III. Progress and Setbacks in Legal Protections against Police Violence

Legal Reform Going in the Right Direction

The AK Party's commitment to "Zero tolerance for torture"

After its parliamentary election victory in November 2002, t he Justice and Development Party (Adalet ve Kalkınma Parti, AK) government repeatedly avowed its commitment to a " zero tolerance for torture" policy and to the protection of human rights. Moves were made to introduce better safeguards than in the past to protect suspects against ill-treatment during their detention and interrogation. Thousands of law enforcement officials were offered training programmes in human rights as well as in aspects of policing in cooperation with the Council of Europe, the European Commission, and also with EU member state national police forces.

With a view to fulfilling the criteria for eventual European Union membership, the AK Party government and its direct predecessor instituted an ambitious legal reform program. Reforms pertaining to the strengthening of human rights protection were mainly introduced in the form of large mixed reform packages-known as "Harmonization" laws-containing changes to a variety of laws in different areas. A new Turkish Penal Code and Criminal Procedure Code were also introduced in 2005. [14]

The reforms described below are a step in the right direction, but the impact in the areas they cover is more mixed: omissions, loopholes, and a lack of follow-through in key areas undermine the government's delivery on its avowed commitment.

New legal safeguards for detainees

Among the gains of this whole process were measures that provide greater safeguards for individuals in detention, as incorporated into the Criminal Procedure Code and into the new Regulation on Apprehension, Detention and Statement Taking. [15] Significant reductions were made in maximum permitted detention periods before being brought before a judge and being charged. [16] Detainees were granted the right to immediate access to legal counsel and the legal aid provided by bar associations was extended to cover most detainees (article 150 of the Criminal Procedure Code). [17] It was stipulated that police must inform detainees of their rights and that detainees' relatives should be informed promptly of their detention. Other safeguards included the right to medical examination without a law enforcement officer being present; the requirement that medical reports be prepared on admission to, any prolongation of, and exit from police custody; and that copies of medical reports be sent by the doctor in a sealed envelope to the prosecutor. It was also stipulated that the law enforcement officer bringing the detainee before a doctor for medical examination should not be the same individual conducting the interrogation. Most importantly of all, the new law provided that to be admissible in court formal statements by detainees had to be made in the presence of a lawyer. Any statements made to the police without legal counsel being present were deemed inadmissible if they were not repeated before a judge or as sworn evidence before a court.

Safeguards not fully delivered: Falling short of the Istanbul Protocol

Despite promises, there has been little progress towards implementing the terms of the Istanbul Protocol (the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).[18] For example, despite it being a basic right in the Protocol, access to an independent medical examination and the admissibility of independent medical reports in court are still not recognized by the Turkish legal system. Health institutions authorized to conduct medical examinations on individuals who, for example, allege torture are all official institutions subject to government control. While the Human Rights Foundation of Turkey(Türkiye İnsan Hakları Vakfı,TİHV)and the Association of Forensic Experts (Adli Tıb Uzmanlar Derneği, ATUD) have developed methods for preparing alternative reports, these have only very rarely been accepted by courts in Turkey.

New legal aid provisions scaled back

The legal aid provisions in the Criminal Procedure Code were changed in December 2006, simply because local bar associations providing this legal aid service were under-resourced and unable to secure a higher budget to support such a service. As introduced in 2005, a detainee had automatic access to free legal counsel while in custody if suspected of committing crimes carrying a maximum sentence of five years or more. As now amended, legal counsel would be provided free only to those suspected of committing crimes carrying a minimum sentence of five years. [19] The effect of this is to exclude from legal aid eligibility the entire category of detainees suspected of most common crimes (theft, etc) punishable with sentences of under five years.

