Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant, Mr Rihards Ruža, is a Latvian national who was born in 1973 and is being held in custody in Daugavpils prison. He was represented before the Court by Ms I. Znotiņa, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine.

The facts of the case, as submitted by the parties, may be summarised as follows.

Criminal proceedings against the applicant

On 26 October 2004 the applicant was arrested on suspicion of burglary. On 29 October 2004 he was remanded in custody. On 8 November 2004 a charge of burglary was brought against him. On 16 December 2004 the detention order was lifted and the applicant was released.

On 13 January 2005 the applicant was arrested on suspicion of burglary and the following day he was remanded in custody. The applicant was placed in Daugavpils prison, which, at the time, had recently been converted into a remand centre (see paragraph 23 below). On 18 January 2005 a charge of murder was brought against the applicant.

On 16 March 2005 charges of burglary and aggravated murder were brought against the applicant and, after the applicant had become acquainted with the case materials, a final bill of indictment was issued on 31 March 2005.

On 12 May 2005 the Latgale Regional Court found the applicant guilty as charged and sentenced him to sixteen years' imprisonment. The applicant appealed against that judgment. His appeal was admitted on 22 June 2005.

The proceedings are currently pending and the next hearing before the appellate court is scheduled for 15 June 2010.

Applicant's state of health while at liberty

On 17 July 2003 the applicant was released from prison, where he had been serving a sentence following another set of criminal proceedings. Soon after his release, on 30 July 2003, he was admitted to Daugavpils Regional Hospital, where he was diagnosed with chronic pancreatitis and gastritis. He was treated in that hospital for two days after which doctors recommended a course of outpatient treatment and advised him not to consume alcohol. He was also treated in that hospital from 24 to 30 August 2003. Doctors recommended a diet and prescribed Pangrol, a non-prescription drug used for pancreatic enzyme replacement therapy, and advised him not to consume alcohol.

From 12 to 15 January 2004 he was treated for chronic pancreatitis at Daugavpils Regional Hospital. From 1 to 31 May 2004 he was again hospitalised. Among other illnesses, he was diagnosed with liver cirrhosis. He underwent several operations, including a laparotomy, and was prescribed antibiotics and anti-inflammatory drugs. Doctors recommended a course of outpatient treatment under the supervision of a general practitioner.

Applicant's state of health while in custody

The applicant's medical records kept by the Prison Administration contain no reference to the applicant's state of health between 26 October 2004, when he was first arrested, and 8 November 2004, when it appears that he was first seen by a prison doctor in Daugavpils prison. On that date he was diagnosed with chronic pancreatitis. He also had his lungs scanned as a result of which bronchitis was discovered. He was also seen by prison doctors on 12 and 17 November 2004.

On 26 January 2005 a prison doctor diagnosed him with liver cirrhosis and chronic pancreatitis. He was prescribed Pangrol, which he had to pay for himself.

On 18 February 2005 a prison doctor gave him Pangrol and prescribed a further two days' treatment of several medicines including pancreatin and Pangrol, which he also had to pay for himself. On 23 February 2005 a prison doctor noted that a previous course of therapy should be followed, while nutrition plan 4B, which encourages the use of white bread, should be followed for one month. On 25 February 2005 the applicant's condition deteriorated and on 4 March 2005 he was sent to Prison Hospital in Central prison in Rīga.

From 4 to 23 March 2005 the applicant was kept in Prison Hospital and was treated in relation to chronic pancreatitis, liver cirrhosis and chronic gastritis. While there, he received several courses of medication including medication for enzyme replacement therapy. Recommendations from doctors included the use of hepatoprotectors (Carsil and Essentiale) for a duration of one to one and a half months, twice a year. Carsil is a product of plant origin with hepatoprotective and anti-oxidative qualities; it is a non-prescription drug for additional therapy for chronic liver diseases, including liver cirrhosis. It is used for preventive purposes as well.

Upon his return to Daugavpils prison, on 29 March 2005 a prison doctor prescribed Carsil to the applicant. Subsequently, the applicant was prescribed pancreatin and Carsil on several occasions. In addition, nutrition plan 4B was prescribed to the applicant for September and December 2005. On one occasion, the applicant was advised to buy pancreatin, which he had to pay for himself. Overall, the applicant was examined by a prison doctor on twenty occasions in 2005 and different drugs were prescribed, including Carsil on at least seven occasions, pancreatin on at least four occasions and Pangrol on at least one occasion. In addition, on several occasions in 2005, the applicant's mother sent him pancreatin and Pangrol.

In 2006 the applicant's state of health continued to be examined on a regular basis. Overall, he was examined on nineteen occasions. Among other things, the doctor prescribed several medicines and advised the applicant not to smoke. On one occasion the doctor advised the applicant to buy pancreatin and, on another, the applicant was advised to buy hepatoprotectors. On at least three occasions Carsil was prescribed and on at least two occasions he received white bread for a month. In addition, from 3 to 17 May 2006 the applicant was treated in Prison Hospital and received further medication.

In 2007 the applicant's state of health continued to be examined in Daugavpils prison where medication was prescribed on several occasions. On one occasion the applicant was prescribed to follow nutrition plan 4B and, on another, to receive white bread for a month.

Review of complaints by the applicant

On 20 January 2006 a prosecutor from the Specialised Public Prosecutor's Office replied to the applicant that, pursuant to Cabinet Regulations no. 358 (1999), only primary medical assistance was provided free of charge to detainees; detained persons suffering from chronic illnesses had to pay for necessary medicine themselves.

On 6 April 2006 the applicant complained to the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) that the medical assistance in Daugavpils prison was inadequate. In particular, he complained that, as a person suffering from chronic pancreatitis and liver cirrhosis, he had not received adequate medical treatment or nutrition plan 4B.

Between 6 April and 9 May 2006 an expert examined the applicant's complaint in the course of administrative proceedings initiated by MADEKKI. She concluded as follows:

(a) the applicant had been diagnosed with liver cirrhosis, chronic pancreatitis and chronic gastritis;

(b) the applicant had been examined by prison doctors on a monthly basis in 2005, he had received adequate treatment in compliance with Cabinet Regulations no. 358 (1999);

(c) he had been examined and treated in Prison Hospital in 2005; upon his release from hospital, it had been recommended that he use hepatoprotectors twice a year, which he had had to pay for himself;

(d) there had been no grounds for prescribing nutrition plan 4B for the applicant in relation to his illnesses pursuant to Cabinet Regulations no. 155 (2002) even though a doctor had prescribed it to him on two occasions;

(e) the applicant had also been placed in the Prison Hospital in May 2006 in order to carry out medical analyses and examinations necessary for confirming the diagnoses.

On 10 May 2006 MADEKKI decided to terminate the administrative proceedings on the basis of the expert's conclusions and concluded that no breaches in relation to the applicant's medical care had taken place. The applicant did not appeal against that decision.

On 22 September 2006 the Prison Administration replied to the applicant that he had received nutrition in accordance with applicable domestic rules contained in Cabinet Regulations no. 155 (2002) and in Cabinet Regulations no. 339 (2002). Those regulations had been drawn up in co-operation with the Latvian Nutrition Centre and ensure sufficient nutrition.

On 10 May 2005, following its second periodic visit to Latvia, which had taken place from 25 September to 4 October 2002, the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”) published its report. The CPT had made a full visit to Daugavpils prison and noted the following:

“66. Daugavpils Prison, which was built in 1861 in the city centre, is a closed prison for male prisoners (sentenced and on remand). Its official capacity had recently been increased from 543 to 800 inmates. At the time of the visit, the establishment was holding 762 prisoners, of whom 310 were sentenced and 443 on remand (including 24 juveniles). In addition, nine sentenced prisoners, held in a semi-open regime, were assigned to work in the establishment.

At Daugavpils Prison, the health care staff included three full-time doctors (general practitioner, narcologist and psychiatrist/narcologist) and three part-time doctors (general practitioner, dentist and surgeon), as well as two full-time feldshers and three nurses (including one part-time). However, the establishment did not have a psychologist.

Health care staff were present on working days between 8h00 and 21h00, and on weekends between 9h00 and 17h00. Each shift comprised one doctor, one nurse and one feldsher. For the rest of the time, a prisoner, who was working as an auxiliary within the health care unit, made an initial medical assessment of fellow inmates and then called the ambulance, if needed. On occasion, the Head Doctor was also called in outside working hours.

The CPT is seriously concerned about the absence of qualified health care staff at night in an establishment which accommodates almost 800 prisoners and which, in addition, has an infirmary with in-patients. Further, to entrust a prisoner with the medical examination of fellow inmates is totally unacceptable.

