No violation of Art. 2 with regard to death;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Not necessary to examine Art. 34 (former Art. 25);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and , at the time of lodging her application , lived in ORG , Gaziantep , GPE . She now lives in GPE , having apparently been granted asylum in GPE . The applicant stated that she made the application not only on her own behalf but also on behalf of her daughter and deceased husband . The case concerns the applicant ’s allegations that her husband , PERSON , was abducted , tortured and killed by members of the security forces .

The facts surrounding the death of PERSON , are in dispute between the parties .

The facts as presented by the applicant are set out in Part A below . The facts presented by the Government are contained in Part B. The witness evidence taken by Delegates of the Commission at a hearing in GPE is summarised in Part C. The summary of the other evidence submitted by the parties , in documentary form , which the ORG considers relevant is to be found in Part D.

The applicant ’s husband , PERSON , was a NORP national of NORP origin . He was an active member of ORG ( the “ DEP ” Party ) in GPE until it withdrew from local elections . He had been the ORG ’s candidate for the post of the Mayor of GPE ( GPE , PERSON ) in the DATE local elections .

NORP Throughout his involvement with the DEP , PERSON was followed and threatened by plain - clothed police and this continued after the withdrawal of his candidacy . On DATE PERSON informed the applicant that he was not being followed by the usual plain - clothed policemen but by other people whom he said might be “ hit - men ” .

On DATE at TIME , CARDINAL plain - clothed policemen had a drink at the NORP café in GPE , which was owned by PERSON Rasim Ağpak . At TIME , a ORG SLX car ( registration number CARDINAL ORG ) blocked the door of the café . CARDINAL plain - clothed persons entered , leaving the car engine running with a fourth person remaining in the vehicle . CARDINAL of the CARDINAL persons asked PERSON whether he was PERSON . When he answered negatively , the person approached PERSON , who confirmed his identity and showed his identity card . Before the QUANTITY people in the café , the abductors stated that they were plain - clothed police who were there to take PERSON to ORG . PERSON was grabbed by the arms and taken away in the waiting car . It was later ascertained that a second car with CARDINAL persons inside had left with the ORG SLX vehicle .

Upon hearing the news of the abduction , the applicant contacted , inter alia :

( a ) the Nizip Anti - Terrorism Department , who denied holding PERSON or any knowledge of the abduction ;

( b ) ORG who also denied all knowledge ; and

( c ) the Gaziantep Branch of ORG , with a request that they look into the matter .

Other persons also contacted ORG on the applicant ’s behalf , but were told that PERSON was not in custody .

On DATE the applicant applied to ORG by way of petition , reporting that PERSON had been abducted .

On DATE an unknown person telephoned the “ PERSON ” newspaper and ORG of the DEP , saying that PERSON body was at ORG . The applicant went to the hospital and , on examining the corpse , concluded that her husband had been killed under torture . She saw the body with the right eye gouged out , the right side of the head crushed to pieces , a broken right arm , broken fingers , marks of blows to the body , and a bullet wound to the head and one to the neck , with no traces of blood , implying that the shots had been fired after death .

An autopsy report concluded that there was a bullet wound to the left side of the chest , a bullet wound above the right eyebrow , fired at almost point blank range , exiting the body from the back of the head , a bullet wound to the left cheek , fired at a distance of QUANTITY , which had travelled through the body and lodged in the rib cage , that there were no other wounds , blows to the body or head , and that death had been caused by the bullet to the head .

On DATE the applicant and the DEP Member of ORG for PERSON , PERSON , met the representative of the Governor of Gaziantep . The Gaziantep Security Director and ORG were also present . The NORP Commander said that the body of PERSON had been found by a shepherd near the village of GPE in GPE , and that the gendarmes had collected the body . ORG , PERSON , gave the applicant the same information . He also stated that the body had had no identity card on it , and therefore the autopsy report was headed “ unidentified body ” .

NORP However , the applicant was informed that a person at the hospital had witnessed CARDINAL plain - clothed policemen take PERSON body to the hospital morgue on TIME .

On DATE the Gaziantep Branch of ORG , on behalf of the applicant , made an application to the Governor of LAW and LAW . On DATE , the Governor replied that it had not been possible to determine any suspect or suspects but that the inquiries were continuing . ORG also indicated that the inquiry into the death was continuing .

The applicant was not satisfied with the inquiries and the answers she had been given . The official information she had received was allegedly inconsistent with her own . She therefore continued contacting the ORG for answers . She was informed on CARDINAL DATE by ORG that there had been no developments .

According to the statements of PERSON , PERSON , ORG , ORG and Abit Şahin , who had been present when PERSON was abducted on DATE , CARDINAL people entered the café where PERSON was playing cards . CARDINAL of them asked where he could find Mr Şen . When PERSON presented himself , he was asked to show his identity card . Then the person in question came closer to PERSON and showed him a card , the details of which the witnesses could not see . PERSON and ORG also stated that the persons who came into the café had not openly presented themselves as plain - clothed policemen , so they could not say for certain that they were . ORG stated that PERSON had not asked any questions or resisted the abductors . It was as if he had known them .

On DATE PERSON body was found near the quarry of GPE on the Kahramanmaraş - Gaziantep highway construction site . On DATE an autopsy was carried out . The autopsy report concluded that death had resulted from a fractured skull , the destruction of the cellular tissues of the brain and an internal haemorrhage due to a bullet wound . There were no signs of assault or torture .

The Nizip Public Prosecutor started an investigation into the killing of PERSON . On DATE a decision of non - jurisdiction was issued and the file was sent to ORG . According to the preliminary findings , PERSON had not been taken into custody by the security forces . The car in which he was driven away carried a false registration number . The investigation was still pending in DATE .

The facts of the case being in dispute between the parties , CARDINAL Delegates of the Commission took evidence in GPE DATE . The applicant appeared before the Delegates , as did CARDINAL other witnesses for CARDINAL or other party . Certain other witnesses had been summoned but failed to appear . The evidence of those who attended the hearing may be summarised as follows :

PERSON was born in DATE and had been married to PERSON since DATE . She had been a teacher and he ran the NORP coffee house in ORG , owned by his brother . He had had no personal enemies or debts . Nor had he been involved in any vendetta .

Mr Şen became politically active DATE , helping to create ORG and ORG in DATE . The DEP withdrew from the DATE local elections due to the intimidation of its members ( threats , detention and murders ) .

Her husband had been a leading member of DEP and , when he stood as a candidate for the post of the Mayor of GPE in DATE , he was threatened by the Gendarmes Station Commander of that constituency ( who may have been called Sergeant - Major PERSON ) , and regularly picked up by the police for questioning . He was so intimidated that he resorted to carrying a licensed gun and rarely went out alone . He was taken to the police station many times and harassed . He sold the gun eventually as he was detained several times at TIME with a view to ascertaining whether the gun had been involved in incidents . However , this was just part of the harassment to which he was subjected .

DATE before he was abducted , PERSON told his wife that he was being followed by hit - men , men who were not his previous surveillance officers . He had been alerted to this possibility by an acquaintance who had been detained and interrogated about PERSON , and about whom the interrogators had said that Mr Şen would be “ done away with ” . Some QUANTITY people had been killed in the recent past by unknown perpetrators because of their DEP affiliation and/or membership of ORG . These hit men were not recognised by PERSON , who had known most of the local policemen . They were of medium height and able - bodied , carrying radios and guns . PERSON had understood her husband to mean that they were contra - guerrillas operating under ORG authority , as confirmed in the later GPE report .

On DATE PERSON was informed of her husband ’s abduction TIME after its occurrence by PERSON , CARDINAL of the café ’s employees . PERSON told her that CARDINAL strangers had been in the café for tea . They seemed tense , made a telephone call and left . Then a ORG SLX car ( registration number CARDINAL ORG ) stopped in front of the café , blocking the door . Of the CARDINAL unknown people in the vehicle , CARDINAL stayed in the driver ’s seat with the engine running , another , carrying a gun and a radio , waited at the door . That man was well dressed and middle - aged . CARDINAL others , casually dressed , strong looking and with apparent special training , walked towards PERSON , who looked rather like PERSON , and then moved on to Mr Şen , who identified himself . The CARDINAL flashed identity cards at the people in the café . The armed man at the door spoke into his radio , “ OK , Sir , we ’ve got him ” , and then said to PERSON , “ You ’re coming with us to police headquarters . We have business with you . ” Mr Şen tried to ask questions but was dragged towards the door by the CARDINAL men , holding him under his armpits . He was put in the back of the car , which drove off immediately . Despite the shock and panic of the people in the café , they managed to note down the registration number of the car .

These matters were discussed over and over again in DATE with PERSON , ORG , ORG and PERSON because PERSON wanted to learn as much as possible about the details of the incident . It was during such discussions with others that she learnt that another car , with CARDINAL other plain - clothed people in it , drove off behind the first . She had not talked to Abit PERSON , who had also witnessed the events , as she did not know him .

The people in the café had said that the abductors had been policemen because of the gun , the radio , the identity cards they had shown everyone and what they had said . However , the café witnesses were taken from their homes in DATE , at TIME , for interrogation , and statements were demanded of them . This had intimidated them .

