[OPINION] Torture in Turkey Under the State of Emergency

By MELIS TON

In all contemporary legal systems which are based on the rule of law and respect for human rights, the principle of “determination of criminals from the evidence” instead of “determination of evidence from the criminal” is valid.

The state is under an obligation to protect the right to life and body integrity of the individual who is in a state of weakness against the public authority. The right to life and the integrity of the body cannot be violated for any reason except for reasons of compliance with law. Countries have made laws and regulations in accordance with universal legal principles on torture and ill-treatment and have enforced serious sanctions in case of violations of these principles.

Turkey has signed international instruments in respect of combating torture and has made necessary regulations in its domestic law, especially in the Constitution and the Turkish Penal Code.^[1] Despite these arrangements, torture, ill-treatment, inhuman or degrading acts and behaviors have increased after the coup attempt occurred in July 15^th, 2016.

In the country, Alevis, social democrats, nationalists, dissents and those opposing the government have been tried to be controlled with detention and imprisonment. Intellectual and West-minded people of the country have been arrested and imprisoned by the judiciary under the control of the government with the accusation of “membership of an armed terrorist organization”.^[2]

According to the report prepared by CHP Deputy Chairman Zeynep ALTIOK; within the scope of coup investigations conducted during the State of Emergency declared after the July 15 coup attempt, 50.510 people have been arrested, 111.240 public officials have been expelled from their professions, a total of 12 deputies (1 deputy from CHP and 11 deputies from HDP) and 74 municipal co-chairs have been arrested, trustees have been appointed to 89 municipalities by the Decree Laws, 110 media institutions have been closed, press cards of 715 journalists have been revoked, 159 people are detained or convicted in prison due to journalistic activities. 2.308 journalists were left unemployed, and a total of 180 media organizations including 31 TV channels, 5 news agencies, 62 newspapers, 19 journals, 34 radio stations and 29 publishing houses were closed. At least 35 people (those who were exposed to torture and persecution or their relatives) committed suicide. The grievances, unfortunately, continue increasing day by day.^[3]

All assets of the innocent people who were accused of being members of an armed terrorist organization were seized, and even pension rights, personal rights, health insurance and the right to litigation were taken from their hands. As a result of these unlawful practices, these people have been condemned to civilian death and kind of “genocide” and forced to live in a way that could result in their complete destruction.^[4]

Innocent women who are pregnant or have newborn babies are detained, arrested, and exposed to torture-like treatments. The news reporting that policemen are waiting on the gates of hospital rooms to detain women who just gave birth appears in the media every day, and these women have been put in prisons with their newborn babies.^[5] Thousands of innocent women still kept in prisons with their babies are struggling to survive in these severe prison conditions.^[6]

Torture and human rights violations, which have fallen to an “exceptional” level in Turkey during the European Union alignment process, have returned back after the July 15 coup attempt. The detainees are left under constantly lit lights for days in order to expose them to sleeplessness, and tiredness. They are awakened from sleep and frequently questioned in rooms without having any camera. They are also exposed to beatings, violence, psychological torture, Palestinian hunger, rape with bottle, iced water, starvation, etc. The temperature of air conditioners is adjusted to warm in daytime and cold at night. These practices have unfortunately become ordinary incidents.^[7]

The principle of “independent defense”, the assurance of a fair trial in accordance with the universal legal norms and most important obstacle to torture and ill-treatment, has been rendered ineffective, and many suspects were not even able to give statements with the presence of their lawyers. In order to make the suspects vulnerable and desperate, most of the defense lawyers have been arrested or forced to withdraw from the investigations.^[8]

The judiciary that must be independent and the guarantor of the rights and freedoms has got into the political power’s control and approved the unlawful practices of the political power with its decisions.

This situation has been revealed once again with the decision No. 2017/123 of the Chief Public Prosecutor who is in charge in Trabzon. Upon the claim that the detained person was beaten and tortured during the period of custody, the prosecutor decided not to prosecute the case on the grounds that “the persons who perform duties under the Emergency Law shall not have legal, administrative, financial and criminal liability due to these duties; therefore, there is an investigation ban in respect of these officials”.^[9]

This decision clearly indicates that the ban on torture specified in the Constitution and the Turkish Criminal Code as well as the ECHR and many international conventions is not implemented in Turkey; on the contrary, torture is under legal and judicial protection in Turkey. In other words, torture has been taken under protection in Turkey by the Statutory Decrees put into effect by the political power during the period of State of Emergency.

Nihat Zeybekci, the Minister of Economy of the Country, paved the way for torture with his statement about the innocent people who were unlawfully detained and arrested by the project courts: ”These traitors should not be only sentenced to capital punishment, but we will punish them in such a way that they will beg us to kill them.”^[10]

Although torture is banned under all circumstances and conditions with provisions stated in Article 17 of the Constitution, Article 3 of the European Convention on Human Rights, Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, the AKP deputy Mehmet METİNER, member of the Grand National Assembly Subcommittee responsible for Prisons, could dare to state that “We will not investigate the allegations of torture and ill-treatment related to the detainees who are accused of being member of FETO!”^[11]

The issue that the AKP deputy Mehmet METİNER should be more aware of and more sensitive about than anybody else is that torture and maltreatment cannot be done for any reason and that torture is an offence against human dignity and therefore it is absolutely forbidden. The State is under an obligation not to torture, to prevent it, to investigate and prosecute if it has been done, and to punish the perpetrators of torture. This obligation cannot be suspended and cannot be neglected under any circumstances.

Failure to investigate the allegations of torture and ill-treatment in official places under the control of the state not only encourages the perpetrators of torture and ill-treatment, but also means that “the government intentionally protects the perpetrators of these inhuman crimes committed against certain groups of people”.

There are serious allegations that the AKP government, which has transformed the administrative system into a “party state”, established a “Special Execution Unit” within the National Intelligence Organization in order to kidnap and execute the citizens of the Republic of Turkey who reside abroad and oppose the AKP government. The Special Execution Unit has also been given the authority to carry out terrorist-style acts to execute opponents who live abroad. A broad budget has been allocated by the political power in order to ensure this special unit to cooperate with the mafia groups in the target countries and to make payment for the execution operations.^[12] Since no news has received for a long time from the high level officials allegedly abducted by the MIT, it has come to the mind that these people may have been killed and that their bodies may have been eliminated by this Special Execution Unit”. These allegations have not been effectively investigated. The parliamentary question given by the main opposition party Istanbul Deputy Sezgin Tanrıkulu was not answered by the Prime Minister Binali Yıldırım.^[13]

Inhuman treatment and torture carried out particularly in the cities densely populated with the Kurds have reached to the dimension of “massacre”. These cities (such as Cizre) were razed to the ground by shelling. As the result of these operations, thousands of innocent people died, hundreds of thousands of people were forced to migrate to other cities.^[14]

The Cizre Prosecutor’s Office has ruled out the prosecution called as the “Savagery Basements (Vahşet Bodrumları)”, which takes its place in the history of Cizre as a dark spot. Regarding the event that the state forces burned hundreds of people alive by pouring gasoline over them, the Chief Public Prosecutor alleged that the state forces used the right to self-defence. He described this massacre, in which children also died, with this statement: “They were terrorists and killed in accordance with law!”^[15]

Unfortunately, as things stand now in Turkey, the concepts such as presumption of innocence, human rights, fair trial and justice have become hollow concepts that can only be found in books.

Ten human rights defenders were detained after the meeting held in İstanbul Büyükada and arrested with the accusation of helping the terrorist organization. This meeting was described by the President Erdoğan as “This is a meeting to support the July 15 coup attempt.” Is it possible to talk about universal legal norms, human rights and freedoms in such a country of fear and insanity?^[16]

The international community will have a much better opportunity to understand and analyse the torture, cruelty and unlawfulness experienced in the process of Emergency Rule in Turkey through this arrest of innocent human rights activists. To what extent the arrested human rights activists are related with a terrorist organization, 51.000 people in prisons may only be related with a terrorist organization to that extent. In other words, to what extent the detention and arrest of the human rights activists are legal, the torture, ill-treatment, inhuman and degrading practices carried out against the people, who are arrested for being membership of an armed terrorist organization, may be legal to that extent.

In Turkey, we are hoping to reach the bright days in which innocent people shall be released from prisons together with the human rights activists, and the respect for human rights and rule of law shall prevail.