TÜRKOGLU proti Turecku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34506/97
by Hasene TÜRKOĞLU
against Turkey

The European Court of Human Rights (Third Section), sitting on 19 June 2001 as a Chamber composed of

Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Mr K. Traja, judges,
Mr F. Gölcüklü, ad hoc judge
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 29 September 1996 and registered on 14 January 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1953 and living in İstanbul. She is represented before the Court by Ms Gülizar Tuncer, a lawyer practising in İstanbul.

A. The circumstances of the case

As the facts of the case are disputed by the parties, the facts as well as documents submitted have been set out separately.

1. Facts as submitted by the applicant

The applicant’s husband, Talat Türkoğlu, had been arrested and tried on several occasions in the past for political offences. Civilian policemen used to keep him under surveillance.

On 29 March 1996, Talat Türkoğlu travelled by bus from İstanbul to Edirne, a city near the border with Greece, to visit relatives. During its journey to Edirne, the bus was stopped by a car and a person from this car got on the bus. Before its arrival in Edirne the same car stopped the bus once again and the person, who had got on the bus earlier, returned to the car. This car followed Talat Türkoğlu until he arrived at his relatives’ house in Edirne.

On 1 April 1996 Talat Türkoğlu left Edirne for İstanbul. He did not arrive home and has been missing since. When entering her home on the fifth day after her husband’s disappearance, the applicant noticed that the front door was open and that her television had been turned on. In her opinion, the persons who entered her home had done so with her husband’s key.

The applicant filed petitions with several administrative and judicial bodies inquiring about her husband’s whereabouts. On 25 April 1996, she applied to the prosecutor at İstanbul State Security Court (Devlet Güvenlik Mahkemesi) and, on 26 April 1996, to the Forensic Medicine Institute and, via the İstanbul Human Rights Association, to the President, the Prime Minister, the Minister of Justice and the Human Rights Commission of the Turkish Parliament. On 2 May 1996, the applicant applied to the General Security Directorate in Ankara. On 3 May 1996, she applied to the Governorship of İstanbul, the Public Prosecutor for the Fatih neighbourhood in İstanbul and the National Intelligence Agency. On 6 May 1996, she applied to the Governorship of Edirne.

On 23 September 1996, the applicant applied to the public prosecutor of Küçükçekmece, a suburb of İstanbul. She complained that she was being followed by persons, whom she believed to be plainclothes police officers. She further complained of receiving anonymous phone calls at her home by someone who swore at her and who threatened to kill her.

In her letters of 10 September 1997, the applicant informed the public prosecutor and the Governor in Edirne about an important statement made by a prisoner, Kasım Açık, to some other prisoners in which he gave detailed information about the killing of Talat Türkoğlu.

The applicant claims that Kasım Açık was a State agent who had infiltrated into the MLKP (“Marksist Leninist Komünist Parti” - a prohibited left-wing organisation) in order to gather information about their activities. Prior to that, he had participated in counter-guerrilla activities and had been involved in the killing of a number of persons. He was strangled to death in prison on 18 May 1997. According to the applicant, Kasım Açık gave this statement when he was questioned after having been arrested and detained in the Gebze prison on suspicion of being a MLKP member, an offence for which he was later tried before the 3rd State Security Court. The suspected perpetrators of the killing of Kasım Açık, MLKP members with whom Kasım Açık shared a prison cell, were tried before the Kartal 2nd State Security Court.

According to this statement, which had been taped and later transcribed, Talat Türkoğlu had been questioned in Çadırkent by a gang, whose members included police officers, soldiers and confessors[1]. He had subsequently been killed by Murat Demir and Murat İpek and his body had been thrown into the Meriç river, which forms part of the border between Turkey and Greece. In her letter, the applicant further stated that Kasım Açık had drawn a sketch of the place where Talat had been killed and that he had given a detailed description of the clothes Talat had been wearing, in particular his shoes, wallet and wrist-watch. These details were confirmed by the applicant to be accurate. The applicant finally stated that it had to be deemed certain that Talat had been killed. She requested the authorities to investigate this new evidence and to show her photographs and other documentary materials concerning unidentified corpses found in the area.

The applicant claims that she did not receive any reaction from the administrative and judicial bodies she petitioned other than one invitation for her and her husband’s mother to give a statement and one invitation for Talat’s brother to identify a corpse found in the area where Talat had disappeared. In this respect, the applicant pointed out that, although she and her relatives had already applied to the domestic authorities in April 1996 after Talat’s disappearance, the documents submitted by the Government are dated May 1998.

2. Facts as submitted by the Government

After having received the petition of 15 April 1996, the Edirne public prosecutor opened an investigation. He contacted the Edirne Security Directorate in order to find out whether Talat Türkoğlu had been taken into police custody. He was informed on 2 May 1996 that this was not the case. As the search for Talat Türkoğlu in Edirne was unsuccessful, his photograph was transmitted to all Security Directorates in Turkey.

