CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 mars 2005

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display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIRST SECTION       CASE OF AKKUM AND OTHERS v. TURKEY   (Application no. 21894/93)         JUDGMENT   FINAL     24/06/2005   This version was rectified on 26 January 2006 under Rule 81   of the Rules of the Court     STRASBOURG   24 March 2005       In the case of Akkum and Others v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler , judges ,   Mr   F. Gölcüklü, ad hoc judge , and Mr S. Nielsen , Registrar , Having deliberated in private on 3 March 2005, Delivers the following judgment, which was adopted on that date:   PROCEDURE 1.     The case originated in an application (no. 21894/93) 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 three Turkish nationals, Mr Zülfi Akkum [1] , Mr Hüseyin Akan and Mrs Rabia Karakoç (“the applicants”), on 4 May 1993. 2.     The applicants, who had been granted legal aid, were represented by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicants alleged, in particular, that their relatives were killed unlawfully by members of the security forces during a military operation on 10 November 1992 and that the authorities have failed to carry out an adequate investigation into the killings. They invoked Articles 2, 3, 6, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention. In their observations submitted on 10 April 1998, the applicants informed the Commission that they no longer wished to maintain their complaints under Article 6 of the Convention. 4.     A hearing was held in Strasbourg on 18 October 1994 and the application was declared admissible by the Commission on 5   March 1996 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date. 5.     The application was allocated to the 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 Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     The applicants and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other’s observations. 7.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicants, Mr Zülfi Akkum, Mr Hüseyin Akan and Mrs Rabia Karakoç, are Turkish citizens of Kurdish origin and were born in 1944, 1928 and 1930 respectively. They are the father, brother and mother of Mehmet Akkum, Mehmet Akan and Derviş Karakoç, who were killed, allegedly by members of the security forces, on 10 November 1992. At the time of their deaths the applicants’ relatives were respectively 29, 70 and 33 years of age. A.     Introduction 9.     The facts of the case, particularly concerning events which took place on 10 November 1992, are disputed by the parties. 10.     The facts as presented by the applicants are set out in Section B below (paragraphs 12-29). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 30-34). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 35-97). 11.     The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 § 1 (a) of the Convention. It appointed three delegates who took evidence in Ankara from 10 March 1997 to 13   March   1997. They interviewed the second and the third applicants as well as the following 17 witnesses: Abdurrahman Karakoç, Güllü Güzel-Karakoç, Zeliha Karakoç, Hayriye Karaman, Hacire Ceylan, Hüseyin Yılmaz, Alaattin Aydın, Koray Türkan, Nihat Turan, Ömer Faruk Köksal, Hüseyin Bakır, Ersan Topaloğlu, Mürşit Yılmaz, Muhammed Özdemir, Tuncer Arpacı, Murat Koç and finally Ramazan Dal. A summary of the oral evidence given by these witnesses is found in Section E below (paragraphs 98-174). The first applicant, Zülfi Akkum, and Hediye Akelma Akodun were also summoned but did not appear before the Commission’s delegates. Mr Akkum’s lawyer explained that Zülfi Akkum feared for his life and that for that reason he did not want to give evidence before the delegates. Hediye Akelma Akodun, an alleged eye-witness to the events in question whose name was put forward by the applicants, also did not wish to give evidence before the delegates. She did not give any reasons for this. Finally, Mehmet Güranioğlu, who was the mayor of the town of Dicle at the relevant time and whose name was put forward by the applicants, failed to appear before the delegates. B.     The applicants’ submissions on the facts 12.     The applicants Zülfi Akkum and Hüseyin Akan are from the village of Kurşunlu, located within the administrative jurisdiction of the district of Dicle, near Diyarbakır. Rabia Karakoç is from the hamlet of Kayaş in the village of Kırkpınar, which is also in the Dicle district. 13.     