CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 juillet 2004

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vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 }     FOURTH SECTION       CASE OF İKİNCİSOY v. TURKEY   (Application no. 26144/95)     FINAL     15/12/2004   JUDGMENT   This version was rectified on 15 March 2005 under Rule 81 of the Rules of the Court   STRASBOURG   27 July 2004     In the case of İkincisoy v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Mr   J. Casadevall , President ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mrs   E. Fura-Sandström ,   Ms   L. Mijović , judges ,   Mr   F. Gölcüklü, ad hoc judge , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 6 July 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 26144/95) 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 two Turkish nationals of Kurdish origin, Mr   Abdurrazak İkincisoy [1] and Mr Halil İkincisoy (“the applicants”), on 19 May 1994. 2.     The applicants were represented by Mr Boyle and Ms   Hampson, lawyers in the United Kingdom. The Turkish Government (“the Government”) did not designate an agent for the purposes of the proceedings before the Court. 3.     The applicants alleged that Mehmet Şah İkincisoy, the son of the first applicant and the brother of the second applicant, was killed in circumstances engaging the responsibility of the respondent Government. In this respect, they invoked Articles 2, 3, 5, 6, 8, 9, 13 and 14 of the Convention as well as former Article 25 of the Convention 4.     The application was declared partly admissible by the Commission on 26   February 1996. Delegates of the Commission then took oral evidence at a hearing in Ankara between 28 June and 2 July 1999. 5.     The case was 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. 6.     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. 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). 7.     The applicants and the Government each filed observations on the merits (Rule 59 § 1) The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other's observations. 8.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicants were born in 1933 and 1974 respectively and live in Diyarbakır. A.     The facts 10.     The facts surrounding the arrest and subsequent death of Mehmet Şah İkincisoy (“Mehmet Şah”) are in dispute between the parties. 1.     Facts as presented by the applicants 11.     On 22 November 1993 at about 1 a.m. plain-clothes police officers arrived at the first applicant, Abdurrazak İkincisoy's (“Abdurrazak”) [2] , apartment in Diyarbakır. They entered the apartment, carried out a quick search and inquired about Mehmet Şah. Abdurrazak informed them that Mehmet Şah was spending the night in his uncle Abdülkadir İkincisoy's apartment. Leaving one of the officers with Abdurrazak 1 , Garipşah İkincisoy, Hüseyin İkincisoy, Makbule İkincisoy and Nefise İkincisoy, the rest of the officers left taking the second applicant, Halil İkincisoy (“Halil”), with them to show them the way. 12.     When they arrived at Abdülkadir İkincisoy's apartment, one of the police officers remained at the entrance of the building. Halil and two officers went up to the second floor. When they entered the apartment, the police officers carried out a search and an identity check. Several members of the İkincisoy family were present in the apartment, namely Mehmet Şah, Abdülkadir, Nasır, Adile, Sabriye, and Bilgi İkincisoy, as well as fourteen grandchildren of Abdülkadir İkincisoy and two of Mehmet Şah's friends. One of the police officers interrogated these two men in one of the rooms. The rest of the group was held in the sitting room. Suddenly, a gun shot was heard from the room and an armed clash broke between the police officers and the two men. The police officer who was interrogating the two men was shot dead. When the shooting started, the second police officer grabbed Mehmet Şah by his arm and dragged him downstairs. Halil and the others saw the two men try to escape. They heard further gunshots from downstairs. The group subsequently learnt that one of the men had died, the other had escaped and the officer who was waiting outside the building had been wounded. 13.     Approximately ten minutes following the incident, several police teams surrounded the building. Halil, Abdülkadir, Adile, Nasır, Sabriye and Bilgi İkincisoy were arrested and taken to the Çarşı Police Station by a minibus. When they arrived at the Çarşı Police Station, they were detained in the entrance hall. On the right hand side of the entrance hall, there were three rooms, two of which were used for interrogation and the third was the office of the superintendent. Halil was called in to one of the small rooms for interrogation. When he entered the room, he saw his brother Mehmet Şah, lying on the floor face down, with his red leather jacket pulled over his head. In the meantime Abdurrazak [3] , Hüseyin, Makbule, Nefise and Garipşah İkincisoy were also arrested and brought to the Çarşı Station by another minibus. When the second group entered the station, they were told to cover their heads with their jackets. Abdurrazak 1 however was able to see through the parting of his jacket. He also saw his son Mehmet Şah standing behind him. The group was subsequently transferred to another location by a minibus. Abdurrazak 1 saw Mehmet Şah also in this second location. They were then brought to the Rapid Intervention Headquarters for interrogation, where the applicants heard the cries of Mehmet Şah. 14.     