CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 février 2000

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Palm, President,   Mr   J. Casadevall,   Mr   Gaukur Jörundsson,   Mr   C. Bîrsan,   Mrs   W. Thomassen,   Mr   R. Maruste, judges,   Mr   F. Gölcüklü, ad hoc judge     and   Mr   M. O'Boyle, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to:   -   Application no. 28293/95, introduced on 1 August 1995 by Kasım Aydın against Turkey and registered on 23 August 1995;   Application no. 29494/95, introduced on 22 November 1995 by Cemal Aydın against Turkey and registered on 7 December 1995; Application no. 30219/96, introduced on 5 October 1995 by Sultan Aydın and 10 Others against Turkey and registered on 15 February 1996;     Having regard to the reports provided for in Rule 49 of the Rules of Court;     Having regard to the observations submitted by the respondent Government on 16   September 1996 (no. 28293/95), 18 April 1997 (no. 29494/95) and 24 November 1997 (no.   30219/96) and the observations in reply submitted by the applicants on 7   November 1996 (no. 28293/95), 11 June 1997 (no. 29494/95) and 13 January 1998 (no. 30219/96);     Having deliberated;     Decides as follows: THE FACTS     The applicants are twelve Turkish citizens of Kurdish origin. They are the spouse and eleven children of Müslüm Aydın, who was born in 1938. The applicants' particulars are appended to this decision. All applicants reside in Hozat in Tunceli Province.     The applicant in Application no. 28293/95 is represented by Professor Kevin Boyle and Professor Françoise Hampson, both university teachers at the University of Essex (United Kingdom). The applicant in Application no. 29494/95 is represented by Mr Kâzım Genç, a lawyer practising in Ankara. The applicants in Application no. 30219/96 are also represented by Mr Kâzım Genç.     A.   Particular circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.     In 1994, Müslüm Aydın and his family resided in Dürüt (Derindere), a hamlet attached to the village of Sarısaltık in Tunceli Province in south-east Turkey.     At the beginning of October 1994, military operations took place in Tunceli Province. At that point in time Kasım Aydın, the oldest son of Müslüm Aydın, was living in Hozat. After having learned of the military operations, he went to Dürüt in order to take his parents and siblings to Hozat. Kasım's mother and siblings went with him to Hozat. His father decided to stay in Dürüt to tend his beehives.     On 11 October 1994, together with an uncle, Kasım Aydın returned to Dürüt, where he found that his family home and possessions had been burned, including 150 of their beehives. He further found that 70 of his family's black goats had been shot dead, that 10 goats were injured and that 84 goats were missing. Kasım Aydın found traces of footprints of military boots and empty cartridges.     Kasım Aydın did not find his father in Dürüt. He learned from inhabitants of Kızılkilise, a nearby hamlet attached to the village of Bilekli, that his father had been taken away by soldiers. The villagers told him that they had seen Müslüm Aydın, who had had a rucksack on his back, walking in front of soldiers; he had guided the soldiers.     On their way back to Hozat, Kasım Aydın and his uncle came across a place where soldiers had apparently stayed overnight; they found leftovers of the soldiers' meal. It appeared that the soldiers had eaten some of the goats belonging to Kasım's family; the head of a slaughtered goat was still hanging on a tree.     On 14 October 1994, Kasım Aydın filed a petition with the Office of the public prosecutor of Hozat requesting an investigation into his father's disappearance and the destruction of his family home and possessions. In his petition, Kasım Aydın declared that, presumably on 8 and 9 October 1994, military forces had come to Dürüt where they had burned his family home and possessions. He had learned from villagers that, when the military operation had started, his father had been made to walk in front of soldiers. Kasım Aydın addressed a copy of this petition to the Office of the Prime Minister, the Office of the State of Emergency Provincial Governor, the Office of the Provincial Authorities and the Hozat District Gendarmerie Command.   On 21 October 1994, Kasım Aydın filed a second similar petition with the Office of the Hozat public prosecutor. Public prosecutor Burhan Özkan formally registered this second petition under Nr. 1994/232 on the same day and opened an investigation.     Also on 21 October 1994, Burhan Özkan took a statement from Kasım Aydın, who declared that, on 8 or 9 October 1994, a military operation had been conducted in the vicinity of Dürüt, namely around Gicori, a hamlet attached to the village of Akören. Abdullah and Hüseyin, two villagers from Kızılkilise, had told him that they had seen his father Müslüm Aydın being taken away by soldiers.     On 9 January 1995, Hozat public prosecutor Okan Kılınç took an additional statement from Kasım Aydın. In this statement, Kasım Aydın gave the surnames and addresses of the witnesses Abdullah and Hüseyin. On the same day, Okan Kılınç issued a summons ordering Abdullah Kalem, at that time residing in Mersin (İçel Province), to appear before the Mersin public prosecutor in order to give a statement in relation to Kasım Aydın's petition.     