CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 novembre 2000

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TURKEY   ( Application no. 24396/94 )                     JUDGMENT     STRASBOURG   14 November 2000     This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of Taş v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. P alm , President ,   Mrs   W. T homassen,   Mr   L. Ferrari Bravo ,   Mr   C. B îrsan,   Mr   J. C asadevall ,   Mr   R. Maruste , judges ,   Mr   F. Gölcüklü , ad hoc judge, and   Mr   M.   O’Boyle , Section Registrar , Having deliberated in private on 18 October 2000, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No.   11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) [1] by the European Commission of Human Rights (“the Commission”) (Article   5   §   4 of Protocol No.   11 and former Articles   47 and   48 of the Convention). 2.     The case originated in an application (no.   24396/94) against 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 Beşir Taş (“the applicant”), on 7 June 1994. 3.     The applicant, who had been granted legal aid, was represented by Mr   K.   Boyle and Ms   F.   Hampson, lawyers practising in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agents, Mr A. Gündüz and Mr S. Alpaslan. 4.     The applicant alleged that his son Muhsin Taş had disappeared after being apprehended by the security forces in Cizre on 14 October 1993. He invoked Articles 2, 3, 5, 13, 14 and 18 of the Convention. 5.     The application was declared admissible by the Commission on 5   March 1996. In its report of 9 September 1999 (former Article 31 of the Convention), it expressed the opinion by 27 votes to 1 that there had been a violation of Article 2, unanimously that there had been no violation of Article 3 in respect of the applicant’s son, unanimously that there had been a violation of Article 3 in respect of the applicant himself, unanimously that there had been a violation of Article 5, unanimously that there had been a violation of Article 13 and unanimously that there had been no violations of Articles 14 and 18 of the Convention. The case was referred by the Commission to the Court on 23 October 1999. Before the Court, the applicant withdrew his complaint under Article 14 of the Convention. 6.     The application was allocated to the First Section of the Court (Rule   52   §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article   27   §   1 of the Convention) was constituted as provided in Rule   26   §   1 of the Rules of Court. Mr   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). 7.     The applicant and the Government each filed observations on the merits, on 4 and 3 April 2000 respectively. 8.     On 30 May 2000, having consulted the parties, the Chamber decided that no hearing on the merits was required (Rule   59   §   2 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The facts of the case, particularly concerning events from 14 October to 9 November 1993 when Muhsin Taş was held in custody by the security forces, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 7 to 8 May 1998. These included the applicant; Atilla Ceyhan, the public prosecutor at Cizre who signed the request for the extension in detention of Muhsin Taş; Dr   Zekeiye Palpas, doctor at Cizre State Hospital who treated Muhsin Taş for a bullet wound to the knee; Dr Ahmet Can who examined Muhsin Taş at the Şirnak Military Hospital; Major Cemal Temizöz, the Cizre district gendarme commander who apprehended Muhsin Taş; Sergeant Burhanettin Kiyak who was present at Muhsin Taş’s apprehension; Colonel Erol Tuna, who was in charge of transferring Muhsin Taş from Cizre to Şirnak; Sergeant-Major Kemal Kılıçlı, Sergeant Adem Akyüz and Sergeant Dursun Öztürk, who worked in Şirnak provincial gendarme interrogation department at the time of Muhsin Taş’s arrival at Şirnak; and Nedim Kaya, a “confessor”, who had previously joined the PKK and had later given himself up to the authorities. 10.     The Commission’s findings of fact are set out in its report of 9   September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). A.     The Commission’s findings of fact 11.     In October-November 1993, the Cizre region in the south-east corner of Turkey, close to the Iraq and Syrian borders, was the scene of intense terrorist activity. The town of Cizre was close to the Gabar mountains, where there were numerous PKK camps and shelters. The road between Cizre and Şirnak, the provincial centre, was subject to attack, necessitating military protection for convoys passing on the main road between the two towns. 12.     The district gendarme commander in Cizre at the time was Captain Temizöz. The provincial gendarme headquarters, commanded by a colonel, was located in Şirnak, as was the 23 rd gendarme border brigade. Though the two commands were distinct, it appeared from the evidence that the provincial gendarme command headed by a colonel was subordinate to the brigade command under a general. There was an interrogation centre at the provincial gendarme command, where the three interrogators Kemal Kılıçlı, Adem Akyuz and Dursun Özturk worked. 1.     Concerning the apprehension and detention of Muhsin Taş 13.     During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes early in the morning of 14   October 1993, Muhsin Taş was shot in the knee and taken into custody by gendarmes under Captain Temizöz’s command at about 05.00 hours. In the search report of 14 October 1993 detailing this incident, it was stated that Muhsin Taş had been found in possession of a Kalashnikov rifle, handgun and hand grenades. According to this report and the oral evidence of Captain Temizöz, Muhsin Taş immediately revealed to the gendarmes his name, that his code name was “Hanemir” and that he had come to Cizre to carry out actions for the PKK. Captain Temizöz considered that it was apparent from what Muhsin Taş told him that he was a commander. However, he did not recall that Taş made any offer to him to give assistance in finding PKK locations. Sergeant Burhanettin Kiyak, who was also on the scene at this time, heard Taş give his name and code name and say that he was from the mountain. He did not hear Taş volunteer any assistance to the security forces. 14.     After this initial exchange with the gendarmes at the scene of his capture, Muhsin Taş was taken to the Cizre State Hospital where he was admitted for treatment by Dr Palpas at 05.50 hours. Dr Palpas had no recollection of Muhsin Taş but was of assistance in deciphering his report for the Commission Delegates. This recorded that Muhsin Taş had an entry and exit wound to the knee, with injury to the front lower right knee joint. He was conscious and at that point his life was not in danger. Due to the lack of equipment and orthopaedic expertise, Dr Palpas recommended his transfer to Mardin. 15.     At a time unknown the same day, Muhsin Taş was handed over to Captain Erol Tuna, an officer from the Şirnak provincial gendarmerie who was in command of the convoys going between Cizre and Şirnak. 16.     The Commission requested, on numerous occasions, the records which indicated the places and times of Muhsin Taş’s detention following his apprehension. No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to the Şirnak convoy. Captain Temizöz thought that Taş must have been entered in the Cizre district gendarme records as he was detained pursuant to the authority of the Cizre public prosecutor. Records provided by the Government from Cizre district gendarmerie contained no entry concerning Muhsin Taş. 17.     The decision to transfer Muhsin Taş to Şirnak was taken by the Şirnak 23 rd gendarme border brigade. Captain Temizöz had reported the capture of Taş to the brigade command and they requested his transfer to Şirnak. The transfer record of 14   October 1993 also referred to the brigade’s request. The reason for the transfer was not expressed in that document. Captain Temizöz considered that Taş would have had to go to Şirnak as he was a commander with information about the Gabar mountains and it was the forces in Şirnak who conducted operations in that region. 18.     The only record relating to Muhsin Taş’s detention after his arrival in Şirnak was an entry in the Şirnak Military Hospital polyclinic record. This was dated 14 October 1993, giving no time. Neither Captain Erol Tuna nor the doctor who gave treatment had any recollection of the incident, so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered. Dr Can, who treated Muhsin Taş, considered on the basis of his entry in the hospital record that he would have treated the injury, placing a long leg splint or supervising an assistant in doing so. He was of the opinion that Taş would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessary. The follow up treatment which he stated would be necessary – antibiotics, which would most likely have been handed to the patient on the spot, and the requirement for the wound to be dressed at three day intervals – did not require continuous hospital care. 19.     Of the three officers identified by the Government as having interrogated Muhsin Taş at the Şirnak provincial gendarme headquarters – Kemal Kılıçlı, Adem Akyüz and Dursun Öztürk – only one, Adem Akyüz, remembered interrogating Muhsin Taş. No logs or records were provided by the Government from the interrogation department recording Muhsin Taş’s interrogation, nor the interrogation notes which the witnesses said would have been taken. The Government denied that these documents existed. The only source of information about the interrogation of Muhsin Taş therefore was the oral evidence of Adem Akyüz and the brief comments which appeared in various gendarme reports following Taş’s alleged escape. 20.     According to Adem Akyüz, he interviewed Muhsin Taş on one occasion, while Muhsin Taş was confined to bed either in the hospital or infirmary. He remembered taking notes which they gave to their superiors. He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing locations. The Delegates had also requested the infirmary records concerning Muhsin Taş’s presence and treatment. The Government stated the infirmary records contained no information about Muhsin Taş. 21.     Though the Commission did not exclude that the hospital or infirmary records were inaccurate, it noted that in its experience it had found the records made by doctors to be generally reliable, if sometimes brief, whereas the inaccuracy of, and omissions from, gendarme records had been the subject of adverse findings in a number of cases. Further, it found the testimony of the interrogation officers to be unconvincing, giving the impression of being selective or piecemeal accounts. From their evidence, it was generally expected for the same officers to follow through a suspect’s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor for judicial procedures to be followed. Adem Akyüz had no explanation however for why he only visited Muhsin Taş once. While Muhsin Taş’s removal from the interrogation process must have been unexpected or unusual, he apparently knew nothing about it – nor about Taş’s apparent involvement in an operation to locate shelters or his apparent escape afterwards. The Commission was not persuaded that a suspect in respect of whom the provincial gendarmerie had commenced interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation. Furthermore, a single, apparently brief interrogation did not account for the two fifteen-day extended custody periods which were requested by the Cizre district gendarmerie on behalf of those holding Muhsin Taş. 22.     The evidence of the interrogation officers was therefore unable to provide any approximate date as to when any interrogation took place or any reliable basis on which to reach any finding as to where Muhsin Taş was held after his examination by Dr Can. Though his wound should have been dressed every three days and Dr Can would have expected himself, or another doctor, to check the patient’s state after a week or ten days, there is no evidence that he received any follow-up medical care after 14 October 1993. 23.     A custody period of 15 days from the date of apprehension was granted by the Cizre public prosecutor at the request of the district gendarme commander. A further period of 15 days was granted by him on 29 October 1993 on the request of the district gendarmerie. 2.     Concerning the alleged escape of Muhsin Taş 24.     According to a hand written incident report dated 9 November 1993, 16.30 hours, signed by a gendarme captain group commander Şeyhmuz Kara and gendarme first lieutenants Burak Bugra and Tarik Göktürk, both of whom were team commanders, Muhsin Taş escaped from the security forces while assisting them on an operation in the Gabar mountains to find PKK shelters. 25.     According to the evidence of the doctors who treated him, it was probable that Muhsin Taş was not rendered completely immobile by the injury to his knee. With the long leg splint, he would have been able to hobble, with a crutch or assistance. In the early days after the injury, he would have been in considerable pain. By 9 November 1993, a period of 25 days after his injury, he would have been expected to have made some recovery. Dr Can, the orthopaedics expert, estimated that the splint would have had to stay on for three to six weeks and that a patient might be able to run as well as walk within the same range of time. He pointed out that with sufficient motivation a person could run, notwithstanding a high level of pain. In the absence of medical notes, the Commission was unable to reach any firm conclusions as to what state of fitness Muhsin Taş would have been in on 9 November 1993. It found it highly unlikely however that he was fully fit or able to walk or run normally at this date. 26.     The Commission found that the incident report of 9 November 1993 was an unreliable document. The report stated that Muhsin Taş ran off after a clash broke out, under cover of the fading light, precipitation and rocky terrain. It did not mention how many gendarmes were involved in the operation, how many were guarding the suspect and whether – and if not, why not – the suspect was restrained or handcuffed in some way. No details were given of the steps taken to recover the suspect. The times given on the report were particularly implausible. It was stated that the clash broke out at 16.15 hours following which there was a sequence of events – the escape, the discovery of the escape, an unsuccessful search, the monitoring of various radio conversations between terrorist – culminating in the drawing of the report and its signing by the three officers at 16.30 hours. 27.     In these circumstances, the Commission considered that it was of crucial importance that the three signatories of the report gave explanations of the document and what they in fact saw and did. The Delegates in requesting the Government’s assistance in summoning them to give evidence emphasised that the Government should at the same time identify the officers who personally witnessed Muhsin Taş’s escape as the Commission had experience that the signatories of reports did not necessarily have any direct knowledge of the contents. At the taking of evidence in May 1998, the Government Agent informed the Delegates that they had been unable to find three officers who signed the report and that they had recently received information that the names used were code names. In reply to the Delegates’ request for steps be taken to identify the officers who used these code names in November 1993, the Government stated that it was not possible to identify the three officers. The Delegates also requested the other operation records or details which could cast light on the incident. The Government stated that no other records existed. 28.     No document was provided recording authorisation for the transfer of Muhsin Taş to any particular operational command at Şirnak. In particular, there was no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere. It had not been established by the written or oral evidence that Muhsin Taş had in fact offered to show locations during his interrogation. 29.     The Government relied principally on the evidence of two ex-PKK members or “confessors” – the written statements taken from Nedim Kaya and Süleyman Fidan, and the oral evidence of Nedim Kaya – as substantiating the allegation that Muhsin Taş had escaped and rejoined the PKK in the Gabar mountains on 9 November 1993. The Commission however did not find this material to be reliable or, on certain crucial aspects, credible. It referred, inter alia , to the lack of any explanation as to how the two confessors came to be identified at the same time as persons with relevant information about Muhsin Taş; that Nedim Kaya’s and Süleyman Fidan’s statements of 4 November 1995 referred to injuries suffered by Taş in 1992 and made no reference to the injury which he had received in October 1993; and the fact that Nedim Kaya’s statement of 12   January 1996 stated that he joined the PKK in November 1993 becoming a friend of Muhsin Taş before his capture in Cizre, though that latter event occurred on 14 October 1993. The Commission also found that Nedim Kaya’s oral evidence was inconsistent and unconvincing. His story changed under questioning and gave the impression of embroidery. It was not reconciliable with uncontroverted facts. For example, Nedim Kaya was insistent that he spent a fifteen day training course with Muhsin Taş after he joined the PKK in October, which explanation formed the basis for his claim of forming a close friendship with Taş, whereas Muhsin Taş was apprehended in Cizre in the early hours of 14 October 1993. The Commission were accordingly not satisfied that he had seen Muhsin Taş after 9 November 1993 as asserted. It concluded that the Government’s claim that Muhsin Taş escaped while assisting the security forces on an operation was not substantiated by the evidence given and could not be regarded as established as a fact or a significant probability. There was accordingly no explanation for what happened to Muhsin Taş after he was treated by Dr Can at Şirnak Military Hospital on 14 October 1993. 3.     Concerning the domestic proceedings and investigations 30.     The applicant was informed on 15 October 1993 that his son had been apprehended and injured in a clash in Cizre. Arriving in Cizre on 17 or 18 October, he went to see the public prosecutor immediately. He was told to come back after the fifteen day extended custody period. Meanwhile, the applicant sought to visit, or discover further information, about his injured son by approaching the gendarmerie in Şirnak and Cizre but was turned away. On the expiry of the fifteen day period, at the end of October or beginning of November, he returned to the public prosecutor handing in a written petition. The public prosecutor signed the petition and he took it to the district gendarme commander who referred him back to the public prosecutor. During the second fifteen day period to end, the applicant returned to the public prosecutor repeatedly seeking for news and on one occasion, the public prosecutor contacted the district gendarmerie by telephone. 31.     On the expiry of the second period, the applicant returned to the public prosecutor. On 18 November 1993, he handed in a further written petition which stated that he had no news although a week had passed from the end of the second custody period. He requested information and stated that he feared for his son’s life. On or about this date, the public prosecutor informed him that it was reported that his son had escaped. The written report from the district gendarmerie to the prosecutor was dated 19   November 1993 but it was possible that the information was received by the public prosecutor prior to this date. The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed. 32.     The public prosecutor at Cizre took no steps to investigate the alleged escape of Muhsin Taş while in custody in reaction either to the applicant’s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape. On 13   December 1993, the public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file concerning Muhsin Taş as a suspected member of the PKK to the Diyarbakır State Security Court (SSC) public prosecutor.   It stated as an apparent fact that he had escaped to rejoin the PKK. The steps taken by the SSC prosecutor were related to investigating his membership of PKK and not related to investigating his disappearance. 33.     The applicant returned to Cizre in January 1994 to see the public prosecutor, who informed him that the case had been transferred to Diyarbakır. 34.     Following the communication of the case to the respondent Government by the Commission in October 1994, it appears that an investigation was briefly pursued by the Cizre public prosecutor (file no.   1995/653) This was limited to an enquiry dated 27 November 1995 to the Cizre district gendarme command for the names of the officers who signed the report of 9 November 1993 to be identified. Following a letter dated 29 November 1995 from the Cizre district gendarmes which stated that enquiries should be addressed to the Şirnak gendarme border regiment command, and that the special operations group command were responsible, the Cizre public prosecutor declined jurisdiction in a decision of 7   December 1995, transferring his file to the Şirnak public prosecutor. 35.     The Şirnak public prosecutor had meanwhile commenced an investigation (prel. 1995/665) under the prompting of Ankara. At this stage, the following steps were taken: –     on 10 December 1995, a request was made to the Şirnak 23 rd gendarme border regiment for the identities of the personnel of the special operations group involved in the operation of 9   November 1993 to be identified; –     on 13 December 1995, a statement was taken from the applicant on 13   December 1995 by the Kastamonu public prosecutor; –     on 12 January 1996, a statement was taken from Nedim Kaya by a public prosecutor; –     on 4 April and 25 May 1996, an urgent reminder was sent requiring a response to the above request of 10 December 1995; –     on 27 May 1996, a request for information about the identities of personnel was sent to Şirnak provincial gendarme command who replied on 29 May 1996 that it was the Special Operations Group Command who had taken Muhsin Taş; –     following receipt of a letter on 14 June 1996, in which the Special Operations Group command denied knowledge of the three names on the report of 9 November 1993 but named three officers (Ozaricanlı, Tümöz and Çetin) as being group commander and team commanders at that time, a request was made for those three officers to be asked a list of four specific questions, namely, about whether they were serving in the Special Operations Group Command at the time, whether they or the Special Operations Group Command received Muhsin Taş, whether they knew the names on the report and where it would be possible to identify the names on the report; –     on 8 July 1996, a request was made of the Cizre public prosecutor for the transfer record concerning Muhsin Taş. 36.     On 28 August 1996, the Şirnak public prosecutor issued a decision of withdrawal of jurisdiction, stating that it had not been possible to identify the officers involved in the alleged incident. The decision concluded that the matter should be investigated under the Official Conduct Act as it concerned special operations teams and that the file was to be transferred to the Şirnak provincial administrative council. 37.     The investigation was taken over by the Administrative Council who by letter of 3   September 1996 appointed Major Doğan, a gendarme officer from the provincial gendarme command to investigate the allegations that Muhsin Taş had been killed and to identify the perpetrators. This stage of the investigation lasted until February 1998. During this period, Major Doğan again asked the Special Operations Group Command specifically to identify the three persons who signed the report. He received the reply on 7   February 1997 that the names were not found in the records and that the records had been burned in 1993 with the result that the names of the personnel who were on operation in Gabar at the time could not be determined. Major Doğan requested medical records and transfer details about Muhsin Taş from the Cizre district gendarmerie. Via a rogatory request, he obtained statements from the applicant, Nedim Kaya, Captain Erol Tuna and the three officers previously named as having served in Şirnak special operations at the relevant time. They stated, inter alia , that Muhsin Taş had not been delivered to them and that code names were not permitted, though Captain Ozaricanlı was noted as recognising his signature on the incident report of 9 November 1993. On the basis of this information, Major Doğan found in his report of 12 February 1998, that it was established that Muhsin Taş had been taken to Gabar mountain to locate PKK shelters by teams from the 23rd gendarme border brigade special operations group command and that he had escaped on 9 November 1993. The statements of Nedim Kaya and Süleyman Fidan were referred to as supporting this. The report noted that there were no interrogation records concerning Muhsin Taş though it appeared that Captain Erol Tuna had transferred him to the Interrogation Unit. The report concluded that it was not possible to establish the identities of the suspects, the identities of the persons of the report not being ascertainable due to changes in military personnel, the failure to keep records properly and the destruction of records. In those circumstances, a prosecution could not be brought. The provincial governor accepted this conclusion and the proceedings were terminated. 38.     The investigation documents concerning the enquiries by the Şirnak public prosecutor and Major Doğan, the gendarme officer appointed by the Şirnak Provincial Administrative Council were submitted to the Commission by the Government on 11 August 1998, after the Commission had closed the taking of evidence and invited the parties to submit their oral observations. These documents included information about the possible identification of special operations group officers involved in the Muhsin Taş incident. Though the names of three officers were known to the investigating authorities in 1996, the Government did not bring them to the attention of the Commission or its Delegates who could have taken the decision to call them to give oral evidence. The Commission found that in failing to provide it with this information during the taking of evidence, the Government 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 of the case. B.     The Government’s submissions on the facts 39.     Muhsin Taş was apprehended on 14 October 1993 by the security forces during an armed clash with PKK terrorists. During interrogation, Mushin Taş said that he knew certain hideouts used by PKK members in the Gabar mountains. Upon this information, a search team went to the mountains with Muhsin Taş. This area was used frequently by the PKK. A clash started between the PKK and the security personnel. Benefiting from this clash, Muhsin Taş escaped and was lost immediately in the near darkness. He was not handcuffed and knew the area very well. It was very probable that he re-joined the PKK following his escape. He would have been able to run even though his leg was injured. 40.     As Muhsin Taş escaped from the security forces, the Government stated that it was not for them to prove that he is still alive and they cannot give an explanation for his whereabouts. II.     RELEVANT DOMESTIC LAW AND PRACTICE 41.     The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. A.     Criminal prosecutions 42.     Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants). 43.     The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article   152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. 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 there should be a prosecution (Article 153 of the Code of Criminal Procedure). 44.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. 45.     If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants (sometimes referred to as the Official Conduct Act), which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 46.     By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor’s authority. 47.     If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article   89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender’s superior. B.     Civil and administrative liability arising out of criminal offences 48.     Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 49.     Article 125 §§ 1 and 7 of the Constitution provides: “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.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 50.     Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 51.     Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles   41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article   50 of the Code of Obligations). THE LAW I.     the court’s assessment of the facts 52.     The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles   28 §   1 and 31 of the Convention). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1218, § 78). 53.     The Government argued that the Commission gave undue weight to the evidence of the applicant. They also criticised the Commission for assessing the evidence of the official witnesses and confessors as unreliable and even incredible. The Court observes that the Government’s submissions concerning these witnesses were taken into consideration by the Commission in its report, which approached its task of assessing the evidence with the requisite caution, giving detailed consideration to the elements which supported the applicant’s claims and those which cast doubt on their credibility. It does not find that the criticisms made by the Government raise any matter of substance which might warrant the exercise of its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission (see paragraphs 11-38 above). 54.     In addition to the difficulties inevitably arising from a fact-finding exercise of this nature, the Court recalls that the Commission found that the Government had failed to provide the Commission’s delegates with the information about the domestic investigation into the disappearance, including information about special operation officers who had been identified as possibly involved in the incident. The Court notes that it is of the utmost importance for the effective operation of the system of individual petition instituted under former Article   25 of the Convention (now replaced by Article 34) not only that applicants or potential applicants are able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities but also that States furnish all necessary facilities to enable a proper and effective examination of applications (see former Article 28 §   1   (a) of the Convention, which concerned the fact-finding responsibility of the Commission, now replaced by Article 38 of the Convention as concerns the Court’s procedures). The Court notes the lack of explanation given by the Government with regard to the late submission of the information which had been requested repeatedly by the Commission (see paragraphs 19, 25, 26, 29, 181-3, 189 and 195 of the Commission’s report). This delay deprived the Commission of the opportunity of summoning witnesses with potentially significant evidence. Consequently, it confirms the finding, reached by the Commission in its report, that in this case the Government fell short of their obligations under former Article 28 § 1 (a) to furnish all necessary facilities to the Commission in its task of establishing the facts. II.     ALLEGED VIOLATIONS OF ARTICLE 2 oF THE CONVENTION 55.     The applicant alleged that the authorities had failed to provide a plausible explanation for his son’s disappearance in custody in breach of their obligation to protect his right to life and that it could be presumed that he was dead in circumstances for which the authorities were liable. He also complained that no effective investigation had been conducted into the circumstances of the murder. He invoked Article 2 of the Convention, which provides: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” 56.     The Government disputed those allegations. The Commission expressed the opinion that Article 2 had been infringed on the ground that Muhsin Taş who had disappeared while in detention must be presumed to have died and that the authorities had failed to carry out an adequate investigation into the circumstances surrounding his death. A.     The parties’ submissions 57.     The applicant submitted that, where a person had been detained under the control of the authorities, the State was required to produce the detainee alive or provide a plausible explanation   as to how he or she met their death, failing which there was a violation of the obligation to protect the right to life. As his son had been victim of an unacknowledged detention which was a life-threatening situation for which the State was responsible, their refusal or inability to provide a substantiated account of what happened to his son disclosed a violation of their obligation to protect his right to life. 58.     The applicant also submitted that the State must be held responsible for his death itself, either since the circumstances disclosed a real likelihood that death had resulted from the unacknowledged detention or since there was sufficient circumstantial evidence to conclude that his son was dead. He referred inter alia to the findings of the European Commission for the Prevention of Torture (CPT) that torture in detention was a common occurrence, to the number of involuntary disappearances at this time (44   reported in 1993) and to the lack of effective investigations into such disappearances. In addition, his son had not been recorded in custody registers, there was no documentary evidence relating to what happened to him in custody, the Government had been unable to identify the three officers who signed the highly implausible report alleging that his son had escaped and the evidence of the confessors relied on by the Government to support the report was riddled with inconsistencies and contradictions. 59.     Finally, the applicant submitted, agreeing with the Commission’s findings, that the authorities had failed to carry out a prompt, adequate or effective investigation into his son’s death. The Cizre public prosecutor had not reacted to the applicant’s expres