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Obstacles to Reform
Exceptional Courts, Police Impunity &
Persecution of Human Rights Defenders in Turkey
Lawyers Committee for Human Rights Upholding basic freedoms, such as the right to
freedom of expression and a free press; building an independent
judiciary and holding state officials and agencies accountable for
their actions; and enhancing the constitutional framework for the
legal protection of rights have come to the forefront of public
debate. It is commendable that these and other reforms have found
support from the highest reaches of the Turkish government and state
institutions, notably from Prime Minister Ecevit, and perhaps most
eloquently from President of the Supreme Court of Appeals, Sami
Selcuk, who re-kindled an overdue national debate about the need for
substantial revision of the 1982 Constitution in his remarks to mark
the opening of the judicial year in September. Turkey
stands at a moment of opportunity to accomplish the types of reforms
promised by successive governments. As State Minister for Human
Rights Mehmet Ali Irtemcelik has stressed, as have others before
him, the need for human rights reform is not something imposed on
Turkey by its foreign critics, or a way of improving its relations
with the European Union or the United States. Reform is a necessity
for the well being of the people of Turkey. Many in
Turkey are now sending a clear message to the government that the
mistakes of the past should not be repeated. For example, Bulent
Eczacibasi, Chairman of the High Advisory Council of the Turkish
Industrialists’ and Businessmen’s Association (TUSIAD) said on
September 10, 1999, "The democratic transition can be delayed no
more. We are telling our politicians to listen to society’s voice."
He noted in particular that in Turkey, "we are way behind in matters
of freedom of thought and expression, to the extent that it has
become a threat to our national progress." Chief Justice Sami Selcuk
has stressed the importance of open debate and criticism if public
confidence is to be restored in the constitutional framework on
which the rule of law rests. The Lawyers Committee
is pleased to be issuing a new report, Obstacles to Reform, in collaboration with
the Joseph R. Crowley Program in International Human Rights, at a
time when so many people in Turkish public life are speaking out on
the need to remove the obstacles and to press on with reform. There
are several reasons to be optimistic that the human rights reforms
pledged by this government may result in more progress than previous
similar proposals. Firstly, the decline in violence resulting from
the conflict with armed Kurdish rebels, brought about by the PKK’s
declaration of an end to "armed struggle" in Turkey, promises an end
to the cycle of violent insurgency and counter-insurgency which has
been so damaging to human rights conditions in the southeast and
throughout the country for the last 15 years. Secondly, the present
government of Prime Minister Bulent Ecevit enjoys a substantial
parliamentary majority, unlike previous unstable minority and
coalition governments. This government has a good chance of passing
the legislative reform agenda to which it is committed. Thirdly,
there is a public groundswell of support for change, and recognition
that greater accountability and more open debate would contribute to
better government. Finally, in ministers like Minister of Justice,
Hikmet Sami Turk, State Minister for Human Rights, Mehmet Ali
Irtemcelik and in the Prime Minister himself, the government has
leaders noted for their commitment to and understanding of human
rights issues. These
factors do not guarantee a positive outcome to reform efforts, but
they at least create a climate in which progress may occur. It is
our intention in issuing this report, and in carrying out our
wide-ranging program of activities in Turkey, to support, assist,
and be a catalyst for domestic reform efforts. We hope to be able to
report substantial and rapid progress by this and future Turkish
governments in bringing law and practice in Turkey into conformity
with international human rights standards. During the late 1980s
and early 1990s, the Lawyers Committee campaigned on behalf of individual
lawyers imprisoned or otherwise persecuted for their work representing clients
accused of political crimes against the state. Concerned by the volume of cases
it was receiving, and recognizing that involvement from a U.S. based, legally
focussed human rights organization could make a positive contribution to the
human rights situation, the Committee began in 1996 an intensive program of
activities in Turkey. We have concentrated on
building cooperative relationships with bar associations and with judges and
prosecutors working in the field of criminal justice. We found great interest in
the U.S. legal system among Turkish lawyers and we saw in that an opportunity to
stimulate professional exchange between Turkish practitioners by organizing
legal seminars in which U.S. judges,
prosecutors, and defense lawyers would participate. International
human rights standards provide a framework within which lawyers from
different legal traditions can exchange ideas and experiences on the
fundamental principles underlying diverse justice systems. We hope
that the seminar program will lead to further similar activities. In
addition, the Lawyers Committee has continued to work to protect
lawyers and activists involved in human rights promotion in Turkey,
and to develop specific recommendations for change in key areas.
Substantively, our work on Turkey has come to be
focussed on three core issues that have a particularly damaging
effect on human rights conditions: the right to fair trial,
impunity, and the removal of restrictions on freedom of expression
for human rights defenders and others. We find
the right to fair trial to be most severely curtailed in proceedings
before State Security Courts (SSCs). Although the June 1999 removal
of the military officer from the judicial panel in SSC cases has
improved the structural independence of the courts, important
deficiencies remain. These stem in part from procedural
irregularities, such as protracted pre-trial incommunicado
detention, and also from the precedence given in Turkish law to the
rights of the state over the rights of citizens. Defendants in state security cases are denied
access to legal counsel during the vital pre-trial interrogation
phases when statements are recorded which form the basis for
subsequent prosecution. Detainees may be held in incommunicado
detention for between four and seven days, a period of time during
which they are vulnerable to torture and ill treatment.
International law requires that detainees facing criminal charges be
granted access to a lawyer within 48 hours. The European Court of
Human Rights has held that the right of access to legal counsel
arises "at the earliest stage" of a criminal investigation. These
standards are not upheld in SSC prosecutions today. It is
not desirable that there should be a special court system offering
fewer protections for the defendant than the ordinary penal courts.
We recommend the abolition of the SSCs. Failing that, procedural
safeguards for SSC defendants should be harmonized with those in
regular penal courts and brought into compliance with international
norms. An
additional problem with SSC prosecutions that we document in our
report is the preponderance of the influence of the security forces
over the pre-trial investigation period, which leads in practice to
a diminution of the authority of the prosecutor over the criminal
investigation process. In effect, the security forces make the
determination whether a detainee will be prosecuted with a state
security offense or an ordinary crime. They may carry out detention
without prosecutorial authorization, and they control access to the
detention center during the pre-trial interrogation phase. Thus an
SSC detainee may be brought before the prosecutor to record a
statement only after the security forces have had several days to
coerce the suspect into making a confession. Such a system invites
abuse. Increasing oversight of the conduct of the security forces
during the first few days of detention is essential to limiting the
possibility that torture and ill treatment will occur in the
interrogation phase. We
welcome the provisions of the circular issued by Prime Minister
Ecevit on June 26, 2024 authorizing prosecutors to carry out
unannounced inspections of detention facilities to monitor the
well-being of criminal suspects in detention. However, we caution
that these instructions alone will not be sufficient to resolve the
problem. Firstly, prosecutors are overworked and do not have time to
take on the task of carrying out oversight of the well-being of
criminal suspects in detention in addition to their already
burdensome case load. If prosecutors are to carry out the full range
of their duties then greater resources must be allocated to
employing additional prosecutors and ensuring that they have the
necessary support and training to carry out their tasks. Secondly,
the security forces themselves must be required to permit judicial
and prosecutorial authorities the right in practice to supervise the
pre-trial detention period. Many commentators and practitioners
advocate the creation of a judicial police force as the best way of
breaking the control of the security forces over the pre-trial
period. Reform that addresses the question of who controls the
detainee in the pre-trial phase, especially in state security
prosecutions, is an urgent priority. With
respect to judicial independence, the Lawyers Committee is
encouraged to learn that proposals to limit executive influence over
the functioning of the Supreme Council of Judges and Prosecutors are
under serious consideration. Such a reform will strengthen the
independence of the Turkish judicial system as a whole. The
reluctance of the Turkish authorities to hold members of the
security forces accountable for their involvement in gross
violations of human rights creates a climate of impunity in which
torture and extra-judicial killings persist. The Ecevit government
has already taken positive measures to increase the penalties for
members of the security forces convicted of involvement in torture.
Moreover, revision of the 1913 Civil Servants’ Law is high on the
parliamentary agenda. We welcome these concrete measures to improve
laws that have proved to be an obstacle to
accountability. Reforming the law is only one part of what needs
to be done in order to curtail torture and the other gross
violations arising from the absence of accountability. Attitudes
need to change throughout the law enforcement and criminal justice
communities. Police officers need to know that their superiors will
not turn a blind eye to brutality. Prosecutors and judges need to
uphold that the principle that torture is always wrong, and they
need to have the confidence that when they uphold the law they will
not suffer adverse professional consequences. Prosecutors and judges
should be supported by other State authorities, when they make
decisions which may go against state interests or government
officials. Lawyers need to approach the task of representing their
clients as an essential professional duty, not as a political battle
with hostile state forces. In this
regard, we are pleased that our recently completed seminar program
for U.S. and Turkish judges, prosecutors, and defense lawyers has
created a forum for professional exchange on issues in the
administration of criminal justice. We hope that such discussion
between the different branches of the legal profession will become
commonplace in Turkey. The
sweeping language of the 1982 Constitution and the particular
conception of national security which it contains have recently
become the subject of a vigorous national debate within Turkey.
Constitutional provisions that declare that "no protection will be
afforded to thoughts and opinions contrary to Turkish National
interests" have resulted in the prosecution of many intellectuals,
journalists, and human rights activists for the exercise of their
right to freedom of expression. Some prosecutions arise from
statements about the Kurdish conflict, others from statements by
Islamic political activists that are deemed to have transgressed the
constitutionally protected principle of secularism. Rapporteurs of
the Council of Europe Parliamentary observed in January 1999 that,
"The Turkish Constitution, adopted under military rule in 1982,
leaves room for (although it does not necessarily entail)
conceptions of the relationship of the State to the individual which
are authoritarian and not compatible with the Council of Europe’s
Statute and the European Convention on Human Rights." A revision in
the language of the Constitution would decrease the possibility for
SSC prosecutions to be used to punish political dissent. In
recent months, a clear division has emerged in statements by leading
state officials, some of whom are advocating a bold reform agenda,
while others remain committed to stifling free debate and punishing
dissent. On the
Kurdish issue, and on the question of the place of Islam in society,
the courts have been used to penalize dissident opinions and
non-violent critics of official policies. Such measures are
counterproductive. The implacable hostility of the authorities to
open debate has fueled conflict and polarization. In contrast,
adherence to the rule of law, and the reform of laws that currently
fall short of international standards, would ease conflicts leading
to a reduction in human rights violations. The
changing of attitudes will occur best when there is an open debate
within Turkish society on human rights and the rule of law. However,
human rights defenders continue to be prosecuted for their
non-violent statements criticizing government policies in sensitive
areas. Human rights leaders, like Akin Birdal While we welcome the recent release of Akin Birdal, and of others imprisoned for the non-violent expression of their views, the law should be amended to make such prosecutions impossible. It is distressing that in the proposed prisoner amnesty vetoed by President Demirel in September, gunmen who fired six bullets into Akin Birdal in May 1998, almost killing him, would have walked free while Birdal himself remained in prison. A revised amnesty provision from which some writers and journalists imprisoned for their non-violent statements have benefited is a positive measure, but the law remains unchanged, so if they express their views again they risk being returned to jail. The law remains dangerously sweeping in this area. A clear delineation of what constitutes acceptable and unacceptable expression should be established in law based on the language of the European Convention on Human Rights, and the judgments of the European Court of Human Rights. An issue of particular concern to the Lawyers Committee, an organization which seeks to protect lawyers worldwide who are persecuted for carrying out their professional duty to defend human rights and uphold the rule of law, are cases of lawyers subject to prosecution for their representation of unpopular clients. We have campaigned for years on behalf of 25 lawyers from Diyarbakir who have been facing criminal prosecution for more than six years on what appear to us to be fabricated charges designed to deter them and their fellow lawyers from exposing the human rights costs of the counter-terrorism campaign in the southeast. The continuing legal proceedings against them are a violation of the right to trial within a reasonable time. The charges against them should be dismissed. There has been much discussion in recent weeks about the important role of civil society organizations in building a strong society. State Minister Irtemcelik met with leaders of two major human rights organizations in September, indicating, we hope, a more constructive relationship between state authorities and Turkish non-governmental human rights organizations. Closed offices of human rights organizations like the Human Rights Association office in Diyarbakir and the Mazlum Der offices in Urfa and Malatya should be reopened. Prime Minister Ecevit has just returned from Washington D.C. where he has repeated the commitments of the Turkish government to institute reforms in the human rights area, and has rightly received some credit for the progress his government has already made. Our report sets out in some detail the key elements of three fundamental areas where sustained progress is essential if we are to speak of human rights reform. The recommendations extracted from the report, set out below, form a checklist of mileposts along the road to human rights reform. The more check marks we can place next to elements on this list in the coming months, the more advanced the reform efforts will be.Lawyers Committee for Human Rights
Promoting Accountability of Members of the Security Forces
Ending Persecution of Human Rights Defenders
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