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  • AI: Memorandum on AI's recommendations to the government of Turkey

    Amnesty International
    Aug 1 2005

    http://web.amnesty.org/library/Index/ENGEUR4 40272005?open&of=ENG-TUR

    Turkey
    Memorandum on AI's recommendations to the government to address human
    rights violations

    INTRODUCTION

    Since the government has come to power in 2003, Amnesty International
    has welcomed the numerous steps that it has taken in order to improve
    human rights standards in Turkey. The organization is nevertheless
    concerned about continuing patterns of serious human rights
    violations.

    Amnesty International considers that there has in 2005 been a slowing
    of the reform process and a failure to build upon previous
    achievements. While there have been important initiatives in terms of
    legal change and training for state officials, there is still a
    crucial lack of mechanisms and institutions that will effectively
    monitor human rights standards and investigate individual violations
    in Turkey. Amnesty International considers that, even taking into
    account the reforms undertaken by the government, people who have
    been subjected to serious human rights violations do not have any
    grounds to believe that the courts or authorities will be able to
    adequately investigate their case and bring those suspected of being
    responsible to justice. Most obviously - and in clear contradiction
    of the government's declared "zero-tolerance for torture" policy -
    the response by the authorities to reports of incidents of torture
    and ill-treatment and other serious human rights violations
    perpetrated by members of the security forces has been inadequate.

    Amnesty International therefore considers that further action is
    needed to address the organization's continued concerns and urges the
    government to take steps in accordance with the recommendations
    below.

    1. THE NEED FOR GREATER CONSULTATION WITH CIVIL SOCIETY

    Amnesty International has previously written to the government in
    detail regarding the new laws that entered into force on 1 June
    including the Turkish Penal Code (TPC) and Criminal Procedure Code
    (CPC). These laws contained many positive aspects - most obviously in
    connection to provisions that should, if implemented, significantly
    improve the level of protection from violence for women in Turkey.
    One reason for this positive reform was the fact that the draft of
    the law was consulted upon with women's organizations and many of
    their recommendations were taken into account.

    However, the law also includes provisions that appear to introduce
    unnecessary restrictions to fundamental rights. Amnesty International
    welcomed the decision by the government to delay the entry into force
    of the TPC from 1 April to 1 June 2005 in order to address some of
    the objections of journalists' groups to some of these restrictions.
    Amnesty International wrote to the government in April outlining its
    concerns about the draft and again once it had seen the proposed
    changes. However, the final changes to the TPC offered only the most
    minor of improvements, mainly the removal of possible increased
    sentences for certain crimes where carried out by the press. Amnesty
    International believes that provisions of the new TPC may be used to
    unnecessarily restrict the right to freedom of expression.

    In this connection, and in the light of the positive results obtained
    through sincere consultation with women's organization, Amnesty
    International notes complaints from human rights organizations and
    professional bodies such as the Press Council that their views on the
    draft legislation were not sufficiently sought or taken into account.

    The UN Special Representative on Human Rights Defenders, Hina Jilani
    observes in her report of her October 2004 mission to Turkey that:
    ...Nearly all human rights defenders, however, expressed disappointment
    at not having been consulted about the reform packages. Overall, they
    feel that so far, consultation initiatives have only been formal and
    their input not reflected. Consultation needs to be wider and better
    conducted to allow for a true dialogue with civil society.(1)

    Amnesty International notes the counter response of the government
    that:
    The recent comprehensive legislative changes as well as
    administrative measures have been crafted through a real
    collaborative process, taking the views of the civil society and
    academic circles into consideration. A solid case in point is the new
    Penal Code, the drafting process of which was marked with
    transparency. The Code was a result of a comprehensive drafting
    process in which the Council of Europe as well as local and
    international NGOs were involved. (2)

    The response asserts that the government achieved consultation and
    collaboration with civil society through bodies such as the Human
    Rights Advisory Board as well as the District and Provincial Human
    Rights Boards. Given the public and acrimonious breakdown in
    relations between the government and the members of the Human Rights
    Advisory Board(3) and the well-documented shortcomings of the
    District and Provincial Human Rights Boards (see below), such a
    consultation would be clearly deficient. The complaints of NGOs -
    including human rights organizations - that their views were not
    taken into account and the flaws in the legislation when it finally
    entered into force all strongly indicate that the drafting and
    consultation process was not comprehensive enough. Amnesty
    International recognizes the pressure placed upon the government by
    the European Union to pass some of these new laws as quickly as
    possible but would strongly urge that further draft legislative
    reforms are scrutinized thoroughly in the light of Turkey's
    commitments to international law and standards and fully consulted
    upon with civil society.

    2. THE URGENT NEED FOR INDEPENDENT, RESOURCED AND EFFECTIVE NATIONAL
    HUMAN RIGHTS INSTITUTIONS

    Turkey has an urgent need for effective and independent National
    Human Rights Institutions which will promote and protect human
    rights, including through effective investigation of patterns of
    human rights concerns and individuals' complaints about human rights
    violations they have suffered, and through making recommendations
    accordingly.

    Present examples of bodies which it is claimed fulfil the function of
    a National Human Rights Institution include the above-mentioned and
    ill-fated Human Rights Advisory Board as well as the Provincial and
    Regional Human Rights Boards attached to the Prime Ministry. The
    latter bodies have been well-publicized by the government. However,
    Amnesty International has serious concerns about the operations of
    these Boards - concerns which are shared by Turkish and international
    human rights non-governmental organizations(4). These institutions
    are not adequate mechanisms to address this need and are not in line
    with the Paris Principles (see below).

    While the Provincial and District Human Rights Boards are involved in
    positive initiatives in terms of raising awareness of human rights at
    a local level, their inadequacies are inevitable given their lack of
    independence, composition, limited powers and apparent reluctance to
    investigate adequately serious reports of human rights violations. No
    amount of money given for training to the Boards will resolve this
    issue if these other factors are not resolved.

    The UN Special Representative on Human Rights Defenders has commented
    extensively on the shortcomings of these Boards, recommending that:
    ...the Government review the effectiveness and functionality of human
    rights boards and constructively include human rights NGOs in the
    assessment of the most effective mechanisms to address human rights
    violations at the local level".(5)

    Amnesty International therefore notes with satisfaction reports that
    the government is planning to re-examine this system and to develop
    legislation on National Human Rights Institutions such as a Human
    Rights Ombudsperson and Human Rights Commissions. Amnesty
    International considers that such Institutions must conform to the UN
    Principles relating to the status of national institutions (known as
    the Paris Principles) otherwise they will be similarly ineffective.
    The Paris Principles state that, in order to fulfil their vital
    functions, national human rights institutions should have precisely
    defined powers to investigate on their own initiative situations and
    cases of reported human rights violations. Individual complainants,
    their lawyers, relatives or others acting on their behalf, including
    non-governmental organizations, should also be able to bring their
    complaints directly to such bodies. National Human Rights
    Institutions should undertake a prompt, thorough, effective and
    impartial investigation into human rights violations and not be
    hampered or otherwise inhibited by following the conclusions of a
    previous investigation. An important part of the work of a National
    Human Rights Institution should also be to collect and compile
    statistics and information in order to obtain an accurate picture of
    human rights violations in the country. Statistics should detail the
    nature of all complaints, how and when they were investigated, the
    findings, and follow-up to recommendations. The Paris Principles also
    state the importance of independence for the National Human Rights
    Institutions and of the pluralism of their membership.

