Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life)

The applicant, Mrs Hamsa Çiçek, who was born in 1930, is a Turkish citizen and lives in Dernek, a village in Lice District of the province of Diyarbakır in South-East Turkey. Her application is brought on behalf of herself, as well as of her two sons, Tahsin (44 years old in 1994) and Ali İhsan Çiçek (20 years old in 1994) and her grandson Çayan Çiçek, who have allegedly disappeared in circumstances engaging the responsibility of the State.

The facts surrounding the disappearance of the applicant’s two sons and her grandson are disputed. The facts presented by the applicant are contained in Section 1 below. The facts as presented by the Government are set out in Section 2.

A summary of the documents that are submitted by the applicant and the Government in support of their assertions and the evidence gathered from the witnesses at hearings conducted in Ankara by the Commission is given below in Part C.

On 10 May 1994 at approximately 6.00 a.m., about a hundred soldiers from the Lice District Gendarmes Headquarters raided the applicant's village. Leaving their vehicles at the entrance of the village, they arrived on foot.

The soldiers went round the houses to wake villagers up, telling them to gather by the mosque and to bring their identity cards with them. When about 400 villagers gathered by the mosque, the soldiers collected the identity cards of the male villagers. The women and children were sent home, as a result of which they were not able to witness what happened next. According to what the applicant was told by the male villagers who were present, the soldiers carried out an identity check by calling out the villagers’ names one by one from a list. Thereafter, the soldiers gave back the villagers’ identity cards except for those of Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Mehmet Demir and Ali İhsan Çiçek (the applicant's son). These five villagers were told to stand aside. The identity card of Tahsin Çiçek (the second son of the applicant) was initially returned but he was immediately called back and sent to join the other five.

The soldiers left the village, taking these six villagers into custody. Witnesses confirmed that the detainees were taken to Lice Regional Boarding School. It is alleged that Tahsin Çiçek, Ali İhsan Çiçek and Ramazan Akyol were ill-treated there.

It appears that, on the second day of their custody, the soldiers separated Tahsin and Ali İhsan Çiçek from the other detainees saying that they were releasing the two brothers and would release the rest of them as well.

On the following day, the other four villagers were released. When they returned home, they were surprised to find that Tahsin and Ali İhsan Çiçek had not come back although they had been released.

After about 20 days subsequent to the detention of her sons, the applicant contacted a villager who had been released from Lice Regional Boarding School, where she believed her sons had been detained. Upon the applicant’s description of her sons, the villager affirmed that he had been detained with two brothers, who corresponded to her description.

The applicant also met another villager released a month earlier from custody at Lice Regional Boarding School. When the applicant described her sons and asked whether he had seen them, this villager confirmed that he had been detained with someone who resembled Tahsin.

The applicant was told by witnesses that, on 27 May 1994, Tahsin's son Çayan (i.e. her grandson) was taken away by security forces from the garden of their family house. Çayan, who was sixteen years old at the time of the events, is visually impaired; he cannot see at all at night and his vision is limited to approximately one meter in daylight.

The applicant has made several applications in search of her sons and grandson. She went to Lice District Gendarme Headquarters on two occasions and asked about them. She was told that they could not help her. The applicant is elderly, lives in a village and cannot speak Turkish. This limits the enquiries she can make. Her daughter, Feride Çiçek, who lives in Diyarbakır, submitted verbal petitions to the Diyarbakır State Security Court Public Prosecutor. She was given a verbal reply to the effect that her brothers and nephew (i.e. the applicant's sons and grandson) were not in custody.

The Government state that the applicant’s sons and grandson were not taken into custody by the security forces and deny that an operation had been conducted in Dernek on 10 May 1994 by the security forces. They note that this village did not fall within the zone between Kulp and Lice districts in Diyarbakır, where military operations were conducted between 23 April - 10 May 1994. In this respect, the Government refer to custody records that do not mention the names of Tahsin Çiçek, Ali İhsan Çiçek and Çayan Çiçek and to the testimonies of two villagers from Dernek, who confirm that no operation was carried out in their village on 10 May 1994.

A full scale investigation based on the applicant’s allegations was first initiated by the Gendarme General Commandment and later a preliminary investigation was initiated by the Lice public prosecutor under file number 1997/182. The village muhtar Behçet Yılmaz and another habitant of the Dernek village, Şükrü Çelik, were heard by the gendarmes on 29 September 1995. Another subject living in Dernek, Raif Aksu, stated before the gendarmes that he did not remember any operation taking place in his village and those names read to him had not been detained as alleged. The public prosecutor of Lice heard on 8 July 1997 Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi and Mehmet Demir as witnesses in this case.

The Government also maintain that there are strong grounds to believe that the applicant’s sons, Tahsin and Ali Ihsan Çiçek, have moved to Syria, where they have relatives.

The parties submitted various documents concerning the investigation following the disappearances of Ali İhsan Çiçek, Tahsin Çiçek and Çayan Çiçek.

The custody records of the Lice Gendarmerie Station concerning tthe period between 24 April 1994 and 3 July 1994 show that Tahsin Çiçek had been taken into custody on 24 April 1994 and released on 26 April 1994.

The custody records of the Lice Security Directorate Anti-Terrorism Department and the Interrogation Unit of the Provincial Gendarmes Headquarters in Diyarbakır for the period between 1 April - 31 May 1994 do not contain the names of Tahsin Çiçek, Ali İhsan Çiçek and Çayan Çiçek.

Upon the request of the Commission delegates the Government submitted the plan of the Lice Regional Boarding School. The plan includes the ground floor, the first floor and the second floor, whereas it does not contain the basement.

The second commando regiment reported that between 23 April - 10 May 1994 military operations had been conducted in Sağgöze, Kaygısız, Daltepe, Mizagül Dağı, Çotuk and Herpinos regions, situated between Kulp and Lice Districts, in the Diyarbakır province. According to this report, Dernek and Arıklı villages, albeit near, remained outside the operation area.

In this statement, the witness was asked about his knowledge and observations as regards Hamsa Çiçek’s allegations as stated in her application to the European Commission of Human Rights. He replied that he did not recall whether or not an operation had been carried out in the village on 10 May 1994. He maintained that Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi and Mehmet Demir had not been taken into custody. He further stated that these persons were not actually living in the village.

In his statement, the witness was asked about his knowledge and information about the allegations of Hamsa Çiçek as stated in her application to the European Commission of Human Rights. In reply, the witness stated that he did not remember an operation being conducted on 10 May 1994. He stated that the persons mentioned in the application had not been taken into custody by the security forces.

In his statement, the witness explained that three years earlier soldiers had come to Dernek and questioned the villagers about terrorists who made frequent visits to the village. Subsequently, he was arrested together with Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekci, Ali İhsan Çiçek and Tahsin Çiçek and taken to Lice Boarding School. The witness explained that, on their arrival, the soldiers blindfolded them and placed them all in the same room. On the third day of their detention they were taken to another military base in Lice and released from there. According to him, Ali İhsan and Tahsin had been released the day before. The witness further maintained that no one had been ill-treated in custody. He had not seen Ali İhsan or Tahsin after their release and had no information concerning Çayan’s disappearance.

The witness explained that about three years earlier, on a Thursday, early in the morning, soldiers had come to their village, carried out an identity check and arrested Fevzi Fidantek, Ramazan Akyol, Mehmet Demir, Ali İhsan Çiçek, Tahsin Çiçek and himself. They were then taken to Lice Regional Boarding School, together with some other detainees from neighbouring villages. At the boarding school, they were all blindfolded and put in a room close to the hamam, in the basement of the building. The witness maintained that during the two nights they spent in custody, the detainees were not interrogated by the soldiers. They were released from the Regiment on Saturday, whereas Tahsin and Ali İhsan had already been released on Friday. He had no information on their whereabouts or on Çayan Çiçek’s disappearance. Moreover, he had not heard or seen Ali İhsan Çiçek and Tahsin Çiçek being ill-treated in custody.

