CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 avril 2003

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s84D0D60A { width:8.36pt; display:inline-block } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s812A4BBF { margin-top:36pt; margin-bottom:30pt; font-size:14pt } .sDB3CA5CD { margin-top:30pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s32E480FE { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s20FC8552 { font-family:Arial; font-size:11.5pt } .s2CF46050 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:11.5pt } .s13217CB6 { width:33.05pt; text-indent:0pt; display:inline-block } .sCEE8BEA { width:34.02pt; text-indent:0pt; display:inline-block } .s321B92CB { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; font-size:11.5pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .s9922FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sFA3451AB { width:32.37pt; text-indent:0pt; display:inline-block } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sAF0B4C7 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s7A3B44D7 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt } .s65BBF621 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; font-size:10pt } .s9C624E27 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; font-size:10pt } .sD3338BAA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; font-size:10pt } .sE63EE691 { width:4.42pt; text-indent:0pt; display:inline-block } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDFC5B1C5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s98DFCB70 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s7AA1F359 { width:8.39pt; text-indent:0pt; display:inline-block } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s76B5628B { font-family:Arial; font-size:7.67pt; vertical-align:super; color:#0069d6 } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA4EAE81A { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; font-size:11.5pt } .sA845BF37 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .s99668499 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sD5FBAD98 { margin-left:29.21pt; padding-left:2.99pt; font-family:Arial } .s1CEB8964 { margin-left:32.2pt; font-family:Arial } .sDCCC0E43 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s397ED72C { margin-top:6pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; font-size:10pt } .s6380DF02 { width:6.35pt; text-indent:0pt; display:inline-block } .sB3DB1E9C { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .sF5B34857 { font-family:Arial; font-size:11.5pt; font-weight:bold } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .sD1EC7053 { width:0.79pt; text-indent:0pt; display:inline-block } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s731EBF6B { margin-top:36pt; margin-bottom:24pt; font-size:14pt } .sF22A4BD9 { margin-top:24pt; margin-left:17.85pt; margin-bottom:24pt; text-indent:-17.85pt } .s8E1A9458 { margin-top:24pt; margin-left:29.2pt; margin-bottom:18pt; text-indent:-17.6pt } .sECB3FADA { margin-top:18pt; margin-bottom:0pt; text-indent:14.2pt } .s48D61AB0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sEC533701 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s754C14DF { width:33.04pt; text-indent:0pt; display:inline-block } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s4AD8A65C { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sCACA8EA8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .sFE6327B5 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt } .sA839E164 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s48F37204 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ACC759C { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:11.5pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sE57C276B { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s55D550F5 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .s625422E3 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; text-indent:-18pt } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .sFB30C84 { width:4.01pt; font:7pt 'Times New Roman'; display:inline-block } .s1C90AC38 { width:6.67pt; font:7pt 'Times New Roman'; display:inline-block } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s869C3B81 { margin-top:0pt; margin-left:72pt; margin-bottom:0pt; text-indent:-18pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .sEF20767A { margin-top:12pt; margin-bottom:24pt; text-indent:14.4pt; page-break-inside:avoid; page-break-after:avoid } .sEB4E289 { margin-top:24pt; margin-bottom:12pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sEF8F76C5 { width:20.87pt; display:inline-block } .sFF77B72 { width:192.92pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s863EC76E { width:219.61pt; display:inline-block } .sBC17FC26 { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt; page-break-inside:avoid; page-break-after:avoid } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s97B7A20 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .sB659ABF5 { margin-top:18pt; margin-bottom:24pt; text-align:center; font-size:10pt } .s8F831CC6 { margin-top:24pt; margin-left:29.2pt; margin-bottom:18pt; text-indent:-17.6pt; font-size:10pt } .s6E6761CC { width:6.25pt; text-indent:0pt; display:inline-block } .s52F91A76 { margin-top:18pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .sF0B473AD { margin-top:12pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; font-size:10pt } .s92B616D7 { margin-top:18pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s21931692 { margin-top:24pt; margin-left:29.2pt; margin-bottom:18pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt }       THIRD SECTION             CASE OF AKTAŞ v. TURKEY   (Application no. 24351/94)   This version has been rectified under Rule 81 of the Rules of Court on 23   October 2003                     JUDGMENT       STRASBOURG   24 April 2003   This judgment is final but it may be subject to editorial revision.   