CEDH · CASELAW;REPORTS;ENG — 10 septembre 1999

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text-indent:-35.45pt; text-align:justify } .s988B4253 { width:1.1pt; text-indent:0pt; display:inline-block } .s614A38E2 { width:25.99pt; text-indent:0pt; display:inline-block } .s7B92CF83 { width:23.33pt; display:inline-block } .s9328F5EB { width:23.45pt; text-indent:0pt; display:inline-block } .sCDAF610C { width:207.07pt; display:inline-block } .sC208EB85 { width:259.73pt; display:inline-block } .sD8C8644 { width:206.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }                         EUROPEAN COMMISSION OF HUMAN RIGHTS                   Application No. 22876/93     Şemse Önen     against     Turkey                 REPORT OF THE COMMISSION   (adopted on 10 September 1999)   TABLE OF CONTENTS Page   I.   INTRODUCTION   (paras. 1-33) ........................................................ 1     A.   The application     (paras. 2-4) ..................................................... 1     B.   The proceedings     (paras. 5-28) .................................................... 1     C.   The present Report     (paras. 29-33) .................................................. 4     II.   ESTABLISHMENT OF THE FACTS   (paras. 34-258) ...................................................... 6     A.   The particular circumstances of the case     (paras. 35-51) .................................................. 6     B.   The evidence before the Commission     (paras.   52-246) ................................................. 8     C.   Relevant domestic law and practice     (paras. 247-258) ............................................... 48     III.   OPINION OF THE COMMISSION   (paras. 259-372) .................................................... 50     A.   Complaints declared admissible     (para. 259) .................................................... 50     B.   Points at issue     (para. 260) .................................................... 50     C.   The evaluation of evidence     (paras. 261-329) ............................................... 50     D.   As regards Article 2 of the Convention     (paras. 330-343) ............................................... 64       CONCLUSION     (para. 344) .................................................... 67     E.   As regards Article 3 of the Convention     (paras. 345-348) ............................................... 67       CONCLUSION     (para. 349) .................................................... 67     Page     F.   As regards Articles 6 and 13 of the Convention     (paras. 350-356) ............................................... 67       CONCLUSION     (para. 357) .................................................... 69     G.   As regards Article 8 of the Convention     (paras. 358-361) ............................................... 69       CONCLUSION     (para. 362) .................................................... 69     H.   As regards Article 14 of the Convention in conjunction with Articles 2, 3, 6, 8     and 13 of the Convention     (paras. 363-366) ............................................... 69       CONCLUSION     (para. 367) .................................................... 70     I.   Recapitulation     (paras. 368-372) ................................................ 70     APPENDIX I:   DECISION OF THE COMMISSION AS TO   THE ADMISSIBILITY OF THE APPLICATION ............... 71   APPENDIX II:   SKETCH MAP OF THE SCENE OF THE KILLINGS ........... 81     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 1969 and resident in the village of Karataş, near Mazıdağı (Mardin) in South East Turkey.   She was represented before the Commission by Professor Kevin Boyle and Ms Françoise Hampson, both university teachers at the University of Essex (United Kingdom). The applicant states that she brings the application also on behalf of others, namely her deceased parents, Ibrahim and Mome, and her deceased brother Orhan as well as on behalf of ten other surviving siblings.   3.       The application is directed against Turkey.   The respondent Government were represented by their acting Agent, Mr Münci Özmen, of the Ministry of Foreign Affairs.   4.       The case concerns the killing of the applicant’s parents and brother Orhan, allegedly by armed members of the Balpınar village guards, on 16 March 1993 and the investigation of these killings. The applicant invokes Articles 2, 3, 6, 8, 13 and 14 of the Convention.   B.   The proceedings   5.       The application was introduced on 15 September 1993 and was registered on 4 November 1993.   6.       On 10 January 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.   7.       The Government's observations were submitted on 2 May 1994 after an extension of the time-limit fixed for this purpose.   The applicant submitted observations in reply on 5 July 1994. The Government submitted further observations on 17 August 1994 to which the applicant replied on 21 September 1994.   