Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);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 - Degrading treatment) (Substantive aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - General principles of international law);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicants , Mr PERSON , Mr PERSON and PERSON , are NORP citizens of NORP origin and were born in DATE , DATE and DATE respectively . They are the father , brother and mother of PERSON , PERSON and PERSON , who were killed , allegedly by members of the security forces , on DATE . At the time of their deaths the applicants’ relatives were respectively CARDINAL , DATE and DATE .

The facts of the case , particularly concerning events which took place on DATE , are disputed by the parties .

The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Section D ( paragraphs CARDINAL - CARDINAL ) .

The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . It appointed CARDINAL delegates who took evidence in GPE from DATE to CARDINAL DATE . They interviewed the second and the third applicants as well as the following CARDINAL witnesses : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , GPE , Ersan ORG , PERSON , PERSON , PERSON , PERSON and finally PERSON . A summary of the oral evidence given by these witnesses is found in Section E below ( paragraphs CARDINAL - CARDINAL ) .

The first applicant , PERSON , and ORG were also summoned but did not appear before the ORG ’s delegates . Mr Akkum ’s lawyer explained that PERSON feared for his life and that for that reason he did not want to give evidence before the delegates . ORG , an alleged eye - witness to the events in question whose name was put forward by the applicants , also did not wish to give evidence before the delegates . She did not give any reasons for this . Finally , PERSON , who was the mayor of the town of DATE at the relevant time and whose name was put forward by the applicants , failed to appear before the delegates .

NORP The applicants PERSON and PERSON are from the village of GPE , located within the administrative jurisdiction of the district of NORP , near ORG . PERSON is from the hamlet of GPE in the village of ORG , which is also in the NORP district .

NORP The village of GPE and the hamlet of GPE are located in a fairly mountainous region and QUANTITY walk from each other . Close to GPE and TIME walk from GPE is the Kurşunlu plain . This plain is completely flat with very little growth . It is surrounded , however , by mountains , which are forested in part . The plain and the surrounding mountainside were used by the LOC villagers for grazing their animals . To the north of the LOC plain , CARDINAL ORG walk from GPE , is the village of Çevrecik . To the south - east of GPE is the village of GPE , where on DATE security forces burned down the houses of CARDINAL villagers , including that of the village headman ( muhtar ) PERSON ( see ORG and Others v. GPE , judgment of DATE , Reports of Judgments and Decisions DATE ) .

On DATE PERSON was muhtar of GPE . His son PERSON did not live permanently in the village with him ; however , on DATE , PERSON was on CARDINAL of his visits to the village . As it turned out , while PERSON was in the village it fell to him to undertake his duties as a shepherd according to the village rota . There were CARDINAL villagers in all assigned to look after the animals belonging to the villagers : PERSON , PERSON and QUANTITY women , PERSON and ORG .

At TIME on DATE PERSON and PERSON left GPE together to take the village animals out to graze on and around the LOC plain . Almost immediately after they had left the village , the CARDINAL women shepherds also left GPE with their herds to go to the LOC plain . The CARDINAL ORG took their herds up onto the mountainside surrounding the plain , whereas the CARDINAL women stayed with their herds on the plain so that the herds would be kept separate .

They had not been on the plain for long when it became clear that a military operation was going on . As the CARDINAL Mehmets were on the mountainside , they came across the path of the soldiers first . They were surrounded by soldiers who had hidden on the mountainside .

Hacire and GPE were on the plain when they realised that there was an operation going on and that the soldiers were hidden throughout the surrounding mountainsides . They came across the soldiers when they were close to the edge of the plain . Some of ORG ’s goats had begun to wander away from the plain into the forested area on the mountainside . ORG had pursued the goats to prevent them from going into the shrubbery as she feared she would lose sight of them on account of her poor eyesight .

However , at the edge of the forested area , CARDINAL soldiers stopped ORG . They told her and GPE to forget about the animals and to go away from the plain and go home . PERSON began to leave but ORG insisted that she wanted to get her goats before she returned to the village . Her protests to the soldiers earned her a beating from the soldiers with their rifle butts . Eventually PERSON gave in and turned around to follow GPE in the direction back to the village . After they returned to the village they told PERSON that they had seen PERSON , who had been calling out as he was being hit by the soldiers . PERSON and PERSON were last seen alive on the mountains , where there were a large number of soldiers .

As the QUANTITY women were crossing the length of the plain to return home , they came across PERSON , who was on his horse with his CARDINAL children . His mother , PERSON , his wife GPE , his sister PERSON and finally PERSON , a relative , were following him on foot . They were going to the village of Çevrecik to visit their relatives .

Derviş passed by ORG and GPE on the horse but ORG and GPE stopped the women , CARDINAL of whom they knew to be PERSON . They told PERSON that she should not continue her journey any further , that there were soldiers everywhere and that ORG might be arrested by the soldiers . ORG , meanwhile , had halted the horse CARDINAL or QUANTITY further along the path and had called back to see what had happened to hold up the party of women . When his mother told him what the women had said about the soldiers , ORG replied that it would be all right .

NORP However , at that moment the soldiers who had told PERSON to go home came out from the edge of the forested area and approached ORG . They told him to dismount from his horse and to show his identity card . ORG dismounted and handed the children to his wife and to his mother . He tried to hand over the horse but the soldiers prevented him from doing so . The soldiers looked at ORG ’s identity card and put it back in his pocket . The soldiers then took hold of him from either side and led him towards the mountainside . The women were left watching .

The soldiers hit ORG on his shoulder with their rifle butts . There was then a single pistol shot and almost immediately afterwards firing began to take place from all around the plain . PERSON saw a flame hitting her son PERSON . There was dust everywhere as bullets caused the dust from the plain to rise . The women , terrified , ran to take shelter and returned to their village . They were not able to approach ORG ’s body before the continuous firing began .

The women returned to their own villages . On DATE PERSON went to GPE to see if anyone would accompany her to look for her son . However , nobody would accompany her . The villagers had already tried in TIME to approach the area of the plain to look for PERSON and PERSON , who had failed to return to the village the previous evening , but had only seen a multitude of animal corpses and had returned to the village before completing their searches for the CARDINAL Mehmets .

PERSON spoke to PERSON wife but PERSON himself had gone to the town of DATE to make enquiries about his son . PERSON had gone with him to enquire about the fate of his brother . They wanted to know what had become of them after the soldiers had surrounded them on the hills by the plains . They met PERSON , the mayor of DATE , who went with them to NORP central gendarme station . A lieutenant - colonel told them that the soldiers had not yet returned . They stayed in NORP that night .

The following morning , on DATE , they went to the office of the NORP public prosecutor . When they telephoned the village at TIME there was still no word about the fate of the CARDINAL Mehmets . However , when they telephoned again at TIME they were told that the bodies of PERSON and PERSON had been found . They informed the prosecutor and asked him to send a car to collect the bodies . PERSON returned to the village to collect the bodies .

The villagers had found the body of ORG where he had been killed and the body of PERSON on the slopes surrounding the LOC plain . The corpse of ORG ’s horse was also on the plain . There were several dead animals around , as well as spent cartridges .

The villagers took the bodies of PERSON and PERSON to their respective villages . PERSON arrived by taxi to take the bodies to NORP so that autopsies could be conducted .

PERSON did not learn of the fate of his son until DATE , when he went to the police headquarters in the city of ORG . On DATE he had been told by a gendarme captain that CARDINAL bodies had been found in ORG and that CARDINAL of them might be that of his son . While at the police headquarters he was shown the photographs of CARDINAL bodies , CARDINAL of which was that of his son , PERSON . The body was severely wounded and his ears had been cut off . The skin on his upper left arm had been cut away .

When the necessary legal formalities had been completed , PERSON collected the body , which had been exhumed from the ORG cemetery where it had been buried because no one had claimed it . He took the body back to the village for burial .