In the case of Aktaş v. Turkey, The European Court of Human Rights (Third Section), sitting as a   hamber composed of:   Mr   I. Cabral Barreto , President ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   B. Zupančič ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   K. Traja , judges ,   Mr   F. Gölcüklü, ad hoc judge , and Mr V. Berger , Section Registrar , Having deliberated in private on 3 April 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case was referred to the Court as established under former Article   19 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the European Commission of Human Rights (“the Commission”) on 30 October 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. 2.     The case originated in an application (no.   24351/94) against the Republic of Turkey lodged with the Commission under former Article 25 of the Convention by a Turkish national, Mr Eshat Aktaş (“the applicant”), on 8   June 1994.     The applicant alleged, in particular, that his brother Mr Yakup Aktaş had died as a result of torture at the hands of agents of the respondent Government. 3.     The Commission's request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a   decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 3, 6 and/or 13 and 14 of the Convention. 4.     The Commission declared the application admissible on 4 September 1995. In its report of 25 October 1999 (former Article 31 of the Convention) [ Note by the Registry. Copies of the report are obtainable from the Registry], it expressed the unanimous opinion that there had been violations of Articles 2, 3 and 13 of the Convention but no violation of Article   14 of the Convention. 5.     The applicant, who was granted legal aid, was initially represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom. On 10 March 2000 they stood down in favour of Mr William Bowring, also a lawyer practising in the United Kingdom. On 13 March 2000 the applicant appointed as his representatives Mr Philip Leach, a lawyer with the Kurdish Human Rights Project (“KHRP”), a non-governmental organisation based in London, and Mr   Osman Baydemir, Ms Reyhan Yalçındağ and Mr Cihan Aydın, lawyers practising in Turkey. By a letter dated 30 July 2002 the applicant withdrew the authority which he had given to Mr Baydemir, Ms Yalçındağ and Mr   Aydın. On 2 September 2002 Mr Leach stood down. He was replaced by Ms Anke Stock, Mr Mark Muller and Mr Tim Otty of the KHRP. 6.     The Turkish Government (“the Government”) were represented mainly by their Agent, Mr Bahadır Kaleli . 7.     On 6 and 8 December 1999 a panel of the Grand Chamber decided that the case should be dealt with by a Chamber constituted within one of the Sections of the Court. Subsequently 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. 8.     Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr   .   Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 9.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). 10.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section. Within this Section also, 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. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Introduction 11.     The applicant was born in 1973 and lives in Derik, Turkey. 12.     The case concerns the circumstances of the death of the applicant's brother, Mr Yakup Aktaş. According to his death certificate, Mr Yakup Aktaş, who was born in 1964, died in Mardin, Turkey, on 25 November 1990. He left a widow and also a daughter who had been born earlier that year. 13.     The applicant alleges that the death of Yakup Aktaş resulted from torture following his arrest. The Government deny this. 14.     The facts of the case being in dispute, the Commission appointed Delegates who took evidence in Ankara on 19 and 20 November 1997. They heard the applicant and the following witnesses: the applicant's brother Mr Mahmut Aktaş, the Public Prosecutor Şevki Artar, Professor Dr Özdemir Kolusayın, Dr Hüseyin Sarı and Dr Güneş Pay. 15.     On 18 November 1997, while evidence was being taken in a different case, the Acting Agent of the Government submitted that, for their security, ten members of the gendarmerie who had been summoned to appear before the Delegates in the present case should give evidence in the absence of the applicant and his relatives and be shielded from the view of the applicant's representatives by a screen. On 19 November 1997 the Government extended that request to include a further witness: the member of the gendarmerie who had investigated Yakup Aktaş's death on behalf of the Mardin Provincial Administrative Council. Having deliberated, the Delegates decided not to comply with the request for a screen. However, they suggested to the Acting Agent that the eleven witnesses give their evidence on a day when neither the applicant nor his relatives would be present in the Palace of Justice. The Acting Agent informed the Delegates that the eleven witnesses would not give evidence in those circumstances, whereupon the Delegates invited the Government to submit their request to the Commission in writing, giving full reasons for it in respect of each witness. 