On 16 January 1995, apparently after having been invited thereto, Hüseyin Durgun gave a statement to Okan Kılınç. This statement, in so far as relevant, reads:   <Translation>   “I am from Kızılkilise ... I know Müslüm Aydın personally. It takes one-and-a-half hours to travel between our villages. On 3 or 9 October, I do not remember the exact date, I saw Müslüm Aydın amongst soldiers in our village. There were about 100 soldiers. He seemed to be sad. Insofar as I could see, there were no traces of blows or coercion on his body. I do not know who the soldiers were. They were strangers to me. I do not know where they took him. I saw him together with the soldiers for about 15-20 minutes near the fountain in front of my house. ...”     In a pro forma letter of 26 January 1995, in which reference is made to the Provincial Governor's letter of 21 October 1994, the Hozat District Governor Günay Özdemir informed Kasım Aydın as follows:   <Translation>   “The petition dated 14.10.94 ..., presented by Kasım Aydın ... to the ... Office of the Tunceli Provincial Governor in the matter of aid and resettlement on grounds that he has been wronged in having had to migrate from his village as a consequence of military operations having been conducted in the region, has been examined. The inhabitants of in total nine villages in our <Hozat> District have left their homes for fear of terrorist organisations and concerns for their safety. Some of these people have moved to ... Hozat and others have moved to other provinces and districts. Following the resolution of their housing problems by making available either official or private accommodation, those persons who have moved to Hozat have been given aid in the form of food and money. This aid currently continues to be provided and this Office <of the District Governor> has attempted, by all possible means, to resolve all problems of these persons. As regards the request of the aforementioned <Kasım Aydın> for resettlement, the petitioner has not fulfilled the conditions of Housing Law Nr. 2510. As there is no other legal basis <for resettlement>, there are no <other> procedures that can be initiated in respect of this request. ...”     On 14 February 1995, noting that Kasım Aydın's petition concerned in fact two issues, Okan Kılınç decided to split the investigation in two separate case-files. The investigation of the alleged destruction of the house and property of the Aydın family remained registered under case-file Nr. 1994/232. The investigation of the disappearance of Müslüm Aydın was registered under case-file Nr. 1995/10.     On 15 February 1995, Kasım Aydın addressed a petition to the Ministry of the Interior in which he described the situation of his family and repeated his account stated in his previous petitions. This petition has remained unanswered.     The further investigation nr. 1994/232 of the destruction of the Aydın family home and possessions     On 24 February 1995, Okan Kılınç issued a decision of lack of jurisdiction ( görevsizlik kararı ) in the investigation registered under nr. 1994/232. In this decision, it is stated that actions of security forces under the orders of the Governor of a region where the State of Emergency is in force are subject to the Act on Proceedings on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ) and that, consequently, the case-file was to be transmitted to the Hozat District Administrative Council ( İlçe İdare Kurulu ).     In a pro forma letter dated 26 April 1995 and signed by the Hozat District Governor Günay Özdemir, Kasım Aydın was informed - in reply to his request of 21 October 1994 - that the Hozat Administrative Council had determined his request for an investigation on the basis of information supplied on 6 February 1995 by the Hozat District Gendarmerie Command. According to this information, the security forces in the district had definitely not been involved in the burning of houses in his village. Referring to the decision 1991/1101 of the Council of State ( Danıştay ) in the case nr. 1991/9322, the Hozat District Administrative Council recalled that, pursuant to the Act on Proceedings on the Prosecution of Civil Servants, an investigation against a civil servant can only be conducted where the civil servant concerned has been accurately identified. Failing any accurate identification, no investigation can be carried out. As the perpetrators of the burning of the petitioner's house and property had not been identified, no investigation of the petitioner's complaint could be conducted.     The investigation nr. 1995/10 of the disappearance of Müslüm Aydın     By letter of 7 March 1995, Okan Kılınç requested the Office of the public prosecutor at the State Security Court ( Devlet Güvenlik Mahkemesi ) of Erzincan, under whose jurisdiction Tunceli Province falls, to inform him whether or not Müslüm Aydın and four other persons, i.e. Ahmet Akbaş, Hasan Çiçek, İbrahim Gençer and Nazım Gülmez, were being held in detention.     