At Daugavpils Prison, medical screening of newly-arrived prisoners was always performed by a doctor within 24 hours of admission. Blood tests (in particular for HIV and syphilis) were carried out with the prisoner's consent, and a fluorogramme was organised. Medical record cards for each prisoner were well-kept. Medical records were sought from a prisoner's previous doctor, if requested.

At Daugavpils Prison, the delegation gained a generally favourable impression of the quality of health care provided to prisoners. ...

In both establishments visited, the delegation received a number of complaints from prisoners about access to medical treatment (especially regarding dental care). As in 1999, dental care was limited to emergency treatment and extractions (cf. paragraph 131 of the report on the 1999 visit). The CPT reiterates its recommendation that the Latvian authorities take steps to provide appropriate medical treatment - including conservative dental care - to all prisoners in Latvian prisons; this treatment should be free of charge for those prisoners who are not in a position to pay for it.”

On 13 March 2008, following its ad hoc visit to Latvia, which had taken place from 5 to 12 May 2004, that is to say seven months prior to the applicant being placed in Daugavpils prison, the CPT published its report. The CPT had visited Daugavpils prison and made the following remarks:

“38. All establishments visited have already been described in paragraph 66 of the report on the 2002 visit. The general descriptions contained in that report still remain valid.

Daugavpils Prison had recently been formally transformed into a remand institution, although it was still accommodating sentenced prisoners as well. Its official capacity had been reduced from 800 to 543 places (including 43 juveniles). At the time of the 2004 visit, the establishment was accommodating 426 inmates, of whom 101 were sentenced and 314 on remand (including 29 juveniles).

At Daugavpils Prison, the delegation observed some improvements to the health-care services provided. By way of example, there were now four well-equipped quarantine rooms and medical confidentiality was respected.

However, the CPT noted with concern that not all newly-arrived prisoners were medically screened upon admission. The lack of psychologists and a psychiatrist also constituted a serious shortcoming. Further, there was still no qualified health-care staff present at night.”

The relevant provision of the Law on Medical Treatment (Ārstniecības likums), in force at the material time, reads:

Section 10

“The quality of professional health care and work disability expert examinations in medical treatment institutions shall be controlled by the Inspectorate of Quality Control for Medical Care and Working Capability ....”

Cabinet Regulations no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows:

“2. Convicted persons shall receive free of charge the minimum standard of health care in accordance with the amount established by the Cabinet of Ministers. In addition, the Prison Administration, within its budgetary means, shall provide to convicted persons:

2.1. primary, secondary and (in part) tertiary medical care;

2.2. emergency dental care;

2.3. medical examinations;

2.4. preventive and anti-epidemic measures;

2.5. medication and injections prescribed by a doctor of the institution;

2.6. medical accessories.

Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment ... Detained persons shall be sent to receive in-patient treatment only when acute circumstances are present.

Cabinet Regulations No. 339 (2002), in force at the material time and effective until 20 June 2008, lay down nutrition guidelines for detainees held in pre-trial detention facilities. It provides that detainees who are ill shall receive nutrition plan 4A. More specifically, detainees diagnosed with certain conditions, for example those who are HIV-positive, shall receive nutrition plan 4B.


The applicants, Mr Saydam Hüsnü Baybora, Mr Hüsnü Mullaz Fevzi Baybora, Mrs Radiye Baybora, Mr Selçuk Baybora, Mr Gültekin Baybora and Mrs Aydaner Gökçen. They were born in 1940, 1913, 1918, 1944, 1947 and 1950 respectively and live in Ertenköy (Kokkina), Cyprus. They are represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in Turkey.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant was living in Erenköy (Kokkina), Cyprus, when he was abducted on 1 January 1964 by forces under the control and/or the responsibility of the respondent Government. The second and third applicants are the father and the mother of the first applicant. The other applicants are his brothers and sister.

The applicants submit that in 1964 their village had run out of food supplies because hostilities between the two communities had prevented any form of safe transportation of food. On 1 January 1964 the first applicant, together with his friend, Lütfi Celul Karabardak, who owned a bus, took this bus and headed towards the Turkish-Cypriot town of Lefke. On the way, whilst passing through the Greek-Cypriot village of Pyrgos, he and his friend were abducted by a group of armed Greek-Cypriots, including a police officer, and taken to an unknown destination. They were never heard of again.

The persistent efforts of the relatives to ascertain the fate of the missing persons were in vain. Subsequently, on 4 April 1989, the first applicant’s case was submitted to the appropriate authority on missing persons, the United Nations Committee on Missing Persons in Cyprus (“CMP”) (case number 146).

According to the personal diary of a certain Georghiou Luca, a teacher from the Greek-Cypriot village of Mosphileri, which was found in the possession of a Turkish-Cypriot journalist, the missing persons were “executed” summarily in the Greek-Cypriot cemetery of Pyrgos village by armed Greek Cypriots named Mouzouri and Pari “on the instructions of the Headquarters” (the code-name of the then Minister of Interior, Polycarpos Georghadjis). Through the intermediary of the Turkish-Cypriot member of the CMP, the relatives submitted this additional information to the CMP in the hope of finding out what really happened to the missing persons.

According to the applicants, a number of requests were made to the CMP to conduct an effective investigation into the fate of the first applicant and his friend. However, there was no response to their requests and no hint of any effective investigation having been undertaken. The third applicant wrote to Amnesty International in London. He stated in his letter that all of their enquiries had so far borne no results and that the Greek-Cypriot Administration had persistently refused to investigate the matter. Amnesty International answered by saying that it appeared that while the CMP may have investigated quite a number of cases submitted to it, it has not been able to bring any of these investigations to a conclusion because the Committee members have been unable to come to an agreement about the Committee’s working methods.

The accidental discovery of human remains in 1996 in the Kato Pyrgos region raised a hope for the applicants. However, a scientific report drafted by an American company, following the study of a bone sample, concluded that the individuals whose remains had been found had lived between 1030 and 1240 AD.

On 2 March 2001 the Office of the Greek Cypriot Member of the CMP sent to the CMP the following letter:

“I am referring to the human remains which were accidentally discovered four years ago in Kato Pyrgos. My letter dated 10.12.1999, as well as your letter dated 14.4.2000 on this issue, are hereby appended for any reference.

Further to a conversation you had with Mr Georgiades concerning recent developments on the matter, I wish to inform you that on two separate occasions, members of the team of the Physicians for Human Rights, assisted by our investigating officer and myself, searched the area for additional skeletal remains. All remains were subsequently taken to the laboratory of the Physicians for Human Rights in Cyprus for anthropological analysis, and for decent keeping.

Moreover, skeletal samples were sent to a laboratory in U.S. for specialised tests in order to ascertain the period that the remains were buried. The report of the laboratory concerning the remains is appended, as well as a letter by Dr W. Hagkund Director PHR Cyprus Project.

We would be most grateful if you could inform accordingly the Office of the Turkish Cypriot Member of the CMP of this development. We strongly suggest that the Turkish Cypriot family, which claimed in the press that the remains might belong to their missing father, should also be informed of the results of the scientific analysis by you too. We are at your entire disposal for any further information ...”.


Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant, a Turkish citizen of Kurdish origin, was born in 1966 and lives in Switzerland where she has been granted political asylum. She was the wife of Necati Aydın, whose body was found on 9 April 1994 in a location outside Diyarbakır, with his hands tied at the back. He had been shot in the head with a single bullet.

The facts of the case, particularly those events which occurred between 18 March 1994 and 9 April 1994, are disputed by the parties.

The facts as presented by the applicant are set out in Section B below (paragraphs 14-30). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 31-37). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 38-73).

The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 § 1 (a) of the Convention. It appointed three delegates (Mr Jean-Claude Geus, Mr Marek Nowicki and Mr Marc Vila Amigó) who took evidence in Strasbourg on 17 September 1999 and in Ankara from 22 September 1999 to 24 September 1999. They interviewed the applicant as well as the following 11 witnesses: Ms Yasemin Aydın, Mr Şemsettin Aydın, Mr Sezgin Tanrıkulu, Mr Arif Altınkalem, Mr Bekir Selçuk, Mr Rıdvan Yıldırım, Mr Sami Güngör, Mr Ramazan Sürücü, Mr Yusuf Ercan, Mr Ali Uslu and finally Mr Cemil Çelik. A summary of the oral evidence given by these witnesses is found in Section E below (paragraphs 74-129).