In his statement to the public prosecutor, Fevzi Fidantek stated that about three years earlier, soldiers had come to their village and asked the villagers to gather by the mosque. The soldiers then separated Ramazan Akyol, Mehmet Demir, Mehmet Özinekçi, Ali İhsan Çiçek, Tahsin Çiçek and himself from the others and took them to the Lice Regional Boarding School. The witness stated that there had also been other detainees from neighbouring villages. The soldiers kept the detainees in the basement of the boarding school for two nights and three days. According to the witness, Tahsin and Ali İhsan had been released on Friday and the remaining detainees, including the witness, on Saturday. The witness stated that Tahsin had a taxi and had been travelling quite frequently. The witness further maintained that about twenty days subsequent to their detention, a new operation was carried out in Dernek, after which Tahsin’s son Çayan also disappeared. Fevzi Fidantek stated that his eyes were blindfolded while in custody but, as there were no soldiers in the room, the detainees were able to communicate with each other. He also maintained that no one had been ill-treated while in detention. The witness finally stated that he had no idea as to the whereabouts of the two brothers.

The documents contain a description of steps taken by Feride Çiçek in her search for her relatives.

On 20 July 1994 Feride Çiçek filed two petitions with the Diyarbakır Public Prosecutor asking whether her brothers, who had been taken away by the security forces on 10 May 1994, were actually held in custody. She only received a verbal reply to the effect that they were not in custody. The same day she filed another petition with the public prosecutor as regards the disappearance of her nephew, Çayan Çiçek. Again, verbally, she was told that Çayan was not in custody.

In her statement to the HRA, Hamsa Çiçek stated that she had been living in the village of Dernek, in Lice District, Diyarbakır and gave the following account concerning the disappearance of her two sons, Ali İhsan Çiçek and Tahsin Çiçek, and her grandson, Çayan Çiçek.

On 10 May 1994 soldiers from the Lice District Gendarme Headquarters raided their village and told the villagers to gather by the mosque. An identity check was carried out and, subsequently, the women and children were sent home. Hamsa could therefore not see what followed. According to what she heard from other villagers, the soldiers arrested Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Mehmet Demir and her two sons Ali İhsan Çicek and Tahsin Çiçek, and took them to Lice Regional Boarding School. Hamsa was told that her sons had been released on the second day of their detention and the remaining detainees on the following day.

After about twenty days following the detention of her two sons, Hamsa Çiçek met a villager who had been detained with her sons. Upon her description, the villager told Hamsa Çiçek that he had seen her sons in custody. He also said that he had been ill-treated in custody like almost everyone who had been there.

Subsequently, Hamsa Çiçek met another villager released from Lice Regional Boarding School a month earlier. This villager told Hamsa that, while in custody, he had seen someone who could have been Tahsin and who seemed to be in suffering due to ill-treatment. This villager confirmed that he had last seen the person who resembled Tahsin at the Lice Gendarme Headquarters.

According to what Hamsa was told on 27 May 1994, Tahsin’s son Çayan had also been taken away by the security forces from the garden of their house.

Hamsa further stated that she had requested information from the Lice District Gendarmes Headquarters as regards her two sons and her grandson. In reply, she was told that the Lice District Commander could do nothing to help her. Moreover, Hamsa Çiçek’s daughter, Feride Çiçek, filed two petitions with the Diyarbakır State Security Court Public Prosecutor, who informed them that Tahsin Çiçek and Ali İhsan Çiçek were not in custody. Hamsa Çiçek stated that she was concerned that her sons might have been killed in custody by security forces.

The Commission conducted two hearings in Ankara between 16-20 June 1997 and 15-19 June 1998 and took oral evidence from eight witnesses. The evidence of the witnesses may be summarised as follows.

The applicant, who was born in 1930, was currently living in Dernek. At the time of the events, she was in the village. She confirmed that she had lodged a petition with the Diyarbakır Human Rights Association (HRA) about the disappearance of her two sons, Tahsin Çiçek and Ali İhsan Çiçek, and her grandson, Çayan Çiçek. She further stated that she had instructed Ms Hampson to represent her before the European Commission of Human Rights.

In May 1994 Tahsin Çiçek was living in Dernek in his own house situated opposite that of the applicant’s. He was married and had seven children. Ali İhsan, who lived with the applicant, was preparing for his military service. The applicant had also four more daughters. Çayan was Tahsin’s son and lived with his father.

On the day of the incident, early in the morning, leaving their vehicles at the entrance of the village, soldiers came to the village on foot. They ordered the villagers to gather by the mosque. The applicant assumed that these soldiers came from Lice. They carried out an identity check. Making five of the villagers stand aside, including the applicant’s son Ali İhsan, they told the rest of the villagers to return home. Although the soldiers released Tahsin at first, they called him back a few minutes later and ordered him to join the group of five.

From a distance, the applicant had seen Ali İhsan and Tahsin being arrested. The soldiers ordered the detainees to strip naked to search them. When they left, the applicant tried to follow but was blocked by three gendarmes. Later, she heard that the detainees had been taken to the regional boarding school. On two occasions, she went to the commandos from the Lice Gendarme Station and asked about her sons. She was referred to the Lice District Gendarme Commander.

The applicant explained that Lice Regional Boarding School was partially used by the military. The building housed students and teachers as well as soldiers. According to what the applicant had heard, her sons had been released one day ahead of the rest of the detainees, who showed surprise at not seeing Tahsin and Ali Ihsan in Dernek on their return.

The applicant had also heard that her sons suffered ill-treatment in custody. Some other detainees claimed seeing them in wet clothes.

When the applicant went to see the Lice Gendarmes Commander, a captain received her. The mayor of the village accompanied her, as she could not speak Turkish. The captain told the applicant that he had no information about her sons, but that it was possible that gendarmes from the Bolu region might have information about this incident. However, when she visited the commander a second time, the gendarmes from Bolu were not mentioned.

The applicant explained that Tahsin had disputes with some of the villagers. He had been taken into custody about a month before his disappearance, on his way home from a wedding. She was told that a young man, called Cihat, son of the village mayor at the time, denounced Tahsin to the gendarmes. When Tahsin was released from custody a week later, he accused the mayor, Behçet Yılmaz, of spying on him and the mayor had to leave the village. The applicant further claimed that, when she went to Lice in search of information on her sons, she came across Cihat, who told her that Ali İhsan had been killed and that Tahsin was in the hands of the soldiers.

About a month after the disappearance of her sons, the applicant learned that her grandson, Çayan, had been arrested by the soldiers. She was not in the village at the time of the incident, but was told that Çayan had been taken away from their garden by soldiers. The applicant explained that she was concerned about her grandson’s fate as he suffered from poor health.

The witness, who was born in 1964, was the applicant’s daughter. She lived in Diyarbakır, where she had moved five years ago. She gave the following account as regards the disappearance of her two brothers and her nephew. At the time of the events, her brothers, Ali İhsan and Tahsin, lived in Dernek. Tahsin lived with his family in a house close to their mother's and Ali İhsan lived with his mother. Approximately three or four weeks before the alleged incident Tahsin had been arrested on his way home from a wedding, upon a complaint filed against him by a young man. The witness had last seen her two brothers a couple of days prior to their disappearance, when they brought her belongings to Diyarbakır. The witness explained that the family had no enemies in Dernek and that there was no conflict within the family.

