Soma Mine Disaster Trial: Justice Nowhere in Sight

The families of the miners killed in the mine disaster have demanded "justice" at every hearing, braving rain, mud and heat. Unaware that their fathers had died in the mine, children have grown up in courthouse corridors. They all had but a single demand: that the judges do not turn their back on the phrase, "Justice is the foundation of the state", written in large letters on the wall right behind them. This demand was not met!

Seven years have passed since the mine disaster which took place in Manisa’s Soma district on May 13, 2014, killing 301 miners. As we mark the seventh anniversary of the disaster, a new ruling was announced in the trial against the perpetrators. The trial against those responsible for the disaster has become a symbolic event in the eyes of the general public, in terms of workers’ safety and rights, and for justice to prevail. However, justice has not prevailed in the Soma disaster trial.

The court’s ruling was protested by the lawyers, and the relatives of those killed in the Soma mine disaster. The families refused to abandon the courtroom, while some family members threw their shoes at the panel of judges announcing their ruling. The family members cried, “To hell with your justice,” and “History shall judge you”.

In the retrial held at Akhisar High Criminal Court, the suspects considered responsible for the deaths of 301 miners appeared before the judges: Soma Coal Inc. Chairman Can Gürkan and Board Member Haluk Evinç, as well as Turkish Coal Enterprise chief inspectors Adem Ormanoğlu and Efkan Kurt.

Announcing its decision on June 16, the panel of judges sentenced Can Gürkan to 15 years in prison for “conscious negligence”. Considering Gürkan’s “professional training and subjective position due to his knowledge of the field”, the judges increased the sentence to 20 years.

Meanwhile, the only detainee related to this trial is the lawyer of the families himself.

In case the ruling is upheld by the Court of Cassation, having spent five years behind bars during the initial trial, Gürkan will remain in prison for only about two more years due to the criminal enforcement reform introduced last year. The same criminal enforcement reform that remanded numerous journalists and “political prisoners” in pre-trial detention at high security prisons. Another huge scar in the nation’s feeling of justice.

The court acquitted Haluk Evinç from the charge of “causing the death of multiple individuals by negligence”, and sentenced Adem Ormanoğlu and Efkan Kurt to 12 years and 6 months in prison for “conscious negligence”.

Was the reaction of the families and lawyers limited to this ruling? Of course not. The families of the 301 miners killed have been waging a legal struggle for seven years. They have demanded “justice” at every hearing, braving rain, mud or heat; and today they shouted “justice” under the pouring rain. Unaware that their fathers had died in the mine, children have grown up in courthouse corridors.

They all had but a single demand: that the judges do not turn their back on the phrase “Justice is the foundation of the state”, written in large letters on the wall right behind them. This demand was not met!

Until date, there have been 26 hearings under this trial: 23 of these hearings were held before and 3 hearings after the Court of Cassation’s decision to overturn the district court’s ruling. The Court of Cassation overturned the said ruling on January 8th, 2021, demanding that the latter sentence the defendants for “causing death or injury by conscious negligence”.

However, the same Criminal Chamber of the Court of Cassation had requested, in a decision issued only four months ago, that Can Gürkan, Haluk Evinç, Adem Ormanoğlu and Efkan Kurt be tried for “leading to 301 deaths and 162 injuries with eventual intent.”

“Eventual Intent” or “Conscious Negligence”?

As such, the Criminal Chamber demanded that the defendants be tried for “eventual intent” in its first decision and for “conscious negligence” in its second decision. What do these concepts mean? Both “eventual intent” and “conscious negligence” suggest that the perpetrators in fact anticipated the results of their actions. In conscious negligence, the perpetrators hope that these anticipated results will not materialize, whereas in eventual intent, the perpetrators take into account and accept the possible results.

In offenses arising from eventual intent, the perpetrator is condemned to a life sentence for an offense which normally requires an aggravated life sentence, and to 20 to 25 years in prison for an offense which normally requires a life sentence. In other offenses, the basic sentence may be reduced by one third to one half.

In cases of conscious negligence, the sentence designated for negligence may be aggravated by one third to one half.

Panel of Judges Reshuffled

However, in the Soma Case, there was a reshuffle in the judges of the Chamber, even before the Court of Cassation’s Public Prosecutor presented his objection. 3 of the 5 members of the Court of Cassation’s 12. Criminal Chamber were changed. Former Minister and Undersecretary of Justice Kenan İpek, former Secretary General of the Council of Judges and Prosecutors (HSK) Fuzuli Aydoğdu, and former General Director of Prisons and Detention Houses Mustafa Yapıcı replaced the three members, who had signed the ruling demanding that the defendants be sentenced for “eventual intent” causing 301 deaths and 162 injuries.

Then the Court of Cassation’s Public Prosecutor submitted his objection, which was accepted with the votes of three members, and it was decided that the four defendants including Can Gürkan be tried for the charge of “causing death by conscious negligence”. All the newly appointed members of the 12. Criminal Chamber were in favour of this decision.

The president of the Chamber Ahmet Er and the judge Nadir Güngündeş, who had signed the previous decision dated September 30th, 2020, objected to this second decision, and expressed a dissenting opinion.

Was Kenan İpek involved in this case for the first time? No. He had previously signed the HSK communiqué which appointed the first judge of the trial Aytaç Ballı to İzmir, replacing him with Salih Pehlivanoğlu from Elbistan.

These interventions in the judiciary process, as explained by Seçil Türkan’s article dated July 24, 2018 on Civil Pages, was a harbinger of the latest ruling which has damaged the sense of justice among the families and the society at large.

The Only Detainee in the Soma Trial: The Victims’ Lawyer

As the proceedings continued, some of the defense lawyers in the case were arrested. Attorney Selçuk Kozağaçlı was among them. The Soma trial was among the cases for which he stood trial. Kozağaçlı and 18 other members of the Progressive Lawyers’ Association (ÇHD) were sentenced to 11 years, 3 months in prison by Istanbul 37. High Criminal Court, which mentioned the Soma trial in its justified decision. The court argued that Kozağaçlı went to Soma after the disaster, and “incited the victims to stage a resistance”.

District Court Had Determined “Inadvertent Negligence”

Why had the ruling by Akhisar High Criminal Court prompted a reshuffle in the 12^th Criminal Chamber of the Court of Cassation? The trial began on April 13rd, 2015 and ended on July 11th, 2018 with the acquittal of 37 people. Among those acquitted was Alp Gürkan, the founder and Chairman of Soma Holding. 14 defendants were sentenced for “leading to death or injury by negligence”. Gürkan was sentenced to 15 years in prison for “inadvertent negligence”.

In “inadvertent negligence”, the perpetrator fails to “predict” a predictable result and thus acts in violation of his responsibility of attention and meticulousness.

Gürkan was released on April 19th, 2019 after this decision was upheld by the court of appeal.

The reaction of the families was not limited to this decision either.

‘Nature’ at Play in Soma

Right after the Soma massacre, even as the research and rescue operations continued, the then Prime Minister Recep Tayyip Erdoğan visited Soma. In a speech in Soma, Erdoğan described the disaster of Soma as an “ordinary” incident and as a “work accident”, saying “These are ordinary things. There is something called a work accident in the literature. These are inherent in the structure, the nature of this job.” Erdoğan stated that he was deeply moved, however, upon seeing the “immense scale” of the disaster.

‘Temporary Incapacity’ Report Not for the Worker Kicked, but for He Who Kicked Him

These words by Erdoğan created an uproar among the families of those who lost their lives in the Soma mine. There were protests against Erdoğan’s words. There is especially one photo indelible from the mind: Two soldiers push a worker to the ground, while a man in a business suit kicks him. That photo was taken during one of those protests. The one who received the kick was the miner Erdal Kocabıyık, and the one who kicked him with all his force was Yusuf Yerkel, the the Prime Minister Erdogan’s Deputy Chief of Staff. As a result of this kick, Yerkel was granted a “temporary incapacity” report for seven days, as allegedly he hurt his foot while kicking the miner.

While Yerkel did not receive any sanction, a lawsuit was brought against the miner Erdal Kocabıyık for “damaging public property” for allegedly kicking Erdoğan’s armored Mercedes. Soma Criminal Court of First Instance fined Kocabıyık to 543 TL to cover the damages. Furthermore, Kocabıyık was handed down a prison sentence of 10 months.

The Disaster and Emergency Management Presidency (AFAD) stated that the mine disaster was due to an “explosion in the main transformer”; however, Akhisar Chief Public Prosecutor’s Office, in charge of the investigation, thought otherwise. During the interrogation, the prosecutor’s office asked the suspects questions about why the mine operations had not been stopped although the temperature inside was so high.

Only seven months before the disaster, in October 2013, the political parties CHP, MHP and BDP had proposed the creation of a parliamentary investigation committee to examine the mine accidents in Soma. This proposal by the three parties was rejected by AKP MPs’ votes -only two weeks before the Soma disaster.

One Minister Inaugurates a Quarry, Another Blocks the Investigation

Only two months prior to the disaster, two work inspectors had examined the occupational health and safety conditions of the mine and issued a favorable report. After the disaster, Faruk Çelik, the then Minister of Labor and Social Security, did not allow for an investigation to be launched against these two inspectors, namely Emin Gümüş and Ersin Bulut, as well as 10 other inspectors and Kasım Özer, the Director of Occupational Health and Safety.

Nine months before the disaster, Taner Yıldız, the then Minister of Energy and Natural Resources had inaugurated one of the new quarries of the mine, where 301 miners would later be killed. At the inaugural ceremony Yıldız had praised the company saying, “We see that the more money is spent on safety systems, the more efficient our workers become”.

As is the case in numerous trials, the panel of judges and the prosecutors were changed in the Soma trial. Before the second hearing, in a decree issued during the summer, the High Council of Judges and Prosecutors (HSYK) appointed Akhisar Chief Prosecutor Bekir Şahiner, in charge of the investigation, to the Bilecik Chief Prosecutor’s Office.

Changes to the Panel of Judges

The Akhisar High Criminal Court’s President Aytaç Ballı, in charge of the trial since the beginning, was appointed to another city. Upon an HSK decree dated July 4th, 2017, Ballı was sent to İzmir, and a senior member of the panel of judges, Esra Dokur, was appointed to Aydın. The next president of Akhisar High Criminal Court, Salih Pehlivanoğlu was appointed to Denizli in a summer decree by HSK. This change came two days after the second hearing of the retrial on May 24th. This time, Diyarbakır High Criminal Court’s President Serkan Erdoğan was appointed to replace Pehlivanoğlu. However, it was Pehlivanoğlu who presided over the court at the hearing on June 14th.

The 5-Minute Break Lasting One and a Half Years

The prosecutor had announced that he would submit his judicial opinion as to the accusations at the 15th hearing on February 20th, 2017. However, before submitting his judicial opinion, the prosecutor asked for a five-minute break and left the courtroom. When he came back, he asked for more time. The prosecutor did not submit his judicial opinion at the next hearing held on April 18th, 2017, and asked to wait for the completion of another investigation. The prosecutor submitted his judicial opinion one and a half years later, on June 19th, 2018, demanding that eight defendants including Can Gürkan be sentenced to 301 counts of 20 to 25 years of imprisonment for “causing death with eventual intent” and to 162 counts of two to six years of imprisonment for “causing aggravated injury”.

The trial has ended for now with the recent ruling announced after seven years. Yet the struggle of the families and lawyers is not over. Once again, they will file objections and seek all the legal remedies. This ruling will also be overturned – maybe not tomorrow, but certainly one day.