Remzi Karaduman, Uğur Uçar and Resat Uçar, who were remanded to prison on 31 July in Diyarbakır for “being
members of the radical Islamic Hezbollah organization”, were reportedly tortured in detention and taken back for interrogation on 1 August according to the provisions of Decree 430.
Their lawyer Vedat Karaduman applied to the HRA Diyarbakır Branch, stating that his clients had been detained on 26 July in Ankara, taken to Diyarbakır Police HQ on 28 July and remanded to prison with a decision by SSC on 31 July. On 1 August the SSC prosecutor applied, on the request of the OHAL Governor’s Office, to the reserve judge of SSC for an extension of the detention period, but the reserve judge declined the request saying, “No information or document has been provided for justifying an extension of the detention period”. Upon this the SSC prosecutor objected to this decision with the SSC No.4, and thus the clients were taken from the prison for further interrogation. Lawyer Karaduman added that his clients had been tortured in detention, as also mentioned in the decision of the reserve judge, which read, “The defendants seem exhausted and unable to walk. We refer the case to the prosecutor for starting the necessary proceedings.” Lawyer Karaduman said that he met his clients on 1 August before they were taken from prison, and they declared that they had been tortured in detention in Ankara and Diyarbakır. The clients had also informed the SSC prosecutor on torture by saying that they had been subjected to torture and ill-treatment including beating and electric shocks while in police detention in Ankara. This reportedly worsened after they were transferred to police detention in Diyarbakır. There they were hosed repeatedly with pressurized water, had their testicles squeezed, were blindfolded continuously, forced to stay standing by having their wrists handcuffed to an elevated point, deprived of food and drink, and two police officers would force the detainees’ heads between their legs by sitting on their shoulders.
Lawyer Karaduman filed an official complaint against the police.
It was reported that Naif Demirci, detained in Diyarbakır on 21 December and his wife Mekiye Demirci, detained on 22 December, were arrested after 4 days in detention, but taken back for interrogation according to Decree 430. Similar reports were received on Medeni Kavak, who was detained in Diyarbakır on 11 December 2001. In mid-January the objection against the extension of detention of Naif Demirci (detained on 21 December 2000) and Mekiye Demirci (detained on 22 December 2001) was rejected by Diyarbakır SSC. The lawyers Cihan Aydın, Ayla Akat and Metin Kılavuz argued that the detention should not be longer than 4 days according to recent changes in the Constitution, but the court found that all other sentences in Article 19 of the Constitution had remained unchanged, in particular the expression that “detention may be prolonged in the OHAL region”. Meanwhile, Mekiye Demirci was reportedly tortured in custody and soldiers beat her when she attempted to talk to her daughter at a hearing at SSC.
The OHAL Wall Erected Before Torture Victims/Tahir Elçi (Radikal-8 May 2002)
Lawyer, Board Member of Diyarbakır Bar
There is almost not a single word that has not been uttered while talking about the measures that should be taken for the elimination of torture in Turkey. The issue of torture is at the first line on the agenda of the official and unofficial meetings and it is possible to find thousands of documents on torture, published by national and international organizations. (...)
Yet victims face so many boundaries in pursue of their rights that this process itself turns into a torture. It is impossible for a victim to pass through all these boundaries as they have lost their physical and psychological integrity, frightened, exhausted and most of them lack financial or moral support.
As victims of torture and their lawyers know it very well, every door that they knock on with the complaints of torture in pursue of their rights turns into a wall. The authorities who should act spontaneously for collecting the evidence and bringing the culprits before justice when they hear about the claims of torture, do not do so and it is almost up to the victim to find out the culprits one by one and prove his/her claims on the basis of full force evidence involving high standards of proof. When this is the case, the victim looses his confidence in the judicial mechanisms and stops thinking about to pursue after his rights.
If the victim of torture is living in the OHAL region, he will also face the OHAL wall added to the walls that are faced with in other regions.