16.     Further documentary material was submitted by the parties during the hearing. On 20   November 1997 the Acting Agent showed four photographs of a body said to be that of Yakup Aktaş. They were not marked with any kind of identifying information, either on the front or on the back. At the conclusion of the hearing the Delegates requested the Government to submit further information, a number of documents and two sets of copies of the photographs with the negatives. That request was subsequently confirmed by a letter dated 26   November 1997. On the same day the parties were also requested to inform the Commission of the names of any witnesses they might still wish to be heard. 17.       On 8 December 1997 the Government were reminded of an outstanding request for the name of the doctor who pronounced Yakup Aktaş dead. 18.       By a letter dated 23 December 1997 the Government submitted a doctor's note relating to one of the witnesses who had not appeared before the Delegates and a number of other documents. One of these was a copy of a letter dated 10 December 1997 from the Chief Public Prosecutor at Mardin to the Ministry of Justice (General Directorate of International Law and External Relations) to the effect that the requested negatives of the four photographs were not in the file at the Mardin Assize Court or in the possession of the Mardin Provincial Gendarmerie Headquarters. 19.       By a letter dated 5 February 1998 the Government informed the Commission that it had not proved possible to trace the name of the doctor who had pronounced Yakup Aktaş dead. 20.       On 12 February 1998 the Government were reminded that not all the information and documents mentioned in the Commission's letter of 26   November 1997 had been submitted. In reply, the Government stated in their letter of 20 March 1998 that all requested documents had been provided to the Commission. On 27 March 1998 the Commission provided the Government with a list of the information and documents which had yet to be submitted. 21.       On 12 March 1998 the parties were informed that the Commission was expected to examine the state of the proceedings on the application at its session beginning on 14 April 1998 and that, unless a reply to the question concerning witnesses contained in the Commission's letter of 26   November 1997 was received beforehand, it would be assumed that they did not wish any further witnesses to be heard. 22.       By a letter dated 15 April 1998 the Government requested that five witnesses, all officers in the gendarmerie, be heard. They stressed, however, that all necessary security measures should be taken. On 20 April 1998 the Government were requested to inform the Commission why such special arrangements were necessary and in what way the present case fell to be distinguished from other cases in which evidence from members of the security forces had been heard. They were further requested to specify the security measures they sought. 23.       By a letter dated 20 April 1998 the Government submitted the two sets of copies of the photographs that had been requested by the Commission in its letter of 26   November 1997. 24.       By a letter dated 5 May 1998 the Government asked the Commission to hear the five witnesses they had proposed in the absence of both the applicant and his representatives so that they would not be recognised. 25.       On 23 May 1998 the Commission examined that request. It decided not to accede to it in so far as it related to the hearing of the witnesses in the absence of the applicant's representatives. The parties were informed of the Commission's decision on 27 May 1998, the Government being requested to confirm that the five witnesses could be heard under normal conditions. 26.       By a letter dated 27 May 1998 the Government submitted information that had been requested by the Commission in its letter of 26   November 1997. 27.       On 4 June 1998 the Government were again reminded that not all the information and documents mentioned in the Commission's letter of 26   November 1997 had been submitted. 28.       By a letter dated 5 June 1998 the Government submitted observations concerning the hearing of the five witnesses. They again requested that the witnesses be heard in the absence of the applicant and his representatives, failing which they would not give evidence. 29.       By a letter dated 23 June 1998 the Government submitted information requested by the Commission in its letter of 26 November 1997. They added that some documents referred to in the Commission's reminder letter of 4 June 1998 had already been submitted. 30.       