    Amnesty International would like to draw attention to the attached
    report Amnesty Internationals recommendations on national human
    rights institutions (AI Index: IOR 40/007/2001) which outlines
    guidelines based on the organization's experiences with dealing with
    such institutions in other countries and offers recommendations of
    best practice so that they may be established with the requisite
    ingredients for effective and independent functioning. Amnesty
    International urges that both the Paris Principles as well as these
    recommendations are taken into account when the legislation is
    drafted in order to ensure that the National Human Rights
    Institutions are effective in practice.

    3. CONCERNS ABOUT CONTINUED TORTURE AND ILL-TREATMENT AND IMPUNITY

    Amnesty International has been greatly concerned about the issue of
    torture and ill-treatment perpetrated by members of the security
    forces in Turkey for many years and sees this area as the testing
    ground for the reforms undertaken by the government. No issue more
    clearly illustrates the uneven impact of the reforms, the problems in
    their implementation and the need for further steps in order to
    eliminate the violations.

    Amnesty International has warmly welcomed the "zero tolerance for
    torture" policy articulated by the government and the associated
    improvements made to detention and other regulations in order to
    improve the protection from torture and ill-treatment for detainees
    in police and gendarmerie custody. The organization is also heartened
    by the steps taken by the government in response to the
    recommendations of the European Committee for the Prevention of
    Torture and Inhuman or Degrading Treatment or Punishment (CPT) to
    communicate to state officials the prohibition of torture and
    ill-treatment, such as the circulars issued by the Ministry of the
    Interior to police stations urging them to respect detainee's rights.


    The CPT in the report of its September 2003 visit to Turkey concluded
    that:
    The legislative and regulatory framework necessary to combat
    effectively torture and other forms of ill-treatment by law
    enforcement officials has been put in place; the challenge now is to
    make sure that all of the provisions concerned are given full effect
    in practice.

    Unfortunately, this is a challenge which the government still appears
    to be failing to meet. Torture and ill-treatment continues to be a
    widespread problem in Turkey. Amnesty International has raised its
    concerns regarding the statistics collected by the Human Rights
    Boards attached to the Prime Ministry but even these confirm that
    torture and ill-treatment continue to be a serious and widespread
    problem in Turkey. According to these figures, 158 individuals
    complained of torture and ill-treatment to the Boards in 2004. This
    was the highest figure for any type of violation collected by the
    Boards in that year. Figures collected by independent
    non-governmental organizations also give a disturbing picture related
    to continued problems in this area. For example, the Human Rights
    Association (IHD) stated that it had documented 843 reports of
    torture and ill-treatment in 2004.

    The repeated incidence of torture and ill-treatment in Turkey -
    despite the government's programme - shows clearly that further
    measures are necessary in order to eradicate torture by state agents.
    The eradication of torture should be seen as the achievement of
    conditions in which torture and ill-treatment are extremely unlikely;
    they will occur, if at all, only in isolated cases; and if they do
    occur, there will be a reaction from the authorities which prevents
    the perpetrator from repeating the act, which satisfies conditions of
    justice and reparation, and which condemns the act in such a way that
    other public officials will be deterred from similar conduct. At the
    moment, this is far from the case in Turkey. The "zero tolerance for
    torture" policy appears to be limited to legislative changes (such as
    increasing the punishment for individuals convicted of torture or
    allowing access of detainees to lawyers) and training given to police
    officers.

    Amnesty International believes that an effective policy of combating
    torture would require the following:
    Legislative and other safeguards including an independent body that
    will carry out regular and ad hoc unannounced visits to places of
    detention;
    Ratification of the Optional Protocol to the Convention against
    Torture;
    The introduction of video and audio recording of all interviews of
    suspects in custody;
    Meaningful training of police, gendarmerie, judges and prosecutors
    regarding the legal changes and international standards, which
    comprises more than the issuing of circulars and directives;
    Clear guidelines to law enforcement officials - including a Code of
    Ethics - that would cover their responsibilities during interrogation
    and detention;
    The existence of clear sanctions for any law enforcement officials
    who may break such guidelines;
    Immediate and urgent impartial investigations into any allegations of
    violations of human rights by members of the security forces in
    accordance with the UN Principles on the Effective Investigation and
    Documentation of Torture and Other Cruel, Inhuman or Degrading
    Treatment or Punishment;
    The development of an effective complaints mechanism able to carry
    out investigations into human rights violations;
    The urgent opening of criminal and disciplinary proceedings in
    relation to such violations with appropriate sanctions against anyone
    found responsible for these;
    The examination of the responsibility of commanding officers where
    law enforcement officials are alleged to have perpetrated serious
    human rights violations;
    The suspension from duty of officers under investigation for torture
    and serious ill-treatment and dismissal if found guilty;
    Compensation for and rehabilitation of the victims.


    4. THE NEED FOR EFFECTIVE INVESTIGATIONS

    One of the most serious obstacles to the successful implementation of
    the "zero tolerance" policy is the failure to adequately investigate
    allegations of torture and ill-treatment. Amnesty International
    believes that most investigations carried out by prosecutors into
    complaints or allegations of serious human rights violations in
    Turkey are deficient and, when they do occur, criminal proceedings
    brought against those accused of perpetrating such acts are often
    flawed. The result appears to be an apparently overwhelming climate
    of impunity for state officials that perpetrate human rights
    violations. Amnesty International considers that the general lack of
    thoroughness of investigations by prosecutors demonstrates a lack of
    impartiality.

    Amnesty International notes the circular issued by the Ministry of
    Justice on 20 October 2003 which gave instructions to prosecutors to
    carry out investigations themselves and to give priority to such
    investigations. Unfortunately, this does not appear to have had any
    serious effect on the quality of investigations. Amnesty
    International is struck by the high proportion of complaints of
    torture and ill-treatment in which prosecutors have decided to issue
    "takıpsızlık kararları" (decisions not to prosecute) after an
    apparently cursory and brief investigation, which is usually
    apparently restricted to an examination of the medical report of the
    detainee. The CPT has raised its concerns about the use of medical
    reports on their own and has made recommendations to address this
    shortcoming (see below).

    Amnesty International considers that the failure of prosecutors to
    carry out investigations in accordance with the UN Principles on the
    Effective Investigation and Documentation of Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment is one of the main
    contributing factors towards impunity in Turkey. It is especially
    concerning considering that many proposals designed to reduce torture
    and ill-treatment - such as the 20 October 2003 circular above or the
    introduction of a "judicial police" under the authority of the
    prosecutor responsible for gathering evidence - envisage
    concentrating greater power in the hands of state prosecutors. Given
    state prosecutors' failure to adequately investigate the incidents of
    torture and ill-treatment, the often collegiate way that state
    prosecutors have been seen to work together with security forces,
    their apparent resistance to reforms in other areas, such as freedom
    of expression (see below) as well as the apparent lack of
    accountability of prosecutors,(6) Amnesty International believes that
    steps should be taken to ensure that investigations into serious
    human rights violations by security forces such as torture,
    extrajudicial executions, ill-treatment and deaths in custody are
    independent and impartial.

    This could be achieved by developing an independent mechanism such as
    a Police Complaints Commission that would investigate any allegations
    of torture or ill-treatment perpetrated by members of the police
    forces. Such a body would have to be well resourced in order to
    investigate such a large number of complaints and those responsible
    for carrying out the investigations should be independent from the
    security forces. After carrying out the initial investigation and
    gathering evidence such a body would refer the file to the prosecutor
    with a recommendation regarding further action.

