Roboski and procedural rules: How the truth about a massacre was buried in the pages of history

Abstract

Recently, the European Court of Human Rights (ECtHR) issued an inadmissibility decision regarding the application concerning the Roboski massacre (Selahattin Encü and Others v Turkey App no 49976/16, 17 May 2018) on the grounds that domestic remedies had not been exhausted. As observed in a number of earlier decisions, the ECtHR was resolutely confident about the decision of the Constitutional Court of Turkey on the matter. This unwavering trust has resulted in the once-and-for-all burial of the truth about one of the gravest massacres in the history of Turkey without a proper examination of the allegations of the applicants. Two differing views were put forward after the ECtHR’s decision. The first of these argued that the dismissal of a massacre of such magnitude for procedural reasons was unacceptable. Proponents of this view asserted that even if there were procedural grounds to find the application inadmissible, this could not be sufficient justification to prevent the truth from being revealed. Proponents of the second view argued that every court had its own procedures and that those who did not comply had to face the consequences. This article attempts to examine the second view on its own terms. In so doing, I will present the legal evidence and rationale showing that it is in fact the Constitutional Court of Turkey that has violated its own procedural rules. I will also argue that despite an acceptance of the second view, perhaps more markedly because of such acceptance, it is not possible to bury the truth about the Roboski massacre. This discussion will be guided by a more significant question: How is it that the Constitutional Court of Turkey made such a major procedural error in a case of such gravity and how is it that the ECtHR was so eager to uphold the error?