PRESENTATION ON IMPUNITY

IN THE CONTEXT OF

BATI GROUP CASESProcedural aspects of Article 2 and 3 of ECHR

ASSOC PROF. KEREM ALTIPARMAK

FERAY SALMAN

11 September 2015, Strasbourg

Overview of Batı Group CasesDistribution of Cases on the basis of violated articles of ECHR

No. Of cases

0 10 20 30 40 50 60 70

5

10

61

64

6

10

12

Overview of Violations

Article 13 Article 6 Article 5 Article 3 ProceduralArticle 3 material Article 2 Procedural Article 2 material

Total: 83 cases

Related Cases/groups:Aksoy Group: 205 casesErdoğan &Others Group: 8 casesKasa Group: 6 casesGomi & Others: 3 cases Unclassified cases:İsmail Altun, Düzova, Perişan etc.)

TYPE OF CASES

No. Of cases

0 10 20 30 40 50 60 70 80

1

72

6

3

1

Type of Cases

Death by third persons Death as a resulth of security forces' operationsDeath in police detention Torture under police detention Torture in prison

Death By attacks of third persons:

• Çorum Incidents/Statute of limitation (20 years)

Death as a result of operation of security forces:

• Diyarbakır Prison Operation (open case)

• Gazi Incidents (2 police sentenced/18 acquitted)

• Shot down on the street by police (Acquittal of police officers after 5 years of criminal proceedings)

Death under police detention:

• 6 cases

Torture (police & prison)

• 73 cases

DUTIES UNDER BATI GROUP CASES

INDIVIDUAL GENERAL

REPARATION & REMEDIES (past)

CRIMINAL

COMPENSATION

SATISFACTION

NON-REPETITION(future)

LEGAL BASIS

ADMINISTRATIVE & JUDICIAL STRUCTURE

DIRECT ACCOUNTABILITY

SECURITY FORCES, OTHER PERPETRATORS

INDIRECT ACCOUNTABILITY

JUDICIAL & ADMINISTRATIVE ACTORS

MAIN THEME: HALF HEARTEDLY INVESTIGATIONS«In particular, it considers that once the case was before the criminal court, the steps taken by the court were dilatory and half-hearted.» Ağdaş,para 103.

• ONE SIDED• ONE SCENARIO

Stages of Violation of Article 2 (procedural Aspect)

1

2

1

Failures by Administrators

No. Of cases0

0.5

1

1.5

2

2.5

3

3.53

2

1 1

2

1 1

2

Failures by Prosecutors

Onsite investigationListening to witnessesBalistic examinationAutopsyLuanching crimanal proceduresAttribution to direct and Indirect responsibilityIdentification of direct perpatratorsNon-prosecution

Length of t

rial

Identification of r

esponsib

les

Forensic m

edicine re

ports

Further in

vesti

gation

Non-appearance of d

efendants in tr

ials

Not inviti

ng with

nesses a

gainst defendants

Disproporti

onality of s

entences

Lack

of cooperation among State bodies

01234567

6 6

24

5

1

64

Failures by Courts

No. Of cases

THREE LOCATIONS

CUSTODY

EXECUTION OUTSIDE CUSTODY

DEMONSTRATIONS

Common problems

ADMINISTRATION PROSECUTION TRIAL

• Suspension • Lack of impartiality• Lack of independency

• Testimony• Promptness• Failure try to identify

the direct perpetrators (not distinguish, not getting in)

• Testimonial problems: • Never access

/Rogatory• Late access to

defendents and public servants

• Disproportional sentences

• Wide use of mitigating factors for the accused

• PROBLEMS IDENTIFIED BY ECrtHR

Common problems: Implicit onesTRANSFER OF POLITICAL CASES

FAIR TRIAL ISSUES INVOLVEMENT OF STAKEHOLDERS

JURISDICTIONAL PROBLEMS

Military CourtsSpecially Authorised CourtsOrdinary Courts

FAILURE TO INVESTIGATE HIGH LEVEL OFFICIALS

Operational Responsibility + Political Responsibility

Specific problems

•Medical reports:•Independency and Impartiality of Forensic Medicine Institute•Failure to elaborate on the case to support medical report•Failure to remove conflicts in different medical reports

CUSTODY

•Shortages in balistic reports•Operational responsibility not discussed•Contradictions in evidence•Failure to obtain evidence (e.g. Lack of onsite investigation)

Execution outside of custody &

Demonstrations

INDIVIDUAL MEASURES3 CASES

First Instance Court: Final Decision: 24 June 20147 defendants: Statute of limitation20 defendants: Acquittal (Lack of evidence)62 defendants: 18 Years of imprisonment, reduced to 6 years,

due to well behaviour another one year reduction in imprisonment.