The village of Kurşunlu and the hamlet of Kayaş are located in a fairly mountainous region and approximately 45 minutes’ walk from each other. Close to Kurşunlu village and about an hour’s walk from Kayaş is the Kurşunlu plain. This plain is completely flat with very little growth. It is surrounded, however, by mountains, which are forested in part. The plain and the surrounding mountainside were used by the Kurşunlu villagers for grazing their animals. To the north of the Kurşunlu plain, about two and a half hours’ walk from Kayaş, is the village of Çevrecik. To the south-east of Kurşunlu village is the village of Kelekçi, where on 10 November 1992 security forces burned down the houses of nine villagers, including that of the village headman ( muhtar ) Hüseyin Akdıvar (see Akdıvar and Others v.   Turkey , judgment of 16   September 1996, Reports of Judgments and Decisions 1996-IV). 14.     On 10 November 1992 Zülfi Akkum was muhtar of Kurşunlu village. His son Mehmet did not live permanently in the village with him; however, on 10 November, Mehmet was on one of his visits to the village. As it turned out, while Mehmet was in the village it fell to him to undertake his duties as a shepherd according to the village rota. There were four villagers in all assigned to look after the animals belonging to the villagers: Mehmet Akkum, Mehmet Akan and two women, Hacire Ceylan and Hediye Akodun. 15.     At around 8 or 9 a.m. on 10 November Mehmet Akan and Mehmet Akkum left Kurşunlu village together to take the village animals out to graze on and around the Kurşunlu plain. Almost immediately after they had left the village, the two women shepherds also left Kurşunlu village with their herds to go to the Kurşunlu plain. The two Mehmets took their herds up onto the mountainside surrounding the plain, whereas the two women stayed with their herds on the plain so that the herds would be kept separate. 16.     They had not been on the plain for long when it became clear that a military operation was going on. As the two Mehmets were on the mountainside, they came across the path of the soldiers first. They were surrounded by soldiers who had hidden on the mountainside. 17.     Hacire and Hediye were on the plain when they realised that there was an operation going on and that the soldiers were hidden throughout the surrounding mountainsides. They came across the soldiers when they were close to the edge of the plain. Some of Hacire’s goats had begun to wander away from the plain into the forested area on the mountainside. Hacire had pursued the goats to prevent them from going into the shrubbery as she feared she would lose sight of them on account of her poor eyesight. 18.     However, at the edge of the forested area, two soldiers stopped Hacire. They told her and Hediye to forget about the animals and to go away from the plain and go home. Hediye began to leave but Hacire insisted that she wanted to get her goats before she returned to the village. Her protests to the soldiers earned her a beating from the soldiers with their rifle butts. Eventually Hacire gave in and turned around to follow Hediye in the direction back to the village. After they returned to the village they told Hüseyin Akan that they had seen Mehmet Akan, who had been calling out as he was being hit by the soldiers. Mehmet Akan and Mehmet Akkum were last seen alive on the mountains, where there were a large number of soldiers. 19.     As the two women were crossing the length of the plain to return home, they came across Derviş Karakoç, who was on his horse with his two children. His mother, Rabia Karakoç, his wife Güllü, his sister Hayriye Karaman and finally Zeliha Karakoç, a relative, were following him on foot. They were going to the village of Çevrecik to visit their relatives. 20.     Derviş passed by Hacire and Hediye on the horse but Hacire and Hediye stopped the women, one of whom they knew to be Rabia Karakoç. They told Rabia that she should not continue her journey any further, that there were soldiers everywhere and that Derviş might be arrested by the soldiers. Derviş, meanwhile, had halted the horse 10 or 15 metres further along the path and had called back to see what had happened to hold up the party of women. When his mother told him what the women had said about the soldiers, Derviş replied that it would be all right. 21.     However, at that moment the soldiers who had told Hacire to go home came out from the edge of the forested area and approached Derviş. They told him to dismount from his horse and to show his identity card. Derviş dismounted and handed the children to his wife and to his mother. He tried to hand over the horse but the soldiers prevented him from doing so. The soldiers looked at Derviş’s identity card and put it back in his pocket. The soldiers then took hold of him from either side and led him towards the mountainside. The women were left watching. 22.     The soldiers hit Derviş on his shoulder with their rifle butts. There was then a single pistol shot and almost immediately afterwards firing began to take place from all around the plain. Rabia saw a flame hitting her son Derviş. There was dust everywhere as bullets caused the dust from the plain to rise. The women, terrified, ran to take shelter and returned to their village. They were not able to approach Derviş’s body before the continuous firing began. 