Amnesty International
Aug 1 2005
40272005?open&of=ENG-TUR
Turkey
Memorandum on AI’s recommendations to the government to address human
rights violations
INTRODUCTION
Since the government has come to power in 2003, Amnesty International
has welcomed the numerous steps that it has taken in order to improve
human rights standards in Turkey. The organization is nevertheless
concerned about continuing patterns of serious human rights
violations.
Amnesty International considers that there has in 2005 been a slowing
of the reform process and a failure to build upon previous
achievements. While there have been important initiatives in terms of
legal change and training for state officials, there is still a
crucial lack of mechanisms and institutions that will effectively
monitor human rights standards and investigate individual violations
in Turkey. Amnesty International considers that, even taking into
account the reforms undertaken by the government, people who have
been subjected to serious human rights violations do not have any
grounds to believe that the courts or authorities will be able to
adequately investigate their case and bring those suspected of being
responsible to justice. Most obviously – and in clear contradiction
of the government’s declared “zero-tolerance for torture” policy –
the response by the authorities to reports of incidents of torture
and ill-treatment and other serious human rights violations
perpetrated by members of the security forces has been inadequate.
Amnesty International therefore considers that further action is
needed to address the organization’s continued concerns and urges the
government to take steps in accordance with the recommendations
below.
1. THE NEED FOR GREATER CONSULTATION WITH CIVIL SOCIETY
Amnesty International has previously written to the government in
detail regarding the new laws that entered into force on 1 June
including the Turkish Penal Code (TPC) and Criminal Procedure Code
(CPC). These laws contained many positive aspects – most obviously in
connection to provisions that should, if implemented, significantly
improve the level of protection from violence for women in Turkey.
One reason for this positive reform was the fact that the draft of
the law was consulted upon with women’s organizations and many of
their recommendations were taken into account.
However, the law also includes provisions that appear to introduce
unnecessary restrictions to fundamental rights. Amnesty International
welcomed the decision by the government to delay the entry into force
of the TPC from 1 April to 1 June 2005 in order to address some of
the objections of journalists’ groups to some of these restrictions.
Amnesty International wrote to the government in April outlining its
concerns about the draft and again once it had seen the proposed
changes. However, the final changes to the TPC offered only the most
minor of improvements, mainly the removal of possible increased
sentences for certain crimes where carried out by the press. Amnesty
International believes that provisions of the new TPC may be used to
unnecessarily restrict the right to freedom of expression.
In this connection, and in the light of the positive results obtained
through sincere consultation with women’s organization, Amnesty
International notes complaints from human rights organizations and
professional bodies such as the Press Council that their views on the
draft legislation were not sufficiently sought or taken into account.
The UN Special Representative on Human Rights Defenders, Hina Jilani
observes in her report of her October 2004 mission to Turkey that:
…Nearly all human rights defenders, however, expressed disappointment
at not having been consulted about the reform packages. Overall, they
feel that so far, consultation initiatives have only been formal and
their input not reflected. Consultation needs to be wider and better
conducted to allow for a true dialogue with civil society.(1)
Amnesty International notes the counter response of the government
that:
The recent comprehensive legislative changes as well as
administrative measures have been crafted through a real
collaborative process, taking the views of the civil society and
academic circles into consideration. A solid case in point is the new
Penal Code, the drafting process of which was marked with
transparency. The Code was a result of a comprehensive drafting
process in which the Council of Europe as well as local and
international NGOs were involved. (2)
The response asserts that the government achieved consultation and
collaboration with civil society through bodies such as the Human
Rights Advisory Board as well as the District and Provincial Human
Rights Boards. Given the public and acrimonious breakdown in
relations between the government and the members of the Human Rights
Advisory Board(3) and the well-documented shortcomings of the
District and Provincial Human Rights Boards (see below), such a
consultation would be clearly deficient. The complaints of NGOs –
including human rights organizations – that their views were not
taken into account and the flaws in the legislation when it finally
entered into force all strongly indicate that the drafting and
consultation process was not comprehensive enough. Amnesty
International recognizes the pressure placed upon the government by
the European Union to pass some of these new laws as quickly as
possible but would strongly urge that further draft legislative
reforms are scrutinized thoroughly in the light of Turkey’s
commitments to international law and standards and fully consulted
upon with civil society.
2. THE URGENT NEED FOR INDEPENDENT, RESOURCED AND EFFECTIVE NATIONAL
HUMAN RIGHTS INSTITUTIONS
Turkey has an urgent need for effective and independent National
Human Rights Institutions which will promote and protect human
rights, including through effective investigation of patterns of
human rights concerns and individuals’ complaints about human rights
violations they have suffered, and through making recommendations
accordingly.
Present examples of bodies which it is claimed fulfil the function of
a National Human Rights Institution include the above-mentioned and
ill-fated Human Rights Advisory Board as well as the Provincial and
Regional Human Rights Boards attached to the Prime Ministry. The
latter bodies have been well-publicized by the government. However,
Amnesty International has serious concerns about the operations of
these Boards – concerns which are shared by Turkish and international
human rights non-governmental organizations(4). These institutions
are not adequate mechanisms to address this need and are not in line
with the Paris Principles (see below).
While the Provincial and District Human Rights Boards are involved in
positive initiatives in terms of raising awareness of human rights at
a local level, their inadequacies are inevitable given their lack of
independence, composition, limited powers and apparent reluctance to
investigate adequately serious reports of human rights violations. No
amount of money given for training to the Boards will resolve this
issue if these other factors are not resolved.
The UN Special Representative on Human Rights Defenders has commented
extensively on the shortcomings of these Boards, recommending that:
…the Government review the effectiveness and functionality of human
rights boards and constructively include human rights NGOs in the
assessment of the most effective mechanisms to address human rights
violations at the local level”.(5)
Amnesty International therefore notes with satisfaction reports that
the government is planning to re-examine this system and to develop
legislation on National Human Rights Institutions such as a Human
Rights Ombudsperson and Human Rights Commissions. Amnesty
International considers that such Institutions must conform to the UN
Principles relating to the status of national institutions (known as
the Paris Principles) otherwise they will be similarly ineffective.
The Paris Principles state that, in order to fulfil their vital
functions, national human rights institutions should have precisely
defined powers to investigate on their own initiative situations and
cases of reported human rights violations. Individual complainants,
their lawyers, relatives or others acting on their behalf, including
non-governmental organizations, should also be able to bring their
complaints directly to such bodies. National Human Rights
Institutions should undertake a prompt, thorough, effective and
impartial investigation into human rights violations and not be
hampered or otherwise inhibited by following the conclusions of a
previous investigation. An important part of the work of a National
Human Rights Institution should also be to collect and compile
statistics and information in order to obtain an accurate picture of
human rights violations in the country. Statistics should detail the
nature of all complaints, how and when they were investigated, the
findings, and follow-up to recommendations. The Paris Principles also
state the importance of independence for the National Human Rights
Institutions and of the pluralism of their membership.
