Turkish court refuses to reopen state-sponsored killing case, despite assurances to ECHR

Duvar English 

Eighteen years ago, 14-year-old Zahir Yılmaz was shot by soldiers when he was allegedly smuggling fuel across the Turkish-Iranian border. For eighteen years, his family has fought to have the soldiers who killed him punished, but to no avail. Now, Turkish authorities are refusing to implement a July 2021 decision by the European Court of Human Rights (ECHR), demanding that Turkey re-open the criminal case.

The border region between Turkey and Iran, near the Turkish city of Van, has long been a high-traffic area for smuggling. Especially in the early 2000s, as sanctions were tightened on Iran, Turkish people - young men in particular - would cross the border into Iran and bring back smuggled goods - fruits, tea, and fuel among them - for sale. In 2003, Zahir Yılmaz was allegedly traveling this route near the town of Çaldıran when he was caught by Turkish soldiers. They asked him to surrender, which he did, then they still shot him, according to his companion. He died soon after.

According to the Yılmaz family’s lawyer, Murat Timur, who spoke with news service Mesopotamia Agency, hundreds of smugglers have been killed by authorities since 2000 alone. These cases, he said, are always closed by local authorities - families appeal to have their relative’s killer convicted, and before the case can progress, it is closed. From this, he said, it can be surmised that there is a policy of impunity for authorities in the border region, allowing them to conduct themselves unlawfully.

Timur also stated that there has long been a silent agreement between local authorities and citizens in the region, allowing smugglers to conduct illegal trade across the border. Because of their position of power in the relationship, these authorities are able to act arbitrarily towards citizens - extracting rent from some, while punishing those who can’t pay. It is because of this tacit agreement, Timur said, that citizens like Yılmaz were killed and the soldiers go unpunished.

“We can see that public officials behave arbitrarily towards the citizens, especially in the border areas where the public power is weak and where they cannot provide rent to authorities,” he said. “Since an effective and fair investigation was not conducted into [Yılmaz’s death], those responsible for the incident were not punished.”

Immediately following the incident, Yılmaz’s family filed a criminal complaint against 10 soldiers in the local army command. A criminal investigation was launched and the indictment was accepted. However, when the soldiers were tried at the Erciyes High Criminal Court, all ten were acquitted. The Court of Cassation also rejected the Yılmaz family’s appeals.

Having exhausted all domestic options, the Yılmaz family then appealed to the European Court of Human Rights, to which Turkey is a party. The trial started in December 2020, and in its defense Turkey said it would re-open the case against the defendants. On July 1, 2021, the court determined that Yılmaz’s right to life - Article 2 of the Council of Europe convention - had been violated and ordered Turkey to re-open criminal proceedings against the soldiers. 

On July 7, following the ECHR decision, Timur applied to the Erciyes High Criminal Court to have the case re-opened. The court rejected his application, stating that Turkey being party to the ECHR was not counted among the reasons for retrial. When Timur applied to the Van regional high criminal court, they upheld the lower court’s decision. 

Timur said that these rejections can be explained in two ways: either the judges did not know the legally binding nature of ECHR decisions, or they unilaterally decided that the ECHR decision was not binding. Either way, he said, this taken along with the lack of prosecution in other cases of deaths on the border, indicates that the decision to keep the case closed was not arbitrary - it demonstrates an established system of impunity. 

“The recent violations [by Turkey] against the ECHR in murder cases in the border regions show that violations in this region occur systematically and that the judicial and administrative bodies act with a common policy of impunity,” he said. 

The Yılmaz case is yet another in a series of ECHR decisions that Turkish authorities have refused to implement, despite ECHR decisions having the force of law in Turkey. Recently, ECHR ruled that the detention of both opposition politician Selahattin Demirtaş and philanthropist Osman Kavala was unlawful. However, both men remain imprisoned. 

In its decision, the ECHR said that if Turkey failed to implement the decision, the Yılmaz case would be returned to its docket and retried. Timur said that the family is already in the process of re-applying to the court.