CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 avril 2004

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page-break-inside:avoid; page-break-after:avoid } .s71833996 { width:42.55pt; display:inline-block } .s7BA35C35 { width:264.49pt; display:inline-block } .sB9B7079 { width:258.15pt; display:inline-block } .s5D40ED98 { width:28.87pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }                   CASE OF TAHSİN ACAR v. TURKEY   (Application no. 26307/95)                     JUDGMENT (Merits)     STRASBOURG   8 April 2004               In the case of Tahsin Acar v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Mr   G. Ress ,   Sir   Nicolas Bratza ,   Mr   A. Pastor Ridruejo ,   Mr   G. Bonello ,   Mr   L. Caflisch,   Mrs   F. Tulkens,   Mrs   V. Strážnická,   Mr   P. Lorenzen,   Mrs   N. Vajić,   Mr   M. Pellonpää,   Mrs   M. Tsatsa-Nikolovska,   Mr   E. Levits,   Mr   L. Garlicki , judges ,   Mr   F. Gölcüklü , ad hoc judge , and Mr P.J. Mahoney , Registrar , Having deliberated in private on 2 April 2003 and 24 March 2004, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 26307/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Tahsin Acar (“the applicant”), on 29   October 1994. The applicant stated that the application was also lodged on behalf of his brother Mehmet Salim Acar [1] . 2.     The applicant, who had been granted legal aid, was initially represented before the Court by Mr P. Leach, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London, and subsequently by Mr K. Starmer, a barrister practising in the United Kingdom. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Chamber which initially examined the case. They subsequently designated Mr   E.   İşcan and Mr M. Özmen as Agents when the case was referred to the Grand Chamber (see paragraph 24 below). Having originally been designated by the initials T.A. in the proceedings before the Chamber, the applicant subsequently agreed to the disclosure of his name. 3.     The applicant alleged, in particular, that his brother Mehmet Salim Acar had disappeared on 20 August 1994, when he was abducted by two unidentified persons – allegedly plain-clothes police officers. The applicant complained of the unlawfulness and excessive length of his brother's detention, of the ill-treatment and acts of torture to which his brother had allegedly been subjected while in detention, and of the failure to provide his brother with the necessary medical care in detention. The applicant further complained that his brother had been deprived of the services of a lawyer and of all contact with his family. The applicant relied on Articles 2, 3, 5, 6, 8, 13, 14, 18, 34 and 38 of the Convention. 4.     The Commission decided on 4 September 1995 to give notice of the application to the Government and to invite them to submit written observations. The Government submitted their observations on 21   December 1995, to which the applicant replied in his submissions of 20   March 1996. 5.     The Commission declared the application admissible on 30 June 1997 and requested the Government, inter alia , to submit a copy of the complete case file of the Diyarbakır Provincial Administrative Council ( İl İdare Kurulu ). The Commission reminded the Government of this request on 17   December 1997, 27 January 1998 and 8 September 1999. 6.     The Commission, in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, transmitted the application to the Court on 1 November 1999, the Commission not having completed its examination of the case by that date. 7.     The application was initially 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. 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. 8.     On 29 February 2000 the Chamber examined the state of the proceedings in the application and noted, inter alia , that despite several reminders the Government had failed to submit the case file of the Diyarbakır Provincial Administrative Council. 9.     The Chamber, having decided that no hearing on the merits was required (former Rule 59 § 2 in fine ), invited the parties on 2 March 2000 to submit final written observations. 10.     On 19 April 2000 the applicant's representatives informed the Court that the mother, sister and wife of Mehmet Salim Acar claimed to have seen him on an NTV channel news programme broadcast on 3 and 4 February 2000. The applicant's family had attempted to obtain a video recording of these broadcasts, but without success (see paragraph 170 below). 11.     On 28 April 2000 the Chamber put several questions to the Government in relation to the alleged sighting on television and requested the Government to submit a video recording of the NTV news broadcasts referred to by the applicant. The Court further informed the parties that the time-limit fixed for the submission of the parties' final observations had been adjourned until further notice. 12.     On 6 July 2000 the Government informed the Court that the person cited in the NTV news broadcast was not the applicant's brother and that, in all probability, it was a case of a confusion of names. As the Government had not submitted the requested video recording, the Court reminded the Government on 13 July 2000 of its outstanding request to do so. A further reminder was sent to the Government on 5 September 2000. 13.     On 18 October 2000 the Court also requested the applicant's representative to submit a video recording of the broadcasts he had referred to and, in case he was unable to do so, to inform the Court of the reasons therefor. 14.     