Memorandum from Amnesty International
UK
TURKEY
MANDATE OF
AMNESTY INTERNATIONAL
1. This paper considers the human rights
situation in Turkey only to the extent that it is relevant to
the mandate of Amnesty International.
2. While Amnesty International promotes
all human rights, including economic, social and cultural rights
with the emphasis on the universality and indivisibility of human
rights, its main focus is:
— physical and mental integrity;
— freedom of conscience and expression;
— freedom from discrimination.
INTRODUCTION
3. Amnesty International has continuing
concerns about the failure of Turkey to conform to international
standards of human rights.
4. Amnesty International takes no position
on whether or not any candidate country, including Turkey, should
join the European Union. The EU's decision to monitor the human
rights situation in the candidate countries and to report regularly
on any progress indicates a commitment to the achievement of an
acceptable standard of human rights within the EU. Amnesty International
understands that during the accession process Turkey, like others,
will benefit from EU encouragement and support for its reforms.
5. In late 2000, the European Commission
identified a number of short-term and medium-term priorities to
guide Turkey towards meeting the Copenhagen criteria for EU accession.
These were formally adopted by the Council in March 2001. The
human rights related priorities cover issues ranging from the
composition of the National Security Council (NSC), to the abolition
of the death penalty, and include the lifting of the ban on broadcasting
in Kurdish and the introduction of equality of men and women.
In response, Turkey adopted a National Programme for the Adoption
of the Acquis. Amnesty International welcomes some of the subsequent
legislative steps taken by Turkey, including the Constitutional
amendments passed on 3 October 2001.
6. However, the organisation is disappointed
that amendments did not include significant guarantees for freedom
of expression or safeguards against torture and fall short of
meeting Turkey's international obligations. In addition, no concrete
steps have been taken at grass roots level to effect real improvement
in the human rights situation. Freedom of speech remains restricted,
human rights defenders continue to be harassed, death sentences
continue to be passed and many prisoners suffer isolation in the
new F-Type prisons. Torture can be described as systematic, in
the sense that it is a pervasive technique used by law enforcement
agencies, regardless of the approval or disapproval of higher
officials or of the government. Torturers are rarely brought to
justice.
7. Improvement in human rights will only
result from limiting restrictions on individual freedoms to the
narrow margins of the European Convention on the Protection of
Human Rights and Fundamental Freedoms (ECHR) and from a comprehensive
reform of law and practice, including the introduction and implementation
of effective steps to eradicate torture.
8. In the Foreign and Commonwealth Office's
Human Rights Annual Report 2001 (Cm 5211), a short assessment
of the human rights situation in Turkey (on pages 9-10) expresses
concern about
the continuing incidence of torture by the
security forces; the way in which force was used to break up prison
riots in December 2000; the disappearance in January 2001 of two
HADEP (pro-Kurdish political party) administrators, last seen
in a police station in south east Turkey; the regular closures
of branches of the foremost Turkish NGO, Human Rights Association;
and the criminal charges brought against 19 individuals accused
of insulting the Turkish state by attending a conference on the
occurrence of rape in custody.
It is encouraging that this analysis reflects
many of the concerns set out below by Amnesty International.
9. However, the report's description of
the National Programme for the Adoption of the Acquis as "a
clear programme of major administrative, institutional and legal
reform" needs to be treated with a degree of care. Some aspects
of the programme were formulated in general terms. Furthermore,
to effect a positive change in Turkey's human rights situation,
constitutional and legal amendments, and indeed existing laws,
must be translated into practice. For example, the prohibition
of torture must be rigorously enforced.
10. It is therefore incumbent on the United
Kingdom, other EU member states and the EU institutions to comprehensively
monitor the human rights situation. Monitoring must refer not
only to legal amendments and political rhetoric but also to the
reality on the ground. The UK and EU must raise human rights concerns
and draw attention to recommended remedial action at every opportunity.
AMNESTY INTERNATIONAL'S CONCERNS ABOUT THE
HUMAN RIGHTS SITUATION IN TURKEY
TORTURE AND
IMPUNITY
11. During four separate visits between
November 1999 and June 2001, Amnesty International delegates found
no signs of serious and effective measures to combat torture.
The geographic spread, the range of potential victims and the
number of testimonies received indicated that almost anybody could
be tortured. Victims could include people suspected of pro-Kurdish,
Islamist or Leftist activities, people suspected of involvement
in protests against the new F-Type prisons, others suspected of
corruption or criminal offences, major and petty. They included
women and children.
12. It can take the form of heavy beating,
being stripped naked, sexual abuse, death or rape threats, other
psychological torture, deprivation of sleep, food, drink or use
of the toilet. Other methods include electric shocks, especially
to the genitals, suspension by the arms, hosing with pressurised
icy water, and falaka, beating on the soles of the feet.
If it is likely that the detainee will be released, methods that
do not leave marks will sometimes be used, except in rural areas
where victims have little access to human rights defenders or
medical examination.
13. Torture mainly occurs in police or gendarmerie
custody during the first days of detention. Several factors contribute
towards it: incommunicado detention; unacknowledged detention;
prolonged detention.
Incommunicado detention
The abolition of incommunicado detention is
neither among the constitutional amendments nor among the short-term
measures promised in the National Programme for the Adoption of
the Acquis but might be implied in Turkey's mid-term measures,
which are formulated in very general terms. Although detainees
may benefit from legal counsel at any stage and level of the investigation
under Article 136 of the Turkish Criminal Procedure Code (TCPC)
amended in 1992, people held under the jurisdiction of the State
Security Courts, including children, can still be held incommunicado
for up to four days.[1]
Unacknowledged detention
15. The Turkish Regulation on Apprehension
provides clear guidelines for the registration of people taken
into custody and their right to inform relatives. These guidelines
are often ignored. Apart from the distress caused to relatives,
the failure to register detainees properly and promptly creates
conditions of increased risk of torture, "disappearance"
or death in custody.[2]
Prolonged detention
16. Torture mainly occurs in Turkey in police
and gendarmerie detention before detainees are presented to a
prosecutor or judge. The European Court of Human Rights has established
in numerous applications from Turkey that, in violation of Article
5(3) of the ECHR, detainees had not been brought promptly before
a judge. As a short-term priority, the EU has asked Turkey to
"further align legal procedures concerning pre-trial detention
with the provisions of the European Court of Human Rights and
with recommendations of the Committee for the Prevention of Torture".
17. The UN Special Rapporteur on torture
has also urged that
the legislation should be amended to ensure
that no one is held without prompt access to a lawyer of his and
her choice as required under the law applicable to ordinary crimes
or, when compelling reasons dictate, access to another independent
lawyer. (b) The legislation should be amended to ensure that any
extensions of police custody are ordered by a judge, before whom
the detainee should be brought in person: such extensions should
not exceed a total of four days from the moment of arrest or,
in a genuine emergency, seven days, provided that the safeguards
referred to in the previous recommendations are in place.[3]
18. These rights are frequently violated
in Turkey for people detained on suspicion of crimes falling within
the jurisdiction of the State Security Courts. Until the amendment
of the Constitution, police custody for these detainees, before
being seen by a judge, could be increased to seven days—or
to ten days in the four provinces under a State of Emergency (Diyarbakir,
Hakkari, Sirnak and Tunceli).
19. The amendment of the Constitution's
Article 19 on "Personal Liberty and Security" appears
to reduce the maximum period for police detention to four days
but the wording allows for different interpretations as it also
says these periods may be extended under state of emergency, martial
law or in times of war. Since current law foresees maximum periods
for detention of up to seven days for offences in the jurisdiction
of State Security Laws and up to ten days in a region under a
state of emergency, the constitutional amendment will therefore
have to be translated into law.
Extraction of "confessions"
20. The amendment of the Turkish Criminal
Procedure Code in 1992 prohibited the use of torture and ill-treatment
as interrogation methods. This ban has now been given constitutional
status with an amendment of Article 38 of the Constitution. According
to lawyers, human rights defenders and some prosecutors in Turkey,
one of the main reasons for the persistence of torture is that
confessions play a major role in the investigation of crimes.
Most victims allege in their reports to Amnesty International
that they were made to sign statements "confessing"
their guilt or blaming others for the offence. Detainees are frequently
remanded to prison on the basis of such statements, which are
read out in court and placed on file.[4]
In most cases, Turkish officials fail to investigate related torture
allegations, so not only do torturers go unpunished but victims
often receive an unfair trial.
Sexual torture
21. Rape and sexual assault by members of
the security forces continue to be reported. Both men and women
are subjected to sexual torture, including beating and electric
shocks on the genitals and breasts, squeezing of the testicles
and rape.[5]
The consequences have been particularly far-reaching for women
and girls, involving risk of pregnancy and dishonour in their
community, and there was previously a reluctance to report it.
However a legal aid project for women abused and raped in custody,
founded in Istanbul in 1997, has encouraged more reporting. Between
mid-1997 and October 2001, 146 women sought help. The alleged
perpetrators are mainly police officers but include gendarmes,
soldiers and village guards, and in one case prison guards. They
have rarely been brought to justice.
22. In several cases "virginity tests"
have been performed on young women without their consent, justified
by authorities on the grounds of establishing sexual assault.
Such a test which involves examination of the hymen does not prove
rape, as rape can occur without breach of the hymen. A decree
by the Ministry of Justice in 1999 prohibits forcible tests when
there is no allegation of sexual assault.
23. In July 2001 the Health Minister reinstated
"virginity tests" on high school students in certain
circumstances and authorised schools to dismiss those girls proven
not to be virgins.
24. Amnesty International believes that
the forcible subjection of detainees to these tests is a form
of gender-based violence and that tests on high school students
are discriminatory, can cause severe pain or suffering, are inflicted
intentionally by state officials. This can, therefore, amount
to torture or ill-treatment.
In prisons
25. There are some concerns about ill-treatment
of prisoners during transfers to and from prisons, for example
to another prison, to medical treatment or to court by gendarmes.
These concerns have increased since the introduction of F-Type
prisons with smaller one, two or three person cells. Amnesty International
is concerned about the lack of opportunity to associate with other
prisoners, as prolonged isolation amounts to cruel, inhuman and
degrading treatment. F-Type prisons and the new wings on existing
prisons, built to eliminate the over-crowded dormitories, which
were dominated by gangs or political groups, have been the cause
of a hunger strike by political prisoners and their relatives
since October 2000. At the time of writing, 46 people have died,
in addition to the 30 prisoners and two guards who died in the
operation to break the prison protest in December 2000.
26. Article 16 of the Anti-Terror Law, laying
down a draconian regime of isolation, although rarely implemented
before the F-Type prisons, was amended in May 2001 to allow communal
activities and unobstructed visits. However, the wording suggests
that provision of these rights is at the discretion of the prison
authorities. When a European Parliament delegation visited in
June, common areas were not in use.
Impunity
27. Turkish law prohibits ill-treatment,
torture and unregistered detention and prosecutors should investigate
all allegations, whether made officially or through court, media
or other public statements where there are reasonable grounds
for an investigation.
28. The Law on the Prosecution of Civil
Servants, 2 December 1999 (Law No. 4483), is inadequate, as it
is only possible to open an investigation against a civil servant
who commits a crime if the related superior officer gives permission.
Pressure is frequently applied to victims to deter them from filing
complaints. The decision of whether or not to prosecute should
be taken by only by judges or prosecutors.[6]
29. Other significant factors contributing
to the continuing impunity of torturers are routine blindfolding,
which prevents identification, and both the complicity and the
intimidation of doctors and other health professionals.
30. When perpetrators are eventually tried,
they are rarely convicted, even in the face of strong evidence.
Officers are not suspended and are often promoted during the investigation
and trial, which may continue for years. Only 10 security officials
were convicted out of 577 accused of torture between 1995 and
1999. 2,851 investigations of ill-treatment ended with 84 convictions.
These figures also show that if cases are opened it is usually
on charges of ill-treatment rather than torture.[7]
DEATH PENALTY
31. Amnesty international welcomes the amendment
to abolish the death penalty for criminal acts. However it has
been retained for war crimes (six articles) and "terror crimes"
(six articles). Of the latter, the two most frequently used relate
to separatist acts (Article 125) and attempts or incitement to
overthrow or alter the Constitution or parliament (Article 146).
Terror crimes are very broadly defined under the Anti-Terror Law.
32. There has been a de facto moratorium
on executions since 1984, but death sentences have continued to
be passed. As recently as the 7 January 2002, three men were sentenced
to death for the murder of four prominent writers and academics
in an alleged plan to establish an Islamic state in Turkey. As
of October 2001, 61 files concerning 117 people were held at the
parliament. 62 per cent of these were passed under Articles 125
and 146 and they could be carried out if confirmed and the law
is not changed. In addition, the file on Abdullah Öcalan,
leader of the armed opposition group Kurdistan Workers' Party
(PKK), is being held at the Office of the Prime Minister and this
prominent case is believed to be the main reason to retain the
death penalty, in spite of repeated calls from international bodies
for its abolition.
FREEDOM OF
EXPRESSION
33. Several amended articles of the Constitution
might have an impact on the right to freedom of expression. The
amendment of Article 14 on the prohibition of rights abuse introduced
a reference to "acts". Although this might have been
meant to inhibit restrictions on the right to freedom of expression,
the wording is too broad to be useful for this purpose, because
it could be interpreted as including delivering a speech, writing
or publishing an article or book.
34. The articles banning statements and
publications "in a language prohibited by law", targeted
at the Kurdish language without specific mention, has now been
abolished. This is very welcome.
35. However, amended Article 26 introduced
further restrictions to the right to freedom of expression "for
the purposes of protecting national security, public order and
public safety, the basic characteristics of the Republic and safeguarding
the indivisible integrity of the State with its territory and
nation". Such wording has been used in the past to penalise
peaceful statements on the Kurdish issue or the role of Islam
in politics and society.
36. Several articles in Turkish law, carrying
long prison sentences, are mainly or solely used for any statements
on the existence of Kurds or other ethnic groups in Turkey, or
when rights are demanded for these groups. Article 8 of the Anti-Terror
law, which criminalises peaceful "separatist propaganda",
was used to sentence economics professor Dr Fikret Baskaya to
16 months imprisonment in June 2000 for an article he wrote in
a pro-Kurdish newspaper on the trial of PKK leader Abdullah Öcalan.
Dr Baskaya was imprisoned in June 2001. Amnesty International
has adopted him as a prisoner of conscience and is campaigning
for his release.[8]
37. The organisation is calling for Article
8 to be amended to ensure that no one is sentenced for peacefully
expressing their views. Other articles have been increasingly
used to prosecute and convict human rights defenders, politicians,
writers, journalists and many others who have referred to Kurds
or Islam, for incitement to hatred based on religious or ethnic
difference.[9]
38. Individuals who have denounced rape
in custody, including some who are alleged rape victims, have
been charged with insulting the security forces. Eren Keskin,
a prominent human rights lawyer (see also paragraph 43) is on
trial for having insulted the army after her description of the
torture of the "Peace Mothers" in 2000 was published
in a newspaper.[10]
39. Amnesty International considers that
the legal and constitutional guarantees for the right to freedom
of expression must be strengthened so that they are compatible
with Article 10 of the ECHR. The European Court of Human Rights
has interpreted restrictions to Article 10 very narrowly. Peaceful
advocacy of reform, including in relation to matters affecting
territorial integrity, may not be restricted even if there is
concern about violent separatism. Amnesty International believes
that any peaceful expression of views, even regarding the political
structure of the state and possible secession should be permitted.
A fundamental change of attitude by the Turkish government and
the judiciary needs to take place, leading to revision of both
law and practice, in order to ensure freedom of expression.
HARASSMENT OF
HUMAN RIGHTS
DEFENDERS
40. The amendment of Article 33 on freedom
of association introduced the same restrictions as for freedom
of expression but also retained further restrictions. It is used
in combination with the Law on Associations to seriously impede
the activities of associations in Turkey, including human rights
organisations.
41. Amnesty International applied for registration
in Turkey in May 2001. There are four Amnesty International groups
in Turkey, 75 members altogether. In line with the organisation's
policy, members only work on specific cases in countries other
than their own, although they are allowed to lobby their own government
regarding its policies. Registration is essential for any organisation
to exist and function openly in Turkey and requires signatures
of all members of the Council of Ministers. Some ministers failed
to sign and the application was rejected.
42. The Diyarbakr office of the Human Rights
Foundation (TIHV), one of five treatment and rehabilitation centres
for torture victims, where the extent of torture is documented,
was raided in September 2001. All patient files, computers and
doctors' details were confiscated and kept for a month, in violation
of doctor-patient confidentiality. The search warrant described
treatment as an "illegal activity".
43. Eren Keskin, head of the Istanbul branch
of the Turkish Human Rights Association (IHD), received an increase
in death threats after the governor of Sirnak reportedly said
that she had "stirred things up", when investigating
the "disappearance" of representatives of the main Kurdish
political party, HADEP. Representatives of human rights organisations,
political parties and trade unions who criticised the F-Type prisons
have been charged with, and some convicted of, support for illegal
organisations. Some branches of IHD have been temporarily or indefinitely
closed, others raided and some members detained.
RECOMMENDATIONS
44. Amnesty International welcomes some
aspects of the constitutional reforms but urges the Turkish authorities
to follow up these with further constitutional amendments and
the necessary law reforms to fully comply with international human
rights standards.
End torture, "disappearance", extra-judicial
executions and the impunity of those responsible
45. Incommunicado detention: Incommunicado
detention should be abolished and clear guidelines should be introduced
to ensure that, in practice, all detainees have immediate access
to legal counsel.
46. Unacknowledged detention: Detention
records should be kept scrupulously in a standardised pattern
of registration form provided for in the Regulation on Apprehension
in a bound ledger with numbered pages. These records should be
available for scrutiny by relatives and lawyers.
47. Shorten periods of custody: All
people deprived of their liberty should be brought promptly before
a judge. Prosecutors and judges should only extend the custody
period after having seen the detainees in person and making sure
that they are not being tortured or ill-treated.
48. Define torture in line with international
standards: The definition of torture in Turkish law should
at a minimum incorporate the definition in the Convention against
Torture.
49. Investigation of complaints:
Turkish authorities should ensure that complaints and reports
of torture or ill-treatment, "disappearance" and extra-judicial
execution are promptly and effectively investigated. Even in the
absence of an express complaint, an investigation should be undertaken
whenever there is reasonable ground to believe that torture or
ill-treatment might have occurred. The investigators should be
competent, impartial and independent of the suspected perpetrators
and the agency they serve. They should have access to, or be empowered
to commission investigations by impartial and independent medical
or other experts. The methods used to carry out such investigations
should meet the highest standards, and the findings made public.
50. Medical reports: Detainees should
have immediate access to independent, impartial and competent
medical experts. Independent medical or psychiatric reports should
be admissible to the investigation. Appropriate equipment for
the medical investigation of different forms of torture and ill-treatment
should be provided. Medical examinations should be conducted in
private under the control of the medical expert and outside the
presence of security or other government officials. In the case
of rape and other forms of sexual abuse, the examining health
personnel should be of the same sex as the victim unless otherwise
requested by the victim.
51. Witness protection: Alleged victims,
witnesses, those conducting the investigation and their families
should be protected from violence, threats of violence or other
form of intimidation that might arise pursuant to the investigation.
Those potentially implicated in human rights violations should
be removed from any position of control or power, whether direct
or indirect, over complainants, witnesses and their families,
as well as those conducting the investigation.
52. Prosecution: Those responsible
for human rights violations, including those who order it, should
be brought to justice. As recommended by the UN Special Rapporteur
on torture after his visit to Turkey, "prosecutors and judiciary
should speed up the trials and appeals of public officials indicted
for torture and ill-treatment. Sentences should be commensurate
with the gravity of the crime".
53. Suspension of officers suspected
of torture: Police officers or gendarmes under investigation
or trial for ill treatment, torture, "disappearance"
or extra-judicial executions should be suspended from active duty
and if convicted they should be dismissed from the force.
54. Independent decisions on whether
to prosecute: The Law on Prosecution of Civil Servants and
similar laws should be amended in order to ensure that any decision
as to whether or not to prosecute a government officer for ill-treatment,
torture, "disappearance" or extra-judicial execution,
or for abuses of authority which might lead to such human rights
violations, is taken exclusively by prosecutors and judges.
55. Statements elicited under torture:
Article 15 of the UN Convention against Torture obliges state
parties to "ensure that any statement which is established
to have been made as a result of torture should not be invoked
as evidence in any proceedings, except against a person accused
of torture as evidence that the statement was made". A body
should be established to review previous convictions based on
evidence alleged to have been extracted under torture and, where
appropriate, to arrange for prompt retrial.
56. Prison conditions: To bring prisons
in line with international standards, Turkey should ensure that
prisoners be allowed eight hours daily association as called for
by the CPT. Prisons should be open to the scrutiny of human rights
defenders to ensure they are run according to Turkish law and
international standards. An independent inquiry should be established
to examine the deaths and torture allegations during the December
2000 prison operation.
Death penalty and executions
57. The existing moratorium on executions
should be continued and the death penalty should be fully abolished
from all laws. Turkey should sign and ratify Protocol No.6 to
the European Convention of Human Rights
Ensure freedom of expression
58. All prisoners of conscience should be
immediately and unconditionally released and their civil and political
rights reinstated.
59. Article 312 and Article 159 of the Turkish
Penal Code and Article 8 of the Anti-Terror law should be amended
or repealed as soon as possible in order to prevent them being
used to restrict freedom of expression.
60. A thorough review of Turkish law and
the Constitution should be conducted in order to lift any restrictions
on the right to peacefully express opinions, form associations
and assemble in public and in order to prevent the law being interpreted
in such a way as to extend such restrictions.
End repression against human rights defenders
61. Human rights defenders should be allowed
to pursue unhindered their lawful role of monitoring and reporting
human rights matters as set out in the UN Human Rights Defenders
Resolution of the 9 December 1998.
62. Charges against human rights defenders
for peacefully expressing their views or for carrying out their
role of monitoring and reporting human rights violations should
be dropped. Branches of human rights organisations that have been
legally closed should be allowed to reopen immediately.
63. Effective action should be taken to
ensure all public servants, including the security forces, recognise
the legitimacy of the work of human rights defenders and abstain
from making unsubstantiated allegations against human rights defenders.
Statements of this nature must be publicly countered and appropriate
measures applied to sanction those responsible.
64. Integrated programmes should be adopted
for the protection of human rights defenders. These should include
thorough criminal investigations into attacks and threats against
human rights defenders, preventative measures, such as education
for security force agents and security measures to assist with
immediate safety issues. Such programmes should ensure that all
measures to protect human rights defenders are taken in consultation
with members of human rights organisations
Ratify human rights standards
65. Turkey should ratify the International
Covenant on Civil and Political Rights with its Optional Protocols,
the International Covenant on Economic, Social and Cultural Rights
and the Statute of the International Criminal Court and lift any
restrictions to conventions to which she is a state party.
UK Government and the EU
66. The United Kingdom, other EU member
states and the EU institutions must comprehensively monitor the
human rights situation. Monitoring must refer not only to legal
amendments and political rhetoric but also to the reality on the
ground. The UK and EU must raise human rights concerns and draw
attention to recommended remedial action at every opportunity.
Amnesty International UK
January 2002
1 See the case of Abdulselam Bayram in Amnesty International
Turkey: An end to torture and impunity is overdue! October
2001, AI Index EUR 44/072/2001 pp 9-10. Report available at http://www.amnesty.org.uk. Back
2
See the case of Alpaslan Yelden and "disappearance"
of Tanis and Denniz in Amnesty International, An end to torture
and impunity is overdue! pp11-12. Back
3
UN Doc. E/CN.4/1999/61/ Add 1, para.113, 27 Januaray 1999. Back
4
See Amnesty International, An end to torture and impunity
is overdue! p 14. Back
5
N.C.S., 16 year old, and Fatma Deniz Polattas in An end to
torture and impunity is overdue! p 16. Back
6
See Amnesty International, An end to torture and impunity is
overdue! p 24-27. Back
7
See Amnesty International, An end to torture and impunity
is overdue! p 36. Back
8
See Amnesty International, Turkey: Appeal Cases - Dr
Fikret Baskaya: Prisoner of Conscience for the second time, 16
July 2001, AI Index 44/042/2001. Back
9
See, for example, Amnesty International News Release "Turkey:
Akin Birdal adopted as a prisoner of conscience by Amnesty International",
3 June 1999, AI Index EUR 44/037/1999. Back
10
Amnesty International, Turkey: An end to torture and impunity
is overdue pp 38-39. Back
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