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You are here: BAILII >> Databases >> European Court of Human Rights >> TAHSIN ACAR v. TURKEY - 26307/95 [2004] ECHR 149 (8 April 2004)
URL: http://www.bailii.org/eu/cases/ECHR/2004/149.html
Cite as: [2004] ECHR 149
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CASE OF TAHSİN ACAR v. TURKEY
(Application no. 26307/95)
JUDGMENT
(Merits)
STRASBOURG
8 April 2004
This judgment is final but may be subject to editorial revision.
In the case of Tahsin Acar v. Turkey,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. WILDHABER, President,
Mr C.L. ROZAKIS,
Mr J.-P. COSTA,
Mr G. RESS,
Sir Nicolas BRATZA,
Mr A. PASTOR RIDRUEJO,
Mr G. BONELLO,
Mr L. CAFLISCH,
Mrs F. TULKENS,
Mrs V. STRážNICKá,
Mr P. LORENZEN,
Mrs N. VAJIć,
Mr M. PELLONPää,
Mrs M. TSATSA-NIKOLOVSKA,
Mr E. LEVITS,
Mr L. GARLICKI, judges,
Mr F. GöLCüKLü, ad hoc judge,
and Mr P.J. MAHONEY, Registrar,
Having deliberated in private on 2 April 2003 and on 24 March 2004,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 26307/95) 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, Tahsin Acar (“the applicant”), on 29 October 1994. The applicant stated that the application was also lodged on behalf of his brother Mehmet Salim Acar [In the documents submitted by the parties, Mehmet Salim Acar is also referred to as Mehmet Salih Acar or as Mehmet Selim Acar.].
2. The applicant, who has been granted legal aid, was initially represented before the Court by Mr P. Leach, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London, and subsequently by Mr K. Starmer, a barrister practising in the United Kingdom. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Chamber which initially examined the case. They subsequently designated Mr E. İşcan and Mr M. Özmen as Agents when the case was referred to the Grand Chamber (see paragraph 24 below). Having originally been designated by the initials T.A. in the proceedings before the Chamber, the applicant subsequently agreed to the disclosure of his name.
3. The applicant alleged, in particular, that his brother Mehmet Salim Acar had disappeared on 20 August 1994, when he was abducted by two unidentified persons – allegedly plain-clothes police officers. The applicant complained of the unlawfulness and excessive length of his brother's detention, of the ill-treatment and acts of torture to which his brother had allegedly been subjected while in detention, and of the failure to provide his brother with the necessary medical care in detention. The applicant further complained that his brother had been deprived of the services of a lawyer and of any contact with his family. The applicant relied on Articles 2, 3, 5, 6, 8, 13, 14, 18, 34 and 38 of the Convention.
4. The Commission decided on 4 September 1995 to give notice of the application to the Turkish Government and to invite them to submit written observations. The Government submitted their observations on 21 December 1995, to which the applicant responded in his submissions of 20 March 1996.
5. The Commission declared the application admissible on 30 June 1997 and requested the Government, inter alia, to submit a copy of the complete case-file of the Diyarbakır Provincial Administrative Council (İl İdare Kurulu). The Commission reminded the Government of this request on 17 December 1997, 27 January 1998 and 8 September 1999.
6. The Commission, in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, transmitted the application to the Court on 1 November 1999, the Commission not having completed its examination of the case by that date.
7. The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge.
8. On 29 February 2000 the Chamber examined the state of proceedings in the application and noted, inter alia, that despite several reminders the Government had failed to submit the case-file of the Diyarbakır Provincial Administrative Council.
9. The Chamber, having decided that no hearing on the merits was required (former Rule 59 § 2 in fine), invited the parties on 2 March 2000 to submit final written observations.
10. On 19 April 2000, the applicant's representatives informed the Court that the mother, sister and wife of Mehmet Salim Acar claimed to have seen the latter on an NTV channel news programme broadcast on 3 and 4 February 2000. The applicant's family had attempted to obtain a video recording of these broadcasts, but without any success (see paragraph 170 below).
11. On 28 April 2000 the Chamber put several questions to the Government in relation to the alleged sighting on television and requested the Government to submit a video recording of the NTV news broadcasts referred to by the applicant. The Court further informed the parties that the time-limit fixed for the submission of the parties' final observations had been adjourned until further notice.
12. On 6 July 2000 the Government informed the Court that the person cited in the NTV news broadcast was not the applicant's brother and that, in all probability, it was a case of a confusion of name. As the Government had not submitted the requested video recording, the Court reminded the Government on 13 July 2000 of its outstanding request to do so. A further reminder was sent to the Government on 5 September 2000.
13. On 18 October 2000 the Court also requested the applicant's representative to submit a video recording of the broadcasts he had referred to and, in case he was unable to do so, to inform the Court of the reasons for this inability.
14. On 9 November 2000 the applicant's representative informed the Court of the steps taken by him in obtaining the requested video recording.
15. On 17 January 2001 the Government submitted a video recording of the NTV news programmes broadcast on 3 February 2000 at 11 a.m. and 11 p.m.
16. By letters of 24 and 25 January 2001 the applicant's representative informed the Court that the NTV administration had refused to provide him with a video recording of the news broadcasts, stating that a request to this effect had to be made by the applicant in person, and that, on 25 January 2001, the applicant himself had sent a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m.
17. On 20 February 2001 the applicant's representative informed the Court that the video recording submitted by the Government on 17 January 2001 had been seen by the applicant and that it did not contain the programmes broadcast at the times indicated by the Acar family. The applicant's representative further informed the Court that the applicant himself had sent a further request to the NTV administration on 16 February 2001.
18. On 26 February 2001, having noted an apparent misunderstanding about the exact time of the relevant broadcasts, the Court requested the Government to submit a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m. The Court further invited the parties to submit their final observations.
19. On 13 June 2001 the Government informed the Court that it was not possible to comply with the request of 26 February 2001 since, in compliance with their legal obligations, the NTV administration only kept recordings of broadcasts for a period of one year.
20. The parties submitted their final written observations on 23 April and 4 May 2001, respectively. The parties further considered the possibility of a friendly settlement. No settlement was reached.
21. By letter of 27 August 2001 the Government requested the Court to strike the case out of its list and enclosed the text of a unilateral 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.
22. Following the general restructuring of the Court's Sections as from 1 November 2001 (Rule 25 § 1 of the Rules of Court), the application was assigned to the newly composed Second Section of the Court (Rule 52 § 1).
23. In a judgment of 9 April 2002 (“the Chamber judgment”) the Chamber decided, by six votes to one, to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention on the basis of the unilateral declaration made by the Government.
24. On 8 July 2002 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention). On 4 September 2002 the panel of the Grand Chamber decided to accept his request (Rule 73).
25. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
26. In a judgment (preliminary issue) of 6 May 2003, following an oral hearing held on 29 January 2003 on the question of the application of Article 37 of the Convention, the Grand Chamber decided, by sixteen votes to one, to reject the Government's request of 27 August 2001 to strike the application out of the list on the basis of the unilateral declaration made by the Government and to pursue its examination of the merits of the case.
27. On 7 May 2003, in the context of its examination of the merits of the case, the Grand Chamber requested the Government to submit further documents, i.e. a copy of the complete case-file of the Diyarbakır Administrative Council and the original – a copy having already been submitted on 21 December 1995 – custody records of the Bismil gendarmerie station from August 1994. Further, having decided that no taking of oral evidence and no hearing on the merits was required (Rule 59 §§ 1 and 3 in fine), the Grand Chamber invited the parties to make further submissions in addition to their final written observations on the merits filed with the Chamber on, respectively, 23 April and 4 May 2001.
28. In their submissions of 6 and 27 June 2003, the Government produced the case-file requested and informed the Court that, although custody records should be kept for ten years, they had been unable to find the original custody records requested by the Court. The documents submitted were transmitted to the applicant, providing him with the possibility to submit comments.
29. On 27 June 2003 both parties filed further submissions to their final observations on the merits.
30. On 7 November 2003 the applicant filed his comments on the documents submitted by the Government in June 2003.
31. Mr M. Fischbach, who was unable to take part in the further consideration of the case, was replaced on 15 January 2004 by Mr G. Bonello, substitute (Rule 24 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
32. The applicant was born in 1970 and lives in Sollentuna (Sweden). A summary of the facts, as submitted by the parties, is set out below.
A. The facts
33. The applicant's brother Mehmet Salim Acar (son of Mehmet and Hüsna, born in Bismil in 1963), a farmer living in Ambar, a village in the Bismil district in south-east Turkey, disappeared on 20 August 1994. The facts surrounding the disappearance of the applicant's brother are in dispute between the parties.
34. The facts as presented by the applicant are set out in Section 1 below. The facts presented by the Government are contained in Section 2. A summary of the documents submitted is set out in Part B.
1. Facts as presented by the applicant
35. On 20 August 1994, while Mehmet Salim Acar was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off.
36. The scene was witnessed by Mehmet Salim's son İhsan Acar and İlhan Ezer, another farmer. After the car had driven off, İhsan ran to his home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim's daughter, had seen her father sitting in the back seat of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream in the village. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim's hands and feet had been tied, he had been blindfolded and his mouth had been taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since.
37. Mehmet Salim's family filed a series of petitions and complaints about his disappearance to the authorities, including the Deputy Governor and the Bismil gendarme forces, in order to find out where and why he was being detained.
38. On or about 27 August 1994 Mehmet Salim's sister Meliha Dal personally handed a written petition about her brother's disappearance to the Deputy Governor of Diyarbakır. After having read the petition and, in her presence, spoken by telephone to Ahmet Korkmaz, a non-commissioned officer of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing that she could do for the time being.
39. When leaving the Deputy Governor's office, Meliha Dal was approached by a police officer, Mehmet Şen, who volunteered to make inquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil Gendarmerie Command and that he could bring him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take these to her brother in one or two days. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil Gendarmerie Command and that he did not know where he had been brought to.
40. On 29 August 1994 Hüsna Acar, Mehmet Salim's mother, filed a petition with the Bismil public prosecutor requesting an investigation of her son's disappearance. On 2 September 1994 the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer.
41. On 19 October 1994 Hüsna Acar asked the Bismil chief public prosecutor for information about the progress of the investigation, but she received no reply.
42. In letters of 29 November 1994 and 19 January 1995 the applicant asked the public prosecutor at the Diyarbakır State Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters remained without any reply.
43. On 15 March 1995 the Bismil public prosecutor wrote to the Bismil Gendarmerie Commander seeking a response to his inquiry about the case. He wrote again on 17 May 1995 to enquire whether or not the detention of Mehmet Salim Acar might have been politically motivated.
44. On 20 July 1995 the applicant requested the Bismil chief public prosecutor for information about the case of Mehmet Salim Acar and accused the gendarme officers İzzetin and Ahmet and the village guard Harun Aca of being responsible for his brother's abduction.
45. On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother's whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995 the applicant requested the Minister for Human Rights to ensure his brother's safety and to take urgent action.
46. On 8 September 1995, gendarme officers took further statements from Hüsna, Halise and İhsan Acar.
47. On 22 September 1995 the applicant spoke on the telephone with the gendarme Captain İrfan Odabaş of the Bismil Gendarmerie Command in Bismil, who told him that Mehmet Salim Acar's whereabouts were unknown and who asked him whether the abductors had made any ransom demand. The applicant replied that no such demand had been made but that he would pay in return for his brother's release.
48. On 27 September 1995 the applicant was contacted by an unknown person who asked for 1.1 billion Turkish liras in return for his brother's release. The applicant accepted immediately. He was told that his brother would be interrogated at the Bismil Gendarmerie Command and that he would be able to meet his brother within a week.
49. On 5 October 1995 Mehmet Salim's family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these demands. On 10 October 1995 Murat contacted the family again and asked them to reconsider their position, otherwise Mehmet Salim would not be released.
50. On 25 October 1995 Meliha Dal gave a statement to the Bismil Gendarmerie Command to the effect that, in her opinion, the gendarme officers İzzet Cural and Ahmet Korkmaz and the former PKK member Harun Aca, who had become a village guard, were responsible for her brother's abduction.
