Press Release No: Individual Application 32/16
23.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF HIDIR ÖZTÜRK AND DİLİF ÖZTÜRK ON THE OBLIGATION TO CONDUCT AN EFFECTIVE INVESTIGATION

On 21/4/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Hıdır Öztürk and Dilif Öztürk (application no. 2013/7832) that there had been a breach of the right to conduct an effective investigation within the scope of the right to life enshrined in Article 17 of the Constitution.  

The Facts

While the applicants’ daughter A.Ö. was working in a factory belonging to the Private Provincial Administration operating at the Akpınar Town in Mazgirt / Tunceli, any news could not be received from her after the end of shift on 27/7/1992. The applicant, who is the father, Hıdır Öztürk, maintained before the chief public prosecutor’s office that his daughter had been taken to a white car by unidentified persons while walking along the Tunceli-Elazığ highway.  He noted that he was firstly suspicious of a person wishing to get married with his daughter and subsequently of a person running supermarket where he was shopping. The applicant requested the extension of the investigation against a person whom he alleged to be an accomplice of that person.

While the searching activities for A.Ö. were going on, a dead body of a woman determined to have been killed by means of strangling with a cloth around her neck was found within the boundaries of Elazığ province. The applicants identified that the dead body in question was belonging to their daughter A.Ö..

On 10/8/1992, the Chief Public Prosecutor’s Office initiated a criminal case against N.A., E.A. and S.Ç. alleged to be in the same car with the applicant Hıdır Öztürk’s daughter on the day of incident for premeditated murder of A.Ö.. At the end of the proceedings, it was ordered that the accused persons be acquitted, and that a criminal complaint be filed for the identification of the offenders of the incident. Upon this criminal complaint, the Elazığ Chief Public Prosecutor’s Office issued a “permanent arrest warrant” in respect of the offenders.

In the course of the proceedings conducted by the Assize Court, the defence-counsel of Ş.Ç. stated that the incident was published in a newspaper in this manner: “the organization damned the counter-guerrilla murder”.

It was alleged by the Chairperson of the Tunceli Branch of the Human Rights Association and a lawyer that in a news report entitled “Death Squad” published in the relevant issue of a newspaper dated 26/8/1993, a military officer declared that A.Ö. had been killed by M.Y. whose nickname was “the Green”, and thereupon, a petition was submitted to the Tunceli Chief Public Prosecutor’s Office. The file of investigation initiated upon this allegation was joined with the investigation conducted into the death of A.Ö..

While the investigation was pending, the applicant was invited by the Human Rights Inquiry Committee established in the Grand National Assembly of Turkey and heard on 13/12/2011.

As to the death of his daughter, the applicant maintained that in 1992, the Tunceli Provincial Gendarmerie Commander asked the applicant to visit him; that in the first interview during which he was alone, the commander asked him to bring his daughter, and when he went there together with his daughter, A.Ö., she was caused to meet with a thin and bearded person whose name was “Mr. M.....” in a closed room on the ground floor of the command headquarters building; that her daughter was kidnapped two months after this incident; that when he subsequently went to the Elazığ State Hospital together with his family with a view to identifying a dead body belonging to a woman, a police officer in civilian clothes told his wife, Dilif Öztürk, “this is your daughter; she was resembling to you”. He accordingly alleged that her daughter had been tortured to death.

The applicant also maintained that he had subsequently seen the person named M.Y. on TV channels; that her daughter had also known that person; that three days after the his daughter’s death body had been found, that person was evacuated from the lodging building of the Private Provincial Administration; and that on those days, A.Ö.’s service contract had been terminated.

The Human Rights Inquiry Committee requested information concerning the applicant’s allegations from the Tunceli and Elazığ Chief Public Prosecutor’s Office. The Elazığ Public Prosecutor’s Office provided information in chronological order in its reply letter dated 28/12/2011.

On 1/2/2012, the applicant filed another petition with the Tunceli Chief Public Prosecutor’s Office through his lawyer with the allegation that there had been negligence in arrest of M.Y. whose nickname was “Green” and his team whom the applicant held responsible for her daughter’s murder. The Elazığ Chief Public Prosecutor’s Office drew up a police report concerning M.Y. and the other persons including certain law-enforcement officers, public officers and the members of the National Intelligence Organization (“the MIT”) and sent the investigation file to the Malatya Chief Public Prosecutor’s Office.

On 23/2/2012, the Malatya Chief Public Prosecutor’s Office requested information from the Undersecretariat of the MIT concerning M.Y.’s duties under the MIT. The Undersecretariat noted in its reply letter dated 15/3/2012 that the MIT had from time to time benefited from M.Y. between September 1994 and the date of 30/11/1996.

