CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 mai 2000

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margin-bottom:12pt; text-indent:-17pt } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s9D025815 { width:20.21pt; display:inline-block } .s736F943B { width:193.17pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       FIRST SECTION             CASE OF ERTAK v. TURKEY   (Application no. 20764/92)                       JUDGMENT     STRASBOURG   9 May 2000   In the case of Ertak v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mr   J. Casadevall,   Mr   L. Ferrari Bravo ,   Mr   B. Zupančič ,   Mrs   W. Thomassen,   Mr   T. Panţîru , judges ,   Mr   F. Gölcüklü , ad hoc judge , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 4 April 2000, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20764/92) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr İsmail Ertak (“the applicant”), on 1   October 1992. 2.     The applicant, who was granted legal aid, was represented by Mr   K.   Boyle and Ms F. Hampson, lecturers at the University of Essex (United Kingdom). The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicant alleged that his son, who was taken into police custody on 20 August 1992, had disappeared while being detained and had in all probability been killed by the police during questioning. 4.     The case was referred to the Court by the Commission, in accordance with the provisions applicable prior to the entry into force of Proto- col No. 11 to the Convention, on 6 March 1999 (Article 5 § 4 of Proto- col No. 11 and former Articles 47 and 48 of the Convention). 5.     On 31 March 1999 a panel of the Grand Chamber decided that the case should be examined by one of the Sections of the Court (Rule 100 § 1 of the Rules of Court). The application was assigned to the First Section (Rule   52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule   26 § 1. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 9 November 1999.   There appeared before the Court: (a)     for the Government Mrs   D. Ak çay ,   Co-Agent , Mr   B. Çalişkan , Mr   E. Genel , Mr   C. Aydin, Ms   M. Gülşen, Ms   A. Günyakti,   Advisers ; (b)     for the applicant Ms   F. Hampson ,   Counsel , Ms   R. Yalçindağ, Mr   C. Aydin, Mr   K. Yildiz,   Advisers.   The Court heard addresses by Ms Hampson and Mrs Akçay. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant, İsmail Ertak, a Turkish national born in 1930, lives in Şırnak, in south-eastern Turkey. He applied to the Commission on his own behalf and on behalf of his son Mehmet Ertak, who, he alleged, had disappeared in circumstances engaging the responsibility of the State. A.     The facts 9.     The facts surrounding the disappearance of the applicant's son are disputed. 10.     The version submitted by the applicant is set out in Section 1 below. In his memorial to the Court, Mr Ertak relied on the facts as established by the Commission in its report and on his previous submissions to the Commission. 11.     The facts as presented by the Government are set out in Section 2. 12.     A description of the material submitted to the Commission is given in Part B. 13.     In the light of the dispute over the circumstances surrounding the disappearance of the applicant's son, the Commission conducted its own investigation with a view to establishing the facts, pursuant to former Article 28 § 1 (a) of the Convention. To that end, it examined a number of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at hearings held in Ankara on 5, 6 and 7 February 1997. The Commission's assessment of the evidence, and its subsequent findings, are summarised in Part C. 1.     The facts as presented by the applicant (a)     Disappearance of the applicant's son 14.     Following incidents in Şırnak (a town in south-eastern Turkey) between 18 and 20 August 1992, several people were taken into police custody at the Şırnak gendarmerie command and security police headquarters on 21 August. At the time of the events the applicant's son, Mehmet Ertak, was working at a coal mine. 15.     At Bakımevi checkpoint, police officers in blue uniforms stopped the taxi in which Mehmet Ertak was travelling home from work together with three other people, namely Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak. The police officers took their identity papers and one of them asked which one was Mehmet Ertak. Mehmet Ertak identified himself and the officers took him away. 16.     On 24 August 1992 Abdullah Ertur, an acquaintance who had been taken into police custody on 21 August 1992 and released on 23 August 1992, told the applicant that he had shared a cell with Mehmet Ertak for a whole day and night. 17.     