NORP Immediately after PERSON call , PERSON called ORG and ORG . They said that they had not taken him into custody and had no information about him . They confirmed that they would investigate . She tried contacting the Mayor , a Member of ORG , a delegation from GPE and DEP members , for them to make inquiries about her husband ’s fate .

PERSON inquiries with the PERSON , PERSON and ORG proved fruitless . Travelling had been difficult at the time because of roadblocks and identity checks , through which only the security forces could pass easily . She nevertheless went to ORG after she had been told by a lawyer called PERSON that the car number plate was a forged one used by ORG . ORG there was not helpful . He referred to a DEP Member of ORG who had been killed and added , “ What can I tell you ? What can I do ? ” She was advised to go home and wait .

She then met a DEP member called ORG who told her that the Gaziantep branch of the DEP had telephoned to say that she should return home immediately . On her arrival , she was told that the body of her husband was in the morgue at the ORG hospital . The Gaziantep DEP and the newspaper “ PERSON ” had been telephoned by a well - spoken NORP lady who had provided this information . Mr Şen ’s relatives were called and PERSON met her sister - in - law and father - in - law at the hospital , where a crowd had gathered , cordoned off by the police .

PERSON was not informed of the circumstances surrounding the recovery of the body . Subsequently , ORG , Mr ORG , informed her that the body had been found by the gendarmerie in the rural area of GPE , in GPE . The body was unidentifiable , as it had no personal belongings or identity card on it , until the inner pocket of the suit , which the corpse was wearing , was ripped open to disclose PERSON name , written by his tailor on the lining . However , PERSON said that the suit had not been tailor - made , but had been a ready - to - wear purchase from a shop . She did not recall the gendarmes mentioning this matter to her . She therefore insisted on further information as to how her husband ’s body had been identified . She was told that her husband ’s belongings were to be kept for the investigation . A ring and watch were returned to her father - in - law in DATE .

The sight of her husband ’s body was horrible : the right side of his head had been smashed ; his right eye was not in place ; his right hand fingers and arm appeared broken , and there was a hole through his throat with no blood around it . She saw CARDINAL bullet wound . She insisted on having a copy of the autopsy report , which she was not given until long after the burial , and which did not correspond to her observations ( such as its description of CARDINAL other bullet wounds to the face ) .

PERSON told ORG that her husband had been tortured , and insisted that a murder investigation be conducted . However , ORG would not listen to her and no statement or information was sought from her . As she persisted in visiting the ORG regularly , a statement was taken from DATE on DATE . However , no progress whatsoever was made in the investigation , even DATE .

After her husband had been killed , her house was put under constant surveillance , all visitors being recorded , and many asked by the policemen on duty why they were visiting such terrorists . Her DATE daughter had been stopped as she was leaving school and asked by plain - clothed policemen whether her mother used her as a courier and what kind of papers she was carrying . She was so scared by this and the idea that she might be killed like her father , that she stopped attending school .

PERSON received threatening telephone calls at that time . The caller said that he was a contra - guerrilla and that she would be killed too . She changed the locks on the doors to her home as her husband had had his house keys on him when he had been abducted . She and her daughter were away on CARDINAL DATE when special policemen unsuccessfully tried to enter the house , according to the employees of the bakery situated on the ground floor of her building . The police then went to the house of PERSON friends where her daughter was staying and asked why they had taken in a terrorist ’s daughter . The father of that family was placed in custody for DATE and interrogated about his relationship with the Şen family .

PERSON was warned not to go home as there was a purple civilian car waiting at the corner of the street and that she would be taken away . Since then she has not returned home even to recuperate her belongings or souvenirs of her husband . Out of the same concerns , she was living separately from her daughter .

She was taken into custody on DATE in ORG and interrogated for DATE about her alleged membership of the ORG ( ORG ) ( see her other application to ORG GPE , no . PERSON , judgment of DATE ) .

Mr Şen was an elderly gentleman , born in DATE . He was the father of the deceased PERSON . His son had not told him of his fears for his life prior to his abduction , nor of the difficulties he had faced as a politician . He had had no enemies whatsoever . Everyone liked him .

Mr Şen was informed TIME after the event that his son had been seized by policemen the TIME before . He intuitively knew that he was dead . He went to ORG . His daughter - in - law had gone to ORG in search of her husband . In ORG he heard from Gaziantep that his son had been killed .

Mr Şen went to ORG to identify the body . He did not meet PERSON there . He could not bear to look at his son ’s tortured corpse , but noticed that an eye was missing , apparently caused by a bullet wound , and that he had a fractured finger . His son ’s clothing was bloodstained . Apparently he had been killed by the police , perhaps because of his candidacy for Mayor .

The police ordered him to remove the body , but he did not do so until DATE . A great crowd gathered . They took the body back to the village and buried it . There were police and gendarmes everywhere on alert , who behaved disrespectfully . PERSON was at the funeral .

DATE he was called to appear before the Prosecutor and Judge to receive his son ’s personal possessions . He took the watch and ring but not the clothes which were soaked in blood . The only inquiry made later was by FAC , Sergeant - Major PERSON , about ORG stay with him for DATE , which dates the gendarmes deliberately recorded wrongly .

Mr Şen was born in DATE . He was no relation to the deceased PERSON and did not know him .

In DATE the witness was stopped at a police roadblock at the exit from ORG , where everyone ’s identity was checked . One could not leave ORG without going through this checkpoint . He was also given a body search and asked why he was carrying a copy of the newspaper “ FAC ” . He alleged that , because of his surname and the possession of the newspaper , he was taken into a field by CARDINAL officers and tortured with beatings for TIME . In view of this experience , he could understand how PERSON had died .

Mr Aktaran was born in DATE and was ORG at ORG DATE after the events , from DATE .

The investigation into the death of PERSON was opened by ORG , PERSON . The file was subsequently transferred to him . It contained witness statements taken by the police , PERSON statement to the Prosecutor and the autopsy report , but provided no serious leads as to the perpetrator of the crime . There was no ballistic expertise of the bullet found in Mr Şen ’s body or of the empty cartridge found near his corpse . No evidence had been taken from police witnesses because none had been identified as being implicated in the death . The suggestion that Mr Şen had been involved in vendettas was not taken up as it had no serious basis .

On receiving the file , the witness found lacking an inquiry into the registration number of the car in which Mr Şen had been abducted – a honey - coloured vehicle with a registration containing the letters ORG , ORG or ORG . This inquiry revealed that either the car had had false number plates or that the witnesses had been mistaken about the registration number . He did not seek other information following the evidence of the eyewitness PERSON as to a green car with the number CARDINAL PVC CARDINAL PVD CARDINAL . He was unaware of any significant discrepancies in the overall evidence on this or other points .

Mr Aktaran considered that he and his colleague had conducted a satisfactory investigation in the circumstances . Prosecutors do not need to take further evidence from people whose statements have already been taken by the police . At the outset he had been open - minded about the applicant ’s allegation that the security forces might have been involved in the incident . However , there had been nothing in the various statements taken to suggest that an inquiry into any particular officers was required . He placed a permanent search warrant on the file , so that the investigation would remain open for DATE should new evidence appear .

Mr PERSON was born in DATE and at the material time was working as a reporter for the LOC office of the “ PERSON ” newspaper . He had been acquainted with PERSON .

In a general operation against the “ PERSON ” newspaper on DATE , the witness was taken into custody and held for DATE . On DATE of his interrogation , the name of PERSON was mentioned with a threat “ to finish him off ” or “ do him in ” along with CARDINAL other named persons . Mr Şen ’s name was cursed . The witness thought that the remarks were intended to be passed on to Mr Şen . He later informed Mr Şen of this threat and advised him to take care .

The next time he saw PERSON was at the morgue . His newspaper had been telephoned with the news by a well - spoken NORP lady . He had taken the call himself . When he saw the corpse , of which he took photographs , he remarked the strange position of the wrists , which looked fractured . He did not see the injured side of the face which was turned parallel to the table . No autopsy had been performed on the body at that stage .

On returning home from the morgue , he received an anonymous telephone call also threatening him with death .

Mr Kelleci accompanied PERSON and a delegation to the Governor ’s office on DATE . Afterwards , the witness saw ORG , Chief of Police Hüseyin Çapkın and the Deputy Governor . They stated that PERSON death was possibly linked to gambling debts and had not been perpetrated by the ORG . He told them of the death threat he had personally received but it was not taken seriously . They persisted with the gambling debt theory and assured him that PERSON murderer would be found .

Mr PERSON was born in DATE and was a tailor by profession in Gaziantep , as well as the Chairman and NORP of ORG at the material time . He knew PERSON from their common political activities . In DATE there had been many killings by unknown perpetrators which , together with the bombing of the ORG ’s headquarters in GPE , led to their withdrawal from the imminent elections .

Mr Şen came to his shop DATE before his abduction and offered to repair his car . When driving it away , the witness noticed that Mr Şen was being followed by a white police car , a ORG . This had happened to him too . The occupants were obviously plain - clothed policemen , whom he could identify if he saw them again . All ORG members were under great pressure at that time . Even after the ORG ’s withdrawal from the elections , it continued : he was taken into custody at TIME on DATE , DATE after Mr Şen ’s abduction , and challenged about disseminating propaganda for ORG instead .

