Kurban, Dilek

English

<intR>²Dok

New wine in old bottlesDilek Kurban 2020-12-21T09:00:11On 16 June 2017, 40-year-old Murat Okumu# was abducted in broad daylight byseveral plainclothes men in Izmir, Turkey’s third largest metropole. The abductorsarrived in two unmarked cars, pushed Mr. Okumu# into one of them and droveoff after telling astonished onlookers that they were police. Officers dispatchedto the area told eyewitnesses, based on the license plates they saw on securitycamera footage, that the abductors were indeed with the police (counter-terrorismunit), but that they could not intervene. It seems like no one has since seen orheard of Mr. Okumu#. This was by no means an isolated incident. Several otherindividuals with alleged links to the Gülen movement, which the governmenthas accused of being behind the July 2016 coup attempt, have been disappeared.Some have since re-appeared. Others, like Mr. Okumu#, remain missing. Familiesinquiring into the whereabouts of their loved ones have faced a wall of silence.At first glance, this is remarkable. After all, Turkey is a nominal democracy, an EUaccession country, a member of the United Nations and the Council of Europe anda state party to their human rights treaties, including the European Conventionon Human Rights (ECHR), and subject to the jurisdiction of the European Courtof Human Rights (ECtHR). In such a country, individuals are not ought to bedisappeared by the authorities. And yet, for those of us who know Turkey all too well,this is just new wine in old bottles.The 90s phenomenonThe Turkish state has been disappearing its unwanted citizens since, at the veryleast, the phase after the 1980 coup d’état. The peak was in the 1990s, when theKurdish region was torn apart in a violent civil war between the Turkish militaryand the Kurdistan Workers’ Party (PKK). Hiding behind emergency justificationsprovided under international human rights law, Turkey was engaged in atrociousviolations that were characteristic for Latin American military dictatorships. Turkishsecurity forces and their proxies were subjecting civilians to collective punishment,sometimes for no other reason than being Kurdish or for their actual or perceivedsympathies for the PKK. In cities, civilians were dragged into cars, in many casesnever to be seen again. At best, their tortured and bullet-ridden bodies were foundon the side of a road. Kurdish lawyers, politicians, activists, journalists and doctorswho dared to speak up against state violence were summarily executed. In remoterural areas, villagers were forced to become paramilitaries and fight with the militaryagainst the PKK or else face forced displacement. Entire villages were set on fire, attimes with animals and humans inside the burning buildings.The scale of enforced disappearances in Turkey remains unknown. In fact, Turkeyis not a State party to the 2010 International Convention for the Protection of AllPersons from Enforced Disappearance (ICPPED). According to the UN WorkingGroup on Enforced or Involuntary Disappearances (WGEID), there were 183- 1 -cases of enforced disappearances in Turkey in the period of 1992-1996. In 1994alone, 72 new cases were reported to the WGEID. According to domestic experts,NGOs and Kurdish lawyers, the number is much higher. The majority of enforceddisappearances occurred in the Kurdish region.The handful of cases concerning enforced disappearances in the Kurdish regionthat managed to find their way to Strasbourg provide important insights into thenature of these atrocities. In rural areas, villagers were disappeared after militaryraids (e.g. 2001 Çiçek v. Turkey) or abducted by plainclothes men known to besecurity forces (e.g. 2004 Tahsin Acar v. Turkey). In urban centres, individuals weredisappeared after being detained by security forces (e.g. 2000 Ertak v. Turkey)or abducted by plainclothes men often arriving in a white Renault car, carryingtwo-way radios and introducing themselves as police officers (2008 Osmano#lu v.Turkey). In some cases, cars abducting the victims had licence platesbelongingto security forces (e.g. Av#ar v. Turkey) and/or were driven straight into police orgendarme stations. In others, individuals were disappeared after last seen enteringthe gendarmerie stations. The most high-profile case concerned the disappearance,in 2001, of Serdar Tan## and Ebubekir Deniz, two politicians from the pro-KurdishPeople’s Democracy Party (HADEP), after they were summoned to the gendarmeriestation. They remain disappeared to this day.The ECtHR’s ResponseJust as enforced disappearance was a practice of the Turkish state in the 90s, sowas government denial. Families of the disappeared encountered official denial andimpunity in their quests for truth and justice (WGEID 1994 Annual Report, para. 396).Even in instances where eyewitnesses had seen the disappeared individuals beingdetained by the security forces, the authorities would uniformly deny that detentionever took place and claimed, without any evidence, that the missing individual hadvoluntarily joined the PKK (e.g. 2000 Timurta# v. Turkey) or had been kidnapped bythe PKK (e.g. 2017 Kurt v. Turkey).Standing before the ECtHR as a supranational court of law with strict evidentiaryrules which deems the principle of subsidiarity to be of paramount importance,Kurds found it extremely difficult to convince the court that enforced disappearanceswere a matter of state policy in the Kurdish region. Such a ruling would have beenof great importance for future claimants, particularly under two aspects. On theone hand, it would have relieved the applicants of having to exhaust domesticremedies in Turkey, which effectively did not exist, due to the aforementioned denialby authorities and the judiciary’s complicity with state violence. On the other hand,it would have alleviated the evidentiary difficulties of proving the elements of thecrimes attributed to the state, namely the violations of the right to life in the absenceof a body and the state responsibility amidst government denial that the disappearedhad ever been detained.The ECtHR built an important jurisprudence finding, inter alia, violations of theright to liberty and security in the unacknowledged detentions of missing personsand to effective remedy in the failure of the authorities to conduct meaningfulinvestigations into disappearances (e.g. 2017 Kurt v. Turkey; 2000 Timurta# v.