On 4 July 1998 the Commission examined the Government's observations of 5 June 1998 pertaining to the hearing of the five witnesses. It decided that it would not reverse its decision of 23 May 1998. The parties were informed of the Commission's decision on 6 July 1998 and were also invited to submit their written submissions on the merits. At the same time the Commission specified a document the Government had not yet provided. 31.       By a letter dated 9 July 1998 the Government submitted a number of observations on the merits of the case. 32.       By a letter dated 4 September 1998 the Government submitted the document specified in the Commission's letter of 6 July 1998. B.     The applicant's submissions on the facts 33.     The applicant's brother Yakup Aktaş was arrested on 18   November 1990 by the Derik district gendarmerie. Prior to his arrest he had been in good health apart from a minor venereal infection for which he had received treatment. After his arrest Yakup Aktaş was taken to Dr   Adnan Parkan for an examination. Dr Parkan issued a certificate stating that Yakup Aktaş showed no signs of having been beaten or subjected to force or violence. 34.     The next morning (19 November 1990) Mahmut Aktaş, another of the applicant's brothers, visited Yakup Aktaş and saw that he was in good health. Later that morning Yakup Aktaş was transferred to the Mardin interrogation centre, where he was held until his death. He died shortly after 7.30 p.m. on 25 November 1990. A post-mortem examination and a full autopsy were performed at 10 p.m. that same evening. As neither yielded a positive finding as to the exact cause of death, the reports of the two examinations and specimens taken from Yakup Aktaş's body were sent to the Institute of Forensic Medicine of the Ministry of Justice. The forensic examination concluded that it was not possible to determine the cause of death from the information available. 35.       The body was returned to the applicant and other members of his family prior to the burial. They observed the injuries which were also described in the reports of the post-mortem examination, the autopsy and the forensic examination. The injuries described were consistent with death by deliberate asphyxiation, and thus with the evidence of the consultant pathologist engaged by the applicant. 36.     On 26 November 1990, the day after Yakup Aktaş's death, the applicant lodged a complaint with the public prosecutor at Derik concerning his brother's death. However, the investigation did not begin until 30 November 1990, no search for evidence took place at all and the witnesses were not interviewed until March   1991. C.     The Government's submissions on the facts 37.     The questioning of Yakup Aktaş by the two gendarme officers who were subsequently prosecuted had come to an end on 23 November 1990, that is two days before Yakup Aktaş's death. Yakup Aktaş had shown no signs of illness or pain in the period between 18 and 23   November 1990, either during questioning or between sessions. Had he done so, the regiment's doctor would have been available. Yakup Aktaş's pale complexion and his need to drink large quantities of water suggested a connection with his medical history of two urinary infections. 38.     Despite the fact that 25 November 1990 was a Sunday, all measures and precautions required by Yakup Aktaş's sudden illness had been taken in order for him to receive immediate medical attention. Thus, the persons in charge had been alerted to the situation at once and Yakup Aktaş was transferred to hospital without delay. Likewise, an investigation had been commenced immediately and the applicant had subsequently been able to intervene in the criminal proceedings against the gendarme officers. A large number of statements from witnesses had been obtained. The accused officers were acquitted because of a lack of sufficient factual and medical evidence. D.     Proceedings before the domestic authorities 39.       On 25 November 1990 a post-mortem examination and full autopsy were performed on the body of Yakup Aktaş at the Mardin State Hospital. His body was identified by Captain Mehmet Göçmen, commander of the Mardin provincial central gendarmerie. The report on those examinations (see paragraphs 153-160 below) stated, inter alia , that since the exact cause of death had not been established, tissue samples of internal organs had been taken and dispatched to the Institute of Forensic Medicine. 40.       At 8.10 p.m. on 25 November 1990 an inspection of the interrogation centre of the Mardin provincial gendarmerie was carried out by four members of the gendarmerie (see paragraph 61). 41.       On 27 November 1990 a public prosecutor at Derik ruled that he had no jurisdiction ratione loci to deal with the applicant's complaint that his brother Yakup Aktaş had died as a result of torture at the hands of intelligence officers at the interrogation centre of the Mardin provincial gendarmerie. The case file was transmitted to the Mardin Public Prosecutor's Office. 42.       The Mardin Public Prosecutor Şevki Artar decided on 29 November 1990 that he had no jurisdiction ratione materiae and referred the investigation to the Mardin Provincial Administrative Council. Major Dursun Şeker was appointed to conduct the investigation. 43.       On 20 February 1991 the Institute of Forensic Medicine issued a report, from which it appeared that the exact cause of death could not be established (see paragraphs 161-164 below). 44.       Between 13 and 20 March 1991 a number of persons, including the applicant, made statements to Major Dursun Şeker. On 21 March 1991 Major Dursun Şeker issued a report (see paragraphs 125-129). The recommendation contained therein, that gendarme officers Major Aytekin Özen and Master Sergeant Ercan Günay should not face prosecution, was adopted by the Mardin Provincial Administrative Council in its decision of 6   June 1991. The Council of State overturned that decision on 24 June 1992 on the automatic appeal to which the decision was subject and ordered that Major Aytekin Özen and Master Sergeant Ercan Günay be charged with the offence of unintentional homicide (Article 452 of the Criminal Code) and should stand trial at the Mardin Assize Court. In its decision the Council of State held that it appeared from the report of the post-mortem examination and autopsy that Major Özen and Master Sergeant Günay had caused Yakup Aktaş's death by beating him during interrogation. 45.       On 23 September 1992 the Mardin Assize Court decided that it was not competent to try the case and transferred it to the Ankara Assize Court. In its decision of 26 October 1992 the latter court also declined jurisdiction and transferred the file to the Court of Cassation in order to have the jurisdiction issue settled. On 29   December 1992 the Court of Cassation quashed the decision of the Mardin Assize Court of 23 September 1992, finding that it did have jurisdiction. 46.       The proceedings against Major Aytekin Özen and Master Sergeant Ercan Günay on a charge of having caused Yakup Aktaş's death by beating during interrogation commenced at the Mardin Assize Court on 3 March 1993. The applicant was given permission to take part in the proceedings as an intervening party. On 3 March 1993 the Assize Court found that the decision of the Council of State of 24 June 1992, committing the two defendants for trial, did not contain the minimum information required by law concerning the identities of the accused. For this reason it transmitted the file to the Council of State. On 19 March 1993 the Council of State held that its decision of 24   June 1992 contained sufficient information to enable the identities of the defendants to be determined. It returned the file to the Mardin Assize Court. 47.       Hearings took place before the Mardin Assize Court on 12 May, 7   July, 21   September, and 23 November 1993, and 2 February, 30 March, and 11 May 1994. On the latter date the defendants Major Aytekin Özen and Master Sergeant Ercan Günay were acquitted. 48.       The applicant lodged an appeal on points of law with the Court of Cassation. It was rejected on 6 February 1995. E.     Evidence contained in the Court's case file 49.     The documentary evidence obtained by the Commission and the transcript of the hearing before the Commission's Delegates have been transmitted to the Court and are in the case file. 1.       Documentary evidence 50.       The parties submitted various documents to the Commission. These related to the investigation and court proceedings and included statements from the applicant and witnesses concerning their version of the events in issue in this case. The Government also submitted copies of four colour photographs said to have been taken of the body at the Mardin State Hospital. 51.       The Commission, when drawing up its report under former Article   31 of the Convention, had particular regard to the following documents: (a)     Applicant's statement dated 4 December 1992 to the Diyarbakır branch of the Human Rights Association (hereinafter referred to as “HRA”) 52.       At about 4 p.m. on 18 November 1990 the applicant's brother Yakup Aktaş had been apprehended in Derik. While still there, he had been taken to the local health clinic where he had been issued with a medical report stating that he was not suffering from any medical complaint whatsoever. The following morning Yakup had been taken to the interrogation centre at the Mardin provincial gendarmerie headquarters. A week later, on 25   November 1990, the applicant's uncle Süleyman had been informed that Yakup had died. Süleyman Aktaş had taken delivery of Yakup's body at the morgue of Mardin State Hospital on 26   November 1990. 53.       As the relatives of Yakup were waiting in a convoy of vehicles the security forces had escorted the hearse to the cemetery at Derik and ensured an immediate burial. During that time, strict security measures had been imposed on the district; entry into or exit from the district was prohibited and helicopters patrolled overhead. A delegation of the Human Rights Association (HRA) had been refused entry to the district. 54.       The person who had washed Yakup's body had observed bruises and scratches to both wrists and arms and the back. The back of the head had been entirely crushed and blood was still flowing from it. There was also an injury to the forehead. The authorities had claimed that Yakup had died as a result of a heart attack but the injuries observed on Yakup's body constituted proof of the fact that he had died as a result of torture. (b)     Statement by the applicant dated 26 November 1990 to the Derik Public Prosecutor 55.       