CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 octobre 2015

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TURKEY   (Application no. 15397/02)             JUDGMENT (Extract)       STRASBOURG   6 October 2015     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 Kavaklıoğlu and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Işıl Karakaş,   Nebojša Vučinić,   Ksenija Turković,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 8 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 15397/02) 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 seventy-four Turkish nationals (“the applicants”), on 23 September 2000. 2.     The applicants were represented by a group of ten lawyers whose spokesperson was Mr K. Bayraktar, a lawyer practising in Ankara [1] . The Turkish Government (“the Government”) were represented by their Agent. 3.     Referring to the circumstances of the anti-riot operation conducted in Ulucanlar Central Prison (hereinafter “Ulucanlar”), in Ankara, on 26 September 1999, the applicants –   that is to say the nine relatives of the eight prisoners who had died and the sixty-five prisoners who had been injured during the operation – relied on Articles 2, 3, 6, 13 and 14 of the Convention and Article   1 of Protocol no. 1 to the Convention. They alleged in particular that the impugned operation had essentially consisted of a premeditated act of killing and torture. They further complained of the inadequacy of the criminal investigations conducted into their complaints. 4.     By decision of 5 January 2010 (see Şaban Kavaklıoğlu and 73 Others v.   Turkey (dec.), no. 15397/02, 5 January 2010), the Chamber – having joined to the merits the consideration of the Government’s objection that the application was premature – ruled that the complaints under Articles   6 and 13 of the Convention should be assessed solely from the angle of the procedural aspect of Article 2 and/or Article 3 (see Şaban Kavaklıoğlu and 73 Others decision, cited above, §§ 44, 54 and 55). The Chamber declared the application inadmissible in respect of five applicants (Ms Döndü Özer, Ms Arife Doğan Tayanç, Mr Engin Günel, Mr İsmail Balcı and Mr Feyzullah Koca) for incompatibility ratione personae with the provisions of the Convention (Article 35 §§ 3 and 4), and struck it out of the list of cases in respect of the deceased applicants Ms Hatice Yürekli, Ms Fatma Hülya Tumgan, Mr Cafer Tayyar Bektaş, Mr Gazi Arıcı and Mr Cemal Çakmak, pursuant to Article 37 § 1 (c) of the Convention (ibid., §§   48-53) [2] . The application was declared admissible in respect of the other applicants. Nevertheless, it subsequently transpired that the application also had to be declared inadmissible in respect of Ms Saime Örs owing to her lack of victim status (under Article 35 §§ 3 and 4), for reasons that will be expounded below (see paragraph 152 below). 5.     Updated information on the sixty-three applicants in respect of whom the proceedings have been maintained is set out in Appendix I [3] . The latter comprises two lists: List A contains the names of the nine applicants acting on their own behalf as well as on behalf of the eight prisoners who died during the impugned operation, and List B mentions the fifty-four applicants who were injured during that operation, acting on their own behalf. 6.     Both the applicants and the Government submitted further written observations (under Rule   59   §   1 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Origin of the case 7.     Although the present case primarily relates to the anti-riot operation of 26 September 1999, that operation in fact constituted the climax of a series of long-standing conflicts between the Ulucanlar prison staff and some of the 170 male and female prisoners convicted of belonging to illegal extreme left-wing organisations (“the leftist prisoners”). It transpires from old classified documents exchanged among the office of the prosecutor attached to Ulucanlar Prison (“the prosecutor’s office”), the Governor of Ankara (“the Governor”) and the various regional gendarmerie commands, including the Ankara Gendarmerie Command (“the CDGA”), that the hostilities between the prison authorities and the prisoners dated back to 1996 (see paragraph   8 below). Since that time the authorities had been aware of the problems, particularly relating to overcrowding and the age and inadequate facilities of the Ulucanlar complex, which, moreover, had been intended as a short-term prison and should never have housed convicted prisoners. It transpires from the various information sources that the exiguity of the living area in the “dormitories” [4] was central to the leftist prisoners’ complaints and actions, which they conducted together despite their political differences and personal conflicts of interest. A clearer picture might be gained of the present dispute by recapitulating the factors mentioned in the above-mentioned exchange of documents and the facts noted by the five-MP sub-commission set up under the Commission of Inquiry into Human Rights in the Turkish National Assembly (“the Sub-Commission”) in order to investigate and ascertain the circumstances under which the impugned incidents had occurred. 1.     The first Action Plan 8.     