According to Article 154/3 TPCP, public prosecutors are authorized to directly starting investigations into crimes that are committed by public officials in connection with their judicial duties. That is to say, they do not need a further permission of an authority, as envisaged under the Law on the Prosecution of Civil Servants No. 4483. On the basis of this provision of TPCP Turkish authorities claim at national or international meetings that there is restriction before the direct investigations into torture claims. However, we know in practice that the number of the investigations that the public prosecutors indicted without seeking for permission by the authority is quite low. This was also the case when the Law on Prosecution of Civil Servants dating 1913 was in force: the number of the cases that the authority had granted permission for an investigation was quite low.
With exceptions, torture is applied to extract information or to force the suspect to accept the charges against him/her.
It is definitely clear that the process of interrogating a person in terms of certain charges at the police station is a judicial act. However, in practice the public prosecutors make the following comments: “Although the defendant/s who are public officials are charged with claims of torture, it is not possible to establish whether the torture was committed within the framework of their judicial or administrative duties, so it is decided that the file should be submitted to the authority for a further permission...”
Thus, investigations into the claims of torture are referred to the local authority. The governors in provinces and districts do not perform the investigations themselves, naturally, and they authorize some officials to this end, who do not pay any attention into the investigation. In some cases one of the superiors of the officials charged with torture performs the investigation. Any way, it should not be possible to expect an official investigation from an official when it is considered that the investigation may have some direct or indirect impacts on him.
The mechanism of raising an objection with an administrative court against the decision of non-prosecution is open. However, the court revises the proceedings on the basis of the case file; that is to say, on the basis of the reports issued by an official who has been authorized by the authority for investigating the claims. Yet, it should not be forgotten that some of the public prosecutors have directly started investigations into the claims of torture and opened a court case, truly in accord with the law.
In the OHAL region, on the other hand, the case is different. On the basis of recently discovered provisions of the OHAL legislation, claims of torture are directly referred to the authority without a prior debate at the prosecutor’s office.
Article 4/i of the OHAL Decree 285 reads, “Officials under the command of the OHAL Governor are subjected to the provisions of the Law on Prosecution of Civil Servants concerning their duties.” The Law on Prosecution of Civil Servants No.4483 provides that the provisions of the law in cases that are applicable to this law are executed accordingly, i.e. it is necessary to receive permission from the authority for investigating the torture claims. The walls erected before the victims of torture by saying that it was not definite if the torture had been applied within the framework of judicial or administrative duties are now further strengthened with the bricks erected by the OHAL
Decree. (...)
A meeting was held in Diyarbakır on 26 June by Diyarbakır Bar Association, Diyarbakır Medical Association, Diyarbakır Representative of HRFT and Diyarbakır branch of HRA, on the occasion of the UN International Day in Support of Torture Victims. Mustafa Özer, chair for Diyarbakır Bar Association, took the floor during the meeting stating that according to the findings of the local and international human rights organizations torture was still widespread in Turkey.
Osman Baydemir, Deputy Chairman of HRA and Chair for the Diyarbakır branch stated, “During the first-five months of 2002, a 50% decrease has been observed in the number of applications made to the Diyarbakır branch for torture and ill-treatment, compared to the same period of the year 2001”. Although Baydemir’s statement was limited to the number of applications to the HRA Diyarbakır branch, the information was published in the press as if it had concerned the countrywide application of torture.
On Decree 430/Cihan Aydın (Yedinci Gündem-12 January 2002)
Lawyer
According to Article 91 of the Constitution, the council of ministers is not authorized to issue decrees having the force of law to regulate issues of fundamental rights, individual rights and duties as well as the political rights and duties listed in the constitution, except during periods of martial law and states of emergency. Thus, such restrictions are no applicable to the decrees concerning the state of emergency region, such as those, among many others, numbered 285, 424, 425 and 430. The Constitutional Court decided to examine decrees numbered 424 and 425 in terms of compliance with the Constitution. The government at the time, considering the fact that the Constitutional Court would most probably annul these decrees, issued the Decree 424 annulling the 430 on 15 December 1990. Article 121 of the Constitution provides the following as to the decrees issued on matters necessitated by the state of emergency: “These decrees shall be published in the Official Gazette and shall be submitted to the GNAT on the same day for approval; the time limit and procedure for their approval by the Assembly shall be indicated in the Rules of Procedure”.