    Since the ultimate decision regarding prosecution would be in the
    hands of the prosecutor and given the concerns regarding the quality
    of their investigation, Amnesty International would also urge that
    priority is given to training prosecutors regarding the reforms and
    especially the standards of investigation into allegations of torture
    and ill-treatment in accordance with the UN Principles on the
    Effective Investigation and Documentation of Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment. The organization also
    urges the government to implement the recommendations below related
    to standards of investigations which have been selected from a number
    of international standards in the light of specific shortcomings
    regarding investigations in Turkey.

    Investigations regardless of whether or not there are complaints
    It is essential that, even in the absence of an express complaint, an
    investigation should be undertaken wherever there is reasonable
    ground to believe that torture or ill-treatment might have occurred
    according to Article 12 of the UN Convention against Torture and
    Other Cruel, Inhuman or Degrading Treatment or Punishment to which
    Turkey is a state party. The UN Committee against Torture (CAT) has
    stated that "...the Convention does not require the formal submission
    of a complaint of torture. It is sufficient for torture only to have
    been alleged by the victim for the state to be under an obligation
    promptly and impartially to examine the allegation"(7). The CAT has
    also been very clear that information supplied by non-governmental
    organizations should be grounds for opening an investigation(8).

    Investigations should be comprehensive
    Amnesty International would like to draw attention to the following
    observation and recommendation from the CPT made in its report on its
    September 2003 visit to Turkey which it considers to be absolutely
    key to improving investigations by prosecutors:

    As regards more particularly public prosecutors and judges, they
    should be made fully aware not only of the importance of medical
    reports in the context of combating ill-treatment but also of the
    limitations of such reports. From the information gathered during the
    September 2003 visit, it is clear that there is still a tendency for
    routine medical reports drawn up at the end of police/gendarmerie
    custody which record "Darp cebir izine rastlanmadı" (no signs of
    blows or violence found) to be treated as a guarantee that
    ill-treatment has not occurred. Nothing could be further from the
    truth.

    Even assuming that the examination on which such a report is based
    was carried out under satisfactory conditions (which at present is
    still far from always being the case), it is a well recognised
    forensic medical fact that the absence of physical marks does not
    necessarily mean that the person examined has not been ill-treated.
    Many of the methods of ill-treatment known to have been used in
    Turkey do not leave visible physical marks, or will not if carried
    out expertly. It follows that in order to make an accurate assessment
    of the veracity of allegations of ill-treatment, it may well be
    necessary to look beyond the medical reports drawn up during
    police/gendarmerie custody and to take evidence from all persons
    concerned and arrange in good time for on-site inspections and/or
    specialist medical examinations [Amnesty International's emphasis].

    Amnesty International has encountered numerous examples of situations
    where the testimony of the security officials in connection with an
    incident in which they are alleged to have perpetrated a serious
    human rights violation - especially in relation to killings in
    disputed circumstances - have become the basis for the prosecutor's
    indictment while other evidence such as the statements of witnesses
    appear to have been ignored. This often means that security officials
    are charged with a lesser offence instead of the crime with which
    they had been accused (for example, "ill-treatment" rather than
    "torture") and, it has been alleged, is designed to damage the
    chances of a successful prosecution.

    Chain of command
    It is essential that investigations - and any resulting court cases -
    examine the responsibility of commanding officers where members of
    the security forces are alleged to have perpetrated serious human
    rights violations. At the moment, there appears to be a reluctance to
    indict senior officials. The Special Rapporteur on torture has
    stated: "If torture has occurred in an official place of detention,
    the official in charge of that place should be disciplined or
    punished."(9) Establishment of a chain of command is also
    particularly important where violations are alleged to have been
    perpetrated outside of official detention settings. The principle of
    chain-of-command control is set out in the United Nations (UN)
    Declaration on the Protection of all Persons from Enforced
    Disappearance: "Each state shall ... ensure strict supervision,
    including a clear chain of command, of all law enforcement officials
    responsible for apprehension, arrests, detentions, custody, transfers
    and imprisonment, and of other officials authorized by law to use
    force and firearms" (Article 12/2).

    Suspension and dismissal
    Amnesty International is particularly concerned that members of the
    security forces have remained on duty after they have been accused of
    serious human rights violations and even where cases have been opened
    against them for torture or serious ill-treatment. This not only is a
    problem in that it allows for the possibility that an individual or
    group of police officers may offend again, but also it may result in
    intimidation of the witnesses and complainants. The UN Special
    Rapporteur on torture has stated that "when a detainee or relative or
    lawyer lodges a torture complaint, an inquiry should always take
    place and, unless the allegation is manifestly ill-founded, public
    officials involved should be suspended from their duties pending the
    outcome of the investigation and any subsequent legal or disciplinary
    proceedings."(10) If found guilty, they should be dismissed from the
    service and not merely suspended. Amnesty International is concerned
    that security officials who are being investigated or prosecuted for
    serious human rights violations, including "disappearances",
    extrajudicial executions and torture and serious ill-treatment, have
    often been posted to other assignments on active service or even
    promoted. Police or gendarmerie officers under investigation or being
    prosecuted for such crimes should not receive rewards such as
    promotions while they are under investigation, awaiting trial or
    during the trial lest it appear that the authorities condone their
    acts. Such a step would appear entirely consistent with the "zero
    tolerance for torture" policy.

    Use of "counter-charges"
    Amnesty International is especially concerned about the use of
    "counter-charges" against individuals complaining of ill-treatment
    perpetrated by security officials during apprehension and during
    policing of demonstrations. Amnesty International has documented
    cases where, subsequent to a complaint of ill-treatment from a
    detained person, prosecutors have hastily ruled that there is no
    basis for a prosecution of the security officials - despite medical
    reports that corroborate allegations of ill-treatment - and instead
    charged the complainant with "resisting a public official by force
    and violence or threats" or with violation of Law No 2911 on Meetings
    and Demonstrations. The government should take effective measures to
    ensure that people who bring complaints of ill-treatment against
    police officers are protected against intimidation. Such measures
    should include the careful scrutiny by the prosecuting authorities of
    police complaints that detainees have resisted state authority,
    particularly those which are filed only after complaints of police
    ill-treatment are brought. Where complaints are filed simultaneously,
    the complaint against the alleged victim should be suspended until
    the result of the investigation into the behaviour of the police
    officers concerned has been completed.

    Demonstrations
    This point is particularly important regarding the policing of
    demonstrations. Amnesty International welcomed the opening of an
    investigation by the Ministry of the Interior into the use of
    disproportionate force by police officers on demonstrators in
    Sarachane and Bayezit on 6 March 2005 and the subsequent disciplinary
    sanctions against six police officers and two commanding officers.
    While such a response is welcome, the organization has repeatedly
    raised the issue of policing of demonstrations with the government
    and is aware of many such similar incidents that have taken place in
    the last year. The only factor that seemed to make this incident
    extraordinary was that it took place just before the EU Ministerial
    Troika in Ankara and the footage of police brutality and the
    inadequacy of policing practices were broadcast on television screens
    internationally. Amnesty International insists that all such
    incidents are investigated fully and asks that police officers should
    receive further training in the area of policing of demonstrations.
    In addition, the organization is greatly concerned at reports that
    identification of individual police officers involved in the above
    incidents was made difficult since they were wearing gas masks.
    Amnesty International urges that police officers should be clearly
    identifiable and that their badge numbers should never be obscured
    while they carry out their duties.

    Amnesty International reminds the Turkish government of its
    responsibilities under international law, including the UN Basic
    Principles on the Use of Force and Firearms by Law Enforcement
    Officials which states in Principles 7 and 8: "Governments shall
    ensure that arbitrary or abusive use of force and firearms by law
    enforcement officials is punished as a criminal offence under their
    law", and "Exceptional circumstances such as internal political
    instability or any other public emergency may not be invoked to
    justify any departure from these basic principles." This last
    observation is key in the light of reported statements by members of
    the government that such behaviour by police officers was in some way
    justified as the demonstration "did not have permission".