On 10 May 1994 towards noon, she received a telephone call from Seithan Özinekçi, the son of Hacı Mehmet Özinekçi. Seithan told her that six people from the village had been arrested including his father and her two brothers. She went to Dernek immediately.

She reached the village that afternoon, and was told by her mother that the soldiers had raided the village in the morning, searching all the houses and ordering everyone to gather at the square by the mosque bringing their identity cards. The men and women had been separated. After an identity check, five men were set apart, including Ali İhsan. These five men were stripped naked and searched.

According to her mother’s account, there had been more than 100 soldiers. The villagers also told her that there had been different types of soldiers; the first group wore blue berets, while those in the second had none. She was further told that the soldiers had then gone to Tahsin’s house to arrest him as well. The detainees were then taken away on foot. Although her mother and some other villagers tried to follow the group, they were told to turn back. The testimony of other villagers confirmed her mother's story.

The witness explained that she had stayed in Dernek for two nights and then returned to Diyarbakır. A few days later, when a minibus driver coming from Dernek told her that four of the detained villagers had been released, she went back to Dernek.

In Dernek, she spoke to Ramazan Akyol, released from custody that very day. He told her that her brothers had been released the day before. Ramazan Akyol also affirmed that they had been taken to the boarding school together and kept there blindfolded until noon the following day. He recalled that first Ali İhsan and then Tahsin had been taken away for interrogation. He told the witness that Ali İhsan had been ill-treated and a statement had been taken from him. Ramazan did not mention what happened to Tahsin, though he told the witness that Ali İhsan and Tahsin had been taken away. He did not know where they went but when he was given back his identity card, he got the impression that the two brothers had already been released.

The witness submitted that apart from the four villagers, a crippled man, also detained in the regional boarding school, had seen her brothers. A minibus driver, who drove this person to his house after his release, informed the applicant that there was someone who had seen her brothers in custody. Consequently, the witness went to see this man, who told her that he had been detained with two brothers. The man said that one of the brothers told him that he came from a village, which was not Dernek. He recalled that although he had not spoken to the other one, he had the chance to see both of them from beneath his blindfold. He described one as a bit on the short side, plump and balding, and the second as very slim. The witness decided that the first description corresponded to Tahsin and the second to Ali İhsan.

Moreover the witness learned from her mother that a certain Ramazan, also detained in Lice Prison, told her mother that he and Tahsin had been chained together in prison for 30-40 days. Tahsin had been more or less unconscious and had kept repeating the name of his daughter.

The witness further explained that about sixteen days after the arrest of her brothers, her nephew Çayan, Tahsin's son, had also been arrested. At that time she had been in the village. In the morning his mother put Çayan on a donkey and sent him to the fields. Çayan did not come back. Later that evening, they were contacted by a relative who claimed she saw Çayan being taken away by soldiers from the field along with two other women. The witness recalled that the soldiers had passed through the village on the day when Çayan was arrested.

The witness maintained that her mother had tried everything to locate her sons. She explained that she, herself, applied to the Human Rights Association, where a lawyer prepared petitions for her. She took these petitions to the Diyarbakır State Security Court Public Prosecutor, who verbally replied that these people were not in custody. The petitions were not registered and nothing was written on them. However, she was given a paper and told to go to the security forces.

The witness was a non-commissioned senior gendarme sergeant. He was commander of the central gendarme station in Lice at the time of the events. He explained that in May 1994, Lice was a very considerable PKK activity area, and the gendarmes from Lice paid frequent visits to the villages in and around the district. Military units, which came from time to time to Lice were lodged at the regional boarding school for a period of ten or fifteen days. These units participated in operations with the gendarmes. However, they were under the command of their own unit commander, who generally held a higher rank than the district gendarmes commander. The witness explained that prior to an operation, the two units studied maps of the area and shared out tasks. Before such a unit arrived or left the region, a written message was sent to all other units who had to ensure their security.

During operations all soldiers wore the same uniform for security reasons, including the commandos, who normally wore “blue berets” When gendarmes paid a visit to a village, they acted in accordance with the orders received. Sometimes they just talked to villagers to warn them not to support or help the PKK.

The witness stated that about twenty-five villages were within his jurisdiction. He dealt with their judicial and security problems, taking over the duties of the police. He recalled having gone to Dernek a couple of times, as it was his duty to visit the villages frequently. There were a few PKK supporters in that village and he had heard about Tahsin Çiçek. He explained that if Tahsin and Ali İhsan had been taken into custody, their names would definitely appear in the custody records.

When soldiers planned to enter a village, the superior commander was immediately informed by a written message, which indicated the number of persons who would take part in the operation and the leader of the group. All messages were registered. They also kept a logbook, in which all incidents were recorded, if necessary, hour by hour. To verify whether soldiers had been to Dernek on 10 May 1994, it would suffice to check records, which would indicate exactly where the gendarmes had been on that day. The soldiers lodged in the regional boarding school also kept records as they assisted gendarmes during operations.

The witness further submitted that the district gendarme headquarters had custody facilities for only two or three detainees. If there were more, they were put in an office under the supervision of a soldier. Detainees were initially kept in the offices and then placed in the detention area. At that stage, their names were not registered. Following the interrogation, if it was established that the detainee had committed an offence, he was transferred to the Public Prosecutor’s office. If not, he was released. The commando units did not have the authority to take people into custody. If they found a person who had committed an offence, they would hand this person over to the gendarmes.

There were no detention facilities at Lice Regional Boarding School. If an army unit, based at the boarding school, took part in an operation with the gendarmes and arrested a number of villagers, then it could be possible that these people were first brought to the regional boarding school before being referred to the gendarmerie.

If the military found people on the “wanted” list during an identity check, they had to inform the gendarmes by phone or radio who would then take over. When placed in detention, a person’s name would be registered in a custody ledger book and he would be searched. Only after these steps, could he be placed in custody. Some detainees might be referred to the intelligence unit of the gendarmerie in Diyarbakır for further investigation.

The witness, who was a captain at the time of the incidents, was commander of Lice District Gendarme Headquarters. He was based in Lice between August 1993 and August 1995.

The witness, who knew Dernek, had never actually entered it, though he had passed by frequently. Dernek was known to give considerable support to the PKK. He had not met Tahsin Çiçek personally although he had heard that the Çiçek family had connections with the PKK. He recalled that Çiçek was a name used by several families, not all of whom were PKK supporters. On the dates in question he had not taken part in an operation where suspected terrorists had been arrested or detained.

All military units, when engaged in an operation, sent a message or an operation information form / pro forma document indicating the time, place and purpose of the operation and the units that would be involved in it. This was conveyed to the superior officer. Such operations should be distinguished from the regular visits made by gendarmes to villages for administrative and judicial purposes. When the witness received information on terrorist presence in the area, he had to complete a pro forma message for his superiors. Whenever someone was taken into custody, be it during an ordinary visit or during an operation, soldiers had to inform their superior of this. Anyone taken into custody was registered in the ledger and the public prosecutor was subsequently notified.

Lice consisted of a settlement area involving 65 villages divided into ten or twelve sections and each section was attached to a gendarme station. There were six gendarme stations under the command of the witness, including the central gendarme station commanded by Hasan Çakır and to which Dernek was attached.

From time to time military units were based in the regional boarding school. In general, the gendarmes alone were responsible for security in rural areas. However, if the forces were insufficient to control a particular situation, reinforcements would be requested and infantry or ground forces deployed in the area. In joint operations, the most superior officer of the participating units would take command. Although the witness was independent in the execution of his administrative/judicial powers, he nevertheless had responsibility towards the Governor for his administrative acts and to the district public prosecutor for judicial ones.

