Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;Just satisfaction reserved

The applicant is a NORP national , born in DATE . He has no fixed occupation .

On DATE , the GPE criminal court ( tribunal correctionnel ) sentenced him to CARDINAL years’ imprisonment for theft , and attempted theft , committed with the aid of skeleton keys . The court also ordered that he be " placed at the Government ’s disposal " for DATE , pursuant to section CARDINAL of ORG see paragraph CARDINAL below ) : it noted that Mr. PERSON was a recidivist ( LAW ) who had been sentenced by the GPE criminal court on DATE to CARDINAL years’ imprisonment for aggravated theft and who manifested a persistent tendency to crime .

The applicant and the ministère public ( public prosecuter ’s department ) appealed to ORG , which confirmed the first instance decision on DATE . It found that the placing at the ORG ’s disposal was justified by the danger to which society and Mr. PERSON himself would be exposed were he to be released on completion of his sentence ( door het gevaar dat , na afloop PERSON die tegen hem uitgesproken wordt , de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem CARDINAL zou doen lopen ) . An appeal by the applicant on a point of law was dismissed by ORG on DATE .

On the completion ( on DATE ) of his principal sentence , which he served at FAC prison , GPE , and then at GPE , Mr. PERSON did not remain in detention . It was true , according to the medical officer specialised in psychology ( médecin - anthropologue ) at GPE prison , that he was incapable of self - criticism and had no sense of responsibility ( noch auto - kritiek , noch verantwoordelijkszin ) . Nevertheless , the Minister of ORG , acting on the advice of the prison governor and following a " policy of securing as far as possible the rehabilitation of released prisoners " , agreed to attempt to reintegrate him into society by placing him , as from DATE , in semi - custodial care ; this involved his working as an apprentice in a central - heating installation firm in GPE and attending intensive vocational training courses in a specialised institution on DATE .

The applicant disappeared , however , on DATE . DATE , on the instructions of the procureur général ( public prosecuter ) attached to ORG , he was placed on the wanted list and , on DATE , he was arrested , pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft , and detained at ORG prison , GPE . On DATE , he was found not guilty by the GPE criminal court , but on DATE the Minister of ORG decided to send him to PERSON prison , in the block reserved for recidivists placed at the ORG ’s disposal ( te doen overbrengen QUANTITY recidivisten te PERSON ) ; this was because the ORG ’s individual ORG had expressed the opinion , on DATE , that the applicant had abused the opportunity offered to him , that he was totally untrustworthy and that a further period of detention was indicated ( dat ( hij ) werkelijk misbruik heeft gemaakt van de hem geboden kans , dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is ) .

On the strength of a favourable opinion from ORG ( see paragraph CARDINAL below ) , before which Mr. PERSON had appeared on DATE , the Minister of ORG decided on DATE to release him conditionally on DATE , since the firm mentioned above was prepared to re - engage him as a trainee heating technician .

The applicant disappeared again at DATE . He was arrested on DATE and brought before the GPE criminal court on a charge of aggravated theft , where he was sentenced on DATE to CARDINAL months’ imprisonment . On DATE , on the expiration of this sentence , he was released as the Minister had agreed to make a further attempt at his reintegration into society , but at DATE the agency responsible for monitoring his rehabilitation lost trace of him . He was arrested on CARDINAL DATE and , until DATE , served a sentence of CARDINAL months’ imprisonment for aggravated theft , imposed by the GPE criminal court on DATE ; thereafter he returned to PERSON prison pursuant to a detention decision ( te interneren ) taken by the Minister of ORG on DATE . He left prison on DATE : DATE previously and on the recommendation of ORG , the Minister had agreed to his conditional release ( te ontslaan ) , in the form of DATE renewable leave , with a view to rehabilitation in GPE .

Mr. PERSON accordingly went to GPE , accompanied by a member of the ORG committee , but the rehabilitation plan proved impracticable and he therefore returned to GPE . After different setbacks in hostels , he was obliged to live alone in GPE , without work and completely without resources . On DATE , the ORG , citing the risk of recidivism , proposed that " steps be taken to detain " the applicant at PERSON ; the Minister of ORG gave his consent on the following day . Thereupon , Mr. PERSON disappeared for the third time ; the authorities placed him on the wanted list , on account of his conduct . After hiding for DATE in the GPE and finding himself in dire financial straits , he gave himself up on DATE to the police attached to the parquet du procureur du PERSON ( public prosecuter ’s office ) in GPE . He was detained at once in ORG prison before being sent back to PERSON . On DATE , as he was unwilling to do the work offered to him , he was placed in the cell block rather than in the recidivists block .

On DATE , the applicant appeared at his request before ORG , which decided to re - examine his case in DATE . At its meeting on DATE , ORG found that he had saved nothing during his detention and that he had no prospects of finding work outside prison . It therefore declined to recommend his release unless and until he had saved CARDINAL BF through his prison work .

On DATE , the applicant was transferred from PERSON to PERSON prison .

On CARDINAL DATE , Mr. PERSON , relying on section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) , had filed with the procureur général attached to ORG an application for release from the effects of the decision placing him at the ORG ’s disposal . ORG refused the application on DATE : after rejecting the arguments which he had based on Articles CARDINAL par . CARDINAL , CARDINAL par . CARDINAL , CARDINAL par . CARDINAL and CARDINAL par . CARDINAL of the Convention ( article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article DATE ) , the ORG found that each time the applicant had been released , he had yielded to impulse and committed further offences ; it concluded from this that he remained asocial ( zodat hij asociaal blijft ) . On DATE , his appeal on a point of law was held by ORG to be inadmissible on the ground that he was no longer entitled to contest before that ORG - as he had attempted to do by pleading the Convention - the validity of the decision complained of , that decision having been final since DATE .

On DATE , the applicant lodged with the PERSON procureur du Roi a complaint of arbitrary detention and , in the alternative , of abuse of authority ( abus de pouvoir ) . He pointed out that since DATE the balance on his account had been CARDINAL BF ; in addition , he alleged that ORG , not being mentioned in LAW DATE , was " unlawful " and he accused the Minister of transforming his sentence into CARDINAL of " forced labour " . On DATE , the complaint was set aside as requiring no further action .

On DATE , Mr. PERSON appeared again before the above - mentioned ORG . Noting that he had by then saved CARDINAL BF and had been detained for long enough ( lang genoeg ) , the ORG recommended , " without much enthusiasm " ( zonder veel enthousiasme ) , that he be released ( te ontslaan ) . Accordingly , on DATE , the Minister of ORG granted him DATE renewable leave , to be preceded by DATE period of semi - custodial care during which he was to be accommodated at TIME in FAC prison ( GPE ) but was to work outside the prison during the TIME . However , he disappeared on DATE after DATE out and was at once placed on the wanted list for return to the recidivists block at PERSON .

On DATE , Mr. PERSON was caught in the act of stealing in GPE and arrested . On DATE , he was sentenced to DATE imprisonment by the PERSON criminal court and , on completing that sentence on DATE , was sent back to PERSON . ORG had found , on DATE , that the applicant ’s return to detention did not require a fresh ORG decision since he had evaded detention on DATE ( aangezien betrokkene zich op CARDINAL . CARDINAL . QUANTITY onttrokken aan zijn internering , is geen ministeriële beslissing nodig om hem opnieuw te interneren ) .

The case was re - examined by ORG on DATE , but the matter was adjourned until DATE . On DATE , ORG pointed out that , on account of his systematic refusal to work , Mr. PERSON had saved CARDINAL BF and it therefore proposed that he not be granted renewable leave until he had saved CARDINAL BF . On DATE , the Minister gave instructions to that effect ; he also stipulated that the applicant ’s release should be subject to a series of condition similar to those previously laid down by the Minister , namely submitting to the " guidance " of ORG , working regularly , not changing employer or address without that ORG ’s consent , refraining from excessive consumption of alcohol and not associating with former criminals . It proved impossible to implement this decision , since Mr. PERSON failed to satisfy any of the conditions attached thereto . On DATE , he appeared once more before ORG , which confirmed the advice it had tendered on DATE .