Three other witnesses, Mr Osman Yetkin, Mr Raif Kalkıcı and Mr Tahir Baboğlu, were also summoned but did not appear before the Commission’s delegates.

Following the questioning of the above mentioned witnesses, the Commission considered it important to hear two police officers who had accompanied Necati Aydın and Mehmet Ay to the Diyarbakır State Security Court (see paragraph 116 below). The Commission informed the parties on 27 September 1999 that the delegates wanted to interview the police officers in Strasbourg on 28 October 1999. The Government were requested to identify the two police officers and summon them for the hearing in Strasbourg. The Government asked the Commission to explain why a need was felt to hear the police officers in person as opposed to questions being put to them in writing, and further asked the Commission to reconsider its decision. Despite the Commission’s repeated explanations, the Government failed to identify the witnesses and informed the Commission on 26 October 1999 that they did not have time to identify the two police officers and therefore they would not be able to ensure their attendance at the proposed hearing. The Commission was therefore obliged to cancel the proposed hearing.

In 1994 the applicant was working as an anaesthetics nurse, and her husband, Necati Aydın, as an environmental technician. They were civil servants. Necati was also the president of the Health Workers’ Trade Union (Tüm Sağlık Sen). Previously, the applicant and her husband had been subjected to harassment and arrest by the security forces. Their activities on behalf of the trade union had drawn the unwelcome attention of the security forces and the police to them.

In March 1994 the applicant and her husband did not have a permanent residence as they had been subjected to several transfer orders and had been moving around Turkey to various places of work. The applicant was six months pregnant at the time.

On 18 March 1994 the applicant and her husband were at the house of Necati’s relative, Mehmet Hafif Ay, in Diyarbakır. At that time, a large number of relatives were also in the house. At approximately 8.30 p.m. police arrived at the house with Mr Mehmet Ay, whom they had arrested earlier at a coffee shop. The police officers entered the apartment. They asked for the identity cards of all those present, and questioned various members of the family. The police then took into detention all the family members present, including a five year old child.

The detainees were placed in vehicles. The applicant was placed in a car by herself and was accompanied by at least two police officers. In the vehicles the detainees were blindfolded and they were then brought to the rapid response force building (Çevik Kuvvet) for interrogation. The applicant was not feeling well due to her pregnancy.

When they arrived at the rapid response force building, the applicant was made to sit in a corridor waiting to be brought in for interrogation. As she sat in the corridor she could hear the screams of her husband as he was being tortured.

The applicant was taken in for interrogation at least three times. The first time, the applicant was questioned about where her husband had been during certain periods. The second time she was taken in, her husband was also present. Her blindfold was removed momentarily so that she could see her husband. She saw him naked and blindfolded in the middle of the room. His body was wet and he was crouched over, shivering. The applicant was made to listen while he was interrogated. During this time Necati gave a response to the police which contradicted an answer provided by the applicant. When this happened, Necati was removed from the room and the applicant was grabbed by the hair and slapped in the face.

On the third occasion the applicant was taken in for interrogation, the police ordered her to strip naked. Her husband was also in the room. The police threatened him that they would harm her if he did not answer their questions. The applicant was frightened and her condition deteriorated. She was removed from the room. Outside the room, the applicant was told by the police officers, “Do you know Yusuf Ekinci? His body was found in an empty lot. I do not think you want your husband to end up the same way”. On each occasion that she was removed from the room, she could hear the screams of her husband as he was being tortured.

The applicant was taken from the rapid response force building to the Diyarbakır police station. She was put in a cell with Ms Hüsniye Ay and the latter’s children, where they were kept for four nights. The applicant was released on 22 March 1994, without having been brought before a judge. During her time in detention, she had not been given the right of access to a lawyer, prosecutor or judge.

Ms Yasemin Aydın, a relative of the applicant’s husband who, as president of the Patriotic Women’s Association, was politically active on behalf of Kurdish women, was also detained and was tortured during her detention. This torture included hanging, beatings, electric shocks, insults and threats of rape. During her detention she was asked questions about the activities of Necati Aydın and Mehmet Ay. She was released on 29 April 1994, having been brought before Prosecutor Osman Yetkin.

On 4 April 1994 the applicant’s husband and his cousin Mehmet Ay were finally brought before the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). At 12.45 a.m. the two were taken for a medical examination. At 9 a.m. the two men signed for their possessions. At approximately 2 p.m. Mr Sezgin Tanrıkulu, a lawyer who had come to the Diyarbakır Court that day, saw Necati Aydın being brought into the court building. After that, there were only a few persons who witnessed what happened to the two men.

The records from the proceedings show that the Prosecutor demanded that they remain in custody, but the duty judge ordered their release that day. The Prosecutor lodged an objection to Mehmet Ay’s release with the Third Chamber of the Diyarbakır Court, but the appeal was rejected on 5 April.

At the time of their appearance before the judge, no lawyer was allowed to be present.

Despite the order of release from the Diyarbakır Court, the two men never emerged from the front door of the court building where family members and friends of the two men were waiting. When Sezgin Tanrıkulu came out of the building at approximately 2 or 2.30 p.m., he informed Hafif Ay that he had seen the two men. Mr Şemsettin Aydın, Necati’s father, was also waiting. He had, in fact, been waiting for his son outside the court building for several days. The only times he was not outside the court building was when he had gone to the coffee house to pray, which would have taken him 15 minutes at some stage between 11.30 a.m. and 1.30 p.m. and again about 15 minutes between 4 and 4.30 p.m. According to Şemsettin, if Necati had been released during those 15-minute periods, he would have been told about this by other people who were waiting there. The only other exit which the men could have used to leave the court building was a door located in the basement of the Diyarbakır Court, adjacent to the registry of the court. That exit could only be used by police vehicles. Persons in the registry informed lawyers that they had seen Necati exit from that door.

The following day, 5 April 1994, the families of the two men applied to the Prosecutor in order to obtain information. The Prosecutor told them that Necati Aydın and Mehmet Ay had been released and that they had not been re-arrested. When Sezgin Tanrıkulu spoke with Mr Bekir Selçuk, the Chief Public Prosecutor at the Diyarbakır Court, the latter told Mr Tanrıkulu that Necati had probably gone to join the PKK (the Kurdistan Workers’ Party). He said similar things to another lawyer, Mr Arif Altınkalem, when he made enquiries.

On 8 April 1994 Yasemin Aydın was telephoned and asked to meet with Osman Yetkin, the Prosecutor who had released her. Apart from Mr Yetkin, the President of the Third Chamber of the Diyarbakır Court and another prosecutor and judge were also present at this meeting, held at the Diyarbakır Court. Mr Selçuk joined the meeting later. The discussion at this meeting concerned the question how Necati Aydın and Mehmet Ay could have gone missing from inside the court building. The judge at the meeting noted that, apart from the front entrance, there was only one other entrance which was on the ground floor at the back of the building, which was used only by the police to transport prisoners to and from the Diyarbakır Court. The judge wondered whether “the ones with the radio...” could have taken the two men away, but did not finish his sentence. The men also discussed the “dirty games” which were being played in Diyarbakır at the time. At the end of the meeting, Mr Yetkin exchanged telephone numbers with Yasemin Aydın.

On the evening of 9 April 1994 villagers working in a field in the Silvan district near the Pamuklu river, about 40 kilometres outside Diyarbakır, discovered three bodies. The bodies were in a shallow grave approximately 100 metres from the main Diyarbakır-Silvan road. The bodies had their hands tied behind their back and a bullet in the back of the head had killed each of them. They had been buried side by side at a depth of about one metre. The name Süheyla was engraved in a wedding ring which was found in the pocket of one of the dead men. The families identified the bodies of Necati Aydın and Mehmet Ay that evening.

The families retrieved the bodies the following day from the morgue at Diyarbakır State Hospital. Many people who wanted to visit the morgue were turned away. Three teachers, members of the teachers’ union, were taken into custody. While in custody, they were threatened and told that Necati Aydın and Mehmet Ay had been killed in a clash.

Having been arrested on 18 November 1993, the applicant was examined by a doctor on 22 November 1993. According to a medical report drawn up at the time of her release, there were no signs of ill-treatment or torture on her body.

On 4 April 1994 the Anti-terrorist Department in Diyarbakır requested that Necati Aydin and Mehmet Ay be examined by a doctor. As a result of this request, on 4 April 1994 at 12.45 a.m., the applicant’s husband and Mehmet Ay were examined by a doctor, who concluded that there were no signs of ill-treatment or torture on their bodies.

