CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 juin 2000

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TURKEY   (Application no. 23531/94)                     JUDGMENT     STRASBOURG   13 June 2000     In the case of Timurtaş v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mrs   W. Thomassen ,   Mr   L. Ferrari Bravo ,   Mr   J. Casadevall ,   Mr   B. Zupančič ,   Mr   R. Maruste , judges ,   Mr   F.   Gölcüklü , ad hoc judge , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 23 November 1999 and 23 May 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 8 March 1999, within the three-month period laid down by former Articles   32 §   1 and   47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 23531/94) against the Republic of Turkey lodged with the Commission under former Article 25 of the Convention by a Turkish national, Mr Mehmet Timurtaş, on 9 February 1994. The Commission's request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 3, 5, 13, 14 and 18 of the Convention and under former Article 25 of the Convention. 2.     On 31 March 1999 a panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of the Sections. It was, thereupon, assigned to the First Section. 3.     The Chamber constituted within that Section included ex officio Mr   R.   Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 § 1 (a)) and Mrs E. Palm, President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr J. Casadevall, Mr L. Ferrari Bravo, Mr   B.   Zupančič, Mrs W. Thomassen and Mr R. Maruste. 4.     Subsequently Mr Türmen withdrew from sitting in the Chamber (Rule   28). The Turkish Government (“the Government”) accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     On 6 July 1999 the Chamber decided to hold a hearing. 6.     In accordance with Rule 59 § 3 the President of the Chamber invited the parties to submit memorials on the issues in the application. The Registrar received the Government's   and the applicant's memorials on 1   July and 12 July 1999 respectively. 7.     On 10 June 1999 the President of the Chamber granted leave to the Center for Justice and International Law (CEJIL), a non-governmental human rights organisation in the Americas, to submit written comments relating to the jurisprudence of the Inter-American Court of Human Rights on the issue of forced disappearances (Article 36 § 2 of the Convention and Rule 61 § 3). These comments were received on 9 July 1999. 8.     In accordance with the Chamber's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 November 1999.   There appeared before the Court: (a)     for the Government Mr   Ş. Alpaslan ,   Agent , Ms   M. Gülsen , Mr   N. Güngör , Mr   F. Polat ,   Advisers ; (b)     for the applicant Ms   F. Hampson , Lawyer   Counsel .     The Court heard addresses by Ms Hampson and Mr Alpaslan. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The applicant 9.     The applicant, Mr Mehmet Timurtaş, is a Turkish citizen who was born in 1928 and is at present living in Istanbul. At the time of the events giving rise to his application to the Commission he was living in Cizre in south-east Turkey. His application to the Commission was brought on his own behalf and on behalf of his son, Abdulvahap Timurtaş, who, he alleges, has disappeared in circumstances engaging the responsibility of the respondent State. B.     The facts 10.     The facts surrounding the disappearance of the applicant's son are disputed. 11.     The facts as presented by the applicant are set out in paragraphs 15 to 21 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report (former Article 31 of the Convention) [1] adopted on 29 October 1998 and his previous submissions to the Commission. 12.     The facts as presented by the Government are set out in paragraph 22 below. 13.     A description of the material submitted to the Commission will be found in paragraphs 23 to 29 below. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant's son as established by the Commission is set out in paragraphs 30 to 38 below. 14.     The Commission, in order to establish the facts in the light of the dispute over the circumstances surrounding the alleged disappearance of the applicant's son, conducted its own investigation pursuant to former Article   28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at a hearing conducted in Ankara on 21 and 23   November 1996. The Commission's evaluation of the evidence and its findings are summarised in paragraphs 39 to 47 below. 1.     Facts as presented by the applicant 15.     