51. On 30 October 1995 the home of Meliha Dal was raided by officers of the Diyarbakır Anti-Terror Branch, who threatened her with death and attempted to abduct her 12-year-old son.
52. The applicant was informed in November 1995 by the Diyarbakır General Gendarmerie Command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians who claimed to be policemen.
53. The applicant also filed a petition about his brother's disappearance with the Human Rights Commission of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Human Rights Commission that the case had been investigated, that the two gendarme officers whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted by the Human Rights Commission to the applicant on 18 December 1995.
54. On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the progress of the investigation.
55. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction (görevsizlik kararı) and transmitted the investigation opened in respect of the gendarme officers İzzet Cural and Ahmet Babayiğit and the village guard Harun Aca to the Diyarbakır Provincial Administrative Council for further proceedings under the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).
56. On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim's disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor.
57. On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in response to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil chief public prosecutor and that those responsible for the abduction of her brother had remained unidentified.
58. In a decision of 23 January 1997 the Diyarbakır Provincial Administrative Council decided, on the ground that there was insufficient evidence, not to take any proceedings against the two gendarme officers and the village guard. This decision was confirmed by the Supreme Administrative Court (Danıştay) on 14 January 2000.
59. On 2 February 2000 at 11 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the television news all night and saw him again on the following day during the 8 a.m. television news broadcast.
60. On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative.
61. Two days later, the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after having given a statement.
62. On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor of her sighting of her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She has subsequently received no further information from the police headquarters.
63. On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the Anti-Terror Branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the Anti-Terror Branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar.
64. On 23 March 2000 three officers of the Anti-Terror Branch came to the home of Halise Acar and asked her for a copy of her family's entry in the population register. She was told that they were looking for Mehmet Salim Acar everywhere in Turkey and that it was not established that he was dead.
65. According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş chief public prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and whose parents did not match the particulars of the applicant's brother.
66. On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast.
67. On 30 May 2000 the Diyarbakır chief public prosecutor issued a decision not to open an investigation (tapiksizlik kararı) on the basis of Meliha Dal's petition of 11 May 2000.
68. Later in 2000 Meliha Dal spoke with a prison officer in Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer's description of Mehmet Salim corresponded to her brother's appearance.
2. Facts as presented by the Government
69. On 29 August 1994 the applicant's mother filed a petition with the Bismil public prosecutor's office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men.
70. The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses of the events, İhsan Acar and İlhan Ezer. İhsan Acar stated that two Turkish-speaking persons wearing hats and glasses had asked his father to show his identity card and that he was then put in a grey car without licence plates. İlhan Ezer declared that a Renault TX model grey car without licence plates had approached them, that one of the two men in the car, speaking with a western Anatolian accent and wearing glasses, had forced them to show their identity cards by saying that they were police officers. The men did not give back Mehmet Salim's identity card, saying that they would bring him back after he had shown them someone's land.
71. On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor.
72. On 15 March 1995 the Bismil public prosecutor requested the Bismil Gendarmerie Command to investigate whether or not Mehmet Salim Acar had been kidnapped. In a letter of 17 May 1995 the Bismil public prosecutor asked the Bismil Gendarmerie Commander for information about the case.
73. In a letter of 20 July 1995 to the Bismil public prosecutor, the applicant claimed that the village guard Harun Aca, the gendarme Captain İzzettin and a gendarme officer Ahmet had been involved in the kidnapping of his brother. On the basis of this letter, the public prosecutor decided to hear those allegedly involved and summoned all gendarme officers named Ahmet who worked at the Bismil gendarmerie command at the material time in order to be heard.
74. On 8 September 1995, gendarme officers took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant's allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons who had abducted Mehmet Salim Acar had worked at the Bismil Gendarmerie Command, which he denied. He further stated that Mehmet Salim Acar's behaviour had also not indicated that he knew these men.
75. On 25 October 1995, İlhan Ezer gave a statement to the Bismil notary public in which he stated that he had seen the persons who had abducted Mehmet Salim Acar and that these persons were not Captain İzzet Cural and Sergeant Ahmet as alleged.
76. On 6 November 1995 the Bismil public prosecutor took a statement from the gendarme officer Ahmet Uyar, who stated that he had just taken up his duties at the time of the incident and that he did not know anything about it. He further stated that there were two other gendarme officers named Ahmet, namely Ahmet Korkmaz, who had been killed by the PKK, and Ahmet Babayiğit, who had been transferred to another climate on medical grounds.
77. On 23 November 1995 Harun Aca gave a statement to both the gendarmerie and the Bismil public prosecutor, on which occasion Harun Aca submitted a document proving that he had not been in Bismil between 19 July and 6 September 1994, when he had been participating in a security forces operation in Mardin.
78. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Captain İrfan Odabaş as inspector for the investigation of the applicant's allegations that his brother had been taken into detention by the gendarmerie Captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of the temporary village guard Harun Aca.
79. On 9 December 1996 İlhan Ezer gave another statement to the gendarmerie in which he declared that he knew Captain İzzet and NCO Ahmet very well and that they were definitely not the men who had abducted Mehmet Salim Acar.
80. On 25 December 1996 the gendarmerie took a statement from NCO Ahmet Babayiğit, who stated that he had not witnessed the incident and that he did not know anything about it.
81. On 1 January 1997 the gendarmerie took a statement from Captain İzzet Cural, who denied that Mehmet Salim Acar had been apprehended and detained.
82. On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca.
83. Mehmet Salim Acar has been included in the list of persons who are being searched for by the gendarme forces in the entire territory of Turkey, and the search for him continues.
84. The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant's brother. Several persons being held in detention have the same name as the applicant's brother. However, their dates and places of birth and particulars are different from those of the applicant's brother.
B. Documents submitted by the parties
85. The parties submitted various documents concerning the investigation into the abduction of Mehmet Salim Acar [Note: In summarising the documents submitted by the parties, the Court has used the names of persons as cited in these documents. These do not necessarily reflect the correct spelling of the names of these persons. ].
1. Petitions of Mehmet Salim Acar's relatives to the authorities between 29 August 1994 and 11 December 1996
86. On 29 August 1994 Hüsna Acar filed a petition with the public prosecutor's office in Bismil requesting an investigation into the disappearance of her son Mehmet Salih Acar, who had been abducted ten days before by two unknown persons – armed with Kalashnikov rifles and wearing civilian clothes – in a taxi. In her petition Hüsna Acar further stated that her family had already made inquiries with the gendarmerie and the police, who had told them that they knew nothing about it. Hüsna Acar requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible.
87. On 19 October 1994 Hüsna Acar filed a second petition with the Bismil public prosecutor, in which she requested an investigation into the disappearance of her son. She asked the public prosecutor in particular to verify whether her son had been apprehended and was being held by the security forces.
88. By letter of 20 July 1995 the applicant requested the Bismil public prosecutor to grant his family permission to visit his brother Mehmet Salim Acar who, according to the applicant, had been apprehended in August 1994 by the Bismil gendarmerie commander. The applicant stated that the gendarme Captain İzzettin, the NCO Ahmet and Harun Aca, an inhabitant of Ambar, were responsible for his brother's life.
89. By letter of 26 July 1995 the applicant complained to the Ministry of Human Rights that in August 1994 his brother Mehmet Salim Acar had been apprehended by Captain İzzettin, NCO Ahmet and the counter-guerrilla agent Harun Aca, and that since then his brother was being held at the Bismil gendarmerie command. The applicant further stated that his family had not received a positive reply from the Bismil public prosecutor and the Diyarbakır State Security Court, to which they had applied, and that they were disconcerted not to have been granted permission to contact Mehmet Salim although they had evidence that he was being detained.
90. The applicant addressed a similar petition to the Ministry of Justice on 27 July 1995.
91. In a further letter of 30 August 1995 to the Ministry of Human Rights, the applicant stated that, in addition to his letter of 26 July 1995, he had learned from an official, who wished to remain anonymous, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cura on the basis of information supplied by the “confessor” [The Turkish word “İtirafçı” indicates a defected member of an illegal organisation who provides the authorities with information about that organisation.] Harun Aca. After having interrogated him, Captain İzzet had concluded that Mehmet Salim was innocent and that Harun Aca's information had been incorrect. However, as Captain İzzet feared sanctions for having detained Mehmet Salim incommunicado and for too long, for having denied him the necessary medical care and for having failed to respect his defence rights, Captain İzzet had maintained Mehmet Salim in detention. Considering that his brother risked being killed by Captain İzzet in order to conceal the matter, the applicant requested the Ministry of Human Rights to intervene as a matter of urgency.
92. In an undated petition, Hüsna Acar requested the Investigation Commission for Human Rights of the Turkish Grand National Assembly to examine the case of her son Salih Acar, claiming that he had been taken into detention by Captain İzzet of the Ambar gendarmerie on 6 July 1994 and that nothing had been heard from her son since. Hüsna Acar sent similar, also undated, petitions to the Ankara Human Rights Centre, the Diyarbakır Governor and the General Gendarmerie Command in Ankara.
93. On 10 November 1995, the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition concerning Salim Acar had been registered on 3 November 1995 under no. 4467/2872, that the matter would be investigated and that he would be informed of the results of the investigation.
94. By letter of 10 June 1996 to the Bismil public prosecutor, Hüsna Acar requested to be provided with information about the steps taken in the investigation into the abduction on 29 August 1994 of her son Mehmet Salim Acar by Captain İzzet Cural and Sergeant Ahmet Kormaz. She further claimed that, on the day her son had been abducted, two other persons – whose names she did not mention – had been abducted with the same car, that one of them had been released and that her son had initially been taken to Bismil, then to Cınar and subsequently to Diyarbakır.
95. On 5 August 1996 Hüsna Acar requested the Ministry of the Interior to take the necessary steps to find out whether her son Mehmet Salim Acar, who had been abducted in 1994 in a white taxi by two persons whose identities she did not know, was dead or alive.
96. On 23 August 1996, Hüsna Acar and Halise Acar filed a criminal complaint of abduction and disappearance with the Bismil public prosecutor. They claimed that, three days before his disappearance, Mehmet Salim Acar had had a conflict with Mehmet Açan, who was also living in Ambar, about a pump. Mehmet Açan had told Mehmet Salim that he would definitely “disappear” within three days at the most. Three days later, Mehmet Salim was taken away by Captain İzzettin, Mehmet Açan and Harun Açan. Hüsna and Halise Acar requested the public prosecutor to carry out an investigation and to hand the three perpetrators over to the courts.
97. On 25 November 1996 Meliha Dal addressed a complaint to the Diyarbakır Governor, claiming that her brother Mehmet Salim Acar had had a quarrel with the brothers Mehmet and Harun Açan. On that occasion, Harun Açan had threatened her brother with death. Three days later, her brother had been taken away by Captain İzzettin, Mehmet and Harun Açan. Meliha Dal further stated that the petitions filed by Halise and Hüsna Acar with the Bismil public prosecutor and the Ministry of the Interior had not led to any results and that the Bismil Governor and the Bismil gendarmerie authorities had not even contacted Halise and/or Hüsna Acar to discuss the matter. Meliha Dal requested the Governor to question Captain İzzettin and the brothers Mehmet and Harun Açan, as she believed that her brother might have been killed by them.
98. On 10 December 1996 the applicant addressed a letter to the President of the Diyarbakır Provincial Administrative Council claiming, inter alia, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca (see paragraph 142 below).
On the same day, the applicant addressed a similar letter to the President of Turkey, requesting him to investigate what had happened to his brother.
99. On 11 December 1996 Hüsna Acar filed a petition with the Ministry of the Interior, claiming that the Ambar villager Şakir Gün had extorted money and jewellery from her family in exchange for the release of her son Mehmet Salim. Considering that Şakir Gün was thus aware of her son's whereabouts and involved in his abduction, Hüsna Acar requested the Ministry of the Interior to intervene and investigate the matter.