At 9 a.m. they were taken to the chief of the security forces, who drew up a record to the effect that their personal belongings had been returned to them. The applicant’s husband signed this document. Later that day, the applicant’s husband and Mehmet Ay were brought before a judge, who ordered their release. Necati Aydın and Mehmet Ay had then left the court building.

On 9 April 1994, the bodies of the applicant’s husband, Mehmet Ay, and an unidentified person were found buried at a distance of 40 kilometres from Diyarbakır.

The autopsies performed concluded that they had been summarily executed, as the bodies were found with the hands tied behind their backs. As rigor mortis had not yet completely set in, the autopsy report stated that Necati Aydın had been dead for about 24 hours. This meant that the killing must have taken place some four or five days after the release of the applicant’s husband.

An ex officio investigation was opened under file no. 1994/2233 in order to identify the PKK terrorists who were the perpetrators of the murders. The investigation progressed very slowly, as the terrorists who had executed the applicant’s husband were very mobile and often hid in neighbouring countries. They did not tend to return to the scene of the crime and witness statements were difficult to come by, since potential witnesses preferred to keep silent for fear of repercussions and intimidation.

Following the lodging of the application to the Commission, another ex officio investigation was opened in relation to the allegations of ill-treatment and torture during detention. However, on 6 October 1995, the Chief Public Prosecutor of Diyarbakır decided not to prosecute anyone as there was no evidence supporting the applicant’s allegations.

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

According to a report of the arrest and house search, drawn up on 18 March 1994, Necati Aydın, Süheyla Aydın, Mehmet Ay and nine other persons were arrested in a house in Diyarbakır that day at 10 p.m.

A single sentence in a document dated 22 March 1994 relating to nine of the detainees, including the applicant, states that the detainees bore no marks of ill-treatment.

Also on 22 March 1994, the applicant and two other detainees were released by police officers from the Diyarbakır Police upon the oral instructions of the Prosecutor at the Diyarbakır Court.

On 23 March 1994 Kerime Aydın, the sister of Necati Aydın, submitted a petition to the Public Prosecutor’s Office at the Diyarbakır Court in which she expressed her concerns about her brother and asked to be provided with information about him.

On 25 March 1994 the Prosecutor at the Diyarbakır Court informed Kerime Aydın that her brother was being detained at the anti-terrorist branch of the Diyarbakır Police.

On 28 March 1994 a statement was taken from Mehmet Ay while he was in police custody. He stated that both he and Necati Aydın had been members of the PKK.

A statement was taken from Necati Aydın on 30 March 1994. He rejected the allegation that he had been an active member of the PKK. He also rejected the allegation that he and a number of his friends had been trying to set up a private hospital, which would be funded by the PKK and where wounded PKK members would be treated. He admitted that he had been a PKK sympathiser and that he had been arrested in 1992, but the charges against him had later been dropped.

According to a medical report drawn up at the Diyarbakır State Hospital at 12.45 a.m. on 4 April 1994, neither Necati Aydın nor Mehmet Ay bore any marks of ill-treatment.

At 9 a.m. on 4 April 1994, the belongings of Necati Aydın and Mehmet Ay, which had been taken away from them following their arrest on 18 March 1994, were returned to them.

It appears from a letter signed by Ramazan Sürücü, the chief of the anti-terrorism branch of the Diyarbakır Police, that on 4 April 1994 Necati Aydın, Mehmet Ay and a certain Ramazan Keskin were referred to the Diyarbakır Court. It further appears from this letter that Ramazan Keskin had also been detained at the anti-terrorism branch.

On 4 April 1994 the Public Prosecutor at the Diyarbakır Court questioned Necati Aydın and Mehmet Ay. Necati Aydın repeated that he had not been a member of the PKK, whereas Mehmet Ay stated that he had wanted to join the PKK in the past but had not been admitted.

Finally, on 4 April 1994, Judge Raif Kalkıcı of the Diyarbakır Court questioned Mehmet Ay and Necati Aydın. Both Necati and Mehmet confirmed the statements they had made to the Prosecutor earlier the same day. The Judge then ordered their release.

On 5 April 1994 the Third Chamber of the Diyarbakır Court rejected the objection, which had been lodged by the Public Prosecutor at that court, against the decision ordering the release of Necati Aydın and Mehmet Ay.

On 9 April 1994 a report was drawn up by two gendarme officers, Ali Uslu and Cemil Çelik (see paragraphs 120-25 and 126-29 below), and signed by two gendarme privates. The report stated that a certain Mr Mehmet Korucu had come to their gendarmerie station and had informed them that he had found a body, buried in the Pamukçay area. The soldiers had visited the area at 1.30 p.m. and found the partially buried bodies of three men; their hands were tied at the back and each one had been shot in the head by a single bullet. There were no documents on the bodies to help establish their identities. However, the name “Süheyla” was engraved in one of two golden rings found in the pocket of the trousers of one of the bodies. The gendarmes had then informed the judicial authorities of their discovery.

On the same day Rıdvan Yıldırım, the Public Prosecutor of the Bismil district in whose jurisdiction the bodies had been found, visited the area together with Feyzi Kaymak, a doctor. The Prosecutor and the doctor drew up a report in which they recorded that each of the three men had been killed by a single gun shot to the head and that the bullets had exited the bodies. Rigor mortis had not yet set in at the time of the examination, and therefore it was estimated that the victims had been dead for about 24 hours. The doctor concluded on the spot that the cause of death was the destruction of the brain and that there was no need, therefore, for full autopsies to be carried out. After having been photographed in situ, the bodies were transferred to the morgue in Diyarbakır.

According to this report, drawn up by the Prosecutor and the doctor, the body which had been found with the rings, bore a number of ecchymoses. There was a mark on the left shoulder, measuring 3x3 cm, that had been caused by a blow; two ecchymosed areas on the scapular region on the back of the left shoulder, measuring 5x5 cm and 3x3 cm, had been caused by blows; an ecchymosed area on the right scapular region of the shoulder, measuring 4x4 cm, had been caused by a blow; and finally an ecchymosed area on the chondral rib, measuring 6x6 cm, was noted.

On 10 April 1994 the bodies of Necati Aydın and Mehmet Ay were identified by their respective brothers. The third body remained unidentified. The bodies were photographed once more. The Prosecutor at the Diyarbakır Court issued a burial licence for Necati Aydın.

On 18 April 1994 the Bismil Prosecutor questioned Mehmet Naili Aydın, the brother of Necati Aydın. Mr Aydın confirmed that his brother’s release had been ordered by the Diyarbakır Court on 4 April 1994, but his family had not heard anything from Necati until they had been contacted by hospital workers and were told that Necati’s body was in the morgue.

On 26 April 1994 the Bismil Prosecutor questioned Mehmet Nuri Ay, the brother of Mehmet Ay. Mr Ay similarly confirmed that the Diyarbakır Court had ordered the release of his brother and Necati Aydın. He stated that he did not know how they had been killed and that he did not suspect anyone in particular. Mr Ay further stated that the third body, which had been found next to his brother and Necati Aydın, was that of Ramazan Keskin, a university student in Diyarbakır.

Also on 26 April 1994 the Bismil Prosecutor asked the commander of the Bismil gendarmerie to investigate whether the killings had any political aspects.

On 30 May 1994 the Bismil Prosecutor decided that the killing of the three persons had political aspects and therefore his office lacked jurisdiction to continue the investigation. The Prosecutor then sent the investigation file to the Diyarbakır Court which had jurisdiction to investigate the killings.

On 3 May 1995 Bekir Selçuk, the Chief Public Prosecutor at the Diyarbakır Court, sent a reply to a letter which had apparently been sent to him by the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) on 4 April 1995 and which concerned the application made to the Commission by the applicant. Mr Selçuk stated in this letter that his office was overseeing the investigation into the killings. Mr Selçuk was of the opinion that Mehmet Ay and Necati Aydın, both of whom had stopped working for the PKK, had been killed by members of the PKK with the aim of attributing their killings to the State and then making an application to the European Commission of Human Rights. The investigation into the killings was being conducted in the light of this information, but it had not yet been possible to apprehend the members of the PKK who had perpetrated the killings. Mr Selçuk finally stated that an indictment had been filed with the Diyarbakır Court on 30 November 1993 in which the applicant was charged with aiding and abetting a terrorist organisation.

On 6 October 1995 the Public Prosecutor’s Office in Diyarbakır decided not to prosecute six police officers for allegedly having ill-treated Süheyla Aydın during police custody in 1991, 1992 and in 1994. It was noted in this decision that there was no evidence suggesting that her allegations of ill-treatment, detailed in her statement which had been taken from her by a letter rogatory on 4 July 1995, were true. The medical reports drawn up at the time of her releases did not mention any marks of ill-treatment.

