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Once again, yet another trial that ends in “impunity” for the Turkish State: this time, the trial concerning the murder of Kemal Kurkut who was shot down in public by the police during the Newroz holiday in 2017, in the province of Diyarbakır in southeastern Turkey.
On March 21 2022, the Diyarbakır regional court of appeal concluded that “no infraction could be imputed to the policeman on trial” and that the policeman who was the author of the murder “had not violated Kemal Kurkut’s right to life” and that the act was committed “in a legal framework.”
During this Newroz period — the Kurdish New Year — on March 21st, a day of joy and celebrations to which Kemal’s painful and revolting memory will always be linked, let us remember:
Born in Adıyaman, Kemal Kurkut was a student in the Music Department of the Fine Arts Faculty of Inönü University. On March 21st 2017 he was killed by gun fire at a police checkpoint on Evrim Alatas street in Diyarbakır, near the park where Newroz was being celebrated and where he was headed.
Kemal’s funeral took place on March 22 in Battalgazi, in the province of Malatya.
On the photos taken at the time of the incident by journalist Abdurrahman Gök, Kemal is bare-chested and arguing with the police. He then starts to run across the checkpoint.
The population of Diyarbakır was gathering in droves in the park for the celebrations. In order to enter the authorized zone, participants had to go through a main checkpoint, itself preceded by several others acting as “filters” before reaching the main entrance. At the very first controls, Kemal met with problems, his bag and his person were both searched. He told them he had nothing on himself and that these searches were annoying him. He was deeply excited and experienced this insistence as an agression. He made it through the first checkpoint, already on the verge of a nervous breakdown… This is where he entered a butcher shop to grab a knife. He pulled off his T‑shirt to prove he wasn’t hiding anything. And that the knife was not intended as an attack on anyone. In his excitement, he threatened to harm himself. As a matter of fact, policemen testified to this in court, clearly stating he was not threatening anyone else with this knife. Between this checkpoint and the next — a distance of 800 meters — policemen were aware of the situation as they were exchanging messages by walkie-talkies… They could have prevented him from moving forward in order to calm him down, but they did nothing of the sort. They allowed him to reach a second checkpoint. What happened next only took a few seconds. Kemal started to run. Some policemen fired in the air. He was felled immediately. The entirescene was photographed
Abdurrahman Gök, who shot the images, was also harassed for his photos and for sharing them on social networks. Following an investigation including wire tapping and a police raid on his home, he was taken into custody in 2018, then charged for his “photos and sharing’ and accused of “propaganda” and “belonging to an illegal organization” with the prosecutor demanding a total of 27,5 years in prison.
In other words, as usual with Turkish injustice, instead of looking at the moon being pointed out by the finger, there was an attempt to twist the finger on the journalist.
Abdurrahman Gök spoke a truth that, as you know, is far from being a secret: “The Turkish government tries to pressure those who attempt to do their work, with accusations such as ‘belonging to a terrorist organization’ and ‘terrorist propaganda’. Because of these pressures, hundreds of journalists have been forced to flee the country, dozens of others are in prison and many, such as myself, are at risk of decades of emprisonment.”
The course of the proceedings
We spoke with Abdurrahman Gök a few days before this year’s Newroz and he sent us the following summary of the facts he had witnessed:
“Kemal was shot in a spot where there were dozens of people, journalists, policemen and various armored vehicles. He was in a state of great excitement following the psychological pressures to which he had just been subjected: he even pulled off his T‑shirt and found himself bare-chested. While it was possible to neutralize him simply by tripping him, he was felled with a bullet shot from a short distance and aimed so as to kill.
I witnessed these moments as did the other people who were there. Perhaps my testimony was unquestionable because of the photos I had taken. Aware of this, the police attempted to confiscate my material but did not find the memory card in my camera. I was quicker than they were: I had removed and hidden the card. I told them that, by journalistic reflex, I had aimed and clicked even though my camera was not yet ready. The policemen checked the other memory cards in my bag, wiped the photos off all of them, and were then convinced I had not photographed the scene.