Further investigations were opened by the Bursa public prosecutor, the Edirne public prosecutor and the Direction of Criminal Affairs of the Ministry of Justice, following a request of 2 May 1996 by seventeen persons detained in Bursa to elucidate the fate of Talat Türkoğlu.

On 24 May 1996, in reply to a request thereto, the Edirne gendarmerie command informed the public prosecutor that their custody records were being verified and that they had started identity checks in their region. On 10 June 1996, the gendarmerie authorities informed the public prosecutor that their efforts remained unsuccessful.

On 9 August 1996, the Edirne public prosecutor informed the İstanbul public prosecutor about the investigation, asking whether Talat Türkoğlu had been taken into police custody in İstanbul. On 14 October 1996, the İstanbul Security Directorate informed the Edirne public prosecutor that Talat Türkoğlu had not been taken into detention by the İstanbul security authorities.

In reaction to the applicant’s request of 10 September 1997 for a supplementary investigation on the basis of the statement given by Kasım Açık, the existence of which the authorities had been unaware, the Edirne public prosecutor informed the public prosecutors of respectively Enez, Meriç, İpsala and Uzunköprü of the investigation and requested information about unidentified bodies found in the area. Talat Türkoğlu’s relatives were invited to identity one body from photographs. According to them, the body found was not that of Talat Türkoğlu.

As to the statement of Kasım Açık, an investigation of this person carried out by the authorities disclosed that he had been killed in the Gebze prison by his co-activists in the TDP (Türkiye Devrim Partisi - a prohibited left-wing organisation) in the context of an internal settling of accounts. According to a press release issued by the TDP, Kasım Açık had acted as a spy and had betrayed the organisation’s confidential strategy. According to this press release, Kasım Açık had been tried under the rules of the TDP and had been sentenced to death. The statement referred to by the applicant had been taken by TDP members in the context of this “trial”. According to the Government, Kasım Açık was not a State agent and had no associations with the State and affiliated agencies.

In fact, it was established in the criminal proceedings brought against the suspected perpetrators of the killing of Kasım Açık that he had been killed accidentally by another prisoner, Ayhan Güneş, following a fight provoked by Kasım Açık.

As the applicant had alleged that it appeared from Kasım Açık’s statement that the gang that had killed her husband had also kidnapped and killed persons in the Diyarbakır districts of Silvan and Lice (south-east Turkey), an investigation was carried out in the places named by Kasım Açık. In the course of this investigation the prosecution authorities summoned all the mayors in the region of Lice and took their individual statements for a subsequent comparison of the names of disappeared persons in the region with the names given in the statement of Kasım Açık.

3. Documents submitted by the parties

a. Petitions made by or on behalf of the applicant and her relatives

Zeyneti Türkoğlu, the mother of Talat Türkoğlu, filed a petition with the Edirne public prosecutor on 15 April 1996 in which she stated that her son had come from İstanbul to visit her, that he left her house on 1 April 1996 and that he had not been heard from since. She asked the public prosecutor to search for him.

On 25 April 1996, the applicant filed a petition with the public prosecutor at the İstanbul State Security Court. She stated that, on the basis of a statement given by a detainee in Siirt (south-east Turkey), she suspected that her husband had been arrested and possibly taken to Siirt. However, the authorities in Siirt had told her that her husband was not detained there. She requested the prosecutor to search for her husband.

On 26 April 1996, the applicant informed the İstanbul Institute for Forensic Medicine that her husband had disappeared since 1 April 1996. She further stated that, in the past, her husband had been arrested many times for political reasons and that he was followed by the police before he disappeared. She asked the Institute for Forensic Medicine to obtain her husband’s fingerprints from the Security Directorate, to compare them with the fingerprints of all unidentified bodies found and to provide her with any information that might be helpful.

On the same day and on the applicant’s behalf, the Turkish Human Rights Association addressed a letter to the President of the Republic of Turkey informing him of the disappearance of Talat Türkoğlu and that the applicant had applied to various authorities. The President was asked to order a search for Talat Türkoğlu. On the same day, the Turkish Human Rights Association sent similar letters to the Prime Minister, the Minister of the Interior and the Parliamentary Commission for Human Rights.

By letter of 2 May 1996, the applicant informed the Ankara central police headquarters of the disappearance of her husband and that she had applied to various authorities. As her husband had been apprehended, detained and tried for political offences on various occasions in the past, she deemed it plausible that he had been again apprehended and detained. She had also contacted the Diyarbakır public prosecutor and State Security Court as well as the anti-terror branch of the Siirt security directorate. Her husband might have been taken there since, in a statement taken previously in Siirt, a person had implicated her husband. As the Siirt authorities had informed her that her husband’s name was not mentioned in their records she had also applied to the prosecution department at the İstanbul State Security Court, which informed her that her husband’s name was not included in their records either. She finally stated that all of her inquiries indicated that her husband, who had no previous health or family problems, was in the hands of the MIT (Milli İstihbarat Teşkilatı; National Intelligence Service) or the JITEM (Jandarma İstihbarat ve Terörle Mücadele; Gendarmerie Intelligence and Anti-Terror Branch), or even counter-guerrillas. She stated that, in the absence of any other possibilities, “it was normal to conclude that a person with a political identity, opposing the State’s official policy, could be in the hands of such organisations. They are responsible for many extra-judicial killings and this is acknowledged by the State authorities from time to time. Also, the fact that someone has entered my house secretly by opening the door with a key and the fact that I have been followed, makes my conclusion stronger”. She asked the Ankara police headquarters to search for her husband.

