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

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA427F3F3 { width:21.1pt; text-indent:0pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FIRST SECTION     CASE OF AVŞAR v. TURKEY     (Application no. 25657/94)     JUDGMENT     STRASBOURG     10 July 2001         FINAL   27/03/2002         This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Avşar 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 3 May and 19 June 2001, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no.   25657/94) 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 Behçet Avşar (“the applicant”), on 10 October 1994. 2.     The applicant was represented by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agent, Mr   Münci Özmen. 3.     The applicant alleged, in particular, that his brother, Mehmet Şerif Avşar had been kidnapped and killed by village guards acting with the knowledge and under the auspices of the authorities. He invoked Articles 2, 3, 6, 10, 13 and 14 of the Convention. 4.     The application was declared admissible by the Commission on 14   October 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 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 R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     The applicant and the Government each filed observations on the merits (Rule 59 § 1), the former on 8 June and 11 August 2000 and the latter on 31 May and 4 August 2000. The applicant withdrew before the Court his complaint under Article 10 of the Convention. 7.     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 8.     This case concerns, principally, the events between 22 April and 7   May 1994, when Mehmet Şerif Avşar who had been taken away by armed men was found killed outside Diyarbakır. A criminal prosecution brought against five village guards and an ex-member of the PKK on 5 July 1994 culminated recently in a decision of the Diyarbakır Criminal Court no. 3 of 21 March 2000. 9.     The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 4 to 6 October 1999. They heard the following witnesses: Mr Mehmet Ali Avşar (brother of the deceased Mehmet Şerif Avşar); Mr Edip Avşar (cousin of the deceased); Mrs Şenal Sarihan, the lawyer representing the family at the criminal trial; Mr Süleyman Avşar, father of the deceased; Mr Ömer Güngör, Mr Fevzi Gökçen, Mr Zeyyat Akçil, Mr Yaşar Günbatı and Mr Aziz Erbey, the five village guards charged in relation to the kidnapping and murder of Mehmet Şerif Avşar; Mr Mehmet Mehmetoğlu, the ex-member of the PKK and confessor, charged in relation to the kidnapping and murder of Mehmet Şerif Avşar; Mr Kadir Metin, assistant commander of the Diyarbakır provincial gendarmerie command in 1994; Mr Mithat Gül, commander of the Diyarbakır provincial central district gendarmerie in 1994; Mr Şinasi Budaklı, intelligence operations NCO at the provincial central district gendarmerie in 1994; Mr Ümit Yüksel, public prosecutor in the criminal trial from 1998 to date; Mr Mustafa Atagün, public prosecutor who drew up the indictment for the criminal trial. 10.     The transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. Additionally, the Government have provided the decision of the Diyarbakır Criminal Court no. 3 of 21 March 1993 and other documentary materials requested by the Commission Delegates. This material is summarised below (Sections C and D), as are the submissions by the parties concerning the facts (Sections A and B). A.     The applicant’s submissions on the facts 11.     Between 1992-1994, a large number of disappearances and unexplained killings occurred in the south-east of Turkey in the context of counter-insurgency measures against the PKK. The province and city of Diyarbakır were particularly notorious for this phenomenon. The involvement of security forces and shadowy gangs linked to elements in the security forces was rumoured and supported, inter alia , by the findings of the Susurluk report. 12.     The Avşar family was headed by Süleyman Avşar, who had 16 children. His son Mehmet Şerif Avşar, born in 1966, was married with two children, Silan born in 1988 and Servan born in 1993. He, with his brother Mehmet Ali Avşar and another relative, owned a company which sold fertilisers to farmers. Other brothers included Abdulkerim Avşar, who had been arrested and charged with PKK offences and the applicant Behçet Avşar who had been convicted and sentenced to eight years’ imprisonment but had fled to Germany, where in 1994 he was European correspondent for the Özgür Gündem newspaper. 13.     