DOMESTIC LEGAL FRAMEWORK

Turkish Constitution

The Turkish Constitution prohibits torture and self-incrimination and holds state actors responsible for their actions, but at the same time allows for detention periods of up to fifteen days. Such lengthy periods of detention facilitate maltreatment and torture. Article 17 states that, "The physical integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; he shall not be subject to scientific or medical experiments without his consent. No one shall be subjected to torture or ill-treatment; no one shall be subject to penalty or treatment incompatible with human dignity."109 Article 38 states that, "No one shall be compelled to make a statement that would incriminate himself or his legal next of kin, or to present such incriminating evidence."110

Article 19, however, provides the constitutional basis for extended periods of detention allowed in the Code of Criminal Procedure (CMUK): "The person arrested or detained shall be brought before a judge within forty-eight hours and within fifteen days in the case of an offense committed collectively, excluding the time taken to send him to the court nearest to the place of seizure....These periods may be extended during a state of emergency, under martial law, or in time of war."111 Article 125 states that, "The administration shall be liable to compensate for damages resulting from its actions and acts."112

Turkish Code of Criminal Procedure (CMUK)

The Turkish Code of Criminal Procedure (CMUK-Ceza Muhakemeleri Usulü), Law No. 1412, is a translation of the German Code of Criminal Procedure of 1877, adopted into law with changes in 1929.113 Since that time, it has been amended many times, the most recent and important being in March 1997, as the "Law concerning amending the Code of Criminal Procedure (CMUK), the Law on the Creation of State Security Courts and their Judicial Procedures and Law No. 3842 of November 18, 1992, which amended the aforementioned laws" and in November 1992, as "Law No. 3842."

On November 27, 1996, the present Refah/Do-ru Yol government of Prime Minister Necmettin Erbakan presented a bill targeted at reducing periods of detention for detainees suspected of crimes under the jurisdiction of state security courts, i.e. security detainees.114 The bill was passed into law on March 6, 1997. While it drastically reduces periods of detention (see below) for security detainees and removes some offenses from the jurisdiction of state security courts, it is flawed because it does not provide such detainees with guaranteed, immediate access to counsel. It maintains two legal standards, giving different rights to criminal and security detainees. The most important aspects of the law include the following:

* Article 5 of the law abolishes Article 30 of Law No. 3842 of November 1992 amending the Code of Criminal Procedure (CMUK), which set detention periods of up to fifteen days for "collective" crimes committed under the jurisdiction of state security courts, i.e. security detainees, and allowed periods of detention to be doubled under a state of emergency.

* Article 3 provides for the following detention periods for security detainees: individual crimes, forty-eight hours; "collective" crimes, those committed by three or more individuals, four days upon the consent of a public prosecutor, a period which can be extended to seven at the request of a public prosecutor and upon the order of a judge; in areas under a state of emergency, the seven-day period can be extended to ten at the request of public prosecutor and upon the order of a judge. 115

* Article 2 removes two articles of the Turkish Penal Code, 384 and 385, from the jurisdiction of state security courts.116

The law, however, does not give immediate, guaranteed access to counsel for security detainees, who have access to a lawyer only after the first extension of their detention period, i.e. on the fourth day for those charged with"collective" crimes. 117 Thereafter, under the law, they enjoy unlimited access to counsel. The United States State Department 1995 Country Report for Turkey stated that, "This lack of access [to counsel] is a major factor in the widespread use of torture by police and security forces."118 Once a suspect is arrested, he should have the right to confer with a lawyer at all times.

Law No. 3842 amending the Code of Criminal Procedure (CMUK), which was passed in November 1992, was a flawed attempt to improve defendant rights by a DYP/SHP coalition government elected in 1991. Then Prime Minister Suleyman Demirel promised "police stations with glass walls".119 While the law reduced detention periods and introduced many legal safeguards for common criminals, it did not for security detainees. Until March 1997, detention periods for them remained as they were before: a maximum of fifteen days for "collective crimes" [i.e. committed by three or more people], which could be doubled in provinces under a state of emergency decree. Article 30 of the law, now abolished, stated that,

The accused who is apprehended or arrested in relation with offenses within the jurisdiction of State Security Courts is arraigned before the judge at the latest within 48 hours and for crimes committed jointly within 15 days, excluding the time period necessary for transferring the person to the nearest court.