The applicant stated that he wished to file a complaint concerning the death of his brother, Yakup Aktaş, whose body had been delivered to the family that day (26 November 1990). Yakup had been taken to Mardin eight days previously for interrogation and had died under interrogation. In the applicant's opinion, the death was not due to natural causes but had been brought about by torture. A healthy person would not have died for no apparent reason. He demanded the prosecution and conviction of the persons responsible for Yakup's death. 56.       The applicant requested that a second autopsy be performed, stating that the original autopsy might have been carried out in such a way as to conceal the real cause of death. (c)     Record of mutual identification and confrontation of suspects, undated 57.       This record describes how Yakup Aktaş was confronted with a fellow suspect, one Ali Alay. Ali Alay said that Yakup Aktaş was the person who had given him banknotes. Yakup Aktaş confirmed that he had given Ali Alay approximately ten million Turkish liras (TRL) in banknotes wrapped in a newspaper. 58.       During a confrontation between another fellow suspect, Osman Önen, and Ali Alay, the latter stated that he had given the money received from Yakup Aktaş to Osman Önen. Osman Önen confirmed having received money from Ali Alay. 59.       The record is signed by Captain Mehmet Göçmen as the person who conducted the identification procedure. It further contains the thumbprints of Ali Alay and Osman Önen. A handwritten note underneath the name of Yakup Aktaş states that it had been assumed that Yakup Aktaş would sign the record at a later stage but that his death had prevented him from doing so. (d)     Incident report dated 25 November 1990 60.       This report is signed by Lance Corporals Ali Yavaş and Mustafa Tüylek and by Master Sergeants Yusuf Karakoç, Mehmet Yılmaz, Mustafa Ten, Süleyman Altuner, Üzeyir Nazlım and Ramazan Baygeldi. It states that at around 7.30 p.m. on 25 November 1990 sounds were heard in cell no. 18. The door of the cell was opened and the occupant was found unconscious, having convulsions and thrashing from side to side. An attempt was made to contact Senior Major Haşim Üstünel, the head of the intelligence unit, but when he proved unavailable Colonel Enver Uysal, commander of the Mardin provincial gendarmerie, was informed. On Colonel Uysal's instructions the detainee, who was established to be Yakup Aktaş, was taken to hospital by car. On examination at the hospital it was determined that Yakup Aktaş had died in transit. (e)     Record of inspection of the interrogation centre on 25 November 1990 61.       This record is signed by Senior Colonel Pekcan Cengiz (deputy commander of the 22nd Border Brigade), Senior Major Haşim Üstünel, Sergeant Major Ali Yavaş and Master Sergeant Yusuf Karakoç. It states that on the verbal instructions of the Mardin provincial security command the signatories of the record arrived at the interrogation centre of the Mardin provincial gendarmerie at approximately 8.10   p.m. on 25 November 1990. After an inspection and search of the premises it was established that the interrogation centre was equipped with modern equipment and that there were no tools or instruments that could be used to torture, torment or use force against persons interrogated there. It was further established that the interrogations were carried out using modern techniques and in accordance with the instructions. An examination of the detention area showed that the cells, which had been designed for one detainee, could easily accommodate three, that the necessary medical checks were made and that the needs of the detainees were met. The authors of the record concluded that any inhuman treatment of detainees there was out of the question. (f)     Letter from the Mardin Public Prosecutor, Şevki Artar, to the Institute of Forensic Medicine dated 26 November 1990 62.     The Public Prosecutor, Şevki Artar, informed the Institute of Forensic Medicine that on 25 November 1990 an autopsy had been performed on the body of Yakup Aktaş, who had died that same day at the Mardin State Hospital after having been taken suddenly ill at the Mardin provincial gendarmerie headquarters, where he was detained. Given that it had not proved possible to determine the exact cause of death it had been decided that tissue samples from the body should be sent to the Institute of Forensic Medicine and that the Institute's opinion be sought as to the exact cause of death. (g)     Decision issued by the Mardin Public Prosecutor, Şevki Artar, on 29   November 1990 that he had no jurisdiction 63.       This decision mentions “gendarme officers serving at the intelligence and interrogation department of the Mardin provincial gendarmerie” as being accused of the offence of torture, and the date of the offence is given as 25 November 1990. It relates how Yakup Aktaş was taken into custody by officers serving at the aforementioned department on 19 November 1990 following rumours to the effect that he had connections with the PKK, an illegal organisation. After Yakup Aktaş's death at Mardin State Hospital, where he had been taken after being taken suddenly ill on 25   November 1990, an inconclusive autopsy had been performed and tissue samples had been sent to the Institute of Forensic Medicine. 64.       