According to Article 128 of the Rules of Procedure of GNAT, decrees that the council of ministers submitted to GNAT under Articles 121 and 122 of the Constitution are subjected to the same procedures that are applied to other draft laws and proposals, yet they are handled with priority and decided on in at most 30 days after their submission. If such decrees are not discussed at the commissions in 20 days following their submission, they are directly included in the agenda of the General Assembly.
The Chair of GNAT had referred Decree 430 to the Interior and Plan and Budgeting commissions on the day he received it, but these commissions had not discussed it. That is to say, Article 121 of the Constitution and Article 128 of the Rules of Procedure of GNAT had not been applied to this decree, and the process was incomplete. This means that not only the Decree 430 but also all of the actions performed under this decree are null and void, starting from 1990.
On the other hand, the Constitutional Court annulled Articles 1/a, 5 and 6 of this decree as violating the Constitution on the grounds that those matters are not related to issues of state of emergency.
Article 148/1 of the Constitution rules that “no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of decrees having the force of law issued during a state of emergency, martial law or in time of war.”
However, this provision does not bring any obstacle before an objection that may be raised because of an action basing on the decree. If this way of raising an objection against such decrees had come to the minds of those drafting the 1982 Constitution, they would have clearly mentioned it in the text, as is the case in Article 148/2. That is to say, there is no obstacle before making an objection against the unconstitutionality of this decree on the basis of an action based on this decree. However, local courts continue to reject applications made to them with such a request, and refrain from opening a case at the Constitutional Court against Decree 430.
International conventions and control mechanisms provide that states could temporarily suspend individual rights and freedoms in times of war. Notwithstanding, habeus corpus cannot be suspended or rendered ineffective in any case, including cases of state of emergency.
This principle aims to provide that a detainee is promptly taken to a judge so as to guarantee his personal security in custody. Arrested or convicted prisoners can be detained for infinite periods of time according to Article 3/c of Decree 430, providing the means for torturing these persons. Within this framework, cases of the persons who have been interrogated under this decree and convicted accordingly are in fact an infringement of the right to a fair trial from the very beginning.
In response to a parliamentary question tabled by MP Yakup Kepenek, Minister of Justice Cemil Çiçek stated that 4,600 people had lodged official complaints with the claims of torture in the 3-year period between 2000 and 2002. According to Çiçek, trials were opened concerning 490 of 1,633 applications in 2000, 245 of 1,605 applications in 2001 and 210 of 1,362 applications in 2002, while decisions of non-prosecution or non-authorization were issued for the rest. Minister Çiçek added that a total of 2,471 trials were opened in the same period, concerning Articles 243 (torture) and 245 (ill-treatment) TPC. He also said that 344 applications had been made to ECHR up to the date, 247 of these applications were on the agenda of the Court, which ruled on a violation in 32 cases. Turkey went to a friendly settlement concerning 65 applications.
"DISAPPEARANCES"
World Week Against Disappearances (17-31 May)
The Fourth Conference of the International Committee against Disappearances was held in Nürnberg, Germany on 17 May with the participation of relatives of the people who went missing in custody and representatives of the organizations that struggle against the disappearances at various countries such as Argentina, Chile, Colombia, Syria, Iran, Iraq, Ethiopia, Congo, Germany, UK, France, Switzerland, Palestine, Nepal, Peru, Cyprus, Togo, Algeria and Turkey. Workshops of the Conference dealt with the following issues: "Terrorism" and "Security" ideology, propaganda and manipulation in the age of globalization; The consequences of "anti-terror measures and laws" for human rights; Globalization and the worsening affects on human rights (Haluk Gerger); Forced Disappearances - systematic method to eliminate opposition! The earth did not swallow them - Background and backers for the fate of the disappeared and the long struggle of the relatives and friends, Buried alive - isolation prisons, internment and secret prisons! How in the lee of the "war against the terror" an official and publicly legitimized disappearance policy develops. (For further information: http://icad-committee.com/''')
“Mothers of Peace”, HRA and the Saturday Mothers Association organized various activities in the World Week against Disappearances between 17 and 31 May. About 50 people from these groups and organizations assembled at İstiklal Street in İstanbul on 17 May, but the police wanted to stop them. After a short debate with the police chiefs, Leman Yurtsever read the press statement, saying, “In the near past of Turkey, over 500 applications were made to HRA concerning claims of disappearances. Unofficial number is much more higher.” The policy of missing people in custody is under way, unfortunately.”
Yurtsever added that Serdar Tanış and Ebubekir Deniz went missing in Silopi in 2001 and Coşkun Doğan in 2002, and no information was received as to their whereabouts: “People are still getting disappeared in this country. The pioneering struggle of the relatives of Hasan Ocak, Rıdvan Karakoç among others, the silent scream of the Saturday Mothers successfully brought the fact of disappearances on the agenda of the society.” Mother of Coşkun Doğan also made a speech in this meeting. On 19 May, activists and relatives visited the graves of Hasan Ocak and Rıdvan Karakoç. ([6] )
The Association of Families of Disappeared People (Yakay-Der) organized a panel discussion at the HADEP Küçükçekmece (İstanbul) office on 26 May. Leman Yurtsever, Yakay-Der member Tomris Özden, ([7] ) lawyer Fırat Aydınkaya and HADEP board member Sabahattin Hallı delivered speeches in this panel. On 27 May, members of the HRA İstanbul branch distributed leaflets on disappearances on İstiklal Street.
The Contemporary Jurists Association (ÇHD) Adana branch held a press meeting on 30 May. Lawyer Fevzi Çakıt said that the policy of disappearances in custody had started in 1930s and this policy was accelerated with the 12 September coup. Lawyer Çakıt said that the number of disappearances was 5 between 1926 and 1980, but this number increased with the 12 September coup. He added that the OHAL region had become a scene for disappearances in custody after 1993.
Serdar Tanış-Ebubekir Deniz
There was no development on the “disappearance” of Serdar Tanış and Ebubekir Deniz, two HADEP officials in Silopi (Şırnak), who went missing on 25 January 2001 after a visit to the local gendarmerie station.
The State Minister responsible for human rights, Nejat Arseven, answered a question tabled by MP Mehmet Bekaroğlu, stating that the investigation had born no results. A special team had been formed, since the persons still counted as “disappeared”. According to Arseven, failure to trace their whereabouts would not mean that the case was a murder by unknown assailants, as there was no evidence showing that they had been killed.
During public press statements on 25 January in commemoration of Tanış and Deniz the police intervened in many towns and detained a large number of people (details in the chapter on “Meetings and Demonstration”).
Cüneyt Aydınlar
In December, lawyer Naciye Kaplan filed an official complaint concerning the disappearance of Cüneyt Aydınlar who went missing after he was detained in İstanbul on 20 February 1994. Kaplan said that this was the first time they have ever made an official complaint about the case and noted that they would apply to ECHR in case a decision of discontinuing the proceedings was given.
Cüneyt Aydınlar had been detained together with 14 persons on the allegation of “aiding the PKK”. After they had been released, the other 14 detainees had stated that Aydınlar had been severely tortured in detention and that on 2 March 1994 he had been taken out of his cell by 6 police officers who said him, “Are you ready for death, you are going for it.”
Lawyer Eren Keskin, the Chair of the HRA İstanbul branch at the time, had stated that İstanbul Police HQ had told her that Aydınlar had runaway, and upon this information she had gone to the house where the police officers took