On 25/4/2012, the applicant provided the Malatya Chief Public Prosecutor’s Office through his lawyer with electronic record (DVD) concerning the video-interview submitted by a person alleged to be a military officer A.A. to a foreign agency. In this interview, A.A. noted that he had seen M.Y. in the Gendarmerie Intelligence and Anti-Terror Unit in Diyarbakır (according to his own declaration) on the dates when the applicant’s daughter had been killed; that M.Y. introduced A.Ö. to him “the sister of a person named S.Ç., the person who was a member of the terrorist organization and responsible for the Tunceli region and who was an influential person within the organization”; and that he was of the opinion that A.Ö. had been killed with a view to intimidating S.Ç. and the people around him.

In his statement taken by the Malatya Chief Public Prosecutor’s Office, the retired senior colonel M.S.Y. alleged to have the applicant’s daughter meet with M.Y. at the commandership denied all allegations of the applicant.

On 8/6/2012, the Malatya Chief Public Prosecutor’s Office took the applicant’s statement once again. In his statement, the applicant mainly reiterated his previous statement before the Committee.   He additionally stated that when he went to the Provincial Gendarmerie Command together with his deceased daughter A.Ö. and his other two daughters in May 1992 upon the call of the Tunceli Provincial Gendarmerie Commander, certain questions were addressed to their daughters by a bearded man in a room on the ground floor of the building, and photos of certain members of the terrorist organization were shown to them; that among these members, there was a photo of his elder daughter A.Ö.; and that his daughters told that their sister participated in the organization after getting married and then started living abroad with his husband S.Ç.; that his daughter A.Ö. was seen while being taken to a white car by three men one of whom was a bearded person. The applicant also maintained that he had talked with the gendarmerie retired non-commissioned officer H.O., whose name was included in the report pertaining to a case known by public as “Susurluk”, on the phone and H.O. told the applicant that he had knowledge concerning the murder of the applicant’s daughter, A.Ö..  

H.O. noted in his statement taken on 13/6/2012 that the captain Z., who was the section commander at the JITEM in Elazığ (according to his own declaration), had explained him in July 1993 that M.Y. whose nickname was “Green” had kidnapped a woman named A. in Mazgirt as that woman’s brother-in-law had been the head of a terrorist organization in Tunceli region; that  M.M. who was known to be confessor of the organization also accompanied him; that after kidnapping her, they had taken her to the JITEM in Diyarbakır and she was brought before A.K. who was the commander of the JITEM; and that M.M., M.Y., A.K. and A.A., who subsequently started living in Sweden, had tortured that woman for three days; however, captain Z. had not provided any information as to how the woman named A. had been killed.

H.O. also noted in the same statement that those who had been tortured in this region were killed in regions where the Gendarmerie Commands were authorized; that thereby, the duly investigation of the incident had been prevented; that the Mazgirt District Gendarmerie Station Commander and M.B., who was the commanding officer in 1994, were also aware of the incident; and that the records concerning the incident leading to the death of A.Ö. were saved in the Mazgirt District Gendarmerie Command.

Upon the instruction of the Malatya Chief Public Prosecutor’s Office, the persons whose names were mentioned in the applicant’s allegations noted in their statements that they had not known A.Ö., H.O. and M.Y.; and that they had not had any knowledge concerning the incident. The director of the Tunceli Private Provincial Directorate, K.K., noted in his statement dated 23/10/2012 that he could not remember who were the applicant and A.Ö.; and that the impugned evacuation of the lodging building was of a routine procedure.

The Malatya Chief Public Prosecutor’s Office did not take any further action until 13/3/2014 and once again sent the file to the Elazığ Chief Public Prosecutor’s Office which issued a new arrest warrant in respect of the suspect M.Y. on 29/9/2014.

On 25/5/2005, the applicants applied to the Damage Determination Committee of the Tunceli Governorship through their lawyers, and this request was dismissed by the Committee’s decision dated 10/10/2006.              

The applicants brought an action for annulment of the dismissal decision in question, and the relevant court dismissed the action brought by its decision dated 3/6/2010. The decision was upheld by the judgement of the Supreme Administrative Court. The applicants’ request for rectification of the judgment was also dismissed by the Supreme Administrative Court.

The Applicants’ Allegations

The applicants maintained that their daughter had been tortured and killed after being a victim of forced disappearance by the security forces and M.Y., who was serving for the MIT; that an effective criminal investigation had not been conducted into this incident; that moreover, the action for compensation brought by them had been dismissed on the ground that the incident was a terrorist act or an incident derived from terrorism. The applicants accordingly alleged that the right to life guaranteed in Article 17 of the Constitution had been violated.