On DATE the gendarme forces of ORG carried out a military operation against the militants of the ORG near the village of ORG , in ORG . PERSON died during the fighting which broke out between the armed militants of the ORG and the security forces . Several documents from the ORG , ammunition for firearms and stocks were seized at the site of the incident .

Proceedings which had been instituted against PERSON by the public prosecutor of ORG were discontinued after his death .

Also on DATE , a violent clash broke out near the village of ORG between the gendarme forces of NORP and the armed militants of the ORG . Mr PERSON and PERSON died during this clash .

At the end of the preliminary investigation instituted in respect of the killing of the QUANTITY persons , an indictment was filed with ORG on DATE . CARDINAL gendarme soldiers and officers were charged with the offence of killing CARDINAL person .

The criminal case was transferred to ORG attached to the CARDINALth ORG ( the “ Military Court ” ) . Unsuccessful efforts were made by that court to trace the applicants and the witnesses named by them . It was only possible to trace CARDINAL of those witnesses , who subsequently denied having been eyewitnesses to the events . On DATE ORG acquitted the gendarmes of the killing of the ORG relatives .

The following information appears from the documents submitted by the parties .

A handwritten on - site report of a military operation was drawn up and signed by CARDINAL gendarme officers and soldiers on DATE . At the top of the document is a reference to the so - called Sancak-CARDINAL Operation Plan of DATE . A copy of this plan has not been made available to either the ORG or the ORG .

The report states that CARDINAL gendarme commando teams from ORG , CARDINAL gendarme commando teams from ORG , CARDINAL gendarme commando teams from ORG , CARDINAL gendarme commando teams from GPE , CARDINAL gendarme commando teams from ORG , CARDINAL gendarme team from ORG , CARDINAL gendarme team from ORG and a number of gendarme commando teams from Dicle began a planned military operation at TIME on DATE . The operation was codenamed PERSON .

At TIME an armed clash began on the NORP hills , near the village of GPE , at coordinates ( CARDINAL , DATE ) , between a group of terrorists and CARDINAL gendarme commando teams from ORG . The clash continued intermittently until TIME that day . In the course of the clash the soldiers returned fire at the terrorists , who were hiding behind a herd of animals owned by villagers from GPE and were firing at the soldiers . A number of animals were killed during the clash .

A body was found during the search that was carried out at dawn TIME by the soldiers . It was deemed by the soldiers to be that of a person assisting and harbouring the terrorists . There were no identity documents on the body . During the search , the soldiers also recovered a number of spent cartridges , including CARDINAL spent GCARDINAL rifle cartridges , CARDINAL spent PERSON rifle cartridges and CARDINAL spent ORG rifle cartridges .

A shelter was also discovered at coordinates ( CARDINAL , DATE ) and was destroyed by the soldiers , together with the food hidden in it . There were no casualties among the soldiers who took part in the operation which ended at TIME on DATE .

It appears that this on - site report was typed up at a later stage . Both versions of the report were submitted to the ORG . However , there are CARDINAL contradictions between the handwritten and the typed version . According to the typed version of the report , CARDINAL gendarme commando teams from LOC participated in the operation , whereas according to the handwritten version , CARDINAL such teams from PERSON took part . Also , according to the handwritten report , CARDINAL gendarme commando teams from ORG participated in the operation but the typed version makes no reference to the teams from ORG .

Both reports and the spent cartridges found in the operation area were handed over to the PERSON public prosecutor ’s office on CARDINAL NovemberCARDINAL by Captain PERSON , commander of the ORG gendarme headquarters .

Another military report was drawn up and signed on DATE by CARDINAL persons , including Colonel PERSON ( see paragraphs CARDINAL to CARDINAL below ) . This report was sent to a number of authorities , including the office of ORG . It states that the body found after the operation was that of a person who was either a member of the terrorist organisation or was harbouring members of that organisation . The body was later handed over to the public prosecutor in the town of PERSON for the establishment of its identity and for an autopsy to be carried out .

This report contradicts both the handwritten and the typed versions of the on - site operation report . According to the report , CARDINAL gendarme commando team from GPE , CARDINAL gendarme commando teams from ORG and CARDINAL gendarme teams from ORG took part in the operation . It makes no reference to the gendarme team from ORG but states that CARDINAL gendarme teams from GPE , which were not mentioned in either of the versions of the earlier report , participated in the operation . Furthermore , according to this report , the coordinates of the terrorist shelter were ( CARDINAL , CARDINAL ) and not ( CARDINAL , DATE ) as stated in the on - site report .

A body examination report was drawn up and signed on CARDINAL DATE by PERSON , the public prosecutor of PERSON , and Dr PERSON .

The report states that the body was that of a man of DATE . Both ears were missing and there was an entry hole above the stomach and another one on the right side of the back of the body . A bullet had entered the left hand and had exited . There were also a large number of other injuries , possibly caused by shrapnel , as well as a CARDINAL - long bullet injury with burn marks . The doctor established the cause of death as shooting . As the cause of death was thus established , it was decided not to carry out a full autopsy .

There were no documents on the body to help establish its identity . It was subsequently buried after a burial licence had been issued by the PERSON public prosecutor on CARDINAL DATE .

On DATE PERSON , the first applicant , submitted a petition to the public prosecutor ’s office in the town of DATE , near GPE . He informed the prosecutor that his son PERSON and another villager , PERSON , had taken their animals out to graze early in the morning on DATE and that they had failed to return to their homes in the evening . The villagers had been scared to look for them since there were soldiers everywhere . However , on DATE he and a number of his fellow villagers had gone to look for the CARDINAL missing persons and they had found the bodies of PERSON and PERSON , the latter with his hands tied behind his back . PERSON asked the prosecutor to assist him in bringing the bodies into the town .

DATE . On DATE PERSON , the son of PERSON , and PERSON , a cousin of PERSON , each submitted a petition to the NORP public prosecutor and informed him that their relatives had been killed by members of the security forces . They asked the prosecutor to carry out autopsies on the bodies .

On DATE PERSON , the public prosecutor of NORP , and PERSON carried out external examinations of the bodies of PERSON and PERSON . During the examination , PERSON son identified his father ’s body and a cousin identified PERSON body . According to the report , the cause of death of PERSON , who was DATE , was a bullet which had entered from behind the right ear and had exited above the left ear . The death of PERSON , who was DATE , had been caused by CARDINAL bullets which had entered and exited the trunk of his body . As the causes of the deaths were established it was decided not to carry out full autopsies on the bodies .

NORP The applicants’ lawyers submitted to the ORG a report which was prepared on DATE by PERSON , a forensic expert at ORG and ORG in GPE . The findings of this report were based on a number of photographs of the bodies of PERSON and PERSON .

Dr NORP report lists the extensive injuries to the body of PERSON , which include grazes and bruises to the face , mutilation of both ears , a collection of bruises to the front of the neck , extensive bruising to the left lower chest and abdomen , and a circular hole in the right armpit . It was also recorded in this report that , after death , skin had been excised from the chest , the upper abdomen , the left upper arm , and the back of the left hand . PERSON concluded that the injuries to the trunk could have been caused by a number of blows to this region with a long , possibly rounded , stick or bar . Furthermore , kicking or stamping on this region could not be ruled out . Such impacts in this area could have resulted in a rupture of the spleen , which was likely to have been fatal without prompt medical attention . The injuries to the face could have been due to blows , possibly from a fist . PERSON further observed a gunshot entry wound on the upper part of the left ear of PERSON , the firearm having been discharged close to the head .

On DATE PERSON was shown a photograph of the body which had been buried by the authorities in ORG ( see paragraph CARDINAL above ) . Mr Akkum identified the deceased person as his son PERSON . The following day the body was handed over to him at the cemetery .

On DATE Major Ersan Topaloğlu , the commanding officer of the NORP gendarme command , informed the prosecutor ’s office in NORP that the place where the bodies of PERSON and PERSON had been found was within the jurisdiction of the town of ORG . Major PERSON further informed the prosecutor that he had understood from radio communications that a planned operation had been carried out in the area where the bodies had been found .