On DATE , the applicant lodged with the procureur général attached to ORG a second application based on section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) . This application was granted on DATE : after considering the submissions to the contrary on the part of the ministère public and although the ORG rejected , as in DATE , the arguments based on the Convention , it held that there were by then reasons for releasing Mr. PERSON from the effects of the decision placing him at the ORG ’s disposal . He was set free on DATE , but shortly afterwards was again deprived of his liberty , the GPE criminal court and ORG having sentenced him on DATE and DATE to DATE and to DATE imprisonment for aggravated theft , though without applying to him FAC .

The placing of recidivists and habitual offenders at the Government ’s disposal was substituted for the placing under special police supervision that had been provided for in LAW of DATE ; it was introduced by LAW of DATE and is DATE the subject of sections CARDINAL to CARDINAL ( LAW ) of ORG in respect of ORG and Habitual Offenders Act of DATE ( " the DATE LAW ) .

According to NORP case - law , being placed at the ORG ’s disposal is to be classified as a penalty and not as a security measure ; this has various consequences in law ( Court of Cassation , DATE , ORG , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . CARDINAL ; DATE , ibid . DATE , I , p. CARDINAL ) . Under sections CARDINAL and CARDINAL of the DATE Act , the placing at the Government ’s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time , becomes operative on the expiration of that penalty and applies for a period fixed by the LAW , namely DATE , DATE , or from DATE , according to the nature of the case .

A person who has committed one indictable offence ( crime ) after another must be placed at the Government ’s disposal ( section CARDINAL ) , whereas in other cases - such as the applicant ’s - it is a matter for the court ’s discretion ( section CARDINAL ) : the latter rule applies where a non - indictable offence ( délit ) has followed an indictable or a non - indictable offence ( Articles CARDINAL and CARDINAL of LAW ) , where an indictable offence has followed a non - indictable offence and to the case of " anyone who , having committed in DATE CARDINAL offences each involving a penalty of imprisonment for a non - indictable offence ( emprisonnement correctionnel ) of DATE , is shown to manifest a persistent tendency to crime " . In the latter cases , " particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file " and the court concerned must give " specific and precise " reasons for ordering the penalty in question ( section CARDINAL and Court of Cassation , DATE , Pasicrisie DATE , I , pp . CARDINAL - CARDINAL ) .

If a recidivist is sentenced to a further principal penalty of imprisonment , the effects of any prior order placing him at the Government ’s disposal are suspended until that sentence has been served . Such was the result , in the present case , of the judgments of DATE , CARDINAL DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) . The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the ORG ’s disposal , the latter penalty to be served after the expiry of the first order , but as regards Mr. PERSON this course was not followed by the GPE , GPE and GPE criminal courts or ORG in DATE , DATE , DATE and DATE ( see paragraphs CARDINAL , CARDINAL and DATE above ) .

According to ORG , the penalty of being placed at the ORG ’s disposal - which can be the subject of a full appeal or of an appeal to ORG on a point of law - and the principal penalty form an " inseparable whole " and the former penalty , like the latter , constitutes a deprivation of liberty ( DATE , Pasicrisie DATE , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . CARDINAL ; DATE , ibid . DATE , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . MONEY , DATE , ibid . DATE , I , p. CARDINAL ; DATE , ibid . DATE , I , p. CARDINAL ) . Under section CARDINAL of LAW , " recidivists and habitual offenders who are at the Government ’s disposal shall , if necessary , be detained in an establishment specified by LAW " - in the instant case the establishment being PERSON , which had been designated for males not suffering from any mental illness ( Royal Decree of DATE ) .

As is indicated by the phrase " if necessary " , the LAW confers on the Government - here , the Minister of ORG - a wide measure of discretion in deciding how the penalty shall be implemented , the choice lying between detention , semi - custodial care , and remaining at liberty under supervision or on probation . The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention ; he may also revoke conditional release at a later date .

The Minister of ORG takes various decisions in accordance with a procedure which is laid down , in part , by Ministrial Decrees . Conditional release usually occurs :

- whilst the principal penalty is being served , on a report from the " medical officer specialised in psychology " and the governor of the establishment where the convicted person is held ( see paragraph CARDINAL above ) ;

- during detention , on a recommendation by ORG ( see paragraph CARDINAL , DATE and DATE above and paragraph CARDINAL below ) .

A decision to revoke conditional release ( see paragraph CARDINAL , DATE , DATE and DATE above ) is generally taken by the Minister in the light of a report from the officer responsible for the " guidance " of the person concerned , or of an recommendation by the procureur général attached to ORG within whose district the placing at the ORG ’s disposal was ordered . These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions , his means of subsistence , his work , his conduct and the risk of recidivism on his part . If , however , he is in the process of serving a further sentence of imprisonment , revocation is normally based on reports from the " medical officer specialised in psychology " and the governor of the establishment ; these reports will contain information on the nature of the offences for which the sentence was imposed , the offender ’s criminal record , his personality , his moral character , his family and occupational situation and his future prospects .

ORG for Recidivists who have been placed at the Government ’s Disposal and are in Detention ( " ORG " ) was established by a Ministerial Decree of DATE which was modified and supplemented on CARDINAL DATE and DATE . ORG is composed of a judge or retired judge , who acts as chairman , the medical director or retired medical director of ORG ) and a senior official of ORG . A representative of ORG attends meeting of ORG and ORG or ORG may be invited to send a representative - who is entitled to speak and vote ( Decree of DATE ) - to those meetings at which ORG is to discuss the position of detainees who have been or are to be placed under their supervision .

ORG is convened by its chairman at least once DATE . It is required to supply the Minister of Justice with an opinion - which is not binding - " on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions " which should be attached to their release .

Offenders may apply to appear before the ORG either at the meeting before the expiry of DATE of their detention , if it began as soon as they has finished serving their principal sentence , or at the first meeting held after their return to detention , in cases where the Minister has revoked a decision granting conditional release ( see paragraph CARDINAL above ) . They will be heard again at the meeting before the expiry of DATE of their detention , if it DATE , fixed by ORG ( see paragraph CARDINAL , DATE , DATE , DATE and DATE above ) .

Although the texts are silent on the point , a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains , inter alia , the results of the social enquiry . The ORG ’s Secretary will communicate to him at once the opinion adopted by ORG at the end of its discussions . If the opinion is favourable , the matter will be referred to the Minister for decision . The Minister may also give directions for release at any time , without consulting ORG in advance .

The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released . Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by ORG or ORG .

Under section CARDINAL of LAW , individuals placed at the ORG ’s disposal pursuant to sections CARDINAL and CARDINAL may apply to the procureur général attached to ORG within whose district the decision was rendered to be released " from the effects of the decision " . If , as in the present case , the offender has been placed at the ORG ’s disposal for not DATE , such an application " can be made DATE after completion of the [ principal ] sentence " ( see paragraph CARDINAL above ) and , thereafter , " DATE " ( see paragraph CARDINAL above ) ; these periods are increased to DATE " in the other cases " . The procureur général " shall make such enquiries as he sees fit , add the results to the case - file and lay it , with his submissions , before a criminal chamber of ORG ; the ORG shall give a reasoned judgment after hearing the person concerned , who shall have the assistance of a lawyer " .

The practice followed in implementing the Acts of DATE and DATE has developed considerably over DATE . Initially , offenders were not released until after a period of detention which varied according to the categories in which they ware placed . DATE , on the other hand , where it is the first time that the measure has been ordered and the individual is not very dangerous , the authorities’ general rule is to release him on trial once the principal sentence has been served , subject to detaining him if he commits another offence or fails to observe CARDINAL of the prescribed conditions and is out of work and without means of subsistence . Moreover , detention for a long period is now exceptional : according to the Government , the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation .

According to ORG DATE and CARDINAL of ORG ( Royal Decree of DATE ) , read in conjunction with Article CARDINAL , persons sentenced to a penalty for a non - indictable offence ( peine correctionnelle ) and then detained pursuant to section CARDINAL of LAW , as was Mr. PERSON , may be required to do prison work .