23.     The women returned to their own villages. On the next day Rabia went to Kurşunlu village to see if anyone would accompany her to look for her son. However, nobody would accompany her. The villagers had already tried in the morning to approach the area of the plain to look for Mehmet Akan and Mehmet Akkum, who had failed to return to the village the previous evening, but had only seen a multitude of animal corpses and had returned to the village before completing their searches for the two Mehmets. 24.     Rabia spoke to Zülfi Akkum’s wife but Zülfi himself had gone to the town of Dicle to make enquiries about his son. Hüseyin Akan had gone with him to enquire about the fate of his brother. They wanted to know what had become of them after the soldiers had surrounded them on the hills by the plains. They met Mehmet Güranioğlu, the mayor of Dicle, who went with them to Dicle central gendarme station. A lieutenant-colonel told them that the soldiers had not yet returned. They stayed in Dicle that night. 25.     The following morning, on 12 November, they went to the office of the Dicle public prosecutor. When they telephoned the village at around midday there was still no word about the fate of the two Mehmets. However, when they telephoned again at 2.30 p.m. they were told that the bodies of Mehmet Akan and Derviş Karakoç had been found. They informed the prosecutor and asked him to send a car to collect the bodies. Zülfi returned to the village to collect the bodies. 26.     The villagers had found the body of Derviş where he had been killed and the body of Mehmet Akan on the slopes surrounding the Kurşunlu plain. The corpse of Derviş’s horse was also on the plain. There were several dead animals around, as well as spent cartridges. 27.     The villagers took the bodies of Mehmet Akan and Derviş Karakoç to their respective villages. Zülfi arrived by taxi to take the bodies to Dicle so that autopsies could be conducted. 28.     Zülfi Akkum did not learn of the fate of his son until 16 November, when he went to the police headquarters in the city of Elazığ. On 14   November he had been told by a gendarme captain that two bodies had been found in Elazığ and that one of them might be that of his son. While at the police headquarters he was shown the photographs of two bodies, one of which was that of his son, Mehmet. The body was severely wounded and his ears had been cut off. The skin on his upper left arm had been cut away. 29.     When the necessary legal formalities had been completed, Zülfi Akkum collected the body, which had been exhumed from the Elazığ cemetery where it had been buried because no one had claimed it. He took the body back to the village for burial. C.     The Government’s submissions on the facts 30.     On 10 November 1992 the gendarme forces of Elazığ carried out a military operation against the militants of the PKK near the village of Bukardi, in Elazığ. Mehmet Akkum died during the fighting which broke out between the armed militants of the PKK and the security forces. Several documents from the PKK, ammunition for firearms and stocks were seized at the site of the incident. 31.     Proceedings which had been instituted against Mehmet Akkum by the public prosecutor of the Kayseri State Security Court were discontinued after his death. 32.     Also on 10 November 1992, a violent clash broke out near the village of Arıcak between the gendarme forces of Dicle and the armed militants of the PKK. Mr Karakoç and Mr Akan died during this clash. 33.     At the end of the preliminary investigation instituted in respect of the killing of the three persons, an indictment was filed with the Kayseri State Security Court on 19   August 1994. Seven gendarme soldiers and officers were charged with the offence of killing more than one person. 34.     The criminal case was transferred to the Military Court attached to the 8th Army Corps of Elazığ (the “Military Court”). Unsuccessful efforts were made by that court to trace the applicants and the witnesses named by them. It was only possible to trace two of those witnesses, who subsequently denied having been eyewitnesses to the events. On 21   December   1995 the Military Court acquitted the gendarmes of the killing of the applicants’ relatives. D.     Documentary evidence submitted by the parties 35.     The following information appears from the documents submitted by the parties. 1.     The military operation 36.     A handwritten on-site report of a military operation was drawn up and signed by seven gendarme officers and soldiers on 11 November 1992. At the top of the document is a reference to the so-called Sancak-1 Operation Plan of 8   November 1992. A copy of this plan has not been made available to either the Commission or the Court. 37.     