On 3 May 1996, the applicant sent a similar letter to the National Intelligence Service, asking whether this service held any information about her husband’s disappearance.

Also on 3 May 1996, the applicant sent a letter to the İstanbul Governor, informing the Governor that her husband had disappeared since 1 April 1996, that in the past her husband had been arrested many times for political reasons and, prior to his disappearance, her husband had been followed by the police. She further informed the Governor that she had applied to the Edirne prosecutor, the Edirne police headquarters, the Edirne anti-terrorist police, various Edirne police stations, the Edirne Governor, and to the hospitals and morgues in Edirne. She further stated that she had applied to the İstanbul police and anti-terror branch, the İstanbul State Security Court prosecutor, prisons and to the Forensic Institute. She also mentioned having applied to the Human Rights Association, Amnesty International, Helsinki Watch and other organisations, the Prime Minister, the Ministry of the Interior and the National Police Headquarters in Ankara. She asked the Governor to investigate the matter. On 6 May 1996, the applicant sent a similar letter to the Edirne Governor.

On 3 May 1996, the applicant further filed a petition with the public prosecutor in Fatih (İstanbul district), requesting an investigation into her husband’s disappearance. She gave a description of her husband and asked the prosecutor to compare her husband’s fingerprints with those of unidentified bodies that had been or might be found within the prosecutor’s jurisdiction. She stated that her husband had been arrested in the past and that the authorities should have his fingerprints on record.

On 23 September 1996, the applicant filed a petition with the public prosecutor of Küçükçekmece (İstanbul district). She stated that, when she came home on the fifth day after her husband’s disappearance, she noted that someone had entered her house and had left the TV turned on. This happened on three to four subsequent occasions. In her opinion, the police officials who had detained her husband, had taken his keys and had used them to enter the house. She further claimed that she was being followed in the street by plainclothes police officers. These police officers also sat in a car parked outside her house and watched her house all night. She further claimed that she had received anonymous phone calls in which she was sworn at and threatened with death. She further claimed that, on 16 September 1996, she had been followed by a young man all the way to the bus and that, when she had got off the bus, another man had joined the young man and that they had both insulted her. They had said to her that they would prepare a second grave for her and that she should keep her mouth shut. The voice of this second man had been similar to that of the person who had called her previously. She requested the prosecutor to identify these persons and to prosecute them.

On 10 September 1997, the applicant’s lawyer filed a petition on behalf of the applicant with the Edirne public prosecutor, informing him that Talat Türkoğlu was still missing and that the applicant’s petitions to various authorities and institutions had not given rise to any results. The petition further states that in the past Talat Türkoğlu had been arrested many times for political reasons and that, before his disappearance, he was being followed by the police and that his disappearance had attracted a huge public interest. In this petition it is further stated that it had appeared from a confession made by a counter-guerrilla, Kasım Açık, that Talat Turkoğlu had been questioned in Çadırkent near Edirne by a gang consisting of police officers, soldiers and confessors and led by Mahmut Yıldırım, alias Yeşil. According to this statement, Talat Türkoğlu had been tortured and subsequently killed by Murat Demir and Murat İpek, who had later thrown his body in the Meriç river. A transcript of the tape-recording of this statement given by Kasım Açık as well as a sketch map, signed by Kasım Açık, of the place where Talat Türkoğlu had been killed were joined to the petition. The public prosecutor was asked to take these elements into
consideration in his investigation and to provide information about unidentified bodies found in or around the Meriç river. The public prosecutor was further informed that Murat Demir and Murat İpek were currently being held in the Metris prison in İstanbul.

On the same day, the applicant’s lawyer sent a similar letter to the Edirne Governor. Also on 10 September 1997, the applicant’s lawyer requested the Edirne Institute of Forensic Medicine to compare the fingerprints of Talat Türkoğlu with those of all unidentified bodies and to provide any information that might be helpful.

b. The Turkish authorities’ investigation into the disappearance of Talat Türkoğlu and the allegations contained in Kasım Açık’s statement

On 15 April 1996, referring to the petition filed on the same day by Zeyneti Türkoğlu, the Edirne public prosecutor requested the Edirne police headquarters to take a statement from Zeyneti Türkoğlu, to search for Talat Türkoğlu and to distribute his photograph to all police stations in Turkey.

On 19 April 1996, the applicant gave a statement at the Ayşekadın police station in Edirne about her husband’s disappearance since 1 April 1996. She declared that her husband had a business in İstanbul selling building materials, that he had no debts and that in any event debts would not prevent him from coming home, that he had no family problems and that she feared for his life. She asked the police to search for him.

