May 24, 2004
Piet Hein Donner
Minister of Justice
Ministry for Justice
2500 EH Den Haag
Re: Case of Nuriye Kesbir
Human Rights Watch writes as a matter of urgency regarding the case of Nuriye Kesbir and the real risk of torture and ill-treatment she will face upon return to Turkey if extradited by the government of the Netherlands. We are also deeply concerned about the Dutch authorities’ growing reliance upon diplomatic assurances to extradite people to countries where they are at risk of torture or ill-treatment. In the case of Nuriye Kesbir, any assurances given by the Turkish authorities that Ms. Kesbir would not be tortured or ill-treated, and that she would have a fair trial upon return, would not be reliable, particularly in light of Turkey’s failure to adequately monitor those responsible for complying with legal safeguards against torture and the authorities’ past record in cases where such guarantees have been at issue.
ECHR Article 3 Concerns
Human Rights Watch has consistently called for the investigation and prosecution of those responsible for the massive human rights abuses committed by the PKK, particularly in the late 1980s and early 1990s. We thus welcome efforts to bring to justice anyone thought to be involved at a high level within the PKK, and possibly implicated in the pattern of killings of civilians and prisoners. However, we would oppose any process that itself would risk leading to human rights violations. In the case of Ms. Kesbir, Human Rights Watch believes that the current plans for her return to Turkey risk exposing her to torture and ill-treatment, and to an unfair trial.
The probability that any detainee will be subjected to ill-treatment or torture in police custody in Turkey is lower in 2004 than it was in the late 1990s. Successive governments have improved formal safeguards for detainees by shortening detention periods, improving systems of medical examination, and most importantly, giving all detainees the right of immediate access to legal counsel from the moment of detention forward. These safeguards have reduced torture and brought the annual average rate of deaths in custody as a result of torture close to zero.
Nevertheless, torture persists in Turkey and Ms. Kesbir would be at real risk of being subjected to such abuse. In its 2003 Regular Report on Turkey's progress towards accession, the European Commission’s assessment of the government’s efforts to combat torture stated accurately: "While implementation has led to some concrete results, the situation is uneven and torture cases persist." Reports by Turkish human rights groups illustrate this assessment. In the first four months of this year, the daily bulletin of the Turkish Human Rights Foundation reported 22 allegations of torture and ill-treatment in police custody involving 48 victims. Ms. Kesbir would be at particular risk of torture because she will be charged under the Anti-Terror Law and because she is a Yezidi Kurd. Below we detail cases of people who were similarly situated on one or both counts and were in fact tortured and ill-treated.
Torture in Turkey is particularly associated with anti-terror operations, and recent cases suggest that the practice continues. On April 29, 2004 police detained sixteen people in Bursa on suspicion that they were members of Ansar al-Islam, a banned Islamist organization. On May 3, nine of the detainees were formally arrested and seven released. The lawyer of one of the detaineestold Human Rights Watch that the police had not permitted him to visit his client A.B. on the first day of custody, but he was able to see him only on the second day. After his formal arrest, A.B. reported that police stripped him below the waist, beat him, struck his head against a wall and spat in his mouth. He also reported that police had driven him out of Bursa and threatened to kill him, putting a pistol to his head. The lawyer spoke to other detainees who complained of similar torture. A.B. was arrested on the basis of an incriminating statement by one of the detainees who had waived his right to legal counsel. The lawyer felt that his client's right to a fair trial had been prejudiced by a press conference held by the governor and chief of police accusing his client and others of membership in Ansar al-Islam two hours before A.B. appeared before the arresting judge.