For the person apprehended or arrested in regions in which a state of emergency has been declared the periods mentioned above are doubled.120

In addition, security detainees were exempted from many of the new legal safeguards introduced into the Code of Criminal Procedure (CMUK) by Law No. 3842, including access to a lawyer while in pre-trial detention. Previously security detainees de jure-if not de facto-had such a right. The "Law of March 1997 amending CMUK "grants access to a lawyer to security detainees charged in collective crimes after four days and those chargedin individual crimes after two. Article 31 of Law No. 3842 states that, "The Articles 4,5,6,7,9,12,14,15,18,19,20 and 22 of this Law shall not apply for the offenses within the jurisdiction of State Security Courts. For these, the provisions of Code of Criminal Procedure No. 1412 are implemented with its provisions before the amendment."121 The "Law of March 1997 amending CMUK " lets most of these exemptions stand, removing only articles "7", "9", and "20."

Since incidents of torture are most severe in security detainee cases investigated by the anti-terror police, Law No. 3842 was severely hobbled. Below is a summary of the amendments still applicable to ordinary criminal cases but not applicable under Article 31 to security detainees. Where important differences with the pre-amended version exists, they are stated in bold face type.

Article 4 (CMUK 104): Precisely defines and limits conditions for lawful arrest of a suspect.122

Article 5 (CMUK 106): Allows defense lawyer to be present during arraignment.

Unamended CMUK 106: No lawyer present during arraignment.

Article 6 (CMUK 108): Sets period of detention before arraignment before a judge to twenty-four hours in individual crimes.

Unamended CMUK 108: Suspect must be arraigned within 48 hours.

Article 7 (CMUK 110): Sets maximum period of arrest in pre-trial detention while preliminary investigation is being conducted. Applicable to security detainees under the "Law of March 1997 amending CMUK."

Article 9 (CMUK 128): Orders that persons detained for an individual crime be brought before a magistrate within twenty-four hours and those detained for a collective crime (one committed by three or more people) within four days, which can be extended to eight days with a judge's order. Amended by "Law of March 1997 amending CMUK."

Unamended CMUK 128: Three or more persons can be held up to fifteen days with the order of a prosecutor.

Article 12 (CMUK 135): The suspect is told that he has a right to a lawyer who can be present during interrogation and testimony, to call relatives to inform them of the arrest, and to remain silent.

Unamended CMUK 135: Detainee is informed of crime.

Article 14 (CMUK 136): Allows the suspect to have one lawyer present during police interrogation and strengthens lawyer's right to represent his client free from police interference.

Unamended CMUK 136: One can have a lawyer, but not well defined as to when.

Article 15 (CMUK 138): Provides free lawyers from the Bar Association for suspects who cannot afford one.

Article 18 (CMUK 142): Suspects can use a common lawyer.

Article 19 (CMUK 143): Strengthens lawyer's right to examine information about and documents connected with the case.

Unamended CMUK 143: Lawyer could only see files after the indictment was given or if viewing them did not harm the case.

Article 20 (CMUK 144): Allows unrestricted and protected access between the detained and /or arrested suspect and his lawyer. Applicable in part to security detainees under the "Law of March 1997 amending CMUK."

Unamended CMUK 144: Only an arrested suspect can meet with his lawyer at any time.

Article 22 (CMUK 146): Regulates fees to be paid to court-appointed Bar Association lawyers.

Unfortunately, even for those to whom the above rights exist de jure, they are often not implemented de jure.

Article 13 of Law No. 3842, which became Article 135/a of the Code of Criminal Procedure (CMUK) and is still in force today, banned torture and other so-called "prohibited interrogation methods." Article 24, which was added to Article 254 of CMUK, reiterates Article 13's prohibition on using evidence gathered illegally: "Evidence gathered illegally by the investigation and prosecution authorities cannot constitute a basis for a verdict."123 Article 13/CMUK 135/a states,

Prohibited Interrogation Methods

The statements of the accused and the testifying person must be based on their own free will. Maltreatment, torture, giving medicine by force, tiring, deceiving, using physical force or violence, physical or emotional disturbances that mislead his will like using some devices are prohibited. No benefit can be gained contrary to the law. Even if there is consent, testimonies obtained by using the above mentioned prohibited methods cannot be considered as evidence.124

These are applicable to all crimes, making no distinction between criminal and security detainees, and, if applied consistently, would do much to reduce torture.

