Despite assurances given to ECtHR, file was closed

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  • 10:11 7 October 2021
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VAN - Dspite Turkey's commitment to the ECtHR regarding the case of Zahir Yılmaz, who was killed by soldiers 18 years ago in Çaldıran, the local court closed the case.
The case of 14-year-old Zahir Yılmaz, who was killed by soldiers on October 1, 2003, near the Qaşım (Üçgözler) District on the Çaldıran-Iran border of Van, has not been concluded for 18 years. Although Turkey's assurance to the European Court of Human Rights (ECHR) that it would be possible to reopen the criminal proceedings against the soldiers in question, the local court did not recognize the decision.
Right after the incident in 2003, the Yılmaz family filed a criminal complaint against the soldiers in the police station through their lawyers. In addition, an investigation was launched against 10 soldiers on the charge of "deliberate killing". After the indictment was accepted, all the soldiers were acquitted in the trial held at the Erciş High Criminal Court. The appeal made to the Supreme Court was also rejected and the case resulted in impunity.
After exhausting domestic remedies, the family applied to the ECtHR through their lawyers. Sending a defense to the ECtHR on December 14, 2020 with the start of the trial, Turkey emphasized that it would be possible to reopen the criminal proceedings against the acquitted soldiers. The ECtHR, on the other hand, announced its decision against Turkey's commitment on July 1, 2021. ECtHR stressed that Turkey accepted the violation in the case file and a retrial was in order. ECtHR decision continued as follows: "The Government considered that the aforementioned remedy could provide redress in respect of the applicants' complaints under Article 2 of the Convention. The Government therefore proposes to pay all kinds of pecuniary and non-pecuniary damages to the applicants in order to resolve the pending case before the European Court of Human Rights."
The ECtHR also underlined that if the government does not comply with the unilateral notification conditions, the application can be taken back to the list of cases. Lawyer Murat Timur, who applied to the Erciş High Criminal Court on July 7, 2021 after the verdict, demanded that the file regarding the acquitted public officials to be reopened. The court rejected the request on the grounds that Turkey's unilateral notification to the ECtHR was not considered among the reasons for the retrial. In the objection made to the Van 3rd High Criminal Court against this decision, the court stated that the decision of the Erciş High Criminal Court was appropriate, without giving any reason, and did not recognize the commitment Turkey made to the ECtHR.
Evaluating the decision, attorney Murat Timur said: "Hundreds of people were killed at the border while border trading since 2000. Most of these cases ended in non-prosecution. The law enforcement officers, who are the defendant of these cases were acquitted on grounds that they were doing their duty. It is possible to say that the impunity policy of the judiciary has been institutionalized in all deaths in the border region. Since this approach shows that any intervention by public officials at the border will be tolerated, public officials can easily commit all kinds crimes."
Timur said that since there is no opportunity for citizens to make a living in all border villages, it has been known that public authorities have allowed border trading for years.Since an effective and fair investigation was not conducted in the investigation regarding the death of the client's relative, those responsible for the incident were not punished. As a matter of fact, in the declaration submitted by the government to the ECtHR, it accepts that the clients' right to life has been violated in this case. Either these courts do not know the nature of the ECtHR's decisions or they have an assessment that the ECtHR's decisions are not binding. In both cases, it shows that the judges did not implement the judicial decision on purpose. We have already informed the ECtHR of our opinion that the judicial system, which does not fulfill even the ECtHR's conviction decisions, will not comply with the retrial if the declaration is accepted. The applicants have been fighting for justice in Turkey for 18 years. The violations of the ECtHR regarding the death cases in the border regions recently show that the violations in this region occur systematically and that the judicial and administrative bodies act with a common policy of impunity. With the rejection of our objection after this decision, the legal process in Turkey was completed. We will apply to the ECtHR for the file to be included in the case list again."
MA / Adnan Bilen 

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