    Use of evidence alleged to have been extracted under torture
    Regarding use of evidence alleged to have been extracted as a result
    of torture or ill-treatment, Amnesty International would like to draw
    attention to Article 15 of the UN Convention against Torture which
    obliges states parties to "ensure that any statement which is
    established to have been made as a result of torture should not be
    invoked as evidence in any proceedings, except against a person
    accused of torture as evidence that the statement was made". The UN
    Special Rapporteur on torture has further stated that "where
    allegations of torture or other forms of ill-treatment are raised by
    a defendant during trial, the burden of proof should shift to the
    prosecution to prove beyond reasonable doubt that the confession was
    not obtained by unlawful means, including torture and similar
    ill-treatment." Amnesty International welcomes Article 148 of the
    Criminal Procedure Code that prohibits the use of evidence of
    statements obtained under torture and ill-treatment as well as the
    recent landmark judgment by the Court of Appeals in the Huseyin
    Goklerinoğlu case which overturned his conviction on the basis that
    it was extracted under torture. The organization nevertheless
    considers that a body should be established to review previous
    convictions based on evidence alleged to have been extracted under
    torture and, where appropriate, to arrange for prompt retrial.

    5. PROBLEMS OF JUDICIAL PROCEEDINGS

    Unfortunately, even where trials are initiated against individual
    members of the security forces accused of perpetrating serious human
    rights violations, courts appear to be reluctant to proceed swiftly
    and to punish defendants with appropriate sanctions if they are found
    guilty or otherwise are dropped on technical grounds. Amnesty
    International therefore urges that the following recurring problems
    in connection with such judicial proceedings be urgently addressed.

    Statute of limitations
    The new TPC has, through its introduction of heavier penalties for
    the crimes of torture, further extended the statute of limitations in
    such crimes. However, Amnesty International takes little courage from
    this development given the excessive delays in trials opened as a
    result of such crimes and the dropping of a large proportion of cases
    because they have reached the statute of limitations. In some
    circumstances it appears that the lawyers of the defendants have
    attempted to delay legal proceedings as long as possible in a
    frequently successful gambit designed to ensure that charges against
    their clients are dropped through the case reaching the statute of
    limitations. Given this situation,
    Amnesty International draws attention to the fact that the status of
    torture as a peremptory norm of general international law suggests
    that there should be no statute of limitations for the crime of
    torture. Amnesty International urges the government to address this
    issue in law immediately.

    Delays in judicial proceedings
    Amnesty International further draws attention to the recommendation
    of the UN Special Rapporteur on torture after his visit to Turkey
    that "...prosecutors and judiciary should speed up the trials and
    appeals of public officials indicted for torture and ill-treatment".
    While Law No 4963 (the so-called "seventh harmonization package")
    which came into effect in 7 August 2003 introduced an additional
    article to the previous CPC that stipulated that trials opened as a
    result of torture or ill-treatment cannot be postponed more than 30
    days and should be heard during judicial holidays, no such provision
    has been carried over into the new CPC. The organization notes the
    possibility of serious delays in trials related to torture and
    ill-treatment(11). The organization considers that there is a need to
    expedite trials by introducing regulatory time frames for the
    provision of evidence - such as medical reports from the Forensic
    Institute - by improving the mechanisms for ensuring more thorough
    pre-trial preparation of cases by the relevant authorities and by
    introducing the practice of conducting trial hearings on consecutive
    days until a verdict is reached, or at least at much closer intervals
    than is the current practice.

    Use of medical reports in trials and the role of the Forensic Medical
    Institute
    Some trials of torturers - such as that before Iskenderun Heavy Penal
    Court in which four police officers were accused of the torture of
    Nazime Ceren Salmanoğlu and Fatma Denis Polattaş in 1999 - have
    highlighted problems in the use of independent medical reports as
    corroboration and drawn attention to fundamental problems in the
    structure of the Forensic Medical Institute, which is responsible for
    providing reports that are used in the Turkish domestic courts.(12)
    Amnesty International considers that these shortcomings need to be
    addressed immediately by the government. In line with the
    recommendation of the CPT in relation to the role of medical reports
    in proving whether or not torture has taken place, Amnesty
    International would urge that court decisions as to whether or not
    torture took place should also not be based on (possibly deficient)
    medical reports but should "look beyond the medical reports drawn up
    during police/gendarmerie custody and to take evidence from all
    persons concerned and arrange in good time for on-site inspections
    and/or specialist medical examinations".

    Amnesty International is concerned at the lack of independence of the
    Forensic Medical Institute and considers that this body must be made
    independent both functionally and nominally of the Justice Ministry.
    The UN Special Rapporteur on torture has drawn attention to this
    fact, stating that: "...the forensic medical services should be under
    judicial or other independent authority, not under the same
    governmental authority as the police and the penitentiary
    system".(13) At the moment this is not the case. Amnesty
    International is additionally concerned by the staffing of the
    Forensic Medical Institute. For example, Dr Nur Birgen, the
    individual who was appointed to head the Third Specialization
    Committee of the Forensic Medical Institute, which is the committee
    responsible for medical assessments in cases where torture is
    alleged, is an individual who has received several disciplinary
    sanctions from the Turkish Medical Association - one of which was for
    issuing a medical report which covered up signs of torture. This key
    appointment does not promote confidence in the government's professed
    commitment to demonstrate "zero tolerance to torture".

    Amnesty International is additionally concerned at the apparent
    reluctance of courts to accept as evidence medical and psychiatric
    reports from sources other than the Forensic Medical Institute. In
    some circumstances, this has led to long and unnecessary delays as
    courts wait for the confirmation from the Forensic Medical Institute
    for corroboration of independent, expert reports. Given the issues
    cited above, related to the Institute's non-independent status as
    well as its apparently low capacity, the government should certainly
    be taking urgent steps to promote the acceptance as evidence by
    courts of medical and psychiatric reports from high quality
    university research and teaching hospitals, and where necessary,
    other accredited organizations. The UN Special Rapporteur on torture
    has stated that: "Public forensic medical services should not have a
    monopoly of expert forensic evidence for judicial purposes." The CPT
    has - crucially - recommended that specific legal provisions should
    be adopted which would ensure that "a person taken into police
    custody has the right to be examined, if he so wishes, by a doctor of
    his own choice, in addition to any medical examination carried out by
    a doctor called by the police authorities".

    Sentencing
    Amnesty International is also concerned that even when police
    officers accused of ill-treatment have been convicted by a court,
    punishments have not always been commensurate with the gravity of the
    crime. Relatively nominal penalties, which have often been further
    reduced, have been imposed on police officers whose victims suffered
    serious injury. Reasons for these reductions in sentences have
    included the "good conduct" of the defendant in court. Only very
    rarely do police officers, who are convicted of human rights abuses,
    receive custodial sentences. If unlawful acts of police violence
    against detainees are to be deterred, the seriousness of such acts
    must be reflected in both the criminal and disciplinary measures
    taken against the offending police officers. The government has
    previously taken steps to address this concern by introducing a
    regulation which stipulates that sentences handed down for crimes of
    torture and ill-treatment may not be converted to a fine or
    suspended. While this measure was not completely successful in
    addressing this problem, it is concerning to see that this does not
    appear to have been carried over into the new CPC. The UN Special
    Rapporteur on torture has previously underscored the importance of
    appropriate sentencing, stating: "Sentences should be commensurate
    with the gravity of the crime."

