CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mai 2005

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margin-bottom:0pt; text-align:justify; font-size:10pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sB853CD25 { font-family:Arial; font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic }     SECOND SECTION     CASE OF TOĞCU v. TURKEY     (Application no. 27601/95)     JUDGMENT     STRASBOURG     31 May 2005       FINAL     31/08/2005       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Toğcu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mrs   E. Fura-Sandström , judges ,   Mr   F. Gölcüklü, ad hoc judge , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 10 May 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 27601/95) 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 Hüseyin Toğcu (“the applicant”), on 25 May 1995. 2.     The applicant, who had been granted legal aid, was represented by Dr   Anke Stock, a lawyer practising in London. The Turkish Government (“the Government”) did not appoint an agent for the purposes of the Convention proceedings. 3.     The applicant alleged, in particular, that his son Ender Toğcu had been taken into the custody of the security forces in the city of Diyarbakır on 29 November 1994 and that nothing had been heard from him since that date. The applicant invoked Articles 2, 3, 5, 13, 14 and 18 of the Convention. 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the Second 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 Professor Feyyaz Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     By a decision of 14 September 1999, the Court declared the application admissible. 7.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties were invited to submit final written observations, of which possibility the applicant availed himself. The parties further considered the possibility of a friendly settlement, but no settlement was reached. 8.     By letter of 9 October 2001, the Government requested the Court to strike the case out of its list and enclosed the text of a declaration with a view to resolving the issues raised by the applicant. The applicant filed written observations on the Government's request on 17 December 2001, in which he asked the Court to reject that request. 9.     On 12 March 2002 the Chamber rejected the applicant' request for the Chamber to relinquish jurisdiction in favour of the Grand Chamber (Rule   72 §   1). 10.     On 9 April 2002 the Court, in the light of the declaration submitted by the Government, considered that it was no longer justified to continue the examination of the application and decided to strike the application out of the list in accordance with Article   37   §   1 (c) of the Convention (see Toğcu v. Turkey (striking out), no.   27601/95, 9 April 2002). 11.     On 8 July 2002 the applicant requested the Court either to restore the application to the list of cases or, in the alternative, to seek referral of the case to the Grand Chamber. 12.     On 21 May 2003 the Panel of the Grand Chamber (“the Panel”) decided to send the present application back to the Second Section for it to take a decision, under Article 37 § 2 of the Convention and in the light of the Grand Chamber's judgment in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003 ‑ VI), as to whether to restore the application to the Court's list of cases. 13.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 14.     On 1 March 2005 the Second Section of the Court decided, pursuant to Article 37 § 2 of the Convention, to restore the application to the Court's list of cases. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 15.     The applicant, a Turkish citizen of Kurdish origin, was born in 1944 and lives in the town of Silvan within the administrative jurisdiction of the province of Diyarbakır, in south-east Turkey. A.     Introduction 16.     The facts of the case, particularly concerning events which took place on or about 21 April 1992 and on or about 30 June 1992, are disputed between the parties. 17.     The facts as presented by the applicant are set out in Section B below (paragraphs 18-32). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 33-36). Documentary evidence submitted by the Government and by the applicant are summarised in Sections D (paragraphs 37-61) and E (62-67) respectively. B.     The applicant's submissions on the facts 18.     The applicant's son Ender Toğcu [1] was the manager of the Sento hotel and the Arzu club in Diyarbakır. He had no relations with the Kurdistan Workers' Party (the PKK) or any other similar organisations. 19.     On an unspecified date, Ender's maternal cousin Mehmet Kartal was taken into custody in relation to a criminal case and when Ender's photograph was found on him, he apparently made a statement to the effect that he and Ender were partners in the alleged crime. The cousin was subsequently released without charge. 20.     The applicant stated in the application form submitted to the Commission that, on 29 November 1994, Ender Toğcu's wife Güler was in Diyarbakır Hospital, giving birth. The applicant's wife was with her. At about 3 p.m. Ender Toğcu left his older brother Ali Toğcu to go to the hospital. However, Ender never arrived at the hospital and had not been seen since. 21.     In reply to a query from the Court into details of the hospital records showing the date of birth, the applicant replied on 31 January 2000 with the correction that the woman who had been in hospital giving birth on the day of Ender's disappearance was not Ender's wife but the wife of his brother Ali. On the day in question Ender and Ali had had a meal together at a restaurant near their house before Ender had left for the hospital to visit Ali's wife. Although the applicant submitted that he would obtain hospital records and send them to the Court, he failed to do so. 22.     In his memorial of 16 October 2001, the applicant submitted that on the day of his disappearance, his son Ender had been with his wife Güler, who was pregnant and had been taken to the maternity ward of the hospital as she was feeling unwell. Ender never returned from the hospital. The applicant also informed the Court that Ender had one child, born on 12   March 1993. 23.     At about 10.30 p.m. on 29 November 1994, seven or eight plain ‑ clothes police officers came to the applicant's home in Diyarbakır and beat the applicant and his younger son. The police officers enquired about Ender's whereabouts. The applicant told them, although he knew that this was untrue, that Ender had left for Kayseri three days earlier. The police officers then told him that his son was in the hands of the police and that they would hand over his body in three days. 24.     The police officers moved on to the house of Ali Toğcu, where they arrived at about midnight and conducted a search without finding anything. Ali told the police officers that he had not seen his brother Ender since 3   p.m. that day. The police officers took Ali to the applicant's house, where they told the applicant that there was a firearm in his house and ordered him to hand it over. Both the applicant and Ali denied the existence of any gun. After having conducted a conversation over the wireless, the police officers told the applicant and Ali that the firearm was in the woodshed of the applicant's house. The police officers told the applicant's wife that Ender had told them where he had hidden the gun. The police officers then found the firearm hidden in the woodshed, and left. 25.     On 30 November 1994, Ali was apprehended by police in a café in Diyarbakır and taken to the Security Directorate. He was subsequently taken to the official detention centre of the Rapid Reaction Force [2] where he was detained for four to five hours, during which he was interrogated and tortured intensely. He was questioned about Ender's whereabouts. When he told the police officers that he did not know where his brother was, he was told that Ender had been apprehended and that a price-list of walkie-talkies and batteries had been found on him. Ali was also asked where Ender's rifle was. During his interrogation, Ali, despite having been told by the police officers that his brother Ender had “gone to the mountains”, could hear the screams of Ender. After having been interrogated and tortured for about four to five hours and believing that he was dead, the police officers left Ali on a dump in Ergani, about 50 kilometres from Diyarbakır. 26.     After his release, Ali Toğcu made inquiries about Ender at the Çarşı Police Station, where he was told that his brother was being held by the police and that he would be released after interrogation. 27.     On an unspecified date, Ali Toğcu made further inquiries about Ender with the Chief Commissioner at the Homicide Department, taking with him a photograph of his brother, a photocopy of his brother's identity card and the applicant's home telephone number. These inquiries had not yielded any results. 28.     On an unspecified date, the applicant and Ali Toğcu were apprehended and detained for six days. The police accused them of helping and meeting with Ender, whom they alleged was in the mountains. They were both released after six days without having been brought before a court. 29.     On another occasion, Ali Toğcu was approached by police officers who asked him for money in exchange for which Ender would not be killed. One police officer asked Ali for one billion Turkish Lira to be given to a third person. In return, Ender would be released. 30.     The applicant and his family filed many petitions with the State of Emergency Governor, the City Governor and other authorities. None of these petitions were accepted. On 6 April 1995, the applicant's wife filed a petition with the office of the Public Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). On 7 April 1995, she was informed by the authorities that the name of Ender Toğcu did not appear in their records. 31.     