They were indeed convinced of this because, following the report from the Security Directorate to the Diyarbakır Governor, the following declaration was issued: “A ’human bomb’ individual was neutralized as he attempted to enter the zone of the Newroz celebrations.”
Following the publication of the photos invalidating the declaration from the governor’s office, they were “forced” to launch an investigation.
On March 25 2017, two policemen were taken into custody. — Y.S. on staff with the Directorate against organized crime and O.M. a member of the anti-riot police but temporarily working with the anti-terrorist police. The governor’s office declared that these two policemen had been suspended from their duties.
Yet, the two were set free without a true period of custody. And an inquest was opened by the prosecutor’s office for “murder with possible intent”. As pertains to the policeman O.M., all charges were dropped. As for Y.Ş. a trial was opened still for “murder with possible intent” and an indictment was prepared on October 2 2017, carrying a request for a sentencing to perpetuity.
On December 14 2017, during the hearing where I was heard as a witness, the accused Y.Ş. declared he had been authorized to resume his duties three months after the murder. Which means that a policeman on trial with a sentence recommendation of sentencing to perpetuity was still working in the police. The prosecutor requested that the accused be imprisoned, the tribunal refused…
During the hearing on April 26 2018, this same tribunal refused the same request again, using as a pretext that “the report requested from the Forensic medicine Institute (ATK) has not been received yet nor had all the evidence been collected.” The policeman on trial for murder and for whom a sentence of perpetuity was recommended was still free and pursuing his usual occupations.
Later, on December 20 2018, a new report was filed: in it, the Forensic medecine Institute notified that “Kemal Kurkut had lost his life because of a bullet ricochet against the ground” and that ” the casing of the bullet did not allow for a ballistic examination”.
The court then decided to request a report for the National crime Bureau (UKB). The UKB report was added to the file during the hearing on February 28 2019. Contrary to the report submitted by the Forensic medecine Institute, this report had studied the recordings from the police vehicles on location at the time of the murder and analyzed the images second by second, thus establishing that Kemal Kurkut had been killed by Y.Ş. with a direct and aimed shot.
However, this time, the tribunal decided that the UKB report was “incomplete” and requested a second report. Visibly, the conclusions of the UKB were diametrically opposed to those of the Forensic medecine Institue which did not help matters…
At the hearing on May 39 2019, the second UKB report was submitted to the tribunal. In this one, the UKB followed the direction of the Forensic medecine Institute findings and opted for the “bullet ricochet”. At the end of this hearing; there was a request to remove the contradictions between the reports.
At the next hearing on October 24 2019, the request for the policeman’s incarceration during the trial was refused once again. The latest report for the Forensic medecine Institute having not arrived yet, the hearing was moved to another date.
We now arrive in 2020…
On January 14 2020, the Forensic medecine Institute filed with the tribunal the report “eliminating the contradictions” between the various reports. In this one, the Institute repeated what it had stated in the preceding one: “the bullet had effected a ricochet.”.
Five months later, on June 16 2020, the prosecutor submitted his indictment. It was based on the reports concerning the famous ricochet and requested that policeman Y.Ş. be sentenced to 3 to 9 years for “having caused the death through conscious negligence”.
On September 22 2020, a new hearing took place, following a change in the delegation of judges… The hearing was moved to November so that the new delegation could study the case.
On November 17 2020, which is to say at the 12th hearing, the tribunal decided to acquit the policeman Y.Ş. for “lack of evidence”.
On December 19 2020, the Diyarbakır security Directorate requested information about the latest developments from the Diyarbakır Penal Tribunal. Once this was provided, it was decided that the policeman’s costs for the murder of Kemal Kurkut would be borne by the Ministry of the Interior.
For its part, Kemal Kurkut’s family had filed against the Ministry of the Interior for “failure in its duties” and the tribunal had awarded an indemnity of 256 thousandTurkish pounds (equivalent to 15 000 €). But the Gaziantep regional administrative tribunal annulled this decision on January 12 2022.