    Reparations
    Finally, Amnesty International would like to draw attention to
    Article 14 of the UN Convention against Torture under which victims
    of torture and their dependants are entitled to fair and adequate
    redress from the state. This should include appropriate medical and
    psychological care, financial compensation and rehabilitation.
    Amnesty International would be glad to receive information as to what
    provisions the government has introduced to meet this responsibility.

    6. THE NEED FOR GREATER SCRUTINY OF PLACES OF DETENTION

    The UN Special Rapporteur on torture has stated that "Regular
    inspection of places of detention, especially when carried out as
    part of a system of periodic visits, constitutes one of the most
    effective preventive measures against torture."(14)

    Amnesty International welcomes recent steps by the government to
    allow for greater inspection of places of detention. Article 92 of
    the new CPC requires State Prosecutors to carry out inspections of
    places of detention - Amnesty International considers such
    inspections could be an effective and important measure against
    torture and ill-treatment if the inspections are carried out on both
    a regular and an ad hoc basis and the subsequent findings and
    recommendations made public.

    Both the Parliamentary Human Rights Commission and the Provincial and
    Regional Human Rights Boards have both reportedly carried out recent
    visits to places of detention. While such extra levels of scrutiny
    are welcome, these bodies are not demonstrably independent or
    necessarily possessed of the necessary expertise in evaluating places
    of detention.

    At the moment, the only demonstrably independent body which enjoys
    the right to carry out visits unannounced in Turkey is the European
    Committee for the Prevention for Torture (CPT) whose findings and
    recommendations have generated significant change in Turkey regarding
    detention regulations and an apparently commensurate improvement in
    patterns of torture and ill-treatment. Amnesty International urges
    that this right should be granted to other institutions and draws
    attention to the recommendation of the UN Special Rapporteur on
    torture that:

    ...official bodies should be set up to carry out inspections, such
    teams being composed of members of the judiciary, law enforcement
    officials, defence lawyers and physicians, as well as independent
    experts and other representatives of civil society. Ombudsmen and
    national or human rights institutions should be granted access to all
    places of detention with a view to monitoring the conditions of
    detention.

    Amnesty International therefore calls on the government to sign and
    ratify the Optional Protocol to the Convention against Torture which
    would mandate the establishment of a system of regular visits
    undertaken by independent international and national bodies to places
    where people are deprived of their liberty in order to prevent
    torture and ill-treatment. The Protocol would require the
    maintenance, designation or establishment of one or several
    independent bodies at a national level which would carry out
    monitoring of places of detention. This could be a function of one of
    the National Human Rights Institutions when they are created. Amnesty
    International would like to draw attention to the attached report
    Preventing Torture at Home - A Guide to the Establishment of National
    Preventative Mechanisms (AI Index: IOR 51/004/2004) which offers
    guidelines on the structure, powers and operations of such bodies.

    However, scrutiny of places of detention should not be limited to
    official bodies but should be opened to monitoring by
    non-governmental organizations. As the UN Special Rapporteur on
    torture has stated:

    Independent non-governmental organizations should be authorized to
    have full access to all places of detention, including police
    lock-ups, pre-trial detention centres, security service premises,
    administrative detention areas and prisons, with a view to monitoring
    the treatment of persons and their conditions of detention.

    This view is reinforced by the statement of the UN Special
    Representative on Human Rights Defenders on Turkey in which she makes
    clear that "...access to information and to places of detention and
    prisons must be a right which must be exercised independently by
    human rights organizations". Amnesty International considers that the
    granting of such powers to groups like local Bar Associations and
    Medical Chambers would be an important step towards improving
    scrutiny of places of detention and therefore eradicating torture and
    ill-treatment. Certainly, development of effective monitoring
    mechanisms would be mandated by the policy of "zero tolerance for
    torture".

    7. FREEDOM OF EXPRESSION

    Amnesty International has previously welcomed some of the changes
    made to the Turkish Constitution and legislation since 2001 in order
    to improve standards related to the right to freedom of expression.
    Amnesty International considers that the amendment to Article 90 of
    the Constitution by the government ­­- which gives priority to
    international treaties on fundamental rights and freedoms to which
    Turkey is a state party over Turkish domestic legislation - is a key
    development.

    However, the organization is nevertheless still aware of numerous
    cases in which individuals are being prosecuted or have received
    monetary fines or custodial sentences for the peaceful expression of
    non-violent opinion. While courts have handed down some landmark
    judgments which have cited international standards, there are also
    several examples of important cases where the decisions of the Court
    of Appeals appear to be in contravention of international
    standards.(15) Such problems seem to derive from an apparent
    resistance by prosecutors and members of the judiciary to the
    reforms. Indeed the UN Special Representative on Human Rights
    Defenders has drawn attention to the fact that "prosecutors have not
    actively engaged in the implementation of the reform" and that "Some
    judges have also shown reluctance to implement the reforms"
    concluding that attitudes on the part of "some within the judiciary
    is hampering concrete change at the local level". Amnesty
    International therefore fully supports the call of the UN Special
    Representative on Human Rights Defenders for "monitoring of the
    implementation of the new laws by the judiciary at the local level,
    in particular with regard to cases involving freedom of expression".

    However, the organization notes that the government has previously
    required that prosecutors receive permission from the Ministry of
    Justice in order to open cases under the notorious Article 159 of the
    previous TPC (which criminalizes "insults" to various state
    entities). Despite such monitoring of cases by the Ministry of
    Justice, cases in violation of international standards on free speech
    continued to be opened under Article 159. Therefore, closer
    monitoring which takes into account Turkey's obligations under
    international law need to be implemented. In this connection, steps
    should be taken to implement Hina Jilani's recommendation for
    "increased training of the judiciary, security forces and
    governorship on the aims and intents of the new laws".

    Constitutional restrictions on the right to freedom of expression
    Apart from the failure to implement the new laws in relation to
    freedom of expression, it is clear that the law in Turkey still
    places unnecessary and abusive restrictions to this right. We
    therefore urge the government to take steps to address these existing
    legal and constitutional restrictions on the right to freedom of
    expression as a priority.

    Many of these aspects derive from provisions found in the
    Constitution on the right to freedom of expression. Although
    restrictions and prohibitions of violations of fundamental rights and
    freedoms (Articles 13 and 14 of the Constitution) were reworded to a
    large extent in 2001, numerous articles of the Turkish Constitution
    still retain restrictions which are not compatible with Turkey's
    obligations under international law.(16) Amnesty International is
    also concerned that the amendment of Article 26 in 2001 introduced
    further restrictions to the exercise of the right to freedom of
    expression: "...for the purposes of protecting national security,
    public order and public safety, the basic characteristics of the
    Republic and safeguarding the indivisible integrity of the State with
    its territory and nation, preventing crime, punishing offenders,
    withholding information duly classified as a state secret, protecting
    the reputation and rights and private and family life of others, or
    protecting professional secrets as prescribed by law, or ensuring the
    proper functioning of the judiciary". Such wording can be - and has
    been in the past - used to penalize peaceful statements, for example,
    on the Kurdish issue or the role of Islam in politics and society.
    Amnesty International urges the Turkish authorities to ensure that
    the restrictions in the Constitution do not go beyond the margins
    allowed by the European Convention for the Protection of Human Rights
    and Fundamental Freedoms (ECHR) to which Turkey is a state party.(17)

    Problems with the new TPC
    As stated above, Amnesty International considers that the new TPC
    contains measures which may be significant obstacles to the full
    enjoyment of the right to freedom of expression in Turkey and appear
    to be a step back in the reform process. Some provisions - in the use
    of which the European Court of Human Rights has found Turkey to have
    been in breach of the ECHR - have apparently been carried over
    directly from its predecessor. International human rights law on
    freedom of expression, as set out in the International Covenant on
    Civil and Political Rights and the ECHR as elaborated in the
    jurisprudence of the European Court of Human Rights, provides that
    any limitations on the right to freedom of expression must be
    narrowly drawn and only such as are necessary in a democratic society
    for respect of the rights or reputations of others, for the
    protection of national security or of public order, or of public
    health or morals, or for the prohibition of war propaganda and
    advocacy of hatred that constitutes incitement to discrimination,
    hostility or violence. The restrictions provided for in the new TPC
    appear to be considerably broader than this and are not limited to
    those instances which are demonstrably necessary on one of the
    permissible grounds. As such, the law could be used to penalize
    individuals exercising their human right to freedom of expression on
    matters of political opinion.