On the drive into custody , he was told that PERSON had “ changed worlds ” , and that he would be “ sent to the place where he is ” . He had understood the remarks to mean that PERSON was dead and that he would be killed too . ( He had not heard of the recovery of PERSON corpse at that stage , so he was not too sure . ) Panicking , the witness claimed to have made certain telephone calls before he had been taken from his house , including a call to the normal police . He was then punched and , before the car left town , it turned round and deposited him at the police anti - terrorism department , QUANTITY from his house .

Mr PERSON was held in police custody for DATE . The custody records indicating a shorter period were incorrect . He was interrogated under torture . Mr Şen was not mentioned but PERSON was told that his ORG was “ finished in ORG ” . He was subsequently remanded in custody for DATE , accused of being , inter alia , a member of , and aiding and abetting , the ORG . On release , these charges were dropped and a remaining charge of possessing a gun without a licence was still pending .

Dr Erkol was born in DATE . She had worked as an expert in forensic medicine and as a lecturer at ORG since DATE .

Dr Erkol performed the autopsy on PERSON , whose identity was unknown at that time , as was that of his killer . Given the frequent blood feuds in the area , she suspected that the murder was another of that kind . She was struck by the fact that the victim had been blindfolded . PERSON , an unspecialised physician , assisted her at the autopsy . ORG , PERSON , whom the witness described as a meticulous and responsible professional , attended the procedure .

The body , fully clothed , was inspected on site and photographed by PERSON and the Prosecutor . It was then taken to the hospital for examination . The bloodstains on the victim ’s jacket indicated that he had been shot whilst clothed and still alive . The clothes were removed at the morgue . PERSON had been told prior to the autopsy , and then saw herself , that the name of PERSON had been written in biro on the inside pocket of the jacket , but that was insufficient evidence of identity . She did not follow the local news , so had not heard about Mr Şen ’s abduction . It was not her responsibility to identify the corpse .

The body was X - rayed to verify the placement of any bullets still lodged in it . The X - rays were not kept . There were CARDINAL bullet wounds to the head , CARDINAL bullet having remained lodged in the chest . They had caused extensive fracturing , brain damage and haemorrhaging , resulting in death , TIME before the autopsy . It would appear that Mr Şen had been killed TIME after his last meal . It was not possible to be more precise about the time of death given the limited facilities available in Gaziantep . The bullet which had entered and exited the skull had torn the victim ’s eye out . Neither the arms nor fingers had been fractured , but their distorted position would have been due to the onset of rigor mortis .

DATE . The remaining bullet would have been kept . It was probably of a wide calibre – CARDINAL mm – fired from a short - barrelled gun , within a QUANTITY range of the body . A ballistic analysis could prove valuable only if linked to a suspect weapon and a comparative study .

The body showed no trace of ill - treatment . In the absence of any obvious external signs or allegations of torture , no examination of the internal organs was conducted . However , the body had begun to decompose , presenting signs of post - mortem discolouring , distortion through rigor mortis , and , with the bullet injuries and autopsy incisions , was a very ugly sight . An untrained person might understandably misconstrue these elements as evidence of ill - treatment . Moreover , the body was not washed down after the autopsy , so it may have looked even bloodier . Washing was for the hoca , a religious leader on duty at the morgue , or the family to perform . The hole in the throat seen by PERSON would have been an autopsy incision .

People can not enter the morgue without the ORG ’s authorisation , other than perhaps a very close relative who might be allowed to view the body by the hoca . She could not tell from the poor photocopy of the photograph taken by the journalist , PERSON , purportedly of PERSON corpse in the morgue , whether that photograph had been taken before or after the autopsy . However , judging by the position of CARDINAL of the hands in the photograph , it was probable it had been taken before the autopsy had been conducted .

It transpired that the photographs provided by the Government at this point in the hearing , and in respect of which the witness noted several contradictions with the autopsy findings , were not of Mr Şen ’s corpse .

Mr Güdül was born in DATE and was the official chauffeur for the law courts . He also accompanied the Prosecutor at autopsies .

In the present case he had driven the Prosecutor to where the body had been found . It was on the road construction site but accessible by car , albeit very dusty because of the nearby sand quarries and frequent heavy lorry traffic . There were gendarmes at the scene , as well as a finger print expert , a clerk and a doctor . The Prosecutor made a record which included the position of the body . This procedure took TIME . The body was lying on its back , clothed . There was a yellow , car - polishing cloth over its eyes . There was blood on the ground which had come from the back of the head . The body was transported by ambulance to ORG morgue as an on - site autopsy was not possible . There had been no discussion as to its identity .

He was sure that no one saw the corpse at the morgue other than the officials concerned . He described the same X - ray , medical procedures and findings as PERSON , having been present throughout . He did not recall the name of PERSON being inscribed inside his jacket . He had had no idea who the individual was . That was a police matter . For him it was just an ordinary incident . He did not recall being present when PERSON father arrived at the morgue to identify the corpse , although his signature had been on the relevant document . The circumstances had been very distressing at the time .

Mr PERSON was born in DATE and was a farmer by profession . He had been working on the road construction site , obtaining materials from the quarry using explosives . He had had a fright after CARDINAL particular detonation when he spotted a corpse QUANTITY away from him , which , without approaching it , he reported to FAC . He signed a statement to that effect at the station . The place where the body was found was accessible by car but was frequented mostly by lorries . He had been working with PERSON at the time .

DATE . Mr GPE was born in DATE and was a ORG - commissioned Officer . At the material time he was Station Commander at the Şehitarif Sub - station which was attached to LOC in Gaziantep . His superior was ORG , ORG .

Mr GPE had been at his station when PERSON and PERSON reported the presence of a corpse on the GPE highway construction site . He took statements from them and then went with a unit of his men to the location . There they found the clothed body of a man , DATE , lying on his back , with firearm wounds to his head and face . He checked the throat artery , confirming death , cordoned off the area and notified his superiors . Although there appeared to be CARDINAL bullet wounds , CARDINAL cartridge was found , despite a thorough search of the immediate vicinity . He had no idea of the time of death or how long the body had been there . The person in charge of the criminal laboratory at ORG took photographs . These would still be in the gendarmes’ files if they had not been sent to ORG .

DATE he typed up a report from his notes about the corpse , which had not been identified as no identity papers had been found , although Mr Şen ’s name had been written on the jacket . The Prosecutor must have been shown that . He had not been aware of PERSON missing person report DATE . His station had not been informed of that . The abduction had taken place in ORG and his station would not have been informed unless directly asked to make inquiries . He presumed that his superiors had conducted the necessary inquiries after he had told them about the name in the jacket .

Mr GPE sent the empty cartridge case , together with the person ’s ring and watch and the documents he had prepared , to ORG DATE . The blindfold was also transmitted . It had the name and number of a petrol station on it , about which inquiries were made by his superior officer . No analysis was carried out of the soil near the corpse for the fibres of other clothes or the like . He could not recall whether casts were made of the footprints near the body .

The body ’s location had been accessible by car . The area consisted of compacted earth on which there were footprints . Only the site workers frequented the area and the body had been well hidden from view . There were no vehicle tracks within CARDINAL perimeter of the corpse .

He did not recall whether there had been checkpoints in place on DATE the body was found . Subsequently , he interviewed local villagers and site workers in an unsuccessful effort to gather information about the incident . It would have been possible to have transported Mr Şen to the site using secondary roads and thus avoiding the road - blocks on the main route . If he had been informed of PERSON abduction , he would have instructed the checkpoints under his control to look out for him . At the checkpoint , people ’s identity cards would be checked manually against a list of wanted persons . The officers could also search vehicles and persons who were suspect .

Mr PERSON was born in DATE and he was the GPE NORP Commander at the material time , with CARDINAL stations under his command , including a large central station . The workload was very heavy .

After being notified of the incident by the Station Commander , he in turn notified ORG and the regiment ’s operations centre . He accompanied ORG to the scene , which had already been secured on his instructions by the Station Commander . The regiment ’s team of crime specialists arrived in separate vehicles and carried out a systematic and detailed investigation . The photographs which they had taken should have been retained at ORG . They would have been sent to ORG if requested . They were kept principally to assist in identifying the body and showing them to people assisting with the inquiries .

Mr PERSON confirmed Mr PERSON ’s description of the corpse , the bullet wounds , the empty cartridge and the name written inside the jacket . The body seemed to have been in place for some time – perhaps DATE . He thought that a ballistic test had been made at DATE . The results would be in the Prosecutor ’s file . The blindfold was marked with the name of a service station called Petrol Ofisi , from which it was thought that the victim could have been from ORG . However , he had not heard of the abduction of Mr Şen beforehand . The area was searched for footprints or other leads . Footprints were found near the body which could have been those of the people who had discovered it . However , they were not recent enough for casts to be made .

On the instructions of the Prosecutor , they searched the body and found a small piece of paper in the inner pocket of the jacket with the name PERSON written on it . It could also have been the case that the name had been written in very small letters on the pocket lining . Perhaps a dry cleaner had done this . They took the blindfold and notified the regiment ’s FAC centre to confirm the person ’s identity . This was not confirmed until the witness returned to the main station in Gaziantep . He was not present at the autopsy but did attend the funeral .

