The current government in Turkey (in office for a second term since July 2007) of the Justice and Development Party (AKP) under Prime Minister Recep Tayyip Erdogan has frequently been praised for its efforts to improve the human rights record, and in particular for the "zero tolerance" against torture and the progress achieved in combating this evil. To see whether this plaudit is justified we should first look at various reports of international and national institutions and organizations of civil society.

The latest report of the European Commission on the progress made by Turkey in preparing for EU membership was published in Brussels on 6 November 2007. It covered the period from 1 October 2006 to early October 2007. In section 2.2 "Human Rights and the protection of minorities" the following was said on torture under the heading of "civil and political rights":

The legislative safeguards introduced by the zero tolerance policy on torture continue to have positive effects. The downward trend in the number of reported cases of torture and ill-treatment was confirmed.(see later comment from the HRFT)

"However, cases of torture and ill-treatment are still being reported, especially during arrest and outside detention centres. There is no independent monitoring of places of detention by independent national bodies, pending the adoption of the Optional Protocol to the UN Convention against Torture…

"The use of statements obtained in the absence of legal counsel or which are not confirmed in front of a judge is prohibited by the Criminal Procedure Code. However, the Court of Cassation ruled that the ban on the use of such statements does not apply retroactively. There are cases where lower Courts have not removed such evidence from the case file, although allegations of ill-treatment were made by the defendant…

"The fight against impunity of human rights violations remains an area of concern. There is a lack of prompt, impartial and independent investigation into allegations of human rights violations by members of security forces. Furthermore, judicial proceedings into allegations of torture and ill-treatment are often delayed by the lack of efficient trial procedures or abuse of such procedures."

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) has conducted many visits to Turkey. The latest visits were in November/December 2006 and in May 2007, but they did not concentrate on human rights abuses in custody. The main objective of the visit in 2006 was to examine the situation of patients held in psychiatric hospitals and in May 2007 the CPT visited Imralı Closed Prison, where it examined the treatment of that establishment’s sole inmate, Abdullah Öcalan. As of December 2007 reports on these visits were not available.

Therefore the latest report on torture and ill-treatment is the report of 6 September 2006 that referred to a visit carried out between 7 and 14 December 2005. During this visit the following law enforcement establishments were visited: Adana Police Headquarters, İstanbul Police Headquarters, Beyoğlu District Police Headquarters, İstanbul, Sirkeci Police Station, Eminönü District, İstanbul, Van Police Headquarters and Provincial Gendarmerie Headquarters, Van. The CPT also visited prisons in Adana; Bitlis, Van, Istanbul and Tekirdag and psychiatric establishments in Adana and Istanbul, but for this study the findings on the law enforcements establishments should be the focus.

In the preliminary remarks the CPT correctly pointed at the discrepancy between measures introduced as part of the harmonization laws for joining the EU and the new penal code (TPC) of 1 June 2005. While the reforms had stipulated that trials against alleged torturers had to be conducted speedily and the sentences of imprisonment could neither be commuted to a fine or suspended no such provision had been included in the TPC of June 2005.

The CPT asked for clarification and the Turkish Government responded by saying that the offence of "torment" provided for in Article 96 of the new TPC only applied to individuals other than public officials. Therefore, sentences against public officials could not be commuted to a fine or be suspended. As far as the speed of trials was concerned the Turkish Government pointed at general provisions such as the possibility of courts to reject an (unfounded) indictment.

Although there is only little information on trials against public officials charged with the offence of torture or ill-treatment after 1 June 2005¹ it must seriously be doubted that the arguments of the government are correct.² Looking at the text of Article 94-96 of the TPC it is correct that Article 94 (on torture) mainly applies to civil servants, but Article 96 (on torment or suffering) applies to "anyone" including civil servants. In the reasoning for the new TPC it is said that the provision of Article 95 TPC does not only cover "torture of suspects" but also "witnesses" and that not only civil servants can participate in this offence. In other words, the official justification does not confirm what the CPT was told.

The September 2006 report of the CPT is at the beginning very positive on progress in combating torture:

"The CPT’s delegation interviewed scores of persons who were, or had recently been (i.e. during the year 2005), in police/gendarmerie custody. The great majority of those persons stated that they had not been physically ill-treated whilst in custody; several of them spontaneously emphasised the contrast with the severe ill-treatment they had experienced during previous periods of custody some years ago…"

Soon afterwards critical and (to some extent) contradictory statements follow:

"However, the picture which emerges from the information gathered by the CPT’s delegation is not entirely reassuring. The delegation did receive, in each of the three Provinces visited, several allegations of recent physical ill-treatment during police/gendarmerie custody, in a few cases of a serious nature… Medical evidence consistent with some of the above-mentioned allegations was found in the end-of-custody medical reports and/or in medical reports drawn up on entry into prison… The most serious allegations of recent physical ill-treatment received by the delegation concerned the squeezing of genitals, combined with severe beatings, of certain detained persons at Beyoğlu District Police Headquarters (Law & Order Department), the Gayrettepe part of İstanbul Police Headquarters (Robbery Department), and Van Police Headquarters (Theft Department)."

On 15 March 2007 the UN Special Rapporteur on Torture, Manfred Nowak, published his report numbered A/HRC/4/33/Add.2 as a follow-up to visits of certain countries. (Look here for the full report) The entry on Turkey can be found between pages 119 to 129.

The visit to Turkey had been conducted in November 1998. Prior to the report of March 2007 the Turkish Government and unnamed NGOs (non-governmental organizations) provided information that the report refers to.

The entry on Turkey starts with positive remarks: "The Special Rapporteur congratulates Turkey for having signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and encourages its speedy ratification and implementation. He also welcomes the many positive steps taken by the Government, such as the “zero tolerance policy” vis-à-vis torture, a large range of improved safeguards against torture and professional training for law enforcement bodies…

"However, he is concerned about the new anti-terror legislation that was adopted on 29 June 2006, which risks to reverse the positive trends by, for instance, restricting the number of defence lawyers during the pre-trial period to one person and allowing for a 24- hour period before a detained person can meet with his/her lawyer under certain conditions Combating impunity is a key-element in combating torture. In this regard, the Special Rapporteur considers that the trials of alleged perpetrators are still often lengthy and the number of those brought to justice insufficient Also, in line with his earlier recommendations, the Special Rapporteur echoes the Special Rapporteur on Human Rights and Counter-terrorism, who recommended to the Turkish authorities to create “an independent and impartial investigation mechanism with the power to investigate promptly allegations of torture or other ill-treatment. It is crucial that such a mechanism be located outside the institution that is alleged to have committed the acts of torture under investigation”. Moreover, he would also like to reiterate that there should be a review by an independent body of undisputed integrity of all cases in which the primary evidence against convicted persons is a confession allegedly made under torture."

On particular recommendations relevant to this study the following was said:

"Recommendation (a) stated: The legislation should be amended to ensure that no one is held without prompt access to a lawyer of his or her choice as required under the law applicable to ordinary crimes or, when compelling reasons dictate, access to another independent lawyer."

The Government made an interesting remark on this recommendation to be found as paragraph 614 of the report:

"Counter-terrorist investigations require different methods than those of ordinary crimes due to the necessity to respond to the complex nature of terrorist tactics in a commensurate way. In general, the first 24 hours following the apprehension of a terror suspect are very important for the investigation. Any evidence or information obtained on the suspect contributes significantly to the investigation and assists in finding other perpetrators, preventing other terrorist offences as well as seizing materials that will be used in other crimes. Furthermore, various terrorist organizations have developed a so-called “alarm system” which triggers an alert process aimed at eliminating the evidence, organizational information and documentation, when a member is apprehended. In this respect, the restriction provided by the new amendment to the Anti-Terror Law is a precautionary measure against terrorist tactics…"³

"Recommendation (b) stated: The legislation should be amended to ensure that any extensions of police custody are ordered by a judge, before whom the detainee should be brought in person; such extensions should not exceed a total of four days from the moment of arrest or, in a genuine emergency, seven days, provided that the safeguards referred to in the previous recommendation are in place.

"According to information received from NGOs and other sources, the Code of Criminal Procedure of 1 June 2005 provides that persons can be held in police custody for a maximum of 24 hours for individual crimes and four days for joint crimes. In both cases, an extension of three days is possible, and in case of emergency, seven days. However, police custody exceeding the legal periods, as well as cases of unrecorded detention, are still reported…"

"Recommendation (e) stated: Prosecutors and judges should not require conclusive proof of physical torture or ill-treatment (much less final conviction of an accused perpetrator) before deciding not to rely as against the detainee on confessions or information alleged to have been obtained by such treatment; indeed, the burden of proof should be on the State to demonstrate the absence of coercion. Moreover, this should also apply in respect of proceedings against alleged perpetrators of torture or ill-treatment, as long as the periods of custody do not conform to the criteria indicated in (a) and (b) above.

"According to information received from NGOs and other sources, torture and ill-treatment claims are not taken into consideration if they lack conclusive proof and the cases are regularly dismissed. Furthermore, prosecutors and judges have accepted evidence and information allegedly obtained by torture.

"The Government informed that the new Criminal Procedure Code (CPC) has introduced many safeguards to prevent the prohibited methods of taking statements or interrogating, including torture or ill-treatment and their use as evidence… a safeguard has been introduced in the Constitution: article 38 stipulates that findings obtained in violation of laws cannot be admitted as evidence. Article 148(4) of the Criminal Procedure Code states, “The statement taken by law enforcement officials in the absence of defence counsel cannot be a basis for a judgement unless verified by the suspect or the accused before the judge or the court“.

"Recommendation (f) stated: Prosecutors and judges should diligently investigate all allegations of torture made by detainees. In the case of prosecutors in the State Security Courts, allegations should also be referred to the public prosecutor for criminal investigation. The investigation of the allegations should be conducted by the prosecutor himself/herself and the necessary staff should be provided for this purpose.

"According to information received from NGOs and other sources, prosecutors and judges have so far not treated claims of torture or ill-treatment with the necessary diligence.

"The Government informed that public prosecutors in general initiate investigations concerning allegations of torture and ill-treatment “ex officio” and conduct them personally in accordance with a circular issued by the Minister of Justice on 1 January 2006. Sentences imposed against civil servants convicted of torture can neither be suspended nor commuted to other forms of penalties.⁴ Article 53, paragraph 1/a of the Penal Code allows the courts to rule on temporary or permanent suspension from duty of public officials who are convicted of offences that they have committed wilfully."

The UN Working Group on Arbitrary Detention visited Turkey from 9 to 20 October 2006 at the invitation of the Government. In the course of the visit, the Working Group met with the relevant authorities in the executive and judicial branches, with representatives of civil society and non-governmental organizations. It visited seven prisons, as well as police stations, migration holding facilities and a psychiatric hospital, and interviewed in private more than 200 detainees, a few of them previously identified, but most chosen at random while at the facility.

The report was published on 7 February 2007 (numbered A/HRC/4/40/Add.5) and can be found here. On more general questions the report stated: "The definition of terrorism is overly broad and does not require that a terrorist offender must have committed a serious violent crime. As a consequence, terrorism charges can be used to restrict the non-violent exercise of the rights to freedom of expression, association and assembly. On the procedural side, in proceedings concerning terrorism suspects the law restricts the right of access to counsel. The Working Group found numerous persons accused of terrorism held in remand detention for unacceptably long periods, in some cases more than 10 years, without having been judged. The detainee convicted on terrorism charges faces disproportionately harsh rules governing execution and access to benefits, particularly conditional release."

On the positive side the Working Group found: "The Working Group has no doubts that the Government’s policy of “zero tolerance” of torture is highly successful. From a widespread practice used by the police to obtain self-incriminating statements from the suspect, torture has become the exceptional misconduct of individual police officers or gendarmes."

At this point the Working Group is utterly mistaken (see below the quotes from national human rights organizations). It simply follows the major argument that all governments in Turkey have repeated since 1980, regardless of the scope of torture. After  the generals had seized power in 1980, Kenan Evren, Chief of General Staff and at the top of military rule, said: "There is no torture in Turkey. There are only isolated (the Turkish word "münferit" is mainly used in this context) incidents." (Quote can be found in an application that lawyer Serafettin Elci sent to the UN Human Rights Commission in 1993). Süleyman Demirel who promised "transparent police station" (similar to the "zeror tolerance",) when he came to power, admitted the existence of torture, but termed them "some deficiencies in practice" (2 June 2000, Hürriyet). In April 2006, Prime Minister Recep Tayyip Erdogan got angry at the words of Nihat Er, deputy of his party for Mardin, who during a meeting with deputies from Eastern and South-eastern Turkey had said that torture was continuing at (police and gendarmerie) stations. He reacted by saying: "Where you present? Why are you generalizing isolated incidents?" (For the Turkish source look here)

In conclusion the report included the following findings: "In the course of the last 15 years Turkey has made impressive progress in the reform of its criminal justice system. This progress is particularly visible in the fight against torture (which, as far as the Working Group’s mandate is concerned, is the fight against intimidation of persons in detention and against extorted confessions)…

The Working Group notes, however, a great reluctance on the part of the authorities to fully extend the beneficial effects of the reforms to persons accused of terrorism, which - due to the overly broad definition of terrorist offences - affects thousands of individuals, many of whom have non-violently challenged the constitutional order of Turkey."

In a report of 1 April 2007 Amnesty International expressed its concern in Europe and Central Asia. Relating to torture in Turkey the report said, "Although overall there has been a general decrease in the number of reports of cases of torture or other ill-treatment in the past two years, some disturbing patterns continued to blight Turkey’s record. These included the persisting problem of reported abductions, during which individuals are subjected to verbal threats, intimidation, beating and assault in unofficial detention situations. Reports of the torture or ill-treatment in police custody of those suspected of ordinary crimes continued."

In the report on "The Entrenched Culture of Impunity must end" (released on 5 July 2007) the organization said, "Although there has been a reduction in the incidence of torture and ill-treatment in police custody, and safeguards to protect suspects against ill-treatment have increased, Amnesty International still continues to receive such allegations. Moreover, allegations of torture and ill-treatment during unofficial detention, during demonstrations, in prisons and during prisoner transfer persist. Trials where statements allegedly extracted under torture provide a central part of the evidence continue, with courts ignoring torture allegations and refusing to rule the evidence inadmissible."

On 19 July 2007 Human Rights Watch spelled put concerns in the wake of the general elections in Turkey. It stated inter alias: "Ill-treatment of detainees at the time of arrest and outside official places of detention remains a worrying and widely reported practice, however, especially for those apprehended on suspicion of committing ordinary crimes such as theft.

On June 2, 2007, a new law amending the Law on the Powers and Duties of the Police (Law no. 5681) was rushed through parliament. Among other provisions, the law greatly increases the authority of the police to stop and search individuals whom they suspect of committing crimes. While it is too early to evaluate the effect of the new law, these wide-ranging new stop and search powers raise concern because there is no mechanism for monitoring their application or preventing their abuse."

It may have been too early for Human Rights Watch "to evaluate the effects", but it is the only report of an international institution that has "sensed" the danger of yet another drawback to the reforms in Turkey. Rather than the particular elements of an increased power given to the security forces the "message" is important. In this sense it does not mean much, if the Turkish authorities assure the UN Special Rapporteur on Torture that in the period 2005 and 2006 a total of 56,000 law enforcement official received training in particular on the "right to access to a lawyer" and 175,000 leaflets were printed on the "rights during apprehension" (given that the information quoted in paragraph 610 of the aforementioned report is correct). The important message of the amendments to the Law to Fight Terrorism (of June 2006) to the security forces was "we understand your problems with the terrorists" and the message of the government passing Law 5681 in June 20007 was "we understand your problems resulting from the reforms of the code on criminal procedures".

Although the new penal code allows to order pre-trial detention for people suspected of having violated Articles 94 and 95 TPC (according to Article 100/3 of the code of criminal proceedings of 1 June 2005) not a single case has been reported in the Turkish media. While the old penal code included the possibility to order suspension of duty (in addition to a sentence delivered for the crime of torture) the new penal code does not include such a provision. Certainly, civil servants could be suspended from duty as a disciplinary punishment, but again no such case was reported since June 2005.

Therefore, it must be suspected that the increased sentences for torture are not really a deterrent. In this connection, too, it should be noted that no case of a penalty for torture after 1 June 2005 reached the public.⁴ The clear message of this ongoing policy of impunity for the security forces is that they can turn back to their "old routine" and will go unpunished (if not, as it was in the past, be awarded for it).

Before drawing further conclusions, we should look at recent reports of national organizations of civil society, in particular human rights organizations. They are much closer to the current reality in Turkey than international bodies that have a high degree of bureaucracy and follow certain diplomatic rules. For the first six months of 2007 the Human Rights Association (HRA) counted 384 cases of torture and ill-treatment in the country, 51 of them in the prisons.

The Diyarbakir branch of the HRA that makes separate counts for the "region"⁵ stated on 3 July 2007 that 183 people had complained to them about torture or ill-treatment during the first six months of the year. During the same period of 2006 the number of complaints had been 293.⁶

The Human Rights Foundation of Turkey (HRFT) is running five centres in Turkey (Ankara, Istanbul, Izmir, Adana and Diyarbakir) to which victims of torture can apply for treatment free of charge. In 2006 a total of 337 people asked for treatment, 222 of which complained about torture or ill-treatment during the same year. In 2005 a total of 692 people had applied for treatment including a large number of people who had been released from prison that year but complained about ill-treatment in the past. Only 193 of them complained of torture in 2005.

For the first six months of 2007 the figures were: 266 applications including 172 complaints of ill-treatment during that year. On 7 November 2007 the Independent Communication Network (BIA) cited the President of the HRFT, Yavuz Önen, when he criticized the report of the European Commission on progress achieved in Turkey between October 2006 and October 2007. Önen said that the number of complaints to the HRFT had risen to 385 (during the first eight months) and 267 of these complaints referred to incidents in 2007. That was already more than during the whole year 2006. Önen added that the torture methods had become harsh and said that recent cases had required treatment for broken bones and damaged organs.

In a press statement of 12 April 2007 the representation of the HRFT in Izmir made the following remarks: "17 persons applied to HRFT Izmir Representation between 1 March and 7 April on the allegations that they were tortured in custody. 10 of them were detained for political activities and 7 of them were detained for ordinary crimes... The examinations of the (political) applicants at HRFT Treatment and Rehabilitation Centre in Izmir exposed following findings:

"Shoulder of one applicant was dislocated; Nose and teeth of one applicant were broken, teeth enamels were damaged; Stitch scars on the heads of three applicant related to trauma, laceration, abrasion; Four ribs of one applicant were injured, and fracture of two vertebras; One applicant's one rib, foot, bones on the back side of the ribs were injured; For all applicants ecchimosis, edema and soft tissue injury were determined.

"4 applicants were detained in connection with ordinary crimes. One of the applicants went to the police station for a complaint, but he was heavily beaten there. The relatives of the victim were also detained when they came to the station to ask the condition of their relative. They were also subjected to similar treatment. Following findings were registered during the examination of the applicants:

"Intracapsular bleeding of spleen of one applicant; Cervical vertebrae of one applicant was injured due to trauma, fracure of face bones were determined, lungs were bleedings and pleural effusion was determined; For all applicants edema and soft tissue injury were determined; For all applicants psychological symptoms were determined related to trauma.

"...recent incidents and developments creates the environment that we would face human rights violations, violence and torture as we did in the past. We also worry that there may be violations of the right to assembly during the democratic, peaceful Labour Day demonstrations."

In another press statement of 22 June 2007 the HRFT pointed at the sudden increase of deaths in custody shortly after the revision of the Law on Duties and Competences of the Police. In just two weeks three deaths in detention had been reported from Canakkale, Izmir and Istanbul. The deaths in Canakkale and Izmir had officially been termed "suicide" but for the death of Mustafa Kükce even photographs existed showing the traces of torture inflicted on him at Dudullu and Acarlar Police Station (Istanbul) on 14 June 2007 before he was arrested and taken to Ümraniye Prison, where he died the next day.

The HRA and the HRFT are still speaking of systematic torture in Turkey. They rely on the definition that the Office of the High Commissioner for Human Rights made in 1993.⁷ Paragraph 39 stated "The Committee [against Torture] considers that torture is practised systematically when it is apparent that the torture cases reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question. Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration. Inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice."

The HRA and the HRFT hold that the "habit" of the police and gendarmerie in Turkey towards applying torture has not changed, its use is widespread (the statistics always cover complaints from many provinces) and it is deliberate in nature.

So far the only international body that seems to be aware of the worsening situation was the human rights sub-commission to the European Parliament. Apparently only the Turkish press reported on a press conference in Ankara on 5 December 2007, where Hélène Flautre, chair of the commission, said after talks with officials and human rights groups that they had received intelligence information that torture had reached a dangerous level. It was widespread and there were many allegations that complaints remained unpunished.⁸

The above cited material indicates that incidents of torture decreased until 2005, possibly in a climate of legal reforms that "impressed" the security forces in that they, too, had to change their behaviour according to European standards. However, positive amendments in law were not only not implemented, but followed by backward steps that encouraged public officials to act as before. Accordingly there has been an increase of allegations of torture in 2006 and 2007, accompanied by traces of physical abuse that had become unusual.⁹

Prepared in December 2007

FOOTNOTES