The applicant was heard by the Prosecutor for the first time on 19   July 1996. On 6 November 1996 the Diyarbakır Prosecutor issued a decision not to prosecute anyone in relation to the disappearance ( Takipsizlik Kararı ). 32.     The investigation was apparently reopened in October 1999. The applicant gave a second statement to the Diyarbakır Prosecutor and, for the first time, statements were taken from the spouses of the applicant and Ender. As the applicant and his wife did not speak any Turkish, their grandson Mehmet was present when their statements were taken. According to Mehmet, the official court interpreter distorted the statements given by the applicant and his wife. For example, although the applicant stated that he would recognise the police officers who came to the house, the interpreter translated this as “I don't know the people who took my son away”. After he objected to this, Mehmet was removed from the Prosecutor's office and he was not allowed to read the recorded statements. C.     The Government's submissions on the facts 33.     On 30 November 1994, at about 12.30 a.m., the homes of the applicant and his son Ali Toğcu were searched pursuant to a request made on 29   November 1994 by the Commander of the Diyarbakır Gendarmerie to the Diyarbakır Security Directorate. The aim of the search was to find Ender   Toğcu, who was suspected of involvement with the PKK. Police officers carrying out the search did not manage to find Ender Toğcu. However, a firearm and a charger with bullets were found in the applicant's house. As the applicant stated that it belonged to his nephew Mehmet   Kartal, the police officers took the firearm and left the applicant's home without detaining anyone. 34.     Neither Ali nor Ender Toğcu was taken into detention on 29 or 30   November 1994. The applicant and Ali were detained, however, on 4   July 1995 on suspicion of involvement in a terrorist organisation and released on 8 July 1995 on account of the lack of sufficient evidence. Ali   Toğcu was arrested once again by police on 7 August 1997 and released on 8   August 1997, after having given a statement. 35.     The applicant's wife submitted a petition to the Prosecutor's office at the Diyarbakır Court. No other petitions were submitted to any Prosecutor. An investigation into the disappearance of Ender Toğcu was carried out by the Diyarbakır Prosecutor who, in the course of his investigation, checked the custody records of the detention facilities in Diyarbakır and its districts. In the absence of any evidence implicating any State agent in the disappearance, the Prosecutor decided on 6   November 1996 not to prosecute anyone. 36.     The Diyarbakır Prosecutor instigated a second investigation at a later stage. In the course of this investigation, statements were taken from the applicant and his wife and also from Ender's wife. The Prosecutor further made attempts to take statements from the police officers who had searched the applicant's house on 29 November 1994. This second investigation was ongoing. D.     Documentary evidence submitted by the Government 37.     The following information appears from documents submitted by the Government. 38.     On 29 November the deputy commander of the Diyarbakır Provincial Gendarmerie Headquarters (hereinafter “the Gendarmerie Headquarters”) requested the Diyarbakır Police Headquarters to assist the personnel from the Gendarmerie Headquarters to apprehend “the persons who had been aiding and abetting the PKK in Diyarbakır”. 39.     According to a report of “house search and confiscation”, a number of police and gendarme officers, acting on the above mentioned request, went to the applicant's house in Diyarbakır in the early hours of 30   November 1994. They were looking for the applicant's son Ender Toğcu whom they wanted to arrest. However, Ender was not at home. During the search conducted at the house, a 7.45 millimetre calibre pistol with its bullets were found in the attic and confiscated by the officers. The applicant told the officers that the pistol belonged to his nephew, Mehmet Kartal. 40.     It appears from another report, drawn up and signed by the same officers, that after having searched the applicant's house they had gone to Mrs Sabahat Toğcu's house and unsuccessfully looked for Ender there. 41.     Custody records which, according to the Government, were from Diyarbakır's Çarşı Police Station and the Anti-Terror Branch of the Diyarbakır Police Headquarters, showed that neither Ender nor his brother Ali or their father Hüseyin – that is the applicant – were detained by the police on 28, 29 or 30 November 1994. 42.     According to copies of the custody records of a number of police and gendarmerie stations in and around Diyarbakır, no member of the Toğcu family was arrested and detained in November 1994. 43.     