PROCEDURE

The case originated in an application (no. 32581/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Memet Koçak (“the applicant”), on 3 October 1995.

The applicant was represented by Mr M. İriz and Mrs Ş. Turan, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The applicant complained that he had been subjected to ill-treatment while in police custody. He further alleged that he had been deprived of his right to legal assistance during questioning by the police, the public prosecutor and the judge who ordered his detention on remand. The applicant invoked Articles 3 and 6 §§ 1 and 3 (c) of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

By a decision of 7 October 2003, the Court declared the complaint under Article 3 of the Convention admissible.

The applicant and the Government each filed further written observations (Rule 59 § 1).

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

On 10 October 2006 the Court decided to examine the merits of the complaint under Article 6 §§ 1 and 3 (c) of the Convention at the same time as its admissibility under the provisions of Article 29 § 3 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1965 and lives in Istanbul.

A. The alleged ill-treatment of the applicant in police custody

On 12 December 1993 the applicant and five other persons were arrested by police officers from the anti-terror branch of the Istanbul Security Directorate in the house of one of the arrestees, M.O., in the course of a police operation carried out against the PKK.

Between 12 and 27 December 1993 the applicant was detained in the Istanbul Security Directorate. The applicant alleges that, while there, he was blindfolded and forced to listen to the cries of other detainees being tortured. He was threatened with torture and forced to admit that he was a member of the PKK. When he refused to do so, he was stripped naked, immersed in cold water and beaten with a truncheon on various parts of his body, including the soles of his feet. He was then forced to walk on a salt-strewn floor. His hands were tied with a blanket, he was strung up by his arms and subjected to a form of torture known as “Palestinian hanging”. In this position, electric shocks were administered to his genitals, his fingers and feet. He was subsequently coerced into signing a statement, of which he only signed the first two pages. During his detention in police custody the applicant was kept in a cell, deprived of food and water and prevented from sleeping.

On 27 December 1993 the applicant was examined by a medical expert from the Istanbul branch of the Forensic Medicine Institute who observed two ecchymosises of 2-3 cm in diameter on both sides of the applicant's hips and an allergic dermatitis on his right hand. The doctor concluded that the applicant's life was not endangered and that the injuries rendered him unfit for work for one day.

On the same day the applicant was brought before the public prosecutor and a single judge at the Istanbul State Security Court. On both occasions the applicant denied the accuracy of the statements that had been taken from him by the police. He contended that he had signed the statements under duress. The judge at the Istanbul State Security Court ordered the applicant's detention on remand. The applicant was then transferred to Sağmalcılar prison.

On 30 December 1993 the applicant filed a petition with the Istanbul State Security Court. In his petition, the applicant reiterated that he had been tortured while in police custody and that his statements had been taken under duress. He finally requested to be released.

On 14 January 1994 the applicant was examined by the director of the Eyüp branch of the Forensic Medicine Institute. The medical expert observed the following: “... presence of pain in the shoulders, the armpits and the neck, a yellow ecchymosis on the right armpit, an ecchymosis of 3x2 cm on the upper part of the right arm, widespread ecchymotic area and abrasions on both arms and wrists, hyperaemic lesions of 3x2 cm and 2x1 cm on the upper part of the right hand and on the left hand, widespread pain in the hands, widespread ecchymotic area of yellow colour on both gluteal regions on the back, ecchymotic area on the groin, pain in the testicles, pain during defecation, swollen area on the right leg and foot, a yellow ecchymosis and swollen area on the sole of the right foot, pain in the left leg, a yellow ecchymosis on the malleolar region, a yellow ecchymosis and swollen area on the sole of the left foot, several old wounds on both wrists and ankles...” The medical expert considered that the applicant's life was not endangered and that the injuries rendered him unfit for work for seven days.

On 11 July 1994 and 27 March 1995 the applicant filed further petitions with the Istanbul public prosecutor's office alleging that he had been subjected to ill‑treatment while in police custody.

On an unspecified date the Istanbul public prosecutor initiated an investigation into the applicant's allegations of ill-treatment.

On 5 June 1995 the public prosecutor issued a decision of non‑prosecution with regard to R.A., the director of the anti-terror branch of the Istanbul Security Directorate, holding that there was insufficient evidence to bring criminal proceedings against him. The public prosecutor further noted that criminal proceedings had been brought against Ö.D. and Ü.K., police officers from the anti-terror branch of the Istanbul Security Directorate, under Article 243 of the Criminal Code. The police officers were accused of torturing the applicant in order to obtain a confession from him.

On 29 June 1995 the applicant filed an objection against the decision of 5 June 1995.

On 4 August 1995 the Beyoğlu Assize Court dismissed the applicant's objection.