On 5 January 1996, under the Governor’s supervision, the prosecutor’s office, the CDGA, the gendarmerie unit on duty at Ulucanlar (“CGP”) and the other gendarmerie commands drew up their so-called “Anti-Prison   Riot Action Plan No. 1”. The authorities in question were convinced that the leftist prisoners were planning a mass break-out, that they would therefore probably engineer an internal clash among the various extreme left-wing fractions in the prison and would dig tunnels, knock down walls, occupy the roofs, start fires and, finally, trigger an insurrection against the prison authorities. The authorities considered that as the CGP lacked the operational capacities to deal with such eventualities, they had to work together in order to identify the ringleaders and ensure durable security in the prison. On 16 January 1996 the Governor ratified the plan, under which the CGP would be backed up by auxiliary forces, that is to say two senior officers and twenty gendarmes, to be seconded from other commands, accompanied by the local police. 9.     However, that plan was not implemented as foreseen. Accordingly, on 31 July 1996 the authorities met to reassess the situation and draw up a new Action Plan in accordance with the Prime-Ministerial Directive of 12 November 1993 concerning the suppression of rioting in prisons. On 2 August 1996 the Secretary General of the National Security Council urged the relevant ministries and several decision-making bodies, as well as the Governors’ Offices, to implement that new plan promptly, drawing on some more specific coercive measures. In substance, the parts of the plan relevant to the assessment of the present case were based on short- and medium-term actions, as follows [5] : –   refusing any compromise with the “terrorist” organisations, as this would encourage them to make impossible   demands; –   reaffirming the State’s determination to combat such propaganda-based movements; –     endeavouring to restore the State’s authority in prisons and to reform the legislation on internal prison   surveillance; –     transferring the leaders of the “terrorist” organisations to other appropriate prisons; –     preparing television programmes involving specialists capable of analysing and assessing the mental state of insurgent prisoners and the difficulties encountered by the security forces in combating terrorism; –     conducting counter-propaganda vis-à-vis sections of the media being used by the “terrorist organisations” in relation to conditions of detention; –     making public declarations conducive to reducing the impact of propaganda sullying the reputation of and demoralising members of the security forces, and emphasising the determination of the ministries, political parties and senior officials to combat any form of insurrection in prisons. 2.     The first search operation 10.     Nevertheless, no practical action was taken until two years later, because of an escalation in criminal activities in Ulucanlar between 1 January and 1 August 1998, including one murder involving the use of a firearm, one murder by stabbing, one case of arson, one attempted escape, one case of hostage-taking of prison officers and four cases of infliction of serious bodily harm. On 7 August 1998 the CDGA alerted the authorities (by letter, HRK no.: 0621-3094-98/ ASYŞ [7476]) to the risks arising from the aforementioned situation, which, it said, had robbed the prison staff of all their authority. According to the CDGA, although security outside the prison premises was duly guaranteed by the gendarmerie, “it was only a matter of time before the volcano inside the building erupted”. Having received that information, the Governor drew the attention of the Justice and Interior Ministers and the prosecutor’s office to the following findings, which he considered called for urgent action: –     Ulucanlar is an old prison which no longer meets current standards, and its structure encourages prison breaks via tunnels, given that the prison premises, and in particular the living areas, contain vegetation and trees blocking the prison guards’ view, which facilitates the digging of such tunnels and concealment of the earth extracted; –     the passages between dormitories run through the living areas, thus hampering any necessary intervention by the guards; the fact that the dormitories are adjacent to each other promotes the hierarchisation of the prisoners, ideological indoctrination, racketeering and all modes of communication with the outside; –     under pressure exerted by leftist prisoners, the prison doctors use dietary pretexts to bring all kinds of foodstuffs and medicines into the prison; the prison staff are also unscrupulous; some of them act as messengers and smugglers; and the prison guards can only inspect the dormitories if the prisoners authorise it; –     the leftist prisoners post up ideological placards around the living areas; the doors to the dormitories and living areas are left open between presence checks, the prisoners are free to move around the premises as they wish, including the female dormitory, and they even stand guard over various parts of the prison; –     it is common knowledge that the prisoners in Ulucanlar have weapons, mobile telephones, shovels, picks, iron bars, cudgels and stones, ready to be used during riots; during the most recent searches, three handguns, two mobile phones and five SIM cards were discovered on the premises. 11.     From September 1998 onwards the leftist prisoners gradually took over Ulucanlar Sector 3. That sector comprised male dormitories nos. 4 and 5 and the female dormitory, where virtually no routine inspections had been carried out since 1996. According to the authorities, no concessions were to be made to those individuals, whose complaints concerning, in particular, inadequate living space in the dormitories, were pure fabrication. The main developments during that period can be summarised as follows. 