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INTRODUCTION
At its summit in Helsinki in December 1999, the European Union (E.U.)
recognized Turkey as a candidate for membership in the union, subject to
the understanding
that actual negotiations for membership will not commence until Turkey
meets the political criteria for E.U. membership established in Copenhagen
in 1993. As is
E.U. practice with all applicant states, the European Commission is
in the process of preparing an Accession Partnership document, identifying
the steps necessary
for Turkey to meet the Copenhagen criteria, which include "stability
of institutions guaranteeing democracy, the rule of law, human rights,
and respect for and
protection of minorities."
Once adopted by the Commission and the E.U. Council of Ministers in
late 2000, the Accession Partnership document, which will also include
economic and
institutional requirements, will become the E.U.'s formal list of tasks
that Turkey must complete in order to accede to the union. Turkey will
then produce a national
program for accession that mirrors the Accession Partnership, and progress
will be monitored by means of the annual 'Regular Report from the European
Commission on progress towards accession' on the basis of the Copenhagen
criteria, as is done for all applicant states.
Turkey's history of gross and widespread human rights violations has
been thoroughly documented by non-governmental organizations, including
Human Rights
Watch, and by international governmental organizations including the
United Nations (U.N.) and the Council of Europe. As a consequence of Turkey's
persistent
failure to follow the recommendations of such bodies, serious violations
persist today.
In the past, fellow governments in Europe have sometimes been reluctant
to press too strongly for reform, fearing that Turkey might disengage from
dialogue
altogether. This patience (also motivated, in some cases, by commercial
and security interests) has been exploited by successive Turkish governments
unable or
unwilling to stand up to the ruthless and conservative forces deep
within the state. Meanwhile the Turkish public has been left unprotected
against torture and
repression. The preparation of the Accession Partnership is a unique
opportunity to motivate significant lasting reform in Turkey.
While Human Rights Watch does not oppose or support Turkey's E.U. candidacy,
it has consistently urged E.U. member state governments to use all diplomatic
channels, including the accession process, to encourage the Turkish
government to protect human rights. For that purpose, we have prepared
this briefing to
summarize the main patterns of human rights violations in Turkey and
suggest a number of remedial steps that could be included in the Accession
Partnership
document.
This briefing does not entail an exhaustive list of problems and needed
reform, but rather the minimum that should be addressed through the accession
process. The
briefing's recommendations are nonetheless detailed and specific. Human
Rights Watch believes that the Accession Partnership will not achieve its
aim unless it
defines its goals in fine detail. The Turkish state has shown itself
to be adept at improvising half-way measures and empty initiatives in order
to placate critics. In
September 1999, for example, the temporary release of Akin Birdal,
imprisoned for a speech he gave while president of the Turkish Human Rights
Association, and
the partial amnesty of journalists in the same month, were clearly
maneuvers to avoid official embarrassment at the E.U. Helsinki Summit in
December. Akin Birdal
was rearrested in early 2000, and prosecutions of journalists continue.
If the benchmarks established for the accession process are completely
unambiguous and
measurable, the E.U. will not be constantly obliged to give credit
and advantage for insubstantial gestures.
At the same time, detailed recommendations can give the Turkish government
confidence that it will receive credit from the E.U. when due. Suspicions
have been
voiced in Turkey that E.U. member states have used human rights as
an excuse for resisting Turkey's membership, while the "real" reasons could
be traced to various
politicalconsiderations, including Turkey's sometimes strained relations
with E.U. member Greece, and xenophobic fears about including a populous,
predominantly
Muslim country in a border-free Europe. These suspicions, justified
or not, seriously undermine the efficacy of any human rights agenda in
the E.U. accession
process. Therefore, a transparent process based on clear and objectively
measurable benchmarks is essential. It will signal to the people of Turkey
that the E.U.'s
human rights goal posts are to be taken seriously, but will not be
moving perpetually out of reach.
Each fall, the E.U. Commission publishes a regular report on the progress
of each applicant state toward accession and the European Council reviews
the accession
process on the basis of this report. The E.U.'s 1998 and 1999 regular
reports on Turkey accurately identify the main problem areas, and correctly
point to the
woeful lack of progress since 1997. The first real indication from
the Turkish side of their state of readiness for the Accession Partnership
appeared in the February
28, 2000 Report on the Political Criteria of the Special Committee
on Turkey-E.U. Relations (hereinafter, the Report) prepared by the Special
Committee on
Turkey-E.U. relations attached to the Turkish Prime Minister's office.
Human Rights Watch has also examined an undated document entitled Calendar
for
Democracy, the Rule of Law and Human Rights (herein after the Calendar)
produced by the Secretariat of the High Coordinating Council for Human
Rights of
the office of the Prime Minister in mid-2000, after publication of
the Report.
These two documents contain a large number of proposals for constitutional,
legal and administrative reform in the direction of extending freedoms
and protecting
fundamental rights. They include measures for reshaping the National
Security Council, abolishing the death penalty, redrafting laws in order
to ensure freedom of
expression, establishing judicial police, abolishing incommunicado
police detention and combating domestic violence. The documents also proposed
signature and
ratification of the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
That Turkey went on to sign both covenants on August 15, 2000 was encouraging,
and it is to be hoped that ratification - without extensive reservations
-will soon
follow. As a general expression of readiness to consider change, then,
these proposals give cause for optimism.
The omissions, on the other hand, and the lack of precision as to the
final shape of such reforms, leave room for concern. Most obviously, these
documents do not
remove the remaining obstacles to the use of minority languages in
all spheres of daily life and to the free expression of ethnic identity.
The Report refers briefly to the
problems with language, but understates them, referring to "basic freedoms
granted, shortcomings in practice." It restates the official concept of
"constitutional
citizenship" according to which "everyone living in Turkey and feeling
Turkish is a Turk," but does not address the situation of those who do
not feel Turkish, except
to say that such matters "can be met on the basis of individual rights."
The Calendar ignores the language issue entirely.
The Report and the Calendar contain no reference to a number of safeguards
against torture that have been specifically recommended by intergovernmental
mechanisms (including a prohibition on blindfolding and independent
prison/police station visiting schemes); no detailed suggestions as to
how children are to be
protected from torture; no proposals for immediate release of people
imprisoned for the peaceful exercise of their rights of expression; no
proposals to resolve the
problems surrounding the wearing of the Islamic head scarf in, for
example, institutions of higher education and parliament; no provisions
for investigation of
"disappearances" and extrajudicial executions in the southeast and
no arrangements for lifting Turkey's geographical reservation to the 1951
Convention Relating to
the Status of Refugees.
The time line for reform indicated in the Calendar gives further cause
for disquiet. The European Commission will articulate its Accession Partnership
proposals in
the form of short-term and medium-term measures. Short-term measures
are expected to be effected within a year, while medium-term measures are
for introduction
within approximately three years. Many of the measures outlined in
this briefing should be enacted now. Reform on torture and freedom of expression
is long
overdue. The dramatic reduction in attacks by illegal armed groups
offers an unprecedented window of opportunity, which should be used to
enact measures to build
confidence and end the repression that such violent groups have used
to excuse their own abuses. The current Turkish government has been frittering
this opportunity
away. It is extremely disheartening to find that, according to the
Calendar, necessary draftchanges to the Criminal Code will only be ready
for submission to
parliament by the end of 2001, and the end of 2002 in the case of the
Anti-Terror Law. Prisoners held for expressing non-violent opinions should
not be left to
languish in jail, captive to Turkey's timetable for accession.
The Calendar puts a similar leisurely time line on the abolition of
incommunicado detention, suggesting submission of draft changes to the
Criminal Procedure Code
at the end of 2001. In January 2000, Mehmet Ali Irtemcelik, then State
Minister with responsibility for Human Rights, included abolition of incommunicado
detention
among his "short term goals,"1 foreseeable in the European Commission's
one-year short-term time frame. The schedule of the Calendar therefore
shows some
slippage from this prior public undertaking.
Human Rights Watch considers that the proposals in this briefing, many
of which protect fundamental liberties and all long overdue, deserve to
be tackled within the
first year. The Accession Partnership is itself due to emerge already
a full year into Turkey's E.U. candidacy-a year which, so far at least,
the Turkish government has
not used to great effect.
This Human Rights Watch briefing contains no recommendations on the
constitutionally assigned role of the Turkish armed forces, which is not
strictly a human rights
issue. Nonetheless, it is clear that the structure and operation of
the National Security Council, its role in ousting Prime Minister Necmettin
Erbakan in 1997, the
pronouncements of the Office of the Chief of General Staff on education,
broadcasting and language, the armed forces' extensive industrial holdings
and the fact that
the armed forces are not subject to the Defense Ministry, are all highly
anomalous. The armed forces and other conservative elements within the
state that have had
overriding political influence for the past twenty years must bear
considerable responsibility for the sorry human rights situation, and for
the recent succession of
humiliating judgments against Turkey at the European Court of Human
Rights. There is unlikely to be much improvement while these forces remain
in the driver's seat
and therefore the Accession Partnership's proposals in this respect
will be significant for the human rights situation.
In some areas, the Turkish government may question the imposition of
standards that are not yet met by some existing members of the European
Union. The right to
a non-punitive alternative to military service proposed in this report,
for example, is not yet fully in place in Greece. In such areas, the E.U.
should work for
consistency among member and applicant states in conformity with international
standards, rather than settle for a lower common denominator.
The recommendations on torture contained in this report are particularly
extensive and include some measures that are not applied in some other
E.U. candidate
states, or indeed some member states. These are made necessary by the
persistence and severity of the problem in Turkey.
The following discussion of Human Rights Watch's recommendations for
the Accession Partnership addresses nine key areas of needed reform: preventing
torture,
safeguarding freedom of expression and the right of conscientious objection,
ensuring language and minority rights, combating restrictions on the head
scarf,
improving prison conditions, lifting the death penalty, ending repression
of civil society, contributing to stability in the southeast, and protecting
refugees. Each
recommendation is followed by an indication of how the Turkish government's
Calendar and Report deal with that issue.
1 Milliyet (Nationhood), January 6, 2000.
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PREVENTING TORTURE
The persistence of torture in Turkey is an indisputable matter of record.
Throughout the last two decades Turkish and international non-governmental
organizations
have documented thousands of cases from all parts of the country-aterrible
toll of lasting physical and psychological damage inflicted on Turkish
citizens by police
officers and gendarmes whose proper duty was to protect them. One Turkish
government after another has denied the extent of torture and refused to
take any
measures to combat it. During the 1990s the European Committee for
the Prevention of Torture (CPT) began making visits to Turkey. The CPT
is authorized under
the European Convention for the Prevention of Torture to visit detention
sites and document conditions it observes. Its reports to states are generally
confidential
unless the state concerned authorizes publication, but such publication
has become the dominant norm. Nonetheless, Turkish governments headed by
politicians still
in positions of authority today, has withheld permission for the publication
of the CPT's early reports on Turkey. In 1992, apparently impatient at
government
inaction, the CPT took the unusual step of issuing a statement confirming
that it had found evidence of widespread torture.2 After three more years
of government
inertia, and scores more deaths in custody as a result of torture,
the CPT made another public statement in 1996.3 In 1999, the Turkish government
finally granted
permission for the publication of one of the CPT's reports.