On 14 August 1993 the applicant received a telephone call from someone who did not identify himself. The caller said that the applicant's son, Abdulvahap, had been apprehended that day near the village of Yeniköy, in the district of Silopi, Şırnak province, by soldiers attached to Silopi central gendarmerie headquarters. Abdulvahap had been apprehended together with a friend, who was said to be Syrian, as well as with the muhtar and the latter's son in front of all the villagers. The muhtar was released soon afterwards. The applicant later heard that Abdulvahap and his friend had been taken round a number of villages to see if the villagers recognised them. Moreover, within a week of Abdulvahap being apprehended, the muhtars from the surrounding villages were called to Silopi gendarmerie headquarters to see if they recognised the two men. 16.     The applicant was worried about Abdulvahap because another son, Tevfik, had died in custody in Şırnak in 1991. The applicant made various attempts to obtain news of Abdulvahap's fate. He submitted petitions to the Silopi prosecutor's office which initially were not registered. At the Silopi gendarmerie headquarters he was told that his son was not in detention. When he took a photograph of Abdulvahap to the gendarmerie headquarters, the commander, Hüsam Durmuş, said that he did not recognise Abdulvahap and he advised the applicant to look for his son in the mountains, thereby suggesting that Abdulvahap had joined the PKK (Workers' Party of Kurdistan). 17.     The applicant also telephoned a relative, Bahattin Aktuğ, who was the mayor of the district of Güçlükonak. The latter subsequently informed the applicant that he had spoken to Sadık Erdoğan and Nimet Nas, two “confessors” [2] from his village who were at that time being detained in Şırnak. They had told Bahattin Aktuğ that Abdulvahap was being detained in Şırnak, that they were doing what they could to look after him and that Abdulvahap was refusing to make a statement. 18.     After about forty-five days the applicant went to Güçlükonak to see Bahattin Aktuğ. Whilst there, he also met with Sadık Erdoğan and Nimet Nas, who had been given twenty days' leave from Şırnak. They told the applicant that when they left Şırnak, Abdulvahap was alive. Sadık Erdoğan and Nimet Nas also told the applicant that they had been with Abdulvahap for quite some time and that they had also seen the Syrian friend who had been apprehended at the same time as Abdulvahap. 19.     Whilst the applicant was in Güçlükonak, Bahattin Aktuğ spoke to a gendarmerie captain there who telephoned Şırnak for information but was told that Bahattin Aktuğ should stop asking questions about Abdulvahap. The same message was given when a major whom Bahattin Aktuğ knew in İğdır telephoned Şırnak. 20.     The applicant again went to the Silopi prosecutor's office and named Sadık Erdoğan and Nimet Nas as his witnesses. At that point, his statement was taken. The applicant also went repeatedly to Şırnak to make enquiries about his son. 21.     In the spring of 1995 the applicant saw Sadık Erdoğan again. The latter told him that he had gone to court, where he had said that he had seen Abdulvahap in Şırnak. Upon this, his interrogator had got very angry and he had become scared. For that reason, on the second occasion he was asked about Abdulvahap, he said that he had seen a man who looked similar but that he did not know whether it was Abdulvahap. 2.     Facts as presented by the Government 22.     The Government stated that, by the applicant's own admission, his son Abdulvahap had left the family home in Cizre two years previously and the applicant had not heard from his son since that time. In the course of the preliminary investigation carried out by public prosecutors at Silopi and Şırnak, statements had been taken from persons named as witnesses by the applicant. None of these statements corroborated the applicant's allegations that Abdulvahap Timurtaş had been apprehended by the security forces on 14   August 1993 and that he had been held in detention over any subsequent period of time. C.     Materials submitted by the applicant and the Government to the Commission in support of their respective assertions 23.     In the proceedings before the Commission, the applicant and the Government submitted statements which the applicant had made to the Human Rights Association in Diyarbakır and to the public prosecutor at Silopi. According to this last statement of 21 October 1993, the applicant told the public prosecutor that his son Abdulvahap had left his house two years previously and that he had learnt from other people that his son had gone to Syria. However, the applicant had received information to the effect that his son had been apprehended by the security forces in Yeniköy and this might have been witnessed by the muhtars of Yeniköy and Esenli. The applicant had also heard that his son had been seen in Şırnak by the detainees Nimet Nas and Sadık Erdoğan. 24.     