The decision further refers to the statement made by the applicant before the Derik Public Prosecutor on 26 November 1990 in which the applicant alleged that his brother Yakup had died as a result of being tortured during interrogation. 65.       Since the incident involved the conduct of civil servants, it was decided in accordance with Article 4 § 1 of Decree no. 285 to refer the case file to the Mardin Provincial Administrative Council. (h)     Statements taken by Major Dursun Şeker in the proceedings before the Mardin Provincial Administrative Council i.     Applicant's statement dated 14 March 1991 66.       In this statement the applicant is referred to as the “complainant”. The statement which he had made to the Derik Public Prosecutor on 26   November 1990 was read out to him. The applicant stated that his brother Yakup Aktaş had been apprehended in Derik on 18 November 1990 and had been transferred to the Mardin gendarmerie interrogation centre on 19 November 1990. At that time the applicant had been at university in Diyarbakır. He had been informed three days later that his brother had been taken into custody, whereupon he had returned to Derik to run Yakup's grocery shop. On the morning of 26 November 1990 Yakup's body had been brought to Derik and it was then that he had learned of his brother's death. 67.       He remembered that Yakup had once had an illness (a pustule on the penis) for which he had received medical treatment, but he could not recall exactly when this had been. Other than this he was not aware of Yakup having suffered any medical complaints. 68.       Yakup had died at the interrogation centre and it was very probable that he had been tortured. However, the applicant did not know for certain whether torture was the cause of death. That fell to be decided by the doctors performing the autopsy and the Institute of Forensic Medicine. If Yakup had died as a result of torture, he wanted the culprits punished. However, if death had occurred by natural causes it had been God's will. 69.       Finally, it is recorded that the statement was read out to the applicant, who confirmed its accuracy by signing it. ii.     Statement of Mahmut Aktaş dated 14 March 1991 70.       In this interview Mahmut Aktaş was asked whether he had any complaints in relation to his brother Yakup Aktaş, who had fallen ill on 25   November 1990 at the Mardin interrogation centre and had died in hospital. He was also asked whether Yakup had been suffering from an illness previously. 71.       He replied that he did not know whether Yakup had had an illness prior to his arrest. Even if Yakup had been ill and had received medical treatment he had not been aware of the fact. They shared the same house and he did not recall Yakup having any medication at home. On the day of Yakup's arrest, 18 November 1990, two police officers had come to Mahmut's bakery and said that Yakup had to attend the police station to pay a fine. Mahmut had sent an employee to his home to alert Yakup. The police superintendent had taken Yakup to the gendarmerie where Yakup had undergone a medical examination. Yakup had been kept at the gendarmerie overnight. He had visited Yakup the following morning and found him in good health and not suffering from anything. Yakup had been transferred to Mardin the same day. 72.       Whilst in Mardin on 26 November 1990 he had been informed that Yakup had died at the hospital after being taken ill at the interrogation centre and that his body had been taken to Derik. If Yakup's death was the result of torture he wanted to see the culprits punished. However, if death had occurred by natural causes then it had been God's will and there was nothing for him to say. 73.     It was recorded in the statement that it had been read out to him following which he confirmed its accuracy by signing it. iii.     Statement of Ms Dediye Aktaş dated 14 March 1991 74.   Ms Dediye Aktaş, Yakup Aktaş's mother, was asked the same questions as Mahmut Aktaş (see paragraph 70 above). She stated that her son Yakup had been called to the gendarmerie on 18   November 1990 upon which he had been apprehended and sent to the Mardin gendarmerie. One week later she had been informed of his death. Her son had not been suffering from any illness when he was arrested. He had not to her knowledge been ill or treated for any illness previously. As she was illiterate, she was not familiar with the content of the medical reports on her son's death, nor did she know what cause of death had been given. She knew that her son had been beaten to death and wished to lodge a complaint against all those responsible. She confirmed the accuracy of her statement with a thumbprint after it had been read out to her. iv.     Statement of Alaattin Aydın dated 14 March 1991 75.       Alaattin Aydın, a police constable serving with the Derik district police force, stated that on 18 November 1990 the Derik district gendarmerie had requested Yakup Aktaş's arrest. Together with a colleague he had asked Yakup Aktaş's brother Mahmut to tell Yakup to go to the police station to pay a fine for a minor offence. He had met Yakup Aktaş while he was on the way to the police station. He had not noticed anything unusual about him. Yakup Aktaş had been taken to the district gendarmerie headquarters and handed over to Senior Sergeant İlhan Keskin. v.     