8.       On 14 January 1995, the Commission examined the state of proceedings and the Government’s request to adjourn the proceedings pending the outcome of the criminal proceedings brought against the two suspects of the killings before the State Security Court of Diyarbakır. The Commission requested the Government to submit, before 16 February 1995, further information about these criminal proceedings.   9.       On 30 March 1995, the Government submitted a number of documents, i.e. a report dated 17 March 1993 on the post mortem examination of the applicant’s parents and brother, two statements dated 4 and 5 April 1993 respectively made by the two alleged perpetrators at the Fosfat gendarme station, a statement dated 4 April 1993 made by the Balpınar village guard Mecit Kaya at the Fosfat gendarme station, two statements dated 5 April 1993 made by the applicant and her sister Mekiye respectively at the Mazıdağı District gendarme station and two ballistics reports dated 29 April 1993 and 17 May 1993 respectively. The Government further stated that the Commission would be informed of the state of the proceedings before the State Security Court as soon as this information was available. 10.       On 15 May 1995, the Commission declared the application admissible.   11.       The text of the Commission's decision on admissibility was sent to the parties on 30 May 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 of the Commission. Neither party availed itself of this possibility.   12.       On 21 October 1995, the Commission examined the state of proceedings in the application and decided that it should proceed to take oral evidence. It appointed three Delegates for this purpose: Mr G. Jörundsson, Mr N. Bratza and Mr G. Ress. It notified the parties by letter of 26 October 1995, proposing certain witnesses and inviting the parties to indicate before 6   December 1995 any person from whom they wished to take evidence before the Delegates. The Commission further requested the Government to identify by name a gendarme officer and a public prosecutor and to submit a copy of the respective investigation files of the public prosecutor in Mazıdağı and the public prosecutor at the Diyarbakır State Security Court. The Government were invited to submit the two names and files before 6 December 1995.   13.       By letter of 6 December 1995, the applicant requested that a further three witnesses be heard, all of whom were eye-witnesses to the events on 16 March 1993. On 15 March 1996, the applicant submitted a further statement of herself and a further statement of her brother Ercan. 14.       On 5 July 1996, the Commission granted the applicant legal aid for the representation of her case.   15.       On 27 January 1997, the Government were reminded of the Commission’s request of 26   October 1995 to identify two officials by name and to submit the investigation files. The Government were further requested to submit a number of additional documents as well as information about the state of proceedings against the suspects of the killings before the State Security Court of Diyarbakır.   16.       On 10 March 1997, the Government submitted a number of documents concerning the investigation and the proceedings before the State Security Court.   17.       Following consultations with the parties, the Commission informed the parties on 23   October 1997 that an oral hearing had been scheduled for the week of 2 to 7 February 1998.   18.       By letter of 15 January 1998, the Government informed the Commission that they would not be able to participate in this hearing as their officials in charge of the case were taking part in proceedings before the Court in Strasbourg between 24 and 27 January 1998 and as the week preceding the oral hearing in the present case was a religious holiday. After having deliberated, the Commission decided to reschedule the hearing for the week of 30 March to 4 April 1998. The parties were informed of this decision by letter of 23 January 1998. In its letter to the Government, the Commission noted that the Government, several months after the hearing dates had been confirmed to the parties, stated that they were unable to participate invoking reasons which must have been known much earlier than 15 January 1998. The Commission was thus compelled to cancel at short notice its taking of evidence in February 1998 which incurred, inter alia , substantial costs in the cancellation of various contractual engagements undertaken by the Commission in the organisation of the hearing. The Commission informed the Government that it considered the manner in which the Government had acted in this respect as incompatible with the Government’s obligations under Article 28 para. 1 (a) of the Convention. 19.       By letter of 17 March 1998, the Government requested that two further witnesses be heard before the Delegates, to which the Delegates acceded.   20.       