On 9 November 2000 the applicant's representative informed the Court of the steps he had taken to obtain the requested video recording. 15.     On 17 January 2001 the Government submitted a video recording of the NTV news programmes broadcast on 3 February 2000 at 11 a.m. and 11   p.m. 16.     By letters of 24 and 25 January 2001, the applicant's representative informed the Court that the NTV administration had refused to provide him with a video recording of the news broadcasts, stating that a request to this effect had to be made by the applicant in person, and that, on 25 January 2001, the applicant himself had sent a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m. 17.     On 20 February 2001 the applicant's representative informed the Court that the video recording submitted by the Government on 17 January 2001 had been seen by the applicant and that it did not contain the programmes broadcast at the times indicated by the Acar family. The applicant's representative further informed the Court that the applicant himself had sent a further request to the NTV administration on 16 February 2001. 18.     On 26 February 2001, having noted an apparent misunderstanding about the exact time of the relevant broadcasts, the Court requested the Government to submit a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. The Court also invited the parties to submit their final observations. 19.     On 13 June 2001 the Government informed the Court that it was not possible to comply with the request of 26 February 2001 since, in compliance with their legal obligations, the NTV administration only kept recordings of broadcasts for a period of one year. 20.     The parties submitted their final written observations on 23 April and 4 May 2001 respectively. They further considered the possibility of a friendly settlement. No   settlement was reached. 21.     By a letter of 27 August 2001, the Government requested the Court to strike the case out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues raised by the applicant. The applicant filed observations on the Government's request on 17 December 2001. 22.     Following the general restructuring of the Court's Sections as from 1   November 2001 (Rule 25 § 1 of the Rules of Court), the application was assigned to the newly composed Second Section of the Court (Rule 52 § 1). 23.     In a judgment of 9 April 2002 (“the Chamber judgment”), the Chamber decided, by six votes to one, to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention on the basis of the unilateral declaration made by the Government. 24.     On 8 July 2002 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention). On 4 September 2002 the panel of the Grand Chamber decided to accept his request (Rule 73). 25.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 26.     In a judgment (preliminary issue) of 6 May 2003, following an oral hearing held on 29 January 2003 on the question of the application of Article 37 of the Convention, the Grand Chamber decided, by sixteen votes to one, to reject the Government's request of 27 August 2001 to strike the application out of the list on the basis of the unilateral declaration made by the Government and to pursue its examination of the merits of the case. 27.     On 7 May 2003, in the context of its examination of the merits of the case, the Grand Chamber requested the Government to submit further documents, namely, a copy of the complete case file of the Diyarbakır Administrative Council and the original – a copy having already been submitted on 21 December 1995 – custody records of the Bismil gendarmerie station from August 1994. Further, having decided that no taking of oral evidence and no hearing on the merits was required (Rule 59 §§ 1 and 3 in fine ), the Grand Chamber invited the parties to make further submissions in addition to their final written observations on the merits filed with the Chamber on, respectively, 23 April and 4 May 2001. 28.     With their submissions of 6 and 27 June 2003, the Government produced the requested case file and informed the Court that, although custody records should be kept for ten years, they had been unable to find the original custody records requested by the Court. The documents were transmitted to the applicant, who was provided with the possibility of submitting comments. 29.     On 27 June 2003 both parties filed further submissions to their final observations on the merits. 30.     On 7 November 2003 the applicant filed his comments on the documents submitted by the Government in June 2003. 31.     Mr M. Fischbach, who was unable to take part in the further consideration of the case, was replaced on 15 January 2004 by Mr   G.   Bonello, substitute (Rule 24 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 32.     The applicant was born in 1970 and lives in Sollentuna (Sweden). The facts of the case, as submitted by the parties, may be summarised as follows. A.     The facts 33.     The applicant's brother Mehmet Salim Acar (son of Mehmet and Hüsna, born in Bismil in 1963), a farmer living in Ambar, a village in the Bismil district in south-east Turkey, disappeared on 20 August 1994. The facts surrounding the disappearance of the applicant's brother are in dispute between the parties. 34.     The facts as submitted by the applicant are set out in Section 1 below. The facts as submitted by the Government are contained in Section   2. A summary of the documents produced is set out in Part B. 1.     The facts as submitted by the applicant 35.     On 20 August 1994, while Mehmet Salim Acar was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off. 36.     