Amnesty International would like to draw attention to the attached
report Amnesty Internationals recommendations on national human
rights institutions (AI Index: IOR 40/007/2001) which outlines
guidelines based on the organization’s experiences with dealing with
such institutions in other countries and offers recommendations of
best practice so that they may be established with the requisite
ingredients for effective and independent functioning. Amnesty
International urges that both the Paris Principles as well as these
recommendations are taken into account when the legislation is
drafted in order to ensure that the National Human Rights
Institutions are effective in practice.
3. CONCERNS ABOUT CONTINUED TORTURE AND ILL-TREATMENT AND IMPUNITY
Amnesty International has been greatly concerned about the issue of
torture and ill-treatment perpetrated by members of the security
forces in Turkey for many years and sees this area as the testing
ground for the reforms undertaken by the government. No issue more
clearly illustrates the uneven impact of the reforms, the problems in
their implementation and the need for further steps in order to
eliminate the violations.
Amnesty International has warmly welcomed the “zero tolerance for
torture” policy articulated by the government and the associated
improvements made to detention and other regulations in order to
improve the protection from torture and ill-treatment for detainees
in police and gendarmerie custody. The organization is also heartened
by the steps taken by the government in response to the
recommendations of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) to
communicate to state officials the prohibition of torture and
ill-treatment, such as the circulars issued by the Ministry of the
Interior to police stations urging them to respect detainee’s rights.
The CPT in the report of its September 2003 visit to Turkey concluded
that:
The legislative and regulatory framework necessary to combat
effectively torture and other forms of ill-treatment by law
enforcement officials has been put in place; the challenge now is to
make sure that all of the provisions concerned are given full effect
in practice.
Unfortunately, this is a challenge which the government still appears
to be failing to meet. Torture and ill-treatment continues to be a
widespread problem in Turkey. Amnesty International has raised its
concerns regarding the statistics collected by the Human Rights
Boards attached to the Prime Ministry but even these confirm that
torture and ill-treatment continue to be a serious and widespread
problem in Turkey. According to these figures, 158 individuals
complained of torture and ill-treatment to the Boards in 2004. This
was the highest figure for any type of violation collected by the
Boards in that year. Figures collected by independent
non-governmental organizations also give a disturbing picture related
to continued problems in this area. For example, the Human Rights
Association (IHD) stated that it had documented 843 reports of
torture and ill-treatment in 2004.
The repeated incidence of torture and ill-treatment in Turkey –
despite the government’s programme – shows clearly that further
measures are necessary in order to eradicate torture by state agents.
The eradication of torture should be seen as the achievement of
conditions in which torture and ill-treatment are extremely unlikely;
they will occur, if at all, only in isolated cases; and if they do
occur, there will be a reaction from the authorities which prevents
the perpetrator from repeating the act, which satisfies conditions of
justice and reparation, and which condemns the act in such a way that
other public officials will be deterred from similar conduct. At the
moment, this is far from the case in Turkey. The “zero tolerance for
torture” policy appears to be limited to legislative changes (such as
increasing the punishment for individuals convicted of torture or
allowing access of detainees to lawyers) and training given to police
officers.
Amnesty International believes that an effective policy of combating
torture would require the following:
Legislative and other safeguards including an independent body that
will carry out regular and ad hoc unannounced visits to places of
detention;
Ratification of the Optional Protocol to the Convention against
Torture;
The introduction of video and audio recording of all interviews of
suspects in custody;
Meaningful training of police, gendarmerie, judges and prosecutors
regarding the legal changes and international standards, which
comprises more than the issuing of circulars and directives;
Clear guidelines to law enforcement officials – including a Code of
Ethics – that would cover their responsibilities during interrogation
and detention;
The existence of clear sanctions for any law enforcement officials
who may break such guidelines;
Immediate and urgent impartial investigations into any allegations of
violations of human rights by members of the security forces in
accordance with the UN Principles on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
The development of an effective complaints mechanism able to carry
out investigations into human rights violations;
The urgent opening of criminal and disciplinary proceedings in
relation to such violations with appropriate sanctions against anyone
found responsible for these;
The examination of the responsibility of commanding officers where
law enforcement officials are alleged to have perpetrated serious
human rights violations;
The suspension from duty of officers under investigation for torture
and serious ill-treatment and dismissal if found guilty;
Compensation for and rehabilitation of the victims.
4. THE NEED FOR EFFECTIVE INVESTIGATIONS
One of the most serious obstacles to the successful implementation of
the “zero tolerance” policy is the failure to adequately investigate
allegations of torture and ill-treatment. Amnesty International
believes that most investigations carried out by prosecutors into
complaints or allegations of serious human rights violations in
Turkey are deficient and, when they do occur, criminal proceedings
brought against those accused of perpetrating such acts are often
flawed. The result appears to be an apparently overwhelming climate
of impunity for state officials that perpetrate human rights
violations. Amnesty International considers that the general lack of
thoroughness of investigations by prosecutors demonstrates a lack of
impartiality.
Amnesty International notes the circular issued by the Ministry of
Justice on 20 October 2003 which gave instructions to prosecutors to
carry out investigations themselves and to give priority to such
investigations. Unfortunately, this does not appear to have had any
serious effect on the quality of investigations. Amnesty
International is struck by the high proportion of complaints of
torture and ill-treatment in which prosecutors have decided to issue
“takýpsýzlýk kararlarý” (decisions not to prosecute) after an
apparently cursory and brief investigation, which is usually
apparently restricted to an examination of the medical report of the
detainee. The CPT has raised its concerns about the use of medical
reports on their own and has made recommendations to address this
shortcoming (see below).
Amnesty International considers that the failure of prosecutors to
carry out investigations in accordance with the UN Principles on the
Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is one of the main
contributing factors towards impunity in Turkey. It is especially
concerning considering that many proposals designed to reduce torture
and ill-treatment – such as the 20 October 2003 circular above or the
introduction of a “judicial police” under the authority of the
prosecutor responsible for gathering evidence – envisage
concentrating greater power in the hands of state prosecutors. Given
state prosecutors’ failure to adequately investigate the incidents of
torture and ill-treatment, the often collegiate way that state
prosecutors have been seen to work together with security forces,
their apparent resistance to reforms in other areas, such as freedom
of expression (see below) as well as the apparent lack of
accountability of prosecutors,(6) Amnesty International believes that
steps should be taken to ensure that investigations into serious
human rights violations by security forces such as torture,
extrajudicial executions, ill-treatment and deaths in custody are
independent and impartial.
This could be achieved by developing an independent mechanism such as
a Police Complaints Commission that would investigate any allegations
of torture or ill-treatment perpetrated by members of the police
forces. Such a body would have to be well resourced in order to
investigate such a large number of complaints and those responsible
for carrying out the investigations should be independent from the
security forces. After carrying out the initial investigation and
gathering evidence such a body would refer the file to the prosecutor
with a recommendation regarding further action.
Since the ultimate decision regarding prosecution would be in the
hands of the prosecutor and given the concerns regarding the quality
of their investigation, Amnesty International would also urge that
priority is given to training prosecutors regarding the reforms and
especially the standards of investigation into allegations of torture
and ill-treatment in accordance with the UN Principles on the
Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The organization also
urges the government to implement the recommendations below related
to standards of investigations which have been selected from a number
of international standards in the light of specific shortcomings
regarding investigations in Turkey.
Investigations regardless of whether or not there are complaints
It is essential that, even in the absence of an express complaint, an
investigation should be undertaken wherever there is reasonable
ground to believe that torture or ill-treatment might have occurred
according to Article 12 of the UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment to which
Turkey is a state party. The UN Committee against Torture (CAT) has
stated that “…the Convention does not require the formal submission
of a complaint of torture. It is sufficient for torture only to have
been alleged by the victim for the state to be under an obligation
promptly and impartially to examine the allegation”(7). The CAT has
also been very clear that information supplied by non-governmental
organizations should be grounds for opening an investigation(8).
Investigations should be comprehensive
Amnesty International would like to draw attention to the following
observation and recommendation from the CPT made in its report on its
September 2003 visit to Turkey which it considers to be absolutely
key to improving investigations by prosecutors:
As regards more particularly public prosecutors and judges, they
should be made fully aware not only of the importance of medical
reports in the context of combating ill-treatment but also of the
limitations of such reports. From the information gathered during the
September 2003 visit, it is clear that there is still a tendency for
routine medical reports drawn up at the end of police/gendarmerie
custody which record “Darp cebir izine rastlanmadý” (no signs of
blows or violence found) to be treated as a guarantee that
ill-treatment has not occurred. Nothing could be further from the
truth.
Even assuming that the examination on which such a report is based
was carried out under satisfactory conditions (which at present is
still far from always being the case), it is a well recognised
forensic medical fact that the absence of physical marks does not
necessarily mean that the person examined has not been ill-treated.
Many of the methods of ill-treatment known to have been used in
Turkey do not leave visible physical marks, or will not if carried
out expertly. It follows that in order to make an accurate assessment
of the veracity of allegations of ill-treatment, it may well be
necessary to look beyond the medical reports drawn up during
police/gendarmerie custody and to take evidence from all persons
concerned and arrange in good time for on-site inspections and/or
specialist medical examinations [Amnesty International’s emphasis].
Amnesty International has encountered numerous examples of situations
where the testimony of the security officials in connection with an
incident in which they are alleged to have perpetrated a serious
human rights violation – especially in relation to killings in
disputed circumstances – have become the basis for the prosecutor’s
indictment while other evidence such as the statements of witnesses
appear to have been ignored. This often means that security officials
are charged with a lesser offence instead of the crime with which
they had been accused (for example, “ill-treatment” rather than
“torture”) and, it has been alleged, is designed to damage the
chances of a successful prosecution.
Chain of command
It is essential that investigations – and any resulting court cases –
examine the responsibility of commanding officers where members of
the security forces are alleged to have perpetrated serious human
rights violations. At the moment, there appears to be a reluctance to
indict senior officials. The Special Rapporteur on torture has
stated: “If torture has occurred in an official place of detention,
the official in charge of that place should be disciplined or
punished.”(9) Establishment of a chain of command is also
particularly important where violations are alleged to have been
perpetrated outside of official detention settings. The principle of
chain-of-command control is set out in the United Nations (UN)
Declaration on the Protection of all Persons from Enforced
Disappearance: “Each state shall … ensure strict supervision,
including a clear chain of command, of all law enforcement officials
responsible for apprehension, arrests, detentions, custody, transfers
and imprisonment, and of other officials authorized by law to use
force and firearms” (Article 12/2).
Suspension and dismissal
Amnesty International is particularly concerned that members of the
security forces have remained on duty after they have been accused of
serious human rights violations and even where cases have been opened
against them for torture or serious ill-treatment. This not only is a
problem in that it allows for the possibility that an individual or
group of police officers may offend again, but also it may result in
intimidation of the witnesses and complainants. The UN Special
Rapporteur on torture has stated that “when a detainee or relative or
lawyer lodges a torture complaint, an inquiry should always take
place and, unless the allegation is manifestly ill-founded, public
officials involved should be suspended from their duties pending the
outcome of the investigation and any subsequent legal or disciplinary
proceedings.”(10) If found guilty, they should be dismissed from the
service and not merely suspended. Amnesty International is concerned
that security officials who are being investigated or prosecuted for
serious human rights violations, including “disappearances”,
extrajudicial executions and torture and serious ill-treatment, have
often been posted to other assignments on active service or even
promoted. Police or gendarmerie officers under investigation or being
prosecuted for such crimes should not receive rewards such as
promotions while they are under investigation, awaiting trial or
during the trial lest it appear that the authorities condone their
acts. Such a step would appear entirely consistent with the “zero
tolerance for torture” policy.
Use of “counter-charges”
Amnesty International is especially concerned about the use of
“counter-charges” against individuals complaining of ill-treatment
perpetrated by security officials during apprehension and during
policing of demonstrations. Amnesty International has documented
cases where, subsequent to a complaint of ill-treatment from a
detained person, prosecutors have hastily ruled that there is no
basis for a prosecution of the security officials – despite medical
reports that corroborate allegations of ill-treatment – and instead
charged the complainant with “resisting a public official by force
and violence or threats” or with violation of Law No 2911 on Meetings
and Demonstrations. The government should take effective measures to
ensure that people who bring complaints of ill-treatment against
police officers are protected against intimidation. Such measures
should include the careful scrutiny by the prosecuting authorities of
police complaints that detainees have resisted state authority,
particularly those which are filed only after complaints of police
ill-treatment are brought. Where complaints are filed simultaneously,
the complaint against the alleged victim should be suspended until
the result of the investigation into the behaviour of the police
officers concerned has been completed.
Demonstrations
This point is particularly important regarding the policing of
demonstrations. Amnesty International welcomed the opening of an
investigation by the Ministry of the Interior into the use of
disproportionate force by police officers on demonstrators in
Sarachane and Bayezit on 6 March 2005 and the subsequent disciplinary
sanctions against six police officers and two commanding officers.
While such a response is welcome, the organization has repeatedly
raised the issue of policing of demonstrations with the government
and is aware of many such similar incidents that have taken place in
the last year. The only factor that seemed to make this incident
extraordinary was that it took place just before the EU Ministerial
Troika in Ankara and the footage of police brutality and the
inadequacy of policing practices were broadcast on television screens
internationally. Amnesty International insists that all such
incidents are investigated fully and asks that police officers should
receive further training in the area of policing of demonstrations.
In addition, the organization is greatly concerned at reports that
identification of individual police officers involved in the above
incidents was made difficult since they were wearing gas masks.
Amnesty International urges that police officers should be clearly
identifiable and that their badge numbers should never be obscured
while they carry out their duties.
Amnesty International reminds the Turkish government of its
responsibilities under international law, including the UN Basic
Principles on the Use of Force and Firearms by Law Enforcement
Officials which states in Principles 7 and 8: “Governments shall
ensure that arbitrary or abusive use of force and firearms by law
enforcement officials is punished as a criminal offence under their
law”, and “Exceptional circumstances such as internal political
instability or any other public emergency may not be invoked to
justify any departure from these basic principles.” This last
observation is key in the light of reported statements by members of
the government that such behaviour by police officers was in some way
justified as the demonstration “did not have permission”.
Use of evidence alleged to have been extracted under torture
Regarding use of evidence alleged to have been extracted as a result
of torture or ill-treatment, Amnesty International would like to draw
attention to Article 15 of the UN Convention against Torture which
obliges states parties to “ensure that any statement which is
established to have been made as a result of torture should not be
invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made”. The UN
Special Rapporteur on torture has further stated that “where
allegations of torture or other forms of ill-treatment are raised by
a defendant during trial, the burden of proof should shift to the
prosecution to prove beyond reasonable doubt that the confession was
not obtained by unlawful means, including torture and similar
ill-treatment.” Amnesty International welcomes Article 148 of the
Criminal Procedure Code that prohibits the use of evidence of
statements obtained under torture and ill-treatment as well as the
recent landmark judgment by the Court of Appeals in the Huseyin
Goklerinoðlu case which overturned his conviction on the basis that
it was extracted under torture. The organization nevertheless
considers that a body should be established to review previous
convictions based on evidence alleged to have been extracted under
torture and, where appropriate, to arrange for prompt retrial.
5. PROBLEMS OF JUDICIAL PROCEEDINGS
Unfortunately, even where trials are initiated against individual
members of the security forces accused of perpetrating serious human
rights violations, courts appear to be reluctant to proceed swiftly
and to punish defendants with appropriate sanctions if they are found
guilty or otherwise are dropped on technical grounds. Amnesty
International therefore urges that the following recurring problems
in connection with such judicial proceedings be urgently addressed.
Statute of limitations
The new TPC has, through its introduction of heavier penalties for
the crimes of torture, further extended the statute of limitations in
such crimes. However, Amnesty International takes little courage from
this development given the excessive delays in trials opened as a
result of such crimes and the dropping of a large proportion of cases
because they have reached the statute of limitations. In some
circumstances it appears that the lawyers of the defendants have
attempted to delay legal proceedings as long as possible in a
frequently successful gambit designed to ensure that charges against
their clients are dropped through the case reaching the statute of
limitations. Given this situation,
Amnesty International draws attention to the fact that the status of
torture as a peremptory norm of general international law suggests
that there should be no statute of limitations for the crime of
torture. Amnesty International urges the government to address this
issue in law immediately.
Delays in judicial proceedings
Amnesty International further draws attention to the recommendation
of the UN Special Rapporteur on torture after his visit to Turkey
that “…prosecutors and judiciary should speed up the trials and
appeals of public officials indicted for torture and ill-treatment”.
While Law No 4963 (the so-called “seventh harmonization package”)
which came into effect in 7 August 2003 introduced an additional
article to the previous CPC that stipulated that trials opened as a
result of torture or ill-treatment cannot be postponed more than 30
days and should be heard during judicial holidays, no such provision
has been carried over into the new CPC. The organization notes the
possibility of serious delays in trials related to torture and
ill-treatment(11). The organization considers that there is a need to
expedite trials by introducing regulatory time frames for the
provision of evidence – such as medical reports from the Forensic
Institute – by improving the mechanisms for ensuring more thorough
pre-trial preparation of cases by the relevant authorities and by
introducing the practice of conducting trial hearings on consecutive
days until a verdict is reached, or at least at much closer intervals
than is the current practice.
Use of medical reports in trials and the role of the Forensic Medical
Institute
Some trials of torturers – such as that before Iskenderun Heavy Penal
Court in which four police officers were accused of the torture of
Nazime Ceren Salmanoðlu and Fatma Denis Polattaþ in 1999 – have
highlighted problems in the use of independent medical reports as
corroboration and drawn attention to fundamental problems in the
structure of the Forensic Medical Institute, which is responsible for
providing reports that are used in the Turkish domestic courts.(12)
Amnesty International considers that these shortcomings need to be
addressed immediately by the government. In line with the
recommendation of the CPT in relation to the role of medical reports
in proving whether or not torture has taken place, Amnesty
International would urge that court decisions as to whether or not
torture took place should also not be based on (possibly deficient)
medical reports but should “look beyond the medical reports drawn up
during police/gendarmerie custody and to take evidence from all
persons concerned and arrange in good time for on-site inspections
and/or specialist medical examinations”.
Amnesty International is concerned at the lack of independence of the
Forensic Medical Institute and considers that this body must be made
independent both functionally and nominally of the Justice Ministry.
The UN Special Rapporteur on torture has drawn attention to this
fact, stating that: “…the forensic medical services should be under
judicial or other independent authority, not under the same
governmental authority as the police and the penitentiary
system”.(13) At the moment this is not the case. Amnesty
International is additionally concerned by the staffing of the
Forensic Medical Institute. For example, Dr Nur Birgen, the
individual who was appointed to head the Third Specialization
Committee of the Forensic Medical Institute, which is the committee
responsible for medical assessments in cases where torture is
alleged, is an individual who has received several disciplinary
sanctions from the Turkish Medical Association – one of which was for
issuing a medical report which covered up signs of torture. This key
appointment does not promote confidence in the government’s professed
commitment to demonstrate “zero tolerance to torture”.
Amnesty International is additionally concerned at the apparent
reluctance of courts to accept as evidence medical and psychiatric
reports from sources other than the Forensic Medical Institute. In
some circumstances, this has led to long and unnecessary delays as
courts wait for the confirmation from the Forensic Medical Institute
for corroboration of independent, expert reports. Given the issues
cited above, related to the Institute’s non-independent status as
well as its apparently low capacity, the government should certainly
be taking urgent steps to promote the acceptance as evidence by
courts of medical and psychiatric reports from high quality
university research and teaching hospitals, and where necessary,
other accredited organizations. The UN Special Rapporteur on torture
has stated that: “Public forensic medical services should not have a
monopoly of expert forensic evidence for judicial purposes.” The CPT
has – crucially – recommended that specific legal provisions should
be adopted which would ensure that “a person taken into police
custody has the right to be examined, if he so wishes, by a doctor of
his own choice, in addition to any medical examination carried out by
a doctor called by the police authorities”.
Sentencing
Amnesty International is also concerned that even when police
officers accused of ill-treatment have been convicted by a court,
punishments have not always been commensurate with the gravity of the
crime. Relatively nominal penalties, which have often been further
reduced, have been imposed on police officers whose victims suffered
serious injury. Reasons for these reductions in sentences have
included the “good conduct” of the defendant in court. Only very
rarely do police officers, who are convicted of human rights abuses,
receive custodial sentences. If unlawful acts of police violence
against detainees are to be deterred, the seriousness of such acts
must be reflected in both the criminal and disciplinary measures
taken against the offending police officers. The government has
previously taken steps to address this concern by introducing a
regulation which stipulates that sentences handed down for crimes of
torture and ill-treatment may not be converted to a fine or
suspended. While this measure was not completely successful in
addressing this problem, it is concerning to see that this does not
appear to have been carried over into the new CPC. The UN Special
Rapporteur on torture has previously underscored the importance of
appropriate sentencing, stating: “Sentences should be commensurate
with the gravity of the crime.”
Reparations
Finally, Amnesty International would like to draw attention to
Article 14 of the UN Convention against Torture under which victims
of torture and their dependants are entitled to fair and adequate
redress from the state. This should include appropriate medical and
psychological care, financial compensation and rehabilitation.
Amnesty International would be glad to receive information as to what
provisions the government has introduced to meet this responsibility.
6. THE NEED FOR GREATER SCRUTINY OF PLACES OF DETENTION
The UN Special Rapporteur on torture has stated that “Regular
inspection of places of detention, especially when carried out as
part of a system of periodic visits, constitutes one of the most
effective preventive measures against torture.”(14)
Amnesty International welcomes recent steps by the government to
allow for greater inspection of places of detention. Article 92 of
the new CPC requires State Prosecutors to carry out inspections of
places of detention – Amnesty International considers such
inspections could be an effective and important measure against
torture and ill-treatment if the inspections are carried out on both
a regular and an ad hoc basis and the subsequent findings and
recommendations made public.
Both the Parliamentary Human Rights Commission and the Provincial and
Regional Human Rights Boards have both reportedly carried out recent
visits to places of detention. While such extra levels of scrutiny
are welcome, these bodies are not demonstrably independent or
necessarily possessed of the necessary expertise in evaluating places
of detention.
At the moment, the only demonstrably independent body which enjoys
the right to carry out visits unannounced in Turkey is the European
Committee for the Prevention for Torture (CPT) whose findings and
recommendations have generated significant change in Turkey regarding
detention regulations and an apparently commensurate improvement in
patterns of torture and ill-treatment. Amnesty International urges
that this right should be granted to other institutions and draws
attention to the recommendation of the UN Special Rapporteur on
torture that:
…official bodies should be set up to carry out inspections, such
teams being composed of members of the judiciary, law enforcement
officials, defence lawyers and physicians, as well as independent
experts and other representatives of civil society. Ombudsmen and
national or human rights institutions should be granted access to all
places of detention with a view to monitoring the conditions of
detention.
Amnesty International therefore calls on the government to sign and
ratify the Optional Protocol to the Convention against Torture which
would mandate the establishment of a system of regular visits
undertaken by independent international and national bodies to places
where people are deprived of their liberty in order to prevent
torture and ill-treatment. The Protocol would require the
maintenance, designation or establishment of one or several
independent bodies at a national level which would carry out
monitoring of places of detention. This could be a function of one of
the National Human Rights Institutions when they are created. Amnesty
International would like to draw attention to the attached report
Preventing Torture at Home – A Guide to the Establishment of National
Preventative Mechanisms (AI Index: IOR 51/004/2004) which offers
guidelines on the structure, powers and operations of such bodies.
However, scrutiny of places of detention should not be limited to
official bodies but should be opened to monitoring by
non-governmental organizations. As the UN Special Rapporteur on
torture has stated:
Independent non-governmental organizations should be authorized to
have full access to all places of detention, including police
lock-ups, pre-trial detention centres, security service premises,
administrative detention areas and prisons, with a view to monitoring
the treatment of persons and their conditions of detention.
This view is reinforced by the statement of the UN Special
Representative on Human Rights Defenders on Turkey in which she makes
clear that “…access to information and to places of detention and
prisons must be a right which must be exercised independently by
human rights organizations”. Amnesty International considers that the
granting of such powers to groups like local Bar Associations and
Medical Chambers would be an important step towards improving
scrutiny of places of detention and therefore eradicating torture and
ill-treatment. Certainly, development of effective monitoring
mechanisms would be mandated by the policy of “zero tolerance for
torture”.
7. FREEDOM OF EXPRESSION
Amnesty International has previously welcomed some of the changes
made to the Turkish Constitution and legislation since 2001 in order
to improve standards related to the right to freedom of expression.
Amnesty International considers that the amendment to Article 90 of
the Constitution by the government - which gives priority to
international treaties on fundamental rights and freedoms to which
Turkey is a state party over Turkish domestic legislation – is a key
development.
However, the organization is nevertheless still aware of numerous
cases in which individuals are being prosecuted or have received
monetary fines or custodial sentences for the peaceful expression of
non-violent opinion. While courts have handed down some landmark
judgments which have cited international standards, there are also
several examples of important cases where the decisions of the Court
of Appeals appear to be in contravention of international
standards.(15) Such problems seem to derive from an apparent
resistance by prosecutors and members of the judiciary to the
reforms. Indeed the UN Special Representative on Human Rights
Defenders has drawn attention to the fact that “prosecutors have not
actively engaged in the implementation of the reform” and that “Some
judges have also shown reluctance to implement the reforms”
concluding that attitudes on the part of “some within the judiciary
is hampering concrete change at the local level”. Amnesty
International therefore fully supports the call of the UN Special
Representative on Human Rights Defenders for “monitoring of the
implementation of the new laws by the judiciary at the local level,
in particular with regard to cases involving freedom of expression”.
However, the organization notes that the government has previously
required that prosecutors receive permission from the Ministry of
Justice in order to open cases under the notorious Article 159 of the
previous TPC (which criminalizes “insults” to various state
entities). Despite such monitoring of cases by the Ministry of
Justice, cases in violation of international standards on free speech
continued to be opened under Article 159. Therefore, closer
monitoring which takes into account Turkey’s obligations under
international law need to be implemented. In this connection, steps
should be taken to implement Hina Jilani’s recommendation for
“increased training of the judiciary, security forces and
governorship on the aims and intents of the new laws”.
Constitutional restrictions on the right to freedom of expression
Apart from the failure to implement the new laws in relation to
freedom of expression, it is clear that the law in Turkey still
places unnecessary and abusive restrictions to this right. We
therefore urge the government to take steps to address these existing
legal and constitutional restrictions on the right to freedom of
expression as a priority.
Many of these aspects derive from provisions found in the
Constitution on the right to freedom of expression. Although
restrictions and prohibitions of violations of fundamental rights and
freedoms (Articles 13 and 14 of the Constitution) were reworded to a
large extent in 2001, numerous articles of the Turkish Constitution
still retain restrictions which are not compatible with Turkey’s
obligations under international law.(16) Amnesty International is
also concerned that the amendment of Article 26 in 2001 introduced
further restrictions to the exercise of the right to freedom of
expression: “…for the purposes of protecting national security,
public order and public safety, the basic characteristics of the
Republic and safeguarding the indivisible integrity of the State with
its territory and nation, preventing crime, punishing offenders,
withholding information duly classified as a state secret, protecting
the reputation and rights and private and family life of others, or
protecting professional secrets as prescribed by law, or ensuring the
proper functioning of the judiciary”. Such wording can be – and has
been in the past – used to penalize peaceful statements, for example,
on the Kurdish issue or the role of Islam in politics and society.
Amnesty International urges the Turkish authorities to ensure that
the restrictions in the Constitution do not go beyond the margins
allowed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR) to which Turkey is a state party.(17)
Problems with the new TPC
As stated above, Amnesty International considers that the new TPC
contains measures which may be significant obstacles to the full
enjoyment of the right to freedom of expression in Turkey and appear
to be a step back in the reform process. Some provisions – in the use
of which the European Court of Human Rights has found Turkey to have
been in breach of the ECHR – have apparently been carried over
directly from its predecessor. International human rights law on
freedom of expression, as set out in the International Covenant on
Civil and Political Rights and the ECHR as elaborated in the
jurisprudence of the European Court of Human Rights, provides that
any limitations on the right to freedom of expression must be
narrowly drawn and only such as are necessary in a democratic society
for respect of the rights or reputations of others, for the
protection of national security or of public order, or of public
health or morals, or for the prohibition of war propaganda and
advocacy of hatred that constitutes incitement to discrimination,
hostility or violence. The restrictions provided for in the new TPC
appear to be considerably broader than this and are not limited to
those instances which are demonstrably necessary on one of the
permissible grounds. As such, the law could be used to penalize
individuals exercising their human right to freedom of expression on
matters of political opinion.
For example, Section 3 of Part 4 of the new TPC entitled “Crimes
against signs of the state’s sovereignty and the honour of its
organs” (Articles 299 – 301) could be used to penalize individuals
who exercise their right to freedom of expression by expressing
political views. In particular, Amnesty International is disturbed
that this section of the new TPC criminalizes offences such as
“insulting” the President (Article 299), or “denigrating” the Turkish
flag or anything carrying its replica and the national anthem
(Article 300), Turkishness, the Republic, the Parliament, the
government, the judiciary, the military and security forces (Article
301). There is no clear reason provided why, as the law states, such
acts should be aggravated and provided with heavier sentences when
perpetrated abroad by a citizen of Turkey. Moreover, Section 3
carries over aspects of Article 159 of the previous TPC, which
criminalized insults against or denigration of various state
institutions. In the light of the way that this provision has been
used to unnecessarily restrict the right to freedom of expression,
Amnesty International has called for it to be repealed.
We recognize that Paragraph (4) of Article 301 states that “any
expression of thought which is made with the intention of criticism
does not constitute a crime”. However, Amnesty International recalls
that a similar amendment was made in August 2002 to this provision in
the previous TPC, under Article 159, yet this did not prevent
prosecutions of statements by individuals who had exercised their
right to freedom of expression. Amnesty International therefore urges
the government to repeal this section in order to bring the
legislation into line with international standards on freedom of
expression.
Some of the articles found within Section 4 of Part 4 of the new TPC
(Articles 302 – 308) entitled “Crimes against State Security” also
appear to be in contravention of Turkey’s obligations to comply with
human rights standards. Amnesty International views with particular
concern Article 305 which criminalizes “acts against the fundamental
national interest”, especially in the light of the written
explanation attached to the draft when the law passed through
Parliament. The explanation provided as examples of crimes such acts
as “making propaganda for the withdrawal of Turkish soldiers from
Cyprus or for the acceptance of a settlement in this issue
detrimental to Turkey… or, contrary to historical truths, that the
Armenians suffered a genocide after the First World War”. Amnesty
International considers that the imposition of a criminal penalty for
any such statements – unless they demonstrably amount to advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence – would be a clear breach of
international standards related to freedom of expression.
Amnesty International is additionally concerned by Section 5 of Part
3 of the new TPC entitled “Laws against the Public Order” (Articles
213 – 222). Amnesty International notes that Article 312 of the
previous TPC – which criminalized incitement of people to enmity on
the basis of social, regional, ethnic or religious difference – has
been carried over into the new TPC as Article 216. In the past, the
Turkish state has been found to have been in breach of the right to
freedom of expression by the European Court of Human Rights in its
use of this provision. While such legislation is necessary to
criminalize advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence, it
has rarely been used as such. In the past, peaceful statements
related to religious or minority rights have been prosecuted under
this Article – Amnesty International has repeatedly raised its
concerns about the use of this provision. Amnesty International urges
that particular care be paid in the use of this Article and supports
the recent recommendation of the European Commission on Racism and
Intolerance which urged the Turkish authorities “to continue their
efforts to ensure that Article 312 of the Criminal Code prohibiting
incitement to hatred is applied for the purpose of punishing racist
statements in compliance with the letter and spirit of this provision
[Article 312]”.
Furthermore, Amnesty International notes the concern articulated by
human rights organizations and press groups related to Article 220
(8) – which criminalizes the making of propaganda for criminal
organizations, as well as Article 226 – which criminalizes obscenity,
that these may be used to restrict the right to freedom of
expression. Article 318 which criminalizes “alienating the people
from the army” also appears to offer possibilities to restrict the
right to freedom of expression in a way not permitted by
international standards.
Paragraph 1 of Article 298 of the new TPC introduces sanctions
against individuals who may try to prevent prisoners from exercising
their full rights. While legislation protecting the rights of
prisoners is welcome, this provision is framed in such a way as to
suggest that the focus of the law is prisoners who, for example, may
engage in a boycott of a prison facility. Paragraphs 2 and 3 lay down
penalties for those who encourage or persuade prisoners to take part
in hunger strikes. Amnesty International is concerned that Article
298 may be used to curtail non-violent protests such as boycotts or
hunger strikes and thus may violate the right to freedom of
expression.
While some changes were made to the draft of the law after its entry
into force was delayed, these must be considered insufficient. Most
obviously, the possibility of aggravated sentences when the offences
are perpetrated through the press was removed in some crimes.
However, the problems in the law remained unaddressed. In at least
one instance, a change made the TPC even more restrictive. For
example, Article 305 of the draft, which criminalized “acts against
the fundamental national interest”, was altered to explicitly allow
for the prosecution of “foreigners” as well as Turkish citizens who
engage in such acts.
Amnesty International considers that legal and constitutional
guarantees for the right to freedom of expression must be further
strengthened so that they are compatible with international legal
provisions, such as those of Article 10 of the European Convention of
Human Rights. The European Court has interpreted restrictions to
Article 10 very narrowly. Amnesty International will closely monitor
the implementation of the new TPC but asks for further steps to be
taken to amend the law and constitution in order to fully ensure
freedom of expression in Turkey.
8. MINORITY RIGHTS AND DISCRIMINATION
Amnesty International continues to be concerned about restrictions on
the use of minority languages and calls for such obstacles to be
lifted immediately. In particular, Article 42 of the Constitution, in
which “No other language than Turkish may be taught in educational
and teaching facilities to Turkish citizens as their mother tongue”,
appears to be contrary to international standards related to minority
rights. Such standards include the United Nations Declaration on the
Rights of Persons Belonging to National, Ethnic, Religious and
Linguistic Minorities which states that all UN member 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”.
While Amnesty International welcomed the amendment of the Law on the
Education and Teaching of Foreign Languages in 9 August 2002 to allow
for the “learning of different languages and dialects used
traditionally by Turkish citizens in their daily lives”, the
organization notes serious restrictions to this right, for example,
the languages may only be taught to adults at private language
courses. In addition, Article 42 of the Constitution was used to
close the trade union, Eðitim Sen, because it stated in its statute
that it would work for the right to mother-tongue education. This
case was a clear violation of the right to freedom of expression and
association. There is the risk that other entities’ rights to freedom
of expression may be similarly unnecessarily and arbitrarily
restricted while Article 42 exists in the Constitution in its present
state.
Similarly, Amnesty International is greatly concerned at cases
launched against politicians for speaking in minority languages to
audiences and distributing materials in these languages under Article
58 of Law 298 on Elections as well as Law No 2820 on Political
Parties. Article 81 of the latter law appears to be particularly
problematic stating:
a) …Political parties may not put forward the view that there are
minorities in the country of the Republic of Turkey based upon
difference of national or religious culture or creed or race or
language …
c) Political parties may not use languages other than Turkish in the
statute or program or publication, or in congresses or in meetings
closed or open to the public or in mass meetings. They cannot
distribute placards, signs, cassette or video tapes, brochures or
announcements written in languages other than Turkish…
Article 122 of the draft of the new TPC which forbids discrimination
on the basis of “language, race, colour, gender, political thought,
philosophical belief, religion, denomination and other reasons” was
amended at the last moment so that “sexual orientation” was removed
from the draft. Amnesty International is therefore concerned that
discrimination on the basis of sexuality was not criminalized in the
new TPC. This is coherent with Article 10 of the Constitution which
states that “Everybody is equal before the law without making any
distinction on the basis of language, race, colour, gender, political
thought, philosophical belief, religion, denomination and other
reasons.” Amnesty International considers that both these articles
should be amended to ensure full equality in law and practice of
individuals of different sexual orientation.
Amnesty International is still seriously concerned about the ban on
the wearing of headscarves in higher education in Turkey – it
believes that this ban is discriminatory and disproportionate.
Despite the amnesty proposed for students excluded from university,
the ban has and will continue to result in many people being excluded
from university education and in the suspension or dismissal of
hundreds of women from university teaching posts as a result of their
religious beliefs. Amnesty International urges the Turkish
authorities to take steps to address this issue.
Amnesty International therefore considers that further steps need to
be taken to improve minority rights in Turkey and to prevent
discrimination. We urge that the country should sign and ratify
international instruments in this area, including the Framework
Convention for the Protection of National Minorities. Further it
should ratify Protocol No.12 to the ECHR, which provides for a
general prohibition of discrimination; and make the declaration under
Article 14 of the International Convention on the Elimination of All
Forms of Racial Discrimination, empowering the Committee for the
Elimination of Racial Discrimination to receive individual
communications. The government should also withdraw its reservations
in respect of Article 27 of the International Covenant on Civil and
Political Rights and Article 13 of the International Covenant on
Economic, Social and Cultural Rights.
9. HUMAN RIGHTS DEFENDERS
Amnesty International welcomes numerous measures taken to lessen
pressure on human rights defenders. For example, the new Law on
Associations which is less restrictive than its predecessor should
offer a significant boost to the development of civil society in
Turkey if it is implemented fully. However, human rights defenders in
Turkey are still subjected to unnecessary pressures. These range from
unsubstantiated allegations by figures in authority which may result
in death threats(18), through to difficulty in carrying out their
legitimate campaigning activities as well as the opening of a large
number of cases against them for often minor transgressions of
administrative regulations. While these cases rarely result in
imprisonment, more usually in acquittal, a suspended sentence, or a
fine, Amnesty International considers that the opening of such cases
constitutes a form of “judicial harassment” and also an apparent
misuse by prosecutors of the criminal justice system.
Amnesty International has also documented a pattern in which – in
response to amended laws – prosecutors have used alternative charges
to seek conviction of individuals and criminalization of acts by
applying other legislation in place of the laws that have changed.
Therefore, while the legal changes are welcome, such reform may not
prevent the continued harassment of human rights defenders. Amnesty
International urges the government to undertake an urgent review of
all outstanding prosecutions of people for the peaceful exercise of
their rights to freedom of expression, association and assembly with
a view to ensuring that no one remains under prosecution for acts
which are guaranteed under international protection in line with
international law or standards.
Furthermore the government should take steps to closely monitor
investigations opened against human rights defenders and take
effective action to sanction state officials who abuse the judicial
system (and/or the government administrative system) to the detriment
of human rights defenders with the intention of harassing them or
curtailing their legitimate activities for the defence of human
rights. In addition, the government should ensure that state
institutions and individual officials refrain from adopting
‘creative’ ways of persecuting human rights defenders by breaching
Constitutional provisions or laws protecting human rights defenders,
or through an excessively broad interpretation thereof.
Given this pattern of harassment, Amnesty International is especially
concerned about a provision introduced in the new CPC. Cases opened
against human rights defenders have previously been opened under a
variety of laws but a very significant number of these have been
opened for “aiding and abetting illegal organizations” (Article 169
of the previous TPC), “insults” to various state institutions
(Article 159), “incitement to enmity” (Article 312) and “making
propaganda for illegal organizations” (Article 7 of the Anti-Terror
Law). Amnesty International therefore notes with concern that Article
151 of the new CPC stipulates that lawyers representing defendants
accused of certain crimes may be forbidden from representing their
clients or visiting them in jail if the lawyers are being
investigated or prosecuted under certain articles of the TPC. Among
these articles are those which are the successors in the new TPC of
the above articles. We consider that such a provision may be used to
judicially harass human rights defenders through the opening of
apparently groundless cases against them but also that human rights
lawyers will therefore be unable to represent their clients through
the application of Article 151. Such a provision is contrary to the
spirit of the UN Declaration on Human Rights Defenders and may also
restrict the right to a fair trial of the clients of lawyers thus
barred and may be in contravention of the UN Principles on the Role
of Lawyers. Amnesty International therefore calls for the abolition
of this provision.
Amnesty International considers that greater steps need to be taken
to ensure that state officials recognize the legitimacy of work in
defence of human rights. The organization considers that one reason
that such attitudes continue amongst state officials is the
apparently ambivalent attitude towards human rights groups expressed
by the government. Amnesty International was disturbed by a statement
by the Prime Minister released to the press following his meeting
with the organization in February 2004 in which he accused human
rights groups of having “double standards” in their treatment of
Turkey and acting “ideologically” and was saddened by the apparent
disregard for the thousands of Amnesty International members who had
campaigned for the Prime Minister after he was sentenced to
imprisonment in 1998 when he accused the organization of having been
partial in his case and that it had “only made statements”. The
organization was further distressed to read the Prime Minister’s
speech to the Parliamentary Assembly of the Council of Europe in
which he was reported to have said “…those, with ideological
approaches, who say that there is still these type of torture… are
people who have connections with terror organizations. I especially
want to present this for your information.” Amnesty International
considers that this statement is in clear contravention of the spirit
of the UN Declaration on Human Rights Defenders and would welcome a
statement which would publicly recognize the legitimate work of human
rights defenders and the contribution that they make to uphold the
rule of law.
Amnesty International is aware that the Ministry of the Interior
distributed in October 2004 to its officials as a circular the EU
Declaration on Human Rights Defenders. However, since this is a
document aimed at foreign delegations in second countries, Amnesty
International considers that it would have been more appropriate to
circulate a copy of the UN Declaration on Human Rights Defenders. We
therefore urge the government to take further action to ensure that
state officials at every level of the state apparatus, including law
enforcement officials, respect the legitimacy of the work of human
rights defenders and allow them to carry out this work without
hindrance or harassment. The UN Special Representative on Human
Rights Defenders has made numerous detailed recommendations in her
report. Amnesty International expects the government to incorporate
into its programme steps towards implementing these recommendations.
10. FREEDOM OF ASSEMBLY
Amnesty International welcomes the circular issued last year by
Interior Minister Abdulkadir Aksu which was designed to improve the
right to assembly. While it did bring some much needed clarity to the
legal status of the reading out of press releases, the organization
considers that there is still the potential for confusion. The
organization notes that – in practice – there are still unnecessary
restrictions to the right to freedom of assembly. The UN Special
Representative on Human Rights Defenders has noted such restrictions:
…in particular with regard to places where public gatherings can be
held – the law imposes a 300-metre distance from any public building
or major road crossing. Demonstrations and press releases by nature
seek to draw public attention, and restricting them to places away
from crowded streets and areas minimizes their ability to reach
citizens, and can be seen as defeating the object of the right.
Amnesty International believes that further steps are needed to
remove such restrictions to ensure the right to freedom of assembly
is fully guaranteed. This is especially important since those who
violate these restrictions peacefully may be subjected to
disproportionate force by security forces responsible for policing of
such demonstrations. Amnesty International would like to remind the
authorities that participation in a demonstration without permission
does not justify use of disproportionate force.
11. VIOLENCE AGAINST WOMEN
Amnesty International has been greatly heartened by the recent steps
taken by the government to improve the level of protection that women
enjoy from violence in the family. We view the amendments to the
Turkish Penal Code as a positive development and welcome the giving
of legal recognition to the Directorate on the Status of Women
attached to the Prime Ministry. We especially welcome the article of
the new Law on Municipalities that requires municipalities to provide
shelters for women in towns and cities with populations of more than
50,000 individuals as well as the government’s support for the
Campaign “No to violence against women” which has been organized
together with the United Nations Population Fund.
Judging from other recent legal and constitutional reforms in Turkey,
the passing of laws in itself is not enough – implementation of the
laws will be key. Effort is needed to make sure that these reforms
are communicated to women in Turkey as well as to prosecutors,
governors, judges, police officers and others who may be responsible
for implementing the law. Amnesty International draws particular
attention to the Law on the Protection of the Family which was passed
in 1997 and which is very rarely implemented. The organization
requests the development of mandatory training programmes for the
police, medical personnel, gendarmerie officials, members of the
judiciary and other professionals who may be a first point of contact
for women who have experienced violence. The training should include
the recognition of violence, the optimal use of safety procedures –
such as under the Law on the Protection of the Family, and guidance
on how to deal with victims in the appropriate manner. Disciplinary
measures must be taken against those state officials who fail to
carry out their legal duty to protect women and prevent violence when
clearly required to do so.
Amnesty International is particularly concerned that there should be
a greater availability for women in Turkey to resources that may
provide advice on and protection from violence. In particular, the
organization would like to see further steps taken to ensure the
implementation of the Law on Municipalities so that this legal change
becomes a meaningful development for women in Turkey. We therefore
urge the government to ensure that adequate funding is available from
the central budget for the establishment of shelters and to work with
women’s organizations to draw up guidelines for local authorities on
the implementation of the law based upon universal shelter
principles. We further ask the government to emphasize to local
authorities the importance of working with women’s organizations in
setting up or funding shelters.
Other resources that Amnesty International considers need to be
provided are sufficient information and points of access for women to
report violence, including hotlines covering all regions of Turkey
staffed by sufficiently trained personnel, brochures and posters
disseminated at hospitals, primary health care centres and courts,
and websites.
At present there is reported to be a direct phone line for women in
service in 21 provinces (out of 81) providing psychological, legal
and financial counselling for battered women or those who are under
threat of violence. The government needs to ensure that this phone
line service is extended to cover all regions of Turkey and that it
is staffed by sufficiently trained personnel.
`********
(1) E/CN.4/2005/101/Add.3, page 25, para 102, 18 January 2005
(2) Observations of the Government of Turkey on the Report of Ms.
Hina Jilani, Special Representative of the Secretary General on Human
Rights Defenders, on her mission to Turkey (E/CN.4/2005/G/29).
(3) Human rights organizations alleged that the government had failed
to respond to any of the reports of the Board, that the State
Minister for Human Rights had not attended any of its meetings and
that an effort had been made to make the board ineffective by
appointing to it representatives of organizations whose commitment to
human rights values was questionable. For further information, see
the Turkey entry Concerns in Europe and Central Asia: July – December
2004 (AI Index: EUR 01/002/2005), March 2005.
(4) For example, see the Human Rights Watch briefing, Eradicating
Torture in Turkey’s Police Stations: Analysis and Recommendations, 22
September, 2004.
(5) E/CN.4/2005/101/Add.3, page 25, para 114, 18 January 2005.
(6) The High Board on Prosecutors and Judges has oversight over the
activities of prosecutors but Amnesty International is not aware of
any steps that the Board has previously taken against prosecutors who
have covered up torture. If such examples do exist, the organization
would be grateful to receive further details.
(7) Blanco Abad v. Spain, para 8.2.
(8) Khaled Ben M’Barek v. Tunisia, 10 November 1999, paras 2.10,
11.4-11.7.
(9) Report of the Special Rapporteur to the 56th session of the
General Assembly, A/56/156, 3 July 2001, para. 39 (j).
(10) Ibid.
(11) For example, on 24 June 2005, a court in Ceyhan reportedly
postponed the trial of a police officer charged with the
ill-treatment of Murat Gezici until 5 October 2005.
(12) For example, see the Amnesty International press release Turkey:
Justice denied to tortured teenage girls (AI Index: EUR 44/018/2005,
22 April 2005).
(13) Report of the Special Rapporteur to the 56th session of the
General Assembly, A/56/156, 3 July 2001, para. 39 (j).
(14) Report of the Special Rapporteur to the 56th session of the
General Assembly, A/56/156, 3 July 2001, para. 39 (e).
(15) For example, the 25 May 2005 decision which insisted on the
closure of the largest trade union in Turkey, Eðitim Sen, because it
included amongst the aims in its statute that it would work for the
right to mother tongue education.
(16) Article 14 now reads: “None of the rights and freedoms embodied
in the Constitution shall be exercised with the aim of violating the
indivisible integrity of the state with its territory and nation, and
endangering the existence of the democratic and secular order of the
Turkish Republic based upon human rights. No provision of this
Constitution shall be interpreted in a manner that enables the State
or individuals to destroy the fundamental rights and freedoms
embodied in the Constitution or to stage an activity with the aim of
restricting them more extensively than stated in the Constitution.
The sanctions to be applied against those who perpetrate these
activities in conflict with these provisions shall be determined by
law.”
(17) Namely: they must be prescribed by law and necessary in a
democratic society in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime,
for the protection of health and morals, or for the protection of the
rights and freedoms of others.
(18) See, for example, Urgent Action 94/05, AI Index: EUR
44/014/2005, 20 April 2005
–Boundary_(ID_jyTS/rfEbe4OSLb7czLKhQ)–