Access to a lawyer in detention and particularly during interrogation is a key basic safeguard against ill-treatment. [20] For years the European Committee on the Prevention of Torture (CPT) had been calling on Turkey to guarantee such a regime in law, and welcomed the introduction of this. [21]  Lawyers interviewed by Human Rights Watch considered that the presence of lawyers offering legal counsel to detainees in police and gendarmerie stations had in practice constituted an important means of reducing the likelihood of law enforcement personnel resorting to coercion, or otherwise abusing their position or failing in their duty toward detainees. Several lawyers with direct experience of working on torture cases expressed concerns that the change in the law represented the removal of an important safeguard against ill-treatment of detainees. [22] It certainly means that Turkey is failing to implement one of the basic rights identified under human rights standards as fundamental to protection against ill-treatment.

Revised penalties for torture and ill-treatment

The new Turkish Penal Code now contains three distinct articles that codify the offence of ill-treatment: article 94, torture, article 95, aggravated torture, and article 96, the crime of torment (eziyet). According to the new law, torture is defined as actions by a public official toward an individual that are " incompatible with human dignity and cause physical or mental pain, that affect the perception or the ability to exercise will, that are humiliating. " The maximum penalties were significantly increased, with heavier sentences under both articles 94 and 95 if the victim is a minor, a vulnerable person, or a pregnant woman, or where the crime involves sexual abuse. A minimum sentence of three years was introduced where there was previously none for the crime of torture (and previously a minimum sentence of only three months for ill-treatment). Article 95 on aggravated torture applies a scale of sentences commensurate to the level of damage inflicted on the body, lasting health conditions as a result of torture, and up to life imprisonment for causing death by torture.

The crime of torment (article 96) is defined as any "actions by an individual that cause another individual to be tormented", and is thus not worded in such a way to make it clearly applicable to public officials. Convictions for "torment" are based on a two to five year prison sentence, with three to eight year sentences provided for when the victim is a minor, a vulnerable person, a pregnant woman, or a relative.

Efforts at combating or mitigating the effects of lengthy trials have also been made, but not all have been sustained. In the past, many prosecutions for torture have run out of time and consequently been dropped when they exceeded the statute of limitations. Defendants in torture prosecutions and their lawyers, would deliberately exploit the statute of limitations to avoid conviction. The new Penal Code increased the statute of limitations for the crime of torture to 15 years, and in cases of aggravated torture to 20 years and 30 years respectively (articles 95/2 and 95/4). However, the application of the statute of limitations to the crime of torture in any circumstances is inconsistent with Turkey's obligations as a party to the UN Committee Against Torture.[23] The UN Committee on CAT has noted that, "taking into account the grave nature of acts of torture, the Committee is of the view that acts of torture cannot be subject to any statute of limitations."[24] Turkey should repeal the statute of limitations for the crime of torture.

Acc ording to a reform introduced in 2003, trial hearings in the prosecution of torture or ill-treatment were to take place at intervals of no more than 30 days. [25] This, however, reportedly proved difficult for some courts to abide by-above all because of their enormously heavy workload-and it was left out of the new Criminal Procedure Code in 2005. Hence there can be lengthy delays between hearing dates resulting in long drawn out trials that may ultimately fail to secure a conviction.

Revised penalties undermined by options for leniency

A number of the allegations of violent assault by the police described in this report could fall within the definition of torture in article 94 of the Turkish Penal Code. However, the pattern of prosecution shows that prosecutors often opt not to apply article 94, but choose to apply other articles of the Penal Code such as article 86, "intentional injury". When "intentional injury" is committed by a public official it carries an increased sentence-the standard range of one to three years is increased by half again to range from 1.5 to 4.5 years. (The Turkish Penal Code also penalizes excessive use of force by public officials, article 256, typically applicable in situations such as intervention against demonstrators, and applies the same penalty system as for the provision on "intentional injury").  Article 87 which penalizes "aggravated injury" doubles or triples the sentence according to the level of damage inflicted on the body, permanent injury and damage to health, and death.

The serious concern about article 86 lies in the fact that a public official sentenced to the lowest penalty of a 1.5-year prison sentence under this article would be able to benefit from a suspended sentence applicable to all prison terms of two years and under (article 51, Turkish Penal Code). This opens the possibility that some public officials, even if convicted, may escape prison terms for torture or ill-treatment. In the past the few who were convicted also often benefited from suspended sentences.

It was beyond the scope of the research for this report to look through court registers to identify how many cases had been opened under article 94 (torture). However, it was striking that in the course of the research no lawyer interviewed could point to a case. On August 11, 2008, in answer to a parliamentary question on statistics for the number of complaints, prosecutions and convictions for torture and ill-treatment, Minister of Justice, Mehmet Ali Ş ahin, provided figures for 2006 and 2007. [26] According to press reports of the figures provided by Minister Ş ahin, in 2006, 3,962 individuals had lodged complaints against 6,018 members of the security forces (5,256 of them police officers). In 2006 prosecutions had been opened against 135 members of the security forces for torture (articles 94, 95) and against 396 for excessive use of force (article 256). In 2007, 4,719 individuals had lodged complaints against 6,735 members of the security forces (6,023 of them police officers). In 2007, prosecutions had been opened against 108 members of the security forces for torture (articles 94, 95) and against 784 for excessive use of force (article 256). The number of individuals complaining had thus risen in 2007, and almost double the number of members of the security forces had been put on trial for excessive use of force (article 256) compared with the year before. [27]   There is no mention in these statistics of the crime of "intentional injury" i.e. assault (article 86) under which some prosecutions may be opened.

Combating torture promoted, but still room for improvement in oversight

Ministries have issued a series of circulars emphasizing certain points about the new laws and their implementation. A series of circulars to prosecutors and judges drafted by the General Directorate of Penal Affairs in the Ministry of Justice emphasized the importance of combating torture and ill-treatment, recalling the particular shortcomings identified by the European Court of Human Rights in its judgments and emphasizing the requirements of national and international law. Particular emphasis in circulars was placed on the need for criminal investigations into abuses by police to be carried out speedily and effectively, and for decisions of non-prosecution not to be taken without the necessary investigation being carried out into the facts; the need to address discrepancies between autopsy reports and other forensic reports; and the requirement that the chief public prosecutor or their appointee carry out investigations into torture or ill-treatment rather than members of the security forces.[28]

Although the Code of Criminal Procedures provides for an institution of "judicial police" responsible only for criminal investigations, which would be supervised by the prosecutor, progress in this area has been limited. Circulars issued by both the Ministry of Interior and Ministry of Justice on the subject of the judicial police attest to conflict in reporting lines and the difficulties in situating such a unit, which is part of the Security Directorate but works under the authority of the prosecutor. [29]

The absence of an independent authority that can carry out the prompt, independent, impartial, and thorough investigations that are required when there are allegations of police abuse, is a serious obstacle to combating impunity. Turkey, like all states, has an obligation to carry out an effective investigation into credible allegations that police have committed offences, in particular engaged in acts of ill-treatment. These investigations need to be effective in so far as they are capable of leading to the identification and prosecution of those responsible. The system in operation in Turkey has however historically allowed investigations and decisions on prosecution to be the primary responsibility of administrative authorities that are not independent (See below: Legal shielding of state employees from prosecution). This seriously discredited system, even with amendments, is incompatible with Turkey's legal obligations, and discussions have commenced about the establishment of a proper independent police complaints authority with the authority to conduct effective investigations. Such an authority should be based on international human rights standards and draw on models of best practice that have emerged from police reform in other countries.[30]

Monitoring mechanisms

Custody records and places of detention are in theory monitored by public prosecutors, but the reports on such visits are not publicly accessible nor is there any public reporting on these visits. [31]