The reinforcement units could never perform the gendarmes' judicial duties. If these units went out on an operation in the mountain areas and found a suspect, they would wire the gendarmes to check whether the individual was wanted and, if so, then could bring him in. The reinforcement units had a totally different system of records and, as far as the witness knew, did not use service ledgers or custody records, given that they had no judicial functions to perform. During operations, the “blue beret” gendarme commanders removed their caps and wore normal army caps for camouflage.

The witness did not accept that anybody detained during a joint military and gendarme operation could be taken even temporarily to the regional boarding school. He explained the difference between taking a person into custody and putting him in a custody room. To render a suspect ineffective and perform a body search, the witness had the authority to keep the person near him, for example in the cafeteria under guard. That suspect might then be released within 24 hours. Such a person would not be put in a custody room and therefore would not be mentioned in a custody ledger. The witness said that this was “taking somebody in for observation” and not custody. The suspect’s statement would be taken and, if guilty of an offence, he would be put in the custody room and mentioned in the ledger. If someone was clearly dangerous and required interrogation or was to be kept overnight, he would definitely be placed in the custody room and registered in the ledger. However, if somebody were to be sent straight to Diyarbakır for interrogation for terrorist offences, he might not be mentioned in the Lice records. As there was no interrogation unit in Lice, people were sent to Diyarbakır or sometimes an interrogation team was invited to come to Lice. Sometimes a person's interrogation would reveal other names, in which case Diyarbakır Security Department might request their arrest and dispatch to Diyarbakır.

The witness further explained that he had not checked the records before coming to the hearing and did not remember exactly what he was doing on 10 May 1994. However, he had checked that he had not been in Dernek on that day. He could not recall anyone who had asked information about their relatives in detention. He had no comment on the fact that some people had disappeared in the Lice area in 1994.

The witness stated that he had been commander of the Gendarme Commando Company in May 1994. His whole unit consisted of about 140 men. Mr Yaralı was his district commander and Hasan Çakır, his station commander. His job was to secure an area. The administrative and judicial tasks were performed by other gendarmes. He had never seen commandos search or detain people or carry out identity checks. The “blue berets” of the commando units were not used in operations as they were too conspicuous.

It was possible that commando units based in the regional boarding school be sent out on an operation. There was a unit of about 40 soldiers stationed at the regional boarding school to ensure security in the region, given the number of schools that had been burned down. Commando units did not keep separate written records or daily service ledgers. They reported to the superior officer after completing their activities. If they had taken part in an operation, it would be indicated on the operation pro forma beforehand. However, the preparation of this form was not his task but that of the district gendarmes commander. His duty was training and exercise of his men. Anyone caught by his forces would be taken directly to the gendarmes headquarters. The district gendarmes had exclusive authority to detain people.

He knew the village of Dernek but had never actually gone into it. He had passed by. He had not participated in any operation in that village around 10 May 1994. It would be difficult to say which units had been involved in such an operation. If it was a major operation, then all the commando units in the area would have participated; otherwise, it would have been just the local gendarmes.

The witness lived in Dernek. He knew Tahsin and Ali İhsan Çiçek, both fellow villagers. Tahsin was married and had six children; he lived in a house close to his mother’s, near the mosque. He owned a taxi and was occasionally away from the village. Ali İhsan was a bachelor and lived with his mother.

On 10 May 1994, about 300 gendarmes came to the village on foot early in the morning. The villagers were already up for their morning prayers. The witnesses could not recall whether the soldiers were commandos or gendarmes from Lice. He did not recognise any of the gendarmes or their commanders. He stated that, before 10 May 1994, when soldiers came to the village, they had gone straight to the mountains in search of terrorists. The villagers had not been disturbed.

The witness could not remember exactly on which day of the week they had been detained. He thought it might have been a Tuesday. On the day of the operation, the soldiers ordered all the villagers to gather by the mosque. They took everyone’s identity cards and compared the names with a list. The soldiers then returned most of the identity cards except for those of Ali Ihsan Çiçek, Tahsin Çiçek, Mehmet Özinekçi, Mehmet Demir, Ramazan Akyol and himself. The rest of the villagers went home. The soldiers also searched the houses, and subsequently took the six villagers directly to the regional boarding school on foot.

The witness said they were not blindfolded at first. They walked to the boarding school, which he knew well as his children had studied there. He confirmed that part of the building was used by the military. At the school they were blindfolded, but their personal belongings were not registered. Neither did they undergo a medical examination.

They were kept all together in the basement of the building near the toilet and washing area. Their hands were free but their eyes were blindfolded The witness asserted that he knew Ali İhsan and Tahsin Çicek had been with him because they sat side by side and could talk quietly. At night they slept on chairs. They were given bread, biscuits and water.

During their detention no explanation was given as to the reason of their arrest. He was the only one to be interrogated. He was asked whether his son had joined the guerrillas in the mountains and he told the soldiers that his son was in İstanbul. Then he was asked about his son’s precise address; he told the soldiers that he did not know and was released. The soldiers only took his statement. He emphasised that no one had been ill-treated while they were in the boarding school.

The witness stated that they had stayed at the school for two or three days. The soldiers released Tahsin and Ali İhsan on Friday. He had heard someone say "Tahsin Çiçek, Ali İhsan Çiçek, take your identity cards, you're free". The others stayed one more night in the boarding school. On Saturday the rest of the detainees were taken to the regiment on the border of Lice and released from there. The witness could not make out whether the soldiers were commandos or army regulars. A helicopter came and they were told that the villagers from Dernek were to go out. They were then told that they were free. The witness and the other detainees went to the Lice station a week later to get their identity cards back. The witness explained that the Lice gendarme station and the regiment were distinct organisms.

When the witness returned home, the villagers asked him about Ali İhsan and Tahsin. He told them that Ali İhsan and Tahsin had already been released. The witness stated that he never said to Hamsa that either he or her sons had been ill-treated.

Tahsin had a son, called Çayan. The witness had not been in the village at the time when Çayan disappeared. When he returned, he was told that Çayan was not in the village any more.

The muhtar of Dernek in May 1994 was Behçet. He was a neighbour of the witness, who also knew the muhtar’s son, Cihat. Although Cihat had not been taken into custody, he had followed the group to the regional boarding school. When the soldiers asked him why he was coming with them, Cihat answered that he had lost his identity card and wanted to have a new one issued. He consequently went with the detainees to Lice. The witness had not seen him after the operation day. Cihat was not kept with the detainees at the regional boarding school.

The witness lived in Dernek and was in the village during the incident of 10 May 1994. Tahsin and Ali İhsan Çiçek were sons of his uncle's daughter, Hamsa.

In April - a month before they were taken into custody - Tahsin had been arrested during the wedding of the witness’ son in the district. The witness explained that some men had come and taken Tahsin away and released him four or five days later. He did not know the reason of this arrest.

In May 1994 the witness was in the village when the operation took place. According to the witness there were around 1000 soldiers, some of them commandos, though he could not be sure. The soldiers gathered the villagers and carried out an identity check. A soldier had a list of names but the witness could not see the list. The soldiers separated five or six villagers and the witness from the rest and took them to Lice. Tahsin and Ali İhsan were amongst those arrested. The soldiers also brought people from other hamlets. The witness could not remember how many detainees there were in total. The detainees were taken to the square near the school on the lower side of the village. The soldiers searched all the houses. From the square they were taken on foot to the Lice Boarding School. As soon as they were inside the building, they were blindfolded. In the boarding school there were students as well as soldiers. From the room where they were kept, the detainees could hear the children talking outside.