The scene was witnessed by Mehmet Salim's son İhsan Acar and İlhan Ezer, another farmer. After the car had driven off, İhsan ran home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim's daughter, had seen her father sitting in the back of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim's hands and feet were tied, he was blindfolded and his mouth was taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since. 37.     Mehmet Salim's family filed a series of petitions and complaints about his disappearance to the authorities, including the Deputy Governor and the Bismil gendarmerie, in order to find out where and why he was being detained. 38.     On or around 27 August 1994, Mehmet Salim's sister Meliha Dal personally handed a petition about her brother's disappearance to the Deputy Governor of Diyarbakır. After reading the petition and, in her presence, speaking on the telephone with Ahmet Korkmaz, a non-commissioned officer (NCO) of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing that she could do for the time being. 39.     When leaving the Deputy Governor's office, Meliha Dal was approached by a police officer, Mehmet Şen, who volunteered to make enquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil gendarmerie command and that he could take him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take them to her brother in one or two days' time. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil gendarmerie command but that he did not know where he had been taken to. 40.     On 29 August 1994 Hüsna Acar, Mehmet Salim's mother, filed a petition with the Bismil public prosecutor requesting an investigation into her son's disappearance. On 2 September 1994 the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer. 41.     On 19 October 1994 Hüsna Acar asked the Bismil Chief Public Prosecutor for information about the progress of the investigation, but she received no reply. 42.     In letters of 29 November 1994 and 19 January 1995, the applicant asked the public prosecutor at the Diyarbakır National Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters went unanswered. 43.     On 15 March 1995 the Bismil public prosecutor wrote to the Bismil gendarmerie commander, seeking a reply to his enquiry about the case. He wrote again on 17 May 1995 to enquire whether or not the detention of Mehmet Salim Acar might have been politically motivated. 44.     On 20 July 1995 the applicant asked the Bismil Chief Public Prosecutor for information about the case of Mehmet Salim Acar and accused gendarmerie officers İzzetin and Ahmet and village guard Harun Aca of being responsible for his brother's abduction. 45.     On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother's whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995, the applicant requested the Minister for Human Rights to ensure his brother's safety and to take urgent action. 46.     On 8 September 1995 gendarmes took further statements from Hüsna, Halise and İhsan Acar. 47.     On 22 September 1995 the applicant spoke on the telephone with gendarmerie captain İrfan Odabaş, of the Bismil gendarmerie command, who told him that Mehmet Salim Acar's whereabouts were unknown and asked him whether the abductors had made any ransom demand. The applicant replied that no such demand had been made but that he would pay in return for his brother's release. 48.     On 27 September 1995 the applicant was contacted by an unknown person who asked for 1,100,000,000 Turkish liras in return for his brother's release. The applicant accepted immediately. He was told that his brother would be interrogated at the Bismil gendarmerie command and that he would be able to meet him within a week. 49.     On 5 October 1995 Mehmet Salim's family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these conditions. On 10 October 1995 Murat contacted the family again and asked them to reconsider their position, otherwise Mehmet Salim would not be released. 50.     On 25 October 1995 Meliha Dal made a statement to the Bismil gendarmerie command to the effect that, in her opinion, the gendarmerie officers İzzet Cural and Ahmet Korkmaz and the former PKK (Workers' Party of Kurdistan) member Harun Aca, who had become a village guard, were responsible for her brother's abduction. 51.     On 30 October 1995 the home of Meliha Dal was raided by officers of the anti-terrorism branch of the Diyarbakır police, who threatened her with death and attempted to abduct her 12-year-old son. 52.     In November 1995 the applicant was informed by the Diyarbakır general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians claiming to be policemen. 53.     The applicant also filed a petition about his brother's disappearance with the Investigation Commission for Human Rights of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Investigation Commission for Human Rights that the case had been investigated, that the two gendarmerie officers whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted to the applicant by the Human Rights Commission on 18 December 1995. 54.     On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the progress of the investigation. 55.     On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction ( görevsizlik kararı ) and transmitted the investigation opened in respect of gendarmerie officers İzzet Cural and Ahmet Babayiğit and village guard Harun Aca to the Diyarbakır Provincial Administrative Council for further proceedings under the Law on the prosecution of civil servants ( Memurin Muhakematı Kanunu ). 56.     On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim's disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor. 57.     