I am writing on behalf of Human Rights Watch (HRW) regarding the case of Nuriye Kesbir. Ms. Kesbir’s lawyers have provided us with a copy of the September 7, 2004 decision in which you authorize Ms. Kesbir’s extradition to Turkey. Human Rights Watch is deeply disturbed that this decision apparently was taken with no regard for the human rights considerations detailed in our letter to you of May 24, 2004, in which we argue that extraditing Ms. Kesbir to Turkey puts her at real risk of torture and ill-treatment. Moreover, our letter detailed the problems inherent in relying on diplomatic assurances from the Turkish authorities that Ms. Kesbir will not be so ill-treated upon return. Human Rights Watch has not received an official response to that letter and we respectfully request that you provide one as a matter of urgency and for the record.
Minister Donner:
I am writing on behalf of Human Rights Watch (HRW) regarding the case of Nuriye Kesbir. Ms. Kesbir’s lawyers have provided us with a copy of the September 7, 2004 decision in which you authorize Ms. Kesbir’s extradition to Turkey. Human Rights Watch is deeply disturbed that this decision apparently was taken with no regard for the human rights considerations detailed in our letter to you of May 24, 2004, in which we argue that extraditing Ms. Kesbir to Turkey puts her at real risk of torture and ill-treatment. Moreover, our letter detailed the problems inherent in relying on diplomatic assurances from the Turkish authorities that Ms. Kesbir will not be so ill-treated upon return. Human Rights Watch has not received an official response to that letter and we respectfully request that you provide one as a matter of urgency and for the record.
As noted above, the September 7 decision by the Ministry of Justice fails to address in any meaningful manner the serious human rights concerns expressed in our and other human rights’ actors interventions on behalf of Ms. Kesbir (including the issues raised by an urgent communication from the United Nations Special Rapporteur on Torture). We understand that there will be summary proceedings in this case and we thus urge you to explicitly respond to these human rights concerns in the impending proceedings. A summary of our concerns is detailed below.
It appears that your decision to extradite Ms. Kesbir is based, in the main, on the fact that the Dutch authorities have secured diplomatic assurances from the Turkish authorities that she will not be tortured or ill-treated and will receive a fair trial upon return to Turkey. In seeking such assurances, the Dutch government acknowledges that Ms. Kesbir is indeed at risk of torture or ill-treatment if returned. The assurances allegedly serve as a safeguard against such treatment. Our research, however, detailed in an April 2004 report titled, “Empty Promises: Diplomatic Assurances No Safeguard against Torture, strongly indicates that assurances from governments where torture is systematic or widespread, or from governments that do not have effective control or supervisory mechanisms over the forces that commit torture, cannot be trusted and thus do not provide a reliable or effective safeguard against torture and ill-treatment.
In its May 7, 2004 decision, the Dutch Supreme Court underestimated both the frequency of continuing acts of torture and ill-treatment in Turkey, and the fact that Turkish authorities have failed to develop and implement adequate supervisory mechanisms to ensure that torture and ill-treatment do not occur and that those responsible for such abuses are held accountable. The Court also failed to consider Ms. Kesbir’s specific circumstances as a Kurdish woman, despite relevant evidence of continuing abuses against Kurdish women in custody in Turkey. The absence of any discussion of ongoing gender discrimination in the form of sexual violence against women detainees was a glaring omission. As a result, the Court did not prohibit outright Ms. Kesbir’s extradition, but advised the Ministry of Justice to seek diplomatic assurances to mitigate her risk of potential abusive treatment. Again, by advising that assurances be secured, the Court also acknowledged that Ms. Kesbir was at risk of prohibited treatment.
We understand that the Dutch government proceeded to secure diplomatic assurances from the Turkish authorities. We are convinced, however, that these assurances cannot be considered reliable or adequate based on Turkey’s current record of failure at addressing various aspects of its reform program with respect to torture. Moreover, although there is no specific agreement between the Dutch and Turkish authorities for post-return monitoring of Ms. Kesbir by Dutch authorities, the inherent problems of such monitoring preclude its use as an additional safeguard. Below we summarize the main arguments against reliance on diplomatic assurances as set out originally in our May 24, 2004 letter and ask the Dutch authorities to address expeditiously and directly our concerns on this matter.
Diplomatic Assurances from Turkey Inherently Unreliable
As you point out in your September 7 decision, requesting diplomatic assurances breaches the principle of trust underlying diplomacy in general and extradition treaties in particular. Thus, an extraditing state will not easily request such assurances, except in cases where the state requesting extradition has a record of systematically and routinely practising torture. Governmental authorities in states where torture is a serious human rights problem often deny the existence of torture, however, since such abusive practices are in breach of fundamental international obligations. To rely on assurances given by a state that practises torture is to rely on promises from a state that cannot be trusted to comply with its international obligations. Why would an extraditing state trust such a government to comply with a mere set of understandings in the form of diplomatic assurances, which are not legally-binding and thus do not have the same weight as international human rights treaties?
