The long walk of Turkey to the protection of fundamental rights of detainees: some comments on the latest report of the CoE.

1. Introduction

On 15th January 2015 the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report issued after its last visit to Turkey between the 9th and the 21st June 2013, that coincided with the “Gezi Park” protests. The publication of the report was requested by the Turkish Government which also issued a subsequent reply.

The work of the Committee arose out of the need to observe and report upon the conditions of detainees in Turkey, particularly the treatment of the inmates in police custody or serving a custodial sentence. This analysis  highlights some parts of the complex document –  including the observations and recommendations of the CPT – concerning allegations of ill-treatment suffered by detainees in general, as well as by national and foreign protesters, journalists and lawyers (among others) in Police custody during the Gezi Park protests. This post aims, in particular, to review some aspects of the report and the Turkish authorities’ response in the light of the events at Gezi Park, as well as the current state of fundamental rights protection in Turkey.

2. The content of the Report of CPT.

The CPT visited different establishments, such as the Ankara, Istanbul and Diyarbakir Police Headquarters and various national prisons. It also heard depositions of detainees and consulted various institutions and organisations (e.g. Representatives of Ministry of Justice, Interior, Health and National Defence, the Turkish Bar Association, the Human rights Association and the Human Rights Foundation of Turkey). The Committee expressed its appreciation for the Turkish authorities’ cooperation in allowing it to perform its investigative duties. The Turkish government’s intention to cooperate has also been demonstrated in the issuing of its response.

The data which emerged from the CPT report highlights some crucial aspects of the conditions of police custody and the ill-treatment suffered both in general and in the particular context of the Gezi Park demonstrations.

A. General Observations

The Committee documented a massive number of allegations, by detained persons, of physical and verbal ill-treatment by police officers, especially the disproportionate use force at the time of apprehension: these reports came, largely, from the south eastern part of Turkey and related to delays in the exercise of the right of notification of custody to relatives, and the denial of the rights to promptly contact and meet a lawyer in private and the presence of a lawyer during questioning.

The CPT also underlined “that it has serious misgivings about certain amendments which were made in 2006 to the 1991 Law on the Prevention of Terrorism” (report p. 15, para. 27) in relation to suspects of terrorism-related offences: these amendments introduced the possibility to deny the right of access to a lawyer in the initial 24 hours of custody and, upon the request of Prosecutor, granted by a judge, to require an officer to be present at the meeting between the suspect and his/her lawyer, where it is suspected that the latter might be a valid connection between the detainee and the terrorist organisation.

In the light of several allegations it received, the Committee strongly recommended the respect for the right of suspects and detainees to be clearly informed of their fundamental rights orally and, subsequently, in writing through the Suspects Right Form, without delay, as provided by the Detention Regulation. The binding right to a medical examination and to have access to a doctor in private were also stressed.

The CPT repeatedly reiterates the recommendation for all departments (not only those related to terrorism) to monitor and record the interviews of detained person by law enforcement officials as a key additional safeguard against ill-treatment.

B. Observations in the context of Gezi Park protests

The delegation visited different prisons with the aim of investigating police crowd control operations in relation to the demonstrations that were ongoing at that time: it interviewed persons deprived of their liberty and estimated how many protesters were detained in ordinary, juvenile and anti-terror departments.

The delegation was informed by the authorities that a substantial number of demonstrators were not held in detention in Ankara and Istanbul for more than 24 h. Despite that, several demonstrators who had been detained made allegations of: the disproportionate use of force during apprehension; different forms of violence and abuse (including verbal abuse); and the use of arms, such as the tear gas, in enclosed and confined spaces.

Some detainees also complained that police officers had intervened in demonstrations without, or concealing, their identification number. Several others reported that officers had been present during medical examinations that were carried out on them while they were in custody.

Despite the violations cited above, in point A, in the context of the Gezi Park protests, the delegation favourably noted the generally positive implementation of fundamental safeguards against ill-treatment following police operations; people in custody were informed of their rights and also had the opportunity to inform relatives about their condition and usually, if requested, to access a lawyer within a reasonable time. This was positive, especially when compared to the general situation in the rest of Turkey, for example, the departments in South Turkey. Nevertheless, the delegation still requested information about the stage of investigations against the officers suspected of committing the abuse.

3.  Legal Analysis

The CPT submitted a considerable number of recommendations. Despite the complexity and insightfulness of the report in most respects, in the section regarding ill-treatment in police custody, the Committee applied an interpretation of the “effective right to access a lawyer” that is unconventional, particularly in relation to the contemporary interpretation of the guarantee.[1] It specified that the objective of guaranteeing effectiveness “is not linked to issues of due process or the right to a defence; it is aimed at preventing ill-treatment.” Undoubtedly the clear intention of the Committee was to highlight the binding duty to prevent the risk of intimidation and ill-treatment “following the deprivation of liberty”, before the affirmation of any other guarantees. However, under the most recent interpretation of Article 6 of the European Convention of Human Rights, the right to an effective defence includes the whole gamut of guarantees linked to a suspect’s status, from the beginning of the investigation or the first application of a measure depriving liberty. The specification of by the Committee is, therefore, probably unnecessary.

The Turkish response

In its response to the report, the Turkish Government expressed its intention to implement the recommendations. It also answered several requests for information and clarified certain points. Its carefully drafted, detailed document seemingly aimed to answer all the questions raised by the CPT, in the same spirit of cooperation shown during the visit of the delegation. Despite this, the document did not properly address all concerns. For example, it did not give sufficient information about the stage of its investigations, prosecutions or disciplinary measures against those responsible. Neither did the Government indicate its willingness to condemn the numerous cases of abuse, suffered both in police custody, in general, and during the demonstrations of Gezi Park, in particular.

On the basis of the allegations in the Report, as well as the Response, it would appear that two of the areas in which there is a high incidence of police abuse are the Diyarbakir and Sanliurfa areas in south eastern Turkey. It is notable that a large part of the Kurdish minority still lives in these areas, particularly in Dyarbakir. This is probably relevant to the evaluation of the general Turkish situation in the field of protection of fundamental rights, above all in the matter of the historical controversial relationship between Turkey and Kurdish ethnic minorities.

The importance of the Report and the comprehensive Response of the Turkish Government on such a sensitive topic is linked to the necessity for full transparency about the policy of binding fundamental rights of individuals. Despite the notable improvements and positive cooperation shown by Turkey to the CPT, the current state of fundamental rights protection still appears to be extremely critical. Furthermore, as noted by Human Rights Watch last December, it appears the Turkish Government has proposed the adoption of several measures aimed at expanding police powers of search and detention and, at the same time, circumventing the prosecutor and judicial control).

Moreover, on 15th January 2015, the European Parliament adopted a resolution on freedom of expression in Turkey, after having “virtually” observed the recent arrests of journalists and media executives and stressing that the operations must respect the rule of law and freedom of media.

4. Conclusion

Over the last few years, the European Union has repeatedly discussed Turkey’s admission into the EU. Despite the extraordinary history of this country since the new-birth under Mustafa Kemal Ataturk, unfortunately the continuing violation of human rights continues to act as one of the factors that prevents the E.U. from considering the opportunity to welcome Turkey in the Union. The current tensions in the social and political fields, as well as the human rights problems reflected in the report, represent the enduring clash between the will to move forward and the repeated, continuing violations, which Turkey has not yet succeeded in overcoming.

[1] Report of the CPT, p. 16.

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