In April 2007, four police officers, Mehmet Karaca, Yasafettin Açıkgöz, Seydi Ahmet Döngel and Salih Ayaz were acquitted of the killing of Ahmet Kaymaz and his 12-year-old son Uğur Kaymaz in the Kızıltepe district of Mardin province, southeastern Turkey.
Relatives of the father and son appealed against the decision of the heavy penal court in Eskişehir, western Turkey.
Now the Supreme Court of Appeals has upheld the acquittals, agreeing with the description of "legitimate defence":
"The defendant police officers were within the limits of legitimate defence; when evidence was examined, no inappropriacy was found."
Lawyers for the Kaymaz family say that forensic medical reports prove that Uğur was 12 years old, a statement the police denies, and that there was no battle, but rather an extrajudicial execution.
Reşat Kaymaz, brother of Ahmet Kaymaz, is quoted in the Sabah newspaper as saying, "Now we do not believe that justice will be done anymore. With the decree, we experienced a second killing, a second shock." He added that the family was considering an appeal to the European Court of Human Rights (ECHR).
Bias from the beginning
The father and son had been kiled on 21 November 2004. Following the statement of the Mardin governor's office, the press reported the "killing of two terrorists".
Lawyers for the Kaymaz family and joint attorneys expressed doubts about the possibility of a fair trial from the beginning.
The demand for the defendants to be tried in detention was rejected at each hearing. Statements were made by the defendants outside of court. The officers were returned to active duty and transferred to Istanbul, Bursa, Kocaeli and Mersin. The court case was then moved from Mardin to Eskişehir for "security reasons". The defendants only attended hearings after the court case had been moved to Eskişehir.
Lawyers said that the atmosphere created in Eskişehir prevented a fair trial. The Eskişehir governor's office banned gatherings, demonstrations, press statements and "similar activities" prior to the hearings.
Many people who had come to Eskişehir to monitor the trial were not admitted into court. Governor Kadir Çalışçı said that "those who want to watch the trial are provocateurs."
Medical reports not taken into account
The Istanbul Forensic Medical Institute said in its first report that there were bullets very close together in Uğur Kaymaz's back, and taht it would not have been possible for him to have taken part in a battle after being wounded. The report further said that contrary to the claims of the police, who spoke of a child "big for his age", 12-year-old Uğur was a "medium-sized boy" of 1.60 metres.
The demand of third-party plaintiffs for an investigation was rejected; rather, police recordings on a CD were watched.
When asked by the joint attorneys, the forensic institute said that the gunpowder traces found on the hands of Ahmet and Uğur Kaymaz was not necessarily proof that they had taken part in a shooting, and the report was sent to the court. However, the defence lawyers said that the traces were proof of a battle.
Finally, the forensic institute sent a report on which bullets had come from which gun and which gun had belonged to whom. This report, so the joint attorneys, disproved the claims of the police officers.
"Police is being encouraged to kill"
Öztürk Türkdoğan, president of the Human Rights Association (İHD), has evaluated the appeal court's decree as "inappropriate and stretching the limits of the law."
Speaking with bianet, Türkdoğan said that despite the forensic report saying that no battle took place, the supreme court said that using a gun against a 12-year-old child was "legitimate defence".
"This decree encourages the security forces to commit human rights violations. Let us hope that no other cases take place."
"Supreme court ignored legislation"
He added that the decree ignored Article 15 of the Turkish Constitution, which says, "the individual's right to life, and the integrity of his or her material and spiritual entity shall be inviolable."
Türkdoğan said, "The right to life is the most important right, which is even protected in times of war. The court cannot make use of old habits and say 'legitimate defence, authorised to use guns.' The Supreme Court ignored the constitution and ECHR case law."
He said he was "certain" that Turkey would be convicted of violation of rights in an ECHR decree.
"Judges should pay"
According to the mechanism of recourse in new laws, any compensation that would be paid out should come out of the pockets of the public officials responsible; this would mean the Ministry of Justice making the judges pay. "However, the mechanism is not being implemented yet." (TK/AG)
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