to have anything to do with soldiers. He ran away towards the stream below the village.   The soldiers saw him. After running 200-300 metres, he fell on the rocks by the stream. He was injured in the eye and leg. He could no longer run and hid himself in the bushes near the stream. The soldiers followed his footprints from the garden and caught him in the bushes. He had not committed any offence. The statement was stated as being confirmed with a thumbprint as he did not have a signature.     Statement dated 27 December 1992 of brahim Karahan taken by gendarme officer eref akmak   This statement, taken at Mardin Central Gendarme Headquarters, stated that the suspect was asked why he had run away from the security forces at Aytepe. He stated that he was on his way to get the midwife for his wife who was about to give birth when he saw security forces coming from the hills opposite. As he was frightened, he hid in the shrubs in the gardens. Members of the PKK had been coming to his house and had told him not to talk to soldiers.   The soldiers followed his footprints and pulled him out of the bushes.     Letter dated 27 December 1992 from eref akmak to the chief consultant Mardin State Hospital   The subject of the letter was identified as the transfer of Abdüllatif lhan and brahim Karahan. It requested that these persons who had fallen on steep, stony ground and hurt themselves while fleeing from the security forces at Aytepe be sent for treatment. They were under summons in connection with an ongoing preliminary investigation.     Report, date illegible, from Mardin provincial central gendarme command   This report addressed to provincial governor, the Mardin provincial gendarme command and Mardin chief prosecutor, is in a pro forma numbered format. It referred to the offence of resistance to security forces at item 1. At item 4., it stated that on receipt of provincial gendarmes command’s order relating to intelligence that Mehmet Koca, owner of a minibus and resident of Aytepe, was sheltering Bedirhan Ciçek and Hamdin Ciçek who were wanted for aiding and abetting the PKK, an operation was carried out on 26   December 1992 to apprehend the suspects.   On realising that Abdüllatif lhan, brahim Karahan and Veysi Aksoy were carrying out surveillance duty and saw the security forces approaching, an order to stop was given. They did not obey but ran towards the rocky terrain on the outskirts of the village. A pursuit was launched. As a result of the snow and mud-covered terrain, the feet of brahim Karahan and Abdüllatif lhan slipped and they fell on the rocky terrain. The suspects who were followed due to their footprints resisted the gendarmes with stones. They were apprehended. Abdüllatif lhan and brahim Karahan were injured due to falling and transferred to Mardin State Hospital for treatment.   Under a section headed Abdüllatif lhan, there was an item E. “aiding and abetting the PKK” and under separate sections headed brahim Karahan and Veysi Aksoy, point E. also referred to aiding and abetting the PKK.     Report dated 27 December 1992 from eref akmak to the Mardin public prosecutor   The subject was stated to be “resistance to security forces”. It stated that on receipt of intelligence that PKK members were in Aytepe village an operation involving seven teams was carried out in the village on 26 December 1992.   Upon the security forces entering the village, the two individuals, brahim Karahan and Abdüllatif lhan, ran away towards the outskirts of the village. Notwithstanding numerous orders to stop, they continued to run away. There was a lengthy pursuit. Upon the suspects being informed that they were going to be summoned to the station, they physically resisted by pushing members of the security forces. During their attempt to escape by pushing these persons, they fell from the rocks. As a result, Abdüllatif lhan was injured to a life-threatening degree, having hit his head on the stones while escaping.   Abdüllatif lhan’s initial treatment was carried out at Mardin State Hospital and then he was referred to Diyarbakır. brahim Karahan was sent to accompany him in the absence of relatives.   The investigation documents relevant to their offence of unarmed resistance to apprehending officers and not complying with an order to stop were enclosed.     