Summary

Turkey’s modern history has been marked by impunity for serious human rights abuses highlighted by the state’s systematic failure to hold to account members of the security forces and other public officials for serious violations in the decades following the September 1980 military coup.

In the 1990s, during the armed conflict between the Turkish military and the Kurdistan Workers’ Party (PKK), government military and security forces compelled hundreds of thousands of people to abandon their villages, and carried out enforced disappearances and killings of thousands of civilians. Affected were mainly Kurds in Turkey’s southeastern and eastern provinces. The PKK also committed grave human rights abuses in the course of the conflict. According to official estimates, by 2008 the armed struggle between the military and the PKK had resulted in an estimated 44,000 deaths of military personnel, PKK members, and civilians.

Despite two parliamentary inquiries in the 1990s into the state’s collusion in political assassinations and involvement in lawless activities, no-one in the Turkish state was held accountable during this period for the pattern of gross human rights violations committed by the military and security services. A handful of prosecutions in the domestic courts resulted in the conviction of low level members of the security forces and police, who received nominal, low sentences. But there was no attempt to probe higher level involvement of state officials or to examine whether the violations were a matter of state policy.

There were positive indications of change in 2009, however, when a remarkable trial began in the southeastern city of Diyarbakır of a gendarmerie officer, retired colonel Cemal Temizöz, three former PKK members turned informers, and three members of the “village guard” (local paramilitary forces armed and directed by the gendarmerie). The prosecution accused the defendants of working as a criminal gang involved in the killing and disappearance of twenty people in and around the Cizre district of Şırnak province between 1993 and 1995.

These twenty killings were just a tiny fraction of thousands of unresolved killings and enforced disappearances that took place in the area in this period, as well as many more in other provinces of the region and in some of Turkey’s largest cities. Nonetheless after years of impunity, the investigation and prosecution of these cases marked a significant milestone. Temizöz is the most senior member of the Turkish military ever to stand trial specifically for gross violations of human rights committed in the course of the conflict between the Turkish armed forces and the PKK.

The trial, which started in September 2009, offers an opportunity to examine the obstacles to securing accountability in Turkey’s domestic courts for state-perpetrated killings and disappearances in the mainly Kurdish-populated southeast of the country in the first half of the 1990s. In January 2012, the Commissioner for Human Rights of the Council of Europe described the trial as “a unique opportunity to shed light on a period of systematic human rights abuses in south-east Turkey, which feature prominently in the case-law of the ECtHR [European Court of Human Rights].”

This report examines some of the lessons the Temizöz trial provides about the current obstacles to effective investigation and prosecution of past abuses and highlights some of the reforms required to allow the effective criminal investigation of the hundreds and possibly thousands of similar cases. The report recommends further steps the Turkish government needs to take to combat impunity in Turkey.

Lessons of the Temizöz Trial

The Temizöz trial highlights obstacles to securing justice for victims of human rights abuses in the region in seven key areas:

• Limited scope of investigation: The prosecutor failed to explore possible chain of command involvement in the killings beyond Cemal Temizöz, for example by investigating the command responsibility for the alleged crimes among the higher ranking officers in the region.
• Non application of witness protection: While Turkish courts have widely used orders to conceal the identity of witnesses in organized crime and terrorism trials, there has so far been little application of the Witness Protection Law in trials relating to crimes committed by the security forces. Application of the Witness Protection Law in the Temizöz trial could have significantly increased the willingness of vulnerable witnesses to participate.
• Witnesses retracting their statements: The Temizöz trial has demonstrated how witnesses called to testify because of their “insider” knowledge are liable to retract the initial witness statements they made before prosecutors when they appear before the court. Such witnesses include village guards, former PKK members turned informer, or military personnel and police.
• Attempts to intimidate and direct witnesses: Clear evidence emerged in the course of the trial of attempts to interfere with witnesses.
• Threats to lawyers: A striking aspect of the trial has been the threatening and insulting behavior in court of defendants towards some of the lawyers acting for the families of the victims. Judges in the case have failed to respond adequately to such behavior.
• Length of proceedings: Since the Temizöz trial began in September 2009 there have been 36 hearings (up to June 22, 2012). The excessive duration of trials in Turkey is a long-standing concern. Long trials often lead to excessively prolonged detention for defendants pending verdict, and violations of the right to a fair trial. But lengthy proceedings also have serious implications for witnesses and their protection.
• The village guard system: The continued existence of the village guards system by which civilian villagers are armed and paid by the state to join military and counter-terrorism operations alongside the regular security forces is a further social obstacle to efforts to secure accountability for the killings and enforced disappearances and other egregious violations of human rights in the southeast and eastern provinces of Turkey. The fact of some of the defendants in the Temizöz trial are village guards—in effect an irregular army operating within the local society—has contributed to the continuing fear of witnesses and families of victims.