Evidence was heard by the Delegates of the Commission in Ankara on 30 March and 1   and 2 April 1998 from the applicant and twelve other persons.   21.       Before the Delegates, the Government were represented by Mr M. Özmen, their acting Agent, assisted by Ms A. Emüler, Mr F. Polat, Ms A. Samantır, Mr B. Yıldız, Ms S. Güzel, Ms   D. Bulutlar, Mr A. Kaya, Mr K. Alataş, Mr B. Doğan, Ms N. Ayman, Mr A. Cangöz, Mr   S.   Durmaz, Mr H. Aksoy, Mr Y. Yıldız, Ms G. Ayvalı, Ms B. Pekgöz, Mr E. Genel, Ms   N.   Eser and Ms F.S. Ergin. The applicant was represented by Professor K. Boyle, assisted by Mr T. Otty, Mr J. Rud, Ms N. Boucly, Mr T. Elçi, Mr M. Kalivuz, Mr K. Sidar, Ms S. Karakaş and Mr M. Kaya (interpreter). Further documentary material was submitted by both parties during the hearing. During the hearing, and later confirmed by letter of 2 June 1998, the Delegates requested the Government to submit a number of further documents, including the operation records, the daily logbook, the duty ledgers and service ledgers on the activities of the gendarmes in the Fosfat gendarme station between October 1992 and May 1993 and the statement of 1 April 1994 and possible annexes thereto issued by the Ministry of Internal Affairs in relation to the applicant’s brother. The Delegates further requested the applicant to submit a specific document and an explanation in writing in relation to unexplained signatures on a document containing statements made by, inter alios , the applicant to the Diyarbakır Branch of the Human Rights Association.   22.       By letter of 6 May 1998, the Government submitted three documents relating to the case, i.e. a document concerning the dismissal of three village guards, an ambulance record and an incident report dated 16 March 1993.   23.       In its letter of 2 June 1998, the Commission also invited the parties to submit their written final observations on the merits of the case by 28 July 1998. Upon the request of the Government, this time-limit was extended until 28 September 1998 and, following a further request by the Government, until 19 October 1998.   24.       By letters of 11 June and 16 July 1998, the Government submitted further information and a number of documents in response to the Commission’s letter of 2 June 1998. A number of documents requested by the Commission, including the operation records, the daily logbook, the duty ledgers and service ledgers on the activities of the gendarmes in the Fosfat gendarme station between October 1992 and May 1993 and the statement of 1 April 1994 issued by the Ministry of Internal Affairs in relation to the applicant’s brother, were not submitted by the Government. On 4 August 1998, the applicant submitted the document requested by the Delegates during the hearing.   25.       On 29 September 1998, the applicant submitted her final written observations and the written explanation requested by the Delegates. Although the time-limit for the submission of the Government’s final observations had expired on 19 October 1998 and no request from the side of the Government had been made for an extension of this time-limit, the Government were nevertheless granted a further extension of the time-limit for the submission of their final observations until 15 December 1998. The Government were informed that if no final observations had reached the Commission before that date, it would be assumed that the Government did not wish to submit such observations.   26.       On 8 December 1998, the Commission requested the Government to submit the statements taken by the Fosfat gendarme commander from four persons in the context of the investigation. The Government submitted one statement on 21 January 1999 and explained that this commander had not taken any statement from the other three persons.   27.       By letter of 22 February 1999, the Government requested an extension of the time-limit until 15 March 1999 for the submission of the Government’s final observations. The Government were informed on 1 March 1999 that no further extension could be granted. To date, the Government has submitted no final observations.   28.       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   29.       The present Report has been drawn up by the Commission in pursuance of the former [1] Article 31 of the Convention and after deliberations and votes, the following members being present:     MM   S. TRECHSEL, President     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     B. CONFORTI   Sir   Nicolas BRATZA   MM   I. BÉKÉS     D. ŠVÁBY     G. RESS     A. PERENIČ     E. BIELIŪNAS     E.A. ALKEMA     M. VILA AMIGÓ   Mrs   M. HION   MM   R. NICOLINI ARABADJIEV   30.       The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with the former Article 31 para. 2 of the Convention.   31.       The purpose of the Report, pursuant to the 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.   32.       The Commission's decision on the admissibility of the application is annexed hereto.   33.       