- 2 -Turkey). And yet, when it came to the crux of the matter, the ECtHR refrained fromsaying that the Emperor was naked; namely, that the Turkish state itself has activelyengaged in the practice of enforced disappearances. In the case of 1998 Kurt v.Turkey, where the applicant cited the WGEID’s report that the highest numberof globally reported enforced disappearance cases of 1994 came from Turkey(WGEID 1994 Annual Report, para. 402), the ECtHR responded that applicantrested her case “entirely on presumptions” and failed to adduce “any evidence tosubstantiate her claim” (para. 108, 145–146). The ECtHR could have, as AmnestyInternational and the applicant urged it to do, followed the example of the Inter-American Court of Human Rights (IACtHR) in the Honduran cases. In Velásquez-Rodríguez, the IACtHR had allowed circumstantial evidence on the grounds “that thepolicy of disappearances, supported or tolerated by the Government, is designedto conceal and destroy evidence of disappearances” and the disappearance of anindividual “would be impossible to prove” without “circumstantial or indirect evidenceor by logical inference” (para. 124, 126). It concluded, on the basis of witnesstestimonies, media reports of public statements by high-ranking authorities andthe amicus curiae of human rights organizations, that Honduras had engaged in apractice of enforced disappearances (para. 147-148). The judgment showed thatit was legally possible for a supranational human rights court to find state practicein one case alone, where the applicant’s claims are supported by circumstantialevidence such as reports of independent organizations and news media. And yet,the ECtHR did not follow suit.Over time, the ECtHR effectively accepted the existence of a victim profile in casesconcerning enforced disappearances in the Kurdish region (e. g. 2000 Timurta# v.Turkey). In a case where an individual was disappeared after his abduction bytwo armed plainclothes men carrying walkie-talkies who introduced themselvesas police officers, the ECtHR observed that “the manner of his abduction showsmany similarities with the disappearances of persons prior to their being killedin south-east Turkey at the relevant time which have been examined by theCourt” (2008 Osmano#lu v. Turkey, para. 58). And yet, it still stopped short offinding an administrative practice. The closest the ECtHR has come to the Inter-American approach was in the case of 2012 Er v. Turkey, where it noted “the patternof disappearances of large numbers of persons in south-east Turkey between 1992and 1996” (para. 77). Yet, once again, it did not conclude that Turkey engaged inenforced disappearances as a matter of state policy.Neither has the ECtHR pushed the Turkish government to adopt measures tomeet the families’ demands for truth and justice. As much as it has repeated thebaseline notion that effective remedies under the ECHR require not only monetarycompensation but also, where possible, the identification and punishment ofperpetrators, it did not use its powers under Article 46 of the Convention to call onthe Turkish government to carry out effective criminal investigations into enforceddisappearances. In another departure from the IACtHR, the ECtHR has never calledon the Turkish government to, for example, uncover the burial sites and preserveand exhume them in a systematic way and in accordance with international scientificstandards, identify and prosecute perpetrators, remove from its security forcesindividuals who engaged in enforced disappearances and other gross violations,- 3 -guarantee the families’ and the judicial authorities’ access to official archives. Therecommendation of such measures would be in line with the Court’s more activestance in other cases, where it has recommended individual or general measuresunder Article 46 ECHR; including a 2013 judgment where it called on Turkey tocarry out effective investigations to identify and prosecute those responsible forthe indiscriminate aerial bombardment of two Kurdish villages in 1994, resulting inthe killing of 34 civilians (2013 Benzer and Others v. Turkey). What is remarkableabout 2013 Benzer and Others is that while condemning Turkey’s unwillingnessto establish the truth and punish the perpetrators, the ECtHR did not address itsown responsibility in condoning this behaviour in 2006 #çyer v. Turkey. In thisinadmissibility decision of 2006, the ECtHR had found a new compensation lawadopted by Turkey to be an effective domestic remedy, although the law providespartial compensation to only a small group of Kurdish victims and does not entaileven a promise of truth and justice, and rejected up to 1,500 pending applications(2016 Do#an and Others v. Turkey, para. 6) concerning state violence, includingenforced disappearance cases. Motivated by self-interest to ease its docket crisis,the ECtHR thus not only abandoned its established case law but also endorsedTurkey’s impunity regime.And today?It should come as no surprise that Turkey continues to disappear its dissidents; ithas always been and remains an authoritarian regime. As of August 2020, the totalfigure of disappearances transmitted by the WGEID to the Turkish government hasreached 234 cases (WGEID 2020 Annual Report, p. 32), while according to domesticNGOs, the number is over 1,300. Certainly, the recent torture and disappearances ofindividuals with alleged links to the Gülen movement dwarfs, in terms of quality andquantity, when compared to the collective punishment of the entire civilian populationin the Kurdish region in the 1990s. Yet, there are also common threads: Then andnow, individuals are labelled as terrorists without a trace of evidence, at best putbehind bars without any due process safeguards and at worst taken off the streetin broad daylight and disappeared. While a few are thus physically removed fromsocial life or just life, the ones left behind are silenced by example. For they havebeen shown time and again that what makes state violence possible is not only thecomplicity of an entire state apparatus, but also the appeasement of the internationalcommunity.- 4 -

New wine in old bottles

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00009576/New_wine_in_old_bottles.pdf

New wine in old bottles

Abstract

Similar works

Full text

Available Versions

<intR>²Dok