The report states that four gendarme commando teams from Elazığ, two gendarme commando teams from Palu, four gendarme commando teams from Alacakaya, three gendarme commando teams from Kovancılar, four gendarme commando teams from Arıcak, one gendarme team from Üçocak, one gendarme team from Arıcak and a number of gendarme commando teams from Dicle began a planned military operation at 3 a.m. on 10   November 1992. The operation was codenamed Sancak-1. 38.     At 6.30 the same morning an armed clash began on the Payidar hills, near the village of Bukardi, at coordinates (00, 59), between a group of terrorists and four gendarme commando teams from Arıcak. The clash continued intermittently until 6 p.m. that day. In the course of the clash the soldiers returned fire at the terrorists, who were hiding behind a herd of animals owned by villagers from Kurşunlu village and were firing at the soldiers. A number of animals were killed during the clash. 39.     A body was found during the search that was carried out at dawn the following morning by the soldiers. It was deemed by the soldiers to be that of a person assisting and harbouring the terrorists. There were no identity documents on the body. During the search, the soldiers also recovered a number of spent cartridges, including five spent G3 rifle cartridges, 11 spent Kalashnikov rifle cartridges and 136 spent BKC rifle cartridges. 40.     A shelter was also discovered at coordinates (00, 59) and was destroyed by the soldiers, together with the food hidden in it. There were no casualties among the soldiers who took part in the operation which ended at 1.30 p.m. on 11   November 1992. 41.     It appears that this on-site report was typed up at a later stage. Both versions of the report were submitted to the Commission. However, there are two contradictions between the handwritten and the typed version. According to the typed version of the report, four gendarme commando teams from Palu participated in the operation, whereas according to the handwritten version, only two such teams from Palu took part. Also, according to the handwritten report, four gendarme commando teams from Alacakaya participated in the operation but the typed version makes no reference to the teams from Alacakaya. 42.     Both reports and the spent cartridges found in the operation area were handed over to the Palu public prosecutor’s office on 20   November1992 by Captain Mürşit Yılmaz, commander of the Arıcak gendarme headquarters. 43.     Another military report was drawn up and signed on 11   November   1992 by four persons, including Colonel Hüseyin Yılmaz (see paragraphs 113 to 124 below). This report was sent to a number of authorities, including the office of the Ministry of the Interior. It states that the body found after the operation was that of a person who was either a member of the terrorist organisation or was harbouring members of that organisation. The body was later handed over to the public prosecutor in the town of Palu for the establishment of its identity and for an autopsy to be carried out. 44.     This report contradicts both the handwritten and the typed versions of the on-site operation report. According to the report, one gendarme commando team from Palu, four gendarme commando teams from Alacakaya and three gendarme teams from Arıcak took part in the operation. It makes no reference to the gendarme team from Üçocak but states that two gendarme teams from Karakoçan, which were not mentioned in either of the versions of the earlier report, participated in the operation. Furthermore, according to this report, the coordinates of the terrorist shelter were (97, 59) and not (00, 59) as stated in the on-site report. 2.     The preliminary investigation 45.     A body examination report was drawn up and signed on 12   November 1992 by Mr Nihat Turan, the public prosecutor of Palu, and Dr   Alaattin Aydın. 46.     The report states that the body was that of a man of approximately 30 to 35 years of age. Both ears were missing and there was an entry hole above the stomach and another one on the right side of the back of the body. A bullet had entered the left hand and had exited. There were also a large number of other injuries, possibly caused by shrapnel, as well as a 10 ‑ centimetre-long bullet injury with burn marks. The doctor established the cause of death as shooting. As the cause of death was thus established, it was decided not to carry out a full autopsy. 47.     There were no documents on the body to help establish its identity. It was subsequently buried after a burial licence had been issued by the Palu public prosecutor on 12 November 1992. 48.     On 13 November 1992 Zülfi Akkum, the first applicant, submitted a petition to the public prosecutor’s office in the town of Dicle, near Diyarbakır. He informed the prosecutor that his son Mehmet Akkum and another villager, Mehmet Akan, had taken their animals out to graze early in the morning on 10 November 1992 and that they had failed to return to their homes in the evening. The villagers had been scared to look for them since there were soldiers everywhere. However, on 12   November 1992 he and a number of his fellow villagers had gone to look for the two missing persons and they had found the bodies of Mehmet Akan and Derviş Karakoç, the latter with his hands tied behind his back. Zülfi Akkum asked the prosecutor to assist him in bringing the bodies into the town. 49.     