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

The applicant is a Belgian national, born in 1940. He has no fixed occupation.

On 29 July 1970, the Bruges criminal court (tribunal correctionnel) sentenced him to two 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 ten years, pursuant to section 23 of the "Social Protection" Act of 1 July 1964 (see paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56 of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April 1968 to two 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 the Ghent Court of Appeal, which confirmed the first instance decision on 20 October 1970. It found that the placing at the Government’s disposal was justified by the danger to which society and Mr. Van Droogenbroeck himself would be exposed were he to be released on completion of his sentence (door het gevaar dat, na afloop van de straf die tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point of law was dismissed by the Court of Cassation on 19 January 1971.

On the completion (on 18 June 1972) of his principal sentence, which he served at St. Giles prison, Brussels, and then at Malines, Mr. Van Droogenbroeck did not remain in detention. It was true, according to the medical officer specialised in psychology (médecin-anthropologue) at Malines prison, that he was incapable of self-criticism and had no sense of responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the Minister of Justice, 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 1 August 1972, in semi-custodial care; this involved his working as an apprentice in a central-heating installation firm in Brussels and attending intensive vocational training courses in a specialised institution on Fridays and Saturdays.

The applicant disappeared, however, on 8 August 1972. Three days later, on the instructions of the procureur général (public prosecuter) attached to the Ghent Court of Appeal, he was placed on the wanted list and, on 3 October 1972, he was arrested, pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft, and detained at Forest prison, Brussels. On 17 November, he was found not guilty by the Brussels criminal court, but on 27 November the Minister of Justice decided to send him to Merksplas prison, in the block reserved for recidivists placed at the Government’s disposal (te doen overbrengen naar de afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was because the Ministry’s individual Cases Department had expressed the opinion, on 27 November, 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 the Recidivists Board (see paragraph 22 below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the Minister of Justice decided on 22 June to release him conditionally on 25 July, since the firm mentioned above was prepared to re-engage him as a trainee heating technician.

The applicant disappeared again at the beginning of September 1973. He was arrested on 6 November and brought before the Antwerp criminal court on a charge of aggravated theft, where he was sentenced on 16 January 1974 to three months’ imprisonment. On 4 February, 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 the end of March the agency responsible for monitoring his rehabilitation lost trace of him. He was arrested on 21 May 1974 and, until 16 January 1975, served a sentence of eight months’ imprisonment for aggravated theft, imposed by the Brussels criminal court on 9 August 1974; thereafter he returned to Merksplas prison pursuant to a detention decision (te interneren) taken by the Minister of Justice on 11 January. He left prison on 11 July 1975: two days previously and on the recommendation of the Recidivists Board, the Minister had agreed to his conditional release (te ontslaan), in the form of one month’s renewable leave, with a view to rehabilitation in France.

Mr. Van Droogenbroeck accordingly went to France, accompanied by a member of the Prisoners’ Aid committee, but the rehabilitation plan proved impracticable and he therefore returned to Belgium. After different setbacks in hostels, he was obliged to live alone in Brussels, without work and completely without resources. On 10 September 1975, the Individual Cases Department, citing the risk of recidivism, proposed that "steps be taken to detain" the applicant at Merksplas; the Minister of Justice gave his consent on the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the third time; the authorities placed him on the wanted list, on account of his conduct. After hiding for some months in the Netherlands and finding himself in dire financial straits, he gave himself up on 21 January 1976 to the police attached to the parquet du procureur du Roi (public prosecuter’s office) in Brussels. He was detained at once in Forest prison before being sent back to Merksplas. On 2 February, 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 3 March 1976, the applicant appeared at his request before the Recidivists Board, which decided to re-examine his case in September. At its meeting on 8 September, the Board 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 12,000 BF through his prison work.

On 23 September, the applicant was transferred from Merksplas to Louvain prison.

On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur général attached to the Ghent Court of Appeal an application for release from the effects of the decision placing him at the Government’s disposal. The Court of Appeal refused the application on 13 December: after rejecting the arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5 par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court 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 15 February 1977, his appeal on a point of law was held by the Court of Cassation to be inadmissible on the ground that he was no longer entitled to contest before that Court - as he had attempted to do by pleading the Convention - the validity of the decision complained of, that decision having been final since 19 January 1971.

On 13 March 1977, the applicant lodged with the Louvain procureur du Roi a complaint of arbitrary detention and, in the alternative, of abuse of authority (abus de pouvoir). He pointed out that since 28 February the balance on his account had been more than 12,000 BF; in addition, he alleged that the Recidivists Board, not being mentioned in the Act of 1 July 1964, was "unlawful" and he accused the Minister of transforming his sentence into one of "forced labour". On 19 August 1977, the complaint was set aside as requiring no further action.

On 4 May 1977, Mr. Van Droogenbroeck appeared again before the above-mentioned Board. Noting that he had by then saved 12,868 BF and had been detained for long enough (lang genoeg), the Board recommended, "without much enthusiasm" (zonder veel enthousiasme), that he be released (te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him one month’s renewable leave, to be preceded by a two month period of semi-custodial care during which he was to be accommodated at night in St. Giles prison (Brussels) but was to work outside the prison during the daytime. However, he disappeared on the day after his first day out and was at once placed on the wanted list for return to the recidivists block at Merksplas.

On 22 September 1977, Mr. Van Droogenbroeck was caught in the act of stealing in Bruges and arrested. On 9 December, he was sentenced to three month’s imprisonment by the Bruges criminal court and, on completing that sentence on 21 December, was sent back to Merksplas. The Ministry of Justice had found, on 19 December, that the applicant’s return to detention did not require a fresh Ministrial decision since he had evaded detention on 8 June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn internering, is geen ministeriële beslissing nodig om hem opnieuw te interneren).