The first applicant was held in custody until 25 November 1995. When he was released, the police officers told him that if anyone asked about his son Mehmet Şah, the applicant had to say that he had fled to the mountains to join the guerrillas. The second applicant was released on 3   December 1993, eleven days after his arrest. 15.     On 6 December 1993 the first applicant went to the Diyarbakır State Security Court Public Prosecutor and submitted a petition outlining his concerns for the fate of his son. The public prosecutor showed him some photographs and from these photos the first applicant identified the body of Mehmet Şah. The public prosecutor informed him that Mehmet Şah had died in an armed clash on 25 November 1993 and that his body had been buried. When Abdurrazak [4] went to the cemetery, two unmarked graves were shown to him and he was told that one of them belonged to Mehmet Şah. On 13 December 1993 Abdurrazak 1 submitted a petition to the Diyarbakır State Security Court Chief Public Prosecutor's office and requested permission to open his son's grave. His request was rejected verbally. On 13 December 1993 Abdurrazak 1 lodged two petitions with the Diyarbakır State Security Court Chief Public Prosecutor's Office. He requested that an autopsy be conducted on Mehmet Şah's body in order to learn the true circumstances surrounding his death. He was told to go to the court to get permission for an autopsy. He filed another petition with the State Minister responsible for human rights and requested an investigation of the circumstances surrounding the death of his son. On 21   March 1993 the Ministry replied that Mehmet Şah had never been taken into custody. 16.     Following the communication of the application to the Government, Abdurrazak 1 was summoned to the Diyarbakır public prosecutor's office on 6   June 1995. He was questioned about his application to the Commission and was forced to sign a statement in which he expressed his wish to retract his application. Thereafter he went to the Diyarbakır Human Rights Association and informed them about this incident. 2.     Facts as presented by the Government 17.     The Government stated that while the Anti-Terrorism Department of the Diyarbakır Security Court was taking a statement from an arrested person in connection with an ongoing investigation, they were informed that a person called Mehmet Şah İkincisoy was aiding and abetting the PKK . Accordingly a team of police officers went to Abdurrazak's 1 apartment searching for his son Mehmet Şah. When they arrived at the apartment, the officers were informed that Mehmet Şah was spending the night at his uncle's apartment. Taking Halil with them to show them the way, the officers subsequently went to Abdulkadir İkincisoy's apartment. The officers carried out a search and found four men sleeping in one of the rooms. As they interrogated them, one of the men opened fire and killed one of the police officers. Another officer was wounded during the incident. The Government further stated that the four men tried to escape however one of them was shot dead. 18.     The Government further submitted that on 23 November 1993 the security forces received an anonymous telephone call, informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. Accordingly, an operation was conducted. When the officers arrived near the hut, an armed clash broke out and lasted approximately twenty minutes. Following the clash, two men were found dead in the hut. The officers took photographs of the bodies to enable their identification. On 24   November 1993 an autopsy was conducted on one of the bodies, which was later identified as Mehmet Şah from the photographs. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used on 22 November 1993 in Abdulkadir İkincisoy's apartment. B.     Documents submitted by the parties 19.     The parties submitted various documents to the Court. While delivering its judgment, the Court had particular regard to the following documents: 1.     Incident report dated 22 November 1993 concerning the events at Abdülkadir İkincisoy's apartment 20.     The report stated that in connection with an ongoing investigation, a search was conducted in a house on 22 November 1993. The officers were looking for Hanefi İkincisoy [5] however they were informed that Hanefi İkincisoy was at his uncle's house. Accordingly, taking Halil with them to show them the way, the police officers left the apartment. When they arrived at the second apartment, the officers conducted a quick search and found four or five men sleeping in one of the rooms. When the officers asked the men to show their identification paper, they were attacked and a gun was fired. One person was arrested and while he was being taken to the police vehicle downstairs, another police officer was shot and wounded. The arrested person escaped and the person who had shot the officer was killed. 