IV. Police shootings: Concealing Evidence and Obstructing Investigations

Since the passing of the revised Law on the Powers and Duties of the Police in June 2007, there have been cases of police shootings-some fatal-that demonstrate that the unwarranted use of firearms still remains a key problem in Turkey. Three cases are examined here to demonstrate how obstruction to investigations compounds the problem. (Chapter V, below, also mentions cases of police shootings, in the context of violence during demonstrations.)

In the first of the cases described here, it has taken diligence by prosecutors, family, and lawyers to begin to get past what appear to have been concerted police efforts to prevent a court from determining whether excessive or disproportionate force has been used in a fatal shooting. In the second, police obstruction included representing the victim-who survived the shooting-as a criminal suspect rather than a victim, and attempts at intimidation. In the third, a prosecutor delayed investigations despite substantial indication of irregular police conduct.

In the introduction to this report we presented another case of police shooting, involving Festus Okey from Nigeria. Elements from the cases presented below bear close similarities to Festus Okey's death and what happened afterwards, including characterizing the victim as criminal perpetrator, a delay of several hours in informing the prosecutor, the absence of residue on the hands of the police officer suspected of the killing, and the disappearance of important forensic evidence in the form of the victim's clothing.

Case of Baran Tursun

Baran Tursun, age 20, died in hospital, five days after being shot in the head by a police officer in Izmir on November 25, 2007.

Police allegedly signalled to Tursun to stop the jeep he was driving, with two friends as passengers. When he failed to obey the warning, one officer opened fire, Tursun lost control of the jeep, and it collided with a tree and an electricity post. The circumstances of the shooting and whether or how many warnings were given to stop the car are contested.

Following a prompt investigation, a police officer is now on trial for Baran Tursun's murder (article 81, Turkish Penal Code).The indictment, prepared by the Karşıyaka prosecutor, argues that the use of firearms was not merited in this case: the context for firearms use laid out in the police law did not apply and nor was there a question here that the police officer had acted out of "legitimate self defense."[62]The trial began on January 14, 2008, and at this writing five court hearings have taken place.

The case proceeded swiftly to trial despite strong indications that the police contaminated evidence or disposed of evidence, and its outcome may yet be compromised by this. Ten police officers are currently on trial for "falsifying an official document, failing to inform the judicial police of a crime, destroying, concealing or altering evidence of a crime,"[63] in a trial which has been transferred to Izmir Heavy Penal Court.

Baran Tursun, a student, was the son of a successful Diyarbakır businessman, Mehmet Tursun. The family settled in Izmir in the early 1990s. Mehmet Tursun is determined to secure justice for his son and has been most active in pursuing the case, including by lodging a complaint over the police's handling of the investigation. Mehmet Tursun's lawyers have emphasized the following among the many striking aspects of the investigation that mark it as flawed:

• Although the incident occurred at around 3:15 a.m., the police only informed the public prosecutor of the incident at 6:46 a.m, despite the stipulation that prosecutors should be "immediately informed" and there be no delay in their assuming control of the investigation.[64]
• The police report of the incident recorded it first as a traffic accident. Subsequently, the police abandoned this and claimed that the jeep Baran Tursun and his friends were travelling in had failed to obey a police warning to stop and that the warning shot had killed Tursun. The main suspect himself recorded that he collected up the empty bullet cartridges (mermi kovanlari) and the jeep Baran Tursun had been driving was removed from the scene before it and the evidence inside it could be examined in situ. While police photographs showed a fragment of a bullet case on the front passenger seat, press photographs taken earlier did not show this raising suspicions that the fragment may have been planted in an attempt to suggest that the police bullet that killed Tursun had not been aimed directly at him but that he had died after the bullet ricocheted.

• Hand swabs from the police officer, Oral Emre Atar, who is now on trial for Tursun's murder were taken only after significant delay (at 6 a.m) and no residue of explosives found (barut izleri); and no firearms were handed over until around six hours after the incident.

• All the statements made by the police officers to the security department were identical in wording suggesting that one statement had been prepared for all. CCTV footage taken from a petrol station and copied, presumably by the police, onto a CD for submission as evidence omitted a three-minute period from 3:17 to 3:21 a.m., which seemed to indicate that the footage had been tampered with.[65]

It is striking to note here that Baran Tursun's father Mehmet Tursun and other family members were put on trial under article 301 for insulting the judiciary and attempting to influence the judiciary (article 277), after they raised concerns that they would not see justice for Baran's killings.[66] (See also Chapter VII, below.)

Case of Kemalettin Rıdvan Yalın

On January 19, 2008, Kemalettin Rıdvan Yalın, age 52, was shot just below the knee during a police operation to disband a group of demonstrators who had gathered in central Istanbul to mark the anniversary of the killing of Armenian-Turkish journalist and human rights defender Hra nt Dink. [67]

Yalın, who has worked on the state railways for 30 years, claims that he was not part of the group of much younger people demonstrating on the street. After he had been shot-he claims without any warning bein g given-he was taken to hospital but included in the list of those the police took into detention on suspicion of violently resisting the police, of damaging public property, and of other threatening behaviour. The police placed emphasis on the fact that Yalın was carrying the newspaper Birgün, which is a left-leaning daily paper, stating that the paper was confiscated from him by the police and thus implying that the fact of possessing it was significant and evidence of his participation. [68]

Yalın told Human Rights Watch that after being taken to Taksim First Aid Hospital he was repeatedly visited over the five days he remained there by police officers, who questioned, swore at, and threatened him. When he reminded them of his rights as a citizen, an officer shouted at him, "You are not a citizen! You have no rights!" A police officer was stationed permanently nearby and attempts were made to prevent visitors from meeting with Yalın. [69] There were also attempts made to deny Yalın his legal right to meet in private with his lawyer, and his lawyer told Human Rights Watch that she was forcibly removed from the room where Yalın was. [70] By these means, for five days Yalın was effectively placed under detention, although by law he could only have been detained for 24 hours before the police would have had to apply to the prosecutor for an extension. Yalın's lawyer had to apply to the prosecutor to verify that there was no legal basis for his de facto detention, and on January 24 the prosecutor issued an instruction to the Beyo ğ lu security directorate that Yalın be "immediately released." [71]

A month after the shooting, on February 25, Yalın's home in Kadıköy was searched by three police officers, under a warrant prepared by the Üsküdar 2nd Criminal Court of Peace. [72] The search, which lasted two hours, was based on an alleged tip-off the police claimed to have received stating that Yalın was in possession of hand grenades. Following the search, the Üsküdar public prosecutor issued a decision that there was no need for further investigation since hand grenades had not been discovered. [73] Yalın is certain that the search was simply another attempt to intimidate him and influence the ongoing investigation into his shooting by the police. [74]

As a result of the shooting, Yalin's right knee was shattered and he spent months confined to his home and unable to work, his leg in a plaster cast.

A group of individuals-mostly students-who were detained for allegedly participating in the demonstration during which Yalın was shot also claim to have been ill-treated while being transferred in a police bus to the Taksim Police Centre and during the time they were held in custody there. A group of lawyers who went to the police station were denied access to the detainees and were pushed and sworn at by police as they attempted to discharge their professional duty and enforce their entitlement to meet with the detainees. [75] All those detained were released after 24 hours. Medical reports document injuries consistent with the demonstrators having been beaten. Demonstrators and lawyers alike have lodged formal complaints and there are ongoing prosecutor's investigations. To add insult to injury, Kemalettin Rıdvan Yalın stood trial with nine others for violating the law on public meetings and demonstrations (no. 2911) by using weapons, violently resisting being dispersed by the police, and for injury to three police officers. To date two hearings have taken place. [76] Meanwhile the investigation into the shooting of Yalın by police officer Muhammet Gi ş i continues.

Reflecting on the whole incident, Yalın told Human Rights Watch,

I believe that in Turkey there is no rule of law. As a citizen in Turkey, you feel like you are part of the audience watching a play; you either like it and applaud or you don't like it and leave without applauding. Either way, you cannot intervene in any way … When the police wanted to take me to hospital in a police car after shooting me, I refused to get in and shouted at them, "After shooting me, who knows where you'll take me. How can I trust you?" In hospital the police endlessly questioned me and even asked if I was Turkish, as if that was relevant to a man who had been shot! I said, "I'm a citizen of the world"… What happened to me has made me very angry. I believe my home was searched in order to intimidate me. I don't believe I will see justice … If I get compensation, I have dreams of using the money to load up a van of bird seed, with a sign on the side of the van saying, "This is the bird seed bought by Kemalettin Rıdvan Yalın out of the compensation paid by the state after he was shot by the police. With this compensation, I am feeding the birds." [77]

Case of Ferhat Gerçek

Ferhat Gerçek (age 19) is now paralysed from the waist down and may have to spend his life in a wheelchair. He was shot in the back by police at around 2 p.m. on October 7, 2007, in the Yenibosna district of Istanbul, where he was with a group selling the left-wing journal Yürüyüş, a lawful publication. According to Gerçek the group was approached by a police car and the police wanted to detain them, claiming they were selling an illegal publication. The shooting appears to have occurred when a quarrel broke out, some youths threw stones at the police and Gerçek attempted to run away. The police maintain that Gerçek and others violently resisted a police order to disperse and attacked them, and have deemed Gerçek and those with him as "suspects."

For around seven months after the shooting no investigation was undertaken by the public prosecutor into the shooting of Gerçek. On the contrary, in initially following up the episode police treated Gerçek's as a suspect rather than his shooting as an offence to be investigated: police interviews recorded Gerçek as a "suspect," and people who had been with him also as "suspects" rather than witnesses, while the police witnesses and those who opened fire were interviewed as "victims." The prosecutor however failed to take any statements from those involved in the incident: Ferhat Gerçek, those with him who witnessed the shooting, police witnesses to the incident, or the officers who fired the weapons. Had he made any attempt to investigate the prosecutor might have read the medical reports of three men who attempted to assist Gerçek as he lay on the ground after being shot. These reports record evidence which corroborates their account that they were forcibly removed and beaten by the police. The prosecutor, moreover, failed to inspect the site of the incident, to request any CCTV footage of the area from nearby buildings, or to inquire into why the police failed to hand over a key piece of evidence-the t-shirt that Ferhat Gerçek was wearing bearing the burn mark from the bullet.

Finally, seven months after the shooting, Ferhat Gerçek was summoned to give a statement to the public prosecutor on May 6, 2008.  Gerçek was also able to identify three police officers from among those involved in the incident in an identity parade[78] Finally, on June 16, 2008, seven police officers were indicted both as suspects and as the injured party (mağdur şüpheli) and will stand trial for excessive use of force (article 256, Turkish Penal Code) and "causing aggravated injury". They face a possible nine-year prison sentence. The paralysed Ferhat Gerçek is also listed as an injured party and as a suspect alongside the police, but faces a possible prison sentence of fifteen years and four months on four counts of participating in an illegal demonstration, using violence to prevent a public official from carrying out his duty, insulting a public official and intentionally damaging public property. Four others were prosecuted on the same charges.[79]