Decision not to prosecute dated 11 February 1993 by public prosecutor Abdülkadir Güngören   This identified Abdüllatif lhan as the injured party and described the incident by stating that “He slipped and fell and injured himself.” The investigation documents had been examined. Since it transpired that the injured party fell and injured himself as a result of carelessness while fleeing from the security forces and that no-one acted deliberately or negligently, a decision of lack of grounds to proceed had been reached.     Indictment dated 11 February 1993 concerning Abdüllatif lhan drawn up by public prosecutor Abdülkadr Güngören   The indictment specified that the offence was resistance to officers, citing Article 260 of the TPC. It transpired from the defendant’s admission and a witness statement that in the course of an operation by the security forces who were searching for PKK terrorists the defendant fled, ignoring their orders to stop.     Minutes of the court hearing of 30 March 1993 at Mardin Justice of the Peace Court   The defendant was asked to give evidence. He stated that the charge was true. On the day of the incident, he did not understand the security forces’ stop warning. Although he understood it afterwards, he ran away for fear that they would harm him. He requested an acquittal or for the sentence to be converted into a fine and suspended.     Decision dated 30 March 1993 of the Mardin Justice of the Peace Court   The court found that Abdüllatif lhan had admitted that he had failed to comply with the gendarmes’ order to stop during an operation and thus had resisted the officers, contrary to Article 260 of the TPC.   The sentence of 7 days’ imprisonment was commuted to a fine of TL 35 000 and suspended, having regard to the fact that it was his first offence and that he would not commit a new offence.     Letter dated 13 May 1994 from the Mardin provincial gendarme command to the Mardin public prosecutor’s office   This letter, signed by Lt. Col. Ridvan Özden, recounted that Abdüllatif lhan and brahim Karahan had been carrying out a surveillance duty for the PKK and ran away despite repeated “Halt” warnings.   After a lengthy pursuit, the suspects were apprehended hiding in the bushes. Upon this, they attempted to escape by pushing and resisting the security personnel.   Due to the slippery ground, Abdüllatif lhan was injured by falling amongst bushes and rocks. He was referred to Mardin State Hospital and transferred to Diyarbakır State Hospital due to his injuries.     c) Documents relating to Abdüllatif lhan’s condition and treatment   A number of documents have been provided, referring to Abdüllatif lhan’s treatment. The documents relating to his care in hospital are largely illegible but indicate that he was admitted at Diyarbakır State Hospital, Brain Surgery Department on 27   December 1992 and discharged on 11 January 1993. The documents regarded as relevant by the Commission are summarised below.   Report dated 27 December 1992, at 19.20 hours, signed by Dr Mehmet Aydoğan, Mardin State Hospital   This stated that the general condition of Abdüllatif lhan, who was brought in as a result of a blow, was average, conscious, responsive. Hemadermy was present in the left eye periorbital. The report was interim and indicated the presence of a life threatening situation to the patient, who had left hemiparesis present.     Mardin State Hospital polyclinic register   The entries for 27 December 1992 included no. 22833 Abdüllatif lhan, referred to Diyarbakır neurosurgery and no. 22834 brahim Karahan, with a largely illegible reference to trauma and right ear and a referral.     Addendum to the report 27 December 1992 by Dr Mehmet Aydoğan dated 26   December 1996   This stated that the word “blow” had been included in the report (above) because of the patient’s verbal explanation. However, the actual lesion was due to trauma which could have been caused by a blunt instrument or by a fall.     Medical report 27 December 1992 Diyarbakır State Hospital   This report, signed by Dr Ömer Rahmanlı, stated: “General situation fair concussion left hemiplegion, risk of death, accepted in hospital.”     Medical report 16 December 1993 Diyarbakır State Hospital   The report, signed by Dr Ömer Rahmanli and Dr Selahattin Varol, stated that Abdüllatif lhan had been examined on 10 June 1993. It was established that he had left hemi-paresis,   which had caused a 60% loss of motor functions. Intracerebral haematoma   had been diagnosed as the result of the head trauma suffered, and he had been treated as an in-patient in their clinic. The findings (paralysis) had remained as after-effects.     CAT SCANS and report dat