12.     On 4 September 1998, at the request of the Ankara public prosecutor’s office (see letter no.   119083), the gendarmerie issued an order (HRK no.: 3590-553-98/ASYŞ [8221]) to carry out the hitherto impeded searches and transfers of the leftist prisoners. 13.     At about 5 am on 6 September 1998 a search operation was instigated in Ulucanlar Prison. However, under explicit instructions from the Directorate General of Prisons attached to the Ministry of Justice (“DGPM”) and the prosecutor’s office, dormitories nos. 4 and 5 and the female dormitory, as well as the dormitory exclusively housing former MPs, were excluded from the searches. The reasons behind those instructions are still unknown. Following that operation, 104 prisoners were transferred, and the authorities discovered, in particular, 19 skewers and stilettos, 5 large nails, 24 fruit knives, 7 Stanley knives, 1 packet of Stanley knife blades, 2 daggers, 2   penknives, 5 cudgels, 5 grams of cannabis and 2 mobile phones, complete with accessories. 14.     On 9 September 1998 the Governor sent the Ministers of Justice and the Interior a confidential letter from the CDGA (HRK no.: 0621-3356-98/ ASYŞ 8373) listing the dysfunctions observed at Ulucanlar during the 6 September operation and the results of the latter, which can be summarised as follows: –     at the end of the operation, the prisoners convicted of terrorist offences forced the windows and doors of their dormitories open and began to move freely around the building, with a view to protesting against the search and the transfer of their cellmates; –     on 7 September the same individuals installed barricades in the corridors with banners proclaiming “the revolutionary prisoners shall never be slaves”; some prisoners smashed through the dormitory ceilings and climbed on to the roofs, while others began to prowl around in small groups, armed with cudgels; –     on 8 September the prisoners demanded to talk to the authorities, which was not authorised as they refused to submit to body searches and twice intentionally set off the prison alarm bell; –     continuing overnight until the next morning, the prisoners set up further barricades with beds and pieces of wood from doors and windows; they also plundered the kitchens, the dispensary and the canteen, purloining all the food items and also all the sharp instruments and storing them in dormitories nos. 4 and 5. 15.     The talks mentioned in that letter finally took place at around 10 a.m. on 9   September. A delegation made up of a CDGA lieutenant-colonel, the public prosecutor, the Prison Director and the CGP commander heard the spokesmen for dormitories nos. 4 and 5 and the spokeswoman for the female dormitory, namely the applicants Sadık Türk, Halil Türker and Fatime Akalın, respectively. Complaining that they had been given no advance notice of the search operation, those persons, in particular: –     demanded the return of their leader, K.Ç., who had been transferred to the Eskişehir   E-type prison; –     requested that the prison staff involved be spared any disciplinary sanctions in respect of the incidents which had occurred; –     requested leave to talk to their lawyers, Z.R. and K.B., and the families to be designated by the latter; –     denounced the ill-treatment inflicted and the visiting restrictions imposed by the gendarmes on their comrades in hospital, as well as the body searches, which they claimed had gone far beyond external inspection of clothing. The case-file contains no mention of the authorities’ reaction to those demands. 16.     A second series of searches was scheduled for 2 p.m. on 10   September   1998. At the request of the Prison Director and the prosecutor’s office, dormitories nos. 4 and 5 and the female dormitory were once again excluded from the search on the grounds that the prison guards would take charge of that part of the operation. However, none of those dormitories was in fact inspected. At the end of that second operation, the gendarmes confiscated the following items discovered in other parts of the premises: –     1 7.65-mm semi-automatic Browning pistol (series no. 999666), 1 7.65-mm semi-automatic Browning pistol (no series number) complete with magazine and seven bullets and 1 7.65-mm pistol marked “ Fovmar Harsformp Polcon Faoil Sotm ” [6] (series no. 4443) with twenty-five 7.65-mm bullets; –     1 large dagger, 6 knives, 1 flick knife, 6 home-made blades and 10 skewers; –     3 cudgels, 2 metres of cabling and serum bottles containing mixtures for Molotov cocktails and pieces of iron; –     5 SIM cards and 2 mobile phones, complete with accessories. Moreover, the record of the search which was drawn up by the gendarmes mentioned the following facts: –     the skylights leading to the roofs had been dismantled, –     cudgels and stones had been strewn along the corridors, –     preparations had been made for manufacturing Molotov cocktails in the attic, –     barricades had been erected close to the entrances, using stovepipes and old cupboards, and –     the empty tanks on the roofs had been disconnected and moved to block access. On 28 October 1998 the CDGA alerted, in vain, the Ministries of Justice and the Interior to the absolute necessity of acting to counter the situation whereby Ulucanlar had become a   “terrorist training   centre”. 3.     Escalation of hostilities 17.     In January 1999 the local gendarmerie unit began receiving complaints to the effect that the prisoners were still in possession of firearms and had started digging a tunnel in the female dormitory. The complaints continued until July 1999, when a number of prison guards were taken hostage for a few hours. The gendarmerie had offered to intervene on several previous occasions, but the administrative authorities had consistently turned them down as regards dormitories nos. 4 and 5 and the female dormitory. The main information on that episode are summarised below. 18.     On 19 February 1999 the CDGA wrote to the authorities concerned to inform them of the following: –     in the absence of effective surveillance at Ulucanlar, the prisoners convicted of terrorism were free to do as they wish; –     during the inspection of the drains in the female dormitory, heaps of gravel had been discovered, and the authorities were duly informed; on 21 January 1999 an 18m-long tunnel was discovered and blocked; –     there was reason to suspect that similar works had also been conducted in dormitories nos. 4 and 5; –     it was well-known that “terrorists” housed in different prisons communicate via mobile phones which had been smuggled in, and that this was how they planned their joint actions; –     moreover, messages faxed from official machines showed that those persons also had access to standard office applications in order to devise their strategies. 19.     There were no further incidents until 4.45 pm on 19 July 1999, when the prisoners from dormitories nos. 1 to 3, having declared that they had ended their protest actions, allowed the Deputy Governor of Ulucanlar and the Head Warden in, and then held them as hostages until 5.15 p.m. There were no injuries. 20.     On 20 July 1999 the CGP informed the CDGA and the regional commands (via message HRK no.: 0621-2533-99) of that incident, following which the rebels had allegedly attempted to occupy the roofs, having climbed up through the ventilation shafts and forced the duty guards to back off; they had also reportedly stolen a gas cylinder and concealed iron bars and cudgels in their dormitories, probably, according to the CGP, in order to riposte to any possible intervention by the security forces. Still on 20 July 1999, the CDGA reported (message HRK no.: 0621-2540-99) that Sector 3 for leftist prisoners housed 32   individuals in dormitory no. 4, 81 in dormitory no. 5 and 43 in the female dormitory, that is to say a total of 156 convicted prisoners, including 47 PKK members. According to the CGP, the latter had not supported the actions of the other prisoners and had disassociated themselves from them vis-à-vis the security forces, nor did the prisoners in dormitories nos. 1, 2, 3, 6, 7, 10 and 14 and the “officials’ dormitory” pose any kind of threat. On the other hand, according to the CGP, the leftist prisoners were potentially dangerous, because it was well-known that on a number of occasions they had obtained solvents, glue, fuel oil and bottles of serum in order to manufacture Molotov cocktails for use should the gendarmes raid their dormitories. 21.     On the following day the CGP once again wrote to the CDGA (message HRK no.: 0621-752-99) to inform it that when the prison guards had recently been taken hostage, the attackers had stolen their victims’ uniforms and that they could therefore be expected to attempt to escape wearing the uniforms. That message was forwarded (HRK no.: 0621-2548-99) to all the officials and concerned. 22.     Between 1 August and 1   September 1999 the CGP kept the CDGA informed every day (via telegrams HRK nos.: 0621 et seq.) of the continued refusal by the prisoners in dormitories nos. 4 and 5 and the female dormitory to answer the presence checks and to respect the curfew and the compulsory closing of doors. Each message was immediately forwarded to all the other bodies concerned. 23.     On 2 September 1999, according to the faxes distributed by the CDGA (messages HRK nos.: 0621-3128-99 et seq.) and the CGP (messages HRK nos.: 0621-879-99 and 880-99), the leftist prisoners demolished the wall of dormitory no. 7 adjacent to their own dormitory, expelled its occupants and took over the premises. Following this takeover, they refused even more vehemently to comply with the presence checks, disrupted the prison rounds and impeded the prison guards in the exercise of their duties. That situation continued for about twenty days. 24.     Still on 2 September 1999 the Director of Ulucanlar, backed up by the DGPM, once again complained of the criminal activities of the leftist prisoners in dormitories nos. 4 and 5 and requested the intervention of the gendarmerie to restore order (letter no. M-1999/2-12). Nevertheless, immediately after that request, the Minister for Justice ordered that no such operation should be instigated. The CGP then informed the CDGA (telegram no. 1999/2-12) that the operation had been cancelled, even though the leftist prisoners were still occupying dormitory no. 7 and continuing to refuse to comply with the evening presence checks. The prison guards and gendarmerie patrols at Ulucanlar were reinforced as a precaution. On 3 September 1999 the CDGA informed all the authorities concerned of that cancellation (message HRK no.: 0621-3138-99). On 4 September 1999 the gendarmerie intelligence department informed the CDGA (message ISTH no.: 3590-747-99) and the regional commands that prisoners convicted of terrorism in all the Turkish prisons were planning to initiate various insurrectional actions should the State attempt to intervene in any of the prisons housing such prisoners. 25.     Up until 20 September 1999 the CGP continued to keep the CDGA abreast of the situation in Ulucanlar with daily updates, and the telegrams in question were consistently transmitted to all the authorities concerned. It transpires from those messages that throughout the whole period in question the prisoners in dormitories nos. 4 and 5 and the female dormitory had continued to occupy dormitory no.   7 and to refuse to submit to presence checks, and that the entrance doors to the dormitories, the exercise yards and the living areas had remained open and unguarded. 26.     On 20 September 1999 the Prison Director submitted to the Ankara public prosecutor’s office a request for a search of dormitories nos. 4 and 5 and the female dormitory, which had so far been exempted from such inspection. On the same day the Deputy Director, Ş.D., was attacked with a makeshift flame-thrower while removing cardboard boxed placed by the prisoners in the ventilation zones on the roof. Five days later the authorities reached the conclusion that the situation in Ulucanlar was no isolated   case: the ringleaders in the different prisons were freely communicating via mobile phone and planning a series of riots and simultaneous break-outs. The facts relating to that episode are set out, in particular, in the internal reports of 7, 13 (report, HRK no.: 0627-926-99/877) and 21   September 1999 as drawn up by the CGP and CDGA and then forwarded, inter alia , to the Ministry of Justice and the Ankara public prosecutor’s office. 27.     According to those reports, in the leftist prisoners’ dormitories, which had long remained unsupervised, there were two pistols of an unknown model and in dormitory no. 2, a 9-mm   Astra-type pistol; all the other relevant parts of the prison contained large quantities of cannabis, brought in by prison guards D.S., F.D., H.U., A.D., D.A., P.G., S.K. and G.Ç., who had allegedly hidden them in their undergarments; lastly, the SIM cards had been provided by the prison guard G.S. The CGP and CDGA recommended that those members of the prison staff be immediately removed from their current duties and transferred to other prisons. 28.     Still according to those reports, surveillance of dormitory no. 7 – which had been under the control of the insurgents since 2 September 1999 – was no longer possible and the persons occupying it were now in a position to instigate all kinds of actions. Furthermore, since Sector 3 was a no-go area for the authorities (see paragraph 11 above), according to the reports the prisoners would probably resume their tunnelling work with a view to a mass break-out. In this connection, the reports pointed out that of the prisoners in the “terrorist   dormitories”, 73 were prisoners who had been transferred to Ankara for medical treatment. Obeying instructions from the illegal organisations, of which they were still members, those individuals had managed to avoid returning and had congregated in Sector 3. The reports stated that it was absolutely vital and urgent that those 73 prisoners be transferred back to the prisons where they were supposed to be, otherwise insurrection and confrontation could be expected at any time. B.     The 26 September 1999 operation 1.     The preparations 29.     On 25 September 1999, in view of the foregoing considerations, the Director of Ulucanlar Prison requested the CDGA’s assistance to protect the prison staff members who had been tasked with inspecting the three dormitories housing the leftist prisoners. In that regard, Action Plan no. 15541, classified secret, was drawn up and forwarded to the regional commands, the Governor, the prosecutor’s office, the Ankara Security Directorate and the National Directorate of Secret Services. Under the plan, at 4 a.m. on 26 September 1999 Ulucanlar Prison would be raided and subjected to a general search, and, if so requested by the public prosecutor, the transfers of leftist prisoners to other prisons, which had so far been blocked, would also be carried out. 30.     The relevant parts of the plan might be summarised as follows: –     the task force would comprise ten CGP gendarmes, five commando squads, one riot squad, one special operations squad and sixteen officers, twenty-two junior officers and twenty-one sergeants on contract, and 201   gendarmes from the regional gendarmerie commands; –     within each command providing manpower, the gendarmes would be trained in frisking procedure and identification of prohibited items; –     the prison guards detailed to take part in the operation would be under the orders of the gendarme   commanders; –     in order to guarantee the safety of the search teams and to act in the event of armed resistance, gendarme officers would operate with their official weapons and would take the requisite precautions to ensure that they could not be disarmed; –     during the searches, the passages between dormitories would be blocked, all outside access to the prison and all means of communication would be supervised, and no one would be allowed in or out, apart from the prosecutors and commanders; –     the searches would concerntrate on dormitories nos. 4, 5 and 7 and the female dormitory; –     no one would speak with the prisoners or let the latter persuade them to take any type of action, and a firm, strict attitude would be maintained in order to keep up the psychological pressure; –     in the dormitories, the prisoners known as “group   leaders” would be kept under particular surveillance and prevented from inciting the others; –     all the prohibited items discovered on the premises would be inventoried and placed in safekeeping; –     any prisoners sustaining injuries during the operation would receive initial treatment in the prison dispensary and then transferred to hospital if necessary. 31.     The plan also provided for an auxiliary force comprising one officer, four junior officers, four sergeants on contract and fifty gendarmes, as well as one gendarmerie commando squad, accompanied by an adequate number of police officers, specifying that all those forces would assemble at CGP HQ ready to spring into action. Moreover, the plan also provided for the presence of two teams from the gendarmerie intelligence service equipped with one camera and two video cameras; one of the cameramen would work on tower no. 3, and the other cameraman and the photographer would operate inside the building. The personnel in situ was also to include four squadrons from the Special Forces Department, one bomb disposal team and the entire staff of the forensic and anti-drugs departments. 32.     The instructions for the operation were as follows: –     personnel involved in the operation should be fully equipped and have all the necessary service weapons, ammunition and other requisite equipment, such as truncheons, shields and glass-fibre helmets; –     each unit should also have as many torches available as possible and at least one sledgehammer, one pick and one chisel; –     the commands in question were required to provide equipment such as handcuffs (at least ten pairs per command), shields and gas-masks, as well as fire extinguishers (at least two per command) in case of fire; –     since the operation was likely to be protracted, an adequate quantity of food rations was to be provided; –     one hour before the operation, an ambulance with a doctor and medical assistants was to be placed at the disposal of the provincial command. 2.     The operation 33.     At around 4 a.m. – or, according to some of the prisoners, at around 3.30 a.m. – on 26 September 1999 the gendarmerie units, under the orders of Lieutenant-Colonel A.Öz., entered Ulucanlar prison. The police officers remained outside in order to secure the outside of the building. Despite the warnings – although there is still disagreement among the parties on whether and how those warnings were in fact given – informing the prisoners about the searches scheduled for dormitories nos. 4 and 5 and the female dormitory, the violence escalated, quickly turning into a riot. Ulucanlar was the scene of confrontations between the gendarmerie units and the leftist prisoners, particularly those who were cornered in dormitory no. 4. The account given below is a summary of the information provided, albeit with a number of uncertainties, in the five reports drawn up after the operation, between 5 and 6 p.m. a)     Entry into the prison 34.     Once inside the building, at around 2.15 p.m., the gendarmes took up position in the watch towers located between the roofs of dormitories nos. 4, 5 and 6; they spotted two “terrorists” on the lookout at the end of each corridor; on seeing the gendarmes the latter shouted “traitor!” at the prison guard who had opened the door to the gendarmes and then ran off towards their dormitories. The “terrorists” locked behind them the entrance gates to the central corridor, the female “terrorist” dormitory and the inside areas of dormitories nos. 4, 5 and 7. The gendarmes tried in vain to explain to the rioters that they would not be harmed if they allowed them to carry out the searches. The latter responded by chanting “the revolutionary prisoners will never give in! – Come on if you have the guts! – Long live our independence   struggle!” Arriving at the second gate, the gendarmes tasked with protecting the search units were attacked with Molotov cocktails and lumps of concrete. Junior officer M.E.’s uniform caught fire (although no such name is included in the list of injured persons in Appendix II). In view of the deteriorating situation, the whole prison staff took shelter behind the gendarmerie units. The “terrorists”, ignoring Commander A.Öz.’s warnings, continued to chant: “The prisoners will never give in   – we will resist or die.” Half-an-hour later they attacked the gendarmes with flame-throwers made out of gas cylinders. The gendarmes responded to the attack with force. b)     Control of the female dormitory 35.     Under a hail of stones, logs and pieces of coal, the gendarmes first of all dismantled the barricades in the central corridor and then broke down the entrance door to the female dormitory with sledgehammers. While the gendarmes were preparing to go into the dormitory living area, four or five rioters lunged at them with iron bars and then aimed a home-made flame-thrower at them, which started a fire. The security forces used tear gas to drive the rioters back into their dormitory. Once they had taken control of the area, the gendarmes heard female prisoners shouting slogans from the upper floor. Those prisoners refused to comply with orders, and riposted with Molotov cocktails. The gendarmes dismantled all the barricades in that zone and inspected the premises before heading towards the stairs to the upper floor. The rioting female prisoners, who had barricaded the staircase with cupboards, threw stones at them. Using their shields to ward off the stones, the gendarmes managed to clear the staircase. When they attempted to enter the dormitories, they were doused with bleach and pelted with stones, broken glass and porcelain and food jars. The female prisoners, who had blocked the entrance with chairs, tables and bedsteads, continued throwing stones and Molotov cocktails. They set fire to the mattresses piled up outside the dormitory, which led to a massive blaze, completely filling the area with smoke. The gendarmes brought in the firemen stationed on the roofs to deal with the fire. At that moment an official told the gendarmes that there were four PKK members inside who had to be evacuated, but that the female rioters were refusing to release them. The warnings issued were once again ignored and the female “terrorists” became more aggressive; they began to take direct aim at the gendarmes’ faces with the flame-throwers, skewers and broken glass through the door opposite the staircase. During that episode, junior officer S.D., who was responsible for video-recording the events, was injured on the hand by a glass fragment. The gendarmes broke down the door of the adjacent room in order to reach the room in a corner of which the female rioters were grouped, having been driven back by the tear gas and the fire hoses; when the gendarmes entered the room the rioters launched a final assault with iron bars, stones and skewers, still ignoring the calls to surrender. The gendarmes resorted to force to neutralise the attack. Some of the women were slightly injured, as was gendarme conscript [7] K.Uça., who was wounded in the hip by a skewer, and conscripts A.Gök. and M.Ayd., who were injured in the abdomen and the right hand, respectively. At about 7.15 a.m. the female prisoners were forced to exit one by one. Several knives were discovered in their dormitory and filmed. According to the documents on file, during this episode neither the prisoners nor the gendarmes used firearms. c)     Control of dormitories nos. 4, 5 and 7 36.     The other operational units met with extremely violent resistance when they attempted to remove the barricades behind the doors to dormitories nos. 4, 5 and 7. While the gendarmes made their way towards the area of dormitory no. 7, “terrorists” behind the barricades opened fire, threw Molotov cocktails and stones and then retreated into dormitory no.   4. This withdrawal enabled the gendarmes to evacuate 29   prisoners who were PKK members [8] from dormitory no.   5; those prisoners had previously informed the prison authorities that they dissociated themselves from the rioters. The rioters, thus cornered in dormitory no. 4, tried to climb on to the roofs, but were prevented from doing so by truncheon blows from the gendarmes. They nevertheless managed to start a fire in the dormitory by burning mattresses. Some of the gendarmes almost died of asphyxiation, and reinforcements were called in to take control of the area; several tear-gas canisters were thrown in, forcing a group of “terrorists” to take refuge in the aforementioned dormitory. Despite the calls to surrender, the surrounded “terrorists” opened fire, chanting: “Fascists, we’ll kill you! – bring on the flame-throwers, torch them!” Specialist sergeant M.İ. was hit in the abdomen. The gendarmes stationed on the roofs of dormitories nos. 6 and 7 and in watch tower no. 3 riposted with tear gas and their official weapons, while the firemen used high-power hoses and carbon dioxide foam. Subsequently, the gendarmes saw “terrorists” going back and forth between the living area and the dormitory to fetch their comrades’ bodies; the prisoners who were severely affected by the gas and the foam and were squatting in various parts of the area were easily apprehended. Despite low visibility due to the tear gas, the gendarmes saw some of the “terrorists” approaching the exit in order to surrender; at the same time shouts of “Traitors! Shoot the cowards!” were followed by “bursts of gunfire” inside the dormitory. Only two or three “terrorists” managed to get out; six or seven others were gunned down by their own comrades. The remaining rioters, who were once again barricaded behind the door to dormitory no. 4, attempted to reach the gendarmes with stones, iron bars, cudgels and flame-throwers, and they picked up and threw back tear-gas canisters. During the confrontations junior officers E.A. and N.K. were injured on the arm and the nose, respectively, by stones; sergeant C.D. was hit on the right eyebrow, and conscripts A.Ö. and M.A. sustained a fracture of the right auricular and a traumatic injury to the right eyebrow, respectively. Positioned in front of the aforementioned door, the gendarmes saw a rioter pointing a gun at them at one of the upstairs windows. When the gendarmes went up to the first floor and approached the door, the “terrorists”, including the person later identified as Mu.Gök., opened fire indiscriminately from the windows. During that attack one bullet seriously injured junior officer Ü.S. and another went through sergeant A.E.’s helmet, leaving him in a state of shock; the “terrorists” also shot and injured captain Z.E. and sergeant H.S. At around 10 a.m. the gendarmes took control of dormitory no. 4, just as the rioters were trying to flee the area; prisoner A.D. died at around 11.30 a.m., following – according to the prisoners – a burst of gunfire. The operation ended with that incident. C.     After the operation 1.     Total dead and injured 37.     During the first ten minutes of the raid on dormitory no. 4, prisoners Halil Türker and Abuzer Çat (relatives of the applicants Selame Türker and Hasan and Hüseyin Çat) were killed; their bodies were found in the dormitory no.   4 living area. Ümit Altıntaş (a relative of the applicant Melek Altıntaş) died about half-an-hour later inside the same dormitory. According to the statements by the applicants and the prisoners, Under Gençaslan (the son of applicant Ali Gençaslan), Mahir Emsalsiz (the son of applicant Mehiyet Emsalsiz) and Zafer Kırbıyık (the brother of applicant Firdevs Kırbıyık) later died of their wounds, during the ensuing mayhem. 38.     According to the official version, Nevzat Çiftçi (the husband of applicant Hanım Çiftçi), who was shot in the leg, died later in hospital. According to the applicant and witness statements, Mr Çiftçi and İsmet Kavaklıoğlu [9] (the son of the applicant Șaban Kavaklıoğlu) were beaten up and executed in an isolated room after the operation; several prisoners claimed to have heard İsmet Kavaklıoğlu’s screaming in the shower room. A certain A.S., who displayed no bullet wounds, had allegedly suffered the same fate, having also been dragged into the showers. The Government contested those allegations, adhering to the aforementioned official version of events. 39.     The result was as follows: ten prisoners dead and about seventy injured, four of whom had sustained life-threatening injuries; and fifteen gendarmes injured, one seriously. According to the official version, once the situation was completely under control, the unharmed prisoners were placed in cells. The gendarmes took eighteen injured “terrorists” (no names are given) to the prison dispensary. The others, including several applicants (List B), were retained for six hours in the shower room, where they were given first aid before being transferred to various hospitals. According to the injured applicants, however, it was in that shower room and the 200-m long corridor leading to it that they were dragged, stamped on and beaten up by the gendarmes and prison guards lined up on either side of them. In the said room they had been forced to strip and lie on the floor, under a rain of blows, particularly concentrating on their injuries, and making comments such as “why is this guy not dead yet? – we shot three of your mates, it’s your turn now!   – no hospital for him, we’ll finish him off here!” The gendarmes allegedly pushed injured prisoners down the stairs or laid them out on stretchers only to immediately drop them. The torturers included officers from the Ankara police department’s anti-DHKP-C office with whom the convicts, as members of the DHKP-C, were well acquainted. At the end of the operation, the transfers of the other prisoners to other prisons were also carried out. 40.     The medical information on the officers injured during the operation is summarised in Appendix II. It transpires from the case file that in the instant case the gendarmes, instead of being taken to the Ankara Forensic Medicine Institute – which was the usual practice – were examined at the GATA military hospital, which issued their medical reports. According to those reports, the condition of gendarmes M.İşl., H.Sar. and Ü.Soy., who had bullet wounds, necessitated convalescence leave for ten, ten and twenty-five days respectively, on the understanding that Ü.Soy.’s life was in danger. Contradicting the findings of the medical report concerning the conscript Z.Eng., indictment no. 1999/79635 of 1 December 1999 (see paragraph   136 below), identifies this person as one of the officers suffering from a gunshot wound. According to the same reports, the condition of conscripts A.Er., A.Gök. and K.Uça. did not necessitate sick leave. The number of days’ unfitness for work prescribed for the other gendarmes was three for C.Doğ., M.Abd. and M.Ayd., five for N.Kar., S.Dağ. and Ş.Süm., and seven for E.Ayd. and M.Özk. 41.     All the relevant medical data on the applicants’ eight deceased relatives (List A) are summarised in Appendix III. Those data show that the eight persons in question all died of wounds caused by bullets from various types of firearms. In view of that fact, the Sub-Commission (see paragraph 7 in fine below) tasked a committee of five forensic scientists to assess the appropriateness of the autopsy and pathological exploration procedures followed in the present case. That committee found that there had been no major shortcomings attributable to the medical staff involved in the said examinations, having regard, in particular, to the shortage of personnel and the poor working conditions. However, it noted that, in breach of the principles set out in the “Minnesota   Autopsy Protocol”, the forensic experts had omitted to dissect the corpses’ skin and sub-cutaneous tissue and to take samples from the traumatic and burn injuries in order to conduct histopathological research on them. Expressing doubts as to the origin of those burns, which had, on the face of it, been caused by chemicals, the committee regretted that more specific necropsies had not been considered, especially since some of the injuries observed on the corpses corresponded to acts generally classified as lethal acts or acts of torture. 42.     As regards the applicants who were injured (List B), and whose clinical pictures are provided in Appendix IV, it should be noted that there is no medical evidence relating to Ms Fatime Akalın, Ms Sibel Aktan (Aksoğan), Ms Şerife Arıöz, Ms Gönül Aslan, Ms Esmahan Ekinci, Ms Zeynep Güngörmez, Ms Başak Otlu, Ms Fadime Özkan, Ms Derya Şimşek, Ms Edibe Tozlu, Mr Aydın Çınar, Mr Murat Ekinci, Mr Murat Güneş, Mr Gürhan Hızmay, Mr Ertuğrul Kaya and Mr Cemaat Ocak. Furthermore, the medical report on Mr İnan Özgür Bahar, which was obtained further to a complaint lodged on 9 June 2000, some eleven months after the events (see paragraph 110 below). The Forensic Medicine Institute’s findings concerning those applicants also prompted a number of comments from the aforementioned committee (see paragraph 41 above): “... 1.     Some of the traumatic injuries displayed by the injured persons resemble lesions resulting from tr