Kemal Kurkut’s murder, “a legal framework”

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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.

Amed Newrozu Kemal Kurkut’un katledildiği yer­den başlıy­or. Bu Newroz, her Newroz Kemal Kurkut ve tüm katledilen­ler için…#NewrozPirozBe #KemalKurkut pic.twitter.com/xWwzZcaw1C

— sır­rısakık (@sakiksirri) March 21, 2022

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Translation from French by Renée Lucie Bourges

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