INTERNATIONAL LEGAL FRAMEWORK

Turkey is a party to several treaties that seek to protect individuals from torture and to prevent its practice. These agreements include the following: U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; European Convention for the Protection of Human Rights and Fundamental Freedoms; the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; and, Common Article 3 of the 1949 Geneva Conventions. Under Article 90 of the Turkish Constitution, "International Agreements duly put into effect carry the force of law. No appeal to the Constitution can be made with regard to these agreements on the ground that they are unconstitutional."141 In practice, however, these international protections seem to have little effect: the U.N. Committee against Torture and the Committee for the Prevention of Torture [CPT] of the Council of Europe as recently as December 1996 have declared that torture is widespread and/or systematic and an important facet of police interrogation methods. That same month, the European Court of Human Rights found Turkey guilty of violating the torture provision of the European Convention for the Protection of Human Rights, upholding an earlier decision by the European Commission of Human Rights.

On August 2, 1988, Turkey ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2 of the treaty calls on, "Each State Party...[to] take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."142 Under that same article, the Convention states that, "No exceptional circumstances whatsoever...may be invoked for a justification of torture."143

In June 1992, the United Nations Committee against Torture, under Article 20 of the Convention, sent a fact-finding mission to Turkey. As cited earlier, the committee concluded in a report issued in November 1993 that, "Although the government of Turkey has taken initiatives to combat torture, the current situation is still one in which torture is systematically practised in various premises under the authority of the Ministry of the Interior."144 The committee made the following recommendations to the Turkish government: set up a "national machinery to combat torture;" prohibit the use of blindfolds during interrogation; ease access of lawyers to places of detention; end procedural bans on access to lawyers for detainees charged with offenses that fall under the jurisdiction of state security courts.145

In 1954, Turkey signed the 1953 European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 3 of the convention forbids torture: "No one shall be subjected to torture or to inhumane or degrading treatment or punishment." Article 5 forbids unlawful detention, and Article 6 guarantees the right to a fair trial. In November 1987, Turkey ratified Article 25 of the convention: the right of individual petition to the European Commission of Human Rights of the Council of Europe. Under the right of individual petition, an individual who believes that one of his rights guaranteed under the convention has been violated and who has exhausted all domestic legal remedies may apply to the commission.146

In two recent cases, the commission has ruled that Turkey has violated, among other parts of the convention, Article 3 banning torture.147 In the case of Aksoy v. Turkey, the commission ruled that,

The applicant alleged that he had been tortured by the police while in their custody between 24 November and December 10, 1992. This torture consisted of "Palestinian hanging," beatings, electric shocks to the genitals and verbal abuse....One of the policemen who interrogated the applicant during his detention, Mustafa Yazgan, was heard as a witness by the Commission's delegates....In his submission, any ill-treatment was inconceivable: it just did not happen that he or his colleagues would treat arrested persons badly (paras. 108 and 111 above)....The Commission finds the statements of Mustafa Yazgan and Riza Cingi unconvincing. The impression gained from these statements was rather that these two public officers were not prepared to consider the possibility of ill-treatment occurring at the hands of the police....The Commission concludes, by 15 votes to 1, that there has been a violation of Article 3 of the Convention.148

On December 18, 1996, the European Court of Human Rights confirmed the findings of the commission in the Aksoy case regarding the allegations of torture and awarded the full amount of compensation sought and legal expenses.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is open for signature to members of the Council of Europe. Turkey signed the convention in November 1988, and it entered into force in February 1989. The main purpose of the convention is to set up a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which, according to Article 1 of the convention, "shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment."

The CPT conducted visits to Turkey in September 1990, September/October 1991, November/December 1992, October 1994, May 1996, August 1996, and September 1996.149 In December 1992, and four years later, in December 1996, the CPT issued public statements concerning torture in Turkey in line with Article 10 of the convention, which calls for such action if the CPT believes its recommendations are not being implemented. As stated earlier, in its 1992 "Public Statement on Turkey," the CPT found that the "the practice of torture and otherforms of severe ill-treatment of persons in police custody remain widespread..." Four years later, while noting some positive government attempts to stop torture, it stated that, "...in the course of visits in 1996, CPT delegations again found clear evidence of the practice of torture and other forms of severe ill-treatment...."150 In its December 1992 statement, CPT recommendations include the following: medical statements from mandatory pre/post detention medical examinations should state allegations, clinical description thereof and doctor's conclusions; conditions of police service must be improved; Law No. 3842 amending the Code of Criminal Procedure (CMUK) should apply to all detainees; maximum periods of detention must be reduced.151 In its 1996 statement, the CPT called for access to an "independent lawyer" at the onset of custody, the right of detainees to notify immediately next of kin, reduction of detention periods, and that doctors providing detainees with medical examinations to determine ill-treatment be allowed to "work free from any interference."

The CPT concluded both of its public statements much in the same way. In 1992, it noted that, "Finally, it should be re-emphasized that the phenomenon of torture and other forms of ill-treatment by the police will not be eradicated by legislative fiat alone....Indeed, it can be legitimately advanced that attacking the root of the problem of torture and ill-treatment involves not so much changing laws as transforming mentalities. This process is required not simply amongst police officers but throughout the criminal justice system."152 In 1996, the CPT asserted that, "To attempt to characterise this problem [torture and ill-treatment] as one of isolated acts of the kind which can occur in any country-as some are wont to do-is to fly in the face of the facts....The problem may well have been exacerbated by terrorism, but its roots go far deeper."153

Finally, Article 3, common to the four Geneva Conventions of 1949, sets basic legal rules for the conduct of hostilities in an internal armed conflict, among them the prohibition on "cruel treatment and torture." Turkey is a signatory of the four Geneva Conventions of 1949. Given the nature and extent of military activities in southeastern Turkey, Common Article 3 clearly applies, though the Turkish government has not acknowledged its application and has consistently refused to allow the International Committee of the Red Cross [ICRC] the right to set up operations in Turkey, including the right to visit security detainees.154

For a further explanation of this, see Human Rights Watch/Helsinki, "Forced Displacement of Ethnic Kurds from Southeastern Turkey," pp. 10-11.