6 Nov 2015
ESKISEHIR, Turkey,— The acquittal of all defendants in Turkey’s first prosecution for the killings and disappearances of 21 Kurds in the early 1990s leaves the victims of serious abuses by state actors without justice, Human Rights Watch said Thursday.
The acquittals come after six years of repeated questionable interruptions in the trial. After the original prosecutor, who reviewed all the evidence, called for the conviction of five of eight defendants in the initial trial, the court trying the case was abolished and the case was twice transferred to different courts. The new prosecutor called for all charges to be dropped without hearing a single witness, raising questions about whether the recommendation was a result of political interferences.
“The essential collapse of the prosecution is a shocking testimony to the utter failure of Turkey’s justice system to deliver justice to the victims of the egregious abuses by the military and state forces against Kurds in the 1990s,” said Emma Sinclair-Webb, senior Turkey researcher at Human Rights Watch. “The hopes for justice of the relatives of those who died or disappeared have once again been dashed.”
The multiple irregularities that marred the trial raise serious concerns and discredit the proceedings as an effective remedy for the victims, Human Rights Watch said. Turkey has binding legal obligations to provide the victims their right to an effective remedy under international human rights law.
The case was among the first against a senior member of the security forces for the murder and enforced disappearances of Kurds in the 1990s. The crimes have been well-documented by human rights groups and in the decisions of the European Court of Human Rights.
The Eskişehir Heavy Penal Court No. 2 acquitted all eight defendants. The original trial in Diyarbakırhad 48 sessions in which multiple witnesses testified and other evidence was introduced. The defendants had been indicted on multiple counts of killing or disappearing 19 Kurdish men and boys who were identified, and a man and a woman whose identities have not been established, after arresting or abducting them.
The crimes took place in the town of Cizre and surrounding villages in Şırnak province, southeastern Turkey between 1993 and 1995. The trial began 14 years later. The defendants were charged under the previous Turkish Penal Code (law no. 765) with forming a criminal gang (article 313) and each with several counts of murder, or with ordering murder (article 450).
The main defendant was retired Col. Cemal Temizöz, the gendarmerie commander in Cizre during that period, who bore command responsibility for those under his command at the time. The other defendants were a retired sergeant who served under Temizöz’s command, three former members of the armed Kurdistan Workers Party (PKK) turned informers for the military, and three former members of the village guard state paramilitary.
The trial began in September 2009 in the Diyarbakır Heavy Penal Court No. 6. In January 2014, the prosecutor, citing witness testimony and other evidence, asked the court to convict five defendants on various counts of murder and to acquit the three village guards.
However, in February 2014, the specially authorized heavy penal courts were abolished, so the Diyarbakır court lost its jurisdiction over the case and was unable to issue a verdict. The case was transferred to the Şırnak courts and then by a decision of the Court of Cassation, citing security concerns, to the Eskişehir Heavy Penal Court No. 2, in western Turkey.
At the second hearing there, on June 18, 2015, the Eskişehir public prosecutor called for the acquittal of all defendants without hearing a single witness.
On June 26, the pro-government Sabah newspaper reported an investigation into five prosecutors responsible for the original investigation of Temizöz, including the prosecutor who prepared the indictment, and the former chief judge of the Diyarbakır court that heard the case.
The news report said they were being investigated for an alleged conspiracy against Temizöz, contending that they were part of the Fethullah Gülen movement and were seeking revenge against Temizöz. The investigation is linked to a wider government clampdown on the movement led by the US-based Muslim cleric, a former ally-turned-critic of President Recep Tayyip Erdogan. There are ongoing prosecutions of supporters of the group and of Gülen himself on the charges of forming a terrorist organization and an attempted coup the government accuses them of, although there is no known evidence of the movement’s involvement in violent activities.
Since May 2015, senior members of the military in Turkey have been acquitted in three other trials. They included the trial of a lieutenant colonel and colonel for the 1995 enforced disappearance of a villager in Hakkari, of a general for the killing or disappearance of 13 villagers in Mardin between 1992 and 1994, and of a retired general for the 1993 disappearance of 6 residents of a Şırnak village.
“In all four cases concluded this year, courts have cleared state actors of any responsibility for killing civilians without explaining why compelling evidence presented in court was dismissed or insufficient,” Sinclair-Webb said. “Claims that this trial is part of a Gülenist conspiracy shouldn’t obscure the fact that all the evidence indicates that members of the security forces and paramilitaries killed the victims, whose families are still awaiting justice.”
Human Rights Watch representatives attended many of the trial hearings, during which relatives of the victims repeatedly expressed their desire to see justice in court and to see Turkey acknowledge the grim legacy of past abuses. The testimony indicated there had been a pattern of security forces or their agents arresting people from and around Cizre.
Examples included the following:
Harun Padır told the Diyarbakır court on March 5, 2010, that in 1994 he, his uncle, and his father had been detained in their village and taken to the gendarmerie command in Cizre where Temizöz was the commander. Padır was released, but his father and uncle were never seen again.
Nurettin Elçi told the Diyarbakır court on July 9, 2010, that he saw men with walkie-talkies enter his brother Ramazan Elçi’s shop in 1994 and take him away in a white Renault. Days later Nurettin Elçi heard that Ramazan’s body had been found and identified it as it was about to be buried in an unmarked grave in the Cizre cemetery. He identified one of the defendants as among those who detained his brother.
Arafat Aydın told the Diyarbakır court on July 9, 2010, that he was detained and then tortured along with his cousin Mustafa Aydın and Mehmet İlbasan, and that he had been released but that they were killed. Aydın identified the unit under Temizöz’s command as the one that detained and tortured them and that it included some of the defendants and village guards.
Mehmet Selim Uykur, on September 16, 2011, and İsmet Uykur, on October 9, 2009, told the Diyarbakir court that they had witnessed two of the defendants shoot dead İsmet Uykur’s father, Ramazan Uykur, in broad daylight in the street in Cizre in February 1994.
Şevkiye Arslan told the Diyarbakır court on December 4, 2009, that she saw her husband, İhsan Arslan, abducted in the street by two of the defendants in 1993. She described repeated efforts she and other members of her family made to get Arslan released and alleged that the defendants repeatedly threatened her to stop seeking information about her husband, whom she never saw again.
In 2012, Human Rights Watch released a report on the trial and on the importance of ending impunity for the killings and disappearances of Kurds in the 1990s.