On the same date Hüsna Acar addressed an identical petition to the President of Turkey.
2. Domestic investigation documents
(i) Custody records
100. The submitted copy of the custody records of the Bismil gendarmerie for the period between 8 July and 13 November 1994 does not contain an entry in the name of Mehmet Salih Acar or Mehmet Salim Acar.
(ii) Preliminary investigation by the Bismil public prosecutor
101. On 29 August 1994, in an instruction written by hand at the bottom of the petition filed on that day by Hüsna Acar (see paragraph 86 above), the Bismil public prosecutor ordered the taking of a detailed statement from Hüsna Acar and the making of inquiries with the gendarmerie and the security forces. On 31 August 1994 the Bismil public prosecutor instructed the Bismil gendarmerie to ensure that Hüsna Acar would come to his office to give a statement.
102. On 2 September 1994 Hüsna Acar gave a statement to the Bismil public prosecutor. She confirmed that she had filed a petition and stated that about ten days before 29 August 1994, her son Mehmet Salih Acar had been taken away in a taxi by two men, who were wearing civilian clothes and armed with Kalashnikov rifles. Nothing had been heard from him since. Her grandson İhsan Acar had witnessed the scene. It appeared that the men had spoken Turkish and that they had driven off in the direction of Bismil.
103. On the same day, Halise Acar also gave a statement to the Bismil public prosecutor. She stated that her husband had disappeared ten or fifteen days earlier when, together with their son İhsan Acar, he was in a cotton field. Two armed men had forced him to get into a taxi that had driven off in the direction of Bismil. No news had been heard from him since. She further declared that she had been told that her husband had been together with İlhan Ezer when he was taken away and that the taxi was a dark grey Renault without licence plates.
104. Also on 2 September 1994, İhsan Acar (born in 1983) was heard by the Bismil public prosecutor. He stated:
“On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a 20-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan's identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.”
105. İlhan Ezer, who was also heard by the Bismil public prosecutor on 2 September 1994, declared:
“On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih's identity card. They said that 'Mehmet Salih will show us someone's field and then we will send him back.' That is all I know and what I have witnessed in relation to the incident.”
106. On 13 September 1994 the Bismil public prosecutor informed the Bismil gendarmerie command that, about ten days before 29 August 1994, Mehmet Salih Acar had been abducted by two unknown persons – aged 25 or 26, speaking with a western Anatolian accent and one of them wearing glasses – who had come in a gunmetal Renault TX-type taxi without licence plates. The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted Mehmet Salih Acar and, when found, to bring them to his office.
107. On 25 January 1995 the Bismil public prosecutor addressed a reminder to the Bismil gendarmerie command, urging the gendarmerie to speed up compliance with his instruction of 13 September 1994.
108. By letter of 7 February 1995 the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the requested investigation had been completed. Captain Cural appended to his letter a record dated 31 January 1995, signed by the gendarme officers İlhan Yücel, Ahmet Uyar and Yılmaz Pala of the Bismil central gendarmerie station command, stating that inquiries had been made, but that it had not been possible to identify the persons who had abducted Mehmet Salih Acar.
109. On 15 March 1995, the Bismil public prosecutor instructed the Bismil gendarmerie command to conduct a thorough investigation into the alleged abduction of Mehmet Salih Acar and, if this had in fact taken place, to inform him who had committed it and whether it had been politically motivated. The Bismil public prosecutor sent a reminder of this instruction to the Bismil gendarmerie command on 17 May 1995.
110. By letter of 22 June 1995 the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the investigation requested on 25 January 1995 had been completed. Captain Cural appended to his letter a record dated 20 June 1995, signed by the gendarme officers İlhan Yücel, Ismail Özden and Ahmet Uyar of the Bismil central gendarmerie station command, stating that it had not been possible to locate or identify the persons who had abducted Mehmet Salih Acar.
111. On 14 August 1995, acting on the petition filed on 27 July 1995 by the applicant (see paragraph 90 above), the Ministry of Justice requested the Bismil public prosecutor, as a matter of urgency, to be provided with information about Mehmet Salim Acar, who had allegedly been taken into detention at the Bismil gendarmerie command in August 1994 without being allowed to see his relatives since, and about the legal steps taken in his case.
112. By letter of 21 August 1995 the Bismil central gendarmerie station commander Sergeant İlhan Yücel informed the Bismil district gendarmerie command that it was not known whether the abduction of Mehmet Salih Acar had, in some way or another, been politically motivated, that it was unknown who had abducted him and that no news from him had been received since his abduction. Sergeant Yücel appended to his letter a record dated 14 August 1995, signed by himself, the gendarme officer Mustafa Candar and the Ambar muhtar [Village headman.] Mehmet İhsan Tuncay, with the same contents as his letter.
113. Also on 21 August 1995 and in reply to the request of 14 August 1995, the Bismil public prosecutor informed the Ministry of Justice that it was asserted that Mehmet Salih Acar had been abducted about ten days before 2 September 1994 by two armed and unidentified persons, who had forced him to get into a taxi while he was working in the fields with his son İhsan Acar. The responsible authorities had been contacted in order to proceed with the search for him. However, the persons who had abducted Mehmet Salih Acar had not, to date, been identified and the investigation of the case was ongoing.
114. On 18 September 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to ensure that Harun Acar from the village of Ambar reported to his office in connection with the investigation into the disappearance of Mehmet Salim Acar. On 21 September 1995, the Bismil gendarmerie district command instructed the Bismil central gendarmerie command to find the address of Harun Acar.
115. On 29 September 1995 Sergeant İlhan Yücel, the commander of the Bismil central gendarmerie command, informed the Bismil gendarmerie district command that Harun Acar did not live in Ambar, that he was currently serving in an anti-terrorist unit and that his current address could be obtained from the Derik and Mazıdağı gendarmerie district commands. Sergeant Yücel appended to his letter an undated report, signed by the gendarme officers Mustafa Candal and Özay Yalbul, and the Ambar muhtar Mehmet İhsan Tuncay, stating that Harun Acar had left no address when he was released from the Diyarbakır E-type prison but that he could be found by asking the Derik or Mazıdağı gendarmerie command. This information was transmitted to the Bismil public prosecutor on 10 October 1995.
116. On 12 October 1995 the Ministry of Justice requested the Bismil public prosecutor to provide information about the steps taken in the investigation into the disappearance of Mehmet Salih Acar, which formed the subject matter of a complaint filed by the applicant with the European Commission of Human Rights, in which he alleged that his brother had been taken into custody in Bismil on 20 August 1994 and that his brother was being tortured in custody. The Bismil public prosecutor was asked in particular to inform the Ministry if an investigation into the matter had been opened and, if so, whether it had been opened automatically or in response to a request in respect of Mehmet Salih Acar.
117. On 16 October 1995 the Bismil public prosecutor addressed a reminder to the Bismil gendarmerie command of his instruction of 18 September 1995. On the same day, he instructed the Bismil gendarmerie command to ensure that Halise Acar and all gendarmes who had served at the Bismil gendarmerie command at the material time and who were named “Ahmet” would report to his office in order to give a statement. He lastly instructed the Bismil gendarmerie command to provide him with the current address of Captain İzzettin Cural, who had left Bismil after having been posted elsewhere.
118. On the same day, the Bismil public prosecutor informed the Ministry of Justice that an investigation into the disappearance of Mehmet Salih Acar had been opened, and that in this investigation statements had been taken from the complainants Halise and Hüsna Acar and from the witnesses İhsan Acar and İlhan Ezer, that steps had been taken to obtain a statement from Captain İzzettin, NCO Ahmet and Harun Aça, and an additional statement from Halise Acar. He further informed the Ministry that, as it was possible that Mehmet Salih Acar had been kidnapped, letters had been written to the central police and gendarmerie authorities requesting that Mehmet Salih Acar be found.
119. On 20 October 1995 the Bismil public prosecutor requested the public prosecutors in Derik and Mazıdağı to summon and take a statement from Harun Aça in relation to the disappearance of Mehmet Salih Acar.
120. On 3 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Captain İzzet Cural.
121. On 6 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor that, in response to his request of 16 October 1995, Sergeant Ahmet Uyar had been sent to his office. In a statement given on the same day to the Bismil public prosecutor, Ahmet Uyar declared, in his capacity as a person suspected of an offence, that he had no information about the incident and that he had not witnessed it. He had taken up his duties at the Bismil district gendarmerie eight days before the incident took place. The person having served before him was Sergeant Ahmet Korkmaz, who had been killed by the PKK. Also, Ahmet Babayiğit had served before him. Ahmet Babayiğit had had a road accident and for that reason was currently on sick leave. Ahmet Uyar denied having been involved in the incident and stated that he did not know the person who had been mentioned by the public prosecutor.
122. On 10 November 1995 the Mazıdağı gendarmerie district command informed the Mazıdağı public prosecutor that Harun Aça did not serve at that command.
123. On 16 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Harun Aça who had been found to serve at the Derik gendarmerie district command.
124. On 23 November 1995 Harun Aca made a statement at the Bismil gendarmerie central command, in which he declared that he had left Ambar in 1988. He had later joined the PKK until he had surrendered himself voluntarily on 4 April 1994 to the Derik gendarmerie district command. Owing to his participation as a guide in military anti-terrorist operations, it was impossible for him to return to Ambar. He had only done so on very rare occasions and for reasons of security had then always stayed at the premises of the Bismil gendarmerie district command. His parents, his spouse and family were residing in Ambar. They did not have any hostile relationship with the families living in Ambar, but owing to his personal position his family had become a PKK target. He confirmed that Mehmet Salim Acar and his family also resided in Ambar, but he had not seen them since 1988 and he no longer had any contact with them. He would only enter and leave Ambar during the day and in secret for security reasons and paid particular care that he was not seen by anyone. He denied having given any information about Mehmet Salih Acar to the gendarme Captain İzzet Cural or to NCO Ahmet, as he had had no mission to Bismil and did not know what was going on in Bismil. The PKK had incurred many losses in the region of the Mardin and Şırnak provinces on the basis of information provided by him and he was convinced that, following its losses, the PKK had organised the abduction. He further denied having apprehended anyone with the assistance of gendarmes serving in the Bismil district. In any event, he had no such powers. His function was limited to giving information to the security forces, which he could not provide in respect of the Bismil district or even the Diyarbakır province as he did not have any.
125. Also on 23 November 1995 Harun Aca, in his capacity as a person suspected of an offence, gave a similar statement to the Bismil public prosecutor. In addition, Harun Aca declared that he possessed a document proving that he had participated in an operation conducted in the Kelmehmet mountains near Mardin between 19 July and 6 September 1994, and submitted, inter alia, a letter of commendation from the Mardin gendarmerie commando battalion command at Kızıltepe certifying that he had participated in an operation conducted between 19 July and 20 August 1994 in the Şırnak and Mount Cudi area. He again denied that he had provided any information to Captain İzzet or NCO Ahmet and maintained that he knew nothing about the disappearance of Mehmet Salim Acar whom he had not seen since 1988.
126. On 30 November 1995 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Captain İzzet Cural in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.
127. On 19 December 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to be provided with the current address of Sergeant Ahmet Babayiğit for the purposes of obtaining a statement from him. On 25 December 1995 Captain İrfan Odabaş, the commander of the Bismil gendarmerie district command, provided the Bismil public prosecutor with the current address of Ahmet Babayiğit.
128. On 27 December 1995 Captain İzzet Cural, in his capacity as a person suspected of an offence, gave a statement to the Ankara public prosecutor Osman Aşrafoğlu in which he declared that, in response to a report that Mehmet Salih Acar had been abducted, an investigation by the gendarmerie had been carried out which had not resulted in finding the abducted person or in identifying the perpetrators. He further stated that he did not know where Mehmet Salih Acar currently was.
129. On 8 January 1996 the Bismil public prosecutor took a further statement from Halise Acar who maintained her account contained in her previous statement and complaint. She added that, three days before his disappearance, her husband had had a quarrel with Mehmet Aça about a water pump. Mehmet Aça was the brother of Harun Aça, a former PKK member who had later joined the security forces for whom he was currently still working. That is why she believed that her husband had been taken away by the security forces having acted on instructions given by Harun Aça.