And on March 21st last, the Diyarbakır regional court of appeal went even further by declaring that “no crime could be imputed to the policeman accused of the murder of Kemal Kurkut and that the murder had been committed ’in a legal framework.” Finally, after 5 years of judicial combat, Turkish justice rendered the “verdict” announced and expected from the very onset of the whole business…
What did other reports say?
Inspectors from the Ministry of the Interior also investigated and gathered testimony from 5 policemen including Y.Ş. and O.M. Their report includes the opinion that “these policemen should no longer be in exercise given their disobedience to orders.” Indeed, their superior had ordered them to “lower their weapons in favor of non-lethal ones”.
According to the report from the Disciplinary Council of Diyarbakır’s provincial police, one of the two bullets struck a vein, the other struck a hand. According to ballistic analyses, this second bullet came from policeman O.M’s weapon, the very same person against whom all charges were dismissed…
Despite these reports, including the opinion they should be barred from the profession, Y.Ş. was authorized to return to work even before the indictment was submitted to the tribunal.
Once again, according to the inspectors’ reports, the policemen, including those under indictment, were whitewashed even with the knowledge that an “analysis of the shooting” was forthcoming.
And, personally, for having published photos of Kemal Kurkut, my home was searched twice by the police, investigations were launched against me, an indictment prepared with a requested prison sentence of up to 27 years for “belonging” and “propaganda”.
A murder committed “in a legal framework”
On what did this tribunal base its opinion that Kemal Kurkut’s murder by the police “occurred in a legal framework”?
Referring to article 17 of the Turkish Constitution dealing with the “right to life”, the court of appeal argued that actions leading to death and unintentional murder, under constraint, could not be considered as “violations of the right to life”.
The first and fourth sentences of article 17 read as follows:
“Every person has the right to life and the right to protect and improve his bodily and spiritual existence.
In a context of legitimate defence, and where the law authorizes the use of a weapon as a restraining measure, during the execution of mandates of capture and arrest, of prevention of the escape of arrested or legally condemned persons, of the repression of a riot or an insurrection, or the execution of orders from authorized bodies during a state of emergency, do not come under the disposition quoted in the first paragraph.”
In order to further justify its decision, the court of appeal also referred to article 2/b of the European Court of Human Rights (ECHR):
“Deprivation of life must not be considered as inflicted in violation of the current article when it results from the use of force not exceeding what is strictly necessary: (a) to defend someone against illegal violence; (b) in order to proceed to a regular arrest or thwart the escape of a person detained by regular means; c) in the framework of a regular action aimed at repressing a riot or an insurrection.”
In so doing, the court of appeal ignored the first provision of the ECHR’s article 2 which reads as follows:
“Every person’s right to life is protected by law. No one can be intentionally deprived of life, other than in execution of a sentence pronounced by a tribunal following a condemnation for a crime for which this sentence is legally provided.”
This is how the Court justifies the “legal framework” of the murder
The decision of the court of appeal also mentions article 24/1 of the Turkish penal code (TCK) which stipulates that “a person applying legal dispositions can not be subjected to a sentence” as well as article 16 in law n° 2559 on police powers which defines the conditions under which policemen are entitled to the use of force and weapons in a progressive manner..
Serdar Çelebi, the lawyer for Kemal Kurkut’s family, said in reaction to the court of appeal’s decision defending the fact that Kemal was killed “in a legal framework”: “Even the decision of acquittal was not considered sufficient. This verdict says “oh policemen, feel free to proceed, we are protecting you!…”
In evoking this testimony, the long procedures lasting five years in order to arrive at a “State truth” already decided as early as in 2017, one gauges the regime’s stranglehold on its justice. The State here is protecting its forces of repression and exonerates them, sending a signal of impunity, while depriving the family of its recourses, and accusing eye witnesses.rects.
On last March 20, Kemal Kurkut was commemorated by his family and friends, in front of his tomb..
On March 21, Kemal was in the heart of all at the Newroz gathering in Diyarbakır…
In fact the celebrations began with a homage at the spot where Kemal fell.
— sırrısakık (@sakiksirri) March 21, 2022
Translation from French by Renée Lucie Bourges
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