Diyarbakir Prison Operation:Ceyhan Demir & Others (34491/96)ECrtHR: 1/13/2004)Perişan & Others (12336/03)ECrtHR: 5/20/2010

No action has been taken following the Court decision in 2010.(Testimonies in other trials were not taken into consideration- re. Ergenekon Case)

Gazi IncidentsŞimşek & Others (35072/96)ECrtHR: 10/26/2005)

From 13 January 2009 to 22 October 2013

One of the 3 defendants who was «escapee» more than 10 years was arrested in 2013.

Trial was finalised on 22 October 2013 with decision of imprisonment of 15 years.

Due to the unidentifaction of the direct perpetrator, the sentence was reduced to 10 years.

Lawyers of Süleyman Yeter appealed to the Court of Cassation alleging that the main responsibles were never tried.

Süleyman YETER:Yeter (33750/03)ECrtHR: 1/13/2009)

GENERAL MEASURES

• Criminal Procedural Law Article 172/3: 3 months rule• Only applicable for cases where non-prosecution decision was taken by the

prosecutor• Non-retrospective (not applicable for the judgments of the ECrtHR decision

rendered before April 2013)• Hesitation of victims to use this procedure • Data is not available to the public

Recourse to responsible Public Servants• Public Servants Act , Article 13 amended in 2002• Response of the finance minister in 2011: not a single recourse• Only five cases, 1 rejected, 4 pending

Administrative Sanction:Removal from Duty• Minister of Interior reponse :

Since 2005 no public servant was removed from office under torture, ill-treatment investigationsOnly 29 officers have faced serious sanctions

Statute of Limitation

• Elimination of Statute of Limitation in Torture cases enacted in 2013 – not retrospective Definition of torture made by judiciary very narrowly

General Observations

• Independent Police Complaint Mechanism not established• OPCAT ratified but not implemented• NHRI and Ombudsman office were established/ Ineffective after three

year of existence

Examples of non-execution in similar cases• Three Months Rule:Meryem Çelik and Others: 3598/03 ECrtHR decision: 16.04.2013 finalised on 16.7.2013 (13 forced disappearance, 1 death in custody)• Lawyer applied for opening a trial process within three months, however

no action has been yet taken since 2013

Benzer and others: 23502/06 ECrtHR decision: 10/02/2014 (Article 46) – Military operation / 34 death of civilians• Investigation was transferred to the Prosecutor of the Chief of General Staff

(military) and statute of limitation decision was taken in February 2015.

Cases of Forced Disappearances

GÖRÜMLÜ DISAPPEARANCES:

Cülaz and Others v. Turkey

(7524/06 ve 39046/10 )

Decision: 15 April 2014

DOMESTIC TRIAL was launched in November 2013 (Just before the 20 years time barred)

CASE TRANSFERRED FROM ŞIRNAK TO ANKARA

Criminal Procedure was concluded with ACQUITTAL on 3 July 2015 (on the grounds of lack of evidence)

Forced disappearance & Unlawful Killings case Against General Musa Çitil• On 16 July 2012 a court case was launched with accusation of forced

disappearance and unlawful killing of 13 people by the order of Musa Çitil during in 1992-1994.• The first hearing held in October 2012 in Mardin in the absence of

defendant who acts as the Ankara Regional Commander of Military.• The case was transferred to Çorum (over 1000 km away from Mardin) in

the second hearing.• The trial was concluded with acquital on 21 May 2014 (lack of evidence). • General Musa Çitil is promoted in August 2015 by the Supreme Military

Council.

Examples of other forced disappearance cases (pending)• Nezir Tekçi (ECrtHR decision: (Tekçi and others/Decision: 10/03/2014 ) Forced disappearance on 28 April 1995 following custody by Gendarmaires Transferred to Eskişehir from Hakkari (concluded with acquittal on 11 September 2015) • Kulp Disappearances (ECrtHR decision: (Akdeniz and others (23954/94), 31.05.2001)

Forced disappearance of 13 civilians in 1993 in Kulp(Diyarbakır)Court Case was launched on 11 October 2013 and transferred from

Diyarbakır to Ankara On 19 February 2014 (pending)