WHEN IMPUNITY IS POLICY

"The case is a stark example of how the judicial system can fail victims of of official abuse." ~ Trial Observation Reports: The Diyarbakir Prison Killings, Fordham International Law Journal.

This week we hear the news that Turkish police and jandarma walk free after their slaughter of Kurds in Diyarbakir Prison some ten years ago. From Reuters via Khaleej Times Online:

ANKARA — Sixty-two Turkish policemen and paramilitary police were convicted yesterday of beating 10 Kurdish inmates to death a decade ago but walked free under an amnesty.

Sezgin Tanrikulu, a lawyer for the victims — who were accused of belonging to the autonomy-seeking outlawed Kurdistan Workers Party, or PKK, — immediately criticised the verdict as unjust. Turkey is also under pressure from the European Union to punish perpetrators of torture.

The court in the southeastern city of Diyarbakir initially sentenced the defendants to 18 years in prison for using excessive force to quash a prison uprising, during which 10 Kurdish inmates were killed in September 1996. But the court immediately commuted the prison term to six years, saying the defendants were acting under “heavy provocation,” and then reduced their sentence to five years in prison, citing “good behaviour” throughout the trial.

Eventually, the accused walked free as their five-year term was automatically suspended under a 1999 amnesty until they re-offend. The court also ruled that the defendants should be dismissed from office for three years; however that punishment was also eliminated under the same amnesty.

“Those who committed crimes against humanity have evaded prison under the amnesty without serving one day in prison,” the Anatolia news agency quoted Tanrikulu as saying.

A parliamentary committee report had concluded that there was evidence to show that some of the prisoners had been severely beaten.

Once again, impunity by Turkish security forces is permitted by the state's legal apparatus, but this short notice in the news does no justice to what really happened behind the walls of Diyarbakir Prison on 24 September, 1996. Normally, I object to the use of the term, "Diyarbakir," but in writing about the prison, I will use it because Diyarbakir Prison is an imposition, a monstrosity, a tool designed for the destruction of the Kurdish people.

A detailed account of the events of 24 September, 1996 can be found here, but what follows is a synopsis.

The prison was built in 1980, and from that time until 1988, it was operated under the Turkish military's jurisdiction. During the time of the "state of emergency," in Turkish-occupied Kurdistan, the state's legal apparatus, although notoriously bad throughout Turkey, was even worse there. At the time, the ECHR did not require anyone to take all necessary local judicial steps in order to bring a case against Turkey. Because the legal structure was nonexistent in Turkish-occupied Kurdistan, one could apply directly to the ECHR.

At the time of an independent investigation of the 24 September event, Diyarbakir Prison, which had a capacity of 650 prisoners, 942 prisoners were found there. Of those, 85 had been convicted, while the remainder, 857 were remanded prisoners, meaning that they were being held for trial. Of the 857, 407 were PKK political prisoners.

At 1030 hours, on 24 September, 31 of the remand prisoners were on their way to the visitor's area. Upon the prisoners' request for containers, the prison guards refused to allow them containers to collect items brought to them by their visiting families. It was a normal procedure for the prison to give the prisoners containers for this purpose. There is no reason recorded for the refusal and it caused a fight to break out. Thus it appears that the guards used this as a provocation to begin the events.

The 31 prisoners were kept in the area for the next 5 to 6 hours, until the operation began. One would think that 5 to 6 hours of being locked in a confined area was enough time for the prisoners to calm down, at which point they could be returned to their cells. One would think that prison guards, who are supposed to be trained in handling exactly this kind of situation, would have been able to handle the situation after the 5 to 6 hour cooling-off period, but that was not the case. Instead, the police and army were called in to "assist."

The event seems to have taken place between 1530 to 1630 hours, with police and soldiers entering the area from two separate directions. One prison informer noted that any prisoners holding metal pipes or bars dropped them to the ground immediately upon seeing the police and soldiers--an obvious sign of refusal to fight. A prisoner-witness gave the following testimony:

Prisoner-witness Altin saw police and soldiers appear from the kitchen side and Special Police arrive from the other direction shouting "Allah! Allah!" slogans. They charged the prisoners, attacking them and hitting them on their heads. He said that the prisoners had only tried to defend themselves: they bore no grudge against the informers, who had had nothing to do with what happened. He said that the situation could have been contained but the way it was dealt with was like a planned massacre.

