UNEATEN MACARONI AND A DEMOCRATIC STATE OF LAW
Riza Turmen

Hurriyet Daily News
Monday, October 12, 2009

Only 14, shepherd girl Ceylan Onkol had hardly seen any of the world
through her big black eyes. She was supposed to put the sheep out
to pasture, then go back home and eat the macaroni her mother had
cooked. The macaroni went uneaten. It got cold. Onkol was shattered
into pieces by a mortar shell to her stomach. Pieces of her body
spread around the surrounding area were collected from tree branches
and dumped into her mother’s lap. Who will be held accountable for
Onkol’s death?

Who will be held responsible for the injury of Guney Tuna, a young
man who did nothing but drink alcohol and play guitar in a park with
his friends yet was beaten by police? He was saved from death from
internal bleeding in the brain but has fractures in both legs.

Who will give an account for Ferhat Gercek who was left paralyzed
by a police bullet at the age of 17 while selling newspapers in
Bahcelievler two years ago?

What about Engin Ceber? Is anyone exerting effort to bring those
responsible for killing him while in detention to justice?

Are we willing to hold accountable the murderers of the
Armenian-Turkish journalist Hrant Dink?

Measures sought by the European Court of Human Rights

The state should be held accountable for the above events. It is
obliged to launch thorough investigations into similar incidents. The
purpose of the probe should be the punishment of the guilty and the
implementation of national laws. With an eye on these, the European
Court of Human Rights recommends that the following measures be taken:

a. Individuals conducting investigation should be independent and
impartial. The European court does not consider probes launched
by administrative bodies against civil servants as independent and
neutral investigations.

b. Investigations should be satisfactorily conducted and should aim
to capture and punish those responsible for crimes. Everything should
be done to acquire evidence. Inspect ements as well as ballistic and
autopsy reports should be completed. If the necessary individuals
are not cross-examined, the investigation will be ineffective.

c. Investigations should be launched promptly and ended within a
reasonable time frame.

d. The public should be informed about the investigation and its
outcomes.

The expectations of courts

In an incident grabbing public attention like the Onkol case, it is
critical to inform the public about the on-going investigation. People
have the right to know what degree of investigation has already been
conducted. This, at the same time, is necessitated by the freedom of
expression. The prosecutor’s decision to waive the reading of documents
is about information. That doesn’t set him free of informing the
public. On the contrary, because of the waiving of reading, lawyers
cannot have access to information and documents that are relevant to
the investigation file. Therefore, only the investigation authorities
can inform the public.

This is not the end of the state’s responsibility. The European court
envisions that courts should act diligently in the trial process;
for instance, they should not allow statutes of limitation or rule
for deterrent punishment.

Violation of two articles is enough

>>From a legal point of view, ineffective investigation is sufficient
for the violation of two articles regarding the right to life. Since
security forces were fortunate that no one got killed even though
they applied brute force in cases like that of Tuna and Gercek,
similar incidents are included in the scope of these two articles.

The effectiveness of an investigation is closely related to the
trust people have for the state. Is the state protecting citizens’
right to live or merely its own members? Is the state making
serious efforts to punish those responsible, or is it protecting
those responsible? Answers to these questions go, at the same time,
toward deciding whether citizens trust or distrust the state.

Accountability is important

The European court :

On the subject of the death of Zubeyir Akkoc, a murdered trade
journalist whose death was blamed on the state by the man’s family,
"the court found that these defects undermined the effectiveness
of criminal law protection, permitting or fostering a lack of
accountability of members of the security forces for their actions
incompatible with the rule of law in a democratic society respecting
the fundamental rights and freedoms guaranteed under the convention."

The problem with state liability in the punishment of those responsible
and the conducting of an effective investigation of its own forces in
the case of Onkol and others is whether or not we have a democratic
state of law that respects fundamental rights and freedoms.

* Mr. Rıza Turmen is a columnist for daily Milliyet in which this
piece appeared Monday. It was translated into English by the Daily
News staff.