By letter of 22 March 1995, in reply to a letter of 13 March 1995, the Director of a prison in Kayseri informed the Office of the public prosecutor at the State Security Court in Kayseri that Müslüm Aydın and the four other persons mentioned in Okan Kılınç' letter of 7   March 1995 were not being detained in this prison.     On 23 March 1995, Abdullah Kalem gave a statement to the police in Mersin. This statement, insofar as relevant, reads:   <Translation>   “I used to reside in the hamlet of Kızılkilise ... I know Müslüm Aydın and Kasım Aydın personally because they were living in the hamlet of Gicori attached to the village of Akören, which <hamlet> is near to our hamlet. When I was in the village in October 1994, Müslüm Aydın came to our village together with soldiers. He was guiding the soldiers. After having stayed two days in the village they left. The persons with him <Müslüm Aydın> were soldiers. I did not see him again. I do not know where he went. I have not seen any sheep being killed. I heard later that his house had been burned. I do not know who burned it. Neither do I know who killed his sheep. The only thing I know about this incident is that, I guess on 7 October 1994, Müslüm Aydın came to our hamlet and after having stayed two nights in the forest near our hamlet, he left the hamlet together with the soldiers.”       On 29 March 1995, referring to the letter of 7 March 1995 and case-file Nr. 1995/10, the Director of a prison in Erzurum informed the Office of the public prosecutor in Erzurum that Müslüm Aydın and the four other persons mentioned in Okan Kılınç' letter of 7   March   1995 were not being detained in this prison.     On 16 May 1995, Okan Kılınç requested the Hozat District Gendarme Command to be informed about what steps had been taken by the latter in the investigation of the disappearance of Müslüm Aydın.     On 8 June 1995, the applicants' lawyer Mr Kâzım Genç took a statement from Hüseyin Durgun. According to this statement, Hüseyin Durgun had seen Müslüm Aydın together with soldiers in Kızılkilise, but he had not seen who had burned Müslüm's house or who had killed the latter's livestock.     By letter of 30 June 1995, in reply to the letter of 16 May 1995, the Hozat District Gendarme Commander Sebahattin Toprak informed the Hozat public prosecutor that, according to the investigation conducted into the disappearance of Müslüm Aydın, the village of Sarısaltık was still uninhabited and that it had not been possible to obtain any further information.     By letter of 25 July 1995, the applicants' lawyer Kâzım Genç informed the Office of the Hozat public prosecutor that, according to rumours circulating in the region, Müslüm Aydın had been killed by soldiers and that he was buried in an unknown place. Reminding the Office of the public prosecutor of the fact that kidnapping constitutes a criminal offence under Turkish law and of the domestic authorities' investigatory obligations under Article 2 of the Convention, which formed a part of domestic Turkish law, Mr Genç requested the Hozat public prosecutor to conduct the necessary investigation and to remedy the unjust manner in which the victims of this offence were being treated.     On 1 August 1995, Okan Kılınç informed the Hozat District Gendarme Command that he had issued a permanent search warrant for Müslüm Aydın and that, consequently, the Office of the Hozat public prosecutor should be informed every three months of any results of the investigation conducted by the Gendarmerie. On the same day, Okan Kılınç issued a decision joining the investigation case-files nos. 1995/10 and 1995/84 as both files concerned the same subject matter. The respective subject matters of these two investigation case-files are, however, not specified in this decision. The joint investigation remained registered under nr. 1995/10.     On 8 August 1995, the Hozat District Gendarme Commander Hayati Aydın informed the Hozat public prosecutor that, despite all efforts made, Müslüm Aydın had not been found. He confirmed that the matter would be looked into every three months until it would become time-barred.     In a statement taken on 15 August 1995 by the gendarme Sergeant Mevlüt Olgun, the Muhtar of Sarısaltık, Bayram Kahraman, stated that Müslüm Aydın had not yet been found, that nobody knew where Müslüm Aydın was and that he would inform the gendarme authorities of any developments.   On 18 October 1995, Okan Kılınç issued a decision of lack of jurisdiction in the investigation registered under Nr. 1995/10. The reasons stated in this decision are similar to those stated in his decision of 24 February 1995 concerning the investigation registered under Nr. 1994/232. Consequently, the case-file Nr. 1995/10 was transmitted to the Hozat District Administrative Council.     By letter of 24 October 1995 - in response to a petition filed on 12 October 1995 by Kasım Aydın with the Office of the Hozat public prosecutor concerning case-files transmitted to the Hozat District Governor, the latter informed Kasım Aydın that it was not possible to investigate Kasım Aydın's allegations about the destruction of his family home and possessions and the disappearance of his father Müslüm Aydın in the absence of an accurate identification of the civil servant allegedly responsible.     