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   34.       The facts of the case are partly in dispute between 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 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   35.       The various accounts of events as submitted in written and oral statements made by the applicant are summarised in Section B below. The version as presented in the applicant’s final observations is summarised here.   36.       Unlike its neighbouring village Balpınar, the village of Karataş - where the applicant and her family were living at the relevant time - had refused to accept the village guard system. This refusal resulted in certain tensions between the two villages and pressure from the side of the gendarmes.   37.       On or about 15 November 1992, four Balpınar village guards were killed in a clash with the PKK. On the same day, shortly after the clash, gendarmes and village guards attacked the village of Karataş. This attack lasted for several hours. The following day, the Muhtar (headman) of Karataş complained to the Governor that his village was being subjected to pressure and violence by the gendarmes and village guards. No investigation of the attack took place.   38.       Some weeks before 16 March 1993, the house of the Muhtar of Karataş and the applicant’s family house were both strafed by several rounds of bullets fired by Balpınar village guards. The Muhtar complained again to the Governor about the pressure exerted on his village by the Balpınar village guards and requested that steps be taken.   39.       In the evening of 16 March 1993, the applicant’s parents, Ibrahim and Mome, and her older brother Orhan were killed and the applicant injured in her foot as a result of a planned action by members of the Balpınar village guards to kill the applicant’s brother Orhan. Before he died, the applicant’s father was able to pull the scarf from the head of one of the intruders and shouted that he had recognised the actual gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. The applicant’s mother, who was seriously injured, died on her way to hospital.   40.       The Commander of the local Fosfat gendarme station, who had possibly been informed beforehand of the plan by the Balpınar village guards to kill the applicant’s brother, seriously delayed the possibility of medical treatment for the applicant’s mother, by refusing to provide another car for the defective minibus in which she was transported and by unduly delaying the further journey of this minibus to Mazıdağı.   41.       The subsequent investigation of these killings was not only ineffective and inadequate in professional terms, but was in fact designed to cover up the involvement of the Balpınar village guards and to prevent the conviction of Ali and Orhan Ertaş. As from the very beginning of the investigation and throughout the entire subsequent proceedings, the authorities blamed the PKK for the killings and failed to keep the applicant informed of any steps taken in the investigation.   2.   Facts as presented by the Government   42.       The various accounts of events as submitted in written and oral submissions by the Government are summarised in Section B below. As the Government have not submitted any final observations, the version as presented below is based on the observations and other submissions made by the Government in the course of the proceedings before the Commission.     Events prior to 16 March 1993   43.       On 8 October 1992, PKK forces attacked Balpınar village guards on the slopes of the Kırmızıtepe hill close to the village of Balpınar. This clash lasted about twenty minutes. There were no casualties. To date, the perpetrators of this attack have not been found.   44.       On 15 November 1992, PKK forces ambushed nine Balpınar village guards on a road near the village of Karataş. In the course of this clash, which lasted about fifteen minutes, four village guards were killed and four others were wounded. An investigation into the clash was carried out in the course of which the Fosfat gendarme station commander, Salih Kaygusuz, took statements from the five surviving village guards. To date, the perpetrators of this attack have not been identified.     Events of 16 March 1993   45.       On 16 March 1993, at about 20.15 hours an armed PKK attack with rocket missiles and heavy weapons took place on a PTT radio link station in Mazıdağı-Kaletepe, which lies about one kilometre from Mazıdağı. The village guards present returned fire. The clash lasted about ten to fifteen minutes. There were no casualties. Shortly after the clash, gendarmes from the Mazıdağı Central gendarme station arrived at the scene. The next day, a land mine was found on the road to the PTT station. The initial investigation of this attack was carried out by Mazıdağı Central gendarme station under the responsibility of the public prosecutor at Mazıdağı. Following the latter’s decision of 26 July 1993 of lack of jurisdiction, the investigation was referred to the public prosecutor at the Diyarbakır State Security Court.   