When they arrived at the boarding school, the soldiers did not take down their details or enter their names in a register. Their identity cards were not given back. They were taken to the basement of the building near the toilet and washing area. They were all kept together in the same room, together with villagers from other hamlets. There were no chairs or tables in the room. The floor was concrete and they sat on the floor. They were all blindfolded. Ali İhsan and Tahsin were in the same room with the witness, sitting next to him. The witness was not interrogated. The detainees managed to talk quietly to each other although it was forbidden. When necessary, the detainees collected money and the soldiers bought food for them. The witness gave some money to Ali İhsan and asked him to give it to a soldier to buy bread. A soldier brought them bread. However, they never talked about why they had been taken into custody.

According to the witness, they were taken out one by one to give statements. The soldiers did not question him, but the witness confirmed that Tahsin and Ali İhsan had been taken for questioning. However, he had no knowledge as to what they had been asked about. The witness stated that he could not recall how many times the two brothers had been taken away for interrogation.

The witness submitted that he had not been subjected to ill-treatment whilst he was held in the regional boarding school. For two nights they waited in the room and were then taken to the regiment and released from there. The witness continued that he had not heard anyone else being ill-treated. However, he stated that he had not seen anything because of the blindfold. Tahsin had been sitting next to him and Ali İhsan’s coat lay near him. The soldiers took Tahsin and Ali İhsan away from the room for about twenty minutes and later brought them back. The witness stated that he did not know whether they had taken them to another room or outside. They were detained on a Thursday, and on Friday Tahsin and Ali İhsan Çiçek were released. The soldiers read out their names and probably returned their identity cards too. The witness heard a voice say, "Go now. You're both free." He was sitting on Ali İhsan's coat when they took him away. Ali İhsan must have told the soldier about his coat as the soldier came back and told the witness to give Ali İhsan's coat. The witness stated that he did not know where the brothers were taken and added that he had not seen them since then. Thereafter, on Saturday, the soldiers released the rest of the detainees. The soldiers removed their blindfold when they arrived at the regiment. The witness explained that the regiment was in the centre of Lice. They waited there for about half an hour and were then released. They were told to come back in a week's time to get their identity cards.

All the detainees then returned to the village. Ali İhsan and Tahsin’s mother came and asked the witness about her sons’ whereabouts. The witness told Hamsa that her sons had already been released on Friday. Hamsa told him that they had not come home.

The witness explained that he did not say to Hamsa that Ali İhsan, Tahsin or himself had been ill-treated at the boarding school. He had not been subjected to ill-treatment. The witness further pointed out that it was possible that the brothers might have been ill-treated when the soldiers took them out of the room. However, he had not heard or seen anything.

The witness further stated that he did not know where Çayan was. Tahsin had many sons, including Çayan, who was blind. He had heard that Çayan had disappeared from the village. He, however, had not seen anything. He had no knowledge as to why they had taken Çayan. He had heard that Çayan had disappeared 6 or 7 days after the operation. By that time, the witness was in Diyarbakır. He was not aware that there had been an operation.

The witness confirmed that he had talked to Feride Çicek, Hamsa’s daughter once or twice. He last talked to her two years ago. In reply to Feride’s question, he replied that he had witnessed the soldiers taking her brothers away. Feride then went to the Diyarbakır HRA and told them about the incident. She also asked him to testify in Diyarbakır. The witness confirmed that he repeated the story to the public prosecutor and insisted that he was not scared to testify on this matter.

The witness, a farmer, lives in Dernek and was in the village during the incident of 10 May 1994.

He knew that Ali İhsan lived with his mother, Hamsa. Tahsin lived in his own house with his own family and had six children. Tahsin Çiçek used to work in the village but sometimes found jobs elsewhere. He had sheep, goats, animals and some agricultural land. He also had a taxi, which was taken from him before his custody. The witness explained that he had no knowledge of whether Tahsin had ever been in trouble with the authorities before May 1994. He had not attended the wedding of Mehmet Özinekçi's son.

He was in the village when the operation took place. The soldiers came on foot during morning prayers. There were a lot of soldiers, however he could not discern whether they were gendarmes or regular soldiers. The soldiers had come to the village before this operation but had had nothing to do with the villagers; they had gone up into the mountains. On that day, however, they came and gathered the villagers. They carried out an identity check and kept some identity cards (including the cards of the witness and four or five other villagers). Finally the soldiers took them away. There were also other villagers from other hamlets. Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Tahsin Çiçek and Ali İhsan Çiçek were among those arrested. They were taken to the Lice Boarding School on foot. Although it was a boarding school, a part of the building was used by the soldiers. The witness had never been in the school before.

The soldiers did not take down the details of the detainees or register them in a record or ledger. They took away their belongings. In the school, they first blindfolded Tahsin and then the witness. He never had the chance to remove his blindfold.

The detainees were taken to a room in the basement of the building. It was made of concrete. It was a place like a bath (hamam). As the witness was blindfolded, he couldn't really see but noted that there was no furniture. All the detainees were fellow-villagers and there were a few people from nearby hamlets. Their hands and feet were not bound. The guards and soldiers remained near them to stop any attempts at conversation. However, the room was small and the detainees could speak covertly. The witness could hear the voices of Tahsin and Ali İhsan, who were kept in detention for one night. The witness was not taken to interrogation at any stage. The detainees were not informed of the reasons of their arrest. The witness stated that he did not know whether Tahsin and Ali İhsan had been interrogated. The soldiers took them elsewhere; he had no knowledge of what could have happened to them. He did not see Ali İhsan or Tahsin being taken away for questioning at any stage of the detention.

The witness stated that he did not hear the soldiers call out Ali İhsan’s and Tahsin’s names since his hearing was not good. It is possible that that they did so without his being aware. At some point he heard some detainees say that Tahsin and Ali İhsan had been released and sent home. The soldiers later said that they had released the brothers. The other detainees stayed for one more night. They were then conveyed to the regiment in vehicles, still blindfolded, and released. Their identity cards were returned later. The witness went to his village and asked about Tahsin and Ali İhsan. He was told that they had not come back. Their mother came to his house and asked him where her sons were. The witness told her that they had been released the day before. The witness stated that he had not been subjected to ill-treatment in detention. Neither had he told Hamsa that others had been ill-treated. The soldiers had treated people well. After that date the witness did not see or hear anything about Ali İhsan or Tahsin.

Tahsin had a son called Çayan, who was blind. The witness did not know where he was. At the time when Çayan disappeared, the witness had been tending animals on the mountain. In the evening, he came down and was told that Çayan had disappeared. A long time had elapsed after their detention. The witness was not aware of a military operation in the village on the day Çayan disappeared.

The witness knew the muhtar’s son Cihat as well. He had not heard anything about him either joining the PKK, or accompanying the soldiers during an operation; nor did he know whether he had been the one who informed against Tahsin and Ali Ihsan. He did not know where Cihat was. When they were taken into custody, Cihat came with them in order to get his identity card. When they were released, he wasn't with them.

The witness stated that he was not frightened to testify and had not told anyone that he was scared to testify.

The witness finally explained that as Hamsa Çiçek's sons have disappeared, she lives by others’ charity. Her husband had died a long time ago in a traffic accident and she has five or six grand children with health problems.

Since approximately 1985, serious disturbances have raged in the south-east of 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 region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.

The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“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.”

Article 125 of the Turkish Constitution provides as follows:

“All acts and decisions of the administration shall be liable to indemnify any damage caused by its own acts and measures.”

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

The Turkish Criminal Code makes it a criminal offence

- to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

- to subject an individual to torture and ill-treatment (Articles 243 and 245).

- to commit unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450).

In respect of 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.

Generally, if the alleged author of a crime is a State official or a civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court, a refusal to prosecute is subject to an automatic appeal of this kind. If the officer is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code.

Any illegal act by the civil servants, be it a criminal offence or a tort, which causes material or moral damage may be 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. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code 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.

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 50 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 make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up 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.