    For example, Section 3 of Part 4 of the new TPC entitled "Crimes
    against signs of the state's sovereignty and the honour of its
    organs" (Articles 299 - 301) could be used to penalize individuals
    who exercise their right to freedom of expression by expressing
    political views. In particular, Amnesty International is disturbed
    that this section of the new TPC criminalizes offences such as
    "insulting" the President (Article 299), or "denigrating" the Turkish
    flag or anything carrying its replica and the national anthem
    (Article 300), Turkishness, the Republic, the Parliament, the
    government, the judiciary, the military and security forces (Article
    301). There is no clear reason provided why, as the law states, such
    acts should be aggravated and provided with heavier sentences when
    perpetrated abroad by a citizen of Turkey. Moreover, Section 3
    carries over aspects of Article 159 of the previous TPC, which
    criminalized insults against or denigration of various state
    institutions. In the light of the way that this provision has been
    used to unnecessarily restrict the right to freedom of expression,
    Amnesty International has called for it to be repealed.

    We recognize that Paragraph (4) of Article 301 states that "any
    expression of thought which is made with the intention of criticism
    does not constitute a crime". However, Amnesty International recalls
    that a similar amendment was made in August 2002 to this provision in
    the previous TPC, under Article 159, yet this did not prevent
    prosecutions of statements by individuals who had exercised their
    right to freedom of expression. Amnesty International therefore urges
    the government to repeal this section in order to bring the
    legislation into line with international standards on freedom of
    expression.

    Some of the articles found within Section 4 of Part 4 of the new TPC
    (Articles 302 - 308) entitled "Crimes against State Security" also
    appear to be in contravention of Turkey's obligations to comply with
    human rights standards. Amnesty International views with particular
    concern Article 305 which criminalizes "acts against the fundamental
    national interest", especially in the light of the written
    explanation attached to the draft when the law passed through
    Parliament. The explanation provided as examples of crimes such acts
    as "making propaganda for the withdrawal of Turkish soldiers from
    Cyprus or for the acceptance of a settlement in this issue
    detrimental to Turkey... or, contrary to historical truths, that the
    Armenians suffered a genocide after the First World War". Amnesty
    International considers that the imposition of a criminal penalty for
    any such statements - unless they demonstrably amount to advocacy of
    national, racial or religious hatred that constitutes incitement to
    discrimination, hostility or violence - would be a clear breach of
    international standards related to freedom of expression.

    Amnesty International is additionally concerned by Section 5 of Part
    3 of the new TPC entitled "Laws against the Public Order" (Articles
    213 - 222). Amnesty International notes that Article 312 of the
    previous TPC - which criminalized incitement of people to enmity on
    the basis of social, regional, ethnic or religious difference - has
    been carried over into the new TPC as Article 216. In the past, the
    Turkish state has been found to have been in breach of the right to
    freedom of expression by the European Court of Human Rights in its
    use of this provision. While such legislation is necessary to
    criminalize advocacy of national, racial or religious hatred that
    constitutes incitement to discrimination, hostility or violence, it
    has rarely been used as such. In the past, peaceful statements
    related to religious or minority rights have been prosecuted under
    this Article - Amnesty International has repeatedly raised its
    concerns about the use of this provision. Amnesty International urges
    that particular care be paid in the use of this Article and supports
    the recent recommendation of the European Commission on Racism and
    Intolerance which urged the Turkish authorities "to continue their
    efforts to ensure that Article 312 of the Criminal Code prohibiting
    incitement to hatred is applied for the purpose of punishing racist
    statements in compliance with the letter and spirit of this provision
    [Article 312]".

    Furthermore, Amnesty International notes the concern articulated by
    human rights organizations and press groups related to Article 220
    (8) - which criminalizes the making of propaganda for criminal
    organizations, as well as Article 226 - which criminalizes obscenity,
    that these may be used to restrict the right to freedom of
    expression. Article 318 which criminalizes "alienating the people
    from the army" also appears to offer possibilities to restrict the
    right to freedom of expression in a way not permitted by
    international standards.

    Paragraph 1 of Article 298 of the new TPC introduces sanctions
    against individuals who may try to prevent prisoners from exercising
    their full rights. While legislation protecting the rights of
    prisoners is welcome, this provision is framed in such a way as to
    suggest that the focus of the law is prisoners who, for example, may
    engage in a boycott of a prison facility. Paragraphs 2 and 3 lay down
    penalties for those who encourage or persuade prisoners to take part
    in hunger strikes. Amnesty International is concerned that Article
    298 may be used to curtail non-violent protests such as boycotts or
    hunger strikes and thus may violate the right to freedom of
    expression.

    While some changes were made to the draft of the law after its entry
    into force was delayed, these must be considered insufficient. Most
    obviously, the possibility of aggravated sentences when the offences
    are perpetrated through the press was removed in some crimes.
    However, the problems in the law remained unaddressed. In at least
    one instance, a change made the TPC even more restrictive. For
    example, Article 305 of the draft, which criminalized "acts against
    the fundamental national interest", was altered to explicitly allow
    for the prosecution of "foreigners" as well as Turkish citizens who
    engage in such acts.

    Amnesty International considers that legal and constitutional
    guarantees for the right to freedom of expression must be further
    strengthened so that they are compatible with international legal
    provisions, such as those of Article 10 of the European Convention of
    Human Rights. The European Court has interpreted restrictions to
    Article 10 very narrowly. Amnesty International will closely monitor
    the implementation of the new TPC but asks for further steps to be
    taken to amend the law and constitution in order to fully ensure
    freedom of expression in Turkey.

    8. MINORITY RIGHTS AND DISCRIMINATION

    Amnesty International continues to be concerned about restrictions on
    the use of minority languages and calls for such obstacles to be
    lifted immediately. In particular, Article 42 of the Constitution, in
    which "No other language than Turkish may be taught in educational
    and teaching facilities to Turkish citizens as their mother tongue",
    appears to be contrary to international standards related to minority
    rights. Such standards include the United Nations Declaration on the
    Rights of Persons Belonging to National, Ethnic, Religious and
    Linguistic Minorities which states that all UN member states should
    take "appropriate measures so that, wherever possible, persons
    belonging to minorities may have adequate opportunities to learn
    their mother tongue or to have instruction in their mother tongue".
    While Amnesty International welcomed the amendment of the Law on the
    Education and Teaching of Foreign Languages in 9 August 2002 to allow
    for the "learning of different languages and dialects used
    traditionally by Turkish citizens in their daily lives", the
    organization notes serious restrictions to this right, for example,
    the languages may only be taught to adults at private language
    courses. In addition, Article 42 of the Constitution was used to
    close the trade union, Eğitim Sen, because it stated in its statute
    that it would work for the right to mother-tongue education. This
    case was a clear violation of the right to freedom of expression and
    association. There is the risk that other entities' rights to freedom
    of expression may be similarly unnecessarily and arbitrarily
    restricted while Article 42 exists in the Constitution in its present
    state.

    Similarly, Amnesty International is greatly concerned at cases
    launched against politicians for speaking in minority languages to
    audiences and distributing materials in these languages under Article
    58 of Law 298 on Elections as well as Law No 2820 on Political
    Parties. Article 81 of the latter law appears to be particularly
    problematic stating:
    a) ...Political parties may not put forward the view that there are
    minorities in the country of the Republic of Turkey based upon
    difference of national or religious culture or creed or race or
    language ...
    c) Political parties may not use languages other than Turkish in the
    statute or program or publication, or in congresses or in meetings
    closed or open to the public or in mass meetings. They cannot
    distribute placards, signs, cassette or video tapes, brochures or
    announcements written in languages other than Turkish...

    Article 122 of the draft of the new TPC which forbids discrimination
    on the basis of "language, race, colour, gender, political thought,
    philosophical belief, religion, denomination and other reasons" was
    amended at the last moment so that "sexual orientation" was removed
    from the draft. Amnesty International is therefore concerned that
    discrimination on the basis of sexuality was not criminalized in the
    new TPC. This is coherent with Article 10 of the Constitution which
    states that "Everybody is equal before the law without making any
    distinction on the basis of language, race, colour, gender, political
    thought, philosophical belief, religion, denomination and other
    reasons." Amnesty International considers that both these articles
    should be amended to ensure full equality in law and practice of
    individuals of different sexual orientation.

    Amnesty International is still seriously concerned about the ban on
    the wearing of headscarves in higher education in Turkey - it
    believes that this ban is discriminatory and disproportionate.
    Despite the amnesty proposed for students excluded from university,
    the ban has and will continue to result in many people being excluded
    from university education and in the suspension or dismissal of
    hundreds of women from university teaching posts as a result of their
    religious beliefs. Amnesty International urges the Turkish
    authorities to take steps to address this issue.

    Amnesty International therefore considers that further steps need to
    be taken to improve minority rights in Turkey and to prevent
    discrimination. We urge that the country should sign and ratify
    international instruments in this area, including the Framework
    Convention for the Protection of National Minorities. Further it
    should ratify Protocol No.12 to the ECHR, which provides for a
    general prohibition of discrimination; and make the declaration under
    Article 14 of the International Convention on the Elimination of All
    Forms of Racial Discrimination, empowering the Committee for the
    Elimination of Racial Discrimination to receive individual
    communications. The government should also withdraw its reservations
    in respect of Article 27 of the International Covenant on Civil and
    Political Rights and Article 13 of the International Covenant on
    Economic, Social and Cultural Rights.

    9. HUMAN RIGHTS DEFENDERS

    Amnesty International welcomes numerous measures taken to lessen
    pressure on human rights defenders. For example, the new Law on
    Associations which is less restrictive than its predecessor should
    offer a significant boost to the development of civil society in
    Turkey if it is implemented fully. However, human rights defenders in
    Turkey are still subjected to unnecessary pressures. These range from
    unsubstantiated allegations by figures in authority which may result
    in death threats(18), through to difficulty in carrying out their
    legitimate campaigning activities as well as the opening of a large
    number of cases against them for often minor transgressions of
    administrative regulations. While these cases rarely result in
    imprisonment, more usually in acquittal, a suspended sentence, or a
    fine, Amnesty International considers that the opening of such cases
    constitutes a form of "judicial harassment" and also an apparent
    misuse by prosecutors of the criminal justice system.

    Amnesty International has also documented a pattern in which - in
    response to amended laws - prosecutors have used alternative charges
    to seek conviction of individuals and criminalization of acts by
    applying other legislation in place of the laws that have changed.
    Therefore, while the legal changes are welcome, such reform may not
    prevent the continued harassment of human rights defenders. Amnesty
    International urges the government to undertake an urgent review of
    all outstanding prosecutions of people for the peaceful exercise of
    their rights to freedom of expression, association and assembly with
    a view to ensuring that no one remains under prosecution for acts
    which are guaranteed under international protection in line with
    international law or standards.

    Furthermore the government should take steps to closely monitor
    investigations opened against human rights defenders and take
    effective action to sanction state officials who abuse the judicial
    system (and/or the government administrative system) to the detriment
    of human rights defenders with the intention of harassing them or
    curtailing their legitimate activities for the defence of human
    rights. In addition, the government should ensure that state
    institutions and individual officials refrain from adopting
    'creative' ways of persecuting human rights defenders by breaching
    Constitutional provisions or laws protecting human rights defenders,
    or through an excessively broad interpretation thereof.

    Given this pattern of harassment, Amnesty International is especially
    concerned about a provision introduced in the new CPC. Cases opened
    against human rights defenders have previously been opened under a
    variety of laws but a very significant number of these have been
    opened for "aiding and abetting illegal organizations" (Article 169
    of the previous TPC), "insults" to various state institutions
    (Article 159), "incitement to enmity" (Article 312) and "making
    propaganda for illegal organizations" (Article 7 of the Anti-Terror
    Law). Amnesty International therefore notes with concern that Article
    151 of the new CPC stipulates that lawyers representing defendants
    accused of certain crimes may be forbidden from representing their
    clients or visiting them in jail if the lawyers are being
    investigated or prosecuted under certain articles of the TPC. Among
    these articles are those which are the successors in the new TPC of
    the above articles. We consider that such a provision may be used to
    judicially harass human rights defenders through the opening of
    apparently groundless cases against them but also that human rights
    lawyers will therefore be unable to represent their clients through
    the application of Article 151. Such a provision is contrary to the
    spirit of the UN Declaration on Human Rights Defenders and may also
    restrict the right to a fair trial of the clients of lawyers thus
    barred and may be in contravention of the UN Principles on the Role
    of Lawyers. Amnesty International therefore calls for the abolition
    of this provision.

    Amnesty International considers that greater steps need to be taken
    to ensure that state officials recognize the legitimacy of work in
    defence of human rights. The organization considers that one reason
    that such attitudes continue amongst state officials is the
    apparently ambivalent attitude towards human rights groups expressed
    by the government. Amnesty International was disturbed by a statement
    by the Prime Minister released to the press following his meeting
    with the organization in February 2004 in which he accused human
    rights groups of having "double standards" in their treatment of
    Turkey and acting "ideologically" and was saddened by the apparent
    disregard for the thousands of Amnesty International members who had
    campaigned for the Prime Minister after he was sentenced to
    imprisonment in 1998 when he accused the organization of having been
    partial in his case and that it had "only made statements". The
    organization was further distressed to read the Prime Minister's
    speech to the Parliamentary Assembly of the Council of Europe in
    which he was reported to have said "...those, with ideological
    approaches, who say that there is still these type of torture... are
    people who have connections with terror organizations. I especially
    want to present this for your information." Amnesty International
    considers that this statement is in clear contravention of the spirit
    of the UN Declaration on Human Rights Defenders and would welcome a
    statement which would publicly recognize the legitimate work of human
    rights defenders and the contribution that they make to uphold the
    rule of law.

