The Kurdish Question and State of Emergency in Decisions by the European Court of Human Rights

From B-Ob8ungen
Jump to: navigation, search

The 12-page article was written in 2001 by lawyer Sezgin Tanrıkulu and translated by Helmut Oberdiek. So called "Interwiki Links" may point to articles in the English Wikipedia.

Introduction

Since the foundation of the Turkish Republic in 1923 the Kurdish question continues to be the basic problem of the country. While martial law, that had been introduced in the whole of Turkey following the coup d'etat of 12 September 1980, was lifted in 1987 emergency legislation was introduced according to Articles 119-122 of the Constitution of Turkey|Constitution]] in 10 out of 11 provinces in the Southeast with predominantly Kurdish population. A Governorate for the Region was introduced by Decree No. 285 that was based on the Constitution and Law No. 2945 on a State of Emergency. The decree was given equal value to a law and the Regional Governorate was equipped with wide ranging power, that could not be challenged in court. The state of emergency is still valid in four provinces.[1]

The current situation in the area under a state of emergency stems from the fact that no solution was found to the Kurdish question.[2] This question was never defined and the officials use terms such as underdeveloped area, terrorist movement, or intense conflict or even war when talking about it. This situation has been the reason for gross human rights violations and continues to do so.

Turkey ratified the European Convention of Human Rights (ECHR or „the Convention“) on 10 March 1954, but informed the Secretary General of the Council of Europe only by a letter of 28 January 1987 that the Council of Ministers had decided to accept the right to individual petition to the European Commission on Human Rights (also „the Commission“) as set forth in Article 25 of the Convention. On 27 September 1989 Turkey also accepted legislation of the European Court on Human Rights (ECoHR or „the Court“). The fact that the lawyers did not have sufficient information on procedures for such petitions, did not know the official language used in Court, the lack of literature in the beginning and the fear of reprisal against petitioners resulted in only few cases being forwarded to the Commission from the region under a state of emergency.

The implementation of the state of emergency

According to figures provided by the Regional Governorate for the State of Emergency (shortly called OHAL) the following happened between 19 July 1987, when the state of emergency was announced and 31 January 2001:

a. 23,415 members of the illegal organization PKK were captured dead, 621 injured, 3,114 alive and 2,739 surrendered, making a total of 29,529 members of the organization having been captured.

b. During the same period 5,029 members of the security forces were killed and 11,022 were injured. During clashes 4,450 civilians were killed and 5,460 injured.

2. A study based on registers of Diyarbakir State Security Court (SSC) 1 revealed that between 1984, when such courts started to operate, and 2000 a total of 67,529 people were tried at Diyarbakir SSC.[3] Many of them were children. According to another work covering the time until 1 April 1987[4] 596 children were sentenced to heavy prison terms for membership of the organization or similar offences.

3. According to a research commission of the GNAT that was formed in 1997 the number of settlements (villages, hamlets) that were evacuated or destroyed is around 3,428.[5] The number of people who were subjected to enforced migration either from these settlements of the region is estimated to be around 2 millions.

4. According to figures from the Human Rights Foundation of Turkey (HRFT) at least 812 people fell victim to political murder by unidentified assailants between 194 and 1998.[6] Most of the murders were committed in the area under a state of emergency. According to the same report 5 at least 186 people „disappeared“ between 1980 and 1997,[7] mostly in the area under emergency legislation. The number of torture incidents established by the HRFT is 13,263 for the period between 1990 and 1998.[8]

In relation to human rights violations one can say that they continue in the region of a state of emergency on the same level as ever. Particular mention should be made on the length of detention, the fact that detainees cannot get judicial aid. Other restrictions concern the right for freedom and security, searches of houses and work places, tapping of telephone, the right to secrecy of private life, associations being closed down, meetings are banned, radios and TV station are prevented from broadcasting, newspapers are not allowed to be distributed in the region under a state of emergency, films and theatre plays are forbidden and civil servants are punished by disciplinary transfers to other regions and the „disappearance“ of two executives of the People's Democracy Party (HADEP) as the latest event should also be mentioned.[9]

Decisions by the European Court on Human Rights

This study aims at presenting a picture of how the state of emergency is reflected in the decisions by the ECoHR up to 31 December 2000. The cases will be studied according to the sequence of rights laid down in the ECHR. Among the examples are cases of the right to life, the right not to be tortured or subjected to ill-treatment, the right to freedom and security, respect for private life and the right to private property. Violations of these rights are directly a result of the state of emergency. But there are also other examples such as the closing down of political parties that have close ties to the Kurdish questions and that had to be dealt with by the Court. The case studies will, therefore, be divided under two headings.

The right to life

Apart from an example from the United Kingdom [10] the Court was in its own history frequently confronted with cases from the region under a state of emergency in which Turkey was accused of having violated the right to life. The Court reached its verdicts on violations of the right to life mainly by hearings of the Commission[11] that according to its own working principle appointed members who went to Turkey in order to act like a local court; listen to witnesses and collect documents. In connection with applications from the region under a state of emergency the ECoHR established that the right to life as set forth in Article 2 of the Convention can be violated for five different reasons. Applications that ended in verdicts point to the fact that a violation of the right to life may lead to more than only one violation.

a) Applications where the Court established that the Right to Life was directly violated by an intervention of the State

Concerning applications of detentions with an unknown fate the Court ruled that the right to life was terminated by a direct intervention of the State. Although the Turkish government did not admit that Ahmet Cakici had been detained the Court ruled in the case of Cakici v. Turkey[12] that the victim had been detained. The Court also found that the explanation of the victim having died in an armed clash was not satisfactory as far as the circumstances of death were concerned and stated that this was a direct violation. In the case of Tas v. Turkey [13] the Court did not follow the explanation that the victim Muhsin Tas who had been detained injured tried to escape when he was taken to show some places. The Court held the government responsible for the death of the victim of whom no news had been received for a long time. In the case of Timurtas v.Turkey[14] the government denied that Abdulvahap Timurtas had been detained. When the applicants forwarded a copy of the document on detention that had been removed from the files of the local investigation to the Commission, the government argued that the document was faked. The Commission asked the government to provide the original and when the government failed to do so the government was held responsible for the death. As far as the death of Ismail Ertak is concerned the Court ruled in the Ertak v. Turkey[15] case that there was only little suspicion that he did not die as a result of torture inflicted on him after detention, despite the fact that the government denied the fact of detention. The Court ruled that the officials were responsible for the violation of the right to life.

b) Cases of Violations because of a lack of effective and sufficient measures by the government

In particular between 1992 and 1996 many people that might be called opinion leaders, writers, politicians, teachers, trade unionists, journalists, lawyers, priests and people of various circles of society were killed on the streets - mainly in Diyarbakir - by unknown assailants. In most cases the assailants have not been identified until today. Following applications to the Commission the government claimed in some cases to have found the assailants, but the Court did not find these answers reliable.[16]

In the cases of Kiliç v. Turkey[17], Kaya v. Turkey[18] and Akkoç v. Turkey[19] the Court also ruled that because of the position of the victims (journalist, physician and teacher-trade unionist accordingly) and the events in the region the government, knowing of the risks and the negative attitude of official institutions, had not taken close, effective and reasonable measures to protect the right to life.

c) Applications in which Deficiencies in Planning (military operations) led to a violation of the right to life

At the time of intense clashes many civilians lost their lives during operations of the security forces. Examples for applications of this kind are the cases of Ergi v. Turkey[20] and Ogur v. Turkey[21]. In this events operations were carried out against members of the armed organization in the countryside. During this operation a woman in a house of the village and a worker of the coal mines were killed by shots from the security forces. The Court ruled that the right to life had been violated because of insufficiencies in planning the operation and heavy mistakes and neglect during implication.

d) Cases in which the right to life was violated because of an inappropriate use of violence by the security forces

In the case of Gül v. Turkey [22] the security forces went for a house search and even before the victim could open the door fired 50 to 55 shots for reasons they themselves could not explain and caused the death of the victim. The Court ruled that firing on a house with women and children without seeing the target but terminating the right to life by effective and automatic arms was inexplicably disproportioned to the aim that the security forces wanted to achieve.

e) Cases involving the right to life in which the investigations were incomplete and insufficient, this constituting a violation of the right to life

In quite a number of application from the region under a state of emergency the Court could not establish a direct intervention by the security forces against the right to life, but concluded that the right to life had been violated because of incomplete and insufficient investigations of the incidents.[23] The striking element of these cases is the fact that there was not enough evidence to prove the suspicion that the security forces had terminated the right to life. But the fact that the prosecutors had acted unwillingly and inappropriate, which could be seen in the files of investigation, legislation concerning the state of emergency that hindered charges to be brought against the security forces led to the conclusion that Turkey had violated the right to life, one of the basic rights of the Convention, on an intense level.

Cases related to Torture and Ill-Treatment

The most severe, widespread and systematic human rights violation in the region under a state of emergency is the violation of the right not be subjected to torture, cruel, inhuman or degrading punishment and treatment as provided in Article 3 of the Convention.

Until 1997 when the maximum length of detention was 30 days, far from supervision of a judge [24] the security forces in the region under a state of emergency made extensive use of their latitude against the suspects. The Court ruled that the time spent in isolation in itself constituted an act of ill-treatment. The number of people tried at the SSCs is a hint to the number of people subjected to this kind of treatment. The numerous verdicts of the Court can be summarized according to the following headline:

Cases in which the Court Established that Torture was Applied

As a novelty in the history of the Court one application from the region under a state of emergency resulted in a decision that the treatment the victim had been subjected to in detention could only be defined as torture. In the case of Aksoy v. Turkey[25] the Court found that the victims had been subjected to the so-called Palestine hanger (being stripped naked and suspended by the arms being tied on the back). In this decision the Court emphasized the difference between ill-treatment (cruel, inhuman and degrading) and torture as set out in Article 3 of the Convention stating that such a treatment could only be done on purpose and needed some time for preparation. The fact that the victim was partially paralysed to both arms was proof for this treatment that could only be called torture.

Even stronger words were used in a second application from the region in the case of Aydin v.Turkey. [26] In this case the Court established that the victim had been a young girl of 17, when she was detained by the gendarmerie and that she was raped in detention. Once again the Court stated that this and the other treatment she was subjected to while being held in custody could only be called torture for which a high compensation would have to be paid.

In the case of Ilhan v. Turkey[27] the victim had been paralysed because he had been beaten on his head with a rifle butt and was awaiting medical treatment. In this case and the case of Akkoç v. Turkey[28] where the victim had been detained more than once, had been sexually assaulted in detention and hosed with cold and pressurized water while being blindfolded and naked, had been handcuffed in the cell where she had to stand naked and her hands up in the air and whose husband was killed by unknown assailants the Court ruled that torture had been involved.

Violation established because the allegation of torture and ill-treatment was not sufficiently investigated

In the case of Tekin v. Turkey[29] the Court ruled that the fact that the victim had been kept blindfolded in a cold cell and treated in a way that left scars and wounds on his body was in contravention to Article 3 of the Convention and had to be termed inhuman treatment.

In the case of Veznedaro­glu v. Turkey[30] the Court found that the applicant had voiced torture allegations in front of the prosecutor and the court. But despite the fact that he substantiated his claims by a medical report no investigation into the allegations had been initiated which in itself was a violation of Article 3 of the Convention.

Other applications concerning violations of Article 3

Concerning applications in connection with the right to life as stipulated in Article 2 of the Convention the Court considered cases with a direct intervention to the right to life as well as cases of „disappearances“ not only in contravention to Articles 2 and 5 but also a violation of Article 3 for the victims as well as for the applying relatives.[31]

In addition, cases related to evacuation of villages and destruction of private property the Court did not only argue that such measures are a violation of Article 8 and Article 1 of the additional protocol to the Convention, but established that such a treatment constituted inhuman and degrading treatment for the people concerned.[32]

Cases related to Individual Freedom and Security

Among the first applications where the Court found a serious violation of Article 5 of the Convention cases from the region under a state of emergency with a large number of „disappearances“ could be found. Until the first verdict on such a case the Court was unable to discover any similar case on the European continent and pointed to cases at the Inter-American Human Rights Court and the rulings of the UN Human Rights Committee as reference.[33]

In the case of Üzeyir Kurt the Court established that he had been detained during an operation in the village. The government denied the detention, but according to the Court did not provide any reliable argument. Therefore, the government was to be held responsible for the fate of Üzeyir Kurt and had violated Article 5 of the Convention in a serious way.

Further cases of people who had not been seen after their detention (cases Çakici v. Turkey, Timurtas v. Turkey, Tas v. Turkey) the Court ruled that not only Article 2 but also Article 5 of the Convention had been violated.

In the cases of Aksoy v. Turkey and Demir and others v. Turkey[34] the Court found that 14, 16 and 23 days' detention were in contravention to Article 5/3 of the Convention. At the same time the Court ruled that the reservations the government had made according to Article 15 of the Convention were not applicable in case of security of the individual.

Cases of Respect of Private Life and the Right to Property

Despite the fact that evacuation and destruction of many settlements in the region under a state of emergency was proven by a report of a Research Commission in the Grand National Assembly of Turkey[35] only very few were taken to the ECoHR by means of individual petitions.

The first case of that kind was Akdivar and others v. Turkey[36]. In this judgment many problems relating to procedure and facts relating to the Convention have been clarified.

In this case the Court rejected the defense of the government arguing that the house of the applicant had not been set on fire by the security forces and stated to the contrary that the applicant had lost his house because of destructive measures by the security forces and had been forced to leave his village and move to another place. The fact that the security forces had intentionally set fire to the house and the belongings inside was interpreted by the Court as a serious intervention against respect for family life and the peaceful usage of the things they possessed.

In the cases of Mentes and others v. Turkey[37], Selçuk and Asker v. Turkey, and Bilgin v. Turkey the Court accepted the fact that the security forces burned and destroyed villages in the region under a state of emergency and ruled that such measures constituted a violation of the Convention.

Judgements concerning violations relating to the inability to solve the Kurdish question by democratic means

In this chapter it should be useful to study assaults on the freedom of expression and violations of the right to peacefully assemble and organize separately. These violations may have occurred outside the region under a state of emergency. Yet, they are the result of the fact that the Kurdish question that led to the state of emergency was not solved. In connection to the ban of political parties these violations are of particular interest to the region under a state of emergency.

Violations of the Freedom of Expression

Despite the fact that the Turkish Penal Code, in particular Article 312, and Article 8 of the Law No. 3713 to Fight Terrorism were revised more than once in recent time they still constitute an important restriction to the freedom of expression.

On 8 July 2000 the Court announced judgments on cases of trade unionists, writers, publishers, lawyers, politicians and academics who had been convicted for expressing their views on the Kurdish question and sentenced to heavy prison terms or fines.[38] The Court ruled that such cases constituted a violation of Article 10 of the Convention. The Court also found that the punishment of Ibrahim Aksoy, SG of the dissolved People's Labour Party (HEP) and former member of parliament, because of his speeches and books he published on behalf of the party was not in line with the Constitution (Aksoy v.Turkey [39])

In case of the application by the owners of Özgür Gündem[40], a daily that was closed several time because of news on the Kurdish question and the region under a state of emergency, whose reporters, columnists and distributors fell victims to killings by unidentified assailants and that, when the central offices in Istanbul were raided and all the staff detained had to terminate its work, the Court found a violation of Article 10.

Violations of the right to organize

The 1982 Constitution of Turkey and many provisions of Law No. 2820 on the Foundation of Political Parties [41] are obstacles to enjoying the right to organize. Based on these provisions parties such as the United Communist Party of Turkey (TBKP), the Socialist Party (SP), the Party for Freedom and Democracy (ÖZDEP), the People's Labour Party (HEP), the People's Democracy Party (DEP), the Party for Democratic Participation (DKP) and the Welfare Party (RP) have been dissolved on order of the Constitutional Court and some of their executives have been banned from political life.

Three cases of political parties being dissolved on court*s order have led to decisions of the ECoHR.[42] ÖZDEP was banned because of the solution proposed in its program for the 'Kurdish Question'. The Court stressed in its judgment that the party's program did not stimulate or encourage violence. It underlined the fact that the program introduced a social project in which the Kurdish and Turkish people could act together in a democratic system. The program mentioned national and religious minorities and talked about the right to self-determination. The Court ruled that as long as political parties did not strive at destroying democracy they should not be dissolved even if they took opposite position and did not comply with the existing political structure. Therefore, the ban of ÖZDEP was a violation of Article 11 protecting the right of organizing.

New problems of the implementation of the state of emergency

The reflection of the practice of the state of emergency in verdicts by the ECoHR is not restricted to the points high-lighted above. The Court found serious violations of human rights. Despite the fact that these violations had not been investigated on the local (national) level hearings were conducted to gather evidence. The applicants were released from the obligation to exhaust legal remedies, because the Court found that no effective legal remedies existed. In many judgments a violation of Article 13 was established. All these points will be dealt with below under separate headings.

Release the applicants from the obligation to exhaust legal remedies

According to Article 35 of the Convention applicants first have to exhaust existing legal remedies on the local (national) level before they can appeal to the ECoHR. However, the Court ruled that in certain circumstances the applicants can be exempted from this obligation based on principles that international law has generally accepted. Applications forwarded by the Diyarbakir branch of the Human Rights Association and followed up by lawyer from the United Kingdom, in particular cases of murder, torture, evacuation of villages in the years 1993 to 1997 were objected to by the government referring to Article 35 of the Convention that required to exhaust local legal remedies first. But the Court rejected this objection stating that no effective legal remedies existed. In the judgment on Akdivar and others v. Turkey[43] the Court first described the situation in the region at the time when the violation occurred and concluded that under such circumstances „it must be recognised that there may be obstacles to the proper functioning of the system of the administration of justice. In particular, the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative inquiries on which such remedies depend may be prevented from taking place.“

On the same point „the Court note(d) the evidence referred to by the Delegate of the Commission as regards the general reluctance of the authorities to admit that this type of illicit behaviour by members of the security forces had occurred. It further notes the lack of any impartial investigation, any offer to cooperate with a view to obtaining evidence or any ex gratia payments made by the authorities to the applicants... As regards the civil remedy invoked by the respondent Government, the Court attaches particular significance to the absence of any meaningful investigation by the authorities into the applicants' allegations and of any official expression of concern or assistance... Against such a background the prospects of success of civil proceedings based on allegations against the security forces must be considered to be negligible in the absence of any official inquiry into their allegations.“[44]

In the case of Aksoy v. Turkey the Court had to decide on a violation of Article 3 of the Convention. At the same time comments were made concerning the necessity of exhausting legal remedies as set out in Article 26 of the Convention. The judgment stated a.o.: „there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the "generally recognised rules of international law" to which Article 26 makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal.“[45]

Although the Court decided that the applicants from the region under a state of emergency did not need to have exhausted legal remedies before appealing to the ECoHR, but did not conclude that this was a general administrative procedure. The Court stressed that the decision was always directed only at the case in question. In the Akdivar and others v. Turkey judgment the passage reads: „... The Court would emphasise that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that remedies are ineffective in this area of Turkey or that applicants are absolved from the obligation under Article 26 to have normal recourse to the system of remedies which are available and functioning. It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.“[46]

The Court also considered the risk of revenge by the security forces, if the complainant resorted to local legal means and showed this as another reason why applicants from the region under a state of emergency did not have to exhaust legal remedies. This risk was expressed for the first time in the Akdivar and others v. Turkey case with the following words: „Nor can the Court exclude from its considerations the risk of reprisals against the applicants or their lawyers if they had sought to introduce legal proceedings alleging that the security forces were responsible for burning down their houses as part of a deliberate State policy of village clearance.“[47] It should be borne in mind that at the time 24 lawyers from Diyarbakir Bar Association including members of the Judicial Committee of the Human Rights Association were detained and arrested in an unprecedented operation. This might have had an effect on the judgment of the Court.

Prevention to use the Right of Petition Effectively

In relation to applications from the region under a state of emergency the Court ruled for the first time that the applicants were put under pressure because of their petition. This was interpreted as a violation of Article 34 (former 25) of the Convention. [48] In evaluating this point the Court gave detailed information on how the applicants were made to sign statements that they had not given authorization to follow their case, how they were interrogated by a public prosecutor, held in custody, threatened over the phone, called to police stations etc.

Fact-Finding Hearings by the Court on Alleged Violations

In exceptional circumstances, when heavy discrepancies between the explanations of the applicant and the defense of the government occur, the Court (previously the Commission) is entitled to conduct fact-finding hearings. As far as applications from the region under a state of emergency are concerned it was rather the exception not to conduct fact-finding hearings. The Commission would appoint judges who like a local court would hear the applicants, witnesses, officials and gather evidence. At these hearings high ranking officers, chiefs of police, public prosecutors were called as witnesses and their testimony was taken by cross examination. Such a situation was a new experience related to petitions from the region under a state of emergency.

The Court rejected the argument of less responsibility under a state of emergency

By a note of 5 May 1992 the Turkish government informed the SG of the Council of Europe that according to Article 15 of the Convention the requirements of Article 5 had to be lowered in the region under a state of emergency. The Court dealt with this argument in a number of cases and rejected the view of the government that the requirements should be placed on a lower level for cases from the region under a state of emergency.[49] In reaching the verdict the Court ruled that it was up to the State party to decide on a state of emergency and whether the situation was indeed endangering the live of the nation, but the Court also maintained that this right of evaluation was not unlimited and should be subjected to legal supervision. Concrete the Court stated that 14, 16 or 23 days in custody without control by a judge, was not only in breach of Article 5 of the Convention but also meant a violation of Article 3.

The Court established that no effective legal remedies exist for the Prevention of Violations

In many of the cases cited above as examples for exempting applicants from exhausting legal remedies the applicants had not even tried to appeal to local authorities. Yet the Court decided that Article 13 of the Convention been violated.[50] The Court stated that Article 13 was of specific importance concerning violations of Articles 2, 3, 5 and 8 of the Convention and Article 1 of additional protocol No. 1.

The Court also ruled that in case of allegations of severe violations of the rights granted in these articles the meaning of effective legal remedies would not be restricted to paying compensation but also further measures to prevent such abuses. In addition, the government was obliged to find those people responsible for the offence and make sure that they are punished. To this end complete investigations had to be carried out involving the victims of the violation. In this context the Court pointed out that usually investigations only started after the Commission had informed the government of an application.

CONCLUSION

Considering the large number of human rights violations in the region under a state of emergency one can say that only very few have been taken to the ECoHR and even less have resulted in a decision. Yet, the jurisdiction of the Court has become clear by the judgments passed so far.

When deciding on cases of torture the Court made reference to reports by Amnesty International (AI) on Turkey. [51] Likewise the reports by the European Committee for the Prevention of Torture (CPT) had their effect on verdicts of the Court.[52]

In relation to murders by unidentified assailants and „disappearances“ the Court evaluated the „Susurluk“ report, prepared by a supervisory board from the Prime Ministry (even though the report cannot count as factual evidence).[53]

By the judgments of the Court the unlawfulness in the region under a state of emergency have been documented for history showing the dimension of the lack of supervision. The Court exempted the applicants from the obligation to exhaust legal remedies ruling that effective remedies for the prevention of violations do not exist. However, the Court was very careful not to call the violations a general practice of administration. Despite the fact that the allegations all came from the region under a state of emergency with predominantly Kurdish population and the fact that all of the victims are Kurds the Court did not follow arguments by the applicants that Article 14 of the Convention granting the right for non-discrimination was violated.

The Court also did not investigate the cases of evacuation of settlements, destruction and enforced migration from the aspect of humanitarian law.[54] It did however establish that the houses of the applicants were destroyed by security forces carrying out military operations and held the authorities responsible for the fact that the victims had to leave their homes. But the merits of the cases were restricted to Article 8 of the Convention and Article 1 of additional protocol No. 1, without making any reference to other international conventions. In other words the Court did not ask whether common Article 3 of the Geneva Conventions and Protocol II might be applicable on these cases.

It should be mentioned that following the judgments of the Court clearly establishing certain violations some changes in national legislation have been made, even if they are insufficient.[55] But despite all these changes it is not possible to say that any step has been taken to solve the Kurdish question which can be called the main reason behind the violations.

Footnotes

  1. On 21 November 2000 the Grand National Assembly of Turkey (GNAT) passed decision No. 707 prolonging the state of emergency for another four months in the provinces of Diyarbakir, Batman, Sirnak and Hakkari. (According to Article 120 of the 1982 Constitution a state of emergency can be introduced in one or more areas of Turkey, once the view of the National Security Council that meets under the chair of the State President and the Grand National Assembly of Turkey agrees. According to Article 121 of the Constitution the state of emergency can be prolonged for 4 months or lifted by decision of the GNAT)
  2. M. Sezgin Tanrikulu, The Kurdish Reality and Existing Situation in the Light of National and International Jurisdiction, Journal of Diyarbakir Bar Association, No. 6 (the rights that the Kurds may use as individuals or collectively have been guaranteed by many international convention to which Turkey is a party. Existing legislation, however, prevents the use of these rights. International conventions and the legislation on the national level that is in contravention to them have not been included in this article)
  3. M. Sezgin Tanrikulu, SSC Statistics, Journal of Diyarbakir Bar Association, No. 8 and No. 12, daily 2000'de Yeni Gündem of 23.06.2000.
  4. M. Sezgin Tanrikulu, SSC and Convicted Children, Journal of Diyarbakir Bar Association, No. 9
  5. Grand National Assembly of Turkey, Report by the Research Commission on Evacuated Villages and the Problem of Migration from the Southeast. The report was forwarded to the Presidency of the GNAT on 15 January 1998.
  6. Human Rights Foundation of Turkey, Human Rights Report 1998; p. 161 in the Turkish edition.
  7. ibid, pp. 216-218.
  8. ibid, pp. 219.
  9. Serdar Tanis, chairman of HADEP for Silopi district and Ebubekir Deniz were last seen when they entered Silopi Gendarmerie Station on 25 January 2001. The ECoHR immediately declared the application admissible (65899/2001) and decided to present it to the Turkish authorities.
  10. McCann and others v. United Kingdom, judgment of 27 September 1995.
  11. Before the structure of the European Court on Human Rights was changed according to additional protocol No. 11 that entered into force on 1 October 1998 the organs for the procedure were „the Commission“ and „the Court“.
  12. Çakici v. Turkey, App. No. 23657/94, judgment of 8 July 1999.
  13. Tas v. Turkey, App. No. 24396/94, judgment of 14 November 2000.
  14. Timurtas v. Turkey, App. No. 23531/94, judgment of 13 June 2000.
  15. Ertak v. Turkey, App. No. 20764/92, judgment of 09 May 2000.
  16. In the region under a state of emergency these killings are generally attributed to a formation called Hizbul-kontra that is tolerated by officials.
  17. Kiliç v. Turkey, App. No. 22492/93, judgment of 28 March 2000.
  18. Mahmut Kaya v. Turkey, App. No. 22535/93, judgment of 28 March 2000.
  19. Akkoç v. Turkey, App. No. 22947/93-22948/93, judgment of 10 October 2000.
  20. Ergi v. Turkey, App. No. 23818/94, judgment of 28 July 1998.
  21. Ogur v. Turkey, App. No. 21594/93, judgment of 20 May 1999
  22. Gül v. Turkey, App. No. 22676/93, judgment of 14 December 2000.
  23. Kaya v. Turkey, App. No. 22729/93, judgment of 19 February 1998; Güleç v. Turkey, App. No. 21593/93, judgment of 27 July 1998; Tanrikulu v. Turkey, App. No. 23763/94, judgment of 8 July 1999; Yasa v. Turkey, App. No. 22495/93, judgment of 2 September 1998 ; Demiray v. Turkey, App. No. 27308/95, judgment of 21 November 2000.
  24. On 6 March 1997 Law No. 4229 entered into force reducing the maximum length for detention of suspects falling under the jurisdiction of SSCs in the region under a state of emergency from 30 to 10 days.
  25. Aksoy v.Turkey App. No.21987/93, judgment of 18 December 1996
  26. Aydin v.Turkey, App. No.23178/94, judgment of 25 September 1997
  27. Ilhan v. Turkey, App. No. 22277/93 , judgment of 27 June 2000
  28. Akkoç v.Turkey.
  29. Tekin v.Turkey, App. No.22496/93, judgment 09.June 1998 .
  30. Veznedaroglu v. Turkey, App. No. 32357/96, judgment 11 April 2000
  31. Kurt v. Turkey, App. No. 24276/94-22496/93, judgment of 25 May 1998, Timurtas v. Turkey.
  32. Selçuk and Asker v.Turkey, App. No. 23184/94-23185/94, judgment of 24 April 1998, Bilgin v. Turkey, 23819/94, judgment of 16 November 1994
  33. In the case of Kurt v.Turkey the Court pointed to rulings of the UN Human Rights Committee in paragraph 65 and in paragraph 67 it drew attention to cases at the Inter-American Human Rights Court (Velasquez Rodriguez/Honduras, Godinez Cruz/Honduras and Cabellero-Delgado and Santana/Colombia).
  34. Demir and athers v.Turkey, App. No.21380/93-21381/93-21382/93, judgment of 21 September 1998.
  35. see footnote 4 and related chapters
  36. Akdivar and others v. Turkey App. No.21893/93, judgment of 16 September 1996
  37. Mentes and others v.Turkey , App. No.23184/94, judgment of 28 November1997
  38. Ceylan v. Turkey App. No 23556/94, Arslan v. Turkey App. No.23462/94, Gerger v. Turkey App. No.24919/94, Polat v. Turkey App. No. 23500/94, Karatas v. Turkey App. No. 23168/94, Erdogdu and Ince v. Turkey App. No.25067/94-25068/94, Baskaya and Okçuoglu v. Turkey App. No.23536/94-24408/94, Okçuoglu v.Turkey App. No.24246/94, Sürek and Özdemir v. Turkey App. No.23927/94-24277/94, Sürek v.Turkey (no.1) App. No. 26682/95, Sürek v.Turkey (no.2) App. No. 24122/94, judgment of 08 Juy 1999
  39. Ibrahim Aksoy/Turkey App. No. 28635/95 -30171/96, judgment of 10 October 2000.
  40. Özgür Gündem v. Turkey App. No. 23144/93 judgment of 16 March 2000
  41. These are Articles 2-3-610-14-66-68-69 of the Constitution and Articles 78-80-81-89-90-95-96-101-107-108 of the Law on Political Parties
  42. TBKP v. Turkey App. No 19392/92 judgment of 30 January 1998, SP and Others v. Turkey App. No. 21237/93 judgment of 25 May 1998, ÖZDEP v. Turkey App. No. 23885/94 judgment of 08 December 1999
  43. Akdivar and others v. Turkey, para 70 and following.
  44. Similar views were expressed in the jugdment on Mentes and others v. Turkey.
  45. Aksoy v. Turkey, para 52.
  46. Akdivar v. Turkey para 77
  47. Akdivar v. Turkey para 74
  48. See Akdivar v. Turkey, Kurt v. Turkey, Ergi v. Turkey, Akkoç v. Turkey, Tanrikulu v. Turkey
  49. Aksoy v. Turkey, Demir and others v. Turkey
  50. Aksoy v. Turkey, Aydin v. Turkey, Mentes and others v. Turkey, Kaya v. Turkey, Selçuk and Asker v. Turkey, Kurt v. Turkey, Tekin v. Turkey, Ergi v. Turkey, Yasa v. Turkey, Çakici v. Turkey, Tanrikulu v. Turkey, Kiliç v. Turkey, Timurtas v. Turkey, Ilhan v.Turkey, Akkoç v. Turkey, Tas v. Turkey, Bilgin v. Turkey, Gül v. Turkey
  51. Report by AI on Aydin v. Turkey
  52. Reports by the European Committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) of 15.12.1992 and 06.12.1996
  53. The report was handed over to the Prime Minister in January 1998. Having removed 11 pages the report was published. This report mentions the fact that the violations in the region under a state of emergency are conducted with the knowledge and on orders of the authorities.
  54. See footnote 36-37
  55. Article 143 of the Constitution was changed to the effect that military judges and prosecutors are no longer active in SSCs. On 2 December 1999 Law No. 4483 on Procedures for Trials against Civil Servants was introduced replacing a law from 1915. By Law No. 4229 of 6 March 1997 the maximum length of detention for the region under state of emergency was reduced from 30 days to 10 days. On 26 August 1999 the upper limits for sentences for torture and ill-treatment (Articles 243 and 245 TPC) were increased.