The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was adjourned until September. On 13 September, the Board pointed out that, on account of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and it therefore proposed that he not be granted renewable leave until he had saved 12,000 BF. On 3 October, 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 the Brussels Social Rehabilitation Office, working regularly, not changing employer or address without that Office’s consent, refraining from excessive consumption of alcohol and not associating with former criminals. It proved impossible to implement this decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached thereto. On 14 March 1979, he appeared once more before the Recidivists Board, which confirmed the advice it had tendered on 13 September 1978.

On 16 September 1979, the applicant lodged with the procureur général attached to the Ghent Court of Appeal a second application based on section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application was granted on 18 March 1980: after considering the submissions to the contrary on the part of the ministère public and although the Court rejected, as in 1976, the arguments based on the Convention, it held that there were by then reasons for releasing Mr. Van Droogenbroeck from the effects of the decision placing him at the Government’s disposal. He was set free on the same day, but shortly afterwards was again deprived of his liberty, the Brussels criminal court and the Ghent Court of Appeal having sentenced him on 10 September 1980 and 3 June 1981 to one month’s and to one year’s imprisonment for aggravated theft, though without applying to him the Social Protection Act.

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 the Criminal Code of 8 June 1867; it was introduced by section 24 to 28 of the "Social Protection" Act of 9 April 1930 and is today the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect of Mental Defectives and Habitual Offenders Act of 1 July 1964 ("the 1964 Act").

According to Belgian case-law, being placed at the Government’s disposal is to be classified as a penalty and not as a security measure; this has various consequences in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22 and 23 of the 1964 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 Act, namely twenty years, ten years, or from five to ten years, 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 22), whereas in other cases - such as the applicant’s - it is a matter for the court’s discretion (section 23): the latter rule applies where a non-indictable offence (délit) has followed an indictable or a non-indictable offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has followed a non-indictable offence and to the case of "anyone who, having committed in the previous fifteen years at least three offences each involving a penalty of imprisonment for a non-indictable offence (emprisonnement correctionnel) of at least six months, 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 24 and Court of Cassation, 3 January 1962, Pasicrisie 1962, I, pp. 525-526).

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 16 January 1974, 9 August 1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the Government’s disposal, the latter penalty to be served after the expiry of the first order, but as regards Mr. Van Droogenbroeck this course was not followed by the Antwerp, Brussels and Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and 1981 (see paragraphs 12, 17 and 18 above).

According to the Court of Cassation, the penalty of being placed at the Government’s disposal - which can be the subject of a full appeal or of an appeal to the Court of Cassation 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 (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526; 22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I, p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964 Act, "recidivists and habitual offenders who are at the Government’s disposal shall, if necessary, be detained in an establishment specified by Royal Decree" - in the instant case the establishment being Merksplas, which had been designated for males not suffering from any mental illness (Royal Decree of 8 February 1952).

As is indicated by the phrase "if necessary", the Act confers on the Government - here, the Minister of Justice - 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 Justice 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 10 above);

- during detention, on a recommendation by the Recidivists Board (see paragraph 11, 12 and 16 above and paragraph 22 below).

A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 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 the Court of Appeal within whose district the placing at the Government’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.

The Board for Recidivists who have been placed at the Government’s Disposal and are in Detention ("the Recidivists Board") was established by a Ministerial Decree of 12 March 1946 which was modified and supplemented on 20 May 1949 and 11 March 1968. The Board is composed of a judge or retired judge, who acts as chairman, the medical director or retired medical director of the Prison Psychological Service (Service d’anthropologie) and a senior official of the Prison Social Service. A representative of the Ministry of Justice attends meeting of the Board and the Prisoners’ Aid Committees or the Social Rehabilitation Offices may be invited to send a representative - who is entitled to speak and vote (Decree of 20 May 1949) - to those meetings at which the Board is to discuss the position of detainees who have been or are to be placed under their supervision.

The Board is convened by its chairman at least once every two months. 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 Board either at the meeting before the expiry of the first six months 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 13 above). They will be heard again at the meeting before the expiry of the first six months of their detention, if it six months, fixed by the Recidivists Board (see paragraph 11, 12, 13, 16 and 17 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 Board’s Secretary will communicate to him at once the opinion adopted by the Board 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 the Board 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 the Social Rehabilitation Offices or the Prison Social Service.

Under section 26 of the 1964 Act, individuals placed at the Government’s disposal pursuant to sections 22 and 23 may apply to the procureur général attached to the Court of Appeal 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 Government’s disposal for not more than ten years, such an application "can be made three years after completion of the [principal] sentence" (see paragraph 14 above) and, thereafter, "every three years" (see paragraph 18 above); these periods are increased to five years "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 the Court of Appeal; the Chamber 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 1930 and 1964 has developed considerably over the years. Initially, offenders were not released until after a period of detention which varied according to the categories in which they ware placed. Today, 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 one 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 Articles 62 and 63 of the General Prison Rules (Royal Decree of 21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for a non-indictable offence (peine correctionnelle) and then detained pursuant to section 25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work.

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

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

(ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970;

(iii) applying to that Court of Appeal 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 Article 5 par. 4 (art. 5-4) of the Convention.

On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth, to paragraph 55 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 Belgian 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 (Articles 147 and 434 to 436 of the Criminal Code; Articles 63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above).

