VII. Counter-charges and Criminal Investigation for Complaining or Protesting

Accusing the Accusers

The frequency with which police officers accused of ill-treatment file counter charges against those who have complained is striking. The charge they generally resort to is that of "using violence or threats against a public official to prevent them from carrying out a duty" (article 265/1 of the Turkish Penal Code). This is a charge that suggests that a person has violently resisted apprehension or arrest or, for example, responded violently to a lawful request by a public official to see ID.

It is not uncommon that individuals who resist arrest by police may, in the course of being restrained, sustain injuries. In all such cases the central question is whether the response of the law enforcement officer to any violent resistance was proportionate, and any use of force was strictly justified by the circumstances.  Whether a response was proportionate will take into account all the circumstances including the behaviour and threat posed by the individual being arrested. However in no circumstances can an individual's behavior justify resort to physical force amounting to inhuman treatment or torture.

In Turkey, in practice, when the police claim that an individual was injured while resisting arrest, no proper enquiry is made into whether the claim is true, or the police response was justified and proportionate. On the contrary, investigations are carried out and prosecutions speedily initiated against individuals for violently resisting a police officer, while in contrast investigations into allegations of police ill-treatment are carried out at a much slower and leisurely pace and prosecutions are often initiated over a year later, if at all. In several cases individuals featured in the chapters above, for example, Kemalettin Rıdvan Yalın, Muammer Öz, and Mehmet Nezir Çirik, found themselves on trial and proceeding with hearings against them before the investigation into their own complaint of ill-treatment by police had even been concluded by the prosecutor. In some cases two trials may run in parallel, though invariably the one concerning the police ill-treatment will lag behind. The counter-charges documented through the cases in this report provide a disturbing indication of a common pattern of the police having recourse to the law in an attempt to cover up abuses they commit and to intimidate individuals who see fit to complain. The words of Mehmet Nezir Çirik, quoted at length earlier on, sum up a common feeling about the police: "It's their word against yours, isn't it, and who do you think a judge would believe?"

Case of Murat Babur

A striking further example of the police lodging counter-charges when they have themselves been accused of mistreating an individual is the case of Murat Babur. Murat Babur, age 20, and his father Çerkez Babur, age 62, allege that on December 12, 2007, at around 4:30 p.m., they were mistreated by uniformed police conducting an ID search at the internet café where Murat had been opposite their home in Diyarbakır . [148] Murat Babur alleges that he explained that he had left his ID at home and offered to go home to fetch it or for a police officer to accompany him if necessary, and that in response an officer began to search him roughly and seized his wallet. Murat asked whether the officer had permission to search him which triggered the series of events during which both Murat and his father allege that they were ill-treated. In answer to his question, Murat was put in a police minibus. Çerkez Babur, who had served as muhtar (elected local official at village level) in his Lice village for some 28 years, was hit in the chest and forcibly prevented from accompanying his son to the local police station. In the police vehicle and during detention at the station Murat was allegedly repeatedly beaten and kicked by three officers, including being pushed hard against an iron doorfr ame. His father, who arrived at the station looking for his son, was made to wait and was then himself detained.

Two days later the two men were brought to court and charged with "using violence or threats against a public official to prevent them from carrying out a duty" (article 265/1, Turkish Penal Code), damaging public property (the police vehicle) (article 152/1a), and defaming the police (article 125/3a), charges that could result in a prison sentence. The police claim that a knife was found on Murat's person-a charge he denies-and that he attempted to attack them with it. Murat was remanded to prison and his father released pending trial. The complaint of police ill-treatment by three police officers filed by Çerkez Babur with the prosecutor was rejected: the prosecutor decided that there was no case to answer, relying on a strangely and vaguely worded report from the Forensic Medical Institute which suggested, without referring to witness testimonies, that Murat Babur's injuries might have been inflicted prior to detention either by himself or someone else (his injuries included a black eye and swollen and cut lip). [149] An appeal against the decision not to prosecute the police was lodged but was also rejected.

Murat Babur remained in Diyarbakır prison for one-and-a-half months, before being bailed at his first trial hearing on January 31, 2007. The trial of father and son continues at the Diyarbakir Criminal Court of First Instance No. 1. A third trial hearing took place on October 7, 2008. [150]

Case of Mustafa Rollas

An Izmir lawyer and former head of the Izmir branch of the Human Rights Association, Mustafa Rollas, was reportedly subjected to ill-treatment and detention in September 2007 while attempting to carry out his role as a lawyer at a police station in the Izmir fairground, the site of an annual international trade show. A year on from the original incident, Mustafa Rollas is under investigation by the public prosecutor for using violence or threats to forcibly prevent the police from carrying out their duty (article 265/1, Turkish Penal Code) and for insulting police officers. Although under the Lawyers' Law permission to initiate legal proceedings against lawyers suspected of abuse of duty in the course of their profession has to be secured from the Ministry of Justice, in this case the ministry has permitted a prosecutor's investigation on the basis that no permission is needed since Rollas was deemed not to be discharging his professional duties. [151]

The alleged ill-treatment of Mustafa Rollas is one of the most alarming cases involving an attack on a lawyer by the police reported to Human Rights Watch. From the start of his encounter with the police to the time of his release from police custody multiple violations of procedure and abuses of police authority were committed. The account supplied by Mustafa Rollas and a witness is summarized here, though there is not space here to provide a complete account of this case. [152]

Mustafa Rollas arrived at the fairground's police station (known as the Fuar Asayi ş Ekipler Amirli ğ i) at around 19:30 on September 9, 2007, to visit two clients who had reportedly been detained for having disturbed the public peace. Mustafa Rollas was first prevented by a senior police officer from meeting with his clients, in violation of the law (Criminal Procedure Code article 154/1), and shoved in the chest by that officer when he pointed this violation out. He reported that he was then attacked and beaten by around 10 other police officers and was detained on the order of the senior police officer, made to stand for one- and-a-half hours in a corridor with his head bowed and his hands handcuffed behind his back, and at intervals sworn at and insulted by police officers. Rollas's detention was later justified by claiming that he had prevented a public official (in this case, the police) from performing their duty through violence or threats (article 265/1) and had insulted them. In fact, according to Rollas's account it was Rollas himself who had been prevented from performing his professional duty by violence and threats, an offense punishable under the second paragraph of the same article of the Turkish Penal Code (265/2).

Fellow lawyers who came to look for Rollas were informed he was not in detention and reportedly only saw him by complete chance as they were leaving the police station. Attempts were made forcibly to prevent these lawyers from meeting with Rollas. [153] Rollas was then transferred to the Basmane police station and later released from there.

There were serious irregularities in the police records kept of his detention, with the police record prepared at the first station being destroyed. In a routine medical examination ordered by the police, the doctor stated that he did not believe Rollas and did not record details of ill-treatment in a medical report. An independent medical examination was later carried out under the auspices of the Izmir branch of the Human Rights Association of Turkey: this examination recorded signs of bruising to his body and a neck injury. Subsequent to this Rollas had to wear a collar for a few days to support a muscular injury to the neck. Rollas lodged a complaint, and the prosecutor's investigation into his ill-treatment and the multiple violations in connection with his detention, like the case brought against Rollas, is ongoing at this writing. [154]

Counter-charges can also take the form of legal proceedings against those who publicly protest or complain about ill-treatment, torture or fatal shootings by the police. Cases have frequently been opened against human rights defenders who report on violations. As mentioned above, the family of Baran Tursun escaped trial for insulting the judiciary (article 301, Turkish Penal Code), but are still on trial for attempting to influence members of the judiciary (article 277) because, in the midst of their grief over the killing of Baran Tursun, they vocally expressed their doubts about whether they would ever get justice and protested against the police. [155]

Prejudicial statements

The security directorate in several cases examined elsewhere in this report made public statements on incidents where there were allegations of police misconduct to absolve the police of responsibility or to indicate the guilt of the other party. Where there are ongoing investigations, such public statements by the police authorities demonstrate an unwillingness to suspend judgement on cases pending a prosecutor's investigation and indicate to the public that the police will close ranks and provide institutional impunity to officers when faced with allegations of human rights abuse.