On 27 November 1997 Prosecutor Sami Güngör at the Diyarbakır Court asked the Diyarbakır Police and the Diyarbakır Gendarmerie to search for the perpetrators of the killings of Necati Aydın, Mehmet Ay and Ramazan Keskin. According to this Prosecutor, the killings had been perpetrated by a group of PKK members.

On 27 March 1998 a Prosecutor at the Diyarbakır Court sent a letter to the anti-terrorism department of the Diyarbakır Police, requesting that the two police officers, who had questioned Necati Aydın and Mehmet Ay while they were in police custody and had then accompanied them to the Diyarbakır Court on 4 April 1994, be identified.

In his reply of 15 April 1998, the Diyarbakır Police Headquarters informed the Prosecutor at the Diyarbakır Court that Necati Aydın, Mehmet Ay and Ramazan Keskin had been questioned while they were in police custody by police commissioner Taner Şentürk and by a police officer named Hüseyin Karaca. The three detainees had then been referred to the Diyarbakır Court by the Police Commissioner, Ertan Uzundağ, on behalf of Ramazan Sürücü. The letter further states that, as at that time it was not the practice to draw up release reports, the authorities were unable to determine the identities of the police officers who had actually accompanied the three men to the Diyarbakır Court.

On 12 May 1998 a statement was taken from Hüseyin Karaca. He said that on 2 April 1994 he had questioned Ramazan Keskin, the third person whose body had been recovered together with the bodies of Necati Aydın and Mehmet Ay. Mr Karaca stated that he had not questioned Necati Aydın or Mehmet Ay and that he had not accompanied them to the Diyarbakır Court. He assumed that they had been taken there by officers working at the registry of the interrogation department.

On 22 May 1998 the Prosecutor Güngör at the Diyarbakır Court decided that he lacked jurisdiction to investigate the killings as there was no evidence suggesting that the killings had been carried out by members of the PKK and hence it was a case of homicide as opposed to a political killing. The Prosecutor added that the decision of non-jurisdiction of 30 May 1994 (see paragraph 59 above) had been based on presumptions. The file was sent back to the Prosecutor’s Office in Bismil in order for the investigation to continue.

On 28 May 1998 the Prosecutor in the town of İdil contacted his colleague in the nearby town of Bismil and informed him that a number of killings in the area, the majority of which had taken place between 1993 and 1996, had possibly been carried out by the same person or persons. The similarities lay in the way these killings had been carried out and in the weapons used. He asked the Bismil Prosecutor to forward to him details of the killings carried out in the jurisdiction of Bismil so that he could verify whether they were connected in any way.

On 9 September 1998 the Bismil Prosecutor sent a reply to his colleague in İdil, stating that seven persons had been killed in his jurisdiction between 1993 and 1996; three on 9 April 1994, and the remaining four on 14 September 1996. The bullets recovered after the killing of the four persons in 1996 had already been forwarded to the forensic department of the gendarmerie. No bullets or bullet cases had been recovered in relation to the killing of the three persons in 1994.

On 5 May 1999 the Directorate sent a letter to the Prosecutor’s Office in Diyarbakır and asked whether any empty bullet cases, bullets or other similar evidence had been found at the site where the bodies were found and whether any forensic reports had been drawn up.

On 6 May 1999 the Prosecutor’s Office in Diyarbakır forwarded to the Prosecutor’s Office in the district of Bismil the Directorate’s letter of 5 May 1999.

On 7 May 1999 the Bismil Prosecutor replied that no bullets or bullets cases had been found in the area.

According to a number of documents drawn up by public prosecutors and soldiers between 1996 and 1999, each of which is one paragraph long and most of which are identical pro-forma documents, it had not been possible to find the perpetrators of the killings despite the investigations carried out and the visits made to the area where the bodies had been found. These documents contained no information indicating what specific steps had been taken.

On 23 June 1999 the Bismil Prosecutor informed the Directorate, in an apparent response to a request from the latter of 18 June 1999, that the investigation into the killings was still ongoing and that his office was being informed every three months about the investigation by the soldiers. No personal belongings, other than the clothes which the deceased had been wearing, had been found at the site where the bodies were discovered.

At the time of the events, the applicant was working as a nurse in Adana. Neither she nor her husband had ever been harassed by any authority until they became members of the trade union. After joining the union, they were repeatedly arrested, detained and questioned about their activities within the trade union.

She and her husband were both civil servants, and on a number of occasions they had been posted to different cities which made it difficult for them to live together. When they had challenged their repeated postings through the courts, they were told that their existence in Diyarbakır constituted a threat to peace and security, and that it was for this reason that they had been sent away from that city. They had both resigned their jobs and stayed in Diyarbakır. Necati had then found another job in Adana. Had they not been arrested, Süheyla and Necati would have left Diyarbakır for Adana after the evening meal on 18 March 1994.

However, that day she was taken into detention, together with her husband and a number of other persons, including a five year old girl. At the time of their arrest, they were in the house of Hafif Ay in Diyarbakır. They were taken to the rapid reaction force building in Diyarbakır and were blindfolded upon arrival. She knew the building well because she had been detained there on three occasions in the past.

During her detention, which lasted four days, she was questioned three times. She was asked why she kept coming back to Diyarbakır. A police officer told the applicant, “We have sent you away from Diyarbakır so many times and still cannot manage to get rid of you”. On one occasion she was held by her hair and slapped. During her time in detention, she often heard her husband Necati’s screams. On one occasion, her blindfold was removed and she was able to see her husband standing naked and wet. He was shivering.

Those questioning Necati repeatedly told him that they would harm Süheyla and strip her naked if he did not cooperate. She was also told by those detaining her to behave herself if she did not want her husband to end up like Yusuf Ekinci who had been killed in Ankara (see Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002). The applicant, another female detainee and the latter’s children were then sent to the Police Headquarters in Diyarbakır where they were kept for four days. No statement was taken from the applicant while she was in detention. On the fourth day at midnight they were taken to the hospital for a medical examination (see paragraph 40 above) where a doctor, in the presence of police officers, asked the applicant if she had any marks of blows on her body. She replied that she did not. She was not physically examined by the doctor. She was then released at the hospital without having been brought before a prosecutor or judge.

On 4 April 1994 the applicant was informed by a lawyer that her husband had been brought before the judge at the Diyarbakır Court that day. She did not try to see her husband as she knew that it would be impossible to enter the building. In any event, her father-in-law Şemsettin and family members of Mehmet Ay were already waiting outside the court.

When Necati and Mehmet were not released that day, their families assumed that the judge had ordered their detention on remand and that they were transferred to the prison. When they contacted the prison that evening they were told, however, that the two men were not there.

The following day, i.e. on 5 April 1994, Şemsettin and the family lawyers contacted the Diyarbakır Court to ask about Necati and Mehmet. They were told that the two men had been released the previous day. The family members then began to fear that the two men would be killed. They continued their efforts to obtain information until the evening of 9 April 1994 when they were informed that the bodies of Necati and Mehmet had been found.

The witness was also in the house of Hafif Ay on the evening of 17 March 1994 and was also arrested together with Necati, Süheyla and the others. She was kept in a cell on her own and she was able to hear the screams of other detainees who were being tortured. The police officers began questioning her on the third day of her detention. She was beaten up, subjected to electrical shocks, hung from her arms and threatened with rape.

On 29 March 1994 she was brought before a doctor, together with approximately 20 other detainees, for a medical examination. The police officers who accompanied the detainees to the hospital threatened them and told them not to mention to the doctor any of the torture. Similarly, the doctor advised the detainees not to mention anything that might have been done to them if they wanted to avoid more. The detainees all said that they were fine. The witness was then brought before Osman Yetkin (see paragraph 12 above), a Prosecutor at the Diyarbakır Court, who ordered her release.

After Necati’s disappearance, when a number of family members were making enquiries into his fate, the witness was unable to join them as she was being treated by doctors because she had fallen seriously ill after the torture inflicted on her during her detention.