As regards the second point, the Ghent Court of Appeal held, in 1897 and 1914 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 Court confines itself for the moment to noting that under Articles 584 and 1039 of the 1967 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 54 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 1969 and lives in the town of Seyhan, within the administrative jurisdiction of the province of Adana.

The facts surrounding the events of 5 October 1994 are disputed by the parties.

The facts as presented by the applicant are set out in Part B below (see paragraphs 12-21). The Government’s submissions concerning the facts are summarised in Part C below (see paragraphs 22-23). Documentary evidence submitted by the applicant and the Government is summarised in Part D (see paragraphs 24-27 below) and Part E (see paragraphs 28-52 below) respectively.

On 3 October 1994 Rehib Çabuk and Sefer Cerf were killed in Adana. They were, respectively, district leader and administrative board member of HADEP (Halkın Demokrasi Partisi, People’s Democracy Party), a pro-Kurdish political party. The applicant witnessed the killing and attended the funeral on 4 October 1994.

On 5 October 1994, at about 11 a.m., while the applicant was sitting in the Erzurumlular Café in the Mutlu neighbourhood in Adana, two 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 Renault car, with the registration number 01 HC 644.

There were two other police officers inside the car, both armed with MP-5 automatic weapons. The applicant’s elder brother Suphi Dizman, 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 Sefer Cerf and Rehib Çabuk the day 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.

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 Özgür Ülke, a pro-Kurdish newspaper, and who were collecting money, presumably for the Kurdistan Workers’ Party (hereinafter “the PKK”). 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 Friday evening.

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 the Adana Prosecutor’s office on 7 October 1994 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 the Forensic Medicine Directorate to obtain a medical report which could be used as evidence in the criminal proceedings.

The report was obtained from the Adana Forensic Medicine Directorate on 7 October 1994 (for content see paragraph 27 below).

The applicant received no replies from the Prosecutor.

A medical report was issued by the Forensic Medicine Directorate on 7 October 1994 according to which the applicant was unable to work for a period of 25 days.

The applicant made an application to the Adana Public Prosecutor on 7 October 1994. On 10 October 1994 the Adana Public Prosecutor commenced an investigation into the applicant’s allegations of ill-treatment under file no. 1994/29324.

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

On 6 October 1994 the applicant submitted a petition to the Prosecutor’s office in Adana. The contents of this petition formed the basis of his submissions under Part B above (see paragraphs 12-20). 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 the Forensic Medicine Directorate.

On 7 October 1994 the applicant submitted another petition to the Prosecutor’s office in Adana 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 the Forensic Medicine Directorate in Adana, 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 25 days.

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

It appears from this decision that the Adana Prosecutor, 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 the Adana Administrative Council in order to obtain an authorisation to prosecute the police officers.

On 24 November 1994 the Adana Administrative Council, which was presided over by the deputy Governor of Adana and consisted of six civil servants, found that there was insufficient evidence to open an investigation and decided to decline authorisation for the prosecution of Yaşar Soyyiğit, Hacı Kara, Mustafa Duman and Kadri Dursun, police officers who worked for the anti-terrorism branch of the Adana Police who had allegedly intimidated and ill-treated the applicant on 5 October 1994.

The Administrative Council based its decision on the fact that the applicant, who claimed to have been ill-treated on 5 October 1994, had not asked for his transfer to the Forensic Medicine Directorate until 7 October 1994. It appears from this decision that the investigation file had been forwarded to the Administrative Council by the Legal Affairs Department of the Adana Police Headquarters, together with a letter drawn up by that department on 18 November 1994.

On 7 December 1994 the Disciplinary Board of the Adana Police 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 25 days. The applicant had no complaints against anyone. The applicant’s brother apparently told the Disciplinary Board that his brother had been taken away from the café by the four officers but that he also did not have any complaints against anyone.

In the decision of the disciplinary board, Yaşar Soyyiğit, one of the four 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 three police officers apparently confirmed the statement given by Yaşar Soyyiğit.

On 31 May 1996 the Council of State quashed the Adana Administrative Council’s decision declining authorisation for the prosecution of the four 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. The Council of State further held that the four police officers should be tried before the Adana Criminal Court of First Instance. According to the Council of State, the medical report proved that the applicant had been ill-treated by the four police officers as alleged.

The decision of the Council of State was forwarded to the Adana Prosecutor’s office on 7 August 1996. On 8 August 1996 the Adana Prosecutor forwarded the decision to the Adana Criminal Court of First Instance and asked that court to take the necessary action.

On 11 August 1996 a preliminary hearing was held before the Ninth Chamber of the Adana Criminal Court of First Instance (hereinafter “the trial court”). The court decided to summons the defendants for the next hearing on 14 November 1996 and further decided to obtain the defendants’ identity cards and documents showing their criminal records.

On 12 August 1996 the Adana Prosecutor sent a letter to the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) and informed the Directorate of the decisions referred to above. The Prosecutor added that the criminal proceedings were pending before the trial court under case-file no. 1996/818 and that a hearing was scheduled for 14 November 1996. In this letter the Prosecutor referred to a letter sent by the Directorate to his office on 7 June 1996 and a reply sent by his office on 13 June 1996.

On 21 August 1996 the trial court asked the Adana Prosecutor to obtain the defendants’ identity cards before the hearing on 14 November 1996.

On 27 August 1996 the Directorate sent a letter to the Ministry of Foreign Affairs and referred to the application lodged by the applicant with the Commission. The Directorate informed the Ministry of the decisions referred to above and added that the criminal proceedings were pending before the trial court under case-file no. 1996/818. The Directorate also referred to a letter sent by the Ministry on 31 May 1996 and their reply of 26 June 1996.