Abdurrahim Demir, a lawyer taken into police custody on 22 August 1992 and released on 15 September 1992, told the applicant that he had spent five or six days in the same room as Mehmet Ertak. He also stated that Mehmet Ertak had been severely tortured; in particular, on the last occasion he had remained in the “torture room” for about fifteen hours and, on being brought back to his cell, had been unconscious, displaying no signs of life. A few minutes later he had been dragged out of the cell by the legs. Another person, Ahmet Kaplan, who had likewise been released on 15 September 1992, told the applicant that he had seen his son while in custody. Three further people detained at police headquarters at the same time as Mehmet Ertak informed the applicant, when he went to visit them at Şırnak Prison, that they had seen Mehmet Ertak during that time. 18.     The applicant requested the Şırnak provincial governor to explain why his son had not been released and to inform him of his whereabouts. He was accompanied by local councillors Abdullah Sakın and Ömer Yardımcı, and by another of his sons, Hamit Ertak. The provincial governor, Mustafa Malay, interviewed an eyewitness, Abdullah Ertur, who confirmed that he had seen Mehmet Ertak at the police headquarters. The provincial governor conducted enquiries among members of the armed forces and the police. The police officers interviewed maintained that Mehmet Ertak had never been detained in police custody. In a letter of 4 November 1992 the provincial governor requested the national police headquarters to appoint an investigating officer to carry out enquiries into the applicant's allegations. 19.     On 2 October 1992 the applicant lodged a complaint with the Şırnak public prosecutor, asking what had happened to his son. He explained that although several witnesses had said that they had seen his son during their time in detention, the provincial governor's office, the police and the armed forces had all maintained that Mehmet Ertak had never been taken into police custody. 20.     On 8 April 1993 the investigating officer submitted his report to the Şırnak Administrative Council, proposing that no court proceedings be brought. 21.     On 21 June 1993 the Şırnak public prosecutor ruled that he did not have jurisdiction and forwarded the case file to the Administrative Council of the province of Şırnak to enable it to carry out the investigation. 22.     On 11 November 1993 the Şırnak Administrative Council issued an order signed by the deputy provincial governor and the directors or deputy directors of the province's various public services (the post of Director of Legal Affairs was vacant at the time). The order stated that no criminal proceedings should be brought against the officers from Şırnak police headquarters. The Administrative Council held that the alleged facts had not been established. 23.     On 22 November 1993, in accordance with the legislative provisions in force, the case was referred to the Supreme Administrative Court. In a judgment of 22 December 1993 that court upheld the Administrative Council's decision that there was no case to answer, finding as follows: “... Offences committed by civil servants acting in the performance of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants ..., an administrative investigating officer responsible for conducting the investigation is appointed by means of an order ... ... In order that an investigation may be conducted in respect of a civil servant, the civil servant concerned must first of all be accurately identified. Failing any accurate identification, no investigation can be carried out, no investigation report can be drawn up and no court with jurisdiction in the matter may give judgment. The information in the investigation file has not made it possible to determine who committed the alleged offence; consequently, that investigation should not have been commenced. However, an investigation file was compiled by the appointed investigating officer and, on the basis of that file, the Administrative Council of the province decided that there was no case to answer, on the ground that the persons responsible were unknown and that it was impossible to investigate the case. The Supreme Administrative Court decides unanimously, for the aforementioned reasons, to uphold the decision of the Administrative Council and to close the investigation.” (b)     Alleged interference with the applicant's right of individual petition Measures taken against Tahir Elçi, the applicant's lawyer at the time of the application 24.     According to the applicant, the authorities prosecuted Tahir Elçi, a lawyer, for the role he had played in the lodging of certain applications, including that of the applicant, with the Commission. The applicant maintained that on 23 November 1993 all the documents relating to the case had been seized by the security forces when Tahir Elçi was arrested. 2.     The facts as presented by the Government (a)     Disappearance of the applicant's son 25.     It was true that following clashes in the town of Şırnak between 18   and 20 August 1992, an operation was carried out and nearly one hundred people were taken into police custody. However, Mehmet Ertak was not arrested by the security forces. As the national police headquarters stated in a letter of 21 December 1994, the custody register indicated that he had never been arrested or held in custody. (b)     Alleged interference with the applicant's right of individual petition 26.     