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Jozef Wenner, is a Slovak national who was born in 1968 and lives in Trnava. Before he changed it in 2007, the applicant’s family name was Sedlák. He was represented before the Court by Mr M. Ficek, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 17 August 1999 a single judge of the Trnava District Court (Okresný súd) issued a penal order (trestný rozkaz) finding the applicant guilty of theft and sentencing him to four months in prison. The applicant challenged the order by way of an objection (odpor) which he later withdrew. The order thus became final and binding, on 11 March 2004.

Meanwhile, the applicant was charged with embezzlement on two counts (on 17 January 2000 and 16 November 2001, respectively), continuing fraud (on 5 November 2001), breach of the rules on the circulation of goods in foreign trade (on 8 January 2003) and fraud (on 3 December 2003).

On 3 December 2003 the applicant was arrested and, on 6 December 2003 a single judge of the Bratislava II District Court remanded him in custody pending trial on the fraud charge of 3 December 2003.

The applicant was incarcerated in a detention centre (Ústav na výkon väzby) in Bratislava.

On 25 March 2004 the Trnava District Court ordered the enforcement of the penal order of 17 August 1999. The applicant was subsequently transferred from detention and put in prison (Ústav na výkon trestu) in Želiezovce to serve his sentence under that order (for details see section “B” below).

On 5 April 2004, while the applicant was detained pending trial on the fraud charge of 3 December 2003, that charge and the remaining charges against him were joined to a single set of proceedings

Upon service of his sentence under the penal order of 17 August 1999, the applicant was again remanded in detention pending trial on the fraud charge of 3 December 2003 and the remaining charges (for details see section “C” below).

He was incarcerated in the Leopoldov detention centre.

On 22 April 2004, sitting in private (neverejné zasadnutie), a single judge of the Trenčín District Court ordered what amounted to an end of the applicant’s detention pending trial (prepúšťa z väzby) and ruled that, immediately thereafter, he be transferred to prison (ihneď dodaný do výkonu trestu) in order to serve his four-month sentence under the penal order of 17 August 1999. The decision was to be implemented on 7 May 2004 and, accordingly, the applicant was due to finish serving that sentence on 7 September 2004.

The decision of 22 April 2004 was served on the applicant on 7 May 2004 and a copy of it was sent to the Bratislava detention centre by fax on 13 May 2004. On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of 17 August 1999.

On 31 August 2004 the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his four-month prison sentence.

On 3 September 2004, sitting in private, a single judge of the Trenčín District Court ordered that, as soon as the four-month sentence under the penal order of 17 August 1999 had been served, on 7 September 2004, the applicant be again detained pending trial in connection with the fraud charge of 3 December 2003 and the remaining charges against him.

The District Court judge referred to the order for the applicant’s detention of 6 December 2003 and its contents, including the fact that the applicant was not staying at the place of his registered residence (trvalé bydlisko), that his whereabouts were unknown, that there had been two warrants for his arrest issued and that he had been apprehended while attempting to commit another offence.

From 1992 until his arrest the applicant had been involved in various property-related offences in at least three districts, was unemployed and had no source of regular income. It was also observed that the applicant had three previous convictions, mainly for property-related offences.

The order of 3 September 2004 was enforced on 7 September 2004 at 4:30 a.m. when the applicant was transferred from the Želiezovce prison to the Leopoldov detention centre.

A copy of the decision of 3 September 2004 was served on the applicant’s lawyer on 7 September 2004. He lodged an interlocutory appeal (sťažnosť) on behalf of the applicant on 9 September 2004. He relied on the principle of presumption of innocence, argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant’s behalf that he would live in accordance with the law.

A copy of the decision of 3 September 2004 was served on the applicant on 16 September 2004. In addition to the appeal lodged on his behalf by his lawyer, the applicant lodged an interlocutory appeal on his own.

In so far as it can be established from the documents submitted to the Court, the applicant argued that the decision of 3 September 2004 had been phrased in general terms, that there had been irregularities in transferring the applicant from the detention centre to prison, that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge.

On 7 October 2004 the Trenčín Regional Court (Krajský súd) upheld the decision of 3 September 2004.

It held that the applicant’s transfer from the detention centre to prison had been in conformity with section 75 of the Code of Criminal procedure, his detention was justified and his pledge could not be accepted as it had not been made directly by him.

On 16 September 2004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). On 10 November 2004 he amended his complaint.

Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention and on their constitutional counterparts, the applicant challenged the decisions of the Trenčín District Court of 22 April 2004 and of the Regional Court of 7 October 2004 as being unlawful and arbitrary.

In so far as can be established from the documents submitted to the Court, the applicant argued in particular that, in its decision of 7 October 2004, the Regional Court had failed to examine properly his objections against the decision of 3 September 2004. The applicant also asserted that the decision of 22 April 2004 had been taken by a court which had no jurisdiction ratione loci to take it.

On 25 December 2004 the Constitutional Court declared the applicant’s complaint inadmissible. It found that, in so far as the complaint related to the decision of the District Court of 22 April 2004, it had been lodged outside the applicable two-month time-limit.

As to the remainder of the complaint, the Constitutional Court found no constitutionally relevant error or arbitrariness in the decision of the Regional Court of 7 October 2004.

On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it.

The public prosecution service acknowledged in letters of 24 May and 6 June 2005 (the Trenčín Regional Office of Public Prosecution), 14 July 2005 (the Trnava Regional Office of Public Prosecution) and 25 August 2005 (the Office of the Prosecutor General) that the Trenčín District Court had erred in having transmitted its decision of 22 April 2004 to the Bratislava Detention Centre no earlier than 13 May 2004. As the decision was to have taken effect on 7 May 2004, the applicant had been kept in detention six days longer and had started serving his four-month sentence six days late. This, however, had no impact on the lawfulness of the deprivation of the applicant’s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison.


Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Ms Aminat Nasirkhayeva, is a Russian national who lives in Grozny, Chechnya. She is represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran, Ingushetia. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

The applicant had four children. One of them, Ms Balizha Nasirkhayeva, was born in 1992. The applicant lived in Grozny with her family.

In 1999 the Russian Government launched a counter-terrorist operation in Chechnya.

On 27 December 1999 the applicant’s daughter received a wound to the head as a result of an explosion. The family and the wounded child remained in the basement of their house in view of the ongoing hostilities.

On 11 or 13 January 2000 when federal servicemen reached the district, they gave Balizha Nasirkhayeva first aid and delivered the applicant and her daughter to a military hospital by helicopter. From there the applicant and her daughter were taken to a hospital in Vladikavkaz where the child spent six days in an intensive care unit.

On 7 April 2000 Balizha Nasirkhayeva was brought to the Clinical Hospital of Ingushetia in Nazran and diagnosed with a post-traumatic condition caused by a penetrating wound to the skull. She was operated upon and several days later she was transferred by plane to a specialised paediatric hospital, the Ninth Hospital, in Moscow.

On 14 April 2000 Balizha Nasirkhayeva died at the intensive care unit of the Ninth Hospital in Moscow.

On 23 September 2004 the applicant and her husband sought assistance in receiving compensation for their child’s death from the Human Rights Office of the President of the Chechen Republic (“the Human Rights Office”).

On 25 July 2005 the applicant sued the Government of Chechnya, seeking compensation for her daughter’s death.

On 16 May 2006 the Staropromyslovskiy District Court of Grozny awarded her 20,000 Russian roubles in a lump sum, such award being given to people whose relatives had died during the counter-terrorist operation in Chechnya. The remaining claims for non-pecuniary damage were dismissed for the absence of a causal link between the actions of the defendant and the claim.

The applicant did not appeal and on 26 May 2006 the judgment became final.

