No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in GPE ( GPE ) . The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant 's brother PERSON ( son of ORG , born in Bismil in DATE ) , a farmer living in GPE , a village in the Bismil district in south - east GPE , disappeared on DATE . The facts surrounding the disappearance of the applicant 's brother are in dispute between the parties .

The facts as submitted by the applicant are set out in LAW below . The facts as submitted by the ORG are contained in LAW . A summary of the documents produced is set out in Part B.

On DATE , while PERSON was working in a cotton field near GPE , a white or grey ORG car without any registration plates stopped . CARDINAL armed men in plain clothes – claiming to be police officers – got out of the car and asked PERSON to accompany them in order to help them find a field . When PERSON refused to get into the car , the CARDINAL 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 .

The scene was witnessed by PERSON son PERSON and PERSON , another farmer . After the car had driven off , PERSON ran home and told his mother PERSON what had happened , and she in turn informed the village headman . PERSON , PERSON daughter , had seen her father sitting in the back of a “ grey - coloured ” car passing through the village while she and a neighbour were washing clothes in a stream . Another villager had allegedly seen PERSON being taken to the riverbank , where CARDINAL other people had been waiting in another car . PERSON hands and feet were tied , he was blindfolded and his mouth was taped . The CARDINAL cars had reportedly driven off in the direction of ORG . Nothing has been heard from PERSON since .

PERSON family filed a series of petitions and complaints about his disappearance to the authorities , including the Deputy Governor and the Bismil gendarmerie , in order to find out where and why he was being detained .

On or DATE , PERSON sister PERSON personally handed a petition about her brother 's disappearance to the Deputy Governor of ORG . After reading the petition and , in her presence , speaking on the telephone with PERSON , a non - commissioned officer ( ORG ) of the gendarmerie , the Deputy Governor told her that PERSON was in the hands of the State and that there was nothing that she could do for the time being .

When leaving the Deputy Governor 's office , PERSON was approached by a police officer , PERSON , who volunteered to make enquiries about her brother with a friend in the “ torture place ” of the ORG gendarmerie station . This police officer rang PERSON DATE and told her that he had seen PERSON at the Bismil gendarmerie command and that he could take him some clothes and cigarettes . After PERSON had fetched some clothes , the police officer told her that he would take them to her brother in CARDINAL or DATE time . On DATE the police officer called PERSON again and told her that her brother had been taken away from the ORG gendarmerie command but that he did not know where he had been taken to .

NORP On DATE PERSON , PERSON mother , filed a petition with the ORG public prosecutor requesting an investigation into her son 's disappearance . On DATE the public prosecutor took statements from Hüsna , NORP and PERSON , and the farmer PERSON .

On DATE PERSON asked the Bismil Chief Public Prosecutor for information about the progress of the investigation , but she received no reply .

In letters of CARDINAL DATE and DATE , the applicant asked the public prosecutor at ORG to investigate the whereabouts of his brother PERSON . These letters went unanswered .

On DATE the ORG public prosecutor wrote to the ORG gendarmerie commander , seeking a reply to his enquiry about the case . He wrote again on CARDINAL DATE to enquire whether or not the detention of PERSON might have been politically motivated .

On DATE the applicant asked the Bismil Chief Public Prosecutor for information about the case of PERSON and accused gendarmerie officers PERSON and PERSON and village guard PERSON of being responsible for his brother 's abduction .

On DATE and DATE the applicant sent letters to the Minister for Human Rights and the Minister of ORG , seeking information about his brother 's whereabouts and condition . On DATE the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the ORG Governor . In his reply of CARDINAL DATE , the applicant requested the Minister for Human Rights to ensure his brother 's safety and to take urgent action .

On DATE gendarmes took further statements from Hüsna , NORP and PERSON .

On DATE the applicant spoke on the telephone with gendarmerie captain PERSON , of the ORG gendarmerie command , who told him that PERSON whereabouts were unknown and 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 .

On DATE the applicant was contacted by an unknown person who asked for MONEY in return for his brother 's release . The applicant accepted immediately . He was told that his brother would be interrogated at the ORG gendarmerie command and that he would be able to meet him within DATE .

DATE . On DATE PERSON family were contacted by a person called PERSON , who informed them that PERSON 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 ORG , 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 conditions . On DATE PERSON contacted the family again and asked them to reconsider their position , otherwise PERSON would not be released .

On DATE PERSON made a statement to the ORG gendarmerie command to the effect that , in her opinion , the gendarmerie officers PERSON and PERSON and the former ORG ( ORG of Kurdistan ) member PERSON , who had become a village guard , were responsible for her brother 's abduction .

On DATE the home of PERSON was raided by officers of the anti - terrorism branch of the ORG police , who threatened her with death and attempted to abduct her CARDINAL-year - old son .

In DATE the applicant was informed by the ORG general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by CARDINAL unidentified civilians claiming to be policemen .

The applicant also filed a petition about his brother 's disappearance with ORG . On DATE , in reply to a request for information , the office of the ORG Governor informed ORG that the case had been investigated , that the CARDINAL gendarmerie officers whose names had been given by the applicant and his sister had not apprehended PERSON , that he had been abducted by CARDINAL unidentified individuals and that the investigation of the case by the ORG public prosecutor was ongoing . This information was transmitted to the applicant by ORG on DATE .

On DATE PERSON asked the Bismil public prosecutor for information about the progress of the investigation .

On DATE the ORG public prosecutor issued a decision of non - jurisdiction ( görevsizlik kararı ) and transmitted the investigation opened in respect of gendarmerie officers PERSON and PERSON and village guard PERSON to ORG for further proceedings under the PERSON on the prosecution of civil servants ( Memurin Muhakematı GPE ) .

On DATE PERSON requested the ORG Governor to open an investigation into PERSON disappearance . On DATE the applicant wrote a letter to the President of GPE and filed a further petition with ORG . On DATE PERSON wrote a letter to the President of GPE and to the Minister of the Interior , asking them to investigate the disappearance of her son PERSON . Both petitions were transmitted to the office of the Batman Governor .

On DATE the ORG Governor informed PERSON in reply to her petition of CARDINAL DATE 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 remained unidentified .

In a decision of DATE , ORG decided not to take proceedings against the CARDINAL gendarmerie officers and the village guard on the ground that there was insufficient evidence . This decision was confirmed by ORG ( NORP ) on DATE .

On DATE at TIME , PERSON and Hüsna and PERSON watched a news broadcast on the ORG television channel . The newsreader announced that CARDINAL persons had been apprehended in GPE , CARDINAL of whom was named PERSON . Pictures of the apprehended men were shown and all CARDINAL of them recognised PERSON . The QUANTITY women continued to watch the news all night and saw him again on DATE during the TIME television news broadcast .

On DATE PERSON and Hüsna and PERSON informed the ORG public prosecutor in person of what they had seen . The public prosecutor telephoned the office of the ORG public prosecutor and told the women afterwards that CARDINAL persons by the name of PERSON had been apprehended , but that , apart from the name , the particulars of the CARDINAL men did not match those of their relative .

DATE , the ORG public prosecutor informed PERSON that her brother had in fact been apprehended , that he was being held in prison in GPE , and that he would be released after making a statement .

On DATE PERSON told the ORG public prosecutor that she had seen her brother on television and asked the public prosecutor for information about his fate . The public prosecutor referred her to the PERSON 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 subsequently received no further information from the police headquarters .

On DATE PERSON made a similar request to the office of the ORG Governor , and was again referred to the PERSON police station , which directed her to the anti - terrorism branch , where a police officer took a statement from her and recorded her particulars . After TIME , GPE 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 DATE that her brother was not in fact at the anti - terrorism branch . She was subsequently told to go to the prison in GPE . When she and PERSON went to the prison , they were shown a person who was not PERSON .

On DATE CARDINAL officers from the anti - terrorism branch came to PERSON home and asked her for a copy of her family 's entry in the population register . She was told that they were looking for PERSON throughout GPE and that it was not established that he was dead .

According to a decision of non - jurisdiction issued on DATE by ORG , the person placed in pre - trial detention in GPE was a PERSON whose year of birth and parents did not match the particulars of the applicant 's brother .

On DATE PERSON filed a petition with the ORG public prosecutor seeking an investigation into the sighting of her brother PERSON during the television news broadcast .

