‘Statutory limitations non-applicable to crimes against humanity without additional laws’
* Photo: Pexels
Click to read the article in Turkish
Lawyer Esra Kılıç from the Truth Justice Memory Center has spoken to bianet about the Bismil case, which has ended in impunity due to the expiry of statutory limitations even though there was a court ruling that concluded that the death had been caused by torture in detention.
Lawyer Kılıç underlines that statutory limitations may not be applied when a crime against humanity is the case.
CLICK - Constitutional Court orders state to pay 500,000 lira for 'impunity for torture and killing'
Taken into custody with 16 others in Ağıllı village in Bismil district in Turkey's Kurdish-majority southeastern province of Diyarbakır in 1992, A.K. lost his life. In the trial over this death, the soldier who was convicted of killing with torture was first sentenced to aggravated life imprisonment. His sentence was then reduced on the grounds that "he repented."
This sentence was also dropped on the grounds of the expiry of the 25-year statute of limitations. The incident ended in impunity.
Examining the application of the family, the Constitutional Court has concluded that the right to life and the prohibition of ill treatment as per the Article 17 of the Constitution were violated. The top court has ruled that the family shall be paid 500 thousand lira in non-pecuniary damages.
However, the Constitutional Court has not given a ruling of retrial by the local court on the grounds of the expiry of statutory limitations.
'Customary practice in international law'
Lawyer Esra Kılıç explains that in such cases, statutory limitations may not be applied as per the national and international law:
"Decisions of non-prosecution are given or charges are dropped due to the expiry of statutory limitations in the trials over several crimes of torture, unsolved murders, evacuations of villages and enforced disappearances that were committed in the 1990s and even before that.
"The investigations and prosecutions in these files are conducted as per the former Turkish Penal Code (TCK) no. 765, which had been in force when the related crimes were committed, and the statutory limitations are applied based on the provisions of this law.
Statute of limitations is a legal regulation which is against the states' obligation to investigate the crimes against humanity and to penalize the perpetrators.
The lawyer underlines that "with the legal regulations regarding statutory limitations adopted on the international level, it has become a customary legal practice in the international law that the statutory limitations shall not be applied to such crimes." She lists the following legislation:
- The United Nations (UN) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity;
- European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes;
- The Rome Statute of the International Criminal Court;
- The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which was accepted by the UN General Assembly on March 21, 2006.
The lawyer explains the legal framework further:
"Moreover, in several judgments of the Inter-American Court of Human Rights and the European Court of Human Rights (ECtHR), the issue of statutory limitations is addressed in terms of such crimes.
"In its related ruling, the Constitutional Court has solely ruled that damages shall be paid; however, on the grounds of the expiry of statutory limitations, the Court has not given a ruling stipulating that a retrial shall be held by the local court which held the trial.
"There is - in fact - no need for a legal regulation to enforce the rule of non-applicability of statutory limitations to crimes against humanity."
Concluding her remarks, lawyer Kılıç underlines, "Statutory limitations may not be applied to the related crimes in compliance with the customary practices in the international law and based on legal precedents."
What happened?Security forces detained 17 people in Ağıllı village in Bismil, Diyarbakır, after clashes with the outlawed Kurdistan Workers' Party (PKK) members on April 19, 1992. They said fire was opened from the village. The detainees were taken to the Bismil Gendarmerie Station. That night, commando units of the Silvan Gendarmerie Command and the Hazro Gendarmerie Command were at the gendarmerie station as guests. 'Appendicitis' At around 2 a.m., the detainees were taken to the Tepe Gendarmerie Station. according to the minutes recorded by soldiers, detainee A.K. was taken to Bismil State Hospital at around 6.30 a.m. because of "having appendicitis" and lost his life on the same day. The Bismil Chief Public Prosecutor's Office opened an investigation into the death. The forensic medicine report included findings of torture. A criminal case was filed against 15 soldiers at the Diyarbakır 3rd Heavy Penal Court. In their testimonies, soldiers said that A.K. was tortured with batons in the bathroom of the custody suite by the soldiers in the team of sub-lieutenant O.U., nicknamed "Rambo." Witnesses who were kept in the same detention room as A.K. also stated that A.K.. told them that he was tortured. Verdict after 18 years Eighteen years after the incident, on October 26, 2010, the court sentenced soldier S.Ü. to aggravated life sentence for "killing with monstrous feelings or torment." The other defendants were acquitted. Sentence reduction The ruling was overturned. As a result of the retrial, S.Ü. was sentenced to 20 years and 16 years and 8 months by different verdicts. His "repentance" was taken into account in the judgments. The Court of Cassation ruled that the case should be dropped after the expiration of the statute of limitations. |
(AS/SD)
Boğaziçi Üniversitesi Felsefe Bölümü mezunu. Mimar Sinan Güzel Sanatlar Üniversitesi Sosyoloji bölümünde yüksek lisans yaptı. Marmara Üniversitesi İletişim Bilimleri’nde doktora yapıyor. Vatan, Akşam, HaberTürk ve Hürriyet gazetelerinin yazıişleri ve dış haberler bölümünde çalıştı. Güncel Hukuk dergisinde yazıları yayınlandı. BirGün’de Anonim adlı köşeyi yazıyor. 2011’den bu yana bianet’te İnsan Hakları Editörü.
Tahir Elçi killing: Prosecution seeks acquittal of all police officers
‘How can there be water problem in a recently constructed prison?’
ECtHR sentences Turkey for violation of right to a fair trial
Prisoner battered after refusing strip search
REPORT FROM 25 INTERNATIONAL LEGAL ORGANIZATIONS AND BAR ASSOCIATIONS:
'The right to a fair trial violated in the ÇHD case'
