CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 avril 2001

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font-size:6.67pt; vertical-align:super; color:#0069d6 }     THIRD SECTION     CASE OF TANLI v. TURKEY     ( Application no. 26129/95 )     JUDGMENT This version was rectified under Article 81 of the Rules of Court on 28   August 2001   STRASBOURG   10 April 2001       FINAL   10/07/2001         In the case of Tanlı v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J.-P. C osta , President,   Mr   W. Fuhrmann ,   Mrs   F. Tulkens ,   Mr   K. J ungwiert ,   Sir   N icolas Bratza ,   Mr   K. T raja , judges ,   Mr   F. Gölcüklü , ad hoc judge , and   Mrs   S.   Dollé , Section Registrar , Having deliberated in private on 1 February 2000 and 20 March 2001, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   26129/95) 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, Mustafa Tanlı (“the applicant”), on 22 December 1994. 2.     The applicant was represented by Mr P. Leach, a solicitor working with the Kurdish Human Rights Project (KHRP) in London. The Turkish Government (“the Government”) were represented by their Agent, Mr   Kaleli, Deputy Permanent Representative at the Council of Europe. 3.     The applicant alleged that his son Mahmut Tanlı was tortured and killed in police custody. He invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention. 4.     The application was declared admissible by the Commission on 5   March 1996 and transmitted to the Court on 1 November 1999 in accordance with Article   5   §   3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date. 5.     The application was allocated to the Third 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 Gölcüklü to sit as an ad hoc judge in his place (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). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule   59   §   2 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The facts of the case, in particular concerning what happened to Mahmut Tanlı, the applicant’s son, during his detention in police custody from 27 to 28 June 1994 are in dispute between the parties. Having regard however to the length of time which had elapsed since those events and the nature of the documentary material submitted by the parties, the Court decided that a fact finding investigation, involving the hearing of witnesses, would not effectively assist in resolving the issues. It has proceeded to examine the applicant’s complaints on the basis of the written submissions and documents provided by the parties. 8.     The applicant’s and Government’s submissions concerning the facts are set out below (Sections A and B). The documents relating to the events and complaints are also summarised (Section C). A.     The applicant’s submissions on the facts 9.     The applicant, a Kurdish farmer born in 1933, lived in the village of Örtülü in the Doğubeyazit region in south-east Turkey. His son Mahmut was born in 1972. 10.     On 27 June 1994, gendarmes from the Doğubeyazit central gendarme station arrived at the village to carry out a search. The villagers were gathered outside the mosque. The applicant’s son conducted some of the gendarmes round the village as they searched. The gendarme commanders questioned the applicant about his son. The gendarmes left taking Mahmut Tanlı with them. At that time Mahmut Tanlı was in good health. 11.     On 28 June 1994, the applicant sought information from the authorities about his son. They refused to let him see his son and he left. 12.     On 29 June 1994, at about 5.30 a.m., a police car arrived at the applicant’s son’s house and took the applicant to the police station. There the security director informed him that his son had died of a heart attack while in custody. The applicant replied that his son did not suffer from any illness and that he had probably died from torture. He asked to speak to the public prosecutor, who came into the security director’s office and told the applicant that the cause of death was heart failure. The applicant maintained that his son’s death had been caused by torture. 13.     On 28 June 1994, an autopsy was carried out on the body by two doctors İhsan Özüu and Aydın Mazlum, one of whom was a paediatrician and the other worked in a health clinic at the Doğubeyazit Hospital. 14.     Mahmut Tanlı’s body was delivered to Ulusoy police station on 29   June 1994. The body was covered in bruises. There was also a large incision, which had been stitched, running down the left breast towards the upper abdomen. The police claimed that the incision was the result of an operation carried out when Mahmut Tanlı had had a heart attack. The police asked the applicant to sign a document. As he was afraid for his safety, the applicant signed without knowing what it was. 15.     Mahmut Tanlı had no criminal record and was not suspected of any criminal activities. He had no known or suspected heart disease before he was taken into custody or any other medical condition. The applicant was too afraid of the risk of reprisals to request or arrange a forensic examination of his son’s body. 16.     