On 23 February 1995 the Government forwarded to the Commission a record of the documents seized from Tahir Elçi, together with the Diyarbakır National Security Court's decision of 10 January 1994, listing the documents that had been returned to him. B.     Evidence gathered by the Commission 1.     Written evidence 27.     Those appearing before the Court submitted various documents concerning the investigation in respect of the applicant's criminal complaint. (a)     Complaint lodged by the applicant with the Şırnak public prosecutor's office on 2 October 1992 28.     The applicant alleged that, following the events in Şırnak, his son had been arrested during an identity check on 20 August 1992, while returning home from work with three members of his family. He gave the names of eyewitnesses who had stated that they had seen his son while he was in police custody, and requested information as to what had happened to his son. (b)     Order of 21 July 1993 by the Şırnak public prosecutor, ruling that he did not have jurisdiction ratione materiae 29.     In this order, the Şırnak public prosecutor's office ruled that it did not have jurisdiction to deal with the applicant's criminal complaint against the officers from Şırnak police headquarters. It pointed out that the actions of members of the security forces who were under the authority of the governor of the state of emergency region were governed by the rules on prosecution of civil servants, and referred the case to the Administrative Council of the province of Şırnak. (c)     Documents concerning the investigation conducted by investigating officer Yahya Bal 30.     In a letter dated 4 November 1992 the Şırnak provincial governor, Mustafa Malay, referring to the petition which the applicant had lodged with the governor's office on 10 September 1992, requested the national police headquarters to appoint an investigating officer to carry out an inquiry into the applicant's allegations. 31.     In a letter dated 3 December 1992 the national police headquarters' investigation department appointed Detective Sergeant Yahya Bal as the investigating officer. On 12 and 13 January 1993 Yahya Bal took witness evidence from Abdulmenaf Kabul, Süleyman Ertak, Yusuf Ertak and Abdullah Ertur. Süleyman Ertak's statement was obtained with the assistance of an interpreter. The witnesses' statements were taken down as follows: (a)     Abdulmenaf Kabul:   “I lived in the same hamlet as Mehmet Ertak and knew him personally. However, his father's name is not Mehmet, as you said it was, but İsmail. When the incidents occurred, I was at home. I was not taken into custody [at the police headquarters] as was alleged, either that day or the following days. I heard about his disappearance when I gave evidence to the Şırnak public prosecutor, on which occasion I said the same things as I am now saying to you. My relatives and I worked as village guards in 1987. Mehmet Ertak's brother, Salih, is currently a PKK militant and has gone off to the mountains. As we support the government, those people attacked my house and my relatives' houses, and I and several members of my family were injured and my cousin Hasan Ertak was killed. Since then, we have been involved in a dispute with them. That's why they would have wanted to bring our name into this case to cause us harm. I do not have any information on Mehmet Ertak's alleged disappearance and, contrary to what has been said, I was not taken into police custody with him.” (b)     Süleyman Ertak:   “I know Mehmet Ertak. We lived in the same hamlet and sometimes worked together at the coal mines. However, his father's name is not Mehmet, as you said it was, but İsmail. When the incident took place, my nephew Yusuf and I were working in the coal mines. We heard shooting from the direction of the town and went to the main road to go back there. We hailed a taxi coming from the direction of Cizre. Mehmet Ertak was in the taxi, and we got in and went towards the town. At the entrance to the town, the police were carrying out an identity check. They checked the identity papers of all three of us and handed them back. My nephew and I went home; as for Mehmet Ertak, he said he had some shopping to do and went off towards the grocery stores across the road. I have never seen him since. I don't know where he is. I was not taken into police custody on the date of the incident – 18   August 1992 – or after that date, either alone or with Mehmet Ertak, contrary to what his father alleged. I don't know why his father made that allegation.” (c)     Yusuf Ertak:   “I know Mehmet Ertak. We lived in the same hamlet. Although we have the same surname, we are not related. However, his father's name is not Mehmet, as you said it was, but İsmail. I was not taken into police custody on 18 August 1992 at the national highways authority maintenance point [ Bakımevi ], as Mehmet Ertak's father alleged. At the time of the incidents, I was working at a coal mine 5 or 6 km away from the town. We heard shooting from the direction of the town and tried to go back there with the other workers, but the road was blocked by soldiers who were