On 20 December 1995 the Istanbul Assize Court acquitted the accused police officers, holding that there was insufficient evidence to conclude that the accused had ill-treated the applicant while in police custody.

The judgment of 20 December 1995 became final as the public prosecutor did not lodge an appeal against it.

B. Criminal proceedings against the applicant

Following his arrest, the applicant surrendered a 7.65 mm calibre pistol and seven bullets to the police officers. Furthermore, according to the official documents, several weapons and organisational documents were found and seized in the course of the police operation.

On 4 February 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with twenty-nine other persons. The public prosecutor charged the applicant under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713 with membership of the PKK.

On 26 November 1996 the Istanbul State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment.

In its judgment, the first-instance court noted that the applicant had been arrested in the house of M.O., along with other suspects and that he had subsequently surrendered a 7.65 mm calibre pistol and seven bullets to the police. The court further stated that one of the applicant's co-accused, M.D., had maintained before the public prosecutor that he had been involved in PKK activities together with the applicant. The court also took into account the statements of three other accused, who had contended before the public prosecutor that the applicant had collected money on behalf of the PKK. The Istanbul State Security Court finally noted that the applicant had maintained during the hearings that he supported the ideology of the PKK and believed that the PKK was the legitimate representative of Kurdistan. Basing its judgment on the aforementioned elements, the Istanbul State Security Court concluded that the applicant was a member of the PKK.

The judgment of 26 November 1996 became final in respect of the applicant since he did not appeal against it.

On 26 April 2003 the applicant was conditionally released from prison.
NOT_CONFIDENTIAL
check
001-80364_a10_e1
001-80364_a10_em1
CODE
DIRECT
32581/96
NOT_CONFIDENTIAL
insert
001-80364_a10_e2
001-80364_a10_em2
ORG
NO_MASK
Republic of Turkey
NOT_CONFIDENTIAL
check
001-80364_a10_e3
001-80364_a10_em3
DEM
NO_MASK
Turkish
NOT_CONFIDENTIAL
check
001-80364_a10_e4
001-80364_a10_em4
PERSON
DIRECT
Mr Memet Koçak
NOT_CONFIDENTIAL
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001-80364_a10_e5
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DATETIME
QUASI
3 October 1995
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check
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001-80364_a10_em6
PERSON
QUASI
Mr M. İriz
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PERSON
QUASI
Mrs Ş. Turan
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001-80364_a10_e8
001-80364_a10_em8
LOC
QUASI
Istanbul
NOT_CONFIDENTIAL
check
001-80364_a10_e2
001-80364_a10_em9
ORG
NO_MASK
001-80364_a10_em2
Turkish Government
NOT_CONFIDENTIAL
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001-80364_a10_em10
DATETIME
NO_MASK
1 November 1998
NOT_CONFIDENTIAL
insert
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001-80364_a10_em11
DATETIME
NO_MASK
1 November 2001
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001-80364_a10_em12
DATETIME
QUASI
7 October 2003
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001-80364_a10_e12
001-80364_a10_em13
DATETIME
NO_MASK
1 November 2004
NOT_CONFIDENTIAL
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001-80364_a10_e13
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DATETIME
QUASI
10 October 2006
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check
001-80364_a10_e14
001-80364_a10_em15
DATETIME
QUASI
1965
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001-80364_a10_e8
001-80364_a10_em16
LOC
QUASI
Istanbul
NOT_CONFIDENTIAL
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001-80364_a10_e15
001-80364_a10_em17
DATETIME
QUASI
12 December 1993
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001-80364_a10_e16
001-80364_a10_em18
QUANTITY
QUASI
five other persons
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001-80364_a10_e17
001-80364_a10_em19
ORG
QUASI
Istanbul Security Directorate
NOT_CONFIDENTIAL
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001-80364_a10_e18
001-80364_a10_em20
PERSON
QUASI
M.O.
POLITICS
check
001-80364_a10_e19
001-80364_a10_em21
ORG
QUASI
PKK
NOT_CONFIDENTIAL
insert
001-80364_a10_e20
001-80364_a10_em22
DATETIME
QUASI
12 and 27 December 1993
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check
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001-80364_a10_em23
ORG
QUASI
Istanbul Security Directorate
HEALTH
insert
001-80364_a10_e21
001-80364_a10_em24
MISC
NO_MASK
threatened with torture
POLITICS
check
001-80364_a10_e19
001-80364_a10_em25
ORG
QUASI
PKK
HEALTH
insert
001-80364_a10_e22
001-80364_a10_em26
MISC
NO_MASK
hands were tied with a blanket, he was strung up by his arms and subjected to a form of torture known as “Palestinian hanging”
HEALTH
insert
001-80364_a10_e23
001-80364_a10_em27
MISC
NO_MASK
In this position, electric shocks were administered to his genitals, his fingers and fee
NOT_CONFIDENTIAL
check
001-80364_a10_e24
001-80364_a10_em28
DATETIME
QUASI
27 December 1993
NOT_CONFIDENTIAL
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LOC
QUASI
Istanbul
NOT_CONFIDENTIAL
insert
001-80364_a10_e25
001-80364_a10_em30
ORG
QUASI
Istanbul branch of the Forensic Medicine Institute
HEALTH
insert
001-80364_a10_e26
001-80364_a10_em31
MISC
NO_MASK
two ecchymosises of 2-3 cm in diameter on both sides of the applicant's hips
HEALTH
insert
001-80364_a10_e27
001-80364_a10_em32
QUANTITY
NO_MASK
2-3 cm
HEALTH
insert
001-80364_a10_e28
001-80364_a10_em33
MISC
NO_MASK
allergic dermatitis on his right hand
NOT_CONFIDENTIAL
check
001-80364_a10_e29
001-80364_a10_em34
DATETIME
QUASI
one day
NOT_CONFIDENTIAL
check
001-80364_a10_e30
001-80364_a10_em35
ORG
QUASI
Istanbul State Security Court
NOT_CONFIDENTIAL
check
001-80364_a10_e30
001-80364_a10_em36
ORG
QUASI
Istanbul State Security Court
NOT_CONFIDENTIAL
insert
001-80364_a10_e31
001-80364_a10_em37
ORG
QUASI
Sağmalcılar prison
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001-80364_a10_em38
DATETIME
QUASI
30 December 1993
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001-80364_a10_e30
001-80364_a10_em39
ORG
QUASI
Istanbul State Security Court
NOT_CONFIDENTIAL
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001-80364_a10_e33
001-80364_a10_em40
DATETIME
QUASI
14 January 1994
NOT_CONFIDENTIAL
insert
001-80364_a10_e34
001-80364_a10_em41
ORG
QUASI
Eyüp branch of the Forensic Medicine Institute
HEALTH
insert
001-80364_a10_e35
001-80364_a10_em42
MISC
NO_MASK
pain in the shoulders, the armpits and the neck
HEALTH
insert
001-80364_a10_e36
001-80364_a10_em43
MISC
NO_MASK
a yellow ecchymosis on the right armpit
HEALTH
insert
001-80364_a10_e37
001-80364_a10_em44
MISC
NO_MASK
an ecchymosis of 3x2 cm on the upper part of the right arm
HEALTH
insert
001-80364_a10_e38
001-80364_a10_em45
QUANTITY
QUASI
3x2 cm
HEALTH
insert
001-80364_a10_e39
001-80364_a10_em46
MISC
NO_MASK
widespread ecchymotic area
HEALTH
insert
001-80364_a10_e40
001-80364_a10_em47
MISC
NO_MASK
abrasions on both arms and wrists
HEALTH
insert
001-80364_a10_e41
001-80364_a10_em48
MISC
NO_MASK
hyperaemic lesions of 3x2 cm and 2x1 cm on the upper part of the right hand and on the left hand
HEALTH
insert
001-80364_a10_e38
001-80364_a10_em49
QUANTITY
QUASI
3x2 cm
HEALTH
insert
001-80364_a10_e42
001-80364_a10_em50
QUANTITY
QUASI
2x1 cm
HEALTH
insert
001-80364_a10_e43
001-80364_a10_em51
MISC
NO_MASK
widespread pain in the hands
HEALTH
check
001-80364_a10_e39
001-80364_a10_em52
MISC
NO_MASK
widespread ecchymotic area
HEALTH
insert
001-80364_a10_e44
001-80364_a10_em53
MISC
NO_MASK
widespread ecchymotic area of yellow colour on both gluteal regions on the back
HEALTH
insert
001-80364_a10_e45
001-80364_a10_em54
MISC
NO_MASK
ecchymotic area on the groin
HEALTH
insert
001-80364_a10_e46
001-80364_a10_em55
MISC
NO_MASK
pain in the testicles
HEALTH
insert
001-80364_a10_e47
001-80364_a10_em56
MISC
NO_MASK
pain during defecation
HEALTH
insert
001-80364_a10_e48
001-80364_a10_em57
MISC
NO_MASK
swollen area on the right leg and foot
HEALTH
insert
001-80364_a10_e49
001-80364_a10_em58
MISC
NO_MASK
a yellow ecchymosis and swollen area on the sole of the right foot
HEALTH
insert
001-80364_a10_e50
001-80364_a10_em59
MISC
NO_MASK
pain in the left leg
HEALTH
insert
001-80364_a10_e51
001-80364_a10_em60
MISC
NO_MASK
a yellow ecchymosis on the malleolar region
HEALTH
insert
001-80364_a10_e52
001-80364_a10_em61
MISC
NO_MASK
a yellow ecchymosis
HEALTH
insert
001-80364_a10_e53
001-80364_a10_em62
MISC
NO_MASK
swollen area on the sole of the left foot
HEALTH
insert
001-80364_a10_e54
001-80364_a10_em63
MISC
NO_MASK
several old wounds on both wrists and ankles
NOT_CONFIDENTIAL
check
001-80364_a10_e55
001-80364_a10_em64
DATETIME
QUASI
seven days
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001-80364_a10_em65
DATETIME
QUASI
11 July 1994
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DATETIME
QUASI
27 March 1995
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LOC
QUASI
Istanbul
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insert
001-80364_a10_e58
001-80364_a10_em68
ORG
QUASI
Istanbul public prosecutor
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LOC
QUASI
Istanbul
NOT_CONFIDENTIAL
insert
001-80364_a10_e58
001-80364_a10_em70
ORG
QUASI
Istanbul public prosecutor
NOT_CONFIDENTIAL
check
001-80364_a10_e59
001-80364_a10_em71
DATETIME
QUASI
5 June 1995
NOT_CONFIDENTIAL
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PERSON
QUASI
R.A.
NOT_CONFIDENTIAL
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ORG
QUASI
Istanbul Security Directorate
NOT_CONFIDENTIAL
correct
001-80364_a10_e61
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PERSON
QUASI
Ö.D.
NOT_CONFIDENTIAL
correct
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PERSON
QUASI
Ü.K.
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001-80364_a10_em76
ORG
QUASI
Istanbul Security Directorate
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001-80364_a10_em77
DATETIME
QUASI
29 June 1995
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001-80364_a10_em78
DATETIME
QUASI
5 June 1995
NOT_CONFIDENTIAL
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001-80364_a10_em79
DATETIME
QUASI
4 August 1995
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ORG
QUASI
Beyoğlu Assize Court
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001-80364_a10_e66
001-80364_a10_em81
DATETIME
QUASI
20 December 1995
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ORG
QUASI
Istanbul Assize Court
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001-80364_a10_em83
DATETIME
QUASI
20 December 1995
NOT_CONFIDENTIAL
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001-80364_a10_e68
001-80364_a10_em84
QUANTITY
QUASI
7.65 mm
NOT_CONFIDENTIAL
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001-80364_a10_e69
001-80364_a10_em85
MISC
NO_MASK
calibre pistol
NOT_CONFIDENTIAL
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001-80364_a10_e70
001-80364_a10_em86
QUANTITY
QUASI
seven bullets
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001-80364_a10_e71
001-80364_a10_em87
DATETIME
QUASI
4 February 1994
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001-80364_a10_em88
ORG
QUASI
Istanbul State Security Court
NOT_CONFIDENTIAL
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001-80364_a10_e72
001-80364_a10_em89
QUANTITY
QUASI
twenty-nine other persons
POLITICS
check
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001-80364_a10_em90
ORG
QUASI
PKK
NOT_CONFIDENTIAL
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001-80364_a10_e73
001-80364_a10_em91
DATETIME
QUASI
26 November 1996
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001-80364_a10_em92
ORG
QUASI
Istanbul State Security Court
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001-80364_a10_e74
001-80364_a10_em93
DATETIME
QUASI
twelve years and six months
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001-80364_a10_em94
PERSON
QUASI
M.O.
NOT_CONFIDENTIAL
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001-80364_a10_em95
QUANTITY
QUASI
7.65 mm
NOT_CONFIDENTIAL
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001-80364_a10_em96
MISC
NO_MASK
calibre pistol
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001-80364_a10_em97
QUANTITY
QUASI
seven bullets
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correct
001-80364_a10_e75
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PERSON
QUASI
M.D.
POLITICS
check
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001-80364_a10_em99
ORG
QUASI
PKK
POLITICS
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001-80364_a10_em100
ORG
QUASI
PKK
NOT_CONFIDENTIAL
check
001-80364_a10_e30
001-80364_a10_em101
ORG
QUASI
Istanbul State Security Court
POLITICS
check
001-80364_a10_e19
001-80364_a10_em102
ORG
QUASI
PKK
POLITICS
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001-80364_a10_e19
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ORG
QUASI
PKK
NOT_CONFIDENTIAL
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001-80364_a10_e76
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LOC
QUASI
Kurdistan
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ORG
QUASI
Istanbul State Security Court
POLITICS
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ORG
QUASI
PKK
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001-80364_a10_e73
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DATETIME
QUASI
26 November 1996
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DATETIME
QUASI
26 April 2003
Memet Koçak
TUR
CHAMBER
Task: Annotate the document to anonymise the following person: Memet Koçak