No violation of Art. 2 with regard to abduction and killing;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 5;Not necessary to examine Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to comply with obligations under Art. 38-1-a;Not necessary to examine Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in GPE ( GPE ) . At the time of the events giving rise to his application , the applicant was the provincial chairman of a political party , the DEP ( Democracy Party ) , in the province of PERSON ( southeast GPE ) . The application concerns the applicant ’s allegations that his son , Mr PERSON , was abducted and killed by undercover agents of the ORG .

The facts surrounding the death of the applicant ’s son are disputed between the parties .

The facts as presented by the applicant are set out in LAW below . The facts presented by the ORG are contained in LAW .

A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the ORG ’s delegates at hearings conducted in GPE is summarised in Part C.

In DATE , General PERSON , the commander of ORG , invited the provincial leaders of all political parties to a meeting at the army barracks . The applicant attended this meeting as the representative of the DEP and spoke in support of the cultural and democratic rights of the NORP population in GPE . During the meeting , General PERSON claimed that there were no NORP in GPE and that those who had taken to the mountains were NORP . He then asked the participants to report to him the names of the people who helped the ORG . The applicant replied to General PERSON that there were NORP in GPE as well as NORP and other minorities and that these people should be treated on the basis of equality in a democratic manner . He added that the denial of other people ’s existence and the oppression or repression of others would not lead anywhere . General PERSON was furious and wanted to obtain information on the children of the chairmen , for example where they worked and how old they were . He warned the chairmen , including the applicant , that their children would be destroyed if they were not raised as loyal citizens of the ORG .

In TIME DATE the applicant ’s son , PERSON , born in DATE and working as a reporter for the ORG newspaper in ORG , was taken into police custody . No reasons were given for his arrest . He was released DATE in the afternoon .

On DATE at TIME , while Ferhat was in the schoolyard of the ORG Bitlis primary school , a tall , bearded man who was known in the area to be a policeman , took him by the arm , put him in a car and drove away with him . Their car was followed by a white car , a ORG with the registration DATE . There were CARDINAL persons inside the white ORG , which was seen DATE parked next to NORP police station .

Later on DATE , the applicant learned from PERSON PERSON and PERSON that CARDINAL plain - clothes policemen had made enquiries about Ferhat in the building where they lived . He went home in panic and realised that Ferhat was missing .

On DATE at TIME the applicant received a phone call from an anonymous person who claimed to be a member of an organisation called the “ ORG ” and said that they were keeping his son as a hostage . The caller said that Ferhat would be killed unless the applicant closed down the DEP ’s ORG branch , released CARDINAL NORP tourists who were in the hands of the ORG and paid MONEY ( TRL ) . The applicant said he could close down the ORG branch and try to find MONEY but had no power to secure the release of the NORP tourists , as he had no connection with the ORG . The caller warned the applicant that his son would be killed if the conditions were not met .

On DATE at TIME the applicant went with his wife and daughter to ORG , where he told the director and the provincial governor of his suspicion that Ferhat had been abducted by contra - guerrillas operating within the ORG security forces . The governor and the director denied the existence of contra - guerrillas in GPE and affirmed that the ORG did not commit murder .

On DATE the applicant applied to ORG and asked that his home and office telephones be tapped in order to trace the caller ’s number if another call was made . He also requested that all necessary action be taken to rescue his son .

On DATE the applicant sent telegrams to the Prime Minister , the Minister of the ORG and the Governor of the state of emergency region asking for their aid in rescuing his son .

On DATE the applicant and his wife went to ORG to talk to General PERSON at the brigade headquarters . They were told that the general was ill and had gone to GPE . They were received by a colonel and attended a meeting at ORG office . During this meeting , PERSON stated that the bloodshed between NORP and NORP had to stop and that she would sacrifice her son if this were to bring the animosity to an end .

During the second or the third telephone call , the anonymous caller said that PERSON had spoken well at General PERSON ’s office , which proves that the caller was either present at the meeting or had been informed by someone who had attended the meeting .

Subsequently , the applicant informed the Security Director that according to PERSON and PERSON , eye - witnesses to Ferhat ’s abduction , the people who had taken Ferhat away were policemen . The applicant also said that there was evidence that the white ORG , which had followed the car in which PERSON was abducted , belonged to the security forces .

On DATE the applicant received another phone call at around TIME He immediately alerted the authorities while he was on the phone and asked them to identify the caller ’s number . The conversation that followed was recorded . The person on the phone said that the applicant had failed to fulfil their conditions for the release of Ferhat since the DEP branch had not been closed down , and the applicant had failed to pay and had reported everything to the authorities . The caller told the applicant to bring GPE MONEY to an address in the province of ORG . After listening to the recording , the Security Director told the applicant that the ORG could give him special bank notes , the serial numbers of which had been noted by the police , and told him to come back later for the bank notes . Later on DATE , when the applicant called again , the Director told him that he was having difficulty in obtaining the bank notes .

On DATE the applicant , together with CARDINAL policemen and CARDINAL of his relatives , went to the address in ORG indicated by the caller but could not find anyone .

Still on DATE , Ferhat ’s dead body was found by a civil servant at LOC , in LOC . On DATE the public prosecutor and a medical expert examined the body . The report of their findings concluded that the cause of death was drowning and that there was no need for a systematic autopsy . It also stated that no signs of blows or the use of force on the body or of friction on the wrists and ankles had been detected .

On DATE the applicant , who had not yet been informed of Ferhat ’s death , applied to ORG enquiring whether the anonymous caller ’s number had been traced . His application remained unanswered .

On DATE the applicant received a third anonymous telephone call in which he was told that Ferhat ’s body was at the morgue in ORG . DATE the applicant discovered that the body had been buried on DATE in the ORG cemetery for persons with no known relatives .

On DATE the applicant identified Ferhat ’s body , which had been exhumed by the authorities . In preparation for the funeral ceremony , the applicant washed the body himself in a mosque . He saw that his son ’s testicles had been crushed and that there were marks on the arms , ankles , testicles and chest . He observed some cigarette burn marks on the body but no fractures . There were also deep wounds on the wrists and ankles showing that Ferhat had been bound hand and foot . The applicant alleged that , according to the eyewitnesses ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , LOC and PERSON , who had been apprehended and questioned at the relevant time in ORG , Ferhat had been held there and tortured by members of the security forces DATE and DATE . ORG allegedly gave a statement , but withdrew it after being threatened by the police .

On DATE ORG issued a decision of non - jurisdiction , referring the investigation file to ORG office .

At the funeral procession in NORP on DATE , there was a strong police presence . The police filmed those who attended , checked their identification and arrested QUANTITY persons . Later on DATE the police searched the applicant ’s house .

On DATE ORG issued a decision of non - jurisdiction and referred the case to ORG .

On DATE the applicant sent a letter to ORG , alleging that secret forces within the State security forces had killed his son .

On DATE the applicant filed a petition with ORG , alleging that the abduction and killing of his son had been the acts of ORG forces and requesting an investigation into the matter .

On DATE the applicant asked ORG whether any inquiry into the killing of his son had been initiated . ORG told him there were some obstacles which he had been unable to overcome . On DATE the applicant went to ORG and asked the assistant director why no investigation had been carried out . The Assistant Director said he did not have to explain anything to the applicant .

On DATE the applicant applied again to ORG asserting that certain State security forces had been responsible for the abduction and death of his son . He requested that his allegations be investigated .

On DATE the ORG Chief Public Prosecutor issued a permanent search warrant for the perpetrators of the killing of PERSON .

Following the applicant ’s complaints to the authorities , the police took tight security measures . The applicant , his office , his home and the DEP party building were put under constant surveillance . The police filmed the applicant ’s colleagues and his fellow - townsmen who came to console him , and checked their identity cards .

In the meantime , the applicant ’s family had been under intense pressure from the ORG authorities in relation to his political activities , the investigation he had personally carried out into the killing of his son and his application to ORG . The applicant ’s daughter was remanded in custody in DATE ; his son was remanded in custody in DATE for DATE and is currently being tried for an offence which carries the death sentence ; another of the applicant ’s daughters was taken into custody in DATE ; CARDINAL of the applicant ’s nephews were remanded in custody in DATE , CARDINAL of whom is being tried for an offence which carries the death sentence ; the applicant ’s brother was taken into custody in DATE and the applicant ’s cousin has been in ORG since DATE . On DATE the applicant was arrested in GPE and held in police custody for DATE in PERSON . During his detention , the police officers asked him why he accused the ORG and why he had taken his complaints to ORG . They further threatened him and said among other things : “ We will kill you just as we killed Ferhat . You are complaining to the infidels about our ORG . Are they the ones who will save you ? Well , let them come and save you . ” After being released , the applicant was acquitted of the charges by ORG . On DATE the applicant was allegedly taken into custody in ORG on charges of aiding the ORG . He was released on an unspecified date after being interrogated .