preventing anyone from entering or leaving. We were thus unable to get back to Şırnak; as a result, I was not taken into police custody. I don't know whether Mehmet Ertak was taken into custody by the police. I forgot to tell you that after the incidents – I can't remember the exact time – a taxi with Mehmet Ertak in it arrived from the direction of Cizre. I don't know who the taxi belonged to. The soldier who was at the scene made Süleyman Ertak and me get into the taxi and sent us off to Şırnak. At the entrance to the town there were police officers. They checked our identity papers and then Mehmet Ertak went off towards the grocery stores across the road. We went home. However, neither ourselves nor Mehmet Ertak were taken into police custody. I don't know why his father said that.” (d)     Abdullah Ertur (Ertuğrul):   “On 18 August 1992, following the events in Şırnak during the day, I was arrested at home by police officers – or, I should say, by soldiers, who handed me over to the police. After an investigation was conducted by the security police, I was released the following day. When I returned home, Mehmet Ertak's father, whose son I knew personally because we worked together at the coal mine, came to see me. He asked whether I had been held in police custody and whether his son was also at the police headquarters. I replied that there had been forty or fifty of us but that I had not seen his son among the detainees. However, in his criminal complaint, he lied by saying the opposite. I don't know why he did that, but we don't talk to the Ertak family. Their son Salih Ertak, who is with the PKK, and his friends killed my uncle Hasan Ertak. He said that to cause a dispute between us and the security forces. I repeat that he is lying. I was not detained in the same cell as Mehmet Ertak and I don't know where he is now.” (d)     Investigation report submitted on 8 April 1993 by investigating officer Yahya Bal 32.     The investigating officer stated that in the course of his inquiries he had visited the scene of the events and examined the custody registers, copies of which were appended to his report. He said that, although letters had been sent to the police headquarters requesting an interview with İsmail Ertak (who had apparently moved to Silopi), the authorities had been unable to find the latter's address. He noted that it was clear from the statements by Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak that they had not been taken into police custody either before or after the incidents, a fact corroborated by an inspection of the custody registers. The investigating officer also referred to the letter sent by the Şırnak police confirming that Mehmet Ertak had not been taken into custody during or after the incidents in question, and noted that Abdullah Ertur, according to the statement he had made, had been arrested by the gendarmes after the incidents in Şırnak on 18 August 1992 and handed over to the police before being released the next day; his name appeared under number 602 in the custody register. He observed that Abdullah Ertur had maintained that he had not seen Mehmet Ertak at the police headquarters and had therefore not stayed in the same cell. The investigating officer reached the following conclusion: “I propose that no court proceedings be brought, given that the allegations made by İsmail Ertak and a member of Parliament, Orhan Doğan, concerning Mehmet Ertak's detention in police custody and disappearance while being detained are wholly unfounded.” 2.     Oral evidence 33.     On 5, 6 and 7 February 1997 three Commission delegates obtained the following statements in Ankara. (a)     İsmail Ertak 34.     This witness – the applicant – is Mehmet Ertak's father. In August 1992 he heard shooting, which went on for three days. On the night of the incidents, his son Mehmet Ertak was working at the coal mine.   35.     He repeated the facts as set out in his application. 36.     The witness stated that he had gone to the gendarmerie command, where a major, after checking the list of those detained, had told him that his son had not been detained at the barracks. He had also attended a meeting at the barracks, on which occasion he had again demanded information as to what had happened to his son. Together with two local councillors ( muhtars ) – Abdullah Sakın ( muhtar for the Yeşilyurt district) and Ömer Yardımcı ( muhtar for the Gazipaşa district) – he had gone to the Şırnak provincial governor and introduced him to Abdullah Ertur, who told the governor that while in police custody he had spent one night in the same cell as Mehmet Ertak. The governor had handed a letter to the muhtars and had advised them to contact the police. The witness's son Hamit Ertak had gone to the police headquarters with Abdullah Sakın and Abdullah Ertur. 37.     The witness maintained that he had lodged a complaint with the Şırnak public prosecutor's office, but could not remember whether the prosecuting authorities had questioned Abdullah Ertur and the other people referred to in his complaint. The public prosecutor had remarked that it was highly likely that the witness's son had gone away to the mountains. The witness had contested that allegation, explaining that Mehmet had four children and that his wife was still very young. 