On 7 April 1994, i.e. subsequent to the disappearance of Necati Aydın and Mehmet Ay but prior to the discovery of their bodies, the Prosecutor Osman Yetkin asked Yasemin to come and see him in the court building. On 8 April 1994 she and Hamit Ay, the elder brother of Mehmet Ay, went to meet with Mr Yetkin. However, on their arrival, Hamit Ay was not allowed in to see the Prosecutor. In the room where she met Osman Yetkin there were also another prosecutor as well as two judges present, one of whom was the President of the Third Chamber of the Diyarbakır Court. Bekir Selçuk, the Chief Public Prosecutor of the Diyarbakır Court, joined the meeting at a later stage. A conversation ensued during which they all discussed what might have happened to Necati Aydın and Mehmet Ay. At one stage one of the judges said “I wonder if it was those with the walkie-talkies?”. Some of those present in the room commented that some “dirty games” were being played in Diyarbakır which they were unable to solve. They also discussed the killing of Vedat Aydın, another member of Necati’s family, who had been killed in similar circumstances (see Şükran Aydın v. Turkey, no. 46231/99). They then promised Yasemin that they would continue their investigation to find the two men.

Three days after the bodies were found Yasemin was asked to meet with the Mr Yetkin and the Chief Public Prosecutor once again. During this meeting she was asked how the family was coping with their loss. They then apologised for having failed to do more to find the men alive.

The witness is the father of Necati Aydın. His son and a number of others were arrested in March 1994 and detained. All those detained, with the exception of his son and Mehmet Ay, were subsequently released. After the arrest of his son, the witness began waiting for him outside the Diyarbakır Court building. He would sit under the trees in the court’s garden, approximately 20 metres across from the entrance to the building. He would start waiting there as of 8.30 a.m. every day and would only be absent from the vicinity of the court during prayer times at midday and in the afternoon. Had his son been released during such an absence, he would have been informed by other persons who were waiting there for their relatives and whom the witness had befriended. On a number of occasions, the witness also went to the local hospital where, he was told, detainees would be brought for a check-up prior to their release. He unsuccessfully tried to obtain information about his son at the hospital.

On 4 April 1994 the applicant learned that his son’s release had been ordered by the court. However, his son did not emerge from the court building. The witness then went back to his village and did not return to Diyarbakır until he was informed that his son’s body had been taken to the morgue at the hospital.

During the time he spent waiting outside the court building, he had not seen any detainees being released; detainees whose release had been ordered by the court would be taken back to the detention places and be released after midnight. He never expected that his son would be released from the court but he continued to wait in the hope that he would get some news about him.

According to the witness, his son was killed because of his leftist views and also because of his involvement in trade union activities. A number of his son’s friends and in particular a relative, Vedat Aydın, had also been murdered in similar circumstances.

The witness is an advocate practising in Diyarbakır. He has appeared before the Diyarbakır Court on many occasions to represent clients and knows the court’s procedure and the court building well.

At the time of the events giving rise to the present application, the court building was located in a courtyard which was surrounded by a wall. There were two gates opening into the courtyard. One of these gates was used by personnel working at the court and also by officials when transporting defendants who were detained on remand and suspects who were detained in police custody. The other gate was used by lawyers and the general public. The court building had three doors, two of which were for official use and the third door was used by lawyers and the general public. Lawyers were not allowed to speak with their clients who were brought to the court from police custody and the detainees did not have access to a lawyer.

A person taken to the court from police custody could be released by a prosecutor or judge. In that event, the suspect would be escorted by police officers to the door of the building, the one used by the general public, and released there. In 1994 it was not the practice of the court to draw up a release document; such a practice was not introduced until 1995. Personal belongings such as belts, money, watches, rings, etc., were returned to the detainees before they were brought before the judge at the court building.

On 4 April 1994 the witness went to the Diyarbakır Court building for unrelated business. After completing that business, and as he was about to leave around 2 or 2.30 p.m., he saw Necati Aydın and Mehmet Ay being brought into the court by two or three policemen. He and Necati saw each other and exchanged looks in greeting. When the witness left the building he saw Hafif Ay, the elder brother of Mehmet Ay, who was waiting outside the gate, and he told him that he had just seen his brother and Necati being taken into the court building.

Family members waiting for detainees were a familiar sight outside the Diyarbakır Court building. Family members would start waiting there for the release of their relatives as soon as they had been detained, because once a person was detained it was not possible to know when he or she would be released; the maximum period of detention before a suspect had to be brought before a judge was 30 days at that time.

In the evening of 4 April 1994, Hafif Ay telephoned the witness and told him that neither his brother nor Necati Aydın had emerged from the court building. Mr Ay asked the witness if he had any information as to whether the two detainees had been released or been taken back to the police station. The following morning the witness spoke to the Chief Public Prosecutor Selçuk. Mr Selçuk confirmed that the judge had ordered the release of the two detainees. When informed that the two detainees had never made it to the court’s door, the Prosecutor told the witness that they had perhaps joined the PKK.

The Registry office of the Third Chamber of the Diyarbakır Court was located in the basement of the court building, next to the exit door used by police officers to bring detainees in and out. At a later date, officials working at the registry told the witness that Necati Aydın and Mehmet Ay had been led away through that door. The witness did not convey this information to anyone else because he feared for the lives of the sources of this information.

This witness is also an advocate practising in Diyarbakır. He was acting for Necati Aydın at the time of the events giving rise to the present application. When his client was taken into detention in March 1994, the witness was not allowed to see him. This was because the legislation in force at the time prevented detainees, who were arrested for an offence falling within the jurisdiction of State Security Courts, to have access to their lawyers. The witness would also not be informed as to when Necati would be brought before a judge, although he knew that this would happen within 30 days, the maximum period of detention at the time.

On 4 April 1994 the witness was in the Diyarbakır Court building to represent a number of other clients at their trials. He did not come across Necati Aydın in the building but was told at a later stage by a court official that Necati had been there on that day.

The witness was informed on 5 April 1994 that Necati had been brought before a judge who had ordered his release but he had not been seen leaving the building. The witness then went to speak to Chief Public Prosecutor Selçuk. Mr Selçuk told him that Necati had been released and that he had probably joined the PKK.

The witness was the Chief Public Prosecutor of the Diyarbakır Court at the time of the events. He remembered that Necati Aydın was being investigated for membership of the PKK.

It was not the practice at the time of the events to draw up release documents. Sometimes a detainee, whose release was ordered by a prosecutor or judge, was escorted by police officers to a safe place and released from there. Otherwise a detainee was simply released outside the court building. In any event, detainees were not allowed to wander around freely inside the court building.

It would have been possible for him, as a Public Prosecutor, to find out the identities of the police officers who had accompanied Necati Aydın to the court building on 4 April 1994. However, he could not remember whether or not he had done this and whether he had subsequently questioned these police officers. He thought that he might have done so. In any event, he would not have recorded the identities of these police officers or what they had said to him in a document, in order not to jeopardise the police officers’ safety. Furthermore, the account of the police officers who had escorted Necati Aydın to the court building would not have been important to the investigation.

The opinions expressed in the document which he had drawn up on 3 May 1995 (see paragraph 60 above) had been based on the investigations. They were not based on subjective opinion. The witness believed that Necati Aydın and Mehmet Ay had been PKK members. Necati was probably killed by PKK members because he had left the organisation. Perhaps he was killed because he had the same surname as Vedat Aydın, who had also been killed in similar circumstances.

Neither the fact that the release of Necati Aydın and his wife had been ordered by the judge for lack of evidence, nor the fact that neither Necati nor Süheyla had ever been convicted of an offence involving the PKK, had a bearing on the witness’ opinion that Necati and his wife were PKK members. The acquittal of Süheyla Aydın on charges of aiding and abetting PKK members was the personal opinion of the trial court judge. That acquittal did not mean that she was not involved in PKK activities.

The witness denied having been approached by family members of the deceased men (see paragraphs 85-86 above) and he did not remember whether he had met with advocates Sezgin Tanrıkulu and Arif Altınkalem and discussed the disappearance of Necati Aydın (see paragraphs 96 and 100 above).

His office would sometimes receive intelligence indicating that certain civil servants had been in contact with members of the PKK. In such circumstances, and when he was unable to obtain any evidence to indict such civil servants, he would ensure their transfer to other cities.

The witness still held the opinion that Necati Aydın had been killed by members of the PKK so that a complaint could be lodged against Turkey to the European Court of Human Rights (see paragraph 60 above).

The witness was the Public Prosecutor of the town of Bismil at the time of the events. The bodies were found in an area under his jurisdiction and he participated in the examination of the bodies on 9 April 1994 (see paragraph 53 above).

He did not deem it necessary to carry out a full autopsy in order to establish the circumstances leading up to the killings; the cause of death was established and that was sufficient. The way the killings had been carried out – in particular, the single gun shot to the head and the bodies being dumped at a roadside – led the witness to form the opinion that the perpetrators of the killings were members of the PKK.

Prosecutors would investigate a killing regardless of whether or not there had been an official request by a relative of the deceased person. During his time in Bismil there had been a significant number of killings in the area and each of these killings had been investigated by the authorities.

The witness is a Public Prosecutor and was appointed to the Diyarbakır Court in October 1996. From that date onwards he carried out the investigation into the killing of the applicant’s husband and the other two persons. He inherited approximately one thousand similar cases from his predecessor.

In a document which he signed on 20 November 1997 (see paragraph 62 above), the witness recorded that Necati Aydın had been killed by members of the PKK. He explained that, in an investigation into a killing which had taken place in that area at that time, the starting point would be that the perpetrators were members of the PKK. Other possibilities would also be investigated if any evidence came to light which suggested otherwise. On 22 May 1998 the witness decided that there was no evidence suggesting that the killings had been carried out by members of the PKK, and he sent the investigation file to the local prosecutor (see paragraph 66 above).

The witness was the chief of the anti-terrorist branch of the Diyarbakır Police Headquarters where the applicant, Necati Aydın, Mehmet Ay, Ramazan Keskin and the others had been detained at the time of the events (see paragraph 48 above).

When a person was detained, his or her personal belongings would be taken away from that person and he or she would be asked to sign a document to that effect. When the detainee is about to be brought before a judge, the belongings would be returned and the person would be asked to sign the same document. This was what had happened in the case of Necati Aydın (see paragraph 47 above).

Two or three police officers would have accompanied Necati Aydın and Mehmet Ay to the Diyarbakır Court on 4 April 1994. These police officers would not be the same as those who had questioned the detainees while in custody.

The witness had never been questioned by the authorities investigating the disappearance and the subsequent killing of Necati Aydın.

The witness is a police officer and was responsible for the detainees at the Diyarbakır Police Headquarters at the time of the events. He signed the document showing that personal belongings of Necati Aydın were taken away and had then been returned to him (see paragraph 47 above).

He did not remember who had accompanied Necati Aydın and Mehmet Ay to the Diyarbakır Court on 4 April 1994 but it would be possible, by examining the documents at the place of detention, to determine the identities of these police officers.

The witness is a gendarme officer and was the deputy commander of the Kağıtlı Gendarmerie Station at the time of the events.

On the day in question a villager came to the station and explained that he had found three bodies in the fields. He and his superior, together with a number of soldiers under their command, went to the scene, which was situated approximately five kilometres away from the station and 100 metres from the main road. They checked the pulses of the three men and established that they were dead.

When the witness reached the area where the bodies were found, he formed the opinion that it was the PKK who had killed the three men, possibly because the PKK members had suspected that the three men were working for the State authorities.

It would not have been possible to reach the spot where the bodies were buried by car; only a tractor could have reached it. However, there were no tyre marks or foot prints near the scene. Similarly, there were no blood stains in the vicinity. The witness did not have any idea whether the three men had been killed on the spot where their bodies were found. If the men had been shot there, the shooting would not have been heard from the station because it was too far away.

The only road to reach the site was the one that ran between the town of Silvan and the city of Diyarbakır. This road was under constant surveillance by soldiers from his station. All vehicles and persons travelling on this road were searched.

His superior searched the bodies for any identification documents but, other than two wedding rings, he did not find anything to identify the deceased men. They also asked for support teams, approximately 4050 soldiers, to search the area for any evidence. None was found. They then informed the local prosecutor and handed the investigation over to him. His station continued to inform the investigating prosecutor every three months about any developments. He could not remember whether any inhabitants of villages in the vicinity had been questioned to establish whether they had seen or heard anything. If there had been any valuable information, it would have been mentioned.

The witness is a gendarme officer and was commander of the Kağıtlı Gendarmerie Station at the time of the events. The witness confirmed the sequence of events as described by his deputy Ali Uslu above.

The witness was asked by the Bismil Public Prosecutor to establish whether the killings had political connotations (see paragraph 58 above). He was not informed that the deceased men had disappeared after a judge had ordered their release. In the course of his investigation in the weeks and months after the discovery of the bodies, the witness visited the scene where the bodies had been found and also spoke to the local people who might have been able to provide crucial information. The names of those he questioned were recorded in his three-monthly reports. He continued this investigation until he left his post later in 1994, but the investigation was continued by his successor.

The ropes used to tie the hands of the deceased men were cut from the bodies by the witness and the soldiers under his command and left at the scene. As, in the opinion of the witness, the ropes had no evidential value, he did not deem it crucial to take them and examine them. Similarly, there was no need to record in his report that he had asked for an additional 4050 soldiers to help search the site.

A car leaving Diyarbakır and going in the direction of the place where the bodies were found would have gone through at least two check points; one was the check point just outside Diyarbakır and manned by police officers from the Diyarbakır Police and the second was outside the Kağıtlı gendarme station, manned by the soldiers under his command. As there were not very many cars passing along the road outside the station, each car and its passengers were searched thoroughly. Even police cars or ambulances were checked.

A description of the relevant domestic law may be found in Akkoç v. Turkey (nos. 22947/93 and 22948/93, §§ 42-58, ECHR 2000X).


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in 1952 and lives in Slovenia.

On 6 January 1994 the applicant was injured at work in a lignite mine. Since then, he has been disabled and in receipt of disability benefits. His employer had taken out accident insurance for him with an insurance company, T. (“ZT”). His disability was assessed at 13%. In the years 1994, 1995 and 1996 ZT paid partial disability benefits.

On 30 December 1998 the applicant instituted civil proceedings in the Celje Local Court (Okrajno sodišče v Celju) against ZT claiming a 7% increase in his disability benefits on the basis of an expert medical opinion. He also sought an exemption from court fees.

On 26 August 1999 the applicant lodged pleadings and additional evidence and requested the court to assign an independent medical expert to determine the extent of his disability. He submitted additional documents and pleadings on 13 October 1999, 16 November 2000, 27 February, 9 and 17 April and 30 May 2002.

On 7 November 2000 a hearing was held to consider the applicant's request for the appointment of a medical expert. Although the request was granted, the appointment was not made.

On 23 November 2000 the applicant submitted documents and requested the court to issue the order appointing the medical expert.

On 28 November 2000 the court appointed a medical expert to determine the extent of the applicant's disability. He submitted his report on 26 April 2001.

On 25 May 2001 the applicant filed pleadings and increased his claim by 2.5%.

On 10 July 2001 the applicant filed pleadings and requested that an additional opinion be sought from the appointed expert.

On 16 October 2001 a hearing was held and the court decided that additional clarifications were required from the expert.

On 23 November 2001 the court reappointed the same expert with instructions to submit an additional opinion.

On 11 February 2002 the expert submitted an additional opinion, which was served on the parties.

On 9 April and 30 May 2002 the applicant made requests for a hearing.

On 25 September 2002 the court held a hearing and decided to deliver a written judgment.

On 30 December 2002 the applicant's lawyers received the judgment, which upheld the applicant's claim in part.

On 31 December 2002 the applicant appealed. ZT cross-appealed.

On 19 February 2004 the Celje Higher Court (Višje sodišče v Celju) allowed the applicant's appeal in part. It increased the level of his disability benefits and awarded the applicant costs and expenses. The decision became final the same day.

On 8 April 2004 the judgment was served on the applicant's lawyers.

The relevant provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) read as follows:

“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. ...”

“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a State or local authority or as a holder of public office. ...”

“A court with jurisdiction to review administrative decisions shall [have jurisdiction to] determine the legality of final individual decisions by State or local authorities or holders of public office concerning the rights or obligations or legal entitlement of individuals and organisations, if no other legal protection is specifically provided.

If no other legal protection is provided, the court with jurisdiction to review administrative decisions shall also [have jurisdiction to] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual.”

“The Constitutional Court shall hear:

... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom;

Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”

The relevant provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču) read as follows:

“The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms ...

Decisions of the Constitutional Court are legally binding.”

“Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a State body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”

“A constitutional appeal may be lodged only after all legal remedies have been exhausted.

Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.”

In a decision of 7 November 1996 (no. Up 277/96), the Constitutional Court (Ustavno sodišče) ruled that constitutional appeals under Article 160 of the Slovenian Constitution were admissible in length of proceedings cases where the proceedings were still pending. However, it further stated that, in order to ensure the right to due process of law in the Slovenian legal system, the only proper judicial protection available was through an action in the administrative courts. A constitutional appeal was, as a rule, admissible only after recourse to that legal remedy.