On 29 June 1994, the applicant made a statement to the Doğubeyazit branch of the Human Rights Association, reporting that his son’s body had shown marks and blows of force and that it was clear that he was killed under torture. The applicant’s brother made a statement in similar terms. 17.     On 29 June 1994, the applicant lodged a written petition with the Doğubeyazit chief public prosecutor concerning his son’s death, which he said was suspicious. He also complained of the inadequacy of the post mortem examination which had not been carried out by experts. He asked that his son’s body be referred to the Forensic Medical Institute. He later withdrew this request because he feared for his life. 18.     On 25 July 1994, the public prosecutor took statements from the muhtar and other villagers in Örtülü, which confirmed that Mahmut Tanlı had no previous medical problems. 19.     On 3 August 1994, proceedings were brought by the Agri Chief Public Prosecutor against the three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, who had been interrogating Mahmut Tanlı when he died. There were a series of adjournments in the proceedings. On 2   February 1995, the court ordered that the file be sent to the Forensic Medicine Institute for an opinion as to the cause of death. On 23 May 1995, it was noted that the Institute had ordered the exhumation of the body. Further adjournments followed awaiting the Institute’s report. On 14 May 1996, the court found that the cause of Mahmut Tanlı’s death could not be established and the three defendants were acquitted. B.     The Government’s submissions of the facts 20.     Ahmet Akkuş, a former member of the PKK, had informed the authorities that Mahmut Tanlı from Örtülü village was an armed militiaman in the PKK. His name was also mentioned on a list of militiamen found on a dead PKK member after a clash. Mahmut Tanlı was therefore suspected of having aided and abetted the PKK. 21.     On 27 June 1994, following a search of Örtülü, the Doğubeyazit gendarmes took Mahmut Tanlı into custody. They transferred him the same day to the Uluyol police station for questioning. He arrived at about 9.30   p.m. As the police officers responsible for questioning were in pursuit of other suspects, his questioning was postponed to the next day. 22.     On 28 June 1994 three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, started to question Mahmut Tanlı. He at first refused to admit any connection with the PKK, alleging that it was a slander. When details were put to him of his alleged connections, including Akkuş’s statement, he became excited and began stammering and trembling. He went pale, his voice changed and it was clear that he was developing a kind of shock. The questioning was stopped and a doctor sent for. The doctor arrived within 5 to 10 minutes. The doctor, Yunus Ağralı, found him to be having difficulty in breathing and that he was cyanotic. He ordered an ambulance. Within three minutes, his breathing and heart had stopped. He was given artificial respiration and cardiac massage for 20 minutes by the doctor, assisted by the police officers. This was to no avail. 23.     The public prosecutor, informed of the death, arrived soon after. The ambulance took the body to the Ağri State Hospital where an autopsy was carried out by İhsan Özlü and Aydın Mazlum, two doctors from the Doğubeyazit State Hospital, in the presence of the public prosecutor. According to the report, there was no trace of lesions, traumas or the use of force on the head and no fresh bruises. After the autopsy the public prosecutor suggested to the applicant that his son’s body should undergo a comprehensive forensic examination at the İstanbul Forensic Medicine Institute in order to dispel any doubts. The applicant initially agreed. After consulting other members of the family, however, he withdrew his consent. The public prosecutor handed over the body to be buried by the family. 24.     The public prosecutor, Halil Erdem, started an investigation into the allegation of the applicant that his son died as a result of torture in custody. He interviewed the three police officers. He also wrote to the Doğubeyazit Military Recruitment Office to obtain any military medical records. After a comprehensive investigation, an indictment was drawn up accusing the three police officers of an offence under Article 243 of the Turkish Penal Code. On 14 May 1996, having considered all the evidence, the Ağri Criminal Court acquitted the three police officers on grounds of lack of evidence. The decision of acquittal was upheld by the Court of Cassation on 11 November 1996. It also rejected the applicant’s appeal as he had failed to intervene in the proceedings against the police officers. C.     The documentary evidence submitted by the parties     1.     Documents submitted by the applicant in his application Statement of the applicant undated taken by the Human Rights Association (the “HRA”) 25.     The applicant stated that on 26 June 1994 the Doğubeyazit gendarmes station and central commanders carried out a search in Örtülü village. They asked about his son Mahmut who was walking around with the soldiers. His son had never committed an offence. His son had been killed under torture by teams in the Uluyol district of Doğubeyazit. He had made an application. He was going to take the body to the Forensic Medicine place. He did not as he was afraid for his life. He complained against those who killed his son, whose only offence was to be a Kurd. Statement of the applicant dated 29 June 1994 taken by the HRA 26.     This was also signed by the applicant’s uncle, Ahmet Tanlı. The applicant’s son had been taken into custody by the Doğubeyazit Security Directorate on 27 June 1994. The applicant stated that the police claimed that his son had died of a heart attack in custody. When he went there he saw marks of blows and force on his son. His body was covered in bruises and it was clear that he had been killed under torture. The uncle said that he had seen the whole of the body covered in bruises. There was no question of a heart attack. Photographs taken of the body of Mahmut Tanlı 27.     The applicant submitted four colour photographs of the body of Mahmut Tanlı taken before the burial. These showed the chest, face and forearms. The quality was poor. Red marks and grazes appeared to be visible on the arms, body and hips. A stitched incision ran from the neck across the chest to the stomach. 2.     Materials from the investigation file Statement of Ahmet Akkuş dated 7 February 1994 taken by police officers 28.     The suspect was from Örtülü village. In recounting his contacts and activities for the PKK, he named Mahmut Tanlı, son of Mustafa, as one of the villagers working for the PKK in the village. Scene of incident report dated 28 June 1994 29.     This document was signed by the public prosecutor and police superintendent Ali Gündoğdu, head of the Anti-Terror Department of the Doğubeyazit Security Directorate. It stated that at 10.30 p.m. on 28 June 1994 it had been reported on the telephone that Mahmut Tanlı, a suspected PKK member, had had an attack while under interrogation at the Uluyol police station. When he entered the police station, the public prosecutor found the body stretched out on the bench. There was nothing worthy of note at the scene. The body was dressed and there were no signs of blows. 30.     Ali Gündoğdu stated, having been sworn, that Mahmut Tanlı had been handed over to the police station by the gendarmes at about 9 to 9.30   p.m. on 27 June 1994. He had the necessary medical examination by the doctor. He looked perfectly well. They did not interrogate him that day. He and two other officers, Murat Demirpençe and Ökkeş Aybar, went to the room to interrogate him. He told him that his name had been mentioned in statements taken from Ahmet Akkuş and other PKK activists. Mahmut Tanlı denied that he was involved and claimed that it was slander. He became very agitated and began to tremble. As they realised that he was unwell, they immediately sent for a doctor at the hospital. By the time the doctor arrived, he had died from the sudden shock. They tried to revive him without success. The suspect had not been subject to any blows or violence. He died of shock. 31.     Dr Yunus Ağralı, from the Doğubeyazit State Hospital, stated that despite artificial respiration and cardiac massage the suspect had died. 32.     The decision was taken to transport the body to the Doğubeyazit State Hospital for an autopsy to be performed. Report of examination of body and autopsy 33.     No traces of blows or lesions were found on the head. There was a graze about 2 cm below the right collarbone on which a scab had formed – it looked about two days old. No traces of blows were found on the back, arms, hands or legs. Grazes about 2x2   cm were found on the left hip, which were probably about one week old. 34.     No traces of blows or violence were found on opening the thoracic cavity. The ribs and collarbones were intact, as were the bones of the chest. The heart tissue was seen to be pale in colour and a bruised area observed near the apex. Blood clotting was observed inside the blood vessels in the front section and clotted blood was detected inside heart. Black pigmented specks were found in the lungs. No abnormalities were found in the abdominal or cranial cavities. The cause of death was sudden heart failure resulting from an embolus in the blood vessels of the heart. As no further procedures were required, it was decided to issue the burial and transport licence. 35.     The autopsy had been carried out by Dr İhsan Özlü, a paediatrician at the Doğubeyazit State Hospital, and Dr Aydın Mazlum, employed in the Doğubeyazit Health Clinic. Undated petition by the applicant to the Doğubeyazit chief public prosecutor 36.     