Proceedings before the Hozat Civil Court of General Jurisdiction     On 9 October 1995, Kasım Aydın applied to the Hozat Civil Court of General Jurisdiction ( Asliye Hukuk Mahkemesi ) for a judicial declaration that his father was legally presumed dead so as to enable him to exercise his inheritance rights.     Three witnesses gave oral evidence before this court. The witness Polat Dilek stated that he had seen Müslüm Aydın for the last time in August or September 1994 and that, since then, he had not heard from him again and that he assumed that Müslüm was dead. The witness Seyfi Kahraman declared that he had seen Müslüm Aydın for the last time in September 1994, that he had not heard from him since and that he had heard that Müslüm Aydın had been taken away by soldiers during the military operation in September 1994. He further declared that, during the military operation in September 1994, the house of Müslüm Aydın had been shot at and had subsequently burned. The witness Mehmet Tekin stated that he had seen Müslüm Aydın, who had been from his village, for the last time during the military operation in September 1994. He had heard that, during this military operation, Müslüm Aydın had been taken away by soldiers. He had not seen that himself. He did not know what had happened to Müslüm Aydın and assumed that Müslüm Aydın was dead.     By letter of 19 June 1996, a judge at the Hozat Civil Court of General Jurisdiction requested the Hozat public prosecutor to make available the prosecutor's case-file concerning the disappearance of Müslüm Aydın. The Hozat public prosecutor was requested to submit the file before 19 July 1996, when a hearing on Kasım Aydın's request for a judicial declaration as to the presumed death of Müslüm Aydın was scheduled.     Further developments and proceedings     By letter of 28 December 1995, the District Governor Mahmut Çuhadar informed the Office of the Provincial Authorities Offices of Tunceli that the disappearance of Müslüm Aydın and burning of the latter's home and possessions could not be investigated as the civil servants involved in the incident could not be identified and as no information in this respect could be obtained from the Hozat District Gendarme Command. As information was needed from the competent authorities as to which security forces were in charge of a military operation conducted on 8-9 October 1994 around the hamlet of Dürüt - which forces could have captured and taken away Müslüm Aydın - the District Governor requested the Office of the Provincial Authorities to do the necessary to obtain this information.     On 28 February 1996, Tunceli Provincial Gendarme Headquarters informed the Office of the Provincial Authorities of Tunceli that no military operation had been conducted on 8-9 October 1994 in the hamlet of Dürüt, that it was unknown when and by whom Müslüm Aydın was supposed to have been captured and that there were no witnesses to this incident.     On 12 March 1996, the Hozat District Governor, Mahmut Çuhadar, in his capacity of the President of the Hozat District Administrative Council addressed a letter to the Office of the Provincial Authorities of Tunceli requesting a legal consultation about the disappearance of Müslüm Aydın and five other persons who had all allegedly disappeared in September and/or October 1994 in the course of military operations conducted during that period in the region of Hozat.     By letter of 4 April 1996 the Office of the Prime Minister informed Kasım Aydın that his petition had been noted. The letter does not specify the date or nature of this petition. Kasım Aydın was informed that his petition had been transmitted to the Office of the Provincial Authorities of Tunceli for further action and that this Office would inform him of any findings.     By letter of 22 April 1996, the District Governor Mahmut Çuhadar informed the Office of the Provincial Authorities of Tunceli that Kasım Aydın had been provided with financial aid in an amount of TRL   11,581,000 and that, under Article 22 of the Anti-Terror Law nr. 3713, Kasım Aydın had requested an additional amount of TRL 2,265,000,000 for compensation from the Social Help and Solidarity Fund.     By letter of 25 April 1996, referring to a letter of the International Law and Foreign Affairs Directorate of the Ministry of Justice, a judge at the Hozat Civil Court of General Jurisdiction explained to the Office of the Hozat public prosecutor that Kasım Aydın had not requested a judicial determination of damages incurred as a result of terrorist activities, but a judicial declaration that his father was legally presumed dead.     On 26 April 1996, the Hozat District Governor Mahmut Çuhadar informed the Office of the Hozat public prosecutor that the investigation into the disappearance of Müslüm Aydın was still ongoing, that no final decision in this investigation had yet been taken and that no investigation could be conducted of the burning of the house of Müslüm Aydın since the perpetrators had remained unidentified.     