On DATE criminal proceedings were brought against the applicant on account of a speech he had made on a private TV channel , where he had alleged that his son had been murdered by the ORG . The applicant was charged with insulting the security forces . On an unspecified date , the applicant was convicted as charged and sentenced to DATE imprisonment .

In DATE the applicant was arrested by police officers from the anti - terrorist department while entering the HADEP ( ORG ) party building in LOC in GPE . He was kept in detention for DATE . The police officers insulted him and threatened him with death . CARDINAL of the police officers said that they would kill him just as they had killed Ferhat . The applicant complained to ORG in GPE , who decided to discontinue the proceedings , as there was no witness to confirm his allegations .

NORP The applicant ’s son PERSON had been arrested on CARDINAL occasions in DATE , as he was suspected of acting as a ORG courier .

The Government submitted that , according to various witnesses , on DATE Ferhat had met someone in the schoolyard and had left with him of his own free will .

The authorities , at the request of the applicant , tapped the anonymous telephone call on DATE . Although a raid was carried out at the address mentioned in the telephone conversation , the premises were found to be empty . The authorities of ORG nevertheless established that the residence searched belonged to reporters from PERSON ORG and concluded that Ferhat ’s killing had been the work of the ORG .

A report of DATE from ORG to ORG and a letter of DATE from the governor of ORG indicate that the death of the applicant ’s son was the work of the ORG .

In a letter of CARDINAL DATE ORG , charged with investigating PERSON death , informed ORG that there was no indication or record of Ferhat ’s having been taken into custody . Moreover , the custody records of ORG contained no mention of him .

The parties submitted various documents concerning the investigation into the alleged abduction and killing of PERSON .

On DATE the applicant ’s lawyer filed a petition with ORG office in PERSON requesting information as to what steps had been taken to find the perpetrators of the abduction and killing of Ferhat .

On DATE , subsequent to ORG decision of non - jurisdiction , the applicant ’s lawyer submitted a petition to ORG office in ORG via the PERSON Chief Public Prosecutor in GPE and requested information about the current state of the investigation into the impugned incident .

The custody records of the ORG provincial gendarmes headquarters for the period DATE and DATE do not contain the name of PERSON .

The anonymous telephone caller told the applicant that their conditions for the release of Ferhat had not been fulfilled . The applicant replied that he was unable to close down the ORG branch of the DEP since this required a decision by the central board in GPE . The applicant was then told to bring GPE CARDINAL billion by TIME DATE to an address in ORG if he did not want his son to be killed . The person in question warned the applicant not to inform the authorities . The applicant ’s request to talk to Ferhat was rejected .

An autopsy was carried out on Ferhat ’s body by the public prosecutor , a medical expert and the latter ’s assistant in the presence of CARDINAL witnesses and a clerk . It was observed that rigor mortis had not set in and the body had not yet turned blue , that water spurted out when the chest was pressed , that light violet - coloured cyanosis was perceptible on the ears and the nails of both the hands and the feet as a result of suffocation and that there were no signs of any blow or of the use of force on the body , nor were there any signs of friction on the hands and feet . It was therefore concluded that the cause of death was drowning and that there was no need for a systematic autopsy .

Nine photographs were submitted to the ORG , taken when the body had been pulled out of the lake . No signs of any blows or ill - treatment are visible on the body in these photographs .

Following the finding of a corpse in LOC and its transfer to the morgue of ORG , the applicant ’s nephew , PERSON ORG , went to the hospital to identify the body , which he recognised as being his uncle ’s son , PERSON .

This document states that Ferhat ORG ’s clothes and shoes were given to Mr PERSON .

In his statement , PERSON submitted that he had been kept in detention in a military detention centre in ORG DATE and DATE . He alleged that he had seen a detainee called “ Ferhat ” or “ journalist ” by the [ officers ] on the CARDINALrd and DATE of his detention . He described Ferhat as being a young man of DATE , with long , dark hair .

In this statement , the witness was asked to say what he knew about the incident . He replied that on DATE , at TIME , he had seen CARDINAL plain - clothes men making enquiries about Ferhat . When CARDINAL of them asked whether he knew Ferhat and the other residents of the building , the witness told them that Ferhat lived there and gave the names of the other residents . He claimed that he did not know whether these men were police officers but that they spoke NORP with a western accent .

Mr PERSON asserted that Ferhat had twice been taken into custody prior to his disappearance and that he was an irresponsible boy according to his father . The witness stated that on DATE , at TIME , Mr PERSON had told him that CARDINAL police officers had made enquiries about Ferhat . He had told Mr GPE that this might have been an investigation in relation to the attack on police buildings which had taken place DATE . DATE , at TIME , he had seen Ferhat and had informed him that QUANTITY police officers had been looking for him . Ferhat had replied to him that he had not done anything wrong . DATE , the witness had learned from the applicant of Ferhat ’s disappearance .

On DATE , at around TIME , the witness saw Ferhat ORG talking to CARDINAL women and QUANTITY or QUANTITY men next to a bakery . A white ORG with the registration number “ CARDINAL ” attracted the witness ’s attention as its parking lights were on . There were CARDINAL young men in the car . The driver was bearded and approximately DATE , while the man sitting next to him was CARDINAL . According to the witness , these men could not have been police officers , otherwise he would have recognised them . The witness learned of the abduction of PERSON when he went to the ORG building DATE .

The witness was DATE at the relevant time . On DATE , at CARDINAL TIME , he was playing football with his friends in the Şemsi Bitlis primary school yard . He saw a bearded man aged about CARDINAL waiting in the schoolyard . TIME Ferhat arrived and they left the schoolyard arm in arm , like CARDINAL friends . The bearded man did not use any force against Ferhat .

The witness was a police constable at the traffic registration and inspection department of ORG . On DATE he was on duty , TIME , in charge of traffic control in the town centre . His car was parked in front of his house throughout DATE . DATE he went to the city centre at CARDINAL or TIME and parked his car in front of the PERSON police station . He returned home at TIME He did not lend his car to anyone on CARDINAL and DATE .

NORP In their statement addressed to the public , the witnesses alleged that they had been taken into custody on DATE and kept in a detention centre in GPE where they were tortured for DATE . During their detention , Mr Elçi heard some officers call out “ Come on , journalist , it is your turn ” . Mr GPE heard them asking a man “ Journalist , where are you from ? ” , to which the reply was “ I am from GPE . Following their detention on remand they read in PERSON that a journalist called PERSON had been killed under torture and that his corpse had been found in ORG . The witnesses submitted that PERSON was the journalist whose voice they had heard during their detention .

The witnesses alleged that they had been kept in a military detention centre in GPE for DATE . On DATE of his detention , PERSON had seen a man called “ journalist ” by others . The journalist was chained by his hands to a water pipe and his body was bloody . He was unable to move or speak . Interrogators were torturing him and putting questions to him concerning his involvement with PERSON Gündem . Following their detention on remand , the witnesses read in PERSON that PERSON had been killed . They identified him from his photos . They claimed that they were sure that they had seen PERSON in the military detention centre in GPE .

The Chief Public Prosecutor informed the gendarmes and the police of Ferhat Tepe ’s disappearance and asked them to verify whether he had been taken into custody for any offence . ORG further instructed that the whereabouts of PERSON be determined , that those responsible for Ferhat ’s disappearance be brought to his office and that all documents related to the case be sent to him .

The Deputy Gendarmes Commander informed the prosecuting authorities in this letter that PERSON had not been taken into custody and that he had eventually been found dead .

ORG requested the former authority to carry out a comprehensive investigation into the death of PERSON and to inform him of the outcome . He requested the latter authority to find the person(s ) responsible for the killing of PERSON and to bring them to his office .

In this letter , the authorities of ORG informed ORG of their conclusion that , having regard to the way in which ORG had been abducted and to the anonymous telephone calls , Ferhat must have been killed by members of the ORG , in a settling of scores within the organisation . They also noted that the allegation that the authorities had failed to respond to the applicant ’s request for help was untrue since , following receipt of the applicant ’s complaint , an investigation had been started and the photographs of PERSON had been distributed to all the provinces and the security units had been alerted .

The Chief Public Prosecutor , Mr PERSON , issued a permanent search warrant for the perpetrators of the killing of PERSON . He requested ORG and the ORG to inform him DATE of any developments in the investigation .

In reply to the petition filed by the applicant ’s lawyer on DATE , ORG declared that the perpetrators of Ferhat ’s killing had not yet been found and that the complainants would be informed of any developments in the investigation .

DATE . It is stated in this letter that there is no record of PERSON having been taken into custody in ORG . According to the evidence given by the witnesses , Ferhat met a man in ORG yard and left the LOC with that man arm in arm , without any force being used . It is also noted that , according to the autopsy report and the photos taken when Ferhat was found , there were no traces of ill - treatment and no blood stains on his body or his clothes , contrary to the allegations .