On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in reply to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother remained unidentified. 58.     In a decision of 23 January 1997, the Diyarbakır Provincial Administrative Council decided not to take proceedings against the two gendarmerie officers and the village guard on the ground that there was insufficient evidence. This decision was confirmed by the Supreme Administrative Court ( Danıştay ) on 14 January 2000. 59.     On 2 February 2000 at 11 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the news all night and saw him again on the following day during the 8 a.m. television news broadcast. 60.     On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative. 61.     Two days later, the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after making a statement. 62.     On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor that she had seen her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She subsequently received no further information from the police headquarters. 63.     On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the anti-terrorism branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the anti-terrorism branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar. 64.     On 23 March 2000 three officers from the anti-terrorism branch came to Halise Acar's home and asked her for a copy of her family's entry in the population register. She was told that they were looking for Mehmet Salim Acar throughout Turkey and that it was not established that he was dead. 65.     According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş Chief Public Prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and parents did not match the particulars of the applicant's brother. 66.     On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast. 67.     On 30 May 2000 the Diyarbakır Chief Public Prosecutor issued a decision not to open an investigation ( tapiksizlik kararı ) on the basis of the petition of 11 May 2000. 68.     Later in 2000 Meliha Dal spoke with a prison officer at Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer's description of Mehmet Salim corresponded to her brother's appearance. 2.     The facts as submitted by the Government 69.     On 29 August 1994 the applicant's mother filed a petition with the Bismil public prosecutor's office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men. 70.     The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses to the events, İhsan Acar and İlhan Ezer. İhsan Acar stated that two Turkish-speaking men wearing hats and glasses had asked his father to show his identity card and that he was then put in a grey car without licence plates. İlhan Ezer declared that a grey Renault TX-model car without licence plates had approached them, that one of the two men in the car, speaking with a western Anatolian accent and wearing glasses, had forced them to show their identity cards, saying they were police officers. The men did not give back Mehmet Salim's identity card, saying that they would bring him back after he had shown them someone's land. 71.     On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor. 72.     On 15 March 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to investigate whether or not Mehmet Salim Acar had been kidnapped. In a letter of 17 May 1995, the Bismil public prosecutor asked the Bismil gendarmerie commander for information about the case. 73.     In a letter of 20 July 1995 to the Bismil public prosecutor, the applicant claimed that village guard Harun Aca, gendarmerie captain İzzettin and gendarmerie officer Ahmet had been involved in the kidnapping of his brother. On the basis of this letter, the public prosecutor decided to hear those allegedly involved and summoned all gendarmerie officers named Ahmet who worked at the Bismil gendarmerie command at the material time to be heard. 74.     On 8 September 1995 gendarmes took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant's allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons who had abducted Mehmet Salim Acar had worked at the Bismil gendarmerie command, which he denied. He further stated that Mehmet Salim Acar's behaviour had also not indicated that he knew these men. 75.     On 25 October 1995 İlhan Ezer made a statement to the Bismil notary public, in which he stated that he had seen the persons who had abducted Mehmet Salim Acar and that they were not Captain İzzet Cural and Sergeant Ahmet as alleged. 76.     On 6 November 1995 the Bismil public prosecutor took a statement from the gendarmerie officer Ahmet Uyar, who stated that he had just taken up his duties at the time of the incident and that he did not know anything about it. He further stated that there were two other gendarmerie officers named Ahmet, namely Ahmet Korkmaz, who had been killed by the PKK, and Ahmet Babayiğit, who had been transferred to a region with a different climate on medical grounds. 77.     On 23 November 1995 Harun Aca made a statement to both the gendarmerie and the Bismil public prosecutor, on which occasion he submitted a document proving that he had not been in Bismil between 19   July and 6 September 1994, when he had been participating in a security forces operation in Mardin. 78.     On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Captain İrfan Odabaş as inspector for the investigation into the applicant's allegations that his brother had been taken into detention by gendarmerie captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of temporary village guard Harun Aca. 79.     