9 years of impunity in Roboski

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December 28, 2011

Around 7.17 p.m.: Having set off from Gülyazı and Ortasu villages in Turkey's Kurdish-majority southeastern province of Şırnak at noon to get diesel fuel, sugar, rice and tea from Zaho in Iraqi Kurdistan, 38 people, 17 of whom were younger than 18, started to return to Turkey in two groups.

7.28 - 20.21 p.m.: Five illumination and seven demolition shells were fired at a distance of 5-6 kilometers to the groups.

9.03 p.m.: Hearing that the road had been closed, the people walking in two groups decided to stop and wait somewhere near the border.

9.40 and 9.43 p.m.: Taking off from Diyarbakır, two F-16 jets of the Turkish Armed Forces bombarded the point where the first group was located.

10.02 p.m. The third bomb was dropped on the ones who parted their ways from the first group and were going to the north.

10.24 p.m.: The fourth bomb was dropped on the second group.

Salih Encü, Seyithan Enç, Muhammed Encü, Cihan Encü, Selman Encü, Mehmed Ali Tosun, Erkan Encü, Nadir Alma, Osman Kaplan, Özcan Uysal, Zeydan Encü, Orhan Encü, Vedat Encü, Fadıl Encü, Şêrvan Encü, Şerafettin Encü, Şivan Encü, Savaş Encü, Karker Encü, Nevzat Encü, Mahsun Encü, Bilal Encü, Hüsnü Encü, Hamza Encü, Aslan Encü, Selam Encü, Adem Ant, Yüksel Ürek, Bedran Encü, Salih Ürek, Cemal Encü, Hüseyin Encü, Celal Encü, Serhat Encü...

...lost their lives.

Nine years have passed since the Roboski massacre; investigations have been launched and dropped, families' applications have been rejected.

As a matter of fact, the association established by the ones who lost their relatives and loved ones in the Roboski massacre was closed by a Statutory Decree. The Roboski memorial in Diyarbakır was removed, Diyarbakır Bar Association Chair Tahir Elçi was killed.

The first statement as to the bombardment came from Recep Tayyip Erdoğan, the then Prime Minister and current President of Turkey: "I would like to thank the Chief of General Staff and the command element for their sensitivity about this issue despite the media."

Hüseyin Çelik, the then Vice Chair of Erdoğan's ruling Justice and Development Party (AKP), also said, "Uludere is an operational accident." These statements gave a clue about the ensuing course of events.

We were not wrong.

The massacre has become one of the symbols of impunity in Turkey.

We have seen how this impunity has been set in motion step by step.

Investigation began with confidentiality order

An investigation was launched into the bombardment by the Diyarbakır Chief Public Prosecutor's Office and a confidentiality order was issued for the investigation file immediately.

Meanwhile, the Uludere Sub-Commission was founded at the Parliamentary Human Rights Inquiry Commission. In its report submitted to the commission, the Ministry of National Defense did not answer the questions by citing the confidentiality order issued by the Diyarbakır Specially Authorized Prosecutor and Uludere Penal Judgeship of Peace.

The report prepared by the Parliamentary sub-commission was approved on March 27, 2013. Ertuğrul Kürkçü, the then Mersin MP of the Peace and Democracy Party (BDP) of the time, expressed a dissenting opinion to the report, underlining that the report left the questions unanswered.

Military prosecutor's office took over

Conducting the investigation, the Diyarbakır Chief Public Prosecutor's Office gave a decision of non-jurisdiction and sent the file to the Military Prosecutor's Office of the General Staff on June 12, 2013. As part of the investigation, what the prosecutor had done in 1.5 years was just to send official letters to the institutions, especially to the National Intelligence Organization (MİT) and the General Staff, and ask them for documents.

Giving a statement as part of the investigation taken over by the military prosecutor's office, Duran İspir, a Lieutenant from the 2nd Uncrewed Aerial Vehicle Command who had been controlling the Uncrewed Aerial Vehicle during the incident, said that, from the very beginning, they had "considered the ones whom they screened to be smugglers."

İspir also stated that he had objected to a possible cannon fire to the approaching group "as it was not safe and could bear bad consequences based on past experiences." According to what İspir said, he also shared his opinion with the Fleet's Commander Major. "At last, he wanted us to mark the group with the laser. I did it. The jets did the bombardment."

Prosecutor's office of general staff closed the file

The Military Prosecutor's Office of the General Staff gave a decision of "no ground for prosecution (lawsuit)."

The justification part of the decision read, "...as it has been understood that the Turkish Armed Forces (TAF) personnel fulfilled the duty rested in them by the decrees of the Parliament and Cabinet, they made an unavoidable mistake while fulfilling the duty, therefore, the reasons for opening a criminal case against them over their actions have not been found..."

The Ankara Chief Public Prosecutor's Office also concluded that there was "no ground for prosecuting" Necdet Özel, the then Chief of General Staff, for "influencing fair trial" and "violating the confidentiality of the investigation."

Dissenting opinion by supreme court member

After the appeals of Roboski families against the decision of non-prosecution given by the General Staff's Military Prosecutor's Office were rejected, they applied to the Constitutional Court on July 18, 2014.

On February 26, 2016, the supreme court rejected the application of the families who were themselves the victims of the Roboski massacre.

Without even feeling the need to review the file, the Constitutional Court gave this decision of rejection on the sole ground of the two-day delay of Nuşirevan Elçi, the attorney of only three applicants, to submit his warrant of attorney. The detailed decision of the Constitutional Court was published in the Official Gazette on March 23, 2016.

Osman Paksüt, a member of the Constitutional Court, expressed a dissenting opinion to the detailed decision of the supreme court.

Paksüt indicated that the Second Section of the Constitutional Court, in its session on February 24, 2016, rejected the application by a majority of votes without examining it as to the conditions of admissibility on the grounds that the necessary and essential documents had not been submitted on time and no valid excuse had been presented.

"I do not agree with the rejection of the application as I am hesitant about whether the expiry of the due date and the acceptance of the excuse were examined in an extremely formalistic way or not," he said.

ECtHR rejected the application as well

281 victims of the Roboski massacre appealed to the European Court of Human Rights (ECtHR) on August 23, 2016, saying that their rights, especially their right to life, had been violated by the incident.

In its judgement dated May 17, 2018, the ECtHR found the application "inadmissible" by citing the Constitutional Court's rejection of the families' application because "the attorneys sent the documents two days late."

The judgement of "inadmissibility" was based on not a technical deficiency in the application to the European Court of Human Rights, but a deficiency in the application to Turkey's Constitutional Court.

Legist Kerem Altıparmak, who has been following the case closely, made the following comment in response to this: "The ECtHR, in its Encu vs. TR judgement, has imbedded the Roboski massacre, where 34 people, most of whom were children, were massacred, in history on the grounds that documents were sent to the Constitutional Court two days late."

What will happen now?

Speaking to bianet, Neşat Girasun, one of the attorneys of Roboski families, said, "If a new era begins when the law and democracy work, justice can be served for Roboski." Altıparmak also noted, "Unless there is not a new development regarding the case, a step cannot be taken."

In his last statement to bianet, attorney Girasun has said that they have made a new application on the grounds that new evidence has come up amid the new developments in the wake of the military coup attempt. The attorney has indicated that there is currently an open investigation file.

Families' attorneys are also planning to make an application to the United Nations (UN) Human Rights Committee. (AS/SD)