Provincial and municipal Human Rights Boards, reporting to the Prime Ministry Human Rights Presidency, also bear responsibility for monitoring places of detention and have a mandate to carry out announced and unannounced visits to places of detention.[32] This was explicitly affirmed in a March 24, 2008 circular issued by the Prime Ministry Human Rights Presidency, and issued in the name of Deputy Prime Minister Cemil Çiçek, who is concurrently state minister responsible for human rights. The 2008 circular also stipulates that steps must be taken to facilitate the membership on the boards of civil society groups working in the area of human rights and suggests that the governorate and the offices of district governors (kaymakam) provide the boards with administrative capacity and facilities (no budgetary considerations are mentioned in this circular). Currently some human rights groups are considering whether to participate in this proposal. To date most of the main human rights NGOs in Turkey have regarded the fact that the vice-governor heads the boards as indicative of the lack of independence of the boards and as a real obstacle to their effective functioning.[33]

As far back as 1999 the UN special rapporteur on torture recommended to the Turkish government that "a system permitting an independent body, consisting of respected members of the community, representatives of legal and medical professional organizations and persons nominated by human rights organizations, to visit and report publicly on any place of deprivation of liberty should be set up as soon as possible."[34] Such a body has not yet been established. However, in September 2005, Turkey signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which specifically requires the establishment of a national independent monitoring mechanism that can conduct visits to places of detention. Human rights NGOs in Turkey continue to campaign for Turkey to ratify the Optional Protocol and for the establishment of this visiting mechanism by independent bodies.[35]

Legal Reform Going in the Wrong Direction

In addition to the mixed impact of the government's reform agenda described above, there have been a number of setbacks in the process of strengthening protection for human rights.

Problematic provisions in the revised Law to Fight Terrorism

No immediate right to legal counsel

In June 2006 revisions to the Law to Fight Terrorism (Law no. 3713) were introduced. [36] Some of these measures represent a roll-back of gains made toward introducing safeguards against torture. The revised law now allows for the detainee's right to legal counsel from the first moments of detention to be deferred by 24 hours at the request of a prosecutor and on the decision of a judge (article 10/b). Since the introduction of this provision, some of those detained under suspicion of committing terrorist offenses have been denied access to legal counsel for the first 24 hours, though it has not to date become standard practice to apply this measure.

    The immediate right to legal counsel has been one of the major gains of the reform process in Turkey and is set out in the Code of Criminal Procedures (article 149). The fact that incommunicado detention was effectively brought to an end through such a provision is of particular significance in a country in which allegations of torture and ill-treatment in police custody have been widespread and where there are serious concerns about the extent to which individuals accused of terrorist offenses can receive a fair trial. There are clear risks that a restriction on the right to immediate legal counsel for those suspected of terrorist offenses may reverse the progress made in this area. The European Court of Human Rights has long made clear that access to a lawyer at the initial stages of 
    police interrogation is critical to safeguarding a detainees' rights. This is particularly so in sensitive areas such as prosecution for terrorist offences, where the Court has held that to deny access to a lawyer in the initial stages could irretrievably prejudice the rights of the accused and would be incompatible with the right to a fair hearing, "whatever the justification for such denial"
    
      
        
          
            [37]
          
        
      
    
  

Key restrictions absent in the permitted use of lethal force

Among the other serious setbacks in the revised Law to Fight Terrorism is the provision relating to the use of lethal force. The law now specifies that in operations carried out against terrorist organizations, "in cases where attempts are made to use firearms or where the order to surrender is disobeyed, the security forces have the authority to use arms directly and unhesitatingly against the target proportionate to rendering the danger ineffective." The inclusion of this wording constitutes restoration (in a slightly amended version) of a provision previously included in the Law to Fight Terrorism but repealed in 1999 after Turkey's Constitutional Court ruled that, so worded, the provision violated the right to life. [38] Failing to build in the proviso that the use of force must be absolutely necessary and proportionate to the aim, and that the use of lethal force is only permissible when "strictly unavoidable to protect life," the revised Law to Fight Terrorism ignores international standards on these issues. [39] Taking its cue from this law, the revised Law on the Powers and Duties of the Police also incorporates similar wording (see below).