The Court’s Assessment

The Constitutional Court made the following assessments in brief within the scope of this allegation:  

In the impugned investigation, the facts that investigations as to the allegations had been initiated a long time after the incident and that the offenders had been sought in a manner which could not be understood have made it difficult to reach a conclusion. 

The present application includes allegations that, as explained in the above-mentioned part of the facts, certain groups alleged to be affiliated to the security forces had involved in unidentified incidents on a certain date and in a certain region of our country; and that this incident is one of them. In the present incident, the investigating authorities’ failure to take a step for making investigations as to the existence of such groups, as to whether they had involved in acts such as forced disappearance, torture and illegal killing, as alleged, and if so, the degree of their involvement is the most significant element undermining the effectiveness of the investigation. 

Upon the letter of the Human Rights Inquiry Committee of the GNAT and the application subsequently lodged by the applicant, Hıdır Öztürk, through his representative, the competent authorities partially deepened the investigation. However, it has been observed also at this stage that certain steps capable of clarifying the incident and the identifying those responsible were not taken.

One of these untaken steps is the non-deepening of the investigation into the incidents place and time of which were reported by certain witnesses in a manner confirming the allegations that A.Ö. had been forcibly disappeared by official authorities. H.O. maintained that the records pertaining to the disappearance of A.Ö. had been drawn up and saved by the Mazgirt District Gendarmerie Command and by him.

In spite of the time having elapsed and the allegations that the public officers also involved in the incident,  the existence of a record in this respect was not  searched in an application in which it was maintained that serious human rights violations such as forced disappear and torturing someone to death had been caused although all kinds of probabilities should have been taken into account for identification of the offenders of the incident and the fact that the person providing the information in question was a public officer likely to have knowledge of such information should have been born in mind.

Along with the failure of searching for the existence of such a record, it has been observed that in the statements of the above-mentioned witness, there were certain security forces alleged to have knowledge of the impugned incident; that although identifying information pertaining to such officers were provided, any step was not taken for taking the statements of these officers during the investigation. Likewise, it has been revealed that any step was not taken for taking the statement of A.A. alleged to be an eye-witness of the incident. 

Moreover, in spite of existence of clear and certain statements by some witnesses concerning the place and the date where and when A.Ö. was taken to Diyarbakır, it has been observed that the competent authorities failed to try clarifying the incident with this aspect. 

As to the allegation that the applicant, Hıdır Öztürk, was asked to visit the Tunceli Provincial Gendarmerie Command together with his daughters before the incident and they firstly interviewed with the regimental commander and subsequently with M.Y., the accuracy of the defence-submission of the Commander M.S.Y. and the applicant’s allegation was not evaluated by means of identifying the personnel serving in the Command at the relevant time and likely to have knowledge thereof. Nor were the statements of the applicant’s daughters who were alive taken.

As to the research of the allegations that A.Ö. was tortured to death; although it is specified in the post-mortem examination report that dead body of the deceased was photographed, the failure of making an examination for clarification of the questions as to whether the deformations on the deceased’s face and body were resulted from the time having elapsed after being killed or as to whether she had been subject to a treatment as maintained in the allegations cannot be comprehended.   

It has been understood that the investigating authorities failed to take all reasonable measures expected from them for obtaining evidence likely to be collected at the place and time where and when the incident took place. Nor has it been determined that they subsequently took a concrete step with a view to clarifying the cause of the incident.  It has been also observed that the single step taken by these authorities for ensuring effectiveness of the investigation is to appoint a senior law enforcement officer 18 years later and to expect that the investigation be conducted in a more meticulous and comprehensive manner through this officer. 

It has been seen that the investigation, as a whole, remained insufficient for the clarification of the cause of incident leading to intentional violation of the right to life and for the identification of those who were responsible. It cannot be also mentioned that the investigating authorities assessed the circumstances of the incident independently from such allegations, ex officio determined the investigation procedure and subsequently applied a reasonable method in this respect. 

It has been therefore observed that necessary steps were not taken within the scope of the investigation on time and in an adequate manner for the clarification of the cause of death.

It has been concluded that the investigation was not conducted in a necessarily speedy and meticulous manner for the collection of all evidence capable of identifying those who were responsible and for the prevention of giving impression that illegal actions were tolerated; and that thereby the investigation was retarded for a long time without taking any step which would conclude the investigation.

It has been consequently held by the Constitutional Court that there was a breach of the right to conduct an effective investigation within the scope of the right to life which is guaranteed in Article 17 of the Constitution.

 

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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