After establishing that the deceased person was PERSON , Mr PERSON went to ORG where he started his inquiries . According to the statements of witnesses , the victim was last seen playing cards at the coffee shop . CARDINAL people entered the café and then left with him by car . The vehicle bore the registration number CARDINAL ORG ( or ORG ) CARDINAL which , following inquiries by the provincial police headquarters , proved to be false . Other similar numbers were searched unsuccessfully . He rejected any suggestion that the security forces in the area had been operating in vehicles with false number plates . All their vehicles had official plates . Inquiries were also made as to the identity of a woman who worked in a nightclub , and who was mentioned in the statements taken , but a check on all the nightclubs proved fruitless . Nothing suspicious was reported by the local stations or the check - points on the main road . In any event , it would not have been possible for them to check every passing vehicle as traffic was heavy . Besides , the killer could have taken the secondary roads with no roadblocks .

At first he did not consider the possibility that the death had been perpetrated by officials . He thought that this was a settling of scores within the “ organisation ” , particularly as the victim had been a candidate in local elections , and such unpleasant incidents frequently occurred at the time . Later however he did make unofficial background inquiries into PERSON allegation of official involvement , particularly concerning police employees , but he found no evidence to support her claims . He thus rejected this theory . He made no contact himself with PERSON , the café employees or any ORG members . Statements were taken by his subordinates about the murder . The police also took statements , possibly because of the abduction offence which had occurred within their jurisdiction . No records were drawn up of inquiries which proved fruitless . So , for example , if someone had gone to the aforementioned petrol station but inquiries there had revealed nothing pertinent , no record of that visit would have been made .

CARDINAL people had been murdered by firearms during DATE he was stationed in the area . Most of the perpetrators of those crimes had been found . The killer of an unknown person , whose head had been crushed beyond recognition , was not found , like the murderer of Mr Şen . These CARDINAL incidents were unusual . He had heard that CARDINAL members of ORG had been murdered , but did not know if it had occurred at the material time . He had not heard of groups of contra - guerrillas employed unofficially to eliminate political opponents or activists , other than what he had read in newspapers .

Certain key witnesses failed to appear before the Delegates of the Commission : the eyewitnesses to the abduction of Mr Şen from the coffee shop , namely PERSON , ORG , ORG , PERSON and ORG , who were to have been summonsed through the applicant ’s representatives , and the principal ORG in the case , PERSON , summonsed through ORG . PERSON refused to attend the hearing because of a heavy workload .

The applicant declared that her husband had been abducted from his place of work by plain - clothed policemen on DATE around TIME and that she had had no news of him since . There had been QUANTITY eyewitnesses to the event . The applicant also lodged a formal criminal complaint . The Prosecutor immediately ordered ORG , urgently , to make the necessary inquiries and take the pertinent statements . On DATE the ORG issued a similar instruction to ORG . DATE , he also issued the burial certificate and authorisation . On DATE , the Prosecutor requested an urgent reply to his instructions from ORG .

The Prosecutor , PERSON , instructed ORG to make an in - depth , discreet investigation into the murder , to identify the assassins , and to respect their defence rights on arrest , to take the evidence of eyewitnesses and to transmit the results to him .

Mr PERSON described how his colleague , PERSON , had found the corpse of PERSON while working nearby on DATE , and he had driven over with his lorry to see it and immediately notified the gendarmes . He did not get out of the lorry to examine the corpse more closely . Mr PERSON stated that he had been recuperating cables for explosives work and , while walking down the highway , he had spotted the corpse . He then informed Mr PERSON and accompanied him to the gendarmerie .

Mr PERSON , a Gendarmes Sergeant , recorded that Mr PERSON had said to him that he had spotted the corpse on the highway construction site but had been too scared to go over to it . Mr PERSON had made a sketch of the site and the placement of the corpse . That record also contained details of the few personal effects found on the deceased , which effects included a ring and watch .

Mr GPE had made a sketch of the site and the placement of the corpse . He recorded that the body of an unidentified person had been found . The deceased was PERSON , killed by a bullet to the head . The crime had probably been committed DATE CARDINAL hours before the body was discovered . The identity and number of the assassins were unknown . The TIME described , inter alia , how the gendarmes had been informed of the incident and the state of the corpse ( see also paragraph CARDINAL below ) .

ORG had informed ORG by telephone that the body of an unidentified man had been found , shot , QUANTITY from the village of GPE . Prosecutor PERSON and other officials went to the scene of the incident at the highway construction site . The area had been cordoned off . The state of the body was described and the evidence of PERSON was taken . He said that TIME that day CARDINAL construction workers had come to FAC and reported the body . He went with his team and the QUANTITY workers to the scene . He found the body of a man of DATE , and gave other details about the corpse . An empty cartridge had been found a metre away . He noted that the name PERSON had been written in biro on the lining of the inside pocket of the deceased ’s jacket . Photographs were taken of the body and the scene . The doctor present said that an autopsy could not be conducted there and then as night was falling , so the body was taken to ORG .

The state of the corpse and its clothing were described . The cause of death was found to have been a bullet wound to the skull , causing major brain damage and haemorrhaging , TIME before the examination .

The report , written by Mr ORG , described the finding of the body of an unknown person who had been murdered with a CARDINAL PERSON calibre pistol . The deceased ’s clothes and personal effects were depicted . On DATE around TIME a telephone call was received at the gendarmerie from someone calling himself PERSON ( sic ) , reporting the finding of a male corpse . ORG was immediately informed . After an investigation , it was established that the person had been killed on DATE .

NORP The report , also written by Mr ORG , gave the identity of the victim , his wife and their address . It mentioned the abduction on DATE and that inquiries were continuing .

The Prosecutor , PERSON , described the finding of an unidentified corpse near the LOC village on DATE and the subsequent identification of the body by PERSON , the father of the victim , DATE .

The property found on or near the deceased was listed . It included a QUANTITY empty cartridge , cigarettes and a lighter , and a windscreen cloth from the PERSON petrol station .

Mr PERSON stated that he had known PERSON for DATE . Mr Şen had been his associate in running FAC . On DATE around DATE or CARDINAL p.m. , Mr Şen had been playing cards in the café with others . PERSON had been at another table . CARDINAL unknown men came into the café . CARDINAL stayed at the door and the third approached PERSON . While asking to see his identity , the man showed him his . The latter had had his back to PERSON and was carrying a walkie - talkie . CARDINAL of the men at the door told him to hurry up , whereupon PERSON looked at him . He described that individual . PERSON left the café with them , quite normally , in a car with a registration number beginning with the numbers “ CARDINAL ” . Before meeting Mr Şen , PERSON had known that he had been a heavily indebted gambler . PERSON brother in GPE paid his debts . Mr Şen knew a certain PERSON , a hostess at the TIME club in Gaziantep . PERSON had previously discussed with PERSON the latter ’s ORG candidature for the post of the Mayor of GPE .

Mr PERSON confirmed his statement above ( paragraph CARDINAL ) and added that he had not seen whether an actual identity card had been shown to Mr Şen by the stranger who had approached him ; nor did he hear the reason why PERSON was being taken away . Mr Şen had not seemed perturbed , however . Because of gambling debts amounting to MONEY , Mr Şen had sold CARDINAL bakeries which he had owned , and his home and café were mortgaged .

Mr PERSON declared that he had known PERSON for DATE . He was CARDINAL of his associates in the running of FAC . On DATE around DATE or CARDINAL p.m. , they had been playing cards with CARDINAL others when CARDINAL unknown men came into the café . Mr PERSON described CARDINAL of them . CARDINAL man came over to the card table and asked for PERSON , who identified himself . On request , PERSON showed his identity card , which the man kept , and then showed his , asking PERSON to follow him , which he did without protest . The man said to them , “ It ’s not serious . ” The CARDINAL left in a metal green coloured PERSON , registration number CARDINAL PVC ( or PVD ) CARDINAL . He immediately notified PERSON , but was unable to tell her who the men were . He added that he had read in the newspapers that Mr Şen had been a ORG candidate for the post of the Mayor of GPE .

ORG . Mr PERSON essentially confirmed his statement of DATE ( paragraph CARDINAL above ) , whilst amending the car registration number to CARDINAL ORG ( or ORG ) CARDINAL , and adding that Mr Şen had had gambling debts and had been involved in a long - standing vendetta .

Mr PERSON said that he had been a waiter at FAC . On DATE PERSON had been playing cards with others there . All Mr PERSON had seen , TIME , was PERSON leaving with CARDINAL other people , whose backs were turned to him and whom he was incapable of recognising or identifying . He had heard it said that these people had presented themselves as policemen .

Mr Yıldırım had been playing cards with PERSON at FAC on DATE when , TIME , a man had entered the café and asked ORG if he were PERSON , whereupon the latter identified himself . The individual showed PERSON enclosed in an identity wallet , and told him that he had to accompany him , which he did . PERSON had not taken note of the individual or his appearance as he had had his back half - turned away from the man . Before leaving , PERSON asked PERSON for some money , but PERSON had not looked at him at that point in order to avoid any embarassment . He had not been worried by any of this as he had been absorbed by the excitement of the card game . After drinking some tea , ORG went home . He knew that PERSON had been involved in a vendetta for DATE and that he liked going to nightclubs and gambling , thereby spending the money he made from the bakery which his brother had given him .

Mr PERSON said that on DATE , TIME , someone came up behind him while he was playing cards at FAC , asking whether he was PERSON . Before Mr PERSON could turn round to see who was speaking to him , Mr Şen identified himself . Within TIME , Mr Şen had left the café . Mr PERSON could not remember what the stranger had looked like or whether he had shown an identity card . He had continued playing cards as the matter did not concern him .

On the basis of the statements made by the eyewitnesses , ORG , PERSON , ORG and ORG , a sketch was made of the inside of FAC where they had all been sitting when PERSON was taken away , the streets outside and the placement of the abduction vehicle , registration number CARDINAL ORG CARDINAL or CARDINAL PVT CARDINAL .

It was recorded that the investigations , including a car registration check , had so far not disclosed the identity of the killers of PERSON , but that inquiries were continuing .

The report recounted that on DATE the body of an unknown man was found QUANTITY from the village of GPE . The autopsy revealed that he had been killed on DATE by a gunshot wound to the head . Investigations discovered that the victim had been PERSON who , on DATE , had been abducted from a night club by CARDINAL people in a car bearing the false registation number CARDINAL ORG . Since then there had been no news of him .

It was noted that the gold wedding ring and wristwatch belonging to PERSON were to be handed to his heirs .

a ) on DATE to ORG

NORP The applicant stated that her husband had been abducted from his café on DATE around TIME by QUANTITY people claiming to be plain- clothed policemen , in a honey - coloured PERSON car , registration number CARDINAL ORG CARDINAL . Her enquiries of the local authorities revealed nothing . She later learnt of and saw his tortured body at the morgue of ORG . The applicant recounted her husband ’s fears on DATE CARDINAL men who had been following him , and the eyewitness accounts of CARDINAL strangers being in the café drinking coffee on TIME of the abduction . She suspected that her husband had been abducted , tortured and killed by contra - guerillas .

NORP This statement essentially contained the applicant ’s original allegations described above ( see paragraphs CARDINAL and DATE ) . She added that she was now convinced that her husband had been abducted , tortured and killed by contra - guerillas because of his political beliefs and activities for ORG .

NORP This statement essentially contained the applicant ’s original allegations described above ( see paragraphs CARDINAL and DATE ) . She claimed that CARDINAL people had abducted her husband ( rather than the CARDINAL previously mentioned , paragraph CARDINAL above ) . She could conceive that her husband had been murdered because of his political affiliations and ambitions , but was now of the view that it had been the work of contra - guerrillas . CARDINAL ORG members had been abducted and murdered to date . She confirmed her criminal complaint and asked that her husband ’s killers be brought to justice .

The applicant recounted how her father - in - law , PERSON , had been called to the office of ORG and handed his son ’s ring and watch . He was informed that no progress had been made in the identification of his son ’s murderers . However , on the many occasions on which the applicant had gone to ORG for a progress report , she had been told that no personal possessions had been found on her husband ’s corpse . She therefore deduced that the NORP State knew of her husband ’s murder / murderers , and demanded to be told , inter alia , how the ORG had obtained the ring and watch , from whom , and for how long they had kept them , as well as the identity of the murderers and her husband ’s last words .

PERSON alleged that her father - in - law had been mentally tortured by the Urfa Anti - terrorist GPE in DATE to give information about her current whereabouts and activities . Her relatives in ORG and Gaziantep were being put under similar pressure . So she could no longer go home or work . Since giving an interview to ORG , she had been denounced as a ORG member at a press conference given by a ORG spokesman , relayed in the press and on television . Her death warrant had thereby been signed by the ORG and she requested international support . ( The applicant later made other statements to the Convention organs , alleging her ill - treatment , which statements were dealt with separately in application no . ORG , decision of DATE . )

Mr PERSON was recorded as saying that people had knocked on his door at TIME on DATE as PERSON abduction , DATE . PERSON , a journalist at the “ PERSON ” newspaper , had been told by ORG in DATE that they knew what PERSON and PERSON had been doing , that their patience had run out and that they were going to kill the CARDINAL of them . Mr ORG declared that he could no longer go home and that , if any action was taken against him , it would be the responsibilty of ORG and ORG .

In response to their inquiries , the ORG was informed that it had not been possible to determine the identity of the offenders , but that the investigation was being pursued in many directions in order to cast light on the incident .

The letter enclosed the latest statements ( CARDINAL ) , records ( CARDINAL ) and a rough sketch that had been drawn up for the investigation file .

ORG stated that he had no geographical jurisdiction in the matter of the murder of PERSON . Accordingly , he referred the file to LAW .

NORP In response to a request for information , the Governor explained that PERSON had filed a petition with ORG on DATE concerning the abduction of her husband . A body was found on DATE . The autopsy established that the victim had been shot , and inquiries revealed that the deceased was PERSON . The security forces denied any involvement in the matter . Any allegation to the contrary was an absolute , slanderous lie . Allegations by PERSON that she had been ill - treated were also untrue . An investigation into the registration number , CARDINAL ORG CARDINAL , of the car in which Mr Şen had been taken away , revealed false plates .

The Prosecutor , PERSON , instructed the gendarmerie to make an in - depth , discreet investigation into the murder , to identify the assassins , and to respect their defence rights on arrest , to take the evidence of eyewitnesses and to transmit the results to him .

The gendarmes recorded that little progress had been made in the investigation concerning the murder of PERSON . No new clues had been revealed by their inquiries , which were continuing .

Lieutenant Hüseyin Kanat reported to ORG that no progress had been made in the identification of the corpse found shot on DATE . Moreover , no information had been gleaned concerning the murderer(s ) . The gendarmes had no clues or evidence which could throw any light on the case . The investigation would continue .

Prosecutor PERSON requested the directorate to run a search on a metallic green ORG SLX car , registration number QUANTITY ( ORG ) CARDINAL , or a honey - coloured Doğan SLX car , registration number CARDINAL ORG CARDINAL . The directorate replied on DATE that these registration numbers belonged to other vehicles of different makes and colours .

The warrant stated that the search for the guilty person(s ) had continued but their identity had not been established . The search would be kept open until time - barred on DATE , in accordance with LAW ( CARDINAL ) of LAW . A letter of inquiry would be addressed to the gendarmerie DATE in the meantime .

The reports recorded that on - site inspections of the scene of the crime had been made but no new elements had been discovered . The local villagers had been unable to shed light on the facts of the case and inquiries would continue .

NORP The destruction of the respective DATE and DATE progress reports concerning attempts to identify the perpetrators of the murder on DATE , in the region of the Karpuzkaya village , was noted .

The reports recorded that the investigation into the murder of PERSON had been concluded without the perpetrators being found , but that efforts to do so would continue . Some of these reports mentioned the patrol visits to the village of GPE , QUANTITY from where the body of Mr Şen had been found . The villagers recalled the incident , but had not known the deceased and could not provide any further information , other than the idea that the incident could have been caused by passers - by on the inter - city road .

The reports repeated the preceding gendarmes progress reports .

Mr Oruç submitted a similar statement to that of Mr PERSON ( paragraph CARDINAL above ) and PERSON ( paragraphs CARDINAL above ) : He had been taken into custody ( authority unspecified ) on DATE , on suspicion of being active for the ORG . He alleged that he was asked whether he knew PERSON who , because of his illegal activities , they had killed . He was then warned that , if he failed to confess , he would suffer the same fate . ( He had not appeared before the Delegates to testify to this , as had been proposed at CARDINAL stage by the applicant ’s representatives . )

PERSON said that PERSON had been a family friend . He had telephoned her DATE before his kidnapping in an anxious state . He had wished to speak to her husband who was not in . After his abduction , her husband went with PERSON to GPE to inquire whether PERSON was in police custody there . While he was away , around CARDINAL to CARDINAL a.m. at TIME , her doorbell rang and there was a loud banging on her door . Peering through the curtains , she saw CARDINAL men and a taxi . She made a couple of telephone calls and was advised not to open the door . She thought it could have been the police , as her husband would have used his key and he had previously been threatened and taken into custody because of his political and trade union activities . Eventually the strangers left . TIME she saw that the doorbell had been broken . At ORG DATE , she heard that the tortured corpse of PERSON had been found . On being informed of this , her husband never returned to Gaziantep .

Mr ORG confirmed his wife ’s statement above ( paragraph CARDINAL above ) . Prior to the events in question , on DATE PERSON had been detained in an operation against the “ PERSON ” newspaper . PERSON ORG had told PERSON that the police had asked whether he knew him and PERSON , to which Mr PERSON replied that he knew the latter . The police allegedly stated that Mr ORG would soon be killed . Mr ORG had been taken into custody several times , fortunately with others ; otherwise he feared he might have disappeared too . He had been a refugee in GPE since PERSON death .

The Amnesty Report alleged gross violations of human rights being inflicted on civilians in south - east GPE in the context of DATE conflict between ORG forces and the ORG . It reported disappearances , extrajudicial executions and torture in police and gendarmes stations .

The Government informed the ORG that , on DATE , the applicant had been taken into custody on suspicion of being a member of the ORG , and was the subject of a criminal investigation by ORG .

The Government informed the ORG , inter alia , that the investigation into the death of PERSON , under file no . DATE , by ORG was still pending , the perpetrators of the crime not yet having been identified .

The Government informed the ORG that an investigation had been carried out by ORG , under file no . DATE , into the applicant ’s allegations to ORG on DATE that she had been tortured during her detention DATE . The medical examinations which had been conducted at the time , on her arrest and release , showed no evidence of any violence to her person and , therefore , the Prosecutor had closed the investigation .

The reports stated that the bullet examined was of the ORG make , CARDINALxCARDINAL PERSON calibre , which could not be traced to any other previous incident involving unknown perpetrators . The report was accompanied by a covering letter dated DATE ( actual day illegible ) , from ORG , explaining that an empty cartridge marked “ PERSON ORG ” , found at the scene where the body of PERSON had been discovered , had been sent for an expert examination .

NORP The relevant domestic law and practice are set out in the judgment of GPE v. GPE of DATE ( no . CARDINAL , former ORG ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , Mr F.A.K. , is a NORP national whose date of birth is stated as DATE . The President of the Section decided of his own motion to grant the applicant anonymity ( Rule CARDINAL § CARDINAL of ORG ) and confidentiality of the case file documents ( Rule CARDINAL of ORG ) . He is resident in the GPE . His profession is given on the application form as imam . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , and Deputy Agent , PERSON , of ORG .

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

NORP The applicant applied for asylum in DATE . He was questioned about the reasons for his asylum request on DATE and gave the following account :

The applicant gave his name as PERSON , born in DATE . He had travelled on a forged passport in the name of N.A.A. He had been a soldier from DATE until DATE . He had been trained for DATE at a military academy whose name he refused to divulge , such information being a military secret , passing out with the rank of corporal . In DATE he had been promoted to second lieutenant . He claimed to have been recruited as a member of ORG - al - Wattaniyya Libiya Li - l - Ingad ( Libyan National Liberation Front ) after his promotion to commissioned rank , by a colleague from his military academy DATE ; in this capacity he had distributed pamphlets in barracks . In DATE , following a failed coup attempt against the PERSON regime , he had gone into hiding ; during this time his house had been raided and searched by armed men who had taken all official documents with them . He had had no trouble leaving GPE because his brother was a member of the NORP border police . He had flown to GPE via GPE and GPE . He had met a NORP man in an GPE train station who had given him shelter and lodging until DATE , after which he had gone to GPE and applied for asylum . It had been this NORP who had advised the applicant to lodge an asylum request , it being impossible to obtain a regular residence permit . According to the report of the interview , the applicant was able more or less to describe the functioning of a PERSON rifle but did not know its calibre , and he was quite unable to describe any service pistol .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) gave a decision declaring the applicant ’s asylum request inadmissible on formal grounds . The applicant had produced no valid border - crossing document , having travelled on a forged passport ; and he had failed to report “ without delay ” after entering the country , having awaited DATE . A residence permit on humanitarian grounds was likewise refused .

The applicant lodged an administrative objection ( bezwaarschrift ) on DATE . Since the objection did not have suspensive effect , he also submitted a request to the competent tribunal for a provisional measure ( voorlopige voorziening ) aimed at securing a stay of expulsion .

On DATE the Deputy Minister lodged a written statement in reply . It was stated that the applicant had not told the truth : a GPE visa in the name of N.A.A. had been requested at the GPE embassy in GPE by a man who had submitted a passport photograph remarkably similar to that contained in the passport the applicant had travelled on . Likewise , the applicant had stated that he had sought asylum on the advice of the NORP man who had told him that he would not succeed in getting a job and a regular residence permit . Moreover , it was admitted that the applicant ’s wife had sought a GPE visa , and travelled , under her own name . The airline ticket which the applicant had submitted did not correspond to the journey which he had allegedly made from GPE , and the applicant had not been able to offer proof of his military career . It was unlikely that the applicant had been involved in the coup attempt , since it had been betrayed and all the plotters were known to have been arrested .

A hearing was held before ORG ( arrondissementsrechtbank ) of GPE , sitting in ‘ s - Hertogenbosch , on DATE . The applicant was allowed DATE to prove that he was PERSON , as he claimed , not N.A.A.

ORG gave judgment on DATE refusing to order the suspension of the applicant ’s expulsion . It found that the applicant had not submitted the required proof of his identity . At all events , he had admitted that he had taken the advice of the NORP man to seek asylum rather than a regular residence permit .

The applicant submitted to the Deputy Minister a letter from ORG ) dated DATE . This letter gives the applicant ’s name as ORG , ORG or ORG , depending on the transcription from LANGUAGE . It was admitted that the applicant had used an alias . It was stated that he had done so for fear that other speakers of LANGUAGE would betray him to the NORP secret service . He had neglected to tell his lawyer this , which he now acknowledged had been a mistake .

On DATE the applicant again applied to ORG for a suspension of his expulsion . He now gave his name as ORG ; the interrogating official was to blame for the mistaken mention of the name PERSON in the report of the interview on DATE . He also submitted various identity documents in the name , variously , of ORG and ORG As translated , these included a card with a passport photograph naming ORG as a deserter with effect from DATE ; an identity card in the name of ORG giving his profession as “ manual labourer ” ; an identity card naming ORG as “ a staff officer and a soldier ” ; an undated official report of the loss of a driving license in the name of ORG ; and a marriage certificate recording the marriage of ORG with ORG on CARDINAL DATE and the birth of their child on DATE .

On DATE the Deputy Minister dismissed the applicant ’s objection on the grounds stated in the statement of defence of CARDINAL DATE . The applicant lodged an appeal with ORG of The Hague .

On DATE ORG declared the appeal well - founded . It noted the absence , in the decision appealed against , of any reference to the letter of CARDINAL DATE ( paragraph CARDINAL above ) , and took the view that the applicant ’s account of the circumstances of his flight from GPE was not prima facie lacking in credibility .

The Deputy Minister remitted the applicant ’s case to ORG ( PERSON voor vreemdelingenzaken ) , which heard the applicant and his wife on DATE . The applicant ’s wife stated that the applicant had always been an army officer , not a manual labourer . She and her husband had fled to GPE DATE after their home had been raided by the authorities . The papers recently submitted had been forwarded by her father - in - law . The applicant stated that his name had been taken down wrong by the interviewing official , in the absence of an interpreter ; the official had told him that it was no longer possible to correct it and that he , the applicant , would be in trouble if an attempt were made to do so . As regards the raid on his home , the applicant had driven past as it was in progress ; suspecting that the authorities were waiting to arrest him , he had driven on and gone into hiding . ORG decided to adjourn its hearing in order for the applicant ’s identity to be established .

On DATE experts of ORG ( ORG – the police force entrusted with guarding the borders ) reported that the passport the applicant had submitted was a forgery , the photograph having been replaced .

A letter dated DATE states that the applicant was involved in ORG of DATE . The letter is signed “ ORG ” . It bears an illegible signature without a name .

On DATE ORG resumed its hearing in sub - committee . The applicant gave his name as ORG The passport had belonged to the applicant ’s cousin PERSON , who looked like the applicant , and who had also applied for the visa . Confronted with the inconsistency of his having allegedly seen the raid on his home while having previously stated that he had been in hiding at the time ( paragraph CARDINAL above ) , the applicant replied that he had driven on in a panic . After the raid he had spent TIME in his home from time to time , he did not remember precisely . The applicant ’s wife became unwell during the hearing and was unable to give pertinent answers to any questions .

On DATE the applicant ’s wife was granted a residence permit on humanitarian grounds .

On DATE the applicant was granted asylum in accordance with the so - called “ DATE policy ” ( driejarenbeleid ) , as in effect at the time , pursuant to which a residence title could be granted if a request for a residence permit had not been decided within DATE for reasons not imputable to the petitioner and provided that there were no contra - indications .

In DATE the entire family applied for GPE citizenship .

On DATE ORG ( Algemene Inlichtingen- en ORG ; “ ORG ” ) produced a report specifically on the applicant . It had emerged that he had been appointed imam of a particular mosque , from where he preached jihad ( NORP holy war ) and martyrdom and called upon the faithful to resist NORP oppression . The autochthonous population of the GPE he described as pigs and dogs to be slaughtered . He was stated to show jihadist videos to young NORP . “ Unbelievers ( i.e. non - NORP ) , the autochthonous population and women ” were to be shunned . He refused to speak the NORP language and opposed integration . He had links to PERSON , or ORG , and jihadists based in the GPE including GPE ( the applicant in the case of NORP v. the GPE , no . CARDINAL/CARDINAL , judgment of DATE ) .

On DATE the Minister for ORG ( Minister PERSON – who at this time had taken the place and responsibilities of the Deputy Minister of Justice in matters concerning aliens ) announced her intention ( voornemen ) to impose an exclusion order ( ongewenstverklaring ) on the applicant . Mention was made of the ORG report and of inconsistencies found in the applicant ’s various statements made in the course of the asylum proceedings .