On 5 September 1996 the anti-terrorist branch forwarded to the trial court the identity document of one of the defendants, Yaşar Soyyiğit.

On 14 November 1996 the hearing resumed before the trial court. Only two of the defendants, namely Yaşar Soyyiğit and Hacı Kara, were present in the court room. According to postal receipts, the remaining two defendants had also been summonsed.

Both Mr Soyyiğit and Mr Kara told the trial court that they had gone to the café on the day 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 Yaşar Soyyiğit had since been posted elsewhere, decided to send letters rogatory to the courts in whose jurisdiction the two absent defendants were living and asked those courts to take statements from them. The trial court also decided to send letters to the Registry Office for Births, Marriages and Deaths 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 29 January 1997.

On 9 December 1996 the Karakoçan Criminal Court of First Instance, acting on the letter rogatory from the trial court, took a statement from Mustafa Duman, one of the two defendants who had failed to attend the hearing before the trial court on 14 November 1996. Mr Duman told the court that neither he nor any of his colleagues had ill-treated the applicant. According to Mr Duman, the applicant had been a PKK member and it was for this reason that he had made the allegations of ill-treatment against the police.

On 25 December 1996 the Akçakale Criminal Court of First Instance, also acting on the letter rogatory from the trial court, took a statement from Kadri Dursun, the fourth defendant. Mr Dursun 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 29 January 1997, the applicant confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously. He further informed the trial court that he wanted to press charges against the defendants. The applicant’s brother Suphi Dizman also confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously and added that the four police officers had beaten up his brother and broken his jaw as a result.

The trial court adjourned the hearing until 27 March 1997 on account of the failure of the Akcakale court to forward Kadri Dursun’s statement in time.

The hearings on 27 March, 4 June and 15 September 1997 had to be postponed on account of the failure of the authorities to submit to the trial court the identity card of Kadri Dursun and the criminal records of Mustafa Duman.

At the hearing on 17 November 1997 the prosecutor was given additional time until 29 December 1997 to submit his observations.

A final hearing took place on 29 December 1997. The defendants did not attend this hearing. The Prosecutor 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 two days 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 two days after the alleged events”, concluded on 29 December 1997 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 March 1998.

The relevant domestic law and practice are set out in the judgment of İlhan v. Turkey ([GC], no. 22277/93, §§ 35-46, ECHR 2000-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 1942 and is at present living in Diyarbakır, Turkey. At the time of the events giving rise to his application, the applicant was living in the Çaylarbaşı (Dahlezeri in Kurdish) hamlet attached to Türeli village in the Lice district of the province of Diyarbakır. The application concerns the alleged unacknowledged detention and subsequent disappearance of the applicant's two sons, Servet and İkram İpek, in the course of an operation conducted by security forces in his village on 18 May 1994. 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 two 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 Section 1 below. The facts presented by the Government are contained in Section 2.

A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the Court's Delegates at hearings conducted in Ankara is summarised in Part C.

On 17 May 1994 the applicant and his son İkram İpek were tending their sheep away from the village of Türeli when soldiers approached them and asked them for identification. After being shown identification, the soldiers went on their way. The applicant's other son, Servet İpek, had good relations with soldiers from Lice and had even made tea for them on occasions.

On 18 May 1994 at about 10 a.m. the applicant, together with his son İkram İpek, was bringing his sheep back to their hamlet near Türeli village, when a group of about 100 soldiers in uniform raided the village. The soldiers left their vehicles outside the hamlet and entered it on foot. They were armed with G-3 rifles and other weapons. A military helicopter circled above the hamlet. The applicant has since learned that the soldiers were not from Lice, but from around Bolu. The Lice soldiers had told the applicant previously to be wary of the soldiers from Bolu.

The soldiers told the applicant and İkram İpek to gather with the other villagers, that is, men, women and boys –the young girls were told to remain in the hamlet – by the local school, which is located outside the hamlet. The houses in the hamlet cannot be seen from the school. One 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 İkram İpek and Servet İpek, or Seyithan, Abdülkerim, Nuri and Sait Yolur. 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.

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

At about 3.30 p.m., 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 Türeli and Makmu Kirami were also burned down that day.

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

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

Since his own house had been burned, the applicant with his wife Fatma, his son Hakim, and Sevgol, the wife of his son İkram İpek, moved to a house which had been evacuated two years previously in the hamlet of Kalenderesi, also attached to Türeli 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 some four months. The applicant has since moved to Diyarbakır. The Government have provided no aid or assistance to the applicant or his family ever since the time when his house was burned.

Abdülkerim, Nuri and Sait Yolur, who had been taken into custody together with İkram and Servet İpek, were released the next day. They themselves did not speak to the applicant afterwards but informed him through a third person that they had been held together until 10 p.m. the first night with their eyes bound. At 10 p.m. they were separated from İkram and Servet İpek and they never saw the two brothers again. Seyithan Yolur remained with İkram and Servet İpek. All three have been missing ever since.

About 15 days after İkram and Servet İpek were taken into custody, and having heard nothing about their whereabouts, the applicant travelled to Diyarbakır. With the help of a relative, he applied to the office of the Diyarbakır State Security Court (Diyarbakır Devlet Güvenlik Mahkemesi, hereafter DGM) chief public prosecutor. He also applied to the Lice public prosecutor's office and the Lice gendarmerie command. The applicant was unable to obtain any information about his sons from any of these State authorities.