On 24 October 2005 the Human Rights Office requested that the prosecutor’s office of the Zavodskoy District of Grozny (“the district prosecutor’s office”) investigate Balizha Nasirkhayeva’s death. The letter indicated that information about the criminal proceedings had been sought by the Staropromyslovskiy District Court within the scope of the compensation proceedings. It is unclear if this letter reached the district prosecutor’s office.

On 7 March 2006 the applicant complained about her daughter’s death to the district prosecutor’s office.

On 12 March 2006, referring to a letter from the Human Rights Office of 10 March 2006, the district prosecutor’s office opened an investigation under Article 105 § 1 of the Criminal Code (murder). The case was assigned number 51040.

Pursuant to the Court’s request following the communication of the present case, the Government submitted thirty-six pages of documents from the criminal investigation file. These documents can be summarised as follows.

On 8 April 2006 the district prosecutor’s office granted victim status to the applicant. She was questioned and stated that her daughter had been wounded as a result of an explosion. Two neighbours stated that they had heard the explosions outside and then saw that the applicant and her daughter had been wounded. The investigator also collected medical records and attempted to obtain information about the military operations in Grozny at that time. It does not appear that they obtained any relevant information in this respect.

On 12 May 2006 the investigation in case no. 51040 was suspended for its failure to identify any suspects. The applicant was informed, but did not appeal against this decision.

On 9 April 2009 the applicant wrote to the Investigative Committee of the Chechnya Prosecutor’s Office and asked for an update on the investigation.

Article 125 of the Code of Criminal Procedure provides as follows:

“Article 125. Judicial examination of complaints

Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions....

The court shall examine the lawfulness and the grounds for the impugned decisions or acts ... within five days from the receipt of the complaint...

As a result of the examination of the complaint the court shall deliver one of the following decisions:

1) Declaring the decisions, acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects;

2) Not allowing the applicant’s complaint...”


No violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1945 and lives in Lubin.

In 1973 he had a car accident.

On 28 February 1977 the Lubin District Court (Sąd Rejonowy) granted the applicant a life disability pension payable by the insurer, Polish Insurance Establishment (Polski Zakład Ubezpieczeń), in the amount of 1,000 old Polish zlotys a month.

The insurer did not pay the applicant’s disability pension for the years 1995 to 2000. Following a complaint by the applicant in 2000, the insurer paid him the amount of 30.94 Polish zlotys (PLN), which at the relevant time was the equivalent of 7.50 euros. The applicant unsuccessfully requested several times that his pension be index linked.

On 30 September 2004 the applicant lodged a civil claim against the insurer. He sought the indexed pension for the years 1995-2000. The value of his claim amounted to PLN 30,480.

On 15 October 2004 the applicant requested the court to exempt him from the court fee.

On 20 November 2004 he rectified the procedural shortcomings of his request. He submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego). The relevant part of that declaration read as follows:

“I am married. My wife receives a disability pension of PLN 500 a month. I receive a disability pension of PLN 1,300 a month.

We have our three biological grandchildren, to whom we are foster parents, to support. The grandchildren are 3, 8 and 18 years of age and the oldest grandchild is still at school.

Our constant monthly expenses are:

- rent – PLN 320,

- water – PLN 100,

- electricity – PLN 120,

- gas – PLN 70,

- television – PLN 80,

- telephone – PLN 90,

-medicaments – PLN 120.

I do not have any shares or securities or any savings. I do not have a car or any other property of financial value.

In my opinion payment of the court fees will entail a substantial reduction in my and my family’s standard of living.”

On 4 December 2004 the applicant completed his declaration of means submitting that he received a disability pension of PLN 1, 383.33, his wife received a disability pension of PLN 537.93 and as foster family for their three grandchildren they received a financial benefit of PLN 2,049.40.

On 14 December 2004 the applicant was granted an exemption from court fees exceeding the amount of PLN 1,200 for his claim. The entire fee amounted to PLN 2,233.60. The applicant did not appeal against that decision and paid the required amount.

On 5 May 2005 the Legnica Regional Court (Sąd Okręgowy) gave judgment, dismissing the applicant’s claim for compensation.

On 17 June 2005 the applicant appealed against the first-instance judgment.

On 1 July 2005 he requested an exemption from the court fees in the appellate proceedings. The fees amounted to PLN 2,234.

On 12 July 2005 the Legnica Regional Court granted him an exemption from court fees exceeding PLN 1,000.

On 12 July 2005 the applicant lodged an interlocutory appeal (zażalenie) against that decision.

On 27 July 2005 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed his appeal. The relevant part of the Court of Appeal’s reasoning read as follows:

“The Court found that, although the income received by the applicant and his wife was not high, they should, however, when lodging an appeal, have been aware that they would have to pay the court fee, and should have made the necessary savings in advance. The court’s view could not be altered by the fact that the applicant and his wife were a foster family for their 3 grandchildren. A party seeking his or her claim in a court should limit other expenses.”

On 28 September 2005 the Legnica Regional Court discontinued the appellate proceedings.

The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also the judgment delivered by the Court on 26 July 2005 in the case of Jedamski and Jedamska v. Poland, no. 73547/01, §§ 29-39).


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

All the applicants are Ukrainian nationals and residents who opened savings accounts with the Ukraine Savings Bank, which until 1992 was an integral part of the USSR Savings Bank. With the exception of the cases expressly referred to below, all the accounts were opened in the 1980s. Under the terms of the agreements: “The State guarantee[d] that deposits [would] be repaid in full on demand by the account holder”. The rule was not stated to be subject to any restrictions.

In 1996 the Ukrainian authorities implemented a monetary reform intended to replace the former monetary unit, the karbovanets coupon, with a new currency, the Ukrainian hryvna (українськa гривнa, UAH), at an exchange rate of 100,000 karbovanets coupons for 1 hryvna. The conversion also had an impact on the applicants’ deposits, which had already considerably depreciated as a result of inflation.

On 21 November 1996 the Ukrainian Parliament enacted the Ukrainian Citizens’ Deposits (State Guarantee of Reimbursement) Act (Law no. 537/96). Pursuant to section 3 of that Act, the applicants’ deposits were indexed at a ratio of 1 karbovanets coupon to 1.05 hryvnas. Section 7 established a system for the indexed savings to be repaid progressively, taking into account the account holder’s age, the amount on deposit and other criteria. Each year the Government brings in regulations specifying the categories of account holders entitled to receive compensation in the coming year. Under the regulations, only account holders aged 80 or over are entitled to recover a part of their savings (UAH 48, equivalent to approximately 10 euros (EUR) per person). In addition, on an account holder’s death, his or her heirs are entitled to UAH 150 to pay for the burial.

In the late 1990s each of the applicants issued proceedings against the Ukraine Savings Bank in the relevant courts seeking payment of all or part of their indexed deposits in hryvnas. Their claims were dismissed both at first instance and on appeal on points of law. In most of the decisions, the courts held that the claimants concerned were not entitled to compensation under Law no. 537/96 for the fall in value of their deposits, as they were under 80 and thus had no valid legal claim granted by the Government under the Act. As regards the fifth, twelfth, thirteenth and fourteenth applicants, who had attained the qualifying age, the courts found that they were entitled to compensation limited to UAH 48, as the legislation in force did not provide for the repayment of the full value of their deposits.

Subsequently, some of the applicants made one or more unsuccessful applications for supervisory review of the final decision to the President of the Ukrainian Supreme Court or the president of the relevant regional court.

The first paragraph of Article 41 of the Constitution (Конституцiя Украïни) reads as follows:

“Everyone has the right to own, use and dispose of his or her property...”

