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