By letter of 6 May 1996 which refers to the application brought by Kasım Aydın to the European Commission of Human Rights (hereinafter “the Commission”), the General Gendarme Command in Ankara informed the Directorate of the Council of Europe, Human Rights and the OSCE of the Ministry of Foreign Affairs that, as a result of attacks by terrorist organisations in the Tunceli region, Kasım Aydın had moved to a house in Hozat which was owned by his father and that, upon his request, he had been granted financial aid amounting to TRL   11,581,000. The letter further mentions that Kasım Aydın had filed a request on 27   March   1996 with the District Governor for compensation for loss of livestock (beehives and goats) as a result of terrorist attacks in October 1994. Following the investigation in relation to this request, it had been decided to grant compensation to Kasım Aydın. Consequently and to this end, an amount of TRL 2,265,000,000 had been requested from the Social Help and Solidarity Fund under Article 22 of the Anti-Terror Law nr. 3713.     On 13 June 1996 the Social Help and Solidarity Fund held that Kasım Aydın's request for compensation was not reasonable. It decided that he would be financially compensated within the limits of the Fund's financial recourses “in case of a determination of the continuance of his losses” (“ adı geçenin mağduriyetinin devam ettiğinin tespiti halinde” ).     On 26 June 1996, with reference to the District Governor's letter of 12 March 1996, the Tunceli Provincial Deputy Governor informed the Hozat District Governor of the reply dated 14 June 1996 by the National Police Headquarter at the Ministry of the Interior in Ankara, i.e. that the police authorities would assist the responsible public prosecutor in the investigation of offences as long as these investigations were ongoing and as long as they had not become time-barred.     On 1 July 1996, Kasım Aydın gave a statement to the Gendarme Sergeant Şenel Kavak in which he confirmed that his father Müslüm Aydın was still missing, that his body had not been found and that, therefore, he had sought to obtain a judicial declaration that his father was legally presumed dead.     By letter of 17 July 1996, the Hozat District Administrative Council informed the Office of the Hozat public prosecutor, in relation to both the disappearance of Müslüm Aydın and the burning of his property, that - according to information supplied by the competent authorities - no operation had been conducted in Dürüt and that the perpetrators had remained unidentified. Therefore, and in the absence of any evidence, the Administrative Council would not be competent to open an investigation. Moreover, in the absence of evidence that the perpetrators were security forces, the Office of the District Governor was not competent to issue a permanent search warrant for Müslüm Aydın. Consequently, the investigation was to be transmitted back to the Office of the public prosecutor for a continuation of this investigation under the regular procedure.     On 29 July 1996, Kasım Aydın filed petition with the President and Prime Minister in relation to his father. He explained that he had requested compensation in an amount of TRL   2,265,000,000 from the Social Help and Solidarity Fund, which he had been unable to obtain given the Fund's lack of financial resources. On 14 August 1996, the Office of the Prime Minister informed Kasım Aydın that his petition had been transmitted for examination to the Ministry of the Interior.     On 1 August 1996 - in response to a complaint filed by all applicants about the disappearance of Müslüm Aydın which had been registered under case nr. 1996/59 after it had been transmitted on 17 July 1996 by the Hozat District Administrative Council to the Office of the public prosecutor - the Hozat public prosecutor Ahmet Cengiz issued a decision of lack of jurisdiction. In the light of the evidence given by Abdullah Kalem and Hüseyin Durgun and the fact that, apart from Müslüm Aydın, five other persons had also disappeared during the same period, Ahmet Cengiz found it established that there had in fact been a military operation at the relevant time. Noting that a dispute had arisen between the Hozat District Administrative Council and the Office of the Hozat public prosecutor as to which authority had jurisdiction over the matter and referring to a decision taken on 5 July 1996 by the Jurisdiction Disputes Court ( Uyuşmazlık Mahkemesi ), Ahmet Cengiz held that offences committed by military staff in the course of their fight against terrorism were to be examined by the military courts. Consequently, he decided that the investigation was to be transmitted to the Office of the 8 th   Army Corps Command.     On 23 September 1996, the Hozat District Deputy Governor informed the Office of the Provincial Authorities of Tunceli that Kasım Aydın's request for compensation from the Social Help and Solidarity Fund had not been reasonable and that he could only be granted compensation within the financial limits of the resources of this Fund. The Deputy Governor's letter further stated that Kasım Aydın had thus received compensation in an amount of TRL   27,583,000 and that there were no additional resources to grant him a higher amount.     