2.     Report dated 23 November 1993 concerning the anonymous telephone call received by the police 21.     According to the report, which was signed by officer Mustafa Şen, on 23 November 1993 at about 3 a.m. the anti-terrorism department received an anonymous telephone call informing them that the perpetrators of the incident of the previous day, who had caused the death of a police officer and the wounding of another, had been seen in a hut near the Ongözlü Brigde. 3.     Incident report dated 23 November 1993 concerning the clash 22.     The report states that following information from an anonymous telephone call at about 3 a.m. that two armed men were hiding in a hut near the Öngözlü Bridge, a police operation was carried out. Taking the necessary safety precautions, the officers positioned themselves 15   metres away from the hut and ordered the two men to surrender. Shots were fired from the hut in the direction of the security forces and a clash broke out. The clash lasted approximately twenty minutes. When the firing ceased, police officers entered the hut and found two dead bodies. One of the bodies had an ammunition belt with four cartridge clip holders, a Kalashnikov rifle and a cartridge clip. A Browning pistol was found on the second body. There were no identity cards on the bodies, which were subsequently taken to the State Hospital morgue. 4.     Body examination and autopsy report dated 24 November 1993 23.     The autopsy report stated that rigor mortis had set in and bruising had appeared on the body. Two bullet entrance holes on the back side of the neck and two exit holes in the chest were noted. The report further stated that no other signs were observed. As the gunshot wounds were the certain cause of death, it was not considered necessary to carry out a full post-mortem examination. Finally, the estimated time of death was given as thirty-six hours before the autopsy was carried out. 5.     Photographs of the three dead bodies 24.     The Government have provided the photographs of the three dead bodies and photographs taken in the hut where Mehmet Şah was shot. 6.     Custody records 25.     The custody records of the Diyarbakır Security Directorate concerning the period of 21 November and 26 November 1993 do not contain the name of Mehmet Şah İkincisoy. They further indicate that Adile, Nefise, Bilgin, Garipşah, Makbule, Sabriye, Halil, Abdülkadir, Abdurrazak [6] , Nasır and Hüseyin İkincisoy were taken in custody on 22   November 1993 at 3 a.m. 7.     Police statements of Abdurrazak İkincisoy 1 , Makbule İkincisoy, Hüseyin İkincisoy and Garipşah İkincisoy dated 25 November 1993 26.   In their police statements, Abdurrazak 1 , Makbule, Hüseyin and Garipşah İkincisoy submitted that on the night of the incident at about 1   a.m. police officers had arrived at their apartment, looking for Mehmet Şah. Abdurrazak 1 informed them that Mehmet Şah was spending the night at his uncle's house. Accordingly, the police officers left, taking Halil with them to show them the way. About an hour later, the police officers returned and arrested them. 8.     Medical report dated 25 November 1993 27.     The report which was delivered by the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Bilgin, Adile, Nefise, Makbule, Hüseyin, Garipsah and Abdurrazak İkincisoy [7] . 9.     Police statements of Halil İkincisoy, Abdülkadir İkincisoy, Nasır İkincisoy and Sabriye İkincisoy dated 1 December 1993 28.     In his police statement Halil explained that on the night of the incident, he was at his father Abdurrazak's 1 house. At about 1 a.m. police officers arrived looking for his brother Mehmet Şah. Abdurrazak 1 informed the officers that Mehmet Şah was spending the night at his uncle Abülkadir's house. Accordingly, Halil went with the officers to show them the way. When they arrived at Abdülkadir's apartment, the police officers asked for Mehmet Şah and they were told that he was sleeping in one of the rooms. Halil waited in the living room together with the other family members while the officers entered the room where Mehmet Şah and his friends were sleeping. A few minutes later a gun shot was heard and everyone in the living room fled to the neighbour's apartment. Halil further stated seeing Mehmet Şah and his two friends running away. 29.     As to the police statements of Abdülkadir, Nasır and Sabriye İkincisoy, they all stated that on the day of the incident Mehmet Şah had been staying at their apartment together with his two friends. At about 2   a.m. the same night, police officers came looking for Mehmet Şah. They conducted a search in the apartment and one of the officers entered the room where Mehmet Şah and his two friends were sleeping. A few minutes later, they heard a gun shot. All the family members fled to the neighbour's apartment whereas Mehmet Şah and his two friends tried to run away. 10.     Medical report dated 3 December 1993 30.     