PROCEDURE

The case originated in an application (no. 37715/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mrs Dursun Sayğı (“the applicant”), on 17 December 2010.

The applicant was represented by Mr Sedat Gözkıran, a lawyer practising in Şanlıurfa. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged, in particular, that the national authorities had failed to carry out an effective investigation into the disappearance of her husband, in breach of Article 2 of the Convention.

On 23 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1966 and lives in Şanlıurfa.

The facts of the case as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

A. The investigation carried out between 2005 and 2006

On 4 March 2005 the applicant’s mother-in-law, Mrs Aişe Sayğı, submitted a petition to Suruç prosecutor D.K., and informed him that on 3 June 1994 her son Mustafa Sayğı, ‐ the applicant’s husband ‐ had been travelling home on his motorbike when he was stopped and apprehended by soldiers who had set up a temporary base in a public building near Yoğurtçu village. She described the motorbike as “Russian-made, red and with a basket”. She told the prosecutor that nothing had been heard from her son since that date and that the complaint she had made to the authorities some six days after the disappearance had not elucidated any response. She gave the prosecutor the names of two villagers who, she claimed, had witnessed her son being apprehended, and asked the prosecutor to make enquiries in order to find her son.

The same day the Suruç prosecutor D.K. questioned Aişe Sayğı in relation to her above-mentioned petition. Mrs Sayğı confirmed the contents of her petition detailed above and added that the family had been informed about the incident some two days afterwards by villagers who had witnessed the incident. Her elder son, Mehmet Sayğı, had then gone to the military base near Yoğurtçu village where he was informed that his younger brother had been transferred to the gendarmerie station in Suruç. When Mehmet Sayğı had gone to the gendarmerie station in Suruç, he was told that his brother’s questioning was continuing and that it would probably continue for another three days.

When Mustafa Sayğı was not released, Mehmet Sayğı had gone to the Suruç prosecutor’s office and informed the prosecutor of the detention of his younger brother. When the prosecutor had contacted the military authorities he was told that Mustafa Sayğı had never been detained by the military. The family’s subsequent attempts to find Mustafa Sayğı had not yielded any results.

A detailed investigation was carried out by Suruç prosecutor D.K. into the allegations made by Mrs Sayğı. In the course of that investigation the prosecutor questioned the two villagers named by Mrs Sayğı as eyewitnesses and identified and questioned as suspects fourteen soldiers who had been based at the temporary military station at the time of the disappearance. The prosecutor also questioned family members who informed the prosecutor about the steps they had taken to find Mustafa Sayğı. Both the police and the military authorities contacted by the prosecutor denied that Mustafa Sayğı had been detained as alleged.

The two eyewitnesses named by Mrs Sayğı told the prosecutor that on 3 June 1994 they had been travelling to their village when they were stopped by soldiers outside the temporary military base near Yoğurtçu village. While the soldiers were checking their identity documents, Mustafa Sayğı had arrived at the scene and had also been stopped by the soldiers. After their identity papers had been checked they had been allowed to leave but Mustafa Sayğı had been detained. They had then informed Mustafa Sayğı’s family about what had happened.

The security forces personnel questioned by the prosecutor as suspects confirmed that at the time of the events a disused public building outside Yoğurtçu village had been used as a temporary military base. The soldiers denied, however, that they had detained the applicant’s husband.

The gendarmerie headquarters contacted by the prosecutor stated in a letter of 11 May 2005 that they had no information in their possession to show that Mustafa Sayğı had had any links with the PKK0. The police headquarters, on the other hand, informed the prosecutor that they had statements indicating that Mustafa Sayğı had been working as a courier for the PKK prior to his disappearance.

At the end of his investigation, the Suruç prosecutor D.K. concluded in his decision of 13 July 2006 that Mustafa Sayğı had been unlawfully detained by the military in the temporary military base near Yoğurtçu village. The prosecutor did not attach any weight to the denials of the military personnel who had been on duty at the time of Mustafa Sayğı’s detention and considered that the military personnel’s denials were outweighed by the consistent eyewitness accounts of civilian villagers. Nevertheless, as the end of the prescription period for the offence of false imprisonment had been reached, the prosecutor concluded that he could not indict the military personnel responsible for the unlawful detention of Mustafa Sayğı. The prosecutor also considered that there was insufficient evidence to prove that Mustafa Sayğı had been killed while in the hands of the soldiers.