In the meantime, in a letter dated 15 September 1994, Mr İbrahim Erge, a senior colonel at the Chief of Staff in Ankara, informed Mr Şakir Yolur that the security forces had not conducted any operation on 18 May 1994 in the Çağlarbaşı hamlet of Türeli village attached to the Lice district and that his son Seyithan Yolur had not been apprehended.

On 27 October 1994 the applicant filed another petition with the DGM chief prosecutor in Diyarbakır, 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, Hakim İpek, sent two or three petitions to the Governor of the State of Emergency. He received two 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 23 December 1999 the applicant went to the Kulp Gendarmerie Commander's Office at the request of the latter. He was asked where his sons were. The applicant stated that they had been taken away by the State. The gendarmes accused him of lying, insisted that his sons had in fact been taken by the PKK, yelled at him, and asked him why he was complaining about the Turkish State. 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 Türeli village or in Dahlezeri hamlet on 18 May 1994. Neither the applicant's sons nor any other persons had been taken into custody.

The applicant did file a petition with the DGM chief public prosecutor in Diyarbakır on 27 October 1994, stating that his sons Servet and İkram İpek 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 Lice public prosecutor or to the Lice District Gendarmerie Commander. However, following the communication of the application to the Government, an ex officio investigation into the allegations was conducted by the Lice 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 Commission. 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 the Lice District Administrative Council (Lice İlçe İdare Kurulu) 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 Lice 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 the Kulp Gendarmerie Commander's Office in order to make a statement as part of the administrative investigation in which the Kulp Gendarmerie Commander had been appointed as investigator.

On 26 December 1999 the Gendarmerie Commander questioned the applicant in relation to his allegations and the applications he had filed with various authorities, including a certain “European Human Rights Diyarbakır branch”. The applicant repeated his allegations that his two sons, İkram and Servet, along with the Yolur 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 “European 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 7 March 1995.

On 3 March 1995 Mr Sefa Özmen, a deputy to the Diyarbakır Governor, informed Mr Hakim İpek, in response to the allegations contained in his petition of 23 January 1995, 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 25 April 1995 the Diyarbakır chief public prosecutor instructed the Diyarbakır 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 'Varol', but in the prosecutor's letter the name was recorded as 'Baro'.

On 2 May 1995 the Diyarbakır police informed the public prosecutor that there were no blocks of flats called Baro 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 18 May 1995 the commander of the Tepe gendarmerie station, in whose jurisdiction Türeli village was located, recorded in a report that Abdülrezzak İpek and his family had left the village and had gone to the town of Dörtyol near Hatay to work.

On 24 May 1995 the Diyarbakır chief public prosecutor sent a copy of the letter he had received from the International Law and Foreign Relations Directorate of the Ministry of Justice on 20 April 1995 to the Lice 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 7 June 1995 the Lice chief public prosecutor sent a letter to the gendarmerie commander of Lice and instructed the latter to confirm whether or not an operation had been conducted in Turalı village on 18 May 1995 and whether Servet and İkram İpek 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 13 June 1995 the Lice prosecutor sent another letter to the Lice 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 Hani. The prosecutor repeated his requests in his letter of 7 June 1995 and asked the gendarmerie commander to look for the applicant in the village of 'Türeli'.

On 20 June 1995 the Lice 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 Türeli village at that time. The commander finally stated that the applicant had moved to the town of Dörtyol in the province of Hatay to work.

On 21 June 1995 the Lice prosecutor took a decision of non-jurisdiction and sent the file to the office of the Lice district governor. This action was taken pursuant to the Law on the Prosecution of Civil Servants Memurin Muhakematı Kanunu) according to which authorisation must be sought in order to investigate the actions of members of the security forces.

On 2 February 1996 the gendarmerie commander of Diyarbakır, in an apparent response to a request from the Lice governor's office, appointed Turgut Alpı, a gendarmerie lieutenant-colonel, to investigate the applicant's allegations.

On 28 February 1996 the newly appointed Lieutenant- Colonel Alpı instructed the Lice 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 28 February 1996 Lieutenant-Colonel Alpı instructed the Diyarbakır police headquarters to take a statement from one Abdurrezzak İpek in respect of allegations of village destruction and disappearances. According to this letter, Abdurrezzak İpek was born in 1959 and living in Diyarbakır.

The Diyarbakır police headquarters forwarded a copy of the statement taken from Abdulrezak İpek on 8 March 1996 and a copy of his identity card to Lieutenant-Colonel Alpı.

Abdulrezak İpek stated in his statement that he did not even know where Türeli village 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, this Abdulrezak İpek was born on 1 January 1959.

On 12 March 1996 the Lice gendarmerie commander replied to Lieutenant-Colonel Alpı's requests and enclosed copies of two pages of custody ledgers and copies of two pages of operation logbooks in which the day-to-day activities of the Lice gendarmerie were recorded. The Lice commander further stated in his letter that his soldiers had not conducted an operation in Türeli village on 18 May 1994 and that Servet and İkram İpek had not been detained. The letter further states that Major Şahap Yaralı had been Lice gendarmerie commander on 18 May 1994 but he had since been posted to another town in central Anatolia. Sergeant-Major Şükrü Günlükçü had been commander of the Tepe gendarmerie station in whose jurisdiction Türeli 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 the Court. They do not contain the names of İkram or Servet İpek. A copy of the daily activities logbook kept at the Lice gendarmerie station does not mention any operation planned, or conducted, at the relevant time.

On 25 March 1996 Lieutenant-Colonel Alpı concluded his investigation report. He came to the conclusion that no operation had been conducted by security forces in Türeli village on 18 May 1994 and that the security forces had not even gone to that village on that day. LieutenantColonel Alpı further considered that the statement taken from Abdurrezzak İpek in which the latter stated that he was not from Türeli 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 Lice governor's office on 1 April 1996.