This stated that his son did not have any heart condition. It was suspicious and absurd to claim that he died of a heart attack. His son had just completed his military service without the slightest health problem during or before. As far as he gathered, no traces of violence had been found. However, other forms of torture (electric shock, medication, injections, cold water treatment) were possible which left no marks but could affect the heart. He requested that the body be sent to the Forensic Medicine Institute for a full report so that the responsible persons could be punished. Burial and transport licence dated 28 June 1994 37.     It had been determined that the deceased died of a heart attack and a decision was taken to issue a licence for the applicant to transport and bury the body. Note by the applicant dated 29 June 1994 38.     The applicant withdrew his request for a report by the Forensic Medicine Institute as there was no point in doing so. The note was taken down by the public prosecutor and signed by him and the applicant. Statement of Ali Gündoğdu dated 30 June 1994 taken by the Doğubeyazit public prosecutor 39.     Mahmut Tanlı, wanted as a suspected member of the PKK militia in Örtülü, was handed over to them by the gendarmes at about 9.30 p.m. on 27   June 1994. He was not interrogated then as they had other duties on search operations the next day. He, Murat Demirpençe and Ökkeş Akbar commenced questioning Mahmut Tanlı in the interrogation room on 28 June 1994 at about 9 p.m. They told him that his name had been mentioned in statements made by Ahmet Akkuş and that documents found on the bodies of PKK members killed in operations showed that he had carried out activities as a member of the armed militia of Örtülü under the assumed name of Agır. Mahmut Tanli suddenly became agitated, his voice began to tremble and, speaking in a quavering voice, he said that he did not have the assumed name of Agir and that they had been lying. The witness repeated that his name was mentioned in documents. He suddenly was unable to speak, his colour changed and he began to shake. He lost consciousness. The witness immediately informed the relevant authorities and asked them to send a doctor. They laid Mahmut Tanlı on the floor and uncovered his chest. His breathing was difficult. Ökkeş Aybar, who had knowledge of first aid and was attending a training course, began to give him heart massage. There was no change. They continued for about 10 minutes until the doctor arrived. Dr Yunus Ağrali immediately checked the patient’s pulse as he lay on the floor and listened to his heart and said that his condition was very serious. While he gave heart massage, he told the police officers to give artificial respiration. This went on for 10 minutes but there was no change in his condition and the doctor said that he had died. During the interrogation, they had not pushed, kicked or beaten the detainee in any way. The detainee’s death was not the result of any action on his part or on the part of his colleagues. Statement of Ökkeş Aybar dated 30 June 1994 taken by the Doğubeyazit public prosecutor 40.     The witness, a police officer in the Anti-Terror Branch of the Doğubeyazit Security Directorate, was with Superintendent Gündoğdu and Murat Demirpençe when they interrogated Mahmut Tanlı on 28 June 1994. They had not done so earlier due to other business. He did not carry out interrogations himself. They began to put questions to the detainee. Superintendent Gündogdu told the detainee that he was wanted by the Security Police and that they had information and documents about him. The detainee spoke calmly to begin with, but when Superintendent Gündogdu told him those things, his voice changed and he quavered and stammered. He suddenly became unwell and appeared to faint. They immediately laid him out on the floor and uncovered his chest as he was having difficulty breathing. The witness knew how to give first aid, having attended a course in first aid. Superintendent Gündogdu immediately informed the squads and the security headquarters of the situation and told an officer to take the HQ car and get a doctor urgently. Dr Yunus Ağrali arrived 10 minutes later and immediately checked the patient’s pulse and heart beat and said that his condition was serious. A couple of minutes after his arrival, the doctor said that the patient had died but that it was necessary to continue with heart massage and artificial respiration. He told them to give artificial respiration, while he carried out heart massage. However, it was to no avail and the doctor then said that the patient had died. While the detainee was in the security headquarters neither the witness nor his colleagues did anything to him which would have made him faint or caused his death. Statement of Murat Demirpençe dated 30 June 1994 taken by the Doğubeyazit public prosecutor 41.     