Expression Interrupted

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ANALYSIS | Attacks on political party buildings: The state’s obligation to prevention and effective investigation

ANALYSIS | Attacks on political party buildings: The state’s obligation to prevention and effective investigation

Even if the attackers in Izmir eventually sit in the dock, without an effective investigation and prosecution that will reveal the persons and the motive behind the attack, and a punishment proportionate to the gravity of the crime, this severe attack, too, will remain unpunished

 

BENAN MOLU

 

On 17 June, the provincial building of Peoples’ Democratic Party (HDP) in the western province of Izmir was attacked, and Deniz Poyraz, who was in the building at the time, was killed. One of the three attackers, who had shared statements of hate speech and armed photos on social media, was apprehended. According to his first statement to the police,[1] which was reported in the press and revealed to be contradictory, the attacker, who had conducted hostile reconnaissance at the site and applied for a firearms license before the attack, fired all the 10 bullets in his gun and killed Poyraz. The suspect, who also shared the said moment on his social media account, said, “Had there been anybody else, I would shoot them too.”

The crime-scene photos show bullet marks in several places inside the building. According to HDP Co-Chair Mithat Sancar, there was a planned meeting of about 40 persons in the provincial building scheduled for the time of the attack that was later postponed, due to which, and considering the first statement of the attacker, a mass killing was avoided by a narrow margin.

However, according to the HDP deputies, the party building had been under round-the-clock police watch for months, and while they were not allowed to make press statements previously, a crowd of people chanting slogans against the party members was not interrupted, and subsequent complaints about the incident were ignored.

The HDP is constantly targeted; its party buildings are frequently attacked with apparent impunity; its members and deputies are detained and punished with heavy prison sentences, and the European Court of Human Rights (ECtHR or the Court) decisions in their favor are not implemented, and finally, the party is currently facing a closure case; such pressures laid the groundwork for this attack and, perhaps, even a massacre.

The Human Rights Association (İHD) and the Human Rights Foundation (TİHV) have called for an end to hate speech used by the spokespersons for political powerholders against opposition political parties, and particularly the HDP, and an effective investigation and prosecution into the attack in question.[2]

At this point, it would be appropriate to mention an ECtHR decision that bears a striking resemblance to the recent attack in Izmir. The application concerns the setting fire to the party headquarters of the Ouranio Toxo (Rainbow) party, which was founded in 1994 to defend the rights of the Macedonian minority living in Greece, in the town of Florina after the party officials affixed to the premises a sign of the party’s name in Macedonian and Greek.[3]

On the day the party building was opened, violent attacks against the premises were carried out by a large crowd, but the police did not take any measures to prevent these attacks. On the evening of the same day, while the party members were inside the premises, a group of people attacked the building for the second time and the crowd, gathered in front of the building, shouted threats and insults at the party members, such as “traitors,” “dogs,” “you are all going to die,” and “we will burn everything down.”

The following day, a group of people broke down the door to the party headquarters and assaulted those inside; a few hours later, a separate group entered the building and threw all the equipment out of the window and set it on fire.

The party members made repeated phone calls to the police station, located 500 meters from the party building, and were told no officers were available to attend the scene. While criminal charges were brought against the party members, no action was initially taken against the attackers, and later the relevant court decided to discontinue the criminal proceedings against them due to insufficient evidence. Following this decision, the Party and its members lodged an application with the ECtHR, claiming that their freedom of association had been violated. 

In its assessment, the ECtHR observed that the political party in question was a lawfully constituted party with the aim of defending the rights of the Macedonian minority living in Greece, stressing that a democratic society could not be established without pluralism based on tolerance, open-mindedness and ethnic and cultural identities and without respect for such a notion, and that political parties in democratic societies played a vital role in the proper and effective functioning of democratic institutions.

The Court noted that while the sign affixed to the party premises by the Party could contradict the political or nationalistic views of the majority of the population, the claim that the political expressions used by a political party caused tension within the society was not sufficient, in itself, to justify interference with freedom of association.

According to the Court, which also assessed whether the attitude of the public authorities contributed to further aggravating the tension, the role of the State is to defend and promote the values inherent in a democratic system and take a conciliatory stance rather than polarizing the community. However, the public authorities had contributed to the creation of a hostile environment by targeting the Party and its members a few days before the attack.

 

Lastly, the Court examined whether the police sufficiently guaranteed the protection of the party building. The Court observed that the State and the police could have foreseen the risk that such tension would ultimately build into violence, and that they could have taken appropriate measures to prevent a possible act of violence, especially on the day when a crowd of people gathered in front of the building and shouted insults and threats at the party members, but they had failed to do so.

 

In this regard, the ECtHR attached great importance to the fact that the party members made several calls to the police while they were under attack; that although they were located some 500 meters away, the police did not intervene on the grounds that no police officers were available at the station at the time, and that the competent public prosecutor did not launch an ex officio investigation into the incidents. Because the Government had failed to provide any convincing reasons as to why there had been no police officers at the station at the time; why no action had been taken against a predictable act of violence, and why no investigation had been launched until the applicants lodged a complaint.

 

Whereas, according to the established case-law of the Court, the competent authorities have an additional obligation to carry out an effective investigation in cases of interference with freedom of association by the acts of third parties. In view of the foregoing reasons, the ECtHR found that the freedom of association had been breached.

 

In order for a positive obligation to arise that the authorities take operational measures in cases where there is a risk of violence against the life of an individual, it must be established, firstly, that “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party”; and secondly, that “they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk,” according to the established case-law of the ECtHR.[4]

 

In many of its previous decisions where it has found that the right to life of a certain individual has been violated, the ECtHR has taken into consideration the fact that the security forces and the State had prior knowledge that the killing would take place; that there were reports to the authorities concerning the acts of the perpetrators; that the perpetrators were under police surveillance, and that the authorities preferred to remain inactive despite mounting information.[5]

The statements made by HDP lawmakers indicate that the authorities had been informed of the risk of such an attack. The information available suggests that the competent authorities have failed to fulfill their positive obligations to safeguard the right of individuals to life, such as identifying the resources at hand to prevent the known risk or to reduce its damage; establishing defense mechanisms for persons who may be subject to attacks; planning the operation by considering all the details and the possibilities, and supervising the operation by establishing effective communication between all the teams to manage any sudden developments.[6]

It is also incumbent upon the State to carry out an effective investigation into such a violation of the right to life and establish the material facts. In addition to obligations such as initiating a prompt, impartial and independent ex officio investigation; an adequate autopsy; crime scene investigation; collection of evidence; collection of statements from witnesses and suspects, and conducting the investigation open to public scrutiny, the investigation should be capable of leading to the identification and punishment of the perpetrators, and the investigation cannot be concluded with impunity.

However, in the context of the present incident, it will not suffice to solely launch an investigation against and punish the apprehended attacker -- and the two other attackers -- in respect of the obligation to carry out an effective investigation.

Because the ECtHR does not only consider State parties under an obligation to identify and punish the “ostensible” perpetrators, but also demands that “real” perpetrators and instigators behind the attack be revealed.

In this context, the Court has taken the aforementioned obligation of the State one step further with respect to the investigation launched into the murder of an investigative journalist who was allegedly killed for her reporting, and stressed that the pivotal point was to investigate whether there was a possible link or a connection between the killing and the death threats received by the journalist due to her journalistic activity and reporting.[7] In the investigation phase, five suspects were identified as directly responsible for the murder, but there was never an investigation against the person or persons who had planned and instigated the killing. With regard to the investigation, in which the real perpetrator or perpetrators were not investigated, the Court held that the competent authorities failed to explain why they chose to focus on a single line of inquiry for a number of years, and that ignoring the demands that the authorities investigate the allegation that the reason behind the killing of the journalist who had covered armed conflicts was her journalistic activities, even if such an allegation would eventually prove to be unfounded, for many years constituted a violation of the procedural obligations in respect of their obligation to carry out an effective investigation into the violation of the right to life. The Court, therefore, considered the identification, prosecution, and eventual conviction of five persons responsible for the killing of the journalist inadequate in respect of the effectiveness of the investigation, and found a rights violation.

In addition, the Court also requires the investigating authorities who oversee the investigations into violent incidents to explore whether the act was motivated by hatred or prejudice based on ethnicity, religion, or sexual orientation, fueling such sentiments as hostility and animosity in the context of the specific circumstances of a concrete incident.

For this reason, even if the attackers in Izmir were to eventually sit in the dock, unless the authorities lead an effective investigation and prosecution that will reveal the person or persons and the motive behind the attack and the killing, and a punishment that is proportionate to the gravity of the crime is given, this severe attack, too, will remain unpunished.

 


[1]           Alican Uludağ, “HDP saldırganının ilk ifadesi: ‘Başka kişiler de olsaydı, onlara da ateş açacaktım’” [“The first statement of the HDP attacker: ‘Had there been anybody else, I would shoot them too’”], https://www.dw.com/tr/hdp-sald%C4%B1rgan%C4%B1n%C4%B1n-ilk-ifadesi-ba%C5%9Fka-ki%C5%9Filer-de-olsayd%C4%B1-onlara-da-ate%C5%9F-a%C3%A7acakt%C4%B1m/a-57941283

[2]           “HDP İzmir İl Binası’na Yapılan Saldırıyı Kınıyoruz!” [“We Condemn the Attack on the HDP İzmir Provincial Building!”], https://www.ihd.org.tr/hdp-izmir-il-binasina-yapilan-saldiriyi-kiniyoruz/

[3]           Ouranio Toxo and Others v. Greece, Application No. 74989/01, 20.10.2005

[4]           Osman v. the United Kingdom, Application No. 23452/94, 28.10.1998, para. 116.

[5]           Fırat Dink v. Turkey, Application No. 2668/07, 14.09.2010, para. 67-68; Tagayeva and Others v. Russia, Application No. 26562/07, 13.04.2017, para. 486, 491-492.

[6]           See for similar information, Tagayeva and Others v. Russia, para. 562-574.

[7]           Mazepa and Others v. Russia, Application No. 15086/07, 17.07.2018, para. 73-79.

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