Saturday Mothers / People who have been gathering at the Galatasaray Plaza in search of truth and justice for their relatives and loved ones since May 27, 1995, asked for solidarity and support in connection with their next, 700th meeting to be held on August 25, 2018 at the same place. When the group came together, however, they were notified that an order of the Beyoğlu District Governorship had banned their gathering. Determined to meet at the plaza, Saturday’s Mothers / People who had been meeting regularly every Saturday for 23 years along with individuals from the Human Rights Association and others who came for solidarity, were met in the same place with pressurized water, plastic bullets and pepper gas from the security forces as 47 of them were taken into custody. About eight hours later these 47 individuals were released.
On August 27, 2018, a few hours before an announced meeting at the Human Rights Association, Saturday’s People were to learn, via a speech made by the Minister of the Interior, Süleyman Soylu, at a training session for district governors, that the intervention by the police before-during-and after their Saturday meeting was justified. In his speech Minister Soylu said “The Saturday’s People were trying to open a legal platform for terrorist organizations” and accused them of “acting as spokesmen for terrorist organizations.” An explanation made by the Saturday’s People that same noon, protested the arbitrary ban on their gathering and said: “Soylu was distorting the facts, aiming to bring the legality of the regular Saturday Meetings into doubt and aimed to whitewash government’s crimes” and portrayed his attempt as an intervention in the trials of the disappeared.
This also continued before and during the 701st gathering of the Saturday’s People. On September, 1 2018, all the roads and alleys running into İstiklal Street and the small Galatarasay Plaza were blocked by the security forces. The relatives of the disappeared’ who meet in front of the Human Rights Organization off İstiklal Street were banned from walking; nor were these restrictions limited to İstanbul. The same day, when the relatives and friends of the disappeared gathered together for their 499th meeting in Diyarbakır, and those in Batman, gathering for their 405th meeting were also banned to do so by the security forces. Since then, Saturday Mother’s vigil has been banned on every Saturday…
Why has the State, having failed to explain the fate and whereabouts of the disappeared, kept quiet on their status for a couple of decades? Why does it want to protect the perpetrators, to ban the peaceful public open-air meetings of the relatives of the disappeared who only want justice and truth to prevail? What is enforced disappearance? What do the on the subject indicate?
Having been the focus of attention of the Hafıza Merkezi since 2011, we aim here to recompile and share our findings on enforced disappearance once more.
What is enforced disappearance?
Known in the international legal literature as enforced disappearance or involuntary disappearance, the term is used in Turkey mainly as “disappear” or “disappear in custody”. The reason for this, is that those who forcibly disappeared in Turkey were generally picked up from public places under the careful watch and scrutiny of many individuals.
According to the United Nations Convention for the Protection of all Persons from Enforced Disappearance adopted in 2006, the term ‘enforced disappearance’ as defined in Article 2 of the Convention is: “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” Remembering that such acts are usually the work of the paramilitary or the counter-guerrilla, one can understand how instrumental such terms are. A typical feature accompanying such acts are the denials of the act, and giving no, or misleading information as to the whereabouts of the forcibly disappeared.
The practice of enforced disappearances in the world
One of the first known examples of enforced disappearance in the world is the Nacht und Nebel Erlass (Night and Fog Decree) put into effect by the Nazi Regime in 1941. In line with dictates of this decree; in occupied countries, particularly in, France, Belgium and Holland, resisters, maquis could be taken into custody late at night and brought over to Germany. Having done so, they were then tried in special courts and either sentenced to death or imprisoned. Although exact numbers have never been made public, the number estimated killed under this decree is around 5 200 persons.
The strategy of enforced disappearance has been used in coups, in ethnic and civic wars and to pacify insurgents in South America. Coded as “the internal enemy” after 1960 in different countries in South America, and at other times, referring to themselves as political agents, workers, villagers, students, labor unionists there, were forced to face enforced disappearance. In Brazil, Uruguay, Chile, Guatemala and Argentine, the military regimes, or different agencies of the government at war with each other, applied this strategy to different institutions, social groups and used the term, “internal enemy” in reference to them. According to the Argentinian Truth Commission (CONADEP) devoted to enforced disappearances, some of these individuals were killed, others, given tranquilizers were flown in airplanes and thrown into the South Atlantic Ocean; the names of only 8 960 individuals out of a total of 30 thousand were identified.
UN Convention Against Enforced Disappearances
Especially used in internal conflict, the crimes committed by the State to silence the opposition, enforced disappearance has been defined in international law as a crime against humanity; while, as far as the culprits are concerned, there is no statute of limitations. The United Nations established a working group during 1980 to deal with such cases. Since then, 107 countries applied for 55,273 cases of enforced disappearance and is continuing to work on over 40 thousand cases. During 2006, the UN opened The International Convention for the Protection of All Persons from Enforced Disappearance for signatures. By 2010 there were 97 nation-states that signed the convention. Turkey, has, so far refrained from signing the Convention, nor is it likely to do so in the near future.