The report of the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Halil, Abdülkadir and Sabriye İkincisoy. The report further stated that there were certain marks on the body of Nasır İkincisoy. 11.     Statements of Halil İkincisoy, Abdülkadir İkincisoy, Nasır İkincisoy and Sabriye İkincisoy taken by the public prosecutor, dated 3   December 1993 31.     In their statements to the public prosecutor, Halil, Abdülkadir and Nasır İkincisoy essentially repeated their police statements. As to Sabriye İkincisoy, while she reiterated the general account of the events, in her statement to the public prosecutor she did not mention that she had seen Mehmet Şah running away. 12.     Statements of Nasir İkincisoy and Abdülkadir İkincisoy taken by the Diyarbakır State Security Court, dated 3 December 1993 32.     In their statements Abdülkadir and Nasır İkincisoy stated that on 22   November 1993, while they were sleeping at home, police officers had come to their apartment looking for Mehmet Şah. He and his two friends had been spending the night with them. Nasır and Abdülkadir İkincisoy further explained that while the officers interrogated Mehmet Şah and his two friends in one of the rooms, a gun shot was heard. The family members fled to the neighbours' apartment and they were all subsequently arrested by the police. Nasır and Abdülkadir İkincisoy further denied their statements taken by the police and the public prosecutor. 13.     Ballistic report dated 3 December 1993 33.     According to the report, prepared by the Regional Criminal Police Laboratory, a Kalashnikov automatic rifle, a Browning semi-automatic pistol, 251 bullet cases, and 12 bullets were taken into examination following the clash of 23 November 1993. It was further established that the bullets fired by the Kalashnikov rifle had been used in the killing of police officer Alişan Eol on 22 November 1993. The report further concluded that the Browning pistol had not been used in any previous incidents. 14.     Identification report dated 6 December 1993 34.     According to the report prepared by the Diyarbakır State Security Court Public Prosecutor, Abdurrazak [8] identified the body of Mehmet Şah from the photographs. 15.     Petition of Abdurrazak İkincisoy [9] to the Diyarbakır Public Prosecutor, dated 13 December 1993 35.     The first applicant requested information about the fate of his son, who had been arrested on 22 November 1993 at Abdülkadir İkincisoy's apartment. 16.     Petition of Abdurrazak İkincisoy 1 to the Diyarbakır State Security Court Public Prosecutor, dated 13 December 1993 36.     Upon learning from the public prosecutor that his son, Mehmet Şah, had died in a clash on 25 November 1993, the first applicant submitted to the prosecutor that he believed that his son had died in custody. He accordingly requested that an autopsy be conducted on the body of Mehmet Şah to clarify the exact cause of his death. 17.     Petition of Abdurrazak İkincisoy 1 to the State Minister responsible for human rights, dated 13 December 1993 37.     The first applicant maintained that his son was taken into custody on 22   November 1993 together with twelve members of his family. He further stated that he had seen him both at the Çarşı Police Station and at the Rapid Intervention Headquarters. Although the first applicant was informed by the Diyarbakır State Security Court Public Prosecutor that his son had died in a clash on 25 November 1993, he requested the Minister to conduct a further investigation into the real circumstances surrounding the death. 18.     Response of the Minister dated 5 April 1994 38.     In his letter the Minister informed the first applicant that Mehmet Şah was never taken into custody. 19.     Letter of the Ministry of Justice International Law and Foreign Affairs Directorate to the Diyarbakır Public Prosecutor, dated 25   May 1995 39.     In their letter, the Ministry of Justice requested the Diyarbakır Chief Public Prosecutor to conduct an investigation concerning the individual application of Abdurrazak 1 and Halil İkincisoy to the European Commission of Human Rights. The prosecutor was asked to take statements from the two applicants concerning certain documents that they had sent to the Commission. 20.     Statement of the first applicant dated 6 June 1995, taken by the Diyarbakır Public Prosecutor 40.     In response to the public prosecutor's question about the individual application that he had lodged with the European Commission of Human Rights, the first applicant explained that following the death of his son, Mehmet Şah, he had gone to the Diyarbakır Human Rights Association where he had signed certain documents. However he stated that he did not recall giving authorisation to British lawyers to initiate proceedings in Europe. He further indicated that he wished to retract his application. 21.     Statement of the first applicant dated 31 October 1995, taken by the Diyarbakır Human Rights Association 41.     In his statement, which was addressed to the European Commission of Human Rights, the first applicant stated that he had been taken by plain-clothes police officers to the public prosecutor's office in May 1995. On the way to the public prosecutor's office, the officers forced him to deny that he wanted to pursue his application with the Commission. He maintained that he had to sign a statement in the public prosecutor's office out of fear and without knowing its content as he is illiterate. B.     