The first trial related to the extrajudicial and arbitrary killings that the security forces turned into a state policy under the name of counter-terrorism took place after the Susurluk Incident in 1996. This incident revealed the existence of an illegal and arbitrary execution organization within the police force, but the trial did not result in the punishment of those responsible and exposed the state policy nature of these violations. Similarly, the trial that followed the bombing of a bookshop by JİTEM members in Şemdinli in 2006 ended without revealing the existence of the counter-guerrilla units within the military structure.
Finally, the Ergenekon Trials that began in 2008 led to the emergence of numerous new evidence regarding the gross human rights violations committed in the 1990s, both in terms of the connections between the defendants and JİTEM and Special Operations Unit, and the actions of the Ergenekon Terrorist Organization for which they were accused of being members or leaders. Although these trials were conducted under the category of "crimes committed against the government and/or the constitutional order," they created a justified expectation among the victims and their families who suffered violations in the 1990s that illegal and arbitrary executions and enforced disappearances would not go unpunished. Following these trials, eight cases related to enforced disappearances in the 1990s were opened, but the entrenched impunity practices of the judicial organs continued in these cases. On the other hand, in recent years, we have observed the consolidation of a new consensus within the state, whereby critical files concerning the prosecution of state officials who have committed crimes against humanity in the 1990s are being closed one by one, perpetrators are being exonerated, and thereby the possibility of reckoning with the past is once again being eliminated.
Legal Dictionary
Investigation / Prosecution: The stage from the discovery of a suspicion of crime by the public prosecutor until the acceptance of the indictment by the court is called the investigation phase, while the stage from the acceptance of the indictment until the finalization of the judgment is called the prosecution phase.
Discontinuation of Prosecution: The decision of the public prosecutor stating that there is no need to initiate a public lawsuit.
Inadmissibility: Before examining the merits of an application, the European Court of Human Rights (ECtHR) subjects the application to its own admissibility criteria. These criteria include the exhaustion of domestic remedies and the application being made within a six-month time limit. Applications that do not meet these criteria are declared inadmissible by the Court, and the application is not examined on its merits.
Amicable Settlement: Friendly settlement refers to an agreement between the parties to terminate the examination of the application. The applicant and the relevant state can reach an agreement to end the dispute that brings them against each other, and this settlement is generally shaped in the form of the applicant being awarded a certain amount of money. After examining the conditions for the realization of a friendly settlement, if the Court does not believe that respect for human rights requires further examination of the application, the case is struck off the list.
Procedural / Substantive Violation: In cases where it is proven by evidence that the crime was committed by the state, the ECtHR decides that the right to life has been violated substantively, while in cases where the state has failed to effectively investigate, establish the fate of the missing person, and punish the perpetrators, the ECtHR renders a decision of procedural violation of the right to life.
Statute of Limitations: The requirement to initiate a lawsuit within a certain period of time after the commission of a crime.
The Course of Domestic Legal Processes
As Hafıza Merkezi, we have accessed the legal files of 344 individuals who have been forcibly disappeared. Based on our analysis of this data, we found that investigations into the disappearances of 218 individuals were left pending (%63), investigations regarding 24 individuals were concluded with a statute of limitations decision (%7), and investigations into 18 individuals resulted in the decision of no grounds for prosecution (%5). On the other hand, 84 individuals' cases of enforced disappearance led to the initiation of legal proceedings (%24).
A total of 15 cases were opened regarding the enforced disappearance of these 84 individuals. Among these cases, 8 cases involving the enforced disappearance of 36 individuals resulted in acquittal. Five cases related to 46 individuals are still ongoing. Only in 2 cases involving 2 individuals, a conviction verdict was reached. In other words, out of 344 complaints filed between the 1990s and the present, only 2 resulted in convictions. From the two cases that resulted in conviction verdicts, in the Mehmet Şerif Avşar case, two individuals were sentenced to 30 years each, and in the Şeyhmuz Yavuz case, one individual was sentenced to 24 years.
The figures mentioned above regarding domestic cases of enforced disappearance are valid as of April 2017
We can list the reasons for this course in domestic law as follows:
- Public prosecutors do not fulfill the investigation procedures properly; an effective investigation that would reveal the truth is not conducted.
- Investigations are left pending for many years without significant progress or closed with a decision of non-prosecution.
- Although enforced disappearance constitutes a crime against humanity in terms of its nature, and despite the non-application of the statute of limitations, these cases are tried under the official interpretation of murder charges, thereby facing the risk of a 20-year statute of limitations.
- Only a few cases result in legal proceedings, and ineffective and incomplete judicial processes end in acquittal verdicts.
For more information on cases related to enforced disappearances, you can visit the "Faili Belli" website.
Cases Brought before the ECtHR
We have also examined Cases Brought before the ECtHR made to the European Court of Human Rights (ECtHR) regarding 129 individuals out of the 344 individuals who were forcibly disappeared.
The ECtHR has ruled that Turkey violated the European Convention on Human Rights in 55 applications concerning 103 individuals. In 6 applications concerning 11 individuals, the state offered an amicable settlement. Due to decisions of inadmissibility, 10 applications concerning 12 individuals are not examined on the merits, and in one application concerning an individual, the ECtHR ruled that there was no violation. Thus, it was observed that the responsibility of Turkey was established regarding 114 of the 129 individuals, and 61 of the 72 cases.
These numbers and ratios are valid as of April 2017.