On 10 October 1996, the 8 th Army Corps Command assistant prosecutor in Elazığ, Captain N.   Kemal Urhan, issued a decision of lack of territorial jurisdiction ( yetkisizlik kararı ) as, at the relevant time, the “ Bolu ” 2 nd Commando Brigade Command was responsible for military operations in the region of Hozat-Ovacık. As his office was not competent to examine matters concerning the 2 nd Commando Brigade Command, he decided to transfer the case to the Office of the military prosecutor of the Ankara 4 th Army Corps Command.     In a copy - certified on 24 February 1997 by the Gendarme Commander Hayati Aydın -of an undated joint statement by the four gendarmes Hasan Evren, Şenel Kavak, Özkan Duran and Mete Semiz, as submitted to the State Security Court of Malatya in connection with proceedings against a person named Sinan Gül in which the question had arisen whether on 5   October 1995 there had been a clash in Dürüt, it is stated that, on 8 October and continued on 9 October 1994, a clash had taken place in the Tunceli-Ovacık-Bilgeç region in the course of which 22 terrorists and 2 soldiers had been killed and that this clash was recorded in the gendarme incident report with the reference HRK: 0622-988-94/22238 of 13 October 1994.     On 6 March 1997, the General Gendarme Command in Ankara informed the Ministry of Foreign Affairs that the 2 nd Commando Brigade Command had conducted military operations in the Hozat-Ovacık District in the province of Tunceli, but that no such operation had been conducted in the area of Sarısaltık-Derindere where Müslüm Aydın had resided.     On 10 March 1997, the Army General Staff ( Genel Kurmay Baskanlığı ) informed the Ministry of Foreign Affairs that the preliminary investigation of Cemal Aydın's application to the Commission was ongoing. However, on the grounds that this preliminary investigation was confidential, it was not possible to disclose the entire case-file. Should information be required, such information could nevertheless be made available as long as its confidential nature would be respected.     On 29 September 1997, the Gendarmerie General Command prosecutor ( Jandarma Genel Komutanlığı Savcısı ), Ali Çakmakkaya, issued a decision of lack of jurisdiction in respect of the disappearance of Müslüm Aydın and eight others having disappeared and/or found dead in September and October 1994 in the Hozat region. As regards the case of Müslüm Aydın, all applicants are recorded as complainants in this decision.     In this decision, it is noted that, between 29 September 1994 and 31 October 1994, the 2 nd Commando Brigade Command had conducted military operations in the northern part of the province of Tunceli and in the Tunceli-Ovacık region. There were, however, no witnesses of the alleged taking away by soldiers of the nine persons reported missing. Ali Çakmakkaya noted that all evidence available was of a hearsay nature. He had examined all military maps and other relevant documents concerning the period of July-September 1994. If local persons had been used as guides, this would have been recorded. A number of local persons had in fact been used as guides and their names had in fact been duly recorded. He further noted that the PKK and other terrorist organisations (TKP/ML, Partizan, Tikko, Dev-Sol and TDKP) were very active in the region. They had been in control of the road and had even used helicopters for transportation purposes.     Ali Çakmakkaya's decision further states that, contrary to the 2 nd Commando Brigade Command which had always respected the law and had showed humanity towards the civilian population, these terrorist organisations had exploited the local population in the region, had disseminated propaganda and had committed various offences involving violence and killings while trying to make it appear as if these offences had been committed by security forces. Against this background and noting that the only evidence available was of a hearsay nature as well as the absence of any reasonable explanation as to why the security forces would have arbitrarily taken nine persons with them, he considered that it was not possible to hold the 2 nd   Commando Brigade Command responsible for the disappearance and/or killing of the nine persons concerned. On the basis of the information and documents available, it could only be concluded that the terrorist organisations were responsible for what had happened to these nine persons. Having reached this conclusion, he considered that, therefore, the case should be transmitted to the Malatya State Security Court in whose jurisdiction the province of Tunceli lies.     It appears that the Office of the public prosecutor at the Malatya State Security Court has opened an investigation, registered under nr. 1998/72, which is currently still pending.   B.   Relevant domestic law and practice     i.   