CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 novembre 2001

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Pellonpää ,   Mr   A. Pastor Ridruejo ,   Mrs   E. Palm ,   Mr   M. Fischbach ,   Mr   J. Casadevall , judges ,   Mr   F. Gölcüklü , ad hoc judge , and Mr M. O’ Boyle , Section Registrar , Having regard to the application no. 36088/97, introduced with the European Commission of Human Rights on 6 December 1996 and registered on 14 May 1997, and application no. 38417/97 introduced with the European Commission of Human Rights on 25 August 1997 and registered on 4 November 1997, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the Commission’s decision of 7 September 1998 to communicate application no. 36088/97 and the Court’s decision of 26   January 1999 to communicate application no. 38417/97, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Mehmet Nuri Terzi, Mr Bülent Kaptan, Mr Muhterem Özsüer and Mr Yenal Özsüer, lawyers practising in İzmir. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. At the time of the events at issue, the applicants resided in Çalpınar, a village attached to the district of Midyat in the Mardin province of south-east Turkey.   On 21 March 1992 a group of between 1000 and 1500 villagers, including the Çalpınar residents, demonstrated during the Nevroz celebrations by marching towards the village of Kutlubey. When the villagers arrived in the vicinity of Hazzaze, the gendarmes and the village guards from Kutlubey intervened and fired warning shots in order to disperse the crowd. Some villagers were arrested and interrogated. The applicants, with the exception of İbrahim Akan, allege that they did not participate in the demonstration. On 20 April 1992, at around 7 a.m., a group of villagers set out from the village of Çalpınar for the district of Midyat by minibus and truck. On the way to Midyat, an armed group of village guards stopped the villagers one kilometre away from the village of Çalpınar. They forced the villagers to get out of the vehicles one by one and ordered them to line up near the road. The guards fired at the villagers and fled. According to the applicants, the armed group consisted of village guards.   In an incident report, drafted by the gendarmes and addressed to the Midyat public prosecutor, it was stated that a group of terrorists wearing military uniforms stopped a minibus and a truck near the hamlet of Kuyubaşı attached to the village of Çalpınar, and killed six villagers, namely Hasan Akay, İsmet Acar, Mehmet Ağırman, Abdülkadir Akan, Süleyman Acar and Mehmet Akan. Nine villagers, Reşit Acar, Mehmet Emin Acar, Salih Acar, Ahmet Acar, İbrahim Akan, Yusuf Acar, Erdal Acar Sabri Acar and Semra Akan, were wounded. Furthermore, the gendarmes found 66 empty cartridges which had been discharged from Kalashnikov rifles. The report concluded that the incident was an ideologically motivated killing. On the same day the public prosecutor, Recep Kibar, and Dr Servet Güneş conducted an autopsy at the scene of the crime. They concluded that the persons killed in the incident had died of bullet wounds. The autopsy report recorded the following injuries: İsmet Acar: One bullet entry on the right ear, one bullet exit on the upper part of the head, one bullet entry on the right armpit, one bullet exit on the right shoulder, one bullet wound on the abdomen, one bullet entry on the upper abdomen, one bullet exit on the waist, one bullet entry on the right upper abdomen, one bullet exit on the right upper hip, one bullet entry on the right thigh and one bullet exit on the front hip. Hasan Akay: One bullet entry on the forehead, one bullet exit on the right part of the head, one bullet entry between the 10th and 11th ribs, one bullet exit on the right front ribs, one bullet entry on the inner right elbow, one bullet exit on the outer right elbow, one bullet entry on the left upper 12th rib, one bullet exit on the left part of the chest, one bullet wound on the left shoulder, one bullet entry on the inner left leg and one bullet exit on the outer left leg. Mehmet Ağırman: One bullet entry on the left shoulder blade, one bullet exit on the right shoulder blade, one bullet entry on the inner right elbow, one bullet exit on the outer left elbow and one bullet wound on the right calf. Süleyman Acar: One bullet wound on the left temple, one bullet entry on the left shoulder, one bullet exit on the left shoulder blade, one bullet entry on the right part of the right wrist, one bullet exit on the left part of the right wrist and one bullet entry on the left calf. Mehmet Akan: One bullet entry on the left hip, one bullet exit on the upper left hip, one bullet entry on the waist, one bullet exit on the scrotum, one bullet entry between the 9th and 10th ribs, one bullet exit on the upper right hip and one bullet exit between the 9th and 10th ribs. Abdülkadir Akan: One bullet entry on the forehead, one bullet exit on the left temple, one bullet entry between the 6th and 7th ribs, one bullet exit between the 7th and 8th ribs, one bullet entry on the right hip, one bullet exit on the abdomen, one bullet entry on the right upper hip, one bullet exit on the pebusten, one bullet entry on the 12th rib and one bullet exit on the chest.      The estimated time of death was given as 5 or 6 hours before the autopsy had been carried out. Dr Güneş decided that it was unnecessary to conduct further autopsies of the bodies.    On the same day Süleyman Acar [1] , Yusuf Acar and Salih Acar were questioned by the police officer Hüseyin Coşar. Mahmut Akay and Yusuf Akan were interrogated by the public prosecutor Mr Kibar. Mehmet Akay stated as follows: “This morning at around 7 a.m. we set out for Midyat. There were 5 or 6 of us in Hasan Akay’s truck. When we were one kilometre away from the village, a group of 15 men appeared from both the left and the right side of the road and from a cave near the road. They stopped us. They were wearing military uniforms. We thought that they were soldiers. The minibus was following us. They also stopped the minibus. They told us to get out of the vehicles and hold our arms up. We did as we were told. Then, they took İsmet [Acar], Hasan [Akay], Hacı Mehmet [Akan], Mehmet Emin Acar, Ahmet Acar and Mehmet Ağırman to the other side of the road and started shooting at them with Kalashnikov rifles. The others ran away. I ran away too. They also shot at us. Some of us died and some of us were wounded. Then, they ran rapidly towards the village of Kutlubey. Those people were village guards from the village of Kutlubey. Their faces were half covered but I identified Cengiz and Ethem. I do not know their surnames. I could recognise their voices because I knew them before. They are from the neighbouring village.”         Süleyman Acar stated as follows: “... When we were passing by the Myhike cave, 10 or 20 people came out of it. They were armed and were speaking in Kurdish. They told us to line up. We did what we were told. They also stopped the minibus that was following us. I knew 2 people among the group. One of them is called Ethem and the other is called Cengiz. They opened fire. I was wounded. They took me to Midyat State Hospital.” Salih Acar stated as follows: “... They had already taken the people out from the truck. They told us to get out of the minibus. They took five of us and killed them. When we started to run, they opened fire on us. I was wounded. It was Ethem and Cengiz who made us line up.” On the same day Sabri Acar, who had been wounded in the incident, died while being transferred to Diyarbakır State Hospital. On 21 April 1992 Mehmet Emin Akın, who had been wounded in the incident, died in Mardin State Hospital. The applicant İbrahim Akan was brought to the morgue where he identified Mehmet Emin Akın’s body.   An autopsy was carried out on Mehmet Emin Akın. In the autopsy report three bullet entry wounds and three bullet exit wounds were recorded on the body. It was concluded that Mehmet Emin Akın had died of bullet wounds.   On 13 May 1992 the applicant İbrahim Akan gave the following statement to Mr   Kibar: “... A group of 25 or 30 armed people stopped our truck. They also stopped the minibus that was following us. I recognised İsmail (his mother is called Güle), Cengiz and Ethem. I do not know their surnames. I know them very well because they are our neighbours. İsmail and Ethem had not covered their faces. Sorry, I made a mistake. It was Cengiz’s face which was uncovered. İsmail and Ethem had covered their mouths but not their eyes. They were wearing conical hats like soldiers. They were also wearing commando uniforms. They were holding Kalashnikov rifles. Cengiz was also holding a gun. They shouted at us in Turkish and ordered us to get out of the vehicles one by one. When we gathered near the vehicles they told us in Kurdish to line up. I told them that they could search us and check our identity cards. Then I asked them to let us go. I told them that we had a long way to travel. When they heard this they opened fire. We ran away. Seven people died. I was wounded in the back. These people ran away towards the village of Kutlubey. I know them very well. I can identify them. Kutlubey is not far away from our village. There is no vendetta between the villages. The only reason for this event could be that they have village guards but we do not. According to the rumours, the members of the organisation had killed a village guard from the village of Kutlubey. The Kutlubey villagers had thought that it was us who had killed him. We celebrated Nevruz but they did not. For that reason we were their enemies.”   On 3 June 1992 Salih Acar and Ahmet Acar also gave statements to Mr   Kibar. They reiterated that the village guards Ethem and Cengiz from the village of Kutlubey were among the group of people who had attacked them. Salih Acar further stated that although the attackers had covered their faces he had been able to identify Cengiz and Ethem. In a ballistic report by the Diyarbakır Provincial Criminal Police Laboratory ( Bölge Kriminal Polis Laboratuarı ) dated 23 June 1992, it was recorded that 66 cartridges of 7.62 x 39mm calibre had been submitted for examination. The report found that 12 of the examined cartridges had been fired from Tacettin Sakan’s weapon, 12 others from Nevaf Aydın’s weapon, 9 from Şehmuz Seyda’s weapon, 6 from Halil Aktan’s weapon, 6 from Rahmi Kaçkaz’s weapon, 6 from Mihdi Özbay’s weapon, 5 from Ethem Seyhan’s weapon, 4 from Tevfik Akbay’s weapon, 2 from Abbas Taş’s weapon and finally one bullet from Mehmet Seyhan’s weapon. The report further stated that three cartridges bore no resemblance to the cartridges examined by the laboratory. In carrying out the ballistic examination, the laboratory fired the weapons belonging the village guards and compared the empty cartridges with those found at the site of the incident. On 30 June 1992 the Midyat Assize Court ordered that the village guards Tacettin Sakan, Nevaf Aydın, Halit Aktan, Rahmi Kaçmaz, Mihdi Özbay, Ethem Seyhan, Tevfik Akbay, Mehmet Seyhan, Şehmuz Seyda and Abbas Taş be detained on remand. On 8 July 1992 the Midyat public prosecutor, Recep Kibar, filed a bill of indictment with the Midyat Assize Court against the twenty-seven village guards [2] . He accused them of the murder and attempted murder of more than one person. Referring to the findings of the ballistic examination of 23 June 1992, Mr Kibar stated that it had been established that the empty cartridges collected at the scene of the incident bore a resemblance to the cartridges obtained from the laboratory test. On 20 July 1992 the Midyat Assize Court ordered that the village guards Cengiz Kaçmaz and İsmail Taş be detained on remand. On 23 July 1992 the Midyat Assize Court ordered the release of the village guard İsmail Taş pending trial. At a hearing on 29 September 1992 Salih Acar, Yusuf Acar and the applicant İbrahim Akan appeared before the Midyat Assize Court ( Ağır Ceza Mahkemesi ). Sabri Acar stated that the village guards Ethem and Cengiz from Kutlubey had carried out the attack on 20 April 1992. He identified Ethem Seyhan and Cengiz Kaçmaz, who were present in the courtroom. Reiterating his statement of 13 May 1992, İbrahim Akan identified the three village guards Ethem Seyhan, Cengiz Kaçmaz and Tacettin Sakan and accused them of having opened fire. Yusuf Acar repeated the same allegations. At a hearing on 22 December 1992, the village guards Cengiz Kaçmaz, Mehdi Özbay, Şehmus Seyda, Tacettin Sakan, Nevaf Aydın, Mehmet Seyhan, Halil Aktan, Ethem Seyhan, Tevfik Akbay, Rahmi Kaçmaz and Abbas Taş appeared before the Midyat Assize Court. They denied the allegations against them and stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime.    At the same hearing the court heard the non-commissioned officer Ali Kılıç. Mr Kılıç had been on duty at the Gendarmerie Command in Kutlubey on the day of the incident. He stated as follows: “I have been serving at the Kutlubey Gendarmerie Command for one and a half years. Kutlubey is a big village. I know the accused village guards. They are from Kutlubey and they support the State. We perform our duties together. I remember the day [of the incident]. I was keeping guard at night because we were expecting an attack. ... I was with three other soldiers and three village guards. The names of the village guards were Tevfik Akbay, Rahmi Kaçmaz and Halit Aktan. ... The village guards Hasan Kaçmaz, Nevaf Aydın and Mahmut Başak were together with my colleague, Arif Günal. The village guards Cengiz Kaçmaz, İsmail Kaçmaz and Tacettin Sakan were with Sergeant Kazım Demirbaş. The rest of the village guards were keeping guard near the village. We were on duty until 6 a.m. No incident took place that night. Then, I went to the command. [At the command] they told me that the Midyat commander had announced the occurrence of the incident on the radio. It took place at the border with the province of Midyat. Our command and the village of Kutlubey are in the province of Nusaybin. The commander ordered the village guards to gather at the command. All the village guards had gathered at the command within 15   minutes. I waited for the commander, but he did not come. In the meantime, I checked all the weapons of the village guards in order to see whether or not they had been used. The village guards had previously been ordered to leave their weapons after their shifts of duty. It was obligatory to clean the weapons with a ramrod. I checked all the weapons of the village guards one by one. Some of the weapons had been kept in good order. Some of them, however, were dusty. I checked these weapons just after the incident took place. I did not observe a mark or a smell of gunpowder. We had been informed that the villagers would march towards the village of Kutlubey during the Nevruz celebrations. In fact they had lit a fire in the neighbouring villages one night before Nevruz.   Kutlubey is the only village in that region that has village guards. The other villages do not have village guards. ... [During the Nevruz celebrations] twelve members of the PKK forced the villagers to march towards Kutlubey. They alleged that they had their martyrs there. I tried to stop the group and told them that what they had been doing was illegal. I asked the village guards to repeat the same things in Kurdish. However, the militants continued to force the villagers to march. Then I shot warning shots. The helicopters arrived later. [The helicopters] should not have fired. [When they opened fire] the people ran away. ... On 14 April 1992 the PKK militants attacked the Kutlubey village. A village guard called Muhittin died. The village guards and our forces opened fire. The terrorists went away. In these kind of attacks it is impossible to collect all the cartridges. Some of them can be collected but not all. The village guards have Kalashnikov rifles. We have G-3s or MG-3s. The bullets [for these rifles] are 7.62 calibre. However, the structure of those bullets is different. You can tell which bullet matches which rifle.”   On 2 February 1993 the Midyat Assize Court ordered the release of the village guard Abbas Taş pending trial. On 9 February 1993 the Midyat Assize Court, after having sought advice from the Court of Cassation and having regard to a Court of Cassation decision of 26 January 1993, decided to transfer the case to the Denizli Assize Court out of concern for the “proper administration of justice”. In its decision the court stated that the complainants, witnesses and accused had difficulty in travelling from their villages to the hearings in Midyat on account of the security conditions in the region. On 2 March 1993 the Denizli Assize Court requested the Midyat Assize Court to take a statement from Süleyman Acar. On 12 March 1993 Mr Kibar filed an additional bill of indictment against the twenty-seven guards for the attempted murder of Süleyman Acar.   When on 29 March 1993 Süleyman Acar appeared before the Midyat Assize Court, he stated as follows: “I was taken to Diyarbakır State Hospital. I was operated on there. I do not know whether they removed a bullet from my body. I was unconscious. I was not told that a bullet had been removed from my body. I was wounded in the calf. There was a bullet exit wound on my knee. It is probable that the bullet had not remained in my leg.” On 20 April 1993 Sergeants Arif Güner and Kazım Demirbaş appeared before the Denizli Assize Court. Arif Güner stated as follows: “On the day of the incident I was keeping guard with the village guards from 6 a.m. to 5 p.m. As far as I remember I was with Tacettin Sakan, Nevaf Aydın and Mahmut Başak. ... The place where we were keeping guard is two hours’ walking distance from where the incident took place. The other accused village guards were keeping guard with the other soldiers. ... I went back to the command with the village guards. All the accused village guards were with us. We stayed at the command for an hour and a half in order to have breakfast. As a result it is impossible to say that the accused were involved in the incident. ... On the Nevruz day the villagers marched to the village of [Kutlubey]. We fired warning shots that day. It was raining, therefore we could not collect the cartridges. It is probable that someone else collected the cartridges. ... We always clean the weapons when we return to the command. On that day the weapons were clean. There was no mark or smell of gunpowder. It is impossible [to say] that the village guards killed or wounded the villagers. The three of them were with me and the others were with their commander. Some of them were keeping guard near the village.”   Sergeant Kazım Demirbaş reiterated his colleague’s statement and said that the village guards Cengiz Kaçmaz, Bedran Göktekin and İsmail Kaçmaz had accompanied him on the day of the incident. In a petition dated 26 April 1993 the applicants Hanime Ağırman and Selime Akay applied to take part in the proceedings before the Denizli Assize Court as intervening parties.    On 20 May 1993 the Denizli Assize Court ordered the release of the village guard Cengiz Kaçmaz pending trial. On 7 July 1993 the public prosecutor Recep Kibar made the following statement before the Assize Court in Rize at the request of the Denizli Assize Court: “At the material time I was the public prosecutor in Midyat. ... The gendarmes and soldiers were at the scene of the crime when I arrived. I saw 7 or 8 dead bodies lying on the right and the left side of the road. It seemed that they had been shot at close range. ... I told the soldiers to collect the empty cartridges. ... While I was carrying out the autopsies, I realised that the soldiers were not collecting the empty cartridges. I personally collected the empty cartridges that were near the dead bodies with the help of my assistant. I drafted a report. More empty cartridges could have been collected. I collected as many as I could. It seemed that the cartridges had been fired recently. There was a smell of gunpowder. It was obvious that they had been fired recently. The base of the cartridges ( mermi dip çukurları ) had not oxidised. There were no rifles around, only empty cartridges. ... In my opinion the empty cartridges had been fired from the weapons that killed the villagers. ... There were traces of newly extinguished fire and human excrement in a cave near the road. In my opinion this shows that the murderers laid an ambush before the attack.”   In a letter of 7 September 1993, the Denizli Assize Court requested the Forensic Medicine Institute in Ankara ( Adli Tıp Kurumu Başkanlığı ) to examine whether or not the 66 empty cartridges found at the scene of the crime had been fired from the weapons of the village guards [3] . The court further requested the Forensic Medicine Institute to examine whether the empty cartridges had been fired before, on or after 22 April 1992 [4] . The court also sent the institute two bullets that had been removed from the bodies of Sabri Acar and the applicant Reşit Acar. The court finally requested the institute to examine whether those bullets had been fired from the weapons sent for examination.    In a ballistic report by the Forensic Medicine Institute dated 28 October 1993, it was recorded that 12 of the examined cartridges had been fired from Tacettin Sakan’s weapon, 12 others from Nevaf Aydın’s weapon, 9 from Şehmuz Seyda’s weapon, 6 from Halil Aktan’s weapon, 6 from Rahmi Kaçkaz’s weapon, 6 from Mihdi Özbay’s weapon, 5 from Ethem Seyhan’s weapon, 4 from Tevfik Akbay’s weapon, 2 from Abbas Taş’s weapon and one from Mehmet Seyhan’s weapon. The report further stated that 3 cartridges had been fired from a “Nato-type” rifle of 7.62-mm calibre. In carrying out the ballistic examination the institute made use of the weapons belonging to the village guards and fired bullets from those weapons in order to make a comparison with the cartridges found when the incident took place. As regards the two bullets removed from the bodies of Sabri Acar and Reşit Acar, the report stated that the bullets in question had oxidised and, consequently, could no longer be used for comparative tests. It could not therefore be determined whether or not the two bullets had been fired from the weapons belonging to the village guards. At a hearing on 4 November 1993 the Denizli Assize Court observed, referring to the medical reports submitted by Diyarbakır State Hospital, that the bullets in the bodies of Süleyman Acar and the applicant İbrahim Akan could not be removed for a ballistic examination owing to medical complications.   On 2 December 1993 the Denizli Assize Court ordered the release of the village guards Mihdi Özbey, Şehmus Seyda, Tacettin Sakan, Nevaf Aydın, Mehmet Seyhan, Halit Akan, Rahmi Kaçmaz, Ethem Seyhan and Tevfik Akbay pending trial. In a petition dated 7 February 1997, the applicants Osman Acar, Elife Akalan (Acar), Hüseyin Akan, Mehmet Ali Akan and İbrahim Akan applied to take part in the proceedings before the Denizli Assize Court as intervening parties.    In a petition dated 17 February 1997, the applicant İbrahim Akan informed the Denizli Assize Court that he had been told three times at Mardin State Hospital that the bullet in his leg could not be removed. Mr   Akan stated that he did not have the financial means to travel to Denizli and have his leg operated on in a hospital there.    On 8 February 1999 Selim Acar gave the following statement to public prosecutor no. 33977: “Osman Acar and İsmet Acar are my brothers. İsmet was killed in the incident that took place in 1992. Osman Acar has been living in İzmir for 30 years. He rarely comes to the village. The last time he came to the village was in 1993 on the occasion of our mother’s funereal. I have not seen him since then. Nobody has threatened me in connection with my brother’s killing. On several occasions I have been taken into custody during the operations against the PKK because of my alleged involvement in the activities of the terrorist organisation. My relatives and I have not been threatened. The head of the Kutlubey village guards, Cengiz Kaçmaz, has not threatened us. We are on perfectly reasonable terms. We stay at his house when we visit the village of Kutlubey.” In a petition dated 21 February 1999, the applicant Osman Acar informed the Denizli Assize Court that village guards, including Cengiz Kaçmaz, had threatened members of his family, in particular his brother Selim Acar and his wife Halime Acar. On 20 November 2000 the Denizli Assize Court decided to acquit the accused village guards. The court drew the following conclusions from the evidence: The statements which the witnesses and the complainants had made when interrogated by the public prosecutor had been different from those they had later been made before the court. In particular, in his statement before the public prosecutor, Salih Acar had stated that the accused had covered their faces when they stopped the convoy, whereas he had not specified in his statement to the court whether or not the attackers had covered their faces. Süleyman Acar had not mentioned in his statement to the public prosecutor that it had been Cengiz and Ethem who had attacked them, whereas he had stated before the court that it had been the village guards Ethem and Cengiz who had attacked them. Reşit Acar had also stated before the public prosecutor that he did not know who had attacked them because their faces had been covered. However, in his statement before the court he had said that Cengiz’s face had been completely uncovered, but that Ethem’s face had been covered. The witnesses Salih Akay, Hüseyin Akan and Selim Acar had given no description of the identity of the attackers in their previous statements. Furthermore, those witnesses had not stated whether or not the faces of the attackers had been covered. However, in their statements before the court, they had given a detailed account of the events and identified Ethem and Cengiz as the village guards who had opened fire on them. The village of Çalpınar was 10 kilometres away from the village of Kutlubey. It was highly probable that the inhabitants of the two villages did not maintain close relations or contacts. It was therefore unlikely that the complainants could have identified the accused village guards as the attackers. Even assuming that the accused village guards Cengiz and Ethem were among the group of people who had attacked the complainants, there was no reasonable explanation as to why some of the village guards had covered their faces and some had not.   In their statements the non-commissioned officers Ali Kılıç, Kazım Demirbaş and Arif Güner had said that they had kept guard together with the accused village guards from 6 p.m. on 19 April 1992 to 6 a.m. on 20   April 1992. It appeared from the non-commissioned officers’ statements that the village guards had returned to the gendarmerie command after they had completed their shift of duty. It further appeared that the weapons belonging to the village guards had not been used during the morning when the incident had taken place. The non-commissioned officers had confirmed that fact. Accordingly, it could not be concluded that the accused village guards had been involved in the killing of the villagers. In the ballistic report by the Forensic Medicine dated 28 October 1993, it was stated that 66 cartridges had been found at the scene of the crime, 63 of which had been fired from weapons belonging to the accused village guards. However, that evidence in itself did not suffice to convict the village guards. First, it was still unknown from whose weapon the remaining cartridges had been fired. Secondly, it could not have been determined by the laboratory whether or not the bullets removed from the bodies of Sabri Acar and Reşit Acar had been fired from the weapons belonging to the village guards. In their submissions the accused village guards had stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime. In fact, on 21 March 1992 the village guards and the security forces had opened fire in order to stop the march that was being carried out by members of the terrorist organisation. Furthermore, in a clash between the security forces and members of the illegal organisation on 13 April 1992 the security forces, as well as the village guards, had opened fire on the PKK members. In a report dated 13   April 1992, it had been stated that 447 bullets had been fired and 215 empty cartridges had been recovered from the scene of the crime. It therefore appeared that 232 empty cartridges had not been found. It was highly probable that empty cartridges from the incident of 20 April 1992 had been placed at the scene of the crime before or after the villagers had been killed by unknown persons. On 9 February 2001 the applicants lodged an appeal with the Court of Cassation against the decision of the Denizli Assize Court. The case is still pending before the Court of Cassation.     B.     Relevant domestic law and practice 1.     Criminal law and procedure The Turkish Criminal Code ( Türk Ceza Kanunu ), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Articles 448) and aggravated murder (Article 450). Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure ( Türk   Ceza Muhakemeleri Usulü Kanunu ; hereinafter referred to as the “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP).   If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). Pursuant to 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 shall be 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 by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP). 2.     Administrative liability Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review ...The authorities shall be liable to make reparation for all damage caused by their acts or measures.” This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 3.     Civil action for damages Pursuant to Article 41 of the Civil Code, anyone who suffers damage as a result of an illegal or tortious act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court and the issue of the defendant’s guilt (Article 53). 4.     Village Guards Chapter Eight of the Law on Villages (Law no. 442) concerns village guards and their duties. The role of village guards is to protect the life, honour and property of the people within the boundaries of the village (Article 68). There is to be at least one in every village, with one per five hundred persons in villages of more than one thousand inhabitants (Article   69). They are to be recruited by the Council of Elders and take up their duties on approval by the district governor (Article 70). Guards must be between the ages of 22 and 60, have no previous criminal conviction, have a good reputation and have no bad habits such as drunkenness or a tendency to quarrel with others (Article 71). They carry out the orders of the muhtar (Article 72) and carry weapons, resistance to them being punished in the same way as resistance to gendarmes (Article 73). Provision is made for the recruitment of volunteer guards in times of raiding and pillaging, extended by an amendment to Law no. 3612 dated 7   February 1990, to cover circumstances disclosing a state of emergency or other serious acts of violence. The provincial governor, with the approval of the Minister of the Interior, may establish the appropriate number of guards to be recruited, who are paid salaries, subsidies and indemnities for their services by the Ministry of the Interior (Article 74). The weapons and ammunition of village guards are provided to the Council of Elders by the authorities (Article 75) and the weapon given to a guard can be used only by that person (Article 76). Guards are allowed to use their weapons to protect themselves against attack, to protect the life of another person when no other solution is possible, if they encounter armed resistance while trying to apprehend a murderer or any other person caught in the act of committing an offence or fleeing the scene of the offence, where the apprehended person flees, disregards the “stop warning” and there is no other possibility than to resort to the use of weapons; and where during a chase to capture brigands a suspect appears in the area where the brigands are sheltering and does not respect the “stop warning” given by the guard. In any other circumstances, the guards shall be punished for using their weapons. Even where the use of weapons is justified, the guards should as far as possible seek to wound, rather than kill, the suspects (Article 77). Village guards are required always to carry the village guard identity card (ID) issued to them (Article 78). On death, resignation or dismissal, the guard’s weapon, ID, papers, badges, etc. are to be handed over to the muhtar (Article   79). Provision is made for disciplinary punishment (caution, reprimand, dismissal) of guards neglecting their duties or engaging in prohibited activities, e.g. absence without leave, taking improper advantage of the vineyards, orchards or farmlands guarded by them, failing to carry their badge, uniform, weapons or exchanging them (Articles 80-81). Village guards who lose negligently or allow others to take their weapons or ammunition are to be discharged (Article 82). Regulations concerning temporary village guards were drawn up under sections 74 and 75 of the Law on Villages (Law no. 442) and came into force on 24 October 1986 to establish the principles and procedures relating to temporary village guard appointments, training, duties and responsibilities, the areas within which they shall perform their duties, as well as their occupational rights and their dismissal from duty. Conditions for appointment as a temporary village guard include the requirements that the person be of Turkish nationality, has completed his military service, has no conviction for an infamous crime or inciting hatred or enmity (Article   312 paragraph 2 of the TPC), has no involvement in separatist or anti-State activities or blood feuds, is a native and resident of the village where he performs his duties and has no physical or mental illness or disability that prevents him from performing those duties (section   7). Candidates have to apply in writing to the district or provincial governor, with copies of various documents (section 8). The application is referred to the district gendarme command, which opens a file on each application and investigates from its own records and other official sources. The collected information and the district gendarme commander’s comments are returned to the district governor and the candidates selected by him as suitable are submitted to the provincial governor for approval. The provincial governor issues the order of appointment (section 10). On appointment, the village guards are summoned to the district gendarme command to take up their duties and receive their weapons, ammunition, clothes, ID and other items (section 11). Pursuant to section 12, village guards carry out their duties within the boundaries of their village. However a village guard can pursue beyond those boundaries a person who has committed an offence within the village, and the provincial or district governor can extend the area to be covered by the village guard. The area of a village guard carrying out his duties when accompanying security forces, including tracking, chasing, collecting information and guiding such forces, is the same as those forces. Pursuant to section 13, the duties of the village guards are as follows: –     to identify, pass information to the gendarme command about, prevent the escape of and capture, persons who committed or attempted to commit acts of assault, theft, violations of honour, sabotage, abduction, armed attacks or arson; –     to take steps to preserve evidence of incidents requiring judicial procedures; –     to report natural disasters; –     to investigate the activities of, and collect information concerning, convicted persons and their relatives, and to report to the gendarmerie any information about offences; –     to learn the names of any strangers in the area and to enquire into the reasons for their presence, finding out the names of the persons with whom they are staying; –     to identify villagers or strangers spreading false reports or news aimed at disturbing the peace, or disseminating separatist propaganda; –     to take measures to prevent attacks on, inter alia , roads, bridges, energy transmission lines, railways, pipelines and dams, and to assist the general and special law and order forces in the protection of such facilities; –     to keep watch on whether derelict or remote houses in the village area are being used as shelters by fugitives, criminals or wanted persons; –     to report at least once every fifteen days to the gendarme station with jurisdiction for the village to obtain instructions from the commander with regard to their tasks; to report, on being called to the gendarme station with their weapons with all promptness; to place themselves at the disposal of the gendarmerie or authorised military unit to carry out checks, or searches, or to track and capture fugitives from justice. While carrying out their duties, they must use their weapons subject to Article 77 of the Law on Villages. When carrying out their duties along with military or law-and-order forces, the village guards, under the command of those units, have the same powers and responsibilities as those entrusted to that unit. They are authorised to use force to apprehend and to overpower those carrying out an attack or attempting an attack (section 15). Guards are accountable administratively to the village muhtar and subject to his supervision. Occupationally, guards are under the command of the gendarme commander for the area covering their village and the district commander is responsible for their training, and the supervision and effective execution of   their duties (section 16). On the request of the district gendarme commander, the district governor may issue a warning to a guard who fails to carry out his duties or to maintain his equipment; he can stop pay for one to ten days where a guard has been absent without leave for up to five days, has disclosed confidential information or reported untrue facts (section 21). Guards may be dismissed, on approval by the provincial governor, for absence of more than five days without leave; recurrence of the acts under section 21; failure to take part in a mission when summoned by the district gendarme commander; hiding fugitives or wanted persons or failing to report their location; making improper use of, losing or allowing the seizure of, weapons and ammunition or other tools or equipment issued to them (section 22). On taking up their duties, the guards undertake a one week compulsory training course by the district gendarme commander, and receive two days’ training once every six months (section 25). Guards must present their weapons and ammunition for inspection by the gendarmerie at least once a month (section 27). COMPLAINTS The applicants complain under Article 2 of the Convention that their relatives’ right to life was violated when they were deliberately killed by village guards. The applicants İbrahim Akan and Reşit Acar further complain that their right to life was violated in that the village guards wounded them in the leg and attempted to kill them. The applicants complain under Article 6 § 1 of the Convention of the excessive length of the proceedings before the national courts. They further complain that the Midyat and Denizli Assize Courts cannot be regarded as independent tribunals because the village guards were released shortly after the commencement of the proceedings.   The applicants next complain under Article 8 of the Convention that their right to respect for their private and family life has been violated in that they have been compelled to leave their village following pressure from the security forces. The applicants in application no. 38417/97 further complain that there exists in Turkey an officially tolerated practice of violating Articles 2 and 13 of the Convention that has aggravated the breaches of which they and their relatives have been victims. They submit that, in the state of emergency region in Turkey, criminal proceedings against perpetrators of such violations are bound to fail and are incapable of preventing unlawful acts and abuse of power by the authorities. THE LAW The applicants complain of the killing of their relatives by village guards. They rely on Article 2 of the Convention. The applicants in application no. 38417/97 further rely on Article 13 in conjunction with Article 2 of Convention in this respect.   The applicants also complain under Article 6 § 1 of the Convention of the excessive length of the criminal proceedings before the national courts. They further complain that the national courts cannot be regarded as independent tribunals. Lastly, the applicants complain under Article 8 of the Convention that their right to respect for their private and family life has been violated in that they have been compelled to leave their village as a result of pressure from the security forces. A.     Exhaustion of domestic remedies and compliance with the six-month rule The Government point out that the application to the Commission was lodged while the proceedings concerning the applicants’ allegations were still being conducted before the national courts. The Government infer from this that the domestic remedies had not been exhausted when the application was made and that, consequently, the Court should declare the application inadmissible. They refer to the Aytekin v. Turkey judgment of 23   September 1998 ( Reports of Judgments and Decisions 1998-VII, p.   2807), in which the Court upheld the Government’s preliminary objection where a