On DATE PERSON and PERSON made detailed statements to the ORG branch of ORG and described their eyewitness account of the events leading up to the killing of PERSON . On DATE GPE and PERSON also gave statements to ORG .

On DATE the ORG public prosecutor PERSON examined the documents relating to the preliminary examination and decided that he lacked jurisdiction to investigate the killing “ on DATE of an unidentified terrorist during the clash between members of the ORG and soldiers on the NORP hills ” . Mr Turan sent this decision to the prosecutor ’s office at ORG .

On DATE the prosecutor at ORG returned the decision to Mr ORG and asked him to complete the investigation file , enclose the photographs of the body and then send the file back .

On DATE Mr ORG asked the PERSON gendarme headquarters if there were any photographs of the body at the headquarters .

On DATE the ORG chief public prosecutor sent PERSON ORG the documents concerning the establishment of the identity of the body of PERSON ( see paragraph CARDINAL above ) .

On DATE Mr Turan informed the prosecutor at ORG that the name of the dead person was PERSON .

On DATE Mr Turan , notwithstanding the information he had received from the ORG chief public prosecutor on CARDINAL DATE , asked the commander of the ORG gendarme headquarters whether any photographs of the body of the “ unidentified terrorist who had been killed on DATE ” had been taken .

On DATE the commander of the ORG gendarme headquarters informed Mr ORG that no operation had been conducted on CARDINAL DATE and that no bodies had therefore been recovered . An operation had , however , been conducted on DATE , during which a terrorist had been killed , but the soldiers had not had an opportunity to take any photographs of the body .

On DATE Mr ORG , apparently in response to a request from the NORP prosecutor , informed the latter that the previously unidentified body had finally been identified as that of PERSON .

On DATE Mr ORG sent to ORG the operation reports obtained from ORG gendarme headquarters .

On DATE Mr Turan , despite his previous discovery of the identity of PERSON body , continued his efforts to identify “ the dead terrorist ” and sent a letter to the ORG police headquarters enquiring whether the latter had any photographs of the body in their files . Mr ORG then described the body in his letter .

Also on DATE Mr Turan sent another letter to the commander of the ORG gendarme headquarters and informed the latter that in his letter of DATE ( see paragraph CARDINAL above ) the date of the operation had been mistakenly referred to as DATE . Mr ORG then asked the commander whether any photographs existed of the body of the terrorist who “ was killed during the operation on DATE ” .

On DATE the commander of the ORG gendarme headquarters informed Mr ORG that no operation had taken place on CARDINAL DATE but that a body had been recovered on DATE following an armed clash . He did not , however , have a photograph of this body .

DATE . On DATE the ORG police headquarters sent PERSON a copy of the photograph of the body and informed him that the body had already been identified on DATE as that of PERSON .

On DATE Mr ORG sent a letter to the registry office for births , marriages and deaths , asking it to “ register the death of the terrorist PERSON ” .

On DATE Mr Turan took another decision declining jurisdiction and sent the file to ORG . The offence in question was referred to in this decision as “ the killing of PERSON , a terrorist , during an armed clash that took place between the NORP and the security forces on DATE ” .

On DATE the chief public prosecutor at ORG , who was now entrusted with the duty of investigating the killing of PERSON , referred to the above - mentioned decision of non- jurisdiction and decided not to prosecute PERSON since he was dead . In this decision the deceased was referred to as “ the suspect ” .

It appears from the documents submitted to the Commission by the Government that both on DATE and on DATE ORG ( “ the Directorate ” ) requested information from Mr ORG and from the prosecutor at ORG about the investigation into the killings . The ORG required this information in order to be able to prepare the observations which would be submitted to ORG .

On DATE Mr ORG sent CARDINAL letters to his opposite number in DATE and requested the latter to contact the NORP gendarme headquarters and ask for any documents that might exist concerning the killings . Mr ORG also informed the NORP prosecutor of the petitions submitted by relatives of the deceased persons DATE previously ( see paragraphs DATE above ) , and asked him to obtain information from these relatives about the killings .

On DATE the prosecutor at ORG informed the ORG about the decision not to prosecute PERSON taken by his office on CARDINAL DATE ( see paragraph CARDINAL above ) , and further informed the ORG that that decision had concluded the investigation into the killing of PERSON . The decision had not been communicated to the complainants as there had not been any . Furthermore , no one had been questioned as the file contained no names of witnesses .

NORP By letter of DATE Mr ORG informed the ORG that his office was still continuing the investigation into the killings of PERSON and PERSON , that he had not had yet been able to establish the identities of the soldiers who had participated in the operation and that he was also trying to obtain information from possible eyewitnesses . It appears from this letter that Mr ORG had not been informed about the decision not to prosecute taken by the prosecutor at ORG , which had concluded the investigation into the killing of PERSON .

DATE . On DATE the NORP prosecutor , further to the request by PERSON ( see paragraph CARDINAL above ) , took a statement from GPE . Mr Akkum confirmed that DATE after the killings he had informed the NORP governor and also the NORP gendarme commander about the killings and had tried to obtain information as to how they might have occurred .

In response to Mr ORG ’s request of CARDINAL DATE to find the relatives of the deceased men ( see paragraph CARDINAL above ) , the authorities made unsuccessful attempts to find a certain PERSON ( sic ) and a certain PERSON ( sic ) . These attempts continued until DATE .

DATE and DATE the investigation carried out by the authorities in DATE and PERSON was limited to the tracing of the relatives of the deceased persons . It was recorded in a letter of CARDINAL DATE that it had not been possible to find these relatives since the villages where they used to live had been evacuated DATE previously as a result of intense pressure from the ORG .

On CARDINAL and DATE ORG and PERSON made further statements to ORG in ORG and stated that they still had not been questioned by any authorities in relation to the killing of their relatives .

It appears from a document drawn up on DATE by the ORG chief prosecutor ’s office and addressed to the ORG that the CARDINAL gendarme officers who had signed the military report of CARDINAL DATE ( see paragraph DATE above ) were indicted on DATE for the killing of the applicants’ CARDINAL relatives .

It also appears from the same document that ORG , before which the CARDINAL gendarmes were indicted , decided on DATE that it lacked jurisdiction to try the gendarmes and sent the file to ORG . The Government have not sent the ORG or the ORG copies of the indictment or of the decision of non - jurisdiction taken by ORG .

ORG was unable to contact and summon the applicants during the trial because they could not be found . It appears , however , that it was possible to locate PERSON and ORG , the village shepherds ( see paragraph CARDINAL above ) , and take statements from them during the trial .

Hacire Ceylan stated in her testimony given on CARDINAL DATE that on DATE in question she had been grazing her animals outside her village when soldiers had told her that they were carrying out an operation and asked her to return to her house . She had complied with this request . She had not seen soldiers beating up PERSON or any other person .

ORG stated in her testimony given on DATE that she was not aware of any military operation having taken place , of the killing of PERSON or of the killing of the other QUANTITY persons .

In the course of the trial the CARDINAL defendants , by then all working at different places around the country , all informed ORG that they did not wish to appear before it to testify . ORG , accepting their wishes , sent letters rogatory to criminal courts in the towns where the defendants were working and asked these courts to take statements from the defendants . The statements were subsequently forwarded to ORG .

With the exception of ORG , the defendants all confirmed that an operation had taken place on DATE . ORG had been on duty elsewhere on DATE of the operation .

The defendants stated that they had returned fire when a group of terrorists had opened fire on them . The defendants did not know who had actually shot the CARDINAL persons since CARDINAL soldiers had taken part in the operation .

PERSON , one of the CARDINAL defendants , stated in his testimony of CARDINAL DATE that he had personally seen CARDINAL bodies and that he had also heard from his fellow soldiers that there was another body . The bodies he had seen were those of CARDINAL men of DATE .

ORG stated in his testimony of CARDINAL DATE that he and his fellow soldiers had seen the CARDINAL bodies DATE after the operation .