130. On 9 January 1996 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Ahmet Babayiğit in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.
131. On 26 January 1996 Captain İrfan Odabaş, the commander of the Bismil gendarmerie district command, informed the Bismil public prosecutor, in reply to his request of 16 October 1995, that no officers or NCOs called Ahmet were currently serving under his command. Captain Odabaş further informed the Bismil public prosecutor that the expert gendarmerie Sergeant Ahmet Uyar had been ordered to report to the public prosecutor's office as he was present, that the expert Sergeant Ahmet Babayiğit was currently on sick leave and that Ahmet Korkmaz had been killed on 31 October 1994 in the course of an armed clash in Bismil.
132. On 5 February 1996, at the request of the Bismil public prosecutor, Ahmet Babayiğit gave a statement at the Dikmen police station to the police constable Mehmet Cabbar. He declared that he knew nothing about the alleged abduction of Mehmet Salih Acar by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie acting apparently on instructions given by Harun Aça. He did not remember an incident of that nature. He further stated that he did not at present remember the persons named Captain İzzettin and NCO Ahmet.
133. In a certified document, dated 25 February 1996 and signed by the commander of the Mardin gendarmerie commando battalion command major Hurşit İmren, it is stated that Harun Aça, who was serving as a village guard under the orders of the Derik gendarmerie district command since 27 May 1994, had participated in operations carried out from 19 July to 6 September 1994 by the Mardin gendarmerie commando battalion command in the Şırnak province and the Kelmehmet mountains.
134. In the Bismil public prosecutor's decision of lack of jurisdiction of 17 June 1996, the stated offence is abuse of authority. Mehmet Salih Acar is mentioned as the victim of this offence, Hüsna and Halise Acar and the applicant as the complainants, and the gendarmes İzzet Cural and Ahmet Babayiğit and the village guard Harun Aça as the accused. Since, at the material time, İzzet Cural and Ahmet Babayiğit were serving at the Bismil gendarmerie and Harun Aça was working together with the gendarmerie, the Bismil public prosecutor held that he was not competent to deal with the matter and that, pursuant to section 15/3 of Act no. 3713 (Prevention of Terrorism Act of 12 April 1991), the case was to be determined by the Diyarbakır Provincial Administrative Council.
(iii) Proceedings before the Diyarbakır Provincial Administrative Council
135. On 26 June 1996 the Diyarbakır Provincial Administrative Council transmitted the decision of lack of jurisdiction of 17 June 1996 and the relevant case-file on the preliminary investigation carried out by the Bismil public prosecutor to the Diyarbakır provincial gendarmerie command, requesting it to examine the facts on which this decision was based, to conduct – if necessary – an investigation and to communicate the results thereof.
136. On 24 September 1996, in relation to the applicant's petition of 27 July 1995 (see paragraphs 90 and 111 above), Captain İrfan Odabaş took a statement from Harun Aça who declared that between 19 July and 6 September 1994 he had participated in the security forces' operations in the provinces of Şırnak and Mardin. He denied the accusation against him and stated that he had nothing to do with it and that he had no information about it. He added that, since he had started his duties for the gendarmerie, he had only been able to go on leave if permission was granted and that his leave record could be verified at his duty station.
137. On 9 December 1996, in relation to the applicant's petition of 27 July 1995, İrfan Odabaş took statements from İlhan Ezer, İhsan Acar, Hüsna Acar and Halise Acar.
138. İlhan Ezer made the following statement:
“On the day of the incident I was eating lunch in the field below Ambar with Mehmet Salih Acar, who has been abducted. A grey Renault TX type car without licence plates with two persons drove towards us. They asked for our identity cards. After looking at them, they returned my card, but did not return the identity card of my friend Mehmet Salih Acar. They told us to get into the car. I said that I definitely would not get into a car belonging to people I did not know. Mehmet Salih Acar got into the car without making any objection. The men said: 'Mehmet Salih will show us a field. We will bring him back.' And they drove off towards Ambar. I then asked Mehmet Salih's son whether he knew the men. He said 'No', so I told him to go to the village and tell the people that strangers had taken his father away. The child went to the village. I know Captain İzzet and NCO Ahmet very well. If I saw them in the village, I would recognise them. The men who came were definitely not them. If they had been, I would have recognised them. I had not seen the men who abducted Mehmet Salih Acar before and did not recognise them. One was about 25-26 and the other 18-20. Both were wearing hats and the older one was wearing glasses and had a moustache.”
139. İhsan Acar's statement to İrfan Odabaş reads:
“On the day of the incident I was working with my father in the field we had leased. Our neighbour İlhan Gezer was working alongside us on his own land. We had gone under a tree in our field to eat our lunch, but there was a distance of about ten metres between my father and myself. Then a grey Renault without licence plates with two persons in it came towards us. It stopped by my father. İlhan Gezer also came over. They began to talk to the two of them. I was watching because I was further away. They asked my father and Uncle İlhan for their identity cards. They then returned İlhan Gezer's card. The conversation between them was in Turkish. They subsequently took my father towards Ambar. There was no argument or struggle when they took him there. The persons who came were carrying a Kalashnikov rifle. They wore hats and the older one had a moustache. Then İlhan Gezer asked me if I knew them. When I said that I did not know them, I ran to inform the village. Since that day we have not heard anything from my father.”
140. Hüsna Acar gave the following statement:
“Mehmet Salim Acar is my son. He has been missing since the date of the incident. I have no direct knowledge of the disappearance of my son Mehmet Salim Acar. I only know what my grandson İhsan Acar told me when we came to the village on the day of the incident. I do not know anything more than this. I do not know who abducted my son Mehmet Salim Acar or for what reason. I do not think that the gendarmerie took my son. The only thing that I want from my State is for my son to be found dead or alive and to be handed over to me. Apart from this, I have no complaint against Captain İzzet or Expert Sergeant Ahmet. I do not know these people and I have no feelings of animosity towards them. Because my son is not a terrorist, we had not had until that moment any dealings with the gendarmerie. I want those who abducted my son to be found and punished. Apart from this, I do not complain about anyone.”
141. Halise Acar made the following statement to İrfan Odabaş:
“Mehmet Salim Acar, who has gone missing, is my husband. On the day of the incident he had gone to work in the field with my son İhsan Acar. My son later came running back to the house saying that Mehmet Salim Acar had been made to get into a car by two persons whom he did not know and had driven off towards Ambar. I did not see myself the abduction of my husband Mehmet Salim Acar. I do not know who took my husband or why. We have been unable to get any news from him. All that I want from my State is that they find my husband dead or alive and hand him over to me. I am making a formal complaint against those who abducted my husband. But I have no complaint against Captain İzzet or Expert Sergeant Ahmet as I do not believe that they abducted my husband. At the moment I am living with my mother-in-law and her daughter at the address ... My mother-in-law's son Tahsin Acar works in Sweden and he has filed various petitions for finding my husband.”
142. On 10 December 1996 the applicant addressed a letter to the President of the Diyarbakır Provincial Administrative Council, claiming that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca. The applicant further stated that an officer of the Anti-Terror Department of the Diyarbakır police had investigated the case in July 1995 and that the Bismil gendarmerie had admitted that his brother was being held by them. However, Captain İzzet Cural had later told this police officer that the person who was detained was not Mehmet Salim Acar, but a person called Mahmut Acar from Nusaybin. The applicant further related a telephone conversation he had had on 22 September 1995 with Captain İrfan Odabaş, who had replaced Captain İzzet as commander of the Bismil gendarmerie and who had asked the applicant whether a ransom had been claimed. The applicant had told Captain Odabaş that no such demand had been made, but that he would be willing to pay a ransom. On 27 September 1995 the applicant's family had been contacted by a person, asking for a ransom in exchange for his brother's release. On 5 October 1996 another person – identified by the applicant as Namık Keser from Diyarbakır – contacted the family and stated that Mehmet Salim Acar was being held by the Diyarbakır gendarmerie and would be released if the applicant agreed to work as an informer for the authorities, which the applicant refused to do.
143. On 25 December 1996 İrfan Odabaş took a statement from Ahmet Babayiğit, who declared that he had not seen the abduction of Mehmet Salim Acar and that he knew nothing about it.
144. On 1 January 1997 İrfan Odabaş took a statement from Captain İzzet Cural, who declared:
“We received a report that Mehmet Salim Acar from Ambar, which lies within our command's jurisdiction, had been abducted by unidentified persons. I was at the unit centre when the report was received. I immediately gave the necessary information to the authorities concerned. We started to conduct the necessary searches at the entrances to and the exits from Bismil and Ambar, but we could not find them. I do not know who abducted Mehmet Salim Acar or why or for what purpose. In spite of all our searches, we were unable to find the perpetrators or the victim. As a result of our search and investigation in and around the village, we established that he had been abducted by two persons, but we were unable to establish their identities. We definitely did not apprehend or detain this person, as alleged. It has still not been possible to obtain any information about the abduction of Mehmet Salim Acar.”
145. İrfan Odabaş submitted the report on his investigation to the Diyarbakır Provincial Administrative Council on 15 January 1997. This report mentions Tahsin Acar as the complainant, İzzet Cural, Ahmet Babayiğit and Harun Aca as the persons accused of the offence of abuse of authority, and İlhan Ezer, Halise Acar, İhsan Acar and Hüsna Acar as witnesses. The report contains, inter alia, a summary of the statements taken from the accused and the witnesses, and Captain Odabaş's advisory opinion, i.e. that the applicant's claims had remained unsubstantiated and that these claims found no support in the statements obtained, which indicated that the accused had not been involved. He therefore concluded that there was no need to open a judicial or administrative investigation and that a decision not to prosecute would be appropriate.
146. In its unanimous decision of 23 January 1997, in which Hüsna Acar is mentioned as the complainant, and Captain İzzet Cural, NCO Ahmet Babayiğit and Harun Aca as defendants, the Diyarbakır Provincial Administrative Council found that the accusation of abuse of authority allegedly committed by the former commander of the Bismil gendarmerie district command, Captain İzzet Cural, the NCO Ahmet Babayiğit and the temporary village guard Harun Aca by having abducted Mehmet Salih Acar in August 1994 was not supported by evidence against the defendants that could be regarded as sufficient for instituting proceedings against them. It therefore decided to reject the request to take proceedings, in accordance with section 5 of the Law on the Prosecution of Civil Servants and Article 164 of the Turkish Code of Criminal Procedure.
147. In its unanimous decision of 14 January 2000, following ex officio appeal proceedings, the Second Division of the Supreme Administrative Court held that the evidence available was insufficient to send the defendants for trial and thus upheld the decision taken on 23 January 1997 by the Diyarbakır Provincial Administrative Council.
(iv) Other domestic investigations
148. On 24 August 1995 the State Minister Algan Hacaloğlu informed the applicant that his petition of 26 July 1995 (see paragraph 89 above) had been transmitted to the Diyarbakır Provincial Governor.
149. On 8 September 1995, on the basis of the applicant's allegations set out in his petition of 26 July 1995, statements were taken from İhsan Acar, İlhan Ezer, Halise Acar and Hüsna Acar at the Bismil central gendarmerie command.
150. İhsan Acar gave the following statement:
“I live in the village of Ambar with my family. Tahsin Acar is my paternal uncle. Mehmet Salim Acar is my father. Last summer we were irrigating the cotton field. I, my father and İlhan Ezer from the village Üçtepe decided to take a break for lunch in the shadow of a tree. A car approached. It was a dark grey or grey Renault car without licence plates. It stopped near to us. Two men came out of the car. One was short and wearing a hat. The other one was young, tall and he was wearing a hat and glasses. They asked my father and İlhan from Üçtepe to show their identity cards. They refused saying: 'We will not show you our identity cards because we do not know who you are'. The two men replied that they were from the police. So my father and İlhan showed them their identity cards. The two men looked at the cards and gave İlhan his card back. They did not give my father his card back. They spoke to us in Turkish. They said to my father: 'Get into the car with us, you will show us a field.' By force, they made my father get into the car. They told me: 'We will bring your father back in half an hour.' They left and did not come back. I ran home to warn my mother and I told her what had happened. My mother left in order to tell the muhtar about what had happened. ... I had never seen these persons before. I have never met them in my surroundings. These two men do not resemble any person living in my village. Moreover, they never got out of the taxi. It was my father and İlhan who approached the car in order to talk to them. They were not military or gendarmes. They both had a moustache. They had arms under the seats of the car. Subsequently, we went to the Bismil tribunal and we gave statements. A search for my father was made but, to date, it has not led to any news from him.”
151. İlhan Ezer declared:
“I live in the village of Üçtepe. I do not share any ownership with Mehmet Salim Acar, but we have a cotton field in the village of Ambar. We planted cotton in the same place with this person. I do not know his brother Tahsin Acar. I only heard his name in connection with the letter in question. This is what I can tell you about the events. In August last year I was irrigating the planted cotton. I placed myself in the shadow of a tree in order to have lunch. I noticed a dark grey-coloured taxi coming from the direction of Ambar. The vehicle had no licence plates. It stopped near to us. I was together with Mehmet Salim Acar and his son. We were asked to show our identity cards. We refused this demand of these two men who we did not know. Discussions between us and the two men took place, but we still did not show our identity cards. They stated that they were policemen. So we asked them to show us their police identity papers. They did not show them to us. They took our identity cards and told us that they would give them back. They looked at them and asked us to get into the car. We did not get into the car. They forced us, but I continued to refuse to get in. I noticed that at that moment Mehmet Salim Acar kept silent, he did not speak. They returned my identity card to me and the card of Mehmet Salim Acar. Subsequently, Mehmet got into the car. They told me: 'Your friend will accompany us to a field and he will come back.' He left and he did not return. I had never seen these two men before. They were dressed in civilian clothes. I did not know them. They were both wearing a hat [Sülüman şapkaları”; i.e Borsalino-style hats.]. I had never seen them before in this region. ... The two men were not officers of the Bismil gendarmerie district command. As I have already pointed out, I had never seen these two persons before. Nor had Mehmet Salim Acar; he did not have an attitude indicating that he knew them.”
152. Halise Acar stated that on the day in question her husband Mehmet Salim Acar and their son İhsan had left in the morning to work in a field located near to the neighbouring village Sarıtoprak. At around noon, her son had come running home, telling her that his father had been taken away in a car without licence plates. He also told her that there had been two persons in the car. Halise Acar further stated that this Renault taxi had already been seen several times in the village. Her daughter had told her that she had seen her father in this car on the Dicle river bank and that she had thought that her father was going somewhere. Halise Acar lastly stated that her family had alerted all the administrative authorities and the Bismil gendarmerie that her husband had disappeared, that her family had given statements about the matter to the Bismil public prosecutor and that her husband had been searched for but without any results to date.
153. Hüsna Acar declared that she was the mother of Mehmet Salim Acar and that she was living with his family and that, in August 1994, her son had left in the morning to irrigate the cotton field. Her grandson, who had accompanied Mehmet Salim, had come running home at around noon, saying that a car had stopped close to his father, that he had been told that they were going to look at a field and that they would return, that he had waited for an hour and that nobody had come back. Hüsna Acar further stated that no news had been heard from her son since, that the Bismil gendarmerie had been informed and that the Bismil public prosecutor had summoned and questioned her and her relatives.
154. On 3 October 1995 the Ministry of Foreign Affairs, acting on the Commission's decision of 4 September 1995 (see paragraph 4 above), requested the Ministry of Justice and the Ministry of the Interior to gather and transmit information about the case of Mehmet Acar who, according to his brother Tahsin Acar, had been forcibly taken away by plainclothes police officers and placed in detention. The respective ministries were requested to inform the Ministry of Foreign Affairs whether Mehmet Acar had been taken into detention, whether any proceedings had been taken against him and, if not, whether there were indications that he had been abducted by or joined the PKK.
155. By letter of 22 November 1995 the Diyarbakır Provincial Governor Mehmet Doğan Hatıpoğlu informed the Ministry of the Interior that an investigation of the facts alleged by the applicant had been carried out. The conclusions of this investigation were that Mehmet Selim Acar had not been apprehended by Captain İzzet Cural and NCO Ahmet Korkmaz (deceased in the meantime) as well as Hasan Acar. No trace of a taking into custody of Mehmet Selim Acar had been found in the custody records of the Bismil gendarmerie district command. The victim had been abducted by two unknown persons claiming to be policemen in a dark grey-coloured taxi without licence plates. The investigation of these leads which had been carried out had not led to any results. The matter had been raised before the judicial authorities and the Bismil public prosecutor had conducted the necessary investigations. The two eyewitnesses of the incident, İhsan Acar (the son of Mehmet Selim Acar) and İlhan Ezer had given statements in which they had declared that they did not know the identities of the persons who had abducted Mehmet Selim Acar, stating that they knew the gendarme Captain İzzet Cural just as the other officers of the gendarmerie and that the two persons who had abducted Mehmet Selim Acar were certainly not gendarmes. The Governor finally stated that the other allegations of Tahsin Acar concerning the detention of his brother at the Bismil gendarmerie command thus remained wholly unfounded.
156. In a letter dated “November 1995”, the commander of the Diyarbakır gendarmerie regional command, referring to a letter of the General Gendarmerie Command of 7 November 1995 and a letter of the Provincial Gendarmerie Command of 24 November 1995, informed the applicant – in reply to a complaint filed by Hüsna Acar and/or the applicant to the General Gendarmerie Command (see paragraph 92 above) – that according to the results of an investigation carried out, Mehmet Selim Acar had not been apprehended by gendarmes but had been abducted in a car without licence plates by two unknown persons claiming to be plainclothes policemen.
157. Appended to this letter were statements taken from İhsan Acar and İlhan Ezer who had seen the incident, including a certified statement given by İlhan Ezer on 25 October 1995 to the Bismil notary public. This statement reads:
“Whilst we worked in the cotton field situated within the boundaries of the village of Ambar in the district of Bismil in the province of Diyarbakır, we took shelter at a given moment in the shadow of a tree in order to take a rest. A taxi arrived from the direction of Ambar. It was a Renault TX-type car without licence plates. Mehmet Salim Acar, his son İhsan Acar and I sat in the shade. We were asked to show our identity cards. We refused. They then announced that they were policemen and they took our identity cards. After having looked at them, they gave our papers back. They asked us to get into the car. İhsan Acar and I, we were not willing to get into the car. Mehmet Salih Acar got into the car without objecting. They told us: 'Your friend is going to accompany us to a field and he will return later'. We have not had any news from our friend since this event. I had never seen the persons who arrived in the car before, I do not know them. It is being said that it concerned the gendarme Captain İzzet Cural and the NCO Ahmet, serving at the central commissariat. I personally know these two men; they are not those who have abducted my friend.”
158. On 18 December 1995, in reply to the petition filed by Hüsna Acar and/or the applicant (see paragraph 92 above), the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition registered under no. 4467/2872 had been examined. The Diyarbakır Governor had conducted an investigation into the matter, in the course of which statements had been taken from İlhan Ezer and İhsan Acar, who had both stated that the gendarme Captain İzzet Gürlo and NCO Ahmet Korkmaz had not taken Mehmet Salim Acar away but that he had been abducted by two unknown men claiming to be police officers who had made him get into a car without licence plates. The applicant was further informed that an investigation had been opened by the Bismil public prosecutor and was still ongoing.
159. In a letter of 14 May 1996 sent by fax, apparently on the basis of the applicant's response of 20 March 1996 to the observations submitted by the respondent Government to the Commission (see paragraph 4 above), the Ministry of Justice requested the Bismil public prosecutor to examine the various allegations set out in the applicant's response of 20 March 1996.
160. On the same day the Bismil public prosecutor informed the Ministry of Justice that the investigation of the incident referred to by the applicant had been registered under no. 1994/445 in the preliminary investigation register at the Bismil public prosecutor's office. He further informed the Ministry that, in the course of this investigation, statements had been taken from the complainants Halise and Hüsna Acar, from the witnesses İhsan Acar and İlhan Ezer and from the accused Sergeant Ahmet Uyar, the former Bismil gendarmerie commander İzzet Cural and Harun Aça, and that a request for judicial assistance had been sent to the Ankara Chief Public Prosecutor for the purposes of obtaining a statement from Ahmet Babayiğit. The Bismil public prosecutor lastly stated that, upon receipt of the statement of Ahmet Babayiğit, he would issue a decision.
161. On 21 August 1996 the Ministry of the Interior transmitted Hüsna Acar's petition of 5 August 1996 (see paragraph 95 above) to the Diyarbakır police headquarters, requesting the latter to investigate the allegations set out in the petition, to institute the required proceedings and to communicate the results of the investigation to the Ministry of the Interior and to Hüsna Acar.
162. On 29 August 1996, referring to an order of 21 August 1996, the Diyarbakır police headquarters informed the Bismil District Governor that Hüsna Acar's daughter Meliha Dal was living in Diyarbakır and transmitted a statement that had been taken from her on 29 August 1996 in connection with the petition filed with the Ministry of the Interior on 5 August 1996 by Hüsna Acar.
163. In this statement Meliha Dal declared that she had lived in Diyarbakır for seven years. She stated that Mehmet Açan, who – like her older brother Mehmet Salim Acar – was living in Ambar, had had a quarrel with her brother in the café about a water pump in the course of which Mehmet Açan had threatened her brother with “disappearance” within three days. Three days later the Bismil gendarmerie station commander, Captain İzzettin, and another person had come to the village in a car without licence plates and had asked for Mehmet Salim Acar. He was told that Mehmet Salim was in the cotton field. Thereupon, Captain İzzettin had gone to the cotton field, where her brother was together with his son İhsan Acar and a person called İlhan. Captain İzzettin asked Mehmet Salim Acar to show him the way to a place, made Mehmet Salim get into the car and left. Nothing had been heard from Mehmet Salim since. According to Meliha Dal, Captain İzzettin had handed Mehmet Salim Acar over to the brothers Mehmet and Harun Açan in return for money. Her mother Hüsna and her sister-in-law Halise knew this but, as Captain İzzettin was involved and as he was a State official, they could not tell the truth as they were frightened to be killed as well. Meliha Dal had heard from them what she was now stating.
164. By letter of 25 December 1996, sent in reply to Hüsna Acar's petition of 11 December 1996 (see paragraph 99 above), the Office of the President of Turkey informed Hüsna Acar that an instruction had been issued to the Batman Provincial Governor to investigate her claim and to inform the Office of the President of the result of the investigation. Her petition was transmitted to the Batman Provincial Governor on 27 December 1996.
On 2 January 1997 the Office of the Prime Minister addressed a letter with a similar content to Hüsna Acar in respect of another petition she had sent on 11 December 1996.
165. On 17 January 1997 the Office of the Diyarbakır Governor, in reply to Meliha Dal's petition of 25 November 1996 (see paragraph 97 above), informed Meliha Dal that on the basis of her petition an investigation had been conducted. According to the findings of this investigation, Mehmet Selim Acar had been abducted in July 1994 from his field by two unknown armed persons. The gendarmerie district command had been informed about the matter and had carried out an investigation. According to statements obtained from witnesses, the two perpetrators were unknown in the region. The witnesses further specified that they personally knew Captain İzzet Cural, NCO Ahmet Korkmaz and Harun Aca and that these three persons were certainly not amongst the perpetrators. When the Bismil gendarmerie command was informed of the abduction, it was Captain İzzet Cural himself who gave the necessary instructions, and the investigation conducted by the Bismil public prosecutor was currently ongoing.
3. Documents concerning developments after 14 January 2000
166. On 16 February 2000 Meliha Dal informed the Diyarbakır public prosecutor that she had seen her brother Mehmet Salih Acar on an NTV news broadcast on 3 February 2000. Her brother's name and surname had been mentioned in this broadcast. It was reported that her brother and two others had been apprehended in Diyarbakır and taken into detention in Muş. She requested the Diyarbakır public prosecutor to investigate the matter and to inform her whether her brother was alive or dead. She addressed an identical petition to the Diyarbakır Governor on 18 February 2000.