The relevant parts of Article 384 of the Civil Code (Цивiльний кодекс) read as follows:

“Private persons may deposit sums of money in State savings banks and other financial institutions, have access to their deposits...

The State guarantees the confidentiality and safekeeping of deposits and their repayment on demand by the account holder...”

The third paragraph of section 39 of the Banking Activities Act (Закон “Про банки i банкiвську дiяльнiсть” – Law no. 872-XII of 20 March 1991), which was in force until January 2001, provided:

“... Ukraine shall guarantee the safekeeping of deposits ... lodged by private persons with the Ukraine Savings Bank and their repayment to account holders on demand.”

The relevant provisions of the State Guarantees of the Reimbursement of Ukrainian Citizens’ Deposits Act (Закон “Про державнi гарантiï вiдновлення заощаджень громадян Украïни” – Law no. 537/96 of 21 November 1996) provide:

Section 1

“This Act sets out the State’s obligations to Ukrainian citizens who, following the devaluation, have lost money which they deposited before 2 January 1992 in branches of the USSR Savings Bank ... carrying on business on Ukrainian territory...

Similarly, Ukrainian citizens who deposited money with a branch of the USSR Savings Bank ... between 1992 and 1994 which remained in the accounts of the Ukraine Savings Bank for at least one full year between 1992 and 1995 shall be entitled to compensation...”

Section 2

“The State undertakes to maintain and update the real value of individual savers’ deposits and to pay them compensation in accordance with the relevant provisions.”

Section 3

“The deposits by the private individuals referred to in the first paragraph of section 1 of this Act shall be revalued using the ratio of 1.05 hryvnas for 1 karbovanets coupon lodged, corresponding to the position at 1 October 1996.”

Section 6

(as amended by Law no. 8/97 of 17 January 1997)

“The payment of compensation to Ukrainian citizens for damage resulting from the depreciation of their deposits shall be made ... by the Treasury ... from 1997 onwards.

The funds set aside to finance this compensation scheme ... shall constitute a special item in the budget of the Ukrainian State...”

Section 7

“Deposits shall be reimbursed progressively taking into account the account holder’s age, the amount of the deposit and other criteria and the amount of funds allocated for that purpose in the Ukrainian State budget for the forthcoming year.

[Paragraph amended by Law no. 201/98 of 24 March 1998] The list of the categories of account holders, the order of reimbursement of the indexed pecuniary deposits and the amount of the payments referred to in section 8 of this Act shall be determined by the Ukrainian Cabinet to the extent the funds allocated for that purpose in the budget of the Ukrainian State allow.”

Section 8

“[Paragraph amended by Law no. 201/98 of 24 March 1998] On an account holder’s death, the heirs ... may withdraw parts of the indexed deposit ... for the purposes of arranging the funeral, the amount being calculated by reference to the amount of the funeral grant...”

The categories of persons eligible for repayment of their deposits are defined in regulations (постанова) approved each year by the Cabinet for the forthcoming year (see regulations nos. 1210 of 31 October 1997, 825 of 8 June 1998, 457 of 25 March 1999, 817 of 17 May 2000, and 275 of 26 March 2001). Under these regulations, the right to partial reimbursement of the deposits is reserved to account holders who attained the age of 80 by 1 January 1997 and heirs of deceased account holders, for the purposes of making burial arrangements. Account holders from the first category are entitled to reimbursement of UAH 48 (approximately EUR 10), whereas the heirs of deceased account holders are entitled to an amount equivalent to the funeral grant, that is to say UAH 150 (approximately EUR 30). Since 1999 disabled ex-servicemen have also been able to claim reimbursement of part of their deposits. Regulation no. 275, which covers the year 2001, added to these categories account holders who had reached the ages of 100 or 80 respectively by 1 January 2001. Account holders in the latter category are entitled to the sum of UAH 50. All the aforementioned payments may only be made “to the extent the sum allocated in the State budget for the year concerned allows”.

According to a practice direction (no. 1-5/117) issued by the Ukraine Supreme Court on 15 March 1999 on the implementation of Law no. 537/96, complaints concerning the repayment of indexed deposits to private individuals under the statutory guarantee provisions in force are to be dealt with under the contentious-business procedure. The practice direction is binding on all Ukrainian courts. When deciding such cases, the courts must remember that they are not dealing with liability for breach of contract between the account holder and the Savings Bank, but with the repayment of revalued deposits under the relevant provisions. The Supreme Court also directed that payments of compensation for indexed deposits must be made solely through branches of the Savings Bank. Consequently, in the event of litigation, the regional branch of the Savings Bank and the Ukraine Treasury must be joined to the proceedings as defendants. The Savings Banking reimburses the indexed deposits to the extent the sums allocated for that purpose in the budget of the Ukrainian State have been paid over to it in accordance with the ranking provisions established by the Cabinet. Thus, if a court finds that the sums concerned have not been paid to the Savings Bank or that the claimant is not a person entitled to reimbursement of the deposits for the year concerned, that person’s claim must be dismissed. If the claim exceeds the prescribed sum, the court shall grant it to the extent laid down in the State Guarantees of the Reimbursement of Ukrainian Citizens’ Deposits Act.

On 5 April 2002 the Cabinet passed a resolution concerning the reimbursement in 2002 of the value of deposits made by Ukrainian citizens before 2 January 1992 in branches of the former USSR Savings Bank situated on Ukrainian territory (Про виплату в 2002 роцi грошових заощаджень громадян Украïни, вкладених до 2 сiчня 1992 р. в установи колишнього Ощадного банку СРСР, що дiяли на територiï Украïни). By that resolution, the Government allocated UAH 500,000,000 from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under section 8 of Law no. 537/96. The remaining UAH 435,000,000 was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 150 for people from the first category and UAH 50 for people from the second.


The applicants Ms Layihe Biç, Mr Resul Biç, Ms Zehra Biç and Ms Hamdiye Biç, were born in 1962, 1982, 1984 and 1993 respectively and live in the village of Yukarıharım, attached to the province of Diyarbakır.

On 13 October 1993 İhsan Biç was arrested by security forces in Bismil on suspicion of having participated in an attack on a military convoy, organised by the PKK. In his statement to the gendarmes, he confessed to being a member of the PKK and having participated in the attack against the military convoy.

On 8 November 1993 İhsan Biç was brought before the public prosecutor. The same day he was brought before the investigating judge at the Diyarbakır State Security Court, who subsequently ordered his detention on remand. İhsan Biç was accordingly sent to Batman prison.

On 1 December 1993 the public prosecutor initiated criminal proceedings against İhsan Biç in the Diyarbakır State Security Court. In his indictment, he accused him of membership of an illegal organisation, of aiding and abetting the members of this organisation and of having participated in an attack that had been aimed against the security forces. He asked the court to sentence him under Article 125 of the Criminal Code.

On 19 September 1995 the Diyarbakır State Security Court concluded that there was insufficient evidence to prove that İhsan Biç had taken part in any armed attack, but found him guilty of membership of an illegal organisation. He was accordingly sentenced to twelve years and six months’ imprisonment pursuant to Article 168 § 2 of the Criminal Code. The court further ordered his transfer to the Diyarbakır Prison.

On 25 September 1995 İhsan Biç appealed.

On 2 October 1996 the Court of Cassation quashed the decision of the State Security Court and sent the case file back for re-examination.

The proceedings recommenced before the Diyarbakır State Security Court. The first-instance court decided to keep İhsan Biç in detention on remand during the course of the trials. While the proceedings continued, İhsan Biç was twice operated upon a stomach complaint. At a later date, he was also diagnosed with hepatitis B and subsequently died in the hospital on 9 October 1999 due to liver cirrhosis.

The Diyarbakır State Security Court decided to discontinue the criminal proceedings against İhsan Biç after his death.