REPORT ON THE TRIAL OF ABDULLAH YAŞA

REPORT PREPARED FOR : MAFDAD

SUBJECT OF REPORT : Abdullah YAŞA

PREPARED BY : Lawyer Muharrem ERBEY- Vice President of Human Rights Association and President of HRA Diyarbakır Branch

DATE OF PREPARATION : 24 july 2008- Diyarbakır

DISCLOSURE :

During the incidents in Diyarbakir which began on 28 March 2006, Abdullah YAŞA left his house for his aunty's house on 29 March 2006. At the same time there were tensions between the police and demonstrators who were quite a distance away from him. Police had been using tear gas grenades not only at the streets where the demonstrators were but also streets where other people had been using. One of those tear gas grenades hit the face of 13 year old Abddullah Yaşa. As a result of the direct hit Abdullah YAŞA’s nose was fractured. Yaşa was kept at the hospital for one week and was treated. It took weeks for his wound to heal. However a scar is left on his face and due to the incident there is a permanent change in his face.

Later, Abdullah YAŞA lodged an application with the Human Rights Association – Diyarbakir Branch. Lawyer Ömer HALEFOGLU, a member of the management board of Diyarbakir Branch, lodged a criminial complaint with the prosecutor on behalf of Abdullah YAŞA so that an investigation and a trial can be held against the policement who had aggrieved YAŞA.

In the mean time a major operation had been initiated to capture those who had taken part in the 28 March incidents. Many people including those against whom footage was available and also those who could prove through documents that they were in their workplace and had nothing to do with the incidents had been detained, arrested and referred to courts.

An investigation has been jointly conducted by HRA Diyarbakir Branch and Diyarbakir Lawyers Bar Association on the 28 March incidents and a report as result has been written. According to this report the deaths have occurred due to fire arms and gaz grenades, aggravated torture and ill-treatment of those detained in detantion units have been documented through doctor reports, many children were detained at random and were the subject of aggravated torture and ill-treatment, these children were later freed and were not passed on to the judiciary and it has been revealed that the police have used disproportional force.

Nolle prosequi was the decision against the criminal complaint made in relation to the related policemen on the basis that there is no room to open a case against them.

In the meantime an investigation against Abdullah YAŞA had been opened by the Diyarbakir Chief Prosecutor alleging that he had been involved in the incidents. The Chief Prosecutor prepared an indictment against Abdullah YAŞA on the basis of his investigation that he had involment in the incidents. In the indictment penalty on the basis of Article 7/2 of the Prevention of Terrorism Act and Article 314 and 220 of Turkish Penal Code had been demanded. This means 20 years of imprisonment has been demanded as penalty for Abdullah YAŞA.

A court case was opened against Abdullah YAŞA at Diyarbakır Children's Asize Court. After the trial Abdullah YAŞA was acquitted due to lack of evidence.

Futhermore an appeal is lodged against the decision of nolle prosequi with the Siverek Asize Court. This appeal was also rejected on the grounds that police held no responsibility.

Juridical process other then criminal complaints have also been employed against the police that had used disproportional force. Hence an application for damages has also been filed against the Interior Ministry. This has also been rejected on the grounds that there are no court decisions. As a result a court case is filed with Diyarbakir 2^nd Administrative Court with principle file 2006/1835. The request for judicial assistance for Abdullah YAŞA who could not pay the court fees was subsequently rejected.

Due to this the amount for claimed damages was decreased so as to be able to pay the court fees, hence around 400 YTL was paid in order to continue with the court case. However, this time a decision was made to reject the case file. The reason for the rejection was based on the fact that both financial and moral compensation was requested in the same apllication and lodged as one case. As a result two new statement of claim is prepared and two seperated cases are lodged. These cases are still before the Diyarbakir Administrative Court and are pending.

CONCULSION: It is unfortunate to note that judicial mechanism in relation criminal complaints against the crimes and actions and disproportional force used by security personnel in Turkey function very slowly. As a result court cases are generally not opened against the security personnel for criminal proceedings and hence citizens' trust for jurisdiction and state is damaged. Just as in this example and in many examples of torture and ill-treatment cases it has been exposed that jurisdiction has been under the influence of politcs and at times has lost its independence.

In order to get an approval for an investigation against a security personnel (police or soldier) there is a need for the approvel of its superior whereafter the case file together with the approval for the investigation is sent to the prosecutor. Case files against the security personnel, where concrete doctor reports are even present, have not been approved for investigation.

In 2005 ammendments have been made to the Turksih Penal Code and as a result powers of secutiry personnel have been increased leading to the prevention of citizen's right to express his/her opinion and mobility.

In 2006 the powers of police have been expanded with the Law on Police and its authority.

In 2007 amenments that have been made to the Prevention on Terrorism Act has legitimized the use of force.

Democratic reforms made in 2000 in compliance with the EU accession process have all been taken back since 2005. Human rights violations have increased 260% in the first six months of 2008 when compared with the first six months of 2007. The use of disproportional force by the police have increased inconceivably. The insensitiviy of politicians and the AKP government against these implementations are incomprehensible.