38.     He stated that his son Mehmet Ertak had been questioned by police officers earlier that year. He did not know why his son had been summoned by the police. He added that one of his sons, Mehmet Salih Ertak, had been missing since 1989; he had heard that he had gone off to join the PKK (Workers' Party of Kurdistan), but he did not know whether he was alive or dead. Another of his sons, Mesut Ertak, had been convicted for his part in an explosion and sentenced to twelve years' imprisonment. The witness repeated that his son Mehmet Ertak, who had four young children, had been doing nothing but “work all hours of the day to feed them”. He stated: “That child [Mehmet] is innocent. His brother went away to the mountains nine years ago. Maybe that's what they hold against him.” (b)     Mustafa Malay 39.     This witness was provincial governor of Şırnak in August 1992. He explained that on 18 August 1992 there had been clashes between the security forces and terrorists, who had launched an attack. Several people had been shot dead. The attacks had originated in the area where the coal mines were situated. Following the incidents, the security forces – police officers and gendarmes – had carried out searches and more than one hundred people had been arrested and brought before the courts. Some of them had been taken into custody at the police headquarters and others at the gendarmerie's detention centre. Two separate registers had been kept. 40.     The witness stated that he had met a man in his office who said that he had spent a whole night in the same cell as Mehmet Ertak. He could not remember whether that witness's name was Abdullah Ertuğrul. He had advised İsmail Ertak to take the eyewitness to the public prosecutor. He had also interviewed other people who had said that they had seen Mehmet Ertak while in custody at the police headquarters. He said that İsmail Ertak had not given up and had come back to his office five or six times with the same allegations. The witness had written a confidential letter to the national police headquarters in Ankara and to the Ministry of the Interior, requesting the appointment of an investigating officer to carry out inquiries. He added that he had subsequently inspected the police headquarters' custody registers and found that Mehmet Ertak's name was not on the list of detainees. The gendarmerie had informed him orally that Mehmet Ertak had not been detained on their premises. An investigating officer had been appointed to conduct the investigation. The witness had been transferred to another post in February 1993 and had consequently received no further information on the progress of the investigation. (c)     Süleyman Ertak 41.     This witness had been working at the coal mines at the material time. Mehmet Ertak was his cousin. When the incidents occurred in Şırnak he had been at work in the mines. Mehmet Ertak, Abdulmenaf Kabul and Yusuf Ertak had also been at the mines, working in different areas. Because of the incidents they had been unable to return to Şırnak between 18 and 22   August. They had been warned by the gendarmerie office near the mine not to leave the site. 42.     The witness stated that there had been clashes in the town but not in the area by the mines. After spending four days in the mines, he, Mehmet Ertak, Abdulmenaf Kabul and Yusuf Ertak had started out along the main road and, in order to go back to Şırnak, had taken a taxi which had arrived from Cizre. It had almost been night time. Near Şırnak, at the checkpoint inside the town, police officers in blue uniforms had stopped the taxi and asked for their identity cards. After examining their papers in a hut, the officers had returned and asked: “Which one of you is Mehmet?” Mehmet Ertak had replied: “I am.” The officers had taken him away with them and ordered the others to leave immediately. They had got into the taxi and returned home. 43.     The witness said that İsmail Ertak had asked him where his son was, and that he had told him about the incident. He had not been interviewed on the matter by the authorities. (d)     Ahmet Ertak 44.     This witness is Mehmet Ertak's brother. At the material time he had been living in Diyarbakır. At the time of the incidents he had been in Şırnak visiting his family. On 22 August 1992 he had left the town, along with his family. 45.     The witness described the incidents that had taken place in Şırnak. On the morning of 22 August he and his father had been told about his brother's arrest. Abdullah Ertuğrul had informed them that he had been detained in the same police cell as Mehmet Ertak. Several people had been detained in the same place and they had all been blindfolded. Abdullah Ertuğrul had lifted up his blindfold and had thus been able to see Mehmet Ertak and speak to him. Early the next day Abdullah Ertuğrul had been released. In the afternoon Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak had told them that, while they had been on their way home from the mines, the police had carried out an identity check at the Bakımevi checkpoint in Şırnak and had taken Mehmet Ertak away. 46.     