The first and only really practical step to combat torture made by any
Turkish government since the 1980 military coup was the shortening of police
detention
periods in 1997.
The present Turkish government's record on torture has been unexceptional.
In August 1999 punishments for officers convicted of torture were increased.
In June
1999 Prime Minister Ecevit issued a circular urging police and gendarmes
not to commit torture and to abide by the October 1997 Regulation on Apprehension,
Custody and Interrogation, which outlawed the use of force during interrogation
and emphasized detainees' rights to remain silent, to be cautioned of their
rights, to
inform relatives, and to receive legal counsel. The Regulation also
tightened record keeping. For this four-page circular Prime Minister Ecevit
and his government
were widely commended at home and abroad. The praise would have been
well deserved if the circular had been followed by determined legislative
and
administrative efforts to eradicate torture. One year later, however,
the circular has begun to look like just another gesture mainly intended
to gain time and postpone
necessary action.
Incommunicado detention
The truth is that this government cannot claim to be truly committed
to ending torture while it continues to permit detainees to be held incommunicado
in police
stations.4 Incommunicado police detention provides an opportunity for
torture to take place without witnesses and permits torturers to obscure
or minimize medical
evidence of abuse. Experience worldwide has shown that when detainees
are left in secret custody, interrogators are almost inevitably tempted
to use force or
coercion to extract information or incriminating statements. Many judgments
of the European Court of Human Rights have emphasized the importance of
access by
lawyers from an early point following arrest. Most recently, in Averill
v UK,5 the court found that "a refusal to allow an accused under caution
to consult a lawyer
during the first 24 hours of police questioning must still be considered
incompatible with the rights guaranteed to him by Article 6 [of the European
Convention on
Human Rights]."6
Intergovernmental bodies have examined the situation in Turkey and are
unanimous that incommunicado detention is the key to the problem of torture.
The U.N.
Special Rapporteur on Torture, in the report on his 1998 visit to Turkey,
put at the top of his recommendations the need to "amend legislation to
ensure that no one
is held without promptaccess to a lawyer."7 In the report on its 1997
visit to Turkey, the European Committee for the Prevention of Torture recommended
that "all
persons deprived of their liberty by the law enforcement agencies-irrespective
of the offence of which they are suspected-be granted, as from the outset
of their
custody, the right of access to an independent lawyer."8 The U.N. Committee
against Torture, in its 1993 report on Turkey,9 also recommended that detainees
have
early access to legal counsel.
Until 1997 all detainees, including those held for common criminal offences,
could be held in incommunicado detention and they almost invariably were.
The
maximum police detention without judicial supervision was fifteen days,
doubled in provinces under state of emergency. As a result of changes in
the Criminal
Procedure Code enacted in March 1997 common criminal detainees can
be held in police custody only up to seven days and they are supposed to
be provided with
access to legal counsel throughout the police detention period. Those
detained for offences tried in State Security Courts, however, are still
held incommunicado for
the first four days, after which they may have access to a lawyer.
Moreover, their police detention may be extended on the order of a judge
to seven days, rising to
ten days in provinces under state of emergency.10
The 1997 reform has resulted in only limited improvement. The main benefit
is that the shortened unsupervised police detention period gives torturers
less space to
maneuver. Nevertheless, State Security Court detainees are still frequently
subjected to torture and denied the right of access to legal counsel even
after the four-day
period has elapsed. Since 1997, it has also become more common for
detainees to be interrogated in unofficial places of detention-vacant lots,
construction sites or
in open land outside cities. Lawyers are supposed to have access to
their clients after the fourth day of custody, but they are usually only
permitted a brief encounter
with their client in the presence of police officers, and it is almost
unknown for lawyers to be present during subsequent interrogation of their
clients.
Much less evidence is available as to how common criminal detainees
have benefited from the changes, but the evidence that exists is not reassuring.
Lawyers
working for the duty lawyer service of the Istanbul Bar Association
have told Human Rights Watch that detainees are often told that it will
be to their advantage if
they waive their right to legal counsel. This allegation was confirmed
this year in a series of reports published by the Turkish Parliamentary
Human Rights
Commission, based on visits to police stations and prisons. During
a visit to Erzincan Police Headquarters in March 2000 the Parliamentary
Commission examined
detention records. Entries for all but two of those detained in the
previous two years indicated that they "did not request a lawyer." At Erzurum's
Sehit Fatih Bodur
Police Centre, 269 of 270 detainees in the preceding twelve months
were recorded as not having requested a lawyer. At Tunceli Police Headquarters,
the
Parliamentary Commission noted that police station records had been
kept in an organized fashion since 1998, but that entries for all detainees
read "did not request
a lawyer." People who had been detained in these units for common criminal
offences gave the Parliamentary Commission detailed and credible accounts
of torture.
The CPT's findings confirm this picture. A report on its 1997 investigation
in Turkey states: "The information gathered during the October 1997 visit
showed that this
new right of access to a lawyer was as yet under used. The delegation
did not meet a single detained person who had experience of the right's
application, and the
Head of the Anti-Terror Department at Istanbul Police Headquarters
indicated that no one in the custody of his department had ever sought
to make use of it."11
Police officers show considerable creativity in avoiding the inconvenience
of having their territory haunted by lawyers and other representatives
of the outside world.
The Turkish Criminal Procedure Code in its current form assists them
by presenting many opportunities for evading safeguards. Lawyers have told
Human Rights
Watch that commoncriminal detainees accused of theft have been threatened
that if they demand to see a lawyer, a link could be constructed between
their offence
and an illegal political organization, thereby increasing the seriousness
of the charge and ruling out access to a lawyer. The fact that offences
under the Law on
Organized Crime come within the jurisdiction of State Security Courts
gives the police another tool to keep lawyers out. In a large-scale operation
in Istanbul in
November 1999 eighty-eight members of the Science Research Foundation,
an organization that examines science from the point of view of devout
Islam, were
detained at Istanbul Police Headquarters. There was no suggestion even
in the indictment against the detainees that this organization was involved
in violent activities,
but because they were being interrogated under the Law on Organized
Crime, the police were able quite legally to hold the detainees incommunicado
for four days.
In fact the detainees were held for six days without access to legal
counsel, and many alleged that they had been subjected to torture, including
blindfolding,
deprivation of sleep, deprivation of access to toilet facilities, hanging
by the arms, and electric shocks.
In view of the recommendations of both the U.N. Committee against Torture
and the CPT, and the jurisprudence at the European Court of Human Rights,
and in
view of the well established pattern of widespread torture in Turkish
police stations, Human Rights Watch believes that the Accession Partnership
must require that
detainees have the right to have a lawyer present from the earliest
possible moments of detention.
Accession Partnership Recommendation:
* The Turkish Criminal Procedure Code should be amended to ensure that
all detainees, irrespective of the offense in connection with which they
are
held, have the right to legal counsel throughout police detention and
the right to presence of counsel during interrogation. Both the Calendar
and the
Report recommend a change along these lines, but the Calendar schedules
the draft of this change for the end of 2001.
Blindfolding
Blindfolding prisoners in police custody is routine practice. Almost
every single former detainee interviewed by Human Rights Watch reported
that they were
blindfolded during police interrogation and while signing their statement.
Blindfolding not only encourages torture by making positive identification
of offending officers
impossible, but also induces disorientation which could itself be counted
as a form of ill-treatment. In November 1993 the United Nations Committee
against Torture
commented that blindfolding should be "expressly prohibited."12 In
his 1998 report on Turkey the U.N. Special Rapporteur on Torture said that
"the practice of
blindfolding detainees in police custody should be absolutely forbidden."13
To the best of our knowledge, no Turkish government has publicly condemned
blindfolding, nor have Turkish courts punished any police officer for
using a blindfold. Blindfolding may, of course, die out once the right
of access to legal counsel is
generally recognized and respected, but Human Rights Watch believes
that this pernicious abuse should be specifically addressed.
Accession Partnership Recommendation:
* The Interior and Justice Ministers should publicly condemn the practice
of blindfolding and instruct all police and gendarmerie units accordingly.
A
provision prohibiting blindfolding should be added to the 1997 Regulation
on Apprehension, Police Custody and Interrogation. Police authorities and
prosecutors should be instructed to pursue any reports of blindfolding
and seek appropriate administrative or judicial penalties.14 No reference
is
made to blindfolding in the Report or the Calendar.
Sexual abuse and rape in police custody
Almost all detainees, male as well as female, report some level of sexual
abuse or sexually insulting behavior in detention. In several cases male
detainees' allegations
of anal rape with objects have been corroborated by medical evidence.
The European Court of Human Rights, in Aydin v Turkey15 found that in 1993
gendarmes
had tortured a female detainee plaintiff by raping her in custody at
Derik Gendarmerie in Mardin province. The presence of a lawyer during interrogations
would be
an important safeguard against such abuses, but for women, the presence
of a female police officer would afford some additional protection. An
amendment to the
Regulation on Apprehension, Custody and Interrogation adopted in August
1999 provided for women detainees to be searched only by female police
officers.
However, this measure offers female detainees little reassurance if,
after a polite search, they can then be taken to the privacy of a police
station and sexually
humiliated.
Accession Partnership Recommendation:
* Ensure that police station staff at all times include at least one
female police officer who will be present during the interrogation or movement
of
women detainees. This measure is not specified in the Report or the
Calendar, although they both refer to "researching ways in which the human
rights of women
can be better protected."
Failure to register detainees and notify their kin
Relatively minor infringements of detention procedures facilitate horrific
patterns of violation in Turkey. The proliferation of "disappearances"
in the mid-1990s can be
directly related to the appalling standard of record keeping in police
stations and gendarmeries, and the security forces' systematic failure
to notify families of
detentions. Investigations carried out by the European Court of Human
Rights, the European Committee for the Prevention of Torture and the recent
Turkish
Parliamentary Human Rights Commission have uncovered disorganized and
apparently forged records, and in at least one security force unit, no
records at all. The
Parliamentary Human Rights Commission's inquiries suggest that there
has been some improvement in this respect, but additional progress is needed.
The anxiety inflicted on families by security forces' refusal to notify
them of detentions should not be underestimated. News that a relative has
been detained throws
any household in Turkey into a state of panic in which they desperately
try to establish the whereabouts of the detainee while police stations
misleadingly deny for
hours or days that they are holding the detainee. It is common knowledge
that any person in police custody is likely to be subjected, at the very
least, to insulting
behavior, physical hardship and ill-treatment, but added to this is
the fear that the relative may die in custody or "disappear." These fears
are amply justified. In the
past decade the most conservative count of reports of "disappearance"
totals more than 140. More than 450 people have died in police custody,
apparently as a
result of torture in the two decades since the 1980 military coup.
The Accession Partnership should include steps to curb the administrative
practices that facilitate
such violations.