On the same day, Zeyneti Türkoğlu gave a statement at the Ayşekadın police station in Edirne. She declared that her son had left her home on 1 April 1996 in order to return to İstanbul and that he had since disappeared. She confirmed that on 15 April 1996 she had filed a petition with the Edirne public prosecutor. The family had unsuccessfully searched for her son and she feared for his life. She described Talat Türkoğlu, who was born in 1951, as being 180 cm. tall, weighing about 78 kilogrammes, having a dark complexion and a scar on his right cheek. She asked the police to search for him

On 2 May 1996, the Ayşekadın police station in Edirne, referring to the petition filed on 15 April 1996 by Zeyneti Türkoğlu, transmitted the statements taken on 19 April 1996 from the applicant and Zeyneti Türkoğlu to the Edirne police headquarters, informing the latter that police officers of the Ayşekadın station had searched for Talat Türkoğlu at certain addresses and that his photograph had been distributed to all police stations in Turkey. The Edirne police headquarters were asked to transmit the file to the public prosecutor.

On 6 May 1996, the Fatih public prosecutor transmitted the applicant’s petition of 3 May 1996 to the İstanbul police headquarters, requesting them to investigate the matter.

On 24 May 1996, the Edirne Provincial gendarmerie headquarters informed the Edirne public prosecutor that Talat Türkoğlu was not detained by them, that they had searched for him and that they had set up road check points. Their search had remained unsuccessful, but they would continue to search for him.

On 30 May 1996, the Edirne police headquarters informed the Edirne public prosecutor that Talat Türkoğlu had been arrested in 1980 in Ankara for membership of the prohibited TKP/B party (Türkiye Komünist Partisi Birlik). He was released on bail after having been detained for 13 months and 17 days. He was arrested again for the same reasons in İstanbul in 1984. He was released on bail in 1989. Without giving any dates, the letter further states that Talat Türkoğlu had been arrested in İstanbul on a third occasion, this time for membership of the prohibited TDP party. He was detained and subsequently released on bail. On 21 September 1994, Talat Türkoğlu was arrested in Havsa (near Edirne) on a fourth occasion. He was arrested together with four other persons. On the same day, Talat Türkoğlu was handed over to the İstanbul police, as he had been searched by them. Officers of the İstanbul police brought him to İstanbul, where he was detained on remand. The letter finally states that, since 21 September 1994, Talat Türkoğlu, who had now allegedly disappeared, had not been arrested or detained in Edirne.

On the same day, the İstanbul police headquarters instructed the Fatih police headquarters to take a statement from the applicant and to search for her husband.

On 10 June 1996, the Edirne Provincial gendarmerie headquarters sent a letter to the Edirne public prosecutor with the same contents as the one sent on 24 May 1996.

On 19 June 1996, a statement was taken from the applicant at the Fatih police station. She confirmed that, on 3 May 1996[2], she had filed a petition with the Fatih public prosecutor and repeated the contents of this petition. The applicant provided the police with a passport photograph of her husband and his physical and personal particulars. These elements and the photograph put on record, included in a pro-forma documents that was transmitted to the other police forces involved in the investigation.

On 27 June 1996, the Fatih public prosecutor sent the same instruction as the one sent on 6 May 1996 to the İstanbul police headquarters.

On 2 July 1996, the Fatih police headquarters informed the Fatih public prosecutor that they had taken a statement from the applicant and that they were searching for her husband.

On 10 July 1996, on the basis of the criminal complaint filed by the applicant, the Fatih public prosecutor issued a decision not to take any Criminal proceedings in relation to the disappearance of Talat Türkoğlu as no suspect had been identified.

In his letters of 9 August and 9 September 1996, the Edirne public prosecutor asked the İstanbul public prosecutor whether Talat Türkoğlu was being detained in İstanbul.

On 17 January 1997, in reply to a request of 14 January 1997 for information about the stage reached in the investigation into the disappearance of Talat Türkoğlu, the Edirne public prosecutor informed the Edirne chief public prosecutor that the investigation was still ongoing.

On 21 May 1997, the Edirne public prosecutor instructed the Edirne police headquarters to search for Talat Türkoğlu and to inform all other police forces of this search. On the same day, he sent a similar letter to the Edirne gendarmerie command, including a request for the search of Talat Türkoğlu by the Edirne gendarmerie and to inform all other gendarme forces of this search.

On 26 May 1997, the Chief of the Edirne police headquarters informed all police forces under its command of the investigation into the disappearance of Talat Türkoğlu, requesting them to request all police forces in Turkey to search for Talat Türkoğlu and to inform him of any findings. A notification to this effect was in fact addressed on 28 May 1997 to all police forces in Turkey.

In a report dated 26 June 1997 and signed by three gendarmes, it is stated that Talat Türkoğlu had not been detained by them in the past. The report further states that the gendarme forces had searched for Talat Türkoğlu in all villages within their jurisdiction and that they had found no one who had known anything about him. The report contains no indication of the gendarmerie station to which its authors were attached.