The witness explained that he had met Abdurrahim Demir, a lawyer, and had asked him about the circumstances in which he had seen Mehmet Ertak. He had received the following reply: “When Mehmet Ertak was brought into the cell, there were about twelve of us there. From time to time some of the detainees would be taken away for questioning and would come back later; that happened repeatedly. Mehmet Ertak was also taken away and brought back several times. We were tortured.” The witness added in that connection that Abdurrahim Demir had maintained that he had spent seven or eight days in the same cell as Mehmet Ertak. On the last day, Mehmet Ertak had been thrown into the cell, having been given a beating. He had lain on the floor as though dead. Shortly afterwards, he had been taken away and Abdurrahim Demir had not seen him again. The witness stated that his father had obtained the same information from Abdurrahim Demir, who had told him: “Your son was practically dead the last time he was brought back. He was in such a bad state that he had no chance of surviving.” 47.     The witness said that he had helped his father to draft the complaint which he had lodged with the public prosecutor, and had gone with him to the Diyarbakır Human Rights Association. He had also distributed petitions among parliamentary delegations visiting Şırnak. (e)     Abdurrahim Demir 48.     This witness stated that he worked as a lawyer in Diyarbakır. On 18   August 1992 (the first day of the incidents in Şırnak) he had been arrested by the security forces. He had spent twenty-nine days in police custody. After being arrested, he had been taken to the gendarmerie station and had stayed there for two days. Approximately 1,200 people had been detained there. On 21 August informers and Special Branch officers had come to choose 128 people and had taken them to Şırnak police headquarters. The witness said that he had remained at the police headquarters until he was released on about 20 September. 49.     On the witness's second or third day in custody at the police headquarters (24 or 25 August), Mehmet Ertak had been brought into the room in which the witness was being detained. As the witness had been subjected to torture, he could not remember exactly how many days he had spent with Mehmet Ertak – perhaps four, five or six. He stated that there had been more than twelve detainees in a single room. He could remember some of their names: Nezir Olcan, Kıyas Sakın, Şeyhmus Sakın, Celal Demir and İbrahim Satan. 50.     The witness explained that during their time in custody at the police headquarters, the detainees had been systematically subjected to torture. For several days they were taken away to be tortured two or three times a day. They had been treated like “animals” and had often had to relieve themselves where they lay. He said that Mehmet Ertak had also been subjected to such treatment. He had been taken away once a day for about fifteen minutes. On one occasion the witness and Mehmet Ertak had been taken away together, with two or three others, to the “torture room”. The witness explained that he had been able to see through his blindfold how they were being tortured. They had been stripped and hung up; some of them had received electric shocks. They had been severely beaten and sprayed with cold water. On that particular day the witness had been hung up for about an hour; when he had left the room, Mehmet Ertak was still hanging there. He had been brought back to the cell about ten hours later. The witness stated: “When Mehmet Ertak was brought back to the cell he was unable to speak; he was dead – that is to say, he had become stiff. I am 99% certain that he was dead. Two or three minutes later they dragged him out by the legs. One of his shoes was left behind in the cell. We never saw him again.” He explained that Mehmet Ertak had been in the habit of putting this shoe under his head whenever he went to sleep on the concrete floor. 51.     İsmail Ertak had visited the witness in prison but the witness had said that he would speak after he was released. When İsmail Ertak came to see him after he had returned home, the witness had informed him that his son had died while in police custody. İsmail Ertak had called him a liar. 52.     The witness said that the Diyarbakır public prosecutor had taken a statement on the incident from him. In the statement he had set out the facts he had related to the Commission delegates; he had signed the record containing his statement. He had not been interviewed by any other authorities. 53.     