On 16 May 1996 the Lice District Administrative Council, under the presidency of the Lice Governor, decided on the basis of the information submitted by Lieutenant-Colonel Alpı 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 18 October 1996 the Diyarbakır Regional Administrative Court (Diyarbakır Bölge İdare Mahkemesi), 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 Abdurrezzak İpek since his address was unknown to the authorities. Thus, the Lice Governor ordered the publication of this decision in a newspaper.

Finally, the applicant has submitted a letter dated 21 January 2000 and signed by Şakir Yolur, the father of Seyithan Yolur and the uncle of Sait and Nuri Yolur who were allegedly taken from the village by soldiers and detained together with the applicant's sons.

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

Mr Yolur made inquiries at various military establishments in the region and sent a telegram to the Chief of Staff of the Turkish Armed Forces in Ankara (Genel Kurmay Başkanlığı) 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 Court conducted an investigation with the assistance of the parties. In this respect, three delegates of the Court took oral evidence between 18 and 20 November 2002 from eight witnesses. A further three 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 Dahlezeri outside Türeli village between 1969 and May 1994 when the “Government destroyed the hamlet.” About twenty 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 two military raids had taken place on the hamlet on 18 May 1994. The first raid began around noon, at the time of the midday prayer. The soldiers gathered all the inhabitants (about a hundred) 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. Six persons, including his sons, İkram and Servet, 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 6 p.m., 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 Turkish. The applicant later mentioned in his evidence that other villages had been burned that day, including Türeli.

The applicant confirmed his belief during questioning that the raids were conducted by soldiers. He related that they were dressed as such, carried G-3 or G-1 rifles and used military vehicles and helicopters during the raids. The applicant stated that he had never seen any members of the PKK in the hamlet. While there may have been clashes between the PKK and the security forces away from the area, there had never been any clashes in his neighbourhood. He maintained that there had been no PKK members in the hamlet. When questioned, the applicant stated that PKK 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 Lice. Soldiers from Lice had come to the area in the past to carry out checks. The applicant also affirmed that his sons İkram and Servet had never been arrested by the security forces before the operation on 18 May 1994, and he could offer no explanation as to why they had been taken away. His son, İkram, had returned home from Ankara two days before the military operation to enjoy a rest. His other son, Servet, 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 Kulp, Lice, Istanbul and Ankara, as well as to the Human Rights Association in Diyarbakır. He deposed that, following the events of 18 May 1994, he had obtained from a soldier the name of the commander in charge of the operation, a Major Osman Duman. He had never disclosed that information to anyone before.

The witness had been married to İkram İpek for six months at the relevant time. She stated that her husband had just returned to the hamlet from Ankara where he had spent three months. On the morning of 18 May 1994 her brother-in-law, Servet İpek, 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 11 a.m. and that the burning took place at noon.

When the inhabitants were outside the school, the soldiers took their identity cards. Six people, including her husband İkram and her brother-in-law Servet, 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 1 p.m. 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 around 6 p.m. with orders to kill the inhabitants. Houses 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 7 p.m. but ordered not to stay in the hamlet. The witness went to live with her parents in Diyarbakır.

The witness had no doubts that the operation was carried out by Turkish soldiers. She was unable to assess how many soldiers were involved. She testified that there were no members of the PKK living in the hamlet and that she had no recollection of PKK 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 İkram and Servet İpek. He stated that the events under investigation had taken place on 18 May 1994 when soldiers arrived in the village. He estimated that five thousand soldiers were involved in what he referred to as the “general operation.” The soldiers approached the hamlet on foot from Pilgrimage Hill 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 six of the villagers including his brothers İkram and Servet İpek and the three Yolur 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 noon.

Some villagers attempted to extinguish the flames. However, the soldiers returned around 4 or 5 p.m. 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 PKK 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 Türeli village about a half an hour 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 İkram and Servet 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 Kiran neighbourhood. His father had written down the name.

The witness stated that he had been born in Dahlezeri hamlet. However, at the beginning of 1994 he was living in Diyarbakır. There were twenty households in the hamlet and all the families were in some way related. He knew both İkram and Servet İpek. The witness had returned to the hamlet two days 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 17 May 1994 and that there may have been thousands of them involved in the operation. On the following day, 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 five or six soldiers stood guard around the inhabitants outside the school, and he estimated that there may have been sixty to seventy, maybe even a hundred, soldiers involved in the operation in the hamlet.

According to the witness, the school where everyone was grouped was ten metres away from the hamlet. He could see the fires burning in the hamlet. The villagers' identity documents were taken by the soldiers and six of them (himself, Abdülkerim Yolur, Sait Yolur, Seyithan Yolur, İkram İpek and Servet İpek) 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 Seyithan Yolur would be taken to Lice and conscripted into the army since he had evaded his military service. The witness estimated that the six of them left with the soldiers around 9 to 10 a.m. 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 late afternoon. However, rather than being released, they were then taken in an open-top military vehicle to Lice along with fifty or sixty soldiers. He could see smoke rising from the villages along the route to Lice. 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 about one hundred and fifty persons were lying down in front of the establishment. Their identity cards were collected. The witness stated that he and two others (his brothers Sait and Abdülkerim Yolur) were taken to a custody room where they spent the night. They were never ill-treated during this time. In the morning their identity documents were returned and they were told to leave. The last time that he saw İkram and Servet 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 two brothers were released whereas the İpek brothers and Seyithan Yolur 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-3s. He had never heard of any PKK 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 Osman Duman.

