CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juin 2002

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display:inline-block } .s9138CF0B { margin-top:36pt; margin-bottom:36pt; text-align:right } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s82A29ACA { margin-top:18pt; margin-left:18pt; margin-bottom:12pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s331C3E28 { margin-top:0pt; margin-bottom:6pt } .s976FC1E7 { margin-top:24pt; margin-left:18pt; margin-bottom:12pt } .s4566725A { margin-top:0pt; margin-bottom:18pt }     FORMER FIRST SECTION     CASE OF ORHAN v. TURKEY     (Application no. 25656/94)     JUDGMENT     STRASBOURG   18 June 2002       FINAL   06/11/2002           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 Orhan v. Turkey, The European Court of Human Rights (Former 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 ,   Mr   F. Gölcüklü , ad hoc judge ,   and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 6 February and 15 May 2001 and on 27   May 2002, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   25656/94) 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 an Turkish national, Mr Salih Orhan (“the applicant”), on 24 November 1994. 2.     The applicant, who was granted legal aid in April 2001, was represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom who delegated their representation to Mr Timothy Otty, a barrister. Those representatives engaged the assistance of Mr Philip Leach, a lawyer with the Kurdish Human Rights Project (“KHRP”), a non-governmental organisation based in London and of lawyers practising in Turkey. The Turkish Government (“the Government”) were represented mainly by their Agent, Mr Bahadır Kalel İ. 3.     The applicant alleged, in particular, that soldiers burned and evacuated the hamlet where he lived in South-East Turkey and had apprehended and killed his two brothers (Selim and Hasan) and his son (Cezayir) – “the Orhans”. He invokes, inter alia , Articles 2, 3, 5, 8, 13 and   14 of the Convention, together with Article 1 of Protocol No. 1 to the Convention. 4.     The application was declared admissible by the Commission on 7   April 1997 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 Former 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). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 15 May 2001 (Rule 59 § 2).   There appeared before the Court: (a)     for the Government Mr   M. Özmen ,   Agent , Mr   H. Mutaf ,   Adviser. (b)     for the applicant Mr   T. Otty ,   Counsel , Ms   R. Yalçindağ ,   Counsel , Mr   P. Leach ,   Solicitor.   8.     The Court heard addresses by Mr Otty and Ms Yalçindağ, for the applicant, and by Messrs Özmen and Mutaf, for the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The case mainly concerns events which took place in May 1994 at Deveboyu hamlet of Çağlayan village in the Kulp district of the Diyarbakır province in south-east Turkey. From Çağlayan village the road goes to Zeyrek, to whose gendarme station Çağlayan village and its hamlets are attached. Zeyrek is on the main road between the towns of Kulp and Lice. The applicant alleges that on 6 May 1994 the State's security forces burned and evacuated the hamlet of Deveboyu and that on 24 May 1994 the same soldiers returned to Deveboyu detaining the applicant's brothers (Selim and Hasan Orhan) and his son (Cezayir Orhan), after which those three relatives (“the Orhans”) disappeared. 10.     The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 6 to 8 October 1999. They heard the following witnesses: the applicant; Adnan Orhan (son of Selim Orhan); Mehmet Emre (the applicant's cousin from the neighbouring hamlet of Gümüşsuyu of Emalı village); Mehmet Can (son-in-law of Selim Orhan who lived in Diyarbakır at the relevant time); Ahmet Potaş (Commander of Zeyrek Gendarme station); Ali Ergülmez (Commander of Kulp District Gendarme Station); Ümit Şenocak (Deputy Commander of Kulp District Gendarme Station); Kamil Taşcı (Commander of Kulp Central Gendarme Station); Şahap Yaralı (Commander of Lice District Gendarme Station); Hasan Çakır (Commander of Lice Central Gendarme Station); Aziz Yıldız (succeeded Hasan Çakır); Mustafa Atagün (prosecutor in the office of Diyarbakır Chief Public Prosecutor); and Mehmet Yönder (a Kulp public prosecutor). 11.     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 parties have provided further documents to the Court which had been requested by the Commission. The submissions by the parties on the facts (Sections A and B), the material submitted by the parties in the present case (Sections C and D), relevant material submitted by the Government in the Çiçek case ( Çiçek v.   Turkey , no. 25704/94, ECHR 2001 – Section E below) together with the oral evidence to the Delegates (Section F) are summarised below. A.     