By DENIZ OGUZ


 

Since today’s mainstream media in Turkey, which is under strict control of the ruling power, turns a blind eye and plays deaf to their situation, many aggrieved women are now trying to make their voice heard on social media.[1] They simply outcry that their husbands have inexplicably gone missing and their call for help from the law enforcement bodies remained non-responded.[2] They express[3] that their husbands are kidnapped by some people who are not appeared to be from the law enforcement bodies of Police Force or Gendarmerie. They suspect that the kidnappers may be members of, or some people working for, the National Intelligence Agency (MIT).

This is not a single incident though. There have been seven other cases of abductions reported[4], most of which happened in Ankara. Of the kidnapped persons, one is a teacher, another is a hospital-worker, two are employees at government agencies on telecommunication and finance, and two are former National Intelligence Agency (MIT) personnel, while the occupation of the last one is not clarified.

The commonalities of these kidnappings are interesting. Firstly, almost all these events have taken place in Ankara. Secondly, the mainstream media remained silent about these abductions, wives of the kidnapped persons have managed to publicise what had happened through the social media. Thirdly, the legal authorities remained totally indifferent to the call for help of these women. And lastly, a suspicious black transport van was seen on the crime scene, as shown on the CCTV recordings, attained by the wives from the security cameras available at the area.

Until now, the government authorities have not made any comment about these claims. Except some members of the community who expressed their concerns with a low voice[5] there has been a deafening silence and deliberate ignoring in the Turkish mainstream media and the government agencies about the incidents. What is more, abduction of people has started to be a practice committed also outside Turkey’s borders[6], which alarmed the dissident Turkish citizens living in foreign countries whose governments are cooperating with Erdogan. Wives of the people abducted abroad imploringly expressed their concerns for the health, and even life, of their beloved ones.

When considering that the acts of torture are a widespread practice[7] used by the law enforcement officers after 15 July 2016 under Erdogan’s rule and there are many reported cases of death following custody and detention,[8] worries of these women are evidently serious and substantiated. This brief paper focuses on legal implications of this new abduction method of Erdogan regime and legal remedies available for the abducted people and their close relatives.

The Principles

Universal Declaration of Human Rights provides under Article 3 that: “Everyone has the right to life, liberty and security of person.” and under Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” It further prescribes under Article 9 that “No one shall be subjected to arbitrary arrest, detention or exile.” European Convention on Human Rights similarly dictates that “Everyone’s right to life shall be protected by law.” (Article 2), “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” (Article 3) and “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in following cases and in accordance with a procedure prescribed by law: …” (Article 5).

The Turkish Constitution[9] also guarantees these rights to everyone as well:

“ARTICLE 17- Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.

The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his/her consent.

No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity. …” and

“ARTICLE 19- Everyone has the right to personal liberty and security. No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law:”.

The Turkish Penal Code severely sanctions any violation of these basic rights and freedoms in the following articles:[10]

Article 81 (1) Any person who intentionally kills another shall be sentenced to life imprisonment.”

Article 82 (1) If the act of intentional killing is committed: …

b) Brutally or through torment; …

the offender shall be sentenced to aggravated life imprisonment.”

Article 86 (1) Any person who intentionally causes another person physical pain or who impairs another person’s health, or ability to perceive, shall be sentenced to a penalty of imprisonment for a term of one to three years. …

(3) Where an intentional injury is committed: …

d) on account of a public officer misusing his influence; or

e) by using a weapon, the penalty to be given shall be increased by one half and shall not require a complaint.”

Article 94 (1) A public officer who performs any act towards a person that is incompatible with human dignity, and which causes that person to suffer physically or mentally, or affects the person’s capacity to perceive or his ability to act on his own will, or insults them, shall be sentenced to a penalty of imprisonment for a term of three to twelve years. …”

Article 96 (1) Any person who performs any act which results in the torment of another person shall be sentenced to a penalty of imprisonment for a term of two to five years. …”

Article 109 (1) Any person who unlawfully restricts the freedom of a person to move, or to remain in a particular place shall be sentenced to a penalty of imprisonment for a term of one to five years. …

(3) Where this offence is committed: …

d) by misusing the influence derived from public office, …

the penalty to imposed according to the above paragraphs shall be doubled.”

Possible Remedies

The legal remedies to be employed for the victims of these abductions may be divided into two distinct categories: examination under the Turkish national law and under the international law.

Remedies under the Turkish National Law

Criminal Proceedings against Abductors

Such forced disappearances and accompanied mistreatments may constitute serious crimes under the Turkish Penal Code (TCK) within the scope of Article 109 (Deprivation of Liberty), Article 86 (Intentional Injury) along with Article 94 (Torture) or Article 96 (Torment); and Articles 81-82 (Murder) if the victim was killed in the process.

Every public official (Article 279 of TCK[11]) or every citizen (Article 278 of TCK[12]) who took notice of any indication about such crimes are obliged to immediately inform the judicial authorities concerning these crimes. Upon such a notice, as required by Article 160[13] of the Code of Criminal Procedures (CMK), the public prosecutor must lodge a criminal investigation in order to reach the “material truth” about the alleged crime.

The victim or the victim’s relatives can report this kind of illegalities to prosecution offices or law enforcement bodies directly under Article 158[14] of the CMK. Under normal circumstances, these illegal apprehensive criminal acts or abductions would result in a substantive criminal investigation against their perpetrators. Law enforcement bodies will normally act at once to find and rescue the victim from the kidnappers and will conduct all that is necessary to apprehend the perpetrators.

Pursuant to Article 238[15] of the CMK, the victims and their relatives have got the right to intervene in the existing criminal case against the offenders at any stage of the court proceedings. As a course of action after the offender is sentenced for the crime, they can also claim damages from the offenders by applying for a court order to compensate them for the injuries, pain and suffering caused by the offenders.

This is the line of remedies normally available to the victims and their relatives, while public officials are legally responsible to carry out all the necessary legal proceedings of investigation and prosecution related to cases of abductions. Unfortunately, this has hardly ever been the case in Turkey for some time, due to the political and legal turmoil prevailing the country for the past couple of years, which have even further deteriorated under the so-called State of Emergency rule.

Individual Application to the Constitutional Court

The second and final resort in national law for victims of such illegal criminal acts is filing an individual application to the Constitutional Court. This judicial remedy was created with the Constitutional amendments in 2010 and became functional after 23 September 2012.

The Constitutional Court appears to have lost its independence gradually after its president was replaced in 2015 and its two members arrested as part of the unlawful and arbitrary detentions started after the coup attempt on 15 July 2016. The president of the Constitutional Court expressly declared[16] that the court has no jurisdiction over the state of emergency law decrees of the Government, despite the fact that the very same court had examined and annulled[17] such decrees in the past. He complained[18] that more than 60,000 individual applications (more than 40,000 of them were filed after 15 July 2016) had piled before them and they have not got the means to examine all these applications.

To submit an individual application to Constitutional Court, one must exhaust all existing domestic judicial avenues. In respect to abduction cases, the victim or their relatives must apply to the public prosecutor and receive a negative response (a decision of non-prosecution) from the prosecutor. Thus, since the criminal investigation is not initiated, the victim or their relatives should be able to file an objection against this decision before the nearest Criminal Court. Within 30 days after receiving the negative decision of the Criminal Court, an individual application can be filed to the Constitutional Court.

The fate of an individual application, however, is totally at the mercy of the Constitutional Court. No one may force the court to examine any complaint rapidly and to issue a verdict stating that a violation has occurred. Unfortunately, following the attempted coup of 15 July 2016, the Constitutional Court appears to be very reluctant to examine the individual applications made and, in the few applications it has so far examined, it did not find even a single case of violation despite the evident unlawful acts and illegalities in the various judicial proceedings conducted during the purge after the coup attempt against journalists, teachers, even judiciary members.

Remedies under the International Law

Turkey is party to many treaties and conventions under the United Nations and European Council system from the very beginning. Turkey has been under the jurisdiction of the European Court of Human Rights and it had ratified the Optional Protocol to UN Convention against Torture in 2011. These are the two distinct international mechanisms by which the victims of abductions and their relatives may pursue their rights and seek judicial remedies.

European Court of Human Rights (ECtHR)

ECtHR announced numerous judgements[19] in which it found that Turkey has failed to guarantee the respective fundamental rights and freedoms protected under the ECHR. Of these judgements, 133 are due to loss of life of victims and 204 are due to lack of effective investigation about cases where victims lost their lives. While, 31 of these judgements are about torture, 314 are about inhuman treatment and 208 of them are about not holding efficient investigation for the crimes of torture and inhuman treatments. Further, in 832 cases, the Turkish authorities failed to provide sufficient legal guarantees for the people who were arrested or detained as suspects. All these figures evidence that Turkey’s adherence to the rule of law and the legal protection against illegal acts of its own officials is far from being satisfactory.

The European Court underlined[20] this bitter reality in its recent judgement decreed on 1 January 2015 for the case of Sakine Epozdemir and Others vs Turkey (26589/16) stating that abduction and killing of the applicant’s close relative was the responsibility of the government, since it failed to prevent the crime committed against the victim and failed to investigate the perpetrators effectively. Meanwhile, this is not the first judgement of its kind. There are many other similar judgements that are pointing at the same issue: abductions and/or killings of people, generally by disguised law enforcement units, and the cases not being properly investigated and perpetrators not being adequately penalised.

Concerning the victims of this new type of kidnappings occurring in Turkey after 15 July 2016, the European Court did not yet have a chance to examine the situation and announce its verdict. For the cases it had the chance to examine, however, the European Court seems to adopt a hesitant stance concerning the worsening situation in Turkey since 15 July 2016. For example, the Court declared its decisions[21] in three applications all of which were about dismissals from public duties with the issued emergency law decrees. In these decisions, reminding of its subsidiary role in remedying the violations of the human rights, the Court stated that the applicants should first apply to the Turkish Constitutional Court and ruled that the applications are inadmissible as the applicants did not properly exhaust the existing domestic remedies.

Unfortunately, the European Court did not take into consideration the serious deterioration of independence of the judiciary in Turkey, especially that of the constitutional court which suffers under the explicit pressure and influence of the government since 15 July 2016. Besides, in its last decision (Catal vs Turkey), the European Court referred the applicant to a newly established national remedy and announced that the applicant should exhaust this remedy, too, even though this remedy (State of Emergency Inquiry Commission)[22] was not established[23] in the prescribed time limit (until 23 February 2017) by the time the Court declared its decision on 7 March 2017.

The Court’s hesitance towards the applications concerning the purges after 15 July 2016, may stem from the concerns about the possibility of an influx of case files[24] to the Court which would be immense if the Turkish victims (who are more than 150,000) would apply directly to the European Court. Although this new not-yet-established “State of Emergency Inquiry Commission” has actually no genuine legal power to undertake judicial reviews, it is seen[25] by the European Council as an instrument to lessen the burden of the European Court in the first place. As a result, the European Court did not yet flash green light to the victims of the purge to open the path for them to file their applications directly to the Court. As it will become more evident for the European Court that Turkey nowadays is actually suffering from an inefficient, non-independent and partisan judicial system; it is hoped that its hesitant approach will eventually change.

UN Committee Against Torture (CAT)

UN Committee Against Torture was instituted in line with UN Convention Against Torture Other Cruel, Inhuman or Degrading Treatment or Punishment. Turkey became party to it and made declarations concerning Article 21 and 22 of this UN Convention which empowered UN Committee Against Torture (CAT). The Convention enables those people who claim that they or their relatives suffered any kind of torture or inhuman treatment to bring individual complaint against the state before the CAT[26].

Individual complaint procedure is similar to the right of filing individual application to the European Court of Human Rights (ECtHR). Both procedures are final resorts and secondary in nature. Hence, one should exhaust all the existing domestic remedies before taking on these procedures.

Certain procedures must be fulfilled to be able to file an individual complaint before the CAT.[27] The CAT categorises an individual complaint as either admissible or inadmissible. If the CAT finds the complaint admissible, it communicates the complaint to the respective state and demands a thorough explanation and information concerning the complaints within six months. After receiving comments from both the state and the complainant, a relevant Committee of the CAT concludes their findings on the complaint.

The CAT may order provisional measures if it deems necessary and invite the UN to take necessary political actions against the concerned state if it finds any violation. Until this date, the CAT found one application inadmissible against Turkey in 1990 and communicated three applications against Turkey in 2008.[28] Naturally, this international body is more of a political organ than of an international court such as the ECtHR. Therefore, its decisions and consequences are of a political, rather than a judicial, nature. The CAT’s latest report[29] about Turkey dates back in 2014 and has not issued an observation related to the situation this paper is concerned with.

The latest report prepared by the European Council’s Committee Against Torture (CPT) following a visit in late 2016[30] have not been able to be published yet, because the Turkish Government did not permit[31] its publication. The UN Convention for the Protection of All Persons from Enforced Disappearance might potentially provide further guarantees for the persons abducted by the state officials. This protection, however, is not available for the Turkish nationals, as Turkey did not ratify the convention until today.

Conclusion

The total defiance and disrespect for the rule of law, extra-judicial arrests and extra-judicial killings, kidnappings and abductions followed by serious maltreatments and torture, sometimes coupled with deaths, are the very same fingerprints of all dictatorships around the world. Humans have suffered this kind of bitter government terrors under Nazi Germany, Communist Russia and China, Baathist Arab States and Islamist Iran during the twentieth century. They all have utilised these oppressive methods to silence the dissidents, and to consolidate their power.

However, none of these ruling powers had adhered/are adhering to the fundamental international legal guarantees like Turkey proclaims to respect. None of them were/are party to the European Convention of Human Rights which provides an international court to monitor these states and impose certain sanctions on them, but Turkey is.

Under these circumstances, seven people have been abducted recently by their own state and the number may increase further. We do not know what will happen to them and if they will reappear again. To the face of all these atrocious cruelties, we only cry out “Who prospers with atrocity, will perish in the end bitterly.”[32]

  1. One of those women searching her husband who was missing for 35 days : https://twitter.com/fatma_asan1905?lang=en-gb
  2. A relevant internet media news about this kind of kidnappings: http://www.shaber3.com/ankarada-kacirilan-7-kisiyle-ilgili-sok-goruntuler-haberi/1284529/
  3. The video link of a kidnapping; http://www.shaber3.com/web-tv/capan-ailesi-kacirilan-evin-reisi-turgut-capana-ulasmaya-calisiyor-21216-video-haberi/
  4. The internet news about kidnapped 7 people : http://www.shaber3.com/ankarada-kacirilan-7-kisiyle-ilgili-sok-goruntuler-haberi/1284529/
  5. A twitter account trying to make these voices heard: https://twitter.com/Magduriyet_Tr .
  6. A recent news on this point : https://www.turkishminute.com/2017/05/02/video-abducted-school-principals-wife-asks-for-help-from-malaysian-govt/
  7. An example of an arrest: http://www.haber7.com/guncel/haber/2049001-darbeci-komutan-boyle-yakalandi
  8. A teacher died in hospital due to serious intestine injury caused by an object forced his anal cavity during his detention under police custody: http://romanyahaber.com/2016/08/08/gokhan-ogretmenin-iskenceyle-olumu-belgelendi/
  9. For the Turkish Constitution in English, see https://global.tbmm.gov.tr/docs/constitution_en.pdf
  10. For the Turkish Penal Code in English, see https://www.google.fr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwiFvsWUseDTAhWDY1AKHXEaDSwQFggqMAE&url=http%3A%2F%2Fwww.legislationline.org%2Fdownload%2Faction%2Fdownload%2Fid%2F6453%2Ffile%2FTurkey_CC_2004_am2016_en.pdf&usg=AFQjCNEaV8G7CZOqKAd-Dgt-06Ey183-NA&sig2=KNY2n0f1LXID69IyCxkbXw
  11. Article 279 (1) Any public officer who fails to report of an offence (which requires a public investigation and prosecution), or delays in reporting such offence, to the relevant authority, after becoming aware of such offence in the course of his duty, shall be sentenced to a penalty of imprisonment for a term of six months to two years. (2) Where the offence is committed by a judicial law enforcement officer, the penalty to be imposed according to aforementioned paragraph shall be increased by one half.”
  12. Article 278 (1) Any person who fails to report, to the relevant authority, an offence which is in progress shall be sentenced to a penalty of imprisonment for a term of up to one year.(2) Any person who fails to notify the relevant authority of any offence, which has been committed but where it is still possible to limit its consequences, shall be sentenced according to the provisions of the aforementioned paragraph.”
  13. Duty of public prosecutor informed of an offense Article 160 (CMK) – (1) As soon as the public prosecutor is informed of a fact that creates an impression that a crime has been committed, either through a report of crime or any other way, he shall immediately investigate the factual truth, in order to make a decision on whether to file public charges or not. …”
  14. Report of crimes and claim Article 158 (CMK) – “(1) Report or claim related to the crime may be submitted to the office of the public prosecution, or the offices of the security forces. …”
  15. The procedure of intervening Article 238 – (1) Intervening shall be accomplished through giving a written application to the court after the public prosecution has been opened, or including the oral request of intervening in the records of the main trial.”
  16. To see declaration of Mr. Zühtü Arslan, the President of the Constitutional Court, please visit : http://www.yenicaggazetesi.com.tr/anayasa-mahkemesi-baskani-khklar-yetkimiz-disinda-162157h.htm
  17. The Constitutional Court partially (of some articles) annulled a governmental decree having force of law in emergency rule firstly on 10 January 1991. The Numbers of this judgement were E. 1991/6, K. 1991/20. It had decided in this respect lastly on 22 May 2003 with the reference numbers E. 2003/28, K. 2003/42.
  18. To accede related new concerning the declaration of Mr. Arslan, please visit : http://www.trthaber.com/haber/turkiye/15-temmuz-sonrasi-aymye-basvuru-sayisi-artti-277455.html
  19. The number is 2.889 according to the Court’s statistics, see link below : http://echr.coe.int/Documents/Stats_violation_1959_2016_ENG.pdf
  20. The reasoning of the Court : “60. The Court has already had occasion to examine similar complaints in cases against Turkey brought by applicants in respect of relatives who had been abducted and killed in circumstances similar to those in which the applicants’ relative was abducted and killed. In one such case the Court noted, for example, that the brother of the applicant in question – chairman of Elbistan branch of HADEP, a pro-Kurdish political party established after the DEP was dissolved by the Constitutional Court (see Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002; see also, HADEP and Demir v. Turkey, no. 28003/03, 14 December 2010, regarding the dissolution of HADEP by the Constitutional Court) – had belonged to a category of person who ran a particular risk of falling victim to abduction and murder (see Koku v. Turkey, no. 27305/95, § 131, 31 May 2005). In the same judgment the Court pointed out that dozens of politicians working for HADEP and its predecessors had been kidnapped, injured or killed at around the time of the death of the brother of the applicant in question, and that some of those incidents had been examined by the Court (see, inter aliaBinbay v. Turkey (friendly settlement), no. 24922/94, 21 October 2004; Ekinci v. Turkey, no. 25625/94, 18 July 2000; Nuray Şen (no. 2) v. Turkey, no. 25354/94, 30 March 2004; Sincar v. Turkey (dec.), no. 70835/01, 10 October 2002; Sabuktekin v. Turkey, no. 27243/95, ECHR 2002II (extracts); and Macır v. Turkey, no. 28516/95, 22 April 2004)….71. … The Court considered in those cases that the disappearances of persons in life-threatening circumstances – even in the absence of any evidence of State involvement – had required the State, pursuant to the obligation stipulated in Article 2 of the Convention, to take operational measures to protect the right to life of the disappeared persons in question, because following their abductions their lives had been at more real and immediate risk than those of other persons at that time. It stated that the action which had been expected from the domestic authorities was not to prevent the abductions – which had already taken place – but to take preventive operational measures to protect their lives, which were at risk from the criminal acts of other individuals (cf. Koku, cited above, § 132, and Osmanoğlu v. Turkey, no. 48804/99, § 75, 24 January 2008).”
  21. The concerned decisions of the European Court were :Mercan vs Turkey (56511/16) on 8 November 2016 (http://hudoc.echr.coe.int/eng?i=001-169094) Zihni vs Turkey (59061/16) on 29 November 2016 (http://hudoc.echr.coe.int/eng?i=001-169704)Çatal vs Turkey (2873/17) on 7 March 2017 (http://hudoc.echr.coe.int/eng?i=001-172247)
  22. The Commission foreseen by the Emergency Law Decree No. 685 on 23 January 2013: www.resmigazete.gov.tr/eskiler/2017/01/20170123-4.htm
  23. This Commission is not yet fully established until this date.
  24. See http://www.dw.com/tr/aihm-yarg%C4%B1c%C4%B1-t%C3%BCrkiye-aihmyi-bloke-edebilir/a-37277857
  25. See : http://www.dw.com/tr/avrupa-konseyinden-ankaraya-%C3%BCst-d%C3%BCzey-ziyaret/a-36350065 and http://www.arti49.com/avrupa-konseyi-genel-sekreteri-jagland-ankarada-23228h.htm and http://www.coe.int/en/web/portal/-/press-statement-by-secretary-general-thorbj-rn-jagland-on-the-occasion-of-the-visit-of-mr-bekir-bozdag-minister-of-justice-of-turkey
  26. See www.ochr.org/EN/HRBodies/CAT/Pages/catindex.aspx
  27. Further information on this issue can be seen on the concerned factsheet : www.ochr.org/Documents/Publications/FactSheet17en.pdf
  28. To see further details about these applications, please visit: http://juris.ohchr.org/search/results
  29. To see the report please visit: http://undocs.org/CAT/C/TUR/4
  30. To accede CPT’s relevant page: http://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-visits-turk-1
  31. To accede relevant new about this claim please visit : http://www.birgun.net/haber-detay/cpt-raporunun-aciklanmasina-akp-mi-engel-oldu-160123.html
  32. A widely known adage said by Ziya Paşa – a famous Ottoman Statesman in late 19th century – to have more information, please see : https://tr.wikiquote.org/wiki/Ziya_Pa%C5%9Fa
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