The practice of enforced disappearances in Turkey?
It is possible to take the history of enforced disappearances in Turkey back to April, 24 1915 when 234 of the opinion leaders of the Armenians were disappeared (for instance, Krikor Zohrab, Ohannes Vartkes Serengülyan, Nazaret Dağavaryan, Garabed Paşayan, Onnik Tertsakyan -Arşak Vramyan-, Isdepan Çıracıyan). In the early Republican period, the earliest and best known example of enforced disappearance is that of the writer and teacher Sabahattin Ali; his date of enforced disappearance: April, 1948. Such cases were not all too common at the time, being limited to that of political opponents of the regime. This crime of the state began to be used in much larger numbers following the military coup of 1980, especially against the leftist, Kurdish and socialist opposition. In a field study carried on by the Hafıza Merkezi, we could confirm 22 cases of enforced disappearance in between 1980-1990. The very first case in the database of enforced disappearances was Ali Uygur, disappeared on July 01, 1980. He is followed by Cemil Kırbayır, forcibly disappeared on Sept. 13, 1980, Hüseyin Morsümbül, on Sept 18, 1980, Hayrettin Eren on Nov. 21, 1980 and Mahmut Kaya on Dec. 23, 1980. Of the listed names, only the bodily remains of Ali Uygur were recovered and handed over to his family. So far, nobody knows where the others are, and hence, for their kin, no place to visit in remembrance. The last person forcibly disappeared on our database, on the other hand, is Tolga Baykal Ceylan; date of disappearance 2004.
So far no exact statistics have been put out in Turkey concerning the actual total of the forcibly disappeared. However, an examination of the lists made by institutions working on the issue show this number to be at 1,352 starting on Sept. 12, 1980, underlining the fact that it is far from certain, and a statistic that is yet to be verified. This number does not include those who have been killed in unidentified murders and outright killings. The Hafıza Merkezi could confirm 500 persons who became victims in enforced disappearance since 1980.
Hafıza Merkezi confirm 500 persons who were forcibly disappeared since 1980.
Hafıza Merkezi’s database on enforced disappearances has been open to public since 2012, but is currently under reconstruction and hence closed.
To confirm the information and identity of the forcibly disappeared we have carried out verification from following sources:
- Information gathered from the kin and kith of the forcibly disappeared
- Reports of the Turkish Grand National Assembly Human Rights Examination Commission
- Court cases and folders that have been entered in the local court systems
- The Investigation Folders at the prosecutor’s offices
- The complainants petition for redress in the legal system
- Applications to the European Court of Human Rights and the Court’s decisions, and
- We have considered reports and documents signed in front of lawyers as first-hand information, and those in newspapers and reports of various human rights associations as secondary sources of information.
Of the total number of 500 cases of enforced disappearances verified by Hafıza Merkezi, 28 are under the age 18; in other words, children by any imagination.
The youngest of the children was the 3-years-old Dilek Serin, disappeared along with her other family members, Düzali Serin, Ali Işık, Gülizar Serin, Hatun Işık, Hıdır Işık and Yeter Işık on Sept., 23, 1994. Their bodies were never found. 12 years-old Abdülaziz Gasyak and İlyas Diril were disappeared during 1994 and while Abdülaziz Gasyak’s body was recovered, İlyas Diril’s was not. 13-years old Davut Altınkaynak and Münür Sarıtaş were forcibly disappeared on 1995. Davut’s bones were recovered during 2016, while Münür’s were not.
Of the enforced disappeared, 482 are male, and 18 females.
The bodies of 282 persons are yet to be found.
The dates of enforced disappearance give an idea about its systematic use by the governments in Turkey.
|From 1980 to 1990||22|
As can be seen from a perusal of the above table, the practice was most common in between 1993-1995. This, of course, is no accident. This is the time when Tansu Çiller was the prime minister, with Doğan Güreş, as her chief of staff who was claimed to be using the “irregular war strategy” to fight the PKK and the Turkish Armed Forces were re-styled in accordance with a “low-intensity war” concept, while the Special War Unit had been renamed Special Command Force. The number of village guards was increasing every year. Starting in 1993 the Prime Minister and her chief of staff had tried to put into effect what was referred to as the “Territorial Dominance and the Expulsion of the PKK from the Region”. One of the end results of the application of this strategy were the forced evacuation of villages, hamlets, and all small settlements, in addition to “unaccounted for murders” and enforced disappearances.
This can be verified through a perusal of the statistics from the region.
The situation of Turkey within the context of the European Court of Human Rights (ECHR)
There have been 73 applications concerning 148 forcibly disappeared persons to the ECtHR against Turkey.
