5-month prison sentence over refugee child Lütfillah's death with a police fist

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Lütfillah Tacik was a refugee from Afghanistan. He was born in 1997. His birthplace was Faryab in Afghanistan's north at the border with Tajikistan.

Tacik was just 17 years old when he came to Turkey as a refugee. In fact, it was not the first time that he came to Turkey. He had gone back to Afghanistan before, but as he had been unable to receive treatment in the country, he decided to come back to Turkey.

He crossed into Turkey from Iğdır's Aralık on May 16, 2014. Shortly after he entered Turkey, he was caught along with 20 others. The gendarmerie caught them. Seyidat Tacik, Lütfillah's cousin, was also caught.

After their statements were taken, the gendarmerie referred the refugees to the Foreigners' Department. The Governor's Office decided to keep them under administrative surveillance for deportation.

Then, the Directorate General of Migration Management sent 35 people, including Lütfillah, to the Van Removal Center.

Refugees were taken to Van province on May 23. Lütfillah, along with six other children, were sent to the Child and Youth Center (ÇOGEM) of the Van Provincial Directorate of Family and Social Policies. However, a day later, seven children, including Lütfillah, were brought back to the Removal Center on May 27 to be tested for contagious diseases and age assessment.

On the same day, in the morning hours, one of the police officers called Lütfillah in. He argued that Lütfillah made a misstatement about himself and his age and punched him. When he came back to his friends, Lütfillah told them what happened. He passed out right afterwards.

When Lütfillah was finally taken to the Van Regional Training and Research Hospital, it had been over two hours since he passed out.

He was taken to the intensive care unit (ICU). Treated there for 3 days, Lütfillah lost his life at the hospital. Doctors said that Lütfillah had an advanced stage leukemia and he had a brain hemorrhage.

Police officer reinstated by the Ministry

An investigation was launched into the incident. In the meantime, police officer S.O. was suspended from duty. However, he filed a lawsuit against this decision of suspension. The Van 1st Administrative Court dismissed the application. In response to this, S.O. took the case to the appeals court. But the appeals court rejected his application as well.

However, despite these court rulings, the Ministry of Interior reinstated S.O. in his duty. He resumed working in Tunceli.

The officer was reinstated though the court said: "...In the incident which ended with the foreign person's death; the plaintiff slapped the person and he displayed negligence while the person's referral to the nearest medical institution should have been ensured, which caused the person's death; a judicial and administrative investigation has been launched against the plaintiff, who had negligence and responsibility in the incident; in this case, it shall be considered in terms of the act committed by the plaintiff and, given the nature of the committed act, his stay in office is openly objectionable; for this reason, his suspension from duty is not against the law or regulations."

Officers heard only once at 25 hearings

The investigation launched against the police officers could be finalized a year later, on June 6, 2015.

The indictment of the Van Chief Public Prosecutor's Office demanded that police officer S.O. be given up to 16 years in prison on charges of "deliberate injury" and "aggravated injury considering its consequences."

The Public Prosecutor's Office also requested that police officer H.Ö.Ö., who found Lütfillah fainted and was with him while he was being taken to the hospital, be penalized on charge of "misconduct in office."

When the trial of two police officers before the Van 2nd High Criminal Court began, it had been 538 days since Lütfillah's passing.

The first hearing of the trial was held on November 19, 2015. While it was attended by H.Ö.Ö., S.O. did not attend the hearing. Submitting a petition, S.O. requested that his testimony be taken via video conference on the Audio and Visual Information System (SEGBİS).

The Refugees Solidarity Association, Kaos GL Association, Human Rights Foundation of Turkey (TİHV-HRFT) and Gündem Çocuk (Agenda Child) Association made requests for intervening in the trial.

Lawyers said that Lütfillah's father lived in a mountain village in Afghanistan and as the father lived far away from the consulate, they were having difficulties in having a letter of attorney issued.

Requesting intervention in the case for Lütfillah, lawyers requested that S.O. appear before the judge in person.

However, the lawyers' request for intervening in the case was rejected as they did not submit a letter of attorney. The court board also ruled that police officer S.O.'s defense should be taken via the SEGBİS.

At the second hearing on January 19, 2016, S.O., who had punched Lütfillah, dismissed the allegations in his defense.

H.Ö.Ö. said that when they went to the Van Regional Training and Research Hospital for the blood test, he found Lütfillah in the minibus with his head against the front seat and after he saw that there was foaming at his mouth, he called the healthcare workers at the hospital.

A witness from the ÇOGEM heard at the court stated that the other children said Lütfillah fainted after he had been battered by the police.

Court board changed several times

23 hearings were held after this second hearing. The court board was changed at least four times. All of the court boards hearing the case rejected the requests of rights organizations, bar associations and lawyers for intervening in the case at every hearing of the trial.

While all these were happening, the court board heard only one or two witnesses. At the rest of the hearings, the written correspondence was read out. The hearings lasted for five minutes. The police officers on trial did not come to the other hearings, except for the second one.

At one of those hearings, the court board ruled that a written correspondence should be made to Afghanistan so that the statements of Lütfillah's family could be taken. But it was sent to Iran, not to Afghanistan.

In the meantime, the court asked for camera footage. However, the camera reports submitted to court were full of contradictions. While the company said that there was only one camera which was not recording, the gendarmerie said that none of the cameras at the Removal Center was recording on the day of the incident. In the end, the footage could not be accessed.

No progress was made in the file for years. The trial was constantly adjourned to rectify the deficiencies. At last, a letter of attorney could be received from Tacik's family. In representation of Lütfillah's family, lawyer Mahmut Kaçan and lawyer Deniz Aksoy from the Network of Lawyers Working in the Field of Children (ÇAÇAV) attended the hearing.

The lawyers said that no prosecution was initiated for torture and ill treatment. They said the spoliation of evidence might be the case. They noted that a trial held without disclosing the material fact in full would lead to the acquittal of defendant police officers, given the principle of "defendant benefits from suspicion". They said there were ambiguous points in the forensic medical report. They requested the extension of the investigation.

Prosecutor's opinion despite objections

However, the court board did not take these requests into consideration. At the 24th hearing of the case on December 14, 2021, the prosecutor's office pronounced the final opinion as to the accusations.

The prosecutor's office indicated that "there was not concrete, credible and sufficient evidence proving that there had been a causal link between Lütfillah's death and the slap of police officer S.O." and requested that the police officer be penalized on charge of "deliberate injury and misconduct in office", rather than "deliberate injury in such a way to cause death."

The office also requested that H.Ö.Ö. be penalized for "misconduct in office". The ruling was handed down at the 25th hearing of the case on February 15. The court board ruled that police officer S.O. should be sentenced to 5 months in prison for "actual bodily harm" and acquitted H.Ö.Ö.

Both police officers attended only one hearing during the course of these eight years and 25 hearings and that was via video conference, on SEGBİS. (HA/SD)