ENFORCED DISAPPEARANCES AND THE CONDUCT OF THE JUDICIARY TRUTH JUSTICE MEMORY CENTERİ ACKNOWLEDGEMENTS Tütün Deposu Lüleci Hendek Caddesi 12 This study would not have been possible without our fellow attorneys Tophane 34425 İstanbul/Türkiye who shared their knowledge with us and the scholars who extended +90 212 243 32 27 us their support. [email protected] www.hakikatadalethafiza.org We owe a special gratitude to all attorneys who were brave enough to stand with the victims against injustice, trusted us and shared their experience with us, and facilitated our work by making their files AUTHORS available to us. We are particularly grateful to Cihan Aydın, Meral Prof. Gökçen Alpkaya Danış Beştaş, Mesut Beştaş, Rıdvan Dalmış, Tahir Elçi, Eren Keskin, İlkem Altıntaş Sezgin Tanrıkulu, Veysel Vesek, and Reyhan Yalçındağ. Asst. Prof. Öznur Sevdiren Emel Ataktürk Sevimli We were honored that Prof. Gökçen Alpkaya and Asst. Prof. Öznur Sevdiren contributed to our project and accompanied us. We The subsection titled The Search of part B titled appreciated not only what they penned but also their empathy and Experiences of Relatives of the Disappeared of humanism. section VI titled Findings of the Field Study was written by Özlem Kaya, the subsection titled We additionally thank Diyarbakır Bar Association, Şırnak Bar The Absence of a Grave was written by Ayhan Işık. Association, Mardin Bar Association, Human Rights Foundation of The remainder of the report was written by Turkey, Human Rights Association, Ms. Emma Sinclair Webb who Özgür Sevgi Göral. represents Human Rights Watch in Turkey, as well as all other individuals and organizations that provided support… EDITORS Murat Çelikkan Gamze Hızlı ATTORNEYS INTERVIEWED FOR THE PROJECT TRANSLATION Tahir Elçi, Eren Keskin, Reyhan Yalçındağ, Sezgin Tanrıkulu, Veysel Fethi Keleş Vesek, Rıdvan Dalmış, Meral Beştaş, Mesut Beştaş, Mehmet Emin Aktar, Cihan Aydın, Barış Yavuz, Erdal Kuzu, Azat Yıldırım, Abdullah PROOFREADING Fındık, Mustafa Yağcı, Gül Altay, Hüseyin Aygün, Cihan Söylemez, Meltem Aslan Nurşirvan Elçi, Serkan Özdemir, Ergin Cinmen, Salih Akbulut, Asena Günal Süleyman Bilgiç, Ramazan Vefa, Metin İriz, Hasip Kaplan. Dana Heitz DESIGN Pınar Akkurt, BEK PRE-PRESS BEK PRINTING Mas Matbaası Hamidiye Mahallesi Soğuksu Caddesi 3 Kağıthane 34408 İstanbul T +90 212 294 10 00 http://www.masmat.com.tr/ Certificate No: 12055 A PUBLICATION OF THE TRUTH JUSTICE MEMORY CENTER ISBN: 978-605-85978-3-9 Truth Justice Memory Center would like to thank the Open Society Foundation, Anadolu Kültür, Global Dialogue, Heinrich Böll Stiftung, Charles Stewart Mott Foundation, Oak Foundation, Huridocs, MAS Matbaacılık A.Ş., BEK, Bülent Erkmen and Yiğit Ekmekçi for their financial and in-kind contributions for the publication of this report and the realization of the research that formed the basis of this report. ENFORCED DISAPPEARANCES AND THE CONDUCT OF THE JUDICIARY PROF. GÖKÇEN ALPKAYA İLKEM ALTINTAŞ ASST. PROF. ÖZNUR SEVDİREN EMEL ATAKTÜRK SEVİMLİ TRUTH JUSTICE MEMORY CENTER CONTENTS 6 PREFACE III. Enforced Disappearances in International Criminal Law 8 METHODOLOGY Conclusion 10 SUMMARY 66 THE RECOGNITION OF ENFORCED DISAPPEARANCE AS A CRIME UNDER 15 THE CONDUCT OF THE JUDICIARY IN DOMESTIC LAW AND THE STATUTE OF ENFORCED DISAPPEARANCES LIMITATIONS: A PROBLEMATIC OF EMEL ATAKTÜRK SEVİMLİ INTERNATIONAL CRIMINAL LAW The Violations ASST. PROF. ÖZNUR SEVDİREN A. Failure to Follow Legal Detention Introduction Procedure / Inaccurate Records International Crimes and the Sources of The Disappearance of Ahmet Bulmuş International Criminal Law B. The Use of Cruel Killing Methods to Statute of Limitations in terms of Intimidate International Crimes in International Law The Disappearance of Seyhan Doğan, Davut Enforced Disappearance as an International Altunkaynak, Nedim Akyol, Mehmet Emin Crime Aslan, Abdurrahman Coşkun, Abdullah Crimes against Humanity as a Type of Olcay, and Süleyman Seyhan International Crime The Disappearance of Bilal Batırır The Crime of Enforced Disappearance in C. Unidentifiable Graves and Failure to Turkey Return the Bodies to Families The Crime of Enforced Disappearance and The Disappearance of Hasan Esenboğa the Problem of Statute of Limitations The Disappearance of Fahriye Mordeniz, In Place of a Conclusion Mahmut Mordeniz D. Failure to Conduct Effective, Expeditious 108 ENFORCED DISAPPEARANCE CASES and Independent Investigations FROM THE PERSPECTIVE OF THE The Disappearance of Abdullah Canan EUROPEAN COURT OF HUMAN RIGHTS Eşref Bitlis, Rıdvan Özden, Bahtiyar Aydın, İLKEM ALTINTAŞ Kazım Çillioğlu Admissibility Criteria The Susurluk Case and the Relations Among The Court’s Holdings with Respect to The State, The Mafia and The Politicians Convention Violations in Enforced