Oral evidence 42.     The facts of the case being in dispute between the parties, three Delegates of the Commission took oral evidence in Ankara between 28   June and 2 July 1999 from ten witnesses, including the applicants. The evidence of those who attended the hearing may be summarised as follows: 1.     Abdurrazak İkincisoy [10] 43.     The witness, who is the first applicant, stated that on the day of the incident at about 1 a.m. police officers had come to his house, looking for his son Mehmet Şah. He informed the officers that Mehmet Şah was staying at his uncle's house and told his other son Halil to show them the way. About half an hour after they had left, police officers came back and arrested everyone in the apartment, namely Hüseyin, Nefise, Makbule and Garipşah İkincisoy. They were first taken to the Çarşı Police Station. The police officers forced them to cover their heads with their jackets but the witness was able to see through the parting of his jacket. He saw that his two sons Halil and Mehmet Şah were also in the station. Thereafter, they were taken to the police headquarters by minibus. The witness further recalled seeing Mehmet Şah in the minibus. They waited for about half an hour at the police headquarters before being taken to the Rapid Intervention Force Headquarters, where they were blindfolded and the witness was able to hear the cries of Mehmet Şah. The witness and his daughters were released from custody three days after their arrest. At the time of his release, the officers told him that his son had fled to the mountains. They gave him Mehmet Şah's leather jacket but the witness refused to take it stating that his son would be cold without his jacket. The younger son of the witness, Halil, was released fourteen days after his arrest. When Mehmet Şah did not return home, the witness went to the Diyarbakır public prosecutor and asked about his son's whereabouts. The public prosecutor showed him some photos and asked him whether any of were of his son Mehmet Şah. The applicant identified his son's body. The prosecutor informed him that his son had died during an armed clash between the PKK and the security forces. 44.     The witness further explained that after he filed his application with the European Commission of Human Rights, he was summoned to the public prosecutor's office in 1995. The public prosecutor was angry with him for filing an application with the Commission. Out of fear, the witness stated before the public prosecutor that he would retract his application. However, before the Delegates, the witness affirmed that he intended to pursue his application. Finally he stated that he was able to visit his son's grave and pray for him. 2.     Halil İkincisoy 45.     The witness, who is the second applicant, stated that on 22   November 1993 police officers had come to their house at about 1   a.m. He saw Feyzi Tatlı, a distant relative, with the police officers. The police officers carried out a quick search in the house and asked for his brother Mehmet Şah. His father, Abdurrazak [11] , told them that Mehmet Şah was staying at his uncle's house. Accordingly, the witness accepted to accompany the three police officers to his uncle's house. When they arrived, the witness knocked on the door. Sabriye İkincisoy answered the door and let them in. One of the police officers remained outside and two of them entered. The officers conducted a search and carried out an identity check. When they found Mehmet Şah, they arrested him. Taking Mehmet Şah by his arm, one of the officers went out. The witness followed them. As they were walking along the corridor, they heard gunshots. The police officer, who was holding Mehmet Şah by his arm, dragged him downstairs. At that time, the witness saw Mehmet Şah's two friends running downstairs but he did not see where they went. The witness then fled to the neighbour's flat. His uncle Abdülkadir, his cousin Nasır, Nasır's wife and Abdülkadir's wife also joined him. Some time later, they were all arrested by the police and taken to the Çarşı Police Station. The police officers told them to cover their heads with their jackets. When they arrived at the Çarşı Station, they were forced to wait in a corridor. He described the entrance of the station and stated that there was a small hall followed by a long corridor, at the end of which there was a room. The witness saw Mehmet Şah lying face down on the floor in that room. Mehmet Şah was wearing a shirt, a pull over, a brownish leather jacket and denim jeans. 46.     The witness further confirmed seeing his father and sisters in the Çarşı Station. Subsequently, they were taken to a second place in a car, where they waited for a few minutes. The witness stated that he did not see Mehmet Şah in the second place. Then they were taken to a third place. The witness did not see anyone in this third place but heard the voices of his uncle, Feyzi Tatlı, and Mehmet Şah. Mehmet Şah was screaming in pain. The witness was kept there for thirteen days and he was allegedly ill-treated. The officers told him that his brother had escaped to the mountains. He was forced to sign a statement without reading its content. When he was released from custody, the witness went to the public prosecutor with his father to discover the fate of Mehmet Şah. The witness stated that when Mehmet Şah's body was identified from the photographs, they were told that he had been buried. An officer showed them two graves and informed them that he did not know which one was Mehmet Şah's. 3.     Nasır İkincisoy 47.     The witness, who is the first applicant's nephew, stated that on the night of 22 November 1993, he was at his father's house. His father (Abdülkadir İkincisoy), his mother (Adile), his wife (Sabriye), his children, his brother (Muhlis), and his brother's children were also at home. He recalled that his uncle's son, Mehmet Şah and his two friends had spent the night with them. The witness maintained that at about 1 a.m. two plain-clothes police officers had come to their house, together with his cousin Halil, searching for Mehmet Şah. At that time Mehmet Şah was sleeping in the guest room, together with his two friends and the brother of the witness, Muhlis. The police officers carried out an identity check and then told Mehmet Şah and his two friends that they had to come to the police station for interrogation. One of the officers held Mehmet Şah by the arm. At that moment they heard a gun shot. The police officer who was holding Mehmet Şah also started shooting. Mehmet Şah tried to prevent the police officer from shooting but the same police officer dragged him down the stairs. The witness further recalled that the family members fled to their neighbour's to protect themselves. After some time, more police officers arrived and arrested everyone. While they were being taken to the police station, the witness saw that one of the persons who had come with Mehmet Şah had been shot dead. The witness was put in a car and taken to the Rapid Intervention Headquarters. He remembered standing in a long corridor. Despite the fact that he was blindfolded, the witness was able to see around. He saw that his mother, his wife, the daughter of Muhlis and his uncle were also there. He also saw Feyzi Tatlı, a distant cousin. The witness said that he was taken to a room which was wet, where he saw Mehmet Şah, who was being tortured. Mehmet Şah was lying on the floor. He said to the witness “Our family is ruined. They will kill us all. What is this we are going through?”. The witness stated that this was the last time he saw Mehmet Şah. 4.     Garipşah İkincisoy 48.     The witness, who is the daughter of the first applicant and the sister of the second, was at her father's house on the night of the incident. She said that while they were sleeping at home, some police officers came to their house and asked about her brother Mehmet Şah. When her father explained to the police officers that Mehmet Şah was staying at his uncle's house, the police officers left the house, taking Halil with them. Some time after, the police officers came back and arrested everyone in the house, including the witness. They were first taken to Çarşı Police Station and then to the police headquarters. The witness explained that she had not seen Mehmet Şah in the Çarşı Station but she had seen him at the police headquarters. When they arrived at the police headquarters, they walked upstairs and were taken into a hall. Their eyes were not covered but they were forced to hold their hands behind the back of their necks. They were made to stand facing the wall. When the witness glanced over her shoulder, she saw that Mehmet Şah was standing next to her. This was the last time she saw him. However she recalled hearing his voice at the Rapid Intervention Force, which was the third place they were taken to. He was moaning. She was kept in a cell, together with Makbule, Nefise, Adile, Bilge and Sabriye İkincisoy. At some point, Sabriye and Makbule were taken out of the cell and when they came back they were shivering. They therefore requested a blanket from the guardians and the guardians gave them a brown leather jacket which belonged to Mehmet Şah. 5.     Şerif Akay 49.     The witness affirmed that he was a police officer at the Anti-Terrorism Branch of Diyarbakır Security Directorate at the time of the events. He recalled that after receiving information from Feyzi Tatlı, a person who was under custody, that Mehmet Şah had been aiding and abetting the PKK, an operation was prepared. Feyzi Tatlı was asked to point out the house of Mehmet Şah to a group of five police officers, including the witness. On 22 November 1993 at about 1 a.m. they arrived at the apartment of Abdurrazak [12] , the father of Mehmet Şah. Abdurrazak 1 told them that his son was staying at his uncle's house. Accordingly, taking a young person with them to show them the way, and leaving one police officer in the house of Abdurrazak 1 , they left. When they arrived at Mehmet Şah's uncle's house, one police officer remained near the patrol car, and the witness stayed outside the building. Two police officers went upstairs. A few minutes later the witness heard gun shots from upstairs. One of the police officers, Mustafa Hünerlitürkoğlu, came downstairs, holding someone by the wrist. He told the witness that the third police officer, Alişan, had been shot. The witness entered the building to help his colleague. At that time Mustafa went outside, still holding the detainee by the wrist. The witness then heard footsteps and he hid under the stairs. A person fired a Kalashnikov rifle at the witness and wounded him in the abdomen. The witness fired back and killed the person who had fired at him. He then went out of the building to get help. When officer Mustafa saw that the witness was wounded, he left the detainee and ran towards him. The person who had been in custody ran away. The witness was subsequently taken to hospital, where he underwent an operation. When he regained consciousness in the hospital, his colleagues asked him to sign the incident report they had prepared. The public prosecutor further took his statement while he was still in intensive care. The witness accepted that there had been a mistake in the names that appeared in the incident report. He agreed that instead of Hanefi İkincisoy, the name should have read Mehmet Şah İkincisoy. The witness further explained that he had not been involved in the arrests or interrogations of the people who had been in the house at the time of the incident. 6.     Mustafa Hünerlitürkoğlu 50.     The witness confirmed that he was one of the five police officers who had gone to Mehmet Şah's apartment on 22 November 1993 at about 1   a.m. He recalled that after Feyzi Tatlı, a detainee, confessed during a police interrogation that Mehmet Şah was aiding and abetting the PKK, an operation was conducted to apprehend this person. Feyzi Tatlı showed them where Mehmet Şah lived. When they set off to arrest Mehmet Şah, the officers did not know what he looked like. One of the police officers stayed in the car, and the other four went into the house. Feyzi Tatlı was sent back to the police station in another vehicle. An elderly person opened the door, and informed them that Mehmet Şah was staying at his uncle's house that night. A young person accompanied the officers to the house in question. One of the police officers stayed behind in the house to ensure that no one could call Mehmet Şah to warn him. Accordingly, the three police officers and the young person went to the house of Mehmet Şah's uncle. A middle aged lady opened the door. The witness stated that they told the lady they would carry out an identity check and they entered the apartment. The witness went inside the room that was on the opposite side of the entrance. In that room, there were women and children. In the meantime, his colleague Alişan went inside another room from which an old man and a younger man had come out. The officers found a third room, in which four persons were sleeping. The witness made them stand in the corridor, while Alişan stayed in the room and called them in one by one for an identity check. A few minutes later, the witness heard noises coming from the third room and when he went in, he saw that a man was struggling with officer Alişan. The witness tried to help however the other persons interfered. One of the men had a Kalashnikov rifle and he fired at Alişan. When the witness saw that Alişan was shot, he grabbed one of the men, who did not have a gun, to use him as a shield. The witness ran downstairs to get help, still holding that man by his wrist. Downstairs, he met the third officer, Şerif, and told him that an armed clash had broken out upstairs and that Alişan had been shot. The witness then went outside the building to go to the car to use the radio. At that time, he heard Şerif ordering someone to surrender and subsequently he heard gun shots. The witness ran back to the building, letting go off the person he was holding. When he entered the building he saw that Şerif had been shot and the person who had shot at him had been killed. They called for reinforcements. 15 to 20 minutes after the incident, they were able to send Şerif to the hospital and thereafter he drafted the incident report by hand. The witness further explained that he had given the incident report to his colleagues who had arrived at the scene of incident and they had typed it up. He remembered signing the typed incident report at the hospital. When asked about the names indicated in the incident report, the witness admitted that there was a mistake. He had written Mehmet Şah's name as Hanefi İkincisoy. The witness further maintained that he had given a statement to the public prosecutor in the hospital. The witness also stated that he had not seen the photos of the two terrorists who were killed in a clash, the day after the incident. 7.     Dr. Lokman Eğilmez 51.     The witness confirmed that he had signed the autopsy report of Mehmet Şah İkincisoy. He is a doctor specialised in forensic medicine and pathology. He has been a forensic doctor since 1991. The witness did not recall the autopsy of Mehmet Şah however by looking at the documents he explained that the estimated time of death was 36 hours before the autopsy was carried out. There were no bruises on the body. There were certain discoloured spots but these were not signs of beating or force. The cause of death was the two bullets that had entered from the upper back region. There was an exit hole around the left breast, and another exit hole on the upper right side of the chest. Dr Eğilmez concluded that the entry and exit holes made it clear that the person had not been shot at close range. 8.     Ramazan Sürücü 52.     The witness affirmed that he was the head of Diyarbakır Anti-Terrorism Department at the time of the incident. He recalled that on the basis of information received from a detainee, Feyzi Tatlı, an operation was carried out to apprehend certain people. The witness was the head of the Central Branch however the interrogation office was located in the Rapid Intervention Force Building, which was also known as the police school. Officer Sürücü stated that as a general rule, the detainees were taken directly to the police school for interrogation. When asked about the armed clash, during which Mehmet Şah had allegedly been killed, the witness stated that he had not been directly involved in the operation. Although his name appeared on the incident report, he explained that these reports were usually signed by the officers who were replacing him and who had the power to sign for him. He remembered however that, on the day of the clash, they had received an anonymous call indicating that the two terrorists, who had escaped the day before, were hiding in a hut. 53.     The witness further confirmed that he had never been interrogated concerning the allegation that Mehmet Şah had died under torture. 9.     Mustafa Taner Şentürk 54.     The witness, who is a police officer, stated that he was serving at the interrogation office of the Anti-Terrorism Department of Diyarbakır police headquarters in November 1993. He was police superintendent. The witness explained that, at that time, there were three interrogation teams and he was in charge of the first team. When asked about the general procedure that was followed after a person was arrested, he explained that before being brought for interrogation, all arrested persons were first sent for a medical examination. He emphasized the fact that the detainees were not blindfolded during the interrogation and that no one had been ill-treated. The interrogation office command was located in the headquarters of the Rapid Intervention Force in Diyarbakır. All the interrogations were conducted there. He refused the suggestion that the detainees could first be taken to the Çarşı Police Station. When a detainee was interrogated, the officers first asked about his past, and then certain questions were put to him. There was no standard form of procedure for interrogation. 55.     The witness affirmed that he had been involved in the interrogation of Feyzi Tatlı as well as the İkincisoy family members. However he could not remember the interrogation of the İkincisoy family members very clearly as it was almost six years ago. He recalled that upon receipt of intelligence to the effect that the two persons who had escaped the day before had been seen in a hut, an operation was conducted to apprehend them. The witness further took part in the operation together with 14   police officers. They were all wearing bullet proof vests. Before the armed clash, the officers asked the two persons to surrender but the two men started shooting at the officers. The clash lasted for about twenty minutes. They were about 15 metres away from the hut. No officer was wounded. When no-one returned their fire, the officers entered the hut and found two bodies. The hut was about ten square metres, it had a wooden door and a small window. Shortly after the armed clash, another team arrived and took photographs in the hut. The witness explained that he had never referred to this incident or showed the photographs to the İkincisoy family members during their interrogation. 10.     Mustafa Atagun 56.     The witness affirmed that he had been the Diyarbakır Public Prosecutor from December 1993 to September 1995. He recalled that he had taken a statement from the first applicant concerning his application to the European Commission of Human Rights on 6 June 1995. The witness explained that, by a letter dated 24 May 1995 from the International Law and Foreign Affairs Directorate of the Ministry of Justice, he was instructed to take the applicant's statement concerning his application to Strasbourg and to verify certain signatures on some documents. Accordingly, he had written to the Diyarbakır Security Department to notify the applicant that he was called to the office of the public prosecutor. The public prosecutor stated that the applicant had come to his office alone, of his own free will. No police officer had accompanied him to the public prosecutor's office. His statement was taken in the office of the clerks and not in the interrogation room. While they were in the office, the applicant seemed relaxed. The public prosecutor showed him certain do