On 13 November 1992 Ali Akan, the son of Mehmet Akan, and Musa Karakoç, a cousin of Derviş Karakoç, each submitted a petition to the Dicle public prosecutor and informed him that their relatives had been killed by members of the security forces. They asked the prosecutor to carry out autopsies on the bodies. 50.     On 13 November 1992 İbrahim Engin, the public prosecutor of Dicle, and Dr Koray Aydın carried out external examinations of the bodies of Mehmet Akan and Derviş Karakoç. During the examination, Mehmet Akan’s son identified his father’s body and a cousin identified Derviş Karakoç’s body. According to the report, the cause of death of Mehmet Akan, who was 66 years of age, was a bullet which had entered from behind the right ear and had exited above the left ear. The death of Derviş Karakoç, who was 25 years of age, had been caused by nine bullets which had entered and exited the trunk of his body. As the causes of the deaths were established it was decided not to carry out full autopsies on the bodies. 51.     The applicants’ lawyers submitted to the Court a report which was prepared on 7 July 1993 by Dr Peter Vanezis, a forensic expert at the Charing Cross and Westminster Medical School in London. The findings of this report were based on a number of photographs of the bodies of Mehmet Akkum and Mehmet Akan. 52.     Dr Vanezis’ report lists the extensive injuries to the body of Mehmet Akkum, which include grazes and bruises to the face, mutilation of both ears, a collection of bruises to the front of the neck, extensive bruising to the left lower chest and abdomen, and a circular hole in the right armpit. It was also recorded in this report that, after death, skin had been excised from the chest, the upper abdomen, the left upper arm, and the back of the left hand. Dr Vanezis concluded that the injuries to the trunk could have been caused by a number of blows to this region with a long, possibly rounded, stick or bar. Furthermore, kicking or stamping on this region could not be ruled out. Such impacts in this area could have resulted in a rupture of the spleen, which was likely to have been fatal without prompt medical attention. The injuries to the face could have been due to blows, possibly from a fist. Dr Vanezis further observed a gunshot entry wound on the upper part of the left ear of Mehmet Akan, the firearm having been discharged close to the head. 53.     On 16 November 1992 Zülfi Akkum was shown a photograph of the body which had been buried by the authorities in Elazığ (see paragraph 47 above). Mr Akkum identified the deceased person as his son Mehmet Akkum. The following day the body was handed over to him at the cemetery. 54.     On 17 November 1992 Major Ersan Topaloğlu, the commanding officer of the Dicle gendarme command, informed the prosecutor’s office in Dicle that the place where the bodies of Mehmet Akan and Derviş Karakoç had been found was within the jurisdiction of the town of Arıcak. Major Topaloğlu further informed the prosecutor that he had understood from radio communications that a planned operation had been carried out in the area where the bodies had been found. 55.     On 25 November 1992 Güllü Karakoç and Rabia Karakoç made detailed statements to the Diyarbakır branch of the Human Rights Association and described their eyewitness account of the events leading up to the killing of Derviş Karakoç. On 26   November 1992 Hüseyin Akan and Zülfi Akkum also gave statements to the Human Rights Association. 56.     On 23 December 1992 the Palu public prosecutor Nihat Turan examined the documents relating to the preliminary examination and decided that he lacked jurisdiction to investigate the killing “on 9   November   1992 of an unidentified terrorist during the clash between members of the PKK and soldiers on the Payidar hills”. Mr Turan sent this decision to the prosecutor’s office at the Kayseri State Security Court. 57.     On 30 December 1992 the prosecutor at the Kayseri State Security Court returned the decision to Mr Turan and asked him to complete the investigation file, enclose the photographs of the body and then send the file back. 58.     On 8 January 1993 Mr Turan asked the Arıcak gendarme headquarters if there were any photographs of the body at the headquarters. 59.     On 18 February 1993 the Elazığ chief public prosecutor sent Mr   Turan the documents concerning the establishment of the identity of the body of Mehmet Akkum (see paragraph 53 above). 60.     On 24 February 1993 Mr Turan informed the prosecutor at the Kayseri State Security Court that the name of the dead person was Mehmet Akkum. 61.     On 10 March 1993 Mr Turan, notwithstanding the information he had received from the Elazığ chief public prosecutor on 18   February 1993, asked the commander of the Arıcak gendarme headquarters whether any photographs of the body of the “unidentified terrorist who had been killed on 9 November 1992” had been taken. 62.     On 17 March 1993 the commander of the Arıcak gendarme headquarters informed Mr Turan that no operation had been conducted on 9   November 1992 and that no bodies had therefore been recovered. An operation had, however, been conducted on 23 January 1993, during which a terrorist had been killed, but the soldiers had not had an opportunity to take any photographs of the body. 63.     On 29 March 1993 Mr Turan, apparently in response to a request from the Dicle prosecutor, informed the latter that the previously unidentified body had finally been identified as that of Mehmet Akkum. 64.     On 30 March 1993 Mr Turan sent to the Kayseri State Security Court the operation reports obtained from Arıcak gendarme headquarters. 65.     On the same day Mr Turan, despite his previous discovery of the identity of Mehmet Akkum’s body, continued his efforts to identify “the dead terrorist” and sent a letter to the Elazığ police headquarters enquiring whether the latter had any photographs of the body in their files. Mr Turan then described the body in his letter. 66.     Also on the same day Mr Turan sent another letter to the commander of the Arıcak gendarme headquarters and informed the latter that in his letter of 10 March 1993 (see paragraph 61 above) the date of the operation had been mistakenly referred to as 9 November 1992. Mr Turan then asked the commander whether any photographs existed of the body of the terrorist who “was killed during the operation on 9 November 1992”. 67.     On 3 April 1993 the commander of the Arıcak gendarme headquarters informed Mr Turan that no operation had taken place on 9   November 1992 but that a body had been recovered on 11   November   1992 following an armed clash. He did not, however, have a photograph of this body. 68.     On 8 April 1993 the Elazığ police headquarters sent Mr Turan a copy of the photograph of the body and informed him that the body had already been identified on 16 November 1992 as that of Mehmet Akkum. 69.     On 19 April 1993 Mr Turan sent a letter to the registry office for births, marriages and deaths, asking it to “register the death of the terrorist Mehmet Akkum”. 70.     On 14 May 1993 Mr Turan took another decision declining jurisdiction and sent the file to the Kayseri State Security Court. The offence in question was referred to in this decision as “the killing of Mehmet Akkum, a terrorist, during an armed clash that took place between the PKK and the security forces on 9 November 1992”. 71.     On 21 May 1993 the chief public prosecutor at the Kayseri State Security Court, who was now entrusted with the duty of investigating the killing of Mehmet Akkum, referred to the above-mentioned decision of non- jurisdiction and decided not to prosecute Mehmet Akkum since he was dead. In this decision the deceased was referred to as “the suspect”. 72.     It appears from the documents submitted to the Commission by the Government that both on 22 October 1993 and on 3   November 1993 the Ministry of Justice’s International Law and Foreign Relations Directorate (“the Directorate”) requested information from Mr Turan and from the prosecutor at the Kayseri State Security Court about the investigation into the killings. The Directorate required this information in order to be able to prepare the observations which would be submitted to the European Commission of Human Rights. 73.     On 10 November 1993 Mr Turan sent four letters to his opposite number in Dicle and requested the latter to contact the Dicle gendarme headquarters and ask for any documents that might exist concerning the killings. Mr Turan also informed the Dicle prosecutor of the petitions submitted by relatives of the deceased persons a year previously (see paragraphs 48 to 49 above), and asked him to obtain information from these relatives about the killings. 74.     On 25 November 1993 the prosecutor at the Kayseri State Security Court informed the Directorate about the decision not to prosecute Mehmet Akkum taken by his office on 21   May 1993 (see paragraph 71 above), and further informed the Directorate that that decision had concluded the investigation into the killing of Mehmet Akkum. The decision had not been communicated to the complainants as there had not been any. Furthermore, no one had been questioned as the file contained no names of witnesses. 75.     