The January 15, 1997 guilty verdict in a trial in the Izmir State Security Court against ten individuals-many of them high school students-despite allegations that the statements they gave in police detention were taken under torture provides an unfortunate example of how the safeguards introduced in Law No. 3842 amending the Code of Criminal Procedure (CMUK) are not being implemented in practice. According to lawyers for the defendants, the prosecution's files contained no concrete evidence of guilt such as weapons or other incriminating evidence. The fact that fourteen police officers are presently on trial under Article 243 of the penal code, inflicting torture or inhumane punishment, for their involvement in the case, further weakens the legal basis of the verdict against the ten, which ranged from sentences of twelve-and-a-half to two-and-a-half years. Five persons were acquitted. All those convicted will appeal the case.

The case started on December 26, 1995, when anti-terror police units from the Manisa Security Directorate conducted a raid and arrested sixteen individuals, age fourteen to twenty-four, on suspicion of membership in an illegal organization, namely the radical armed group Dev-Sol (DHKP-C).125 They were alleged to have scrawled graffiti and thrown petrol bombs. Those arrested were questioned for eleven days, during which time by all apparent indication they were tortured. Sabri Ergál, Izmir MP from CHP, went to the police station where the sixteen were held after hearing of the case. There he stumbled upon some of the tortured youth. In November 1996, he testified at the trial of the fourteen police officers indicted in that case that,

While sitting in the section allocated for lawyers, I heard screams....when I opened the door of a room where screams were coming from, I saw that two children had been stripped naked. One of them was on the floor. When I entered the second room, I saw that a girl had been stripped naked and was lying on the floor while two children, one of whom was a girl, had been kept standing naked.126

After the announcement of the guilty verdict, MP Ergál lamented that,

This case is a typical example in Turkey where statements taken under torture are considered as evidence. But according to the Code of Criminal Procedure (CMUK), testimony taken under torture is not valid. But the state security court viewed torture incidents as propaganda of outlawed groups. Fine, but was the Manisa State Prosecutor's Office, which found credible allegations of torture and opened a case against the police, also influenced by propaganda of outlawed organizations? Were there any weapons or bombs found on these kids? According to the police claim, the kids wrote on walls. But this claim is based on statements taken under torture.

Turkish Penal Code (Tárk Ceza Kanunu)

The Turkish Penal Code also prohibits and sets out punishments for the use of torture and mistreatment by police against detainees. Article 243 states that a state official who "...tortures an accused person or resorts to cruel, inhumane or degrading treatment in order to make him confess his offense, shall be punished by heavy imprisonment for up to five years and shall be disqualified from the civil service either temporarily or for life."127 Article 245 states that, "Those persons authorized to use force and all police officers who, while performing their duty or executing their superiors' orders, threaten or treat badly or cause bodily injury to a person or who actually beat or wound a person in circumstances other than prescribed by laws and regulations, shall be punished by imprisonment from three months to three years and shall be temporarily disqualified from the civil service."128

State Security Courts and the 1991 Anti-Terror Law (Law No. 3713)

Article 143 of the constitution provides for state security courts (Devlet Gávenlik Mahkemesi), and states that, "Courts of the Security of the State shall be established to deal with offenses against the indivisible integrity of the State with its territory and nation, the free democratic order, or against the Republic whose characteristics are definedin the Constitution, and offenses directly involving the internal and external security of the state."129 The majority of cases the state security courts handle fall under the 1991 Anti-Terror Law (see below).130 Under the 1983 Law on the Organization and Procedure of State Security Courts (Law No. 2845), state security courts began to operate in May 1984, a year after the return to civilian rule after the 1980 military coup.131 State security courts had previously been established in 1973 after the March 12, 1971, military intervention, but in 1976 they were declared unconstitutional by the Constitutional Court.132 There are now eighteen security court panels in eight different cities; each panel consists of two prosecutors, two civilian judges, and one military judge.133 Decisions by a state security court can be appealed to the High Court of Appeals (Yarg2tay).

Aside from the handicaps for the defense caused by the fact that many of the most important amendments to Code of Criminal Procedure( CMUK), including guaranteed access to an attorney during the detention period, do not apply to cases in the state security courts (see section on CMUK), those arraigned before these courts face even more obstacles: because of the heavy caseload, trials can last years; hearings may be closed; testimony gathered during interrogation in the absence of counsel may be admitted.134

The 1991 Anti-Terror Law (Law No. 3713) came into effect on April 12, 1991, after publication in the Official Gazette. It replaced several articles of the Turkish Penal Code (141, 142, 163) that dealt with communism, Kurdish nationalism, and fundamentalism. Article 1 of the law defines terrorism as follows: "Terrorism is any kind of action conducted by one or several persons belonging to an organization with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation...by any method of pressure, force, and violence, terrorization, intimidation, oppression, or threat." According to government statistics, in 1995, 5,893 individuals were under arrest under provisions of the Anti-Terror Law and 2,861 had been convicted. 135 In the first ten months of 1996, the Turkish government reported that 1,024 persons were in custody under the Anti-terror law and another 1,934 were suspects in such cases but had not yet been arrested.136

Numerous articles of Turkish Penal Code deal with matters that are considered terrorist crimes under the Anti-Terror Law.137 In addition, Article 8 of the Anti-Terror Law outlaws so-called "separatist propaganda," which has resulted in the punishment of non-violent expression that is protected under international standards of free speech. Until October 1995, Article 8 prohibited such activity without regard to intent: "Regardless of method, intent, or thought, written and oral propaganda along with gatherings, demonstrations, and marches that have the goal of damaging the indivisible unity of the State of the Turkish Republic, its land or people are prohibited."138 By mid-1995, approximately 2,000 cases awaited trial in state security courts under Article 8.

On October 27, 1995, the Turkish parliament amended Article 8 so that the state would have to show intent on the part of the individual to destroy the unity of the Turkish state. All sentences were reviewed, and 143 individuals charged under Article 8 were released from prison. In addition, prison sentences under Article 8 were reduced to one to three years from two to five years. Also, Article 13 of the Anti-Terror Law, which forbids the commutation of sentences into fines and the granting of suspended sentences, was changed to allow these practices. Unfortunately, some of the cases prosecuted under the former definition of Article 8 were reopened under the newly-amended Article 8, which is still used, along with other provisions, to punish non-violent speech.139

The Anti-Terror Law also provides legal protection to police. Under Article 15, members of the anti-terror police cannot be remanded into custody if charged with a crime and enjoy the services of up to three defense attorneys paid for by the state.140

See also Türkiye ¤nsan Haklar2 Raporu, T¤HV, Ankara, January 1993, pp. 102-107.

In the Brogan case of 1988, which dealt with an individual detained by British forces in Northern Ireland, the court ruled that "the scope for flexibility in interpreting and applying the notion of `promptness' is very limited" and ruled that even four days and six hours in police custody was "outside the strict constraints as to time permitted by the first part of Article 5(3)."

For more on the Brogan case, see also "Torture in Turkey: The Legal System's Response," p. 36.

The pre-amendment articles of CMUK applicable to security detainees are found in article 42 of the Law on State Security Courts of 1983 (Devlet Gávenlik Mahkemelerinin KuruluÕ ve Yarg2lama Usulleri Hakk2nda Kanun).

In addition to the state security courts, other specialized courts include the military courts, Constitutional Court, traffic courts, and juvenile courts.

Turkey, like many European countries, does not use the jury system in any of its courts. There is no bail system in Turkey. One can either be tried but not remanded into custody, or one can be tried and remanded into custody.

See, Introduction to Turkish Law, p. 220 and p. 247.

In the bill introduced on November 27, 1996, amending the Code of Criminal Procedure and several other laws, Articles 312 (second paragraph), 313, 314, 384, and 385 were to be removed from the jurisdiction of state security courts. Under the bill as passed into law on March 6, 1997 as "The Law of March 1997 amending CMUK", however, only articles 384 and 385 were removed from the jurisdiction of State Security Courts.

See page 21, footnote 52 for alternative figures for the number of individuals on trial for cases under the jurisdiction of State Security Courts. Most of these deal with crimes falling under the Anti-Terror Law.

In November 1996, that paper reported that 103 journalists, most from radical leftists or Kurdish nationalist publications,were in jail or prison. See "Gazeteciye Yarg2 Sansárá," Cumhuriyet Hafta, November 29, 1996, p. 1.