While 7 applications concerning 15 disappeared resulted in friendly settlements, 12 applications concerning 19 disappeared were found inadmissible by the ECtHR. In the remained 55 applications, it was decided that there had been a violation of the ECHR. Thus, it appears that Turkey had violated international law in 61 applications due to the disappearance of 129 persons.
As is well-known, the ECtHR holds states responsible, rather than individuals, for not having protected human rights or for having violated individual rights and freedoms. What should have happened following such decisions would have been for Turkey to conduct effective investigations into the disappearance of these persons and to identify, prosecute and punish the perpetrators.
What happened in domestic law?
The results of the work we conducted on the stance of the domestic criminal justice system by reviewing criminal proceedings carried out regarding 344 forcibly disappeared persons are as follows:
- Investigations into the disappearance of 218 persons are still pending (%63).
- Investigations into the disappearance of 24 persons end with the decisions of statute of limitations (%7)
- Investigations into the disappearance of 18 persons closed with the decision of non-prosecution (%5)
- Only for the disappearance of 84 persons, indictments were prepared (%24)
Examining the 15 criminal cases concerning the disappearance of 84 persons, we note that:
- 8 cases concerning the disappearance of 36 persons resulted with acquittals
- 5 cases concerning the disappearance of 46 persons are still ongoing.
- In only 2 cases concerning the disappearance of 2 persons verdicts of conviction were rendered.
Since 1990s, in other words, during a duration of almost thirty years, as a result of criminal proceedings carried out into the disappearance of 344 persons, verdicts of conviction were rendered in the cases regarding the disappearance of only 2 persons. Within this context, 2 persons in the case of Mehmet Şerif Avşar received a sentence of 30 years, while one person received a sentence of 24 years in the case of Şeyhmus Yavuz.
Why are there no results obtained in national courts concerning enforced disappearances?
- The Public Prosecutors are not able to conduct their investigation properly and per procedure; an active research to bring out the truth is thus not able to be conducted.
- The investigations take an extremely long time to complete and are, almost never completed but left in abeyance or the files closed for lack of grounds for legal action.
- Even though enforced disappearance is considered to be a crime against humanity in nature, in official interpretation and language such cases are treated under “murder” and hence all face the 20 years statute of limitations.
- Very few court cases are started, if ever, and then an effective and comprehensive legal process rarely occurs and the court cases are usually completed with acquittal.
This situation creates an armor of impunity in Turkey for those public officials involved in crimes. The practice of impunity creates a cultural atmosphere such that those involved in certain crimes are never sued. This in turn, then, overrides a major, incontestable rule in democracies which prevents the application of the rule of law. Thus, one of the basic principles of a democracy where all citizens are equal before the law, and all who commit crimes will be treated equally under the law are violated.
Suffice to add here an example from the attempted July 15, 2016 coup for those who believe that the government’s policy of enforced disappearance has ended: The whereabouts/bodies of the eleven disappeared individuals following the coup are yet be found.
What should be done to fight enforced disappearances?
Mechanisms focused on the state
- After the processes of recognition and apology, all those personnel in the military and civilian government apparatus found to be responsible in the first degree for enforced disappearances should be removed from office followed by institutional reform there-in.
- The village guard and the temporary village guard systems should be abolished. All those who had worked in the justice apparatus during periods of concentrated enforced disappearance and those judges and prosecutors who showed a total apathy toward such cases as reflected in their work on the files should be discharged and institutional reform should take place.
- Judicial proceedings should be fast, in accordance with the principles of justice, without the statute of limitations being applied and the example of good international practices should be followed while also the accumulated international knowledge in this area is being imported to Turkey.
- Kurdish language should be recognized and become part of the official institutional apparatus, including multi-language public service, and its application in the educational sector
Mechanisms focused on the kin and kith of the disappeared
- Establishing Truth Commissions inside the Parliament with the inclusion of civil society assuring that the process runs smoothly, not only in a legal sense, but is focused on the victim. Thus, assuring that all such information is also “recorded” in collective memory and the alternative explanations to those of the state also be included.
- Putting to work and administering compensation programs focused on gender, on the opinions of the kin of the disappeared such that the very different needs of families are met
- The reparation and compensation programs should be aligned and carried on with grass-roots organizations formed by the families of the disappeared
Mechanisms focused on the society at large
- The memorialization of all such incidents via monuments, statues, museums, and days of remembrance so that they can never recur and to assure the adoption of the “NEVER AGAIN” approach
- To assure that the uninformed and the new generations in society are well-informed and knowledgeable about the wide-spread practice of enforced disappearance by making films, documentaries, plays, music, installations, exhibits, and video clips
- To include Turkey’s history of enforced disappearance and systematic violations of human rights including those in the last 30 years in textbooks to make sure that such memory becomes part of public history.
- To make sure that what has transpired within the last 30 years in Turkey are also recorded in academia, such that it is handled in lectures, university syllabi, research projects and regular courses in all manner possible.