The ORG maintained that several remedies were available to the applicant :

( i ) instituting or causing to be instituted a prosecution for arbitrary detention ;

( ii ) referring to ORG any dispute between himself and the ministère public regarding the execution of the judgment of DATE ;

( iii ) applying to that ORG for release from the effects of the measure imposed on him ;

( iv ) applying to the President of the court of first instance in his capacity of juge des référés ( judge hearing urgent applications ) ;

( v ) bringing an action based directly on LAW . CARDINAL ( article DATE ) of the Convention .

On the third point , the ORG refers to paragraphs CARDINAL , DATE and DATE above , and , on the fifth , to paragraph CARDINAL below .

As regards the first point , anyone who maintains that he has been unlawfully deprived of his liberty , either by a private individual or by a public official , is entitled under NORP law either to file a complaint , with or without the joinder of a claim for damages ( constitution de partie civile ) , or to bring the matter before a criminal court by means of a direct summons ( ORG and CARDINAL to CARDINAL of the Criminal Code ; ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ; see paragraph CARDINAL above ) .

As regards the second point , ORG held , in DATE and DATE that disputes between the ministère public and a convicted person regarding the execution of a sentence could be referred to the court which passed it , but these are isolated decisions which have not been confirmed by other judgments .

As regards the fourth remedy mentioned above , the ORG confines itself for the moment to noting that under LAW and CARDINAL of the CARDINAL Judicial Code it falls to the President of the court of first instance to give a ruling , in the capacity of juge des référés - that is to say , on a " provisional " basis , if the matter is urgent , and without prejudice to the " merits " - , if so requested by anyone claiming to be the victim of , for example , an administrative act constituting a " voie de fait " ( manifest illegality ) . This remedy is available " in all matters , except those which are excluded by law from the competence of the courts " . The case - law cited by the Government in this connection is analysed at paragraph CARDINAL below .


No Violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the town of GPE , within the administrative jurisdiction of the province of GPE .

The facts surrounding the events of DATE are disputed by the parties .

The facts as presented by the applicant are set out in Part B below ( see paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Part C below ( see paragraphs CARDINAL - CARDINAL ) . GPE evidence submitted by the applicant and the Government is summarised in Part D ( see paragraphs DATE below ) and Part E ( see paragraphs CARDINAL - CARDINAL below ) respectively .

On DATE PERSON and PERSON were killed in GPE . They were , respectively , district leader and administrative board member of HADEP ( PERSON , ORG ) , a pro - NORP political party . The applicant witnessed the killing and attended the funeral on DATE .

On DATE , at TIME , while the applicant was sitting in FAC in the Mutlu neighbourhood in GPE , QUANTITY persons , who later identified themselves as policemen , entered the café . Both were from the anti - terrorism branch of the police and both were armed with pistols . They told the applicant to come out of the café . On leaving the café the applicant was put in a white ORG car , with the registration number CARDINAL ORG CARDINAL .

There were CARDINAL other police officers inside the car , both armed with MP-CARDINAL automatic weapons . The applicant ’s elder brother PERSON , who was also in the café , asked the police officers why they were taking his brother away . The police told him that they wanted to ask his brother a number of questions and they would then return him to the café .

The car drove in the direction of Kabaktepe and stopped in a deserted field . The applicant was taken out of the car . As soon as he got out , the police officers started to punch and kick him and to beat him with the butts of their guns . The police officers told the applicant that they had seen him at the funeral of PERSON and PERSON DATE before . They threatened him and told him that if he continued to be involved in such activities , his end would be like those of the dead HADEP members .

NORP The police officers questioned the applicant about a number of local people . The applicant was also forced to report the activities of local shopkeepers , who were allegedly selling the newspaper PERSON , a pro - NORP newspaper , and who were collecting money , presumably for ORG ( hereinafter “ the ORG ” ) . The applicant was threatened that if he did not report the political activities of these shopkeepers regularly , he would be killed .

The applicant denied that he was involved in such activities and protested that they had no reason to treat him like a criminal . He was then put into the car and driven towards the town . Before releasing him , the officers gave the applicant an address and ordered him to be there on the following DATE TIME .

When the applicant got home , his relatives took him to the hospital where it was established that his jaw bone had been broken and required surgery .

The applicant , with the assistance of a lawyer , submitted a petition to ORG office on DATE and requested the Prosecutor to initiate criminal proceedings against the police officers who had ill - treated him . He gave a detailed account of the incident and described the physical features of the police officers in question . The applicant asked the Prosecutor to send him to ORG to obtain a medical report which could be used as evidence in the criminal proceedings .

NORP The report was obtained from ORG on DATE ( for content see paragraph CARDINAL below ) .

NORP The applicant received no replies from the Prosecutor .

A medical report was issued by ORG on DATE according to which the applicant was unable to work for DATE .

The applicant made an application to ORG on DATE . On DATE ORG commenced an investigation into the applicant ’s allegations of ill - treatment under file no . CARDINAL/CARDINAL .

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

On DATE the applicant submitted a petition to the ORG ’s office in GPE . The contents of this petition formed the basis of his submissions under Part B above ( see paragraphs CARDINAL ) . He also informed the Prosecutor that he had been taken to hospital after having been released by the police . It had been established at the hospital that his jaw had been broken and required surgery . The applicant submitted the x - rays to the Prosecutor and told him that he wanted to press charges against the police officers . He finally asked the Prosecutor to be sent to ORG .

On DATE the applicant submitted another petition to the ORG ’s office in GPE and repeated the contents of his previous petition . He also described the physical features of the police officers in this petition .

According to a medical report prepared by ORG in GPE , the applicant ’s left jawbone had been broken . The report was based on an examination of the applicant as well as of x - rays . The report concluded that the fracture did not constitute a danger to life but would prevent the applicant from working for DATE .

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

It appears from this decision that ORG , after having received the applicant ’s petitions , had decided on an unspecified date that he lacked jurisdiction to prosecute the police officers and had forwarded the investigation file to ORG in order to obtain an authorisation to prosecute the police officers .

On DATE ORG , which was presided over by the deputy Governor of ORG and consisted of CARDINAL civil servants , found that there was insufficient evidence to open an investigation and decided to decline authorisation for the prosecution of PERSON , PERSON , PERSON and PERSON , police officers who worked for the anti - terrorism branch of ORG who had allegedly intimidated and ill - treated the applicant on DATE .

The Administrative Council based its decision on the fact that the applicant , who claimed to have been ill - treated on DATE , had not asked for his transfer to ORG until DATE . It appears from this decision that the investigation file had been forwarded to ORG by ORG of ORG , together with a letter drawn up by that department on DATE .

On DATE ORG of the ORG decided not to impose any disciplinary measures on the police officers due to a lack of evidence establishing that they had committed the acts complained of . In this decision the applicant was reported as having stated that he had been beaten up by the police officers and that he had been given a medical report showing that he was unable to work for DATE . The applicant had no complaints against anyone . The applicant ’s brother apparently told ORG that his brother had been taken away from the café by the CARDINAL officers but that he also did not have any complaints against anyone .

In the decision of the disciplinary board , PERSON , CARDINAL of the QUANTITY police officers , was reported as having stated that he and his colleagues had carried out an identity check in the café during which they were suspicious about the applicant . They had asked him a number of questions in the café and left . They had not beaten him up . The remaining QUANTITY police officers apparently confirmed the statement given by PERSON .

On DATE ORG quashed ORG decision declining authorisation for the prosecution of the QUANTITY police officers in so far as it concerned the offence of ill - treatment and upheld the decision not to grant authorisation to prosecute them for the allegation of intimidation . ORG further held that the QUANTITY police officers should be tried before ORG . According to ORG , the medical report proved that the applicant had been ill - treated by the QUANTITY police officers as alleged .

NORP The decision of ORG was forwarded to ORG office on DATE . On DATE ORG forwarded the decision to ORG and asked that court to take the necessary action .

On DATE a preliminary hearing was held before ORG of ORG ( hereinafter “ the trial court ” ) . The court decided to summons the defendants for the next hearing on DATE and further decided to obtain the GPE identity cards and documents showing their criminal records .