Momentum for Accountability

Today there exists some momentum in Turkey to pursue accountability for past abuses. The families of victims of serious human rights abuses in the 1980s and 90s have played an important role in creating momentum to pursue accountability, with such initiatives as the weekly protest in Istanbul of the Saturday Mothers, relatives of victims who campaign for justice for disappearances and killings by suspected state perpetrators. The recent excavations of mass graves in southeast and eastern Turkey has also increased the expectation of justice among families whose relatives disappeared in the 1990s. 

This has also arisen in part because of the efforts of the Justice and Development Party (AKP) government to curtail military power in Turkey and to pursue criminal proceedings in the Ergenekon and similar trials against state, military, and criminal networks for alleged collaboration in coup plots.

The trial of the two surviving generals of the 1980 military coup began in April 2012. It, too, has pointed to the need for wider accountability, and may encourage further efforts to prosecute state perpetrators suspected of serious human rights abuses in the wake of the coup and in military operations against the PKK in the southeast during the 1990s.

Another Obstacle to Justice: the Statute of Limitations

This report finds that when it comes to investigating killings committed in the 1980s and early 1990s Turkey’s statute of limitation laws present a potential structural obstacle to accountability.

According to the former Turkish Penal Code (no. 765), which applies to crimes committed before 2005, the statute of limitations for murder is twenty years. If during that period the prosecutor takes steps that could lead to a prosecution, then the statute of limitations applied to the investigation stage is halted and the prosecution and trial together have another ten years to run.

Given that unresolved killings in Turkey peaked during the years 1992 to 1995, and that in almost all cases prosecutors have yet to take any concrete steps toward prosecution, there is the risk that the statute of limitations will prevent the investigation and prosecution of the killings.

However, this report argues that under international law Turkey has a duty to investigate and punish perpetrators of serious human rights abuses, a duty which cannot be displaced by statutes of limitations or other domestic legal obstacles. This duty also stems from Turkey’s obligations under the human rights treaties it has signed, which are part of Turkish law according to the Turkish constitution.

The report further argues that because of the scale, scope, and official tolerance of the killings, enforced disappearances, and other human rights crimes that occurred in the southeast of Turkey, these crimes could be prosecuted as crimes against humanity.

Turkish law also allows the statute of limitations clock to be stopped where obstacles have hindered the initiation of legal proceedings. Repeated judgments of the European Court of Human Rights against Turkey demonstrate such obstacles, including a pattern of violations of the right to life and torture, and a failure to conduct effective investigations resulting in the prosecution of suspected perpetrators, or to provide remedy to victims. This report therefore argues that during much of the past four decades the obstacles to legal proceedings were such that the statute of limitations should be deemed not to have run.

The Turkish authorities need to tackle the abuses of the past and bring justice for victims to show that the state is willing to take steps to provide redress and remedy for violations repeatedly identified in the judgments of the European Court of Human Rights. Coming to terms with the past is also an important element in addressing Turkey’s “Kurdish problem”, requiring not only individual accountability but also a wider examination of the impact of the conflict in southeast Turkey in 1990s, and abuses that took place within it.

There is an historic opportunity today for Turkey to come to terms with its recent past, and to deliver justice for the relatives of the many victims of state violations during the 1980s and 1990s. But doing so will require that the authorities prosecute these crimes in a timely way and ensure that witnesses are protected and lawyers able to do their jobs. In murder cases, the authorities should in particular provide clear legal guidance that the statute of limitations cannot be invoked to prevent perpetrators being brought to justice, on the grounds that during much of the state of emergency in southeast Turkey, meaningful and effective investigations were not and, indeed, could not in practice be conducted.