* Photo: Abdurrahman Gök
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The trial over the killing of Kemal Kurkut, who was shot to death by police during the 2017 Newroz in Turkey's Kurdish-majority southeastern province of Diyarbakır, has once again ended in impunity.
The Diyarbakır Regional Court of Justice, the court of appeals, has said that "no offense can be attributed to the police officer on trial" and concluded that the murder was committed "within legal framework".
CLICK - Yet another ruling of 'impunity' for Kemal Kurkut
As reported by Mezopotamya Agency (MA), the 1st Penal Chamber of the Diyarbakır Regional Court of Justice has finalized the appeals lodged by the plaintiffs against the ruling of acquittal given for police officer Y.Ş. by the Diyarbakır 7th High Criminal Court.
Discussing whether the killing of Kurkut was "within legal boundaries or not", the appeals court has concluded that the failure of the local court to base the acquittal on this consideration posed a deficiency on procedural grounds and overturned the related local court ruling.
Reference to Constitution and ECHR
Referring to the Article 17 of Turkey's Constitution on "right to life", the appeals court has argued that the acts of death and killing in compulsory situations shall not be considered "violations of right to life".
The 1st and 4th sentences of Article 17 read:
"Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.
"The act of killing in case of self-defense and, when permitted by law as a compelling measure to use a weapon, during the execution of warrants of capture and arrest, the prevention of the escape of lawfully arrested or convicted persons, the quelling of riot or insurrection, or carrying out the orders of authorized bodies during state of emergency, do not fall within the scope of the provision of the first paragraph."
In justifying further its ruling, the appeals court has also referred to the Article 2/b of the European Convention on Human Rights (ECHR): "Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection."
In doing this, the appeals court has disregarded the 1st provision of the Article 2 of the ECHR, which reads as follows:
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
Court cites 'legal framework' for the killing
The ruling of the appeals court has also cited the Article 24/1 of the Turkish Penal Code (TCK), which says, "A person who carries out the provisions of a statute shall not be subject to a penalty" and the Article 16 of the Law no. 2559 on Police Powers pertaining to the conditions when police officers are given the right to use force and weapons by degrees.
Accordingly, the appeals court has argued that the killing of Kemal Kurkut by the police "fell within the indicated legal framework".
The court has recalled that "in acquitting the officer, the local court cited the reports of the Forensic Medicine Institution and National Criminal Bureau, which found that Kurkut lost his life as a result of the bullet bouncing from the ground". The court has claimed that "it is against the law" to attribute Y.Ş. this crime without discussing the authority to use weapons".
The appeals court has concluded that "given that the unlawfully charged offense had been committed by fulfilling the binding order, it should have been concluded that 'there was no ground for penalization'."
Since it is not certain whether the crime in question was committed by the defendant, the appeals court has found it "against the law" that the police officer had been acquitted "based on deficient justification" and unanimously ruled that the acquittal should be definitely overturned.
What happened?
Kemal Kurkut was shot dead by the police at the security checkpoint on Evrim Alataş street near Newroz Park in Diyarbakır on March 21, 2017.
In the photos taken at the incident time, Kurkut was seen bare-chested quarreling with police at the checkpoint and starting to run passing through the checkpoint. Some police officers fired in the air, some fired on him.
Dihaber reported that Kemal Kurkut was shot despite a police chief ordering "Don't shoot". Diyarbakır Governor's Office declared that Kurkut had a knife in his hand, he was "suspected to be a suicide attacker", and an investigation was launched into the incident.
Put on trial for killing Kemal Kurkut "with eventual intent", police officer Y.Ş. has been acquitted by the court. In the hearing of the lawsuit held at the Diyarbakır 7th Heavy Penal Court on November 17, 2021, the court ruled that police officer Y.Ş. should be acquitted and criminal complaints should be filed against 72 police officers to identify the possible suspects.
An appeals court has also overturned a ruling that the Ministry of Interior should pay compensation to the family of Kemal Kurkut.
Born in Adıyaman, Kemal Kurkut was a student at the İnönü University Fine Arts Faculty Department of Music. His funeral was held on March 22 in Battalgazi district of Malatya province. (HA/SD)
