By LEIGHANN SPENCER
Nils Melzer, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, has published a report concerning the situation in Turkey with findings from his 27 November to 2 December 2016 mission. After this was published on 18th of December 2017, the government of Turkey published counter-comments on the report. Considering the intensity of debates in international platforms such as the EU, the CoE and the OSCE on the excessive security measures implemented by the Turkish government under the long-lasting State of Emergency declared after the controversial coup attempt, I would like to discuss the Turkey’s response to the Special Rapporteur’s observations about the situation in detention centres of the country.
FETO/PDY vs. Gulen Movement
The usage of the FETO acronym, which means ‘Fethullahist Terror Organization’, has not been accepted by the Special Rapporteur. Instead, the Special Rapporteur prefers to use the word “Gulenist”. The said acronym is attributed to the movement of Fethullah Gulen by the Turkish government. Without substantiating this allegation by any credible evidence, they have not convinced occidental governments and organizations that Gulen’s movement should be considered as terrorist. One of the many examples to this attitude by independent experts is a statement by Gilles de Kerchove, European Union’s Counter-Terrorism Coordinator: “As for FETO, we don’t see it as a terrorist organization, and I don’t believe the EU is likely to change its position soon… You need not only circumstantial evidence – like just downloading an app – but concrete substantive data which shows that they were involved”.
Who is Behind the Coup?
Paragraphs 3 to 8 of the Turkish government’s response to the Special Rapporteur argue that the Rapporteur omits the fact that the so-called FETO is the organizer of the heinous coup attempt that took place on 15th of July 2016. The government started to hold the Gulen movement responsible for the deaths of 249 people on the night of the incident, among many other allegations. However, the evidence presented has not yet convinced international organizations or governments of their involvement, or of the narrative that Fethullah Gulen himself orchestrated the event from Pennsylvania, U.S.A. This includes the UK Parliament, EU’s spy agency and Germany’s BND, and many other governments and organizations. Although some have stated that Gulenist soldiers may have involved, it is recognised that they were not alone and the majority of the Gulen movement were unaware of such plans.
Furthermore, the Turkish government is not likely to reveal the material facts of the coup attempt. Neither the testimonies of the top figures of the military and intelligence service have been taken during the coup trials, nor the politicians who took stage on the 15 July’s night have been listened within the Parliamentary inquiry.
PKK and the Torturing of Kurds
Referring to paragraph 30 of the report, the government argues that the Special Rapporteur omits the fact that PKK is an internationally recognized terror organization in his report. This is a misleading reference to the Special Rapporteur’s clear statements on the allegations of severe torture that Kurdish citizens who are accused of being member of the PKK face in initial phase of custody and during interrogation. The Rapporteur makes no judgement regarding the nature and actions of the PKK organization, nor does he claim that it is not a terrorist organization. His examination focuses merely on the practices of the government forces during and after the custody procedure towards the accused citizens. And regardless of this, as the Special Rapporteur states, there is absolutely no justification of torture.
Credibility of the Report
In the section of “General Remarks on the Report”, the Turkish government claims that the Special Rapporteur’s reporting is built on “generic, vague and unsubstantiated claims”. In fact, the Special Rapporteur’s duly examinations are in line with the reports published by other international and domestic rights organizations such as Human Rights Watch, Amnesty International , Platform for Peace and Justice, Human Rights Foundation of Turkey and The Human Rights Foundation.
PPJ Responses to the Responses of the Turkish Government
- In the paragraphs 20-21, the government claims that the term of “victims of torture” used by the Special Rapporteur in his report should be replaced with “those who claimed to have been victims of torture”.
It is widely acknowledged that the practice of torture is commonplace in the aftermath of the failed coup attempt. As mentioned above, the credible reports of international and domestic organizations have provided sufficient evidence that the torture is present in the detention centres. Statements by cabinet members and pro-government journalists suggest that torture is not only allowed but also rewarded by the ruling authorities. For example, Minister of the Economy Nihat Zeybekci said in a speech: “they will beg us to kill them” The head of the Parliamentary Prison Committee Mehmet Metiner declared that “Torture claims will not be investigated if victims are Gulenists”.
Besides, once the torture or ill-treatment allegations are put forth beyond a reasonable doubt, it is government’s obligation to refute these claims. In other words, the burden of proof is on the government’s side in this context and the government should not object the Special Rapporteur’s “victims” usage, unless they provide a satisfactory and convincing explanation on the victim’s situation. Let alone proving that there is no torture and ill-treatment in detention centres, the Turkish government tries to prevent national and international organizations from monitoring and reporting. The Council of Europe Committee for the Prevention of Torture visited detention facilities in August 2016 and reported to the Turkish authorities in November 2016. However, the government has not yet allowed the report to be published.
2. In paragraphs 23 to 31 in its response, the government claims that no person is granted impunity for their extrajudicial actions and there is an effective judicial mechanism examining the complaints of torture and ill-treatment.
Regarding the impunity, emergency decree No.696 dated the 24th of December 2017 states that “regardless of an official title or duties or the lack thereof, people who played a role in the suppression of a failed coup attempt on July 15, 2016 and subsequent events and terrorist activities will be exempt from criminal, administrative, financial and legal liability.” It is an amendment to Article 37 of decree No.667, which gave immunity to government officials in the pursuit of removing alleged Gulenists from Turkish society. No.667 has been used to justify torture and ill-treatment against ‘enemies of the state’, and to deny investigation or prosecution into complaints. The newest decree extends immunity to civilians, promoting pro-state vigilantism.
Regarding the existence of an effective judicial mechanism investigating the claims of torture and ill-treatment, one cannot claim otherwise theoretically. Relevant treaties and laws, alongside the Turkish constitution, provides sufficient protection from such abuse. However, the practice of the government shows the reality is totally in contradiction with what the domestic and international laws impose. Imagine that a MP of the ruling party assigned to Parliamentary Committee on the Human Rights can say that certain prisoners’ complaints of torture will never be investigated. Many reports, one of which is published by Human Rights Watch, documented that practice is in line with the statement of the MP. No proper investigation is carried out even when the families of victims provide concrete evidence of torture and ill-treatment.
3. In paragraph 31, the government argues that the use of term “extensive intervention with the human rights” is unacceptable “as all judicial proceedings against the suspected plotters of the 15th July terrorist coup attempt and members of FETÖ/PDY are initiated as per decisions of the members of independent judiciary”.
Yet, the majority of the punitive actions, like widespread purges, confiscations and other measures adopted in guise of emergency necessities against the alleged coup plotters have been taken through decree-laws rather than judicial decisions. Within this context, the Special Rapporteur also criticizes the abuse of decree-laws within the emergency rule which are out of the scope of the judicial review.
As for the independent judiciary, international organizations including Platform for Independent Judiciary (formed by the four international leading judicial organizations and the Consultative Council of European Judges) rightly reported that the judicial independence in Turkey has been abolished. Nearly 5,000 judges have been dismissed merely based on profiling lists and confessions extracted with torture and pressure. Half of them have been arrested and their properties have been confiscated. Among them is hundreds of members of the Court of Cassation and the Council of State, several members of the Council of Prosecutors and Judges, and two of the Constitutional Court.
It has been made impossible for a judge to decide against the government’s will. Even if a court dares to do so, the verdict is not being implemented as it has become obvious in the recent cases of journalists Alpay & Altan and Taner Kilic of Amnesty International. Earlier than those cases, on the 31th of March 2017, a court decided on release of 21 journalists; they were not released and kept in a prison van until another arrest warrant secured due to pressure put by the pro-government media. Moreover, the judge who ordered their release was suspended.
4. In paragraph 34, the government claims that “most of the interviewees are apparently members of terrorist organizations…”.
This groundless statement proves that complaining about torture and ill-treatment in Turkey is enough to be labelled as a terrorist. So indeed, as pointed in the paragraph 71 of the Special Rapporteur’s report, the victims in Turkey are afraid to complain about the treatment they suffered.
This statement also indicates that membership of those who are under custody to alleged terror groups are considered taken for granted although there is no verdict issued by courts against them. Even the inclusion of this single line in an official response to the report of the UN Special Rapporteur shows that the government does not observe the “principle of presumption of innocence” which is the very basic principle of the law.
5. In paragraph 36, the government denies the Special Rapporteur’s claim of prolonged and unfair practice of the solitary confinement. The government argues that there is no practice as solitary confinement in Turkish penitentiary system. According to the government, there are certain disciplinary measures applied in line with the Law of the Executive of Sentences and Security Measures which includes a stay in 1-3 persons rooms temporarily. The government claims that those who were put in these rooms have same rights with other inmates.
The practice, again, is not in compliance with the rhetoric. The conditions of solitary confinement of detainees and convicted persons are clearly articulated in detail under Article 44 (et seq) of the Law No. 5275 on the Execution of Punishments and Security Measures and the respective by-law. Detainees or convicted persons may only be put under solitary confinement as a form of punishment in the event that disciplinary offences stipulated by law are committed by them following a medical report having been taken in accordance with Article 48(3) of the Law No. 5275. Under international human rights standards, the period and conditions necessitating solitary confinement must be limited to very exceptional circumstances and to a very limited period which may not exceed more than a couple of days. The extended periods of solitary confinement without any legal ground and factual circumstances certainly constitute torture.
The credible reports published in the media show that even the renown figures such as award-winning writer Asli Erdogan, Die Welt journalist Deniz Yucel, and former leader of the pro-Kurdish HDP Selahattin Demirtas, were kept in prolonged solitary confinement without any legal reason to punish them. Huseyin Aygun, a former lawmaker of the opposition party and a lawyer, has stated that 680 judges are also kept in solitary confinement. Thus, the open sources and statements of families of detainees confirm the Special Rapporteur’s comments.
6. In paragraphs 37 to 40, the government finds unfair the Special Rapporteur’s claim of “strip searches and invasive body searches”. According to the government, such practices are regulated by and practiced in accordance with the Article 67 of the “Regulation on the Administration of the Penitentiary Institutions and the Execution of the Sentences and Security Measures”.
The Special Rapporteur observed that the strip search and invasive body search are practiced in an extensive and unjustified manner. Although there might be situations in which the said practice can be allowed, the Special Rapporteur suggests that it can lead to abuse and mistreatment. One of the many examples which confirm the Special Rapporteur’s observation:
Ezgi Duman, a lawyer, in her interview with Duygu Ayber, talks about the mistreatment towards women in prisons during the state of emergency: “Straight after the move, as soon as they arrive in the new prison, a naked search is done as a sort of “welcoming”. This procedure—which is normally required only if there is a reasonable suspicion that the captives might be in possession of illegal belongings—has become a routine procedure under current regulations. The detainees who resist being searched naked, encounter physical violence. Arbitrary naked searches are torture and intolerable for anyone; however, this situation is much more perilous for women”.
Concerning the Special Rapporteur’s observation on the overcrowded detention centers, the government simply accepts the fact and mentions the ongoing construction projects of new penitentiaries as remedy.
7. In paragraph 49 of its response to the Special Rapporteur, the government merely states that the interviews of detainees with their attorneys shall be limited in accordance with Subparagraph (d) of article 6 of the Decree Law no: 667.
The said article paved the way for violation of confidentiality of the meetings between lawyers and detainees. According to the article 6 of the Decree Law no: 667, the meetings of detainees with their lawyers will be recorded and a third-party official will be present in the meeting. The right to defense is blatantly violated by this practice.
The decree-law additionally provided ground for long custody terms (up to 30 days) without access to a lawyer and family members, which can facilitate torture and ill-treatment.
8. In paragraphs 50-51, the Turkish government claims that detainees are allowed to organize and join sportive and cultural activities in prisons.
According to a comprehensive report prepared by Platform for Peace and Justice (PPJ) based on interviews with families and lawyers of detainees, many of the prison administrations do not allow those who are jailed for being member of the Gulen Movement to join or organize such activities.
9. In paragraph 59, the government rejects the claim of the Special Rapporteur concerning the inadequacy of heating in prisons. According to the government the heating systems of the prisons work the way regulated by the relevant law.
The aforementioned PPJ report thoroughly shows that the observation of the Special Rapporteur is verified by the data collected from the many of the detention centres. Many families and lawyers communicated in interviews that detainees complain of heating systems in a number of prisons, which either do not work or the administrations do not let them work sufficiently as a form of punishment. Also, inadequacy of clean water is among complaints raised by the detainees in a number of prisons.
10. In paragraphs 60-61, the government confirms that there are problems in implementation of the separation of convict/pretrial and female/juvenile/male in detention centres by stating: “Therefore, certain individual examples should not be represented as systematic practices”.
It should be noted that the Special Rapporteur underlines that pretrial detainees and convicts are OFTEN intermingled in same cells and blocks.
11. In paragraphs 62 to 82, the government claims that the health care in the prisons are regulated by and practiced in accordance with the Protocol and the Regulation of the Health care in Penitentiary Institutions. The concerns set forth by the Special Rapporteur regarding insufficient health care do not reflect the reality according to the government.
Indeed, as the Special Rapporteur rightly pointed out, the Turkish prisons are not proper places for already ill detainees nor for those subsequently caught by illness. A large number of families have complained that their detained relatives have not been provided sufficient medical care. Some examples:
Mehmet Tosun, a 29-year-old dismissed judge, died of cancer on 4th of March 2017. He was kept in prison until a couple days before his death and was not provided proper medical care.
Gokhan Acikkollu, a teacher, died under custody due to torture. Forensic expert and head of Human Rights Foundation in Turkey, Professor Fincancı, examined the evidence surrounding Açıkkollu’s death and concluded that the cause was torture. She notes the daily complaints by Açıkkollu, the corresponding bruises and lesions, and development of acute stress disorder. Stress and trauma are high risk factors for cardiovascular disease. She emphasizes that whether the rib fractures were due to the cardiac massage or kick to the chest, the important factors are that he did not receive an x-ray after the kick and that his death was due to torture. She adds that the poor conduction of medical examinations violated the Istanbul Protocol and the Minnesota Protocol.
Ahmet Turan Ozcerit, an academic dismissed and arrested in the aftermath of the failed coup, died of liver cancer. While under pretrial detention, Özcerit was diagnosed with cancer in his liver and intestines. His son Sinan Özcerit has regularly shared updates regarding his father’s time in prison and about the academic’s ultimate release from prison to a hospital.
“They beat my father and tortured him. We got doctor report for that. He was forced to stay with 20 other people in a 4-people cell. They slept in turns as there was no enough space for everyone to sleep at the same time. When he was transferred from police custody to prison, he said it was like a paradise to stay in prison comparing to the previous place,” Sinan earlier told media. On Feb 12, the son announced that Özcerit passed away.
These are only several examples to those who have not received necessary medical care in detention centres. There is evidence that doctors do not report the torture and mistreatment due to rightful fear of repercussion. Medical examinations take place in detention facilities and in the presence of police officers. Authorities have repeatedly denied detainees and their lawyers’ access to medical reports that could substantiate allegations of ill-treatment during arrest or detention, citing secrecy of the investigation.
Other impediments to forensic examinations of torture outlined by Nils Melzer and others include: that many doctors are not torture specialists; forensic experts are dismissed and detained; mental health is not evaluated; and that there are allegations of examination delays until visible evidence of torture is gone.
Last but not least, even the information given by the government indicates that there cannot be sufficient medical care in Turkish prisons. Saban Yilmaz, the General Director of the Penitentiary Institutions, presented information to the Parliamentary Inquiry Commission on Human Rights. He stated that there are only 271 doctors working in Turkish prisons where 235,888 detainees are accommodated.
12. In paragraphs 83 and 84, the government claims that “the Law 6722 does not grant any immunity for any law enforcement official” and these provisions does not mean a “blanket of liability”.
This provision has been enacted to provide a judicial shield for the participants of the disproportionate operations conducted in the South East of the country – where the Kurdish population is majority – just before the controversial coup attempt. Within the growing intimidation atmosphere of the state of emergency rule in Turkey, that legislation turned into another blank check for torture and inhuman treatments alongside the further full protection shield established by the decree-law no. 667, as already mentioned.
13. In paragraph 89, the government claims that the European Court of Human Rights (ECHR) “clearly recognizes the Inquiry Commission as a legal remedy” which has been established by the decree law no 685.
In its Koksal decision (70478/16), the ECHR accepted this mechanism as a remedy to be exhausted for the moment as a result of a long dialogue conducted between the Council of Europe and Turkey in order to gain time against the flood of cases. In this decision, the ECHR ruled that the burden of proof would be on the government in the following case regarding the effectivity of the Inquiry Commission.
14. In paragraph 90, the government claims that 35 thousand public employees have been reinstated.
This is a clear misinformation argument often used by the government in their relations with international bodies. Apart from the public servants purged directly through decree-laws, there are many employees suspended from the service but not finally dismissed. This figure represents the number of reinstated officials after a long suspension period who have not been subject to dismissal sanction. Furthermore, for the Spokesman of the government this number is 33,483, and for the President Erdogan,it is 38,000, giving an idea about the credibility of the argument. The real number of the reinstated public servants is 3,604 according to Bekir Bozdag, the Deputy PM.
15. In paragraph 121, the government states that “Turkey is a party of the European Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment since 1989, … all institutions or locations where individuals may be deprived of their liberty are also open to international monitoring”.
A delegation of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) carried out an ad hoc visit to Turkey from 29 August to 6 September 2016 for purposes of examining the treatment and conditions of detention of persons who have been detained in connection with the controversial coup attempt. However, the Turkish government has not given its consent for publishing the CPT’s report regarding this visit. The government’s refusal for making the document public raises rightful doubts that this report contains many disturbing assessments concerning the situation of the coup suspects in terms of torture and inhuman treatments.
The Turkish government postponed a visit by the predecessor United Nations Special Rapporteur on Torture to the country, scheduled to take place from October 10 to 14, 2016. Current Special Rapporteur Nils Melzer also found his visit restricted to only five working days instead of the average 10 to 14 days allowed by other UN member-states. He emphasised that he was prevented from conducting a “comprehensive” and “objective” analysis of many of the “issues of mutual interest”, which of course is not noted in the government’s response to his findings.