On 9 December 1996 İlhan Ezer made another statement to the gendarmerie in which he declared that he knew Captain İzzet and NCO Ahmet very well and that they were definitely not the men who had abducted Mehmet Salim Acar. 80.     On 25 December 1996 the gendarmerie took a statement from NCO Ahmet Babayiğit, who stated that he had not witnessed the incident and that he did not know anything about it. 81.     On 1 January 1997 the gendarmerie took a statement from Captain İzzet Cural, who denied that Mehmet Salim Acar had been apprehended and detained. 82.     On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca. 83.     Mehmet Salim Acar has been included on the list of persons who are being searched for by the gendarmerie throughout Turkey, and the search for him continues. 84.     The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant's brother. Several persons being held in detention have the same name as the applicant's brother. However, their dates and places of birth and particulars are different from his. B.     Documents produced by the parties 85.     The parties have produced various documents concerning the investigation into the abduction of Mehmet Salim Acar [2] . 1.     Petitions submitted by Mehmet Salim Acar's relatives to the authorities between 29 August 1994 and 11 December 1996 86.     On 29 August 1994 Hüsna Acar filed a petition with the public prosecutor's office in Bismil requesting an investigation into the disappearance of her son Mehmet Salih Acar, who had been abducted ten days before by two unknown persons – armed with Kalashnikov rifles and wearing civilian clothes – in a taxi. In her petition Hüsna Acar further stated that her family had already made enquiries with the gendarmerie and the police, who had told them that they knew nothing about it. Hüsna Acar requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible. 87.     On 19 October 1994 Hüsna Acar filed a second petition with the Bismil public prosecutor, in which she requested an investigation into the disappearance of her son. She asked the public prosecutor in particular to verify whether her son had been apprehended and was being held by the security forces. 88.     By a letter of 20 July 1995, the applicant requested the Bismil public prosecutor to grant his family permission to visit his brother Mehmet Salim Acar who, according to the applicant, had been apprehended in August 1994 by the Bismil gendarmerie commander. The applicant stated that gendarmerie captain İzzettin, NCO Ahmet and Harun Aca, an inhabitant of Ambar, were responsible for his brother's life. 89.     By a letter of 26 July 1995, the applicant complained to the Ministry of Human Rights that in August 1994 his brother Mehmet Salim Acar had been apprehended by Captain İzzettin, NCO Ahmet and counter-guerrilla agent Harun Aca, and that since then his brother was being held at the Bismil gendarmerie command. The applicant further stated that his family had not received a positive reply from the Bismil public prosecutor and the Diyarbakır National Security Court, to which they had applied, and that they were disconcerted not to have been granted permission to contact Mehmet Salim even though they had evidence that he was being detained. 90.     The applicant submitted a similar petition to the Ministry of Justice on 27 July 1995. 91.     In a further letter of 30 August 1995 to the Ministry of Human Rights, the applicant stated that, in addition to his letter of 26 July 1995, he had learned from an official, who wished to remain anonymous, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cura on the basis of information supplied by the “confessor” [3] Harun Aca. Having interrogated him, Captain İzzet had concluded that Mehmet Salim was innocent and that Harun Aca's information had been incorrect. However, as Captain İzzet feared sanctions for having detained Mehmet Salim incommunicado and for too long, for having denied him the necessary medical care and for having failed to respect his defence rights, he had kept Mehmet Salim in detention. Considering that his brother risked being killed by Captain İzzet in order to conceal the matter, the applicant requested the Ministry of Human Rights to intervene as a matter of urgency. 92.     In an undated petition, Hüsna Acar requested the Investigation Commission for Human Rights of the Turkish Grand National Assembly to examine the case of her son Salih Acar, claiming that he had been taken into detention by Captain İzzet of the Ambar gendarmerie on 6 July 1994 and that nothing had been heard from him since. Hüsna Acar sent similar petitions, also undated, to the Ankara Human Rights Centre, the Diyarbakır Governor and the General Gendarmerie Command in Ankara. 93.     On 10 November 1995 the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition concerning Salim Acar had been registered on 3 November 1995 under no. 4467/2872, that the matter would be investigated and that he would be informed of the results of the investigation. 94.     By a letter of 10 June 1996 to the Bismil public prosecutor, Hüsna Acar requested to be provided with information about the steps taken in the investigation into the abduction on 29 August 1994 of her son Mehmet Salim Acar by Captain İzzet Cural and Sergeant Ahmet Kormaz. She further claimed that, on the day her son had been abducted, two other persons – whose names she did not mention – had been abducted in the same car, that one of them had been released and that her son had initially been taken to Bismil, then to Cınar and subsequently to Diyarbakır. 