NORP Tuncer PERSON , another defendant and an army captain , stated in his testimony of DATE that he had personally found the CARDINAL bodies and had recorded this finding in the operation reports . CARDINAL of the bodies was that of a bearded man of DATE , found on the LOC plain . Mr PERSON stated that the terrorists had been surrounded by the soldiers and that Cobra helicopters and mortar had also been used in the operation . It had therefore been impossible to identify who had actually shot these persons .

On DATE ORG unanimously acquitted all CARDINAL defendants . It stated in its judgment that it had not been able to question the relatives of the deceased persons because their addresses were not known . The court also noted that the allegations made by the deceased ORG relatives had not been corroborated by the testimonies given by PERSON and ORG . On the other hand , the defendants were found to have been consistent in their eyewitness accounts of the military operation which had been carried out pursuant to ORG of DATE . ORG decided , therefore , to disregard the allegations made by the relatives that the CARDINAL persons had been killed by the soldiers .

The Military Court ’s decision to acquit the soldiers was based on the following analysis of the evidence :

“ The deceased persons were killed during a military operation conducted by the security forces against the terrorist organisation . However , it is not possible to say with certainty that they were killed as a result of the fire opened by the soldiers since it was the terrorists who had opened fire first . Moreover , CARDINAL BKC - type spent cartridges , which are not used by the [ NORP ] armed forces , were found in the area . If it had not been for the armed clash , the defendants would have had no reason to use firearms against the deceased persons . At the site of the incident there were QUANTITY military divisions and an unknown number of terrorists . The clashes continued all day long ... There is no evidence suggesting that the defendants opened fire at the deceased persons ... ”

The testimonies given by CARDINAL of the defendants during the trial , namely PERSON , PERSON and PERSON , have not been submitted to the ORG or to the ORG . Therefore , the following information is taken from the above - mentioned judgment of ORG , which contains a summary of the testimonies of these CARDINAL defendants .

PERSON stated in his testimony that he had heard during the operation that a number of terrorists had been killed .

PERSON stated in his testimony that after the operation he and his fellow soldiers had found a body and that he had seen the corpses of a horse and of sheep in the area .

Yavuz Akın stated in his testimony that he had personally seen one body , which he and his fellow soldiers had taken to the station ; he did not know how that person had died . He also stated that fighter jets and helicopters had been used in the operation . Finally , Mr PERSON denied having signed the on - site operation report of CARDINAL DATE ( see paragraph CARDINAL above ) .

It further appears from the judgment of ORG that Major Ersan Topaloğlu was also questioned during the trial . His testimony was not made available to the ORG or to the ORG , but according to the summary contained in the judgment , Major PERSON stated that he had been informed by PERSON that his son PERSON and a fellow villager were missing . Major PERSON had then made some inquiries and had discovered that a military operation was being carried out in the area . He confirmed that CARDINAL bodies had been taken to the morgue in ORG and that CARDINAL of them had been that of the son of PERSON .

On DATE , early in the morning , these CARDINAL witnesses left their homes in the village of GPE , together with PERSON and his CARDINAL children , to go to the village of Çevrecik to visit a relative . ORG was on horseback with his children and the women were walking behind him . After walking for TIME they came to a flat area where animals were grazing and they saw the CARDINAL women shepherds , GPE and ORG , running towards them . ORG and ORG told the group to go back to their village as there were soldiers everywhere and it would not be safe to continue . However , ORG decided to press on , saying that he had nothing to fear from the soldiers .

After they had continued the journey for TIME , QUANTITY soldiers came out of the bushes on the side of the road and asked ORG to get off the horse and to show them his identity card . The soldiers then told the women to go back to the village . They took ORG by his arms and walked away slowly . They took ORG ’s horse with them as well . PERSON saw the soldiers taking ORG behind the bushes and saw CARDINAL of them hitting ORG with the butt of his rifle . TIME , PERSON heard a single gun shot from a pistol ; however , she was unable to tell whether it was a shot in the air or whether it had been aimed at ORG . Following this single gun shot , firing started from all over the field and CARDINAL soldiers appeared from behind the woods . PERSON saw a flame hit ORG in his lower abdomen . This incident took place on the plain outside GPE .

The witnesses then returned to their village together with the CARDINAL children and started waiting for ORG to come back . ORG did not return to the village DATE and the villagers were afraid to help the witnesses to go and look for him since the military operation was still continuing . During the operation , machine guns and helicopters were also used .

When the operation was over , PERSON and a number of villagers from GPE went to the area concerned , where they saw several dead animals . When PERSON arrived at the spot where she had last seen her son , she saw her son ’s horse and dog , which were also dead . Around QUANTITY away from the horse she saw her son ’s body , lying on its side , with a large number of gunshot wounds between the chest and hips .

DATE after ORG ’s death , the witnesses’ village , GPE , was raided by soldiers . The villagers fled the village , too scared to take any of their belongings with them . After they had left the village , the soldiers burned down all the houses .

None of the CARDINAL witnesses was ever questioned by the investigating authorities in relation to the killing of ORG .

ORG . This witness did not see any of the events that occurred on DATE as at that time he was living in GPE . He was informed about the incidents when his uncle telephoned him at TIME on DATE . He was told that his brother PERSON had been detained by the soldiers . Following this telephone call , the witness went to Batman , where he was told that his village was under the control of the soldiers and that he was not allowed to go there . DATE , when he was finally able to go to his village , he found out that his brother PERSON had been killed . ORG had already been buried by the time the witness arrived in the village . PERSON told him everything that had taken place on DATE .

The witness recalled that , in the past , ORG had often been asked to become a village guard and because of this pressure the latter had wanted to leave the village .

On DATE the witness returned to the village to organise a gathering for the first anniversary of the death of his brother . However , helicopters came to the village and started shooting . His cousin was wounded during this shooting and the witness had to take his cousin to ORG for treatment . When he returned to the village , the village was almost empty . The soldiers had forced everyone to leave the village .

At the time of the events the witness was living in GPE and was the village shepherd .

At TIME CARDINAL DATE the witness left her house in GPE with a fellow shepherd , ORG , and their animals . They followed PERSON and PERSON , who were also taking their animals out to graze . On their way they met CARDINAL soldiers , who told them to return to their village . The witness wanted to take her animals with her as well but the soldiers did not allow her to do so and when she resisted , they beat her .

The witness also saw some other soldiers taking PERSON and PERSON towards the woods . The CARDINAL NORP were in the middle of a group of soldiers but her poor eyesight prevented her from seeing clearly what they were doing . The soldiers were shouting so much that she could not hear what was going on .

On their way home , the witness and PERSON met PERSON and her family . The witness told PERSON that there were soldiers everywhere . Later she saw PERSON being ordered off his horse by the same CARDINAL soldiers they had come across earlier . ORG was taken QUANTITY away and the witness saw him showing his identity card to the soldiers . He had a soldier on either side of him . The soldiers ordered the women to go home . When she heard ORG wife shouting that her husband had been hit by a rifle butt , the witness turned around and saw that ORG was still standing at the same point where the soldiers had taken him . Thereafter she heard a single gun shot , followed shortly afterwards by continuous firing . Some of the shots were aimed at the group of people which included the witness , and they ran to take shelter behind a rock . She heard PERSON screaming and saying that her son had been killed .

When the firing was over , they went back to their respective villages . When the witness returned to her village she told PERSON father that she had seen his son being taken away by the soldiers . After the bodies had been found she went to the area and saw ORG ’s body lying at the spot where she had last seen him .

A statement was taken from the witness by the authorities and she was asked when ORG had been killed and whether he had been beaten up by the soldiers . She stated that she did not know whether he had been killed in the morning or in TIME ; she had later seen that he had been killed on the spot . She also stated that the soldiers had beaten ORG .

NORP This witness is a gendarme colonel and at the time of the incident was the commanding officer of the ORG provincial gendarmerie headquarters . He is CARDINAL of the signatories of the military report referred to in paragraph CARDINAL above .

NORP In DATE his headquarters were informed that CARDINAL terrorists were present in an area called the NORP hills , near the district of GPE within GPE . Terrorists had been known to take shelter in this area and the security forces had already conducted several operations there , during which there had been CARDINAL armed clashes with members of the ORG . Upon receiving this intelligence , a decision was made to organise a military operation in the area and the witness was responsible for its planning .

On DATE an operation plan was drawn up and the operation was named PERSON . The plans of the operation clearly indicated the position each military unit would take up . CARDINAL soldiers would participate in the operation , which was to cover an area of QUANTITY . The operation plan included the names of the officers who would take part in the operation and also named the military units involved . The plan would have been put in the archives upon completion of the judicial investigation .

As all the operations were planned in strict confidentiality , the villagers who lived in the area concerned were not informed beforehand . Nevertheless , some local villagers DATE being a common source of intelligence for the gendarmerie – would have known that the security forces were to conduct operations and would refrain from leaving their homes during the operations . Informing the villagers in advance of an operation would compromise its success . However , the soldiers in the operation area would ensure that no civilians entered the area .

On DATE the operation began at dawn in the NORP hills . The witness followed the operation by radio communication from a temporary command unit established at Erimli gendarme station , which was located outside the operation area but had a view of it .

Members of the terrorist organisation would normally use automatic rifles , called BKCs , and the soldiers used MGCARDINAL automatic rifles and RPGs . No helicopters were used in the operation .

Although the operation was carried out under his general command , he did not have judicial responsibility . During a military operation , the district gendarme commanders in charge of the participating units were the officers with judicial responsibility and were in direct contact with the public prosecutors . In the instant case , these officers would have been the LOC and LOC gendarme commanders . The incident reports prepared by the officers taking part in the operation would have been submitted to the local prosecutor and also to the witness .

When questioned about the discrepancies between the military reports concerning the number of military units which had taken part in the operation ( see paragraphs CARDINAL and CARDINAL above ) , the witness stated that these were simply innocent omissions .

The witness had never been informed of the allegation that PERSON had been killed by soldiers . He considered that the allegations were baseless since the relatives of PERSON had failed to submit their complaints to the commanders of the military units who had been in the area during the operation , which had lasted for DATE , or to the judicial authorities . Had he been informed about the killing of PERSON , he would have investigated it personally .

The body of PERSON was found in an area in which the ORG division had taken up position . The bodies of PERSON and PERSON were found in the area where military units from GPE and ORG had taken up position . The deaths of the latter QUANTITY persons were not recorded in his report submitted to ORG ( see paragraph CARDINAL above ) because their bodies had not been found until after the report was drawn up . However , there would have been another report , entitled “ final report ” or “ detailed operation report ” , setting out the details of the entire operation with greater precision . This report would have been sent , together with all other documents pertaining to the operation , to the gendarme headquarters in GPE . This document would have been confidential and would not have been submitted to the judicial authorities . By examining the operation reports it would be possible to pinpoint which military unit was responsible for a particular area .

The witness had no knowledge of the subsequent trial of a number of soldiers under his command on suspicion of having killed CARDINAL persons , allegedly during the operation for which he was responsible . He had not been summoned or requested to attend any court hearing in order to give evidence .

According to the witness , PERSON could be considered a successful operation . The measure to gauge the success of an operation was the degree of damage caused to the terrorist organisation . In this operation there were no casualties on the side of the security forces . The witness stated that he did not know whether the citizens who were killed during the operation were innocent or not , and he explained that every operation entailed risks . Nobody would have wanted ordinary citizens to be killed during a military operation . According to the witness , all the necessary measures had been taken to reduce that risk in this particular operation .

At the time of the events the witnesses were practising at health centres in LOC and DATE , respectively . They were not trained forensic experts but were nevertheless responsible for external body examinations and post mortem examinations since there were no forensic experts in the CARDINAL towns where they were working .

Dr PERSON carried out the examination of the body of PERSON whereas PERSON examined the bodies of PERSON and PERSON ( see paragraphs CARDINAL and CARDINAL above ) .

Dr ORG agreed with the findings in the report compiled by PERSON ( see paragraph CARDINAL above ) , in which the injuries on the body of PERSON were described in detail .

When asked why the large number of bruises and injuries on the body of PERSON , observed by PERSON , had not been recorded in his examination report , PERSON stated that no such wounds had been observed on the body during his examination .

Dr PERSON initially suggested that PERSON ears could have been severed by flying shrapnel but later stated that the ears must have been cut off post mortem as there was no bleeding in that area . However , as this had no bearing on the cause of death he had not deemed it important to include this information in his report .

Both witnesses maintained that there had been no need to carry out full autopsies since their examinations of the bodies had enabled them to establish the cause of death .

PERSON was unable to state with certainty the distance from which PERSON had been shot . As regards his examination of PERSON body , PERSON stated that as he had observed a corresponding exit hole for every entry hole , it did not occur to him that there could be more bullets , traces of bullets or any other evidence trapped in the body .

The witness , who was the public prosecutor in PERSON at the time of the events , was present at the examination of the body of PERSON . He noted the absence of the ears but did not consider it his duty to find out how the body had been mutilated . He concluded , on the basis of the information given by the gendarmes , that PERSON was a terrorist . For this reason he decided that he lacked jurisdiction to investigate the killing and sent the file to the prosecutor ’s office at ORG in accordance with usual practice . If state security courts required further information , they would put a request to the local prosecutor , who would carry out further investigations .

NORP In his investigation he repeatedly referred to CARDINAL DATE as the date of the military operation ( see paragraphs CARDINAL , DATE , DATE and DATE above ) , since a gendarme had informed him by telephone that the operation had taken place on that date .

NORP In around DATE , the investigation into the killing of PERSON and PERSON was also referred to his office as these persons had been killed in the district of ORG , which fell within the jurisdiction of LOC . In DATE the witness was appointed to a different post ; he was therefore unable to provide any information concerning the outcome of the investigation into the killing of these QUANTITY persons . However , the witness confirmed that the file on the investigation into the killing of PERSON and PERSON had also been submitted to ORG by his office , together with a record ( fezleke ) summarising the investigation . ORG then sent the file back on the grounds that it contained no “ ORG - related elements ” , and the PERSON public prosecutor ’s office therefore had jurisdiction to continue the investigation . The office of the PERSON public prosecutor then sent the file to ORG , where CARDINAL gendarmes were indicted .

The witness did not question any soldiers because the killings had occurred during an armed confrontation and he had no information as to which military units had participated in that operation . In any event , it would not be possible to establish whether a crime had been committed in an armed confrontation .

This witness , who was the ORG public prosecutor at the time of the events , was not involved in the investigation into the death of the CARDINAL persons . His office only attempted to find the addresses of the deceased ORG relatives and other potential eyewitnesses , as requested by ORG .

NORP In response to a question concerning the duties of a public prosecutor with whom relatives of murdered persons lodge a complaint , the witness explained that in such circumstances the public prosecutor should first question the relatives . Furthermore , a prosecutor should gather all the evidence during the preliminary investigation and only then , if necessary , give a decision declining jurisdiction .

The witness is a gendarme officer and was the commanding officer of the gendarme commando division in the town of DATE at the time of the events .

He remembered the PERSON operation . However , his military unit was not involved in the operation and he had no idea as to what had actually happened during the operation . As an explanation for the fact that his unit was mentioned in the military report as having participated in the operation , he submitted that this was probably because his unit had been sent to the area DATE after the operation to prevent any terrorists from fleeing the area .

While he was in the area there were no clashes and he did not hear any shooting . He did not draw up a report detailing his involvement in the operation .

He did not hear about the deaths until DATE after the operation . He did confirm , however , that while the operation was still continuing , PERSON had informed him that CARDINAL shepherds from his village were missing .

He said that the LOC plain was QUANTITY long and QUANTITY wide . It was flat with CARDINAL sporadic trees . It was completely surrounded by mountains . In the forested area there were oak trees , bushes and rocks . He identified the location shown on CARDINAL photographs of the places where the bodies of PERSON and PERSON had been found as being on the Kurşunlu plain . He could not exclude the possibility that a third photograph shown to him was a picture of the area leading to the slopes .

At TIME on DATE PERSON and his friend PERSON left the village to take the animals out to the meadow . After they had left the village NORP and GPE , the village shepherds , also took their animals out .

At TIME the witness saw a helicopter , which flew over the village and continued to the east towards the plain . Thereafter he heard gunshots and TIME some of the animals came back to the village , most of them wounded . Hacire came back to the village at TIME . She told the villagers that the helicopter had landed and that the soldiers who had come out of the helicopter had forced the women to go back to their village . However , she had seen PERSON and PERSON being apprehended and had heard the voice of PERSON , who was surrounded by soldiers .

As PERSON and PERSON did not return to the village that evening , the witness went to NORP the following morning , together with the muhtar of the village , PERSON , to ask for information . They first went to the district governor ’s office , where they were referred to the gendarmerie barracks . A gendarme major at the barracks told them not to worry and that the CARDINAL shepherds would be back soon .

The following day they went back to the barracks and were told that CARDINAL persons had been arrested by soldiers from the PERSON gendarmerie . DATE , the applicant did not go back to the village and stayed in DATE . The following morning he was informed that the bodies of his brother and of PERSON had been found . Although he informed the public prosecutor about this , the latter refused to go the scene of the incident .

NORP The witness is a gendarme officer . He was the commanding officer at the NORP gendarme command and the superior of GPE ( see paragraph CARDINAL above ) at the time of the events .

He did not remember the incidents of DATE very clearly because he had not taken part in the operation . However , he did remember that an operation had been conducted and he had heard on the wireless that there had been an armed conflict . When asked why units under his command were named in the operation reports when in fact they had not taken part in the operation , the witness stated that their involvement had been limited to blocking their side of the operation area in order to prevent any terrorists from escaping . However , it was not the practice of commando units to keep records of their activities during an operation and hence no reports existed pertaining to their involvement in this particular operation .

NORP In DATE the witness gave evidence before ORG . In his statement to that court , he confirmed that he had contacted the operating forces by radio after he had been asked by the muhtar of GPE , GPE , to make enquiries as to the CARDINAL people missing from that village . The reply he received by radio was that CARDINAL terrorist had been found dead . He then referred PERSON to the public prosecutor ’s office in ORG , thinking that the dead terrorist might be his son . It later turned out that the body was indeed that of Mr PERSON son .

The witness is a gendarme officer and was the ORG gendarme commander in DATE .

The witness personally participated in the operation in question . The clash started at TIME in the NORP hills , located to the north of LOC and to the south of LOC . His division was in the process of carrying out a search of the area when the terrorists opened fire on them . The terrorists were scattered over a wide area where visibility was limited because of the small bushes in a hilly region . There must have been CARDINAL terrorists . There were no casualties amongst the soldiers . Firing continued at intervals all that day and DATE .

NORP The clash took place over a wide area where villagers would not have gone , not even to take their animals to graze . It was illogical to believe that anyone would go near an armed clash where there was continuous firing .

He was informed that a terrorist had been captured dead during the clash . The body had been taken to the gendarme station in LOC , since that location possessed the necessary facilities for an autopsy to be carried out .

DATE after the incident , he was informed that CARDINAL more persons had been killed in crossfire . The witness did not personally see the bodies .

No helicopters or aircraft were used during the operation . Although it was not a major operation , several units were involved in it .

He had no information as to whether any of his men had been prosecuted in connection with the death of CARDINAL villagers .

The witness is a commando officer and was in charge of the commando division in ORG at the time of the events .

He participated in the operation named PERSON . The operation was planned after intelligence had been received which indicated that members of the terrorist organisation were hiding in the area and were planning to spend the DATE there . The presence of the terrorists constituted a great threat to the security forces and the gendarme stations in the area and the aim of this operation was therefore to eliminate that threat . His own unit was in charge of blocking the roads to prevent any terrorists from escaping from the operation area .

At TIME on DATE the witness was informed by a radio message that CARDINAL military teams under his command had come under fire while advancing towards the NORP hills and that a clash had ensued . At TIME the witness and his teams approached the area . There was a distance of QUANTITY between his team and the terrorists . The terrorists started firing at his team and a clash broke out , lasting until TIME Neither Cobra helicopters nor any other aircraft were deployed in the operation .

The security forces suffered no casualties . On DATE , the witness heard that a terrorist had been killed on the other side of the hills . He sent a team to the area , under the command of PERSON , to take away the body . The body was later transferred by helicopter to the district of PERSON . The witness did not see the body for himself and had not been informed that the ears had been cut off . During the operation , the witness was not informed that CARDINAL villagers had been found dead on the LOC plain .

The witness had very recently been informed that CARDINAL gendarmes had been tried for the killing of the QUANTITY persons . He was not called to give a statement to ORG .

The witness was the commanding officer of the gendarme station in ORG . He is one of the CARDINAL gendarmes who was tried for , and acquitted of , the killing of the applicants’ CARDINAL relatives .

He remembered the operation named PERSON . The operation was planned on the basis of intelligence indicating that ORG terrorists were present in the area known as the NORP hills .

His unit was involved in the operation and its task was to block the roads . As the unit approached the area towards the north - eastern part of the NORP hills , terrorists started shooting at them and a clash ensued . He could not remember whether soldiers in his unit had killed the terrorists during the clash , which lasted from TIME until TIME During TIME CARDINAL November the witness stayed in the area .

As the station commander in ORG , the witness had certain judicial obligations . He prepared the incident report and the incident map relating to the clash , which were sent to the public prosecutor . The witness explained the contradictions between the incident report of CARDINAL DATE and his statement to ORG by saying that , at the court hearing , he had been very excited and confused and had therefore mistakenly stated that he had found CARDINAL bodies . The truth was , however , as he had stated in the on - site operation report , that CARDINAL body had been found .

NORP The witness was informed over the wireless by PERSON that a body had been found . As he had judicial responsibilities , he was sent to the area . He searched the body to find an identity card . Although he did not examine the body , he did remember that both ears were missing . He could not recall whether there had been any firearms near the body . He deduced that the body belonged to a NORP terrorist since it had been found in the conflict zone . No ordinary villager would have entered the area while an operation was being conducted .

Contrary to what he had said in his statement to ORG , no helicopters were used in the operation . The witness did not know which unit was responsible for the ORG plain but this could be established by examining the operation order prepared prior to the operation .

NORP The witness was a non - commissioned officer in the ORG commando unit at the time of the events . He is CARDINAL of the CARDINAL gendarmes who was tried for , and acquitted of , the killing of the applicants’ CARDINAL relatives .

He participated in a joint operation with military units from ORG and at some point , terrorists started firing towards them . He remained in the area TIME long with his men and DATE they conducted a search of the area .

During the search they found a terrorist shelter and supplies but they did not find any corpses . He signed the incident report dated CARDINAL DATE but at the time he did not know anything about the body referred to in that report and did not deem it necessary to verify the accuracy of the contents of the report before he signed it .

NORP The witness was familiar with the LOC plain ; however , he did not have any information as to whether the operation had extended that far . The witness explained the inconsistencies between the CARDINAL military reports ( see paragraph CARDINAL above ) by saying that the on - site operation report had been prepared in the area where there had recently been an operation – hence , in the heat of the moment , it was possible that certain things had been omitted in the report .

The witness was the commander of CARDINAL of the commando teams in ORG at the time of the events . He is CARDINAL of the CARDINAL gendarmes who was tried for , and acquitted of , the killing of the applicants’ CARDINAL relatives .

NORP In DATE his commanding officer informed him that his team was to participate in an operation and briefed him and his team about their duties in it . In accordance with the instructions received from the unit commander , the witness ’s team started off towards the operation area . When the team reached the NORP hills at TIME , terrorists started firing and a clash broke out , lasting , intermittently , until TIME

The following morning they conducted a search of the area . The fourth team , which was under the command of PERSON , found a shelter containing food , a cartridge clip , a rucksack and many other items . The members of the witness ’s team were further informed over the wireless by their commanding officer that a body had been found in the direction of ORG , and the witness was ordered to go to that area together with his station commander , Tuncer PERSON . When they reached the spot where the body lay – which was within the area covered by the operation – the station commander drafted a report in which he related all his findings . The witness co - signed the report . The location of the body was QUANTITY from GPE . Although the witness had no authority to examine the body , he did , however , notice that the dead person ’s ears had been cut off . He was then ordered to take the body to the village of Çevrecik . The body was later transferred to the PERSON public prosecutor ’s office .

A description of the relevant domestic law may be found in PERSON v. GPE ( judgment of DATE , Reports CARDINAL-IV , pp . DATE , § § CARDINAL ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE ORG issued a payment order ( fizetési meghagyás ) at the applicant 's request . In this order ( no . MONEY ) PERSON , the son of the applicant 's divorced wife , was obliged to pay MONEY plus accrued interest to the applicant . On DATE the order was served on PERSON He failed to lodge an objection within the statutory time - limit . Consequently , on DATE the order became binding . On DATE the ORG established this fact . Subsequently , enforcement proceedings were instituted and on DATE an enforcement order ( végrehajtási lap ) was issued by ORG .

Meanwhile , on DATE PERSON lodged an objection , which was rejected on DATE by ORG as being time - barred . On DATE Mr U. successfully requested that the case be re - opened , a hearing held and the applicant 's claims dismissed .

On DATE the bailiff invited the applicant to advance the costs of the execution as required by section CARDINAL of GPE . Without having paid the costs , on DATE and DATE the applicant repeatedly requested the bailiff and the court , respectively , to carry out the execution .

In the re - opened proceedings , on DATE ORG quashed its payment order and dismissed the applicant 's claims . He failed to appeal against this decision which became binding on DATE .

Subsequently , the applicant requested the rectification , as to the amount , of the enforcement order issued on the basis of the original payment order . ORG , as confirmed by the Békés County Regional Court on DATE , dismissed his request , since that order had been quashed and the enforcement proceedings had consequently been discontinued . On DATE ORG dismissed the applicant 's petition for review and upheld ORG decision .

On DATE and CARDINAL DATE ORG , as confirmed by ORG on DATE and CARDINAL DATE , respectively , rejected the applicant 's requests for the re - opening of the case . On DATE ORG rejected his petition for review .

At the applicant 's repeated request to have further amounts added to the execution order , on DATE ORG noted that its decision of DATE had cited the wrong reference number for the payment order . That decision was rectified accordingly .

On DATE ORG ordered the continuation of the enforcement proceedings which were found to have been terminated on account of the erroneous reference number in the decision of DATE . The applicant 's request that further amounts be added to the CARDINAL specified in the enforcement order was turned down . This decision was upheld in substance by ORG on DATE and by ORG on DATE .

Meanwhile , on DATE the bailiff repeatedly informed the applicant that he could execute the payment order only when the applicant had advanced the costs .

On DATE ORG dismissed the applicant 's request that a new enforcement order be issued in the case . It held that the enforcement order issued in DATE was to be pursued and that the applicant should address his requests to the bailiff . On DATE the ORG dismissed the applicant 's appeal . On DATE the bailiff repeatedly informed the applicant that he could execute the payment order only when the creditor had advanced the costs .

On DATE the ORG confirmed the first - instance order of CARDINAL DATE , by which the applicant 's request for the exemption from court fees had been dismissed . ORG held that ORG had proceeded according to the law when dismissing the applicant 's request , who , despite warning , had failed to provide the court with supporting documents .

On DATE ORG rejected the applicant 's petition for review , holding that , according to section CARDINAL of the Code on Civil Procedure , no review lay against procedural orders .

Act no . DATE on ORG provides :

“ ( CARDINAL ) Unless otherwise provided by law , the costs of execution shall be advanced by the party who has requested the execution and shall be borne by the debtor .

( CARDINAL ) The parties shall deposit the expected costs of the execution to the bailiff 's settlement account , or pay the amount directly to the bailiff in exchange for a receipt . ”


Preliminary objection rejected (non-exhaustion);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed;Violation of Art. 5-3

The first applicant , PERSON , is a businessman who was born in DATE . The second applicant , Mr GPE , a councillor for the Yenimahalle ward of ORG , was born in DATE . They were respectively the chairman and former secretary of the ORG branch of ORG ( ORG ) .

PERSON , who was born in DATE , was a correspondent of the DATE newspaper PERSON and a member of the executive committee of the ORG branch of ORG ( ORG ) .

At the material time the applicants all lived and worked in ORG , a district in the province of PERSON , which is one of those that since DATE has been subject to the state of emergency regime proclaimed in south - eastern GPE .

NORP In DATE and DATE TIME people , including the applicants , were arrested in ORG on the orders of the public prosecutor attached to ORG ( “ the public prosecutor ” , “ the ORG ” ) .

The facts concerning the applicants’ detention are disputed .

PERSON asserted that he had been arrested by the anti - terrorist branch of the ORG security police ( “ the security police ” ) and then placed in police custody on DATE ; PERSON and Mr GPE maintained that they had suffered the same fate , but on DATE .

According to the Government , PERSON and Mr GPE were placed in police custody on DATE and PERSON on DATE .

On DATE the security police sent PERSON and PERSON to the ORG forensic medicine centre to be examined in order to ascertain whether their bodies showed the marks of blows or violence . The medical reports drawn up on DATE concluded that there were no such marks .

On DATE Mr Kaplan in turn was examined by doctors of the forensic medicine centre , who drew up a report in which they reached the same conclusion .

On DATE the applicants’ lawyer lodged a complaint with the ORG prosecuting authorities against Mr PERSON , the head of the security police . Relying on LAW and the ORG ’s relevant case - law , he complained of the length of time his clients had spent in police custody and asked for charges to be brought against those responsible .

Mr Kaplan , on DATE , and PERSON and Mr GPE on DATE were brought before the single judge of ORG , who ordered them to be placed in pre - trial detention .

Before appearing in court , the applicants were re - examined by the forensic medicine centre at the request of the security police . The medical reports drawn up as a result did not mention any marks on their bodies which might have been caused by an assault .

NORP The applicants’ lawyer was subsequently sent a copy of a decision of DATE in which ORG of ORG informed him that his complaint of DATE had been dismissed .

On DATE the public prosecutor filed submissions with ORG against CARDINAL defendants , including the applicants , whom he accused of being active members of an illegal organisation , the ORG ( Workers’ ORG ) , seeking application of LAW ( see paragraph CARDINAL below ) and section CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) ( see paragraph CARDINAL below ) .

As set out by the public prosecutor , the offences of which the applicants were accused may be summarised as follows .

After joining the ORG in DATE PERSON had maintained regular contacts and planned a number of operations with the ORG militant in charge of the ORG sector ; in DATE he had been appointed head of the ORG ’s GPE committee at a secret meeting held at his home ; following the killing of a PERSON in the ORG district he had invited several people to gather for the funeral , at which he had shouted slogans and urged the other mourners to do the same ; he had also shouted separatist slogans at an illegal demonstration that had taken place after the death of PERSON , a ORG militant ; on DATE he had incited the people to rebel ; DATE he had called on shopkeepers to close their shops in protest against the NORP army ; lastly , he had on numerous occasions harboured people who wished to join the ORG .