The C-Block prisoner-witness confirms this. He saw soldiers and Special Police with wood and steel bars in their hands appear from the visitors¹ area. When the gates were opened, soldiers and riot police started to attack the prisoners- even those who were trying to hide in corners. He saw one prisoner being hit on the head, become disorientated, turn, fall to the floor and stop moving.

Tiftikci said that as one police unit entered, another unit prepared to back them up. He ordered another unit of soldiers from a group of 22 to leave their rifles and be ready to back up the others. While this was going on, the police removed one prisoner (the 2nd Informer?) On going downstairs Tiftikci saw Deputy Police Chief Hasan Senay and a group of police officers, gendarmes and the fire engine. Doctors and personnel were standing by. Tiftikci warned the hospital (at 16.00 hrs?) that there could be wounded. All the necessary tasks were then completed- such as checking the prisoners, regaining discipline and signing the prisoners¹ transfer documents. Documents required for putting the security forces on trial, if necessary, were sent to the Governor of Diyarbakir.

The 5 to 6 hours was not an attempt by the prison authorities to diffuse the situation. It was the time they needed to have everyone on hand and in place for the planned massacre.

Prisoner-witness Altin said that after the attack the authorities had dragged the injured prisoners to the visitors' area and dumped them one on top of each other, where they were left for an hour before being taken to the hospital.

It is certainly possible that the prisoners had incurred their serious and fatal injuries very early on in the attack. Caca and the prison doctors agree that the prisoner casualties were not assessed until 16.30 hrs (an hour after the attack began) and emergency medical treatment for the gravely injured and dying prisoners was not everyone's priority: Tiftikci reported that one of the army officers thought the wounded soldiers should be treated before the prisoners but was told to take these soldiers to the military hospital.

[ . . . . ]

As there was no space in the visitors' area to enable the prison doctors to deal with the injured, they were taken to the control room. The doctors saw two prisoners whose heads had been broken open. Five or six others had puffed eyes and crushed skulls, and were bleeding from the head and ears. They felt that these five or six would not survive their injuries. 19 seriously injured and urgent cases were transferred to Diyarbakir Hospital and those who seemed alright- who had no injuries "likely to cause problems" and who were able to walk- were transferred to Gaziantep Prison.

Those prisoners with the worst injuries were transported to the Diyarbakir Hospital. The attending physician at the hospital testified to the following:

On opening the doors of one vehicle, Mizrak saw six to seven bodies piled on top of each other. Checking more closely he noted that all had head wounds and two had already died. The rest were taken to the emergency unit and seven were registered dead in the hospital records. Only 20 minutes later (17.00 hrs) Tiftikci was already meeting with the Governor of the State of Emergency region to discuss their burial.

Of the 19 prisoners sent to Diyarbakir State Hospital, a total of nine died: seven were found dead on arrival (Erkan Hakan Perisan, Cemal Cam, Hakki Tekin, Ahmet Celik, Edib Direkci, Mehmet Nimet Cakmak, Ridvan Bulut) and two others died in hospital (Mehmet Kadri Gumus, Mehmet Aslan). Of seven others who were seriously wounded, one was saved by an operation and all needed to be admitted to the intensive care unit (Ramazan Korkar, Iskan Ozal, Mehmet Batuge, Mehmet Emin Izra, Ramazan Nazlier, Yasin Alevcan, Abdullah Eflatun). The last three were treated for wounds (Kenan Acar, Hakki Bozkus, Bedri Bozkus).

Dr. Mizrak admitted that whilst he was not a pathologist, he was a surgeon with a great deal of experience of such incidents. In his experience, it was normal in such circumstances to find broken arms and legs but this time the autopsy reports showed hardly any broken limbs- which indicates that the prisoners had been held down and then beaten. The 2nd Informer was taken to the hospital to identify the dead. He reported that none had bullet wounds: all the men had died from blows to their heads.

It should be noted that none of the security forces suffered any serious injuries.