The revised Law on the Powers and Duties of the Police

In June 2007, at great speed, revisions to an old law, the law on the Powers and Duties of the Police (Law no. 2559), were passed by parliament and entered into force. [40] The reasoning for revising the law focused strongly on the need for police powers to be broadened so that preventive measures could be taken to pre-empt security threats and criminal acts. Following this reasoning, previous reforms to the law were criticized for their focus on investigative powers following a crime and lack of emphasis on preventive measures. The recommendation to broaden police powers to include more so-called preventative powers, was presented as being informed by similar moves "in Europe and other developed countries" and intended to introduce conformity with EU standards. [41] The revised law for the first time gave the police powers to carry out identity checks, to establish a bank of fingerprints and photographic identification of individuals, and to carry out preventive searches of public places. In cases where a delay might prove an obstacle, this power was granted without the need for judicial authorization. [42] Although in practice some of the stop and search powers were already used by the police, this was the first time such provisions had been formally codified in the police law.

The law also incorporated new provisions on the use of force and lethal force.

The revised law has been much criticized in Turkey by human rights groups for the way in which it has strengthened police powers and opened the way to their arbitrary exercise without building in sufficient restraints on when the powers can be used or guarantees of judicial scrutiny. [43] When the Parliamentary Justice Commission reviewed the proposed revisions to the law on May 27-28, 2007, and proposed some amendments, five members of parliament and members of the commission opposed the revised law altogether. In opposing the new law, they expressed the concern that turning over certain powers to the police, "partially bypassing" judicial supervision, "eroded" the constitutionally enshrined principle of the state being founded on the rule of law. While acknowledging "serious public order issues in our country," they viewed the proposed law as "upsetting the delicate balance that needed to be found between the fundamental rights and freedoms enshrined in our constitution and the bodies taking public security measures." [44]

It is a concern that the new law widens the police's stop and search powers without the safeguard of judicial scrutiny in a context in which there have been regular reports of police ill-treatment and abuse of authority. Some allegations of police ill-treatment in the course of the past fifteen months have occurred during routine identity checks carried out according to article 4/A of the revised law (for illustrative cases see Chapter VI, below).

The revised police law also incorporates in substance the troubling provision in the Law to Fight Terrorism relating to use of lethal force. Once again the provision on "use of force and arms" fails to build in the proviso in international standards that use of lethal force must be a last resort and only permissible in order to protect life. The revised law provides for a "gradually increasing level of bodily force, material force [handcuffs, batons, teargas, etc.] and, where the legal conditions are in place, arms may be utilized." On the use of arms, the law stipulates that the police can use a firearm in self-defense, "vis-a-vis resistance which cannot be rendered ineffective by way of using bodily physical and material force, with the objective of and proportional to breaking such resistance," and "in order to capture people for whom there is an arrest warrant, a decision to detain, forcibly capture or apprehend; or in order to capture the suspect in cases of being caught while a crime is being committed, and the extent proportional for that purpose." In the case of the last quoted provision, the law stipulates that the police must warn the suspect to "freeze" before shooting. The police may shoot "for warning purposes," and then if the person ignores the warning and attempts to escape "firearms may be shot in a proportional extent to ensure that he/she is caught." The resort to arms "without hesitation ... in order to render [the suspect] ineffective in his/her attack" is reserved to incidents where the suspect attempts to offer armed resistance to the police. [45]

This was followed by a spate of reports of police violence (mainly occurring in Istanbul) which became the focus of press coverage,[46]and on December 2 the Ministry of the Interior published a circular sent out to the security directorates in each province concerning the importance of upholding human rights in the context of policing duties outlined under the revised police law, and emphasizing that there would be no tolerance of policing errors.[47]

Legal shielding of state employees from prosecution

Turkish law has for a long time provided for special procedures for the prosecution of civil servants, procedures that have acted to shield violators from prosecution and being held accountable. The original law governing the prosecution of civil servants, dated from 1914 and required that whenever an allegation is made that a civil servant has committed an offence "acting in the course of their duties or in their official capacity" the case be handed over to an Administrative Council who conducts an investigation and decides whether there should be a prosecution. The councils routinely refused permission to prosecute even in cases of very serious human rights violations, and the European Court of Human Rights consistently held that this procedure was incompatible with the right of a victim of human rights violations to an effective remedy.[48]

In December 1999 Law no. 4483 was adopted, repealing the provisions of the 1914 Law, but preserving the need to get administrative permission to prosecute a civil servant. This power is now vested in the highest administrative authority in the area where the state employee is working. Before referring the file to the authority the public prosecutor can only collect such evidence which, because of its nature, might be lost, altered, or destroyed.

An important amendment to the law was introduced in January 2003 stating that no permission to prosecute be required if there was an allegation that a civil servant were responsible for torture or ill-treatment.[49] Furthermore, the 2005 Criminal Procedure Code (in articles 160 and 161) gives public prosecutors the authority to conduct direct investigations against anyone apart from governors and judges (Article 161/5) and thus seems to render the Law on the Trials of Civil Servants redundant.

Nevertheless permission is still routinely invoked to prevent investigations into police abuse, perpetuating the problem of impunity. A case that has highlighted the problem of the law most starkly is that of the murder on January 19, 2007 of the Turkish-Armenian journalist and human rights defender Hrant Dink. Most investigations into members of the police and gendarmerie in Istanbul and Trabzon for negligence in failing to prevent Dink's murder, despite repeated reports that it was planned, and for possible collusion, have been blocked because administrative permission has not been granted.

Most recently, on September 18, 2008 the Council of Ministers of the Council of Europe, in the context of examining the implementation of European Court of Human Rights judgments concerning Turkey, had called on Turkey to " to take the necessary legislative measures to remove any ambiguity regarding the fact that the administrative authorisation is no longer required to prosecute not only for torture and ill-treatment but also any other serious crimes and to ensure that members of security forces of all ranks could be prosecuted without an administrative authorization." [50]

A Rise in Reports of Police Violence from 2007

There have been positive signs in Turkey over the past few years of a significant reduction in the incidence of torture and ill-treatment in police custody of those suspected of crimes punishable under counterterrorism legislation. Several lawyers interviewed in the course of research for this report, including in Istanbul, Izmir, Ankara, and Diyarbakır, reported that they had not encountered allegations of ill-treatment in anti-terror departments. [51]

In general, however, lawyers and human rights groups received allegations that ill-treatment of victims had taken place at the moment of apprehension, during transfer to formal detention sites (whether anti-terror departments or other), or in the open when the victims were not under formal detention. [52] These loci are characterized as the "blind spots" in the system, the places where there was least possibility of regulating the conduct of law enforcement officials, in the absence of cameras or lawyers. Groups also receive reports of torture or ill-treatment which had taken place in regular police custody (that is, those areas of police stations that were not reserved for the detention of suspects held under counter-terror legislation), and gendarmerie stations. The European Committee on the Prevention of Torture has also expressed concern about more instances of torture and ill-treatment taking place in irregular detention settings. It noted that "more than one person interviewed by the delegation alleged that they had been taken by law enforcement officials to a forest area and threatened (e.g. a gun pointed to the head); according to certain of the delegation's interlocutors, there was an increase in such instances of ill-treatment being inflicted outside of law enforcement establishments." [53] The Committee warned that care should be taken to ensure that enhanced safeguards against ill-treatment in custodial settings, does not "engender illegal practices of the kind described above". [54]