On 3 July 1997, in reply to the letter of 21 May 1997, the Edirne gendarmerie command informed the Edirne public prosecutor that Talat Türkoğlu had never been detained by the gendarmerie and that they had no clues as to his whereabouts.

By letter of 12 September 1997, the Edirne public prosecutor asked the Uzunköprü public prosecutor whether any unidentified bodies had been found in his jurisdiction and, if so, to provide him with details thereof. On the same date, the Edirne public prosecutor sent a similar letter to the public prosecutors of respectively Meriç, Enez, Kesan and İpsala.

On 18 September 1997, the Meriç public prosecutor transmitted to the Edirne public prosecutor the autopsy reports on two bodies found on 21 May 1996 and 19 June 1997 respectively in his area of jurisdiction, as well as two photographs taken of these bodies.

On 19 September 1997, the Enez public prosecutor informed the Edirne public prosecutor that there were no pending investigations of unidentified bodies found in his area of jurisdiction and that his department had no records on Talat Türkoğlu.

On 15 October 1997, the Ministry of the Interior requested the İstanbul police headquarters to be provided with information on the investigation carried out as to the allegations made by the applicant in her application to the European Commission of Human Rights.

On 22 October 1997, the Uzunköprü public prosecutor informed the Edirne public prosecutor that no unidentified bodies had been found in his area of jurisdiction.

On 10 November 1997, the Edirne public prosecutor ordered the Edirne police headquarters to summon Zeyneti Türkoğlu to his office.

On 11 November 1997, the International Law and Foreign Relations Department of the Ministry of Justice requested the Edirne public prosecutor to be informed of the actions undertaken so far in respect of the applicant’s account of the disappearance of her husband and related incidents involving herself (the repeated intrusion of unknown persons in her apartment, and her being followed and insulted by plain-clothes policemen) as set out in her application form submitted to the European Commission of Human Rights. The Edirne public prosecutor was further requested to transmit a copy of each document in the file on the investigation.

On 13 November 1997, the İpsala public prosecutor transmitted to the Edirne public prosecutor autopsy reports on four unidentified bodies found in or near the Meriç river since 1 April 1996.

On 20 November 1997, after having examined the autopsy reports and photographs that had been sent to the Edirne public prosecutor, Hasan Türkoğlu - the brother of Talat Türkoğlu - gave a statement at the Edirne public prosecution department that he had not recognised his brother on the photographs and that the descriptions of the bodies found in the autopsy reports did not correspond to his brother’s physical appearance.

On 24 November 1997, in reply to the letter of 15 October 1997, the İstanbul police headquarters informed the Ministry of the Interior that Talat Türkoğlu had been arrested and detained on 21 September 1994 for membership of the TDP, and that on 5 October 1994 the prosecutor at the State Security Court had ordered his detention in custody. Since that date, no search warrant for Talat Türkoğlu had been issued. The letter further states that, following the applicant’s petition of 3 May 1996, the police had been informed and that on 21 May 1996, in the absence of any satisfactory results, all police forces had been notified. Furthermore, the İstanbul chief public prosecutor and the prosecutor at the İstanbul State Security Court had been informed of the case. The applicant had been given detailed oral information about the investigation and had been told that everything would be done to resolve the matter. The letter finally states that, during a search in the house of Celal Dönmez, who had been arrested on 18 May 1997 for his activities in the TDP, press releases issued by the TDP had been found stating that one of the murderers of Talat Türkoğlu, Kasım Açık, had been killed by way of punishment.

On 5 December 1997, in response to the request of 11 November 1997, the Edirne public prosecutor informed the Edirne chief public prosecutor that, despite all efforts made, Talat Türkoğlu had not been found and that the investigation was ongoing.

On 19 January 1998, in reply to a letter of 5 September 1997, the Edirne gendarmerie headquarters informed the Edirne police headquarters that in 1997 no unidentified body had been found in their area of jurisdiction.

On 10 February 1998, the Edirne police headquarters informed the Edirne police headquarters responsible for Public Order that Talat Türkoğlu had been arrested by the Edirne police on 21 September 1994 for membership of the TDP and that he had subsequently been transferred to İstanbul. Since that date, Talat Türkoğlu had not been arrested or detained by the Edirne police department.

On 10 February 1998, in reply to a letter of 7 January 1998, the Edirne police headquarters informed the Ministry of the Interior in Ankara that the search for Talat Türkoğlu was still ongoing and that it had been established that the allegations made in the applicant’s letter sent to the Edirne police headquarters were unfounded since his body had not been found in or near the Meriç river and since no unidentified bodies had been found in this river in 1996 and 1997. The letter finally states that the investigation is being pursued.

On 20 February 1998, the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that, according to a letter of 10 February 1998 from the Edirne public prosecutor, Talat Türkoğlu had not left the country after the date of his disappearance.