On CARDINAL DATE ORG issued a decision not to open an investigation ( tapiksizlik kararı ) on the basis of the petition of CARDINAL DATE .

DATE . Later in DATE PERSON spoke with a prison officer at ORG . The officer confirmed that he had seen PERSON when he and CARDINAL or CARDINAL others had been apprehended and taken to ORG . According to PERSON , the officer 's description of PERSON corresponded to her brother 's appearance .

On DATE the applicant 's mother filed a petition with the ORG public prosecutor 's office requesting an investigation into the whereabouts of her son PERSON , who had been kidnapped by CARDINAL men .

NORP The public prosecutor opened an investigation , in the course of which statements were taken from Hüsna and PERSON and from the QUANTITY eyewitnesses to the events , PERSON and PERSON . PERSON stated that CARDINAL LANGUAGE - speaking men 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 . PERSON declared that a grey ORG - model car without licence plates had approached them , that CARDINAL of the CARDINAL men in the car , speaking with a western NORP accent and wearing glasses , had forced them to show their identity cards , saying they were police officers . The men did not give back PERSON identity card , saying that they would bring him back after he had shown them someone 's land .

On DATE PERSON filed another petition with the Bismil public prosecutor .

On DATE the ORG public prosecutor requested the ORG gendarmerie command to investigate whether or not PERSON had been kidnapped . In a letter of CARDINAL DATE , the ORG public prosecutor asked the ORG gendarmerie commander for information about the case .

In a letter of DATE to the ORG public prosecutor , the applicant claimed that village guard PERSON , gendarmerie captain PERSON and gendarmerie officer PERSON 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 gendarmerie officers named PERSON who worked at the Bismil gendarmerie command at the material time to be heard .

On DATE gendarmes took statements from Hüsna , NORP and PERSON and from PERSON . On the basis of the applicant 's allegation that PERSON had been taken away by CARDINAL officers of the ORG gendarmerie and a local village guard , PERSON was asked whether the persons who had abducted PERSON had worked at the Bismil gendarmerie command , which he denied . He further stated that PERSON behaviour had also not indicated that he knew these men .

On DATE PERSON made a statement to the ORG notary public , in which he stated that he had seen the persons who had abducted PERSON and that they were not Captain PERSON and PERSON as alleged .

DATE . On DATE the ORG public prosecutor took a statement from the gendarmerie officer PERSON , 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 CARDINAL other gendarmerie officers named PERSON , namely PERSON , who had been killed by the ORG , and PERSON , who had been transferred to a region with a different climate on medical grounds .

On DATE PERSON made a statement to both the gendarmerie and the Bismil public prosecutor , on which occasion he submitted a document proving that he had not been in ORG DATE , when he had been participating in a security forces operation in LOC .

On DATE the ORG public prosecutor issued a decision of non - jurisdiction and referred the case to ORG . ORG appointed Captain PERSON as inspector for the investigation into the applicant 's allegations that his brother had been taken into detention by gendarmerie captain PERSON and ORG under the guidance of temporary village guard PERSON .

On DATE PERSON made another statement to the gendarmerie in which he declared that he knew Captain PERSON and ORG very well and that they were definitely not the men who had abducted PERSON .

On DATE the gendarmerie took a statement from ORG , who stated that he had not witnessed the incident and that he did not know anything about it .

On DATE the gendarmerie took a statement from Captain PERSON , who denied that PERSON had been apprehended and detained .

On DATE ORG issued a decision of non - prosecution , finding that there was insufficient evidence to take proceedings against PERSON , PERSON or PERSON .

PERSON has been included on the list of persons who are being searched for by the gendarmerie throughout GPE , and the search for him continues .

The person who was apprehended and shown during a television news broadcast in DATE 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 his .

The parties have produced various documents concerning the investigation into the abduction of PERSON .

On DATE PERSON filed a petition with the public prosecutor 's office in ORG requesting an investigation into the disappearance of her son PERSON , who had been abducted DATE before by CARDINAL unknown persons – armed with PERSON rifles and wearing civilian clothes – in a taxi . In her petition PERSON further stated that her family had already made enquiries with the gendarmerie and the police , who had told them that they knew nothing about it . PERSON requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible .

On DATE PERSON filed a second petition with the ORG 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 .

By a letter of DATE , the applicant requested the ORG public prosecutor to grant his family permission to visit his brother PERSON who , according to the applicant , had been apprehended in DATE by the ORG gendarmerie commander . The applicant stated that gendarmerie captain PERSON , ORG and PERSON , an inhabitant of PERSON , were responsible for his brother 's life .

By a letter of CARDINAL DATE , the applicant complained to ORG that in DATE his brother PERSON had been apprehended by PERSON , ORG and counter - guerrilla agent PERSON , 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 ORG public prosecutor and ORG , to which they had applied , and that they were disconcerted not to have been granted permission to contact PERSON even though they had evidence that he was being detained .

The applicant submitted a similar petition to ORG on DATE .

In a further letter of CARDINAL DATE to ORG , the applicant stated that , in addition to his letter of DATE , he had learned from an official , who wished to remain anonymous , that his brother PERSON had been taken into detention by Captain PERSON on the basis of information supplied by the “ confessor ” PERSON . Having interrogated him , Captain PERSON had concluded that PERSON was innocent and that PERSON information had been incorrect . However , as Captain PERSON feared sanctions for having detained PERSON incommunicado and for too long , for having denied him the necessary medical care and for having failed to respect his defence rights , he had kept PERSON in detention . Considering that his brother risked being killed by Captain PERSON in order to conceal the matter , the applicant requested ORG to intervene as a matter of urgency .

NORP In an undated petition , PERSON requested ORG to examine the case of her son PERSON , claiming that he had been taken into detention by Captain PERSON of the PERSON gendarmerie on DATE and that nothing had been heard from him since . PERSON sent similar petitions , also undated , to ORG , the ORG Governor and ORG in GPE .

On DATE the President of ORG informed the applicant that the petition concerning PERSON had been registered on DATE under no . DATE , that the matter would be investigated and that he would be informed of the results of the investigation .

By a letter of DATE to the ORG public prosecutor , PERSON requested to be provided with information about the steps taken in the investigation into the abduction on DATE of her son PERSON by Captain PERSON and PERSON . She further claimed that , on DATE her son had been abducted , CARDINAL other persons – whose names she did not mention – had been abducted in the same car , that CARDINAL of them had been released and that her son had initially been taken to ORG , then to ORG and subsequently to ORG .

On DATE PERSON requested ORG to take the necessary steps to find out whether her son PERSON , who had been abducted in DATE in a white taxi by CARDINAL persons whose identities she did not know , was dead or alive .

On DATE PERSON and PERSON filed a criminal complaint of abduction and disappearance with the ORG public prosecutor . They claimed that , DATE before his disappearance , PERSON had quarrelled with PERSON , who was also living in PERSON , about a pump . PERSON had told PERSON that he would definitely “ disappear ” within DATE at the most . DATE , PERSON was taken away by PERSON , PERSON and ORG . Hüsna and PERSON requested the public prosecutor to carry out an investigation and to hand the CARDINAL perpetrators over to the courts .

On DATE PERSON lodged a complaint with the ORG Governor , claiming that her brother PERSON had had a quarrel with the brothers PERSON and PERSON . On that occasion , PERSON had threatened her brother with death . DATE , her brother had been taken away by Captain PERSON and PERSON and PERSON . PERSON further stated that the petitions filed by NORP and PERSON with the ORG public prosecutor and ORG had not led to any results and that the Bismil Governor and the ORG gendarmerie authorities had not even contacted NORP and/or PERSON to discuss the matter . PERSON requested the Governor to question Captain İzzettin and the brothers PERSON and PERSON , as she believed that her brother might have been killed by them .

On DATE the applicant sent a letter to the president of ORG claiming , inter alia , that his brother PERSON had been taken into detention by Captain PERSON and PERSON on the basis of incorrect information provided by PERSON ( see paragraph CARDINAL below ) .

On DATE , the applicant sent a similar letter to the President of GPE , requesting him to investigate what had happened to his brother .

On DATE PERSON filed a petition with ORG , claiming that the PERSON villager ORG had extorted money and jewellery from her family in exchange for the release of her son PERSON . Considering that Şakir Gün was thus aware of her son 's whereabouts and involved in his abduction , PERSON requested ORG to intervene and investigate the matter .

On the same date PERSON sent an identical petition to the President of GPE .

The submitted copy of the custody records of the ORG gendarmerie for the period DATE and DATE does not contain an entry in the name of PERSON or PERSON .

On DATE , in an instruction written by hand at the bottom of the petition filed on DATE by PERSON ( see paragraph CARDINAL above ) , the ORG public prosecutor ordered the taking of a detailed statement from PERSON and the making of enquiries with the gendarmerie and the security forces . On DATE he instructed the ORG gendarmerie to ensure that PERSON came to his office to make a statement .

On DATE PERSON made a statement to the Bismil public prosecutor . She confirmed that she had filed a petition and stated that , DATE before DATE , her son PERSON had been taken away in a taxi by CARDINAL men , who were wearing civilian clothes and armed with PERSON rifles . Nothing had been heard from him since . Her grandson PERSON had witnessed the incident . It appeared that the men had spoken NORP and that they had driven off in the direction of Bismil .

On DATE , PERSON also made a statement to the ORG public prosecutor . She stated that her husband had disappeared CARDINAL or DATE when he was in a cotton field with their son PERSON . CARDINAL armed men had forced him to get into a taxi , which had driven off in the direction of ORG . Nothing had been heard from him since . She further declared that she had been told that her husband had been with PERSON when he was taken away and that the taxi was a dark grey ORG without licence plates .

Also on DATE , PERSON ( born in DATE ) was heard by the ORG public prosecutor . He stated :

“ On DATE of the incident , my father and I were working in the field . When we went to sit under a tree to have lunch , PERSON , who was working in the field , joined us . There was a QUANTITY 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 LOC and then return LOC 's identity card , and I saw my father get into the taxi . This taxi immediately headed towards the village of PERSON . 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 NORP . These people were wearing hats and glasses . That is all I know and what I have witnessed . ”

PERSON , who was also heard by the ORG public prosecutor on DATE , declared :

“ On DATE of the incident , while PERSON and I were having lunch in the field below the village of PERSON , a ORG - 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 CARDINAL or DATE . CARDINAL of them was wearing glasses . They did not give back PERSON identity card . They said : ' PERSON 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 . ”

On DATE the ORG public prosecutor informed the ORG gendarmerie command that , DATE before DATE , PERSON had been abducted by CARDINAL unknown persons – aged DATE or DATE , speaking with a western NORP accent and one of them wearing glasses – who had come in a gunmetal ORG - model taxi without licence plates . The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted PERSON and , when found , to bring them to his office .

On DATE the ORG public prosecutor sent a reminder to the ORG gendarmerie command , urging the gendarmerie to speed up compliance with his instruction of CARDINAL DATE .

By a letter of CARDINAL DATE , the ORG gendarmerie district commander Captain PERSON informed the ORG public prosecutor that the requested investigation had been completed . Captain Cural appended to his letter a record dated DATE , signed by the gendarmerie officers PERSON , PERSON and PERSON of the ORG central gendarmerie command , stating that enquiries had been made , but that it had not been possible to identify the persons who had abducted PERSON .

On DATE the ORG public prosecutor instructed the ORG gendarmerie command to conduct a thorough investigation into the alleged abduction of PERSON and , if this had in fact taken place , to tell him who was responsible and whether it had been politically motivated . He sent a reminder of this instruction to the ORG gendarmerie command on CARDINAL DATE .

By a letter of CARDINAL DATE , the ORG gendarmerie district commander Captain PERSON informed the ORG public prosecutor that the investigation requested on DATE had been completed . Captain Cural appended to his letter a record dated DATE , signed by the gendarmerie officers PERSON , PERSON and PERSON of the ORG central gendarmerie command , stating that it had not been possible to locate or identify the persons who had abducted PERSON .

On DATE , acting on the petition filed on DATE by the applicant ( see paragraph CARDINAL above ) , ORG requested the ORG public prosecutor , as a matter of urgency , to provide information about PERSON , who had allegedly been taken into detention at the Bismil gendarmerie command in DATE and who had not been allowed to see his relatives since , and about the legal steps taken in his case .

By a letter of CARDINAL DATE , the ORG central gendarmerie station commander ORG informed the ORG district gendarmerie command that it was not known whether the abduction of PERSON had , in some way or other , been politically motivated , that it was not known who had abducted him and that no news from him had been received since his abduction . PERSON appended to his letter a record dated DATE , signed by himself , the gendarmerie officer PERSON and the PERSON muhtar PERSON , with the same contents as the letter .

Also on CARDINAL DATE and in reply to the request of CARDINAL DATE , the ORG public prosecutor informed ORG that it was asserted that PERSON had been abducted DATE before DATE by CARDINAL armed and unidentified persons , who had forced him to get into a taxi while he was working in the fields with his son PERSON . The responsible authorities had been contacted in order to proceed with the search for him . However , the persons who had abducted PERSON had not , to date , been identified and the investigation of the case was ongoing .

On DATE the ORG public prosecutor instructed the ORG gendarmerie command to ensure that PERSON from the village of PERSON reported to his office in connection with the investigation into the disappearance of PERSON . On DATE the ORG gendarmerie district command instructed the ORG central gendarmerie command to find PERSON address .

On DATE ORG , the ORG central gendarmerie commander , informed the ORG gendarmerie district command that PERSON did not live in PERSON , that he was currently serving in an anti - terrorism unit and that his current address could be obtained from the PERSON and Mazıdağı gendarmerie district commands . PERSON appended to his letter an undated report , signed by the gendarmerie officers PERSON and PERSON , and the PERSON muhtar , PERSON , stating that PERSON had left no address when he was released from ORG Prison but that he could be found by asking the PERSON or Mazıdağı gendarmerie command . This information was transmitted to the ORG public prosecutor on DATE .

On DATE ORG requested the ORG public prosecutor to provide information about the steps taken in the investigation into the disappearance of PERSON , which formed the subject matter of a complaint filed by the applicant with ORG , in which he alleged that his brother had been taken into custody in GPE on DATE and that he was being tortured . The ORG public prosecutor was asked in particular to inform the ORG 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 PERSON .

On DATE the ORG public prosecutor sent a reminder to the ORG gendarmerie command of his instruction of DATE . On DATE he instructed the ORG gendarmerie command to ensure that PERSON and all gendarmes who had served at the ORG gendarmerie command at the material time and who were named “ PERSON ” reported to his office in order to make statements . Finally , he instructed the ORG gendarmerie command to provide him with the current address of Captain PERSON , who had left ORG after being posted elsewhere .

On DATE the ORG public prosecutor informed ORG that an investigation into the disappearance of PERSON had been opened , in which statements had been taken from the complainants NORP and PERSON and from the witnesses PERSON and PERSON , and that steps had been taken to obtain a statement from Captain PERSON , ORG and PERSON , and an additional statement from PERSON . He further informed the ORG that , as it was possible that PERSON had been kidnapped , letters had been written to the central police and gendarmerie authorities requesting that PERSON be found .

On DATE the ORG public prosecutor requested the public prosecutors in PERSON and Mazıdağı to summon and take a statement from PERSON in relation to the disappearance of PERSON .

On DATE the ORG gendarmerie district command informed the ORG public prosecutor of the current address of Captain PERSON .

On DATE the ORG gendarmerie district command informed the ORG public prosecutor that , in response to his request of CARDINAL DATE , ORG had been sent to his office . In a statement of DATE to the ORG public prosecutor , PERSON 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 ORG district gendarmerie DATE before the incident took place . The person who had served before him was PERSON , who had been killed by the ORG . PERSON had also served before him , but had had a road accident and was currently on sick leave . PERSON denied having been involved in the incident and stated that he did not know the person mentioned by the public prosecutor .

On DATE the NORP gendarmerie district command informed the Mazıdağı public prosecutor that PERSON did not serve at that command .

On DATE the ORG gendarmerie district command informed the ORG public prosecutor of the current address of PERSON , who had been found to serve at the PERSON gendarmerie district command .

On DATE PERSON made a statement at the Bismil gendarmerie central command , in which he declared that he had left PERSON in DATE . He had later joined the ORG until he had surrendered himself voluntarily on DATE to the PERSON gendarmerie district command . Owing to his participation in military anti - terrorist operations as a guide , it was impossible for him to return to PERSON . He had only done so on very rare occasions and for reasons of security had then always stayed on the premises of the ORG gendarmerie district command . His parents , his spouse and family lived in PERSON . They did not have a hostile relationship with the other families living there , but owing to his personal position his family had become a ORG target . He confirmed that PERSON and his family also lived in PERSON , but he had not seen them since DATE and no longer had any contact with them . For security reasons , he would only enter and leave PERSON during DATE and in secret , and was particularly careful not to be seen by anyone . He denied having given any information about PERSON to gendarmerie captain PERSON or to ORG , as he had had no mission to ORG and did not know what was going on there . The ORG had incurred many losses in the provinces of GPE and PERSON on the basis of information provided by him and he was convinced that the ORG had organised the abduction as a result of those losses . 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 FAC district or even the LOC province as he did not have any .

Also on DATE PERSON , in his capacity as a person suspected of an offence , made a similar statement to the Bismil public prosecutor . In addition , PERSON declared that he had a document proving that he had participated in an operation conducted in LOC near GPE DATE and DATE , and submitted , inter alia , a letter of commendation from the command of the PERSON gendarmerie commando battalion at PERSON certifying that he had participated in an operation conducted DATE and DATE in the Şırnak and LOC area . He again denied that he had provided any information to Captain PERSON or ORG and maintained that he knew nothing about the disappearance of PERSON , whom he had not seen since DATE .

On DATE the ORG public prosecutor requested ORG to summon and take a statement from Captain PERSON in relation to the applicant 's claim that his brother PERSON had been abducted in DATE by PERSON and ORG PERSON of the ORG gendarmerie on the basis of information provided by PERSON .

On DATE the ORG public prosecutor requested the ORG gendarmerie command to provide him with the current address of ORG for the purposes of obtaining a statement from him . On DATE Captain PERSON , the ORG gendarmerie district commander , provided the ORG public prosecutor with PERSON current address .

On DATE Captain PERSON , in his capacity as a person suspected of an offence , made a statement to the GPE public prosecutor PERSON in which he declared that , in response to a report that PERSON 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 PERSON currently was .

On DATE the ORG public prosecutor took a further statement from PERSON , who maintained the account contained in her previous statement and complaint . She added that , DATE before his disappearance , her husband had had a quarrel with PERSON about a water pump . PERSON was the brother of PERSON , a former ORG member who had later joined the security forces , for whom he was still working . That is why she believed that her husband had been taken away by the security forces acting on instructions given by PERSON .

On DATE the ORG public prosecutor requested ORG to summon and take a statement from PERSON in relation to the applicant 's claim that his brother PERSON had been abducted in DATE by PERSON and ORG PERSON of the ORG gendarmerie on the basis of information provided by PERSON .

On DATE Captain PERSON , the ORG gendarmerie district commander , informed the ORG public prosecutor , in reply to his request of DATE , that no officers or NCOs called PERSON were currently serving under his command . Captain PERSON further informed the ORG public prosecutor that the expert gendarmerie sergeant PERSON had been ordered to report to the public prosecutor 's office as he was present , that the expert sergeant PERSON was currently on sick leave and that PERSON had been killed on DATE in an armed clash in DATE .

On DATE , at the request of the ORG public prosecutor , PERSON made a statement at NORP police station to the police constable PERSON . He declared that he knew nothing about the alleged abduction of PERSON by PERSON and ORG PERSON of the ORG gendarmerie apparently acting on instructions given by PERSON . He did not remember any incident of that nature . He further stated that he did not at present remember the persons named PERSON and ORG .

In a certified document , dated DATE and signed by the PERSON gendarmerie commando battalion commander Major PERSON , it is stated that PERSON , who had been serving as a village guard under the orders of the PERSON gendarmerie district command since DATE , had participated in operations carried out from DATE to CARDINAL DATE by the PERSON gendarmerie commando battalion command in the Şırnak province and LOC .

In the ORG public prosecutor 's decision of non - jurisdiction of CARDINAL DATE , the stated offence is abuse of authority . PERSON is mentioned as the victim of this offence , Hüsna and PERSON and the applicant as the complainants , and the gendarmes NORP and PERSON and the village guard PERSON as the accused . Since , at the material time , PERSON and PERSON were serving at the ORG gendarmerie and PERSON was working with the gendarmerie , the ORG public prosecutor held that he was not competent to deal with the matter and that , pursuant to section CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) , the case was to be determined by ORG .

On DATE ORG transmitted the decision of non - jurisdiction of DATE and the relevant case file on the preliminary investigation carried out by the ORG public prosecutor to the ORG provincial gendarmerie command , requesting it to examine the facts on which this decision was based , to conduct – if necessary DATE an investigation and to communicate the results thereof .

On DATE , in connection with the applicant 's petition of DATE ( see paragraphs CARDINAL and CARDINAL above ) , Captain PERSON took a statement from PERSON who declared that DATE and DATE he had participated in the security forces ' operations in the provinces of Şırnak and PERSON . He denied the accusation against him , stating that he had nothing to do with the matter and that he had no information about it . He added that , since he had taken up his duties with the gendarmerie , he had only been able to go on leave when given permission to do so and that his leave record could be checked at his duty station .

On DATE , in connection with the applicant 's petition of CARDINAL DATE , ORG PERSON took statements from PERSON , PERSON , PERSON and PERSON .

PERSON made the following statement :

“ On DATE of the incident I was eating lunch in the field below Ambar with PERSON , who has been abducted . A grey ORG - model car without licence plates with CARDINAL people in it drove towards us . They asked for our identity cards . After looking at them , they returned my card , but did not return that of my friend PERSON . 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 . PERSON got into the car without making any objection . The men said : ' PERSON will show us a field . We will bring him back ' , and they drove off towards PERSON . I then asked PERSON 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 PERSON and ORG 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 PERSON before and did not recognise them . CARDINAL was DATE and the other CARDINAL . Both were wearing hats and the older one was wearing glasses and had a moustache . ”

PERSON statement to İrfan PERSON reads :

“ On DATE of the incident I was working with my father in the field we leased . Our neighbour PERSON 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 QUANTITY between my father and myself . Then a grey ORG without licence plates with CARDINAL people in it came towards us . It stopped by my father . PERSON also came over . They began to talk to the CARDINAL of them . I was watching because I was further away . They asked my father and PERSON for their identity cards . They then returned PERSON card . The conversation between them was in NORP . Then , they took my father towards PERSON . There was no argument or struggle when they took him away . The men who came had a PERSON rifle . They wore hats and the older one had a moustache . Then PERSON asked me if I knew them . After answering that I did not know them , I ran to inform the village . Since DATE we have not heard anything from my father . ”

PERSON made the following statement :

“ PERSON is my son . He has been missing since the date of the incident . I have no direct knowledge of the disappearance of my son PERSON . I only know what my grandson PERSON told me when we came to the village on DATE of the incident . I do not know anything more than this . I do not know who abducted my son PERSON or for what reason . I do not think that the gendarmerie took my son . The only thing that I want from my ORG 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 PERSON or Expert PERSON . 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 any dealings with the gendarmerie until then . I want those who abducted my son to be found and punished . Apart from that , I do not wish to complain about anyone . ”

PERSON made the following statement to PERSON :

“ PERSON , who has gone missing , is my husband . On DATE of the incident he had gone to work in the field with my son PERSON . My son later came running back to the house saying that PERSON had been made to get into a car by CARDINAL people whom he did not know and had driven off towards PERSON . I did not see the abduction of my husband PERSON myself . I do not know who took my husband or why . We have been unable to get any news from him . All I want from the ORG 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 PERSON or Expert PERSON 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 [ address ] . My mother - in - law 's son PERSON works in GPE and has filed various petitions in order to find my husband . ”

On DATE the applicant wrote a letter to the President of ORG , claiming that his brother PERSON had been taken into detention by Captain PERSON and PERSON on the basis of incorrect information provided by PERSON . The applicant further stated that an officer of the anti - terrorism branch of the LOC police had investigated the case in DATE and that the ORG gendarmerie had admitted that his brother was being held by them . However , Captain PERSON had later told this police officer that the person who was detained was not PERSON but someone called PERSON , from PERSON . The applicant also described a telephone conversation he had had on DATE with Captain PERSON , who had replaced Captain PERSON as commander of the ORG gendarmerie and who had asked the applicant whether a ransom had been demanded . The applicant had told PERSON that no such demand had been made , but that he would be willing to pay a ransom . On DATE the applicant 's family had been contacted by someone demanding a ransom in exchange for his brother 's release . On DATE another person – identified by the applicant as PERSON , from GPE – contacted the family and said that PERSON was being held by the ORG gendarmerie and would be released if the applicant agreed to work as an informer for the authorities , which the applicant refused to do .

On DATE İrfan PERSON took a statement from PERSON , who declared that he had not seen the abduction of PERSON and that he knew nothing about it .

On DATE İrfan PERSON took a statement from Captain PERSON , who declared :

“ We received a report that PERSON from PERSON , 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 PERSON , but we could not find the men in question . I do not know who abducted PERSON 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 QUANTITY persons , but we were unable to establish their identities . We definitely did not apprehend or detain this man , as alleged . It has still not been possible to obtain any information about the abduction of PERSON . ”

İrfan PERSON submitted the report on his investigation to ORG on DATE . The report names PERSON as the complainant , PERSON , PERSON and PERSON as the persons accused of the offence of abuse of authority , and PERSON , PERSON , PERSON and PERSON as witnesses . The report contains , inter alia , a summary of the statements taken from the accused and the witnesses , and PERSON advisory opinion that the applicant 's claims remained unsubstantiated and 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 inquiry and that a decision not to prosecute would be appropriate .

In its unanimous decision of DATE , in which PERSON is named as the complainant , and Captain PERSON , ORG and PERSON as defendants , ORG found that the accusation of abuse of authority allegedly committed by former ORG gendarmerie district commander Captain PERSON , ORG and temporary village guard PERSON by having abducted PERSON in DATE 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 CARDINAL of the PERSON on the prosecution of civil servants and LAW .

NORP In its unanimous decision of DATE , following ex officio appeal proceedings , ORG held that the evidence available was insufficient to send the defendants for trial and thus upheld the decision of DATE by ORG .

On DATE Minister PERSON informed the applicant that his petition of DATE ( see paragraph CARDINAL above ) had been transmitted to ORG .

On DATE , on the basis of the applicant 's allegations set out in his petition of CARDINAL DATE , statements were taken from PERSON , PERSON , PERSON and PERSON at the ORG central gendarmerie command .

PERSON made the following statement :

“ I live in the village of PERSON with my family . PERSON is my paternal uncle . PERSON is my father . DATE we were irrigating the cotton field . I , my father and PERSON from the village of Üçtepe decided to take a break for lunch in the shade of a tree . A car approached us . It was a dark grey or grey ORG car without licence plates . It stopped near to us . CARDINAL men got out of the car . CARDINAL was short and wearing a hat . The other one was young , tall and wearing a hat and glasses . They asked my father and LOC 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 CARDINAL men replied that they were from the police . So my father and LOC showed them their identity cards . The CARDINAL men looked at the cards and gave GPE his card back . They did not give my father his card back . They spoke to us in NORP . They said to my father : ' Get into the car with us , you will show us a field . ' They made my father get into the car by force . They told me : ' We will bring your father back in TIME . ' 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 those men before . I have never seen them in the area . They do not resemble any person living in my village . Moreover , they never got out of the taxi . It was my father and PERSON who approached the car in order to talk to them . They were not military or gendarmes . They both had moustaches . They had weapons under the seats of the car . Afterwards , we went to the Bismil tribunal and made statements . A search for my father was begun , but , to date , it has not led to any news from him . ”

PERSON declared :

“ I live in the village of Üçtepe . I do not share any property with PERSON , but we have a cotton field in the village of PERSON . We planted cotton in the same place as him . I do not know his brother PERSON . I only heard his name in connection with the letter in question . This is what I can tell you about the events . In DATE I was irrigating the cotton we had planted . I went in the shade of a tree to have lunch . I noticed a dark grey - coloured taxi coming from the direction of PERSON . The vehicle had no licence plates . It stopped near to us . I was with PERSON and his son . We were asked to show our identity cards . We refused , as we did not know these QUANTITY men . A discussion took place between us and the QUANTITY men , but we still did not show our identity cards . They said they were policemen . So we asked them to show us their police identity papers . They did not do so . 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 PERSON kept silent , he did not speak . They returned my identity card to me and the card of PERSON . Subsequently , PERSON got into the car . They told me : ' Your friend will accompany us to a field and then he will come back . ' He left and did not return . I had never seen those CARDINAL men before . They were dressed in civilian clothes . I did not know them . They were both wearing hats . I had never seen them before in the area . ... The QUANTITY men were not officers of the ORG gendarmerie district command . As I have already pointed out , I had never seen them before . Nor had PERSON ; he did not behave as if he knew them . ”

PERSON stated that on the day in question her husband PERSON and their son PERSON had left in TIME to work in a field close to the neighbouring village of Sarıtoprak . TIME , 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 CARDINAL men in the car . PERSON further stated that this ORG taxi had already been seen several times in the village . Her daughter had told her that she had seen her father in that car on the NORP river bank and that she had thought that he was going somewhere . PERSON lastly stated that her family had alerted all the administrative authorities and the Bismil gendarmerie that her husband had disappeared , that they had made statements about the matter to the ORG public prosecutor and that her husband had been searched for but without any results to date .

PERSON declared that she was the mother of PERSON , that she was living with his family and that , in DATE , her son had left in TIME to irrigate the cotton field . Her grandson , who had accompanied PERSON , had come running home TIME , 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 TIME and that nobody had come back . PERSON further stated that nothing had been heard from her son since , that the Bismil gendarmerie had been informed and that the ORG public prosecutor had summoned and questioned her and her relatives .

On DATE ORG , acting on the ORG 's decision of CARDINAL DATE ( see paragraph CARDINAL above ) , requested ORG and ORG to gather and transmit information about the case of PERSON who , according to his brother PERSON , had been forcibly taken away by plain - clothes police officers and placed in detention . The respective ministries were requested to inform ORG whether PERSON 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 ORG .

By a letter of CARDINAL DATE , ORG , PERSON , informed ORG that an investigation into the facts alleged by the applicant had been carried out . The conclusions of this investigation were that PERSON had not been apprehended by Captain PERSON and GPE PERSON ( deceased in the meantime ) or by PERSON . No mention of a taking into custody of PERSON had been found in the custody records of the ORG gendarmerie district command . The victim had been abducted by CARDINAL unknown persons claiming to be policemen in a dark grey - coloured taxi without licence plates . The subsequent investigation of these leads had not led to any results . The matter had been raised before the judicial authorities and the ORG public prosecutor had conducted the necessary investigations . The CARDINAL eyewitnesses to the incident , PERSON ( PERSON son ) and PERSON had made statements in which they had declared that they did not know the identities of the persons who had abducted PERSON , that they knew gendarmerie captain PERSON as well as the other officers of the gendarmerie , and that the CARDINAL men who had abducted PERSON were certainly not gendarmes . The Governor finally stated that PERSON other allegations concerning the detention of his brother at the ORG gendarmerie command thus remained wholly unfounded .

In a letter dated “ DATE ” , the ORG gendarmerie regional commander , referring to a letter of ORG of DATE and a letter of the provincial gendarmerie command of CARDINAL DATE , informed the applicant DATE in reply to a complaint filed by PERSON and/or the applicant to ORG ( see paragraph CARDINAL above ) – that , according to the results of an investigation that had been carried out , PERSON had not been apprehended by gendarmes but had been abducted in a car without licence plates by CARDINAL unknown persons claiming to be plain - clothes policemen .

Appended to this letter were statements taken from PERSON and PERSON , who had seen the incident , including a certified statement made by PERSON on DATE to the ORG notary public . This statement reads :

“ While we were working in the cotton field situated within the boundaries of the village of PERSON in the district of GPE , province of ORG , we took shelter in the shade of a tree in order to take a rest . A taxi arrived from the direction of PERSON . It was a ORG - model car without licence plates . PERSON , his son PERSON and I were sitting in the shade . We were asked to show our identity cards . We refused . The men then announced that they were policemen and took our identity cards . After looking at them , they gave them back . They asked us to get into the car . PERSON and I were not willing to get into the car . PERSON 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 then . I had never seen the men who arrived in the car before , I do not know them . It is being said that they were gendarmerie captain PERSON and ORG , of the central gendarmerie . I know these CARDINAL men personally ; they are not the ones who abducted my friend . ”

On DATE , in reply to the petition filed by PERSON and/or the applicant ( see paragraph CARDINAL above ) , the President of ORG informed the applicant that the petition registered under no . CARDINAL had been examined . The Governor of ORG had conducted an investigation into the matter , in the course of which statements had been taken from PERSON and PERSON , who had both stated that gendarmerie captain PERSON and ORG had not taken PERSON away but that he had been abducted by CARDINAL 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 ORG public prosecutor and was still ongoing .

In a letter of CARDINAL DATE sent by fax , apparently on the basis of the applicant 's reply of DATE to the observations submitted by ORG ( see paragraph CARDINAL above ) , ORG requested the ORG public prosecutor to examine the various allegations set out in this reply of DATE .

On DATE the ORG public prosecutor informed ORG that the investigation into the incident referred to by the applicant had been registered under no . ORG in the preliminary investigation register at the ORG public prosecutor 's office . He further informed the ORG that , in the course of this investigation , statements had been taken from the complainants NORP and PERSON , from the witnesses PERSON and PERSON , and from the accused , ORG , former ORG gendarmerie commander PERSON and PERSON , and that a request for judicial assistance had been sent to ORG for the purposes of obtaining a statement from PERSON . The ORG public prosecutor lastly stated that , upon receipt of ORG statement , he would issue a decision .

On DATE ORG transmitted PERSON petition of CARDINAL DATE ( see paragraph CARDINAL above ) to the GPE 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 ORG and to PERSON .

On DATE , referring to an order of CARDINAL DATE , the ORG police headquarters informed the LOC Governor that PERSON daughter PERSON was living in GPE and transmitted a statement that had been taken from her on DATE in connection with the petition filed with ORG on DATE by PERSON .

In her statement PERSON declared that she had lived in GPE for DATE . She stated that PERSON , who DATE like her older brother PERSON DATE was living in PERSON , had had a quarrel with her brother in the café about a water pump in the course of which PERSON had threatened her brother with “ disappearance ” within DATE . DATE the ORG gendarmerie station commander , Captain PERSON , and another person had come to the village in a car without licence plates and asked for PERSON . He was told that PERSON was in the cotton field . Captain PERSON had then gone to the cotton field , where her brother was with his son PERSON and a man called GPE . Captain PERSON asked PERSON to show him the way to a place , made PERSON get into the car and left . Nothing had been heard from PERSON since . According to PERSON , Captain PERSON had handed PERSON over to the brothers PERSON and PERSON in return for money . Her mother Hüsna and her sister - in - law NORP knew this but , as Captain İzzettin was involved and as he was a ORG official , they could not tell the truth as they were frightened of being killed as well . PERSON had heard from them what she was now stating .

By a letter of DATE , sent in reply to PERSON petition of DATE ( see paragraph CARDINAL above ) , ORG of GPE informed PERSON that an instruction had been issued to the Batman Provincial Governor to investigate her claim and to inform ORG of the result of the investigation . Her petition was transmitted to the ORG Governor on DATE .

On DATE ORG wrote a letter with a similar content to PERSON in respect of another petition she had sent on DATE .

On DATE the office of the Governor of ORG informed PERSON , in reply to her petition of CARDINAL DATE ( see paragraph CARDINAL above ) , that an investigation had been conducted . According to the findings of this investigation , PERSON had been abducted from his field in DATE by CARDINAL 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 CARDINAL perpetrators were unknown in the region . The witnesses further specified that they personally knew Captain PERSON , GPE PERSON and PERSON and that these CARDINAL men were definitely not among the perpetrators . When the ORG gendarmerie command had been informed of the abduction , it was Captain PERSON himself who had given the necessary instructions , and the investigation conducted by the ORG public prosecutor was currently ongoing .

On DATE PERSON informed the ORG public prosecutor that she had seen her brother PERSON on an ORG news broadcast on DATE . Her brother 's name and surname had been mentioned in this broadcast . It was reported that her brother and CARDINAL others had been apprehended in ORG and taken into detention in GPE . She requested the ORG public prosecutor to investigate the matter and to inform her whether her brother was alive or dead . She sent an identical petition to the Governor of ORG on DATE .

On DATE the applicant submitted a petition to the President of GPE in relation to the disappearance of his brother PERSON . In this petition , the applicant stated that , in the ORG news broadcast on DATE TIME , it had been reported that CARDINAL persons had been apprehended and taken into detention in GPE and that CARDINAL of them was called PERSON . His family had then applied to the LOC police , the ORG public prosecutor , ORG , the public prosecutor at ORG , the ORG anti - terrorism police authorities and the ORG provincial gendarmerie authorities . They were told by the anti - terrorism branch that PERSON 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 .

NORP In a written statement dated DATE , PERSON declared that she had gone to the ORG public prosecutor to enquire about her brother PERSON . She was told that CARDINAL men by the name of PERSON had been apprehended but that their particulars ( 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 , PERSON , told her that her brother was alive , that he was in the hands of the ORG 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 this was why he was concealing himself from them .

NORP By a letter of DATE , PERSON informed the ORG public prosecutor that CARDINAL men had been sent to her house and that she had made statements about having seen her brother on television and having heard his name on television during a news broadcast in which it was reported that CARDINAL men had been apprehended in GPE . The public prosecutor had , on her behalf , written and sent a petition to ORG . 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 GPE .

By a letter of DATE , the applicant 's representative informed ORG that PERSON , PERSON and PERSON had been watching the news on ORG on DATE around TIME when the newsreader announced that QUANTITY men had been apprehended in GPE , CARDINAL of whom was named as PERSON . Pictures of the apprehended men had been shown and they had recognised PERSON as CARDINAL of them . The women had continued to watch television TIME and they had seen him again the following day at TIME The applicant 's representative further informed the ORG that , on DATE , the CARDINAL women had gone to the ORG public prosecutor to report their sighting on television of PERSON and that , on DATE , PERSON had filed a petition about the matter with the ORG public prosecutor and , on DATE , with the Governor of GPE . The family had further attempted to obtain a video recording of the ORG news broadcast of DATE , but without success . Referring to the applicant 's petition of CARDINAL March CARDINAL to the President of GPE , the applicant 's representative finally informed the ORG that , so far , no information had been obtained from the authorities contacted by the applicant about the whereabouts of PERSON .

Appended to this letter were , inter alia , PERSON petitions of CARDINAL and DATE ( see paragraph CARDINAL above ) , a statement dated DATE in which PERSON had declared that she had seen her missing brother on television on DATE , the applicant 's petition of DATE ( see paragraph CARDINAL above ) , PERSON statement of DATE ( see paragraph CARDINAL above ) , an undated statement by PERSON in which she declared that she had seen her brother PERSON on a television news broadcast on DATE around TIME and DATE around TIME , an undated statement by PERSON stating that she had seen her husband PERSON on television DATE , and an undated statement by PERSON stating that , quite a long while after his disappearance , she had seen her son PERSON on television .

On DATE , having taken note of the letter of DATE and the appended documents , the ORG requested the ORG to submit a copy of the ORG news broadcasts referred to by the applicant 's representative , to confirm that PERSON had in fact been shown and named during these broadcasts , to inform ORG circumstances of PERSON arrest , and to confirm whether he was currently being detained and , if so , to indicate in which detention facility .

By a letter of CARDINAL DATE , in response to the ORG 's request of DATE , ORG informed ORG that a person named PERSON ( son of PERSON and PERSON , born in DATE in ORG ) had been detained on DATE and was currently serving a prison sentence in Gaziantep , and that a person named PERSON ( son of PERSON and PERSON , born in DATE in Batman ) had been detained on DATE and was currently being held in pre - trial detention in Batman .

On DATE , in response to the complaint filed by PERSON , the ORG public prosecutor decided not to open an investigation . This decision reads :

“ The complainant stated in her petition that her brother had disappeared DATE and that nothing had been heard from him since , that she recognised CARDINAL of the men shown on a news programme in DATE about persons apprehended during operations conducted against the terrorist organisation ORG , that this man 's name was the same as her brother 's , 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 .

It has been stated in ORG decision of non - jurisdiction dated DATE that the person detained in the province of GPE – a man called PERSON , born in DATE and the son of GPE and DATE is not the complainant 's brother , and it appears from the above decision of non - jurisdiction and from the register of births that the person detained in GPE , who was put on trial by ORG of ORG , is not the complainant 's brother .

It is therefore concluded , in accordance with LAW and subject to the right of appeal , that there is no basis for pursuing the matter ... ”

On DATE the Government informed the ORG that the person apprehended and named in the ORG news broadcast was not the applicant 's brother and that there were several persons in detention with similar names to the applicant 's brother . According to the Government , it was in all probability a case of a confusion of names .

On DATE the ORG reminded the Government of its still outstanding request of DATE to be given the video recording of the ORG news broadcast referred to by the applicant 's representative .

NORP In a statement dated DATE , submitted to ORG on DATE , PERSON declared that she had seen her brother PERSON in an ORG news broadcast on DATE at TIME and DATE at TIME

On DATE the ORG requested the applicant 's representative also to submit a video recording of the news broadcast referred to by the applicant 's relatives .

By a letter of DATE , the ORG administration informed the applicant 's representative that it could not grant his request . The required footage could only be made available upon a request made by the applicant himself . On DATE the applicant sent by fax a request to the ORG administration to be provided with a video recording of the ORG news programmes broadcast on DATE at TIME and DATE at TIME

NORP In the meantime , on DATE , the Government had submitted to the ORG a video recording containing the ORG news broadcasts of CARDINAL DATE at TIME and TIME

On DATE the applicant sent a reminder of his request of DATE to the ORG administration , explaining that the video recording submitted by the ORG to the ORG did not contain the relevant news broadcasts .

On DATE the applicant informed the ORG that the video recording submitted by the Government did not contain the relevant news broadcasts , namely , those of DATE at TIME and DATE at TIME

On DATE the ORG requested both parties to submit a video recording containing the ORG news broadcasts of CARDINAL DATE at TIME and DATE at TIME

On DATE the applicant informed the ORG administration that he had received the video recordings of the ORG news broadcasts of CARDINAL DATE at TIME and DATE at TIME , but that these did not contain the relevant news item . He requested the ORG administration to search for the news item reporting the arrest of CARDINAL men in ORG and their subsequent taking into detention in Muş or Van in the television news programmes broadcast DATE and DATE .

By a letter of CARDINAL DATE , in reply to a request made by the ORG in DATE , a lawyer employed by ORG informed the ORG that their request to be provided with a copy of the ORG news programmes broadcast on DATE at TIME and DATE at TIME could not be met as it concerned broadcasts of DATE . It was pointed out that , under LAW of PERSON no . ORG and LAW , broadcasting organisations were obliged to keep copies of each broadcast programme for DATE . The Government informed the ORG of this outcome on DATE .

NORP Since DATE , serious disturbances have raged in south - east GPE between the security forces and the members of the ORG , a proscribed terrorist organisation under NORP law . This confrontation has , according to the Government , claimed the lives of QUANTITY of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern provinces of GPE have been issued under the PERSON on the state of emergency ( PERSON no . CARDINAL of DATE ) and were in force at the material time . The first , Decree no . CARDINAL ( of CARDINAL DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - east GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and the gendarmerie ORG are at the disposal of the regional governor .

The second , Decree no . CARDINAL ( of DATE ) , 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 LAW

“ 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 ORG for damage suffered by them without justification . ”

Article CARDINAL of LAW 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 . ”

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 ORG 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 .

LAW makes it a criminal offence :

– to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

– to issue threats ( LAW ) ;

– to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;

– to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) or murder ( Article CARDINAL ) .

For all these offences , complaints may be lodged , under Articles CARDINAL and CARDINAL of LAW , 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 , in accordance with LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the alleged perpetrator of a crime was a ORG 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 ORG ; 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 LAW .

Any illegal act by a civil servant , be it a criminal offence or a tort , which causes pecuniary or non - pecuniary damage may be the subject of a claim for compensation in the ordinary civil courts . Under LAW , 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 . Pecuniary loss may be compensated by the civil courts under LAW and awards may be made for non - pecuniary damage under LAW .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

NORP 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 . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE 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 ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE PERSON was questioned by the police after shouting from the window of the applicant ’s room . She stated that she had met the applicant that afternoon in a public house . After visiting further pubs she had accompanied him to his rented room where , she alleged , he had attempted to rape her . On DATE PERSON was again questioned by the police and criminal proceedings were instituted against the applicant .

TIME and TIME on DATE PERSON was questioned by the investigating judge in the presence of the applicant , his lawyer , a psychiatric expert Mr H and the court stenographer . The applicant and his lawyer were given the opportunity to put questions to PERSON and the hearing was recorded on video . PERSON stated that in the course of the attempted rape the applicant had hit her across the left temple , grabbed her by the hair and threatened her with a knife . In the course of the struggle she had injured her hand on the knife . PERSON also stated that she had worked as a prostitute DATE , but said that the applicant had been unaware of this . At the end of the examination the applicant ’s counsel stated that she had no further questions to put to PERSON Subsequently the questioning was transcribed and the transcript ran to CARDINAL pages .

On DATE the Graz Regional Court ( PERSON ) convicted the applicant of attempted rape with violence . At the trial PERSON refused to give evidence . The applicant appealed to ORG ( Oberster Gerichtshof ) , which upheld his plea of nullity and quashed the conviction . It found that the proceedings before ORG were defective LAW CARDINAL of the Code of Criminal Procedure ( Strafprozeßrechtsordnung ) as ORG had based its findings on PERSON statements to the police , which had not been read out at the trial .

ORG then resumed the proceedings in a new composition . At hearings on DATE , CARDINAL DATE , DATE and DATE , it heard evidence from the applicant and further witnesses . These witnesses included PERSON , a waiter working in CARDINAL of the pubs which the applicant had visited with PERSON , PERSON , the innkeeper of another pub , and Mr L , PERSON partner . In the course of their testimony these witnesses made inter alia the following statements : PERSON , who had previously stated that he had noticed a blue mark on PERSON left temple , now said that he did not know exactly where the blue mark was and that he had not seen PERSON face . PERSON stated that PERSON behaviour often became erratic after she had consumed alcohol , that she frequently sought refuge from her partner and later invented a pretext , that her partner beat her and that she often had black eyes . Mr L stated that PERSON had worked as a prostitute but had stopped doing so DATE prior to the incident .

ORG heard evidence from CARDINAL police officers who had been called to the scene . All of them had noticed a knife wound on PERSON hand . CARDINAL officers had noticed a slight swelling on her temple . Another police officer had noticed loose strands of PERSON hair including some on the applicant ’s clothes .

ORG also heard evidence from Mr H , who had submitted an expert opinion on the question of the extent to which PERSON alcohol level at the material time had affected her ability to remember the events . Mr H stated that PERSON statements were likely to be true .

PERSON was invited to give evidence while the applicant , pursuant to LAW , was taken into an adjacent room . However , as LAW subsection CARDINAL of LAW entitled her to do , PERSON refused to give evidence and requested that the statements she had made to the police and the investigating judge be read out instead . The court granted her request . The ORG also granted the applicant ’s request for the video recording of her deposition before the investigating judge to be shown . However , when played , the video recording turned out to be a blank tape .

The applicant contested PERSON credibility . He argued in particular that her account of how she had come to be in his room and of her conduct after the alleged offence was not plausible and requested the court to inspect the scene . He further contended that there were a number of discrepancies between the events as described by PERSON to the police and those she had described to the investigating judge , as well as between her evidence and the evidence given by the witnesses , PERSON , PERSON and PERSON , at the trial . He therefore requested the court to call PERSON again and , to the extent his opinion was of relevance for the court , the expert witness PERSON The applicant submitted that PERSON should also give evidence on the methods he had used to assess PERSON credibility and the kind of questions he had asked when she appeared before the investigating judge . The applicant argued , lastly , that , in view of the large number of contradictions in the evidence given by PERSON , who was the sole prosecution witness , it was essential for the court to view the video recording of her hearing in order to be able to assess her credibility . He added that , if the recording could not be shown , then he should be given the benefit of the doubt and acquitted .

The court dismissed the applicant ’s requests for the further taking of evidence . It did not consider it useful to visit the scene as the room in question was no longer in the state it had been in at the material time . Furthermore , photographs of the LOC could be seen in a file prepared by the police , and it was for the court to analyse the inconsistencies between PERSON and the applicant ’s differing statements . For the latter reason it also refused to put further questions to Mr H. Lastly , it dismissed the applicant ’s request for PERSON to be called again to give further evidence as she had refused to give evidence at the trial and there was no indication that she would change her mind .

On DATE ORG , sitting in a formation of CARDINAL professional judges and CARDINAL lay judges , convicted the applicant of attempted rape with violence . It relied partly on PERSON statements to the police and the investigating judge . It noted that PERSON had been under the influence of alcohol to a considerable degree at the time of the events . The court accepted the applicant ’s argument that PERSON had accompanied him to his room voluntarily . It found , however , that despite PERSON inability to recall the events immediately before and after the attempted rape , her allegations of assault were credible . It noted in this regard that they were consistent with the other evidence obtained in the proceedings , namely the injuries to PERSON witnessed by the police officers . The court did not believe the applicant ’s account that he had invited PERSON for drinks all afternoon and then to his room out of sympathy for her . It further noted that the applicant could not give any convincing reason for the fact that strands of PERSON hair had been spotted by a police officer on his clothes . Furthermore , it did not believe the applicant ’s assertions that PERSON had injured herself in a fall on the way from the pub to his flat or that she had not suffered any other injuries , in particular the wound to her hand . Having regard to PERSON injuries and to the applicant ’s criminal record of CARDINAL previous convictions , it sentenced the applicant to CARDINAL GPE imprisonment . Referring to a psychiatric expert opinion , it further ordered that he be detained in an institution for mentally ill offenders .

The applicant filed a plea of nullity with ORG ( Oberster Gerichtshof ) in which he complained inter alia about the dismissal of his requests for further evidence to be taken . He submitted in particular that the photographs to which ORG had referred did not show the room as it was at the time of the events . He argued that in view of the various inconsistencies in PERSON description of the events , ORG should have visited the scene in order to stage a reconstruction . He further argued that the proceedings had been conducted contrary to the direct evidence rule ( GPE ) in that the trial court had not seen the video recording of the hearing at which the depositions were taken . In view of this and of new evidence that had come to light at the trial , namely the statement by PERSON that PERSON frequently made up stories as she feared being beaten up by her partner , the trial court should have recalled PERSON or , at least , allowed further questions to be put to PERSON In the applicant ’s submission , the proceedings had therefore violated his right under LAW to conduct his defence effectively .

On DATE ORG rejected the applicant ’s plea of nullity . It noted that no inspection of the scene was necessary as the applicant ’s intention was to prove that PERSON allegations concerning the way to his room and her behaviour after the attempted rape were not true ; however , these facts had not been relevant to the court ’s decision . As regards his request to call PERSON again , the applicant had not submitted any reasons why PERSON would be prepared to give evidence after refusing to do so at the trial on DATE . ORG also found that the applicant ’s request to hear further evidence from Mr H had not been sufficiently substantiated as it was conditional . In any event , ORG had not relied on Mr H ’s expert opinion in its judgment . ORG noted , lastly , that ORG had dealt with the inconsistencies between PERSON statements to the police and to the investigating judge and between her statements and ORG statement in the context of its assessment of evidence , an assessment that appeared logical .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal , but granted ORG cross - appeal and increased the sentence to CARDINAL years’ imprisonment . That decision was served on the applicant ’s counsel on CARDINAL DATE .

Article CARDINAL of the DATE Code of Criminal Procedure ( Strafprozessordnung ) , provides that all evidence must in principle be taken at the trial . In particular , witnesses and experts must make their statements orally before the court . Documents may only be used as evidence if they have been read out in court .

Article CARDINAL lays down that court transcripts of the questioning of witnesses , other official documents in which statements of witnesses have been recorded and technical recordings of the questioning of witnesses may only be read out or shown at the trial if the witnesses concerned are entitled to refuse to give evidence at the trial ( Article CARDINAL ) and the parties have had the opportunity to participate in the questioning ( Article CARDINALa and CARDINAL ) .

Article CARDINALa § CARDINAL of the DATE Code of Criminal Procedure provides for an adversarial hearing before the investigating judge if , on factual or legal grounds , there is reason to fear that the hearing of a witness will not be possible at the trial . The public prosecutor , the defendant and the defendant ’s lawyer should be given an opportunity to attend the hearing and question the witness .

Article CARDINAL § CARDINAL subsection CARDINAL states that victims of sexual offences by the accused are exempted from giving evidence at the trial if there has been an adversarial hearing of the victim in the preliminary proceedings . This provision was introduced as part of the DATE reform of LAW . Prior to this reform , only minors aged under CARDINAL at the time of an alleged sexual offence were exempted from giving evidence at trial . The relevant explanatory notes to the government bill ( Erläuterungen PERSON ) state :

“ In fact it is to be assumed that the manner in which and date on which the victim gives evidence in criminal proceedings are closely linked to the context of the conflicting aims of victim protection , defence rights and the interest of prosecution . The DATE reform of LAW has already taken account of the necessary rights for the defence to participate in the proceedings and to question [ the victim ] and these are also relevant to the provisions of LAW . However , it would also appear to be in the interest of victims of sexual offences aged over CARDINAL for them to be questioned only once , as , in general , making a statement places a heavy mental burden on them . On the other hand , it can not be overlooked that if the victim is only questioned once and at DATE , there is a danger that it will not be possible to obtain complete consistency between this testimony and the results of subsequent investigations or examinations ... However , the argument in favour of nevertheless increasing procedural safeguards for the alleged victims of sexual offences is the danger of the court proceedings causing damage and traumatisation [ to the victim ] ( secondary victimisation ) which has , incidentally , been highlighted by all the experts who work with such victims . When responsibly weighing these interests of the victim against the interests of ascertaining the facts , preference must nevertheless be given to the protection of the victim , especially since it is usually possible to at least partly counterbalance the possible negative effects on evidence by corresponding ‘ case management’ and since an examination at a potentially DATE is not only in the interest of the witnesses but also promotes the purpose of the procedure , as recollections will still be fresh . ”

Article CARDINAL of the CARDINAL Code of Criminal Procedure provides that the presiding judge at the trial may exceptionally order an accused to be held in an adjacent room while a witness gives evidence . The accused must be informed of all statements made in his absence .

On DATE the Code of LAW ( Strafprozessreformgesetz ) entered into force . While this act brought major changes in particular for the proceedings at the pre - trial stage , the above provisions remained essentially unchanged , even though the numbering of some of the Articles described changed .

Article CARDINAL of Council Framework Decision no . CARDINAL of DATE on the Standing of Victims in Criminal Proceedings requires each Member State inter alia to supply evidence and to take appropriate measures to ensure that its authorities question victims only in so far as necessary for the purpose of criminal proceedings . Articles CARDINAL and CARDINAL ) require each Member ORG to make every effort to ensure that victims are treated with due respect for their personal dignity during proceedings , to ensure that particularly vulnerable victims benefit from specific treatment best suited to their circumstances and to ensure that where there is a need to protect victims , particularly those most vulnerable , from the effects of giving evidence in open court , victims may , by decision taken by the court , be entitled to testify in a manner enabling that objective to be achieved , by any appropriate means compatible with its basic legal principles .

In its judgment of DATE in case no . C-CARDINAL/CARDINAL , ORG stated that the objectives of these provisions consist , in particular , in ensuring that particularly vulnerable victims receive “ specific treatment best suited to their circumstances ” and the benefit of special hearing arrangements that are capable of guaranteeing to all victims treatment which pays due respect to their individual dignity and gives them the opportunity to be heard and to supply evidence , and in ensuring that those victims are questioned “ only insofar as necessary for the purpose of criminal proceedings ” . Where national legislation allows testimony to be given only once , during the preliminary enquiries , a national court should be able , in respect of particularly vulnerable victims , to use a special procedure if it best corresponds to the situation of the victims and is necessary in order to prevent the loss of evidence , to reduce the repetition of questioning to a minimum and to prevent the damaging consequences , for the victims , of their giving testimony at the trial .