The Human Rights Foundation of Turkey reported that 320 of the 452 individuals who applied to them in 2007 for treatment at their rehabilitation centres reported having been tortured or ill-treated in the course of that year. This was a significant increase on 2006, where 252 individuals out of a total of 337 who applied to them for treatment reported torture or ill-treatment in 2006. [55] Individual branches of the Foundation gave a more detailed breakdown of these figures. The Istanbul branch reported a rise in reports of police ill-treatment sustained in that year from 81 in 2006 to 152 in 2007. The Izmir branch reported that in 2007 it had also seen a rise in applications, with 48 reports of police or gendarmerie torture or ill-treatment in 2007 as opposed to 19 in 2006; of these 48 reports, in 24 cases the ill-treatment was reported to have taken place in the street or in an open space, and in 19 cases the location was a police or gendarmerie station. The cases reported in 2007 seemed to demonstrate a pattern of greater violence with more severe injuries to victims (including severe damage to internal organs from repeated beating, and fractured bones). [56] The trend was not uniform, however: the Diyarbakır branch of the Human Rights Foundation of Turkey recorded a significant decrease in reports of ill-treatment reported to them in 2007 over 2006.

It is important to note that in addition to non-governmental sources, the Prime Ministry's Human Rights Presidency has also reported a rise in the number of complaints of ill-treatment received by its provincial human rights boards. According to its figures, the number of complaints of ill-treatment received in the first six months of 2008 exceeds the total number received in 2007. Thus while 133 complaints of ill-treatment were received in 2007 (and 29 complaints of torture), in the first six months of 2008, the provincial boards received 178 complaints of ill-treatment (and 26 complaints of torture). [57]

As mentioned previously, with the change in the Criminal Procedure Code to limit compulsory legal aid to those suspected of committing crimes with a minimum five-year sentence, a whole swathe of suspects fell off the radar. If unable to afford a lawyer, they now had no access to a legal aid lawyer visiting them and in a position to identify possible ill-treatment. Yet it is widely admitted by both the Human Rights Association and the Human Rights Foundation, and many lawyers we interviewed, that those suspected of common crimes such as theft, which carry lower sentences, are a vulnerable group when it comes to police ill-treatment. They may have little knowledge of their rights and little idea of where to complain in the eventuality of police abuse, or expectation that there would be anything to gain by lodging a complaint.

In general, victims drawn from this group are still highly unlikely to apply to organizations like the Human Rights Foundation of Turkey. In 2007 the Foundation reported only 65 applications from this group as opposed to 387 applications from those with a "political" profile.

The case of Mustafa Kükçe, detained on suspicion of theft on June 14, 2007, provides the most striking reminder. Kükçe, age 24, had no access to a lawyer. He had been questioned in two different police stations in Istanbul and was observed to have great difficulty in walking when brought before a court before being remanded to prison. A day later he was taken to hospital and died. His family believe he was tortured in custody, and have described seeing signs of injuries to his body in the morgue. Shockingly, for fourteen months there was no progress in investigating his death. The public prosecutor waited six months before applying to the forensic medical institute for an expert opinion on whether Kükçe had died as a result of torture or ill-treatment. The Forensic Institute took another eight months to reply. [58] The cause of death was stated to be a brain haemorrhage, possibly sustained as a result of falling, and injuries on his body commensurate with ill-treatment had been recorded in the last medical examination he underwent while in police custody. However, the police had at the very start of the investigation informed the prosecutor that Kükçe had never been recorded as having been in police custody and that camera footage from the police station was not available as the cameras in the station were out of order. [59]

Failure to Prosecute, Entrenched Impunity

The persistence of police violence in Turkey, despite legal changes, despite knowledge on the part of authorities, international monitoring, and detailed advice and recommendations from bodies such as the European Court of Human Rights and the European Committee on the Prevention of Torture as to what needs to be done, is particularly concerning. However, at the heart of the persistence of the phenomenon is that those who perpetrate ill-treatment can reasonably expect that they will not be held accountable not because the law does not say that they shouldn't be, but because over an extended period Turkey's criminal justice system has institutionalized a system of impunity. Knee-jerk denials, flawed investigations, biased attitudes amongst law enforcement and prosecutors, and ultimately a studious failure to take on board the calls for reform of practices from bodies such as those mentioned above has ensured that for decades the chances of being held to account for acts of ill-treatment or torture have been remote.