Furthermore, although we understand that the federal government gave the Dutch authorities the diplomatic assurances, our recent research reveals that Turkish state authorities do not have sufficient control over the forces perpetrating acts of torture, nor the will to hold abusers accountable. Your September 7 decision gives far too much weight to the improvements in law and practice with respect to torture in Turkey and virtually no consideration to the numerous additional steps that must be taken to halt serious on-going abuses and eradicate torture there. Turkey’s failure to take such steps are detailed in a September 2004 Human Rights Watch briefing paper titled, “Eradicating Torture in Turkey’s Police Stations,” which is attached to this letter. Other groups, including Amnesty International, in July and August urgent actions, have also highlighted on-going problems with torture in Turkey. In October 2004, Human Rights Watch identified torture prevention, accountability and eradication as a key human rights benchmark in the accession process that Turkey has failed to make adequate progress toward. Similar conclusions were reached in the October 6, 2004 EU Regular Report towards Accession on Turkey.
Turkey does not have (or actively operate) monitoring mechanisms to prevent torture. As stated in the September 2004 report noted above, the formal protections against torture in Turkey are among the strongest in Europe, but it is personnel in police and detention facilities that routinely ignore these legal safeguards, leading to ongoing serious abuses. Thus, assurances given by the Turkish government provide no safeguard since the federal authorities are unable or unwilling to exercise control over the practice of torture “on the ground.”
Diplomatic Assurances not Adequate to Provide Safeguard
Human Rights Watch is aware from Ms. Kesbir’s lawyers that the United Nations Special Rapporteur on Torture transmitted an urgent appeal to you requesting that you refrain from extraditing Ms. Kesbir to Turkey in the absence of an “unequivocal guarantee” from Turkish authorities that upon return she would not be subject to torture or ill-treatment, or incommunicado detention; that she would have immediate access to legal counsel; and that a system of independent, prompt and close monitoring and follow-up reporting be agreed to ensure that she would be treated with full respect for her human dignity.
In your decision of September 7 you do not reference this urgent communication. However, we understand that the assurances proffered by Turkey include only vague promises, including that, “there should not be any doubt that she will receive a fair trial under the guarantee of the ECHR and enjoy the full rights emanating from the said convention.” This language does not constitute assurances of an unequivocal nature, as required by the Special Rapporteur, and are so vague as to render them virtually meaningless.
We direct your attention to the report given by the Special Rapporteur on Torture to the United Nations General Assembly in New York on October 27, 2004. In his report, the Special Rapporteur expresses serious reservations regarding the use of diplomatic assurances for returns to countries where torture is an on-going problem. In the event, assurances are used, the report enumerates a set of minimum standards for their contents (see attached sections of the Special Rapporteur’s report).
The diplomatic assurances proffered by the Turkish authorities in Ms. Kesbir’s case are not reliable due to the Turkish governments unwillingness to adequately supervise those who continue to commit acts of torture and ill-treatment, and they do not meet even the minimum standards required by the Special Rapporteur on Torture to ensure Ms. Kesbir’s safety and full respect for her rights.
Deficits of Post-Return Monitoring
Human Rights Watch has also detailed the deficits inherent in attempting to monitor possible torture abuses post-return. Our April 2004 Empty Promises report outlines several recent cases in which the assurances offered by the requesting states were much more specific than those offered by Turkey in the Kesbir case and where a post-return monitoring system was also agreed by the governments involved. Our research reveals, however, that such monitoring cannot provide an adequate safeguard against torture.
Torture is illegal and therefore practised in secret. Prison personnel, including prison doctors, are often trained in torture techniques—including the use of electric shock—that are undetectable, except to the eye of one who is expertly trained. Independent experts, medics and lawyers are usually denied unhindered and private access to detainees. Detainees themselves are frequently intimidated into silence, fearing further abuses if they speak about the torture. Women torture victims, in particular, are less inclined to discuss their abuse, particularly if it involves sexual violence.
In addition, the extraditing government conducting the post-return monitoring has absolutely no incentive to report torture or ill-treatment, as it would indicate that it had breached its nonrefoulement obligation.
Conclusion
Upon the information and belief contained in this letter, we are convinced that extraditing Ms. Kesbir puts her at real risk of torture and ill-treatment upon return to Turkey. The diplomatic assurances given by the Turkish government in the extradition case of Ms. Kesbir are neither reliable nor adequate, and cannot guarantee that she will not be subjected to torture or ill-treatment upon return. Ms. Kesbir’s extradition would therefore constitute a breach of the Netherlands’ nonrefoulement obligation as enshrined in the European Convention on Human Rights, the Convention against Torture, and the International Covenant on Civil and Political Rights.
Yours sincerely,
Holly Cartner
Executive Director
Europe and Central Asia Division
Human Rights Watch
cc: Bernard Rudolf Bot, Minister of Foreign Affairs
Johan Remkes, Minister of Interior
Victor Koppe, Lawyer of Nuriye Kesbir
Michel Uiterwaal, Lawyer of Nuriye Kesbir