Throughout his time in detention he had stayed in the same cell – number 8 – and had been blindfolded. He stated that Mehmet Ertak had been tortured more than the others. He had not had the strength to speak and had not been able to converse with the witness except when the latter first arrived in the cell. He had told the witness that, after his arrest, he had been taken directly to the police headquarters. The witness explained that after they had been beaten, someone would apply ointment to the bruises on their faces. One of his teeth had been broken and his face was swollen. He had been in that state when interviewed by the public prosecutor. The public prosecutor had asked whether he had been tortured and he had replied in the affirmative. The public prosecutor had replied that that did not “correspond to the truth” and that he had caused the swelling himself. 54.     The witness explained that, for fear of reprisals, he had not lodged a complaint against the police officers who had tortured him. He maintained that he had told the truth and had only mentioned the bare minimum of what he and his fellow detainees had endured. In his opinion, the incidents in Şırnak had been triggered by agents of the State as a means of oppressing the population, which had previously attended the funerals of two PKK militants and voted for a pro-Kurdish party, the HADEP. (f)     Tahir Elçi 55.     This witness, a lawyer, represented the applicant at the time when he lodged his application with the Commission. He pointed out that he had not represented the applicant before the domestic authorities. He had merely given him advice and drafted letters. 56.     The witness stated that, following his arrest in November 1993, the security forces had searched his office and seized all documents relating to his professional activities, including those on the case concerning the disappearance of Mehmet Ertak. He had been held in custody for twenty-one days at the intelligence branch ( JİTEM ) of Diyarbakır gendarmerie command. 57.     The witness said that he had not obtained statements from the eyewitnesses mentioned in İsmail Ertak's complaint. Some were in prison and did not feel safe, while he was afraid to go to the prison himself to take statements from them. He had subsequently met Abdurrahim Demir, who had stated that he had seen Mehmet Ertak during his time in police custody. The witness said that İsmail Ertak had given a very brief outline of his conversation with Abdurrahim Demir. İsmail Ertak had refused to admit that his son might be dead, even though he had known deep down that he was. The witness stated in that connection that if a person had been detained for a week and no request for an extension of the period of custody had been submitted to the public prosecutor, it could be concluded with some certainty that the detainee's life was in danger or that he was dead. 58.     Tahir Elçi believed that Mehmet Ertak had died while in police custody. He himself had witnessed a number of similar cases. (g)     Levent Oflaz 59.     This witness was a superintendent at Şırnak police headquarters. On the night of 18 August, he had been at the police station. Suddenly, he and his colleagues had heard shooting from the direction of the town centre. They had been informed via the radio that terrorists had attacked Şırnak. They had taken precautions to protect themselves. The witness explained that he had not been a member of the team that had carried out arrests. His job had been to protect public buildings. For four or five days while the incidents were taking place, he had not left the police station. 60.     The witness examined the record drawn up on 23 August 1992, which stated that, following the clashes between 18 and 21 August, houses in the town centre had been searched and no spent cartridges had been found. He acknowledged that the document bore his signature. Contrary to what he had previously maintained, he admitted that he had been part of the team that had searched the houses. (h)     Kemal Eryaman 61.     At the material time this witness was governor of Elazığ Prison. He said that registers were kept of detainees and visitors. The names Şeyhmus Sakın, Kıyas Sakın and Emin Kabul sounded familiar but he was unable to give a more precise answer. 62.     The witness described the manner in which the registers were kept. They contained all the information on such aspects as the reason for the detention and the person or authority who had sent the detainee or convict to the prison. He pointed out that the registers did not include any information on detention in police custody. 63.     The witness stated that, following the incidents in Şırnak between 18   and 20 August, several detainees had been taken to Elazığ Prison. (i)     Serdar Çevirme 64.     At the material time this witness was head of the interrogation and intelligence squad at the anti-terrorist branch of the Şırnak police. He described his duties as being part of the team that arrested and interrogated persons suspected of terrorist activities. 65.     The witness stated that the “August incidents” had begun on the night of 15 August. Shots had been fired from all directions by heavy weapons. Two police officers, one of whom had been a member of the “rapid intervention force” ( çevik kuvvet ), and two or three members of the district gendarmerie had been killed. 66.     