The witness stated that he was from the same hamlet as the İpek family. All the families living there were related. He had returned to the hamlet on 17 May 1994 from Aydın for a visit. Soldiers on foot raided the village between 11 a.m. and noon on 18 May 1994. He was certain that they were soldiers since they were carrying G-3s. 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 one side, women on the other. The soldiers took everyone's identity documents. He could see the hamlet being burned. Six of them (himself, Mehmet Nuri Yolur, Sait Yolur, Seyithan Yolur, İkram İpek and Servet İpek) were requested to carry the soldiers' bags up to Türeli village. The soldiers kept their identity documents, but returned the identity documents of the persons who remained behind. They set off around noon with the soldiers for Türeli village, which was burning. They reached the outskirts around 2 p.m. Rather than being released as promised, they were made to await the arrival of military vehicles from Lice to take the soldiers back. The witness stated that Türeli village was burning at the time, although they did no go into the village and they did not see any villagers. The six of them got into one of the vehicles and set off towards sunset for Lice. According to the witness there were about one hundred soldiers in the truck. When they arrived in Lice, at the “Regiment”, they were made to lie on the ground and were divided into two groups of three. The witness was unable to confirm whether, apart from the six, there were other persons lying on the ground. One group comprised İkram and Servet İpek and Seyithan Yolur. The witness stated that this was the last occasion on which he saw them. Their names were read out. He and his brothers, Mehmet Nuri and Sait, were taken inside the “Regiment” and spent the night in a cell-like room as the soldiers' guests since by that stage it was dark. They were well-treated. There were two 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 the night. He confirmed that the cell door was locked and guarded. The following morning they were handed their identity documents and released. He returned to the hamlet where he remained for one or two nights, sleeping in the open. When questioned, the witness stated that he had no explanation as to why İkram and Servet İpek and Seyithan Yolur had been detained. He had no knowledge of any PKK activity in the area and had never heard of a Major Durmuş.

The witness stated that seventeen or eighteen villages might have been burned on 18 May 1994.

The witness stated that he had been serving in Diyarbakır when he was appointed on 2 February 1996 to investigate the applicant's complaints. He found no records at the Lice District Gendarmes Headquarters to indicate that İkram and Servet İpek had been taken into custody or that an operation had been conducted on 18 May 1994 by the gendarmes or military units. The commander at Lice 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 İpek brothers had been detained. According to the witness there was no need to obtain the operational records of the military, given that the Lice District Gendarmes Commander 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 the Lice District Gendarmes Commander would have been aware of this. The witness reaffirmed that he had established through the Lice District Gendarmes Headquarters that no operation had been conducted in or around 18 May 1994. 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 1994. 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 Türeli 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 Dahlezeri hamlet or Türeli 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. The Lice District Gendarmerie Headquarters 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 the Lice District Gendarmes Headquarters 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 PKK.

The witness declared that, with the exception of the first name and family name, he had no personal identification details of the applicant Abdürrezzak İpek at the time of his investigation. Thus, when someone of the same name was located and questioned by the Diyarbakır 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 Şahap Yaralı had not been questioned since it could not be established that the İpek brothers had been taken into custody and, in addition, Captain Şahap Yaralı had been posted out of the area by the time he undertook his investigation.

The witness confirmed that he had been the Lice District Gendarmerie Commander in 1994 and that his responsibilities included overall command of the Tepe gendarme station. His responsibilities had included Türeli village. He deposed that no military operations had been carried out in the area under his jurisdiction on 18 May 1994. Had any such operation been conducted on that day, 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 18 May 1994. Notification of planned military operations was established practice.

The witness stated that no purpose would have been served by visiting the Dahlezeri hamlet or Türeli village 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 PKK. The witness observed that there must exist a minute recording that an officer had questioned former inhabitants of the Dahlezeri 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 İpek 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 Osman Durmuş, stated that there had been a Major Osman in the region at the time of his service there. He recollected that Major Osman was in the area in an advisory capacity to one of the battalions which was responsible for overseeing the local elections.

The witness was the commander of the Tepe gendarme station between October 1993 and July 1994. He was responsible, inter alia, for ensuring the security of Türeli village and its inhabitants. He stated, however, that he had never been to Türeli or Dahlezeri during his term of service at the Tepe 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 Türeli village for the purposes of carrying out investigations. The witness deposed that no military operation had been conducted on 18 May 1994 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 twenty-four hours 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 Diyarbakır. 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 Dahlezeri hamlet had been destroyed and that the applicant's two 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 Abdurrezak İpek or any other person. The witness further deposed that he had never been questioned by the Turkish authorities in relation to the applicant's allegations before the Court. The witness never heard of a Major Osman Duman serving in the area in question. However, he might have served in another division or at the Lice infantry battalion, which was stationed in an unused school.

Article 125 of the Constitution 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 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.

The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:

“... actions for compensation in relation to the exercise of the powers conferred by this Law 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 (Article 179 generally, Article 181 in respect of civil servants);

(b) to subject an individual to torture or ill-treatment (Articles 243 and 245);

(c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450);

(d) to oblige an individual through force or threats to commit or not to commit an act (Article 188);

(e) to issue threats (Article 191);

(d) to carry out an unlawful search of an individual's home (Articles 193 and 194);

(f) to commit arson (Articles 369, 370, 371, 372), or in case human life is endangered aggravated arson (Article 382),

(g) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or

(h) to damage another's property intentionally (Articles 526 et seq.).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, 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 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 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 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).