The Government also provided statements taken by a public prosecutor on 26 January 1994 from the muhtars of the villages of Yeniköy and Esenli. Both stated that they did not know and had never seen either the applicant or the applicant's son, but whereas the muhtar of Yeniköy professed to have no knowledge of two individuals having been apprehended near his village, the muhtar of Esenli had heard that someone had been arrested near Yeniköy approximately four to five months previously. In a further statement of 22 January 1997, this muhtar also said that during his term of office two or three persons had gone missing. 25.     In two statements, dated 5 May and 28 December 1995 respectively, taken by a public prosecutor whilst Nimet Nas was serving a prison sentence in Diyarbakır, the latter said that he knew Abdulvahap Timurtaş and that Abdulvahap was a PKK militant who had been responsible for contacts with Syria but that he had not seen Abdulvahap in detention. Sadık Erdoğan also made two statements to the authorities. In the first, taken by gendarmes on 15 August 1995, he said that he did not know Abdulvahap Timurtaş and that he had never even heard of that name. In the second statement, made before a public prosecutor on 2 April 1996, Sadık Erdoğan said that although he had never met Abdulvahap Timurtaş he knew his mother, who had mentioned her son's name. In this statement, Sadık Erdoğan also said that he did not know whether Abdulvahap had been detained. 26.     On 13 August 1995 Bahattin Aktuğ was interviewed by gendarmes about “investigating Abdulvahap Timurtaş and informing his father Mehmet Timurtaş on the detention of his son”. Bahattin Aktuğ stated that he did not know these individuals and that he had never met them. In a subsequent statement made before a public prosecutor on 22 April 1996, Bahattin Aktuğ repeated that he did not know Abdulvahap Timurtaş. 27.     On 7 and 8   March 1996 nine residents of Yeniköy and hamlets attached to Yeniköy were asked by gendarmes whether they knew a person by the name of Abdulvahap Timurtaş, if they knew where he was and whether he had been taken into custody. All the witnesses stated that they did not know Abdulvahap, that they had never heard his name and that, therefore, they did not know whether Abdulvahap had been detained. The son of the muhtar of Yeniköy made a statement on 11 March 1996 before a public prosecutor in which he said that he was not acquainted with either the applicant or the applicant's sons Mehmet and Abdullah ( sic ). 28.     At the hearing before the Commission's delegates, the applicant's representatives produced a document said to be a photocopy of an operation report drawn up and signed by Hüsam Durmuş, the commander of Silopi district gendarmerie headquarters. The report, dated 14 August 1993 and bearing a reference number, describes how on that date Abdulvahap Timurtaş and a man with Syrian nationality had been apprehended near the village of Yeniköy. The initial interrogation of the apprehended persons had established that they were the leaders of the PKK's Silopi lowlands section. According to the applicant's representatives, this document had been copied in 1993 from an original report at the public prosecutor's office in Cizre but that original had subsequently been removed from the files. At the request of the Commission's delegates, a search for the original of the report was carried out by the authorities, but this proved unsuccessful which, according to the Government, cast doubt on the authenticity of the report. In addition, the original document which bore the reference number that appeared on the photocopied document was classified as secret and could therefore not be provided to the Commission. 29.     Apart from the above material, the Commission also had regard to copies of custody records with which it had been provided. These concerned the Silopi district gendarmerie headquarters (entries for the period 10   March-19 December 1993), the Silopi police headquarters (31 July-2   December 1993), the Şırnak provincial central gendarmerie headquarters (23   September-30 December 1993) and the interrogation unit at the Şırnak provincial gendarmerie headquarters (31 July 1993-13 January 1994). The name of Abdulvahap Timurtaş is not included in any of these records. The Government provided copies of entries in the custody ledger of the above-mentioned interrogation unit, which showed that Sadık Erdoğan had been detained there from 3 April 1993 to 1 May 1993 and Nimet Nas from 16 June 1992 to 16 July 1992. Both men were said by the Government to have subsequently been transferred to the Diyarbakır E-type prison. The Commission requested the Government to submit copies of the relevant entries in the records of that prison, but these were not produced. D.     Proceedings before the domestic authorities 30.     On 15 October 1993 the applicant submitted a petition to a Silopi public prosecutor requesting information as to the fate of his son Abdulvahap Timurtaş whom he had heard had been apprehended on 14   August 1993. On the same date the prosecutor sent the petition to both the Silopi district gendarmerie headquarters and the police headquarters with a cover letter requesting examination of the matter. By letter dated 20   October 1993, Hüsam Durmuş, the commander of Silopi district gendarmerie headquarters, informed the Silopi public prosecutor that Abdulvahap Timurtaş had not been detained by his headquarters and that Abdulvahap's name did not appear in their records. 31.     On 21 October 1993 a Silopi prosecutor took a statement from the applicant in which the latter described how his son Abdulvahap had left the family home two years previously and that he had learnt from other people that Abdulvahap had gone to Syria. According to the latest information obtained by the applicant, however, Abdulvahap had been detained by the security forces in Yeniköy and had been seen in detention in Şırnak by Sadık Erdoğan and Nimet Nas. Also on 21 October 1993 letters were sent by the public prosecutor's office to the Silopi district gendarmerie headquarters with a request to secure the presence at the prosecutor's office of the muhtars of Yeniköy and Esenli in order for their statements to be taken, and to the office of the public prosecutor in Şırnak for statements to be taken from Sadık Erdoğan and Nimet Nas. The prosecutor's office at Şırnak was informed by the Şırnak provincial gendarmerie headquarters on 29 December 1993 that they had been unable to comply with the request to summon Sadık Erdoğan and Nimet Nas since the former was being detained at Diyarbakır E-type prison and the latter was participating in operations in Güçlükonak. On 26 January 1994 the muhtars of Esenli and Yeniköy made statements before the Silopi prosecutor Ahmet Yavuz (see paragraph 24 above). 32.     On 10 March 1994 the Silopi prosecutor Ahmet Yavuz wrote to the prosecutor's office in Cizre requesting them to ensure that the applicant would go to the prosecutor's office in Silopi. This request was passed on to the Cizre police headquarters, which replied on 28 March 1994 that the applicant and his family had left Cizre and that their present whereabouts were unknown. On 10 August 1994 the Silopi prosecutor Sedat Erbaş again requested the public prosecutor at Cizre to ensure the applicant's appearance at his office in Silopi. On the same date Sedat Erbaş also requested the public prosecutor at Güçlükonak to ask Bahattin Aktuğ whether the latter personally knew Abdulvahap Timurtaş and whether he had been approached by the applicant and had discussed the fate of the applicant's son. Sedat Erbaş also wrote to the prosecutors of Diyarbakır and Güçlükonak concerning Sadık Erdoğan and Nimet Nas respectively, who were to be asked whether they had been kept in custody along with Abdulvahap Timurtaş. 33.     On 23 August 1994 the Silopi prosecutor Sedat Erbaş informed his counterpart in Şırnak of the state of the investigation, saying that it appeared from his examinations that Abdulvahap Timurtaş had been detained neither by the gendarmerie headquarters nor by the police headquarters in the district. In view of the facts that the applicant had moved from Cizre to an unknown destination and that he had not applied to the Silopi prosecutor's office since 21 October 1993, the impression had been created that Abdulvahap Timurtaş had been found. For that reason, the applicant had been summoned on 10 August 1994 to the Silopi prosecutor's office in order to close the file. 34.     The case file also contains a series of letters written mainly by public prosecutors at Silopi and Eruh aimed at securing the presence of Bahattin Aktuğ, Sadık Erdoğan and Nimet Nas in order for their statements to be taken. 35.     On 5 May 1995 Nimet Nas made a statement to a Diyarbakır public prosecutor (see paragraph 25 above). 36.       On 13 July 1995 the Silopi prosecutor Ahmet Yavuz issued a decision of lack of jurisdiction and referred the case to the prosecutor's office at Şırnak since the applicant's son was alleged to have been detained there. 37.     Özden Kardeş, public prosecutor at Şırnak, commenced his investigation by requesting, on 24 July 1995, the Şırnak police headquarters and the provincial central gendarmerie headquarters to examine their records for August 1993 to see if Abdulvahap Timurtaş had been detained by them. By letter of 9 August 1995 the commander of the Şırnak provincial central gendarmerie headquarters replied that the name Abdulvahap Timurtaş did not appear in their records. On 13 and 15 August 1995 statements were taken from Bahattin Aktuğ and Sadık Erdoğan respectively by a gendarmerie officer (see paragraphs 25 and 26 above). On 28 December 1995 Nimet Nas made a statement to a Diyarbakır public prosecutor (see paragraph 25 above). On 26 February 1996 a different prosecutor at Şırnak asked the prosecutor's office at Silopi to question the residents of the villages of Yeniköy, Germik, Kartık and Kutnıs about their knowledge of Abdulvahap Timurtaş and a detention undergone by the latter. Statements were taken from nine villagers on 7 and 8 March 1996 (see paragraph 27 above). Sadık Erdoğan made a statement to the Şırnak prosecutor Özden Kardeş on 2   April 1996 (see paragraph 25 above). A public prosecutor at Siirt took a statement from Bahattin Aktuğ on 22 April 1996 (see paragraph 26 above). 38.       On 3 June 1996 the Şırnak prosecutor Özden Kardeş issued a decision not to prosecute. The decision lists the various enquiries that had been made in the course of the investigation and gives a summary of the statements that had been obtained. The conclusion not to continue was reached “in view of the abstract nature of the applicant's complaint”. Account was also taken of the fact that the applicant had left for an unknown destination following the lodging of his complaint. In addition, the likelihood that Abdulvahap Timurtaş was a member of the PKK terrorist organisation was found to be strengthened by the facts that he was alleged to have been in charge of the PKK in Syria and that he was wanted by the prevention of terrorism branch of Şırnak police headquarters. E.     The Commission's evaluation of the evidence and its findings of fact 39.       Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken from six witnesses: the applicant; Bahattin Aktuğ; Azmi Gündoğan, the commander of Silopi district gendarmerie headquarters until 4 August 1993; Hüsam Durmuş, the commander of Silopi district gendarmerie headquarters between 17 July 1993 and 1995; Erol Tuna, the commander of Şırnak provincial central gendarmerie headquarters at the relevant time; and Sedat Erbaş, public prosecutor at Silopi between 4 July 1994 and October 1996. A further five witnesses had been summoned but did not appear: the muhtars of Yeniköy and Esenli; Özden Kardeş, public prosecutor at Şırnak; Sadık Erdoğan; and Nimet Nas. The Government stated that the muhtar of Yeniköy had not been seen for a year and that he had allegedly been kidnapped by the PKK. Following the hearing, the Government submitted a statement taken from the muhtar of Esenli who explained that he had not been able to attend the hearing due to his old age and insufficient financial resources. Özden Kardeş had informed the Commission by letter that he had nothing to add to the information contained in the file and that for this reason he did not consider himself obliged to attend. During the hearing in Ankara, the Commission's delegates were informed that both Sadık Erdoğan and Nimet Nas were in prison in Diyarbakır. The Commission made a finding in its report (at paragraph 267) that the respondent State had fallen short of its obligations under former Article   28   § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts. It referred to (i)     the Government's failure to produce copies of the entries in the records of the Diyarbakır E-type prison concerning the detention there of Sadık Erdoğan and Nimet Nas (see paragraph 29 above); (ii)     the Government's failure to secure the attendance of the witness Özden Kardeş. 40.     In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates. In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problem of language adverted to above, there was also an inevitable lack of detailed and direct familiarity with the conditions prevailing in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while eleven witnesses had been summoned to appear, only six, including the applicant, gave evidence. The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant evidence. The Commission's findings may be summarised as follows. 1.     The alleged apprehension and detention of Abdulvahap Timurtaş 41.     In its analysis of the photocopied operation report submitted by the applicant's representatives (see paragraph 28 above) the Commission observed in the first place that the alleged author of the report, Hüsam Durmuş, had stated before the delegates that the signature on the photocopy looked like his. Furthermore, the style and format of the report corresponded to that of a blank operation report produced by the Government. Since it followed from the system of reference numbers used by the gendarmerie that, if the submitted photocopy was a forgery, there should be another document bearing the same reference number as the one on the photocopy, it had been incumbent on the Government, pursuant to former Article 28 § 1 (a) of the Convention, to produce that document. The Commission did not accept that it had been denied access to that document for the reason that it was said to have been classified as secret. Finally, the Commission was not convinced by the Government's argument that a report relating to an operation carried out in Silopi would not have been sent to the public prosecutor's office in Cizre (where, according to the applicant's representatives, the original was found from which the photocopy had been taken – see paragraph 28 above). In this respect, the Commission had regard to the oral evidence of Hüsam Durmuş to the effect that he had told the applicant to report his son's disappearance to the authorities in Cizre as that was where Abdulvahap was from and the procedures could be followed there. In addition, the applicant stated that he had filed a petition with the public prosecutor's office in Cizre and that he had been informed by the Şırnak brigade that the reply to his enquiries would be sent to Cizre. The Commission concluded that the document submitted was a photocopy of an authentic operation report from which it appeared that Abdulvahap Timurtaş had been apprehended on 14 August 1993. 