To the Press and Public,
ECtHR INADMISSIBILITY DECISION OF ROBOSKI IS UNACCEPTABLE!
There is no prescription in regard to crimes against humanity!
The European Court of Human Rights declared the Roboski Application (Encü and others v. Turkey) a few weeks ago. It is an absolute failure of the legal principles and law. The application, which is about the killings of 34 citizens as a result of air strikes, has been declared inadmissible for “non-exhaustion of domestic remedies.”
Like the Constitutional Court, the ECtHR did not discuss the facts of the case but focused on the missing documents which can affect only a few applicants. As a result, these missing documents were put into the centre of the procedure and legal aspects though they are not directly important for the case!
In fact, the legal principles require the capacity of social rules at a certain level so that social problems can be solved and democratic values are upheld. Formality, which is formulated as procedure, is acceptable providing that it prevents the abuse of a right and finds a solution to problems or demands. Otherwise, the strict interpretation of the procedure turns into an abuse of the demands or opportunities to fix legal issues. If there moral aspect is extracted from the law, there is only a technical procedure. Those who apply such a technical procedure is not legal experts but legal technicians.
Another aspect of this issue, which is being criticised, is the legal professionalism that resulted in the ECtHR and the Constitutional Court’s decisions. Of course, we can and should discuss all issues! However, the existing perspective blurs the facts and creates confusion about those who are perpetrators and are really responsible for these decisions. Legal professional, which adopts an elitist and moderate approach, needs to be criticised. This type of professionalism uses some concepts such as “impartiality and autonomy etc.” to locate itself between the state organs and Kurdish people who struggle for fundamental rights. The criteria to determine whether there is someone who acts responsibly and irresponsibly are determined according to such a position. Beyond this criticism, the total failure of the ECtHR cannot be reduced to the mistakes from a few lawyers.
The ECtHR decision made the predicament and impasse of liberal human rights mechanisms. These mechanisms and organs focus on individual rights and remain silent when there is a massive crime.
It is clear that the ECtHR decision is a political decision. It is a reflection of the political stance that is observed in ECtHR practices which direct applicants to compensation commission, the State of Emergency Inquiry Commission rather than determining
systematic violations and sentencing it. This approach prolongs the legal procedures and reduces legal issues to economy.
It needs to be repeated that Roboski decision is a political decision. We have observed such a political stance also in other cases such as ECtHR resistance to examine the application about the İmralı Isolation and ban on lawyers. It is a political decision as it is observed in the application of Cizre and Sur curfews. The Court issued an interim measure yet turned into blind eye and directed the applicants to the domestic legal remedy when it realised that the interim measure was not implemented.
Individual and unorganised reactions cannot be enough to respond to such a political judicial mechanism. All institutions, platforms, bar association and individuals who struggle for human rights should react to this decision.
We, as the Platform of Lawyers for Freedom, state that we will struggle against this decision in all platforms and international legal organisations. Unless there is a moral aspect, no legal decision can fix the pain of Roboski people. Roboski massacre is a crime against humanity. There is no prescription in regard to crimes against humanity. As Roboski families state; a new struggle against the legal problems will begin soon. This struggle will begin from the graves of Roboski martyrs. We will stand the families in this struggle.
Platform of Lawyers for Freedom