For years, Turkey denied that torture was an issue, preferring to suggest that any allegations were isolated incidents.[60] In 1997, Turkey was advised that "it is axiomatic that one of the most effective means of preventing ill-treatment by law enforcement officials lies in the diligent examination by the relevant authorities of all complaints of such treatment and, where appropriate, the imposition of a suitable penalty. This will have a very strong deterrent effect."[61] Yet this was ignored again and again.

In 1999 the then European Commission on Human Rights, which after investigating in depth over 50 cases against Turkey reached the following conclusion: "These cases have disclosed that investigations into deaths or alleged ill-treatment involving the security forces or police have frequently been superficial and inadequate, undermined by failures to seek evidence or witnesses, flawed forensic and medical examinations and a reluctance to pursue any lines of enquiry into any alleged wrongdoing by members of the security forces or police force."

They had a long of defects in practices and procedures that had been commonly found, and they included:

• A failure by public prosecutors to question, or take statements from law enforcement officials with regard to allegations of misconduct.
• A failure by public prosecutors to verify documentary materials e.g. custody records or to pursue any contradictions, inconsistencies or gaps in the information provided by law enforcement officials.
• A failure by public prosecutors or police to seek evidence, including eye-witnesses or forensic evidence at the scene of the incident, such as fingerprints or testing for gunpowder traces.
• A failure by police properly to record evidence or take photographs at the scenes of incidents.
• Delays in seeking for evidence, or statements from victims or witnesses.
• A failure by public prosecutors to react to visible signs of ill-treatment or complaints of ill-treatment.
• The lack of jurisdiction of public prosecutors to prosecute certain categories of offences committed by State officials, jurisdiction being vested in non-legal, administrative bodies, which were not independent.
• A tendency in public prosecutors to show no interest in pursuing the investigations into allegations of misconduct and instead to prosecute the apparent victim of the misconduct.
• A deferential or blinkered attitude by the public prosecutors towards law enforcement officials, with a tendency to ignore or discount allegations of wrongdoing on their part.
• Inadequate forensic medical examinations of detainees, including lack of examination by appropriately qualified medical professionals.
• Brief, undetailed medical reports and certificates which do not include a description of the applicant's allegations or any conclusions.
• Inadequate forensic examinations of deceased persons, including reports which do not include thorough descriptions of injuries; failure to take photographs or make analyses of marks on the body or examinations carried out by doctors with insufficient expertise.
• The issuing of decisions not to prosecute or non-jurisdiction without waiting for all the evidence to be received.
• A lack of accessibility of victims to the structures of remedies, including a failure to give information as to the progress of any proceedings or the results of investigations and a lack of information, or delay in information, being passed on to relatives of persons involved in incidents.

Since then the European Court of Human Rights has recorded these same defects in at least 50 other cases. The cases documented by Human Rights Watch in this report demonstrate that the exact same patterns and failings continue to exist within the system.

It is quite clear that legislative safeguards and directives from government avowing to have a zero tolerance policy can only have so much impact. As long as individuals, with good cause, believe that they can get away with abuse of power–ill-treatment or unlawful use of force–and not be held to account, it will persist. As long as officials are allowed to flout the law, it does not matter what the law says. Failure to enforce the rule of law and effectively to permit those amongst the police, gendarmes and security forces who commit abuses to operate as if they are above the law, has been detrimental to Turkish society, democracy, and international relations. Concerted effort has to be focused on putting an abrupt end to the practices and culture which have left victims powerless, emboldened perpetrators and seen ill treatment and police violence prevail.