The pattern of sexual torture of women in police custody in Turkey has been well documented, most recently in Amnesty International's February 2003 report Turkey: End sexual violence against women in custody! (AI Index: EUR 44/006/2003). Significantly, the report identifies women suspected of PKK membership as being at particular risk, and describes the torture of three Kurdish women suspected of membership in the PKK and related political organizations:
- Fehime Ete was arrested on October 21, 2001 in her home in Siirt in southeastern Turkey. She was remanded to Van prison by the State Security Court on charges of "supporting an illegal organization." In November, Ete and her five-year-old daughter were transferred to gendarmerie headquarters in Diyarbakýr for questioning. Her lawyer was reportedly not informed of their whereabouts despite repeated inquiries. Ete was not returned to prison until 14 December 2001. She told Amnesty International that she had been subjected to torture and ill-treatment throughout the time that she spent in detention at Diyarbakýr gendarmerie headquarters, including being blindfolded, beaten with truncheons about the head, stripped naked, fondled, and sprayed with pressurized water. Fehime Ete now suffers from shortness of breath and has difficulty moving her arms as a result of the alleged torture. Both she and her family were threatened that they would be tortured if she complained about her treatment.
- Zahide Durgun, 28 years old, was arrested on August 20, 2002 and taken to the anti-terror branch of Hakkâri police headquarters. Police reportedly wanted her to make a statement that she was an active member of the PJA, the women's arm of the PKK (now known as KADEK). Durgun refused and has alleged that she was tortured as a consequence. She was blindfolded; had her hair pulled and torn out and her head banged against the wall; received blows to the neck, arms, torso, feet and legs; had electric shocks applied to her ear, and threatened with electric shocks to her breasts; and threatened with rape. In the end, Zahide Durgun, who does not read or write, reportedly had her thumb-print placed on a prepared statement.
- Şükriye Beyter was taken into custody on August 22, 2002 at the anti-terror branch of Hakkâri police headquarters. She was kept in custody for four days, and reported having her hair pulled and torn out and her head beaten against the wall; receiving blows to various parts of her body; and being given electric shocks to her ear and a finger on her left hand. She also reported that she had her throat squeezed with electric cable; was blindfolded and had a handkerchief stuffed into her mouth to stifle any noise; and that she was threatened with rape, insulted, and promised money if she would sign a statement. When she refused the money offered in exchange for a pre-prepared statement, she was reportedly beaten again and threatened with rape and electric shocks to her breasts, that her children would be killed, that she would be killed and her body would be thrown into the river.
The Amnesty International report also identifies discrimination against ethnic and religious minorities as a contributing element to patterns of torture. Ms. Kesbir is doubly at risk in this respect, being not only an ethnic Kurd, but also a member of the Yezidi minority, often pejoratively referred to as devil-worshippers, who have been targets of abuse for centuries. Yezidis have been victims of extrajudicial execution in recent years. Human Rights Watch has documented such discrimination against Yezidis in an October 2002 report titled Displaced and Disregarded: Turkey’s Failing Village Return Program. One particularly disturbing case of abuses against Yezidis involved Sahreddin Sancar and his wife Newroz Sancar, who returned from abroad to their village of Harmanli, near Nusaybin, in March 2002. On March 11, the couple disappeared. The following day, shepherds found the body of Şahreddin Sancar in his car, ostensibly the victim of a road accident. But three weeks later, villagers found the body of Newroz Sancar in a dry well, bound hand and foot.
The case of Cevat Soysal suggests that a high level of diplomatic interest may not be sufficient to restrain the behaviour of police, gendarmes and other interrogators with respect to torture. Cevat Soysal had been granted political asylum in Germany, but was kidnapped by Turkish forces in Moldova in July 1999. Cevat Soysal is a Kurd. The Turkish government alleged that Cevat Soysal was a high-ranking PKK member, while the European representative of the ERNK (National Liberation Front of Kurdistan) made a statement denying this, and stating that Cevat Soysal was rather an active member of the European ERNK organization (widely regarded as the political wing of the PKK, now known as Kongra-Gel). He was held for eleven days—longer than the period permitted in Turkish law at that time. Amnesty International appealed to the German government following Cevat Soysal's abduction, and the German Ministry of Foreign affairs replied that the German government was concerned to ensure his protection and would do what it could to help him. Cevat Soysal subsequently reported that he was given electric shocks to his sexual organs, chest and thumbs, suspended by the arms, and subjected to sleep deprivation, squeezing of the testicles and hosing with cold water. A Forensic Medicine Institute examination found symptoms consistent with his allegations. In June 2002 Ankara State Security Court sentenced Cevat Soysal to eighteen years and nine months of imprisonment for being a leading member of an illegal armed organization. His lawyers have appealed to the European Court of Human Rights under articles 2, 3, 5, 6 and 13. For further information about this case, see the July2000 Amnesty International report: Turkey: The alleged torture of Cevat Soysal at National Intelligence Agency Headquarters, Ankara.
Despite the present high standard of legal safeguards, torture and ill-treatment persist in Turkey because supervision and monitoring systems are poor or non-existent, and consequently police can ignore the safeguards with impunity. In June 1999, then Prime Minister Bulent Ecevit issued a circular requiring prosecutors and provincial governors to carry out impromptu visits to police stations and gendarmeries and to take urgent measures to remedy any shortcomings discovered. Reports of these inspections are supposed to be submitted to the justice, interior and prime ministries every three months. But since there is no public reporting of this process, it is unclear what governors are finding on their visits, or even if the visits are actually being carried out. In our day-to-day monitoring of events in Turkey, Human Rights Watch receives many accounts of lawyers denied access, families not being duly informed of the detention of relatives, irregularities with medical reports and the handling of child detainees. This generally poor performance suggests that governors are not carrying out the visits as the circular directs.
Since 2000, Human Rights Watch has urged the government to open up this monitoring process to public scrutiny in order to increase its effectiveness. Human Rights Watch has also recommended that the Turkish government establish a nation-wide system of visiting boards to visit and inspect police stations (along the lines of systems in place in Australia, Hungary, the Netherlands, Nepal, South Africa and the United Kingdom), and to permit provincial bar associations and medical chambers unfettered access to places of detention. The Turkish government has not yet taken up these suggestions. Nevertheless, at the very least the Turkish government might be expected actively to respond to serious allegations of torture—particularly this year, when the European Commission is closely monitoring Turkey's human rights performance as part of its European Union candidacy process. In fact, the government remains passive in response to serious torture allegations, plainly reluctant to intervene and interfere in the affairs of its own security forces.
An example of this reluctance is the government's failure to act in response to a serious allegation that children had been subjected to sexual torture. For example, on February 14, 2004, five children aged twelve to sixteen were detained in Siirt 2004 after a protest concerning the imprisonment of PKK leader Abdullah Ocalan. They subsequently alleged that Siirt police beat and sexually assaulted them. The detention of the children was illegal since the police should have referred them directly to the prosecutor. There were other serious procedural shortcomings, including the failure to give the children or their relatives copies of medical examination reports issued on their release from custody. The affair was reported in the press, and to Human Rights Watch's certain knowledge the Prime Minister's office was aware of the allegations. Yet, two weeks later the president of the Siirt branch of the Human Rights Association told Human Rights Watch that the families had not been contacted by the authorities, and as far as she was aware no steps whatsoever had been taken by the police or civil authorities to investigate or remedy what were obviously systemic problems at Siirt police headquarters.
The lack of firm-handed supervision and monitoring is significant for the case of Ms. Kesbir, not only because it permits torture to continue, but because it indicates the government's pronounced reluctance to interfere in the business of the security apparatus, which operates with a high degree of informal autonomy. The detainees mentioned in recent cases described above were tortured in spite of the Turkish government's declared "no tolerance on torture" policy, which suggests that the government does not yet have a sufficiently effective supervisory mechanism over the police apparatus to secure full compliance with that policy. Once Ms. Kesbir is in the hands of the police, gendarmerie or intelligence services, the ability and willingness of the government to control events may be limited.
To the risks of torture and ill-treatment must be added the risk that Ms. Kesbir would be subjected to an unfair trial. Prominent political trials have been marred by the use of incriminating testimony apparently extracted under torture or duress, and judges' refusal to comply with defence requests to call witnesses, put questions to witnesses, and subpoena significant evidence. A significant example in this respect is the retrial of Leyla Zana, Hatip Dicle, Orhan Dogan and Selim Sadak, four Kurds, formerly members of the Turkish parliament, who were sentenced to 15 years of imprisonment in 1994 for supporting an armed organization. In July 2001 the European Court of Human Rights ruled that their original trial had been unfair (Zana v. Turkey (1999)) because it was held in a State Security Court in which one of the judges was a military officer. A new trial was initiated following the removal of military judges from the state security court bench, but on April 21, 2004, the Ankara State Security Court returned an identical verdict. According to the International Commission of Jurists (ICJ), which closely monitored the trial throughout, the trial was “a flawed process. There was no presumption of innocence, the defence was not treated equally with the prosecution and the independence of the court is questionable at best.”
Regarding the 2004 trial, the ICJ expressed concerns over infringements of the presumption of innocence, lack of continuity in the judges’ panel, inhuman and degrading treatment of defendants on the way to and from the court, and pointed out that there are various informal and formal channels by which the government or security forces might influence the court. The ICJ reported serious inequality of arms between the defence and the prosecution in court. For example, the judges refused to call and examine any witnesses proposed by the defence for much of the trial. When ten defence witnesses were eventually called, the defence was not permitted to put questions to them but rather they were examined by the judge. On the other hand, all witnesses called by the prosecution were called by the judges, but examined directly by the prosecution. The judges also prevented the defence from adducing relevant evidence and failed to disclose material evidence against the accused. For example, the prosecution presented to the court a Turkish translation of a supposedly incriminating conversation recorded in Kurdish. This was a key piece of evidence, but until the trial started the prosecution did not disclose any of this material, and never supplied the defence with a copy of the original conversation. The defence never had any means of testing the prosecution witness’s claim that the voices on the tape were those of the defendants, nor any opportunity to test whether the Turkish was an accurate translation of the original Kurdish.
The fact that State Security Courts are now to be abolished due to recent constitutional changes will not affect the risks of unfair trial. The obstacles to fair trial—for example the disparate rules for defence and prosecution examination of witnesses—are not confined to State Security Courts but rather run throughout the justice system in Turkey.
In the light of the continuing patterns of abuse, Human Rights Watch considers Ms. Kesbir to be at real risk of torture or ill-treatment if returned to Turkey now. If it is true that she is, as alleged, a high-level member of the PKK, then there is little doubt that the intelligence and security forces would be very interested in information that she may be able to provide about the organization’s activities, connections in Northern Iraq, and internal politics. If the intelligence and security forces apply their traditional methods of torture and ill-treatment to extract this information then, once Ms. Kesbir is in their hands, there is nothing that the Turkish government or Turkish courts could do to prevent such abuses from taking place.
Moreover, if convicted, Ms. Kesbir would serve her sentence in a prison system that is riddled with problems. Reports of ill-treatment and medical negligence are common throughout the prison system, including from F-type prisons built for prisoners tried under the Anti-Terror Law and where Ms. Kesbir will likely serve any prison sentence. As documented in a 2001 Human Rights Watch report,Small Group Isolation in F-type Prisons and the Violent Transfers of Prisoners to Sincan, Kandira and Edirne Prisons on December 19, 2000, F-type prisons were designed to impose a regime of intense isolation and sensory deprivation. Following interventions by the Council of Europe's Committee for the Prevention of Torture (CPT), the isolation has been somewhat relieved by the granting of five hours' association with other prisoners per week. Unfortunately this has not been consistently applied in practice by prison authorities.
Reliance upon Diplomatic Assurances from Turkey
Human Rights Watch is also deeply concerned that the Dutch government is increasingly relying upon diplomatic assurances to attempt to extradite or otherwise return people to countries where they are at risk of torture or ill-treatment, including to Turkey. In its May 7, 2004 decision—holding that there were no obstacles to Ms. Kesbir’s extradition—the Dutch Supreme Court acknowledged that human rights violations occur in Turkey and advised the Dutch government to seek guarantees from Turkish authorities that Ms. Kesbir would not be treated in violation of Turkey’s human rights obligations, and that she would be granted a fair trial upon return. Human Rights Watch’s research, however, indicates that such assurances from governments in countries where torture and ill-treatment are a persistent or enduring problem—including Turkey—are inherently unreliable. We have documented that research in an April 2004 report titled, “Empty Promises:” Diplomatic Assurances No Safeguard against Torture.
In the vast majority of cases, states seek diplomatic assurances from governments in countries where torture is a persistent problem, used to effect state policy in a systematic manner, or routinely practiced upon certain types of people—suspected terrorists, for example. Torture is practiced in secret, in prisons and detention facilities that are rarely open to scrutiny by independent, well-trained monitors. Prison guards and other prison personnel are trained in torture techniques that ensure such secrecy, including physical abuse that leaves few outward marks and intimidation tactics that frighten prisoners into silence about the abuse. Prison doctors and other medical personnel are often complicit in covering up any signs of torture. In such countries, governments routinely deny lawyers and family members consistent confidential access or private visits with prisoners. In some countries, state authorities may not have effective control over the forces perpetrating acts of torture. Indeed, governmental authorities in countries where torture is a problem often deny the existence of torture at all, or routinely downplay the gravity of the problem.
As noted above, torture and ill-treatment persist in Turkey—especially in cases where a detainee has been labeled a suspected terrorist—despite some recent improvements in law and practice. Torture continues as a result of Turkey’s negligence in supervising and monitoring compliance with legal safeguards to prevent torture; indeed, such monitoring systems are either moribund or do not exist at all. As a result, Turkish authorities do not maintain effective control over those persons—police, gendarmes, and security forces—primarily responsible for on-going acts of torture in Turkey. Diplomatic assurances from Turkish officials that Ms. Kesbir would not be tortured or ill-treated could not be relied upon because the authorities offering such guarantees have not developed systems that actually control and hold accountable those forces that perpetrate such abuses.
Continuing irregularities in the system, such as denial of lawyers’ access to detainees, failure to inform detainees’ families of detentions, and problems with accessing and authenticating medical reports indicate a lack of transparency that undermines the reliability of any assurances that a person will not be tortured or ill-treated. The disturbing cases of the children detainees in Siirt who were sexually assaulted in custody—and the failure of Turkish police and government authorities to conduct an investigation —is a stark reminder that the Turkish government remains unwilling to provide the sharp and peremptory response necessary to put a final end to torture and ill-treatment. In the face of such irregularities and continuing governmental passivity, diplomatic assurances from the Turkish authorities that Ms. Kesbir would not be tortured would be inherently unreliable. As noted above, despite a high degree of interest in the Soysal case on the part of German authorities, Cevat Soysal was allegedly tortured in incommunicado detention and subject to an unfair trial.
Finally, with respect to fair trial concerns, it is important to note that Turkey’s State Security Courts routinely flout international fair trial standards as detailed above. Moreover, a recent case in which Germany sought diplomatic assurances from the Turkish authorities is emblematic of the Turkish government’s passivity with respect to ensuring that acts of torture and ill-treatment do not occur and that a person receives a fair trial upon return. In a 2003 decision, a German court held that Metin Kaplan—the leader of a banned Islamist organization—could not be extradited based on diplomatic assurances from Turkey. The court expressed concern about Turkey’s use of information extracted by the torture of Kaplan’s followers in Turkey, and expressed serious reservations about the independence of Turkey’s State Security Courts. The German Court stated, “Such formal guarantees in an extradition proceeding can only provide sufficient protection in favor of the persecuted person if their correct implementation through the institutions of the requesting state—in this case the independent Turkish judiciary—can be reliably expected. The latter is not the case here.”
The primary purpose of bilateral diplomacy is to ensure that relations between two countries proceed smoothly in a manner that benefits both countries. It is not to ensure that a country abides by its human rights obligations, which is properly a function of law. The Netherlands has an absolute obligation under international and European law not to return a person to a country where she or he is at risk of torture. Simple guarantees, in written or verbal form, from Turkey—a country where torture is a persistent problem, specifically so with respect to those persons labeled terrorists—can only be viewed as a device that would allow The Netherlands to circumvent its absolute nonrefoulement obligation.
Human Rights Watch respectfully submits that extraditing Ms. Kesbir to Turkey would put her at real risk of torture or ill-treatment. Diplomatic assurances provided by the Turkish government against torture and that guarantee a fair trial upon return cannot be considered reliable and thus do not constitute an adequate safeguard against The Netherlands’ absolute obligation not to send a person back to risk of torture.
Acting Executive Director
Europe and Central Asia Division
Cc. Bernard Rudolf Bot, Minister of Foreign Affairs
Johan Remkes, Minister of Interior