Criminal law and procedure     Under the Turkish Criminal Code ( Türk Ceza Kanunu ) unlawful deprivation of liberty (Article 179 generally, Article 181 in respect of civil servants), coercion through force or threats (Article 188), arson (Articles   369-372), aggravated arson if human life is endangered (Article   382), unintentional arson by carelessness, negligence or inexperience (Article   383), all forms of intentional homicide (Articles 448-455), unintentional homicide (Articles 452 and 459), intentional infliction of damage to someone's property (Articles   516 and 517) and to harm or kill arbitrarily another person's animal (Article 521 ) constitute criminal offences.         For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure ( Ceza Muhakemeleri Usulü Kanunu ), with the public prosecutor or the local administrative authorities. Under Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duty is liable to imprisonment. 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 Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.     If a suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. If it concerns a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and the pertaining rules of criminal procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article   145   §   1 of the Constitution and sections 9-14 of Law no. 353).     ii.   State of Emergency         Since approximately 1985, serious disturbances have raged in the south-east part of Turkey between security forces and members of the PKK. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.         Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey, including the Province of Tunceli. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.         The second, Decree no. 430 (16 December 1990), 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 Article 8:   <Translation> “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 an individual to claim indemnity from the State for damage suffered by them without justification.”     iii.   Prosecution for terrorist offences and offences allegedly committed by members of the security forces         Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article   169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”.         Pursuant to section 9   (a) of Law no. 2845 on the Procedure in the State Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of State Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.         Public prosecutors are also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Article 4 § 1 of the Decree no. 285 provides that all security forces under the command of the Regional Governor shall be subject, in respect of acts performed in the course of their duties, to the Law on Proceedings 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 issue a decision of non-jurisdiction and, depending on the suspect's status, transfer the file to either the District or the Provincial Administrative Council ( İlçe or İl idare kurulu ). These councils are made up of civil servants and are chaired by the District or Provincial Governor. They conduct the preliminary investigation and decide whether or not to prosecute. These councils have been criticised for their lack of legal knowledge, as well as for being easily influenced by the District or Provincial Governors, who also head the security forces.     An appeal against a decision by a District Administrative Council lies with the Regional Administrative Court ( Bölge İdare Mahkemesi ). If a decision not to prosecute is taken, the case is automatically referred to that court. An appeal against a decision taken by a Provincial Administrative Council lies with the Council of State ( Danıştay ). If a decision not to prosecute is taken, the case is automatically referred to the Council of State.     If a decision to prosecute has been taken, the case is referred to the public prosecutor for further action.     iv.   Constitutional provisions on administrative liability         Article 125 of the Turkish Constitution provides as follows:   <Translation> “All acts and decisions of the Administration are subject to judicial review ... The Administration shall be liable for damage caused by its own acts and measures.”         This 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 liability is of an absolute, objective nature, based on 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 State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.     Under section 13 of Law no. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring proceedings before the administrative courts, whose proceedings are in writing.     v.   Civil law provisions         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 Article 41 of the Code of Civil Obligations ( Borçlar Kanunu ), 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. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Civil Obligations and non-pecuniary or moral damages awarded under Article 47 of this Code. The civil courts are not bound by the findings of a criminal court as to a defendant's liability (Article 53).     