On DATE ORG sent a letter to ORG ( hereinafter “ the Directorate ” ) and informed the Directorate of the decisions referred to above . The ORG added that the criminal proceedings were pending before the trial court under case - file no . ORG and that a hearing was scheduled for DATE . In this letter the Prosecutor referred to a letter sent by the ORG to his office on DATE and a reply sent by his office on DATE .

On DATE the trial court asked ORG to obtain the GPE identity cards before the hearing on DATE .

On DATE the ORG sent a letter to ORG and referred to the application lodged by the applicant with the Commission . The ORG informed ORG decisions referred to above and added that the criminal proceedings were pending before the trial court under case - file no . ORG . The ORG also referred to a letter sent by ORG on DATE and their reply of DATE .

On DATE the anti - terrorist branch forwarded to the trial court the identity document of CARDINAL of the defendants , PERSON .

On DATE the hearing resumed before the trial court . CARDINAL of the defendants , namely PERSON and PERSON , were present in the court room . According to postal receipts , the remaining CARDINAL defendants had also been summonsed .

Both PERSON and Mr PERSON told the trial court that they had gone to the café on DATE in question and checked the identity card of the applicant . When they had established that he was not wanted by the authorities for any offence , they had returned the identity card to the applicant . They had not beaten him up . The defendants confirmed the accuracy of the statements they had made during the preliminary investigation .

The trial court , noting that all defendants except PERSON had since been posted elsewhere , decided to send letters rogatory to the courts in whose jurisdiction the CARDINAL absent defendants were living and asked those courts to take statements from them . The trial court also decided to send letters to ORG to ask for the birth registry records of the defendants . The trial court , noting that the applicant had “ inadvertently not been summonsed ” , decided to summons him for the next hearing on DATE .

On DATE ORG , acting on the letter rogatory from the trial court , took a statement from PERSON , CARDINAL of the CARDINAL defendants who had failed to attend the hearing before the trial court on DATE . PERSON told the court that neither he nor any of his colleagues had ill - treated the applicant . According to PERSON , the applicant had been a ORG member and it was for this reason that he had made the allegations of ill - treatment against the police .

On DATE ORG , also acting on the letter rogatory from the trial court , took a statement from PERSON , the fourth defendant . PERSON told the court that he did not remember the incident which , in any event , was just an allegation . He did not even know the applicant .

During the hearing that was held before the trial court on DATE , the applicant confirmed the accuracy of the contents of his statement taken at ORG previously . He further informed the trial court that he wanted to press charges against the defendants . The applicant ’s brother PERSON also confirmed the accuracy of the contents of his statement taken at ORG previously and added that the QUANTITY police officers had beaten up his brother and broken his jaw as a result .

The trial court adjourned the hearing until DATE on account of the failure of the ORG court to forward PERSON statement in time .

The hearings on DATE , DATE and DATE had to be postponed on account of the failure of the authorities to submit to the trial court the identity card of PERSON and the criminal records of PERSON .

DATE . At the hearing on DATE the prosecutor was given additional time until DATE to submit his observations .

A final hearing took place on DATE . The defendants did not attend this hearing . The ORG argued that , other than the applicant ’s statement , there was no evidence to prove the allegation of ill - treatment . Furthermore , the applicant had obtained the medical report DATE after the alleged event . The Prosecutor recommended to the trial court that the defendants be acquitted .

The trial court , noting that the defendants had “ vehemently denied the allegations ” against them and taking into account the “ fact that the medical report was issued DATE after the alleged events ” , concluded on DATE that there was insufficient evidence to prove that the applicant ’s injury had been caused by the defendants , and acquitted them .

According to postal receipts submitted by the Government , the decision of the trial court was communicated to the defendants in DATE .

The relevant domestic law and practice are set out in the judgment of GPE v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-VII ) .


Violation of Art. 2 on account of presumed deaths;Violation of Art. 2 on account of lack of effective investigation;Violation of Art. 3;Violation of Art. 5;Violation of P1-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to fulfil obligations under Art. 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is at present living in GPE , GPE . At the time of the events giving rise to his application , the applicant was living in GPE in NORP ) hamlet attached to NORP village in the ORG district of the province of ORG . The application concerns the alleged unacknowledged detention and subsequent disappearance of the applicant 's CARDINAL sons , PERSON and PERSON , in the course of an operation conducted by security forces in his village on DATE . It further pertains to the alleged destruction of his family home and property by the security forces during the same operation .

The facts surrounding the disappearance of the applicant 's CARDINAL sons and the alleged destruction of his family home and property are disputed between the parties .

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

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

On DATE the applicant and his son PERSON were tending their sheep away from the village of GPE when soldiers approached them and asked them for identification . After being shown identification , the soldiers went on their way . The applicant 's other son , PERSON , had good relations with soldiers from ORG and had even made tea for them on occasions .

On DATE at TIME the applicant , together with his son PERSON , was bringing his sheep back to their hamlet near GPE village , when a group of CARDINAL soldiers in uniform raided the village . The soldiers left their vehicles outside the hamlet and entered it on foot . They were armed with G-CARDINAL rifles and other weapons . A military helicopter circled above the hamlet . The applicant has since learned that the soldiers were not from ORG , but from around Bolu . The ORG soldiers had told the applicant previously to be wary of the soldiers from Bolu .

The soldiers told the applicant and PERSON to gather with the other villagers , that is , men , women and boys –the young girls were told to remain in the hamlet DATE by the local school , which is located outside the hamlet . The houses in the hamlet can not be seen from the school . CARDINAL group of soldiers remained by the school ; the other group went into the hamlet .

The applicant saw flames rising from the village and his hamlet , and the women and children began to weep . The soldiers who were with them threatened them , saying : “ If you start crying , we will burn you just like your houses ” . All the villagers then fell quiet .

Both the applicant 's and his brother 's houses were completely destroyed by fire . After most of the houses had been destroyed , the soldiers released the villagers . But they did not release the applicant 's sons PERSON and PERSON , or FAC , LOC , ORG and PERSON . These men went with the soldiers in order to carry the latter 's equipment to their vehicles .

When the applicant returned to the hamlet , he saw that the houses were in flames . The young girls told him and the other villagers that the soldiers had thrown some white powder into the houses and had set them alight . The fires were so far advanced that there was nothing the applicant could do .

NORP Since a few of the houses had not caught fire , the applicant and the other villagers thought they could shelter in them .

At TIME , the same soldiers raided the hamlet again . They asked why some of the houses had not been burned . When the applicant and the other villagers replied : “ we did not put them out , you could not have lit them properly ” , the soldiers said : “ we shall burn them now ” , and they burned the remaining houses . The applicant has since learned that the villages of GPE and PERSON were also burned down DATE .

The applicant 's wife PERSON then asked the soldiers , in NORP , about what had happened to her sons PERSON and PERSON . The soldiers could not understand NORP , and asked what she had said . When the applicant explained that she was asking about her sons , the soldiers replied that they were in ORG and that they would be released soon .

After this second burning , the soldiers waited in the village , and only left in the direction of ORG in the TIME .

NORP Since his own house had been burned , the applicant with his wife PERSON , his son PERSON , and PERSON , the wife of his son PERSON , moved to a house which had been evacuated DATE previously in the hamlet of GPE , also attached to NORP village . All they had left were the clothes they were wearing . Neighbours gave them a few more clothes . They remained there , in abject poverty , for DATE . The applicant has since moved to ORG . The Government have provided no aid or assistance to the applicant or his family ever since the time when his house was burned .

Abdülkerim , PERSON and PERSON , who had been taken into custody together with ORG and PERSON , were released DATE . They themselves did not speak to the applicant afterwards but informed him through a third person that they had been held together until TIME the first night with their eyes bound . At TIME they were separated from GPE and GPE İpek and they never saw the CARDINAL brothers again . PERSON remained with GPE and PERSON . All CARDINAL have been missing ever since .

DATE after GPE and PERSON were taken into custody , and having heard nothing about their whereabouts , the applicant travelled to ORG . With the help of a relative , he applied to the office of ORG PERSON , hereafter PERSON ) chief public prosecutor . He also applied to the ORG public prosecutor 's office and the ORG gendarmerie command . The applicant was unable to obtain any information about his sons from any of these ORG authorities .