Following the lodging of the present application with the former Commission and its communication to the Government , in a letter of CARDINAL DATE the authorities of ORG requested information from ORG office on the current state of the investigation into the applicant ’s allegations .

The Chief Public Prosecutor wrote back stating that there was no evidence in support of the applicant ’s allegations that Ferhat had been abducted , kept in custody and killed under torture by the security forces . He noted that the investigation into the murder was pending . He appended to his letter the post - mortem examination report , the autopsy and identification reports and copies of statements taken from PERSON , PERSON , PERSON , PERSON and the applicant as well as the decisions of non - jurisdiction , the permanent search warrant and CARDINAL photos of PERSON .

The subject of this letter was PERSON application to ORG . Having summarised the events , the governor concluded that the accusations made by the applicant were mere allegations since there was no evidence to substantiate them . He noted that on DATE the applicant had received a phone call from a person who had told him to bring MONEY to an address in ORG if he wanted to rescue his son . When the applicant had gone to the address accompanied by police officers from ORG , they had not been able to find anyone . Meanwhile , following inquiries made by the ORG police , it had been established that the residents at this address were CARDINAL journalists from PERSON who had moved out DATE before . The police had found the CARDINAL journalists concerned and had taken statements from them . The governor concluded from these facts that the impugned incident had been a settling of scores within the ORG .

ORG took statements from the witnesses concerning the contents of the document signed by them on DATE and entitled “ To the Public ” .

The witnesses admitted to having signed this document but claimed that the contents were untrue . Mr PERSON and Mr PERSON submitted that a person called PERSON , who was responsible for their prison ward , had written this document and made them sign it . They believed that nothing unpleasant would befall them if they signed the document . They further averred that they had not seen a person called PERSON ; nor did they know of how he had been killed . PERSON , however , asserted that he did not remember when and where he had signed this document .

In this letter , ORG was informed that statements had been taken from PERSON , PERSON and PERSON , that these persons did not know PERSON and that they had denied the contents of the document entitled “ To the Public ” . It was further noted that on DATE a permanent search warrant had been issued to find the perpetrators of the killing of PERSON .

The following documents concern the internal communication of the national authorities concerning the investigation into the disappearance and subsequent death of PERSON :

( i ) Letter of DATE from the ORG to the ORG ;

( ii ) Letter dated DATE from the ORG Chief Doctor to the ORG Chief Public Prosecutor ;

( iii ) Letter of DATE from the ORG deputy governor of PERSON to the PERSON governor requesting the latter to submit information pertaining to the fate of PERSON ;

( iv ) Letter of DATE from the ORG Director to ORG office in ORG ;

( v ) The Sivrice Chief Public Prosecutor ’s decision of DATE to indemnify those who were involved in the conduct of the autopsy on the body of an unidentified person ( PERSON ) ;

( vi ) Letter of DATE from the ORG Director to ORG office in ORG ;

( vii ) Letter dated DATE from ORG no . DATE to the ORG ;

( viii ) Letter of DATE from ORG to the Mayor of ORG ;

( ix ) Letter of DATE from ORG to ORG enclosing PERSON death certificate ;

( x ) Letter of DATE from the ORG Director to ORG office in ORG ;

( xi ) Letter of DATE from ORG to the Mayor of ORG ;

( xii ) Letter of DATE from ORG to the Minister and Deputy Minister of ORG ;

( xiii ) Letter of DATE from ORG to ORG office ;

( xiv ) Letter of DATE from ORG to the ORG office ;

( xv ) Letter of DATE from ORG to ORG office in ORG ;

( xvi ) Letter dated DATE from the public prosecutor , PERSON , to ORG office in ORG ;

( xvii ) Letter of DATE from ORG to the ORG Governor ’s office .

( xviii ) Letter of DATE from ORG to ORG in ORG ;

( xix ) Letter of DATE from ORG to ORG office ;

( xx ) Letter dated DATE from ORG PERSON to ORG office in ORG ;

( xxi ) Report of DATE prepared by the police officers PERSON PERSON and PERSON , informing the Security Director that it had been impossible to find those responsible for the killing of PERSON ;

( xxii ) Letter of DATE from ORG informing ORG it had been impossible to find those responsible for the killing of PERSON .

( i ) Letter of DATE from ORG requesting information from ORG , Mr PERSON ;

( ii ) Mr PERSON letter of CARDINAL DATE addressed to ORG , informing the latter that no evidence had been obtained in regard to the death of PERSON ;

( iii ) Letter of DATE from ORG requesting LAW to inform him of developments in the investigation into the death of PERSON ;

( iv ) Letter of DATE from Mr PERSON informing ORG in ORG that no evidence had been obtained about the persons responsible for the killing of PERSON ;

( v ) Letter of DATE from the Deputy General Director for ORG to ORG and to ORG ;

( vi ) Letter dated DATE from Mr PERSON , ORG , to ORG office in ORG ;

( vii ) Letter of DATE from Mr PERSON to ORG in ORG .

( i ) Letter dated DATE from Mr PERSON , ORG , to ORG office in ORG ;

( ii ) Letter of CARDINAL DATE from Mr PERSON to ORG offices in ORG and to ORG in ORG . Mr ORG noted that there was a permanent search warrant for the person(s ) responsible for the killing of PERSON and requested those authorities to submit information DATE about the investigation ;

( iii ) Letter of DATE from ORG to ORG ;

( iv ) Letters of DATE from ORG to ORG ;

( v ) Letter of DATE from ORG to Mr PERSON ;

( vi ) Letter of DATE from Mr PERSON ’s to ORG office in ORG ;

( vii ) Letter of DATE from ORG Commander , informing ORG in ORG that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( viii ) Letter of DATE from Mr PERSON to ORG office in ORG ;

( ix ) Letter of DATE from ORG to ORG office in ORG ;

( x ) Letter of DATE from ORG Commander informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xi ) Letter of DATE from ORG to ORG office in ORG ;

( xii ) Letter of DATE from ORG Commander informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xiii ) Letter of DATE from ORG to ORG ;

( xiv ) Letter of DATE from ORG to ORG office in ORG ;

( xv ) Letter of DATE from ORG to ORG office in ORG ;

( xvi ) Letter of DATE from ORG to Mr PERSON ;

( xvii ) Letter of DATE from ORG to ORG office in ORG ;

( xviii ) Letter of DATE from ORG to Mr PERSON ;

( xix ) Letter of DATE from ORG Commander informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xx ) Letter of DATE from Mr PERSON requesting ORG at ORG to submit information as to whether Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON had been kept in detention on remand in DATE and DATE and whether these persons had seen PERSON in detention . He further requested information regarding the current addresses of these persons ;

( xxi ) Report of DATE regarding the search for the person(s ) responsible for the killing of PERSON , from FAC to ORG .

( xxii ) Letter dated DATE regarding the search for the person(s ) responsible for the killing of PERSON , from FAC to ORG .

( i ) Letter dated DATE , from the Presidency of ORG to ORG office at the same court , indicating the addresses of Mr PERSON , Mr PERSON , Mr PERSON and providing information about them ;

( ii ) Letter of DATE from ORG to ORG office in GPE

( iii ) Letter dated DATE from ORG office in GPE to ORG ;

( iv ) Letter of DATE from the ORG Security Director to ORG office in GPE ;

( v ) Letter of DATE from ORG to ORG office in ORG ;

( vi ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( vii ) Letters of DATE from ORG to ORG office in ORG ;

( viii ) Report of DATE drafted by police officers , who informed ORG that the perpetrator(s ) of the killing of PERSON could not be identified ;

( ix ) Report of DATE drafted by police officers who informed ORG that the perpetrator(s ) of the killing of PERSON could not be identified ;

( x ) Letter of DATE from ORG to ORG ;

( xi ) Letter of DATE from ORG to ORG office in ORG ;

( xii ) Letter of DATE from Mr PERSON to ORG office in ORG ;

( xiii ) Letter of DATE from ORG to ORG office in ORG ;

( xiv ) Letters of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xv ) Letter of DATE from ORG to ORG ;

( ORG Report of DATE , drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xvii ) Letter of DATE from ORG to ORG office in ORG ;

( xviii ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xix ) Report of DATE , drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified .

( i ) Report dated DATE drafted by police officers , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( ii ) Letter of DATE from ORG to ORG office in ORG ;

( iii ) Report dated DATE , drafted by police officers , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( iv ) Letter of DATE afrom Mr PERSON to ORG in Elazığ ;

( v ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( vi ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( vii ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( viii ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( ix ) Letter of DATE from ORG to ORG office in ORG ;

( x ) Report dated DATE , drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xi ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xii ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xiii ) Letter of DATE from ORG to ORG office in ORG ;

( xiv ) Report dated DATE , drafted by gendarmes ; noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xv ) Report of DATE , drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( ORG Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xvii ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xviii ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xix ) Letter of DATE from ORG to ORG office in ORG ;

( xx ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xxi ) Letter of DATE from ORG to ORG office in ORG .

( i ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued ;

( ii ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( iii ) Letter of DATE from the ORG Director to ORG office in ORG ;

( iv ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( v ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued ;

( vi ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( vii ) Letter of DATE from ORG to ORG ;

( viii ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( ix ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( x ) Letter of DATE from the Bitlis Şehit Fuat Bal Police Station Director to ORG ;

xi ) Letter of DATE from the ORG Director to ORG office in ORG ;

( xii ) Letter of DATE fro the ORG Director to ORG office in ORG ;

( xiii ) Letter of DATE from ORG informing ORG in Elazığ that the perpetrator(s ) could not be identified and that the investigation into the incident was still pending ;

( xiv ) Report dated DATE , drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xv ) Letter of DATE from the chief of PERSON FAC to the Law and Order Department ;

( xvi ) Letter of DATE from the ORG Director to ORG office in ORG ;

( xvii ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued .

( i ) Letter of DATE from the ORG Director informing ORG office in Bitlis that the person(s ) responsible for the killing of PERSON could not be identified ;

( ii ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( iii ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( iv ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( v ) Reports of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( vi ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( vii ) Letter of DATE from the ORG Director informing ORG office in Bitlis that the person(s ) responsible for the killing of PERSON could not be identified ;

( viii ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( ix ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( x ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xi ) Letter of DATE from the ORG Director informing ORG office in Bitlis that the person(s ) responsible for the killing of PERSON could not be identified ;

( xii ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xiii ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued ;

( xiv ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xv ) Report of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified ;

( xvi ) Letter of DATE from the ORG Director informing ORG office in Bitlis that the person(s ) responsible for the killing of PERSON could not be identified ;

( xvii ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued . ;

( xviii ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( xix ) Letters of DATE from the chief of PERSON to the Law and Order Department ;

( xx ) Export of DATE drafted by police officers , informing ORG that the person(s ) responsible for the killing of PERSON could not be identified .

( i ) Letter of DATE from ORG informing ORG in Elazığ that the person(s ) responsible for the killing of PERSON could not be identified and that the investigation into the incident was still pending ;

( ii ) Letter dated DATE from ORG no . DATE to ORG office in PERSON ;

( iii ) Follow - up report of DATE about the suspects in respect of whom a search warrant had been issued . ;

( iv ) Report dated DATE drafted by gendarmes , noting that the person(s ) responsible for the killing of PERSON could not be identified ;

( v ) Letter of DATE from the ORG Director to ORG office in ORG ;

( vi ) Letter of DATE from ORG Commander ;

( vii ) Report dated DATE drafted by ORG no . DATE , noting that the negatives of the films taken of the body of PERSON had been given to an officer from ORG ;

( viii ) Letter dated DATE drafted by ORG no . DATE , informing the ORG Chief Public Prosecutor that DATE reports on developments in the investigation were received from the PERSON and ORG and ORG and that a permanent search warrant had been issued in respect of the person(s ) responsible for the killing of PERSON .

DATE . The applicant produced press releases concerning the alleged abduction and killing of PERSON as well as the general situation in south - east GPE at the relevant time . It was reported that PERSON was the sixth correspondent of PERSON to be killed since the paper had gone into publication in DATE . It was also stated that a previously unknown underground organisation calling itself the “ NORP - Ottoman Revenge Brigade ” had claimed responsibility for the abduction of Ferhat in a telephone call to his family .

In a press release issued by ORG on DATE , calling for urgent action , it was reported that the applicant , PERSON , had been taken into custody on charges of aiding the ORG . It was claimed that PERSON had met the police officers against whom he had filed an official complaint after the murder of his son and his nephew and that he had been released after being brought before a court in PERSON on DATE . Mr ORG had not been subjected to any form of ill - treatment and had been able to see his wife and his lawyer while in police custody .

The facts of the case being in dispute between the parties , the ORG conducted an investigation with the assistance of the parties . In this respect , CARDINAL delegates of the ORG took oral evidence DATE from CARDINAL witnesses . A further CARDINAL witnesses had been summoned but did not appear for various reasons . The evidence given by the witnesses may be summarised as follows .

The applicant ; who is currently living in GPE , was the provincial chairman of the DEP in ORG in DATE . He was at the same time a building contractor . During the taking of evidence in GPE , in addition to his submission of the facts , the applicant stated the following .

At the relevant time , the applicant ’s son Ferhat lived with him and helped him at his building site . Ferhat also worked for PERSON as a provincial reporter . He was not politically active . However , he had been taken into custody on CARDINAL occasions before his disappearance . His first detention , on charges of aiding and abetting the ORG , took place DATE before his release on DATE . The second arrest was probably on DATE , when he had not been taken into police custody . Ferhat was taken to the police station , where he met a police officer from the anti - terrorist department called PERSON , known as “ sakallı ” ( the bearded one ) in PERSON and bearing the nickname “ Hacı ” . There were also CARDINAL other men in the room whom Ferhat had never seen before . Ferhat felt that ORG had taken him there to show him to these CARDINAL newcomers . CARDINAL or DATE Ferhat was abducted .

In TIME of DATE , at TIME , the applicant received an anonymous phone call from a person claiming to belong to an organisation called the “ NORP - Ottoman Revenge Brigade ” who declared that they were keeping his son as a hostage . In the applicant ’s opinion , the anonymous person on the phone was General PERSON . He recognised the general ’s voice from their meeting DATE , when General PERSON had held a meeting with the provincial chairmen of all the political parties .

Immediately after this call , the applicant and his wife went to ORG where they met the security director , PERSON PERSON , and the provincial governor of PERSON , Mr PERSON . At the latter ’s request , the applicant wrote a petition to the administrative authorities and to the public prosecutor complaining that his son had been abducted by contra - guerrillas operating within the ORG . He asked the authorities to take immediate action to find him . He refrained from naming any suspects at the time , in particular General PERSON , as he hoped to get his son back alive . The chief of police told the applicant that his son had not been taken into custody .

DATE the applicant contacted PERSON , who had witnessed Ferhat ’s abduction . PERSON told him that a tall person with a slight beard had held Ferhat by the arm and had taken him away . From his manner and the fact that he was holding a walkie - talkie in his hand , PERSON had deduced that he was a policeman . However , PERSON was unable to repeat these allegations at the police station since he was under pressure .

A construction worker called PERSON also told the applicant that he had seen Ferhat being taken away in a car with the registration number CARDINAL AD CARDINAL . The applicant did not see PERSON again and later learned that PERSON had gone to GPE .

The applicant ’s nephew , PERSON , contacted former ORG members who had later become “ confessors ” ( i.e. persons who cooperate with the authorities after confessing to having been involved with the ORG ) for information about this case . CARDINAL of them , ORG , stated that General PERSON had ordered the killing of Ferhat . Some police officers and the ORG ( the gendarmes’ intelligence agency ) , led by Major PERSON and ORG , were involved in this plot . A warfare specialist , PERSON , code name “ PERSON ( “ the Green ” ) was at the head of this plot . Another “ confessor “ called PERSON – code name Cihan – confirmed that General PERSON had been involved in the killing of Ferhat .

A journalist , PERSON , published his interviews with Major PERSON Ersever , the head of ORG , who said that PERSON and another person had been abducted by PERSON team , who had been assigned to ORG zone . The ORG headquarters were at the gendarmes’ interrogation centre in GPE , where Ferhat had been taken and murdered .

The witness is currently living in PERSON . He was on a visit to PERSON at DATE . He stated that in TIME of DATE , around DATE or TIME , he had been playing football in the yard of the Şemsi Bitlis primary school when he had seen Ferhat walk over . He noticed that a young man around DATE , who was slightly bearded and dressed in civilian clothes was following Ferhat . They shook hands and walked away arm in arm , like ordinary friends . The witness did not see any cars around . DATE he heard that Ferhat was missing .

The witness denied the allegation that he had told the applicant about a tall bearded man , known in the area to be a policeman , or that this man had approached Ferhat , taken him by the arm and put him in a car .

The witness is a practising lawyer in GPE . He was the lawyer of PERSON at the relevant time and became the applicant ’s counsel following the killing of his son .

The witness interviewed ORG in the ORG prison . The latter told him that he had seen PERSON ( “ the journalist ” ) while being held in custody by the gendarmes . However , Mr Çerçel did not maintain his statement for fear of persecution . He also met LOC and PERSON , who mentioned having seen PERSON in custody . They were also afraid to testify before the authorities . They told the witness that a person by the name of ORG had also seen Ferhat and had even talked to him . The witness ’s attempts to reach Mr PERSON also failed as the latter was under threat of death because of this incident . The witness has never spoken to PERSON , PERSON and PERSON . He did not take statements from PERSON and ORG .

The witness was the applicant ’s business partner at the time . On DATE he was told by PERSON that QUANTITY police officers had made enquiries about Ferhat and the applicant . He reported this to Ferhat and asked him not to go anywhere . Ferhat was very calm about it and told him that he would be at home . That was the last time he had seen Ferhat .

The witness was the provincial commander of ORG at the relevant time . He was in charge of security and law - and - order services outside the borders of the municipality . He had no judicial authority . He was not involved in the investigation into the disappearance and murder of Ferhat , as the incident had taken place within the police authority zone . He heard from the intelligence services in the area that Ferhat was suspected at the time of being involved in money laundering business and that he might have been killed by the ORG .

The above witnesses were all police officers at the time in ORG occupying different functions in different departments , namely anti - terrorism , contraband and traffic . None of the witnesses were involved in the investigation into the disappearance and subsequent killing of PERSON . Nor did they know of Ferhat , with the exception of PERSON , who said that PERSON was a small town with a population of CARDINAL where everyone knew each other . He had seen Ferhat before DATE , when the latter had made a statement at the police headquarters . PERSON did not remember when this statement had been made and what it had been about . However , the statement was sent to ORG , with a note that Ferhat was a ORG sympathiser . Mr Şentürk further stated that he had grown a beard at the time . He also stressed that Ferhat had never been taken into custody .

Mr PERSON confirmed that PERSON nickname was “ the bearded CARDINAL ” . Mr ORG was first asked to give an account of what he had been doing on DATE after the incident . He explained that he used to have a beige car at the time , with the licence plate number CARDINAL DA CARDINAL , and that on DATE this car had been parked in front of his house . He had not lent it to anyone . Eye - witnesses identified it as not being the vehicle involved in the incident . The car involved in the abduction had been a white ORG .

The witness was a former member of the ORG , holding a leadership position in the organisation until he was caught on DATE . Benefiting from the confession law , he became a “ confessor ” in return for information he gave to the authorities . He was released in DATE .

In or around DATE the witness and QUANTITY other local leaders of the ORG summoned PERSON to ORG village in the ORG area and questioned him in relation to his activities . Subsequent to a second meeting held on DATE in the mountains , in DATE Ferhat was sentenced to death on the grounds that he had been the cause of the killing of a female member of the ORG as a result of having had sexual intercourse with her and that he had used money collected for the ORG for his own purposes , i.e. to build a house and to buy a car .

The witness explained that the ORG carried out death sentences by shooting where security did not pose a problem . Alternatively , other methods were used , such as throwing people down from rocks and strangling or drowning . Subsequent to his arrest , the witness reported to the police that Ferhat was on the list of persons sentenced to death by the ORG . However , he did not know whether Ferhat had been killed by the ORG .

The witness was the commander of the ORG provincial gendarmes headquarters DATE . He was in charge of law and order and security in the rural areas within the boundaries of the province of ORG , which did not include the area around PERSON . His organisation did not carry out any investigation into GPE death . He was asked by ORG at ORG whether PERSON had been taken into their custody . After examining the custody records and consulting his colleagues in all the gendarmes stations under his command , the witness reported back that no one of that description had been brought to their LOC or taken into custody or involved in any incident in their region .

The witness admitted to mistakes or negligence in the keeping of the custody records at headquarters . He stated that , for security reasons , it was routine practice to blindfold people taken into custody when they arrived at headquarters . The blindfold was taken off once they were inside and , after that , they were never blindfolded . While he was serving in ORG , the witness heard some rumours about a NORP - Ottoman Revenge Brigade , but there was never any concrete evidence of the existence of such an organisation .

The witness had been the head of the interrogation unit composed of CARDINAL officers at the ORG provincial gendarmes headquarters . His recollection of PERSON death was limited to the question asked by his commander , Mr PERSON , namely whether Ferhat had been taken into custody . He consulted the records and told his commander that Ferhat had not been detained .

The witness was not in charge of keeping the custody records and there was an officer specifically responsible for that duty at the headquarters . He asserted that detainees were never blindfolded during interrogation and that there was never any physical contact between the interrogators and those detained . He denied the suggestion that anybody had been tortured in the interrogation unit , since medical certificates were issued at the end of the custody period . He further stated that , at the relevant time , there had been CARDINAL detention cells . If CARDINAL detainees were brought in , they were transferred to other districts and held there until a cell became vacant in ORG .

The witness was the ORG Director in command of a staff of CARDINAL people at the relevant time . On DATE he was on duty when the applicant , along with his wife and daughter , came to the NORP police headquarters to tell him that he feared for the life of his son who had disappeared . The witness reassured the applicant , saying that he had checked with his colleagues that Ferhat had not been taken into their custody . He explained that every morning he received a list of the persons taken into custody by any of the security forces in his zone . This list was drawn up by the provincial police headquarters in the form of a report , listing the incidents of the day in the municipal area . It was then sent to the governor ’s office . A similar report was submitted to the governor by the gendarmes responsible for rural areas . There were also DATE security meetings held in the province with the Governor , which the witness and PERSON attended .

The witness assigned a police superintendent to the task of keeping in touch with the PERSON family . Statements were taken from all the persons named by the family . The information regarding the disappearance of Ferhat was communicated by radio and telex to all provinces in GPE . The witness confirmed that he had been asked by the applicant to trace phone calls , but this procedure had not led anywhere , as in DATE , it was not possible to trace calls made from public telephone booths . Unable to obtain traceable bank notes from ORG owing to bureaucratic obstacles , he could not give cash to the applicant to pay the ransom .

The witness was the doctor who signed the autopsy report . At the relevant time , he was a general practitioner working at the district health centre in the ORG district of ORG . He was not a pathologist qualified to conduct autopsies . He had , however , witnessed many autopsies carried out on persons drowned in LOC . He claimed that there were CARDINAL drowning incidents per day at the relevant time .

The witness said he remembered the incident very well . He arrived at the scene of the incident at TIME on DATE . After examining the body , he concluded that it was definitively a case of death by drowning which had occurred within a maximum of TIME . The deceased ’s lips were discoloured as though he had been deprived of oxygen and cyanosis had occurred . Rigor mortis had not set in . He could not see any scratches on the body . Nor did he find any fracture or bruising thereon . There was no sign that the deceased had been either in a fight or hit , beaten , pushed , thrown or killed , or that the body had been brought and thrown into the water . However , the witness saw MONEY on the neck and diagnosed them as being erythema , an allergic reaction . He did not think it was necessary to note this in the autopsy report . The witness considered it unnecessary to call in a pathologist or to apply to superior authorities for an autopsy , since he had no doubt that it was a case of ordinary drowning .

The witness found the body on CARDINAL DATE , at TIME He had gone to the lake early in the morning for fishing . He saw the body CARDINAL submerged in the water . The body had underpants on . He pulled the body onto the shore and left it right by the edge of the water . He did not notice any particular features on the body , such as bloodstains or marks of any kind . He saw that there were some clothes – trousers and a shirt which had been placed on the shoes CARDINAL a QUANTITY from the shore . He then went to a petrol station and called the ORG gendarmes station . He stayed on the spot for TIME and statements were taken from him by the public prosecutor .

The witness , who signed the autopsy report , was at the time ORG in ORG . Although it was not the usual practice , he had photographs taken of the body for identification purposes following the post - mortem examination . At the beginning of his testimony , the witness stated that he had not taken any steps to see whether the body he had found matched any person reported as missing . After consulting the doctor and having heard the witnesses , he decided that a systematic autopsy was unnecessary as there was nothing suspicious about the incident and that he had come across similar drowning incidents in the past . However , he had not encountered a case where the identity of the victim was unknown and the identity card missing . Later he said that he had instructed both the gendarmes and the police to investigate whether anyone had reported a relative missing . He had the body sent to the morgue of ORG as there was no suitable morgue in GPE . He was informed later that the body had been buried because of a technical problem in the morgue . However , he did not know when the body had been buried and who had ordered the burial . He did not know anything about PERSON until Ferhat ’s cousin , a lawyer , had applied to their office DATE after the incident . When the witness learned that the scene of the incident fell within the territorial jurisdiction of ORG , he issued a decision of non - jurisdiction on CARDINAL DATE .

The witness was the public prosecutor in ORG , in charge of the investigation into the death of PERSON . In the investigation file and the autopsy report he received , there were no findings indicating that the deceased had been tortured . There was no sign of any ill - treatment on the photographs . In their statements made at ORG office , Mr PERSON , Mr Taner PERSON and Mr PERSON had denied the allegations contained in the declarations addressed “ To the Public ” . There was therefore no evidence that Ferhat had been abducted or killed under torture . The witness considered the incident to be a case of ordinary death by drowning and , accordingly , did not deem it necessary to conduct any further investigation .

The witness was ORG in PERSON at the time of the events . He was on judicial leave from DATE to DATE . On DATE he was appointed as a judge to a court in GPE . He could not contribute to the elucidation of the facts .

The witness was CARDINAL of the CARDINAL Public Prosecutors who were deputies to ORG in PERSON . He was on duty when ORG was on leave . He issued a decision of non - jurisdiction on DATE after the body had been found and sent the preliminary investigation file he had prepared to ORG office . He said the case had struck him as a unique and unusual one at the time . However , he could not remember whether he had done anything about the case , but said : “ I must have started the investigation ” .

The witness was a trainee public prosecutor in GPE in DATE and DATE . He did not take part in any investigation concerning PERSON .

The witness was assigned to the ORG office as a public prosecutor on DATE . He was on duty in DATE and DATE along with his colleague , Mr PERSON . He confirmed that Mr PERSON had been in charge of the investigation while he personally had not been involved in it . He did remember , however , that there had been some incidents during the funeral .

On DATE all CARDINAL witnesses were arrested on suspicion of aiding and abetting members of the ORG and taken into custody at the ORG gendarmes headquarters , where they stayed for DATE . The witnesses were then taken to ORG and kept at the gendarmes headquarters DATE and DATE . On DATE , ORG ordered the witnesses’ detention on remand and they were transferred to ORG E - type Prison . They stayed in the same cell for DATE until ORG ordered their release following acquittal .

The witnesses denied the suggestion that , during their detention , they had seen Ferhat PERSON being tortured or killed . Nor had they known of him or heard of a journalist being detained in the same place with them . As regards the document addressed to the public which they had signed in prison , the witnesses alleged that the persons in the ward who had told them to sign this document had tricked them into it , as it contained statements which they had never uttered . They thought that it was a document prepared for the purposes of their defence in court ; they had not read the document before signing it . The witnesses further stressed that they had been very young at the relevant time ( CARDINAL , DATE , and DATE respectively ) and that the persons who had made them sign the document had taken advantage of their youth and inexperience . The witnesses finally claimed that they had learned of the content of the impugned document when ORG had taken their statements about it on DATE .

LAW ( ORG ) , as regards unlawful killings , has provisions dealing with unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .

NORP Under LAW and QUANTITY of LAW ( ORG Usulü GPE ; hereinafter “ ORG ” ) , complaints in respect of these offences may be lodged with the public prosecutor . The complaint may be made in writing or orally . In the latter case , such a complaint must be recorded in writing ( LAW . The public prosecutor and the police have a duty to investigate crimes reported to them ( LAW ) .

If there is evidence to suggest that death is not due to natural causes , police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duties is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators ( LAW ) . The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect ( LAW ORG ) . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , the public prosecutor may close the investigation . However , the public prosecutor may decide not to prosecute if , and only if , the evidence is clearly insufficient .

In so far as a criminal complaint has been lodged , a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings . This appeal must be lodged within DATE after notification of this decision to the complainant ( LAW ORG ) .

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

“ All acts of decisions of the administration are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

This provision is not subject to any restriction even in a state of emergency or war . The second paragraph does not require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify individuals 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 .

Under LAW , anyone who suffers damage as result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage ( ORG CARDINAL - CARDINAL ) and non - pecuniary damage . The civil courts are not bound by either the findings or the verdict of the criminal court as to the issue of the defendant ’s guilt ( Article CARDINAL ) .


The applicants are NORP nationals , born in DATE and CARDINAL DATE respectively and living in GPE . They are represented before the Court by PERSON , a lawyer practising in GPE . The applicants have introduced their application on behalf of their deceased husbands and on their own and their children ’s behalf .

TIME on DATE the first applicant and her husband , PERSON , left a wedding party in GPE to return home to their house in the ORG district of GPE , TIME drive away . They were travelling in a car driven by the second applicant ’s husband , PERSON .

PERSON was a well - known NORP lawyer and was active in the defence of NORP rights . CARDINAL of his clients , a NORP businessman . was murdered by persons unknown on DATE . PERSON was arrested in DATE and detained for DATE . It is alleged that he was tortured during that time . PERSON had been working as his chauffeur for DATE .

When they were close to home , a white ORG car containing several passengers forced them to stop . A man emerged from the car and fired shots at the second applicant . He then started firing at PERSON , saying : ‘ I ’ve got you.’ The first applicant tried to shield her husband and was herself shot several times . PERSON and PERSON died either immediately or almost immediately in the attack .

The gunman got back into the car and the car drove off at speed . The police arrived at the scene within TIME , having been called on the emergency number . The first applicant was taken to hospital where she underwent an operation to have the bullets removed from her body .

Following her operation , the first applicant gave a statement at the hospital to police officers . She claims that the interview was cursory and that she overhead CARDINAL officer saying that the killers could have been caught if the police at the scene had immediately contacted a nearby police station .

The second applicant was informed on the telephone by someone at the GPE ’s home TIME on DATE that her husband had been involved in a car accident and had to be taken to hospital . When the second applicant arrived at the hospital she was told that her husband had been shot dead and that his body was in the hospital morgue . According to the second applicant , the security forces never asked her for a statement although they put questions to her neighbours about her deceased husband . She has not been informed of any investigation having been carried out into his death .

The applicants state that as of DATE there have been no developments in the case file . They report that , according to the competent public prosecutor , the case file has still not been sent back by the police homicide department . The first applicant draws attention to her claim that the autopsy report on her husband went missing from the file at CARDINAL stage . The second applicant states that her husband ’s address book was not returned to her along with his belongings .


Violation of Art. 14+P1-1;Not necessary to examine P1-1 alone;Pecuniary damage - reserved;Costs and expenses - reserved

The applicant was born in DATE and lives in GPE .

At the time of the events the applicant was a civil servant in the administration of GPE . On DATE the applicant ’s wife , who was also a civil servant in the administration of GPE , died . During her working life she had paid contributions to the pension scheme established under LAW ( Pensionsordnung ) and LAW ( Ruhe- und ORG - gesetz ) .

By decision of CARDINAL DATE GPE granted the applicant a survivor ’s pension ( Versorgungsgeld- PERSON ) under the relevant provisions of LAW of DATE , and LAW . LAW in force at the relevant time provided for a survivor ’s pension in the amount of PERCENT of the retirement pension of the applicant ’s late wife . PERSON was added a proportionate supplementary allowance under LAW .

According to the transitory provision contained in LAW the DATE payments to which the applicant was entitled amounted to CARDINAL of the survivor ’s pension from DATE , CARDINAL of the survivor ’s pension from DATE and the full survivor ’s pension from DATE .

On DATE the fourteenth amendment of LAW of DATE came into force and LAW became invalid with effect from DATE .

According to LAW of the amended LAW the survivor ’s pension amounted to CARDINAL of the retirement pension of the deceased civil servant , the concrete percentage to be calculated on the basis of the retirement pensions of both spouses .

According to Section CARDINALe of LAW , former LAW was still applicable to entitlements to a widow ’s pension or a pension of a widower who was incapable of gainful employment and indigent , which had been acquired prior to DATE .

On DATE the GPE reduced the amount of the applicant ’s survivor ’s pension to PERCENT of his late wife ’s retirement pension .

On DATE the applicant appealed against this decision .

He submitted that , had he been a woman in a similar position , former Section CARDINAL of LAW would have applied to him and he would have been entitled to a survivor ’s pension in the amount of PERCENT of his late wife ’s retirement pension instead of PERCENT which he received now under LAW and LAW . This violated his constitutional right to equal treatment .

On DATE ORG of GPE ( ORG ) dismissed the appeal .

On DATE the applicant filed a complaint with ORG ) .

On DATE ORG declined to deal with the applicant ’s complaint for lack of prospects of success .

On DATE ORG ) to which the case had been transferred upon the applicant ’s request , dismissed the applicant ’s complaint .

It referred , inter alia , to case - law of the Constitutional Court concerning similar provisions of LAW DATE . ORG had found that in the light of continuing change in attitudes towards the equality of sexes , an exclusion of a widower from survivor ’s payments would , as a rule , constitute a violation of the principle of equal treatment .

There was , however , no constitutional concern about provisions which , in the course of an adjustment process , provided for equal rights of widows and widowers to a survivor ’s pension as of a certain date , but maintained differences as regards the entitlement to survivor ’s pensions acquired prior to that date . This decision was served on the applicant ’s counsel on DATE .

In its DATE version the relevant provisions of LAW ( Pensionsordnung für GPE , LGBl Nr . CARDINAL/CARDINAL ) read as follows :

" The surviving spouse of a civil servant is entitled to a DATE pension if the civil servant himself had such a claim on DATE of his death , or if he would have had such a claim upon retirement on DATE . "

“ A survivor ’s pension shall amount to PERCENT of the civil servant ’s retirement pension ...... ”

" The DATE instalments to which the widower or the former husband are entitled , are - from CARDINAL DATE the amount of CARDINAL ; - from DATE the amount of CARDINAL ; - and from DATE the full amount . If the widower or former husband is incapable of gainful employment and indigent , this restriction does not apply . "

On DATE , when the fourteenth amendment to LAW came into force , the relevant provisions of this LAW were amended as follows :

“ CARDINAL . A survivor ’s pension shall amount to a certain percentage of the civil servant ’s retirement pension ...

... the percentage shall lie CARDINAL ... ”

“ Provided the entitlement [ to a survivor ’s pension ] had been acquired before DATE , LAW as in force on DATE is still applicable

- to the survivor ’s pension of a widow ...

- to the survivor ’s pension of a widower , if he is incapable of gainful employment and indigent ..... ”

The Pension Act has meanwhile repeatedly been amended . Current Section CARDINAL § CARDINAL reads :

Section CARDINAL of the Pension Allowance Act ( Ruhe- und Versorgungs - genuβzulagengesetz ) grants a survivor entitled to a survivor ’s pension [ under LAW ] a supplementary pension allowance amounting to a certain percentage of the civil servant ’s retirement supplementary allowance . The percentage corresponds to the percentage relied on when calculating the survivor ’s pension under LAW .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by Mr P. Laptev , Representative of GPE at ORG .

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

In DATE the applicant took part in a rescue operation on the site of the GPE nuclear disaster . As of an unspecified date the applicant has been in receipt of social benefits in this connection .

On an unspecified date the applicant brought court proceedings against the social security authority ( PERSON пенсий и пособий PERSON района г. PERSON , “ the authority ” ) for unpaid social benefits .

On DATE the ORG of the town of GPE granted the claim and ordered the authority to re - calculate the amount of the applicant ’s social benefits . It appears that the judgment indicated the specific amounts due by the authority .

Having examined the authority ’s appeal on DATE , ORG upheld the judgment of CARDINAL DATE with minor amendments . In particular , it replaced the specific amounts with a general indication that the authority ought to have re - calculated the applicant ’s social benefits using index “ CARDINAL ” .

On DATE the first instance court issued the writ of execution in respect of the judgment of CARDINAL DATE .

It appears that thereafter the applicant sent the writ to the bailiffs and on DATE they opened the enforcement proceedings .

Having received a letter from the authority confirming the compliance with the judgment , on DATE the bailiff terminated the enforcement proceedings . The letter of the authority stated that the amount due for the period between CARDINAL DATE and DATE ( CARDINAL,CARDINAL.CARDINAL RUR ) was requested from ORG , that the re - calculated DATE payment for period as of DATE was of CARDINAL ORG and that it was paid in full .

It appears that the payment allegedly due for the period from DATE to DATE was not paid to the applicant and on an unspecified date the applicant brought court proceedings against the authority in this connection . He also sought higher amount of social benefits and damages .

By judgment of DATE the ORG of the town of Izhevsk partly granted the claim and ordered the authority to pay ORG as a principal debt in respect of past payments and ORG as damages in respect of inflation losses in the applicant ’s favour . The court clarified the judgment of CARDINAL DATE and the decision of DATE , having ruled that the authority ought to have re - calculated the applicant ’s DATE payments for DATE and not from DATE as indicated by the authority earlier .

The judgment of DATE was upheld on appeal by ORG on DATE .

The Government submits that the money due pursuant to the judgment of DATE and the decision of DATE was paid to the applicant in full on CARDINAL DATE .

A special law adopted in DATE entitles the participants of the liquidation of the consequences of the GPE nuclear accident to additional social benefits , including DATE payments .

Section CARDINAL of LAW of CARDINAL DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that a coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE upon receipt of the writ of enforcement by the bailiff .


Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

NORP The applicant was born in DATE and lives in GPE .

While performing his compulsory military service , the applicant was injured . He was subsequently declared medically unfit to serve in the armed forces on account of his injury and was thus discharged .

The applicant subsequently applied to ORG ( “ PERSON ” , “ ORG ” ) , claiming a special service disability pension . Upon the ORG ’s refusal of this claim , he brought an action before ORG for the annulment of the ORG ’s decision denying him a service disability pension .

On DATE ORG dismissed the applicant ’s claim , holding that no causal link could be established between the applicant ’s disability and the functions he performed in the armed forces . The written opinion of the principal public prosecutor submitted to this court prior to the delivery of the decision was not communicated to the applicant .

On DATE ORG dismissed the applicant ’s request for rectification of its previous decision as the request had been lodged outside the statutory time - limit .

A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Domestic and Convention proceedings (global)

The applicant was born in DATE and lives in Vouziers .

By a decision of CARDINAL DATE the occupational counselling and redeployment board ( “ the LAW ” ) gave the applicant a PERCENT disability rating and issued her with a card certifying that she found it difficult to remain in a standing position .

On DATE , the regional health insurance fund ( “ the ORG ” ) for the LOC region rejected the applicant ’s request for a retirement pension as of DATE on the basis of her incapacity to work , on the ground that she was not PERCENT disabled .

On DATE the disability claims tribunal upheld the ORG ’s decision .

The applicant appealed to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work ( “ the CNITAAT ” ) , submitting a number of medical certificates attesting to her state of health and relying on the ORG ’s decision of CARDINAL DATE .

In a decision of DATE , the ORG upheld the decision of the disability claims tribunal , stating the following reasons :

“ The rate of disability comprised PERCENT acknowledged for the purposes of issuing the card certifying that it is “ difficult to remain in a standing position ” is not calculated using the same assessment criteria as the rate applicable in the present case , so this ground of appeal can not be upheld ;

The accredited doctor of the national tribunal for claims relating to disability and level of insurance coverage for accidents at work observes the following :

‘ The subject shows signs of preexisting injuries : fracture of the CARDINALth sacral vertebra in DATE , fracture of the left kneecap that was pinned and wired in DATE , fracture of the lower right tibia in DATE .

No after - effects in the region of the sacrum are mentioned . The left knee is slightly limited in flexion and shows mild gonarthrosis , and there is lateral calcification of the patella . No after - effects in the left ankle are reported .

There is arthrosis of the whole spinal column , with degenerative discopathy at LCARDINALSCARDINAL . It is mild arthrosis , not unusual at the subject ’s age , with only a slight loss of flexibility of the different segments of the spine . Episodic onsets of sciatica and cervicobrachial neuralgia are reported in the case history . There are no signs of herniated lumbar disk .

There is calcifying periarthritis of the left shoulder , but it does not restrict movement . The same applies to the arthrosis at the base of the right thumb.’

He concludes that :

‘ On DATE the subject was in a fit state to carry on working without seriously jeopardising her health and , considering her physical and mental fitness for work , did not suffer from a permanent incapacity to work of CARDINAL ;

In the light of the above medical opinion , the documents in the file and the criteria laid down in Articles L. CARDINAL - CARDINAL and NORP DATE of LAW , the national tribunal for claims relating to disability and level of insurance coverage for accidents at work decides to uphold the impugned decision ... ”

The applicant lodged a notice of appeal on points of law on CARDINAL DATE . In further pleadings her lawyer filed with ORG on DATE , she invoked , inter alia , a violation of “ the requirements of the rights of the defence ” and of “ equality of arms in a fair trial within the meaning of Article CARDINAL ” of the Convention , in that the report by the ORG ’s accredited doctor , drawn up solely on the basis of documents , had not been made available to her or to the doctor she had appointed to submit observations .

By a judgment of DATE ORG of ORG dismissed the applicant ’s appeal in the following terms :

“ ... on the one hand , the accredited doctor instructed , under the terms of LAW DATE of LAW then in force , to carry out a preliminary review of the case , simply gives an opinion to the national disability tribunal without submitting an expert report for adversarial discussion by the parties ;

Without laying itself open to the objection raised in the ground of appeal , the national disability tribunal , in the light of the findings of its accredited doctor and having analysed the different evidence adduced , considered , as it was within its exclusive jurisdiction to do , that PERSON disability rate – the LAW evaluation of which was not binding on it DATE was PERCENT , and that the applicant was therefore not entitled to a retirement pension on the ground of incapacity to work ;

For these reasons ,

the appeal ... is dismissed . ”

The rules governing the powers , organisation and operation of social security courts and procedure before them are laid down in the Social Security Code . Alongside the general social security claims department there is a “ technical claims ” department which deals with claims concerning the existence or seriousness of a disability , the rate of permanent disability in the event of an occupational accident or disease and the incapacity to work taken into account by the old - age insurance scheme . Such claims are submitted in the first instance to the disability claims tribunal , and appeals are heard by the ORG , whose decisions are in turn subject to appeal on points of law .

Articles L. CARDINAL , NORP CARDINAL - CARDINAL , NORP CARDINAL - CARDINAL , NORP CARDINAL and NORP CARDINAL - CARDINAL of the Social Security Code stipulate that the ORG is composed of sections , each with CARDINAL members , as follows :

- one president , who is a practising or honorary administrative or ordinary court judge and is appointed for an indefinite period by joint decision of the Minister of ORG and the Minister responsible for ORG ( depending on the nature of the case being considered ) ;

- CARDINAL members who are practising or honorary administrative or ordinary court judges or A - grade civil servants from ORG responsible for ORG or for ORG , appointed by joint decision of the Minister of ORG and the Minister responsible for ORG ;

- CARDINAL non - presiding judges ( assesseurs ) , CARDINAL a salaried employee and CARDINAL an employer or self - employed person , appointed for DATE from a list drawn up by the Minister responsible for ORG , from candidates nominated by the most representative trade organisations concerned .

Article NORP CARDINAL stipulates that upon receipt of the notice of appeal the secretary of the tribunal shall invite the parties to present their written observations , in memorial form , within DATE , together , where applicable , with those of the doctor they have appointed to assist or represent them . The secretary is also responsible for transmitting the documents to the parties , or to the doctors appointed by them if the documents contain medical information . The parties may then submit further observations in reply within DATE .

The section president appoints a rapporteur for each case from among the members of the section or possibly from a list of people drawn up by order of the Minister responsible for ORG , as appropriate . Rapporteurs who are not members of the section do not vote ( Article PERSON ) .

The ORG must have any file submitted to it on appeal examined initially by an accredited doctor , chosen from a list drawn up by order of the Minister responsible for ORG . It may also consult qualified experts as and when deemed necessary . If it does this , the experts’ reports are communicated to each party , or to the doctors appointed by them if they are medical reports ( Articles R. CARDINAL - CARDINAL and PERSON ) .

By virtue of Article NORP CARDINAL - CARDINAL the ministers responsible for ORG or their representatives “ may present written or oral observations ” to the court .

Under Article NORP CARDINAL - CARDINAL the ORG “ shall rule solely on the basis of documents ” . No provision of ORG provides for the communication to the insured party of the report by the rapporteur or the opinion of the qualified doctor , who are appointed by the court under the above - mentioned Articles NORP CARDINAL - CARDINAL and NORP DATE .

The ORG delivers its judgment at a public hearing ( Article NORP DATE ) .

ORG of ORG has ruled that the procedure before the ORG did not infringe the rights of the defence in that it ruled on the basis of documents without informing the parties of the accredited doctor ’s opinion ( PERSON . soc . DATE , NORP DATE , ORG ) and , in CARDINAL judgments delivered on DATE , that the procedure was in conformity with the requirements of LAW in respect of both the right to an independent and impartial tribunal – with reference to the composition of the CNITAAT – and the adversarial principle – with regard to medical documents on which it had based its decision and which were not communicated to the parties ( PERSON . soc . CARDINAL DATE , ORG . no . CARDINAL ; ORG DATE , no . CARDINAL ; ORG E DATE , pan . p. DATE , obs . PERSON ) . ORG has also decided that ground relating to the lack of a public hearing before the ORG could not be upheld where it had been invoked before it for the first time as a ground of appeal and the insured party had not requested a public hearing in the pleadings before the ORG ( PERSON . soc . CARDINAL DATE , RJS DATE , no . CARDINAL ) .

In a judgment of CARDINAL DATE ( DATE , no . CARDINAL ) , ORG of ORG found that the disability claims tribunal was not an independant and impartial tribunal within the meaning of LAW , as it was chaired by a civil servant answering to a hierarchy linked to the health insurance fund , which was a party to the claim .

In his submissions in that case , for the attention of ORG , ORG stated , inter alia ( see Liaisons sociales , DATE , jurisp . no . CARDINAL ) :

“ This is not the first time [ LAW ] has been invoked before you in respect of the social security ’s technical claims departments . Hitherto , however , you have considered the complaints unfounded , particularly with regard to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work ... ”

In its DATE report ( p. CARDINAL , section on suggestions for legislative or regulatory amendments ) , published in DATE , ORG expressed doubts as to the compatibility of the procedure before the ORG with the guarantees of the right to a fair trial enshrined in LAW , in respect of :

- the composition of the tribunal , whose members include civil servants who are part of a hierarchy , in violation of the right to an independant and impartial tribunal ;

- the fact that it rules solely on the basis of documents , in violation of the principle of the public character of proceedings ;

- the prior examination of the file by an accredited doctor , which circumvents the adversarial principle if the opinion is not communicated to the parties . In this connection ORG considered that even if the accredited doctor did not have expert status , the communication of his opinion to a doctor the interested party has been invited to designate should be envisaged .

In CARDINAL judgments on DATE ( ORG . no . CARDINAL ; DATE , no . CARDINAL ) , ORG , sitting as a full court , departed from its case - law and found the procedure applicable before the ORG incompatible with LAW CARDINAL points singled out by ORG in its above - mentioned report .

In his submissions on CARDINAL of these cases , for the attention of ORG , Advocate - General P. ORG explained , inter alia :

“ It is evident not only that the civil servants who sit on the ORG enjoy no specific guarantee as to their freedom of decision in the discharge of their judicial duties , but that the minister in charge of the administrative entity to which they belong has control over ORG through a directorate of his ministry and the regional directors of health and social affairs , who themselves , on behalf of the ORG and under the authority of the regional ORG , have control over the primary social security funds and the areas they cover .

However , the decisions challenged before the ORG are decisions of the social security funds , and these funds are more often than not also parties to the proceedings . ...

The fact that these civil servants are appointed for unlimited periods and that their judicial activities may be terminated at any time makes their situation more precarious and adds concern about their independence to the doubts about their impartiality .

... As regards the other categories of members of the ORG , their appointment by the Minister responsible for ORG or the fact that the minister draws up the list from which they are chosen , even if the trade organisations do make proposals DATE leaving the possibility for the minister to make choices DATE , the fact that they are all appointed for an unlimited period , which means that the minister can remove them at any time , including judges , who are therefore not irremovable , with the exception of those representing employees and employers , who are appointed for DATE but whose term of office the minister may or may not renew , and the lack of guarantees in the discharge of their judicial duties are all factors that undermine the independence and impartiality of this tribunal .

... What clearly applies to the composition of the ORG also applies to how it operates and could also be raised of the tribunal ’s own motion .

Thus does the national court actually operate with the compulsory assistance , in every case , of an “ accredited doctor ” and a rapporteur , who is generally not a member of the tribunal : however , not only are these collaborators remunerated on a case - by - case basis , from the budget of the Ministry in charge of ORG , but they are chosen from lists drawn up by the same ministry , and most of the rapporteurs are active or retired members of the ministry ’s staff , or active or former employees of the social security funds ...

Furthermore , Article R. CARDINAL - CARDINAL of the Social Security Code provides for the minister responsible for ORG – whose powers over this court are to all appearances already great – to be able to submit written or oral observations to the ORG . This provision – which he does not seem to have made use of in any of the cases before you – is clearly an infringement of equality of arms , and therefore of the right to a fair trial and LAW . In particular , this possibility of presenting oral observations means that the minister must be informed of the hearing and familiar with the accredited doctor ’s opinion and the report , CARDINAL “ privileges ” denied to the other parties ... ”

In the meantime , and subsequently , decrees nos . CARDINAL and DATE of DATE and DATE and Law no . DATE of DATE were enacted to reform the procedure applicable before the disability claims tribunal and the ORG ( legal and regulatory part of LAW ) . Concerning the ORG , the relevant provisions are the following :

Article L. CARDINAL stipulates that it shall henceforth be composed of : a president , who is a judge in the court of appeal of the jurisdiction in which the tribunal ’s seat is located , appointed for DATE in the same way as court of appeal judges are appointed ; section presidents , who are judges in the same court of appeal , appointed for DATE by order of the president , and judges ( assesseurs ) representing salaried workers on the one hand and employers or self - employed people on the other , appointed for renewable DATE periods by decree of the Minister of ORG from a list drawn up by the President of ORG on the proposal of the most representative trade organisations concerned .

Each section whall be composed of its president and QUANTITY assesseurs ( Article L. CARDINAL ) . The withdrawal of an assesseur may be requested if he or she has had prior dealings with the case as an adviser or if there is a relationship of subordination between the assesseur or his or her spouse and CARDINAL of the parties and his or her spouse ( Article L. CARDINAL ) .

By virtue of Article NORP CARDINAL - CARDINAL the procedure for communicating memorials and documents remains unchanged and is the responsibility of the secretariat of the tribunal ( see old rules , above ) . Henceforth the parties may also present new medical evidence in reply .

The role of the accredited doctor has disappeared , as has that of the rapporteur . Articles R. DATE and NORP DATE provide henceforth for the president of the section in charge of the case to be able to appoint CARDINAL or more medical consultants or experts , in an advisory capacity , “ to examine the medical file submitted to the [ tribunal ] ” . A copy of the “ consultant ’s or expert ’s report ” is then addressed to each party or the doctor appointed by him or her if it is a medical report , who then has DATE to file written observations .

In the same letter the section president informs the parties of the close of the investigation and the date of the hearing , which is public . At the hearing the parties or their representatives may present oral observations once the section president has presented his report ( Article R. CARDINAL ) .