167. On 24 March 2000 the applicant addressed a petition to the President of Turkey in relation to the disappearance of his brother Mehmet Salim Acar. In this petition, the applicant stated that, in the NTV news broadcast on 3 February 2000 at around 11 p.m., it had been reported that three persons had been apprehended and taken into detention in Muş and that one of them was a Mehmet Salih Acar. Thereupon, his family had applied to the Bismil police, the Bismil public prosecutor, the Diyarbakır Governor, the public prosecutor at the Diyarbakır State Security Court, the Diyarbakır anti-terrorism police authorities and the Diyarbakır provincial gendarmerie authorities. They had been told by the anti-terrorism department that Mehmet Salim Acar did not wish to see them and they were not given any information about his whereabouts or his condition. The applicant requested the President to intervene in order to find out what had happened to his brother.
168. In a written statement dated 27 March 2000 Meliha Dal declared that she had gone to the Bismil public prosecutor to enquire about her brother Mehmet Salim Acar. She was told that three persons by the name of Mehmet Salim Acar had been apprehended but that the particulars of these persons (parents' names, date and place of birth) did not match those of her brother. When she left the public prosecutor's office, the latter's clerk Mehdi told her that her brother was alive, that he was in the hands of the State and that he had been sent into exile. He further told her that they had scared her brother by threatening to destroy his family and that therefore he was concealing himself from them.
169. By letter of 18 April 2000 Meliha Dal informed the Diyarbakır public prosecutor that two men had been sent to her house and that she had given statements about having seen her brother on television and heard his name on television during a news broadcast in which it was reported that three persons had been apprehended in Muş. The public prosecutor had, on her behalf, written and sent a petition to Muş. The public prosecutor had said at the end of their meeting that, as far as he understood, her brother was in the hands of the authorities in Muş.
170. By letter of 19 April 2000 the applicant's representative informed the Court that Meliha Dal, Hüsna Acar and Halise Acar had been watching the television news on NTV on 3 February 2000 at around 11 p.m. when the newsreader announced that 4 persons had been apprehended in Diyarbakır, one of whom was named as Mehmet Selim Acar. Pictures of the apprehended men had been shown and they had recognised Mehmet Selim Acar as one of them. The women had continued to watch the television all night and they had seen him again the following day at 8 a.m. The applicant's representative further informed the Court that, on 4 February 2000, the three women had gone to the Bismil public prosecutor to report their sighting on television of Mehmet Selim Acar and that, on 16 February 2000, Meliha Dal had filed a petition about the matter with the Diyarbakır public prosecutor and, on 18 February 2000, with the Diyabakir Governor. The family had further attempted to obtain a video copy of the NTV news broadcast of 3 February 2000, but without success. Referring to the applicant's petition of 24 March 2000 to the President of Turkey, the applicant's representative finally informed the Court that, so far, no information had been obtained from the authorities contacted by the applicant about the whereabouts of Mehmet Selim Acar.
171. Appended to this letter were, inter alia, Meliha Dal's petitions of 16 and 18 February 2000 (see paragraph 166 above), a statement dated 23 March 2000 in which Meliha Dal had declared that she had seen her missing brother on television on 3 February 2000, the applicant's petition of 24 March 2000 (see paragraph 167 above), Meliha Dal's statement of 27 March 2000 (see paragraph 168 above), an undated statement by Meliha Dal in which she declared that she had seen her brother Mehmet Salim Acar on a television news broadcast on 1 February 2000 at around 11 p.m. and on 2 February 2000 at around 8 a.m., an undated statement by Halise Acar stating that she had seen her husband Mehmet Salih Acar on television one day, and an undated statement by Hüsna Acar stating that, quite a long while after his disappearance, she had seen her son Mehmet Salih Acar on television.
172. On 28 April 2000, after having taken notice of the letter of 19 April 2000 and the appended documents, the European Court requested the respondent Government to submit a copy of the NTV news broadcasts referred to by the applicant's representative, to confirm that Mehmet Salim Acar had in fact been shown and named during these broadcasts, to inform the Court of the circumstances of Mehmet Salim Acar's arrest, and to confirm whether he was currently being detained and, if so, to indicate in which detention facility.
173. By letter of 22 May 2000, acting in response to the Court's request of 28 April 2000, the Diyarbakır Chief Public Prosecutor informed the Ministry of Justice that a person named Mehmet Selim Acar (son of Süleyman and Pevruze, born in 1965 in Sivrice) had been detained on 9 December 1996 and was currently serving a prison sentence in Gaziantep, and that a person named Salih Acar (son of Musa and Besnadan, born in 1979 in Batman) had been detained on 19 April 2000 and was currently held in pre-trial detention in Batman.
174. On 30 May 2000, in response to the complaint filed by Meliha Dal, the Diyarbakır public prosecutor decided not to open an investigation. This decision reads:
“The complainant stated in her petition that her brother had disappeared 6 years ago and that nothing had been heard from him since, that she recognised one of the persons shown on a news programme in February about persons apprehended during operations conducted against the terror organisation Hizbullah, that this person's name was the same as her brother's name, and that she wished to be given the opportunity to watch a video recording [of the news broadcast] so that she could identify her brother.
Since it has been stated in the Muş chief public prosecutor's decision of non-jurisdiction dated 02.05.2000 that the person detained in the province of Muş – a Mehmet Salih Acar, born in 1964 and the son of Yahya and Ayşe – is not the complainant's brother, and since it appears from the above decision of non-jurisdiction and from the birth records that the person detained in Muş, who was put on trial by the chief public prosecutor of the Van State Security Court, is not the complainant's brother;
It is therefore concluded, in accordance with Article 164 of the Code of Criminal Procedure and subject to the right of appeal, that there is no basis for pursuing the matter ...”
175. On 6 July 2000 the respondent Government informed the Court that the person apprehended and cited in the NTV news broadcast was not the applicant's brother and that there were several persons in detention having a similar name to the applicant's brother. According to the Government, it was in all probability a case of a confusion of names.
176. On 13 July 2000 the Court reminded the respondent Government of its still outstanding request of 28 April 2000 to submit the video tape of the NTV news broadcast referred to by the applicant's representative.
177. In a statement dated 28 September 2000, submitted to the Court on 4 October 2000, Meliha Dal declared that she had seen her brother Mehmet Salim Acar in an NTV news broadcast on 2 February 2000 at 8 p.m. and on 3 February 2000 at 8 a.m.
178. On 18 October 2000 the Court requested the applicant's representative also to submit a video recording of the news broadcast referred to by the applicant's relatives.
179. By letter of 24 January 2001 the NTV administration informed the applicant's representative that it could not grant his request. The footage required could only be made available upon a request made by the applicant himself. On the same day, the applicant sent by fax a request to the NTV administration to be provided with a video tape of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m.
180. In the meantime, on 17 January 2001, the respondent Government had submitted a video tape to the Court, containing the NTV news broadcasts of 3 February 2000 at 11 a.m. and 11 p.m.
181. On 16 February 2001 the applicant sent a reminder of his request of 24 January 2001 to the NTV administration, explaining that the video tape submitted by the Government to the Court did not contain the relevant news broadcasts.
182. On 20 February 2001 the applicant informed the Court that the video tape submitted by the Government did not contain the relevant news broadcasts, i.e. those broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m.
183. On 26 February 2001 the Court requested both parties to submit a video tape with the NTV news broadcasts of 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m.
184. On 30 March 2001 the applicant informed the NTV administration that he had received the video tapes with the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m., but that these did not contain the relevant news item. He requested the NTV administration to search for the news item reporting the arrest of four persons in Diyarbakır and their subsequent taking into detention in Muş or Van in the television news programmes broadcast between 31 January 2000 and 6 February 2000.
185. By letter of 2 May 2001, referring to a request made by the respondent Government in April 2001, a lawyer employed by NTV informed the Government that their request to be provided with a copy of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m. could not be met as their request concerned broadcasts aired more than one year ago. It was pointed out that, pursuant to section 28 of Law no. 3984 and Article 23 of the Regulation on Procedures concerning Radio and Television Programmes, broadcasting organisations were obliged to keep copies of each broadcast programme for one year. The Government informed the Court of this outcome on 13 June 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State of emergency
186. Since approximately 1985, serious disturbances have raged in south-east Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan), a proscribed terrorist organisation under Turkish law. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
187. Two principal decrees relating to the south-eastern provinces of Turkey have been made under the Law on the State of Emergency (Law no. 2935 of 25 October 1983) and were in force at the material time. The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmes' Public Peace Command are at the disposal of the regional governor.
188. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
B. Constitutional provisions on administrative liability
189. Article 125 of the Turkish Constitution provides as follows:
“All acts and decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
190. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
C. Criminal law and procedure
191. The Turkish Criminal Code makes it a criminal offence to:
- deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
- issue threats (Article 191),
- subject an individual to torture or ill-treatment (Articles 243 and 245),
- commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450).
192. For all these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
193. If the alleged perpetrator of a crime was a State official or a civil servant at the material time, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). An appeal lies against a local council decision to the Supreme Administrative Court; a refusal to prosecute gives rise to an automatic appeal of this kind. If the suspect is a member of the armed forces, he comes under the jurisdiction of the military courts and is tried in accordance with the provisions of Article 152 of the Military Criminal Code.
D. Civil law provisions
194. Any illegal act by a civil servant, be it a criminal offence or a tort, which causes material or moral damage may be the subject of a claim for compensation in the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. The civil courts pursuant to Article 46 of the Code of Obligations may compensate pecuniary loss and non-pecuniary or moral damages awarded under Article 47.
195. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
E. Impact of Decree no. 285
196. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey.
197. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 187 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to the Administrative Council. These councils are composed of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
THE LAW
I. PRELIMINARY ISSUE
198. The Government requested the Court, in view of its decision of 6 May 2003 to pursue its examination of the merits of the case (see paragraph 26 above), to refer the application back to the Second Section of the Court for a determination of the merits.
199. The Court notes that the Convention does not provide for a possibility for the Grand Chamber to refer back to a Section of the Court a case pending before it, either after relinquishment of jurisdiction by the Section under Article 30 of the Convention or after a panel decision under Article 43.
200. Consequently, the Government's request to refer the case back to the Second Section cannot be entertained.
II. SCOPE OF THE APPLICATION
201. At the admissibility stage of the proceedings before the Commission and without relying on any specific provisions of the Convention, the applicant complained:
(a) of the disappearance of his brother following his abduction in August 1994 by two gendarme officers of the Bismil gendarmerie command;
(b) of the unlawfulness and excessive length of his brother's detention at the Bismil gendarmerie command;
(c) of the ill-treatment and torture to which his brother was subjected while in custody and of the failure by those detaining his brother to provide the latter with the necessary medical care; and
(d) that his brother was deprived of the services of a lawyer and of any contact with his family.
202. In its decision on admissibility of 30 June 1997, the Commission considered that the facts complained of by the applicant raised issues under Articles 2, 3, 5, 6 and 8 of the Convention which required an examination of the merits.
203. However, in the applicants' final observations on the merits, filed after the case had been declared admissible on 30 June 1997, the applicant also alleged violations of Articles 13 and 14 of the Convention.
204. The Court reiterates that that the scope of its jurisdiction in cases such as the instant one continues to be determined by the Commission's decision on admissibility, the Court having no power to examine new separate facts and complaints of breaches of the substantive provisions of the Convention (see Okçuoğlu v. Turkey [GC], no. 24246/94, § 31, 8 July 1999).