By letter of 3 December 1993 Mr Turan informed the Directorate that his office was still continuing the investigation into the killings of Mehmet Akan and Derviş Karakoç, that he had not had yet been able to establish the identities of the soldiers who had participated in the operation and that he was also trying to obtain information from possible eyewitnesses. It appears from this letter that Mr Turan had not been informed about the decision not to prosecute taken by the prosecutor at the Kayseri State Security Court, which had concluded the investigation into the killing of Mehmet Akkum. 76.     On 16 December 1993 the Dicle prosecutor, further to the request by Mr Turan (see paragraph 73 above), took a statement from Zülfi Akkum. Mr Akkum confirmed that the day after the killings he had informed the Dicle governor and also the Dicle gendarme commander about the killings and had tried to obtain information as to how they might have occurred. 77.     In response to Mr Turan’s request of 10 November 1993 to find the relatives of the deceased men (see paragraph 73 above) , the authorities made unsuccessful attempts to find a certain Musa Karakuş ( sic ) and a certain Ali Alkan ( sic ). These attempts continued until 7 March 1994. 78.     Between 3 August 1994 and 1 November 1995 the investigation carried out by the authorities in Dicle and Palu was limited to the tracing of the relatives of the deceased persons. It was recorded in a letter of 10   October 1994 that it had not been possible to find these relatives since the villages where they used to live had been evacuated a year previously as a result of intense pressure from the PKK. 79.     On 13 and 14 October 1994 Hüseyin Akan and Rabia Karakoç made further statements to the Human Rights Association in Diyarbakır and stated that they still had not been questioned by any authorities in relation to the killing of their relatives. 3.     The trial 80.     It appears from a document drawn up on 7 November 1995 by the Elazığ chief prosecutor’s office and addressed to the Directorate that the seven gendarme officers who had signed the military report of 11   November 1992 (see paragraph 36 above) were indicted on 19 August 1994 for the killing of the applicants’ three relatives. 81.     It also appears from the same document that the Elazığ Assize Court, before which the seven gendarmes were indicted, decided on 22 June 1995 that it lacked jurisdiction to try the gendarmes and sent the file to the Military Court. The Government have not sent the Commission or the Court copies of the indictment or of the decision of non-jurisdiction taken by the Elazığ Assize Court. 82.     The Military Court was unable to contact and summon the applicants during the trial because they could not be found. It appears, however, that it was possible to locate Hacire Ceylan and Hediye Akodun, the village shepherds (see paragraph 14 above), and take statements from them during the trial. 83.     Hacire Ceylan stated in her testimony given on 17 May 1995 that on the day in question she had been grazing her animals outside her village when soldiers had told her that they were carrying out an operation and asked her to return to her house. She had complied with this request. She had not seen soldiers beating up Mehmet Akan or any other person. 84.     Hediye Akodun stated in her testimony given on 23 May 1995 that she was not aware of any military operation having taken place, of the killing of Mehmet Akan or of the killing of the other two persons. 85.     In the course of the trial the seven defendants, by then all working at different places around the country, all informed the Military Court that they did not wish to appear before it to testify. The Military Court, accepting their wishes, sent letters rogatory to criminal courts in the towns where the defendants were working and asked these courts to take statements from the defendants. The statements were subsequently forwarded to the Military Court. 86.     With the exception of Şaban Bozkurt, the defendants all confirmed that an operation had taken place on 10 November 1992. Şaban Bozkurt had been on duty elsewhere on the day of the operation. 87.     The defendants stated that they had returned fire when a group of terrorists had opened fire on them. The defendants did not know who had actually shot the three persons since approximately 250-300 soldiers had taken part in the operation. 88.     Adem Kolukısa, one of the seven defendants, stated in his testimony of 5 May 1995 that he had personally seen two bodies and that he had also heard from his fellow soldiers that there was another body. The bodies he had seen were those of two men of approximately 30-35 years of age. 89.     Recep Tombak stated in his testimony of 23 May 1995 that he and his fellow soldiers had seen the three bodies the day after the operation. 90.     Tuncer Arpacı, another defendant and an army captain, stated in his testimony of 20 November 1995 that he had personally found the three bodies and had recorded this finding in the operation reports. One of the bodies was that of a bearded man of approximately 50-60 years of age, found on the Kurşunlu plain. Mr Arpacı stated that the terrorists had been surrounded by the soldiers and that Cobra helicopters and mortar had also been used in the operation. It had therefore been impossible to identify who had actually shot these persons. 91.     On 21 December 1995 the Military Court unanimously acquitted all seven defendants. It stated in its judgment that it had not been able to question the relatives of the deceased persons because their addresses were not known. The court also noted that the allegations made by the deceased persons’ relatives had not been corroborated by the testimonies given by Hacire Ceylan and Hediye Akodun. On the other hand, the defendants were found to have been consistent in their eyewitness accounts of the military operation which had been carried out pursuant to the Sancak-1 Operation Plan of 8   November 1992. The Military Court decided, therefore, to disregard the allegations made by the relatives that the three persons had been killed by the soldiers. 92.     The Military Court’s decision to acquit the soldiers was based on the following analysis of the evidence: “The deceased persons were killed during a military operation conducted by the security forces against the terrorist organisation. However, it is not possible to say with certainty that they were killed as a result of the fire opened by the soldiers since it was the terrorists who had opened fire first. Moreover, 136 BKC-type spent cartridges, which are not used by the [Turkish] armed forces, were found in the area. If it had not been for the armed clash, the defendants would have had no reason to use firearms against the deceased persons. At the site of the incident there were seven military divisions and an unknown number of terrorists. The clashes continued all day long... There is no evidence suggesting that the defendants opened fire at the deceased persons...” 93.     The testimonies given by three of the defendants during the trial, namely Murat Koç, Ramazan Dal and Yavuz Akın, have not been submitted to the Commission or to the Court. Therefore, the following information is taken from the above-mentioned judgment of the Military Court, which contains a summary of the testimonies of these three defendants. 94.     Murat Koç stated in his testimony that he had heard during the operation that a number of terrorists had been killed. 95.     Ramazan Dal stated in his testimony that after the operation he and his fellow soldiers had found a body and that he had seen the corpses of a horse and of sheep in the area. 96.     Yavuz Akın stated in his testimony that he had personally seen one body, which he and his fellow soldiers had taken to the station; he did not know how that person had died. He also stated that fighter jets and helicopters had been used in the operation. Finally, Mr Akın denied having signed the on-site operation report of 11 November 1992 (see paragraph 36 above). 97.     It further appears from the judgment of the Military Court that Major Ersan Topaloğlu was also questioned during the trial. His testimony was not made available to the Commission or to the Court, but according to the summary contained in the judgment,   Major Topaloğlu stated that he had been informed by Zülfi Akkum that his son Mehmet Akkum and a fellow villager were missing. Major Topaloğlu had then made some inquiries and had discovered that a military operation was being carried out in the area. He confirmed that two bodies had been taken to the morgue in Elazığ and that one of them had been that of the son of Zülfi Akkum. E.     Oral evidence 1.     Rabia Karakoç (the first applicant), mother of Derviş Karakoç 2.     Güllü Güzel-Karakoç, wife of Derviş Karakoç 3.     Zeliha Karakoç, a relative of Derviş Karakoç 4.     Hayriye Karaman, sister of Derviş Karakoç 98.     On 10 November 1992, early in the morning, these four witnesses left their homes in the village of Kayaş, together with Derviş Karakoç and his two children, to go to the village of Çevrecik to visit a relative. Derviş was on horseback with his children and the women were walking behind him. After walking for about half an hour they came to a flat area where animals were grazing and they saw the two women shepherds, Hediye and Hacire, running towards them. Hediye and Hacire told the group to go back to their village as there were soldiers everywhere and it would not be safe to continue. However, Derviş decided to press on, saying that he had nothing to fear from the soldiers. 99.     After they had continued the journey for a few minutes, two soldiers came out of the bushes on the side of the road and asked Derviş to get off the horse and to show them his identity card. The soldiers then told the women to go back to the village. They took Derviş by his arms and walked away slowly. They took Derviş’s horse with them as well. Rabia Karakoç saw the soldiers taking Derviş behind the bushes and saw one of them hitting Derviş with the butt of his rifle. A few minutes later, R