42.     Evaluating the other material before it, the Commission observed that certain aspects of the applicant's account were corroborated by witnesses. Thus, Hüsam Durmuş had acknowledged before the delegates that the applicant had brought him a photograph of his son and he had also confirmed that persons detained for PKK-related offences could be shown around villages or be presented to muhtars for identification purposes. The Commission considered, moreover, that Abdulvahap Timurtaş's alleged involvement with the PKK, as referred to by Nimet Nas as well as by the Şırnak public prosecutor Özden Kardeş (see paragraphs 25 and 38 above), might have constituted the reason for his apprehension. The Commission found that the available evidence did not allow the conclusion to be drawn that Sadık Erdoğan and Nimet Nas had indeed, as submitted by the Government, been detained at the Diyarbakır E-type prison at the time when they, according to the applicant, had seen Abdulvahap in detention in Şırnak. It noted in this respect that the Government had failed to provide copies from the relevant custody ledgers (see paragraph 29 above). The Commission further found that it was unsafe to rely on the statements made by Sadık Erdoğan and Nimet Nas to the domestic authorities, in which they had denied having seen the applicant's son in detention. Before the delegates, the applicant had given an account of a conversation he had had with Sadık Erdoğan, during which the latter had informed the applicant that in his first interview with the gendarmes he had confirmed having seen Abdulvahap but that this statement had been met with incredulity and anger. Sadık Erdoğan had told the applicant that for that reason he had stated in his second interview that he had not seen Abdulvahap. The Commission considered it significant that the applicant had related this conversation in his oral testimony prior to the records of Sadık Erdoğan's statements having been put before the applicant by the delegates. Whereas in the first statement Sadık Erdoğan was reported as having said that he had never heard of the name of Abdulvahap Timurtaş, according to the second statement he was familiar with that name. These statements thus contained a startling contradiction which, in the opinion of the Commission, would not appear in two truthful statements. The Commission also preferred the evidence of the applicant, whose oral testimony was largely consistent with his various other statements and who was found to be credible and convincing by the delegates, to that of Bahattin Aktuğ. According to the record of Bahattin Aktuğ's statement of 13 August 1995, he had denied all knowledge of the applicant and the applicant's son although it was clear that he knew at least the applicant quite well. In addition, before the delegates Bahattin Aktuğ had been unable to provide a convincing explanation of why the applicant would have wished to harm him, as he had told the gendarmes in his statement. 43.     The statements taken from the nine villagers and the son of the muhtar of Yeniköy could not serve to establish that Abdulvahap Timurtaş had not been apprehended as alleged, since these persons had only been asked if they knew Abdulvahap Timurtaş. The statements of the muhtars of Yeniköy and Esenli were contradictory. 44.     Finally, the Commission examined the copied custody ledgers with which it had been provided. It was disturbed by the number of anomalies these were found to contain, and it noted that it had previously had occasion to doubt the accuracy of custody registers submitted in other cases involving events in south-east Turkey. In the light of the anomalies found in the registers in the present case, the Commission concluded that these ledgers could not be relied upon to prove that Abdulvahap Timurtaş had not been taken into detention. 45.       Given that it had not been presented with evidence to disprove the applicant's allegations but that some of the evidence corroborated his claims, and having accepted that the operation report was authentic, the Commission reached the finding that on 14 August 1993 Abdulvahap Timurtaş had been apprehended near the village of Yeniköy by gendarmes attached to the Silopi district gendarmerie headquarters and taken into detention at Silopi. At some stage thereafter he had been transferred to a place of detention at Şırnak which was probably the interrogation unit at the provincial central gendarmerie headquarters. 2.     The alleged ill-treatment of Abdulvahap Timurtaş in detention 46.     The Commission considered that there was an insufficient evidentiary basis to reach a conclusion that Abdulvahap Timurtaş had been subjected to torture or ill-treatment whilst in detention. 3.     The investigation into the alleged disappearance of Abdulvahap Timurtaş 47.     The Commission accepted that the applicant had started to contact various authorities in order to obtain news of his son within a week of having been informed about Abdulvahap's apprehension on 14   August   1993; yet the first documented action on the part of the authorities dated only from 15 October 1993. It then took a long time before statements were obtained from the witnesses named by the applicant. A considerable number of these statements were of limited value in that the witnesses had merely been asked whether they knew the applicant or his son, rather than if they were aware of two persons, whose names they might not know, having been apprehended. Where a witness (the muhtar of Esenli) did hint to such an incident having occurred, this was not followed up and even denied: in the decision not to prosecute, Özden Kardeş wrote that the muhtar of Esenli was not aware of an incident involving detention. Moreover, official enquiries into whether or not Abdulvahap might have been detained at detention facilities in Şırnak were not made until nearly two years after his alleged apprehension. The public prosecutors involved in the investigation failed to inspect personally either the detention areas in the various gendarmerie and police headquarters or the corresponding custody ledgers. The Silopi district gendarmerie, allegedly responsible for the apprehension of the applicant's son, were not asked whether they had carried out any operations at the relevant time and place. II.     RELEVANT DOMESTIC LAW AND PRACTICE 48.     The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case. The Court refers to the overview of domestic law derived from previous submissions in other cases, in particular the Kurt v. Turkey judgment of 25 May 1998 ( Reports of Judgments and Decisions 1998-III, pp. 1169-70, §§ 56-62) and the Tekin v. Turkey judgment of 9 June 1998 ( Reports 1998-IV, pp. 1512-13, §§ 25-29). A.     State of emergency 49.     Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 50.     Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25   October   1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. 51.     The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” B.     Constitutional provisions on administrative liability 52.     Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 53.     This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 54.     Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. C.     Criminal law and procedure 55.     The Turkish Criminal Code makes it a criminal offence –     to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); –     to issue threats (Article 191); –     to subject an individual to torture or ill-treatment (Articles 243 and 245); –     to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). 56.     For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. D.     Civil-law provisions 57.     Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article   41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and awards may be made for non-pecuniary or moral damage under Article 47. E.     Impact of Decree no. 285 58.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 59.     The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 50 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. FINAL SUBMISSIONS TO THE COURT 60.     The applicant requested the Court in his memorial to find that the respondent State was in violation of Articles 2, 5, 13 and 18 of the Convention on account of his son's “disappearance” and that he himself was a victim of a violation of Article 3. He further contended that the respondent State had failed to comply with its obligations under former Articles 25 and 28 § 1 (a). He requested the Court to award him just satisfaction under Article 41. 61.     The Government, for their part, argued in their memorial that the applicant's complaints were not substantiated by the evidence. In their opinion, the application had been brought with the aim of discrediting the security forces engaged in combating separatist terrorist violence. THE LAW I.     SCOPE OF THE CASE 62.     In his application to the Commission the applicant had, inter alia , alleged a violation of Article 3 of the Convention in respect of his son and of Article 14 taken in conjunction with Articles 2, 3 a