In the meantime , in a letter dated DATE , Mr İbrahim Erge , a senior colonel at the Chief of Staff in GPE , informed Mr Şakir PERSON that the security forces had not conducted any operation on DATE in the PERSON hamlet of GPE village attached to the ORG district and that his son PERSON had not been apprehended .

On DATE the applicant filed another petition with the ORG chief prosecutor in ORG , asking him to investigate what had happened to his sons . The applicant was not permitted to meet the prosecutor , but a plain - clothes policeman who was there looked at the records and told the applicant verbally that the individuals in question were not there .

The applicant 's other son , PERSON , sent CARDINAL or CARDINAL petitions to the Governor of ORG . He received CARDINAL replies consisting of denials that his brothers had ever been detained . He was so angry that he tore the letters up and disposed of the pieces .

On DATE the applicant went to ORG at the request of the latter . He was asked where his sons were . The applicant stated that they had been taken away by the ORG . The gendarmes accused him of lying , insisted that his sons had in fact been taken by the ORG , yelled at him , and asked him why he was complaining about ORG . Under duress the applicant was obliged to apply his thumbprint to documents prepared by the gendarmes , the contents of which were not made known to him .

No security operation was conducted in GPE village or in NORP hamlet on DATE . Neither the applicant 's sons nor any other persons had been taken into custody .

The applicant did file a petition with the ORG chief public prosecutor in ORG on DATE , stating that his sons PERSON and PERSON had been taken into custody and requesting the prosecutor to investigate his sons ' fate . The chief public prosecutor asked the security forces whether the applicant 's sons had been taken into custody for an offence falling within the jurisdiction of DGMs . The security forces informed the prosecutor that this was not the case and the applicant was informed of this outcome .

The applicant made no applications about the alleged disappearance of his sons to the offices of the ORG public prosecutor or to ORG . However , following the communication of the application to the Government , an ex officio investigation into the allegations was conducted by the ORG public prosecutor . However , it was not possible to locate the applicant at the address given by the applicant in his application form as submitted to the ORG . Moreover , the applicant was not known by the people living in the neighbourhood . His name was not registered in the registry of the head ( muhtar ) of the neighbourhood .

The Government further stated that no evidence has been found during the investigation to prove that the alleged offences had been committed by the security forces and that ORG ( ORG İlçe PERSON ) had rendered a decision not to prosecute members of the security forces . It had not been possible to communicate this decision to the applicant as his address was not known to the authorities and the ORG Governor had therefore ordered the publication of the outcome of the investigation in a newspaper .

The Government finally stated that the applicant had been invited to ORG in order to make a statement as part of the administrative investigation in which ORG had been appointed as investigator .

On DATE the ORG Commander questioned the applicant in relation to his allegations and the applications he had filed with various authorities , including a certain “ ORG branch ” . The applicant repeated his allegations that his CARDINAL sons , GPE and GPE , along with the PERSON brothers had been taken away and that all the houses in his hamlet had been burned down by soldiers . The applicant further deposed that he had not applied to the “ NORP Human Rights Diyarbakır branch ” . Nor had he given any statement to the latter body or signed any document in respect of his allegations .

The following information appears from documents pertaining to the investigation carried out following the communication of the application to the respondent Government on DATE .

On DATE Mr PERSON , a deputy to the ORG Governor , informed Mr PERSON , in response to the allegations contained in his petition of DATE , that the security forces had not conducted any operation in the region on the dates mentioned in his petition , that his brothers were not on the list of persons wanted by the security forces and that the whereabouts of his brothers were not known to the authorities .

On DATE the ORG chief public prosecutor instructed the ORG police headquarters to summon the applicant to his office so that a statement could be taken from him . The address of the applicant recorded in this letter is the same as the one given in the application form with the exception of the name of the block of flats . According to the application form , the name of the block of flats was ' PERSON ' , but in the prosecutor 's letter the name was recorded as ' PERSON ' .

On CARDINAL DATE the ORG police informed the public prosecutor that there were no blocks of flats called PERSON in the street indicated by him . This letter went on to say that the applicant was not known by the people living in the neighbourhood and that his name was not registered in the registry of the head ( muhtar ) of the neighbourhood .

On CARDINAL DATE the commander of the ORG gendarmerie station , in whose jurisdiction GPE village was located , recorded in a report that PERSON and his family had left the village and had gone to the town of GPE near Hatay to work .

On CARDINAL DATE the ORG chief public prosecutor sent a copy of the letter he had received from ORG on DATE to the ORG chief public prosecutor and asked him to investigate the applicant 's allegations that his house had been burned down and that his sons had been taken away by the security forces .

On DATE the ORG chief public prosecutor sent a letter to the gendarmerie commander of ORG and instructed the latter to confirm whether or not an operation had been conducted in NORP village on DATE and whether ORG had been detained . He also asked the commander to find out the applicant 's address and to summon the applicant to his , i.e. the prosecutor 's , office .

On DATE the ORG prosecutor sent another letter to the ORG gendarmerie commander 's office and informed the latter that the name of the village was incorrectly recorded as ' Turalı ' which was within the jurisdiction of the town of PERSON . The prosecutor repeated his requests in his letter of DATE and asked the gendarmerie commander to look for the applicant in the village of ' PERSON ' .

On DATE the ORG gendarmerie commander replied to the prosecutor 's requests . The commander stated that the said persons had never been detained by his soldiers and that no operation had been conducted in the vicinity of GPE village at that time . The commander finally stated that the applicant had moved to the town of GPE in the province of NORP to work .

On DATE the ORG prosecutor took a decision of non - jurisdiction and sent the file to the office of the ORG district governor . This action was taken pursuant to the PERSON on the Prosecution of Civil Servants Memurin Muhakematı GPE ) according to which authorisation must be sought in order to investigate the actions of members of the security forces .

On DATE the gendarmerie commander of ORG , in an apparent response to a request from the ORG governor 's office , appointed PERSON , a gendarmerie lieutenant - colonel , to investigate the applicant 's allegations .

On DATE the newly appointed Lieutenant- Colonel PERSON instructed the ORG gendarmerie commander to forward copies of the names and addresses of the military personnel who had been working in the area at the time of the incident . He further requested copies of all operation reports , operation logbooks , custody ledgers and any other relevant documents .

Also on CARDINAL DATE ORG instructed the GPE police headquarters to take a statement from one PERSON in respect of allegations of village destruction and disappearances . According to this letter , PERSON was born in DATE and living in GPE .

The GPE police headquarters forwarded a copy of the statement taken from PERSON on DATE and a copy of his identity card to ORG .

Abdulrezak İpek stated in his statement that he did not even know where GPE was and that his children had not been taken away by soldiers . In fact , he did not have any children with those names . According to the copy of his identity card , PERSON was born on DATE .

On DATE the ORG gendarmerie commander replied to ORG requests and enclosed copies of CARDINAL pages of custody ledgers and copies of CARDINAL pages of operation logbooks in which the day - to - day activities of the ORG gendarmerie were recorded . The ORG commander further stated in his letter that his soldiers had not conducted an operation in GPE on DATE and that ORG had not been detained . The letter further states that Major PERSON had been ORG gendarmerie commander on DATE but he had since been posted to another town in central GPE . Sergeant - Major PERSON had been commander of the ORG gendarmerie station in whose jurisdiction GPE village was located . He had since been posted to a town in the west of the country .

Copies of the custody ledgers , which were enclosed with this letter , have been submitted to ORG . They do not contain the names of ORG or PERSON . A copy of the DATE activities logbook kept at the ORG gendarmerie station does not mention any operation planned , or conducted , at the relevant time .

On DATE Lieutenant - Colonel PERSON concluded his investigation report . He came to the conclusion that no operation had been conducted by security forces in NORP village on DATE and that the security forces had not even gone to that village on DATE . ORG further considered that the statement taken from PERSON in which the latter stated that he was not from GPE village and that his house had never been burned down or that his children had not been taken away , also proved that no operation had taken place . He recommended that authorisation to prosecute members of the security forces should not be granted as there was no evidence to prove that the alleged events had taken place . This report was forwarded to the ORG governor 's office on DATE .

On DATE ORG , under the presidency of the ORG Governor , decided on the basis of the information submitted by ORG not to grant authorisation for the prosecution of members of the security forces . This decision was appealed against ex officio pursuant to domestic law .

On DATE ORG ( PERSON ) , sitting as an appeal court , rejected the appeal and upheld the decision not to grant authorisation for the prosecution of members of the security forces . It had not been possible to communicate this decision to PERSON since his address was unknown to the authorities . Thus , the ORG Governor ordered the publication of this decision in a newspaper .

Finally , the applicant has submitted a letter dated DATE and signed by PERSON , the father of PERSON and the uncle of PERSON and PERSON who were allegedly taken from the village by soldiers and detained together with the applicant 's sons .

Mr PERSON , who also lived in the same village as the applicant , confirmed the applicant 's version of events and added that PERSON and PERSON had been released but that his son PERSON had not been released . He has not heard from his son LOC since the incident .

Mr PERSON made inquiries at various military establishments in the region and sent a telegram to the Chief of Staff of ORG in GPE ( ORG ) complaining about the disappearances in the course of the impugned events .

The Chief of Staff stated in his reply that no operation had taken place and that the persons referred to had not been detained .

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

The witness told the delegates that he had lived in the hamlet of LOC outside GPE village DATE and DATE when the “ Government destroyed the hamlet . ” CARDINAL families lived in the hamlet . The inhabitants were all in some way related . The applicant kept livestock and grew crops for his living .

The applicant stated that CARDINAL military raids had taken place on the hamlet on DATE . The first raid began TIME , at the time of the TIME prayer . The soldiers gathered all the inhabitants ( CARDINAL ) in front of the school , including the children . The village muhtar , with whom he enjoyed a good relationship , was not present . The men were separated from the women and children . When questioned by the Delegates , the applicant stated that the soldiers had collected the inhabitants ' identity documents . No names were called out . CARDINAL persons , including his sons , GPE and GPE , were led away by the soldiers . These persons were chosen at random ( “ You , you and you . ” ) and were made to carry the soldiers ' rucksacks . The soldiers returned the identity documents to the other inhabitants and then released them . During this time , the applicant could see that the hamlet had been set on fire . When he returned to the hamlet , he found that the houses , including his own house , belongings and livestock , had been burned .

The inhabitants started to salvage their property and belongings . However , at TIME , the soldiers returned and ordered everyone to evacuate the village . According to the applicant , an order was given to shoot the inhabitants if they tried to put out the flames . They were made to walk for a long time . During this time he could hear messages coming through on the soldiers ' walkie - talkies to halt the operation . They were threatened that they would be killed if they tried again to put the fires out . On being questioned at the hearing , the applicant affirmed that he could understand NORP . The applicant later mentioned in his evidence that other villages had been burned DATE , including GPE .

The applicant confirmed his belief during questioning that the raids were conducted by soldiers . He related that they were dressed as such , carried ORG or ORG rifles and used military vehicles and helicopters during the raids . The applicant stated that he had never seen any members of the ORG in the hamlet . While there may have been clashes between the ORG and the security forces away from the area , there had never been any clashes in his neighbourhood . He maintained that there had been no ORG members in the hamlet . When questioned , the applicant stated that ORG members may have come to the hamlet and may have been given food since the inhabitants were afraid of them . According to the applicant , there were no village guards in the hamlet , although the authorities had proposed that inhabitants set up a village - guard system .

The applicant further testified that the soldiers who carried out the raids were from Bolu . They were accompanied by soldiers from ORG . Soldiers from ORG had come to the area in the past to carry out checks . The applicant also affirmed that his sons ORG and PERSON had never been arrested by the security forces before the operation on DATE , and he could offer no explanation as to why they had been taken away . His son , ORG , had returned home from GPE DATE before the military operation to enjoy a rest . His other son , PERSON , worked as a shepherd .

As to his own enquiries concerning the whereabouts of his sons , the applicant stated that he had applied to the authorities in GPE , ORG , GPE and GPE , as well as to ORG in ORG . He deposed that , following the events of DATE , he had obtained from a soldier the name of the commander in charge of the operation , a Major PERSON . He had never disclosed that information to anyone before .

DATE . The witness had been married to PERSON for DATE at the relevant time . She stated that her husband had just returned to the hamlet from GPE where he had spent DATE . On TIME CARDINAL DATE her brother - in - law , PERSON , informed the family that the hamlet was full of soldiers . Everyone was forcibly made to assemble at the school outside the hamlet . In the meantime , the houses were set alight . The witness stated that the raid occurred at TIME and that the burning took place at TIME .

When the inhabitants were outside the school , the soldiers took their identity cards . CARDINAL people , including her husband GPE and her brother - in - law GPE , were picked out , apparently on account of their youth , and told to carry the soldiers ' gear to the military vehicles .

The remaining inhabitants were allowed to return to their houses at TIME However , with the exception of a few houses , everything had been burned down , including their family home and belongings . The soldiers returned to the hamlet again at TIME with orders to kill the inhabitants . ORG which had only partly been burned or where the flames had been extinguished were again set on fire . The inhabitants were all led away from the hamlet . The witness stated that she could make out from the radio communications between the soldiers that the order to kill them had been revoked . They were released at TIME but ordered not to stay in the hamlet . The witness went to live with her parents in ORG .

The witness had no doubts that the operation was carried out by NORP soldiers . She was unable to assess how many soldiers were involved . She testified that there were no members of the NORP living in the hamlet and that she had no recollection of ORG members ever having come to the hamlet for assistance . When questioned by the Delegates , the witness affirmed that neither her husband nor her brother - in - law had ever been in trouble with the authorities . The witness stated that she was never requested by the authorities to give a statement about the above events .

The witness is the applicant 's son and the brother of GPE and PERSON . He stated that the events under investigation had taken place on DATE when soldiers arrived in the village . He estimated that CARDINAL soldiers were involved in what he referred to as the “ general operation . ” The soldiers approached the hamlet on foot from FAC where they had left their military vehicles . They rounded up the inhabitants at the local school where they separated the men from the women . Everyone 's identity cards were taken . The soldiers picked out CARDINAL of the villagers including his brothers GPE and PERSON and the CARDINAL PERSON brothers to carry their rucksacks back to the vehicles . The witness affirmed that he saw these individuals being led away on foot towards the military vehicles and getting into the vehicles . The soldiers handed back the identity cards to the remaining villagers who went back to the hamlet only to find that the houses had been set alight . The witness stated that his family 's livestock and belongings had been destroyed . According to the witness , these events took place at TIME .

NORP Some villagers attempted to extinguish the flames . However , the soldiers returned CARDINAL or TIME with orders to kill them . The villagers were rounded up and taken away . However , an order came over the military radio not to fire on the villagers . They were allowed to return but were threatened with death if they tried to put out the fires .

When questioned by the Delegates the witness stated that there were no ORG members living in the hamlet or in the neighbouring village , and if any members visited they would be denied assistance since the inhabitants were afraid of reprisals from the authorities . Moreover , there were no guards in the hamlet - although the authorities had proposed the setting up of a village - guard system . The witness had no explanation as to why the hamlet had been destroyed and his brothers taken away . He did however refer to an incident in GPE village TIME away in which a number of soldiers were killed . The witness informed the Delegates that all the villages in the neighbouring region had been burned .

The witness stated that he and his father ( the applicant ) had made many attempts in writing to find out from the authorities about the fate of his missing brothers . They were consistently informed that GPE and GPE were not in detention . The witness stated that , out of anger , he tore up and threw away the replies which he had received from the regional governor . The witness told the Delegates that his father had been told the name of the commander of the operation by a soldier whom he had met in the PERSON neighbourhood . His father had written down the name .

DATE . The witness stated that he had been born in LOC hamlet . However , at DATE he was living in ORG . There were CARDINAL households in the hamlet and all the families were in some way related . He knew both GPE and GPE . The witness had returned to the hamlet DATE before the start of the military operation . He related to the Delegates that troops from Bolu and other areas had arrived in the vicinity on CARDINAL DATE and that there may have been CARDINAL of them involved in the operation . On DATE , all the villagers were made to assemble in a group in front of the local school while the soldiers , who had arrived in the hamlet on foot , burned down the houses . When questioned by the Delegates , the witness stated that CARDINAL soldiers stood guard around the inhabitants outside the school , and he estimated that there may have been CARDINAL , maybe even a CARDINAL , soldiers involved in the operation in the hamlet .

According to the witness , the school where everyone was grouped was QUANTITY away from the hamlet . He could see the fires burning in the hamlet . The villagers ' identity documents were taken by the soldiers and QUANTITY of them ( himself , PERSON , PERSON , PERSON , İkram İpek and PERSON ) were requested to carry the soldiers ' rucksacks up to their vehicles which had been parked on the hilly area around the village . When questioned , the witnessed stated that the military vehicles were not visible from the school . The witness told the Delegates that the soldiers commented that PERSON would be taken to ORG and conscripted into the army since he had evaded his military service . The witness estimated that the CARDINAL of them left with the soldiers TIME On their way to the military vehicles , he could see from a hill that smoke was rising again from the village . By the time they reached their destination , it was TIME . However , rather than being released , they were then taken in an open - top military vehicle to ORG along with CARDINAL soldiers . He could see smoke rising from the villages along the route to ORG . It was dark when they arrived there . They were made to get out of the vehicle and to lie face down . The witness remarked that many other persons arrived around this time . He estimated that CARDINAL persons were lying down in front of the establishment . Their identity cards were collected . The witness stated that he and CARDINAL others ( his brothers PERSON and NORP ) were taken to a custody room where they spent TIME . They were never ill - treated during this time . In TIME their identity documents were returned and they were told to leave . The last time that he saw GPE and GPE İpek was when they were lying down after being taken from the military vehicle . The witness stated that when he arrived back in the hamlet , the houses had been burned .

The witness had no explanation as to why he and his CARDINAL brothers were released whereas the PERSON brothers and PERSON were kept in custody . When questioned , the witness deposed that the place to which they had all been taken was “ a large military place in Lice ” .

The witness had no doubt that the people who raided the hamlet were soldiers carrying G-CARDINALs . He had never heard of any ORG activity in or around the hamlet , and had no explanation as to why the hamlet had been burned ; nor had he ever heard of a Major PERSON .

The witness stated that he was from the same hamlet as the PERSON family . All the families living there were related . He had returned to the hamlet on DATE from ORG for a visit . Soldiers on foot raided the village QUANTITY DATE . He was certain that they were soldiers since they were carrying G-CARDINALs . A helicopter flew above the area . The soldiers arrived in the hamlet on foot . The inhabitants were all made to assemble at the school on the edge of the hamlet , men on CARDINAL side , women on the other . The soldiers took everyone 's identity documents . He could see the hamlet being burned . CARDINAL of them ( himself , PERSON , PERSON , PERSON , PERSON and PERSON ) were requested to carry the soldiers ' bags up to NORP village . The soldiers kept their identity documents , but returned the identity documents of the persons who remained behind . They set off TIME with the soldiers for GPE village , which was burning . They reached the outskirts around TIME Rather than being released as promised , they were made to await the arrival of military vehicles from ORG to take the soldiers back . The witness stated that GPE village was burning at the time , although they did no go into the village and they did not see any villagers . The QUANTITY of them got into CARDINAL of the vehicles and set off towards sunset for ORG . According to the witness there were CARDINAL soldiers in the truck . When they arrived in ORG , at the “ Regiment ” , they were made to lie on the ground and were divided into CARDINAL groups of CARDINAL . The witness was unable to confirm whether , apart from the CARDINAL , there were other persons lying on the ground . CARDINAL group comprised ORG and PERSON and PERSON . The witness stated that this was the last occasion on which he saw them . Their names were read out . He and his brothers , PERSON and PERSON , were taken inside the “ Regiment ” and spent TIME in a cell - like room as the soldiers ' guests since by that stage it was dark . They were well - treated . There were CARDINAL other persons in the room whom they did not know . When questioned , the witness was unable to provide any precise description of the building where he spent TIME . He confirmed that the cell door was locked and guarded . TIME they were handed their identity documents and released . He returned to the hamlet where he remained for CARDINAL or DATE , sleeping in the open . When questioned , the witness stated that he had no explanation as to why GPE and GPE İpek and PERSON had been detained . He had no knowledge of any NORP activity in the area and had never heard of a Major PERSON .

The witness stated that CARDINAL or CARDINAL villages might have been burned on DATE .

The witness stated that he had been serving in ORG when he was appointed on DATE to investigate the applicant 's complaints . He found no records at ORG to indicate that GPE and PERSON had been taken into custody or that an operation had been conducted on DATE by the gendarmes or military units . The commander at ORG was interviewed and he confirmed that neither of these persons had been taken into custody . The investigation was closed on the basis of the absence of documentary evidence that the PERSON brothers had been detained . According to the witness there was no need to obtain the operational records of the military , given that ORG at the time had responsibility for the whole area . When asked about the possibility that the Bolu brigade may have been in the area at the time of the incident , the witness observed that ORG would have been aware of this . The witness reaffirmed that he had established through ORG that no operation had been conducted in or around DATE . When questioned , the witness stated that he did not find it necessary to ascertain from the Bolu brigade whether it had records of operations which it had conducted in DATE . He repeated that the district gendarmerie commander would have had any such information since he had overall responsibility for the area . It had been established that he did not have any information .

The witness told the Delegates that he did not personally visit Dahlezeri hamlet or GPE village since he knew that the inhabitants had all left . He knew the area , having served there and knew that the villages had been abandoned at some stage . The witness could not confirm whether PERSON hamlet or GPE village had actually been destroyed by burning . When questioned on this point , the witness observed that the terms of reference of his investigation also extended to the allegation that the hamlet had been burnt down . ORG informed him that this matter had been investigated and it was found that the hamlet had not been destroyed as alleged . The witness conceded that the report which was sent to him by the commander of ORG only mentioned that no military operation had been carried out . The witness further stated that no villages in the area had been destroyed by military units . On the other hand , he had personally witnessed the burning of villages by the ORG .

The witness declared that , with the exception of the first name and family name , he had no personal identification details of the applicant PERSON at the time of his investigation . Thus , when someone of the same name was located and questioned by the LOC police , there was no reason to believe that the wrong man had been interviewed . No attempts were made to question other members of the applicant 's family or inhabitants of the hamlet since they had no addresses for them . Moreover , there had been intense terrorist activity in the area at that time . The witness deposed that Captain PERSON had not been questioned since it could not be established that the PERSON brothers had been taken into custody and , in addition , Captain PERSON had been posted out of the area by the time he undertook his investigation .

The witness confirmed that he had been the ORG Commander in DATE and that his responsibilities included overall command of the PERSON gendarme station . His responsibilities had included GPE village . He deposed that no military operations had been carried out in the area under his jurisdiction on DATE . Had any such operation been conducted on DATE , either by the gendarmes or by the military or jointly , it would have been recorded in the log book of the district gendarmerie headquarters . The witness affirmed that the armed forces , including the Bolu commando brigade , would have notified his command of any operation which was to be undertaken , including on DATE . Notification of planned military operations was established practice .

The witness stated that no purpose would have been served by visiting the ORG hamlet or GPE in the course of his investigation . The area had been the scene of intense terrorist activity and the villagers had been forced to leave by the ORG . The witness observed that there must exist a minute recording that an officer had questioned former inhabitants of the LOC hamlet . He stressed that the security forces had never engaged in village burning or forcible evacuation of villagers .

When questioned , the witness reiterated that the names of all persons who were taken into custody were entered in the custody register . There was no reference in the register to the detention of the PERSON brothers . The witness noted that no entries were made in respect of persons who were in the gendarme station under observation , for example for the purposes of simple investigations .

The witness , when asked if he had heard of a Major PERSON , stated that there had been a Major PERSON in the region at the time of his service there . He recollected that Major PERSON was in the area in an advisory capacity to CARDINAL of the battalions which was responsible for overseeing the local elections .

The witness was the commander of the ORG gendarme station DATE . He was responsible , inter alia , for ensuring the security of NORP village and its inhabitants . He stated , however , that he had never been to GPE or PERSON during his term of service at the PERSON gendarme station . He explained that at the relevant time they were unable to get to the remote villages since they did not have a vehicle at their disposal . The witness did observe that the soldiers under his command would have visited GPE village for the purposes of carrying out investigations . The witness deposed that no military operation had been conducted on DATE in the region , either by the soldiers under his command or by the armed forces , including the Bolu commando brigade . If any such operation were to be conducted by forces not under his command , he would have been informed TIME in advance .

According to the witness , there had been intense terrorist activity in the area , which forced many people to leave their villages and to move to safer places , such as ORG . He tried in vain to convince the villagers not to leave their villages . The villagers told him that they were sick of terrorists coming to their villages and forcibly taking their food provisions or abducting their sons . The witness rejected any suggestion that the authorities could have ordered the villagers to leave their villages or that they could have been responsible for the immigration from the region .

When questioned about the allegations that ORG hamlet had been destroyed and that the applicant 's CARDINAL sons had been taken away by soldiers , the witness averred that he had never received any such information during his term of service . Had he ever been informed of such an incident he would have carried out an investigation into the allegations and would have reported the situation to the district gendarmerie command to which his station was attached . No application was ever filed about missing persons either by PERSON or any other person . The witness further deposed that he had never been questioned by the NORP authorities in relation to the applicant 's allegations before the ORG . The witness never heard of a Major PERSON serving in the area in question . However , he might have served in another division or at the ORG infantry battalion , which was stationed in an unused school .

LAW provides :

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

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON shall be brought against the administration before the administrative courts . ”

The Criminal Code makes it a criminal offence

( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

( b ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;

( c ) to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) or murder ( Article CARDINAL ) ;

( d ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;

( e ) to issue threats ( LAW ) ;

( d ) to carry out an unlawful search of an individual 's home ( ORG CARDINAL and CARDINAL ) ;

( f ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ,

( g ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or

( h ) to damage another 's property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . An appeal against the local council 's decisions lies to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . The civil courts pursuant to LAW may compensate pecuniary loss and non - pecuniary or moral damages awarded under LAW .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

Damage caused by terrorist violence may be compensated out of ORG .

NORP Since DATE , serious disturbances have raged in south - east GPE between the security forces and the members of the ORG ( ORG of Kurdistan ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern provinces of GPE have been made under the PERSON on ORG ( Law no . CARDINAL of DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - east GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG security prosecutors and courts established throughout GPE .

NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to LAW on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to ORG . These councils are composed of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”


The applicant was born in DATE and lives in GPE .

The applicant is the grandmother of a minor GPE born in DATE . After the death of her daughter , her son - in - law , PERSON , did not allow her to see GPE

On DATE the applicant instituted proceedings against GPE , seeking permission to see her granddaughter regularly .

On DATE the ORG of Kharkiv ( hereafter “ the ORG ” ) allowed the applicant 's claim in part .

On DATE the ORG quashed this decision and remitted the case for a fresh consideration .

On DATE ORG found against the applicant .

On DATE ORG allowed the applicant 's claim in part .

NORP On DATE the ORG of Appeal quashed this decision and terminated the proceedings and left the applicant 's claim without consideration as she had not used the possibility of extrajudicial settlement of the dispute before ORG . The applicant was informed that she could re - lodge her claim after exhausting this possibility .

On DATE ORG upheld the ruling of ORG , thereby terminating the proceedings . The applicant received the copy of this ruling by regular mail on DATE .


The applicant is a citizen of GPE , belonging to the NORP GPE - NORP community . She was born in DATE in ORG and is living in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .

The respondent Government were represented by their Agents , Mrs H. Voelskow - Thies , PERSON , of ORG , at the initial stage of the proceedings , and subsequently by PERSON PERSON , ORG , also of ORG .

On DATE the applicant left her country in the company of her mother and her CARDINAL brothers and sisters , born in DATE , DATE , DATE , DATE and DATE , respectively . They arrived in GPE on DATE and applied for political asylum .

When interviewed on DATE before ORG ( ORG für die ORG ) , the applicant stated that , although she had encountered no particular problems with the police or other public authorities , she had left her country with her mother with a view to joining her father who on DATE was granted political refugee status in GPE . She did not wish to be left on her own in GPE .

On DATE ORG granted the applicant 's mother and her CARDINAL minor brothers and sisters asylum . Her sister of full age was granted a residence permit on account of her marriage in GPE .

In a separate decision of the same date , ORG refused the applicant 's request for asylum and requested her to leave GPE within a DATE 's time . ORG found that the applicant had not established a real risk of persecution , if she were to return to her country . ORG added that it could not consider humanitarian or personal grounds or questions arising in connection with LAW ) protecting marriage and family life , the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens ( LANGUAGE ) .

On DATE the applicant lodged an appeal against this decision . She submitted that her father had been granted the status of political refugee . It would be unsafe for her to return to GPE having regard to the established political persecution of her father . She had left her country because as a member of the NORP community in GPE she was subjected to group persecution . Moreover , her expulsion would be in breach of her right to respect for her family life as guaranteed by LAW .

On DATE ORG ( PERSON ) dismissed the appeal . ORG found that the GPE NORP were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in GPE .

Furthermore , a decision rejecting the application for asylum would not , in the court 's view , violate LAW . Under the relevant rules of LAW ) , the applicant could not be granted family asylum since , at the time of introducing her request for asylum , the applicant was DATE and therefore did not qualify for admission as a dependent child . It was not contrary to the concept of the protection of family life to refuse children , who had reached the age of majority , the right to stay with their relatives in GPE , unless specific circumstances justified an exception to the CARDINAL-year age limit . According to ORG , the applicant had not established the existence of any such circumstances and in particular had not shown that she was in any way dependent on her family in GPE . ORG noted also that the applicant 's uncle lived in GPE and that she seemed to be on good terms with him . The applicant 's understandable wish to stay with her family in GPE did not constitute a legal obstacle to her intended expulsion . Finally , ORG pointed out that the administrative authorities in charge of matters concerning aliens could suspend the intended expulsion for humanitarian or personal reasons and issue the applicant a provisional residence permit ( PERSON ) .

By a judgment of DATE ORG ( ORG ) refused to grant the applicant leave to appeal and dismissed her request for legal aid on the ground that her appeal had no sufficient prospects of success .

In DATE the applicant thereupon applied with ORG ( PERSON ) for a decision that the intended expulsion be prohibited under LAW , taken together with LAW .

In ensuing correspondence with the applicant ’s representative , ORG , in a letter dated DATE , stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in GPE . Having regard to the applicant ’s petition with ORG , no decision would be taken as long as these proceedings were pending .

Since DATE the applicant ’s provisional residence permit has not been prolonged . She has been ordered to leave the territory of GPE and she has been issued travel documents . The time - limit for leaving GPE voluntarily has been regularly prolonged .

On DATE the applicant ’s son A. was born out of wedlock . The child ’s natural father is the applicant ’s fiancé , who had been granted the status of a recognised refugee and , according to the applicant , does not possess the papers necessary for their marriage .

Persons entitled to asylum ( Article CARDINAL ) of LAW ) enjoy legal status pursuant to LAW and are issued with an unlimited residence permit ( section CARDINAL of LAW ) .

Section CARDINAL of LAW prohibits the deportation of aliens to a State where they would face political persecution . Aliens granted protection against deportation under this provision enjoy legal status under LAW but are merely issued with limited residence for exceptional purposes .

If an asylum claim for protection against political persecution does not meet the necessary requirements under LAW ) of LAW or section CARDINAL(CARDINAL ) of LAW , ORG is obliged to examine whether an applicant faces a serious risk of treatment contrary to LAW if he were returned . Section CARDINAL(CARDINAL ) of LAW prohibits expulsion in such circumstances .

If the preconditions for the application of section CARDINAL(CARDINAL ) are not met , protection may be granted under section CARDINAL(CARDINAL ) of LAW , which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life , personal integrity or liberty of an alien . Persons afforded protection under this provision are granted temporary permission to remain for periods of DATE , renewable by the authorities .

The administrative authorities in charge of matters concerning aliens have to examine under LAW whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons .