Enforced Disappearances and The Conduct of The Judiciary
Enforced Disappearances and The Conduct of The Judiciary
Enforced Disappearances and The Conduct of The Judiciary
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
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
P R E FA C E 7
METHODOLOGY
Our legal team held interviews in Diyarbakır, Mardin The research team included Emel Ataktürk Sevimli,
and Şırnak Bar Associations, with lawyers whose Eser Poyraz and İlkem Altıntaş; Ceren Tanya Aslan,
names are given at the beginning of this report, and at Melis Öner, Zeynep Ekmekçi, Hazal Tanrıkulu, Ekin
the İstanbul, Diyarbakır, Mardin branches of Human Tanrıkulu, Aslı Bilge and Irmak Erdoğan provided
Rights Association (İnsan Hakları Derneği - İHD). support.
METHODOLOGY 9
SUMMARY
SUMMARY 11
off of terror and violence. Yet, the judiciary failed were purged one by one and unsolved murders
to take advantage of this opportunity. and enforced disappearances were on the rise.
In addition, the recently initiated Ergenekon,
Temizöz, and Çitil lawsuits seem to have adopted In the years JİTEM was fighting against PKK
a course that is quite far from exposing the through the use of what JİTEM Commander
actual dimensions of the organization at the state Cem Ersever called ‘unconventional warfare’,
level.3 several important military and political figures,
including Ersever himself, lost their lives one
There is still a cloud of uncertainty over how after another in suspicious ways, which cleared
domestic issues were balanced with one another the way completely for the implementation of the
in Turkish politics after 1990 and how the planned strategy.
violence practiced under the anti-terror banner in
1993 and 1994, as well as the politics behind that In a series of suspicious deaths, General
violence, should be understood. What is certain, Commander of Gendarmerie Eşref Bitlis passed
however, is that the number of individuals away on 17 January 1993, Finance Minister
forcibly disappeared for political reasons was 13 Adnan Kahveci died on 5 February 1993,
between 1980 and 1991, but it surged after 1991, President Turgut Özal on 17 April 1993, and
peaked in 1993 and 1994, and began dropping Gendarmerie Diyarbakır Regional Commander
afterwards. Bahtiyar Aydın on 22 October 1993. While the
public was discussing that JİTEM was involved
It appears that a previous suggestion Alpaslan in the murders, this time it was Cem Ersever,
Türkeş, then Chairman of the Nationalist Action the JİTEM Commander, who was killed on 4
Party (Milli Hareket Partisi - MHP), made to November of the same year.
legitimize units under his control to the effect
that ‘the army, the police and the National At the time this report was drafted, the
Intelligence Organization are not enough in investigations meant to dispel suspicions about
the struggle against anarchy, special forces the deaths of the abovementioned officials had
composed of elite individuals equipped with high not yet yielded any results.
firepower need to be set up’ took shape after
1990, leading to the emergence of Gendarmerie In Turkey, it is no small feat to confront the
Intelligence and Counter Terrorism Unit incidents/facts that left a mark on collective
(Jandarma İstihbarat ve Terörle Mücadele Birimi memory and their public, political and judicial
- JİTEM). 4 dimensions. The first order of business to render
truths visible and ensure their recognition is to
Concurrently, ‘death squads’ were formed as make them unavoidably obvious.
one of the ‘instruments’ referred to in ‘Counter-
guerrila’s statement ‘the homeland must be One of the primary reasons for the establishment
defended against the enemy by resorting to of the Truth Justice Memory Center and the
all instruments’. Government employees who centrality of its ‘documentation/recording’ effort
distanced themselves from the use of illegal is the opportunity of documenting the truth,
operational methods in the struggle against PKK exposing it in its rawest form, and being able to
state, ‘this is what happened in this country and
3 Ergenekon Case No. 2009/209 E. at the 13th High Criminal Court here’s the evidence’ before a Truth Commission
of İstanbul, Cemal Temizöz et al. Case No. 2009/470 E. at the 6th
which may come into being some day.
High Criminal Court of Diyarbakır, Brigadier General Musa Çitil
Case No. 2013/ 50 E. being heard at the High Criminal Court of
Çorum. At a time when we are hopeful that a social
peace process is emerging, we need mutual
4 O.Gökdemir, Faili Meçhul Cinayetler Tarihi (A History of Unsolved
Murders), p.204, Çiviyazıları Publishing House. understanding, truth and justice more than ever
For societies - just like for individuals -, If the failure to investigate and try all official/
reckoning with the past is more important unofficial government authorities, military/
in terms of confronting today and the future paramilitary/civilian forces involved in acts of
than for the sake of the past alone. Rendering enforced disappearance represents a deliberate
violations visible/acknowledged, holding choice, it is then necessary to think sincerely
responsible parties accountable and the eventual about the meaning of that choice, the challenges
establishment of justice with the associated legal it poses to democracy and ways in which those
guarantees will foster collective rehabilitation on challenges could be overcome.
the one side and nourish the sense of trust and
the desire for coexistence, on the other. An approach that relegates human life to the
status of ‘minor detail’ when “the supreme
State terror is not, and cannot be, a ‘normal’ interests of the state” are at stake should
political method in any country in the world. It is have drawn the ire of the members of the legal
not, and cannot be, so in Turkey, either. profession first of all. The silence, negligent
attitude and occasional actual support of the
The concepts of ‘state terror’ and ‘state crime’
have long been discussed in the laws of countries
5 http://www.cels.org.ar/home, last accessed 4 May 2013, http://
that confront their respective histories of military en.wikipedia.org/wiki/State_terrorism, last accessed 4 May 2013.
SUMMARY 13
judiciary toward the aforementioned process of according to international agreements to which
impunity should now come to an end. she is a signatory.
The political power should have opposed any We hope that this study will contribute to the
incidence of enforced disappearance without solution of the problem.
regard to the identities of the parties involved,
the timing of the incident, the manner in which it
took place, and the way it was directed. Trying
a few high ranking members of the military is a
certainly meaningful but insufficient step, and
we are not sure whether it will be possible to
take the further step and initiate litigation that
will actually serve society’s need for justice and
make room for shedding light on a dark era.
ÖZET 15
THE VIOLATIONS records indicate that 1,353 have thus far been
disappeared by forces directly or indirectly
In light of the data gathered, this section connected with the state, and several sources
analyzes the judicial practices of the state in claim that the actual number might exceed that.
cases where the subject matter is ‘enforced
disappearances’ and to question whether or not An analysis based on the places, names and
the state satisfies its ‘positive’ and ‘negative’ cases in the list mentioned above shows that
obligations in investigations/prosecutions. provinces where acts of enforced disappearances
took place most frequently are Diyarbakır with
Conceptually, the interventions that the state is 28.1% of the total, Şırnak with 14.8%, Mardin with
‘obligated to avoid’ indicate the negative obligations, 13.7%, İstanbul with 6.05%, Batman with 5.75%,
while the affirmative steps it is ‘required to take’ Hakkari with 5%, and Tunceli with 3.3%.
mark the positive obligations in terms of the
exercise of fundamental rights and freedoms. As stated in the methodology section, analyses
and interviews were conducted in the initial
The right to life is the essence of fundamental six-month period in seven locales including
rights and freedoms, and a prerequisite of Diyarbakır, Mardin, Cizre, İdil, Silopi, İstanbul and
the exercise of all rights and freedoms. Given Bursa in order to access legal information on
its importance, it is the primary issue in both forcibly disappeared persons, so that the names
constitutional regulations and international in the tentative list can be validated, the facts of
human rights instruments. The right to be free enforced disappearance can be verified, and the
from torture and ill-treatment, the right to have a data can be entered in the database. As a result,
free and safe life, and other rights concerning the 262 of the persons named in the said list, were
recognition of effective remedies can come into conclusively confirmed to have been forcibly
existence only on the basis of the right to life. disappeared. In the forthcoming phases of our
work, the goal is to verify all facts of enforced
With respect to the exercise of the right to life disappearance gradually.
and other rights dependent on it, international
documents and jurisprudence hold indisputably The legal data obtained as such were analyzed
that in addition to its negative obligation to avoid in detail under the following headings by the
disappearing, killing, and torturing, the state legal team of Truth Justice Memory Center in
is also positively obligated to control/plan the accordance with the criteria specified in the
operations of security forces, to take preventive methodology section:
security measures, to provide medical services,
to investigate disappearances and murders, - A. Failure to follow legal detention procedure /
to make all effective remedies available, and Inaccurate records;
ultimately to take all necessary judicial and - B. The use of cruel killing methods to
administrative measures. intimidate;
- C. Unidentifiable graves, failure to return bodies
Before we share the results of the analysis to families;
through the perspective described above, we - D. Failure to conduct effective, expeditious and
would like to provide the following information to independent investigations;
shed light on the investigation/prosecution data - E. Losing hope that there will be justice;
concerning crimes of enforced disappearance: - F. Obstructing the ‘claiming of rights’ with
According to the tentative list generated by psychological and physical barriers;
Truth Justice Memory Center by gleaning data - G. The perception of ‘Tyrant state/Dependent
from over thirty institutions, individuals and judiciary’ / The expectation for reparations and
sources working in the field of human rights, apology.
The families filed a petition with the ■ The investigation of the case is in progress
Prosecutor’s Office on 8 November 1995. as of the date of this report and the Prosecutor
Thanks to persistent efforts by the relatives of has yet to file a case.
the disappeared and Human Rights Association,
Dargeçit Public Prosecutor’s Office initiated an ■ After October 2015, any lawsuit or
investigation into the incident. No progress was prosecution will be barred by the statute of
made in the investigation until 2009. limitations.
On the day following Hasan Esenboğa’s After receiving information on the above code-
disappearance, his family went to Cizre and named suspects, the Prosecutor’s Office heard
made some inquiries in order to find out his the complainant’s uncle as a witness. In his
fate. Someone who recognized his photograph testimony, the witness stated that when they
said he got in a white Toros together with 3-4 went to file the petition to notify that Hasan
others after he exited the Dörtyol Mosque in Esenboğa was forcibly disappeared, he saw the
downtown Cizre. suspects in the Prosecutor’s Office building,
but he said he did not recognize them because
The Prosecutor’s Office heard the testimonies he was in fear.
of the persons Hasan Esenboğa had business
relations with and requested that the police The complainants’ attorneys notified the
conduct an investigation to find those who last Prosecutor’s Office that the person code-
saw the slain man. The inquiries bore no fruit named Bedran is Adem Yakin and the one code-
and the Public Prosecutor ordered an indefinite named Yavuz is Burhanettin Kıyak, and that
search on 19 April 1996. Throughout the they are on trial in the case publicly known as
indefinite search, routine correspondence with the “Temizöz Case” on charges of disappearing
the İdil District Gendarmerie Command went and killing 20 people and are under arrest.
back and forth quarterly as required by the law,
yet the correspondence led to no information In the investigation, suspect Adem Yakin
on the perpetrators until 1 January 2010. was heard not as a suspect, and instead as
a “witness”. Testimony from one of the other
In 2010, K. Esenboğa filed a criminal complaint suspects, Burhanettin Kıyak, had not been
with the Cizre Public Prosecutor’s Office again, taken as of the writing of this report.
which initiated an investigation under reference
number 2010/1267. In this complaint, the The complainants’ attorneys requested a
5 For definitions of violations in terms of merits and procedures, 6 Mahmut Kaya v. Turkey, see Altıntaş İ. “Enforced Disappearance
see Altıntaş İ. “Enforced Disappearance Cases From the Cases From the Perspective of the European Court of Human Rights”,
Perspective of the European Court of Human Rights”, p. 108 p. 108
The autopsy determined that Canan had been 10 kilometers into Hakkari, at the place known
shot at close range. Seven bullets hit him in vital as Yeniköprü, they ran into a checkpoint,
areas including his chest, shoulders and head. Abdullah Canan was transported to a vehicle
like a panzer. All the authorities they inquired
In November 1999, the local court concluded with told them he was not in their custody. On
that Canan’s murder was committed in a the third day after he disappeared, his (Canan’s)
terrorist or intertribal conflict and acquitted car was found at Güzeldere on the Van-Hakkari
the three defendants. The court ordered
8 25 December 2007 – bianet.org AİHM: Abdullah Canan‘ın Yaşam
that an investigation be iniated on Battalion
Hakkı Korunmadı, Etkili Soruşturma Olmadı (ECtHR: Abdullah
Commander Mehmet Emin Yurdakul for misuse Canan’s Right to Life Was Not Protected, There Was No Effective
of authority and resticting individual freedom. Investigation), Bianet, http://bianet.org/bianet/siyaset/103780-
aihm-abdullah-canan-in-yasam-hakki-korunmadi-etkili-
The investigation could not be completed within
sorusturma-olmadı
the time frames stipulated in Articles 102 and
104 of Turkish Criminal Code. The case became 9 Report of the TBBM Commission to Investigate Susurluk,
testimony dated 5 December 1997, http://tr.wikisource.org/wiki/
barred by the statute of limitations and then
TBMM_Susurluk_Ara%C5%9Ft%C4%B1rma_Komisyonu_Raporu/
closed. Bilgisine_ba%C5%9Fvurulanlar#7-_Esat_CANAN_5.12.1997_
tarihli_ifadesinde.3B, accessed 27 April 2013
Major Mehmet Emin Yurdakul pushed Abdullah The investigation on the battalion commander
Canan’s car into the riverbed, Kahraman referred to in the testimony is now barred by
Bilgiç told him, “don’t do anything at all, this the statute of limitations because it was not
is our duty. We did what we did in the cases of completed within the time frame stipulated in
Eşref Bitlis, Bahtiyar Aydın’’. Kahraman Bilgiç Articles 102 and 104 of the Turkish Criminal Code.
traveled around with the code name Havar,
Kahraman Bilgiç told the Battalion Commander
“he only took 5 thousand German marks’’, Under procedural laws concerning criminal
he denied the abduction, and later Abdullah justice, all notices may be served orally or
Canan’s body was found on the second day of in writing to the Public Prosecutor’s Office
the religious feast by the gendarmerie. or to other local authorities, the municipal
police office/officers, justices of peace,
The prosecutor’s office is still at the stage governors, district governors and subdistrict
of preliminary investigation with respect to administrators when there is a crime, and
the issue, no progress has been made since the crime of enforced disappearance is no
then, the incident was within the jurisdiction of exception in this regard.
Diyarbakır State Security Court.
In addition, in the event of a suspicious
Again in 1993, Sabri Çardak killed Mahir Karabağ death, the municipal police, employees of
and Eyüp Karabağ in the village of Beşbulak, Hacı the municipality or heads of villages, upon
Teknik was murdered in Çukurca by this team, becoming aware of the situation, are obligated
also Mikdat Özeken, Şemsettin Yurtseven, Münir to notify it to the Public Prosecutor’s Office or
Sarıtaş, Mehmet Yaşar, Nezir Tekçi were killed the justice of peace without burying the body.
by the same team in 1994-95, and none of these
persons were heard from again. The analyzed data show that procedure has
been followed in regards to the said notification
Kahraman Bilgiç, under the code name of Havar, requirement. However, even though the forcibly
was caught after the ransom case involving the disappeared were buried based on the permit
man named Necip Baskın. He was arrested in obtained from municipalities and with the
Yüksekova and transported to the Midyat Prison. involvement of municipal employees, during the
Four files were forwarded to the prosecutor’s burial procedures the Prosecutor’s Office did
office regarding Mehmet Emin Yurdakul, In the not contact the individuals and entities (district
interrogation, Kahraman Bilgiç said they killed governor, mayor, the municipal employee in
Abdullah Canan. At this stage the interrogation charge of the burial etc.) who could have had
was stopped, and the petty officer named information on the crime and the slain person,
Hüseyin Oğuz said ‘I worked in the first three days nor did these individuals and entities share the
of the interrogation, there is a tape recording of information they had on the crime with public
that interrogation, once there was a reference to authorities.
10 Orhan v.Turkey judgment, 18 June 2002, http://hudoc.echr. 11 The case in which Colonel Cemal Temizöz and six other
coe.int/sites/eng/Pages/search.aspx#{“docname”:[“orhan”],”d defendants are being tried by the Diyarbakır 6th Criminal Court, File
ocumentcollectionid2”:[“GRANDCHAMBER”,”CHAMBER”],”item No 2009/470 E. – the indictment is available at http://tr.wikisource.
id”:[“001-60509”]}, accessed 2 May 2013 org/wiki/Cizre_davas%C4%B1_iddianamesi, accessed19 March 2013
In the case files examined, there was no evidence The results of the analysis both confirm that
that this authority was exercised. Thus we Turkey’s ‘lengthy trials’ and ‘impunity’ problems
observe the following: 12
are real and show that the problems arising from
■ Prosecutors did not take initiative over the the statute of limitations are very important and
course of the investigations, need to be addressed.
■ The gendarmerie/police generally remained
negligent toward orders/warrants concerning 2. Judicial independence and impartiality are
the investigation of crimes and suspects, either must-haves for an effective investigation.
no response was furnished to them or boilerplate
responses were given to ignore them, When the continuity of the state is at stake, the
■ The files were full of binders that included judiciary displays a silent or biased attitude
inconclusive correspondence, and no meaningful toward disappearances, abductions and murders
progress was made. with political origins, which places a major
obstacle in the way of effective and expeditious
d) Statute of Limitations/Impunity/The investigations.
Problem of Judicial Impartiality
The state is obligated to ensure the
1. As known, neither the former Criminal Code independence of individuals who will investigate
No. 765 nor the current Turkish Criminal Code unlawful acts such as enforced disappearance
No. 5237 defines enforced disappearance as a and murders committed by state agents. It
crime. is additionally necessary to ensure that the
independence in question is exercised not only in
For that reason, courts take the criminal appearance but also in actuality.13
provisions concerning the crime of murder as
the basis in enforced disappearance cases and There are concrete reasons why there is so much
hold that the statute of limitations is 20 years as controversy in Turkey over the independence
provided in Articles 450 and 102/1 of the former and impartiality of the judiciary. A comparison
Turkish Criminal Code No. 765 which was the of the average trial time, or the rate at which
criminal law in effect at the time the crime was trials are brought to conclusion, in cases
committed. where defendants are civilians with those
cases where defendants are members of the
Considering that acts of enforced disappearance military, the police, or government employees,
took place predominantly in the 1990s and that implies that individuals in the latter category
courts have not been able to conduct trials are being protected, because cases involving
effectively and expeditiously, impunity has those individuals are generally delayed past the
usually been the result. The findings of the study expiration of the statute of limitations.
confirm this, and show the following:
■ Investigations mostly result in decisions of lack
13 Ergi v. Turkey judgment - 28 July 1998, http://hudoc.echr.
coe.int/sites/eng/Pages/search.aspx#{„docname“:[„ergi“],
12 Turkish Criminal Code (TCK) No. 765, Articles 230 and 235, TCK “documentcollectionid2“:[„GRANDCHAMBER“,“CHAMBER“],
No. 5237, Article 257 “itemid“:[„001-58200“]}, accessed 2 May 2013
15 Report of the TBMM Commission to Investigate Unsolved 16 Report of the TBMM Commission to Investigate Unsolved
Murders, p.160, http://www.tbmm.gov.tr/sirasayi/donem19/yil01/ Murders, p. 158 http://www.tbmm.gov.tr/sirasayi/donem19/yil01/
ss897.pdf, accessed 27 April 2013 ss897.pdf, accessed 27 April 2013
When Tomris Özden looked at his husband’s A member of the Hakkari Yüksekova Gang, when
dead body before the funeral, she said, she did questioned in the investigation on that gang,
not notice any bullet wounds on his forehead, alleged in his testimony that Aydın was killed
and because the back of his head was covered by informants doing the bidding of JİTEM. The
in blood, she thought he could have been shot in General Staff, on the other hand, denied the
the back of his neck. allegations about JİTEM and argued Aydın was
killed by the PKK.
Tomris Özden claims that when her husband
was working in Mardin, he was pressured by Veli An anonymous witness code-named “Deniz”
Küçük and his team to join JİTEM. who once had a senior executive role within
the PKK (who was later revealed to be Şemdin
After a PKK informant said Özden did not die Sakık) alleged in his testimony during the
in the clash and one of the soldiers under his Ergenekon investigation that Aydın was killed by
command said, “our commander was killed a soldier, and the soldier committing the murder
by the soldier accompanying him”, the Rıdvan was himself later killed by another soldier.25
Özden assassination case was reopened by the
civilian Prosecutor’s Office in 2009. ■ As of the date of this report, no suit has been
brought in regards to the allegations concerning
The General Staff, on the other hand, denies the the death of Bahtiyar Aydın, Gendarmerie
allegations about JİTEM and argues that Özden Regional Commander in Diyarbakır.
was killed by the PKK. 24
28 Taraf daily website, http://www.taraf.com.tr/haber/12-yasak- The letter opened with the line,’Esteemed
sayfa.htm, accessed 27 April 2013
Governor, thinking that your knowledge will be
29 The Prime Ministry – National Intelligence Organization
sought, we considered it appropriate to remind
Investigation Report, http://akgul.bilkent.edu.tr/Dava/susurluk/mit/, you of certain matters describing the general
accessed 27 April 2013
situation in Cizre at the time you served there
30 Vikipedi – Susurluk Kazası (The Susurluk Accident), http://tr.
between 1993 and 1994, since you might have
wikipedia.org/wiki/Susurluk_kazas%C4%B1, accessed 19 March 2013 forgotten them.’ It continued, ‘This information
32 Report of the TBMM Commission to Investigate Unsolved 33 Report of the TBMM Commission to Investigate Unsolved
Murders pp. 33-34, http://www.tbmm.gov.tr/sirasayi/donem19/ Murders p.33, http://www.tbmm.gov.tr/sirasayi/donem19/yil01/
yil01/ss897.pdf, accessed 27 April 2013 ss897.pdf, accessed 27 April 2013
34 For the specifics of the incident, see the case of Seyhan Doğan
… I had the same experience there, too. I brought
and others in Mardin, Dargeçit suit there, as well. For that, I went to the Public
… That is, I should not be the one pursuing the “In my opinion, what matters most is an apology.
rights of my brother, it’s the law that should do It will be a sign showing that the state, which
it. The prosecutors, judges, judicial authorities we once called the tyrant state, has now moved
of this country, it’s they who should pursue those beyond tyranny and acquired a modern character,
rights. The government bureaucracy should do and the mechanisms of justice and the law
so… This is their public responsibility… If this is a operate independently. All that is required for the
task we continue to take care of, then that means Saturday Mothers and with respect to all unsolved
something is wrong and things are going badly murders and other crimes of the state is only an
here. apology.
Why should the Saturday Mothers still have to If they say ‘we acknowledge that wrongs were
bear burden of bringing proof that their relatives done as part of that structure and we are now
disappeared or finding the perpetrators of reckoning with that and admitting our guilt’, and
unsolved murders? These people have been if the state –the current government or whatever
here for thirty years. If we are trying to say that lawful authority- says we are apologizing on
the state and the society are now beyond a behalf of the state, that will be a moment when we
threshold, there should be concrete indicators of have moved beyond a threshold in my opinion.
that. Making the steps toward that is really not a
problem.” Other than that, we do not have a further
expectation, compensation or whatever, that’s not
what we are expecting.”
Facilities should be provided and legal ■ As the Ministry of the Interior planned and
measures should be taken to allow prosecutors declared previously, an independent police
and judges to conduct judicial practice that is complaint mechanism must be set up and
free from political, administrative or military rendered functional,
pressure, and which is independent and
impartial. ■ The state must share its archival information
with judicial authorities and the relevant
■ The High Council of Judges and Prosecutors nongovernmental organizations in the
must conduct periodic on-the-job trainings to case of investigations on political murders
ensure that judges and prosecutors master and enforced disappearances, and these
the legislation and jurisprudence derived from investigations should not be obstructed on
international conventions and that the quality of grounds of state secrecy,
judicial practice is enhanced,
■ The state must involve the relatives of
■ The Witness Protection Program and the forcibly disappeared in the investigation
anonymous witness service must be process and inform them about the conclusions
rearranged by taking international experience of trials,
BÖLÜM ADI 47
Costa Gavras’ film Missing, which shared the something going out of sight. Yet, because this
Golden Palm award with Yılmaz Güney/Şerif word is too general to describe the practice in
Gören’s Yol in the 1982 Cannes Film Festival, question, a special term is needed to qualify it.
uses dramatic language to depict, for a popular The practice is known as desaparición forzada
audience, a common practice in Latin American in Spanish, forced or enforced disappearance in
states from the late 1960s through the 1970s. English, and disparitions forcees in French.
The 1980s represented an era in which this
particular practice spread to different parts As in many other fields, concepts in the field of
of the world and an opinion emerged that human rights have come into being only through
international cooperation was required to combat translation in Turkish; in other words, they are not
it. International instruments began banning the original to the language but instead transferred
practice in 1990s, while in Turkey it became to it. In Turkish, the practice is referred to
one of most favored tools in the “fight against with different wordings such as “kayıplar”
terrorism”. While international awareness and (missing), “kayıp kişiler” (missing persons),
will with respect to this practice made it possible “gözaltında kayıplar” (missing in detention),
to introduce an absolute prohibition in the 2000s, “zorla kaybetmeler” (forced disappearances), or
Turkey was only then learning, for the first time, “zorla kaybedilmeler” (enforced disappearances).
from the judgments rendered by the European However, the practice in question is not one
Court of Human Rights (ECtHR), the details of that relates to a domain of a freedom; rather, it
her own implementation of the practice. Finally, concerns a prohibition. Thus, it is necessary to
around the year 2010, while some countries understand that the variation in the wording is
in the world were coming to terms with it and no cause for celebration, as it does not present
others were getting newly introduced, political a richness but on the contrary, it is an obstacle
and social conditions for a reckoning with the before the comprehension of the concept. As
practice appeared to be coming out in Turkey. noted above, if a reckoning with this practice is
what is desired, then more light needs to be shed
We are still, however, far from a full-fledged on the nomenclature applying to the concept. To
reckoning. Only when the entire society, including do that, it will be useful to first refer to an agreed-
perpetrators, recognizes this practice can such a upon definition of it:
reckoning be possible. For that, knowledge of the
concept must be provided; in other words, one “…is considered to be the arrest, detention,
needs to know what constitutes the phenomenon abduction or any other form of deprivation of
elusively referred to as the “practice” above. liberty by agents of the State or by persons or
groups of persons acting with the authorization,
Let us start with the nomenclature. While the support or acquiescence of the State, followed by
Nazis are generally considered to be the first a refusal to acknowledge the deprivation of liberty
to have implemented this practice, it is the or by concealment of the fate or whereabouts
organizations in Latin America that initially of the disappeared person, which place such a
identified it and put it into concrete terms; person outside the protection of the law…”
therefore, the original name given to this practice
is a Spanish word: desaparición. The English This definition alone is enough to lay bare that
equivalent of that term is disappearance, and it is the practice in question is not a simple matter of
known as disparition in the French language. Its “disappearance”, “missing”, “missing in detention”
lexical meanings include to become lost, vanish, or “enforced disappearance”. This is because we
go out of sight -- as in an object becoming lost, have before us an act in which the subject is not an
someone getting lost, or someone no longer individual, but a state. One should not confuse this
being seen in places and environments where with a situation where the “disappeared” individual
he/she would habitually be seen, or someone or walks away voluntarily, is held by another
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 49
was expanded to monitor the implementation of the Statute of the International Criminal Court
the Declaration. (hereafter, the ICC Statute) which rendered
enforced disappearance more than a violation
The Declaration on the Protection of All of human rights for which states are liable
Persons from Enforced Disappearance and made it an international crime resulting in
(hereafter, the Declaration), another milestone individual criminal liability. Adopted in 1998,
in the international fight against enforced the ICC Statute went into effect in 2002, and as
disappearances, was adopted by the UN General a result enforced disappearances became the
Assembly on 18 December 1992.2 Like the subject matter of international criminal law in
Universal Declaration of Human Rights, the addition to human rights law and humanitarian
Declaration is not a legally binding instrument, law. 4
and also like the Universal Declaration, it left its
imprint on subsequent eras: The definition in the The most comprehensive step regarding
preamble of the Declaration, provided as if in enforced disappearances, however, was the
passing (but in fact reflecting the experience of International Convention for the Protection
the Working Group), as well as its other articles, of All Persons From Enforced Disappearance
established the basis for binding documents (hereafter, the International Convention) which
–that is the treaties– that came later. The first of was opened for signature in 2006 by the United
those treaties is the Inter-American Convention Nations and entered into force in 2010.5 The
on Forced Disappearance of Persons (hereafter, definition quoted above in the Introduction is
the Inter-American Convention), which was drawn the one provided in this convention. In addition
up within the framework of the Organization of to offering a normative framework regarding
American States (OAS) and took effect in 1996.3 enforced disappearance, the Convention also
Both organized political/social action and the fact contemplated the establishment of a Committee
that the organs of the Inter-American Convention with a mandate to monitor the enforcement of
on Human Rights developed a far more advanced the articles of the Convention. The Committee
jurisprudence than comparable organs (for on Enforced Disappearances took office in 2011.6
instance, organs of the European Convention In light of the bird’s eye-view discussion above,
on Human Rights) probably had a role in the we can now proceed to the specific details
making and adoption of the first treaty on this of enforced disappearance, noting that “no
subject in a geographical region where enforced
4 About the ICC, see R. Murat Önok, Tarihî Perspektifiyle
disappearances were fairly wide and frequent. Uluslararası Ceza Divanı (The International Criminal Court in
Historical Perspective), Ankara, Turhan Kitabevi, 2003; Durmuş
Tezcan, Mustafa Ruhan Erdem and R. Murat Önok, Uluslararası
The Inter-American Convention was followed by
Ceza Hukuku (International Criminal Law), Ankara, Seçkin
Yayıncılık, 2009.
2 For a general assessment of the Declaration, see Gökçen
Alpkaya, “Kayıp’lar Sorunu ve Türkiye” (“The Question of the 5 For the text of the Convention, see http://www.ohchr.org/
Disappeared and Turkey”), AÜ SBF Dergisi (Journal of the Ankara EN/HRBodies/CED/Pages/ConventionCED.aspx For parties to
University School of Political Sciences), Prof. Dr. Turan Güneş’e the Convention, see http://treaties.un.org/Pages/ViewDetails.
Armağan (Tribute to Prof. Turan Güneş), Vol. 50, Issue 3-4, 1995, aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en For
p. 31-63. a Turkish translation of the Declaration and the Convention, see
Mehmet Semih Gemalmaz, Ulusalüstü İnsan Hakları Hukuku
3 For the text of and parties to the Convention, see http://www. Belgeleri (Supranational Human Rights Documents) Vol. 2:
oas.org/juridico/english/treaties/a-60.html. For a Turkish Uluslararası Sistemler (International Systems), İstanbul, Legal
translation of the Convention, see Mehmet Semih Gemalmaz, Yayıncılık, 2011. This study relied on the Gemalmaz translation.
Ulusalüstü İnsan Hakları Hukuku Belgeleri (Supranational While an unoffical Turkish translation is available from İnsan
Human Rights Documents) Vol. 1: Bölgesel Sistemler (Regional Hakları Ortak Platformu/İHOP (Human Rights Joint Platform),
Systems), İstanbul, Legal Yayıncılık, 2011. Also see Mehmet Semih it includes serious mistakes, see http://www.ihop.org.tr/index.
Gemalmaz, Ulusalüstü İnsan Hakları Hukukunun Genel Teorisine php?option=com_content&task=view&id=490
Giriş (Introduction to the General Theory of Supranational Human
Rights Law), Vol. 2: Expanded and Updated 8th Edition, İstanbul, 6 About the Committee, see: http://www.ohchr.org/EN/HRBodies/
Legal, 2012, p. 418-425. CED/Pages/CEDIndex.aspx
a. Deprivation of liberty
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 51
this is not a mere difference in phrasing; it is denied any right under the law, putting him or
necessary to emphasize that this is a critically her in legal limbo and in a situation of complete
important difference, for it shows the nature of defenselessness.10 Recognizing that this leads
the practice we face: When this practice is not to the denial of the disappeared person’s legal
named in a way that also includes “deprivation existence and as a result prevents the person
of liberty in whatever way”, there arises a from enjoying human rights and freedoms, the
serious obstacle before both perpetrators (and Working Group characterizes “placement outside
responsible parties) and victims, and in fact the the protection of the law” as a “paradigmatic
entire society, coming to terms with it. violation” of the “right to be recognized as a
person before the law” directly, and stresses that
Yet another issue concerning this particular the rights of the disappeared person’s next-of-kin
element is that whether the act of deprivation are also impacted in addition to the rights of the
of liberty is a lawful one does not matter by disappeared person.
itself. In other words, enforced disappearance
may begin with a completely lawful detention However, a more comprehensive analysis of
or arrest, but it may also start, at the outset, “placement outside the protection of the law” is
with a detention or arrest that is unlawful in necessary, and yet another important aspect of
terms of merits or procedure. Neither possibility enforced disappearance as well as the relevant
alone plays a determining role in regards to jurisprudence should not be ignored: Enforced
an act constituting enforced disappearance, disappearance of a person and the resulting
because the distinguishing mark of the act of placement of the person outside the protection
enforced disappearance –as noted above– is of the law leads to the violation of the legal
the availability of the two different elements. remedies available not just to the person in
That is, in addition to deprivation of liberty, it question, but to his or her relatives following
is necessary for the act to include placement this practice, and therefore to a violation of the
outside the protection of the law. “right to seek rights”. Thus, it is necessary to
consider that “placement outside the protection
b. Placement outside the protection of the law of the law” provides a broader protection than is
available by way of the following phrase in the
“Placing outside the protection of the law” is a Inter-American Convention:
concept emphasized in the Declaration almost
to a persistent extent: It is referenced not only “…thereby impeding his or her recourse to the
in the definition but Article 1 also specifies applicable legal remedies and procedural
that any act of enforced disappearance places guarantees…”
the persons subjected to that act outside the
protection of the law. The concept is also As a matter of fact, under the International
mentioned in both the International Convention Convention, “placement outside the protection
and the ICC Statute. Therefore, it is important to of the law” comes into being “…by a refusal
shed light on this critical concept which involves to acknowledge the deprivation of liberty or
the violation of more than one right. by concealment of the fate or whereabouts of
the disappeared person…”, which extends to
In the General Comment it adopted in 2011, individuals in addition to the disappeared person,
the Working Group states that “placement perpetrators and responsible parties. Finally,
outside the protection of the law” not only in support of this interpretation, Article 18 of
contemplates an official denial of detention and/ the International Convention contemplates a
or concealment of the fate or whereabouts of
the person, but also, while the person remains 10 For the text, see http://www.ohchr.org/Documents/Issues/
deprived of liberty, she or he is (additionally) Disappearances/GCRecognition.pdf
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 53
answers are found in neither the Convention nor fate or whereabouts of such individuals.
in its elaboration. It is nevertheless possible
14
to see why the Convention is silent on these There is no doubt that neither this definition nor
sensitive questions because, unlike the ICC any other international norm offers an answer
Statute which refers to identical concepts, the to “who are the forcibly disappeared, then?”
Convention is geared toward the determination International human rights law provides very
of state responsibility and not individual criminal little guidance in this regard. In addition, any
liability: as a matter of fact, ECHR jurisprudence attempt to give a definition risks excluding
on enforced disappearance cases holds, without existing or potential victims -- therefore one
reaching these intricate questions, that failure to can understand why such an attempt might be
conduct an effective investigation alone is reason avoided. In any case, based on the definition
enough to determine state responsibility. 15
in the Convention, it is possible to suggest
that enforced disappearances are essentially
3. VICTIMS associated with “raison d’État”.
The primary victims of enforced disappearance Finally, yet another issue, obvious but
are the persons disappeared forcibly. However, nevertheless worth mentioning, is this: The
because this is a practice that differs from forcibly disappeared need not be the citizens of
comparable ones in that it impacts not only the the state that forcibly disappeared them. In other
forcibly disappeared but also their relatives, it is words, while “raison d’État” operates mainly
necessary to discuss forcibly disappeared and in regards to its own citizens, it may target
their relatives separately. foreigners, as well.
Without adding anything new to the norms It was established above that enforced
referred to above, we can offer the following disappearances place the forcibly disappeared
definition of forcibly disappeared: outside the protection of the law and make it
impossible for them and their relatives to use
… “The forcibly disappeared are considered to effective remedies.
be the individuals who are placed outside the
protection of the law as a result of deprivation However, enforced disappearances violate
of their liberty directly by agents of the state or more of the rights of the relatives of the forcibly
by a person or group of persons acting with the disappeared: the relatives of forcibly disappeared
authorization, support or acquiescence of the persons are considered to be subjected to
state, followed by a refusal to acknowledge the inhuman and degrading treatment, if not torture.
deprivation of liberty or by concealment of the Furthermore, while the “right to truth” or the
“right to know the truth” explicitly referred to in
14 For the elaboration of the Convention, see http://www.ohchr.org/ the Preamble to the International Convention is
EN/HRBodies/CED/Pages/Elaboration.aspx
not yet guaranteed as a specific right in human
15 See the section in this report titled “Enforced Disappearance
rights law, enforced disappearances also violate
Cases from the Perspective of the European Court of Human this right.16
Rights”. Also see Faruk Turhan, “Avrupa İnsan Hakları Mahkemesi
Kararları Işığında Kişi Özgürlüğü ve Türkiye/Gözaltında Kayıplar, 16 Report submitted by Mr. Manfred Nowak,
Hakim Önüne Çıkarma ve Gözaltı Süreleri” (The Issue of Individual independent expert charged with examining the existing
Liberty in light of European Court of Human Rights Judgments international criminal and human rights framework for
and Turkey/Disappearances in Detention, Bringing Before Court the protection of persons from enforced or involuntary
and Detention Periods) , Gazi Üniversitesi Hukuk Fakültesi Dergisi disappearances, E/CN.4/2002/71, 8 January 2002,
(Journal of the Gazi University School of Law), June-December par. 77-80. http://www.unhchr.ch/Huridocda/Huridoca.
2000, Vol. IV, Issue 1-2, p. 204-258. nsf/0/3e140ed64e7c6a83c1256b9700513970?Opendocument
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 55
means, for example, that the limitations period to take all necessary and reasonable measures
governing the persons who forcibly disappeared within his or her power to prevent or repress the
Mehmet Emin Aslan, who was detained by the commission of an enforced disappearance or to
Dargeçit Gendarmerie Command in 1995 and submit the matter to the competent authorities
whose burned skull and remains were found21 for investigation and prosecution […].
in a well 18 years after the detention, should
commence from February 2013. In addition, the following will also be
punishable:
Nevertheless, the International Convention
grants competence to the Committee on i. Delaying or obstructing, in the case of a
Enforced Disappearances only with respect to suspected enforced disappearance, the taking of
enforced disappearances which commenced proceedings before a court by any persons with
after the entry into force of the Convention a legitimate interest, such as relatives of the
(Article 35). This points to a weakness of human person deprived of liberty, their representatives
rights treaties arising from their basis in, and or their counsel in all circumstances, since the
deference to, international law. person deprived of liberty is not able to exercise
this right (Article 22.a);
6. CRIMINAL RESPONSIBILITY ii. Delaying or obstructing the right of any
persons with a legitimate interest, such as
As in the case of other human rights violations, relatives of the person deprived of liberty, their
states carry the responsibility in the case of representatives or their counsel to a prompt
enforced disappearances under international and effective judicial remedy as a means of
human rights law. This responsibility obtaining without delay at least the information
involves an obligation to both avoid enforced on the authority that ordered the deprivation of
disappearances and to prevent and punish liberty; the authority responsible for supervising
enforced disappearances. The International the deprivation of liberty; the date and time the
Convention requires states parties to criminalize person was deprived of liberty; the destination in
enforced disappearances in their respective the event of a transfer; the date, time and place
national legislations (Article 4) and introduces of release; the state of health of the person; and
rules concerning criminal responsibility. In this in the event of death, the circumstances and the
regard, Article 6 thereof stipulates that at least cause of death and the destination of the remains
the following persons should be held criminally (Article 22.a);
responsible: iii. Failure to record the deprivation of liberty of
i. Any person who commits, orders, solicits or any person, or the recording of any information
induces the commission of, attempts to commit, which the official responsible for the official
is an accomplice to or participates in an enforced register knew or should have known to be
disappearance; inaccurate (Article 22.b);
ii. A superior who: (i) knew, or consciously iv. Refusal to provide information on the
disregarded information which clearly indicated, deprivation of liberty of a person, or the provision
that subordinates under his or her effective of inaccurate information, even though the legal
authority and control were committing or about requirements for providing such information have
to commit a crime of enforced disappearance; (ii) been met.
exercised effective responsibility for and control
over activities which were concerned with the Thus, the International Convention does not limit
crime of enforced disappearance; and (iii) failed criminal responsibility to the perpetrator and
sheds light on what is in fact the “collective”
21 Mesut Hasan Benli, “Kemikler, Gözaltında Kayıpların Çıktı”
(Remains determined to be of those disappeared in detention),
nature of enforced disappearances.
Radikal, 24 February 2013.
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 57
II. Enforced such as the European Court of Human Rights.23
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 59
humiliating and degrading treatment; conduct. If the source of customary law is the
d. the passing of sentences and the carrying out of actions of states and several states implement
executions without previous judgment pronounced enforced disappearance as a state practice, then
by a regularly constituted court, affording all how is it that customary law prohibits enforced
the judicial guarantees which are recognized as disappearance?
indispensable by civilized peoples [...].
This is a legitimate question which could have
C. IN THE CONTEXT OF CUSTOMARY been asked in the context of human rights law as
INTERNATIONAL HUMANITARIAN LAW well, and there is a simple and equally legitimate
answer to it: If, even in a time of war, no state
While humanitarian law has at its core the 1949 openly declares that it has the right to forcibly
Conventions that all the states in the world today disappear persons,29 then the “raison d’État” that
are party to, this law also encompasses a series causes individuals to be forcibly disappeared is
of other instruments. These instruments include, at best a criminal reason which is also aware
first of all, the 1977 Additional Protocols and, of the crime it commits. In other words, states
essentially, customary law that is considered practicing enforced disappearance are actually
to be binding upon all states, without regard to very well aware that their practice violates both
whether a state is party to these instruments. human rights and humanitarian law.
With respect to customary rules on enforced
disappearances, we have the opportunity to With respect to the already-weak monitoring
consult a highly comprehensive study put of the prohibition on enforced disappearance
together at the request and with the support of within international humanitarian law, there is
the International Committee of the Red Cross.28 variation according to whether the armed conflict
This study offers an exhaustive analysis of in question is of an international nature or a non-
states’ practices in this area and provides a international armed conflict:
catalog comprising 161 rules. One of them, 1. In the case of international armed conflicts,
Rule 98, concerns enforced disappearances. persons directly perpetrating acts that constitute
Rule 98 is found in Part V, which discusses the enforced disappearance and/or ordering such
rules regulating the treatment of civilians and actions have individual criminal responsibility
persons hors de combat in both international under the Geneva Conventions. These persons
and non-international armed conflicts, and here can be tried before a national court of any state
is what it stipulates: “Enforced disappearance is party to the Conventions under the principle of
prohibited.” Thus, enforced disappearances are universal jurisdiction.
not specifically referred to in any humanitarian 2. The principle of universal jurisdiction is
law instrument, yet there is a specific and not explicitly recognized in regards to acts of
absolute prohibition on enforced disappearance enforced disappearance taking place during
in customary law. Furthermore, this is a non-international armed conflicts; such acts are
prohibition that does not even offer a definition of essentially subject to the national jurisdiction of
enforced disappearance. the state in question.
3. Nevertheless, thanks to improvements
In fact, it could very well be argued that there is in international criminal law, enforced
a fundamental contradiction due to the fact that disappearances practiced in time of both
the concept of customary law concerns rules international and non-international armed
stemming from the conduct of the states and conflicts are becoming the subject matter of
that enforced disappearances emerge as a state international criminal justice within the scope of
“war crimes”.
28 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary
International Humanitarian Law, Volume I: Rules, ICRC, Cambridge
University Press, 2005. 29 Henckaerts and Doswald-Beck, op.cit, p.341.
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 61
disappearances within the context of namely, any of the following acts:
international criminal law separately, namely as (...)
war crimes and as crimes against humanity. vi. Killing or wounding a combatant who, having
laid down his arms or having no longer means of
a. As war crimes defense, has surrendered at discretion;
x. Subjecting persons who are in the power of an
War crimes are regulated in Article 8 of the ICC adverse party to physical mutilation or to medical
Statute. In line with the Geneva Conventions, or scientific experiments of any kind which are
the Statute breaks down war crimes into neither justified by the medical, dental or hospital
two categories, namely crimes committed treatment of the person concerned nor carried out
in international armed conflicts and those in his or her interest, and which cause death to or
committed in non-international armed conflicts. seriously endanger the health of such person or
Again in line with the Geneva Conventions, persons;
the ICC Statute does not provide a specific xxi. Committing outrages upon personal dignity, in
prohibition on enforced disappearances in particular humiliating and degrading treatment;
the context of either type of armed conflicts.
Still, there are two reasons why Article 8, c. In the case of an armed conflict not of an
entitled ‘War Crimes’, applies to enforced international character, serious violations of
disappearances. article 3 common to the four Geneva Conventions
of 12 August 1949, namely, any of the following
First, enforced disappearances constitute a war acts committed against persons taking no active
crime as a peculiar composition of acts deemed part in the hostilities, including members of armed
as crimes in both types of armed conflicts. Acts forces who have laid down their arms and those
which may be considered related to the practice placed hors de combat by sickness, wounds,
of enforced disappearance are regulated as detention or any other cause:
follows in paragraph 2 of Article 8: i. Violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and
1. For the purpose of this Statute, “war crimes” torture;
means: ii. Committing outrages upon personal dignity, in
a. Grave breaches of the Geneva Conventions of particular humiliating and degrading treatment;
12 August 1949, namely, any of the following acts iii. Taking of hostages;
against persons or property protected under the iv. The passing of sentences and the carrying
provisions of the relevant Geneva Convention: out of executions without previous judgment
i. Willful killing; pronounced by a regularly constituted court,
ii. Torture or inhuman treatment, including affording all judicial guarantees which are
biological experiments; generally recognized as indispensable.
iii. Willfully causing great suffering, or serious
injury to body or health; (...) d. (...)
vi. Willfully depriving a prisoner of war or other
protected person of the rights of fair and regular e. Other serious violations of the laws and
trial; customs applicable in armed conflicts not of an
vii. Unlawful deportation or transfer or unlawful international character, within the established
confinement; framework of international law [...]
viii. Taking of hostages.
And second, the use of the phrase “other serious
b. Other serious violations of the laws and customs violations of the laws and customs applicable
applicable in international armed conflict, within in armed conflicts, namely…” with respect to
the established framework of international law, both international and non-international armed
33 Article 5.
35 http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-
34 Henckaerts and Doswald-Beck, op.cit. p. 342. AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 63
acknowledge deprivation of freedom or a refusal social struggles. Nevertheless, it should be kept
to give information on the fate or whereabouts in mind that resistance, by definition, means
of the disappeared person had already taken resisting something one has been subjected to,
place (footnote 28); under certain circumstances and in that sense, opens the path to “freedom
an arrest or detention may have been lawful from something”, and yet it is not sufficient for
(footnote 26). Additionally, it is necessary for “freedom for something”. In fact, the concept
the perpetrator to be aware that such arrest, of extraordinary rendition37 emerged at the
detention or abduction would be followed in same time as the transformation of enforced
the ordinary course of events by a refusal to disappearances into a prohibition under
acknowledge that deprivation of freedom or to international law, which demonstrates the said
give information on the fate or whereabouts of insufficiency, does it not?
the disappeared person or such refusal was
preceded or accompanied by the deprivation In any case, one must not give up responding with
of freedom (Article 7.1.i. (3)). The “awareness” a “back off!”
element was inserted especially because of the
complexity of the crime (footnote 27).
CONCLUSION
E N F O R C E D D I S A P P E A R A N C E S I N I N T E R N AT I O N A L L AW 65
THE RECOGNITION OF
ENFORCED DISAPPEARANCE
AS A CRIME UNDER DOMESTIC
LAW AND THE STATUTE OF
LIMITATIONS: A PROBLEMATIC
OF INTERNATIONAL
CRIMINAL LAW
ASST. PROF. ÖZNUR SEVDİREN
T H E R E C O G N I T I O N O F E N F O R C E D D I S A P P E A R A N C E A S A C R I M E U N D E R D O M E S T I C L AW A N D
67
T H E S TAT U T E O F L I M I TAT I O N S : A P R O B L E M AT I C O F I N T E R N AT I O N A L C R I M I N A L L AW
This discussion is particularly important in Repentance Law; and the revelation,9 in light
terms of the acts of enforced disappearance of all the available information, of the sites
perpetrated during the state of emergency in where the bodies of disappeared persons were
Turkey in the 1990s, because assessing this buried or disposed of. This section argues that
crime within the scope of the crime of voluntary crimes of enforced disappearance, whose
manslaughter in domestic law translates elements have emerged as described above,
into the dismissal of criminal proceedings in need to be considered within the scope of
progress due to the application of the statute ‘crimes against humanity’ regulated in Article
of limitations.6 Human rights organizations, bar 77 in Section One of Chapter Two of the Turkish
associations and various non-governmental Criminal Code. The discussions on statute of
organizations frequently point to the risk of limitations can move forward along the axis
impunity which arises with respect to the of international criminal law only within that
perpetrators.7 In addition, the planned and scope. Through that perspective, the legal
systematic nature of the acts of disappearance meaning and consequences of defining an act
and the motives of perpetrators are exposed by as an “international crime” will be emphasized
the violation judgments of the European Court of first, and in that framework, the crime of
Human Rights concerning the crime of enforced enforced disappearance will be analyzed in
disappearance (as well as compensation
8
its proper context, namely along with the
judgments relating to Turkey); documents development and general characteristics of
relating to crimes of enforced disappearance crimes against humanity in international law.
in the annexes to indictments in cases of public The last part covers the elements of the crime
interest; witness statements, admissions by of enforced disappearance committed in Turkey
defendants, statements by persons known and considers the problematic of statutory
as “informants” who enjoyed relief under the limitations regarding these crimes.
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war crimes, and crimes of aggression, so long punishments in domestic law. No provision on
as they are committed within the territory of crime and punishment may be introduced by
a state party to the Statute17 the Court has way of instruments other than law, such as
jurisdiction regardless of where they may have decrees or general regulatory transactions of
been committed. The current caseload of the the administration including regulations and by-
International Criminal Court shows that the laws. In Continental European law, this principle
investigations in progress almost always concern is referred to as the ‘legality principle’ in legal
crimes committed within the territory of a state, texts and it aims to restrict government authority
and perpetrators and victims are usually citizens over the individual.20 An analysis of the Rome
of the same state.18 Statute of the International Criminal Court shows
instantly the effect of the legality principle on
The second aspect of international crimes that international criminal law.
is particularly important for this study is that,
because these acts prejudice the interests of the The Rome Statute came into being as a text
international community, they are considered of ‘compromise’ and ‘consensus’ between
crimes without regard to whether they were various legal systems, and in fact, Article 22 of
defined as such in the domestic laws of the the Statute is titled with the Latin expression
states at the time they were perpetrated. If a corresponding to the principle of legality,
given state is not party, for instance, to the 1948 “nullum crimen sine lege”. This article provides
Convention on the Prevention and Punishment in paragraph 1 “A person shall not be criminally
of the Crime of Genocide or does not have responsible under this Statute unless the
regulations in its legislation on genocide, 19
conduct in question constitutes, at the time it
that will not absolve genocide perpetrators of takes place, a crime within the jurisdiction of the
criminal responsibility within the frame of the Court.” Considered together with paragraph 3 of
prohibition of genocide which is a peremptory the same Article, it becomes more evident that
norm of international law. this article, rather than reflecting the legality
principle in international law, establishes the
This aspect of international crimes is jurisdiction of the International Criminal Court,
directly related to the sources that introduce for paragraph 3 provides, “This article shall not
these crimes into international law. It is affect the characterization of any conduct as
basic knowledge that laws are the sources criminal under international law independently of
of regulations that establish crimes and this Statute”. This exception sets forth that the
definition of legality under international law may
17 The Statute provides that the Court may have jurisdiction by
not be the same as it is under domestic law and,
way of a United Nations Security Council resolution or a non-party
state’s acceptance of the Court’s jurisdiction temporarily (Article
as will be emphasized once more below, provides
12(3)). The Court will have jurisdiction on the crime of aggression that treaties constitute only one of the sources
one year after 30 states parties accept or ratify the resolution to
of international law. Understanding the practical
be made, on a 2/3 majority, after 1 January 2017 by the Assembly
of States Parties as per Article 121 of the Statute in regards to
consequences of this distinction and the peculiar
the amendments adopted (Articles 15 bis and 15 ter) in the 2010 character of the concept of international crime
Review Conference in Kampala. For the relevant decisions of the
requires comparing the legality principle in the
Kampala Conference, see http://www.icc-cpi.int/iccdocs/asp_docs/
Resolutions/RC-Res.6-ENG.pdf (February 2013).
two contexts of international law and domestic
law.
18 See, for instance, Cryer, Robert, ‘The Definitions of International
Crimes in the Al Bashir Arrest Warrant Decision’, Journal of
International Criminal Justice, Vol. 7, Issue 2, 2009, pp. 283-296.
In criminal law literature and jurisprudence,
four consequences usually follow from the
19 For example, even though Rwanda was a party to the 1948
Genocide Convention before the genocide in the country, it did not
have any domestic legislating designating genocide as a crime. 20 On the intellectual roots of the legality principle, see Beccaria,
Schabas, 2006, p. 156. Cesare, On Crimes and Punishments.
Following from the legality principle, the In domestic law, the closely related principles of
provision of domestic law that introduces a certainty and the interdiction of analogy ensure
that the citizens of a state can be aware what
21 Kreß, Claus, ‘Nulla Poena, Nullum Crimen Sine Lege’ in Max
conduct is “incriminating” and thereby foresee
Planck Encyclopaedia of Public International Law, 2010, http:// the consequences of their actions. This allows
www.uni-koeln.de/jur-fak/kress/NullumCrimen24082010.pdf
a sanction to realize its positive objective of
(February 2013), Özbek, Veli Özer et al., Türk Ceza Hukuku Genel
Hükümler (Turkish Criminal Law: General Provisions), 3rd Ed.,
general prevention. Because no comparable
Seçkin, Ankara, 2012, pp. 67-72, Özgenç, İzzet, Türk Ceza Hukuku criminal law or code exists in international law,
Genel Hükümler (Turkish Criminal Law: General Provisions), 7th
adopting this strict interpretation of the legality
Ed., Seçkin, Ankara, 2012, pp. 103-136, Hakeri, Hakan, Ceza
Hukuku Genel Hükümler (General Provisions of Criminal Law),
principle in the criminal context will lead to unfair
Adalet, Ankara, 2012, pp. 11-24, Koca, Mahmut/Üzülmez, İlhan, consequences under international law. In fact,
Türk Ceza Hukuku Genel Hükümler (Turkish Criminal Law: General
the widespread rape of Tutsi women in Rwanda,
Provisions), Seçkin, Ankara, 2012, pp. 43-55.
which in a narrow interpretation of the 1948
22 See Bassiouni, Cherif, M. ‘Principles of Legality in International Convention on the Prevention and Punishment
and Comparative Law’, in Bassiouni, 2008, pp. 73-106, For a
of the Crime of Genocide cannot be considered
detailed study on the topic, see Alacakaptan, Uğur, İngiliz Ceza
Hukukunda Suç ve Cezaların Kanuniliği Prensibi (The Principle of
a crime of genocide, was found, by analogy, to
the Legality of Crimes and Punishments in English Criminal Law), be “causing serious bodily and mental harm
Ankara Üniversitesi Hukuk Fakültesi Yayınları, Ankara, 1958.
to members of the group” by the International
23 See Haleem, Abdel et al., Criminal Justice in Islam: Judicial
Procedure in Sharia, Tauris, London, 2003, pp. 37, Bohlander, 24 This opinion is also emphasized in the letter from the
Michael/Hedayati-Kakhki, Mohammad, ‘Criminal Justice under prosecutor’s office in the Simon judgment in Argentina, Parenti,
Shari’ah in the 21st Century-An Inter-Cultural View’, Arab Law Pablo F., ‘The Prosecution of International Crimes in Argentina’,
Quarterly, Vol. 23, Issue 4, 2009, pp. 417-36, also see Kreß 2010, International Criminal Law Review, Vol. 10 Issue 4, 2010, pp. 491-
p. 3. 507.
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Criminal Tribunal for Rwanda.25 Likewise, the law. The former legislates, at least ideally,
Special Court for Sierra Leone found the use that provisions which establish crimes and
of “child soldiers” in the civil conflict to be a punishments must be codified and criminal
war crime in accordance with Article 4(c) of its conduct must be defined in a way that is explicit
Statute.26 Furthermore, the Rome Statute of the and does not leave room for analogy. This is
International Criminal Court, one of the most in essence a manifestation of the difference
agreed-upon texts of international criminal law between the respective sources of national
as noted above, uses the phrase “other inhumane criminal law and international criminal law.
acts” with respect to crimes against humanity
and employs similar phrases when defining Article 38 of the Statute of the International
war crimes. These formulations are outright Court of Justice, generally acknowledged as
contradictions of the principle of certainty and setting forth the sources of international law, 29
the interdiction of analogy. 27
lists the following sources:
1. International conventions,
Finally, the principle of non-retroactivity 2. International custom,
provides that an act which, at the time of its 3. The general principles of law,
commission, was not defined as a crime will not 4. Judicial decisions and international legal
lead to criminal responsibility on the part of the teachings
perpetrator if it is criminalized subsequently.
In Continental European civil legal systems, Thus, customary international law, as a branch
this principle is applied strictly as a rule, yet of international law, is an obvious source of
in England, where the common law system is international criminal law. In fact, to address
in effect, the prohibition on retroactivity was the objection that the crime came into being
not enforced when there ought to have been a only after the commission of the act, i.e. the ex
reasonable belief that a given conduct would post facto law objection, the ad hoc international
have been incriminating. For instance, the criminal tribunals (Nuremberg, Tokyo, former
European Court of Human Rights has found, in Yugoslavia and Rwanda) that have included
regards to sexual violence against the spouse, international crimes within the scope of their
that the prohibition on retroactivity was not jurisdiction have relied on the establishment that
violated even though there was no provision these crimes were previously and fundamentally
concerning that act in UK law at the time the defined in customary law.
crime was committed. In international law,
28
many trials to date could be said to have violated Accepted as the foundation of customary
the prohibition on retroactivity in its narrow law with respect to international crimes, the
sense. This issue will be discussed in detail Nuremberg Tribunal provided two main grounds
below in the context of the statute of limitations. for addressing the objections based on non-
retroactivity and the legality principle with
In sum, there are significant differences between respect to the crimes within the jurisdiction
national criminal law and international criminal of the Tribunal (crimes against peace, crimes
against humanity, and the crime of aggression).
25 Akayesu (ICTR-996-4-T) 2 September 1998, § 688.
First, it relied on various conventions and
declarations to explain that the crimes within
26 Norman (SCSL-04-14-AR72), 31 May 2004, § 17-24.
27 Schabas 2007, p. 109, Cryer, Robert et al., International 29 Bassiouni, Cherif, M. ‘The Discipline of International Criminal
Criminal Law and Procedure, Cambridge, Cambridge University Law’, in Bassiouni 2008, pp. 3-40, Bantekas, Ilias/Nash, Susan,
Press, 2010, p., 265, Bassiouni, 2011, p. 203, pp. 410-11. International Criminal Law, Cavendish, London, 2003, p. 2,
Cassese, Antonio/Acquaviva, Guido/Whiting, Alex, International
28 SW v. the United Kingdom, ECtHR, § 34, 36 cited in Kreß 2010, Criminal Law: Cases and Commentary, Oxford, Oxford University
p. 6. Press, 2011, pp. 5-26.
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and government agents or from the failure to and vacatur thereof take concrete shape on the
have recourse at least to the provisions usually basis of the specific imagination of the individual
available in general criminal law. The fact that prevailing in a given country, as German legal
statutory limitations do not apply to international scholars emphasize.35 Therefore, while periods
crimes has its roots in these two provisions that of limitation and crimes subject to the statute of
establish the unique character of international limitations vary in different legal systems, they
law in terms of its sources. Before discussing the may also be the subject of different provisions
meaning of these provisions in respect of acts within the same legal system in different eras.
of enforced disappearance in Turkey below, it is As a matter of fact, the provisions in the current
necessary to consider the literature on statutory Turkish Criminal Code No. 5237, when compared
limitations concerning international crimes. with the periods of limitation in the former
Turkish Criminal Code, can be said to include
STATUTE OF LIMITATIONS IN TERMS OF regulations that are more disadvantageous to
INTERNATIONAL CRIMES IN INTERNATIONAL perpetrators.
LAW
It is nonetheless necessary to note that in
In domestic law, statute of limitations can be domestic law, as in comparative law, a general
defined as the prohibition on initiating legal approach has come into being with regard to
proceedings against a criminal act or imposing statute of limitations in the context of certain
punishment if proceedings have been initiated, types of crimes. In particular, regulations
following the lapse of the period of time set which provide that crimes against the state
by law. The application of the statute of
32
and acts of murder, if committed abroad, will
limitations does not alter the criminal character not be subject to the statute of limitations are
of the act at issue. This is because the periods generally accepted in Turkish law, as they are
of limitation should be understood as a waiver in comparative law.36 Similarly, the Turkish
of the prosecution of the criminal act in Military Penal Code contemplates that statutory
accordance with the preferred criminal policy limitations shall not apply to certain military
or a waiver of the execution of the punishment offenses.37
awarded for the crime. In other words, the
limitations mean the state relinquishing its right A more general state practice in domestic law
to penalize. It is necessary to emphasize the involves the norms which stipulate that statute
critical importance of the concept of criminal of limitations shall not apply to international
policy here. As observed in several decisions crimes under international criminal law. As
of the Constitutional Court, criminal policy will be discussed below, this practice was the
manifests itself through the actions of the case in the domestic statutory schemes of a
legislative branch in a given country, subject to number of countries and substantiated by way
compliance with the constitutional framework.33 of court decisions which found that there was
Undoubtedly, the duration of the statutory an available peremptory norm requiring that the
limitation and the reasons for the suspension34 statute of limitations not apply to international
crimes. The topic of statutory limitations has
32 Özgenç, pp. 794-805, Hakeri, pp. 619-630, Özbek et al., pp. 694-
731, Koca/Üzülmez, pp. 611-633.
been discussed in three different contexts in
33 See, for instance, E. 1970/7, K. 1970/23, 12.5.1970 and E. 35 See, for instance, Gropp, Walter, Strafrecht Allgemeiner Teil,
1999/39, K. 2000/23, 19.9.2000. These decisions are accessible Springer, Berlin, 2005, p. 36.
at the portal of the Constitutional Court at www.anayasa.gov.tr
(February 2013). 36 Turkish Criminal Code, Article 66(7).
34 For instance, a suspect or accused testifying before the 37 For instance, crimes such as draft evasion and absence without
prosecutor, the drafting of an indictment, the issuance of arrest leave provided for in the Military Penal Code are not subject to the
warrant, see Turkish Criminal Code, Article 67. statute of limitations under Article 49/A thereof.
38 In this context, the decision on Adolf Eichmann, who was 41 Cassese/ Acquaviva/ Whiting 2011, p. 170, p.174, pp. 488-499.
extradited to Israel after an extended process, is highly significant.
See Lasok, D., ‘The Eichmann Trial’, International and Comparative 42 Kok, pp. 160-162, Forrest Martin, Francisco, International
Law Quarterly, Vol. 11, Issue 2, 1962, pp. 355-374. Human Rights and Humanitarian Law: Treaties, Cases and
Analysis, Cambridge, University Press, Cambridge, 2006, pp. 482-
39 See Kok, Ruth, Statutory Limitations in International Criminal 483. Lelieur-Fischer, Juliette, ‘Prosecuting the Crimes Against
Law, Asser Press, Hague, 2007, pp. 160, Sadat, Leila Nadya, ‘The Humanity Committed during the Algerian War. An Impossible
Nuremberg Paradox’, Washington University in St. Louis Faculty Endeavour (the 2003 Decision of the French Court of Cassation in
Working Papers in http://ssrn.com/abstracr=1408153, 2009, Aussaresses)’, Journal of International Criminal Justice, Vol. 2,
(February 2013), pp. 30-32. 2004, Issue 1, pp. 231-244, p. 233.
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French Court of Cassation reversed the acquittal half of 1960s marked a period in which no clear
decision awarded by the Paris Court of Appeals approach had yet been established as regards
for lack of evidence and held once more that the punishment of Second World War criminals.46
provisions on statute of limitations shall not Although the German Social Democratic Party
apply in matters of crimes against humanity.43 (SPD) in particular proposed to consider the
The conviction of Maurice Papon, who was held44
limitation periods to have been suspended
responsible for the deportation of 1,500 Jews between 1945 and 1949, when an effective
to concentration camps in Germany, built on investigation system was clearly not in place, the
previous decisions and substantiated once more act which took its final shape and was adopted in
the approach advocating the imprescriptibility 1965 extended the limitation periods until 1969
of crimes against humanity. Yet, it is necessary only in respect of manslaughter. It is important
to note that the French High Court’s 2003 to emphasize, however, that the act provided that
decision in the Aussaresses case, involving acts voluntary manslaughters that had been prescribed
of torture and “summary executions” resulting at the time the act entered into force in 1965 would
in murder in the Algerian War between 1955 be excluded from the scope of that extension
and 1957, largely contradicted the Court’s and based the exclusion on Article 103(2) of the
consistent approach on this matter; the Court Constitution of the Federal Republic of Germany
held in Aussaresses that only those provisions of which established the prohibition on retroactivity.
customary international law which were not at
variance with domestic law could be applicable. Interestingly, this provision set forth by the
The divergent perspectives the High Court German legislature – extending the limitation
adopted with respect to crimes against humanity periods only with respect to the perpetrators
committed at the time of the Second World War of war crimes and crimes against humanity
and the Algerian War received fair criticism, and committed during the Second World War – was
the appropriateness of these perspectives was brought before the Federal Constitutional
the subject of debate in the context of Article Court of Germany on charges of constitutional
7(2) of the European Court of Human Rights violation. Observing that the extended limitation
and Article 15(2) of the International Covenant periods did not violate the constitution and did
on Civil and Political Rights.45 Developments not alter the substance of criminal responsibility
concerning France’s admission of responsibility (merely involving a procedural regulation),
for the Algerian War are of course likely to have the Court found that rules on the statute of
an impact in the near future on the French High limitations did not entitle perpetrators to a right
Court’s jurisprudence on crimes committed which could not be abrogated by the legislature.
against humanity during the Algerian War. Therefore the act did not violate the prohibition
on retroactivity stipulated in Article 103(2) of
Post-Second World War arguments on statute of the German Constitution.47 In fact, a new act in
limitations in the Federal Republic of Germany 1969 extended limitations periods for another
began in the 1960s with the prescription, under the twenty years (until 31 December 1979) with
German Criminal Code, of several types of crimes respect to murder and other acts punishable
committed during the war. In Germany, the first by a life sentence, and provided that under
43 Kok, p. 162, Cassese, Antonio, The Oxford Companion to 46 Kreß, pp. 27-30, Freudiger, Kerstin, Die juristische Aufarbeitung
International Criminal Justice, Oxford University Press, Oxford, von NS-Verbrechen, Tübingen, Mohr Siebeck, 2002, pp. 12-33,
2009, pp. 957-958, Bassiouni, Cherif, M., Crimes Against Humanity: Kok, pp. 145-149, Weiss, Friedl, ‘Time Limits for the Prosecution of
Historical Evolution and Contemporary Application, Cambridge Crimes Against International Law’, British Yearbook of International
University Press, Cambridge, 2011, p. 675. Law, Vol. 53, Issue 1, 1982, pp. 165-195.
44 Cassese/Acquaviva/Whiting, p. 170, Bassiouni, 2011, p. 676. 47 Bundesverfassungsgericht, BVerfG 25, 269, 26 February 1969,
the original text of the decision is accessible at: http://www.servat.
45 Lelieur-Fischer, p. 234. unibe.ch/dfr/bv025269.html#Rn013195 (February 2013).
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Schwammberger, the Federal Court of La Plata and the 1974 European Convention on the Non-
(Cámara Federal de La Plata) in Argentina held Applicability of Statutory Limitations to Crimes
that general statutory limitations would not apply Against Humanity and War Crimes 57 – reflect the
to crimes against humanity.54 Even though, at the influence of the abovementioned developments
time of the commission of the crimes in question, as well as play an exemplary role for the
Argentina was not party to the conventions statutory limitation regulations of domestic legal
(discussed below) on the non-applicability of systems as regards international crimes.
statutory limitations to war crimes and crimes
against humanity, the Court reiterated that Article 1 of the United Nations Convention on the
the non-applicability principle had become a Non-Applicability of Statutory Limitations to War
peremptory norm of customary international law. Crimes and Crimes Against Humanity provides
The Court reasoned its decision with reference as follows:
to the opinions of Hugo Grotius and Cesare
Beccaria as well as international conventions No statutory limitation shall apply to the
and declarations. The High Court considered following crimes, irrespective of the date of their
the lack of provisions on statutory limitations in commission:
conventions on international crimes (for instance,
the genocide convention) strongly supportive of 1) War crimes as they are defined in the Charter
its approach. The Court further emphasized that of the International Military Tribunal, Nurnberg,
international law is one of the sources of criminal of 8 August 1945 and confirmed by resolutions 3
law as per Article 102 of the Constitution of (1) of 13 February 1946 and 95 (I) of 11 December
Argentina and observed that the legality principle 1946 of the General Assembly of the United
could therefore not be applied strictly; it was Nations, particularly the “grave breaches”
necessary to recognize the provisions aimed enumerated in the Geneva Conventions of 12
at guaranteeing that limitation rules would not August 1949 for the protection of war victims;
apply to international crimes before the courts in
Argentina.55 2) Crimes against humanity whether committed
in time of war or in time of peace as they are
Two main international conventions concern defined in the Charter of the International
the topic of international crimes and statutory Military Tribunal, Nurnberg [sic], of 8 August
limitations discussed above. These instruments 1945 and confirmed by resolutions 3 (I) of
– the 1968 United Nations Convention on the 13 February 1946 and 95 (I) of 11 December
Non-Applicability of Statutory Limitations to 1946 of the General Assembly of the United
War Crimes and Crimes Against Humanity 56
Nations, eviction by armed attack or occupation
and inhuman acts resulting from the policy of
54 Kok, p. 177, in addition, for a brief general evaluation of apartheid, and the crime of genocide as defined
the national court decisions in Argentina by the International
in the 1948 Convention on the Prevention and
Committee of the Red Cross, see http://www.icrc.org/customary-
ihl/eng/docs/v2_cou_ar_rule160 (March 2013).
Punishment of the Crime of Genocide, even if
such acts do not constitute a violation of the
55 Kok, p. 178.
domestic law of the country in which they were
56 The Convention on the Non-Applicability of Statutory Limitations
committed.
to War Crimes Against Humanity is accessible at treaties.un.org.
See United Nations Economic and Social Council Commission
Article 4 of the Convention imposes upon states
of Human Rights, ‘Question of War Criminals and of Persons
Who Have Committed Crimes Against Humanity’, E/CN.4/1966,
parties the obligation to adopt any legislative
http://www.un.org/ga/search/view_doc.asp?symbol=E/CN.4/906
(February 2013), in particular, pp. 49-50, Miller, Robert, H., ‘The 57 The text of the European Convention on the Non-Applicability
Convention on the Non-Applicability of Statutory Limitations to War of Statutory Limitations to War Crimes Against Humanity is
Crimes Against Humanity’, American Journal of International Law, accessible at http://conventions.coe.int/ (February 2013). Also see
Vol. 65, Issue 3, 1971, pp. 476-501. Bassiouni, 2011, p. 276.
The European Convention on the Non- Of the countries in transition, the Czech
Applicability of Statutory Limitations to Crimes Republic made “the most radical moves” in this
against Humanity and War Crimes significantly context. Discussions on statutory limitations in
narrowed the scope of the rule on the non- international criminal law in the Czech Republic
applicability of provisions concerning statutory began with the collapse of real-socialism in
limitations. It provides in Article 1 that the Czechoslovakia in 1989.59 After the country split
following shall not be subject to statutory into two as the Czech Republic and Slovakia
limitations, insofar as they are defined as in 1990, legislation was required to punish the
crimes in the domestic law of a contracting perpetrators of the crimes committed in Prague
state: war crimes (in the form of violations at the time of the military intervention, to crush
specified in those provisions of the 1949 Geneva what is known as the 1968 ‘Prague Spring’.60
Conventions that limit the scope of Article 1); any These acts were sponsored by Warsaw Pact
comparable violations of humanitarian law as countries including mainly the Union of Soviet
defined in customary law (which are not already Socialist Republics. An act adopted in 1993,
provided for in the Geneva Conventions, when which included in its reason important ideological
the specific violation under consideration is of declarations about the socialist regime and
a particularly grave character by reason either the Communist Party of Czechoslovakia,61
of its factual and intentional elements or of the established as follows: “the period of time from
extent of its foreseeable consequences); crimes 25 February until 29 December 1989 shall
against humanity (as specified in the Genocide not be counted as part of the limitation period
Convention58); and any other acts which the for criminal acts if, due to political reasons
contracting states shall declare, in accordance incompatible with the basic principles of the
with the procedure in the Convention, to be a legal order of a democratic state, said acts were
violation of international law. not finally and validly convicted or the charges
against them were dismissed” (Article 5).
Following these important steps in the
prosecution of crimes against humanity and Before the 1993 Draft Bill was passed into law,
war crimes committed during the Second World it arrived before the Czech Constitutional Court
War, there was renewed debate on statutory for a preliminary review. The Court’s conclusion
limitations in the context of international crimes
59 Priban, Jiri, ‘Retroactivity and Constitutional Justice in Central
around the time of the collapse of real-socialism Europe’, Priban, Jiri/Roberts, Pauline/Young, James (ed.) Systems
in the 1990s. Although legislative efforts and of Justice in Transition: Central European Experiences Since 1989.
Ashgate, Aldershot, pp. 29-42, pp. 37-38. Robertson, David, A,
proceedings concerning crimes committed or
‘Problem of Their Own, Solution of Their Own: CEE. Jurisdiction
allegedly committed under real-socialist regimes and the Problems of Lustration and Retroactivity’, in Sadurski,
in times of regime change were generally Wojciech/Czarnota, Adam/Kyrgier, Martin (ed.) Spreading
Democracy and the Rule of Law, Springer, Berlin, 2010, pp. 73-96.
marked by prejudiced political and ideological
score-settling with and rupture from past 60 On the Prague Spring, see Williams, Kieran, The Prague Spring
and Its Aftermath: Czechoslovak Politics, 1968-1970, Cambridge
58 While it could be thought at this point that the Convention University Press, Cambridge, 1997.
stipulates non-applicability of statutory limitations only with
respect to the crime of genocide, the phrase “the crimes against 61 Wilke, Christiane, ‘Politics of Transitional Justice: German,
humanity specified in the Convention on the Prevention and Hungarian and Czech Decisions on Ex Post Facto Punishment’ in
Punishment of the Crime of Genocide adopted on 9 December 1948 The Contours of Legitimacy in Central Europe: New Approaches in
by the General Assembly of the United Nations” therein leads to the Graduate Studies, Oxford, European Studies Centre, 2003, pp. 4-5,
conclusion that genocide is considered as a specific example of a accessible at: http://users.ox.ac.uk/~oaces/conference/papers/
crime against humanity. Christiane_Wilke.pdf (February 2013).
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established significant principles responsive to Constitutional Court of Hungary, when the
objections concerning the legality and equality act in question was before it, emphasized the
principles in the context of the debate about prohibition of retroactivity in the context of
statutory limitations. The Czech Constitutional the legality principle as well as the principle
Court held that limitations periods shall be given of certainty and predictability of law, and held
effect only if investigative bodies perform their that the act would violate the constitution.
duties effectively. The Court observed that an Afterwards, the Hungarian legislature, in a new
effective investigation into crimes committed act in 1993 (Act Concerning the Procedures in
during the former regime was not functional with the matter of Certain Criminal Offences during
respect to political crimes perpetrated against the 1956 October Revolution and Freedom
regime opponents, and on this basis the Court Struggle), defined the crimes committed during
established that the rulers of the regime did the 1956 uprising as war crimes and crimes
not initiate any investigations into the crimes against humanity.64 In its preliminary review
committed on behalf of the regime. Arguing of the new act, drafted in the same context,
that the real-socialist regime had no legitimacy, which provided that statutory limitations shall
the Court concluded that statutory limitations not apply to certain types of crimes committed
should not apply to crimes perpetrated during during the 1956 occupation, the Constitutional
that time period. Any interpretation to the Court reached some conclusions that are highly
contrary, the Court held, would mean the new important for the purpose of this study.65 The
regime, resting on the rule of law, would ignore Court observed that the prohibition of war crimes
or implicitly condone the crimes committed on and crimes against humanity was, at the time
behalf of the state under the previous regime. said crimes were committed, recognized under
customary international law. Based on this
The debate in the Czech Republic had a observation, and because international crimes
counterpart in Hungary with regard to crimes concerned the international community as a
perpetrated in 1956, during the uprising against whole, it stressed that rules of international
government forces which was quelled through law generally accepted under Article 7/1 of
the intervention by the Union of Soviet Socialist the European Convention on Human Rights
Republics.62 An act issued in 1991 stipulated constituted, without need for any additional
that “statutory limitations shall commence as regulation, a direct source of Hungarian domestic
of 2 May 1990 with respect to the prosecution of law. The Court then considered that the non-
the crimes of treason (Article 144/2), voluntary applicability of statutory limitations to war
manslaughter (Article 166/1 and 2), and infliction crimes and crimes against humanity is a general
of bodily harm resulting in death (Article 170/5) principle of law, and did not find the challenged
as defined in the 1978 Law that were committed legislation unconstitutional. The Hungarian
between 21 December 1944 and 2 May 1990, Supreme Court declined to apply this law in its
if the decisions concerning the state’s punitive decision in the Sagotarjan case on the grounds
power were made for political reasons”. The 63
that a (non-international) armed conflict –a
concept which must exist for a war crime to
62 On this topic, see Report of the Special Committee of
materialize under international law and will be
the United Nations on the Problem of Hungary, UN General
Assembly 11 Session, New York, 1957, accessible at: mek.oszk.
th
hu/01200/01274/01274.pdf (February 2013). 64 Kok, p. 34. Also see Stan, Lavinia, ‘Hungary’, in Stan, Lavinia
(ed.)Transitional Justice in Eastern Europe and the Former Soviet
63 Kok, pp. 205-209, Priban, p. 35. Also see Boulenger, Christian, Union: Reckoning with the Communist Past, Routledge, Oxon, 2009,
‘Europeanisation through Judicial Activism? The Hungarian pp. 72-127, pp. 120-122.
Constitutional Court’s Legitimacy and Hungary’s Return to Europe’,
in The Contours of Legitimacy in Central Europe, New Approaches 65 The Constitutional Court of Hungary, No. 53/1993 (X.13.)
in Graduate Studies, European Studies Centre, Oxford, 2003, http:// AB. The English version can be found at the following link of
users.ox.ac.uk/~oaces/conference/papers/Christian_Boulanger.pdf the International Committee of the Red Cross on national court
(February 2013). decisions: http://www.icrc.org/ihl-nat.
68 Gesetz über das Ruhen der Verjährung bei SED-Unrechstaten, 72 Bundesverfassungsgericht BVerfG 25, 269, the text of the
3.4.1993, p. 392. Bundesanzeiger, www.bgbl.de (February 2013), decision is accessible at: http://www.servat.unibe.ch/dfr/bv025269.
Marxen, Klaus/ Werle, Gerhard/Böhm, Frank, Die Strafrechtliche html (February 2013).
Aufarbeitung von DDR-Unrecht, de Gruyter, Berlin, 1999, pp. 5-7.
73 Gesetz zur weiteren Verlängerung strafrechtlicher
69 Wilke, p. 2. Kok, pp. 193-197. The investigation led to the trials Verjährungsfristen und zur Änderung des Gesetzes zur Entlastung
of persons including Erich Honecker, the former Head of State of der Rechtspflege (3. Verjährungsgesetz), 30 December 1997, p.
East Germany. 3223, www.bgbl.de (February 2013).
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distinct character in this regard, the pieces of community and domestic law systems are
legislation, court decisions and international sensitive about prosecuting the perpetrators
conventions referred to above indicate that of the crime of enforced disappearance and
the rule on the non-applicability of statutory illustrate the progress of international law in that
limitations to international crimes has been context. In fact, the approach, which suggests
evolving toward becoming a peremptory norm that the prevention of enforced disappearance
of international law. As a matter of fact, Article and the prosecution and punishment of
29 of the Rome Statute of the International perpetrators is on its way to becoming a
Criminal Court,74 contracted by 121 states peremptory norm of international law (jus
as of March 2013, affirms this norm. What cogens), is reflected in the jurisprudence of
follows is a discussion of the crime of enforced international judicial bodies including, mainly, the
disappearance as an international crime and the judgments rendered on Latin American countries
question of statutory limitations in that specific by the Inter-American Court of Human Rights.78
regard.
Adopted on 20 December 2006 and having
ENFORCED DISAPPEARANCE AS AN entered into force on 23 December 2010, the
INTERNATIONAL CRIME International Convention for the Protection of
All Persons from Enforced Disappearance has
The crime of enforced disappearance emerged consolidated the partially differing sections of
as a widespread practice after a decree issued the Declaration on the Protection of All Persons
in Nazi Germany during the Second World War.75 from Enforced Disappearance and the Inter-
The first time it was treated as an international American Convention on Forced Disappearance
crime was the trial of Wilhelm Keitel76 and of Persons, and has provided in its Article 2 that
the trial of Josef Altstoetter et al. (aslo known enforced disappearance “is considered to be the
as the Justice case, in which all defendants arrest, detention (Entzug der Freiheit), abduction
held positions in the justice system of the or any other form of deprivation of liberty by
Nazi regime)77 before the Nuremberg Tribunal agents of the State or by persons or groups of
under the Control Council Law. As Alpkaya persons acting with the authorization, support or
discusses in detail, enforced disappearance acquiescence of the State, followed by a refusal
became increasingly widespread not only in to acknowledge the deprivation of liberty or by
times of war but also in times of peace when concealment of the fate or whereabouts of the
states practiced it against their own citizens, disappeared person, which place such a person
leading to grave and large-scale violations of outside the protection of the law”.79
the fundamental rights and liberties recognized
under international human rights instruments. As As this definition indicates, enforced
a result, it was necessary to define the crime of disappearance is a crime consisting of
enforced disappearance in various declarations several acts. It usually involves deprivation
and conventions. These conventions and United
Nations declarations show that the international 78 See, for instance, the Goiburu v. Paraguay judgment where the
Inter-American Court states that the prohibition of the crime of
74 On the International Criminal Court, visit www.icc-cpi.int (March enforced disappearance has a peremptory (jus cogens) character
2013). in international law, § 84, http://www.univie.ac.at/bimtor/dateien/
iachr_2006_Goiburu_vs_paraguay.pdf Radilla-Pacheco v. Mexico,
75 See Werle, Gerhard/Jeßberger, Florian, Völkerstrafrecht, Mohr para. 139, http://www.corteidh.or.cr/docs/casos/articulos/
Siebeck, Tübingen, 2007, p. 362. seriec_209_ing.pdf, p. 203, Casyto v. Peru, http://www.corteidh.
or.cr/docs/casos/articulos/seriec_160_ing.pdf (March 2013).
76 Wilhelm Keitel’s testimony is available at: http://avalon.law.yale.
edu/imt/04-03-46.asp#keitel1 (February 2013). 79 For the debates on the definition, see Andreu-Guzmán, Federico,
‘The Draft International Convention on the Protection of All Persons
77 Justice Case, accessible at: http://www.loc.gov/rr/frd/Military_ from Forced Disappearance’, The Review of the International
Law/pdf/NT_war-criminals_Vol-III.pdf (February 2013). Commission of Jurists, Vol. 62-63, 2001, pp. 73-106.
80 Grammer, Christoph, Der Tatbestand des Verschwindenlassens 81 UN General Assembly Resolution 33/173 on “Missing Persons”
einer Person, Duncker & Humblot, Berlin, 2005, pp. 95-137, dated 20 December 1978, Resolutions No. 43/159 (1988), 44/160
Ambos, Kai, “Verbrechenselemente” sowie Verfahrens- und (1990,) 46/125 (1991) and 47/132 (1992). In the same context, see
Beweisregeln des Internationalen Strafgerichtshof, Neue annual reports of the Inter-American Commission on Human Rights
Juristische Wochenschrift, Vol. 54, Issue 6, pp. 405-410, for the years 1978 and 1980-1981. Annual Report of the Inter-
2001, p. 406, also see von Braun, Leonie/Diehl, David, Die American Commission on Human Rights 1978, OEA/Ser.L/II.47,
Umsetzung gegen das Verschwindenlassen in Deutschland: Zur doc., 1979, Annual Report of the Inter-American Commission on
Erforderlichkeit eines eigenen Straftatbestandes, Zeitschrift für Human Rights, 1980-1981, OEA/Ser.G, CP/doc.1201/1981, 1981, the
international Strafrechtsdogmatik, Vol. 4, 2011, http://www.zis- reports are accessible at http://www.wcl.american.edu/humright/
online.com/dat/artikel/2011_4_547.pdf (February 2013). digest/database3.cfm (February 2013).
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to know the truth about the victim of the act of jurisdiction of international courts. 86 Enforced
enforced disappearance are considered torture disappearance constitutes a violation under
or cruel, inhuman and degrading treatment in international law, and although it is not, as will
the jurisprudence of Human Rights Courts. 82
be analyzed below, included in the respective
Furthermore, the United Nations Working Group statutes of the Tribunals for the former
on Enforced or Involuntary Disappearances has Yugoslavia and Rwanda, the ICTY observed
received substantial information suggesting that enforced disappearances practiced in the
that the act of enforced disappearance aims to territory of the former Yugoslavia should be
intimidate the group or collective of which the defined as crimes against humanity within the
victim is a part and therefore has destructive frame of “other inhumane acts”. 87
effect on the entire society. 83
This is particularly
well exemplified in Latin American countries The last definition of enforced disappearance
where enforced disappearance was widely comes from Article 7/2(i) of the Rome Statute
practiced. In fact, the crime of enforced of International Criminal Court, which defines
disappearance has been defined in many enforced disappearance as “the arrest,
of these countries in a manner that mirrors detention or abduction of persons by, or with
international conventions. 84 Although trials the authorization, support or acquiescence of,
relating to the disappeared, or on desaparecidos a State or a political organization, followed by
as they are known in Latin American countries, a refusal to acknowledge that deprivation of
mainly proceeded in the frame of the crime freedom or to give information on the fate or
of deprivation of liberty, 85 currently whereabouts of those persons, with the intention
proceedings are in progress concerning of removing them from the protection of the law
the crime of enforced disappearance in for a prolonged period of time.” The identification
a lex specialis framework, rather than the of removal from the protection of the law as an
general regulation relating to deprivation of intention demonstrates the specific character
liberty. of the crime and establishes the typical mental
element that is necessary.
While the particular importance of the topic for
Latin American countries cannot be ignored, The Statute defined the act as a crime involving
in several other countries including Turkey, the multiple acts. These acts, according to the
practice of enforced disappearance came to Statute, are the arrest, abduction or detention
be defined as an international crime within the (Entzug der Freiheit) of one or more persons and
the refusal to acknowledge the abduction or to
provide information about the whereabouts or
82 Scovazzi, Tulio/Citroni, Gabriella, Struggle Against Enforced
Disappearance and the 2007 United Nations Convention, Martinus
fate of the person or persons. In the Elements
Nijhoff, Leiden, 2007, p. 30. of Crimes document annexed to the Statute, it
is noted that given the complex nature of the
83 See, for instance, United Nations document E/CN.4/1985/15, §
291, accessible at http://www.ohchr.org (February 2013). Also see
crime, its commission will normally involve
XXIV International Conference of the Red Cross and Red Crescent, more than one perpetrator. 88 With this definition,
Manila, 1981, Resolution II “Forced or involuntary disappearances”,
www.icrc.org (February 2013).
86 Anderson, Kirsten, ‘How Effective is the International
84 See Working Group on Enforced or Involuntary Disappearances, Convention for the Protection of all Persons from Enforced
‘Civil and Political Rights, Including the Questions of Disappearance Likely to be in Holding Individuals Criminally
Disappearances and Summary Executions’, E/CN.4/2006/56, 2006. Responsible for Acts of Enforced Disappearance?’, Melbourne
Accessible at: http://www.ohchr.org (February 2013). Journal of International Law, Vol. 7, Issue 2, 2006, pp. 245-277.
85 Bkz. Lafontaine, Fannie, ‘Limitation for Enforced 87 Kupreskic (IT-95-16-T) 14 January 2000, § 566, Kvocka et al.
Disappearances: The Sandoval Case before the Supreme Court (IT-98-30/1-T), 2 November 2001, § 208.
of Chile’, Journal of International Criminal Justice, Vol. 3, Issue 2,
2005, p. 469-484. 88 Footnote 23 elaborating Article 7 in Elements of Crimes.
CRIMES AGAINST HUMANITY AS A TYPE OF “Crime against humanity” was first defined, along
INTERNATIONAL CRIME with “war crimes” and “crimes against the peace”
(now known as crime of aggression)93, in Article
The notion of crime against humanity is the first 6/c of the London Charter of the International
example of the legal importance attributed to Military Tribunal at Nuremberg.94 The Charter
the concepts of human dignity and humanity defined crime against humanity as follows:
that have progressed with the Enlightenment
philosophy. The history of that notion can be
91 For the Treaty of Sèvres article on crime against humanity, see
traced back to the 1907 Hague Convention, which Matas, David, ‘Prosecuting Crimes Against Humanity: The Lessons
established that international obligations arising of World War’, Fordham International Law Journal, Vol. 13, Issue 1,
1989, pp. 86-104, pp. 88-92.
from the law of humanity89 and public conscience
shall also be applicable in times of war.90 A 92 Ibid., For the text of the report, see Commission on the
declaration issued by Great Britain, France and Responsibility of the Authors of the War and on Enforcement of
Penalties, Report Presented to the Preliminary Peace Conference,
Russia in the aftermath of the First World War
American Journal of International Law, Vol. 14, 1920, Issue.1/2, pp.
included the first reference to crimes against 95-154.
89 Known as humanitarian law in contemporary terminology, on 93 Tezcan, Durmuş, ‘Saldırgan Savaş’ (Aggressive War), Ankara
the meaning of the concept of humanity in this regard, see Luban, Üniversitesi Siyasal Bilgiler Fakültesi Dergisi (Journal of the Ankara
David, ‘A Theory of Crimes Against Humanity’, Yale Journal of University School of Political Sciences), Vol. 49, Issue 1-2, 1994, pp.
International Law, Vol. 29, Issue 1, pp. 85-167, 2004, pp. 86-90. 349-363.
90 See, for instance, Schwelb, Egon, ‘Crimes Against Humanity’, 94 The Nuremberg Charter and the trial documents are accessible
British Yearbook of International Law, Vol. 23, Issue 8, 1946, pp. at the following Yale University link: http://avalon.law.yale.edu/imt/
178-190. imtconst.asp (February 2013).
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“murder, extermination, enslavement, 95 and dated 11 December 1946.97
deportation, and other inhumane acts committed
against any civilian population, before or during Although UN General Assembly Resolution
the war; or persecutions on political, racial or 95 recognized the definition of crimes against
religious grounds in execution of or in connection humanity, unlike in the case of the crime of
with any crime within the jurisdiction of the genocide and war crimes, no treaty exclusive to
Tribunal.” this crime type has yet been adopted (excepting
the conventions on the two methods by which
Article 6 of the Charter of the Nuremberg the crime against humanity is committed,
International Military Tribunal further provided namely racial discrimination98 and enforced
that it is irrelevant whether these acts were disappearance). Accordingly, crimes against
defined as crimes under the domestic law of humanity were treated in customary law as
country where the crime against humanity was they were originally defined in the Nuremberg
perpetrated. In addition, the Charter and the Charter, and the enforcement of that definition
Tribunal’s jurisprudence required that a crime by international criminal justice bodies has
against humanity can only be committed in the resulted in a significant body of precedent
context of the existence of war. The Charter’s in regards to the elements of the crime. This
definition of the elements of the crime against precedent has informed discussions when
humanity was also adopted in the Charter of elements of the crime were being established in
Tokyo International Military Tribunal established the Statute of the International Criminal Court
to try Second World War criminals.95 and eventually found their way into the Statute
definitions. Before considering the elements of
At the Nuremberg and Tokyo trials, objections crimes against humanity under the Statute of
were put forth that the legality principle was the International Criminal Court, it is necessary
violated with respect to the crimes that fell to review the statutes of the relevant courts and
under the jurisdiction of the two Tribunals. the approach developed as to whether crimes
As noted above, the Tribunals relied natural against humanity must be defined in connection
law to emphasize that the legality principle is with a state of war/armed conflict.
a principle of justice, and perpetrators could
not have been unaware that their actions were The first major step in this regard is the definition
criminal and it would be unacceptable to leave of crimes against humanity provided in the
unpunished those persons who gravely violated Statute of the International Criminal Tribunal
the rules of international law. Critically, the for the former Yugoslavia99 (“ICTY Statute”)
Nuremberg Tribunal observed that international established in 1993 pursuant to Resolutions
law cannot be violated by abstract entities but 808 and 827 by the United Nations Security
only by individuals, and international law can only Council based on its powers under Chapter 7
be enforced if such violations are punished.96 of the United Nations Charter. According to the
The definition of crime against humanity as
established with the Nuremberg Tribunal was 97 http://untreaty.un.org/cod/avl/ha/ga_95-i/ga_95-i.html
(February 2013).
affirmed with UN General Assembly Resolution
98 UN Convention on the Elimination of All Forms of Racial
95 The only difference between the Nuremberg Tribunal and Discrimination, official Turkish translation is accessible at http://
the Tokyo Tribunal is that the Statute of the Tokyo Tribunal does www.uhdigm.adalet.gov.tr/sozlesmeler/coktaraflisoz/bm/bm_09.
not include the religious reason when defining the crime of pdf (February 2013).
perpetration.
99 International Criminal Tribunal for former Yugoslavia, ICTY, see
96 Robert H. Miller, ‘The Convention on the Non-Applicability of Schabas, 2006, on the debates over the establishment of the Court,
Statutory Limitations to War Crimes and Crimes Against Humanity’, see Rubin, Alfred ‘An International Criminal Tribunal for former
American Journal of International Law, Vol. 65, Issue 3, pp. 476- Yugoslavia’, Pace International Law Review, Vol. 6, Issue 1, 1994,
501, 1971. pp.7-17.
101 For the debates, see Van Schaak, Beth, ‘The Definition of Crimes 104 See, for instance, Kunarac et al. (IT-96-23/1-A), 12 June 2002,
Against Humanity: Resolving the Incoherence’, Columbian Journal § 85.
of Transnational Law, Vol. 37, Issue 3, 1999, pp. 787-850.
105 International Criminal Tribunal for Rwanda, ICTR, was
102 The Tadić judgment will be discussed in the context of armed established in the capital of Tanzania, Arusha.
conflict under the section dealing with enforced disappearances in
Turkey. 106 Akayesu (ICTR-96-4-A), 1 June 2001, § 464.
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intent.107 The judgments of the ICTY also speak 7 of the Statute provides that any of following
to the same effect. 108
It has been suggested that acts when committed as part of a widespread or
this definition is not representative of customary systematic attack directed against any civilian
international law, and the legal professionals population will satisfy the definition of the crime
who authored the ICTR Statute erred by against humanity:
assuming that discriminatory intent was a mental 1) Murder,
element of the crime against humanity.109 2) Extermination,
3) Enslavement,
As will discussed below, the ICTR Statute, 4) Deportation or forcible transfer of a
like the Turkish Criminal Code, considers population,
discriminatory intent in the perpetration of 5) Torture,
the crime as a typical mental element. Both 6) Imprisonment or other severe deprivation
statutes also require the element that the of physical liberty in violation of fundamental
crime was perpetrated as part of a widespread rules of international law, torture, rape,
and systematic attack. This is with a view to sexual slavery, enforced prostitution, forced
eliminating the risk that crimes committed in pregnancy, enforced sterilization, or any other
an isolated manner without a connection to an form of sexual violence of comparable gravity,
“armed conflict” could easily be considered 7) Persecution against any identifiable group
under that definition.110 or collectivity on political, racial, national,
ethnic, cultural, religious, gender, or other
The most contentious issues that arose during grounds that are universally recognized as
negotiations over the definition of crimes against impermissible under international law, in
humanity in the Statute of the International connection with any act constituting a crime
Criminal Court (“ICC Statute”) involved whether against humanity or any acts within the
the existence of an armed conflict was required; jurisdiction of the Court,
whether discriminatory intent would be required 8) Enforced disappearance of persons,
only when the crime takes place by means 9) Racial discrimination (apartheid),
of persecution or would it be required with 10) Other inhumane acts of a similar character
respect to all crimes against humanity; and intentionally causing great suffering, or serious
finally whether both a “widespread nature” injury to body or to mental or physical health.
and “systematic nature” would be required as
criteria or one of them would be sufficient and Following the establishment of the elements of
necessary.111 the crime against humanity and acts constituting
that crime as above, Article 7/2(a) of the Statute
The Rome Statute of ICC was adopted in 1998 provides that the acts that constitute the
and entered into force on 1 July 2002. Article crime against humanity must be committed
in a widespread manner as part of an attack,
107 Akayesu (ICTR-96-4-A), 1 June 2001, § 464.
pursuant to or in furtherance of a State or
organizational policy to commit such attack.112
108 Tadić (IT-94-1-A) 15 July 1999, § 283, 292i Kordić et al. (IT
-9514/2-T), 26 February 2001, § 186, Blaskić (IT-95-14-T), 3 March
2000, § 244, 260. 112 This criterion has been reinterpreted in various decisions of
the Pre-Trial Chamber of the International Criminal Court on the
109 Schabas 2006, p. 197. humanitarian crisis in Kenya. In the majority opinion of the Pre-
Trial Chamber this refers to “any organization that is capable of
110 Ibid., 238-241 perpetrating a widespread or systematic attack against a civilian
population”, while the minority opinion was that “the organization
111 Van Schaak, 843-844, see Hwang, Phylilis, ‘Defining Crimes must be state-like”. See Werle, Gerhard/Burghardt, Boris, ‘Do
Against Humanity in the Rome Statute of the International Criminal Crimes Against Humanity Require the Participation of a State or
Court’, Fordham Journal of International Law, Vol. 22, Issue 2, 1998, ‘State-Like’ Organisation’, Journal of International Criminal Justice,
pp. 457-503. Vol. 10, Issue 5, 2012, pp. 1151-1170.
116 Kordic et al. (IT-95-14/2-T), 26 February 2001, § 179. 121 Elements of Crimes, accessible at: http://www.icc-cpi.int.
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the Statute defines another condition required in the ordinary course of events” (Article 30(3)).
thereunder, namely the commission of the Therefore, the Rome Statute, an instrument
crime in furtherance of a state or organizational that codifies customary international law to a
policy. With respect to the commission of crimes substantial degree, indicates that it shall suffice
against humanity, the document defines “policy” if the perpetrator knows the connection between
as “the active promotion or encouragement by the crime and the attack, and unlike with the crime
the state or organization of the attack which of genocide, specific intent will not be required.
constitutes an element of the crimes against
humanity”. However, the footnote (fn. 6) to the As a subject of controversy in the criminal justice
Article which defines the concept of policy literature, the concept of specific intent has to
explains that in exceptional circumstances such do with defining the purpose or motive of the
a policy may be implemented by a deliberate 122
perpetrator along with defining elements of
failure to take action, which is consciously aimed the crime.126 For instance, it is generally agreed
at encouraging an “attack” that constitutes a that specific intent is required for the crime of
crime against humanity. The third sentence of genocide to be perpetrated; genocide is a crime
the footnote, which offers a further explanation, that involves a certain number of acts which must
states that the existence of such a policy be committed with a purpose/motive to destroy,
cannot be inferred solely from the absence of in whole or in part, a national, ethnic, racial or
governmental or organizational action. Under this religious group. Yet, customary international law,
particular Article, which the literature considers substantiated by the Nuremberg Charter, and
highly problematic in terms of its internal the Rome Statute did not refer to the intent of
consistency, absence of action is generally the perpetrator in the context of crimes against
understood to mean acquiescence or consent.123 humanity. The elaboration of the Rome Statute
suggests that such a requirement would lead a
Under the Rome Statute, the perpetrator must burden to prove a perpetrator’s subjective motive
be aware of the context (chapeau) of the ‘attack’. and was thus left out of the definition of the crime
Or, the fact that the crime, “by its nature and against humanity. In fact, in its judgment in the
consequences”, 124
is part of the attack involving Tadić case, the ICTY held that discriminatory
the elements required under the Rome Statute intent is required only with respect to the
must be known by the perpetrator. 125
As to the crime of “persecution” and it did not constitute
element of knowledge, the Statute provides the mental element of other crimes against
that “‘knowledge’ means awareness that a humanity.127 Therefore, regulations that require a
circumstance exists or a consequence will occur discriminatory intent for a crime against humanity
to crystallize contradict the explicit provision
122 Undoubtedly, deliberation is used here to refer to individuals
of the Rome Statute as well as customary
acting on behalf of the state, not to the state which is a legal international law. It is generally accepted in
personality and does not carry criminal responsibility under
customary international law that the intent of the
international criminal law.
perpetrator, whether personal or discriminatory,
123 Ambos, Kai, ‘Crimes Against Humanity and the International is of no importance.128
Criminal Court’, in Sadat, Leila, Forging Convention for Crimes
Against Humanity, Cambridge University Press, Cambridge, 2011,
pp. 279-304, p. 286.
Finally, the element of crimes against humanity
which requires the perpetration of a widespread
124 Kunarac (IT-96-23/1-A), 12 June 2002, p. 99, See also
DeGuzmann, Margaret, ‘Crimes Against Humanity’, in Research
Handbook on International Criminal Law in Brown, Bartram, 126 See Özgenç, under the heading ‘amaç veya saik’ (‘intent or
Edward Elgar Publishing, Northampton, 2011, p.17, pp. 62-113. reason’), pp. 274-275.
125 Blaskić (IT-95-14-T), 3 March 2000, § 244-247, Kunarac et 127 Tadić (IT- 94-1-A), § 284-288.
al. (IT-96-23/1-A), 12 June 2002, § 102, Tadić (IT-94-1-A), 15 June
1999, § 271. 128 Ambos, 2011, p. 292.
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THE CRIME OF ENFORCED DISAPPEARANCE crimes are now being adjudicated in the trials of
IN TURKEY former NSC members Kenan Evren and Tahsin
Şahinkaya.) The second era was the 1990s when
Aside from important and tragic cases such as enforced disappearances and unsolved murders
that of Sabahattin Ali a few decades earlier, it is were practiced during the state of emergency,
mainly in the 1980s that enforced disappearance, and acquired a widespread and systematic
as a Cold War concept, crept onto the public character. Building on the discussion about the
agenda in Turkey. History suggests two eras requirement concerning context (chapeau), this
in which the crime of enforced disappearance section of the article will cover the elements of
was probably committed in Turkey in a way the act of enforced disappearance in the latter
that would satisfy the elements of a crime era and the conditions of investigation and
against humanity, e.g. as part of a widespread prosecution of perpetrators of the act. Thus, it is
or systematic attack and within the frame of first necessary to identify the broad contours of
a “state policy” as defined under the Rome the context from which enforced disappearances
Statute. The first era is the martial law regime sprang up in the 1990s.
declared immediately after the military coup on
12 September 1980, when acts such as murder, Enforced disappearances surged dramatically
torture, and persecution were perpetrated in the 1990s, an era marked by ongoing armed
as part of the attack against the civilian conflict. Some commentators referred to the
population. 132
This era was widely condemned conflict as “low-intensity warfare” in some
by the international community133 and led to places where the state of emergency was in
the suspension of relations between Turkey and effect, and as “irregular warfare” 136 as far as
the Council of Europe. (It should be noted that, parties actively involved in the conflict were
following the abrogation of temporary Article 15 concerned.
of the 1982 Constitution which granted immunity
from criminal prosecution134 to members of the The concept of “armed conflict” was first
Nationality Security Council,135 some of these used in place of “war” in the 1949 Geneva
Conventions.137 Common Article 2 of the four
132 Gökdemir, Orhan, Faili Meçhul Cinayetler Tarihi (A History
of Unsolved Murders), 3rd Ed., Destek Yayınevi, 2011, Mavioğlu,
Conventions, to which Turkey is a party, defined
Ertuğrul/Şık, Ahmet, Kırk Katır Kırk Satır, Kontrgerilla ve “international armed conflict” and specified
Ergenekon’u Anlama Kılavuzu (Between a Rock and a Hard Place: A
the types of conflicts that are considered to
Guide to Understanding the Counterguerrilla and Ergenekon), Vol. 1,
İthaki, İstanbul, 2011, Yalçın, Soner, Binbaşı Ersever’in İtirafları (The
fall under the scope of that definition. Common
Confessions of Major Cem Ersever), Doğan Kitap, İstanbul, 2011. Article 3 established that any violations defined
in the Conventions, when committed in case of
133 On the applications of Denmark, France, the Netherlands,
Norway and Sweden, see European Commission of Human Rights:
armed conflict not of an international character,
Report on the Applications of Denmark, France, Netherlands, will be considered grave breaches of the laws of
Norway and Sweden Against Turkey and the Conclusion of A
Friendly Settlement, International Legal Materials, Vol. 25, Issue
2, 1986, pp. 308-318. See Tanör, Bülent, Türkiye’nin İnsan Hakları 136 Major Cem Ersever, who was among the important names
Sorunu (Turkey’s Human Rights Problem), 3rd Ed., BDS Yayınları, in the organization widely known as the ‘deep state’ in Turkey
İstanbul, 1994, Mavioğlu, Ertuğrul, Bir 12 Eylül Hesaplaşması-I (A and was himself killed in an unsolved murder, used the phrase
Reckoning With 12 September-I), 4th Ed., İthaki Yayınları, İstanbul, “irregular warfare”, Yalçın, p. 53.
2006 and Bir 12 Eylül Hesaplaşması II (A Reckoning With 12
September-II), İthaki Yayınları, İstanbul, 2006, by the same author. 137 The original texts of the 1949 Geneval Conventions, Protocol
Additional to the Geneva Conventions of 12 August 1949, and
134 Immunity from criminal prosecution covered the period relating to the Protection of Victims of International Armed
between the first general election after 12 September 1980 until Conflicts (Protocol 1) and Protocol Additional to the Geneva
the establishment of the Office of the Speaker of the TBMM. Conventions of 12 August 1949, and relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), 8
135 See, for instance, the story ’12 Eylül duruşması başladı’ (`12 June 1977, are available at http://www.icrc.org/eng/war-and-law/
September trial begins`) in Milliyet newspaper dated 20 November treaties-customary-law/geneva-conventions/index.jsp. (March
2012, accessible at www.milliyet.com.tr (February 2013). 2013).
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perpetrated in the state of emergency region as a whole, it is apparent that a large number
given their “widespread” and “systematic” of the acts of enforced disappearance in the
nature. 1990s were committed by members of JİTEM
(Gendarmerie Intelligence and Anti-Terror
As noted above, the most obvious and relevant Unit),147 an organization that came into being
sign that enforced disappearance was inside the army. The denial, or only partial
perpetrated in a widespread or systematic admission, of its existence and position within
manner and as part of a state policy is the the Turkish Armed Forces since the 1990s and
similar course followed by the disappearances its eventual connections with other security
in custody in the state of emergency region, and and intelligence units of the state explains why
the available strong evidence that perpetrators effective investigations cannot be conducted
were the same throughout the region. As in Turkey with regard to the crime of enforced
reported by human rights organizations, disappearance, as will be reiterated below.
discussed in the reports of the commissions
of the Prime Ministry and the TBMM (Grand The first mention of the JİTEM organization
National Assembly of Turkey), 143
disclosed by is in the Susurluk Report drawn up by Kutlu
the perpetrators themselves, and reflected Savaş, Chair of the Inspection Board of the
in the indictments of various recent trials, in Prime Ministry (the “Commission Report”).148 In
nearly all cases of enforced disappearance, the the Report, JİTEM is said to have arisen out of
victim was previously apprehended and taken necessity. Over time, however, temporary village
into custody in broad daylight by persons known guards and “informants” who later enjoyed
to the local public, and either no information relief under Repentance Law No. 3419 joined the
or false information was given on the fate of organization, and thereafter JİTEM members
the victim, and relatives of the victims who resorted to criminal activity.
attempted to instigate the prosecution of those
responsible were openly or implicitly threatened. The following statements in the Susurluk report are
Furthermore, based on a visit to Turkey in 1998, a particularly noteworthy, given how they are taken to
United Nations Working Group reported that acts represent the operational approach of JİTEM:
of enforced disappearance followed a pattern.144
The present report by the Truth Justice Memory 147 Ibid., pp. 81-140.
149 Ibid.
152 Mavioğlu/Şık, p. 98.
150 Report of the TBMM Investigative Commission, http://www.
tbmm.gov.tr/sirasayi/donem22/yil01/ss1153.pdf (February 2013). 153 See http://tr.wikisource.org/wiki/2._Ergenekon_İddianamesi
(February 2013).
151 For the interview with former “informant” Abdulkadir Aygan,
see Evrensel, 4 October 2008, For Abdulkadir Aygan’s interview 154 Ibid, under the subheading titled defenses.
with journalist Neşe Düzel, where he disclosed important
information, see Taraf, 27 January 2009, http://www.taraf.com. 155 Doğan, Arif, ‘JİTEM’i Ben Kurdum’ (I Established JİTEM),
tr/nese-duzel/makale-abdulkadir-aygan-olmedi-hastaneden-alip- (prepared for publication by Cüneyt Dalgakıran) Timaş Yayınları,
yine.htm http://www.evrensel.net/v2/haber.php?haber_id=38255. İstanbul, 2011.
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with him, Colonel Arif Doğan offered highly be addressed.156 The seized JİTEM documents
detailed information on how JİTEM was reveal both the operational logic and targeted
structured. In fact, the indictment relied on operations of the organization. The indictment
the documents retrieved as a result of the emphasizes in various ways the importance
investigation and searches conducted in attributed to the creation of “psychological
relation to the colonel to describe in detail how panic” among the local public, and even though
JİTEM, the organization whose activities the it does not overtly express it, the emphasis on
Report of the TBMM Commission had no doubt cooperation with organizations such as Hizbullah
about, came into being. Documents annexed in sections of the report is remarkable.157
to the indictment which were marked “highly The following comments by JİTEM members
classified” or “classified” describe the cancelled represent the character of the organization:
plan to set up Gendarmerie Intelligence Group
Commands and 24 affiliated Gendarmerie “Let us not forget that the people of the region
Intelligence teams within the Gendarmerie favor just and authoritarian attitudes, which
General Command in the provinces of brings up the issue of giving a fair trial to the
Ankara, İzmir, Diyarbakır, Van, Adana, criminal and immediate execution. If this is
Erzurum, İstanbul and Samsun. The affiliated carried out in a way that does not create state
teams were to report to the Gendarmerie terror, one of the advantages the terrorist
Intelligence Groups Command “for the purpose organization PKK has in the region will be
of neutralizing the terrorist activities in the rural counter-balanced.” (Emphasis added.)
areas”. Also to be established were two “group
commands” based in the provinces of Ankara In addition, the indictment cited “immediate
and Diyarbakır. The documents which form the execution” as exemplary with reference to the
basis for the indictment lead to the conclusion crime of voluntary manslaughter and stressed
that over time, these group commands evolved that the arms used in JİTEM operations were
into the Gendarmerie Intelligence not registered. It also emphasized that some
and Anti-Terror Groups Command. The individuals named in the indictment who are
resulting organization was set up at the alleged to be part of the JİTEM organization stayed
initiative of a number of ranking officers in touch on an ongoing basis. It added that the
including Colonel Arif Doğan “who knew successor to Arif Doğan is Brigadier General Veli
the region well and conducted intelligence Küçük. In fact, JİTEM also occupies a large space
activities”. Its “initial purpose” was in that part of the first Ergenekon indictment which
“making up for the deficiencies in lists the crimes Veli Küçük is charged with.158
intelligence”, but it was later given the nod
by superior authorities and provided with The most recent development concerning the
permanent staff. acknowledgment of JİTEM’s existence by relevant
entities is the letter attesting to the fact of JİTEM,
Several of the JİTEM-related documents
which were seized reveal that many pieces 156 Informing the TBMM Commission on Susurluk formed after
the Susurluk scandal, former Gendarmerie General Commander
of information relating to “internal security
Teoman Koman said, “no organization, whether legal or illegal,
operations going on the Southeast region” called JİTEM was established within the gendarmerie, it does not
were included in operational reports. These exist. Yet, outside the gendarmerie, there is a group of people doing
unlawful things using that name”. See Hürriyet, 20 November
reports provide information on the existence of
2005, http://www.hurriyet.com.tr/pazar/3542856.asp
JİTEM and the importance of rendering it more
effective in matters of intelligence, interrogation 157 pp. 29-30 under ‘Secret Activities’ in folder (9) in pouch (1),
also see Mavioğlu/Şık, pp. 90-91.
and operations so that the problems of
coordination and the rivalry between domestic 158 http://tr.wikisource.org/wiki/Ergenekon_iddianamesi/
security and intelligence bodies in the region can (February 2013).
159 See, for instance, Radikal ‘Malumun İlanı: JİTEM var’ (‘A 162 Petty Officer Ahmet Öznalbant, an accused in the Temizöz
Public Secret: JİTEM Exists’), 10 July 2011, accessible at http:// case, said the following about the “execution squads”: “A death
www.radikal.com.tr, also see Birgün daily’s ‘JİTEM ölmedi, kılık squad was formed. Along with the squad, some 6-7 people, in
değiştirdi’ (‘JİTEM not gone, remains in disguise’), 13 July 2011, plain clothes, used to work in the interrogation room of our station
accessible at http://www.birgun.net/ (February 2013). and take testimony. At the time I worked there, there were several
unsolved murders. It was that squad that handled the detention
160 In his testimony to the Susurluk Commission, Eyüp Aşık said procedures, they would not give us any information” See Radikal,
“no mob or mafia that does not rest on the state or receive support 22 February 2013 story ‘JİTEM’in infaz mangasının amiri ‘Yavuz’
from a state official can stand on its feet even for a single day”, ortaya çıktı’ (‘Head of JİTEM’s execution squad, ‘Yavuz’, revealed’),
cited in, Gökdemir, p. 215, Doğan, pp. 33-38. accessible at www.radikal.com.tr (February 2013).
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as was frequently the case in Latin America. of Emergency Law. Accordingly, as discussed in
Even the existing indictments consider JİTEM the Susurluk Report of the TBMM and Report of
an organization163 and observe that it followed the Prime Ministry (drawn up by Kutlu Savaş), the
military discipline and had a continuing character. entities comprising the National Security Council
In other words, its actions fit the definition under of the time cannot be considered to have had no
the Turkish Criminal Code of the crime of setting information on the existence and activities of
up an organization with criminal intent. JİTEM. There is thus no doubt that the crimes
committed by JİTEM were perpetrated as part
Even assuming, hypothetically, that JİTEM of a policy and in a systematic manner. The
perpetrated the unsolved murders and enforced Rome Statute in fact explicitly refers to a state
disappearances as an unlawful organization or organizational policy. The Elements of Crimes
acting independently of other units of the state document annexed to the Rome Statute provides
and outside the approach taken by the state that government authorities’ deliberate failure to
in regards to the Kurdish question at the time, take action, or the encouragement of a crime as
such an assumption shall not preclude the such, is an element demonstrating the existence
commission of crimes against humanity. In of systematic plan.
point of fact, this assumption (which runs highly
contrary to the ordinary course of events) can go The contents of the files referenced above
no further than being purely hypothetical idea. It as well as statements by witnesses and
is impossible to grant that such an organization “informants” lead to the conclusions that JİTEM
could have acted independently in an entity such members created false records to destroy
as the army where the hierarchy, duties and evidence relating to crimes they committed,
responsibilities are clearly established, or that it complaints lodged by the local public were not
could have acted autonomously or as a parallel taken into consideration, and witnesses were
structure for such a long period of time in an not heard in investigations. Allegations against
area centrally administered by the governor of Field Officer Cemal Temizöz, former head of the
the state of emergency region under the State Cizre Gendarmerie Command, are particularly
noteworthy in this context. According to the
163 The indictment includes the following statements: “The
indictment which constitutes the ground for
Court of Appeals for the 8 Criminal Circuit observed as follows:
th
the ongoing trial before Diyarbakır 6th High
“Aside from constituting a crime under Article 313 of the Turkish
Criminal Court (file no: 2009/470 E.), one of the
Criminal Code, the organization and the powers exercised violate
Article 6 of the Constitution which stipulates “No one or agency
most formidable obstacles resulting in unlawful
shall exercise any state authority which does not emanate from non-competence decisions or obstructions
the Constitution; such an exercise may find no defense in a state
with respect to investigations into the crimes
governed by the rule of law; setting up an unlawful organization,
exercising authority like the legitimate forces of the state, and
perpetrated in Cizre is that Cemal Temizöz
creating so-called laws based on their own power and rules are has himself led, in his capacity as the head of
practices that undo the concept of a state governed by the rule
the gendarmerie command, the investigations
of law; under such conditions a system will form in which might
makes right and a level of unlawfulness that has no bounds will
into the many crimes that he is actually
prevail, resulting in a citizen-state relationship characterized by accused, based on relevant strong evidence,
fear and insecurity, rather than by rules of law; such would amount
of having instigated. In fact, there is a strong
to an absolute violation of the law that goes beyond violating the
Constitution and the laws, as well as lead to the total elimination of
likelihood that the evidence was tampered with
the state governed by rule of law; considering all of the foregoing, – in investigations on disappeared individuals,
the Court found that the accuseds’ actions fit the provisions of
signatures on written records do not match, it is
Article 313 of the Turkish Criminal Code”, these observations of
the Court of Appeals for the 8th Criminal Circuit as well as the
not clear who drafted the records, and there are
observations above indicate that the organization set up by the differences of content between photocopies and
suspects in the present case is substantially similar in terms of
original documents. One of most tragic examples
both the entire organizational approach and the methods used”
See http://tr.wikisource.org/wiki/2._Ergenekon_İddianamesi
of evidence tampering concerns the remains
(February 2013). thought to be of the persons who could not be
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Criminal Code defines crime against humanity international law”.166 Thus, the crime of enforced
as a crime that must be committed with a disappearance is considered in the jurisprudence
specific intent. Under Article 77 of the Code, within the framework of the deprivation of
the crime must be committed for “political, liberty.167
philosophical, racial or religious reasons”.
There is little room for doubt that enforced THE CRIME OF ENFORCED DISAPPEARANCE
disappearances were perpetrated in Turkey in AND THE PROBLEM OF STATUTE OF
connection with the national security policy of LIMITATIONS
the era. The lack of reference in Article 77 to
the terms “ethnic” or “national” does not make a Again, as discussed above, declarations
difference, since victims were subjected to acts and conventions on enforced disappearance
of enforced disappearance not because of their emphasize the continuing nature of the crime.
ethnic or religious identities, but because they In this context, Article 17 of the 1992 UN
were members and supporters of successive Declaration on the Protection of All Persons from
political parties with a focus on ethnic identity Enforced Disappearance provides that enforced
which for the most part are not represented in disappearance shall be considered to continue
the TBMM. as long as the victim’s fate is concealed or the
facts about the victim remain unclarified. The
Yet another issue that must be discussed in same article further provides, in reference to
regards to Article 77 of Turkish Criminal Code Article 2 of the International Covenant on Civil
is that despite the widespread nature of the and Political Rights which regulates the right to
crime of enforced disappearance in Turkey, the an ‘effective remedy’, that when the remedies
Article does not offer a definition of enforced provided in the ICCPR are not available, the
disappearance consistent with that provided in statute of limitations shall be suspended.
international law. As stated above, under the
Rome Statute of the International Criminal Court, (It is important to note that, in contrast, Article
enforced disappearance involves the arrest, 17 of the Declaration does provide rules on
detention (Entzug der Freiheit) or abduction of statutory limitations in regards to enforced
the person and the refusal to provide information disappearances that are not considered crimes
on the whereabouts or fate of the person. With against humanity. This is confirmed in the
respect to persons whose fates are not known third paragraph of the Article, which provides
yet, the applicable paragraph of Article 77 is 1(d) “Statutes of limitations, where they exist,
which discusses the crime of depriving a person relating to acts of enforced disappearance shall
of his or her liberty. A similar interpretation is be substantial and commensurate with the
also the case in comparative law systems that extreme seriousness of the offence”. )
do not explicitly define the crime of enforced
disappearance as a crime against humanity. This principle is also adopted in the International
For instance, the Belgian Act Concerning the Convention for the Protection of All Persons
Punishment of Grave Violations of International from Enforced Disappearance. The Convention
Humanitarian Law does not provide for the provides that statutory limitations shall not
crime of enforced disappearance, yet one of the apply to enforced disappearances which
acts involved in the crime, namely deprivation constitute crimes against humanity (Article 5),
of liberty, is regulated under Article 2(5) and statutory limitations concerning enforced
thereof, which relates to the method by which
the crime against humanity is perpetrated and 166 Smis, Stefaan/Van der Borght, ‘Belgium: Act Concerning the
Punishment of Grave Breaches of International Humanitarian Law’,
specifically addresses “grave violation in the
International Legal Materials, Vol. 38, Issue 4, 1999, pp. 918-925.
form of imprisonment or deprivation of liberty in
contravention of the fundamental principles of 167 Andreu-Guzmán, p. 73.
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than the penalty applicable at the time when the instruments state that international law, in
offence was committed. addition to criminal law, is a source of criminal
legislation. Article 15(2) of the International
The provisions of the above paragraph shall also Covenant on Civil and Political Rights stipulates
apply to the statute of limitations on offences and that any act which did not constitute a crime,
penalties and on the results of conviction.” under national or international law, at the time it
was committed will be considered criminal if it is
Yet, as emphasized above, in the case of the was criminal according to the general principles
continuing crime of depriving a person of his of law. Crimes against humanity, like war crimes,
liberty, the crime will cease only when its are recognized and defined under international
continuity ends. Thus, the more favorable law. A lack of definition of the crime against
provisions of law may not apply in the case humanity in general principles of law does not
of enforced disappearances which constitute bear upon the nature of the act as a criminal one.
crimes against humanity. As a matter of fact, Article 27 of the 1969 Vienna
Convention on the Law of Treaties provides that a
It is important to stress that the act of enforced state may not invoke the provisions of its internal
disappearance will not cease to be a crime law as justification for its failure to perform its
against humanity once the fate of the victim obligations under a treaty.
is known. The UN Convention and Resolution
No. 1468 of the Parliamentary Assembly of After setting forth that treaties duly put into
the Council of Europe, which were discussed effect in accordance with the hierarchy of norms
above, establish that statutory limitations shall bear the force of law, Article 90/5 of the
shall not apply to crimes against humanity. 1982 Constitution of the Republic of Turkey
These instruments have also been adopted in provides as follows in its last sentence:172
customary law and incorporated into the Rome
Statute of International Criminal Court (Article “In the case of a conflict between international
29). Even though there were no domestic law agreements in the area of fundamental rights
provisions on the definition of crimes against and freedoms duly put into effect and the
humanity or upon statutory limitations as domestic laws due to differences in provisions on
regards those crimes at the time they were the same matter, the provisions of international
committed in Turkey, these crimes have been agreements shall prevail.”
defined under customary international law,
general principles of law and case law. This will Article 7 of the European Convention on Human
be binding upon not only international criminal Rights and Article 15 of the International
courts and human rights courts, but also the Covenant on Civil and Political Rights first
national courts. As expressed above, under identify international law as a basis of the
Article 7/1 of the European Convention on Human legality principle in their respective first
Rights and Article 15/1 of the International paragraphs, and then set forth, in their respective
Covenant on Civil and Political Rights, second paragraphs, the exception and the
international law is one of the sources of positive criterion regarding general principles of law in
criminal law. the context of the legality principle. These two
Articles are binding a fortiori upon Turkish law.
The situation is quite clear when it comes to
Turkish criminal law. Turkey is a party to both In addition, Article 18 of the 1992 UN Declaration
the European Convention on Human Rights and provides that special amnesty provisions or
the International Covenant on Civil and Political
172 For a critical perspective on this topic, see Gözler, Kemal, Türk
Rights. Referring to the legality principle in Anayasa Hukuku Dersleri (Lectures on Turkish Consitutional Law),
regards to crimes and punishments, both Ekin Kitabevi, Bursa, 2012, pp. 279-281.
173 1994 Report of the UN Working Group (E/CN.4/1994/26), 2006 175 Tezcan, Durmuş/ Erdem, Mustafa Ruhan/ Önok, Rıfat, Murat,
Report of the UN Working Group E/CN.4/2006/56, p. 16, accessible Uluslararası Ceza Hukuku (International Criminal Law), Seçkin,
at www.ohrc.org/EN/HRBodies/CED (February 2013). Ankara, 2009, p. 559.
174 2006 Report of the UN Working Group E/CN.4/2006/56, p. 18, 176 Inter-American Convention, Article I(a) and UN Convention
accessible at www.ohrc.org/EN/HRBodies/CED (February 2013). (1(2)).
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jurisprudence, based on human rights legislation, WORKS CITED
has developed on enforced disappearances.
Alacakaptan, Uğur, İngiliz Ceza Hukukunda Suç ve Cezaların
As discussed in a different part of this study, Kanuniliği Prensibi (The Princple of the Legality of Crimes and
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came into being in Turkey with respect to these the Problem of “Missing Persons”), Ankara Üniversitesi Siyasal
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of human rights law is reflected in the ECtHR
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Persons, Time and the Law), Diyalog, pp. 82-87, 2009, http://e-
domestic legal mechanisms have acted equally
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sensitively. Although the crime was perpetrated (February 2013).
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Cüneyt Dalgakıran) Timaş Yayınları, İstanbul, 2011.
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Elçi, Tahir, ‘Türkiye’de Gözaltında Kayıplar’ (Disappearances in Prosecution of the Axis War Criminals’, Judge Advocate Journal,
Detention in Turkey), Diyalog, 2009, http://e-kutuphane.ihop.org. Vol. 2, Issue 3, 1945, pp. 8-12.
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Constitute a Precedent in International Law’, International Law
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Sweden Against Turkey and the Conclusion of A Friendly Kok, Ruth, Statutory Limitations in International Criminal Law,
Settlement, International Legal Materials, Vol. 25, Issue 2, 1986, Asser Press, Hague, 2007.
T H E R E C O G N I T I O N O F E N F O R C E D D I S A P P E A R A N C E A S A C R I M E U N D E R D O M E S T I C L AW A N D
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Kreß, Claus, Nulla Poena, Nullum Crimen Sine Lege in Max Criminal Law: General Provisions), 7th Ed., Seçkin, Ankara, 2012.
Planck Encyclopaedia of Public International Law, 2010, http://
www.uni-koeln.de/jur-fak/kress/NullumCrimen24082010.pdf, Parenti, Pablo F., ‘The Prosecution of International Crimes in
pp. 67-72. Argentina’, International Criminal Law Review, Vol. 10 Issue 4,
2010, pp. 491-507.
Kreß, Claus, International Lawyer, ‘Versailles-Nuremberg-The
Hague: Germany and International Criminal Law’, Vol. 6, Issue 4, Priban, Jiri, ‘Retroactivity and Constitutional Justice in Central
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Hükümler (Turkish Criminal Law: General Provisions), Seçkin,
Ankara, 2012. Robertson, David, A, ‘Problem of Their Own, Solution of Their
Own: CEE. Jurisdiction and the Problems of Lustration and
Kubink, Michal, Strafen und ihre Alternativen im zeitlichen Retroactivity’, in Sadurski, Wojciech/Czarnota, Adam/Kyrgier,
Wandel, Duncker & Humblot, Berlin, 2002. Martin (ed,) Spreading Democracy and the Rule of Law, Springer,
Berlin, 2010, pp. 73-96
Lafontaine, Fannie, ‘Limitation for Enforced Disappearances: The
Sandoval Case before the Supreme Court of Chile’, Journal of Rubin, Alfred ‘An International Criminal Tribunal for Former
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pp. 7-17.
Lasok, D., The Eichmann Trial, International and Comparative
Law Quarterly, Vol. 11, Issue 2, 1962, pp. 355-374. Sadat, Leila Nadya, ‘The Nuremberg Paradox’, Washington
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Turhan, Faruk, ‘Avrupa İnsan Hakları Mahkemesi (AİHM)
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ENFORCED DISAPPEARANCE
CASES FROM THE
PERSPECTIVE OF THE
EUROPEAN COURT OF
HUMAN RIGHTS
İLKEM ALTINTAŞ
2 Ibid., § 30
ENFORCED DISAPPE AR ANCE CASES FROM THE PERSPECTIVE OF THE EUROPE AN COURT OF
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HUMAN RIGHTS
Turkish government argued that Nesibe Haran Applicants are required to exhaust only those
did not have a civil-law marriage to the person domestic remedies that were available at the time
alleged to have been forcibly disappeared, İhsan the events took place, can provide a resolution of
Haran, and therefore she could not be considered their complaints, and offer a reasonable chance of
a victim. The Court, however, emphasized that success.9
Nesibe Haran had three children with İhsan
Haran and decided that she was a victim in her A respondent state alleging that domestic
capacity as İhsan Haran’s partner, even though remedies have not been exhausted has the burden
she as the applicant was not married to him to prove that the applicant has not used a remedy
under civil law. 4
that is both available and effective.10
RULE ON THE EXHAUSTION OF DOMESTIC Once the respondent state satisfies the burden
REMEDIES to prove that the applicant has access to an
available and effective remedy, the applicant will
Paragraph 1 of Article 35 of the Convention have to demonstrate the following:
stipulates that an application may be lodged with ■ The remedy has in fact already been exhausted;
the Court only after the exhaustion of domestic ■ Or it is inadequate or ineffective for the specific
remedies and within six months from the date on circumstances of the incident for a certain reason,
which a final decision was issued under domestic such as an excessive delay in an investigation;
law. ■ Or there are special circumstances releasing
the applicant from the obligation to exhaust the
As a general rule, all domestic remedies in domestic remedy.11
Turkey must have been exhausted before
applying to the Court. The reason there is a rule The special circumstances mentioned above
stipulating the exhaustion of domestic remedies might arise when domestic authorities remain
is to allow the domestic authorities and primarily completely passive, as in when they do not launch
the courts to prevent or correct the alleged an investigation vis-à-vis a serious allegation
violations of the Convention. In its jurisprudence,
5
brought against state officials on grounds of
the Court stressed that this rule must be misconduct in office or causing damage. In
implemented in a flexible way. 6
these circumstances, it can be argued that the
burden of proof transfers one more time, and
Domestic remedies need to be sufficiently therefore, it would now be the respondent state
available not only in theory but also in practice.7 that has the burden to prove the course of action
For instance, a domestic remedy that is taken toward the gravity and seriousness of the
contemplated under the law but has never complained incidents. 12 For example, in Kurt v.
been implemented is not in fact a remedy Turkey, which is the first enforced disappearance
that needs to be exhausted, because it has no case against Turkey, the Court held that the
practical use. 8
reluctance of the competent authorities in regards
to the complaints the applicant filed qualifies
4 Nesibe Haran v. Turkey, judgment dated 6 January 2005,
Application no: 28299/95, §§ 58-59
9 Ibid., § 50. For an illustrative judgment, see Moreira Barbosa v.
5 Practical Guide on Admissibility Criteria, § 47 Portugal, judgment dated 29 April 2004, Application no: 23763/94
6 Simmons, Alan, European Human Rights: Taking a Case Under the 10 Ibid., § 56. For an illustrative judgment, see Akdivar v. Turkey,
Convention, p. 26 judgment dated 16 September 1996, Application no: 21893/93, §
68
7 Practical Guide on Admissibility Criteria, § 54
11 Ibid., § 59, Also see Akdivar v. Turkey, § 68
8 See Tanrıkulu v. Turkey, Grand Chamber judgment dated 8 July
1999, Application no: 23763/94, § 79 12 Akdivar v. Turkey, § 68
The purpose of the six-month rule is to promote Thus, once they realize that state authorities will
security of the law, ensure that cases raising
issues under the Convention are examined within 15 Practical Guide on Admissibility Criteria, § 66
a reasonable time, and protect the authorities and
16 Ibid., § 71
other persons concerned from being in a situation
17 Varnava and others v. Turkey, Grand Chamber judgment
13 Kurt v. Turkey, judgment dated 25 May 1998, Application no: dated 18 September 2009, Application no: 16064/90, 16065/90,
15/1997/799/1002, § 83 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90
and 16073/90, § 157
14 http://www.echr.coe.int/Documents/Stats_analysis_2012_FRA.
pdf, p. 59 18 Ibid., § 165
ENFORCED DISAPPE AR ANCE CASES FROM THE PERSPECTIVE OF THE EUROPE AN COURT OF
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not initiate an investigation in relation to a claim of the six-month rule and dismissed the Turkish
enforced disappearance or that the investigation Government’s initial objection.20
initiated has been ineffective; applicants should
lodge their applications with the Court promptly. In addition, in the Bozkır and others v. Turkey case,
For example, the Court dismissed the Akdoğan applicants lodged an application with the Court
and others v. Turkey and Suphi Polat v. Turkey eight years after their relatives were disappeared
applications including claims of enforced on 26 August 1996. In its judgment dated 26
disappearance without discussing the merits or February 2013, the Court observed that the
serving notice to the Turkish government, on the domestic law investigation continued actively for
grounds the applicants ought to have become the period of eight years and applicants followed
aware of the inefficiency of the domestic law up with the investigation, and dismissed the
investigation before seven years had elapsed Turkish Government’s initial objection that the
since the date on which the events took place.19 applicants had not complied with the six-month
However, in the Er and others v. Turkey case, rule.21
applicants lodged their application with the Court
10 years after Ahmet Er was forcibly disappeared. When long periods of time have elapsed after
The Court dismissed the Turkish Government’s the enforced disappearance, for purposes of
initial objection that applicants failed to comply the six-month rule, the defense before the
with the six-month rule. On 14 July 1995, Ahmet Court must emphasize that the domestic law
Er was detained by soldiers near the town investigation remained in progress and applicants
of Çukurca in the province of Hakkari and he followed up with it, and that they lodged their
was not heard from again. After his relatives application promptly once they became aware
informed the Çukurca Public Prosecutor of the of the inefficiency of the investigation, providing
incident, an investigation was initiated promptly supporting information and documents to that
and continued actively until 16 February 1996. effect.
The Çukurca Public Prosecutor decided on 10
December 2003 that he lacked jurisdiction and
forwarded the file to the military prosecutor. The
military prosecutor began a new investigation
into the incident on 14 January 2004. The
applicants lodged their application with the
Court on 16 May 2004. In its 2012 judgment, the
Court considered that an investigation, albeit a
sporadic one, was being conducted and applicants
followed up with the investigation by submitting
information as expected of them. In addition, the
delivery by the Çukurca Public Prosecutor of the
file to the military prosecutor in 2003 and the
subsequent initiation of an investigation by the
military prosecutor could have been properly
regarded as promising new developments by the
applicants. For these reasons, the Court found
that the applicants’ wait for results from the
two investigations did not amount to a failure to 20 Er and others v. Turkey, judgment dated 31 July 2012,
show the requisite diligence in complying with Application no: 23016/04, §§ 45-61
19 Aydoğan and others v. Turkey application, ECtHR letter of 4 July 21 Bozkır and others v. Turkey, 26 February 2013, Application no:
2006, Application no: 987/02; Polat v. Turkey application, ECtHR 24589/04, § 49. This judgment will become final on 26 May 2013,
letter of 28 November 2005, Application no: 32389/03 unless one of the parties brings it before the Grand Chamber.
ENFORCED DISAPPE AR ANCE CASES FROM THE PERSPECTIVE OF THE EUROPE AN COURT OF
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elapsed since the person was placed in detention, during this period permitted members of the
although not decisive in itself, is a relevant factor security forces to escape accountability for their
to be taken into account. It must be accepted actions.27
that the more time goes by without any news of
the detained person, the greater the likelihood In consideration of the foregoing, in cases where
that he or she has died. The passage of time may it has been established beyond a reasonable
therefore to some extent affect the weight to doubt that the forcibly disappeared person can
be attached to other elements of circumstantial be presumed to have died (presumption of death)
evidence before it can be concluded that the after being detained by security forces, the Court
person concerned is to be presumed dead. Issues held that the state was responsible for the death.
may therefore arise which go beyond a mere
irregular detention in violation of Article 5. Such State’s obligation to effectively investigate a
an interpretation is in keeping with the effective claim of enforced disappearance (Procedural
protection of the right to life as afforded by Article Violation of Article 2 in procedural terms)
2, which ranks as one of the most fundamental
provisions in the Convention.’25 The first sentence of Article 2 of the Convention
holds states responsible for the protection of
In light of this jurisprudence, the Court pays everyone’s right to life. The conduct of an effective
attention to the following matters before deciding investigation, in other words, the procedural
whether the state is responsible for the death of protection of the right to life is an obligation the
the victim alleged to be forcibly disappeared: Court established through its jurisprudence on
■ The period of time in which the victim was not the basis of this sentence. The Court has held that
heard from after being detained; states have an obligation to investigate claims of
■ The availability of credible evidence that the enforced disappearance effectively under Article 2.
victim was taken to a detention center which the
state is in charge of; for instance, the availability The Court’s jurisprudence on this matter is as
of eye witnesses; follows:
■ The unavailability of credible records showing
where the victim was held and of custody records; ‘The obligation to protect the right to life under
■ State authorities’ suspicion that the victim Article 2 of the Convention, read in conjunction
was involved in activities necessitating criminal with the State’s general duty under Article 1 of
prosecution; for instance, authorities suspecting the Convention to “secure to everyone within [its]
that the victim had connections to the PKK;26 jurisdiction the rights and freedoms defined in
■ The state’s failure to provide a satisfactory and [the] Convention”, requires by implication that
plausible explanation of the victim’s fate. there should be some form of effective official
investigation when individuals have been killed
In the enforced disappearance judgments it as a result of the use of force. However, the
rendered against Turkey, the Court observed that procedural obligation to conduct an effective
in the general context of the situation in south- investigation is not confined to cases that concern
east Turkey in 1993, it cannot be ruled out that intentional killings resulting from the use of
an unacknowledged detention of a disappeared force by agents of the State. This procedural
person would be life-threatening. The Court also obligation also applies to cases where a person
held that defects undermining the effectiveness has disappeared in circumstances which may be
of criminal law protection in the south-east region regarded as life-threatening.’28
25 See, inter alia, Taş v. Turkey, judgment dated 14 November 27 Taş v. Turkey, § 66
2000, Application no: 24396/94, §§ 63-65
28 Acar v. Turkey, Grand Chamber judgment dated 8 April 2004,
26 Simmons, p. 95 Application no: 26307/95, § 226
An effective investigation under Article 2 of the ■ When an applicant makes a claim of enforced
Convention involves a comprehensive, impartial disappearance, or upon becoming aware of such
and diligent examination of the circumstances a claim, the prosecutor must promptly initiate an
surrounding an incident of death or enforced investigation.
disappearance. ■ The prosecutor must act timely with respect
to searching and gathering evidence and taking
The investigation must be effective in the sense testimony from witnesses or complainants.
that it is capable of leading to the identification ■ The prosecutor must personally examine the
and punishment of those responsible. Even if no locations where the person is alleged to have
absolute result is achieved in terms of identifying been kept in custody and the custody records.
and punishing the responsible parties, the ■ In addition to the location where the
investigation, to be considered effective, must be disappeared person is alleged to have been
capable of achieving such a result.29 detained, the Prosecutor must also personally
examine other locations where he or she suspects
The investigation must be conducted by an the victim might have been held or locations he or
independent body in a process accessible to the she deems necessary as part of the investigation,
next-of-kin of the victim and complainants. For as well as other custody records.
instance, the Court deemed that investigations ■ The Prosecutor needs to conduct an
on security forces conducted by provincial investigation if he or she has suspicions about
administrative councils as per Law No. 4483 the accuracy of custody records or other official
were ineffective. As we know, Law No. 4483 documents.
(Concerning the Prosecution of Government ■ The Prosecutor must interrogate security
Employees and Other Public Officials) provides forces or, where necessary, their supervisors who
that the prosecution of security forces who are are or may be connected with the incident.
alleged to have committed crimes over the course ■ The Prosecutor must establish whether
of their administrative policing duties is subject security forces conducted any operations at
to permission for the investigation by the highest the time of the claimed disappearance or at the
ranking civilian authority in the organization in location where the disappeared person is alleged
which the forces are serving.30 The provincial or to have been detained.
district-level administrative councils that conduct ■ If there are witnesses who claim to have seen
a preliminary inquiry to establish whether the the forcibly disappeared person when he or she
investigation will be permitted are chaired by the was being detained or at the location where the
governor of the province or the district governor person was being held, the Prosecutor must take
of the district. The Court found that the councils testimony from such witnesses or other potential
may not be considered independent investigative witnesses.
bodies because applicants do not have access ■ Witnesses or potential witnesses must
to the administrative councils and the councils be asked whether or not they are aware of a
are composed of officials under the authority of detention even if they may not know the names
the civilian administrator who is in charge of the involved, rather than simply asking whether they
public official under investigation. 31
knew the person alleged to have been detained.
■ Investigation records must be kept in a
29 Osmanoğlu v. Turkey, § 88
complete manner.
■ The Prosecutor must not neglect the available
30 See Law No. 4483 Concerning the Prosecution of Government
evidence, and may not withhold a decision to
Employees and Other Public Officials, Article 3
initiate an investigation based on neglect of the
31 See, inter alia, Taş v. Turkey, § 71 evidence.
ENFORCED DISAPPE AR ANCE CASES FROM THE PERSPECTIVE OF THE EUROPE AN COURT OF
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c) The responsibilities of security forces The first enforced disappearance case where the
Court implemented the criterion in the judgment
■ Custody records must be kept diligently. on Osman v. United Kingdom is the case of
■ Custody records must include information on Mahmut Kaya v. Turkey.34 The case concerns
the identity of the suspect, date/hour/minute of the abduction, disappearance and murder of a
the detention and the release, the location where physician residing in Elazığ who was suspected
detention took place, the reason for the detention, of aiding and abetting the PKK in 1993. Observing
and the identity and office of the person who that state authorities considered him suspect
detained the suspect.32 because the victim treated wounded members
■ Capture and crime scene records must bear the of the PKK, and that he had previously received
signatures (no code names should be used) of the threats, and considering the general situation
security forces who apprehended the suspect and of Turkey’s south-east region in that period, the
who were on duty in the place of the incident. Court concluded that there has been a violation of
■ If the location of the detained suspect needs Article 2 because the Turkish Government failed
to be changed for any reason (hospitalization, to take reasonable measures to prevent a real
conducting an inquest, etc.), the time of each and immediate risk to the life of the victim.35 In
change as well as the names and offices of the Mahmut Kaya v. Turkey, the Court was unable to
security forces accompanying the suspect must establish beyond a reasonable doubt that state
be recorded. officials carried out the killing of the victim. There
was dispute between the respondent state and
State’s obligation to protect the life of the the applicants as to the circumstances of the
individual (Violation of the positive obligation case, and the European Commission of Human
under Article 2) Rights in office at the time heard witnesses in
two hearings. Due to the inconsistencies in the
The abovementioned obligation to protect the statements of eye witnesses and the inadequacy
right to life encompasses not only the obligation of the domestic law investigation, the Commission
to conduct an effective investigation but also the concluded that there was insufficient evidence to
state’s obligation to use preventive measures support a finding that the state was responsible
to protect individuals facing a risk of unlawful for the killing. While the Court accepted the facts
violence. as established by the Commission,36 it noted that
strong inferences could be drawn on the facts
In the judgment of Osman v. United Kingdom, the of this case that the perpetrators of the murder
Court introduced a criterion to establish whether were known to the authorities,37 and found that
a state obligation arises in this regard. A state’s the state violated its obligation to protect the right
obligation to protect the right to life arises when to life.
the authorities knew, or ought to have known at
the time, of the existence of a real and immediate In its 2008 judgment in the case of Osmanoğlu v.
risk to the life of an identified individual and failed Turkey, the Court was not able to determine that
to take measures within the scope of their powers the state was responsible for the disappearance
which, judged reasonably, might have been of the victim who went missing after he was
expected to avoid that risk.33 It is the applicant’s taken from his grocery store by two individuals
burden to prove such failure.
34 Vermeulen, p. 404
32 Vermeulen, Marthe Lot, Enforced Disappearance Determining
State Responsibility under the International Convention for the 35 Mahmut Kaya v. Turkey, judgment dated 28 March 2000,
Protection of All Persons from Enforced Disappearance, Intersentia, Application no: 22535/93, § 101
2012, p. 292
36 Ibid., § 76
33 Osman v. United Kingdom, judgment dated 28 October 1998,
Application no: 87/1997/871/1083, § 116 37 Ibid., § 87
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On 22 April 2003, the Silopi Public Prosecutor PROHIBITION OF TORTURE – ARTICLE 3 OF
sent the case file to the public prosecutor at the THE CONVENTION
Diyarbakır State Security Court.
Article 3 of the Convention provides:
A delegation composed of three judges from the “No one shall be subjected to torture or to
ECtHR arrived in Ankara to hear evidence from inhuman or degrading treatment or punishment.”
witnesses between 28 and 30 April 2003.
In an enforced disappearance case, state
On 9 February 2004, the prosecutor at the responsibility under Article 3 is examined in two
Diyarbakır State Security Court decided respects;
that there was no case to answer for lack of 1) With respect to the forcibly disappeared person,
evidence. and
2) With respect to the applicant.
On 3 May 2004, applicant’s objection to the
decision that there was no case to answer was The distinction is discussed in detail below.
dismissed by the Malatya State Security Court.
Violation of Article 3 with respect to the forcibly
In its judgment, the Court held that the state disappeared person
was responsible for the enforced disappearance
of Tanış and Deniz and for the fact that no A violation of Article 3 of the Convention may
news of them was heard since then, and arise if it can be proven by way of a witness or
found a substantive violation of the right witnesses that the forcibly disappeared person
to life. The Court held that that has been a suffered ill-treatment while being detained or
violation of the right to life on account of the throughout the detention.
failure to conduct an effective and thorough
investigation which would ensure prosecution Observing that it is hardly possible to present
of perpetrators. The Court also found that an independent and objective medical evidence
unacknowledged detention of Tanış and Deniz or eye witness testimony in unacknowledged
led to a particularly grave violation of the right to cases of detention and enforced disappearance,
liberty and security. Finding that the applicants the Court held that requiring either prior to any
suffered anguish and distress because of the finding of a violation of Article 3 could undermine
disappearance of their relatives, the Court held the protection provided by this article.40
that the prohibition on torture was violated.
The Court further found that the right to an In the case of Çakıcı v. Turkey, the applicant
effective remedy was violated due to the failure alleged a violation of Article 3 because his brother
to conduct an effective investigation into the was beaten and given electric shock treatment
disappearance of their relatives. while in detention. Yet, the only evidence
presented in regards to that treatment was
the eye witness who shared the same cell with
his brother and saw the injury that the brother
suffered as a result of the ill-treatment inflicted
upon him. The Court decided that the evidence
was credible.41
40 Çakıcı v. Turkey, § 91
41 Simmons, p. 101
43 For illustrative cases, see Mahmut Kaya v. Turkey, §§ 110-118; 45 Simmons, pp. 104-105
Hayriye Kişmir v. Turkey, 31 May 2005, Application no: 27306/95,
§§ 122-132 46 See, inter alia, Tanış and others v. Turkey
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of an Article 3 violation does not lie in the fact of ULUMASKAN AND OTHERS, APPLICATION
the ‘enforced disappearance’ of family members, NO: 9785/02, 17309/04 and 22010/04
but in the reactions and behavior of the authorities
to the situation brought to their attention. Yet, in The case concerns the disappearance of Sadık
its judgment on Sangariyeva v. Russia, the Court and Seyithan Ulumaskan around Diyarbakır.
found a violation of Article 3 in respect of the
experiences of applicants who were, respectively, On 4 December 1997, Sadık and Seyithan drove
one year old and three years old at the time of the to Diyarbakır to meet with their relative Aziz
incident and therefore did not expend any effort to Büyükmaskan in a café.
obtain information. 47
On 28 March 2001, the applicants’ lawyer ‘1. Everyone has the right to liberty and security of
requested a copy of the investigation file from person. No one shall be deprived of his liberty save
the prosecutor who led the investigation. in the following cases and in accordance with a
This request was denied on grounds of the procedure prescribed by law:
confidentiality. a) the lawful detention of a person after conviction
by a competent court;
Throughout the investigation, applicants b) the lawful arrest or detention of a person for
lodged complaints, submitted information and non-compliance with the lawful order of a court or
appealed to several authorities in regards to the in order to secure the fulfillment of any obligation
disappearance of their relatives. prescribed by law;
Authorities took testimony from the individuals c) the lawful arrest or detention of a person
named in the statements of applicants. effected for the purpose of bringing him before
the competent legal authority on reasonable
In its inadmissibility decision, the Court suspicion of having committed an offence or when
observed that the prosecutor launched an it is reasonably considered necessary to prevent
investigation as soon as he became aware of his committing an offence or fleeing after having
the disappearance; testimony was taken from done so;
the suspect Aziz on 10 December; the lost d) the detention of a minor by lawful order for the
vehicle was found on the same day and inquiries purpose of educational supervision or his lawful
were made about the matter; testimony was detention for the purpose of bringing him before
taken from the owner and employees of the the competent legal authority;
café on 23 December; the gendarmerie and e) the lawful detention of persons for the
the prosecutor also heard Aziz; all individuals prevention of the spreading of infectious diseases,
named in applicants’ testimony to the authorities of persons of unsound mind, alcoholics or drug
were heard, yet none of them supported the addicts or vagrants;
applicants’ claims; and the applicants were kept f) the lawful arrest or detention of a person to
informed of the progress of the investigation. prevent his effecting an unauthorised entry into
The Court held that the investigation conducted the country or of a person against whom action
by the authorities was effective even though is being taken with a view to deportation or
it did not bring to light the circumstances extradition;
regarding the disappearance of Sadık and
Seyithan. The Court also noted that authorities 2. Everyone who is arrested shall be informed
did not act complacently toward the claims of promptly, in a language which he understands,
the applicants. of the reasons for his arrest and of any charge
against him.
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4. Everyone who is deprived of his liberty by arrest the domestic law but also comply with Article
or detention shall be entitled to take proceedings 5 whose sole purpose is to protect individuals
by which the lawfulness of his detention shall from arbitrary detentions. To minimize the risk
be decided speedily by a court and his release of arbitrary detention, Article 5 seeks to ensure
ordered if the detention is not lawful. that the act of deprivation of liberty is subject
to independent judicial control and to provide
5. Everyone who has been the victim of arrest safeguards aiming to hold authorities accountable
or detention in contravention of the provisions for that act. Unacknowledged detention of an
of this Article shall have an enforceable right to individual amounts to a complete negation of
compensation.’ these safeguards and as such constitutes a most
serious violation of Article 5. Considering that
For a detention to be lawful, it must rest on one authorities are responsible for the individuals
of the grounds listed in paragraph 1 of Article 5. under their supervision, Article 5 requires
A detention that takes place without resting on authorities to take preventive measures to
one of those grounds is a violation of ‘a procedure eliminate the risk of enforced disappearance
prescribed by law’. Furthermore, a violation of through effective precautions and to conduct an
paragraph 3 of Article 5 will also arise if, following effective and expeditious investigation into an
such an unlawful detention, the detainee is neither arguable claim involving a claim that an individual
released nor brought before a judicial authority.49 has been detained and has not been heard from
since the detention’.53
In incidents of enforced disappearance,
authorities usually deny that the victim was One point worth recalling here is that in enforced
detained. Therefore, there is no judicial facility disappearance cases where the Court determines
to monitor the lawfulness of the detention under beyond a reasonable doubt that the individual has
Article 5, paragraph 4 of the Convention.50 been detained by state authorities, a violation of
Similarly, it is not possible to claim damages due Article 5 is found. Where such detention cannot
to unlawful detention under Article 5, paragraph be proven, no violation of Article 5 will be found.54
5 of the Convention, because authorities do not
acknowledge that the victim was detained, let RIGHT TO AN EFFECTIVE REMEDY – ARTICLE
alone debating the lawfulness of the detention. 51
13 OF THE CONVENTION
Even if applicants allege that each provision Article 13 of the Convention provides:
of Article 5 is separately violated in enforced
disappearance cases as explained above, the ‘Everyone whose rights and freedoms as set
Court has opted to decide that Article 5 has been forth in this Convention are violated shall have
violated as a whole.52 an effective remedy before a national authority
notwithstanding that the violation has been
The Court’s jurisdiction in respect of this issue is committed by persons acting in an official capacity.’
as follows:
The concept of ‘arguable claim’
‘Any deprivation of liberty must not only satisfy
the substantive and procedural requirements of It is necessary to emphasize first of all that Article
13 is not individually enforceable. Applicants
49 Simmons, p. 110
50 Ibid., p.110 53 See, inter alia, Akdeniz v. Turkey, 31 May 2005, Application no:
25165/94, § 130
51 Ibid., p. 110
54 See, inter alia, Tekdağ v. Turkey, 15 January 2004, Application
52 Ibid., p. 111 no: 27699/95, § 90
55 Simmons, p. 135
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TAHSİN ACAR V. TURKEY, APPLICATION NO: The Court has found that the initial investigation
26307/95 led by Bismil Public Prosecutor in relation to
the applicant’s claims disregarded the claims
The case concerns the disappearance of a of victim’s relatives and proceeded slowly, and
farmer named Mehmet Salim Acar in the Ambar the subsequent investigation by the Provincial
village in the district of Bismil. Administrative Council was not complete and
satisfactory because it was not accessible to
The applicant alleged that two unidentified the relatives of the victim. The Court thus found
plain-clothes police officers abducted Salim on a breach of Article 2 of the Convention in these
29 August 1994 when he was working in a field. respects.
Mehmet Salim’s family lodged several Because it was not established beyond a
complaints and petitions with the authorities reasonable doubt that state authorities were
relating to his disappearance and to find out responsible for the disappearance of Salim,
where and why he was detained. the Court dismissed applicant’s claims that
Article 3 (the prohibition on torture), Article 5
On 29 August 1994, Bismil Public Prosecutor (the right to liberty and security), Article 6 (the
launched an investigation. right to a fair trial), Article 13 (the right to an
effective remedy), and Article 14 (prohibition of
In July 1995, the applicant gave Bismil Public discrimination) were violated.