Accession Partnership Recommendations:
* The Turkish government should establish and enforce a requirement
that all police units must register every detainee in a bound ledger with
numbered pages at the first moment that they are brought into a recognized
place of detention. Such records must be open to inspection by lawyers,
family members and other interested persons. Prosecutors and police
authorities must be instructed to investigate and apply appropriate
administrative or judicial sanctions wherever security force officers
have failed to keep proper records. Such measures are not specified in
the Report or
the Calendar.
* Detainees' relatives or other interested persons must be notified
immediately following detention. In exceptional cases where this might
conflict
with the interest of justice, the decision to withhold such information
should only be taken by a prosecutor or judge who has seen the prisoner
and
case file, and a detailed record should be made of the reasons for
this decision. Prosecutors and police authorities must be instructed to
investigate
and apply appropriate administrative or judicial sanctions wherever
security force officers have failed to give proper notification of a detention.
Such
measures are not specified in the Report or the Calendar.
* The Regulation on Apprehension, Police Custody and Interrogation should
be amended to indicate possible administrative and judicial sanctions
applicable to any officer who fails to comply with its provisions,
and the Turkish authorities should undertake steps to ensure that such
sanctions are
imposed in appropriate cases.16 Internal disciplinary procedures should
not be used as a substitute for judicial sanctions, and should be transparent
and subject to public monitoring. This measure is not specified in
the Report or the Calendar.
Suppression of medical evidence of ill-treatment and torture
Although all detainees are required to undergo a medical examination
at the end of police custody, this safeguard against torture has been persistently
evaded. A
large body of evidence shows that police officers pressure detainees
to conceal their injuries from medical personnel, intrude on examinations,
destroy medical
certificates, and "shop around" hospitals and health centers until
they receive a medical certificate with which they are satisfied. The Regulation
on Apprehension,
Custody and Interrogation contains detailed instructions on how such
medical checks should be carried out. Article 10 provides that "the doctor's
report is written in
four copies. One is kept at the detention center, the second is given
to the person when he leaves the detention center, the third one is included
in the investigation
file, the fourth one is kept at the health unit." Notwithstanding this
provision, there remains some confusion about the number of reports to
be issued. A 1997 Health
Ministry circular directs that doctors should issue only three reports.
In cases recently followed by Human Rights Watch, detainees were not given
a copy of their
medical report, and doctors who testified to the Parliamentary Human
Rights Commission stated that they were issuing reports in only three copies.
The Regulation also states: "Where there is no restriction with regard
to the investigation and security considerations, the doctor and the person
will be left alone
during the examination." Experience indicates that police officers
frequently abuse such discretion to intrude on medical examinations.
Accession Partnership Recommendations:
* The 1997 Health Ministry circular should be amended to require that
doctors issue four reports, and give one of these to the detainee. Public
prosecutors should be instructed to investigate detention conduct and
procedures, whenever a detainee is brought before them without a medical
report in their possession. These measures are not specified in the
Report or the Calendar, but both recommend overhauling the operation of
the Forensic
Medicine Institute and improving medical reporting. The Calendar states
that standardized reporting forms are soon to be issued.
* Where it is unsafe for a doctor to be left alone with a detainee in
order to carry out a health check, the public prosecutor should be summoned
in
order to supervise the procedure. This measure is not specified in
the Report or the Calendar.
Torture and ill-treatment of children and juveniles
During the 1990s Human Rights Watch reported many cases of ill-treatment
and torture of children. The Turkish Parliamentary Human Rights Commission
investigations have shown that the practice persists apparently undiminished.
In March 2000 the Parliamentary Human Rights Commission interviewed a number
of
juveniles at the Bakirkoy Prison for Women and Children. Two of their
reports17 give the text of interviews with juveniles who had been held
at various police
stations in Istanbul and who described being stripped naked and subjected
to electric shocks, hosing with cold water under pressure, beating with
a truncheon,
falaka and being forced to stand for hours in a chest-high barrel of
water. One 14-year-old described being interrogated under torture for eight
days at Kadikoy
Yeldegirmeni Police Station, and he told the Commission where they
could find pickaxe handles used for beating the soles of detainees' feet.
When the Commission
later went to the police station, the instruments were found just as
the youngster had indicated. The long period of unsupervised police detention
alone was in breach
of the Turkish Criminal Procedure Code, quite apart from the abusive
treatment and failure to summon a lawyer from the Bar's duty lawyer service.18
The Interior Ministry's failure to eradicate the torture of children
is unforgivable and means that under present circumstances police officers
cannot be trusted to hold
juveniles in custody without constant supervision.
Accession Partnership Recommendation:
* Until safeguards against ill-treatment in police stations can be shown
to be effective, the Criminal Procedure Code should be amended so that
any
juvenile detained can be questioned only in the presence of his lawyer
and an independent prosecutor. A prosecutor should be charged with the
close
supervision of the detention of any child or juvenile to ensure their
well being. Any police officer found to have held a child or juvenile in
custody
without immediately notifying the prosecutor, or to have interrogated
a child or juvenile other than in the presence of a prosecutor, or who
fails to
summon a lawyer should be subject to heavy administrative and judicial
penalties. These measures are not specified in the Report or the Calendar.
Suppression of complaints of ill-treatment and torture
In recent years, prosecutors have been more ready to open legal proceedings
against police officers and gendarmes for ill-treatment or torture, though
regrettably,
conviction and appropriate sentencing remains rare. One important obstacle
was a law dating from 1913 that gave local governors-who oversee police
affairs-the
right to block prosecutions. In December 1999 this law was abolished
and replaced by another-the Law on the Prosecution of Civil Servants and
other
Administrative Officials-which speeds up the decision process, but
still gives the governor's office the ultimate say. Moreover, this law
contains alarming new
provisions that instruct prosecutors receiving complaints to desist
from any action and convey the case file to the governor's office. This
law is not a reform, as has
been claimed by the Turkish government, but a scandalous breach of
the principle of judicial independence, which is already being used to
obstruct the course of
justice. On January 3, 2000, the Ankara governor ruled that no legal
proceedings should be taken in respect of a complaint against 155 gendarmes
for offences of
torture, sexual assault and the murder of ten prisoners at Ulucanlar
Prison in Ankara in September 1999. Lawyers on behalf of victims and relatives
appealed against
this decision to the Ankara District Administrative Court,which overturned
the governor's decision on May 17, 2000. The file was returned to the local
prosecutor
who, at the time of writing, had made no decision whether or not to
proceed with a prosecution. The new law, which in this case delayed the
judicial process for four
months, appears to serve no purpose other than to protect torturers.
Accession Partnership Recommendation:
* Abolish the Law on the Prosecution of Civil Servants and other Administrative
Officials or amend it to ensure that it cannot be used to delay or
suppress complaints against police officers, gendarmes or soldiers
for offences of ill-treatment, torture, abuse of detention procedures,
death in
custody, extrajudicial execution or "disappearance." This measure is
not specified in the Report or the Calendar.
Police officers and gendarmes subject to investigation and prosecution
for ill-treatment, torture and unlawful killing are not customarily suspended
from duties, and
there are even examples of officers still serving after their conviction
for ill-treatment. In January 1996 a group of young people-the youngest
fourteen years of age
-were tortured at Manisa Police Headquarters, near Izmir. Detainees
reported being stripped naked, hosed with cold water, and subjected to
electric shocks to their
bodies including their sexual organs. Male detainees were subjected
to squeezing of the testicles and sexual assault with a truncheon; female
detainees were
threatened with rape. Their allegations were supported by medical evidence
and the testimony of a member of parliament who intruded into the interrogation
room.
In response to a parliamentary question the Interior Minister confirmed
that a police superintendent accused of torturing the juveniles was not
only on active duty with
the Anti-Terror Branch in 1999 and 2000, but had even used these duties
as a pretext for non-appearance at hearings in his trial on charges of
torture.19
Accession Partnership Recommendation:
* Any prison officer, police officer, gendarme or member of the security
forces subject to investigation or prosecution for ill-treatment or torture
should be immediately suspended from duties which might bring them
into contact with prisoners. Officers subject to investigation or prosecution
for
unlawful killing should be suspended from active duty. Any officer
convicted of ill-treatment, torture or unlawful killing should be immediately
dismissed. This measure is not specified in the Report or the Calendar.
Suppression of CPT reports
Judging from the experience of recent years, the above safeguards will
quite simply be ineffective unless they are backed up by proper supervision
of detention sites.
Proper supervision should include international, judicial and administrative
supervision, and the scrutiny of independent civil society bodies.
The CPT and the U.N. Special Rapporteur on torture put the existence
of torture beyond debate, and penetrated for the first time into territory
in which police
officers had frequently boasted that they had wholly unchecked power.
The CPT has made eight visits to Turkey. In 1999 the Turkish government
authorized the
publication of the report of the 1997 visit20 together with the government's
own interim reports.21 The publication of the other reports is now long
overdue. A
period of delay in publication to avoid embarrassment while remedial
measures are taken might be excusable, but suppression for a full decade
by a longstanding
member of the Council of Europe sets a poor example for other countries
who have recently signed the European Convention for the Prevention of
Torture and
Inhuman or Degrading Treatment or Punishment.22
Accession Partnership Recommendation:
* The Turkish government should give permission for the publication
of all outstanding CPT visit reports. This measure is not specified in
the Report or
the Calendar.
Ineffective state supervision of places of detention
Prosecutors and provincial governors have always had a formal responsibility
to supervise police stations and gendarmeries, but seem largely to have
neglected this
duty. In June 1999 Prime Minister Ecevit's circular instructed these
officials to carry out impromptu visits and to take urgent measures to
remedy any shortcomings
discovered, including dealing with offending officials. Reports of
such inspections were to be submitted by the Justice and Interior Ministries
every three months to
the Human Rights High Coordinating Council of the office of the Prime
Minister. No public information has emerged from this process. The only
public confirmation
that it is even taking place appeared in comments made by prosecutors
and police interviewed in the course of the Parliamentary Human Rights
Commission's
investigations.
Accession Partnership Recommendation:
* The Human Rights High Coordinating Council of the office of the Prime
Minister should ensure periodic public disclosure of the findings of internal
supervision of police stations carried out by the Justice and Interior
Ministries. This measure is not specified in the Report or the Calendar.
Lack of monitoring of police detention by civil society
Supervision by professional colleagues is valuable but unlikely to be
really effective unless it is backed up with supervision by independent
bodies. The first example
of independent domestic monitoring has already been frequently referred
to in this briefing: the publication this year of the findings of the Parliamentary
Human Rights
Commission, which has been visiting prisons and police stations since
1998. These six reports unfold an appalling catalogue of torture, deceit,
and official negligence
that is a cause for shame on the part of the offending officials. On
the other hand, the reports themselves should be a source of hope and pride
for Turkish society.
They are a testament to the determination, organization, expertise
and humane concern of the parliamentary delegates who participated, and
the chairperson Dr.
Sema Piskinsut. The reports are even handed and avoid demonizing the
police. Where standards are met, this is explicitly acknowledged. Considerable
space is also
given to a visit to a project in Istanbul for the care of street children,
funded entirely by a voluntary police foundation and staffed by police
officers.