46.       Also in the evening of 16 March 1993, the killing of three Karataş villagers was reported to the public prosecutor in Mazıdağı. For reasons of security, the public prosecutor only arrived at the scene of the incident at 08.00 hours the next morning and conducted an investigation there, including attending the post mortem examination of the bodies of the victims by a medical doctor.     The investigation of the events of 16 March 1993 and subsequent proceedings   47.       All necessary steps were taken to investigate the killing of the applicant’s parents and brother, including the collection of evidence. The nine cartridges found at the scene of the killing were subjected to ballistics examinations, which disclosed that they had not been fired from the Kalashnikov possessed by Ali Ertaş or any other Balpınar village guard. Statements were taken from the applicant and her sister Mekiye which were riddled with inconsistencies. Statements were also taken from the alleged perpetrators Ali and Orhan Ertaş, the Balpınar village guard Mecit Kaya, the Balpınar Muhtar and village guard Mahmut Denli. These latter statements were of a consistent nature and mutually supported each other.   48.       After having completed his preliminary investigation, the public prosecutor of Mazıdağı issued on 7 July 1993 a decision of lack of jurisdiction and the investigation was referred to the public prosecutor’s office at the Diyarbakır State Security Court. This referral resulted in the institution of proceedings against Ali and Orhan Ertaş before the State Security Court of Diyarbakır.   49.       On 6 May 1994, in the context of these proceedings and upon instruction of the State Security Court of Diyarbakır, further statements were taken before a judge of the Mazıdağı Criminal First Instance Court from Ali Ertaş, Mahmut Denli and Mecit Kaya. No statements were taken from the applicant and her sister Mekiye, since they no longer resided in Karataş and their new address could not be established.   50.       On 28 December 1994, the State Security Court of Diyarbakır acquitted Ali and Orhan Ertaş for lack of evidence. However, the investigation into the matter is still ongoing at the Mazıdağı District gendarme station but, to date, the perpetrators of the killing of the applicant’s parents and brother have not been found.   51.       The Government submit that it has appeared from information obtained that the PKK had provided the applicant’s brother Orhan with a taxi, which he had used for his private benefit. He had thus rendered his family a target of the PKK, which organisation is in all likelihood responsible for the killing of the applicant’s parents and brother.   B.   The evidence before the Commission     1.   Documentary evidence   52.       The parties submitted various documents to the Commission. These included documents from the investigation and court proceedings and statements from the applicant and other persons concerning the events at issue in the present case. The applicant also submitted a transcript and tape of the BBC recording “Blood and Belonging - Karataş interview”, two Amnesty International   publications of May 1992 and July 1993 respectively on extrajudicial executions and “disappearances” in South East Turkey, part of a 1991 “Human Rights Report on East and South Region of Turkey under Emergency Law” on aspects of the village guard system by the Human Rights Association and a number of further documents concerning the village guard system in South East Turkey.   53.     The applicant also submitted on 18 October 1993 a joint statement by herself, Ercan Önen, Muhittin Araç and Tahir Önen, which was taken on 24 September 1993 by Rozan Alicioğlu of the Diyarbakır Branch of the Human Rights Association. In this joint statement, the respective accounts of the applicant and the three others in relation to the events of 16 March 1993 and the subsequent investigation by the authorities are recorded. It bears the fingerprint of Şemse Önen and the signatures of Ercan Önen, Muhittin Araç and Tahir Önen. As Muhittin Araç, in his testimony to the Commission’s Delegates, denied that the signature on this document was his, and as Tahir Önen’s testimony about the manner in which he had signed this statement is rather ambiguous, the Commission asked the applicant to submit a written explanation from Ms   Alicioğlu about the manner in which this statement was compiled and signed. 54.       In her written explanation dated 3 April 1997, submitted to the Commission on 28   September 1998, Ms Alicioğlu stated, inter alia , that following a brain operation following beatings on her head while detained in Adana, she has certain memory problems. In view of her answer, the applicant has suggested in her final observations to the Commission to disregard the joint statement taken on 24 September 1993. Since the applicant does not wish to maintain this submission, the Commission has had no further regard to this joint statement.   