Prosecutor the names of two gendarmerie
officers and a village guard who might be
responsible for the abduction of his brother.
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What Non- Execution of the
Governmental Judgments of the
Organizations Can European Court of
Do Over the Course Human Rights
of Applications to The Court’s final judgments are forwarded to the
Committee of Ministers, the executive body of the
the Court Council of Europe, for execution as per Article
46 of the Convention. The Contracting States are
Article 36, Paragraph 2 of the Convention provides obligated to remedy the violations the Court has
that any person concerned who is not an applicant found; however, they will have discretion as to
may submit written comments and take part in the manner in which they provide relief. As a rule,
hearings in exceptional circumstances, subject to the state concerned will determine the measures
permission of the president of the Court. that will remedy the violation, subject to the
supervision of the Committee of Ministers.
Requests from non-governmental organizations
interested in the subject matter of a case When the Court renders a judgment of violation,
are usually approved by the Court. Amnesty the measures which the state concerned must
International took part in Kurt v. Turkey and CEJIL take regarding the execution of the judgment are
participated in Timurtaş v. Turkey, exemplifying of two types, individual measures and general
non-governmental organizations taking part measures.
in enforced disappearances cases filed and
concluded against Turkey. The organizations in Individual measures: The execution of a judgment
attendance made presentations on the concept of violation must first of all put an end to the
of enforced disappearance and its place in violation and remedy the negative consequences
international law. for the applicant. The first issue that comes to
mind in this regard is the timely payment of the
Concerned individuals or NGOs wishing to take compensation awarded by the Court. In cases
part in a case before the Court must submit where the mere payment of compensation does
a petition in English or French including an not remedy the consequences of the violation for
explanation of the reason they seek participation the applicant, the Committee of Ministers may
within twelve weeks following transmission of the request that authorities of the state concerned
application to the respondent Contracting Party.58 take additional individual measures.
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has adopted interim resolutions listing the ■ The second group of measures should relate to
general measures taken so far and identifying effective investigations. In this context, the Court
the measures necessary for the execution of required that Russian Government take general
judgments. 63
measures to shed light on unacknowledged
detentions by state authorities; to afford
OPPORTUNITIES THAT COME TO MIND IN investigators unrestricted access to all relevant
LIGHT OF THE ASLAKHANOVA AND OTHERS information held by military and security forces;
V. RUSSIA to provide victims with access to the case files;
and to ensure that investigations do not become
The Court rendered a highly significant judgment barred by statute.
on enforced disappearances against Russia on
18 December 2012. The judgment in the case In this context, applicants, their lawyers or
of Aslakhanova and others v. Russia is quite non-governmental organizations can take
remarkable in terms of the Court’s observations the following steps in regards to enforced
with respect to Article 46 of the Convention.64 disappearance judgments rendered against
Turkey that are awaiting execution before the
In the judgment, the Court noted that 120 Committee of Ministers:
judgments have been adopted since 1999 against
Russia with respect to enforced disappearances ■ Requesting that the enforced disappearance
in the Northern Caucasus region and observed judgments reviewed under the category ‘The
that there exists systemic problem in the country Action of Security Forces’ and through the
in that regard. The Court indicated that Russia ‘standard supervision’ procedure before the
will need to take a series of measures toward the Committee of Ministers be separated from that
execution of this judgment before the Committee category and that they be examined through the
of Ministers. The Court listed the measures in two aforementioned ‘enhanced supervision’ procedure
principal groups: because they disclose complex and structural
problems;
■ The Court highlighted that the most pressing
need concerns taking measures in regards to ■ Once the Aslakhanova and others v. Russia
the continuing suffering of the relatives of the judgment becomes final and arrives before the
disappeared. In this regard, the Court supported Committee of Ministers for execution, requesting,
the proposal to create a body that would be in in light of this novel jurisprudence of the Court,
charge of solving the enforced disappearances in that the same general measures be taken in
the region, which would enjoy unrestricted access enforced disappearance cases concerning Turkey.
to all relevant information. This body needs to
be provided with the financial resources that will Whether these steps might yield results before
allow it to carry out large-scale forensic work, the Committee of Ministers can only be guessed
including the location and exhumation of mass at this time. Yet, there is a chance that they can
graves and the payment of compensation to the contribute to a separated review of enforced
families of the victims. disappearance judgments against Turkey and to
the taking of general measures specific to this
issue, which makes these steps worthwhile.
63 DH(99)434 resolution dated 9 June 1999, DH(2002)98
resolution dated 10 July 2002, ResDH (2005)43 resolution dated
7 June 2005, and ResDH (2008)69 resolution dated 18 September
2005
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10) İrfan Bilgin v. Turkey, Application no: 25) Seyhan v. Turkey, Application no: 33384/96,
25659/94, judgment dated 17 July 2001 judgment dated 2 November 2004
11) İ.İ., İ.Ş., K.E. and A.Ö . v. Turkey, Application 26) Evin Yavuz and others v. Turkey, Application
no: 30953/96, 30954/96, 30955/96, 30956/96, no: 48064/99, inadmissibility decision dated 1
friendly settlement dated 6 November 2001 February 2005
12) Yakar v. Turkey, Application no: 36189/97, 27) Türkoğlu v. Turkey, Application no: 34506/97,
friendly settlement dated 16 April 2002 judgment dated 17 March 2005
13) Orhan v. Turkey, Application no: 25656/94, 28) Akdeniz v. Turkey, Application no: 25165/94,
judgment dated 18 June 2002 judgment dated 31 May 2005
14) Tepe v. Turkey, Application no: 27244/95, 29) Koku v. Turkey, Application no: 27305/95,
judgment dated 9 May 2003 judgment dated 31 May 2005
15) Sevdet Efe v. Turkey, Application no: 39235/98, 30) Kişmir v. Turkey, Application no: 27306/95,
inadmissibility decision dated 9 October 2003 judgment dated 31 May 2005
16) Eren and others v. Turkey, Application no: 31) Toğcu v. Turkey, Application no: 27601/95,
42428/98, friendly settlement dated 2 October judgment dated 31 May 2005
2003
32) Tanış and others v. Turkey, Application no:
17) Hanım Tosun v. Turkey, Application no: 31731/ 65899/01, judgment dated 2 August 2005
96, friendly settlement dated 6 November 2003
33) Özgen and others v. Turkey, Application no:
18) Nergiz ve Karaaslan v. Turkey, Application 38607/97, judgment dated 20 September 2005
no: 39979/98, inadmissibility decision dated 6
November 2003 34) Sıddık Aslan and others v. Turkey, Application
no: 75307/01, judgment dated 18 October 2005
19) Yurtseven and others v. Turkey, Application no:
31730/96, friendly settlement dated 18 December 35) Nesibe Haran v. Turkey, Application no:
2003 28299/95, judgment dated 6 October 2005
20) İpek v. Turkey, Application no: 25760/94, 36) Mordeniz v. Turkey, Application no: 49160/99,
judgment dated 17 February 2004 judgment dated 10 January 2006
21) Tahsin Acar v. Turkey, Application no: 37) Şeker v. Turkey, Application no: 52390/99,
26307/95, judgment dated 8 April 2004 judgment dated 21 February 2006
22) Tekdağ v. Turkey, Application no: 27699/95, 38) Aydın Eren and others v. Turkey, Application
judgment dated 14 June 2004 no: 57778/00, judgment dated 21 February 2006
23) Erkek v. Turkey, Application no: 28637/95, 39) Ulumaskan and others v. Turkey, Application
judgment dated 13 July 2004 no: 9785/02, inadmissibility decision dated 13
June 2006
24) O. v. Turkey, Application no: 28497/95,
judgment dated 15 July 2004 40) Kavak v. Turkey, Application no: 53489/99,
ENFORCED DISAPPE AR ANCE CASES FROM THE PERSPECTIVE OF THE EUROPE AN COURT OF
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BIOGRAPHIES
132
PROF. GÖKÇEN ALPKAYA undergraduate degree at the School of Law at
Gökçen Alpkaya is a full professor in the Department İstanbul University in 1998. Following her law
of International Law at the School of Political internship at the İstanbul Bar Association in 1999,
Sciences at Ankara University. Prof. Alpkaya she participated in various short-term programs
teaches undergraduate and graduate courses on at Birkbeck, University of London and at the
international law, international human rights law, University of Westminster. In 2003, she earned a
and international humanitarian law. Her books postgraduate degree from the School of Law at the
include AGİK Sürecinden AGİT’e İnsan Hakları University of Sheffield with a comparative thesis
(Human Rights from the Conference on Security and on juvenile courts in Turkey, England and Wales.
Cooperation in Europe to the Organization for Security After postgraduate studies, Dr. Sevdiren worked as
and Cooperation in Europe), Kavram Publications, a research assistant at the Institute of International
İstanbul, 1996; (with Dr. Filiz Zabcı) İlköğretim and Comparative Criminal Law at the School of
Vatandaşlık ve İnsan Hakları Eğitimi (Citizenship Law at the University of Cologne, where she drew
and Human Rights Education at the Elementary up a report on the general provisions of the new
School Level), Doğan Publications, Ankara, 1998; Turkish Criminal Code. She began her doctoral
Eski Yugoslavya için Uluslararası Ceza Mahkemesi studies in 2005, and her dissertation comparing
(International Criminal Tribunal for the Former alternatives to imprisonment in Germany, England,
Yugoslavia), Turhan Publications, Ankara, 2002; (with Wales and Turkey was supported by the German
Dr. Faruk Alpkaya) 20. Yüzyıl Dünya ve Türkiye Tarihi Academic Exchange Service, University of Cologne,
World and Turkish History in the 20th Century), Tarih and Friedrich-Ebert-Stiftung. From January to
Vakfı (History Foundation), İstanbul, 2005. April 2011, she was a member of the Founding
Curriculum Committee of the School of Law at the
İLKEM ALTINTAŞ Turkish-German University. Dr. Sevdiren taught
After graduating from TED Ankara High School, part-time in the Department of Political Science
İlkem Altıntaş completed an undergraduate degree and International Relations at Boğaziçi University
at the School of Law at Ankara University in in the fall and spring semesters in the 2011-2012
1998. She held a law internship at the Ankara Bar academic year, offering courses on international
Association in 1999 and began a career with the criminal law. She has been a faculty member in
Turkish Foreign Ministry as an expert specializing in the Department of Criminal Law and Criminal
human rights in 2000. After spending eight years at Procedure Law at the School of Law at Uludağ
that position in Ankara and Strasbourg, she worked University since September 2011.
as a rapporteur at the European Court of Human
Rights in Strasbourg between 2008 and 2011. EMEL ATAKTÜRK SEVİMLİ
Since 2012, she has been teaching international Emel Ataktürk graduated from the School of Law
human rights law at Yeditepe University on a part- at Marmara University in 1988. She has been a
time basis. Altıntaş has also been working at the member of the İstanbul Bar Association since 1989.
Truth Justice Memory Center since December She has held memberships and administrative
2012. In addition, she has a position as a tutor in positions at non-governmental organizations
the Human Rights Education Program for Legal including İnsan Hakları Derneği (Human Rights
Professionals at the Council of Europe. Altıntaş Association), Türkiye İnsan Hakları Vakfı (Human
holds two master’s degrees, one from the School of Rights Foundation of Turkey), and Helsinki Yurttaşlar
Law at the University of Essex and the other from Derneği (Helsinki Citizens’ Assembly). Ataktürk
the Department of Political Science and Public both studied and trained students at the İstanbul
Administration at Bilkent University, both focused Bar Association Women’s Rights Center, Center for
on the European Convention on Human Rights and European Studies at Boğaziçi University, and the
the European Court of Human Rights. Office of the United Nations High Commissioner
for Refugees. She contributed to a number of
ASST. PROF. ÖZNUR SEVDİREN the studies published by these various centers.
Dr. Sevdiren graduated from İstanbul Haydarpaşa Ataktürk is currently a Program Manager at the
High School and went on to complete an Truth Justice Memory Center.
1 3İ Y4O G R A F İ L E R
B ENFORCED DISAPPEAR ANCES AND THE CONDUCT OF THE JUDICIARY
The Truth Justice Memory Center has confirmed When sources contradicted each other, we
that the 262 people on this list were forcibly relied on legal data. The reason for this is the
disappeared. Our sources include the interviews fact that legal data is the basis to overcome
we carried out with the relatives of the the impunity in enforced disappearance
disappeared, applications made to the European cases. Legal data is used as a reference when
Court of Human Rights, and data we have statute of limitations periods are calculated, or
gathered from lawyers and bar associations who perpetrators are determined. However, if there
have represented enforced disappearance cases was a contradiction between the accounts of the
especially in Cizre, Silopi, İdil and Diyarbakır. relatives of the forcibly disappeared and legal
In order to verify this list, we took into account data, we added the narrative data as a footnote.
the following data: We prioritized data in the final decisions of the
■ Testimonies of the relatives of the forcibly European Court of Human Rights. We allowed the
disappeared; same priority for ECtHR applications.
■ Reports of the Human Rights Investigation
Commission of the Grand National Assembly of The respect we felt for the forcibly disappeared
Turkey; necessitated a considerable effort on our part
■ Case files of enforced disappearances that to ensure the accuracy of the data of the list we
have been referred to local courts; formed. However, despite all such effort, the list
■ Investigation files of enforced disappearance may still contain deficiencies or mistakes. It is
cases that continue to be investigated by highly important that these are reported to our
Prosecution Offices; center to eliminate the deficiencies of this study.
■ Petitions of complaint as procedure of legal To report such deficiencies, or to provide new
application; information please call us at (+90) 212 243 32 27
■ Applications to and decisions of the European or mail us at [email protected].
Court of Human Rights;
■ Official statements that have been signed The most up to date version of the list can be
in the presence of lawyers and are valid as found at www.zorlakaybetmeler.org.
declarations.
1 Abbas Çiğden 01/01/1988 (1) Şırnak Silopi / Derebaşı Official minutes dated 29 January 2009 signed
Month and day Village in the presence of lawyers affiliated with the
unknown Şırnak Bar Association
2 Abdo Yamuk 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
3 Abdulaziz Gasyak 06/03/1994 Şırnak Cizre - Silopi Interviews with relatives of Süleyman Gasyak
Highway and Ömer Candoruk who were forcibly
disappeared together -Süleyman Gasyak's
wife Leyla Gasyak and Ömer Candoruk's wife
Hanım Candoruk and son Mesut Candoruk /
ECtHR Application No : 27872/03 / Diyarbakır
6. Criminal Court File No:2009/470
4 Abdulhakim 01/04/1993 (3) Şırnak Cizre / Kuştepe Vlg. Interview with Atike Tanrıverdi and İdris
Tanrıverdi Day unknown Tanrıverdi / Cizre Office of the Chief Public
Prosecutor Inquiry No: 2009/430
5 Abdulhamit Düdük 16/07/1994 Şırnak Silopi Diyarbakır 6. Criminal Court File No: 2009/470
6 Abdulkerim Kalkan 01/05/1992 (4) Şırnak Cizre / İnci Vlg. Interview with Zekiye Kalkan
Day unknown
7 Abdullah Canan 17/01/1996 Hakkari Yüksekova - Van ECtHR Application No: 39436/98
Hwy.
8 Abdullah Düşkün 16/04/1994 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
9 Abdullah Efelti 01/02/1995 Şırnak Cizre Interview with Mesut Efelti and Besna Efelti /
Day unknown Diyarbakır 6. Criminal Court File No: 2009/470
10 Abdullah İnan 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
11 Abdullah Kert 01/09/1990 Hakkari Yüksekova / Tılur Interview with Salih Kert / Silopi Office of the
Gün bilinmiyor Vlg. Chief Public Prosecutor Inquiry No: 2008/3151
12 Abdullah Özdemir 06/06/1994 Şırnak Silopi / Zıristan Interview with Tahir Özdemir / Diyarbakır 6.
Hamlet / Üçağaç Vlg. Criminal Court File No: 2009/470
13 Abdullah Turğut 01/11/1995 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Day unknown Inquiry No: 2008/3151
15 Abdurrahman Afşar 01/03/1994 Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Day unknown
16 Abdurrahman 03/11/1995 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Coşkun Inquiry No: 1995/2
17 Abdurrahman Hoca 30/11/1995 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Şuho Inquiry No: 2008/3151
18 Abdurrahman Olcay 01/11/1995 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Day unknown Inquiry No: 1995/2
19 Abdurrahman 01/02/1994 (6) Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Yılmaz Day unknown Inquiry No: 2009/430
20 Abdurrezzak Binzet 16/07/1997 Şırnak Silopi Diyarbakır 6. Criminal Court File No: 2009/470
22 Adil Ölmez 01/01/1995 Şırnak Cizre Interview with Mustafa Ölmez / Cizre Office
Month and day of the Chief Public Prosecutor Inquiry No:
unknown 2009/430
24 Ahmet Berek 01/01/1993 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Month and day Inquiry No: 2009/430
unknown
25 Ahmet Bulmuş 01/04/1994 (8) Şırnak Cizre Interview with Vedat Bulmuş / Cizre Office
Day unknown of the Chief Public Prosecutor Inquiry No:
2009/430
26 Ahmet Bozkır 26/08/1996 Hakkari Otluca Vlg. ECtHR Application No: 24589/04
27 Ahmet Çakıcı 08/11/1993 Diyarbakır Hazro / Çitlibahçe ECtHR Application No: 23657/94
Vlg.
28 Ahmet Dansık 22/02/1995 Şırnak Silopi Interview with Abdullah Dansık / Official
minutes dated 26 January 2009 signed in the
presence of lawyers affiliated with the Şırnak
Bar Association
30 Ahmet Kalpar 05/12/1993 Şanlıurfa Siverek Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
31 Ahmet Özdemir 13/08/1994 Şırnak Güçlükonak / Fındık Interview with Taybet Özdemir / ECtHR
Vlg. Application No: 30953/96, 30954/96,
30955/96, 30956/96
32 Ahmet Özer 13/08/1994 Şırnak Güçlükonak / Fındık Interview with Fatım Özer / ECtHR Application
Vlg. No: 30953/96, 30954/96, 30955/96, 30956/96
33 Ahmet Sanır 01/03/1994 Şırnak Merkez / Ara Vlg. Official minutes dated 27 January 2009 signed
Day unknown in the presence of lawyers affiliated with the
Şırnak Bar Association
34 Ahmet Şayık 07/01/1994 Şırnak Silopi Interview with Şeyhmus Şayık / Silopi Office
of the Chief Public Prosecutor Inquiry No:
2008/3151
35 Ahmet Şen 01/01/1994 Şırnak Güçlükonak Cizre Office of the Chief Public Prosecutor
Month and day Inquiry No: 2009/430
unknown
36 Ahmet Ürün 14/04/1996 Şırnak Center / Gazipaşa Şırnak Office of the Chief Public Prosecutor
District Inquiry No: 1996/158
37 Ahmet Üstün 01/04/1994 Şırnak Cizre Interview with Fadile Üstün and Ali Üstün /
Day unknown Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
39 Ali Efeoğlu 05/01/1994 İstanbul Pendik Istanbul Office of the Chief Public Prosecutor
Inquiry No: 1994/4970
40 Ali İhsan Çiçek 10/05/1994 Diyarbakır Lice / Dernek Vlg. ECtHR Application No: 25704/04
41 Ali İhsan Dağlı 14/04/1995 Diyarbakır Silvan / Eşme Vlg. ECtHR Application No: 75527/01,11837/02
43 Ali Müldür Date unknown Şırnak Silopi (9) Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
44 Ali Osman Heyecan 01/01/1995 Şırnak Silopi Cizre Office of the Chief Public Prosecutor
Month and day Inquiry No: 2009/423
unknown
46 Aşur Seçkin 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
49 Ayhan Efeoğlu 06/10/1992 İstanbul Istanbul Office of the Chief Public Prosecutor
Inquiry No: 2012/535
51 Ayten Öztürk 27/07/1992 Dersim Malatya Office of the Chief Public Prosecutor
Inquiry No: 2012/169
52 Bahri Arslan 01/04/1985 Şırnak Merkez / Kırkkuyu Petition of complaint dated 25 March 2009
Day unknown Vlg. presented to the Cizre Office of the Chief
Public Prosecutor
53 Bahri Esenboğa 13/08/1994 Şırnak Güçlükonak / Fındık Interview with Hatice Özdemir / ECtHR
Vlg. Application No: 30953/96, 30954/96,
30955/96, 30956/96
54 Bahri Şimşek 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
56 Behçet Tutuş 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
57 Bilal Batırır 08/03/1996 Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Inquiry No: 1995/2
58 Casım Çelik 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
59 Celil Aydoğdu 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
62 Cemal Sevli 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
64 Cemile Şarlı 24/12/1993 Bitlis Tatvan / Ulusoy Vlg. ECtHR Application No: 24490/94
65 Cezayir Orhan 24/05/1994 Diyarbakır Kulp / Çağlayan Vlg. ECtHR Application No: 25656/94
/ Deveboyu Hamlet
66 Davut Altınkaynak 03/11/1995 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Inquiry No: 1995/2
68 Derviş Özalp 10/02/1994 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
70 Ebubekir Dayan 17/01/1994 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
71 Ebubekir Deniz 25/01/2001 Şırnak Silopi Interview with Mehmet Ata Deniz / ECtHR
Application No: 65899/01
73 Emin Altan 07/04/1996 Diyarbakır Center / Bağlar Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
74 Emin Karatay 01/06/1991 Şırnak Cizre / Bozalan Vlg. Cizre Office of the Chief Public Prosecutor
Day unknown Inquiry No: 2009/430
75 Emin Kaya Date unknown Şırnak Güçlükonak Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/546
76 Emin Savgat 01/02/1993 Şırnak Cizre / Dirsekli Vlg. / Petition of complaint dated 25 March 2009
Day unknown Kurtuluş Hamlet presented to the Cizre Office of the Chief
Public Prosecutor / Official minutes dated
26 January 2009 signed in the presence
of lawyers affiliated with the Şırnak Bar
Association
77 Enver Akan 15/10/1998 Mardin Dargeçit (10) Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
79 Fehmi Tosun 19/10/1995 İstanbul Avcılar Interview with Hanım Tosun / ECtHR
Application No: 31731/96
81 Fethi Ildır 01/09/1993 Şırnak Cizre / Kuştepe Vlg. Cizre Office of the Chief Public Prosecutor
Day unknown Inquiry No: 1993/492
82 Fethi Yıldırım 05/01/1994 Şanlıurfa Viranşehir Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
84 Feyzi Bayan 29/09/1989 (1) Şırnak Silopi / Derebaşı Vlg. Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
86 Fikri Şen 13/08/1994 Şırnak Güçlükonak / Fındık Interview with Adile Şen / ECtHR Application
Vlg. No: 30953/96, 30954/96, 30955/96, 30956/96
89 Halil Birlik 07/11/1996 (12) Şırnak Silopi / Habur Interview with Çetin Birlik / Silopi Office of the
Border Gate Chief Public Prosecutor Inquiry No: 2008/3151
91 Halit Ertuş 26/08/1996 Hakkari Otluca Vlg. ECtHR Application No: 24589/04
92 Halit Özdemir 01/01/1993 (21) Şırnak Silopi / Görümlü Vlg. ECtHR Application No: 7524/06
Month and day
unknown
93 Hamdo Şimşek 01/01/1993 (21) Şırnak Silopi / Görümlü Vlg. ECtHR Application No: 39046/10
Month and day
unknown
94 Hasan Avar 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
95 Hasan Aydoğan 31/03/1998 İzmir Çeşme / Alaçatı Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
96 Hasan Baykura 01/12/1993 (23) Şırnak Cizre Interview with Suphiye Baykura / Cizre Office
Day unknown of the Chief Public Prosecutor Inquiry No:
2009/430
97 Hasan Bayram 01/05/1994 Diyarbakır Lice Lice Office of the Chief Public Prosecutor
Day unknown Inquiry No: 1994/57 / ECtHR Application No:
987/02 (Decision of inadmissibility)
98 Hasan Ergül 23/05/1995 Şırnak Silopi Interview with Hizni Ergül / Silopi Office of the
Chief Public Prosecutor Inquiry No: 2008/3151
99 Hasan Esenboğa 25/12/1994 Şırnak Cizre Interview with Hatice Özdemir / İdil Office
of the Chief Public Prosecutor Inquiry No:
1994/287
100 Hasan Gülünay 20/07/1992 İstanbul Interview with Birsen Gülünay / İstanbul Office
of the Chief Public Prosecutor Inquiry No:
2009/61296
103 Hasan Orhan 24/05/1994 Diyarbakır Kulp / Çağlayan Vlg. ECtHR Application No: 25656/94
/ Deveboyu Hamlet
104 Hayrullah Öztürk 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
106 Hikmet Kaya 04/11/1994 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Inquiry No: 1995/2
107 Hükmet Şimşek 01/01/1993 (21) Şırnak Silopi / Görümlü Vlg. ECtHR Application No: 39046/10
Month and day
unknown
108 Hurşit Taşkın 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
109 Hüsamettin Yaman 01/01/1992 (22) İstanbul Merter Interview with Feyyaz Yaman / Istanbul Office
Month and day of the Chief Public Prosecutor Inquiry No:
unknown 2011/71615
110 Hüseyin Demir 26/09/1994 Şırnak İdil İdil Office of the Chief Public Prosecutor
Inquiry No: 1994/211
111 Hüseyin Koku 20/10/1994 Kahraman- Elbistan ECtHR Application No: 27305/95
maraş
112 Hüseyin Morsümbül 18/09/1980 Bingöl - Petition of complaint sent via official
correspondence to the Bingöl Office of the
Chief Public Prosecutor. Istanbul Office of
the Public Prosecutor Correspondence No:
2011/2536
113 Hüseyin Taşkaya 05/12/1993 Şanlıurfa Siverek Interview with Sultan Taşkaya / Petition
presented to Istanbul Office of the Chief Public
Prosecutor Inquiry No: 2007/1536
114 Hüseyin Yeşilmen 01/01/1993 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Day unknown Inquiry No: 2009/430
115 İbrahim Adak 01/02/1994 Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Day unknown
116 İbrahim Akıl 01/01/1993 (21) Şırnak Silopi / Görümlü Vlg. ECtHR Application No: 7524/06
Month and day
unknown
117 İbrahim Demir 11/12/1991 Şırnak İdil ECtHR Application No: 56291/12
118 İhsan Arslan 27/12/1993 Şırnak Cizre Interview with Şevkiye Arslan / Diyarbakır 6.