205. The Court accordingly has no jurisdiction to examine the applicant's complaints under Articles 13 and 14 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
206. Article 2 of the Convention provides as follows:
“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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Arguments before the Court
1. The applicant
207. The applicant argued that there was sufficient evidence for concluding that his brother Mehmet Salim Acar had disappeared in August 1994 after having been abducted by two gendarme officers of the Bismil gendarmerie district command under the guidance of Harun Aca, and that he was subsequently detained incommunicado at the Bismil gendarmerie command. The applicant further submitted that his brother was now to be presumed dead. He lastly complained that the authorities had failed to protect his brother's life and to carry out an effective and adequate investigation into his disappearance. Although this investigation had not yet been formally closed, there was no indication of any effective further steps still being taken in pursuit of this investigation.
2. The Government
208. The Government submitted that the applicant's allegation that his brother had been taken away by officers of the Bismil gendarmerie command and detained at the Bismil gendarmerie command had not only remained wholly unsubstantiated, but was in fact contradicted by the accounts given by the eye-witnesses İlhan Ezer and İhsan Acar. The Government further submitted that an effective and adequate criminal investigation had been carried out. However, this investigation had unfortunately not resulted in finding the perpetrators of the abduction of Mehmet Salim Acar or the latter's whereabouts. The Government finally submitted that Mehmet Salim Acar had been included in the list of persons searched for throughout the country.
B. The Court's assessment
1. General considerations
209. Article 2 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII).
210. Where allegations are made under Articles 2 and 3 of the Convention, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all material submitted by the parties and, if necessary, material obtained of its own motion (see H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 758, § 37).
2. The disappearance of the applicant's brother
211. The applicant's claim that Captain İzzet Cural and NCO Ahmet of the Bismil gendarmerie command and the Ambar villager Harun Aca were involved in the abduction of his brother and that his brother was being held at the Bismil gendarmerie command was made for the first time to the domestic authorities in the applicant's letter of 20 July 1995 to the Bismil public prosecutor (see paragraph 88 above). In his further contacts with the domestic authorities, the applicant maintained this claim without, however, offering any elements in support of this allegation.
212. In her initial petition of 29 August 1994 to the Bismil public prosecutor, Hüsna Acar stated that her son had been abducted by two unknown men (see paragraph 86 above). In her second petition of 19 October 1994 to the Bismil public prosecutor, she asked for it to be checked whether her son had been apprehended and was being held by the security forces without, however, alleging that he had been apprehended by officers of the Bismil gendarmerie command (see paragraph 87 above).
213. The first time Hüsna Acar alleged that her son had been taken into detention by Captain İzzet Cural was in her undated petitions to, inter alia, the Investigation Commission for Human Rights of the Turkish National Grand Assembly, which registered her petition on 3 November 1995 (see paragraphs 92-93 above). Although she repeated this allegation in her letter of 10 June 1996 to the Bismil public prosecutor (see paragraph 94 above), in her request of 5 August 1996 to the Ministry of the Interior she again stated that she did not know the identities of the two persons who had abducted her son (see paragraph 95 above). In her subsequent criminal complaint of 23 August 1996 to the Bismil public prosecutor she reiterated her claim that her son had been taken away by Captain İzzet Cural and by the brothers Mehmet and Harun Aca (see paragraph 96 above). Hüsna Acar also did not provide any elements in support of her claim in respect of the persons allegedly involved in the abduction of her son.
214. The only two eyewitnesses of the abduction of Mehmet Salim Acar, namely his minor son İhsan Acar and a neighbour İlhan Ezer, gave statements on 2 September 1994, 8 September 1995, 25 October 1995 and 9 December 1996 in which they maintained that Mehmet Salim Acar had been taken away by two unknown armed men in plain clothes who had claimed to be policemen. Both İhsan Acar and İlhan Ezer consistently declared that they did not know these two men (see paragraphs 104-105, 150-151, 157, and 138-139 above). Furthermore, in his statements of 8 September 1995 and 9 December 1996 İlhan Ezer explicitly stated that he knew the gendarme officers accused by the applicant of being involved in the abduction of his brother very well and that they had not been the two men who had abducted Mehmet Salim Acar (see paragraphs 151 and 138 above).
215. In the domestic investigation of the abduction of the applicant's brother, statements were taken from NCO Ahmet Uyar on 6 November 1995, from Harun Aca on 23 November 1995, from Captain İzzet Cural on 27 December 1995 and 1 January 1997, and from NCO Ahmet Babayiğit on 5 February and 25 December 1996. All of them denied any knowledge about or involvement in the disappearance of Mehmet Salim Acar (see paragraphs 121, 124-125, 128, 144, 132 and 143 above).
216. The required evidentiary standard of proof for the purposes of the Convention is that of proof “beyond reasonable doubt”; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161). As regards the assessment of evidence, the Court's role is of a subsidiary nature and it must be cautious before in effect assuming the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case.
217. On the basis of the material in its possession and noting that the alleged involvement of gendarme officers in the disappearance of Mehmet Salim Acar is not only contradicted by the repeated and consistent statements of the two eyewitnesses but is also not corroborated by any other evidence, the Court considers that the claim that Mehmet Salim Acar was abducted and detained by agents of the State is based on hypothesis and speculation rather than on reliable evidence. The Court finds that, in the circumstances, it has not been established beyond reasonable doubt that the responsibility of the respondent Government was engaged in the abduction and disappearance of Mehmet Salim Acar.
218. The applicant's claim that his brother had been seen on television in February 2000 by three members of his family was denied by the Government, who submitted that the apprehended person shown on television was not Mehmet Salim Acar (see paragraphs 166-185 above). Despite its request, no video recording of the television programme concerned has been produced to the Court by the parties. In these circumstances, the Court finds that it has not been established beyond reasonable doubt that the apprehended person shown on television was the applicant's brother.
219. Consequently, no violation of Article 2 of the Convention has been established in this respect.
3. The alleged inadequacy of the investigation
220. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49 § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). Such investigations should take place in every case of a killing resulting from the use of force, regardless of whether the alleged perpetrators are State agents or third persons. However, where an involvement of State agents or bodies is alleged, specific requirements as to the effectiveness of investigation may apply.
221. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002-VIII). What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII, and Finucane v. the United Kingdom, no. 29178/95, § 67, ECHR 2003-VIII).222. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see Ergi v. Turkey, cited above, pp. 1778-79, §§ 83-84, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 70, ECHR 2002-II).
223. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV, and Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII). Any deficiency in the investigation which undermines its ability to identify the perpetrator(s) will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, ECHR 2003-V).
224. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001-III).
225. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v. Turkey, cited above, p. 1733, § 82; Oğur v. Turkey, cited above, § 92, and McKerr v. the United Kingdom, cited above, § 148).
226. The Court notes that there is no proof that Mehmet Salim Acar has been killed. However, the above-mentioned procedural obligations extend to but are not confined to cases that concern intentional killings resulting from the use of force by agents of the State. The Court considers that these obligations also apply to cases where a person has disappeared in circumstances which may be regarded as life-threatening. In this respect it must be accepted that the more time that goes by without any news of the person who has disappeared, the greater the likelihood that he or she has died.
227. In the present case there is no dispute over the steps that were taken by the various domestic authorities involved in the investigation of the disappearance of the applicant's brother and into the allegations made by the victim's relatives in respect of the alleged perpetrators.
228. The evidence in the case-file shows that, immediately after Hüsna Acar had reported the disappearance of her son on 29 August 1994, the Bismil public prosecutor opened an investigation into the matter and, on 2 September 1994, took statements from the two eyewitnesses İhsan Acar and İlhan Ezer as well as from Hüsna Acar and the victim's wife, Halise Acar. The Bismil public prosecutor further ordered the Bismil gendarmerie command to carry out an investigation. The Bismil gendarmerie commander İzzet Cural informed the Bismil public prosecutor on 7 February and 22 June 1995 that an investigation had been carried out without, however, any results (see paragraphs 101-106, 108 and 110 above).
229. Although the initial investigation may be regarded prima facie as being in accordance with the authorities' obligations under Article 2 of the Convention, the Court considers that the manner in which the investigation was pursued once the applicant had informed the authorities in July 1995 of his suspicions against Captain İzzet Cural, NCO Ahmet and Harun Aca in connection with the disappearance of his brother cannot be regarded as complete or satisfactory for the following reasons.
230. It appears from the evidence that it was not until 18 September 1995 that the Bismil public prosecutor took the first steps to obtain a statement from Harun Aca (see paragraph 114 above). Moreover, it was not until 16 October 1995 and only after having received a request for information from the Ministry of Justice, that the Bismil public prosecutor took the first steps to obtain statements from the gendarme officers allegedly implicated in the disappearance (see paragraphs 116-117 above).
231. Bearing in mind that the initial investigation had been carried out by the Bismil gendarmerie authorities under the command of Captain İzzet Cural, the Court is struck by the absence of any verification by the Bismil public prosecutor of the manner in which that initial investigation was carried out. In so far as can be established, in his letters of 7 February and 22 June 1995 Captain İzzet Cural had merely informed the Bismil public prosecutor that an investigation had been carried out without, however, giving any indication of the practical steps taken (see paragraphs 108 and 110 above). Further, there is no indication that he was ever questioned about the manner in which the investigation was carried out under his command.
232. In addition, it does not appear from the evidence that any steps were taken during the investigation to verify the information given to the Bismil public prosecutor by the victim's wife Halise Acar on 8 January 1996 and 23 August 1996 to the effect that her husband's disappearance was connected to a quarrel he had had three days earlier with Harun Aca's brother Mehmet Aca (see paragraphs 129 and 96 above). There is no indication in the case-file that attempts have ever been made to obtain a statement from Mehmet Aca or any other persons who might have witnessed this alleged incident.
233. Finally, the Court notes that it appears that, after having been informed on 16 February 2000 by Meliha Dal that she had seen her brother Mehmet Salim Acar on television on 3 February 2000, the Diyarbakır public prosecutor addressed a letter to the authorities in Muş seeking information as to whether Mehmet Salim Acar was being held there (see paragraphs 166, 169 and 174 above). However, no attempts were made by him to obtain a video recording of the television broadcast seen by Meliha Dal. This is particularly surprising given the relevance and importance of such evidence to the investigation, in that three persons claimed with certainty that they had seen the victim during the television programme, whereas it cannot have been a difficult matter for the investigation authorities to have obtained a video of the programmes concerned. Moreover, the authorities must have appreciated, as was eventually borne out by events (see paragraph 185 above), that the longer the delay in seeking the video of the news programme, the greater the difficulty in securing a copy.
234. In these circumstances the Court finds that the domestic authorities did not conduct an adequate and effective investigation into the disappearance of Mehmet Salim Acar. There has therefore been a breach of the State's procedural obligations under Article 2 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
235. Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
236. The Court refers to its above finding that it has not been established beyond reasonable doubt that the applicant's brother was abducted and detained in the circumstances and by the persons alleged by the applicant (see paragraphs 217-218 above). Neither is there a sufficient evidentiary basis for concluding that the applicant's brother was subjected to ill-treatment or torture by persons for whose acts the State is liable.
237. The Court considers that the question whether the authorities' failure to conduct an effective investigation amounted to treatment contrary to Article 3 of the Convention in respect of the applicant himself is a separate complaint from the one brought under Article 2 of the Convention which relates to procedural requirements and not to ill-treatment in the sense of Article 3.
238. The Court points out that whether a family member is a victim will depend on the existence of special factors giving his or her suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct (see Çakıcı c. Turquie [GC], no. 23657/94, § 99, ECHR 1999-IV).
239. Although the inadequacy of the investigation into the disappearance of his brother may have caused the applicant feelings of anguish and mental suffering, the Court considers that, in so far as the applicant has substantiated this claim, it has not been established that there were special factors which would justify finding a violation of Article 3 of the Convention in relation to the applicant himself (see, mutatis mutandis, Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1187-88, §§ 130-134, Çakıcı v. Turkey [GC], cited above, §§ 98-99, and Orhan v. Turkey, no. 25656/94, §§ 357-360, 18 June 2002).
240. It therefore finds no breach of Article 3 of the Convention under either head.
V. ALLEGED VIOLATIONS OF ARTICLES 5, 6 AND 8 OF THE CONVENTION
241. The Court refers to its finding that it has not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities was involved in the alleged abduction and detention of the applicant's brother (see paragraphs 217-218 above).