55.     The Commission has also noted the contents of the Information Report of 15 January 1999 on the honouring of obligations and commitments by Turkey by the Parliamentary Assembly Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe [2] . In para. 20 of this Report, it is stated, inter alia :     “… an accompanying feature of emergency rule in these provinces [Diyarbakır, Hakkari, Siirt, Şırnak, Tunceli and Van] is the existence of a village guard system. The village guards are a force of approximately 50,000 ethnic Kurdish villagers armed and paid by the Government to fight the PKK [Workers Party of Kurdistan]. Pressure to join the village guards and reprisals by the security forces against those who refuse, or retaliation by the PKK against those who consent, puts the local population in an impossible situation … “   56.       The Commission has had particular regard to the following documents:     a.   Statements by the applicant         i.   Statement of 1 April 1993 taken by the Fosfat gendarme station commander     Salih Kaygusuz.   57.       This statement, insofar as relevant, reads as follows:   <Translation> “At around 21.00 hours on 16 March 1993 the door of our house was knocked on. When my father approached the door in order to open it my mother said: “They may not be soldiers, do not open.” My father addressed those outside and said “If you are going to search bring the Muhtar.” They said “We went to the Muhtar’s house, apparently the Muhtar went to Istanbul”. Upon this my father opened the door. When my father opened the door, I was with my father. As soon as the door opened we understood that they were not soldiers. The two individuals by the door had military clothes and big weapons. Whilst one of them was talking to my father, the other went straight into the room where my elder brother was. Sounds of gunshots came from that room. The man who shot my elder brother came out and started fighting with my father. During their fight my father removed the scarf from the head of one of them and said these are Ali and Orhan, sons of Kaso. At that stage they shot and killed my father. I was next to my father and they fired at me. When my mother jumped on me they shot her too and ran away. The one who murdered my brother Orhan was tall and without a moustache. The one who murdered my father had normal height, blond hair and a moustache, and he was slim. My knowledge and observation about this incident are as I stated. Upon stating thus and declaring that the witness has nothing else to state, her statement was read back via the interpreter and its truthfulness was confirmed with the signatures of those present.”         ii.   Statement of 5 April 1993 taken at the Mazıdağı district gendarme station by gendarme officer Cengiz Kesler.   58.       This statement, insofar as relevant, reads as follows:   <Translation> “On the evening of 16 March 1993 at around 21.30 hours we, my father Ibrahim Önen, mother Mome Önen, siblings Orhan Önen, Mekiye Önen and two younger siblings were watching the television. At this time our door was called at. My father, mother and I left the room and went to the hall in order to answer the call. We inquired who called at the door before opening it. A male voice responded by saying “We are soldiers, we will carry out a search in the house, it will only take 5 minutes”, in Turkish. At this stage my mother was speaking. My father did not as a result of being frightened. My mother responded by saying “If you are soldiers anyway, bring the Muhtar or a member [of the Elders] so we can open the door.” Upon this, those outside said that the mayor was in Istanbul and the member had gone to Diyarbakır. For this reason they came on their own. Upon this my father looked through the key-hole and saw those outside wearing military clothing. He thought that they were soldiers and opened the door. When we opened the door one of them quickly went to the living room. Another one remained with us by the door. They were wearing military camouflage clothes, poşu [local head scarf] around their necks and blue commando berets on their heads. My father became suspicious of their appearance and pulled the beret and poşu from his face. My father told us that they were Ali, son of Kaso the guard, and Orhan, son of Şeyhmus. He also told us to recognise them well. I do not personally know these individuals. I am only telling you what my father said. At the moment my father said this, the individual who went to the living room door and whom my father identified as being Orhan, fired upon my brother. They fired upon us by saying; “Since you recognised us, we will kill you”. They fired on my father, my mother and myself. Then they departed by running away. Those who entered into our house were two people. I don’t know if there were others outside. My father died at the incident location. My mother died on the way to the hospital. I was wounded in my left foot and received medical treatment. Right now my situation is good. As said before, before my father died, those responsible for the incident are the guards of Balpınar village, namely Ali and a former guard from the same village named Orhan. I don’t know their surnames. My sister Mekiye Önen, who was not injured, is a witness to the incident. There was no other witness to this incident. I am filing a complaint against these two individuals. I demand legal proceedings against them. Thus the witness stated and declared that she had nothing else to add, the statement was read back. The witness confirmed her statement with her left thumb print.”         iii.   Statement of 9 June 1993 taken by Mr Yekta Çobanoğlu, the public prosecutor of Mazıdağı   59.       This statement, insofar as relevant, reads as follows:   <Translation> “… in the evening of 16 March 1993 at around 21.30 hours I, my father Ibrahim, my mother Mome, my brother Orhan Önen, and Mekiye Önen were sitting in the house and watching the television. At this time our door was called at. Myself, my father and mother went to the hall from the room we were sitting in. We suspiciously waited for some time. Upon this, my father looked outside from the outer door hole, seeing that those outside were in military clothes. Upon this my mother inquired by saying “Who are you? What do you want?”. Those outside responded by saying “We are soldiers, we will search the house”. I noticed the speaker’s broken Turkish. I mean he did not pronounce his words in correct Turkish. Of course I noticed these after the incident. My mother told the outsiders; “We will not let you in, however if you bring the village Muhtar or one of the members [of the Elders], we can open the door”. The outsiders said that the Muhtar had gone to Istanbul and the member to Diyarbakır. Knowing that he had in fact gone there, we opened the door. On opening [the door], one individual wearing military clothes and his face being covered with a local scarf called a poşu, entered into the hall and adjoining side room. His eyes were the only visible part of his covered face. He was followed by another individual wearing the same type of military clothes and a poşu covering his face. Upon the entrance of the second individual my father became suspicious and wanted to uncover his face by raising his hand and pulling the poşu. Upon this, that individual pointed the Kalashnikov weapon towards my father’s abdomen and wanted to take him outside. Upon this my father said, “What is my fault?”. A third individual from outside spoke in Kurdish saying “He recognised us, kill him”. At this stage my brother Orhan, who was lying covered on the bed and watching the television, and my father were fired at. Before being shot at my father suddenly pulled the poşu off of the person’s face down to his chin and, facing us, said loudly “These are Ali and Orhan sons of Kaso. Recognise them well”. Upon this I cried help, hoping that the next door neighbour would come and intervene. Upon this, shots were fired inside the house from the outside. I was wounded. They started shooting my brother Orhan and my father. Upon this my mother closed the outer door and leaned on the inside door to prevent the murderer of Orhan from going out. The perpetrator within started firing at my mother. She was wounded and fell to the floor. He opened the door and ran away with the others. I started shouting after them. They fired on me again. They did not score. I am filing a complaint and demanding the punishment of those who killed my mother, father and brother. … During my statement at the Gendarme [station] I made a wrong statement due to the shock caused by the incident. Although I said there were seven people outside and that the incident was carried out by Ali and Orhan, Provisional Village Guards of Balpınar village, in fact I don’t know who shot my brother inside [the house]. I saw only those who shot my father and from what he said that they were Ali and Orhan, son of Kaso. Witness’ declaration was read back via the interpreter. The witness confirmed her statement with her left thumb print.”         iv.   Undated statement taken by Mr Sedat Aslantaş of the Diyarbakır Branch of the Human Rights Association, submitted to the Commission on 18 October 1993   60.       This statement, insofar as relevant, reads as follows:   <Translation> “On 16.03.93, myself, my father Ibrahim Önen, my mother Mome Önen, my elder brother Orhan Önen, my sister Mekiye Önen, my two year old sister Melek Önen and my one and a half year old brother Hamdullah Önen were sitting together in our house in Karataş village … It was about 21.00 in the evening. There was a knock on the door, and my father went towards the door, saying, “Who’s there?” Those outside gave the reply, “We are soldiers, we’ve come to do a search.” When my father said, “If you’re soldiers, then come with the Muhtar, or I won’t open the door”, the voice outside said, “The Muhtar isn’t here, he’s gone to Istanbul, don’t be afraid of us, we’re going to do a search and go away”. When, upon this, my father opened the door slightly, they pushed the door suddenly and surged inside. One of them quickly opened the bedroom door and started shooting at my brother Orhan Önen who was sitting in the room. On this, a violent fight broke out between my father and the others. On the other side, my mother was fighting with the person who had shot my brother. When my mother pulled the scarf from the face of the man she was fighting with, there was a commando’s beret on his head. This beret fell off in the house, so we hid it for a while and even showed it to the commander who came later. When my father pulled the scarf of the person he was fighting with, he recognised him. The person he recognised was Ali Ertaş, a village guard from Balpınar village. My father shouted out “Ali Ertaş, is this how you kill people?” And before my mother died, she was crying “It is Balpınar village guards who are shooting us, let everyone know.” When my mother and father recognised the attackers, they shot both of them, whilst my mother was taken to hospital, my father and brother died at the scene of the incident. The village guards, who shot me as well, thought I had died too and went away. I had been wounded in the foot. The people who shot us were Balpınar village guards. We believe that the army had knowledge of the incident. Four months before this incident, four village guards from Balpınar were killed by guerrillas. … Two months previously, a raid was organised on our village, and our houses, especially our house, were shot at. They were Balpınar village guards who carried out this attack. Four days after the incident, we were called to the village [gendarme] station to give statements. All of us, giving names, said that it was Balpınar village guards who shot at us. Although three months have passed since the incident, the file has not been transferred to the prosecution. We applied to the Ministry of Justice in Ankara. Ministry authorities spoke to the Mazıdağı prosecutor on the telephone. Apparently the prosecutor said that the investigation was underway. But there is no inquiry. In any case the prosecutor does not have the power to do this. My brother Ercan Önen met the prosecutor again in relation to this file. The prosecutor said to my brother “The file may have got lost at the [gendarme] station, I cannot approach this incident, I do not have the power.” The guilty parties are being openly protected by the state. The state sees as enemies all those who will not accept village guard [system] or who will not act as informers for the state. …”     b.   Statements by the applicant’s sister Mekiye Önen         i.   Statement of 1 April 1993 taken by the Fosfat gendarme station commander Salih Kaygusuz   61.       This statement, insofar as relevant, reads as follows:   <Translation> “At around 21.00 hours on 16 March 1993 we were sitting at home. At that time there was a knock on the door. My father asked from within the house who was there. The man outside said “We are soldiers, open the door”. My father believed that they were not soldiers and did not want to open the door. Later he went to the door in order to open it. My elder brother Orhan Önen shouted at my father saying “They are not soldiers, do not open the door”. However my father had already opened the door. Two individuals in military clothes who held weapons in their hands entered into the house. Whilst one of them was talking to my father outside, the other went straight in and started firing at the head of my elder brother Orhan Önen. I was in the same room as my elder brother. I took my younger sibling into my lap and went behind the stove. After having murdered my elder brother the man went outside. His head was covered with something. Afterwards, I heard my father shouting towards us saying “Those shooting us were Ali, son of Kaso”. A few minutes later the gunshots stopped. I went out and started screaming. My knowledge and observation about this incident are as I stated. Upon stating thus, and declaring that she has nothing else to state, the statement was read back via the interpreter and its truthfulness was confirmed with the signatures of those present.”         ii.   Statement of 5 April 1993 taken at the Mazıdağı district gendarme station by gendarme officer Cengiz Kesler   62.       This statement, insofar as relevant, reads as follows:   <Translation> “On the evening of 16 March 1993 at around 21.30 hours we, my father, mother, siblings Orhan, Şemse and two younger siblings were watching the television in the living room. At this time our door was called at. Our house consists of a living room and a hall. We were in the living room. The outer door opens into the hall. When the door was called at my father, mother and elder sister Şemse went to the hall. My elder brother Orhan, myself and