The applicant lodged an objection against the prosecutor’s decision with the Siverek Assize Court and submitted that nothing had been heard from her husband after his unlawful detention. She argued that similar unlawful detentions had peaked in that area in 1994 and that the relatives of those who had disappeared had been too frightened to complain to the authorities on account of their fears of the military. She invited the Assize Court to take into account the possibility that her husband, who had been suspected of having links with the PKK, would in all likelihood be subjected to “torture” by the soldiers. Torture was a criminal offence to which the statute of limitations was not applicable; thus, the decision of the prosecutor to close the investigation on account of the expiry of the statutory time-limit had been wrong.

The objection lodged by the applicant was rejected by the Siverek Assize Court on 29 November 2006.

B. The investigation carried out between 2009 and 2010

On 11 December 2009 a number of soldiers saw Mustafa Sayğı’s elder brother Mehmet Sayğı digging in an area near Yoğurtçu village. Mehmet Sayğı told the soldiers that he had had a dream and that, according to his dream, his brother Mustafa Sayğı was buried in that place.

The same day Mehmet Sayğı also informed the Suruç prosecutor M.A., who went to the area and ordered that the site be dug up. During the digging a total of 30 bones, fabrics, a small axe and the remains of a red motorbike were found. The bones and the motorbike parts, together with soil samples, were taken away by gendarme soldiers for forensic examinations.

The same day the applicant also talked to prosecutor M.A. and told him about the disappearance of her husband Mustafa Sayğı. She asked the prosecutor to establish whether the bones found during the excavation belonged to her husband, who had disappeared while travelling on his red motorbike.

Mustafa Sayğı’s brother Mehmet Sayğı told prosecutor M.A. that he had no doubts whatsoever that the items discovered during the excavation belonged to his brother. He said that he recognised the motorbike and the axe which had been given to Mustafa Sayğı by the family. Mehmet Sayğı also informed the prosecutor about the eyewitnesses who claimed to have seen his brother in the hands of the soldiers.

Gendarmerie forensic experts who examined the metal parts found in the area stated in their report that they belonged to a motorbike. The experts were not able, however, to identify the type or make of the motorbike due to corrosion, but considered that the motorbike resembled an “Izh” motorbike (a manufacturer at Izhevsk in Russia). The chassis numbers and letters of the motorbike – in Russian – are reproduced in the report of the experts.

The bones were examined at the Forensic Medicine Institute. It was established that the bones were animal bones.

According to a report drawn up on 1 February 2010 by the forensic laboratory of the police, the soil on the motorbike parts matched the soil samples taken from the place. However, the soil on the bones did not match the soil samples taken from the place. It was advised in this report that it had to be born in mind when evaluating the report’s conclusions that the forensic examination had not been carried out in order to establish whether the soil samples taken from the bones and the soil samples obtained from the place of digging had come from the same place. Rather, the aim of the forensic examinations had been to establish whether the two soil samples had any physical and chemical similarities.

According to a report prepared by the police on 14 January 2010, no prior applications had been made to them about the disappearance of Mustafa Sayğı. According to a similar report prepared by the military, no one had made any enquiries about any disappearance of a person with the name of Mustafa Sayğı and there had been no temporary or permanent military station at Yoğurtçu village at the time of the events.

On 7 April 2010 Suruç prosecutor M.A. decided to close his investigation on the basis that the bones were not human bones. He added that the model and make of the motorbike had not been established and that the basket attached to the motorbike had not been recovered. The prosecutor further stated in his decision that there was no evidence to show that Mustafa Sayğı had been arrested by the soldiers or to show that there had been a temporary military base near Yoğurtçu village at the time of the incident.

The applicant lodged an objection with the Siverek Assize Court against the prosecutor’s decision and argued that the investigation had been incomplete. She submitted, in particular, that prosecutor M.A. had failed to take account of the conclusion reached by his predecessor in 2006, namely that her husband had been unlawfully detained by soldiers. She also submitted that the bones had been dug up in the presence of a prosecutor and secured by that prosecutor. Thus, having regard to the finding that the soil on the bones did not match the soil samples, the prosecutor should have considered the possibility that the bones might have been switched.

In her petition the applicant also referred to the Convention, and requested that the investigation be continued to find those responsible for the disappearance of her husband. She argued that carrying out an effective investigation was necessary in order to avoid “the State being put on trial before the European Court of Human Rights for its failure to protect the right to life of her husband”.

The objection was rejected by the Siverek Assize Court on 7 June 2010. No mention was made in the decision about the points raised by the applicant in her objection. The Assize Court’s decision was communicated to the applicant on 21 June 2010.
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CODE
DIRECT
37715/11
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ORG
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Republic of Turkey
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Turkish
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Mrs Dursun Sayğı
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17 December 2010
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Mr Sedat Gözkıran
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Şanlıurfa
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NO_MASK
Turkish Government
SEX
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DEM
QUASI
husband
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DATETIME
QUASI
23 October 2012
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DATETIME
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1966
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Şanlıurfa
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2005
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2006
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4 March 2005
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DEM
QUASI
mother-in-law
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PERSON
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Mrs Aişe Sayğı
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PERSON
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Suruç prosecutor D.K.
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3 June 1994
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NO_MASK
son
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PERSON
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Mustafa Sayğı
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QUASI
husband
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QUASI
motorbike
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NO_MASK
soldiers
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LOC
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Yoğurtçu village
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motorbike
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NO_MASK
Russian-made, red and with a basket
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NO_MASK
son
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QUASI
six days
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NO_MASK
son
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DEM
NO_MASK
son
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Suruç prosecutor D.K.
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Aişe Sayğı
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Mrs Sayğı
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two days
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Mehmet Sayğı
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Yoğurtçu village
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gendarmerie station
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QUASI
Suruç
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Mehmet Sayğı
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NO_MASK
gendarmerie station
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Suruç
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three days
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Mustafa Sayğı
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Mehmet Sayğı
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Suruç prosecutor’s
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ORG
NO_MASK
military authorities
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PERSON
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Mustafa Sayğı
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Mustafa Sayğı
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Suruç prosecutor D.K.
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Mrs Sayğı
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Mrs Sayğı
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fourteen soldiers
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temporary military station
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Mustafa Sayğı
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military authorities
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Mustafa Sayğı
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Mrs Sayğı
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3 June 1994
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001-150670_a3_em54
temporary military base
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Yoğurtçu village
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soldiers
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Mustafa Sayğı
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soldiers
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Mustafa Sayğı
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PERSON
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Mustafa Sayğı
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Yoğurtçu village
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temporary military base
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soldiers
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husband
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11 May 2005
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Mustafa Sayğı
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QUASI
PKK
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Mustafa Sayğı
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PKK
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Suruç
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D.K.
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13 July 2006
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Mustafa Sayğı
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temporary military base
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Yoğurtçu village
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Mustafa Sayğı
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Mustafa Sayğı
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Mustafa Sayğı
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NO_MASK
soldiers
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Siverek Assize Court
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husband
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1994
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Assize Court
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husband
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QUASI
PKK
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NO_MASK
soldiers
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Siverek Assize Court
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29 November 2006
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2009
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2010
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11 December 2009
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NO_MASK
soldiers
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Mustafa Sayğı
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Mehmet Sayğı
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Yoğurtçu village
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Mehmet Sayğı
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soldiers
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Mustafa Sayğı
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Mehmet Sayğı
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Suruç
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M.A.
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30 bones
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axe
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motorbike
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QUASI
motorbike
NOT_CONFIDENTIAL
insert
001-150670_a3_e48
001-150670_a3_em113
DEM
NO_MASK
gendarme soldiers
NOT_CONFIDENTIAL
check
001-150670_a3_e45
001-150670_a3_em114
PERSON
QUASI
M.A.
SEX
check
001-150670_a3_e9
001-150670_a3_em115
DEM
QUASI
husband
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em116
PERSON
QUASI
Mustafa Sayğı
SEX
check
001-150670_a3_e9
001-150670_a3_em117
DEM
QUASI
husband
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em118
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em119
PERSON
QUASI
Mustafa Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e27
001-150670_a3_em120
PERSON
QUASI
Mehmet Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e45
001-150670_a3_em121
PERSON
QUASI
M.A.
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em122
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e47
001-150670_a3_em123
MISC
QUASI
axe
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em124
PERSON
QUASI
Mustafa Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e27
001-150670_a3_em125
PERSON
QUASI
Mehmet Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e22
001-150670_a3_em126
DEM
NO_MASK
soldiers
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em127
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em128
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em129
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
correct
001-150670_a3_e49
001-150670_a3_em130
LOC
QUASI
Izh
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em131
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
insert
001-150670_a3_e49
001-150670_a3_em132
LOC
QUASI
001-150670_a3_em130
Izhevsk in Russia
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em133
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
insert
001-150670_a3_e50
001-150670_a3_em134
DEM
QUASI
Russian
NOT_CONFIDENTIAL
check
001-150670_a3_e51
001-150670_a3_em135
ORG
NO_MASK
Forensic Medicine Institute
NOT_CONFIDENTIAL
check
001-150670_a3_e52
001-150670_a3_em136
DATETIME
QUASI
1 February 2010
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em137
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e53
001-150670_a3_em138
DATETIME
QUASI
14 January 2010
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em139
PERSON
QUASI
Mustafa Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em140
PERSON
QUASI
Mustafa Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e23
001-150670_a3_em141
LOC
QUASI
Yoğurtçu village
NOT_CONFIDENTIAL
check
001-150670_a3_e54
001-150670_a3_em142
DATETIME
QUASI
7 April 2010
NOT_CONFIDENTIAL
check
001-150670_a3_e29
001-150670_a3_em143
LOC
QUASI
Suruç
NOT_CONFIDENTIAL
check
001-150670_a3_e45
001-150670_a3_em144
PERSON
QUASI
M.A.
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em145
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e21
001-150670_a3_em146
MISC
QUASI
motorbike
NOT_CONFIDENTIAL
check
001-150670_a3_e20
001-150670_a3_em147
PERSON
QUASI
Mustafa Sayğı
NOT_CONFIDENTIAL
check
001-150670_a3_e22
001-150670_a3_em148
DEM
NO_MASK
soldiers
NOT_CONFIDENTIAL
check
001-150670_a3_e34
001-150670_a3_em149
LOC
QUASI
temporary military base
NOT_CONFIDENTIAL
check
001-150670_a3_e23
001-150670_a3_em150
LOC
QUASI
Yoğurtçu village
NOT_CONFIDENTIAL
check
001-150670_a3_e39
001-150670_a3_em151
ORG
QUASI
Siverek Assize Court
NOT_CONFIDENTIAL
check
001-150670_a3_e45
001-150670_a3_em152
PERSON
QUASI
M.A.
NOT_CONFIDENTIAL
check
001-150670_a3_e13
001-150670_a3_em153
DATETIME
QUASI
2006
SEX
check
001-150670_a3_e9
001-150670_a3_em154
DEM
QUASI
husband
NOT_CONFIDENTIAL
check
001-150670_a3_e22
001-150670_a3_em155
DEM
NO_MASK
soldiers
SEX
check
001-150670_a3_e9
001-150670_a3_em156
DEM
QUASI
husband
SEX
check
001-150670_a3_e9
001-150670_a3_em157
DEM
QUASI
husband
NOT_CONFIDENTIAL
check
001-150670_a3_e39
001-150670_a3_em158
ORG
QUASI
Siverek Assize Court
NOT_CONFIDENTIAL
check
001-150670_a3_e55
001-150670_a3_em159
DATETIME
QUASI
7 June 2010
NOT_CONFIDENTIAL
insert
001-150670_a3_e39
001-150670_a3_em160
ORG
QUASI
Assize Court
NOT_CONFIDENTIAL
check
001-150670_a3_e56
001-150670_a3_em161
DATETIME
QUASI
21 June 2010
Dursun Sayğı
TUR
CHAMBER
Task: Annotate the document to anonymise the following person: Dursun Sayğı