E. Losing Hope That There Will Be Justice Disappearance Cases F. Obstructing the ‘Claiming of Rights’ with What Non-Governmental Organizations Can Psychological and Physical Barriers Do Over the Course of Applications to the G. The Perception of a ‘Tyrant State / Court Dependent Judiciary’ / The Expectation Execution of the Judgments of the European of Reparations and Apology Court of Human Rights Recommendations Opportunities Available to the Court and the Committee of Ministers in Enforced 47 ENFORCED DISAPPEARANCES IN Disappearance Cases INTERNATIONAL LAW PROF. GÖKÇEN ALPKAYA 132 BIOGRAPHIES I. Enforced Disappearance in International Human Rights Law 134 LIST OF THE DISAPPEARED VERIFIED BY II. Enforced Disappearances in terms of TRUTH JUSTICE MEMORY CENTER International Humanitarian Law PREFACE 6 ENFORCED DISAPPEARANCES AND THE CONDUCT OF THE JUDICIARY Truth Justice Memory Center (Hakikat Adalet Hafıza Merkezi) was established to contribute to the exposure of systematic and widespread human rights violations that took place in the past, the reinforcement of collective memory about these violations, and the improvement of access to justice for those who were subjected to violations. Unlike many civil society organizations involved in work on democratization, social peace and transitional justice, Truth Justice Memory Center set its most fundamental aim as the documentation of human rights violations and started to work on documenting incidents of ‘enforced disappearances’. By getting in touch with relatives of victims of enforced disappearances, the lawyers representing the victims and families, civil society organizations, and other legal resources, the Documentation, Legal, and Outreach groups of Truth Justice Memory Center seek first to factually determine the timeline of, means and methods employed in, and parties responsible for enforced disappearances; and second, to track the course of due process, as well as whether the judicial mechanisms operated in the service of justice. Enforced disappearance is a practice employed by the state as a tool of the ‘fight against terrorism’, and it relies on oppression and intimidation. Truth Justice Memory Center analyzes this practice in two complementary reports offering a sociological and legal study of the data gathered in the research conducted during the Center’s first year. This report aims to examine judicial practices relating to enforced disappearance based on the legal data obtained, analyze the relevant rights violations from the perspective of European Court of Human Rights (ECtHR) judgments, and contribute to debates about the issue in terms of national and international criminal law, human rights law and the laws of war. It is our hope that the report is successful in attaining these goals. PREFACE 7 METHODOLOGY 8 ENFORCED DISAPPEARANCES AND THE CONDUCT OF THE JUDICIARY PRELIMINARY STUDY Data obtained as a result of interviews in excess of one hundred and eighty hours and the four-month Initially, we conducted a comparative review period of study and evaluation were analyzed and of available resources and lists on forcibly assessed in accordance with the criteria set by disappeared people previously published by the legal team and legal interns of Truth Justice individuals and organizations working in the field of Memory Center. human rights. According to the data gathered and research During this process, we found inconsistencies with conducted as part of the preliminary study, we respect to the names of disappeared individuals in the substantively verified that 262 individuals whose said lists and supporting evidence was lacking/weak. names were found in the abovementioned tentative This brought about the need to re-gather the existing list were forcibly disappeared. As we continue our data from their original sources by way of fieldwork. work, we aim to verify in stages all incidences of disappearance. We then decided to conduct the study along two main axes. The documentation team launched To offer a fact-based discussion of whether fieldwork in search of sociological truth regarding litigation will pave the way for reaching justice forcibly disappeared individuals, and the legal and to have a deep understanding of operational/ team set out to pursue the data held by lawyers problematic aspects, instead of focusing on the representing the disappeared, other institutions of entire data collected, we decided to focus on law and non-governmental organizations. 55 cases of disappearance whose sociological dimensions we have information on through interviews with relatives. OBJECTIVE The materials studied include, in sum, interviews, We firstly aimed to discover the sociological and case records/investigation files in trials on enforced legal facts