95.     On 5 August 1996 Hüsna Acar requested the Ministry of the Interior to take the necessary steps to find out whether her son Mehmet Salim Acar, who had been abducted in 1994 in a white taxi by two persons whose identities she did not know, was dead or alive. 96.     On 23 August 1996 Hüsna Acar and Halise Acar filed a criminal complaint of abduction and disappearance with the Bismil public prosecutor. They claimed that, three days before his disappearance, Mehmet Salim Acar had quarrelled with Mehmet Açan, who was also living in Ambar, about a pump. Mehmet Açan had told Mehmet Salim that he would definitely “disappear” within three days at the most. Three days later, Mehmet Salim was taken away by Captain İzzettin, Mehmet Açan and Harun Açan. Hüsna and Halise Acar requested the public prosecutor to carry out an investigation and to hand the three perpetrators over to the courts. 97.     On 25 November 1996 Meliha Dal lodged a complaint with the Diyarbakır Governor, claiming that her brother Mehmet Salim Acar had had a quarrel with the brothers Mehmet and Harun Açan. On that occasion, Harun Açan had threatened her brother with death. Three days later, her brother had been taken away by Captain İzzettin and Mehmet and Harun Açan. Meliha Dal further stated that the petitions filed by Halise and Hüsna Acar with the Bismil public prosecutor and the Ministry of the Interior had not led to any results and that the Bismil Governor and the Bismil gendarmerie authorities had not even contacted Halise and/or Hüsna Acar to discuss the matter. Meliha Dal requested the Governor to question Captain İzzettin and the brothers Mehmet and Harun Açan, as she believed that her brother might have been killed by them. 98.     On 10 December 1996 the applicant sent a letter to the president of the Diyarbakır Provincial Administrative Council claiming, inter alia , that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca (see paragraph 142 below). On the same day, the applicant sent a similar letter to the President of Turkey, requesting him to investigate what had happened to his brother. 99.     On 11 December 1996 Hüsna Acar filed a petition with the Ministry of the Interior, claiming that the Ambar villager Şakir Gün had extorted money and jewellery from her family in exchange for the release of her son Mehmet Salim. Considering that Şakir Gün was thus aware of her son's whereabouts and involved in his abduction, Hüsna Acar requested the Ministry of the Interior to intervene and investigate the matter. On the same date Hüsna Acar sent an identical petition to the President of Turkey. 2.     Domestic investigation documents (a)     Custody records 100.     The submitted copy of the custody records of the Bismil gendarmerie for the period between 8 July and 13 November 1994 does not contain an entry in the name of Mehmet Salih Acar or Mehmet Salim Acar. (b)     Preliminary investigation by the Bismil public prosecutor 101.     On 29 August 1994, in an instruction written by hand at the bottom of the petition filed on that day by Hüsna Acar (see paragraph 86 above), the Bismil public prosecutor ordered the taking of a detailed statement from Hüsna Acar and the making of enquiries with the gendarmerie and the security forces. On 31 August 1994 he instructed the Bismil gendarmerie to ensure that Hüsna Acar came to his office to make a statement. 102.     On 2 September 1994 Hüsna Acar made a statement to the Bismil public prosecutor. She confirmed that she had filed a petition and stated that, about ten days before 29 August 1994, her son Mehmet Salih Acar had been taken away in a taxi by two men, who were wearing civilian clothes and armed with Kalashnikov rifles. Nothing had been heard from him since. Her grandson İhsan Acar had witnessed the incident. It appeared that the men had spoken Turkish and that they had driven off in the direction of Bismil. 103.     On the same day, Halise Acar also made a statement to the Bismil public prosecutor. She stated that her husband had disappeared ten or fifteen days earlier when he was in a cotton field with their son İhsan Acar. Two armed men had forced him to get into a taxi, which had driven off in the direction of Bismil. Nothing had been heard from him since. She further declared that she had been told that her husband had been with İlhan Ezer when he was taken away and that the taxi was a dark grey Renault without licence plates. 104.     Also on 2 September 1994, İhsan Acar (born in 1983) was heard by the Bismil public prosecutor. He stated: “On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a twenty-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan's identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.”   105.     İlhan Ezer, who was also heard by the Bismil public prosecutor on 2 September 1994, declared: “On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX-model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih's identity card. They said: 'Mehmet Salih will show us someone's field and then we will send him back.' That is all I know and what I have witnessed in relation to the incident.” 106.     On 13 September 1994 the Bismil public prosecutor informed the Bismil gendarmerie command that, about ten days before 29 August 1994, Mehmet Salih Acar had been abducted by two unknown persons – aged 25 or 26, speaking with a western Anatolian accent and one of them wearing glasses – who had come in a gunmetal Renault TX-model taxi without licence plates. The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted Mehmet Salih Acar and, when found, to bring them to his office. 107. &