As 19 of the prisoners were transported to Diyarbakir Hospital, 14 other prisoners, who had been given a clean bill of health prior to transfer by the Diyarbakir Prison doctors, were transported to Gaziantep Special Prison. One of those prisoners was dead on arrival at Gaziantep, two were admitted to the intensive care unit of the Gaziantep Hospital while the remaining 11 were treated there before being taken to the Gaziantep Prison. It is normal procedure for doctors to lie about the medical conditions of prisoners, but in this case it looks like another "normal" procedure was administered:

Prosecutor Tiftikci admitted that although it should not happen, it was still general practice to beat prisoners during transfers. This practice is confirmed by the IHD Advocate Ercan Kanar. The delegation gave credence to the accusations of the PKK prisoners removed to Gaziantep Prison, who claimed that prison authorities had targeted them to become informers. They said that when they refused, they were deliberately put into a situation where they could be killed. Their accusation is borne out by the facts.

The delegation notes that although these 14 prisoners had apparently been given a clean bill of health for transfers to Gaziantep Prison, they must have been attacked in transit for one to be found dead on arrival and the others to require hospitalization- two in intensive care.

Kadri Demir was the prisoner who arrived dead in Gaziantep. His relatives brought charges against Turkey at the ECHR. The ECHR findings in the case side more closely with the prisoners' view of events than with the prison authorities or special police and jandarma. The ECHR found Turkey guilty of Kadri Demir's death, meaning the state is guilty of murder:

Since the Turkish Government had been unable to offer an adequate explanation regarding the origin of the “general physical trauma” that had resulted in Mr Demir’s death at a time when the State had responsibility for him, the Court found that Turkey was responsible for his death. Consequently, it held that there had been a violation of Article 2.

As to the effectiveness of the state's investigation into the massacre, the ECHR had this to say:

The investigation as a whole had been very protracted since, eight years after the incident, the domestic criminal proceedings were still pending at first instance and had yet to yield any concrete results. Likewise, the pathologist’s report into the cause of death had not been placed in the court file until almost four years after the death.

The Court was also struck by the fact it had taken almost five years after the incident for criminal proceedings to be brought against the officers responsible for the prisoners’ transfer, despite repeated requests by the applicants for their prosecution and the statements of the other prisoners who had been transferred.

Those shortcomings taken as a whole sufficed for the Court to conclude that the Turkish authorities’ investigations into the circumstances surrounding Kadir Demir’s death were not effective. Consequently, there had been a violation of Article 2.

Additionally:

Having found that the scope of the judicial investigation had not enabled the circumstances of Mr Demir’s death to be established, the Court found that it was not possible to consider that an effective criminal investigation had been conducted in accordance with Article 13. Consequently, there had been a violation of Article 13.

In 1998, the Joseph R. Crowley Program in International Human Rights, from Fordham University Law School, sent a delegation to Amed to observe one of the hearings in this case. Another delegation was sent in 1999 for another hearing. The results of their hearing can be read in an appendix to a larger fact-finding work on the justice system in Turkey, published in the Fordham International Law Journal (the entire fact-finding report on Turkey can be found here ).

The final assessment of the Fordham delegation includes the following statement:

The case is a stark example of how the judicial system can fail victims of of judicial abuse. Public prosecutors,under a legal duty to investigate and prosecute crimes fully, look no further than the version of events supplied by the police's internal interviews. Defendants fail to appear in court. Witnesses from the security forces cannot be compelled to appear. Inmates who witnessed the incident have been transferred to prisons in other towns, and the court continues to deny them permission to travel to Diyarbakir to testify. Some testimony from these ostensibly unavailable witnesses is taken in the remote locations in which they are now imprisoned. Judges and prosecutors unfamiliar with the case take that testimony without even the benefit of the case file. Victims' lawyers are not present because the expense and danger are prohibitive.

The delegation further noted the delays and postponements, the lack of crucial evidence such as autopsies, the victim's lawyers lack of access to evidence and the failure of prosecutors and judges to fully investigate and prosecute crimes, particularly those involving state security forces.

Shortly after the incident in Diyarbakir Prison ten years ago, people were predicting there would be a cover-up. As the Fordham delegation discovered, "The fact that the law provides such a double-standard [i.e. security officers not being arrested for their crimes pending trial, while many of the Diyarbakir prisoners were still under incarceration awaiting trial three years later] seems to be complemented by a sense that the victims here deserve the inferior treatment that they received."

Indeed. The legal system that has permitted murderers to go free this week is final proof of the inferior treatment meted out to the victims. A lack of outcry against this injustice is the final proof of how well the passage of time has covered up the crime.