The applicant's submissions on the facts 12.     Between 1992-1994 a large number of disappearances and unexplained killings occurred in south-eastern Turkey in the context of counter-insurgency measures against the PKK. The province of Diyarbakır and its districts of Lice and Kulp were particularly affected. 13.     The applicant, Salih Orhan, was born in 1955. Selim and Hasan Orhan (born in 1954) and were his only brothers. His eldest son, Cezayir, was born in 1977. At the relevant time, all lived in Deveboyu, the applicant and his brothers each owning separate houses. 14.     On 20 April 1994 military forces of 300-400 men with over 100 vehicles pitched camp near Deveboyu. 15.     On 6 May 1994 at around 6.00 a.m. a number of the soldiers entered the village. The village imam announced that their Commander required the villagers to assemble in front of the mosque, which they did. The Commander then announced that Çağlayan village (including the Deveoboyu hamlet) was to be burnt, but that he would allow the villagers to remove their possessions. The applicant returned to his house and started to remove his possessions. As he was doing so, the soldiers set fire to his and others' houses. Having completed this task and given the villagers three days to leave the village, the soldiers moved on. 16.     The following day the applicant, together with other villagers, went to Kulp District Gendarme Command to report the incident and to seek permission to stay in the area long enough to harvest the crops. Ali Ergülmez, the commander of that station, told him that the soldiers had come from Bolu and that the villagers could remain until the harvest. 17.     On 24 May 1994 more soldiers were seen in the vicinity of the village. The Orhans were repairing their houses and did not notice the soldiers arriving. Each of the three men was taken into custody by the soldiers. One of the soldiers explained that the Commander wanted to see them, that the soldiers did not know the way and that they could come back to the village afterwards. They left on foot up the hills. At around 4.30 p.m. on the same day, the soldiers and the Orhans were seen in the neighbouring hamlet of Gümüssuyu. They were smoking cigarettes and appeared to be in good health. 18.     On 25 May 1994 the applicant went to Zeyrek Gendarme station and enquired about their whereabouts. Ahmet Potaş told him that the Orhans had been taken to Kulp. He went to Kulp and spoke to Ali Ergülmez. 19.     Having obtained no information as to the whereabouts of the Orhans, the applicant made formal complaints to the Kulp Chief Public Prosecutor, the Diyarbakır State Security Court, the State of Emergency Regional Governor and to the Diyarbakır Public Order High Command. 20.     Approximately one month after the Orhans' disappearance the applicant was put in contact with Ramazan Ayçiçek. The latter had been detained in Lice Boarding School with the Orhans before being transferred to Lice prison. He had seen the Orhans and he told the applicant that all three Orhans appeared to be “in a bad way”. 21.     The applicant received no further news about the Orhans or any response to his complaints about the burning of Deveboyu. B.     The Government's submissions on the facts 22.     The Government did not dispute that there had been numerous counter insurgency military operations in the province of Diyarbakır at the relevant time. 23.     However, they disputed three main questions of fact. In the first place, they maintained that there was no military operation on 6 or 24 May 1994 in Çağlayan village as alleged or at all and they referred in this respect to the operations' record submitted to the Court in August 2000 (see paragraph 124 below). Secondly, and consequently, the Orhans had not been taken into custody. The Orhans were not wanted for any offence. The military cannot take any person they apprehend into custody. They must turn such persons over to the gendarmes and the records of all relevant gendarme stations show that they were not detained. Thirdly, full investigations were carried out by the appropriate authorities on foot of the applicant's complaints, which authorities concluded that there were no facts requiring to be further pursued or offences requiring prosecution. 24.     The Government considered therefore that it has not been proved beyond reasonable doubt that Çağlayan village was burned, or that the Orhans were detained, by the security forces. Accordingly, they submitted that it had not been demonstrated that any such destruction or disappearances were attributable to the State. C.     The documentary evidence submitted by the applicant 1.     Statement of the applicant dated 3 November 1994 made to Diyarbakır branch of the Human Rights Association (“HRA”) 25.     