It appears from the custody records of the Silvan Central Gendarmerie Station that the applicant's nephew Mehmet Kartal was arrested on 22 November 1994 and released the next day (see paragraph 19 above). He was re-arrested on 8 December 1994 and an order for him to be remanded in custody was issued by the Diyarbakır Court on 21 December 1994. 44.     On 4 July 1995 the applicant and his son Ali Toğcu were arrested at their homes by a number of police officers. As they could not be linked to any illegal organisation, they were released on the orders of the Prosecutor on 8 July 1995. 45.     On 1 February 1996 Ramazan Sürücü, the chief of the Anti-Terror Branch of the Diyarbakır Police Headquarters, sent a reply to a letter which had apparently been sent to him from the Diyarbakır Police Headquarters on 30 January 1996. In his letter Mr Sürücü referred to another letter sent by his office on 24   January 1996. He informed the Headquarters that Ender   Toğcu had not been detained at the Anti-Terror Branch on 29   October 1994. Hüseyin Toğcu and Ali Toğcu had been arrested on 4 July 1995 and then released on 8 July 1995. 46.     On 8 February 1996 the Diyarbakır Prosecutor replied to a letter sent to him by the Ministry of Justice's International Law and Foreign Relations Directorate (hereinafter “the Directorate”) on 22 January 1996, informing that Directorate that Hüseyin and Ali Toğcu had been detained on 4 July 1995 and released on 8 July 1995. 47.     On 25 June 1996 the Diyarbakır Prosecutor asked the Prosecutor at the Diyarbakır Court whether an investigation into the applicant's allegations concerning Ender Toğcu was in progress. 48.     On 27 June 1996 the Prosecutor at the Diyarbakır Court replied to the Diyarbakır Public Prosecutor that Ender Toğcu's name did not feature in the records of the Diyarbakır Court. 49.     On 19 July 1996 a statement was taken from the applicant by the Diyarbakır Prosecutor. The applicant acknowledged that he had lodged an application with the European Commission of Human Rights and confirmed the accuracy of the contents of the statement he had given at the Human Rights Association (see paragraph 63 below). He recounted that on 29   November 1994 he and his sons, Ender and Ali, had been arrested outside his house by plain-clothes members of the Anti-Terror Branch of the Police Headquarters. Prior to his arrest, Ender had just returned from the hospital, where his pregnant wife had been giving birth. The reason for Ender's arrest was his suspected involvement with the PKK. The police officers arresting Ender had told the applicant to go and collect Ender's body in Fiskaya in three days' time. 50.     The applicant further stated that he had been kept in detention for a week before being released. Ali had been detained twice; on the first occasion he had been detained for a week and on the second he had been detained for three days. The firearm had been handed over to the police officers who had come to his house to search for it. Nothing had been heard from Ender since he had been detained on 29 November 1994, and the enquiries made by the applicant with the Prosecutor's office at the Diyarbakır Court and with the Anti-Terror Branch of the Police to obtain information about his son's fate had yielded no results. He told the Prosecutor that he wished to press charges against members of the Anti ‑ Terror Branch of the Police. 51.     On 2 September 1996 a Prosecutor (no. 34973) sent a reply to a letter sent from the Diyarbakır Prosecutor of 26 August 1996. He enclosed copies of the documents contained in investigation file no. 1996/4211. 52.     On 6 November 1996 the Diyarbakır Prosecutor decided not to prosecute anyone in connection with the applicant's allegations concerning the detention of his son. The Prosecutor based this decision on a letter sent to him on 16 October 1996 by the Anti-Terror Branch in which, according to the decision, that Branch had denied taking Ender Toğcu into custody. 53.     Ali Toğcu was once more arrested at his house on 7 August 1997. 54.     On 14 October 1999 the Diyarbakır Prosecutor sent letters to the Diyarbakır Police Headquarters and the Gendarmerie Headquarters, asking them to submit to his office the custody records of 29   November 1994. He also instructed them to search for Ender. 55.     On 20 October 1999 the Gendarmerie Headquarters informed the Prosecutor that Ender had not been detained by them. Copies of their custody records, in which Ender's name did not feature, were forwarded to the Prosecutor with this letter. 56.     On 1 November 1999 the Diyarbakır Prosecutor took a statement from the applicant. The applicant recounted that his son Ender had been living with him prior to his disappearance. On the evening of 29 November 1994, seven or eight plain-clothes police officers had come to his house and told him that Ender, who was in their hands, had told them that there was a firearm in the house. The applicant had replied that he did not know anything about a firearm. The officers had then found it in the attic of the house and left. He had not heard from Ender since that day. His other son Ali had been arrested and detained three to four days after the disappearance of Ender and had been ill-treated whilst in custody. Ali had also told him that he had heard a person's screams while he was in custody. Ali had thought it might be his brother Ender. Two months after the disappearance of Ender, the applicant and Ali had been arrested and detained once more, this time for a period of six days during which they had been questioned about the petition in which they had complained about police officers. 57.     The applicant further submitted that his son Ender had not had any involvement with the PKK. The applicant had never been told by anyone to go and find the body of his son in Fiskaya (see paragraph 49 above). Finally, the applicant had asked the Prosecutor to find his son. 58.     Also on 1 November 1999 the Diyarbakır Prosecutor took a statement from Güler Tuncel, the wife of Ender Toğcu. She stated that, while pregnant, she had become unwell on 29 November 1994 and her husband Ender had taken her to hospital. They had then returned home in the early afternoon and Ender had gone to his café at around 3 p.m. Ender would normally return home at 11 p.m. or midnight. At around midnight on 29 November 1994 seven or eight plain-clothes police officers had come to their house and had asked her and her father-in-law, the applicant, about a firearm. She knew that her husband owned a gun but she did not know where he kept it. The police officers then found it in the attic. She had not known that it was hidden there and, had they not been told by Ender where it was hidden, the police officers would not have been able to find it. She had not heard from Ender since that day. 59.     Finally, on 1 November 1999 the Diyarbakır Prosecutor questioned Soliye Toğcu, the wife of the applicant. Mrs Toğcu stated that on 29   November 1994 she had gone to hospital together with her daughter-in-law Güler. Her son Ender had also been at the hospital for some time, but he was at home when she had returned. Ender had left at 3 p.m. to go to the café which he was running and had not returned. At around midnight the same day, seven or eight police officers had arrived at their house and asked for Ender. According to the officers, Ender had told them that there was a firearm in the house. The officers had found the gun and left. She had subsequently petitioned the Prosecutor about the disappearance of her son but had never been informed about his fate. 60.     On 30 November 1999 the Diyarbakır Prosecutor reminded the Diyarbakır Police Headquarters and the Gendarmerie Headquarters of his requests of 14 October 1999 (see paragraph 54 above) and urged them to submit to his office copies of the custody ledgers and to search for Ender. 61.     Also on 30 November 1999 the Diyarbakır Prosecutor sent a letter to the Anti-Terror Branch of the Police and summonsed the police officers who had gone to the applicant's house on 30 November 1994 (see paragraph 39 above) to his office. He also asked whether any action had been taken in relation to the firearm found in the applicant's house. The Prosecutor finally asked whether Ender, Ali and the applicant had been detained on 30   November 1994. He asked for copies of the custody records to be sent to his office. E.     Documentary evidence submitted by the applicant 62.     On 6 April 1995 the applicant's wife submitted a petition to the Prosecutor's office at the Diyarbakır Court (see paragraphs 30 and 35 above). She informed the Prosecutor that her son Ender Toğcu had been taken into custody by members of the security forces in Diyarbakır on 29   November 1994. Plain-clothes police officers who had raided her house on the evening of 29 November 1994 had told her that her son was in their hands. She had not heard from her son since that date. She asked the Prosecutor to give her information about her son. A handwritten note on this petition reads “his name was not found in the examination of our records”. 63.     On 10 April 1995 the applicant made a written statement, addressed to a “Human Rights Project”. He submitted that at around 3 p.m. on 29   November 1994, his son Ender had left his brother Ali to go to the hospital where Ender's wife was giving birth. The applicant's wife, who was staying at the hospital to look after her daughter-in-law, had told the applicant that their son Ender had never arrived at the hospital. Ali had been arrested the following day by police officers from the Çarşı Police Station and been questioned for three days. On the third day he had been released on the Ergani Road. 64.     In a letter forwarded to the Court on 31 January 2000, the applicant's son Ali Toğcu submitted that on 30 November 1994 he had been arrested by police officers and been taken to the Security Directorate, from where he had been taken to the Rapid Reaction Force. While at the Rapid Reaction Force, Ali had been questioned about his brother Ender and been told by police officers that Ender had gone to the mountains to join the PKK. While in custody, Ali had heard the screams of his brother Ender. Ali had been severely tortured and, believing that he was dead, the police officers had left him at a dump near Ergani. Following that incident, he had been detained a total of five times and on each of these occasions he had been accused of meeting with his brother Ender, whom, the police officers insisted, had joined the PKK. 65.     The applicant forwarded to the Court a letter which he had dictated on 14 September 2001. In this letter the applicant submitted that there were no eye-witnesses to the abduction of his son Ender. No one at Ender's workplace had witnessed his arrest. He himself had not witnessed it either. He had been arrested, together with his other son Ali, one day in the summer and detained for six days. He had been asked why he had complained about the police officers and he had replied that his son had been detained by police officers and, for that reason, he had applied to the Prosecutor and to the Human Rights Association. He had then been told by police officers that his son had not been in their hands but that he had gone to the mountains. 66.     In a letter, drawn up by Ali Toğcu's son Mehmet Toğcu on 18   September 2001, Mehmet Toğcu submitted that he had accompanied his grandparents – that is the applicant and his wife – and the wife of his uncle Ender (see paragraph 32 above) to the Prosecutor's office and had acted as the interpreter for his grandparents who did not speak any Turkish. His aunt Güler – Ender's wife – could speak Turkish. When he had begun translating word by word what his grandfather was saying, the Prosecutor had interrupted him and had asked another person working at the courthouse to take over the interpretation. However, this person had distorted his grandfather's words and, when Mehmet had objected, he had been removed from the office. He had later wanted to see the statements taken from his grandparents but his request had been refused by the Prosecutor. 67.     In a letter dated 13 October 2001, Mrs Sabahat Toğcu (see paragraph   40 above) submitted that on the day of the incident she had gone to the hospital, where the wife of her brother-in-law was giving birth. Afterwards she had gone to the house of her brother-in-law Ali Toğcu. At 3   a.m. the following morning, a number of police officers had come to the house and told the people present that Ender had a large number of weapons in the house of a certain person named Yavuz. She and Ali had then accompanied the police officers to her house where, because she had forgotten the keys, the police officers had broken the door and had entered, and searched the house. Nothing had been found. II.     RELEVANT DOMESTIC LAW AND PRACTICE 68.     The relevant domestic law and practice are set out in the judgment in the case of Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 186-197, ECHR   2004). THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTION 69.     In their post-admissibility observations, the Government submitted that the investigation concerning the disappearance of Ender Toğcu was still continuing and they asked the Court to dismiss the application under Article   35 §§ 1, 3 and 4 of the Convention. 70.     The Court notes that, prior to the Court's decision on the admissibility of the present case, the Government had not argued that domestic remedies had not been exhausted (see the admissibility decision of 14 September 1999). They are therefore estopped from raising this objection to the admissibility of the application now (see Hasan İlhan v. Turkey , no.   22494/93, § 103, 9 November 2004). 71.     It therefore dismisses the Government's preliminary objection. II.     THE COURT'S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A.     Arguments of the parties 1.     The applicant 72.     The applicant submitted that the totality of the following evidence was sufficient for the Court to establish beyond reasonable doubt that his son Ender had been abducted by agents of the State or by persons acting with the acquiescence of the State: (a)     the authorities were determined to detain Ender on 29 November 1994; (b)     the police officers told Ender's mother that he had informed them about his firearm; (c)     Ender's brother Ali heard his screams while detained the following day; and, finally, (d)     the authorities failed to carry out an adequate investigation into the abduction and disappearance of Ender; they failed to act in response to specific information provided to them by the applicant and his family. 73.     The applicant emphasised that, in order for him to obtain the requisite evidence to establish that his son had been abducted by police officers as he alleged, and that his son had been killed in custody as he feared, he and his family were entirely reliant upon the authorities to carry out an investigation into his son's disappearance. 74.     The applicant finally submitted that, in the light of the evidence he had provided, the burden was now on the respondent Government to prove that their agents had not been involved in the alleged enforced disappearance given that the events in issue lay wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody. 2.     The Government 75.     The Government contended that the applicant's allegations were baseless; neither Ender Toğcu nor his brother Ali had been arrested on 29 or 30   November 1994. Had they been detained, there would have been records of their detention, just like the record of the detention of Ali Toğcu on 4   July 1995. 76.     According to the Government, in most cases involving people who were alleged to have disappeared in the south-east, it had later turned out that these persons had joined the PKK terrorist organisation. B.     Article 38 § 1 (a) and consequent inferences drawn by the Court 77.     Before proceeding to assess the evidence, the Court would stress, as it has done previously, that it is of the utmost importance for the effective operation of the system of individual petition, instituted under Article 34 of the Convention, that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v.   Turkey [GC], no.   23763/94, § 70, ECHR 1999-IV). It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent Government have access to information capable of corroborating or refuting these allegations. A failure on a Government's part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v.   Turkey , no. 23531/94, §§ 66 and 70, ECHR 2000-VI). 78.     The applicant alleged that the Government had failed to provide the Court with copies of the detention records in respect of the Rapid Response Force where his son Ali had been detained and had heard the screams of his brother Ender. 79.     The Court notes that on 25 June 1999 it invited the Government to submit to it copies of the custody ledgers of the detention centre at the Diyarbakır Security Directorate. In their reply of 12 July 1999, the Government sent to the Court – what they claimed to be – copies of the custody ledgers of the Çarşı Police Station and also of the Anti-Terror Branch of the Diyarbakır Security Directorate (see paragraph 41 above). 80.     Furthermore, on 21 September 1999 the Court asked the Government to inform it about the number of detention facilities in Diyarbakır and immediate surroundings. The Government were further requested to confirm whether the custody records of all these detention facilities had been checked in order to ascertain whether Ender Toğcu or Ali   Toğcu had been detained there between 29 November 1994 and 3   December 1994, and, if so, by whom and on what dates. The Government were finally requested to submit to the Court copies of the custody records of all the detention facilities in Diyarbakır and in its districts as well as a copy of the documents in the investigation file which post-dated 6   November 1996. 81.     On 12 January 2000 the Government replied to the Court's queries that there were 12 detention facilities of the Diyarbakır Security Directorate in Diyarbakır and another 12 in its districts. Furthermore, there were 45 detention facilities of the Gendarmerie in and around Diyarbakır. The custody records had been verified by the prosecutors who were dealing with the investigation. The Government also submitted to the Court copies of “the custody records which have been obtained” (see paragraph 42 above). 82.     The Court observes at the outset that the custody records submitted by the Government on 12 July 1999 do not offer any information as to the detention facility where they were drawn up. Neither have the names nor ranks of the officers who effected the arrests of the persons featuring in those records been noted. Indeed, it is not even clear whether these records relate to detention facilities of the Gendarmerie or the Police. 83.     Furthermore, the letter sent by the Diyarbakır Prosecutor to the Diyarbakır Police Headquarters on 14   October 1999 (see paragraph 54 above), in which he asked for copies of the custody records showing the names of those detained on 29   November 1994 and the subsequent reminder sent by him on 30 November 1999 (see paragraph 60 above), suggests that the records submitted by the Government did not cover all of the detention facilities of the Diyarbakır Police Headquarters. Although the applicant specifically claimed that his son Ali had been detained at the Rapid Reaction Force (see paragraph 25 above) where he had heard the screams of his brother Ender, and not at the Anti-Terror Branch whose custody records were submitted, the Government did not indicate which of the custody records related to the Rapid Reaction Force. 84.     As regards the copies of the custody records submitted by the Government on 12 January 2000 (see paragraph 81 above), the Court notes that while it appears from some of these custody records that they were drawn up at the detention facilities of a number of Gendarmerie Headquarters in and around Diyarbakır (such as Lice, Kulp, Hazro and Silvan), a number of others do not indicate their provenance. The applicant claimed that he, with the assistance of his legal representatives in Turkey, had established that the custody records submitted by the Government pertained to 18 different detention facilities. However, custody records in respect of the Rapid Reaction Force were not among them. The Government have not disputed this (see paragraph 7 above). 85.     The Court further notes with concern that the Government have failed to submit to it a number of documents pertaining to the investigation into Ender Toğcu's disappearance.   It is true that, in a letter to the Commission of 11 October 1996, the Government claimed that they were forwarding “the documents relating to the investigation file of the Diyarbakır Prosecutor”. Similarly, in their response of 12 January 2000 to the Court's request to be provided with the investigation file (see paragraph 81 above), they again submitted, what they claimed to be, “a copy of the Diyarbakır Prosecutor's investigation file”. 86.     However, the Court observes that the documents submitted by the Government do not constitute the complete investigation files, the submission of which had been requested. In this connection, the Court notes that the documents submitted make references to a number of other, potentially important, documents which were not made available to the Court. These documents included the following: (a)     a letter sent by the Diyarbakır Police Headquarters to the Anti ‑ Terror Branch on 30 January 1996 (see paragraph 45 above); (b)     a letter sent by the Anti-Terror Branch on 24 January 1996 (see paragraph 45 above); (c)     the Directorate's letter of 22 January 1996 sent to the Diyarbakır Prosecutor's office (see paragraph 46 above); (d)     a letter of 26 August 1996 from the Diyarbakır Prosecutor, and the documents referred to in that letter (see paragraph 51 above); and, finally, (e)     the Anti-Terror Branch's letter of 16 October 1996 referred to in the decision not to prosecute (see paragraph 52 above). 87.     The Court, observing that the Government have not advanced any explanation for their failure to submit these documents, finds that it can draw inferences from the Government's conduct in this respect. Furthermore, the Court, referring to the importance of a respondent Government's co-operation in Convention proceedings (see paragraph 77 above), finds that the Government fell short of their obligations under Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Commission and to the Court in its task of establishing the facts. C.     The Court's evaluation of the facts 88.     The applicant submitted that his son had been taken into custody by security forces on 29 November 1994. The Government denied any involvement of State agents in the disappearance of Ender Toğcu and submitted that most cases of alleged disappearance in the south-east actually concerned persons who had joined the PKK terrorist organisation. 89.     The Court would stress at the outset that the Government have not submitted to the Court any examples of persons initially believed to have disappeared who had later been found to have joined the PKK. It therefore disregards the Government's submissions in this respect and, in the absence of any information to the contrary, finds it established that the applicant's son Ender Toğcu did indeed disappear. 90.     In support of his allegation that his son had been taken by the security forces, the applicant submitted, in particular, that his son Ali had heard the screams of his brother while in the custody of the Rapid Reaction Force (see paragraph 25 above). He also submitted that the police officers who came to his house on the evening of 29 November 1994 had told his wife that they had been informed about the firearm by Ender (see paragraph   24 above). 91.     As regards the applicant's latter submission, the Court notes that it has not been disputed by the applicant that he had told the police officers that the firearm was owned by his nephew Mehmet Kartal (see paragraph 39 above). It also notes that Mehmet Kartal had been detained earlier by the Silvan Gendarmerie on 22 November 1994 and released on 23   November 1994 (see paragraph 43 above). The Court cannot exclude, therefore, that Mehmet Kartal had himself told the Gendarmerie where he had hidden his firearm. 92.     As regards the applicant's submissions concerning the detention of Ender, the Court observes that the applicant and his family have provided the Commission and the Court with conflicting versions of the circumstances leading up to the disappearance of Ender Toğcu. In this connection the Court would particularly highlight the following: (a)     In his statement of 10 April 1995, addressed to a Human Rights Project, the applicant submitted that on 29 November 1994 Ender had left his brother Ali to go to the hospital where his (Ender's) wife was giving birth. The applicant's wife, who was staying at the hospital to l