The Parliamentary Commission's reports are also a demonstration of what
independent supervision can achieve. The Commission not only asked probing
questions
and produced a wealth of information, but when it found clear medical
evidence of recent torture it initiated a prosecution (and documented its
own frustration at the
way the judicial system buried the case).
The reports give a fascinating insight into the workings of a closed
world. On the basis of leads given by young people interviewed at Bakirkoy
Women and
Children's prison, the Commission went to Kucukkoy Police Station,
located an apparatus used to suspend detainees by the arms, photographed
it, and handed the
photographs over as evidence for judicial proceedings. At the same
police station the Commission was told that a room with a locked door was
"an unused storage
room" to which the key had been lost. The Commission members broke
a panel of the door and peered through to find "all of the walls, including
the door, were
covered with yellow sponge, in order to give sound insulation . . .
. Almost all of the children who had told the Commission that they had
been tortured at this police
station, had described this room covered in yellow foam."23 There were
other "lost keys" and soundproofed interrogation rooms in other police
stations and
provinces.
The Commission's reports strongly highlight the value of monitoring
by bodies independent of the state institutions responsible for detention
and law enforcement.
Civil society supervision of state institutions is a new development
for Turkey, but police station visiting schemes are already operating in
many other parts of the
world, including Australia, Hungary, Malawi, the Netherlands, Nepal,
South Africa and the United Kingdom. The Special Rapporteur on Torture,
in his report on a
1998 visit to Turkey, recommended that "a system permitting an independent
body, consisting ofrespected members of the community, representatives
of legal and
medical professional organizations and persons nominated by human rights
organizations, to visit and report publicly on any place of deprivation
of liberty, should be
set up as soon as possible."24
Accession Partnership Recommendation:
* The Turkish government should announce a schedule for the prompt establishment
of a nation-wide system of visiting boards, comprised of local
persons trusted for their independence and commitment to human rights,
who could visit police stations and gendarmeries in order to talk to
prisoners and inspect facilities. Such boards should report publicly
on their work and findings. This measure is not specified in the Report
or the Calendar,
though both propose increasing the "technological" (i.e. electronic)
monitoring of places of detention.
2 CPT/Inf (93) 1 [EN], December 15, 1992.3 CPT/Inf (96) 34 [EN], December
6, 1996.
4 Incommunicado detention refers to detention without the right to communicate
with anyone other than those holding a detainee in custody or investigating
their
case.
5 European Court of Human Rights, Averill v. UK, (No. 36408/97), Judgment, Strasbourg, June 6, 2000.
6 Article 6.3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms states: "Everyone charged with a criminal
offence has the
following minimum rights: a. to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the accusation
against him; b. to
have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing
or, if he has not
sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require."
7 E/CN.4/1999/61, 113 (a).
8 CPT/Inf (99) 2 [EN], 23 February 1999, paragraph 19.
9 United Nations Committee against Torture, "Report on Turkey under Article 20," November 9, 1993 (A/48/44/Add.1).
10 The judge who orders the extension of detention periods in Turkey
customarily does so on the basis of a paper file and does not personally
question the detainee,
but the Calendar promises that the new Criminal Procedure Code will
require that the judge and prosecutor see the detainee in person before
deciding on extension
of police detention.
11 CPT/Inf (99) 2 [EN], 23 February 1999, paragraph 17.
12 United Nations Committee Against Torture, "Report on Turkey under Article 20," 9 November 1993 (A/48/44/Add.1).
13 E/CN.4/1999/61, 113 (j).
14 The Turkish Penal Code (TPC) provides heavy penalties for ill-treatment
and torture: Article 243 provides for one to eight years' imprisonment
and permanent or
dismissal from service for security officers who "subject others to
torture or cruel, inhuman or degrading treatment." Article 245 imposes
up to five years'
imprisonment for security officers who "ill treat or physically give
harm to the others." Article 450/3 provides for the death penalty for any
person who intentionally
tortures their victim to death and Article 452 provides for 15 years'
imprisonment for unintentional killing by wounding or beating.
Prosecutors have recently been more willing to initiate proceedings
when allegations of torture are backed up with medical reports, but generally
overlook detainees'
complaints that they were blindfolded, punched, slapped or kicked.
Even when facedwith very strong evidence that torture has taken place,
courts are still reluctant
to convict and impose appropriate sentences on security officers (see
Amnesty International, The duty to supervise, investigate and prosecute,
EUR 44/24/99,
April 1999).
15 European Court of Human Rights, No. 23178/94, September 25, 1997.
16 Article 240 of the Turkish Penal Code provides that "A civil servant
who abuses his position shall be imprisoned for up to three years." Article
181 provides that "A civil servant who
deprives a person of their liberty by abusing his duty as a public
officer or contravening the relevant procedures and conditions shall be
punished by a sentence of imprisonment of from
one year to three years." These measures could usefully have been applied
to many of the abuses of detention procedure described in this document.
To Human Rights Watch's
knowledge, these articles of the penal code remain virtually unused.
17 Bakirkoy Kadin ve Cocuk Tutukevi Raporu 1998 ve 2000 (Bakirkoy Women's
and Children' Prison Report 1998 and 2000), TBMM Insan Haklarini
Inceleme Komisyonu Yayinlari (Human Rights Monitoring Commission Publications),
May 2000 and Sorusturma ve Kovusturma Istanbul Raporu 2000,
(Investigation and Prosecution Report for Istanbul 2000), TBMM Insan
Haklarini Inceleme Komisyonu Yayinlari, May 2000.
18 The August 1999 amendments to the Regulation on Apprehension, Custody
and Interrogation required that legal counsel should always be summoned
for
children.
19 "Torture suspect participates in police operations,"Cumhuriyet (Republic), August 19, 2000.
20 CPT/Inf (99) 2.
21 CPT/Inf (99) 3 and CPT/Inf (99) 18.
22 Turkey was admitted to the Council of Europe on April 13, 1950, and
signed and ratified the Convention for the Prevention of Torture and Inhuman
or
Degrading Treatment or Punishment in 1988.
23 Sorusturma ve Kovusturma Istanbul Raporu 2000, (Investigation and
Prosecution Report for Istanbul 2000), TBMM Insan Haklarini Inceleme Komisyonu
Yayinlari, May 2000, p35.
24 E/CN.4/1999/61, 113 (l).
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SAFEGUARDING FREEDOM OF EXPRESSION AND THE RIGHT OF CONSCIENTIOUS OBJECTION
One Turkish government after another, trapped and embarrassed by its
commitment to freedom of expression under the European Convention on the
one hand, and
the influence of repressive elements within the state and armed forces
on the other, has made superficial amendments to legislation and issued
partial amnesties.
Throughout the 1990s, ministers always had in reserve a draft reform,
which would never become law but could be pulled from the drawer at any
time to rebut
criticism. Meanwhile Turkish citizens have continued to serve prison
sentences-long sentences in some cases-for expressing their non-violent
opinions.
The current government, apparently caught in the same cleft stick, has
made no legislative change to expand freedom of expression since the E.U.'s
December 1999
Helsinki Summit and courts have continued to hand down convictions
to politicians and writers for "incitement" under Article 312 of the Turkish
Penal Code. The
most recent and notorious case was the widely publicized July 5 confirmation
of a one-year sentence imposed on former Prime Minister Necmettin Erbakan
for a
speech he made in March 1994. The same week the Supreme Court confirmed
a twelve month sentence imposed on Hasan Celal Guzel, former Education
Minister
and leader of the Rebirth Party, for a speech he made in Kayseri in
1998 in which he strongly criticized the head scarf ban (see below). He
was only released in May
after serving a sentence for which he was arrested just five days after
the E.U. summit in December 1999. Necmettin Erbakan and Hasan Celal Guzel
will both begin
serving their sentences later this year.
Turkish courts show an eccentric understanding of what constitutes "incitement".
The former mayor of Istanbul Recep Tayyip Erdogan was stripped of political
rights
and sentenced to a year's imprisonment for reading lines from a poem
that not only contained no advocacy of violence or hatred, but was written
by a celebrated
republican poet and had actually been approved by the Ministry of Education
for use in schools. In fact, in common with some other prosecutions under
Article 312,
the conviction of Recep Tayyip Erdogan appeared to be no more than
straightforward political manipulation.
Currently serving a sentence under Article 312 in Ankara's Ulucanlar
Prison is the former president of the Turkish Human Rights Association,
Akin Birdal. He was
imprisoned in June 1999, for a speech he made three years earlier calling
for "peace and understanding." His release on health grounds in September
1999 was
widely viewed as a maneuver to avoid official embarrassment during
the Istanbul OSCE Summit in November and the E.U. Helsinki Summit in December.
He
returned to prison in March 2000.
More insidious than the substantial prison sentences are the bans on
participation in politics or civil society that are triggered by convictions
under Article 312. Under
Article 4 of the Law on Associations, Akin Birdal was forced to resign
not only his leadership of the Turkish Human Rights Association but also
his membership.
Under Article 81 of the Law on Political Parties, because of his conviction
he may not stand for any political office nor join any political party
during his lifetime, and
the same bans apply to Necmettin Erbakan and Hasan Celal Guzel.
For politicians, a conviction under Article 312 effectively means the
end of public life and is therefore a powerful curb on the discussion of
ideas that are unwelcome
to the state. As a consequence, politicians at odds with the official
line on the role of ethnicity, religion or the military in politics must
remain silent or be prepared to
be removed from their political life.
Turkish politicians and officials have conducted a public but inconclusive
debate on freedom of expression. Minister of Justice Hikmet Sami Turk has
urged
amendment of Article 312 so that only statements presenting a clear
and present danger to the state or public order would be outlawed. Deputy
Prime Minister
Devlet Bahceli, on the other hand, has expressed the view that Article
312 is a useful and legitimate tool as it stands. The Chief State Prosecutor
has made the
extraordinary claim that Article 312 is fully consonant with the European
Convention on Human Rights,25 despite a string of judgments to the contrary
at the
European Court of Human Rights (including Ozturk v Turkey, September
28, 1999 and Incal v Turkey, June 9, 1998). The views of the military appear
to be
intimidating the government and blocking progress. The Minister of
Justice has explicitly acknowledged that the Chief of General Staff's opposition
to amendment of
Article 312 was a factor in his deliberations about the future of the
article.26
The public argument about Article 312 ignores the raft of additional
laws that would still inhibit freedom of expression even if 312 were eliminated.
In the mid-1990s,
most prisoners of opinion were held under Article 8 of the Anti-Terror
Law. As this provision became discredited, prosecutors began to show a
preference for
Article 312. Now that the government has been criticized for recent
imprisonments under Article 312, indictments under Article 8 are once again
beginning to
appear. A prosecution seeking imprisonment for up to three years opened
at Ankara State Security Court in March 2000 against Ahmet Turan Demir,
chair of the
People's Democracy Party (HADEP), in connection with a speech he made
at a Peace Festival in 1999. Prosecutions of non-violent expressions of
opinion, and
indeed cases of imprisonment, have also continued under Article 155
of the Turkish Penal Code, which outlaws criticism of military service,
and Articles 158 and
159, which deal with insulting the president and the organs of state.
There are a host of other laws that restrict rights to demonstrate,
to publish, and to broadcast. Confiscations of newspapers, books, and pamphlets
are the daily
business of press prosecutors, local governors and the Supreme Board
of Radio and Television. This last body has been so punitive in closing
radio and television
stations on grounds of "inciting racial hatred" or "threatening the
unity of the state" that even the Prime Minister was prompted to comment,
"`I, too, have a lot of
difficulty understanding the Board's criteria and standards.'"27 In
fact, a comprehensive weeding out of offending articles of the Turkish
Penal Code would be a
laborious, politically difficult, and lengthy process. Perhaps there
is an alternative solution that, given the necessary political will, could
be pursued more swiftly.
Turkey is a party to the European Convention on Human Rights, which
binds the government to uphold the convention. Moreover, Article 90 of
the Turkish
constitution states that the terms of such conventions supervene domestic
law. Pending amendment of the letter of the law, courts and the executive
could be
reminded that their judgments and administrative acts are constrained
by the Convention and the jurisprudence of the European Court of Human
Rights.
Accession Partnership Recommendations:
* The Justice Minister, in his capacity as president of the High Council
of Judges and Prosecutors, should immediately issue a circular explaining
to
prosecutors and judges that sentences imposed for the expressionof
non-violent opinion-no matter how unpalatable that opinion may be-are in
contravention of Article 10 of the European Convention on Human Rights,
which supersedes domestic law under the Turkish Constitution. Both the
Report and the Calendar contain the vague statement that "The provisions
of related legislation, including particularly the Turkish Penal Code,
the Anti-Terrorism
Law and the Political Parties Law that restrict freedom of thought
and expression and allow flexible interpretation by the administration
should be redrafted in line
with the principles of the Republic that protect the integrity of the
country." On prosecutions of journalists, both documents state that in
reviewing the Press Law and
the penal code, "The basic objective . . . should be to achieve changes
which will prevent the conviction of journalists and writers for their
writings and publications
that do not encourage violence, crime or terrorism, do not involve
open insults and do not intend to disturb or weaken the unitary character
of the State, and in this
context a general amnesty should be declared for journalists and writers
who are currently in prison and have not committed offences of the above-named
types."
The introduction to the Calendar states: "In the steps which are to
be taken, it has been considered necessary to give the state authority,
as is the case in several
E.U. nations, to limit by law the freedom of expression where a present
and/or open danger/threat is posed." Both formulations are open to an interpretation
that
would violate the European Convention and would fail to achieve the
immediate progress that a circular from the Minister of Justice, referring
to the Convention and
jurisprudence at the European Court of Human Rights, might give.
* The Law on the Organization and Broadcasts of Radio and Television
Stations should be revised to reflect that it is constrained by Article
10 of the
European Convention on Human Rights in its decision making. The Report
states that amendments abolishing restrictive provisions should be made
to Law
3984 on the Organization and Broadcasts of Radio and Television stations,
and, "in this context, the independence of radio and television organizations
should be
strengthened and the composition and powers of the Radio and Television
Supreme Board should be reviewed." The Calendar includes similar language,
scheduling
a draft for the end of 2002.
* The Justice Ministry and other ministries should further establish
a training program to ensure that all relevant parties within the judicial
system
and the executive understand their obligations under Article 10 to
uphold freedom of expression, and the government should also establish
a
follow-up program to ensure that those trained are implementing the
principles in the training program. The European Union, in possible collaboration
with the Council of Europe, could be instrumental in providing the
funding and expertise for such training. The Report and the Calendar both
propose
seeking E.U. funding for the training of judges.
* The Turkish government should take any necessary measures to secure
the release of all prisoners held for the expression of non-violent opinion,
including the four Kurdish former deputies Hatip Dicle, Orhan Dogan,
Selim Sadak and Leyla Zana, restore political rights to all former prisoners
of
opinion, and put a halt to all legal proceedings currently in process
against Turkish citizens for the expression of their non-violent opinions.
These
measures are not specified in the Report or the Calendar, though both
propose an amnesty for imprisoned journalists and writers who "have not
advocated
violence, offered open insult, or attempted to divide the unitary state."
The Calendar suggests that a draft law will be ready by 2002.
A new draft penal code became public in 1997. It is currently being
revised by the government, but the pending revised draft is not yet available.
The 1997 draft
contained elements both positive and negative from the point of view
of freedom of expression. Article 289, which deals with incitement to racial
or religious hatred,
virtually restates the terms of the existing troublesome Article 312
while substantially increasing the penalty. The commentary to the article,
which provides that
statements of this kind can only be considered an offence if they threaten
public order, is an important safeguard, but this must be strengthened
by comprehensive
training of judges and prosecutors on the application of Article 10
of the European Convention and other instruments dealing with freedom of
expression.
Article 425 of the draft penal code would also provide for up to three
years' imprisonment for insulting the president. Article 426 would provide
for imprisonment for
insulting ministers or members of the armed forces, as wellas government
institutions, such as the Turkish parliament, the Turkish state, the Council
of Ministers, or
the armed forces. Articles 425 and 471 similarly would criminalize
insults to the Turkish and foreign flags. The European Court of Human Rights
expressed the
following view about prosecutions on such grounds:
The limits of permissible criticism are wider with regard to the government
than in relation to a private citizen, or even a politician. In a democratic
system the actions
or omissions of the government must be subject to the close scrutiny
not only of the legislative and judicial authorities but also of the press
and public opinion.
Furthermore, the dominant position which the government occupies makes
it necessary for it to display restraint in resorting to criminal proceedings,
particularly
where other means are available for replying to the unjustified attacks
and criticisms of its adversaries or the media.28
Accession Partnership Recommendation:
* The Turkish government should work closely with the Council of Europe
to ensure that the new Criminal Code and Criminal Procedure Code are
fully compatible with the European Convention on Human Rights and jurisprudence
of the European Court of Human Rights. The Report states that
"National legislation should be brought into line with international
conventions ratified under Article 90 of the Constitution and legislative
measures should be adopted
concerning the binding nature of judgments passed as a result of exercising
the individual right of application which was granted under the European
Convention on
Human Rights." The Calendar contains similar language.
Imprisonment of conscientious objectors
Article 377 of the draft penal code, which would impose imprisonment
for up to two years for "alienating the people from the institution of
military service" is a
restatement of Article 155 of the existing penal code, which has been
the basis for several prosecutions and the repeated imprisonment of one
conscientious
objector, Osman Murat Ulke.29 These articles are closely linked with
the right of conscientious objection. Turkey has compulsory military service
for all adult males
and makes no provision for conscientious objection.
Accession Partnership Recommendation:
* Article 155 of the Turkish Penal Code should be abolished and Article
377 of the draft penal code should be revised in line with international
standards. An option for civilian service, which is not of punitive
length, should be established for conscientious objectors. This measure
is not specified
in the Report or the Calendar.
25 Milliyet, (Nationhood) March 22, 2000.26 "Justice Minister Turk:
`Abolishment of Article 312 is out of the question.'" Anatolian News Agency,
March 16,
2000.27 Turkish Daily News, February 20, 2000.
28 European Court of Human Rights, Castells v. Spain, No. 11798/85, April 23, 1992.
29 See Amnesty International Report - Turkey : Osman Murat Ülke
- Conscientious Objector Imprisoned for Life, May 1998, AI Index: EUR 44/22/98.
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ENSURING LANGUAGE RIGHTS
The commonly held view is that a minority is a self-identifying group
with a national or ethnic, cultural, religious and linguistic identity.30
The Turkish government uses
an idiosyncratic definition of the term "minority," which causesmutual
frustration whenever the question of rights concerning language and culture
arises in international
fora. The Turkish Foreign Ministry website31 summarizes its distinctive
official interpretation as follows:
The status of minorities in Turkey has been internationally certified
by the 1923 Treaty of Lausanne, according to which there are only non-Muslim
minorities in
Turkey. It is wrong, according to this definition, to refer to our
citizens of Kurdish descent as a "Kurdish minority."
Besides, Turkey is a unitary state and "Turkish citizenship" is an
all embracing juridical concept encompassing all our citizens, granting
them equal rights and
obligations. According to this definition, "Turkishness" is a legal
status binding all its citizens to the Turkish state. Thus, "constitutional
citizenship" is one of the most
basic principles upon which the Turkish Republic is founded. All constitutions
of the Turkish Republic to date have envisaged equal rights and opportunities
for and
have ruled out discrimination among Turkish citizens.
It is clear, however, that the E.U.'s Copenhagen criterion of "respect
for and protection of minorities" should be applied not only to the Jewish,
Greek and Armenian
minorities defined by the Treaty of Lausanne, but also to the Assyrians,
Kurds, Laz, Roma and many other minorities that make up Turkey's cultural
fabric.
Interestingly, the Treaty of Lausanne, which the Turkish Foreign Ministry
uses to rather artificially limit the interpretation of the term "minority,"
actually makes
generous provision foruse of non-Turkish languages. Article 39.4 states:
"No restrictions shall be imposed on the free use by any Turkish national
of any language in
private intercourse, in commerce, religion, in the press, or in publications
of any kind or at public meetings."
There has been considerable liberalization in the area of language during
the past decade. In 1991 a law that prohibited speech and printing in languages
not officially
recognized was abolished, and there are now several newspapers and
magazines published in minority languages (though those produced in Kurdish
are frequently
the object of confiscation or police raids for suspected separatism).
In March this year the Supreme Court ruled, in a test case concerning a
child that had been given
a Kurdish name, that children could legally be given names of non-Turkish
origin.
Broadcasting and education, however, remain contentious. The 1994 Law
on the Television and Radio Organizations and their Broadcasts mandates
the exclusive
use of Turkish except in certain circumstances.32 On the basis of this
law, licences are not being issued for television or radio channels to
broadcast in Kurdish.
Surprisingly, the armed forces run Dicle Sesi (Voice of the Tigris),
the one radio channel that does broadcast in two Kurdish dialects-a pragmatic
acknowledgment
that many who live in the southeast are unable to understand Turkish.33
A language is not only a medium of expression, but a form of expression
in itself, and as such is protected by Article 10 of the European Human
Rights Convention
and Article 19 of the ICCPR. Both instruments require that protected
rights must be applied without discrimination. Article 27 of the ICCPR
requires that "In those
States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community
with the other members
of their group, to enjoy their own culture, to profess and practice
their own religion, or to use their own language."34
Accession Partnership Recommendation:
* The Turkish government should abolish the language restrictions on
television and radio broadcasting contained in the Law on the Organization
and
Broadcasts of Television and Radio. This measure is not specified in
the Report or the Calendar.
Turkish is the official-though not exclusive-language of instruction,
according to Article 42.9 of the Constitution. The 1983 Foreign Language
Education and
Teaching Law regulates the teaching of foreign languages "taking into
consideration the view of the National Security Council." In short, the
National Security Council
decides which foreign languages may be taught in Turkey. English, French,
German, Russian, Italian, Spanish, Arabic, Japanese and Chinese may be
taught, but Laz,
Kurdish and Roma may not.35 One test case was brought when the Istanbul-based
Kurdish Culture and Research Foundation (Kurt-Kav) attempted to open a
private course to teach Kurdish. The course was closed down in 1998.
The foundation's board members were prosecuted in Istanbul State Security
Court for
"incitement to hatred" under Article 312, but they were acquitted earlier
this year.
Article 3 of the U.N. Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious or Linguistic Minorities adopted by General
Assembly
resolution 47/135 of 18 December 1992 urges that "states should take
appropriate measures so that, wherever possible, persons belonging to minorities
may have
adequate opportunities to learn their mother tongue or to have instruction
in their mother tongue."
Article 29 of the U.N. Convention on the Rights of the Child states:
"the education of the child shall be directed to . . . the development
of respect for the child's . . .
own cultural identity, language and values."
Article 8 of The Hague Recommendations Regarding the Education Rights
of National Minorities, issued by the OSCE's High Commissioner on National
Minorities
states: "In accordance with international law, persons belonging to
national minorities, like others, have the right to establish and manage
their own private educational
institutions in conformity with domestic law. These institutions may
include schools teaching in the minority language."
Accession Partnership Recommendation:
* As a minimum gesture toward the respect and protection of its language
minorities, the Turkish government should lift all obstacles to the
foundation of private language courses in minority languages. Such
measures should include repeal of Article 42.9 of the Constitution, which
states
that "no other language than Turkish may be taught to Turkish citizens
as their mother tongue." This measure is not specified in the Report or
the
Calendar.
In the current atmosphere in Turkey, a full and free public debate on
the language issue is impossible. The Istanbul governor banned a May conference
on
multiculturalism and democracy organized by the Mesopotamian Culture
Center. The Secretary of the Diyarbakir branch of the teachers' union Egitim-Sen
Hasan
Kaçan is currently being prosecuted under Article 312 of the
Turkish Penal Code for urging the right to mother-tongue education on Medya
TV in December. On
March 28, the newspaper Radikal quoted the Prime Minister's view that
Kurdish is a dialect of Turkish and not a language.
Such actions and statements, which hardly accord with the Copenhagen
criterion of "respect for and protection of minorities," are motivated
in part by a genuine fear
that any acknowledgement that Turkish society is other than monolithic
will bring down the whole edifice of the republic and destroy the work
of eighty years.
However, international human rights standards relating to minorities
implicitly and explicitly reject the view that stability can be achieved
through the suppression of
linguistic and cultural differences. The Council of Europe Framework
Convention on the Protection of national Minorities states: "The protection
of national minorities
is essential to stability, democratic security and peace in this continent....
A pluralist and genuinely democratic society should not only respect the
ethnic, cultural,
linguistic and religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them to express,
preserve and develop
this identity." In its November 1999 report on Turkey, the Council
of Europe's European Commission against Racism and Intolerance said that
"a more open attitude
towards cultural and linguistic plurality within Turkey might contribute
to resolving some of the problems faced by the country today by allowing
more space for a
non-violent public as well as private expression of cultural and ethnic
identity."36
30 The Report On the Linguistic Rights of Persons Belonging to National Minorities
In the OSCE Area, issued by the OSCE's High Commissioner on National
Minorities, emphasizes language as a distinctive feature of minority identity:
"For most
minorities, language, as much as if not more than any other attribute
of identity (such as common religion or history), serves as a means of
unity of the group and
source of self-identification of the individual. The enjoyment and
preservation of the minority culture turns upon the freedom to transmit
ideas, customs, and other
indicia of culture in the original language of the minority." See also
United Nations Sub-Commission on Prevention of Discrimination and Protection
of
Minorities, Proposal concerning a definition of the term "minority"
submitted by Mr. Jules Deschenes, U.N. Doc E/CN.4/Sub.2/1985/31 & Corr.
1.
31 www.mfa.gov.tr/grupa/ac/acl/faq.htm#bm1.
32 Article 4t states: "Radio and television broadcasts will be made
in Turkish; however, for the purpose of teaching or of imparting news,
those foreign languages
that have made a contribution to the development of universal cultural
and scientific works can be used."
33 In an August 1997 interview in Yeni Yuzyil (New Century) the then
State Minister Dr. Salih Yildirim stated that one third of those living
in the southeastern
provinces did not speak Turkish, a figure that rose to fifty percent
among women.
34 Article 9 of the Council of Europe's Framework Convention for the
Protection of National Minorities states: "In the legal framework of sound
radio and television
broadcasting, [State Parties] shall ensure, as far as possible, and
taking into account the provisions of paragraph 1, that persons belonging
to national minorities are
granted the possibility of creating and using their own media." Turkey
has not signed the Framework Convention, but the Council of Europe Parliamentary
Assembly
has urged it to doso. Council of Europe Parliamentary Assembly, Recommendation
1377 (1998). The Convention is in force in most Council of Europe and E.U.
member states. Among E.U. member states, Greece, Luxembourg, the Netherlands,
and Portugal have signed but not ratified the convention; Belgium and France
have neither signed nor ratified it. All other E.U. member states have
signed and ratified the convention; and with the exception of Latvia, Poland,
and Turkey, the
Convention is in force in all E.U. applicant states.
Article 8 of the Oslo Recommendations Regarding the Linguistic Rights
of National Minorities, issued by the High Commissioner on National Minorities
at the
OSCE states: "Persons belonging to national minorities have the right
to establish and maintain their own minority language media. State regulation
of the broadcast
media shall be based on objective and non-discriminatory criteria and
shall not be used to restrict enjoyment of minority rights."
35 The right of minorities recognized under the Treaty of Lausanne to education in their mother tongue is respected.
36 European Commission Against Racism and Intolerance, Report on Turkey,
November 9, 1999.
COMBATING RESTRICTIONS ON THE HEADSCARF
A campaign to restrict the wearing of head scarves for religious reasons
in educational settings or on state premises has continued unabated, strongly
supported by
the Office of the Chief of General Staff. This campaign, waged in the
name of secularism, has resulted in thousands of devout Muslim women being
temporarily or
permanently denied access to education, while others have been suspended
or discharged from employment in teaching or health care.
On February 10, the Minister of Education announced that more than 300
primary and secondary school teachers had been dismissed by the ministry
for defying the
dress code by wearing a head scarf to work. Regarding the dismissals,
the minister declared, "This is a crime, the punishment of which is dismissal
from civil service.
Everybody must comply with this rule. If they don't, they have no place
among us."37 On May 31, 2000, Istanbul Fatih Primary Court sentenced Nuray
Canan
Bezirgan to six months' imprisonment for "obstructing the education
of others" because she wore a head scarf during an examination at the Health
Services
Vocational Institute of Istanbul University. The sentence was later
converted to a fine, but she faces several similar charges that will result
in her imprisonment if
convicted.
Arrangements are being put in place to exclude the openly devout from
state privileges. In a reply to a parliamentary question in July, Deputy
Prime Minister Devlet
Bahceli confirmed that a circular issued by the State Planning Organization
bars any civil servants or family members wearing a head scarf from entering
the
organization's rest and recreation facilities.38 A Regulation on Army
Hostels, Clubs and Social Facilities, published in the Official Gazette
on August 20, 2000, lists
those who may not be admitted: "Those wearing beards, cloaks, turbans,
skullcaps, headscarves or similar uncontemporary garb, other than men of
advanced age
who have grown a modest beard in accordance with their religious beliefs
and elderly mothers who wear a scarf which leaves their face open."
Even elected representatives are subject to the ban. A recent confrontation
took place on May 2, 1999, when Merve Kavakçi, elected the previous
month as a
Fazilet deputy, entered the Grand National Assembly wearing a head
scarf. There was pandemonium as other deputies beat on desktops and called
for her to get
out. Prime Minister Bülent Ecevit denounced Ms. Kavakçi
in very strong terms and called a recess. Media close to the state interpreted
Ms. Kavakçi's act as a
political attack on democracy and secularism. The incident triggered
a move for closure of Fazilet by the Constitutional Court; the case is
still under consideration. In
the wake of the incident it emerged that following an earlier marriage
to an American, Merve Kavakçi had accepted U.S. citizenship without
asking prior permission
fromthe Turkish authorities. The Turkish Council of Ministers seized
on this technical breach of Turkish law to withdraw her citizenship, and
she is no longer able to
represent her constituency in parliament.
Women who wear head scarves say that they adopt this dress as a sincere
expression of their religious beliefs. The decision to wear (or not to
wear39) dress such
as head-covering in public is a form of personal and religious expression
protected by various instruments, including Articles 9 and 10 of the European
Convention
on Human Rights, and can only be limited where interests of the individual
are outweighed by the state's legitimate concerns regarding, for example,
public order,
health or morality. In Turkey the wearing of the head scarf by students
or elected representatives has not presented a threat to public order,
health or morality, and it
is difficult to imagine circumstances in which it might.
The head scarf issue has not been tested in the European Court of Human
Rights either with respect to educational institutions or the workplace.
However, the
Turkish educational establishment is using the considerable prestige
and authority of the Council of Europe to justify the ban. An evaluation
of legal issues relating to
the ban, believed to have been prepared by the Council for Higher Education
(YÖK) and circulated to university rectors, as well as a statement
by the Turkish Prime
Minister's Office's High Coordinating Council for Human Rights, refer
to and summarize an admissibility decision in the case of Lamiye Bulut.40
Ms. Bulut finished studies in the faculty of education at Ankara Gazi
University in 1980 and applied for her diploma in 1984. This was refused
because the
photograph she supplied to be attached to the diploma showed her wearing
a head scarf. After unsuccessful appeals to Ankara Administrative Court
and the Council
of State, Ms. Bulut exercised her right of personal petition to the
Council of Europe, claiming a breach of (among others) Article 9. At that
time, individual petitions
did not go straight to the European Court of Human Rights but were
examined by the European Commission of Human Rights. The grounds for the
Commission's
1993 decision against Ms. Bulut were that in applying to a secular
university, she had effectively accepted the conditions of a secular university
in which religious
requirements could not be expected to be safeguarded unconditionally,
that the diploma was not intended to be shown to the general public (and
would therefore not
expose her bareheaded to public view), and that in a country with a
majority Muslim population such as Turkey, permitting such a visible token
of religion might
result in non-Muslim students being put under pressure. There is no
question that women expelled from educational institutions feel let down
by this decision. Since
November 1998, Zehra Ergül has been prevented from entering Istanbul
University to complete her final year at the art history and archeology
department of the
faculty of literature. She told Human Rights Watch that in practice
students did not have the choice of a secular or religious university,
since there were no religious
universities in Turkey.41
The admissibility decision referred to by the Turkish authorities was
made seven years ago by the European Commission of Human Rights, which
has now been
effectively replaced by the full-time European Court of Human Rights.
To Human Rights Watch's knowledge, at least two new applications have been
made to the
European Court of Human Rights by women excluded from their studies,
but no decisions have yet been reached in these cases.
Article 2(1) of the ICCPR specifically requires state parties to respect
and ensure rights to all "without distinction of any kind" including religious
and political or other
opinion. Article 13 of the ICESCR sets forth the right to education,
and article 2(2) mandates that state parties undertake to guarantee nondiscrimination
in the
exercise of all of the rights identified in the covenant, specifically
including "religion" and "political or other opinion" as impermissible
bases for distinctions. Article 13
(1)(c) of the ICESCR states: "Higher education shall be made equally
accessible to all, on the basis of capacity, by every appropriate means...."
These provisions
require that access to higher education should be based upon a student's
ability to study at an advanced level, and not their religious orientation.
Accession Partnership Recommendations:
* The Turkish authorities should lift the ban on the wearing of head
scarves or other religious head-covering by students in higher education,
and
should be encouraged to reconsider the dress restriction imposed on
civil servants. There can be no grounds for dress restrictions imposed
on elected
representatives in the Turkish parliament. This measure is not specified
in the Report or the Calendar.
* In 1999 the U.N. Special Rapporteur on religious discrimination visited
Turkey. The government of Turkey and the E.U. should seek ways to
ensure that his findings and recommendations, which are not expected
to be made public until early 2001, are considered when preparing the
accession partnership. This measure is not specified in the Report
or the Calendar.
37 Turkish Daily News, February 11, 2000.
38 Milliyet (Nationhood), July 15, 2000
39 Human Rights Watch has also condemned the policy, enforced in several countries, of forced veiling and other restrictions on women's attire.
40 European Court of Human Rights, Admissibility decision on application No. 18783/91, May 3, 1993.
41 The head scarf ban is applied even in expensive private universities,
with the exception of Ankara Bilkent University.
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IMPROVING PRISON CONDITIONS
Warders under Justice Ministry authority provide the internal security
for all prisons in Turkey, but the external perimeter of prisons is guarded
by gendarmes under
the authority of the Interior Ministry. These gendarmes, trained for
counter-insurgency in southeastern Turkey, are sometimes called in to quell
unrest, and they use
this as an opportunity to settle accounts with prisoners accused of
links with illegal armed groups that may be fighting security forces elsewhere
in the country. Since
1995, twenty-six prisoners have been killed in Turkish prisons as a
result of gendarmes being sent in to "restore order," a duty they customarily
carry out with
extreme brutality. Ten of these prisoners were killed in an intervention
by gendarmes at Ulucanlar Prison in September 1999. All of those killed
were prisoners
remanded or convicted for offenses under the wide-ranging Anti-Terror
Law. Prisoners also frequently report being beaten or otherwise abused
during trips from
prison to court or for medical treatment. Again, these transfer duties
are carried out by gendarmes.
Accession Partnership Recommendation:
* Gendarmes should be immediately removed from prison guard duties and
replaced by staff under the authority of the Ministry of Justice. This
measure is not specified in the Report or the Calendar.
Small group isolation
Unrest among prisoners held for offenses under the Anti-Terror Law has
often arisen when they have been alarmed by developments that suggested
they were going
to be put under a regime of small group isolation. The Justice Ministry
is currently trying to move away from its traditional system of large wards
of eighty or more
prisoners, which have proved difficult to manage, to a cell or room
system. New cell-based "F-Type" prisons are under construction, and existing
prisons are being
remodeled. Human Rights Watch does not oppose the move to cell based
prisons per se, but we are concerned that unless accompanied by productive
activities
and substantial out-of-cell time, the new prisons may impose a harsh
isolation regime that violates international standards. These concerns
stem from the fact that the
Ministry of Justice has already begun to apply small group isolation
in parts of the prison system, including at Kartal Special Closed Prison
in the Soganlik district of
Istanbul.
While construction work on the new prisons continues, the Ministry of
Justice has remained inexplicably silent on how it intends to run the new
facilities. Yet this
information is vital, as it will determine whether the planned changes
represent progress or a serious regression for the Turkish prison system.
Speaking about the
plan to institute an individual cell system, the European Committee
for the Prevention of Torture stated in a recent report to the Turkish
government:
It is imperative for moves toward smaller living units for prisoners
in Turkey to be accompanied by measures to ensure that prisoners spend
a reasonable part of the
day engaged in purposeful activities outside their living unit. Indeed,
the effects of the current almost total absence of any organized program
of activities for prisoners
would be felt even more keenly in smaller living units. In the absence
of a significantimprovement in activities for prisoners, the introduction
of smaller living units will
almost certainly cause more problems than it solves.42
The CPT asked for detailed information about the planned regime, but
unfortunately the Turkish government has so far failed to reply to the
committee's request. On
May 24, 2000 Human Rights Watch issued a report on conditions at Kartal
Special Type Prison, and the planned F-type cell-based prisons, entitled
Small Group
Isolation in Turkish Prisons: An Avoidable Disaster.43
Accession Partnership Recommendation:
* The Justice Ministry should put an end to the regime of intense isolation
at Kartal Special Closed Prison and publicly announce plans for the future
management of prisons that are consistent with international standards
and promise a healthy environment for prisoners. Such plans should include
a
schedule for the establishment of a system of independent monitoring
such as that discussed above as a measure to curb torture. This measure
is not specified in the
Report or the Calendar but both propose seeking E.U. funding in order
to accelerate the move from the ward system to the cell or room system.
Lack of civil society monitoring of prison conditions
Turkish prisons are visited regularly by the local prosecutor, and are
inspected by the Justice Ministry every two years. Human Rights Watch shares
the view of the
CPT that this should be supplemented by supervision by a body independent
of state institutions. In its report on a visit to Turkey in October 1997,
published in
1999, the CPT said that it "attaches particular importance to regular
visits to all prison establishments by an independent body (for example,
a visiting committee or a
judge with responsibility for carrying out inspections) with authority
to receive-and, if necessary, take action on-prisoners' complaints and
to visit the premises."
Accession Partnership Recommendation:
* The Turkish government should announce a schedule for the establishment
of a nationwide system of visiting boards, comprised of local persons
trusted for their independence and commitment to human rights, who
could visit prisons in order to talk to prisoners, inspect facilities.
Such boards
should report publicly on their work and findings. This measure is
not specified in the Report or the Calendar.
42 CPT/Inf (99) 2 [EN]; February 23, 1999.
43 Available on our website at www.hrw.org.
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LIFTING THE DEATH PENALTY
Turkey has carried out no executions since 1984, and can therefore be
included in the list of de facto abolitionist states. However, it has yet
to sign the Sixth
Protocol to the European Convention on Human Rights, and courts continue
to hand down death sentences. Fifty-seven death sentences that have been
confirmed
on appeal are currently pending at the final parliamentary stage.
Prime Minister Ecevit has made clear his personal opposition to the
death penalty, and Minister of Justice Hikmet Sami Turk has said that "Turkey,
as a member of
the Council of Europe and a candidate for full E.U. membership, should
make the appropriate amendments to its judicial system. The abolition of
the death penalty
should be debated within this framework . . . . Turkey should harmonize
its own judicial system with the trends in the European system. And the
tendency in Europe
is against the death penalty."44
Human Rights Watch is optimistic that Turkey is now ready to abolish
the death penalty-an important milepost for human rights in that country
and a step toward
abolition worldwide.
Accession Partnership Recommendation:
* Pending full de jure abolition of the death penalty in Turkish law,
the Turkish government should sign the sixth optional protocol to the European
Convention on Human Rights and thereby firmly commit itself not to
carry out any further executions. This measure is specified in both the
Report and
the Calendar, and the latter schedules the abolitionist penal code
for submission to parliament at the end of 2001. If the government's intention
is to abolish the death
penalty, there is no reason why signature of the sixth optional protocol
should wait.
44 Turkish Daily News, December 30, 1999.
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ENDING REPRESSION OF CIVIL SOCIETY
Article 18 of the U.N. Declaration on Human Rights Defenders45 states:
"Individuals, groups, institutions and non-governmental organizations have
an important role
to play and a responsibility in safeguarding democracy, promoting human
rights and fundamental freedoms and contributing to the promotion and advancement
of
democratic societies, institutions and processes. Individuals, groups,
institutions and non-governmental organizations also have an important
role and a responsibility
in contributing, as appropriate, to the promotion of the right of everyone
to a social and international order in which the rights and freedoms set
forth in the Universal
Declaration of Human Rights and other human rights instruments can
be fully realized."
The alternative voice raised by civil society is not yet fully accepted
as legitimate in Turkey. Criticizing the authorities or questioning the
state's monolithic view of
society is often viewed as a form of disloyalty bordering on treason.
Organizations viewed as troublesome can expect to be harassed, raided or
closed down, and
their members risk prosecution or worse.46 Members of the Turkish Human
Rights Association's (HRA) fifty-nine branches have been detained, tortured,
imprisoned and subjected to death threats and eleven Association officials
have been murdered by unknown assailants, in some cases in circumstances
that suggest
security force involvement.
Politicians and other public figures have frequently cast groundless
aspersions on human rights organizations. Particularly in the tense years
of confrontation with
armed organizations such as the PKK (Workers' Party of Kurdistan),
such statements were irresponsible and dangerous. In May 1998, following
the leak of
uncorroborated and false allegations by the prosecution service, Akin
Birdal, then President of the Turkish Human Rights Association, was shot
six times in the chest,
shoulder, and legs at the HRA headquarters. Bleeding profusely, he
had lost almost all his blood by the time he reached the hospital; it is
said that only the immediate
attention of a doctor on the HRA staff saved his life.
Immediately after the shooting the Prime Minister of the day Mesut Yilmaz
reportedly claimed that the attack was "an internal settling of accounts,
like a
misunderstanding between those in the same camp . . . . It is clear
they [the HRA] were connected to the PKK."47 The allegation was unfounded.
In fact, shortly
afterward, inquiries led police to the ultranationalist Turkish Revenge
Brigade. Sixteen alleged members or supporters of this group, including
a retired army major, a
serving gendarmerie officer, and the two men thought to have carried
out the shooting, are currently on trial, accused of "attempted murder"
and of "forming an
armed gang to commit crime for social and political objectives."
Accession Partnership Recommendation:
* The Turkish government should make a public statement affirming the
role of civil society in general, and the valuable contribution of human
rights
organizations. The government should make clear that although the criticisms
made by such organizations may be uncomfortable for those in
authority, such organizations are a legitimate and necessary component
of an effective system for protection of the rights and welfare of the
Turkish
people. The Report and the Calendar contain the welcome recommendation
that "the constructive function of non-governmental organizations in raising
human
rights awareness should be encouraged and there should be closer cooperation
and communication with them," but these documents make no explicit provisions
for
public government acknowledgement of the positive role of human rights
organizations.
The Diyarbakir and Van branches of the HRA and the Malatya branch of
the Association of Human Rights and Solidarity for Oppressed Peoples (Mazlum-Der)
are
currently closed. The Diyarbakir branch of the HRA was originally closed
by the local governor using powers under the Law on Associations, as is
still the case with
Mazlum-Der's Malatya branch. Diyarbakir HRA challenged the closure
in the courts and won. On April 19, 2000 the court overturned the closure
order, and after
some delay the branch was permitted to reopen. Their first activity
was to be a signature campaign against the new generation of F-type prisons
(see above).The
local governor refused permission for publications and meetings associated
with the campaign and, in response, the branch issued a critical press
statement. The
branch was then closed for three months on the orders of the Emergency
Region Governor, whose administrative acts cannot be challenged in the
courts. Thirty
minutes after the branch re-opened on August 12, 2000, the Emergency
Region Governor closed it once again. The recently opened Van branch of
the HRA was
also closed by the Emergency Region Governor, because they too were
planning a campaign relating to the F-type prisons.
Accession Partnership Recommendation:
* The Turkish government should reopen the Van and Diyarbakir branches
of the Human Rights Association and the Malatya branch of
Mazlum-Der. This measure is not specified by the Report or the Calendar,
but both contain the following-not altogether reassuring-statement: "Measures
should
be adopted to prevent the exercise of pressure on managers and members
of non-governmental organizations concerned with human rights; the security
of the
headquarters and branch offices of these organizations should be ensured,
the legal actions for closure should be consistent and measures should
be taken for
compliance with court judgments concerning such actions."
Non-governmental organizations must negotiate a formidable succession
of legal obstacles to their activities. Although civil society has bloomed
in Turkey during the
1990s, any organization that incurs official displeasure may be subjected
to a storm of litigation.
Revision or abolition of the Law on Associations, with its cumbersome
and restrictive rules for non-governmental organizations, is vital to the
establishment of
freedom of association. Human Rights Watch recognizes that this law
was drawn up with the recent memory of abuse of the right of association
by armed groups in
the 1970s and that provisions relating, for example, to the storage
of firearms on association premises are fully justified. However, heavy
restrictions on membership
and requirements to submit all publications and public meetings for
approval by the local governor make the Law on Associations an alarmingly
repressive piece of
legislation. Further, associations are required to pay the fees and
travelling expenses for an indefinite number of government agents to attend
their meetings and
record proceedings on paper, audiotape or video. Local governors frequently
exercise their considerable discretion to halt meetings, suppress publications
and
posters, and close down associations.
If the government is truly determined to improve its human rights performance,
it must remove the restrictions from those independent human rights organizations
that
are best placed to document progress. Government officials must also
speak up publicly to challenge the campaign of misinformation about such
organizations that
has been waged for so long by the military, the media, and others.
Accession Partnership Recommendation:
* The Law on Associations should be thoroughly overhauled so that it
forms a basis for the healthy development of civil society rather than
an
obstacle. In revising this law, careful attention should be givento
the standards developed in the jurisprudence of the European Court of Human
Rights on those articles of the European Convention on Human Rights
that deal with freedom of thought, expression, assembly and association.
The
Report and the Calendar do not contain this specific recommendation,
but both provide for constitutional recognition of the role of non-governmental
organizations
and state that "In line with the requirements of democratic society,
the necessary amendments should be made in the framework of collective
freedoms, especially the
legislation concerning freedom of association, freedoms of assembly
and demonstration and trade union freedoms." The Calendar schedules the
preparation of draft
laws on such topics by the end of 2002.
45 Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human
Rights and
Fundamental Freedoms, A/RES/53/144, (adopted by the General Assembly,
March 8, 1999).
46 There have been recent heartening signs of improvement in this area.
In September 1999, Mehmet Ali Irtemcelik, then state minister responsible
for human rights,
made a public statement that seemed to promise a change of approach,
when he expressed a wish to "strike a sound and honest communication" with
nongovernmental organizations dealing with human rights. He subsequently
organized a meeting to obtain the views of a range of such groups.
47 Milliyet newspaper, 14 May 1998.
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CONTRIBUTING TO STABILITY IN THE SOUTHEAST
The capture of the PKK's leader Abdullah Ocalan and the PKK's announcement
that it was to abandon armed activities in Turkey have much reduced the
armed
turbulence in the southeastern provinces. Some units of the PKK have
continued sporadic attacks and there have been clashes between security
forces and PKK
groups withdrawing to Northern Iraq. The illegal armed organization
TIKKO (Workers and Peasants' Army of Turkey) is also continuing its activities.
Nevertheless,
the number of clashes has diminished considerably. The Anatolia News
Agency reported on May 25, 2000 that armed incidents had decreased from
3,300 in 1994,
1,436 in 1995, 488 in 1999 and 18 in the first five months of 2000.
But normality has not returned to the region. A state of emergency continues
in six provinces-Diyarbakir, Hakkari, Sirnak, Siirt, Tunceli, and Van.
More than 60,000
villagers are still armed and paid by the state as village guards.
Over 300,000 people remain internally displaced.
As the violence that provoked the emergency subsides, cross-party pressure
for ending the emergency has increased. Under the State of Emergency Law
of 1983
and supplementary decrees, the Emergency Region Governor has sweeping
powers to move populations, confiscate publications and limit the right
of assembly.
Maximum police detention periods can be extended from seven to ten
days within the emergency region. The Governor's extraordinary powers are
still regularly
exercised. For example, in May this year, the Emergency Region Governor
banned the distribution of twelve journals. Rights to compensation for
acts carried out by
the Emergency Region Governor are limited, and there is no judicial
review of actions carried out under the Governor's authority.
The government's village guard system has been a human rights disaster.
The system was established in the mid-1980s, ostensibly so that village
guards could defend
their own villages. In fact they have been used in a wide range of
security operations, including incursions into Northern Iraq. In theory
membership in the village
guard corps was voluntary, but in practice, it was a test of loyalty
that made villagers choose to serve and risk being killed by the PKK, or
refuse and put themselves
under suspicion of supporting the PKK. The village guard corps was
never given a proper chain of command and responsibility, and most village
guards on duty
have no insignia by which they can be identified. In some districts
of the southeast, local tribal loyalties have combined with the village
guard system to produce a
series of private and heavily armed fiefdoms. Human Rights Watch has
received many reports of village guards being involved in "disappearances,"
extrajudicial
executions and torture. The April 1995 report of the Turkish Parliament's
Commission on Unsolved Political Killings confirmed that village guards
were involved in a
wide range of lawless activities, including killing and extortion,
and called for their abolition.
Accession Partnership Recommendation:
* The Turkish government should proceed as soon as possible, without
any further delay, to disarm and dissolve the village guard system. This
measure is not specified in the Report or the Calendar.
Internal displacement
According to the Turkish Parliament's Commission on Migration, 401,328
villagers have been displaced since 1984.48 Many other observers claim
a much higher
figure. The population of Diyarbakir, the regional capital, increased
by 600,000 during the 1990s. In most cases, these villagers were not evacuated
in an orderly
fashion, resettled, or compensated. Rather, they were driven from their
homes by security forces who left burned houses and destroyed crops and
livestock in their
wake. A large number of petitions have been filed with the European
Court of Human Rights in respect of village destruction, and three important
judgments have
already been reached against Turkey.49
The findings of the European Commission on Human Rights in the Mentes
case eloquently describe the officially sanctioned lawlessness that broke
out all over
southeast Turkey in the 1990s: "The Commission considered that the
burning of the first three applicants' homes constituted an act of violence
and deliberate
destruction in utter disregard of the safety and welfare of the applicants
and their children who were left without shelter and assistance and in
circumstances which
caused them anguish and suffering. It noted in particular the traumatic
circumstances in which the applicants were prevented from saving their
personal belongings
and the dire personal situation in which they subsequently found themselves,
being deprived of their own homes in their village and the livelihood which
they had been
able to derive from their gardens and fields."50
All displaced villagers interviewed by Human Rights Watch have spoken
of their wish to return to their homes. The Turkish government has taken
at least two
initiatives for return, both of which were extremely problematic, as
described in Human Rights Watch's 1996 report Turkey's Failed Policy to
Aid the Forcibly
Displaced in the Southeast.51
There remain two principle obstacles to return. First, it is not clear
that villagers can safely go home. Quite apart from the risk of activities
by remnant PKK elements,
the security forces do not seem fully to have abandoned their former
abuses. The most recent case of village destruction known to Human Rights
Watch was in
1998; but as recently as February 17, 2000 the newspaper Ozgur Bakis
(Free View) reported that Savet village, near Beytussebab in Sirnak province,
had been
raided by security forces who threatened the community with forcible
evacuation. On February 26 the same newspaper reported that Kenik village,
near Kozluk in
Batman province, had been subjected to similar threats.
Second, the government lacks a clear will to return all displaced villagers
to their original homes and is still pressing forward with its projects
for "central villages"
(köykent) into which some villagers would be permanently resettled
on government land in communities under the eye of the security forces.52
In any event, returns to villages have been slow. The US State Department's
annual human rights report for 1999 quotes a government figure for total
number of
returnees of 26,481. Even calculated on the basis of the Parliamentary
Commission's conservative estimate for the number of displaced this represents
an
achievement of only 6.59%.
Principle 28 of the U.N. Guiding Principles on Internal Displacement53
speaks of governments' duty "to establish conditions, as well as provide
the means, which
allow internally displaced persons to return voluntarily, in safety
and with dignity, to their homes or places of habitual residence, or to
resettle voluntarily in another
part of the country." The principles also emphasize that the displaced
persons should participate in the planning and management of their return,
that they should not
be discriminated against as a result of hiving been displaced. The
principles also require that governments should facilitate the assistance
of " international
humanitarian organizations and other appropriate actors" in the return
or resettlement process.
Accession Partnership Recommendation:
* The Turkish government should commence a program that will create
the necessary security conditions to allow villagers to return to their
original
homes and property, or place of former habitual residence, throughout
the southeast, in safety and security and with full human rights guarantees.
The program of return should be fully resourced and access to those
resources should not be conditional on service in the village guard corps.
Villagers should be fully compensated for their displacement and the
destruction of their houses, goods and livestock. In preparing the return
program, the Turkish government should consult bodies and persons with
experience in this field, including the Special Representative of the
Secretary-General of the United Nations on Internally Displaced Persons,
the U.N. High Commissioner for Refugees, and the World Bank, and
make public the recommendations of such bodies. These measures are
not specified in the Report or the Calendar.
Failure to investigate "disappearances" and extrajudicial executions committed during the 1990s
The program of village destruction was carried out in a context of widespread
security force abuses that have not yet been acknowledged by the government.
During
operations in the rural southeast, torture was the standard tool of
intelligence gathering, and anyone who came under suspicion of illegal
activities was at risk of
extrajudicial execution or "disappearance".
Human Rights Watch has repeatedly urged the Turkish government to institute
investigatory commissions into these violations, in accordance with the
U.N. Principles
on the Effective Prevention and Investigation of Extra-legal Arbitrary
and Summary Executions and the U.N. Declaration on the Protection of All
Persons from
Enforced Disappearance. Human Rights Watch shares the general optimism
that the nightmare in the southeast is drawing to an end, but it is a chapter
that cannot be
closed until there has been a comprehensive and public examination
of the violations committed by the security forces and illegal armed organizations,
punishment of
those responsible, and compensation of the victims. At one remove,
a form of truth commission is already in session in Strasbourg as a succession
of complaints for
torture, extrajudicial execution, "disappearanc