If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). An appeal against the local council's decisions lies to the Supreme Administrative Court; 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 Article 41 of the Civil Code, 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 Article 46 of the Civil Code may compensate pecuniary loss and non-pecuniary or moral damages awarded under Article 47.

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 the Aid and Social Solidarity Fund.

Since approximately 1985, serious disturbances have raged in south-east Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). 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 provinces of Turkey have been made under the Law on the State of Emergency (Law no. 2935 of 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmes' Public Peace Command 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 State security prosecutors and courts established throughout Turkey.

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. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 41 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 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 the Administrative Council. These councils are composed of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

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:

“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 State for damage suffered by them without justification.”


The applicant was born in 1950 and lives in Kharkiv.

The applicant is the grandmother of a minor P.E. born in 1990. After the death of her daughter, her son-in-law, P.V., did not allow her to see P.E.

On 10 January 1997 the applicant instituted proceedings against P.V., seeking permission to see her granddaughter regularly.

On 3 December 1999 the Ordzhonikidzevsky District Court of Kharkiv (hereafter “the Ordzhonikidzevsky Court”) allowed the applicant's claim in part.

On 18 January 2000 the Kharkiv Regional Court quashed this decision and remitted the case for a fresh consideration.

On 7 July 2000 Ordzhonikidzevsky Court found against the applicant.

On 5 September 2000 the Kharkiv Regional Court quashed this decision and remitted the case for a fresh consideration.

On 20 June 2001 the Frunzensky District Court of Kharkiv allowed the applicant's claim in part.

On 9 January 2002 the Kharkiv Regional Court 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 the Tutelage Board. The applicant was informed that she could re-lodge her claim after exhausting this possibility.

On 14 August 2002 the Supreme Court upheld the ruling of the Kharkiv Regional Court of Appeal, thereby terminating the proceedings. The applicant received the copy of this ruling by regular mail on 7 October 2002.


The applicant is a citizen of the Federal Republic of Yugoslavia, belonging to the Muslim Kosovo-Albanian community. She was born in 1976 in Rezalle and is living in Regensburg. She is represented before the Court by Mr Franz Auer, a lawyer practising in Regensburg.

The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice.

On 20 November 1994 the applicant left her country in the company of her mother and her five brothers and sisters, born in 1974, 1979, 1981, 1982 and 1984, respectively. They arrived in the Federal Republic of Germany on 25 November 1994 and applied for political asylum.

When interviewed on 30 November 1994 before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), 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 17 June 1993 was granted political refugee status in Germany. She did not wish to be left on her own in Yugoslavia.

On 12 April 1995 the Federal Office for Refugees granted the applicant's mother and her four minor brothers and sisters asylum. Her sister of full age was granted a residence permit on account of her marriage in Germany.

In a separate decision of the same date, the Federal Office for Refugees refused the applicant's request for asylum and requested her to leave the Federal Republic of Germany within a month's time. The Federal Office found that the applicant had not established a real risk of persecution, if she were to return to her country. The Federal Office added that it could not consider humanitarian or personal grounds or questions arising in connection with Article 6 of the Basic Law (Grundgesetz) protecting marriage and family life, the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens (Ausländerbehörde).

On 25 April 1995 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 Yugoslavia having regard to the established political persecution of her father. She had left her country because as a member of the Albanian community in Kosovo 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 Article 8 of the Convention.

On 12 January 1996 the Regensburg Administrative Court (Bayerisches Verwaltungsgericht Regensburg) dismissed the appeal. The Administrative Court found that the Kosovo Albanians were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in Yugoslavia.

Furthermore, a decision rejecting the application for asylum would not, in the court's view, violate Article 8 of the Convention. Under the relevant rules of the Aliens Act (Ausländergesetz), the applicant could not be granted family asylum since, at the time of introducing her request for asylum, the applicant was more than 18 years old 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 Germany, unless specific circumstances justified an exception to the 18-year age limit. According to the Administrative Court, 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 Germany. The Administrative Court noted also that the applicant's uncle lived in Kosovo and that she seemed to be on good terms with him. The applicant's understandable wish to stay with her family in Germany did not constitute a legal obstacle to her intended expulsion. Finally, the Administrative Court 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 (Duldung).

By a judgment of 18 November 1996 the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) 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 June 1998 the applicant thereupon applied with the Regensburg District Authority (Landratsamt) for a decision that the intended expulsion be prohibited under Section 53(4) of the Aliens Act, taken together with Article 8 of the Convention.

In ensuing correspondence with the applicant’s representative, the District Authority, in a letter dated 3 September 1998, stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in Kosovo. Having regard to the applicant’s petition with the European Commission of Human Rights, no decision would be taken as long as these proceedings were pending.

Since 23 February 2000 the applicant’s provisional residence permit has not been prolonged. She has been ordered to leave the territory of the Federal Republic of Germany and she has been issued travel documents. The time-limit for leaving Germany voluntarily has been regularly prolonged.

On 1 July 2000 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 16a(1) of the Basic Law) enjoy legal status pursuant to the Geneva Convention on Refugees and are issued with an unlimited residence permit (section 68 of the Asylum Procedure Act).

Section 51 of the Aliens Act 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 the Geneva Convention 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 Article 16a(1) of the Basic Law or section 51(1) of the Aliens Act, the Federal Office is obliged to examine whether an applicant faces a serious risk of treatment contrary to Article 3 of the Convention if he were returned. Section 53(4) of the Aliens Act prohibits expulsion in such circumstances.

If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, 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 three months, renewable by the authorities.

The administrative authorities in charge of matters concerning aliens have to examine under Section 55 whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons.