CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 octobre 2006

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text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s34B4B5A7 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA0AF7C1A { width:39.27pt; display:inline-block } .s21D34249 { width:170.29pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }     THIRD SECTION     CASE OF SELİM YILDIRIM AND OTHERS v. TURKEY     (Application no. 56154/00)       JUDGMENT     STRASBOURG   19 October 2006       FINAL     19/01/2007       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 Selim Yıldırım and Others v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar , Having deliberated in private on 1 December 2005 and on 28   September 2006, Delivers the following judgment, which was adopted on the last mentioned date: PROCEDURE 1.     The case originated in an application (no. 56154/00) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Turkish nationals, Mr Selim Yıldırım, Ms   Hasibe Yıldırım, Ms Leyla Yıldırım, Mr Rıdvan Yıldırım, Ms   Gülcan Yıldırım, Ms Berivan Yıldırım and Ms Şermin Yıldırım (“the applicants”), on 2   February 2000. 2.     The applicants were represented by Mr S. Okçuoğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.     The applicants alleged, in particular that their relative, Adnan Yıldırım, was killed following his abduction by undercover agents of the State and that the authorities failed to carry out an effective and adequate investigation into his death. In this respect, they relied on Articles 2, 3, 6, 13 and   14 of the Convention. 4.     The application was allocated to the Third 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. 5.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 6.     By a decision of 1 December 2005, the Court declared the application admissible. 7.     The applicants and the Government each filed further written observations (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Facts as submitted by the parties 8.     The applicants were born in 1928, 1955, 1980, 1982, 1984, 1987 and 1994 respectively. The first applicant lives in Diyarbakır and the remainder of the applicants live in Istanbul. The first applicant is the father, the second applicant is the wife and the remainder of the applicants are the children of Adnan Yıldırım, who was killed on 3 June 1994. 9.     On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul with his two friends Savaş Buldan and Hacı Karay, seven or eight people wearing bullet-proof vests and carrying firearms approached them. They introduced themselves as police officers and forced the three men into three cars. 10.     The applicants were informed of the incident on that same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons had not been taken into custody. The same day, the brother of Savaş Buldan filed a complaint with the Bakırköy public prosecutor and complained that his brother and his two friends, Adnan Yıldırım and Hacı Karay, had been abducted by people who had introduced themselves as police officers. 11.     On 3 June 1994 at about 9 p.m. İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. At about 9.15 p.m. the gendarmerie arrived at the scene. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination. 12.     On 4 June 1994 a post mortem examination of Adnan Yıldırım's body was carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Adnan Yıldırım. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was perceived that rigor mortis was fading. According to the report, when the body was touched, the skin peeled - which was most probably due to its damp condition. One bullet entrance hole on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm. in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out. 13.     The bullets recovered from the bodies were sent for ballistic examination to the Central Police Forensic Laboratory, which prepared two forensic reports dated 6 and 14 June 1994 respectively. The report dated 14   June 1994 showed that the five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities. 14.     The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. The report stated that comparisons of the five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities. 15.     On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3   June 1994. 16.     From 4 to 7 June 1994 the Yığılca gendarmerie took statements from twenty-six persons. 17.     On 4 June 1994 the Bakırköy public prosecutor took a statement from Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr   Uz explained that when Adnan Yıldırım, Savaş Buldan and Hacı Karay, who were regular customers at the hotel casino, left the hotel around 5   a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, approached them and conducted body searches holding them against the wall. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as their statements were taken. The Mercedes was followed by a sports car. The doorman was unable to describe any of the men, since it was dark and he had seen them from a distance. 18.     Also on 4 June 1994 the Bakırköy public prosecutor took the statement of Hüseyin Kılıç, a security guard at the Çınar Hotel. He stated that seven or eight men, wearing waistcoats and carrying weapons, had approached the three men as they walked out the door. They forced the three men into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car. 19.     On 5 June 1994 Serdar Özdemir, a taxi driver waiting at the taxi rank outside the Çınar Hotel, gave his statement to the Bakırköy public prosecutor. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which was driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of these men. 20.     Again on 5 June 1994 the Bakırköy public prosecutor took a statement from another taxi driver, Hüsnü Durmazer. He stated that as he approached the taxi rank outside the hotel, he saw some people forcing three men into a black car. 21.     On 9 June 1994 the Istanbul Security Department established that the car with registration number 34 CK 420 was a burgundy coloured 1987 model BMW and that it belonged to a certain C.P., who resided in Istanbul. 22.     On 18 June 1994 the first applicant, Selim Yıldırım, gave a statement to the police. He stated that his son, Adnan Yıldırım, had been abducted from the Çınar Hotel. He explained that when the Bolu Gendarmerie informed him about the three dead bodies that had been found in Yığılca, he had identified his son's body in the Bolu State Hospital. He asked the authorities to find the perpetrators of this crime. 23.     The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years. The investigation file was forwarded to the Yığılca public prosecutor on 17 March 1995 since the bodies were found within his area of jurisdiction. 24.     As it had not been possible to establish the identities of the perpetrators, on 31 August 1995 the Yığılca public prosecutor issued a permanent search warrant for the perpetrators of the killings, which would remain valid for twenty years pursuant to Article 102 of the Criminal Code. The prosecutor further stated in his report that no evidence had been found during the investigation. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue carrying out meticulous searches for the perpetrators. 25.     After the Susurluk incident, Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, he referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following: “The Gendarmerie and the National Intelligence Service ( Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia , the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, he stated that he did not know how and by whom the killings were carried out. 26.     On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention in connection with an investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before. 27.     The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison. 28.     The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. On 7 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he was not in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. He explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping. 29.     On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicants' relative and the other two persons. On 29   May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Sebahattin Uz, the doorman at the Çınar Hotel, and Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3   June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14   July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr   Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person had left the car and filled a container with water from a fountain. When he was shown pictures of Yaşar Öz, the witness stated that the person he had seen did not look like Yaşar Öz. 30.     On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz. 31.     In the meantime, on 29 September 1998, the Istanbul Security Department wrote to the management of the Çınar Hotel Casino and requested that the video recordings of the security camera for the night of 3   June 1994 be transmitted to them. In reply, on 2 October 1998 the casino management informed the security department that the video recordings were kept for one month and then erased. They further stated that as the casino was closed as of 12 February 1998, all video recordings were deleted. 32.     On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor. 33.     On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings. 34.     On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends. 35.     During the proceedings before the Düzce Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Mr Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar. 36.     The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities. 37.     Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24   November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction. 38.     The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16   December 1998 the court concluded that it too did not have jurisdiction to deal with the case. It held that, according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction. 39.     On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case. 40.     Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. The applicants joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. Nineteen eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before. 41.     On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence. On 25 May 2001 the Court of Cassation upheld this decision. B.     Documents submitted by the parties 42.     The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, may be listed as follows. 1.     Official documents (a)     Documents in respect of domestic investigation (i)   Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander. (ii)   Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander. (iii)   Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994. (iv)   Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995. (v)   A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor. (vi)   Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident. (vii)   A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office. (viii)   An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots. (ix)   The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office. (x)   Periodic follow-up reports (thirty one in all) of gendarmes between 1998 and 2004. (xi)   Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995. (xii)   Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996. (xiii)   Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted. (xiv)   Letter of Çınar Hotel Casino Management to the Istanbul Security Directorate, dated 2 October 1998. (xv)   Decision of the Yığılca public prosecutor to continue searching for the perpetrators of the killings, dated 2 November 1998. (b)     Witness testimonies (i)   Statements of Sabahattin Uz, doorman of the Çınar Hotel, dated 4   June 1994 and 10 March 1997 respectively, taken by the Bakırköy public prosecutor's office. (ii)   Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4   June 1994, taken by the Bakırköy public prosecutor's office. (iii)   Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office. (iv)   Statements of Hüsnü Durmazer, dated 5 June 1994 and 10   March 1997 respectively, taken by the Bakırköy public prosecutor's office. (v)   Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (vi)   Statements of Ayşe Araç, a villager, dated 6 June 1994 and 14   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (vii)   Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie. (viii)   Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (ix)   Statements of Ayşe Uzun, a villager, dated 4 June 1994 and 6   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (x)   Statement of Hazım Yıldız, driver of the school bus, dated 4   June 1994, taken by the Yığılca District Gendarmerie. (xi)   Statements of Mehmet Baş, a villager, dated 4 June 1994 and 14   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xii)   Statements of Seyfettin Çakmak, a villager, dated 4 June 1994 and 14   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xiii)   Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xiv)   Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xv)   Statements of İrfan Kurşunlu, a villager, dated 4 June 1994 and 4   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xvi)   Statements of Hasan Baş, a villager, dated 4 June 1994 and 6   June 1994 taken by theYığılca District Gendarmerie and the public prosecutor respectively. (xvii)   Statements of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994 and 22 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xviii)   Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xix)   Statements of Şevket Öztürk, a villager, dated 6 June 1994 and 12   June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xx)   Statements of Yunus Öztürk, dated 6 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xxi)   Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxii)   Statement of Halit Sivri, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxiii)   Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxiv)   Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxv)   Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie. (xxvi)   Statements of Muzaffer Yıldız, dated 6 June 1994 and 12   June 1996, taken by the Yığılca District Gendarmerie and the prosecutor. (xxvii)   Statement of Mehmet Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxviii)   Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxix)   Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxx)   Statements of Hasan Topuz, dated 7 June 1994 and 21 June 1996, taken by the Yığılca Gendarmerie and the public prosecutor respectively. (xxxi)   Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxii)   Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxiii)   Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxiv)   Statements of Bahar Yıldırım, dated 7 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xxxv)   Statement of Bengü Çelebi, dated 6 June 1996, taken by the Yığılca District Gendarmerie. (xxxvi)   Statement of Nihat Buldan, the brother of Savaş Buldan, dated 21   June 1994, taken by the Yığılca District Gendarmerie. (xxxvii)   Statement of Arif Karay, the brother of Hacı Karay, dated 18   June 1994, taken by the police. (xxxviii)   Statement of Selim Yıldırım, dated 18 June 1994, taken by the police. (c)     Forensic documents (i)   Body examination report, dated 4 June 1994. (ii)   Photo-fits of three of the perpetrators. (iii)   Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory. (iv)   Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory. (v)   Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory. (vi)   Ballistics examination report of the Gendarmerie Forensic Laboratory, dated 15 January 1997. (vii)   Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın. (d)     Documents concerning the investigation following the Susurluk incident (i)   Statement of Korkut Eken, Head of Special Operations team, dated 11   March 1997. (ii)   Statements of Hanefi Avcı, dated 7 February 1997, 24   March 1997, and 20 April 1998 concerning the Susurluk incident. (iii)   Report of the Central Police Laboratory indicating that the photo-fits of the perpetrators had similarities with the photo of Yaşar Öz. (iv)   Statement of Yaşar Öz, dated 7 May 1998. (v)   Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before. (vi)   Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7   March 1998. The file was transferred to Ankara State Security Court. (vii)   Non-jurisdiction decision of the Ankara State Security Court, dated 7   October 1998. (viii)   Non-jurisdiction decision of Düzce Assize Court, dated 24   November 1998, and transfer of case file to the Ankara State Security Court. (ix)   Non-jurisdiction decision of Ankara State Security Court, dated 16   December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction. (x)   Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court. (xi)   Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court. (xii)   Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence. (xiii)   Judgment of the Court of Cassation, dated 25 May 2001, upholding the decision of the Düzce Assize Court dated 18 November 1999. 2.     Unofficial documents 43.     The applicants submitted a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr   Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 44.     The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 45.     The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. In the Report, reference is made to the killing of the applicant's brother: “All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).” 46.     The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. II.     RELEVANT DOMESTIC LAW AND PRACTICE 47.     For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v.   Turkey (no.   27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no.   27244/95, §§   115-22, 9 May 2003). THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTION 48.     The Government argued that the applicants have failed to exhaust the domestic remedies available to them, within the meaning of Article   35 §   1 of the Convention. In this connection, they maintained that the investigation concerning Adnan Yıldırım's death was still pending. 49.     The Court reiterates that, in its decision of 1 December 2005, it considered that whether the criminal investigation at issue could be regarded as effective under the Convention was closely linked to the substance of the applicants' complaints that it should be joined to the merits. Noting the arguments presented by the parties on this question, the Court considers it appropriate to address this point in its examination of the substance of the applicants' complaint under Article 2 of the Convention. 50.     Consequently, the Court joins the preliminary objection concerning the effectiveness of the criminal investigation to the merits of the applicants' complaint under Article 2 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 51.     The applicants alleged that Adnan Yıldırım had been tortured and killed following his abduction by undercover agents of the State or by persons acting under their express or implicit instructions. They also complained that the authorities had failed to carry out an effective and adequate investigation into his killing. The applicants relied on Article 2 of the Convention, which provides: “1.     Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” A.     The parties' submissions 1.     The applicants 52.     The applicants claimed that there was sufficient evidence to prove that Adnan Yıldırım was killed by agents of the State and that the State had failed to protect his right to life and to carry out an investigation to find the perpetrators. The applicants made extensive references to the Susurluk Report which concluded that Adnan Yıldırım and his friend Savaş Buldan had been killed by agents of the State. According to the applicants, the Susuruluk Report and the statements of Mr Hanefi Avcı, former head of the intelligence service of Istanbul Police Headquarters, made it clear that the killing had taken place with the full knowledge of the Turkish authorities. 53.     As to the unsatisfactory nature of the investigation, the applicants submitted that the authorities excluded the possibility that the killings might have been carried out by the police or other individuals acting on behalf of or with the approval of the State. In the applicants' opinion, the investigation carried out by the authorities was a mere formality intended to impress the Strasbourg organs. 2.     The Government 54.     The Government disputed these allegations and denied that Adnan Yıldırım had been killed by undercover agents of the State. 55.     As regards the requirement to carry out an effective investigation, the Government maintained that the investigation carried out by the authorities had met the requirements of the Convention. B.     The Court's assessment 1.     The death of Adnan Yıldırım 56.     The Court recalls that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, pp.   45 ‑ 46, §§   146-47). 57.     In the light of the importance of the protection afforded by Article   2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, Orhan v.   Turkey , no.   25656/94, § 326, 18 June 2002). 58.     The Court will examine the issues that arise in the light of the documentary evidence adduced in the present case, in particular the documents lodged by the Government with respect to the judicial investigations carried out in the case as well as the parties' written observations. 59.     The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4   April 2000). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them (see Klaas v. Germany , judgment of 22 September 1993, Series   A no. 269, p. 17, § 29). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas , cited above, p. 18, § 30). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch v.   Austria ,