On 21 April 1994, Lieutenant Altınoluk, commander of Hazro district gendarmerie instructed five village guards to travel to Diyarbakır to assist in the detention of four suspects. He gave them a car registered 21AF989. The car which was used by the guards to go to Diyarbakır and during their activities in Diyarbakır belonged to a person detained for PKK activities and it was given to the guards for their use, though it was later alleged that they had been instructed to deliver it to the gendarmerie in Saraykapı, Diyarbakır. On arrival at the Saraykapı gendarme station Captain Mithat Gül sent them to the Anti-Terror police to assist in the apprehension of three or four suspects. These suspects were brought back to the Saraykapı station, from where they were to be sent on to Hazro. 14.     On 22 April, at about 11.00 hours, the five village guards entered the fertiliser business premises run by the Avşar family in Diyarbakır. They started talking to Mehmet Şerif Avşar and stated that they were going to take him into custody. It was not apparent that they had come for Mehmet Şerif Avşar personally rather than acting with the intention merely of taking away one of the family. When their authority to take Mehmet Şerif Avşar was challenged, they spoke on a walkie-talkie and two village guards left to find a police officer. Mehmet Mehmetoğlu and a seventh person then arrived. The seventh man acted as if he was in charge and the village guards deferred to him. He was referred to as “ müdür ” (director), spoke proper Turkish and wore glasses. The seven men took Mehmet Şerif Avşar from the shop, placing him in a white Toros car. Members of the family (Abdullah and Sait Avşar) who followed the car saw it enter the district central gendarmerie, Saraykapı, which was about five minutes away. 15.     The family made complaints to the authorities, describing and giving, in some cases, the names of the men who had abducted Mehmet Şerif Avşar. 16.     The white car used in the abduction was found on 25 April 1994 in Hazro and returned to Diyarbakır, where it was handed over to the family of the owner. 17.     On 5 May 1994, an identification parade was held and four village guards were identified. The fifth village guard and Mehmet Mehmetoğlu were also detained. On 6 May 1994, Captain Mithat Gül, in charge of the investigation, carried out a reconstruction of the abduction at the family’s shop. The five guards admitted involvement in the abduction and Mehmet Mehmetoğlu admitted being present at the abduction but denied involvement in the incident. They denied the presence of any seventh person. 18.     On 7 May 1994, Ömer Güngör took the gendarme investigators to a disused building 19 km from Diyarbakır on the Diyarbakır-Silvan highway. Mehmet Şerif Avşar’s body was found there. He had been shot twice in the head. 19.     On 18 June 1994, there was an attempted abduction of two Avşar cousins in Bismil, Edip and Nedim. 20.     On 5 July 1994, the trial of the five village guards and Mehmet Mehmetoğlu opened in Diyarbakır Criminal Court no. 3. In testimony to the court, the village guards partially retracted their pre-trial statements and claimed that a seventh person was present and that he took charge of the detention of Mehmet Şerif Avşar. On several occasions during the trial (5   July, 24 August and 19 October) the village guards testified that they had acted under orders and that the killing and abduction of Mehmet Şerif Avşar had been carried out under the orders of Mehmet Mehmetoğlu and a gendarme special sergeant. 21.     From the beginning of the trial, the Avşar family suffered intimidation, resulting in them ultimately closing down their business and moving to Istanbul. The family’s lawyer Şenal Sarihan was also intimidated when she attended the trial in Diyarbakır. 22.     On 16 October 1994, Ömer Güngör identified the special sergeant as Gültekin Seçkin, from the 7 th Army corps infantry battalion, code-named Hoca. 23.     At the beginning of 1998, the Susurluk report was published, which named Gültekin Şütçü and Mehmet Mehmetoğlu in connection with the killing of Mehmet Şerif Avşar. It stated that, amongst various other activities, a gang including Alaattin Kanaat, Mehmet Mehmetoğlu, Ahmet Demir and a specialist sergeant Gültekin Şütçü were involved in extorting money and that they tried to extort money from Mehmet Şerif Avşar using threats against his brother Abdulkerim who was in detention suspected of PKK activities, killing him when he refused to pay. On 16 February 1998, the name Gültekin Şütçü was raised in the trial. On 18 June 1999, the family’s lawyer requested the court to enquire as whether Gültekin Şütçü had served in Diyarbakır in 1994. The court made a request for information to the army authorities. On 4 August 1999, the court received the response that Gültekin Şütçü left his duties in the region on 15 August 1994. The court referred the file to the public prosecutor for information to be gathered on Gültekin Şütçü and requested a statement be taken from him. On 20   September 1999, the lawyer for Ömer Güngör requested a confrontation between Gültekin Şütçü and her client. 24.     On 21 March 2000, the court convicted the six defendants. Ömer Güngör was convicted of murder and sentenced to 20 years’ imprisonment while the others were convicted of aiding and abetting and given six years and eight months’ imprisonment. Ömer Güngör, the prosecutor and the Avşar family appealed against the decision. On the same day, after being informed that Gültekin Şütçü had left his place of residence to go to Bulgaria, the court issued an arrest warrant. B.     The Government’s submissions on the facts 25.     The Government submit that it is premature to make any observation on the facts as firstly, the decision of the Diyarbakır Criminal Court of 21   March 1993 is subject to appeal to the Court of Cassation which has the power to require the first instance court to fill the gaps in the investigation or collect further evidence and, secondly, as the Diyarbakır court has in its judgment notified the offence allegedly committed by Gültekin Şütçü to the public prosecutor, who will now carry out an investigation. C.     The documentary evidence submitted by the parties 1.     Materials provided by the applicant Petition of 23 April 1994 from Mehmet Ali Avşar to the Diyarbakır Security Directorate and public prosecutor 26.     This stated that on 22 April 1994 five armed persons, who said they were village guards, came to the fertiliser business premises and asked to take away Mehmet Şerif Avşar. Two more persons came, who made themselves known as security officers. They took Mehmet Şerif Avşar away by force in a white Toros car 21AF989, with the car 21T1127 following behind. The petitioner and other brothers followed and saw that the cars entered the provincial central gendarme command. Abdullah Avşar saw the village guards inside the grounds of the gendarmerie. They had learned the names of two of the village guards – Ömer the lame and Ali. The family was concerned by the way Mehmet Şerif Avşar had been taken and the denials of the authorities that he had been taken into custody. He requested that the necessary proceedings be instituted in respect of the perpetrators. Petition of 25 April 1994 from Mehmet Ali Avşar to the Diyarbakır State Security Court (SSC) chief public prosecutor 27.     On 22 April 1994, at about 11.30 hours, five armed men came to their workplace to take away Mehmet Şerif Avşar. When they opposed this, the men stated that they were village guards. Two people came then, who claimed that they were security officers. The seven men took away Mehmet Şerif Avşar, getting into two cars 21AF989 and 21T1127. He and his brothers followed them to the provincial central gendarmerie. Abdullah Avşar identified the five village guards whom he saw in the grounds. The gendarme commander said that he would carry out the necessary legal procedures. The family was concerned by the way Mehmet Şerif Avşar had been taken and the denials of the authorities that he had been taken into custody. He requested that the necessary proceedings be instituted in respect of the perpetrators. Statement dated 28 April 1994 of Sait Avşar taken by Tim Otty and David Marshall of the Human Rights Committee of the English bar 28.     On 22 April, at about 11.00 hours, five men came to the shop, saying that they were policemen. They spoke to Mehmet Şerif Avşar, saying that he had to give a statement on behalf of his brother Abdulkerim who was in custody in Diyarbakır prison. Mehmet Şerif Avşar said that they had not given him their identification and that he would be happy to give his statement to a uniformed police officer. There was an argument between the men and the Avşar brothers. The men said that they would call the police station and as a result the brothers heard that they were village guards. Two more people appeared, claiming to be policemen, speaking Turkish and flashing cards. As the argument continued, one of the two men pulled a gun, and the others followed suit. As Mehmet Şerif Avşar believed that they were going to shoot, he agreed to go with them. The brothers saw five men and Mehmet Şerif Avşar get into a Renault car AF989, while the others got into a taxi 21T1127. The brothers jumped into their own car and followed to the Saraykapı gendarmerie, where they could not go in after the two cars. They could see three of the village guards outside the command building. They saw two of the men from the shop driving off in a blue car (06CDE35). A gendarme denied Mehmet Şerif Avşar was there and they could not get anyone to do anything. 29.     They returned to their shop and phoned the police who said that Mehmet Şerif Avşar had not been kidnapped but was at the gendarmerie. They made written petitions to the governor, State Security Court prosecutor and the judicial prosecutor. All denied that his brother was in custody. Someone called their house, saying that Mehmet Şerif Avşar had been killed and they were all next. They had given up hope of seeing their brother alive. Letter dated 20 June 1994 from the applicant to the Kurdish Human Rights Project, London 30.     On 18 June 1994, in Bismil, armed persons shot at his two cousins Edip and Nedim. Nedim managed to run away. Edip was caught, beaten and taken to the Bismil gendarme headquarters. Both the police and gendarmes denied to the family that he was in custody. Edip was released the next day from the gendarme headquarters. Shortly before the trial concerning the killing of his brother Mehmet Şerif Avşar, his family had been threatened by the Saraykapı gendarmes, who warned that if the family mentioned the gendarmes in court things would get worse for them. Petition dated 22 September 1994 from the lawyer Şenal Sarihan to the Ministry of Justice 31.     The petitioner was the lawyer acting for the family in the trial against six accused for the kidnapping and murder of Mehmet Şerif Avşar. She pointed out that, though the six accused had initially denied the involvement of the seventh person, during the trial on 5 July 1994 the five village guards had said that the incident had been carried out on the orders of Mehmet Mehmetoğlu and a gendarme officer known as “the director”. Their description of the seventh man corroborated her clients’ account. 32.     Captain Mithat Gül, who had much information about the incident had failed to attend the court under summons although he worked next door to the judicial buildings. She also complained that the three Avşar brothers had been subject to threats and had been forced to leave Diyarbakır. When she came to Diyarbakır to attend the trial, she was followed by a car with four armed plain clothed men inside. She had reported this to the chairman of the Diyarbakır bar. On 21 September 1993, as she passed through security control at the airport, a plain clothed man who had followed behind her issued a threat. 2.     Materials concerning the domestic investigation Protocol dated 21 April 1994 signed by First Lieutenant Altınoluk 33.     The car 21AF989, taken from Mehmet Koyun, accused of aiding the PKK and sent to Diyarbakır, was at Hazro. It was handed over to Yaşar Günbatı, Feyzi Gökçen, Zeyyat Akçil and Aziz Erbey, who were to deliver it to Mehmet Koyun’s family at Tellikaya village. The document was signed also by the four village guards. Protocol dated 23 April 1994 signed by First Lieutenant Altınoluk 34.     This stated that the car 21AF989 had been found in the garden of the Hazro gendarme command. On 21 April, it had been handed over to Yaşar Günbatı, Feyzi Gökçen, Aziz Erbey and Zeyyat Akçil to be taken to the Diyarbakır central gendarmerie. It was understood that they had been unable to contact anyone and after waiting for two days rejoined the convoy coming back to Hazro. As it was dark, they left the car in the garden. 35.     The document was also signed by the four village guards. Two protocols dated 25 April 1994 signed by gendarme officers 36.     The first recorded the transfer of car 21AF989 from a Hazro officer to an officer from the Diyarbakır central gendarmerie. The second recorded that the owner of the car Abdi Koyun received it from the gendarmerie in perfect condition. Statement dated 25 April 1994 of Abdullah Avşar taken by police officers 37.     On 22 April, at about 11.30 hours, three persons entered the business premises of the Avşar brothers from car 21AF989. They told Mehmet Şerif Avşar that they would take him away. Mehmet Ali told them that his brother would not go until the police arrived. Four more men entered, making a total of seven. The men pulled guns out when they opposed them. They took his brother, got into two cars and drove to court buildings. The brothers, who followed, told the gendarmes. One gendarme asked if he could identify the individuals and he went up to the building and pointed to three men, whom he learned were village guards. He identified a fourth man, getting out of a car in the yard. When the brothers approached the gendarme commander, he said that the village guards would be handed over to security officials. The gendarmes said however that Mehmet Şerif Avşar was not at the gendarmerie. Statement dated 25 April 1994 of Mehmet Ali Avşar taken by police officers 38.     On 22 April, at about 11.30 hours, three persons entered the business premises of the Avşar brothers from car 21AF989, wanting the brothers to make a statement at the justice buildings about his brother Abdulkerim who was involved with the PKK and in prison. He told them that this was not possible. The men said that they were village guards. He said no-one would go until the police arrived. Two more men entered, saying that they were police officers. When they objected, six men pulled their guns and said that they would take one of the brothers away, randomly pulling at Mehmet Şerif Avşar. Four men and Mehmet Şerif Avşar got into a car with a wireless and weapon inside. Three other men got into a second car. He remained in the shop while his other brothers followed the cars to Saraykapı, where the provincial central gendarmerie is at the entrance of the court building. His brothers reported immediately to gendarmes that four village guards, present at that time, had taken their brother. The gendarmes, a duty NCO and an NCO called Okan said that they would refer the village guards to security. His brothers left. They later found the names of two of the village guards, Ömer and Ali. Statement dated 29 April 1994 of Mehmet Sait Avşar taken by Captain Mithat Gül and Colonel Kadir Metin 39.     On 22 April, between 11.00 and 11.30 hours, he saw Mehmet Şerif Avşar arguing with someone in the shop. The man wanted him to go with him to give a statement. Şerif said he would only go with a police officer. The man went out to a white Toros car (21AF989), where there were two men, one of whom spoke to the police on the radio. In less than a minute, two men came into the shop, introducing themselves as police officers. This man said that one of the brothers had to come and make a statement for their brother Abdulkerim. Mehmet Ali protested that Abdulkerim was in prison and should make his own statement. A quarrel began and three more persons came in. The man whom he had described said ‘Shoot them’ and he and three men drew their guns. Then they took Mehmet Şerif Avşar into the Toros car. He described the men in the shop, stating that the one with the radio was called Ömer. The two men who had claimed to be security officers both spoke Turkish properly without a local accent; the taller one wore sunglasses. He wanted the people who abducted his brother to be found. Statement dated 29 April 1994 of Mehmet Ali Avşar taken by Captain Mithat Gül and Colonel Kadir Metin 40.     On 22 April, at about 11.15 hours, he saw three villagers enter their business premises. He asked what they wanted. A man said that his brother Abdulkerim had to make a statement at Saraykapı court building but as he was in prison one of his brothers should come to make a statement instead. The witness objected that they could not make a statement for Abdulkerim. The man claimed that they were security personnel. The witness asked him to show his ID and then said that he would phone the police. At this point, two persons came inside to join the three villagers. There were two men outside in a white Toros car 21AF989, who also came inside, making seven. Two of the men drew guns and forced the brothers against a wall, threatening to kill them. Mehmet Şerif Avşar then said that he would go with them. The seven men took his brother and left in two cars. The witness and others followed in their own car but could not find their brother. They went to the police station, gave their statements and after 10-15 minutes were told that Mehmet Şerif Avşar was with the gendarmes. They also gave a petition to the public prosecutor and to the gendarmes at Saraykapı. The gendarmes said that Mehmet Şerif Avşar was not there. When the brothers told this to the police, the police said that they must have misunderstood the matter. 41.     The witness gave detailed descriptions of the men in the shop. He described one of the men who claimed to be a security official as speaking very proper Turkish, clean-shaven with sunglasses. Statement dated 29 April 1994 of Abdullah Avşar taken by Captain Mithat Gül and Colonel Kadir Metin 42.     On 22 April, at about 11.30 hours, three persons in villagers’ clothes entered their shop. A few minutes later, four more men entered. The witness was outside in the kiosk and when he heard quarrelling, he went inside. The men were arguing with his elder brother Mehmet Ali. The witness did not understand what was going on. One of the men pulled a gun on him. The brothers were made to stand against the wall. Mehmet Şerif Avşar said that he would go with them. He and four men got into a white car 21AF989 and the others got into a taxi 21T1127. After about ten minutes, the brothers drove to the Saraykapı court building, which was where the men had told Mehmet Ali they were going. The men had said that they were security personnel. The brothers saw the taxi driver of the second car and he told them that he had taken the men to the Saraykapı court building. When they got there, they could not see their brother though they saw one of the abductors sitting by the fountain. They told this to a gendarme who said that it was not their business and that village guards were within the jurisdiction of the gendarmes. The witness told an NCO in front of the gendarmerie building that the abductors of his brothers were there – he could see three in the gendarmerie. The brothers were told to go and that if the persons had abducted their brother, they would be handed to the police. 43.     The witness gave a description of the men in the shop. One wore sunglasses and spoke Turkish properly without a local accent. They had seen one of the abductors leaving the gendarmerie in a blue or black car O6CD35 while they were waiting at the front of the gendarmerie. Statement dated 30 April 1994 of Ali Sancar taken by Captain Mithat Gül and Colonel Kadir Metin 44.     The witness, a village guard from Oyuklu village, was asked about the alleged abduction of Mehmet Şerif Avşar by village guard Ömer the lame and other Okuylu village guards. The witness denied any involvement. He said that Ömer could only walk with the help of crutches and was too disabled to be involved. Statement dated 30 April 1994 of Ali Güngör taken by Captain Mithat Gül and Colonel Kadir Metin 45.     The witness, the muhtar and head village guard of Oyuklu village, was asked about the alleged abduction of Mehmet Şerif Avşar by village guard Ömer the lame and other Okuylu village guards. The witness denied any involvement. He said that his son Ömer was disabled and certainly could not be involved. Identification report of 5 May 1994 signed inter alia by Mithat Gul and Şinasi Budaklı 46.     The report referred to seven armed persons, who claimed to be security personnel, having abducted Mehmet Şerif Avşar from his shop. The investigation indicated that among the perpetrators were village guards Aziz Erbey, Ömer Güngör, Feyzi Gökçen and Yaşar Günbatı. Twenty-two persons were gathered for an identification parade including these persons. The brothers Mehmet Sait, Mehmet Ali and Abdullah Avşar were present. 47.     Mehmet Ali identified Aziz Erbey, Feyzi Gökçen and Yaşar Günbatı. Abdullah identified Ömer Güngör, definitely, and Aziz Erbey, less certainly. Mehmet Sait identified Yaşar Günbatı. Request for extension of custody dated 6 May 1994 signed by Captain Mithat Gül 48.     This informed the public prosecutor that Aziz Erbey, Feyzi Gökçen, Ömer Güngör and Yaşar Günbatı had been identified and that Mehmet Mehmetoğlu and Zeyyat Akçil had also been detained on suspicion of involvement. It requested an extension in custody in order to complete the investigation. Reconstruction report dated 6 May 1994 accompanied by photographs 49.     This described a reconstruction of the incident at the Avşar business premises. Feyzi Gökçen, Yaşar Günbatı and Aziz Erbey entered the shop and said that on 22 April they had gone in and asked if this was the shop of Abdulkerim Avşar. They said that they were security personnel and that one of the brothers should come with them to make a statement at the Saraykapı court building in Abdulkerim’s place. The people in the shop did not believe them and would not go unless the police came. They said that they would bring the police. Meanwhile, Zeyyat Akçil and Ömer Güngör were outside by a car. They said that they never went inside the shop and showed where they waited. Mehmet Mehmetoğlu had come along from outside and said, “I am a policeman. Do what these people want.” As the brothers were not convinced, Ömer Güngör, Yaşar Günbatı, Mehmet Mehmetoğlu and Aziz Erbey pulled out their guns. They acted this out. Then the victim had said that he would come. Ömer Güngör and Mehmet Mehmetoğlu took him by the arms. The accused said that Ömer Güngör, Yaşar Günbatı and Zeyyat Akçil got into the car 21AF989 with the victim, while the other three accused got into a cab that was passing. 50.     The witnesses (Mehmet Ali, Mehmet Sait and Abdullah Avşar) were asked if they agreed with this description of the event. They said that there was another man, in addition to these six accused, whom they described, inter alia, as speaking Turkish without an accent. Statement dated 6 May 1994 by Abdi Koyun taken by Captain Mithat Gül 51.     The vehicle 21AF989 belonged to this witness. His son had driven it to Hazro on 12 April 1994 and had been apprehended and taken to Diyarbakır to be questioned. The car remained at Hazro gendarmerie. The witness took delivery of it from Hazro on 25 April 1994. Statement dated 7 May 1994 of Yaşar Günbatı taken by Captain Mithat Gül 52.     The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 53.     The suspect said that on 21 April 1994 he arrived in Diyarbakır with his friends Feyzi Gökçen, Ömer Güngör, Aziz Erbey and Zeyyat Akçil. They had the duty to deliver a car 21<A>F989 to the central gendarme command. Ömer Güngör joined them later. When they arrived, they helped anti-terror police apprehend four men wanted by Hazro gendarmerie. The village guards were to deliver them to Hazro. They spent the night in Saraykapı gendarmerie at a place used for village guards. On 22 April, they went to the shopping district in the car. Ömer Güngör pointed out the Avşar shop and said that Mehmet Şerif Avşar, brother of Abdulkerim, was in contact with the PKK and that they should apprehend him to take along with the others. They met Mehmet Mehmetoğlu at this point and he went along with them to the shop. 54.     Inside the shop, they introduced themselves as security officials. There were six of them, no-one else was with them. After taking Mehmet Şerif Avşar, the suspect, Ömer Güngör and Zeyyat Akçil went in the car 21<A>F989 towards the Saraykapı court buildings. Ömer Güngör told Mehmet Şerif Avşar they would hand him over to Hazro. Mehmet Şerif Avşar said that he knew where Ömer Güngör’s brother was buried and that he would show them. He said that he should not be handed over but that they could go together to Lice and look for Ömer Güngör’s brother. Ömer Güngör agreed. They picked up Feyzi Gökçen and Aziz Erbey who arrived in another car and they went off towards Lice. After a while, some of the guards, including this suspect, doubted that they had the authority to go to Lice and decided to go back. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings to fetch another car. They could not find one. When they went back to find Ömer Güngör and Mehmet Şerif Avşar at about 13.30 hours, they found Ömer Güngör crying by the roadside. He said that he had accidentally shot Mehmet Şerif Avşar. They all panicked. Ömer Güngör threw the gun into the river and they drove back to Diyarbakır. They left the four suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 55.     He had thought that they were going to hand Mehmet Şerif Avşar over to the gendarmes. He had not wanted the incident to end as it did. No official authority had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the unlicensed gun found at his address was his and used in the abduction. Statement dated 7 May 1994 of Feyzi Gökçen taken by Captain Mithat Gül 56.     The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 57.     The suspect said that on 21 April 1994 when he went to Hazro district gendarmerie to get permission to go to Diyarbakır for personal reasons, he met fellow village guards Yaşar Günbatı, Aziz Erbey and Zeyyat Akçil, who also wanted to go to Diyarbakır. The Hazro gendarme commander gave them permission and told them to deliver a car 21AF989. They met Ömer Güngör after taking the car and he joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They used it for shopping and also to help anti-terror police to apprehend four suspects (Fatih Çelebi, Yılmaz Eken, Hanefi Ekici and Çelebi Akkus), whom they were to take back to Hazro. That night they stayed in the Saraykapı guesthouse for village guards. On 22 April, they went to the shopping district in the car. Ömer Güngör pointed out the Avşar shop and said that Mehmet Şerif Avşar was in contact with the PKK and might know where the PKK had buried the body of his murdered elder brother. He suggested that they apprehend him and take him along with the others. Mehmet Mehmetoğlu, whom they knew before, came up and went with them to the shop. 58.     As the village guards did not know Mehmet Şerif Avşar, they said that one of the Avşar brothers had to come to Saraykapı to make a statement for their brother Abdulkerim. When they objected, the suspect went outside to call the police. However Mehmet Mehmetoğlu who had been outside, came in and tried to convince them. There was an argument. With threats and persuasion, they took Mehmet Şerif Avşar away. The suspect thought they were going to take him to be detained with the other four suspects. Mehmet Mehmetoğlu, Aziz Erbey and himself left in a taxi, while the others left in the white Toros car. Mehmet Mehmetoğlu got off at the Post Office. He and Aziz Erbey got out in front of the judiciary building, where the white car also arrived. Ömer Güngör said that Mehmet Şerif Avşar had agreed to go to Lice. They all got into the car and started towards Lice. After a while, some of the village guards doubted that they had the authority to go to Lice and recalled that they were to deliver the car. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör crying by the roadside. He said that he had accidentally shot Mehmet Şerif Avşar. They panicked and drove back to Diyarbakır. They left the four suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 59.     He had not wanted the incident to end as it did. No official authority had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the licensed gun found at his address was his and that he carried it during the abduction. Statement dated 7 May 1994 of Aziz Erbey taken by Captain Mithat Gül 60.     The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 61.     The suspect said that on 21 April 1994 when he went to Hazro district gendarmerie to get permission to go to Diyarbakır for personal reasons, he met fellow village guards Feyzi Gökçen, Yaşar Günbatı and Zeyyat Akçil, who also wanted to go to Diyarbakır. The Hazro gendarme commander gave them permission and told them to deliver a car 21AF989. They met Ömer Güngör after taking the car and he joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They went shopping and also helped anti-terror police to apprehend four suspects, whom they were to take back to Hazro. That night they stayed in the Saraykapı guesthouse for village guards, as well as guarding the suspects. On 22 April, they went to the shopping district again. Ömer Güngör pointed out the Avşar shop. He said that Mehmet Şerif Avşar was connected with the terrorists and might know where the PKK had buried the body of his murdered elder brother. He suggested that they apprehend him and send him for interrogation. Mehmet Mehmetoğlu, who had previously been in the PKK, came up and agreed to help them apprehend Mehmet Şerif Avşar. 62.     The six men – no-one else was involved – went to the shop, introducing themselves. As they did not know Mehmet Şerif Avşar, they said that any one of the brothers should come. Mehmet Mehmetoğlu, Feyzi Gökçen and himself left in a taxi, while the others left in the white Toros car. Mehmet Mehmetoğlu got off at the Post Office. He and Aziz Erbey got out in front of the judiciary building, where the white car also arrived. Ömer Güngör said that Mehmet Şerif Avşar had agreed to go to Lice to help to find his brother’s body. They all got into the car and started towards Lice. After a while, some of the village guards thought this might be dangerous and remembered that they had no permission to go to Lice. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör in a sad state. He said that he had accidentally shot Mehmet Şerif Avşar, who had attempted to run away and attack him. They panicked and drove back to Diyarbakır. They handed over the four suspects to the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 63.     He had thought Mehmet Şerif Avşar was going to be handed over for proceedings. No official had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the licensed gun found at his address was his and that he was carrying it during the abduction. Statement dated 7 May 1994 of Zeyyat Akçil taken by Captain Mithat Gül 64.     The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 65.     The suspect said that on 21 April 1994 he and fellow village guards Feyzi Gökçen, Yaşar Günbatı and Aziz Erbey were given a car by Hazro gendarme commander to deliver to Diyarbakır. Ömer Güngör joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They went shopping and also helped anti-terror police to apprehend four suspects, involved in incidents in Hazro district, whom they were to take back to Hazro. He named the four suspects. That night they stayed in the Saraykapı guesthouse for village guards. On 22 April, they went to the shopping district again. Ömer Güngör pointed out the Avşar shop. He said that Mehmet Şerif Avşar was connected with the terrorists and that if they apprehended him, he might be able to find the body of his brother. They met Mehmet Mehmetoğlu, whom they knew from Hazro and he came with them. They apprehended Mehmet Şerif Avşar as shown in the reconstruction. 66.     The suspect, Ömer Güngör and Yaşar Günbatı were in the Toros car with Mehmet Şerif Avşar. Ömer Güngör told Mehmet Şerif Avşar that he would be interrogated to disclose where his brother was buried. Mehmet Şerif Avşar proposed that they did not take him for interrogation and offered to help Ömer Güngör find the body in Lice. Ömer Güngör suggested that he should go to Lice with Mehmet Şerif Avşar. They arrived in front of the judiciary building, where Aziz Erbey and Feyzi Gökçen arrived in a taxi. They all got into the Toros car and started towards Lice. After a while, some of the village guards thought this might be dangerous and remembered that they had no permission to go to Lice. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör crying by the road. He said that he had accidentally shot Mehmet Şerif Avşar. They panicked and drove back to Diyarbakır. They handed over the four suspects to the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 67.     He had thought Mehmet Şerif Avşar was going to be handed over to the gendarmerie. No official authority had ordered them to apprehend Mehmet Şerif Avşar. Statement dated 7 May 1994