In the meantime , ORG ( PERSON ) had identified the applicant as a suspect of running a temporary employment agency that provided work to foreign nationals who did not possess the necessary work permit ( tewerkstellingsvergunning ) from a telephone shop and internet café . An official police record dated DATE mentions forged identity documents but it seems that no further evidence of such dealings was found . However , known fundamentalists had been observed near the applicant ’s internet café .

The same report contains a record of an interrogation of the applicant on DATE on suspicion of being a member of an organisation aiming to commit crimes for terrorist ends and recruiting persons for armed hostilities without royal permission . The applicant reportedly denied these charges : he stated that he had received religious training in GPE and espoused a tolerant form of ORG . Jihad , for him , was spiritual struggle against oneself . Accordingly , rather than inciting to violence , he had warned his congregation not to become involved with radical NORP whose religious views he condemned . The LAW information was therefore incorrect ; it probably emanated from NORP militants who had implicated him in order to deflect the unwanted attention of the authorities from themselves . He no longer ran the temporary employment agency , which had been unprofitable .

On DATE a board of officials of ORG held a hearing in the matter of the applicant ’s application for GPE citizenship . The applicant did not turn up . Later a letter was found in which the applicant waived his right to be heard .

On DATE the Minister gave a decision withdrawing the applicant ’s asylum . She found that the applicant had not put forward any convincing evidence of a nature to contradict the ORG report . As to whether the applicant ’s expulsion to his home country would violate LAW , the applicant ’s failure to turn up for the hearing on CARDINAL DATE was mentioned ; moreover , the applicant had provided little evidence of the fate which he said awaited him in GPE , the story which he had spun at the time of his arrival in the GPE hardly being credible either .

The following day , DATE , the Minister announced her intention to deny the applicant GPE citizenship . The reasoning was derived primarily from the ORG report . In the alternative , it was stated that the applicant had not done enough to integrate into GPE society ; thus , an interpreter had been needed for a police interview on DATE ( no record of which has been submitted to ORG ) , which showed a lack of NORP language skills . Similarly , he had described the autochthonous population as “ pigs ” and “ dogs ” who would be “ slaughtered ” . It was also held against him that he had not bothered to turn up for the official hearing on DATE ; in so doing he had deprived himself of the opportunity to clarify matters .

The DATE the Minister issued an exclusion order based on the same grounds . In so far as it related to LAW , its reasoning included the following :

“ In deciding whether or not the person concerned ( betrokkene , i.e. the applicant ) constitutes a danger to national security it has also been considered whether the exclusion order constitutes a violation of LAW ] . LAW CARDINAL of the LAW provides that everyone has the right to respect for his private and family life , his home and his correspondence . Pursuant to LAW there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , public safety or the economic well - being of the country , for the prevention of disorder or crime , for the protection of health or morals , or for the protection of the rights and freedoms of others .

It is considered that in view of what is set out above the exclusion order does not constitute a violation of the right to respect for family life as referred to in DATE .

Given that the applicant ’s exclusion is ordered , he is denied the possibility to visit his family for a short time in the GPE ( ... ) . That being so , there is DATE as far as the exclusion order is concerned – an interference with the right referred to above .

The interference is , however , justified in the interest of the protection of national security , an interest mentioned in [ LAW ] . After all , the person concerned constitutes – in view of the individual [ ORG ] report of DATE referred to above – a danger to national security . In so finding , the following is taken into account .

The applicant states in his statement of points of view ( zienswijze ) that he has a wife and CARDINAL children , family members who have been legally resident in the country since DATE . That being so , there is family life between the person concerned , his partner and his children within the framework of LAW . Neither his wife nor his children have GPE nationality .

If the interests at issue are weighed in the balance , it will be found in the instant case that it is reasonable to give greater weight to the general interest , which is served by the order excluding the person concerned , than to the personal interest of the person concerned which is served by the ability to exercise private or family life in this country with his wife and his CARDINAL children .

In so doing , the so - called ‘ guiding principles’ [ LANGUAGE in the original ] taken from [ LOC v. GPE , no . CARDINAL , ECHR CARDINALIX ] have been taken into consideration . These ‘ guiding principles’ have to be observed in considering whether a decision interfering with the right to family life is necessary in a democratic society .

Observing these principles , the Minister has reached the conclusion that the interference is justified and does not contravene LAW . In this connection , the following is considered relevant .

As is apparent from the above - mentioned individual official report by the ORG of DATE , it has appeared that the person concerned constitutes a danger to national security . Thus , it is stated DATE briefly summarised – in this report ( among other things ) that it has become known to the ORG from trustworthy sources that the person concerned has , in his sermons , called for resistance against the NORP oppressors ; that GPE nationals are described by him as ‘ pigs and ORG ; that he has made pronouncements such as ‘ we will slaughter the ORG ; that he has , in a private setting ( in huiselijke kring ) , shown jihadist videos to young NORP ; that he has encouraged jihad in his sermons ; that he has praised martyrdom ; and that he is in contact with , and maintains links with , ( international ) terrorist networks and organisations .

What is stated about the person concerned in the said ORG report is so serious that the interest of national security must outweigh the interest of the person concerned in maintaining private or family life without interference .

Prompted by the said individual report by the ORG , the Minister has concluded that the personal behaviour of the person concerned constitutes a present , actual and sufficiently serious threat ( een actuele , werkelijke en voldoende ernstige bedreiging ) , owing to which the person concerned should be denied residence in the GPE .

There is no appearance of special circumstances of such a nature that the balancing exercise should lead to a different result in the present case . In this connection , the following is considered relevant .

The Minister ’s refusal to allow the person concerned residence in the GPE does , however , prevent the continuation of family life ( familie- of gezinsleven ) between the person concerned , his wife and their CARDINAL children as it currently exists in this country . However , although the person concerned and his wife currently have an indefinite residence permit on an asylum basis ( vergunning tot verblijf asiel ) , they have never held a residence permit delivered on the basis of genuine ( daadwerkelijk ) refugee status in the sense of the [ DATE ORG relating to LAW , ‘ the DATE Convention’ ] and they have never had the status of refugee within the meaning of [ the DATE ] Convention . Even so , the advisory opinion of ORG of DATE [ containing the advice ] not to admit the applicant and his wife to the GPE as refugees but to award him [ sic ] a residence permit in connection with the so - called DATE policy has led to the delivery of unrestricted residence permits to the applicant and his wife . The residence permit ... was eventually transformed into an indefinite residence permit . Since the lapse of time had arisen in the asylum procedure , it was merely administered by us as an indefinite ‘ asylum’ residence permit .

The applicant and his wife have DATE in view of DATE never entered into or been in the possession of a residence permit because they were refugees . It is true , however , ... that an indefinite asylum residence permit may constitute an objective impediment . The person concerned and his wife are thereby prevented from obtaining a GPE travel document which would allow them to travel to GPE ( their country of origin ) . Nonetheless , the person concerned , his wife and his ( minor ) children DATE in view of the above findings on refugee status – turn to the authorities of GPE ( their country of origin ) for a travel document . There is no appearance of any impediment in this respect . ... ”

The applicant submitted his statement of points of view against the intention to deny him GPE citizenship on DATE . On DATE he also lodged an appeal against the withdrawal of asylum , at the same time applying for a stay of expulsion . On DATE he lodged an objection against the exclusion order .

The applicant submitted the grounds underlying his objection against the exclusion order on CARDINAL or DATE . He appended some sermons which he had given in DATE , giving his exegesis of the concept of jihad .

On DATE the applicant submitted the grounds for his appeal against the withdrawal of asylum and his application for a stay of expulsion . These were largely identical to those submitted in response to the exclusion order .

On DATE the Minister dismissed the applicant ’s objection against the refusal of GPE citizenship . The main reason was that since the applicant ’s asylum status had been withdrawn , and since an exclusion order was in force , he was no longer lawfully resident in the GPE . For the remainder , she relied essentially on the ORG report .

On DATE counsel for the State ( Landsadvocaat ) wrote to ORG informing it that the Minister had decided not to expel the applicant pending the outcome of the appeal against the exclusion order . He added that the applicant was not suspected of oppositional activities against the NORP leadership .

Also on DATE a hearing before officials of ORG took place in the matter of the applicant ’s objection against the exclusion order . The applicant continued to insist that he preached a peaceful message , although perhaps some of his sermons might have been misinterpreted . He also claimed to have been filmed taking part in a demonstration in GPE protesting against a visit by the NORP leader Colonel PERSON .

On DATE the applicant lodged an objection against the refusal to grant his entire family citizenship .

On DATE , following a hearing on DATE , the Provisional Measures Judge ( voorzieningenrechter ) of ORG of GPE , sitting in GPE , decided to order the suspension of the exclusion order given that the applicant ’s expulsion was not imminent but the applicant nonetheless committed a criminal act by remaining in the country .

The very DATE the Minister gave a decision dismissing the applicant ’s objection against the exclusion order . This decision was largely based on the ORG report , whose credibility the applicant had not managed to undermine . Absent proof of the applicant ’s participation in the demonstration in GPE , there was no evidence to suggest that the applicant was wanted by the NORP authorities , and hence no relevant risk for purposes of LAW ; moreover , although it was true that the applicant had been convicted of no crime , he remained a danger to society in the GPE and could be required to return to GPE , exercising his right to respect for his family life in that country .

On DATE ORG of The Hague , sitting in GPE , dismissed the applicant ’s appeal against the withdrawal of asylum . It found that the appeal had become devoid of purpose , the exclusion order implying that it was not possible for the applicant to be lawfully resident in the GPE anyway .

The applicant lodged a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , arguing that ORG had failed to go into his complaints under LAW and CARDINAL of the Convention .

ORG gave its decision on DATE . It agreed that ORG had failed to rule on the applicant ’s Convention complaints . However , these could be addressed in the proceedings concerning the exclusion order ; there was therefore no reason to allow the appeal , which was dismissed as ill - founded .

ORG of The Hague , sitting in GPE , held a hearing in the matter of the exclusion order on DATE . It delivered its decision on DATE , dismissing the applicant ’s appeal . Having studied the documents on which the ORG report was based , ORG found the report credible and dismissed the suggestion that the applicant was at risk in the event of his return to GPE ; there was thus no issue under LAW . As to the applicant ’s right to respect for his family life , in so far as it was guaranteed by LAW , national security carried greater weight .

The applicant lodged a further appeal with ORG , arguing not only that his removal to GPE would constitute violations of Articles CARDINAL and CARDINAL but also that the failure of the Minister to take cognisance of the information on which the ORG report was based , and the failure to allow him access to that material , violated LAW taken together with ORG and CARDINAL respectively .

ORG gave its decision on DATE . It dismissed the applicant’ suggestion that the Minister ought to have taken cognisance of the raw data used by the ORG to prepare its report , finding it sufficient that ORG had done so , and that it had done so itself . It then found it established in previous judicial decisions that the applicant ’s account of his military career and flight from GPE lacked credibility and that moreover the applicant ’s brother - in - law appeared able to travel to and from that country with no apparent difficulty . Letters and testimonials purportedly emanating from NORP opposition organisations gave no specific information as to either the applicant ’s actions , nor as to whether the applicant had attracted the active interest of the NORP authorities . As regards DATE , ORG referred to the ORG report and the information on which it was based ; taking these into account , it found no reason to overturn the decision of ORG . It went on to hold that the Minister had ruled , not without good cause , that the interference with the applicant ’s rights was justified .

NORP The regime of Colonel PERSON was overthrown in DATE . On DATE Colonel PERSON himself was captured and killed . ORG , the internationally recognised interim authority , declared the country liberated DATE . Parliamentary elections were held in DATE .

The Government have submitted photocopies of travel documents in the name of the applicant ’s wife , PERSON All CARDINAL documents state Ms ORG ’s name , her place of birth ( a town in GPE ) and her date of birth and bear her likeness .

The first is a GPE travel document in passport form issued under LAW on DATE . It is valid for all countries but CARDINAL , the sole exception being GPE . The photocopy submitted shows CARDINAL FAC passport control stamps : an exit stamp dated DATE , an entry stamp dated DATE , and another exit stamp dated DATE .

The second is a GPE identity card showing that Ms L.A.H. has been granted indefinite asylum .

The third is a NORP passport , issued on DATE in Ms ORG ’s place of birth . It is valid until DATE . It bears stamps in LANGUAGE script dated DATE , DATE and DATE , CARDINAL of which the ORG identifies as NORP border control stamps .

The photographs used for the GPE travel document and the NORP passport appear identical .

The domestic and international law and practice relevant to the case are set out in GPE v. the GPE , cited above , § § DATE .


Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - claim dismissed

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

At the time of the events giving rise to this application , the applicant was the manager of the post office in GPE , GPE . He wrote an article entitled “ An open letter to PERSON , former Director of the GPE PTT ” , in which he criticised PERSON negligence in the project to restore the ORG post office building and blamed her for the dilapidated state and partial collapse of the building . In DATE , the article was published in the ORG issue of the ORG magazine , a nonprofit - making publication of the ORG postal service ( “ the PTT ” ) , which has CARDINAL employees .

In the same edition of the magazine , in an article entitled “ ORG and ORG office ” , the editor - in - chief also criticised the restoration project and claimed that the amount paid for the project suggested that it had been carried out to make certain people richer . He concluded that those who were responsible for the current state of the building or had been negligent had been put on trial , but that the unlawfulness and abuses would soon be forgotten and the accused would get away with the offences . He pointed out that justice delayed was not justice .

On DATE PERSON sent a letter of correction to the editorinchief of the magazine , requesting him to publish her replies to the allegations made against her . This letter was received by the editor - in - chief on DATE .

Since the magazine did not publish the letter , PERSON brought an action in ORG seeking an order for the publication of her letter .

On DATE ORG ordered the publication of the correction letter . However , it decided that certain passages in the letter should be deleted as the statements contained therein went beyond the aim of responding to the allegations made against the plaintiff . The parties did not inform the ORG whether this letter was published in the Pos - Tel magazine .

On DATE PERSON brought a civil action for compensation against the applicant and the editor - in - chief of the magazine before ORG of First Instance . She claimed that the allegedly defamatory remarks made in the magazine , particularly in the applicant ’s article , constituted an attack on her reputation . She thus requested that the court award her compensation in the amount of MONEY ( GPE ) for nonpecuniary damage .

During the proceedings the court examined the following passages :

“ My esteemed former Director , ... as a result of your pointless and inappropriate acts , which were carried out merely to obtain economic and political profit and to appear cute to some people , you caused irreparable harm to our historic PTT ( ORG ) building ...

... I believe that our late Minister of Communications , ORG , would turn in his grave if he saw the building DATE ...

My esteemed retired Director , in an interview which was published in ORG magazine , in which you appeared in the guise of a heroine and a symbol for honesty , like an exemplary manager in GPE , you managed to exploit the sentiments of ( the interviewer ) by appearing innocent , clean and pure . The interview was given the title ‘ They ate the president who did not eat’ . This title moved me tremendously and made me think . I wished that the interview had not been published in a serious magazine . Now , like a lady with a conscience , and without twisting the truth , tell [ us ] . In our country there are many people who take bribes ; there are thieves and crooks . And even though these people are convicted by our independent courts , they never admit that ... they stole or that they were bribed . As you may very well remember , an eminent statesman once said , ‘ No one can know what happens between QUANTITY people and bribery can not be documented.’ ...

While it was decided by ORG , ORG and ORG to pay CARDINAL GPE for our building , I can not understand how you managed to spend CARDINAL GPE , by consulting with Mr GPE , who has nothing to do with our administration . Do you also know that , in a telephone conversation , CARDINAL of your employees told me that he could not make any payment which had not been approved by Mr GPE ? ”

On DATE the first - instance court decided that the article went beyond mere criticism of an unsuccessful restoration project . In its detailed decision , the court noted that there was a criminal case pending against the plaintiff on charges of breach of duty for having made an overpayment to the contractor who carried out the restoration project . The dispute between the contractor and the PTT had not yet been resolved and the plaintiff had not been convicted . Nevertheless , the proceedings in question had been suspended under PERSON no . DATE . However , the court held that , even assuming that the proceedings had not been suspended and that the plaintiff had been convicted of the charges , this did not mean that she had been accepting bribes or that she had not acted like a lady . The court observed that criticising an unsuccessful restoration project was not the same as insulting an individual , and that the applicant had exceeded the limits of permissible criticism by using demeaning statements in the article . It had been implied that the plaintiff had taken bribes . Taking into account the responsibility of the plaintiff in the restoration project and the socio - economic situation of the parties , the court decided to award the plaintiff the sum of FAC ( MONEY ( ORG ) at the relevant time ) in compensation for non - pecuniary damage , to be paid by the applicant and the editor - in - chief . The applicant paid a total sum of GPE CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , which included the principal compensation , enforcement costs and interest .

On DATE the applicant appealed against the decision of the first - instance court , complaining that it interfered with his freedom of expression . He noted that the impugned article had not targeted the personality of the plaintiff , but had been aimed at raising awareness on the subject of the protection of a historic monument by the ORG authorities . As a former manager of ORG post office , he had merely expressed his concern at the state of the building and had criticised the plaintiff for her omissions , contributing to the collapse of the building . He argued that the first - instance court judges had erred in their decision by refusing his request that they visit the building , which might have allowed them to better understand his criticism in the article . Thus , the applicant requested ORG to quash the above judgment which , in his opinion , risked preventing scrutiny of public values and would deter the public from raising their voices against the plunder of public monuments .

On DATE ORG upheld the judgment , holding that the first - instance court had duly examined the circumstances in which the insulting statements had been made .

On DATE ORG dismissed a request by the applicant for rectification of its decision .

According to Law no . DATE on conditional release , suspension of proceedings and execution of sentences in respect of crimes committed before DATE , proceedings could be suspended and subsequently dropped if no crime of the same or a more serious nature was committed by the offender within a DATE period .

Article CARDINAL of the Code of Obligations provides as follows :

“ Any person who alleges that his personality rights have been illegally violated can claim compensation for non - pecuniary damage .

The judge shall take into account the parties’ socio - economic situation , their occupation and their social status when determining the amount of compensation ... ”