Mr GPE had attended a number of illegal meetings and demonstrations ; at the end of the meeting held at the home of Mr PERSON he had been made a member of the above - mentioned ORG committee ; in DATE he had harboured CARDINAL people at his home and installed CARDINAL more in neighbouring houses while they were waiting to join the ORG ; in addition , he had collected money to finance that organisation ’s activities .

PERSON had taken part DATE about a year before his arrest – in an unauthorised shop - closing demonstration ; DATE he had made photocopies of CARDINAL ORG leaflets ; in addition , he had shouted separatist slogans at CARDINAL illegal demonstrations that had been held in ORG on DATE .

On DATE the applicants appeared before ORG . PERSON and Mr PERSON retracted the confessions they had made at the security police offices , asserting that these had been extracted from them by duress . Mr PERSON maintained that he had acted under the fear of reprisals by the ORG .

PERSON was granted conditional release on DATE and the other CARDINAL applicants after the hearing on DATE .

The National Security Court gave judgment on DATE . Applying LAW , it sentenced Mr PERSON and Mr GPE to DATE and CARDINAL months’ imprisonment for membership of an armed gang ; it sentenced PERSON , pursuant to LAW ( see paragraph CARDINAL below ) , to DATE and QUANTITY months’ imprisonment for lending assistance to an armed gang and harbouring known criminals .

The applicants appealed to ORG , which , in a judgment of DATE , upheld the impugned judgment .

Article CARDINAL of the LAW provides :

“ Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE … These time - limits may be extended during a state of emergency …

A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . ”

The relevant provisions of LAW read as follows :

Article CARDINAL

“ Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”

Article CARDINAL

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not more than five years’ imprisonment … ”

NORP Under CARDINAL of LAW ( Law no . CARDINAL of DATE ) , the offence defined in LAW is classified as a “ terrorist act ” . Under section CARDINAL , the offence defined in LAW of the same LAW is classified in the category of “ acts committed to further the purposes of terrorism ” .

Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in sections DATE CARDINAL of the Act are increased by CARDINAL .

Under section CARDINAL ( a ) of PERSON no . CARDINAL on procedure in ORG , only these courts can try cases involving the offences defined in CARDINAL and CARDINAL of LAW .

At the material time , section CARDINAL of Law no . CARDINAL of DATE provided that , with regard to offences within the jurisdiction of ORG – including those mentioned in paragraph CARDINAL above – any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE . In provinces where a state of emergency had been declared , these time - limits could be extended to DATE and DATE respectively .

Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial … , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only … ”

On DATE the Permanent Representative of GPE to ORG sent the Secretary General of ORG the following notice of derogation :

“ CARDINAL . GPE is exposed to threats to its national security in LOC which have steadily grown in scope and intensity over DATE so as to [ amount ] to a threat to the life of the nation in the meaning of Article CARDINAL of the Convention .

During DATE , CARDINAL civilians and CARDINAL members of the security forces have been killed by acts of terrorists , acting partly out of foreign bases . Since DATE only , the numbers are CARDINAL civilians and CARDINAL members of the security forces .

The threat to national security is predominantly [ occurring ] in provinces of LOC and partly also in adjacent provinces .

Because of the intensity and variety of terrorist actions and in order to cope with such actions , the ORG has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public , partly emerging from other parts of GPE or even from abroad and with abuses of trade - union rights .

To this end , the Government of GPE , acting in conformity with LAW , has promulgated on DATE the decrees with force of law [ nos . ] CARDINAL and CARDINAL . These decrees may in part result in derogating from rights enshrined in the following provisions of LAW [ on ] Human Rights and Fundamental Freedoms : Articles CARDINAL , CARDINAL , DATE , DATE , DATE and DATE . A descriptive summary of the new measures is attached hereto ... ”

The descriptive summary of the content of Legislative Decrees nos . CARDINAL and CARDINAL , annexed to this notice , reads as follows :

“ A. By virtue of the decrees having force of law [ nos . ] CARDINAL and CARDINAL on the state of emergency region , the state of emergency region governorship has been empowered with the following additional powers .

ORG , upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication ( regardless of the location of the printing press ) , which is prone to cause a serious disruption in the ORG public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities . This also includes , if necessary , the power to order the closure of the printing press concerned .

The Governor of the state of emergency region can order persons who continuously violate the general security and public order , to settle at a place to be specified by ORG outside the state of emergency region for a period which shall not exceed the duration of the state of emergency . At their request , the persons concerned may receive financial aid from ORG . The particulars for this assistance shall be determined by ORG .

The Governor of the state of emergency region ( or the delegated provincial Governor ) can suspend ( DATE ) or require prior permission for certain labour disputes related activities like strike and lock - out .

The Governor can also ban , or take preventive measures against certain activities like destruction , looting , boycotting , slowing down of work , restricting the freedom of work and closing down of business .

The Governor of the state of emergency region can order the temporary or permanent evacuation , change of place , regrouping of villages , grazing fields and residential areas for reasons of public security .

The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order , the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him .

B. No legal claims of criminal , pecuniary or legal nature can be brought against , nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of ORG , the Governor of the emergency region and other governors , when exercising the power under the decree no . CARDINAL having force of law .

C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s ) performed when exercising the power given by the law of emergency no . CARDINAL to the Minister of Interior , the Governor of the state of emergency region and the provincial governors .

D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no . CARDINAL . ”

According to a note in the notice of derogation , “ the threat to national security [ was ] predominantly occurring ” in the provinces of ORG , ORG , GPE , GPE , GPE , PERSON , ORG , Batman and PERSON .

In a letter of CARDINAL DATE ORG of GPE informed the Secretary General that Legislative Decree no . CARDINAL had been replaced by Legislative Decree no . CARDINAL , promulgated on DATE . An appendix to the above letter , containing a descriptive summary of the decree , reads as follows :

“ CARDINAL . The powers of the Governor of the state of emergency under ORG no . CARDINAL have been limited to the region where a state of emergency is in force . Thus , the adjacent provinces have been excluded from the competence of the Governor .

The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no . CARDINAL have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms .

The powers of the Minister of ORG [ to ] ban any publication or order the closure of the printing press ( regardless of the location ) is restricted . According to the new provision , the Minister of ORG has at first to issue a warning to the owner or the publisher of the publication . If the owner or the publisher continues to print or distribute the controversial issue , then the Minister concerned may temporarily or permanently ban the publication and , if necessary , may also order the closure of the printing press for a maximum period of DATE , which may , however , be extended to DATE in case of repetition . No maximum period for closure of the printing press has been stipulated by the ( abrogated ) Decree no . CARDINAL ( Compare § A ( CARDINAL ) of the Descriptive Summary attached to LAW .

The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree . The persons who are expelled from the state of emergency region are not obliged to settle in a specified place . Hence , they will be free to choose their residence out of the region except when they request financial aid . In this case they have to settle at a specified place ( See § A ( CARDINAL ) of previous Descriptive Summary ) .

Referring to the paragraphs A ( CARDINAL , DATE , DATE and DATE ) of the Descriptive Summary of DATE ( which are related to strikes , lock - out and some other activities of labour unions , evacuation and regrouping of villages , transfer of public officials to other posts or positions ) , it should be noted that the adjacent provinces have been excluded by virtue of the new decree .

As to paragraph CARDINAL of the previous Descriptive Summary , a new clause has been included in the new Decree safeguarding the right to file an action against the administration ( ORG ) for loss or damages arising out of the performance of the acts taken under the emergency measures . ”

On CARDINAL DATE the Permanent Representative of GPE wrote to the Secretary General in the following terms :

“ As most of the measures described in the decrees which have the force of law ORG . CARDINAL and CARDINAL that might result in derogating from rights guaranteed by ORG CARDINAL , CARDINAL , DATE , DATE , DATE and DATE of the LAW , are no longer being implemented , I hereby inform you that GPE limits henceforward the scope of its LAW with respect to LAW only . The derogation with respect to Articles DATE , DATE , DATE , DATE and DATE of the LAW is no longer in effect ; consequently , the corresponding reference to these Articles is hereby deleted from the said LAW . ”