The witness, a police officer in the Anti-Terror Branch of the Doğubeyazit Security Directorate, stated that at about 9 p.m. on 28 June 1994, Superintendent Ali Gündogdu, Ökkeş Aybar and himself went to the Uluyol police station to interrogate Mahmut Tanlı. They commenced the interrogation in the room reserved for detainees. They had not done so before as they had had other business. There were only the three officers in the interrogation room. Superintendent Ali Gündogdu first asked the detainee if he knew why he had been arrested. When he said that he did not, the Superintendent told him that he had been mentioned as a member of the armed militia in Örtülü village in the statements made by Ahmet Akkuş, and that his name had been found in notebooks found with the bodies of the 24 terrorists killed in clashes near Uzunkaya village on 9 May1994 identifying him as a member of the PKK armed militia in Örtülü village. Thereupon the detainee began to stammer and tremble. He went pale and suddenly collapsed. The Superintendent immediately reported the situation to the squads by radio and told them to get a doctor urgently. At the same time he told a police officer outside the room to take the car and fetch the doctor. Meanwhile, Ökkeş Aybar said that he knew how to give first aid and he laid the detainee out on the floor, uncovered his chest and gave him heart massage. Within ten minutes, the police officer returned with Dr Yunus Ağralı, who immediately checked the patient’s pulse, listened to his heart and said that his condition was serious. The doctor told police officer Cafer to go and get medicine. The doctor told them to give artificial respiration while he gave the heart massage. They continued like that for several minutes. Then the doctor checked his pulse and listened to his heart again and said that the patient had died, but that it was necessary to continue with heart massage and artificial respiration. They continued. Then the doctor said that the patient had died and there was nothing else to be done. They reported the situation to their security headquarters by radio. Neither he nor his colleagues did anything to the detainee which would have caused his death. Statement of Ahmet Gerez dated 30 June 1994 taken by the Doğubeyazit public prosecutor 42.     The witness, a lawyer, stated that the applicant and other members of the family came to his office telling him that the death of Mahmut Tanlı was suspicious and consulting him as to what could be done legally. He suggested that the body be sent to the Forensic Medicine Institute before burial. They agreed. He wrote a petition for them to the public prosecutor, which they presented together. The prosecutor said that it was possible and he would look into it. A couple of hours later, he phoned the witness and said that he would send the body and that a special coffin had to be prepared. He said that there was no budget for this at the prosecutors’ office but that assistance could be obtained through the District Governor’s office. The witness told the family that once they had obtained the zinc-lined coffin the public prosecutor would send the body to the Institute. The family went away and came back an hour later. They said that they were afraid that it would be very difficult to transport the body back and forth and that anything might happen. The witness went with them to the public prosecutors’ office and the applicant declared verbally to the public prosecutor that he was waiving any further examination. The public prosecutor said that it would be of great advantage in elucidating the facts, as well as from a legal point of view, if the body were sent. The applicant went away with his family and came back half an hour later. He repeated that they were definitely waiving sending the body to the Institute and were going to bury it. The public prosecutor told them that they could. The family took the burial licence, collected the body from the morgue and took it back to the village. Statement of Dr Yunuş Ağralı dated 30 June 1994 taken by the Doğubeyazit public prosecutor 43.     While the witness was on duty at the State Hospital, a police officer came and said that there was a patient in need of urgent treatment. Taken in a police car to the Uluyol police station, he found the patient stretched out on a bench. The pulse was 200/minute, the heartbeat irregular and breathing difficult. The patient’s situation was serious. He told a police officer to get some adrenaline atropine. The patient’s general appearance was somnolent. His breathing stopped. He could not hear any heartbeat. He immediately performed heart massage, telling the police officers to give artificial respiration at the same time. This went on for 5 to 10 minutes. There was no trace of any vital functions. The pupils were fairly dilated and there was no light reflex. He realised the patient was dead and stopped performing first aid as there was no point. However, since heart massage and artificial respiration can continue up to half an hour, he told the police officers to continue both. It was in vain. Statement of the applicant dated 1 July 1994 taken by the Doğubeyazit public prosecutor 44.     On 27 June 1994, the gendarmes came to the village, saying that they were looking for his son Mahmut. They took him away. On 28 June the applicant went to visit his son but they would not let him speak to him. On 29 June, when he was at his son Hasan’s house, a police car arrived at about 5.30 a.m. and took him to the office of the chief of police. The chief of police told him that his son had died. The applicant replied that his son had not been ill, that it was suspicious and that he could have been tortured to death. He asked to talk to the public prosecutor. The public prosecutor came into the office and said that he had carried out the autopsy procedure which showed no signs of blows or violence and that his son had died of heart failure. The applicant repeated that he could have been tortured to death. 45.     The applicant went to see the lawyer Ahmet Gerez who said that the body could be sent to the Forensic Medicine Institute. He drew up a petition for this and they took it to the public prosecutor. The prosecutor said that they needed a galvanised sheet metal coffin and asked them to have it made. Some money for this might be available from local funds. The applicant, family elders and relatives discussed the matter and decided to give up the idea as various difficulties could arise and they would be put under pressure. They told the prosecutor that. He said that it would be of great advantage to send the body to the Institute and asked them to reconsider. The family discussed it again and, accompanied by Ahmet Gerez, told the public prosecutor that they had decided not to send the body. The public prosecutor issued a burial licence and they buried the body in the village. 46.     The applicant wanted an investigation concerning the persons who caused his son’s death and that they should be punished. Statement of Nihat Acar dated 1 July 1994 taken by the Doğubeyazit public prosecutor 47.     The witness, a police officer, was sitting in the office of the chief of the Anti-Terror Branch when the chief, Ali Gündoğdu, as well as Ökkeş Aybar and Murat Demirpençe, went into the room for detainees. Gündoğdu asked for the statements of Ahmet Akkuş and took them with him. About 10 to 15 minutes later, he came back and said that Mahmut Tanlı had been taken ill. He asked the police driver present to get a doctor quickly. The witness went to the room to see the detainee. Ökkeş Aybar had uncovered the detainee’s chest and was trying to get him to breathe. Dr Ağralı arrived a short time later. He said that he needed heart massage and artificial respiration. He told the police driver to go to the pharmacist to get a drug but a few minutes later announced that the Mahmut Tanlı had died. The witness did not see or hear that Mahmut Tanlı had been subjected to blows or violence. Only a short time passed between his colleagues going into the room and coming out again. Statement of Cafer Yiğit dated 1 July 1994 taken by the public prosecutor 48.     The witness, a police driver at the Anti-Terror Branch of Doğubeyazit Security Directorate, was on duty that evening. Superintendent Gündoğdu and officers Aybar and Demirpençe arrived at Uluyol at about 9   p.m. The superintendent was carrying a file in his hand. They went into the room where Mahmut Tanlı was being held. The witness and other officers waited in the superintendent’s office. After about 10 minutes, the superintendant came out, saying that the detainee was ill and telling him to take a car to get a doctor. He drove to the hospital about 800-1000 metres away and brought back Dr Ağralı 5 to 10 minutes later. The doctor checked the detainee’s pulse and heart and said that the man needed heart massage and artificial respiration. He told the witness to fetch a drug from the chemist on night call. He was about to get into the car when the doctor said that it was no longer necessary as the detainee had died. He had not seen anyone at the station subject the detainee to any blows or violence. Statement of Ömer Güzel dated 1 July 1994 taken by the Doğubeyazit public prosecutor 49.     The witness, a police officer in the intelligence unit, arrived at Uluyol police station at about 9 p.m. He was having tea with others while three colleagues went to take a statement from Mahmut Tanlı. About 10 minutes later, Superintendent Gündoğdu came out and told the police driver to get a doctor urgently as the detainee had been taken ill. The witness did not go in the room. He heard the doctor tell the driver to get a drug and then not to bother. While he was there no-one subjected the detainee to blows or violence. Letter dated 1 July 1994 from the Doğubeyazit district gendarmes to the Doğubeyazit public prosecutor 50.     This stated, with reference to an incident report of 13 May 1994, that after an armed clash between the terrorists and security forces, 24 terrorists had been arrested or killed and a number of documents found. One of these, a list of PKK members, included Mahmut Tanlı’s name on page 45. Statements of Ali Temtek, Musa Sabaş, Mahmut Ardin and Mirsevdin Timur dated 25 July 1994 taken by Doğubeyazit public prosecutor 51.     These statements from villagers stated that Mahmut Tanlı had no health problems and that they had never seen or heard of him having any illness. Letter dated 27 July 1994 from the Doğubeyazit recruitment office to the Doğubeyazit public prosecutor 52.     Having examined the file of Mahmut Tanlı in response to the query as to whether he had suffered any health problems or been treated during his military service [1] , they could not find any medical reports about his health. Indictment dated 3 August 1994 drawn up by the Ağri public prosecutor for the Ağri Assize Court 53.     This listed the defendants Ali Gündoğdu, Ökkeş Aybar and Murat Demirpençe as charged with the offence of causing the death of Mahmut Tanlı by ill-treatment in their capacity as police officers, contrary to Article 243/2 of the Turkish Penal Code. The evidence was summarised, including the autopsy conclusion that death had been caused by heart failure and that there were no signs of blows or violence. It concluded that it was for the court to assess the fault or negligence of the defendants in possibly causing death – such as causing the death of the deceased, allegedly tortured, by frightening him. Statement of the applicant dated 6 June 1995 taken by the Doğubeyazit public prosecutor 54.     It was stated that the letter and enclosures from the Ministry of Justice (International Law and Foreign Relations Directorate) were read out to the applicant. 55.     The applicant stated that he had been informed that his son had died of a heart attack in police custody. The public prosecutor said that there had been an autopsy and that this had concluded that there had been a heart attack and that there were no marks of ill-treatment. The applicant wanted the body to go to the Forensic Medicine Institute for a more definite conclusion. The prosecutor accepted this and he left to obtain a coffin. For a couple of hours, he discussed the matter with the elders in the family and finally decided that it would be very burdensome to take the corpse there and back. They went to the prosecutor’s office and told him that they had given up the idea. The prosecutor said that, although the cause of death had been established, it would still be useful to send the body for a more thorough examination. They insisted however and took the body to the village. 56.     He confirmed his petition and signature on the petition and letter of authority. He wanted those who killed his son found and punished. 3.     Proceedings before the Ağrı Assize Court Minutes of the Ağri Assize Court dated 12 August 1994 57.     The court decided to summon the defendants to give evidence, to obtain any records of their previous convictions and to summon witnesses (the applicant, Dr Ağrali, Ahmet Gerez, Ali Temtek, Musa Sabaş, Mirsevdin Timur, Mahmut Ardin, Ömer Güzel, Cafer Yiğit, Nihat Açar and Ahmet Akkuş). Minutes of the Ağri Assize Court dated 22 September 1994 58.     The court heard evidence from a number of witnesses and two of the defendants. Murat Demirpençe did not attend. 59.     Ökkeş Aybar said that they had been questioning the deceased. When Superintendent Gündoğdu told him that he was wanted as a PKK militia man, the deceased’s speech and voice changed. His facial expression changed. As he said that he was unwell, they got him to lie down on a bench. Since he had difficulty breathing, they tried to help him and called a doctor. A few minutes after the doctor arrived, the doctor said that he had died. He had not tortured or ill-treated the deceased in any way. 60.     Ali Gündoğdu said that he told the deceased what the allegations were and the evidence that he was in the PKK militia. The deceased suddenly became unwell, his voice began to tremble and he had difficulty breathing. He ended the interrogation and they tried to ease his breathing. At the same time they contacted the hospital. A doctor came but after a couple of minutes said that the deceased had died. He denied the offence. 61.     The applicant said that his son had no health problems whatsoever and did his military service without problem. The police had not called him after they had killed his son. He thought that the doctor who carried out the autopsy was under pressure. The defendants had tortured his son to death. In answer to a question, he said that he had not allowed his son’s body to be sent to the Forensic Medicine Institute because he was afraid of reprisals. The public prosecutor had suggested it should be done but he was afraid that they would kill him on the way there. He rejected the autopsy report. He had heard that one of the doctor signatories had not in fact been there. It was impossible that his son had died of a heart attack. 62.     Mirsevdin Timur from Örtülü village confirmed that Mahmut Tanlı had had no health problems. 63.     Nihat Açar, a police officer, stated that he was outside the interrogation room when the defendants and deceased were in there. After a few minutes, Ali Gündoğdu came and said that that the deceased was unwell, sending the driver to fetch a doctor. When he entered the room, the police officers were trying to ease the deceased’s breathing. The doctor arrived about 5 minutes later. The deceased had no marks of blows on him and he did not see him being tortured. 64.     Mahmut Ardin, a villager, stated that Mahmut Tanlı had no health problems. He had been present when his body was being washed. There were marks of blows on his arms and bruises on the sides. He had not mentioned that in his previous statement as he was not asked. 65.     Cafer Yiğit, a police officer, stated that he had been on duty at the police station when the defendants went in to interrogate the deceased. A short while later, Ali Gündoğdu came out and said that the deceased was unwell. He went to find a doctor. That took about 5 to 10 minutes. He did not hear or see the deceased being tortured. They had been adjacent to the room and would have heard any sounds coming from there. 66.     Ömer Güzel, a police officer, had been outside the room where the deceased was being interrogated. He saw the defendants and deceased go in. After 10 minutes, Ali Gündoğdu came out and said that the deceased was unwell and asked for a doctor to be called. Cafer brought back a doctor after 5 to 10 minutes. He did not hear or see the defendants subject the deceased to any blows or violence. They would have been bound to hear if they had. 67.     Ali Temtek, the muhtar from Örtülü, had not been there and did not attend the funeral. 68.     The court decided inter alia to make a further request for the defendants’ records, to subpoena Murat Demirpençe, to send letters rogatory concerning Dr Ağralı and to subpoena Ahmet Gerez, Musa Savaş and Ahmut Akkuş. Minutes of the Ağri Assize Court dated 20 October 1994 69.     The defendant Murat Demirpençe attended. He stated that he had taken the deceased into the room used for interrogation. The deceased sat down on the bench. Superintendent Gündoğdu asked if he knew why he was there. When he said that he did not know, the superintendent told him why he had been brought. The deceased began to tremble. His voice changed, he went pale and began to feel unwell. The superintendent reported this on the radio. They sent Cafer to fetch a doctor, who arrived about 10 minutes later. The doctor treated him and sent Cafer for some medicine. He and his colleagues had definitely not tortured the deceased. 70.     The court adjourned to wait for the reply inter alia to the letters rogatory and subpoenas for the remaining witnesses. Minutes of the Ağri Assize Court dated 17 November 1994 71.     It was noted that Dr Ağralı, by reply to the letter rogatory, had maintained his previous statement. 72.     Ahmut Akkuş appeared. He denied the statement of 17 February 1994. He had been blindfolded and did not know what was in it. He did not know if the deceased was in the PKK or not. 73.     Musa Savaş, a villager, said that Mahmut Tanlı had no health problems and knew nothing else. 74.     The court decided inter alia to await the response to the subpoena for Ahmet Gerez and to re-issue letters rogatory to Dr Ağralı to put a question about the autopsy report. Minutes of the Ağri Assize Court dated 22 December 1994 75.     The court adjourned pending responses to pending matters. Minutes of the Ağri Assize Court dated 12 February 1995 76.     The court decided to dispense with hearing Ahmet Gerez, whose address had not been found, and to send the entire file to the Forensic Medicine Institute, requesting their opinion on the cause of death of the deceased and asking whether he had died as the result of torture, violence or blows. Minutes of the Ağri Assize Court dated 16 March and 13 April 1995 77.     The court adjourned pending the reply from the Forensic Medicine Institute. Minutes of the Ağri Assize Court dated 23 May 1995 78.     Pursuant to the report of the 1 st Specialist Committee of the Institute of Forensic Medicine, the court decided to order the exhumation of the body of Mahmut Tanlı. Minutes of the Ağri Assize Court dated 13 July, 14 September, 24 October and 28 November 1995 and 18 January, 29 February and 26 March 1996 79.     The court adjourned pending the report of the Forensic Medicine Institute. On 18 January 1996, noting the delay, it issued a writ to the prosecution department to request the opinion to be submitted. Report dated 13 March 1996 issued by the Ist Specialist Committee of the İstanbul Forensic Medicine Institute 80.     The report reviewed the evidence in the file. It stated that an autopsy had been performed on the body exhumed on 9 June 1995 and an autopsy report issued on 12 June 1995. That report indicated that the body was in an advanced state of putrefaction. The soft tissue in the head area had entirely disappeared; the radioscopy did not reveal any particular features in the skeletal system or any foreign metal objects; no lesions were found on the skull; 3-5 cm lesions were observed from the previous autopsy; the facial bones and teeth were intact; despite the putrefied and shrunken appearance of the heart, it could be seen that the ventricles had not been opened; advanced putrefaction made it impossible to assess the main veins or coronary arteries; no particular features could be distinguished in the lungs or abdomen; examination of the cerv