Criminal Court File No: 2009/470
120 İkram İpek 18/05/1994 Diyarbakır Lice / Türeli Vlg. / ECtHR Application No: 25760/94
Çaylarbaşı Hamlet
121 İlhan Bilir 01/01/1992 Şırnak Center Interview with Güllü Bilir
Month and day
unknown
122 İlhan İbak 13/08/1994 Şırnak Güçlükonak / Fındık Interview with İsmet İbak and Şerif İbak /
Vlg. ECtHR Application No: 30953/96, 30954/96,
30955/96, 30956/96
123 İlyas Diril 13/05/1994 Şırnak Beytüşşebap ECtHR Application No: 68188/01
125 İsa Efe 09/07/1996 Mardin Derik / Tepebağ Vlg. ECtHR Application No: 39235/98 (Decision of
inadmissibility)
126 İsa Soysal 01/01/1988 (14) Şırnak Silopi / Bozalan Vlg. Interview with Musa Soysal / Silopi Office
Month and day of the Chief Public Prosecutor Inquiry No.
unknown 2008/3151
127 İsmail Bahçeci 24/12/1994 İstanbul Levent Interview with Umut Bahçeci
128 İzzet Padır 06/06/1994 Şırnak Silopi / Zıristan Interview with Harun Padır and Musa Padır /
Hamlet / Üçağaç Vlg. Diyarbakır 6. Criminal Court File No: 2009/470
129 İzzettin Acet 28/10/1994 Şırnak Cizre Interview with Taybet Acet and Mesut Acet
/ Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
131 Kamil Bilgeç 27/11/1995 Şırnak Silopi Interview with Yusuf Kerimoğlu / Silopi Office
of the Chief Public Prosecutor Inquiry No:
2008/3151
132 Kasım Alpsoy 19/05/1995 Adana Interview with Halil Alpsoy's wife Fikriye
Alpsoy / Petition presented to Istanbul Office
of the Chief Public Prosecutor Inquiry No:
2007/1536
133 Kemal İzci 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
134 Kemal Mubariz 02/01/1994 Mardin Nusaybin Interview with Ömer Mubariz / Cizre Office
of the Chief Public Prosecutor Inquiry No:
2009/430
136 Kerevan İrmez 19/10/1995 Şırnak Cizre Official minutes dated 26 January 2009 signed
in the presence of lawyers affiliated with the
Şırnak Bar Association
137 Kuddusi Adıgüzel 15/03/1994 Diyarbakır Kulp / Konuklu Vlg. / ECtHR Application No: 23550/02 / Kulp Office
Arık Hamlet of the Chief Public Prosecutor Inquiry No:
2001/189
138 Lokman Akay 06/11/1995 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
139 Lokman Kaya 26/08/1996 Hakkari Otluca Vlg. ECtHR Application No: 24589/04
140 M. Ali Mandal 31/03/1998 İzmir Çeşme / Alaçatı Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
142 Mahrem Tanrıverdi 06/05/1994 Diyarbakır Lice 7. Army Corps Office of the Military Prosecutor
File No: 2005/833
143 Makbule Ökden Date unknown Şırnak Cizre Interview with Sitti Tanrıverdi / Cizre Office
of the Chief Public Prosecutor Inquiry No:
2009/430
144 Mehdi Akdeniz 20/02/1994 Diyarbakır Kulp / Karaorman ECtHR Application No: 25165/94
Vlg. / Sesveren
Hamlet
146 Mehmet Acar 01/02/1994 Şırnak Cizre / Dirsekli Vlg. / Interview with Necat Acar / Diyarbakır Office
Day unknown Züra Area of the Chief Public Prosecutor Inquiry No:
2009/906 and Cizre Office of the Chief Public
Prosecutor Inquiry No: 2009/430
147 Mehmet Bilgeç 07/11/1996 Şırnak Silopi / Habur Silopi Office of the Chief Public Prosecutor
Border Gate Inquiry No: 2008/3151
148 Mehmet Dansık 22/02/1995 Şırnak Silopi Interview with Abdullah Dansık / Official
minutes dated 26 January 2009 signed in the
presence of lawyers affiliated with the Şırnak
Bar Association
149 Mehmet Elçi 05/02/1994 Şırnak Cizre Petition of complaint dated 27 March 2009
presented to the Cizre Office of the Chief
Public Prosecutor
150 Mehmet Emin Aslan 02/11/1995 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Inquiry No: 1995/2
151 Mehmet Emin 28/10/1994 Şırnak Cizre Interview with Abdurrahman Kaynar / Cizre
Kaynar Office of the Chief Public Prosecutor Inquiry
No: 2009/430
152 Mehmet Emin Özalp 25/09/1994 Şırnak İdil / Bereketli Vlg. Interview with Emine Özalp / Cizre Office of the
Chief Public Prosecutor Inquiry No: 2009/430
154 Mehmet Faysal 02/10/1994 Mardin Derik Çorum 2. Criminal Court File No: 2013/50
Ötün
155 Mehmet Fındık 31/12/1995 Şırnak Silopi / Doruklu Vlg. Interview with Sait Fındık / ECtHR Application
No: 33898/11 and 35798/11 (Decision of
inadmissibility)
156 Mehmet Gürri Özer 01/02/1994 Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Day unknown
157 Mehmet İlbasan 01/01/1994 (15) Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Month and day
unknown
158 Mehmet Kanlıbıçak 27/12/1999 İstanbul Name mentioned in the event account cited in
the ECtHR decision on İzzettin Yıldırım with
Application number 29109/03.
159 Mehmet Mungan 18/03/1998 (16) Şırnak Silopi / Yeniköy / Interview with Mustafa Mungan / Official
Ceylan Hamlet minutes dated 26 January 2009 signed in the
presence of lawyers affiliated with the Şırnak
Bar Association
160 Mehmet Nezir 13/02/1993 Şırnak İdil Interview with Ali Duman, Yusuf Duman, Azime
Duman Duman and Veysel Vesek / İdil Office of the
Chief Public Prosecutor Inquiry No: 2009/168
161 Mehmet Ömeroğlu 07/01/1994 Şırnak Silopi Interview with İsa Ömeroğlu / Silopi Office
of the Chief Public Prosecutor Inquiry No:
2008/3151
164 Mehmet Salih 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Akdeniz Day unknown
165 Mehmet Salim Acar 20/08/1994 Diyarbakır Bismil / Ambar Vlg. ECtHR Application No: 26307/95
166 Mehmet Şerif Avar 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
167 Mehmet Şah Atala 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
168 Mehmet Şah Şeker 09/10/1999 Diyarbakır Bismil ECtHR Application No: 52390/99
169 Mehmet Şehit Avcı 28/12/1999 İstanbul Name mentioned in the event account cited in
the ECtHR decision on İzzettin Yıldırım with
Application number 29109/03.
170 Mehmet Şerif Avşar 22/04/1994 Diyarbakır Diyarbakır 3. Criminal Court File Number:
2007/439 File - 2008/79 Decision
171 Mehmet Tan 15/12/1992 Irak Zaho Interview with Ahmet Tan / Silopi Office of the
Chief Public Prosecutor Inquiry No: 2008/3151
172 Mehmet Tanrıverdi 06/05/1994 Diyarbakır Lice 7. Army Corps Office of the Military Prosecutor
File No: 2005/833
173 Mehmet Toru 23/04/1994 Şırnak Güçlükonak / Cizre Office of the Chief Public Prosecutor
Koçyurdu Vlg. Inquiry No: 2009/546
174 Mehmet Turay 05/02/1994 Şırnak Cizre Petition of complaint dated 27 March 2009
presented to the Cizre Office of the Chief
Public Prosecutor
175 Metin Andaç 31/03/1998 İzmir Çeşme / Alaçatı Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
176 Metin Can 21/02/1993 Elazığ Name mentioned in the event account cited
in the ECtHR decision on Hasan Kaya with
Application number 22535/93.
177 Mikdat Özeken 27/10/1995 Hakkari Yüksekova / Ağaçlı ECtHR Application No: 31730/96
Vlg.
178 Mirhaç Çelik 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
179 Mirze Ateş 15/03/1994 Diyarbakır Kulp / Konuklu Vlg. / Diyarbakır State Security Court Office of the
Arık Hamlet Chief Public Prosecutor Inquiry No: 1996/1621
180 Muhsin Taş 14/10/1993 Şırnak Cizre ECtHR Application No: 24396/94
181 Mursal Zeyrek 01/05/1994 (17) Şırnak Silopi / Aktepe Vlg. Interview with İslam Zeyrek / ECtHR
Day unknown Application No: 33100/04
182 Mustafa Aydın 01/01/1994 (15) Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Month and day
unknown
183 Münür (Münir) Aydın 01/01/1988 (1) Şırnak Silopi / Derebaşı Vlg. Silopi Office of the Chief Public Prosecutor
Month and day Inquiry No: 2008/3151
unknown
185 Naci Şengül 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
186 Nadir Nayci 01/01/1993 Şırnak Cizre / Kuştepe Vlg. Interview with Ramazan Nayci / Cizre Office
Month and day of the Chief Public Prosecutor Inquiry No:
unknown 2009/432
188 Nazım Babaoğlu 12/03/1994 Şanlıurfa Siverek Interviews with Bayram Balcı and İrfan
Babaoğlu
189 Nedim Akyön 02/11/1995 (5) Mardin Dargeçit Dargeçit Office of the Chief Public Prosecutor
Inquiry No: 1995/2
190 Neslihan Uslu 31/03/1998 İzmir Çeşme / Alaçatı Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
191 Nezir Acar 08/04/1992 Mardin Dargeçit Interview with Mehmet Ali Acar, Cemile Acar
and Halil Acar / Dargeçit Office of the Chief
Public Prosecutor Inquiry No: 2006/5
192 Nezir Tekçi 01/04/1995 Hakkari Yüksekova Eskişehir 1. Criminal Court File No: 2011/299
Day unknown
193 Nihat Aydoğan 01/11/1994 Mardin Midyat / Doğançay Interviews with Halime Aydoğan and Leyla
Day unknown Vlg. Aydoğan
194 Nurettin Erşek 25/09/1994 Şırnak İdil / Bereketli Vlg. Interviews with Selamet Balica, Emine Balica
and Kader Balica / İdil Office of the Chief
Public Prosecutor Inquiry No: 2009/185
195 Nurettin Yedigöl 10/04/1981 İstanbul - Interview with Muzaffer Yedigöl / Istanbul
Office of the Chief Public Prosecutor Inquiry
No: 2012/43993
196 Nusreddin Yerlikaya 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
199 Osman Kayar 01/11/1993 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Day unknown Inquiry No: 2008/3151
200 Osman Nuri Taşçı 04/07/1987 Erzurum Oltu ECtHR Application No: 40787/10
201 Ömer Candoruk 06/03/1994 Şırnak Cizre - Silopi Hwy. Interviews with Hanım Candoruk and Mesut
Candoruk / ECtHR Application No: 27872/03 /
Diyarbakır 6. Criminal Court File No: 2009/470
202 Ömer Fındık 31/12/1995 Şırnak Silopi / Doruklu Vlg. Interviews with Sait Fındık and Bedia Fındık /
ECtHR Application No: 33898/11 ve 35798/11
(Decision of inadmissibility)
203 Ömer Kartal 31/12/1995 Şırnak Silopi / Doruklu Vlg. Interview with Mehmet Kartal / ECtHR
Application No: 33898/11 ve 35798/11
(Decision of inadmissibility)
204 Ömer Savun 07/05/1989 Şırnak Güçlükonak Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/441
206 Önder (Ender) Toğcu 29/11/1994 Diyarbakır ECtHR Application No: 27601/95
(18)
207 Piro Ay 17/05/1994 Mardin Derik Çorum 2. Criminal Court File No: 2013/50
209 Ramazan Elçi 01/02/1994 Şırnak Cizre Diyarbakır 6. Criminal Court File No: 2009/470
Day unknown
210 Ramazan Özalp 01/01/1993 Şırnak Cizre Official minutes dated 26 January 2009 signed
Month and day in the presence of lawyers affiliated with the
unknown Şırnak Bar Association
211 Ramazan Şarlı 24/12/1993 Bitlis Tatvan / Ulusoy Vlg. ECtHR Application No: 24490/94
213 Raşit Demirhan 01/05/1994 Diyarbakır Lice Lice Office of the Chief Public Prosecutor
Day unknown Inquiry No: 1994/57 / ECtHR Application No:
987/02 (Decision of inadmissibility)
214 Recai Aydın 02/07/1994 Diyarbakır Petition presented to Istanbul Office of the
Chief Public Prosecutor Inquiry No: 2007/1536
215 Resul Erdoğan 23/04/1994 Şırnak Güçlükonak / Cizre Office of the Chief Public Prosecutor
Koçyurdu Vlg. Inquiry No: 2009/546
216 Reşit Eren 01/01/1988 (1) Şırnak Silopi / Derebaşı Vlg. Silopi Office of the Chief Public Prosecutor
Month and day Inquiry No: 2008/3151
unknown
217 Reşit Sevli 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
218 Rıdvan Karakoç 01/03/1995 (19) İstanbul Interview with Hasan Karakoç / Petition
Day unknown presented to Istanbul Office of the Chief Public
Prosecutor Inquiry No: 2007/1536
219 Sabri Akdoğan 01/05/1994 Diyarbakır Lice Lice Office of the Chief Public Prosecutor
Day unknown Inquiry No: 1994/57 / ECtHR Application No:
987/02 (Decision of inadmissibility)
220 Sabri Pulat (Polat) 01/10/1995 Şırnak Silopi / Buğdaylı Vlg. Silopi Office of the Chief Public Prosecutor
(7) Day unknown Inquiry No: 2008/3151
222 Sadun Bayan 01/09/1988 (1) Şırnak Silopi / Derebaşı Vlg. Silopi Office of the Chief Public Prosecutor
Day unknown Inquiry No: 2008/3151
223 Salih Şengül 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
224 Salih Yusuf Tahir 30/11/1995 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
225 Seddık Şengül 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık
Hamlet
227 Selahattin Bilen 01/01/1995 Şırnak Silopi Interview with Hamit Bilen / Silopi Office of the
Month and day Chief Public Prosecutor Inquiry No: 2008/3151
unknown
228 Selami Çiçek 10/06/1994 (20) Şırnak Cizre Interview with Turan Çiçek / Cizre Office of the
Chief Public Prosecutor Inquiry No: 2009/430
229 Selim Orhan 24/05/1994 Diyarbakır Kulp / Çağlayan Vlg. ECtHR Application No: 25656/94
/ Deveboyu Hamlet
230 Serdar Tanış 25/01/2001 Şırnak Silopi Interviews with Şuayip Tanış and Mehdi Tanış /
ECtHR Application No: 65899/01
231 Servet İpek 18/05/1994 Diyarbakır Lice / Türeli Vlg. / ECtHR Application No: 25760/94
Çaylarbaşı Hamlet
232 Seyhan Doğan 02/11/1995 (5) Mardin Dargeçit Interview with Hazni Doğan / Dargeçit Office of
the Chief Public Prosecutor Inquiry No: 1995/2
234 Seyithan Yolur 18/05/1994 Diyarbakır Lice / Türeli Vlg. / Name mentioned in the event account cited in
Çaylarbaşı Hamlet the ECtHR decision with Application number
25760/94 on İkram İpek and Servet İpek who
were forcibly disappeared at the same time.
235 Soner Gül 01/01/1992 İstanbul Interview with Feyyaz Yaman, brother
Month and day of Hüsamettin Yaman who was forcibly
unknown disappeared at the same time / Istanbul Office
of the Chief Public Prosecutor Inquiry No:
2011/71615
236 Süleyman Durgut 14/07/1994 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
237 Süleyman Halil Teli 30/11/1995 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Inquiry No: 2008/3151
238 Süleyman Gasyak 06/03/1994 Şırnak Cizre - Silopi Hwy. Interview with Leyla Gasyak / ECtHR
Application No: 27872/03 / Diyarbakır 6.
Criminal Court File No: 2009/470
239 Süleyman Seyhan 30/10/1995 (5) Mardin Dargeçit ECtHR Application No: 33384/96
240 Süleyman Soysal 29/11/1995 Şırnak Silopi Interview with Emin Soysal and Kamuran
Soysal / Silopi Office of the Chief Public
Prosecutor Inquiry No: 2008/3151
241 Süleyman Şık 01/01/1994 Şırnak Silopi Silopi Office of the Chief Public Prosecutor
Month and day Inquiry No: 2008/3151
unknown
242 Süleyman Tekin 26/08/1996 Hakkari Otluca Vlg. ECtHR Application No: 24589/04
243 Şemdin Cülaz 01/01/1993 (21) Şırnak Silopi / Görümlü Vlg. Interview with Kazım Cülaz and Haşim Cülaz /
Month and day ECtHR Application No: 7524/06
unknown
244 Şemsettin 27/10/1995 Hakkari Yüksekova / Ağaçlı ECtHR Application No: 31730/96
Yurtseven Vlg.
245 Şeyhmuz Yavuz 11/03/1994 Diyarbakır ECtHR Application No: 48064/99 (Decision of
inadmissibility)
247 Tahir Macartay 22/07/1993 Şırnak İdil-Midyat Hwy. Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
248 Tahsin Çiçek 10/05/1994 Diyarbakır Lice / Dernek Vlg. ECtHR Application No: 25704/04
250 Tevfik Timurtaş 29/12/1990 Şırnak Cizre Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
251 Tolga Baykal Ceylan 10/08/2004 Kırklareli İğneada The Grand National Assembly of Turkey,
Human Rights Investigation Committee's
Subcommittee for the Investigation of the
Fate of People Allegedly Disappeared Whilst
In Custody on the Basis of the Disappearance
Case of Tolga Baykal Ceylan, the "Tolga Baykal
Ceyhan" Report
252 Turan Demir 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
253 Ümit Taş 01/10/1993 (2) Diyarbakır Kulp / Alaca Vlg. ECtHR Application No: 23954/94
Day unknown
254 Üzeyir Arzık 01/01/1988 (1) Şırnak Silopi / Derebaşı Vlg. Silopi Office of the Chief Public Prosecutor
Month and day Inquiry No: 2008/3151
unknown
255 Üzeyir Kurt 25/11/1993 Diyarbakır Bismil / Ağıllı Vlg. ECtHR Application No: 15/1997/799/1002
256 Veysi Başar 22/07/1993 Şırnak İdil-Midyat Hwy. Cizre Office of the Chief Public Prosecutor
Inquiry No: 2009/430
257 Yahya Akman 06/03/1994 Şırnak Cizre - Silopi Hwy. Interviews with relatives of Süleyman Gasyak
and Ömer Candoruk who were forcibly
disappeared together -Süleyman Gasyak's
wife Leyla Gasyak and Ömer Candoruk's wife
Hanım Candoruk and son Mesut Candoruk /
ECtHR Application No : 27872/03 / Diyarbakır
6. Criminal Court File No :2009/470
258 Yusuf Çelik 24/07/1994 Hakkari Şemdinli / Ortaklar ECtHR Application No: 3598/03
Vlg. / Ormancık Hmt.
259 Yusuf Kalenderoğlu 22/02/1995 Şırnak Silopi Interview with Şahin Kalenderoğlu / Official
minutes dated 26 January 2009 signed in the
presence of lawyers affiliated with the Şırnak
Bar Association
260 Yusuf Nergiz 03/10/1997 Diyarbakır Kulp / Zeyrek Vlg. ECtHR Application No: 39979/98 (Decision of
inadmissibility)
261 Zeki Diril 13/05/1994 Şırnak Beytüşşebap ECtHR Application No: 68188/01
(2) Abdo Yamuk, Bahri Şimşek, Behçet Tutuş, Celil Aydoğdu, (16) The date of disappearance was given as 1997 in the
Hasan Avar, Mehmet Salih Akdeniz, Mehmet Şerif Avar, interview we carried out with Mustafa Mungan.
Mehmet Şah Atala, Nusreddin Yerlikaya, Turan Demir and
Ümit Taş were detained and disappeared in an operation (17) The date of disappearance was given as 26 June 1994
carried out from 9 to 11 October 1993. in the interview we carried out with İslam Zeyrek, and in
the petition of complaint. In our source legal file from the
(3) The date of disappearance was not stated clearly in the ECtHR the date is recorded as, ‘Mursal Zeyrek received his
interview we carried out with Atike Tanrıverdi and İdris conscription papers on 26 May, and one or two days later he
Tanrıverdi. The date is stated in Abdurrahim Tanrıverdi’s was disappeared’.
petition dated 1993 as April 10, and in the Cizre Chief Public
Prosecutor’s Office’s Decision of Non-Jurisdiction as April 9. (18) Since both Ender and Önder are stated as the name of the
The body of the disappeared was found on 17 April. individual in the source ECtHR application, and because of the
note stating ‘the name Ender will be used for consistency’,
(4) Zekiye Kalkan gave the date of her husband’s both names have been recorded here.
disappearance as May 92, 93 or 94. The notes she kept stated
the year as 1992, so the date of disappearance was recorded (19) In the interview we carried out with Hasan Karakoç, he
as 1992. stated that Rıdvan Karakoç last called them on February 20.
(5) We record here the various dates provided by the (20) The date of disappearance was given as 1993 in the
relatives of the disappeared who recounted their version interview we carried out with Turan Çiçek.
of the same event in Inquiry File No: 1995/2 of the Dargeçit
Chief Prosecutor’s Office, this is why there appear to be (21) Şemdin Cülaz, Halit Özdemir, Mehmet Salih Demirhan,
contradictory dates for this group disappearance. İbrahim Akıl, Hükmet Şimşek and Hamdo Şimşek were
disappeared at the same time. There is a different ECtHR
(6) The body of Abdurrahman Yılmaz was found on 14 application for Hükmet and Hamdo Şimşek dated 2010 that
February 1994. Some documents in the source legal file state requests the merging of the application with the application
that he was missing for 5-6 days, whereas another document made regarding Ş.Cülaz, H.Özdemir, M.S. Demirhan and
states the date of disappearance as 6-7 February. İ.Akıl in 2006. No decision has been made in either ECtHR
case as of yet. However, the ECtHR has decided to merge the
(7) Both surnames are given in the source legal file. applications. As for the date of disappearance, both ECtHR
applications state the date as 14 May 1993 or 14 June 1993.
(8) The date of disappearance was given as April 1993 in the
interview we carried out with Vedat Bulmuş. (22) The date of disappearance was given as 18 May 1992 in
the interview we carried out with Feyyaz Yaman.
(9) The location of enforced disappearance is not definite in
the source legal file, but it was registered as Silopi since a (23) The date stated in the source legal file varies, however
demand for a DNA test was presented for bones found in the accounts of the event recount that Hasan Baykura was
Silopi area. disappeared one or two days after the attack on Kamil Atak’s
home (December 1993).
(10) Enver Akan had actually set out to go to Midyat on that
day, however, since he was last seen in Mardin-Dargeçit, it
was recorded as thus.
(13) Osman Ünver, who filed the petition, states that Hazım
Ünver went to Iraq on the day of the disappearance, but that