    Amnesty International is aware that the Ministry of the Interior
    distributed in October 2004 to its officials as a circular the EU
    Declaration on Human Rights Defenders. However, since this is a
    document aimed at foreign delegations in second countries, Amnesty
    International considers that it would have been more appropriate to
    circulate a copy of the UN Declaration on Human Rights Defenders. We
    therefore urge the government to take further action to ensure that
    state officials at every level of the state apparatus, including law
    enforcement officials, respect the legitimacy of the work of human
    rights defenders and allow them to carry out this work without
    hindrance or harassment. The UN Special Representative on Human
    Rights Defenders has made numerous detailed recommendations in her
    report. Amnesty International expects the government to incorporate
    into its programme steps towards implementing these recommendations.

    10. FREEDOM OF ASSEMBLY

    Amnesty International welcomes the circular issued last year by
    Interior Minister Abdulkadir Aksu which was designed to improve the
    right to assembly. While it did bring some much needed clarity to the
    legal status of the reading out of press releases, the organization
    considers that there is still the potential for confusion. The
    organization notes that - in practice - there are still unnecessary
    restrictions to the right to freedom of assembly. The UN Special
    Representative on Human Rights Defenders has noted such restrictions:

    ...in particular with regard to places where public gatherings can be
    held - the law imposes a 300-metre distance from any public building
    or major road crossing. Demonstrations and press releases by nature
    seek to draw public attention, and restricting them to places away
    from crowded streets and areas minimizes their ability to reach
    citizens, and can be seen as defeating the object of the right.

    Amnesty International believes that further steps are needed to
    remove such restrictions to ensure the right to freedom of assembly
    is fully guaranteed. This is especially important since those who
    violate these restrictions peacefully may be subjected to
    disproportionate force by security forces responsible for policing of
    such demonstrations. Amnesty International would like to remind the
    authorities that participation in a demonstration without permission
    does not justify use of disproportionate force.

    11. VIOLENCE AGAINST WOMEN

    Amnesty International has been greatly heartened by the recent steps
    taken by the government to improve the level of protection that women
    enjoy from violence in the family. We view the amendments to the
    Turkish Penal Code as a positive development and welcome the giving
    of legal recognition to the Directorate on the Status of Women
    attached to the Prime Ministry. We especially welcome the article of
    the new Law on Municipalities that requires municipalities to provide
    shelters for women in towns and cities with populations of more than
    50,000 individuals as well as the government's support for the
    Campaign "No to violence against women" which has been organized
    together with the United Nations Population Fund.

    Judging from other recent legal and constitutional reforms in Turkey,
    the passing of laws in itself is not enough - implementation of the
    laws will be key. Effort is needed to make sure that these reforms
    are communicated to women in Turkey as well as to prosecutors,
    governors, judges, police officers and others who may be responsible
    for implementing the law. Amnesty International draws particular
    attention to the Law on the Protection of the Family which was passed
    in 1997 and which is very rarely implemented. The organization
    requests the development of mandatory training programmes for the
    police, medical personnel, gendarmerie officials, members of the
    judiciary and other professionals who may be a first point of contact
    for women who have experienced violence. The training should include
    the recognition of violence, the optimal use of safety procedures -
    such as under the Law on the Protection of the Family, and guidance
    on how to deal with victims in the appropriate manner. Disciplinary
    measures must be taken against those state officials who fail to
    carry out their legal duty to protect women and prevent violence when
    clearly required to do so.

    Amnesty International is particularly concerned that there should be
    a greater availability for women in Turkey to resources that may
    provide advice on and protection from violence. In particular, the
    organization would like to see further steps taken to ensure the
    implementation of the Law on Municipalities so that this legal change
    becomes a meaningful development for women in Turkey. We therefore
    urge the government to ensure that adequate funding is available from
    the central budget for the establishment of shelters and to work with
    women's organizations to draw up guidelines for local authorities on
    the implementation of the law based upon universal shelter
    principles. We further ask the government to emphasize to local
    authorities the importance of working with women's organizations in
    setting up or funding shelters.

    Other resources that Amnesty International considers need to be
    provided are sufficient information and points of access for women to
    report violence, including hotlines covering all regions of Turkey
    staffed by sufficiently trained personnel, brochures and posters
    disseminated at hospitals, primary health care centres and courts,
    and websites.

    At present there is reported to be a direct phone line for women in
    service in 21 provinces (out of 81) providing psychological, legal
    and financial counselling for battered women or those who are under
    threat of violence. The government needs to ensure that this phone
    line service is extended to cover all regions of Turkey and that it
    is staffed by sufficiently trained personnel.

    `********

    (1) E/CN.4/2005/101/Add.3, page 25, para 102, 18 January 2005

    (2) Observations of the Government of Turkey on the Report of Ms.
    Hina Jilani, Special Representative of the Secretary General on Human
    Rights Defenders, on her mission to Turkey (E/CN.4/2005/G/29).

    (3) Human rights organizations alleged that the government had failed
    to respond to any of the reports of the Board, that the State
    Minister for Human Rights had not attended any of its meetings and
    that an effort had been made to make the board ineffective by
    appointing to it representatives of organizations whose commitment to
    human rights values was questionable. For further information, see
    the Turkey entry Concerns in Europe and Central Asia: July - December
    2004 (AI Index: EUR 01/002/2005), March 2005.

    (4) For example, see the Human Rights Watch briefing, Eradicating
    Torture in Turkey's Police Stations: Analysis and Recommendations, 22
    September, 2004.

    (5) E/CN.4/2005/101/Add.3, page 25, para 114, 18 January 2005.

    (6) The High Board on Prosecutors and Judges has oversight over the
    activities of prosecutors but Amnesty International is not aware of
    any steps that the Board has previously taken against prosecutors who
    have covered up torture. If such examples do exist, the organization
    would be grateful to receive further details.

    (7) Blanco Abad v. Spain, para 8.2.

    (8) Khaled Ben M'Barek v. Tunisia, 10 November 1999, paras 2.10,
    11.4-11.7.

    (9) Report of the Special Rapporteur to the 56th session of the
    General Assembly, A/56/156, 3 July 2001, para. 39 (j).

    (10) Ibid.

    (11) For example, on 24 June 2005, a court in Ceyhan reportedly
    postponed the trial of a police officer charged with the
    ill-treatment of Murat Gezici until 5 October 2005.

    (12) For example, see the Amnesty International press release Turkey:
    Justice denied to tortured teenage girls (AI Index: EUR 44/018/2005,
    22 April 2005).

    (13) Report of the Special Rapporteur to the 56th session of the
    General Assembly, A/56/156, 3 July 2001, para. 39 (j).

    (14) Report of the Special Rapporteur to the 56th session of the
    General Assembly, A/56/156, 3 July 2001, para. 39 (e).

    (15) For example, the 25 May 2005 decision which insisted on the
    closure of the largest trade union in Turkey, Eğitim Sen, because it
    included amongst the aims in its statute that it would work for the
    right to mother tongue education.

    (16) Article 14 now reads: "None of the rights and freedoms embodied
    in the Constitution shall be exercised with the aim of violating the
    indivisible integrity of the state with its territory and nation, and
    endangering the existence of the democratic and secular order of the
    Turkish Republic based upon human rights. No provision of this
    Constitution shall be interpreted in a manner that enables the State
    or individuals to destroy the fundamental rights and freedoms
    embodied in the Constitution or to stage an activity with the aim of
    restricting them more extensively than stated in the Constitution.
    The sanctions to be applied against those who perpetrate these
    activities in conflict with these provisions shall be determined by
    law."

    (17) Namely: they must be prescribed by law and necessary in a
    democratic society in the interests of national security, territorial
    integrity or public safety, for the prevention of disorder or crime,
    for the protection of health and morals, or for the protection of the
    rights and freedoms of others.

    (18) See, for example, Urgent Action 94/05, AI Index: EUR
    44/014/2005, 20 April 2005

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