However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of the exercise of official duties by a civil servant may, in principle, only bring an action against the public authority in whose service the civil servant concerned works and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Civil Obligations). If, however, the act is found to be illegal or tortious and, consequently, is no longer considered as an “administrative” act or deed, the civil courts may allow a claim for damages against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Civil Obligations).     COMPLAINTS   1.   All applicants complain under Article 2 of the Convention that Müslüm Aydın has disappeared after having been taken away by the security forces and that it must be presumed that he was killed by the security forces . The applicants submit that an unacknowledged taking into detention constitutes a violation of the right to life as it seriously increases the risk of the loss of life of the “disappeared” person.   2.   All applicants complain under Article 1 Protocol 1 of the Convention on account of the destruction of their family home and possessions, including the killing and disappearance of livestock.   3.   The first applicant, Kasım Aydın, further complains that the anxiety and pain suffered by himself and his family caused by the disappearance and uncertain fate of his father as well as the destruction of his family home and possessions forcing him and his family to abandon their village for an unsecured existence elsewhere in conjunction with the State's refusal to provide him and his family with adequate support and assistance amount to treatment contrary under Article 3 of the Convention.   4.   The first applicant complains under Article 5 of the Convention that his father's disappearance and the destruction of his family home and possessions constitute a violation of the right to liberty and security.   5.   The first applicant complains under Article 6 of the Convention that he was deprived of his right to a civil remedy in relation to the destruction of his family home and possessions. He refers in this respect to the reply from the Hozat District Governor of 26 January 1995 as evidence of the State's attitude to those claiming that their house had been burned down.   6.   The first applicant complains under Article 8 of the Convention that the destruction of his family home and possessions is a violation of his and his family's right to respect for private and family life.   7.   The first applicant complains under Article 13 of the Convention that he had no effective domestic remedies as regards the violations of his and his family's rights under the Convention.   8.   Relying on Article 14 of the Convention in conjunction with Articles 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1, the first applicant also complains in respect of the destruction of his family home and possessions that he and his family are subjected to discrimination on grounds of their ethnic origin, their belonging to a national minority and their Alevi belief.   9.   The first applicant complains that the policy pursued by the Turkish authorities, in allowing the military to have a free hand to suppress the problems in South East Turkey by methods which include the evacuation and destruction of villages in the South East Turkey, constitutes a violation of Article 18 of the Convention.   10.   The first applicant finally complains of aggravated violations of his and his family's rights under Articles 2, 3, 5, 6, 8 and 13 of the Convention and under Article 1 of Protocol 1, as these violations form a part of State practice in south-east Turkey.     PROCEDURE     Application no. 28293/95 was introduced with the European Commission of Human Rights on 3 March 1995 and registered on 23 August 1995. Application no. 29494/95 was introduced on 22 November 1995 and registered on 7 December 1995. Application no.   30219/96 was introduced on 5 October 1995 and registered on 15 February 1996.     On 16 January 1996, the Commission decided to communicate the Application no.   28293/95 to the respondent Government. On 3 December 1996, the Commission decided to communicate Application no. 29494/95 to the respondent Government and to join the applications Nos. 28293/95 and 29494/95. On 20 May 1997, the Commission decided to communicate Application no. 30219/96 to the respondent Government.     The Government's written observations on Application no. 28293/95 were submitted on 16 September 1996, after three extensions of the time-limit fixed for that purpose. The applicants replied on 7 November 1996.     The Government's written observations on Application no. 29494/95 were submitted on 18 April 1997, after one extension of the time-limit fixed for that purpose. On 6   May   1997, the respondent Government submitted certain documents in support of their observations. The applicants replied on 11 June 1997.     The Government's written observations on Application no. 30219/96 were submitted on 24 November 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 13 January 1998. On 4 June 1998, the Government submitted certain documents in relation to Application no. 30219/96.     On 1 November 1998, by operation of Article 5 § 2 of Proto