242. There is thus no factual basis on which to conclude that there has been a violation of Article 5, which guarantees the right to liberty and security, Article 6, which guarantees the right to a fair trial or Article 8 of the Convention, which guarantees the right to respect for private and family life.
243. It follows that there has been no violation of Articles 5, 6 or 8 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
244. Article 18 of the Convention reads as follows:
“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
245. The applicant submitted that, by failing to keep and disclose adequate records in relation to the detention and questioning of his brother and by failing to take adequate steps to investigate his disappearance, the Turkish authorities subverted the domestic safeguards in respect of the detention of suspects and took no, or totally inadequate, steps to bring to an end the widespread and systematic violations of the Convention which, in his opinion, were at issue in the present case.
246. The Government have not submitted any arguments in relation to this part of the application.
247. The Court, on the basis of the facts as established in this case, finds no violation of Article 18 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLES 34 AND 38 OF THE CONVENTION
248. Article 34 of the Convention, in so far as relevant, provides:
“The Court may receive applications from any person, ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
249. Article 38 of the Convention, in so far as relevant, reads:
“1. If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities; ...”
250. The applicant complained that, contrary to their obligations under Articles 34 and 38 of the Convention, the respondent Government had only submitted the case-file of the Diyarbakır Provincial Administrative Council at a very late stage in the proceedings before the Court and had failed to obtain and submit a copy of the television programme seen by the applicant's relatives in February 2000 and in which his brother had been shown and named.
251. The Government have not commented on these issues.
252. The Court has jurisdiction to examine the applicant's complaints under Articles 34 and 38 of the Convention in respect of facts that took place both before and after the Commission's decision on admissibility of 30 June 1997 (see Ergi v. Turkey, cited above, pp. 1783-84, §§ 104-105).
253. The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and 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, cited above, § 70).
254. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent Government who 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. The same applies to delays by the State in submitting information, which prejudices the establishment of facts in a case (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI; Orhan v. Turkey, cited above, § 266; and Tepe v. Turkey, no. 27244/95, § 128, 9 May 2003).
255. In the light of the above principles, the Court finds that the Government's failure to act with due diligence in complying with requests made by the Commission and the Court to make available evidence considered necessary for the examination of the application, such as the case-file of the Diyarbakır Provincial Administrative Council and the video recording of the NTV broadcast (see paragraphs 5-19 and 27-28 above), cannot be regarded as compatible with the Government's obligations under Article 38 § 1 (a) of the Convention. The Court does not consider that, in this respect, a separate issue arises under Article 34.
256. It therefore concludes that the Government have failed to comply with their obligations under Article 38 of the Convention.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
257. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
258. The applicant claimed, on behalf of himself and his brother's dependants, an amount of 634,027.08 pounds sterling (GBP) for pecuniary damage suffered as a result of his brother's disappearance.
259. The Government contested the applicant's claims for pecuniary damage as being unfounded and exaggerated.
260. The Court observes that there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant. Consequently, it dismisses the applicant's claim under this head.
B. Non-pecuniary damage
261. The applicant claimed GBP 10,000 for non-pecuniary damage suffered by himself and GBP 50,000 on behalf of the mother, wife and children of Mehmet Salim Acar. The applicant referred in this respect to the severe anguish and distress they had suffered on account of the disappearance of Mehmet Salim Acar.
262. The Government claimed that that amount was unjustified and excessive.
263. The Court notes at the outset that the application has not been brought on behalf of the mother, wife and children of Mehmet Salim Acar (see paragraph 1 above). Consequently, it rejects the claim for non-pecuniary damage in so far as it has been made on their behalf.
264. As to the applicant's own claim for non-pecuniary damage, the Court reiterates that the authorities failed to carry out an effective investigation into the circumstances surrounding the disappearance of his brother, contrary to the procedural obligation under Article 2 of the Convention. Deciding on an equitable basis, the Court awards the applicant 10,000 euros (EUR) exclusive of any tax that may be chargeable, such sum to be converted into Turkish liras (TRL) at the rate applicable at the date of payment and paid into the applicant's bank account.
C. Costs and expenses
265. The applicant claimed a total of 679,509 Swedish Kronor (SEK) for costs incurred by himself, including telephone calls, postage, and loss of salary for having reduced his working hours in order to devote himself to pursuing his application, and GBP 24,901.44 for costs and fees incurred by his British representatives, Mr K. Starmer and Mr P. Leach, and by other lawyers and administrators attached to the Kurdish Human Rights Project in London, including legal work, translations, telephone calls, postage, photocopying and stationery.
266. The Government maintained that in the absence of any supporting evidence, the above claims had to be rejected as unsubstantiated and that, in any event, they had been unnecessarily incurred and were excessive.
267. The Court notes that the applicant has only partly succeeded in making out his complaints under the Convention and reiterates that only legal costs and expenses necessarily and actually incurred can be reimbursed under Article 41 of the Convention. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, it awards him the sum of EUR 10,000, exclusive of any tax that may be chargeable, less EUR 2,299.77 received by way of legal aid from the Council of Europe, such sum to be converted into pounds sterling (GBP) at the date of settlement and to be paid into the bank account in the United Kingdom indicated in his just satisfaction claim.
D. Default interest
268. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government's request to refer the case back to a Section of the Court;
2. Holds that it has no jurisdiction to consider the applicant's complaints under Articles 13 and 14 of the Convention;
3. Holds that there has been no substantive violation of Article 2 of the Convention;
4. Holds that there has been a procedural violation of Article 2 of the Convention;
5. Holds that there has been no violation of Article 3 of the Convention;
6. Holds that there has been no violation of Articles 5, 6 and 8 of the Convention;
7. Holds that there has been no violation of Article 18 of the Convention;
8. Holds that there has been a failure to comply with Article 38 of the Convention and that no separate issue arises under Article 34 of the Convention;
9. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, this sum to be converted into Turkish lira at the rate applicable at the date of settlement and to be paid into the bank account indicated by the applicant;
(ii) EUR 10,000 (ten thousand euros) less EUR 2,299.77 (two thousand two hundred and ninety-nine euros and seventy-seven cents) in respect of costs and expenses, this sum to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the bank account indicated by the applicant;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
10. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 April 2004.
Luzius WILDHABER
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Bonello is annexed to this judgment.
L.W.
P.J.M.
CONCURRING OPINION OF JUDGE BONELLO
1. I voted, if only with marked reluctance, for not finding a “substantive” violation of Article 2 as regards the disappearance of the applicant's brother in 1994. I felt driven to follow the Court as, in truth, the applicant stopped short of proving “beyond reasonable doubt” the State's responsibility in that disappearance – nor that his brother's disinclination to rejoin his family in the ten years that followed can conclusively be attributed to the State. In the present state of the Court's case-law [See e.g. Tekdağ v. Turkey, no. 27699/95, § 57, 15 January 2004.], it would have been rash to vote otherwise.
2. But, surely, the applicant's failure to demonstrate that the disappearance engages the State's responsibility should neither mark the beginning nor ought to be the end of the issue. In my view the Court could have confronted the concerns underlying the problem from a wholly different perspective. This separate opinion attempts to make relevant what, to me, are vital and indispensable tenets in judicial policy-making.
3. In this case the Court unanimously attributed to the respondent State two distinct and far-reaching responsibilities: firstly a “procedural” violation of Article 2, in so far as the State neglected to conduct any adequate and effective investigation into the disappearance of the applicant's brother. Secondly, the Court also found that the respondent State had failed to comply with Article 38, which binds States to cooperate fully with the Court in any investigation aimed at establishing the facts, and to furnish all necessary facilities for the effective conduct of that investigation. The respondent State underperformed seriously on both counts.
4. The Court found the second non-compliance to consist in the Government's failure to act with due diligence in observing the requests made by the Commission and the Court to “make available evidence considered necessary for the examination of the application, such as the case-file of the Diyarbakır Provincial Administration Council, and the video recording of the NTV broadcast” – in which the applicant and other witnesses allege the desparacido could be seen, and quite alive, in police custody, well after he disappeared in a car without markings, with the assistance of two armed men [see paragraph 255].
5. The Court has justly acknowledged that, in some cases, the Government is the sole depositary of sensitive and fundamental evidence: “in certain instances, it is only the respondent government that have access to information capable of corroborating or refuting those allegations” [of breaches of Convention rights]. The Court then added: “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 paragraph 254, emphasis added. This has also been said in Tepe v. Turkey, no. 27244/95, § 128, 9 May 2003, and Tekdağ v. Turkey, mentioned above, § 57.].
6. In the present case, the Court was faced with a situation, acknowledged and stigmatized, in which the State failed not only in its obligation to investigate properly the facts surrounding the disappearance, but also compounded and aggravated that deficiency by being particularly economical in cooperating with the Court when it came to making evidence relevant to that disappearance accessible. In other words, it is the State that made nugatory or impossible the availability of potentially relevant evidence.
7. I ask who ought to be penalised for this dearth of evidence and for the two ascertained failings by the Government. Is it the applicant, who was short-changed of any effective means to substantiate his assertions, as all the evidence was safely entombed in the State's coffers? Or the Government, bound by the Convention to conduct a proper investigation but did not, and obliged to provide the Court with what evidence it had, but equally did not – at least not with the required diligence?
8. It is for me incontestable that the applicant did not succeed in establishing “beyond reasonable doubt” the Government's responsibility in the disappearance. And it is for me equally incontestable that the Court has visited the miscarriages of the Government, not on the perpetrator of those failings, but on the victim of those failings.
9. And this, on a rational plane, flies in the face of equity. I consider it incongruous that, as a consequence of violating two Convention duties, the culprit State should reap rewards. Unacceptable that the applicant is told by a court of justice that he cannot win against the State, as he failed to produce evidence which the State had wrongly failed to produce.
10. The sequence of reasoning behind the judgment I find profoundly disturbing. In my book, the wrongdoer indemnifies, the polluter pays, the transgressor compensates. The trend of the case-law so far, for me, stands these hallowed principles on their heads. This could come dangerously near the thresholds of iniquity. I feel I must distance myself from moral deficit such as this.
11. I believe the Court should have hounded to its rational conclusion the enlightened principle it enunciated, but then sadly failed to follow through: if the State be at fault in gathering evidence or in suppressing or secreting what information it has, then the Court would be justified, using its own words, in “the drawing of inferences as to the well-foundedness of the applicant's allegations”. The drawing of these compelling inferences, so far, remains a forlorn hope.
12. It appears to me axiomatic that, in a scenario in which the Government is at fault where evidence-building is concerned, then a legal inference of culpability on the merits of the complaint should have been drawn. Governments, in detestable circumstances such as the disappearance in question, cannot be let off with benign raps on the knuckles. In my view the Court ought to have declared, boldly and defiantly, that, when a State defaults in its duties to investigate and to hand over what evidence it has under its control, the burden of proof shifts. It is then for the Government to disprove the applicant's allegations. Failure to draw these inferences will only embolden rogue States in their efforts to rig sham investigations, and encourage the suppression of incriminating evidence.
13. Some trail-blazing judgments by the Court have demonstrated how effective in the defence of human rights have been its recent forays into resourceful judicial engineering: reliance on rebuttable inferences, shifting of the burden of proof, and a possible lowering of the “beyond reasonable doubt” quantum. [Note: Assenov v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII; Timurtas v. Turkey, no. 23531/94, ECHR 2000-VI; Čonka v. Belgium, no. 51564/99, ECHR 2002-I; and Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, 26 February 2004.] The way forward, in my view, only lies in the practical and effective use of inferences of culpability, and a consequent shift of the burden of proof, in cases in which a State is found to have disregarded its obligations to investigate or to make available to the Court what informations it is the depositary of.
14. The failure by the Court to find a 'substantive' violation of Article 2 had dismal consequences for the applicant: no material damages could be, or were, awarded. [Note: See paragraph 260: “there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant”.] The Government which, in the course of the proceedings, had spontaneously offered the applicant £70,000 in compensation, can now get away with a hand-out of 10,000 euros, the fair market price, it seems, for the life of a man who never was.