On 20 April 1994 between 300 and 400 soldiers with over 100 vehicles arrived in Deveboyu. The soldiers stayed near the hamlet. Along with other villagers, the applicant carried the soldiers' tents, backpacks and other equipment. During this time, Ahmet Potaş, the Zeyrek Gendarme Station Commander, and those under his command were bringing equipment to the soldiers. Ahmet Potaş had earlier told the villagers that the soldiers were from the Bolu Commando Unit, that no news had been received from persons who had been taken into custody earlier by that unit and that the villagers were to try not to be taken into custody and to be cautious. 26.     After staying nearly 3 days beside the village, the soldiers went to the Bingöl Muş region on operation. At around 6.00 am on 6 May 1994, they returned to the hamlet and some of the soldiers gathered in front of the mosque. The village imam announced that the commander of the security forces required the villagers to assemble in front of the mosque. All villagers so assembled. The unit commander then told them to remove their belongings within one hour as the village would be burned. They went to their houses and began removing their belongings but, as they were doing so, the soldiers began burning the houses. After they burned the village, the soldiers gave them three days to evacuate the village and left in the direction of Kulp. After the soldiers left, the villagers managed to save a small part of their belongings, most of which were irreparably damaged by the fires. 27.     On 7 May 1994 they went to Kulp District Gendarme Command and reported the incident. They were told that the soldiers had come from Bolu. They explained that they could live in tents until the harvest and were given permission to do so. They began to make preparations for the harvest and attempted to repair the houses which had not been completely destroyed. The soldiers were still on operations in the vicinity of the village and, on seeing them arrive, the villagers would hide outside the village. 28.     On 24 May 1994 soldiers were seen in the vicinity of the village and the men hid. However, the Orhans were busy repairing the houses and did not see the soldiers. The women and children of the village saw the soldiers taking them away. The applicant hid from the soldiers that day but was told by the women and children of the village that the soldiers who took the Orhans were those who had burned the village. Neither of the Orhans had been in custody before and Selim was an honorary imam . At around 4.30   p.m. that day the soldiers and the Orhans had reached Gümüşsuyu and people from that hamlet saw the Orhans with the soldiers. The Orhans were smoking cigarettes with the soldiers and were fine. 29.     On 25 May 1994 some villagers went to the Zeyrek Gendarme Station and recounted the incident to Ahmet Potaş who said that the Orhans had been taken to Kulp. They therefore went to Kulp. However, the Commander in Kulp told them that he had no information. 30.     The applicant therefore filed, to no avail, applications with the Kulp Chief Public Prosecutor, the Public Prosecutor at the Diyarbakır State Security Court, the State of Emergency Regional Governor and the Public Order High Command in Diyarbakır. 31.     One month later the applicant heard that a person called Ramazan Ayçiçek, who had previously been held in custody in Lice Boarding School, had been transferred to Lice Prison. The applicant went to see him there and Ramazan Ayçiçek told him that he had seen the Orhans during his detention in the Lice Boarding School and that they were in very bad condition. 2.     Petition to the Chief Public Prosecutor at the State Security Court, Diyarbakır dated 16 June 1994 32.     The Orhans had been arrested in Deveboyu during an operation by gendarmes on 24 May 1994 and no news had been received since then from them despite applications made. The applicant requested information. 3.     Petition to the State of Emergency Regional Governor, Diyarbakır dated 6 July 1994 33.     During a military operation in Çağlayan, the security forces had taken the Orhans with them, asking them to act as guides. The applicant had had no news since and he requested assistance in obtaining information. 4.     Reports, statements and other published documents 34.     The applicant also submitted: –     Public statement on Turkey of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“CPT”), December 1992; –     Summary results concerning the inquiry on Turkey by the United Nations' (“UN”) Committee Against Torture (“CAT”), November 1993; –     Report of the Human Rights Watch World, 1994; –     Report of the Turkish Human Rights' Association, 1994; –     Report entitled “Advocacy and the Rule of Law in Turkey”, of the KHRP, Medico International and the Human Rights' Committee of the Bar of England and Wales, January 1995; –     Amnesty International report entitled “Turkey: Mothers of disappeared take action”, May 1995; –     Decision of the CAT in Ismail Aslan v. Turkey , 8 May 1996; –     Report of the KHRP and Medico International entitled “The destruction of villages in South-East Turkey”, June 1996; –     Public statement on Turkey of the CPT, December 1996; –     Report of the KHRP entitled “A Report on Disappearances in Turkey”, November 1996; –     UN Working Group Report on Disappearances in Turkey, 1996; –     Report of the Committee on Human Rights in Europe, September 1998; –     Report of the Committee on Migration, Refugees and Demography. 5.     Statement of the applicant dated 5 January 1998 to the HRA 35.     He confirmed his intention to continue with the present application and the contents of his statement of 3 November 1994. 36.     On 24 April 1995 Diyarbakır police officers came to his house and told his wife that that a public prosecutor wanted to take his statement. Although he hesitated to do so, he eventually went to the Diyarbakır Chief Public Prosecutor's office and made a detailed statement. The prosecutor asked in an angry voice why he had taken his case to a foreign country and who had so advised him. The applicant did not know what the prosecutor wrote down in the statement as it was not read back to him. He was asked to sign the statement and he did. 6.     Statement of Adnan Orhan dated 6 October 1999 37.     In 1994 the witness was 12 years old. He attended Lice Boarding School from late 1993 until the end of April 1994. Otherwise he lived at home with his father (Selim Orhan) and family. Lice Boarding School had two main buildings: one for teaching and administration, and one for accommodation. The military building was about 200 metres away from the school accommodation buildings. 38.     The witness saw many military vehicles coming to the military building. On one occasion, he saw people in plain clothes in one such vehicle and he and his friends believed that those people had been detained. He had also seen some soldiers with blue hats within the school compound. 39.     Towards the end of April 1994 the witness returned to Deveboyu as he was unwell. There were many soldiers in the area and some of then had blue berets. About 15 days thereafter 250-300 soldiers came and burned the village. Two or three soldiers burned his father's house with dry grass and some kind of powder. 40.     Two weeks later soldiers came back to the village on foot at about 7-8.00 a.m. The witness was in a garden about 20-25 metres from his house. The soldiers asked his father (Selim) for his identity card and he gave it to them. When they asked if any other men were in the village, Hasan and Cezayir came forward. They were asked for their identity cards and they produced them. When the soldiers asked the witness' father to go with them, his father asked why and the witness then moved closer. The witness asked his father where he was going and his father said that the soldiers wanted a guide. The witness asked the commander where he was taking the Orhans, and the latter replied that they would be released. 41.     At that stage his mother, brothers and sisters had arrived and all followed the soldiers as they took the Orhans away. They were crying. His uncle's wife produced her Koran and begged them not to take the Orhans. At that stage the witness heard the commander speak on his radio saying that the named persons were with him, but that the families were objecting to them being brought away and asking what to do. The voice on the radio said to bring the Orhans anyhow. The group followed the Orhans and the soldiers for a while until the commander said that, if they continued following, bad things would happen. That was the last time the witness saw his father. 7.     Statement of Mehmet Can dated 6 October 1999 42.     In May 1994 the witness was living in Diyarbakır. One day he returned home from work and his wife told him that Deveboyu had been burned. The following day he took his vehicle to Deveboyu to help the villagers, including his relatives. On his way there he saw a large number of soldiers in the area, about 300-400. The village was still burning when he arrived and he was told that the soldiers had burned the village. He helped about 8 families to remove their remaining possessions to Diyarbakır. 43.     About 19 days later his wife told him that her father (Selim) together with Hasan and Cezayir Orhan had been taken into custody. He and his wife again then went to Deveboyu in his vehicle and were told when they arrived that the Orhans had been taken away by soldiers. 8.     Statement of Mehmet Emre dated 6 October 1999 44.     In May 1994 the witness was living in Gümüşsuyu. One day, he saw the Orhans in the custody of some soldiers in Gümüşsuyu. That evening, the applicant came to Gümüşsuyu and asked if anyone had seen the Orhans and he told the applicant what he had seen. 45.     The next morning the witness went to Zeyrek Gendarme Station with an old man from Gümüşsuyu to ask what had happened to the Orhans. He spoke to Ahmet Potaş who said that the Orhans had been taken to Kulp. After leaving Zeyrek station, he met the applicant and told him what Ahmet Potaş had said. 9.     Copy photographs of the Orhans 46.     These were submitted to the Delegates during the taking of evidence. 10.     Sketch of Lice Boarding School 47.     The sketch was completed by Adnan Orhan while giving evidence before the Delegates. D.     Documentary evidence submitted by the Government 1.     First investigation file: File No. 1994/66, Kulp Chief Public Prosecutor, 1994-1995 (a)     Petition dated 8 June 1994 from the applicant to a Kulp public prosecutor 48.     During a military operation conducted at Deveboyu on 24 May 1994, the Orhans were taken by soldiers who told them that they were needed as guides and that the soldiers' commander wanted them anyway. Since 15 days had passed without any news, the applicant requested reliable information about the Orhans' current circumstances. (b)     Statement dated 8 June 1994 of the applicant taken by a Kulp public prosecutor 49.     The Orhans had been taken away from Deveboyu by soldiers on 24   May 1994. The soldiers asked them to act as guides and told them that, in any event, the soldiers' commander wanted them. Since then, the applicant had not heard from the Orhans and he requested an investigation into their fate. (c)     Letter dated 8 June 1994 from a Kulp public prosecutor to Kulp District Gendarme Command 50.     The relatives of the Orhans of Deveboyu had made an application about the Orhans who were taken on 24 May 1994 by soldiers and about whom no news had been received. The addressee was requested to “investigate” and to revert within one week. (d)     Letter dated 11 July 1994 from a Kulp public prosecutor to the Lice Chief Public Prosecutor 51.     Reference was made to the applicant's complaint about the Orhans' apprehension on 24 May 1994 and their subsequent disappearance. It had been reported that the Orhans were, at the time, detained by the military units billeted in Lice Boarding School. The addressee was requested to investigate whether the Orhans were detained by/in the company of the units billeted at the school and whether the Chief Public Prosecutor's Office had any current proceedings against the Orhans. (e)     Letter dated 22 July 1994 from Kulp Deputy District Gendarme Commander (Ümit Şenocak) to the Kulp Chief Public Prosecutor 52.     Further to the Kulp public prosecutor's letter of 8 June 1994, an investigation and inquiry had been carried out. The Orhans had not been detained by his command and his command did not participate in an operation on or around the date indicated. The search for the Orhans would continue and further developments would be reported. (f)     Letter dated 18 August 1994 from a Kulp public prosecutor to Kulp District Gendarme Command 53.     The addressee was requested to secure the presence of the applicant and of Kamil Ataklı (the muhtar of Çağlayan) at the office of the Kulp Chief Public Prosecutor as soon as possible. (g)     Statement of the applicant dated 22 August 1994 taken by a Kulp public prosecutor 54.     The Orhans were apprehended by soldiers and were detained in Kulp overnight and then in Lice Boarding School for 20 days. The applicant had no news. He had petitioned, to no avail, the Diyarbakır State of Emergency Regional Governor, the Provincial Governor, the Provincial Gendarme Brigade Command and Kulp Central Gendarme Command. The soldiers had indicated that there was “complaint” against the Orhans. (h)     Letter dated 3 September 1994 from a Kulp public prosecutor to the Chief Public Prosecutor, Diyarbakır State Security Court 55.     The addressee was to confirm whether the Orhans had been referred to the addressee to be detained. (i)     Statement of the muhtar of Çağlayan village dated 23 September 1994 taken by a Kulp public prosecutor 56.     About four months previously Bolu Commando Brigade arrived in Deveboyu on operation. He was told about the Orhans being taken away by soldiers of that brigade a few days after it took place. He was told that the children of those taken away had followed the soldiers and the Orhans for some time but were told by the commanding officer on the radio that the Orhans would be released. He went to Zeyrek station and was told that the soldiers had gone towards Lice on operation, accompanied by civilians. (j)     Statement of the applicant dated 23 September 1994 taken by a Kulp public prosecutor 57.     He had already submitted a petition (8 June 1994) and made a statement (22 August 1994) to that office. He still had no news of the Orhans and his search continued. He requested that the Orhans be found and that those who detained them be punished. (k)     A letter dated 23 September 1994 from Ali Ergülmez, Kulp District Gendarme Commander to the Kulp Chief Public Prosecutor 58.     The persons mentioned in the letter of 18 August 1994 had moved. (l)     Letter dated 30 September 1994 from a Kulp public prosecutor to the Public Order Branch Directorate, Diyarbakır 59.     The addressee was asked whether it had detained the Orhans. Stamps on the letter, of the Chief of Administration and of the Prevention of Terrorism Directorate, dated October 1994, stated that the Orhans were not wanted and did not have criminal records. (m)     Letters dated 3 October 1994 from a Kulp public prosecutor to the Chief Public Prosecutor, Diyarbakır State Security Court and to the Diyarbakır Chief Public Prosecutor. 60.     The addressees were asked to confirm, for the purposes of a preliminary investigation, whether the Orhans had been referred to them to be detained or whether they were under arrest. A stamp on the former letter indicates that the Chief Public Prosecutor of the Diyarbakır State Security Court did not find the Orhans' names in that office's records. (n)     Letter dated 3 October 1994 from the Diyarbakır Chief Public Prosecutor to the Kulp Chief   Public Prosecutor 61.     Pursuant to the letter of 3 October 1994, a search through the computer records for 1993 and 1994 did not reveal the Orhans' names. The addressee was referred to the Chief Public Prosecutor of the Diyarbakır State Security Court. (o)     Letter dated 20 October 1994 from the Director of the Public Order Division of the Security Directorate, Governor of Diyarbakır to the Kulp Chief Public Prosecutor 62.     Pursuant to the Kulp Chief Public Prosecutor's letter of 30   September 1994, an inquiry had been carried out. The Orhans had not been detained and were not wanted by the Security Directorate. (p)     Letter dated 24 October 1994 from the Chief Public Prosecutor, Diyarbakır State Security Court to the Kulp Chief Public Prosecutor 63.     The Orhans were not in that court's records. (q)     Letter dated 6 April 1995 from a Kulp public prosecutor to the Lice Chief Public Prosecutor 64.     A response was requested to the unanswered letter of 11 July 1994. (r)     Statement of the applicant dated 2 May 1995 made to the Diyarbakır Chief Public Prosecutor (Mustafa Atagün) 65.     The statement records that a letter of 20 April 1995 from the Ministry of Justice, which was read to the applicant, had referred to the applicant's Strasbourg application and requested the Diyarbakır Chief Public Prosecutor to ensure the investigation of the matter by the Lice Chief Public Prosecutor and to take the applicant's statement. The applicant was also to be asked whether the signature on the form of authority in favour of British lawyers was his. Consideration was to be given to the necessity of determining, as a matter of priority, whether or not an investigation was to be opened under Decree no. 285. The Ministry was to be kept informed.   The applicant was then asked to make a statement. 66.     Along with his two brothers (Selim and Hasan), the applicant had a house in Deveboyu. On 6 May 1994 300-400 soldiers arrived in Deveboyu. The applicant was in the fields. He heard, on the mosque loud-speaker, that the villagers were to gather at the mosque and ran back. At the mosque, the commander told them to remove their belongings from the houses and to evacuate the village in an hour. The houses were set on fire as persons attempted to remove their belongings. His and his brothers' houses were burned. Prior to leaving, the soldiers ordered the evacuation of the village. 67.     The following day they went to the Kulp District Gendarme Command and reported the incident. They asked to be allowed to stay to harvest the crops and the commander agreed. They pitched tents in the hamlet and tended their livestock and crops. They hid when the soldiers subsequently came (twice or three times) by the village. When the soldiers came on 24 May 1994, the applicant was again in the fields. The Orhans were repairing their houses. The soldiers told them that the commander wanted to see them and that they were to show the soldiers the way after which they would come back. The applicant did not see them being taken away but was told about the incident when he returned to the village. 68.     The following day the village muhtar and some villagers went to Zeyrek Gendarme station and enquired about the Orhans. They were told that the Orhans had been taken to Kulp. One or two days later, the applicant went to Kulp District Gendarme Station. He asked the Commander about the Orhans who responded that there were 50 operations in the area and that the Orhans had not been taken into his station. 69.     The applicant therefore applied to the Kulp Chief Public Prosecutor and to the Chief Public Prosecutor of the Diyarbakır State Security Court, the latter of whom had told the applicant that the Orhans were not in custody. He then filed a petition with the State of Emergency Regional Governor, who referred the applicant to the Diyarbakır Provincial Governor, who referred him, in turn, to the Provincial Gendarme Command. The latter telephoned “Lice”, but the response was that the Orhans were not there. Telephone calls to “Kulp” were not possible as the lines were down. 70.     Approximately one month later the applicant was put in contact with Ramazan Ayçiçek who was in Lice prison and he went to see him. Ramazan Ayçiçek told him that he had been in custody in Lice Boarding School with the Orhans prior to being transferred to Lice Prison. Ramazan Ayçiçek was by then (May 1995) in Şanliurfa prison. Lice District Gendarme Command then told the applicant that the Orhans were not “there”. 71.     The applicant moved to Diyarbakır. On learning that some villagers had applied to the HRA, he applied and the HRA took his statement. He was shown his statement of 3 November 1994 and identified that statement and his signature. When his letter of authorisation appointing British lawyers was shown to him, he said that he had not been told, as such, that the HRA would appoint British lawyers, that he was only asked to sign a piece of paper and that he did not know that it was a letter of authorisation. He was only told that his statement would be sent to Ankara, but he was not told where in Ankara. His aim was to find the Orhans dead or alive, to be informed about their fate and to obtain compensation for the damage to his property. He had not commenced damage assessment proceedings in any court, although the village muhtar had informed the Regional Governor of the burning of the houses. The applicant therefore petitioned the Regional Governor for a house to replace the one which was burned. He wanted his rights granted by the Turkish authorities and did not want a case in Europe. 72.     It is recorded that the statement was read out to the applicant, who confirmed the truth of it by signing it. (s)     Letter dated 3 May 1995 from a Diyarbakır public prosecutor (Mustafa Atagün) to the Kulp Chief Public Prosecutor 73.     Referring to the letter of 20 April 1995 from the Ministry of Justice, Mustafa Atagün requested an investigation into the complaints of the applicant who had made a detailed statement and to revert with the results of that enquiry by 1 June 1995 for forwarding to the Ministry. (t)     Letter dated 16 May 1995 from a Kulp public prosecutor to the Diyarbakır Chief Public Prosecutor 74.     An investigation had been commenced but the Orhans were still missing. Copies of the relevant investigation documents were enclosed . (u)     Letter dated 29 May 1995 from a Kulp public prosecutor to the Lice District Gendarme Command 75.     The applicant had claimed that the Orhans had disappeared on 24 May 1994 and had been detained by military units in Lice Boarding School. The addressee was to investigate whether the Orhans had been detained and to revert with the findings. (v)     Letter dated 29 May 1995 from Lice District Gendarme Command to the Kulp Chief Public Prosecutor 76.     A claim about the Orhans' disappearance and their detention in the boarding school had already been received and investigated. However, and according to the records of that gendarme command, the Orhans had not been detained and their names were not in those records . (w)     Letter dated 14 June 1995 from Lice District Gendarme Command to the Lice Chief Public Prosecutor 77.     Referring to the Lice Chief Public Prosecutor's letter of 29 May 1995, that gendarme command had investigated. Since the Orhans' names were not in the records of that command, the conclusion was that that command had not detained them. (x)     Letter dated 14 July 1995 from the Diyarbakır Chief Public Prosecutor (Mustafa Atagün) to the Kulp Chief Public Prosecutor 78.     The addressee was requested to furnish information on the preliminary investigation on the applicant's complaints. (y)     Letter dated 26 July 1995 from a Kulp public prosecutor to the Diyarbakır Chief Public Prosecutor 79.     On 26 July 1995 the Kulp Chief Public Prosecutor decided that he lacked jurisdiction to pursue the investigation and transferred the matter to the Kulp District Governor. (z)     Decision of the Kulp Chief Public Prosecutor as to lack of jurisdiction of 26 July 1995 80.     The decision referred to the applicant's complaint: the burning and evacuation of his village on 6 May 1994, the taking into custody of the Orhans by soldiers on 24 May 1994, their later disappearance and the reports of their detention in Lice Boarding School. Since the incident took place while the security forces were carrying out their administrative duties, it was the Kulp District Administrative Council that had jurisdiction to investigate, to which organ the case was transferred.   (aa)     Statement of Hasan Sumer (undated) taken by a Kulp public prosecutor 81.     On 24 May 1994 commando soldiers arrived in Çağlayan. He saw the soldiers take the Orhans. Since then, no news of them had been received. (bb)     Extract dated 24 June 1994 from the census record concerning Çağlayan village. 82.     The applicant and the Orhans were registered as living in Çağlayan. 2.     Second investigation file: Kulp District Administrative Council, 1997 (a)     Letter dated 7 May 1997 from the Diyarbakır Deputy Provincial Governor to District Administrative Council, Kulp District Governor 83.     The applicant had made an application to the European Commission of Human Rights claiming that the Orhans had been detained by security forces on 24 May 1994, that they had subsequently disappeared and that their houses had been burned. The addressee was to confirm by 9 May 1997 whether an investigation had been launched by the Provincial or District Administrative Councils. If so, a copy of the file was to be forwarded. (b)     Letter dated 9 May 1997 from the Kulp District Governor to the Diyarbakır   Provincial Governor 84.     The Kulp Chief Public Prosecutor's file and jurisdiction decision had been sent to the District Administrative Council which had appointed Ali Ergülmez as the Adjudicator in the investigation. He was appointed elsewhere and the file had been put on hold without further progress. The District Governor had appointed a new Adjudicator, the investigation was ongoing and the addressee would be informed of the outcome. (c)     Letter dated 9 May 1997 from the Kulp District Governor to Kulp District Gendarme Command 85.     Kamil Kündüz was requested to investigate, as Adjudicator, the claims (outlined in the Kulp Chief Public Prosecutor's file) according to the law on the prosecution of civil servants and to report within 3 months. (e)     The Adjudicator's report (Kamil Kündüz) dated 15 May 1997 86.     Deveboyu hamlet and Çağlayan village were empty and the residents had gone to Diyarbakır as a result of PKK pressure in 1993-1994. Since their addresses could not be established, more information about the Orhans and their alleged detention and disappearances could not be gathered. The applicant was not at his address in Diyarbakır, so his statement could not be taken. A search of the records showed that the Orhans had not been detained by Kulp District Gendarme Command. In the absence of any perpetrators, there was no need to investigate further. (f)     Letters dated 15 and 20 May 1997 from Kulp District Gendarme Command to the Kulp District Governor, and from the latter to Diyarbakır   Provincial Governor, respectively 87.     The investigation report was submitted. 3.     Third investigation file: Kulp District Administrative Council, 1999 88.     By letter of 4 June 1999, the Diyarbakır Provincial Governor required the file to be re-opened and an investigation conducted. This letter has not been furnished (a)     Note to the file of the Kulp District Governor dated 7 June 1999 89.     An investigation was to be opened into the applicant's claims pursuant to the law concerning the prosecution of civil servants and a report was to be submitted as soon as possible. (b)     Letters dated 7 June 1999 between Kulp District Governor and Kulp District Gendarme Command 90.     The muhtar of Çağlayan was to be sent to the District Governor for his statement to be taken and the gendarme command confirmed that he would so attend. (c)     Letters dated 7 June 1999 from Kulp District Governor to Kulp District Gendarme Command 91.     That gendarme command was requested to confirm before 9 June 1997 whether any operations had been carried out in April-July 1994 and, if so, whether they covered Çağlayan, whether gendarmes had taken part in the operation and who was in charge. The custody records from Zeyrek gendarme station and from Kulp Central Gendarme Command for April-July 1994 were also requested. (d)     Letter dated 7 June 1999 from Kulp District Gendarme Command to the Kulp District Governor 92.     That gendarme command's records had been examined