None of the documents submitted contain a reference to a petition filed by seventeen persons detained in Bursa, requesting an investigation into the disappearance of Talat Türkoğlu.

c. The statement and the sketch map by Kasım Açık

The statement consists of five typed pages. At the bottom of each page the name “Kasım Açık” is written by hand and is followed by an illegible signature. In this statement, Kasım Açık declares that he was born in 1979 in Çayırköy near Ağrı (eastern Turkey) and that, in November 1994, he moved to Çorlu (a place near Edirne), where he found work in a flour factory and met Murat İpek, Murat Demir and their friends. Together with these persons, he socialised with the police commissioner Mustafa Karagöz and the two police officers, Ersan and Ahmet. They used to go to the Ülkü Ocakları[3], where they met a person called Atalay.

Kasım Açık admitted in the statement that he had participated in the killing of a number of persons in the Edirne area in 1995, including Düzgün Tekin,[4] whose body had been buried on a rubbish dump near Çadırkent (place near Edirne) and that he had participated in extorting money from businesses in the Edirne area. Kasım Açık and his friends used to spend the proceeds thereof with some police officers and they gave some of this money to the Ülkü Ocakları. In the statement, Kasım Açık further claims to have gone to Diyarbakır (south-east Turkey), where he and others received one week’s training by the military and subsequently participated in operations in various places in south-east Turkey. He further admitted having participated in the killing of an unspecified number of persons in and near Diyarbakır.

Kasım Açık acknowledged that, after his return to Çorlu, he had infiltrated the MLKP and passed on information about the activities of this party to the police commissioner Mustafa Karagöz.

The statement also contains a detailed description of the killing of Talat Türkoğlu. The statement, insofar as relevant reads:

“We then went to Çadırkent in two cars and took Talat Türkoğlu there with us. There was Murat Demir and also a commander with us. Talat was in the car in front of our car and we drove him to a place near River Meriç. There, Apo and I took him out of the [car] and they killed him. He [Talat] was wearing a wrist-watch, it looked like an old style ‘Seiko’. He also had a wallet and a small notebook. He was wearing a dark blue suit. After they killed him, Apo and I threw his body into the river. We then came back to Çadırkent and dropped the commander outside Çadırkent. When we took Talat there he looked as if he had been tortured, his clothes were dirty.”

In this statement, Kasım Açık admitted having been involved, around the time of the killing of Talat Türkoğlu, in the killing of a number of other persons, including Faruk Coşkun and Tarık Ümit.

The sketch map drawn and signed by Kasım Açık indicates two cars, one parked behind the other, in an area with trees and what appears to be buildings. The cars are parked at a distance indicated as being about 100 metres from the river Meriç. Three persons are indicated at the left side of the car parked in front. The manner in which these three persons are drawn appears that two persons are aiming a firearm at the third person. Two further persons are indicated as standing in front of the first car watching the scene. The sketch map contains the text “sketch map of the place where we killed Talat Türkoğlu”.

d. The investigation conducted in relation to the statement given by Kasım Açık

On 9 March 1998, the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that it appeared from a document in the investigation file of the Edirne public prosecutor that Kasım Açık’s whereabouts had not yet been established, but that his record had been obtained. The letter further states that, on 24 February 1998, the Edirne Magistrate’s Court (Sulh Ceza Mahkemesi) had been requested to issue a warrant for the arrest of Kasım Açık. This request had been rejected by the Magistrate and an appeal against this decision was pending.

On 5 May 1998, the International Law and Foreign Relations Department of the Ministry of Justice informed the Diyarbakır public prosecutor of the nature of the applicant’s case before the European Commission of Human Rights and of the statement given by Kasım Açık. The Diyarbakır public prosecutor was requested to investigate the accuracy of the account given by Kasım Açık in his statement.

In a letter of 29 May 1998, the Çorlu public prosecutor informed the Tekirdağ public prosecutor that an investigation had been carried out of Kasım Açık’s allegation that a gang had killed two persons named Cengiz and Faruk. The place where these two persons had allegedly been buried had been excavated but no bodies had been found. Local records had been verified and local people had been questioned, but without any results. An investigation of the activities of Kasım Açık and nine others had been carried out in 1996 and the file on this investigation had been sent to the İstanbul State Security Court. The letter further states that Murat Demir, who - according to Kasım Açık - had killed Talat Türkoğlu, used to live in Çorlu and that, in 1996, an investigation against Murat Demir and Musa Şahin, an NCO, had been carried out in relation to a murder. This investigation file had been sent to the public prosecutor in Tekirdağ.

On 4 June, the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that Kasım Açık had been charged with being a member of the Çorlu Branch of the prohibited MLKP/EHB, with having thrown molotov cocktails and having distributed propaganda leaflets. He was placed in pre-trial detention on 28 January 1997 and, on 20 February 1997, was transferred to Gebze Prison, where he was strangled to death on 18 May 1997. This letter further states that the fact that his confessional statement had been made during his imprisonment cast doubts on its authenticity.

On 16 June 1998, in reply to a request for information, the Ankara Central police headquarters informed the Research, Planning and Co-ordination Board of the Ministry of the Interior that Kasım Açık had been searched on suspicion of having been involved in the commission of arson and involvement in bombing incidents. He had been apprehended on 28 January 1997 and killed in prison on 18 May 1997. The letter further states that, after the arrest of Celal Dönmez, the police had conducted a search of the house of this person where they had found documents published by the TDP stating that “Kasım Açık, one of the murderers of Talat Türkoğlu, has been punished by death”. Celal Dönmez was released on 24 May 1998 upon instructions of the public prosecutor. No action was taken against him in relation to the documents found in his home.

On 17 June 1998, with reference to the letter of 5 May 1998 from the International Law and Foreign Relations Department of the Ministry of Justice Minister and the letter of 6 May 1998 from the Diyarbakır public prosecutor, the Lice public prosecutor informed the Diyarbakir public prosecutor that his investigation had been completed. He transmitted a copy of each document in the investigation file. The letter does not contain any further specification of the nature of this investigation or any findings made.

On 26 June 1998, the Diyarbakır public prosecutor informed the International Law and Foreign Relations Department of the Ministry of Justice that the investigations conducted by the public prosecutors of, respectively, Lice and Silvan in relation to the alleged incidents as related in the statement of Kasım Açık had been completed. He transmitted a copy of each document in those investigation files.

It does not appear from the documents submitted that Murat İpek, Murat Demir, the police commissioner Mustafa Karagöz or the two police officers Ersan and Ahmet have ever been questioned in relation to the statement of Kasım Açık, or that the latter’s links with the Ülkü Ocakları association have been verified. It also does not appear from the documents submitted that an investigation had been carried out into the circumstances in which the statement and sketch map of Kasım Açık had been obtained and by whom.

e. The criminal proceedings taken against the suspected perpetrator(s) of the killing of Kasım Açık

On 3 July 1997, the public prosecutor of Gebze requested the public prosecutor of Kartal to open a criminal investigation against Ayhan Güneş and eighteen others in respect of the killing of Kasım Açık.

On 8 July 1997, Ayhan Güneş and four other prisoners were charged with the killing of Kasım Açık and summoned to appear before the Kartal High Criminal Court (Ağır Ceza Mahkemesi). Ayhan Güneş was detained on remand in the Gebze prison awaiting the outcome of his trial on charges of membership of the MLKP.

During the hearing before Kartal High Criminal Court on 19 March 1998, Ayhan Güneş admitted that he had strangled Kasım Açık with a piece of rope. He explained that Kasım Açık had suffered from psychological problems, that he had been very anti-social and that he was not liked by any of the other inmates. On the day he was killed, Kasım Açık had provoked Ayhan Güneş by criticising the book that the latter had been reading. Ayhan Güneş finally stated that he acted alone and that no other inmate had been involved in the killing.

On 11 June 1998, the public prosecutor requested the High Criminal Court to drop the charges against the four co-accused for lack of evidence and the fact that Ayhan Güneş had admitted killing Kasım Açık. The public prosecutor sought the conviction of Ayhan Güneş for murder.

Ayhan Güneş did not attend the subsequent hearings, claiming that he was unwell. On 26 October 1998, the High Criminal Court ordered the taking of a final statement from Ayhan Güneş. It further decided to prolong his detention on remand and adjourned the proceedings until 24 November 1998.

f. Other documents

By letter of 15 November 1996, the Ministry of Foreign Affairs informed the International Law and Foreign Relations Department of the Ministry of Justice that the applicant had visited Australia, where she had given an interview. This interview had been reported in an article in “Yorum”; a newspaper published in Sydney. According to this article, the applicant had stated that her husband had disappeared on 1 April 1996 and that human rights violations and atrocities continued to occur in Turkey. During the applicant’s stay in Australia, she visited Alevite and Kurdish organisations, and had meetings with Australian Parliamentarians and members of Amnesty International. She further organised a demonstration on 26 October 1996 in Sydney in support of the “Saturday Mothers”[5], which demonstration was attended by, inter alia, Australian-based Alevite and Turkish-Kurdish organisations. During this demonstration, it was stated that human rights violations continued to occur in Turkey and that Turkey is a terrorist State.

B. Relevant domestic law and practice

Criminal law and procedure

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),

- to subject an individual to torture and ill-treatment (Articles 243 and 245).

- to commit unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450).

In respect of 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.

COMPLAINTS

The applicant complains under Article 2 of the Convention that she has been unable to obtain any information with regard to her husband’s whereabouts since 1 April 1996. She maintains that all her applications to the administrative and judicial bodies have remained without result. She claims that her husband has been killed in custody by agents of the State.

The applicant also complains under Article 5 of the Convention that her husband was arbitrarily deprived of his liberty by State agents.

THE LAW

The applicant complains under Article 2 of the Convention that her husband has been killed by State agents, and that the investigation into his disappearance cannot be regarded as satisfactory. She further complains under Article 5 of the Convention that her husband was arbitrarily deprived of his liberty by these agents.

Article 2 of the Convention reads 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.”

Article 5 of the Convention, in so far as relevant, provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”

The Government submit in the first place that the investigation into the disappearance of the applicant’s husband is still ongoing and that, therefore, the application must be rejected as premature. The Government argue that, since the applicant has not taken any criminal proceedings under the Code of Criminal Procedure, she has not exhausted domestic remedies as required by Article 35 § 1 of the Convention

The applicant submits, referring to the contents of the Susurluk Report[6], that the forced disappearance of political opponents is a method used by the Turkish authorities to fight terrorism. As this is carried out illegally, no custody records or other documentary evidence can be obtained. The only option open to a person in her situation is to inform the public prosecutor and to await the outcome of the investigation conducted. She is therefore of the opinion that she has exhausted domestic remedies.

The Court notes that, on 15 April 1996, the applicant’s mother-in-law reported the disappearance of Talat Türkoğlu to the Edirne public prosecutor and that an investigation was in fact opened. The Court further notes that, on 3 May 1996, the applicant filed a request for an investigation into her husband’s disappearance with the Fatih public prosecutor and that the latter also opened an investigation. The Court finally notes that, on 10 July 1996, the Fatih public prosecutor decided not to take any criminal proceedings since no suspect had been identified.

In these circumstances, the Court is satisfied that the applicant has complied with the obligation of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. It appears from the decision taken on 10 July 1996 by the Fatih public prosecutor that, in order to take criminal proceedings, a perpetrator must be identified. The Court cannot therefore accept the Government’s argument that the applicant could have brought proceedings herself.

In so far as the Government argue that the application is premature in that the investigation is still ongoing, the Court is of the opinion that this argument must be considered in the light of the applicant’s complaint under Article 2 of the Convention concerning the unsatisfactory nature of the investigation and that, therefore, this point must be joined to the Court’s examination of the merits of the case.

As regards the substance of the applicant’s complaints under Articles 2 and 5 of the Convention, the Government submit that the applicant’s claims are wholly unsubstantiated and that there are no indications that her husband has in fact been deprived of his liberty or killed by the Turkish authorities. In the Government’s opinion, the so-called “confession” by Kasım Açık – who was detained for his involvement with the TDP (an illegal organisation engaged in terrorist activities) – cannot be accepted as conclusive evidence, as this statement was taken in very dubious circumstances, i.e. in prison by detained TDP members in the course of a “trial” for political treason held in the context of an internal power struggle within this illegal extreme left-wing armed terrorist organisation. The Government deny that Kasım Açık rendered any services to the Turkish authorities. If this had been the case, it would have been inconceivable that he would have been detained together with members of the illegal organisation, as this would inevitably have endangered his life. The Government further submit that the domestic authorities have fulfilled their obligation to take effective steps to discover the whereabouts of the applicant’s husband or the fate which befell him.

The applicant submits that, although it is true that an investigation was opened at her request, it has remained inadequate. In her opinion, in reality, no serious investigations are ever conducted in Turkey of unknown perpetrator killings of political opponents or of the disappearance of such persons.

As regards the statement of Kasım Açık, the applicant submits that her lawyer obtained this document, that it was published in newspapers and the cause of various petitions to the prosecution authorities. It appears from the investigation documents that were transmitted to her via the Court that, at the time of her husband’s disappearance, Kasım Açık had not been detained and was still active, as an infiltrator, in the MLKP. On the basis of this statement, the applicant in fact requested the public prosecutor to investigate the existence of counter-guerrilla organisations and to question Murat İpek and Murat Demir, who at that time were detained in the Metris prison. The applicant did not contend that the statement given by Kasım Açık was 100% true, but she expected the authorities to investigate the serious allegations made therein. However, only a few letters were written and the identity of a couple of corpses found in or near the Meriç river was investigated.

The applicant also submits that, after persistent petitions to the judicial, administrative and military authorities in connection with the disappearance of Talat Türkoğlu, she and her family as well as the lawyers involved were subjected to pressure and threats, which gave rise to a further petition to the public prosecutor of Küçükçekmece. The Turkish authorities failed to inform her of the results of this investigation.

The Court finds, in the light of the parties’ submissions, that the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa
Registrar President

[1] “İtirafçı(lar)”; “confessor(s)”, a term used to describe a defected member of an illegal organisation who provides the authorities with information about that organisation.

[2] The date 05.03.1996, as recorded in this document, is likely to be a clerical error.

[3] The “Idealist Hearths”; an extreme right wing nationalist association.

[4] Trade Union activist who has disappeared on 21 October 1995.

[5] Mothers of disappeared persons demonstrating every Saturday in İstanbul.

[6] cf. Tanrıkulu v. Turkey, no. 23763/94, 8.7.1999, §§ 49-51; Özgür Gündem v. Turkey, no. 23144/93, 16.3.2000, §§ 25-28; Kiliç v. Turkey, no. 22492/93, 28.3.2000, §§ 29-32; and Mahmut Kaya v. Turkey, no. 22535/93, 28.3.2000, §§ 55-58.