When asked for an explanation of the fact that, according to the registers, eighty people had been taken into custody at the police headquarters' detention centre in late August, the witness explained that the August incidents had constituted extraordinary circumstances. He maintained that the detainees had been held in custody for forty-eight hours. 67.     The witness could not remember whether all those who had been arrested had been taken to the gendarmerie station or straight to the police headquarters. According to instructions, they should have been taken into custody at the gendarmerie station, but where two or three people were involved, they had been detained at the police headquarters. Doctors, nurses and a number of families had been accommodated in the basement of the police headquarters for their protection. He acknowledged that on 21   August, 57 people involved in the incidents had been taken away from the gendarmerie station. He was unable to say precisely where another group of 22 people taken away the following day and a group of 12 taken away on 24 August had come from. The situation at the time had been chaotic. 68.     Despite what he had previously said, he admitted that in cases where twenty-three people had been held in custody for over twenty days pending questioning, they had been detained in the large room. Such a situation had arisen twice in the course of his duties: that August and on 21 March. He said that the cells, the large room, the interrogation room, the boiler room, the toilets and a small room with tea-making facilities had all been located in the basement. 69.     The witness admitted that he had taken part in the interrogations in connection with the investigation into the incidents of 18 August. His squad had not kept records of when, or by whom, particular detainees had been questioned. The squad's internal records included memoranda signed by the officer who had drafted them; the memoranda had not been included in the official registers. 70.     The squad's investigation had proceeded as follows: he and his colleagues had inspected the registers, and had not found Mehmet Ertak's name; they had checked his criminal record; they had then conducted inquiries as to which team had arrested him and the manner in which he had been arrested. However, their inquiries had been inconclusive. 71.     The witness said that he had not been at the police headquarters continuously. During his absence, the duty officer had looked after the registers. He considered it inconceivable that the name of a person taken into custody should not have been entered in the register; the police officers concerned followed fairly rigorous written and oral instructions to that effect. The witness stated that a custody report was sent daily to the head of the branch. He was unable to give a clear reply as to why the name of Emin Kabul, who had been transferred to Elazığ Prison, had not been listed in the custody register. However, the name seemed familiar to him. 72.     The witness said that he was unable to give a logical explanation as to the fact that six people had maintained that they had seen Mehmet Ertak in police custody, even though his name had not appeared in any register. 73.     The witness acknowledged that the checkpoint on the road from the mines was at the entrance to the town. Checks were carried out there by members of the “rapid intervention force” and the intelligence and anti-smuggling squads. When they made an arrest, they would take the suspects to the relevant branch of the police. The witness said that the officers in question also kept custody registers but that no cells were set aside for people detained in custody at their branch. With regard to the colour of their uniforms, he said that at the material time they had been green, but that they had subsequently been replaced by blue uniforms; however, he was unable to give the precise date on which that change had taken place. He maintained that officers from the “rapid intervention force” used to take suspected terrorists to the police headquarters. (j)     Osman Günaydın 74.     The witness was deputy governor of the province of Şırnak at the material time. On behalf of the governor, he had chaired the Şırnak Administrative Council, which on 11 November 1993 had issued a decision not to prosecute the security police officers. 75.     The witness could not remember the particular circumstances of the case and was unable to explain why the date of the offence referred to in the document included in the investigation report had been given as 16   September 1992, whereas the incidents had taken place on 18 August 1992. He stated that the investigating officer had been a detective sergeant who was competent in such matters and had heard evidence from four witnesses, all of whom had denied İsmail Ertak's allegations. He explained that the Administrative Council had not considered it appropriate to call for further inquiries. That decision, which had been upheld by the Supreme Administrative Court, had been unanimous. (k)     Yahya Bal 76.     The witness was a detective sergeant in the police's investigation department, and was the investigating officer in the instant case. H