In a decision of 7 December 2000 (no. Up 73/97), the Constitutional Court ruled that, once the court proceedings had been concluded, an individual could no longer bring an action in the administrative courts complaining about the length of proceedings. Therefore, since there was no longer any violation to be remedied, it was no longer possible to lodge a constitutional appeal.

In a decision of 17 December 2003 (no. Up 85/03-12), the Constitutional Court held that where, because the substantive proceedings had ended, an action to complain of the length of proceedings could no longer be brought in the administrative courts, it was still open to the alleged victim to seek compensation in civil proceedings.

The Administrative Disputes Act 1997 (Zakon o upravnem sporu) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings in the administrative court and, on appeal, in the Supreme Court (Vrhovno sodišče). Under section 2(1) and (2) the court has a broad discretion to adapt its decision to the nature of the violated constitutional right, to order adequate redress, and to decide the applicant's claim for damages. Under section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by Article 23 of the Constitution and compensation for any loss. In addition, under section 69, a temporary injunction may be sought to prevent serious harm or to guard against an imminent threat of violence.

In case no. U 836/98, the Administrative Court (Upravno sodišče) found on 7 March 2000 that the right to a trial within a reasonable time had been violated in a case which had been pending before the Labour and Social Court for twenty-three months. However, on 18 December 2002 the Supreme Court quashed the judgment on appeal, as the proceedings had terminated by the time of the appeal. On 17 December 2003 the Constitutional Court dismissed the constitutional appeal (no. Up 85/03-12) because the proceedings in question had ended and the alleged victim could seek compensation in civil proceedings.

Similarly, in case no. U 148/2002-19, the Administrative Court rejected on 21 January 2003 a complaint concerning the length of the proceedings because the proceedings in question had ended shortly after the complaint had been lodged. On 28 May 2003 the Supreme Court upheld the judgment on appeal.

In case no. U 148/2002-19, the Administrative Court dismissed on 21 January 2003 a claim alleging a violation of the right to a trial within a reasonable time that had been lodged on 18 July 2002. This decision was upheld on appeal on 28 May 2003. The proceedings before two levels of jurisdiction had lasted ten months and ten days.

In case no. U 459/2003-23, the Administrative Court held on 7 December 2004, in proceedings that had started on 8 December 2003, that there had been a violation of the right to due process. The proceedings had lasted less than a year before one level of jurisdiction.

If a court is responsible for undue delay in the proceedings and an individual has sustained damage as a result, he or she may claim compensation from the State under the Code of Obligations 2001 (Obligacijski zakonik). The person seeking compensation will thus have to prove, firstly, that there has been a delay in the proceedings, secondly, that damage has occurred, and, thirdly, that there is a causal link between the conduct of the court and the damage sustained. However, the Code does not provide specifically for compensation for non-pecuniary damage in such cases.

In a judgment of 22 January 2001 of the Ljubljana District Court (Okrožno sodišče v Ljubljani), the damages awarded amounted to nearly 6,700 euros (EUR), but were reduced on appeal on 16 December 2002 by the Ljubljana Higher Court to less than EUR 850.

In a judgment of 18 April 2001 of the Ljubljana District Court, which was upheld on appeal on 12 February 2003 by the Ljubljana Higher Court, a sum of approximately EUR 3,350 was awarded.

Section 3(4) of the Judicature Act (Zakon o sodiščih) provides that judges shall determine rights and obligations and criminal charges independently and impartially and without undue delay.

Section 38 of the Act provides that, when determining the number of judges to be appointed to a specific court, the Judicial Council (sodni svet) shall have regard to the criteria laid down by the Minister of Justice, the average number of cases dealt with by the court in the preceding three years, any anticipated changes that may affect that number, and the average number of new actions brought in the court in the preceding three years. Under the Act, the Minister of Justice is empowered to vary the criteria in the light of the complexity of the cases and changes in the manner in which they are being processed.

Section 72 provides that in the event of a delay in the proceedings any party may lodge a request for supervision (nadzorstvena pritožba) with the president of the court. The president of the court may request the presiding judge to report on progress in the proceedings, and is required to indicate in writing to the presiding judge any irregularities he finds. He may put the case on the priority list or set deadlines for procedural measures. If the delay has been caused by a heavy caseload, he may order the case concerned or other cases to be transferred to another judge. He may also propose measures under the provisions of the Judicial Service Act.

If the request for supervision is lodged with the Ministry of Justice or the president of a higher court, they will refer it to the president of the relevant court and may request a report on the measures undertaken to expedite the proceedings.

The Minister of Justice or the Judicial Council may request the president of the court to submit a report on all requests for supervision lodged within a certain period and the measures undertaken to resolve the issues.

In accordance with section 73, the president of a higher court may, of his own motion or at the request of the Minister of Justice, a disciplinary prosecutor or a disciplinary court, request an examination of the functioning of the court and submit the findings to the Ministry.

As part of a package of measures to guarantee the effectiveness of the Convention machinery, the Committee of Ministers of the Council of Europe adopted a resolution on 12 May 2004 (Res(2004)3) on judgments revealing an underlying systemic problem. After emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures (paragraph 7 of the preamble), it invited the Court “to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments” (paragraph I of the resolution). This resolution has to be seen in the context of the growth in the Court's caseload, particularly as a result of series of cases deriving from the same structural or systemic cause.


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in 1967 and lives in Timişoara.

At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara.

On 16 June 2000 the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike. Ms C.M.O., one of the interns' representatives, stated:

“Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre.”

On 19 June 2000 the newspaper Ziua de Vest published an article by the applicant. The relevant parts read as follows:

“Scandal in the medical world in Timişoara

The president of the Interns Association in Timiş County, Dr [D.D.], says that 'Dr [P.] behaves in certain ways that we all know'

A medical intern from Timişoara, whose name we shall not yet make public, declared on Friday, in front of the prefect [L.B.], that the director of the Timiş Public Health Direction, Dr [P.], had attempted to sexually blackmail her. 'Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre' declared the intern. The president of the Interns Association in Timişoara, Dr [D.D.], declared that he had not known about this case of sexual harassment, which he learned of only at the meeting with the prefect. 'Dr [P.] behaves in certain ways that we all know' said Dr [D.D.] ...

Although we tried to get his comments on the accusations brought against him, Dr [P.] was unavailable.”

A photo of P. featured in the article.

On 21 June 2000 P. lodged a criminal complaint for defamation against the applicant with Timişoara District Court. His complaint also concerned the company which published the newspaper.

The District Court heard evidence from C.M.O., who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication. The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting.

The applicant was heard by the court on two occasions. He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures.

On 20 March 2001 the District Court gave judgment. It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression “sexual harassment” had not harmed P.'s dignity as it was a stylistic choice by the applicant.

Both parties appealed to the Timişoara County Court.

On 18 May 2001 the court was addressed by the parties' counsels, who defended orally the grounds for their respective appeals. P.'s lawyer asked for the applicant's conviction. The applicant's lawyer and the company's representative requested that P. be compelled to pay court fees. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he asked that P.'s appeal be dismissed.

The final decision was adopted on the same day. The County Court quashed the judgment of 20 March 2001, re-examined the evidence and found as follows:

“[the journalist] did not confine himself to merely providing information about the criticisms [expressed against P.] but added his own appreciation, which went beyond [C.M.O.]'s statements.

Through its title and content, the article contains untrue statements and allegations and personal appreciations by [the applicant] which, if true, would render the victim liable to a criminal penalty or expose him to public opprobrium.

By publishing the victim's photo, and by presenting the information that a scandal had been caused in the Timişoara medical world by [P.]'s behaviour ... [the applicant] acted with intent to denigrate the victim, the article being manifestly defamatory.

The words “sexual blackmail and sexual harassment” cannot be regarded as having stylistic and literary value when an individual's image, dignity and honour are at stake.”

The County Court noted that a certain degree of aggressiveness was common in journalism. It therefore, although the facts met the legal criteria to constitute the criminal offence of defamation, the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law. Consequently, it acquitted the applicant and imposed an administrative fine of 500,000 Romanian lei (ROL).

The court also found that the conditions had been met for the applicant's civil liability, and that of the publishing company, in respect of the prejudice caused to the victim. In consequence, it ordered the applicant and the company to pay ROL 5,000,000 to P. as compensation for non-pecuniary damage and ROL 2,000,000 for costs. Lastly, it ordered them to pay ROL 50,000 to the State in court fees.

On 3 October 2001 the applicant paid the administrative fine.

The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.

The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).

However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles on insult and defamation.

Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take a statement from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended).