Yearly Archives: 2016

HSYK: first dismiss the judges/prosecutors, then search for evidence against them.

Deputy Chairman of the Supreme Board of Judges and Prosecutors (HSYK) Mehmet Yılmaz has denied a previously made statement and said confessor prosecutors and judges will not be allowed return to their posts in the Justice Ministry.

“No worries. The HSYK will not return anyone who avails themselves of the Effective Repentance Law to duty again. Our board is determined on this issue,” said Yılmaz, speaking to columnist Sevilay Yükselir.

Thousands of judges and prosecutors have been suspended by the HSYK while many have been detained or arrested on the grounds that they have links to the Gülen movement, which is accused by the Turkish government of masterminding a failed coup attempt on July 15.

Speaking to the Anadolu news agency on Oct. 21, Yılmaz had said: “At the general assembly, we will discuss keeping those [suspended] judges and prosecutors in their jobs whose confessions [related to the Gülen movement] are helpful and important.”

Recalling his previous statement, Yılmaz said: “I made that statement merely to encourage confessions, and it was very successful. There were no confessions at that time, but after I issued the statement, many were obtained. By means of more than 200 confessors we gathered evidence on the FETÖ membership of 2,400 judges and prosecutors.”

HSYK’s Yılmaz admits it was a trick, confessors not to return to judicial posts

HSYK Başkanvekili: Niyetim itirafçılığı teşvik etmekti!

Comments:
It is clearly understood from the interview that
1. At time of the mass arrests of judges there was no evidence. They just started to try to find something after the arrests. It seems they still don’t have anything.
2. Criminal prosecution have been conducted  by the HSYK not by the prosecution office.
3. HSYK is weighing the evidence not the courts.
4. The deputy head of HSYK lied to everybody to produce evidence; he intentionally manipulated not only the judges but also the public.
5. In the last paragraph of the article he says there is no link between the judges and the attempted coup.

EVALUATIONS IN RESPECT TO THE ECHR DECISION OF ZİHNİ V. TURKEY (08.12.2016)

Is the ECtHR taking it’s task to fight against violation of Human Rights serious or just trying to avoiding a flood of appeals ?

1. The Summary of the Decision and the Application:

1.1. In its decision in the case of Zihni v. Turkey, the European Court of Human Rights has unanimously declared the application inadmissible which presents great importance for many individuals dismissed from their duty by the emergency legislative decree no.672.

1.2. In its decision, in summary, the Court rejected the application for non-exhaustion of domestic remedies.

1.3. The Court noted in its decision that Mr Zihni had an obligation to make use of the domestic judicial remedies available to him under Turkish law, namely an administrative action and an individual appeal to the Constitutional Court.

1.4. The court noted that in its judgment of 4 November 2016, the Supreme Administrative Court had examined an application for judicial review lodged by a judge who had been dismissed following a decision issued by the High Council of Judges and Public Prosecutors under emergency legislative decree no.667 and found that the Supreme Administrative Court did not have jurisdiction to examine that application, but it was primarily for the administrative courts to examine such applications. Attributing this decision, the Court stated in its decision that despite the judicial remedy of administrative action was appealable to the applicant, he had not shown in his application that it was not an effective remedy in order to assert his rights (para. 24).

1.5. In case of individual appeal to the Constitutional Court, the Court stated that the rejection of the appeal by the Constitutional Court on the issue that CHP, main opposition party, challenged the emergency legislative decrees, had not absolved the individuals from the obligation of exhausting the remedy of individual appeal. So, the Court noted that it should have been shown that at the relevant time the remedy of an individual application, like that of an administrative action, had not been accessible in practice to Mr Zihni. However, because of the reason that Mr. Zihni could not be able to present the reasons why both remedies, an administrative action and also the individual appeal did not offer any chance of success in his application, the court dismissed the complaint of him for failure of non-exhaustion of domestic remedies.

1.6. While being the rejection of the Court decision based on the above-mentioned reasons, the applicant apperantly lodged his application with the following two main complaints:

1.6.1. No remedy was available to examine the emergency legislative decrees for constitutional and judicial rewiev in Turkish law.

1.6.2. Because of the reason that two members of the Constitutional Court had been dismissed, in such a context, the Constitutional Court was not in a position to reach a decision impartially.

On the light of two complaints above, relying on there was no effective remedy in domestic law, the applicant lodged his application directly with the ECHR.

1.7. As to be understood, the applicant could not be able to show in the application that both two remedies, administrative action and individdual appeal, were not effective and accessible in law and also in practice.

1.8. On the other hand, as stated in the decision of ECHR, the applicant is obliged to exhaust the domestic remedies which are effective only in law and in practive at the relevant time of the application in terms of his/her each complaint, put forward by him/her (para 22 and 23).

2.The Issue on Whether The Administrative Action is An Effective Remedy or Not

2.1. Firstly, it should have been complained in the application that the administrative judicial bodies, both the Supreme Administrative Court and ordinary administrative courts, had no jurisdiction to examine the emergency legislative decrees for judicial rewiev, so this way of domestic remedy is not effective in law. Moreover, one more complaint also should have been stated by the applicant that the administrative judicial bodies had already rejected such applications; on the one side, administrative courts rejected such applications with the justification of “non-existence of an adminisrative act ” just like the decision of 8 September 2016, rendered by the Province of Trabzon Administrative Court; on the other side, in its judgement of 4 April 2016, the Supreme Administrative Court also dismissed the complaint of the applicant, dismissed from his/her duty by the legislative decree no.662, (application no.2014/1845E, 2016/1931K) with the justification of “non-existence of an administrative act which can be subjected to the judicial review of administrative judicial bodies.

2.2. As to be understood, for those who were dismissed from their duty by the emergency legislative decrees, there is no access to this remedy, an administrative action, not only in law but also in practice. Furthermore, the violation of many fundemental rights is originating from the emergency legislative decree itself. Unless the emergency legislative decree is annuled, the violation of the basic procedural rights, notably as the presumption of the innocence, legal certainity, right to a fair trial, individual criminal responsibility, right to an appeal, right to be effectively defended by a lawyer will be continuing as a regular practice. However, both the Supreme Administrative Court and the ordinary administrative courts have no jurisdiction to examine the emergency legislative decrees for the judicial rewiev. All these complaints should have been stated in the application by the applicant.

2.3. Moreover, being attributed by ECHR in its decision, the Supreme Aministrative Court decision of 4 November 2016, examined for judicial review lodged by a judge who had been dismissed following a decision issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667 is not a suitable example for the case of Zihni v. Turkey;

2.3.1.Because, the judges and the prosecutors were dismissed following a decision issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667. However, in the case of Mr. Zihni, the dismissal measure is directly commanded by the decre law itself (in the form of “lists” appended to the decree laws), without acting any administrative transaction. Because of this reason, at the relevant time Mr Zihni did not have effective access to this remedy, an administrative action, due to the reasons mentioned in 2.1 and 2.2.

2.3.2.On the other side, although it seems that the judges and prosecutors have an effective remedy of administrative action for judicial review of dismissal decisions issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667, actually this remedy is not effective also for the judges and prosecutors due to the reason that the Supreme Council had issued the mass dismisssal decisions being based on the emergency legislative decrees. Likewise, the deputy chairman of HCJP, Mehmet Yılmaz, declared in his press release that unless the emergency legislative decrees enacted, they could not be able to dismiss thousands of judges and prosecutors. In other words, it is necessary to consider the mass dismissals of the judges and prosecutors are directly based on the emergency legislative decrees, so, the adminisrative action is not effective remedy also for the members of the judiciary to assert their rights.

3. The Issue on Whether the Individual Appeal is an Effective Remedy or Not

3.1. In respect to the individual appeal to Constitutional Court, it is considered necessary to emphasize the applicant does not have an effective access to this remedy due to the following justifications.

3.2. The applicant should have complained that as the Constitutional Court had no jurisdiction to examine the emergency legislative decrees for constitutional rewiev, the remedy of individual appeal was not an effective remedy in law and it had a decision in line with this issue so as to be ineffective also in practise. In accordance withthe § 3 of Article 45 of Law no. 6216 (On establishment and rules of procedure of the Constitutional Court), it is impossible to lodge an individual appeal against the legislative acts and regulatory administrative acts. After stating the ineffectiveness of this remedy in law in the application, it should have been also complained that this remedy was not effective in practice, attributing the decision of the Constitutional Court dated 30/11/2016, in which it declared itself incompetent to examine the constitutiality of the emergency decree laws. In its mentioned judgement (application no. 2014/4233), the Constitutional Court rejected the application of all rapporteur judges expiring with the term of office by the law enacted on 27 February 2014 with the the justification that it did not have a jurisdiction to examine it, otherwise, it became violated the main principle of the separation of the powers, moreover, it would be contrary to the § 3 of Article 45 of Law no. 6216.

3.3. In the present case the violation of the rights of the applicant is originating from the emergency legislative decree itself. Due to the fact that legislative decree has a charasteristics of law and the legislative acts are not subjected to the individual appeal to the Constitutional Court, it is concluded that the possibility for the Constitutional Court to take a similar decision with the case of rapporteur judges metioned above in which the Court declared itself incompetent. As a result, the remedy of the individual appeal was also not effective at the relevent time of the application.

4. In General, the Effectiveness of the Domestic Judicial Remedies and the Opinion of the Venice Commission on This Issue (http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(201…)

4.1. ECHR looks for some qualifications that the domestic remedies should have; among which are effective not only in law but also in practise, offering the the chance of success for the settlement of the case etc. However, the judicial bodies, completely controlled by the ruling party immediate after the High Council of Judges and Prosecutors (HCJP) elections held in 2014, have not been able to make impartial and independent decisions due to being under strong political pressure. Following the coup attempt of 15 July, taking large-scale decisions against judges and prosecutors, HCJP dismissed and arrested thousands of judges and prosecutors under the emergency legislative decree, the remaining member of the judiciary, on the other side, wary that any decision undermining the interests of the executive may affect negatively their careers. As of today in Turkey, in a case of an applicant, lodged by a public official dismissed from his/her duty over the alleged link with FETÖ (which have been already rejected by the Supreme Administrative Court and ordinary administrative courts with the justification of non-existience of any administrative acts due to being based on the emergency legislative decrees), such hero judges are needed to make decisions impartially and independently. Because, the judges face to threat of being dismissed or arrested over the charges of having membership in FETÖ at the time when they render a verdict that undermine the interests of the executives. For instance, the head and the judges of 2nd Criminal court of the Province of Hatay were prosecuted on charges of having membership in FETÖ by HCJP without losing any time because they rejected the indictment drafted by the Chief Public Prosecutors’ Office concerning N.K. due to lack of concrete evidences and specific facts in case file.

4.2.In addition, the dismissed victims have difficulty in finding lawyers to defend themselves. The lawyers charge surprisingly high costs for providing legal services because of the reason that in case of they defend those clients allgedly linked with FETÖ, they face to the risk of being arrested on the same charges. Under such circumstances, it is impossible to claim that the domestic remedies in Turkey are effective, accessible or offer any chance of success in asserting their rights. In line with this, Venice Commission stated in its press release dated December 9, 2016 that the dismissals were apperantly not subject to judicial rewiev by the ordinary courts, or, at least, the accessibility of the judicial review remains a matter of controversy.

4.3. Furthermore, the Venice Commission also pointed out in its opinion formulated upon the request by the Monitoring Committee of the Parliamentary Assembly of the Council of the Europe (PACE) that there are two main obstacles for the domestic judicial remedies before the application with the ECHR. Firstly, the Commission attracted the attentions to an obvious paradox related to the constitutional and judicial review of the emergency measures. It noted : “On 4 August 2016 the Constitutional Court dismissed two of its members, thus confirming, in essence, the validity of Decree Law no. 667 which served as a legal basis for that very decision. Furthermore, the Court of Cassation and other supreme courts of Turkey, as well as the HCJP, dismissed thousands of judges using the extraordinary powers given by Decree Law no. 667. This means that challenging the legitimacy of the process of mass dismissals of judges and prosecutors before those courts will have little chance of success. The judges and prosecutors may probably still seek review of their individual cases, or challenge other aspects of the decree laws, but the general legitimacy of the scheme of dismissals de facto cannot be put into question.”

4.4.The other and more serious obstacle according to Venice Commission is the term “directly” mentioned in § 3 of Article 45 of Law no. 6216: “Individual applications cannot be made “directly” against legislative acts and regulatory administrative acts and similarly, the rulings of the Constitutional Court and acts that have been excluded from judicial review by the Constitution cannot be the subject of individual application.” This article obviously shows that the legislative acts can not be the subject of individual application.

4.5.Likewise, the Turkish Government, in its Memorandum on p. 35, stated, the mass dismissals attached to decree laws had the characteristic of legislative activity in technical terms, so, both the lawsuit and the individual application remedy were not available against these transactions. The mentioned citation is as follows “As the judicial remedy is available against the administrative transactions performed by the administrative boards based on the authorization granted by the Decree Laws […], individual application can be made against these transactions. On the contrary, as the expulsion transactions performed as attached to the Decree Laws have the characteristic of legislative activity in technical terms, both the lawsuit and the individual application remedy are not available against these transactions.”

4.6.Attributing to the government’s above-mentioned memorandum, the commission concluded that if the individual measure is commanded by the decree law itself (in the form of “lists” appended to the decree laws), this measure is, arguably, appealable neither before the Constitutional Court nor before the ordinary courts.

5. Conclusion

5.1. Unfortunately, in its decision, the Court stated that it had not been shown that at the relevant time Mr Zihni did not have effective access to both remedies, an administrative action and the individual appeal, in order to assert his rights. However, if the reasons, mentioned above, had been complained by Mr. Zihni in his application, and these complaints had been discussed in the Court decision, the Court would probably not have declared the decision inadmissible.

5.2. It is certain that the courts make their decisions on the basis of the evidences, complaints and justifications taking place in the applicaion, in principle. If the above-mentioned complaints had been lodged before ECHR in the application, at high probability, the decision of the Court would not have been inadmissible.

5.3.Unfortunately, it seems that the Court took the decision in the case of Zihni v. Turkey as a result of a judgement which is lack of above-mentioned complaints. However, the mentioned decision was taken by the Court and it will be precedent for other cases which are going to be brought before the ECHR by the individuals dismissed from their duty by legislative decrees of the state of emergency. Attributing the decision of case of Zihni v. Turkey, there is a risk of rejection of such cases by a single-judge without re-examination. However, on the light of above explanations, it is considered that the new applications, lodged by many individuals in the same situation as Mr. Zihni, should be examined by the Court, provided that the application is prepared as well-justified by means of absolute evidences regarding on the issue that the domestic remedies are not effective both in law and in practice.

Opinion of the Venice Commission on the Turkish Emergency Decree Laws

TURKEY
OPINION
ON EMERGENCY DECREE LAWS
NOS. 667 – 676
ADOPTED FOLLOWING THE FAILED COUP OF 15 JULY 2016
Adopted by the Venice Commission
at its 109th Plenary Session
(Venice, 9 – 10 December 2016)

To help distribute this very important message I’m posting not only the link to the original message  but the opinion as a whole:

venice-commission-opinion-on-turkish-emergency-decree-laws-667-676

ENCJ votes to suspend the Turkish High Council for Judges and Prosecutors

ENCJ votes to suspend the Turkish High Council for Judges and Prosecutors PDF Print E-mail
To help distribute this very important message I’m posting not only the link to the original message but the message as a whole:

The ENCJ unites the national institutions in the Member States of the European Union which are independent of the executive and legislature, and which are responsible for the support of the Judiciaries in the independent delivery of justice.  It aims to improve cooperation between, and good mutual understanding amongst, the Councils for the Judiciary and the members of the Judiciary of the European Union (or candidate) Member States.

It is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice.

The ENCJ became concerned that the procedures adopted by the High Council for Judges and Prosecutors of Turkey (HSYK) indicated that this condition was no longer satisfied.

The General Assembly of the European Network of Councils for the Judiciary (ENCJ) gathered in The Hague on 8thDecember 2016 to discuss and decide on the position of the HSYK in the Association.

The ENCJ has been following developments in the judiciary in Turkey since 2014 and has expressed its concern both in its correspondence with the HSYK and publicly in the Declaration of the Hague (June 2015), the Declaration of Warsaw (June 2016) and more recently after the mass-suspension of judges and prosecutors and again following their dismissal.

The HSYK has been given ample opportunity to explain their actions. They took the opportunity to do so by sending its resolution of the 31st August and by explaining the situation at the extraordinary General Assembly in The Hague on 8th December 2016.

The ENCJ acknowledges the huge impact and subsequent national trauma caused by the events on 15th July 2016. Those responsible should be made accountable through an open, fair and impartial judicial process conforming with international standards.

It is no part of the function of the ENCJ to take a position on the internal political situation in Turkey.  However, taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.

The General Assembly accordingly resolved to suspend, with no Council voting against, the observer status of the HSYK. Therefore, the HSYK is, for the time being, excluded from participation in ENCJ activities. The ENCJ is however open to staying in contact with the HSYK and is prepared to offer its assistance and guidance in setting out and compliance with the European Standards for Councils for the Judiciary.

 

Done in The Hague 8 December 2016

Venice Commission 09.12.2016: Turkey went too far with the emergency measures

Press release – DC191(2016)

Turkey had good reasons to declare the state of emergency but went too far with the emergency measures: Venice Commission

To help distribute this very important message I’m posting not only the link to the original message but the press release as a whole:

 

 

Venice, 09.12.2016 – An opinion adopted today by the Council of Europe’s constitutional law experts – the Venice Commission– concludes that Turkish authorities had been confronted “with a dangerous armed conspiracy” and had “good reasons” to declare the state of emergency, but that measures taken by the Government went beyond what is permitted by the Turkish Constitution and by international law.

The opinion – as requested by the Monitoring Committee of the Council of Europe’s Parliamentary Assembly in the wake of the July coup attempt – decries measures taken to dismiss rather than suspend civil servants and to liquidate associations instead of putting them under temporary State control.

Even though provisions of the Turkish Constitution on the declaration of the state of emergency appear to be in line with common European standards, the Government implemented its emergency powers through ad hominem legislation. Thus, “tens of thousands of public servants” were dismissed on the basis of lists appended to emergency decree laws. Those collective dismissals did not refer to verifiable evidence, related to each individual case. According to the opinion, the speed with which those lists appeared implies that the collective dismissals were not accompanied even by a minimum of procedural safeguards. Those dismissals apparently are not subject to judicial review by the ordinary courts, or, at least, the accessibility of the judicial review remains a matter of controversy. Such method of purging the State apparatus creates a strong appearance of arbitrariness.

The opinion acknowledges alleged connections of some of the public servants to the Gülenist network or other organisations considered as “terrorist”. However, the concept of connections has been too “loosely defined and did not require a meaningful connection with such organisations,” which may reasonably cast doubt in the loyalty of public servants. The Commission stressed that even assuming that some members of the Gülenist network participated in the failed coup, that should not be used to extend criminal and disciplinary liability to all those who had some contact with the network in the past.

The opinion is concerned that it is unclear whether the Constitutional Court has the power to thoroughly review the constitutionality of the emergency decree laws, as it should. The Commission supports a proposal made by the Secretary General of the Council of Europe, concerning the creation of an independent ad hoc body for the examination of individual cases of dismissals, subject to subsequent judicial review.

The opinion criticises the provision granting the law-enforcement bodies the power to detain suspects in custody without judicial review for up to 30 days. The Commission is also concerned with possible limitations on the access of a detained suspect to a lawyer of his/her choice: any such limitations should be exceptional, and should be justified by the specific facts.

The entire opinion as adopted by the Venice Commission will be made available to the public on Monday 12 December.

During its fourth and final plenary session of the year, the Commission is set to adopt other opinions, including a joint opinion with the OSCE/ODIHR on a law on political parties in Armenia, an amicus curiae brief concerning the temporary re-evaluation of judges and prosecutors (vetting law) in Albania, an opinion on draft law on the Constitutional Court of Ukraine and an opinion on draft law fighting cybercrime in Moldova, among others.

Contacts:
Can Fişek, Spokesperson/Media officer, tel. +33 6 75 65 03 41
Tatiana Baeva, Spokesperson/Media officer, tel. +33 6 85 11 64 93

Council of Europe Directorate of Communications
Tel: +33 (0)3 88 41 25 60
Fax:+33 (0)3 88 41 39 11
pressunit@coe.int

www.coe.int

 

 

Message from Turkey: minutes from 01/06/2014, taken by chief prosecutor Huseyin Baş (now detained)

Preliminary remark: CHIEF PROSECUTOR HUSEYIN BAS IS IN CELL NOW!

NOTE: the Investigation mentioned in the following minutes refer to those conducted regarding the harbor corruption in which the name of current Prime Minister Binali Yıldırım’s wife´s sister’s husband is also involved.

Comment: HERE IS THE EVIDENCE FOR THE STRONG POLITICAL PRESSURE OF EXECUTIVES (RULING ERDOGAN’S AKP GOVERNMENT) ON JUDICIARY. AS OF TODAY, THE PUBLIC PROSECUTOR, RECORDING THIS MINUTE, IS HELD UNDER ARREST.

THE UNDERSECRETARY OF MINISTRY OF JUSTICE CALLS THE PROVINCE OF İZMİR CHIEF PUBLIC PROSECUTOR…

The minutes,  recorded by the Province of İzmir Chief Public Prosecutor, Hüseyin Baş, on January  7, 2014 and attached to the official letter, denouncing the conversation between  the Undersecretary of Ministry of Justice and Hüseyin Baş and submitted on January 10, 2014, reveals the following information:

“ Within the context of Investigation Document No. 2011/12445, conducted by our Chief Public Prosecutors’ Office on the issue of offences of forming a criminal organization with the intention of securing benefit, conducting a criminal  organization, having a membership in a criminal organization, bribery, corruption in tenders,  extortion, qualified plunder; an investigation was carried on by the help of taking precautionary measures such as supervising of communication and following with technical tools, like taking  a photo or video recording as the articles 135 and 140 of Criminal Procedure Code No.5271 require.  Afterwards, following the evaluation of expert reports, the catching of the suspects warrants and search warrants were issused by the competent court on January 6, 2014 and then those warrants were submitted to the Province of İzmir Security General Directorate for execution of them after work.

When I was at home, my phone, 05305275135, was called by the secretary of Kenan İpek, Undersecretary of Ministry of Justice, from his office, and the secretary told me that Kenan İpek wants to have a phone call with me at 19:38 on January 6, 2104. Firstly, he inquired after my health and then asked about the process of the investigation, conducted. I informed him about it shortly. Upon this, he demanded me to cease the investigation process urgently and  also change the public prosecutor, carrying out the investigation and added that he was waiting in his office in order that I let him know the conclusion. Although I explain him in detail that there is no undue or unlawful procedure in the investigation proceedings in law and in practice,  he insisted that I cease  ongoing investigation, change the public prosecutor, carrying out the investigation and also retake the court verdicts (search and catching warrants)  from the law enforcement agencies aftermath of a 4-minute-phone call. Telling again that he is waiting for the reply, he turned off the phone.

Later at 22:31, calling me again, Undersecretary of the Ministry of Justice asked  what I had done. In response, I kindly explained him in detail that, all the proceedings were in line with the principles of  law and there was no need for interference to the investigation process. Then, adressing me, he told that: “At this time of the night, go ahead and change that prosecutor, carrying out the investigation,  cease the investigation and cancel all the proceedings up to now, otherwise, you bear a loss of disobedience.

I refused to put his demand, looking like an order, into practice , due to all the proceedings with regard to the conduction of investigation were in accordance with the law and in full respect for the fundemental rights.

This minute, representing the conversation between Kenan İpek and me, taking place at 19:38 and 22:31 on January 6, 2014,  was recorded and signed by myself . 07.01.2014”

http://www.sozcu.com.tr/2014/gundem/iste-bekir-bozdagin-tutanagi-458093/

https://t24.com.tr/haber/huseyin-bas-sunun-bunun-degil-ben-cumhuriyetin-savcisiyim,249177

Preliminary observations and recommendations of the United Nations Special Rapporteur on torture … regarding visit in Turkey Nov/Dec 2016

Due to the importance of the information and for helping spread it, the full text of the Preliminary observations and recommendations of the United Nations Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Mr. Nils Melzer on the Official visit to Turkey – 27 November to 2 December 2016 are published here not only with a link to the original message but in full lenght.

Ankara, 2 December 2016

I. Introduction

At the invitation of the Government, I visited Turkey from 27 November to 2 December 2016 to assess the prevailing situation and challenges concerning torture and other cruel, inhuman or degrading treatment or punishment.

At the outset, I would like to express my sincere appreciation to the Government of the Republic of Turkey for renewing the invitation extended to my predecessor to visit the country. I thank the Turkish authorities for the excellent cooperation my team and I enjoyed during the visit, and for the efforts displayed by the representatives of the Ministry of Foreign Affairs to facilitate and organise meaningful official meetings. I would also like to thank the United Nations Resident Coordinator and the United Nations Office in Turkey for supporting my team before and throughout the visit.

Since 15 July 2016, Turkey is going through a critical moment of its modern history. In this era of uncertainty, I wish to express my sincere solidarity with all segments of the Turkish population. Despite the difficult circumstances facing the country, the discussions I had with Turkish officials in Ankara, Diyarbakir, Sanliurfa and Istanbul were open, frank and constructive. During my visit, I had the opportunity to exchange views with high level officials of the Ministries of Foreign Affairs, Justice and Interior in Ankara. I also had valuable discussions with Magistrates of the Constitutional Court and of the Court of Cassation, with the Public Prosecutors of Ankara and Diyarbakir as well as with members of the Forensic Medical Institute in Istanbul. I also had the opportunity of meeting extensively with devoted Turkish activists, lawyers and doctors as well as with members of non-Governmental organisations. I also met with representatives of the diplomatic community in Ankara.

Throughout our visit, my team and I enjoyed unrestricted access to all places where people are deprived of their liberty and were able to interview inmates in private, in accordance with the terms of reference of my mandate. For that, I again express my sincere appreciation to the Government of the Republic of Turkey. In the course of the past week, we visited the Sincan prison complex in Ankara, including the F-Type High Security and the female detention facilities, the D-type high security and E-type closed prisons in Diyarbakir, including the male, female and juvenile Sections, the Counter-Terrorism Police lock-up in Sanliurfa and two police stations in Esenler as well as the Closed Prison Nr. 9 of the Silivri Penitentiaries Campus in Istanbul. In these places of detention, we conducted private interviews with numerous male, female and juvenile inmates, including persons arrested for reasons related to the failed coup, persons detained or convicted in relation to the situation in the South East, for organized crime or common crimes.

II. Preliminary findings

Given the limited duration of my stay in the country, and the limited number of detention places and inmates visited, the observations I am presenting today are preliminary and non-exhaustive. Based on the information collected during my mission, I will draft a more comprehensive and updated report that will be presented to the United Nations Human Rights Council in March 2018.

1. Legal and procedural framework

In principle, Turkey’s institutions and legislation provide sufficient safeguards against torture and ill-treatment. Thanks to the commitment of the Government, substantial progress has been made in the fight against torture since the 1990s. Article 17 of the Turkish Constitution, articles 94 to 96 of the Criminal Code and articles 147 and 148 of the Code of Criminal Procedure provide legal standards for the prevention and investigation of torture and other forms of ill-treatment and for the exclusion of evidence extracted under torture. Judicial safeguards are in place, including at the level of the Constitutional Court, which allow individuals to directly file petitions for allegations of human rights violations, torture and ill-treatment included.

During our meetings with the authorities, all officials of the judicial, legislative and executive branches of the State emphasized their commitment to Turkey’s “zero tolerance” policy on torture. At no point did any official at any level in the hierarchy challenge the absolute and non-derogable prohibition, or suggest any exceptions or interpretations inconsistent with international law.

2. Disconnect between policy and reality

However, during my interactions with inmates, lawyers and civil society representatives, I also received persistent allegations suggesting a serious discrepancy between the legal and procedural safeguards put in place and their actual implementation as far as the investigation of alleged violations is concerned. Based on my preliminary assessment, this discrepancy seems to be the result of several coinciding factors:

The sweeping security measures taken by the Government in response to the failed coup of 15 July 2016 seem to have resulted in a general sense of intimidation and distrust in many segments of the population, preventing not only inmates and their families, but also civil society, lawyers, and doctors from initiating or participating in any procedure that may be perceived – rightly or wrongly – as opposing or criticizing the Government and its officials.
Some recently passed legislation and statutory decrees have created an environment conducive to torture and other forms of ill-treatment, including:
the extension of the period of custody without judicial review to 30 days;
the extension of the period without access to a lawyer to five days;
the denial of confidential exchange between inmates suspected of terrorist crimes and their lawyers;
the introduction of immunity from criminal prosecution for forces conducting counter-terrorist operations in the Southeast.
As a consequence of the recent dismissals of thousands of judges, prosecutors and other officials, the case-load of individual complaints cannot be processed in a timely manner.
Due to these dismissals and other delays caused in administrative appointment processes, the National Human Rights and Equality Institution, which according to Turkish domestic law is also to exercise the function of the National Preventive Mechanism foreseen in OPCAT, currently cannot assume its decisive preventative role of carrying out regular, independent and objective inspections of all places of detention in Turkey.
For certain phases of detention, we also received numerous allegations of torture and other ill-treatment following the patterns outlined below. The forensic expert who accompanied me throughout the visit, conducted a number of medical examinations of inmates, some of which confirmed physical injuries consistent with the testimonies we received.

3. Post-Coup Arrests

After the state of emergency was declared in the immediate aftermath of the attempted coup of 15 July 2016, mass arrests of individuals suspected to be associated with the Gulenist movement (labelled by the Government as “Fethullahist Terrorist Organisation”, FETÖ) were conducted.

Testimonies received from inmates and their lawyers suggest that, in the days and weeks following the failed coup, torture and other forms of ill-treatment were widespread, particularly at the time of the arrest by police and gendarmerie officials or military forces and subsequent detention in police or gendarmerie lock-ups as well as in unofficial detention locations. Many of my interlocutors reported that law enforcement officials felt free to harass, intimidate and insult anyone perceived as opposing the Government or its authority, in all impunity. After this initial phase marked by arbitrariness, however, the ill-treatment appears to have ceased. Apart from occasional verbal threats, my team received no allegations and collected no evidence of currently ongoing torture or ill-treatment with respect to those inmates, male or female, who were arrested for reasons related to the attempted coup.

The majority of those reporting previously to have been subjected to torture or ill-treatment said that they did not file complaints to the authorities for fear of retaliation against them or their families and because of a deep distrust in the independence of the prosecution and the judiciary and, consequently, in their willingness or ability to adequately investigate and adjudicate their claims. Upon my request, the Turkish authorities agreed to provide statistical data on individual complaints filed for alleged torture or other forms of ill-treatment. While I have not yet received and analysed all the data requested, preliminary information gathered seems to suggest that the small number of investigations carried out by the authorities so far is grossly disproportionate to the alleged frequency of violations.

In my interactions with the authorities, I witnessed the deep and lasting trauma that the events of 15 July 2016 have inflicted on the authorities, officials and citizens of Turkey. Officials explained that the shock of the events prompted the determination of the Government to preserve the integrity and security of the institutions of Turkey. This resulted in the subsequent adoption of extensive emergency legislation. Of particular concern to my mandate are Statutory Decrees 667 and 668, which extend the period of custody without judicial review to a maximum of 30 days, and the period without access to a lawyer to a maximum of five days. Furthermore, the confidentiality of the exchange between inmates suspected of terrorist crimes and their lawyers is denied through systematic monitoring.

While I fully recognise the imperative of Turkey to protect its citizens and institutions and its right to take extraordinary measures in times of emergency, worldwide experience shows that it is precisely in the first hours and days after arrest that the risk of abuse, including torture and other forms of ill-treatment, is highest. In practice, therefore, expedient access to lawyers and judicial review and systematic monitoring by an effective National Preventive Mechanism are indispensable tools to avoid creating an environment conducive to torture and other forms of ill-treatment.

As noted above, the dismissals, the related arrests and other sweeping security measures taken by the Government in response to the failed coup of 15 July seem to have resulted in a general sense of intimidation and distrust in many if not most segments of the population, discouraging not only inmates and their families, but also civil society, lawyers, and medical doctors from initiating or participating in any procedure that may be perceived – rightly or wrongly – as opposing or criticizing the Government and its officials. As a result, allegations of torture and other forms of ill-treatment related to the failed coup have not been effectively investigated.

4. The Situation in the South-East

Since July 2015, violent clashes between the Turkish army and the PKK have resurged, accompanied by round-the-clock curfews in specific neighbourhood and cities in the South-East of Turkey. Law 6722 passed by the Turkish Parliament grants counter-terrorism forces immunity from prosecution for acts carried out in the course of their operations, thus rendering investigations into allegations of torture and ill-treatment by the involved security forces more difficult, if not impossible. The situation was further compounded with the adoption of the emergency laws and their application also in the South East.

My team and I received numerous troubling testimonies of torture and other forms of ill-treatment of both male and female inmates suspected to be members or sympathisers of the PKK. Most instances of ill-treatment were reported to have been inflicted by the police or gendarmerie in connection with the arrest itself, as well as during interrogation, in most cases allegedly in order to obtain forced confessions or denunciation of others. Many inmates reported that they had been arrested based on false accusations made against them under torture. While my team and I generally received no allegations and collected no evidence with regard to currently ongoing torture or ill-treatment, we did receive a small number of allegations by inmates of occasional brutality and degrading treatment in their current place of detention, in particular of male guards or soldiers manhandling or sexually harassing female detainees during transfers and denying them privacy during medical examinations, or both visitors and inmates being subjected to disrespectfully conducted naked searches on the occasion of open visits.

Again, the majority of those reporting to have been subjected to torture or ill-treatment said that they did not file complaints to the authorities for fear of retaliation against them and their families and because of their distrust in the independence of the prosecution and the judiciary and, consequently, their willingness or ability to adequately investigate and adjudicate their claims. Those who reported to have filed formal complaints alleged that no follow-up had been made by the prosecutor’s office.

5. Conditions of detention

Overall, conditions of detention in the visited places of detention were satisfactory or, at least, acceptable. The facilities we visited are purpose-built detention centres and generally adequately equipped. However, all of the police lock ups we visited in Sanliurfa and Istanbul, currently holding detainees for up to 30 days as allowed by the emergency decrees, clearly are neither designed nor adequate to detain anyone for more than 48 hours. The cells with barred doors do not allow for even the most basic degree of privacy and, in some places, are extremely narrow. Detainees reported a loss of their sense of time because of the constant bright lighting and, in one place, the freezing temperature, which had prevailed until the recent instalment of heaters. Inmates in police lock ups had no access to sunlight and fresh air during their entire detention.

A major concern is that all visited facilities, except Closed Prison Nr. 9 of the Silivri Penitentiaries Campus, were significantly overcrowded, with occupancy ranging from 125 to more than 200% of the actual capacity. In some institutions, the overcrowding appeared to result from the recent influx of inmates following the massive arrests after the failed coup. However, in other locations, the overcrowding was alleged to have been persistent for several years. This overcrowding has had a significant negative impact on prompt access to medical care, as well as on recreational activities, working opportunities, training activities and the frequency of family visits. Inmates under high security regimes are not allowed to work at all. While distance learning is available to all inmates, I am particularly concerned about the lack of schooling and insufficient access to recreational activities for juvenile pre-trial detainees whom I visited in a detention facility in the South-East. I also would like to reiterate my serious concerns about the conditions of detention in police lock-ups, which clearly are neither designed nor adequate for detention periods exceeding 48 hours.

While a strict separation between male, female and juvenile inmates is maintained in all visited institutions, pre-trial detainees and convicts often have been found to be held together in the same cells and blocks. On some occasions, adolescent girls have been found to be detained in female adult blocks.

Sanitary and hygienic conditions observed in the facilities are generally satisfying, but also affected by the overcrowding.

Although access to health care and dental and psychiatric support is guaranteed in principle, some improvements are required. In particular, the large facilities we visited have an insufficient number or presence time of General Practitioners compared to the number of detainees they are required to care for. This shortcoming is even more acute regarding dental care and psychological support. The supply and provision of medicines is adequate but we have noticed a lack of specific programmes for common situations in detention facilities such as contagious diseases, drug abusers and HIV/Aids. Inmates with long-term, chronical diseases including fatal diseases should be given special consideration, including potential release at an advanced stage of their illness.

The forensic medical assessment and photo documentation for inmates with signs of physical or psychological trauma seems not to be a routine procedure and occasionally seems to have been delayed until the visible signs of the trauma had disappeared. We have received numerous allegations of physicians refusing to confirm physical trauma in medical reports, and access to independent physicians at the request of inmates and their relatives was reportedly denied.

In my interactions with inmates, I heard consistent reports that naked body searches are conducted both on inmates and visitors. While there may be situations requiring such searches, their frequency seems to have increased significantly since the failed coup and reportedly can be administered at any time, without warning, which makes the adequacy of this measure even more questionable and, if disrespectfully conducted, may amount to degrading treatment.

III. Concluding remarks

I would like to stress once again that I fully acknowledge the extreme volatility of the security situation in Turkey and the right and duty of the Government to take security measures to protect its citizens from acts of violence and political overthrow. However, just as much as there can be no justification for acts of terrorism and military coups, there also can be no justification, under any circumstances, for acts of torture and other cruel, inhuman or degrading treatment or punishment, or for any form of impunity for alleged violations in that matter.

I firmly believe that there is no better deterrent to torture and other ill-treatment than a strong national will to investigate, prosecute and punish such abuse. The Turkish authorities have the ability to prevent torture – they have proven so in the last decade and they have consistently and unequivocally assured me of their continued commitment in that respect.

I therefore appeal to the Turkish Government to publicly reinforce its “zero tolerance” policy on torture and, in particular, to unequivocally make clear to State officials at all levels that they are expected and, indeed, obliged to report and investigate all allegations of torture and to bring perpetrators to justice.

– See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20976&LangID=E#sthash.Uz6JSHfb.dpuf

Rejection of appeals by HCJP: further remedies?

There are lots of discussions going on further steps that must be followed after the rejection of appeals of over 3000 judges and prosecutors by the HCJP:

1- Go to the Council of State (Danistay)
2- (If # 1 denied) Go to the Constitutional Court for the individual complaint
3- (If #1, and #2 do not work) Go to the ECHR

1) The council of state already decided on some judges’ cases. The council held that it has no jurisdiction over these cases on the basis of the fact that the dismissals are not the one regulated by the Law on Judges and Prosecutors, this one is ” extraordinary measure”. It ruled that the duty belongs to the Ankara Administrative Court. In the same holding, the council implied that these dismissals can not be challenged before the courts. So it is quite possible that the Ankara Court will also dismiss the cases due to inadmissibility set forth by the Council of State.

2) The law on Individual application before the Constitutional Court states that judicial review of individual applications shall not be made on matters prevented by the constitution. And article 59 of the constitution states that the decisions of the HSYK, other than dismissal from the profession, shall not be subject to judicial review.
Which means basically that if we characterize the dismissal as ” extraordinary measure”,as the state of council already did, not the one which shall be brought before the court, the constitutional court will refuse the cases because of inadmissiblity.

3)So there might be the possibility to apply to ECtHR directly without exhausting of domestic remedies. Having in mind the recent case ECtHR 56511/16 Zeynep MERCAN contre la Turquie it might be useful if the ECtHR’s attention on the altered situation would be called by amicus curiae briefs.

However – even it might be just a loss of time – one must advise the appellants to go first to the administrative court, and then if the court finds the cases inadmissible to appeal to the constitutional court and ECHR simultaneously.