Statement of Senior Sergeant İlhan Keskin dated 14 March 1991 76.       İlhan Keskin, a Senior Sergeant in the gendarmerie in charge of administrative affairs at the Derik district gendarmerie headquarters, stated that on 18 November 1990 Major Aytekin Özen of the interrogation centre had telephoned him and given him instructions to arrest Yakup Aktaş. He had contacted the Derik police superintendent and had brought the matter to his attention. In the afternoon two police officers had brought Yakup Aktaş to the gendarmerie headquarters. He had had Yakup Aktaş examined by Dr   Adnan Parkan at the district health centre in accordance with usual practice. He had then received the report of the medical examination. Yakup Aktaş's name had been entered in the custody record and he had spent the night in the cells at the district gendarmerie headquarters. 77.       The following morning (19 November 1990), the witness had blindfolded Yakup Aktaş and taken him to the Mardin interrogation centre where, some time before noon, he had delivered him into the hands of Master Sergeant Mustafa Ten. In his opinion, Yakup Aktaş had appeared listless, nervous and anxious. Also, Yakup Aktaş had been somewhat overweight. It was an established fact that Yakup Aktaş had provided assistance and supplied guns to the PKK. vi.     Statement of Dr Adnan Parkan, undated 78.       Dr Adnan Parkan stated that Yakup Aktaş had been brought to him for a medical check-up on 18 November 1990 after his arrest by the district gendarmerie. The signature on the medical report bearing that date was his. He had drawn up the report after asking Yakup Aktaş whether he had been beaten to which Yakup Aktaş had replied that this was not the case. He had not asked Yakup Aktaş to undress and thus had not conducted an external physical examination since the purpose of the check-up had been to ascertain whether or not Yakup Aktaş had been beaten. 79.       He did not remember whether or not he had previously examined Yakup Aktaş but, since the data contained in the register of the health clinic were correct, it must have been the case that Yakup Aktaş had come to see him on two occasions. Yakup Aktaş's illness had been diagnosed as urethritis. He did not think that that disease was the cause of death since otherwise it would have been stated in the autopsy report. He knew Yakup Aktaş because he ran a grocery shop in the district. Yakup Aktaş had been a little overweight. He described Yakup Aktaş as a respectful, polite person. vii.     Statement of Colonel Enver Uysal dated 18 March 1991 80.       Colonel Uysal, commander of Mardin provincial gendarmerie, stated that although the interrogation centre was situated on the premises of the Mardin provincial gendarmerie and although the interrogation unit appeared to form part of the intelligence unit, the position was in fact completely different in practice. The interrogation centre functioned as the interrogation centre for the Mardin provincial security command. Persons to be taken into custody would be apprehended by the Mardin provincial central gendarmerie on the orders of the security command. 81.       He would receive a list with the names of the persons who had been taken into custody but it was the personnel serving at the interrogation unit who decided which suspects were to be interrogated by which officers. As provincial gendarmerie commander he would frequently attend interrogations. Such inspections were general in nature. He had never witnessed any ill-treatment being meted out at the interrogation sessions he had attended. 82.       Early in the evening of 25 November 1990 Sergeant Major Ali Yavaş had telephoned him to say that a detainee named Yakup Aktaş had fallen ill and that they wanted to take him to hospital. He had ordered that Yakup Aktaş be taken to hospital immediately. Approximately half an hour later Ali Yavaş had informed him that Yakup Aktaş had been hospitalised but had died before the doctor could intervene. Thereupon, the public prosecutor's office had been informed of the incident and the necessary investigations had commenced. He was not aware of the cause of death but did not think that Yakup Aktaş had died as a result of torture. The interrogation building was in complete conformity with sanitary requirements and persons being held for interrogation were never ill-treated. 83.       He had subsequently been told by the head of the interrogation unit that Yakup Aktaş had been interrogated by Master Sergeant Ercan Günay and Major Aytekin Özmen. He had never seen Yakup Aktaş. viii.     Statement of Captain Mehmet Göçmen dated 15 March 1991 84.       In this statement Captain Göçmen is introduced as a gendarme captain, commander of Mardin provincial central gendarmerie. He was asked whether it was correct that Yakup Aktaş had been taken with two co ‑ accused for mutual identification under his, Göçmen's, supervision. He stated that the interrogation of suspects was carried out by interrogation personnel serving under the command of the intelligence unit of the provincial gendarmerie. Related correspondence bore his signature because he was the officer in charge of judicial matters. Prior to the confrontation for identification purposes of Yakup Aktaş with his two co ‑ accused he had been asked to go to the i