Police from the Rapid Deployment Unit in Istanbul, 2014.

(Istanbul) - The Turkish government’s proposed expansion of police powers to search and detain and for the use of firearms would undermine human rights protections. A number of the proposals in a draft security bill would circumvent the role of prosecutors and judiciary in ways that directly undercut safeguards against the arbitrary abuse of power.

On December 2, 2014, Turkey’s Parliament passed a separate law that also widened police and court powers. The new security bill, published on the parliamentary website on November 25, would stiffen penalties for people involved in some protests and allow provincial governors to instruct police to focus on particular crimes and perpetrators, seemingly usurping the role of prosecutors and judges. Its introduction followed violent protests in southeastern Turkey on October 6 and 7 that left up to 50 people dead.

“The government has already pushed problematic new police measures through parliament, and now it wants to give itself even greater security powers,” said Emma Sinclair-Webb, senior Turkey researcher at Human Rights Watch. “Parliament should put the brakes on and ensure that this bill protects human rights as well as public safety.”

The 43-article “Draft law changing various articles of the Law on the Powers and Duties of the Police and in Statutory Decrees” contains some positive measures. It would, for example, strengthen civilian oversight of the gendarmerie responsible for policing outside towns by tying it more closely to the Interior Ministry. But the bill contains problematic measures that raise significant human rights concerns. In particular the bill would:

  • Broaden police powers to search people and vehicles, removing the current requirement of prior authorization by a prosecutor or court;
  • Citing “serious threats to public order,” give the police the power to detain people for up to 48 hours without the authorization of a prosecutor, raising concerns that the vague nature of this power could effectively facilitate preventive detention and be open to significant risk of abuse;
  • Permit the police to use firearms to prevent an attack in a public place against buildings, vehicles, or people using a gasoline bomb (Molotov cocktail) or “similar weapon.” The breadth of this power gives rise to concern that it will increase the use of deadly force in cases in which such force is disproportionate to the threat at hand and not justified under international standards;
  • Increase the penalties for people participating in violent or “propaganda” demonstrations, in a way likely to lead to increased use of mandatory pretrial detention for protesters; and
  • Give governors the power to instruct police to pursue particular crimes and suspects, an authority currently reserved for prosecutors and judges, breaching the separation of powers between legislative, executive, and judicial organs of state.

The circumstances of the deaths during the violent protests in Diyarbakır and other cities in the mainly Kurdish southeast in the first week of October have not been fully investigated. The protests followed the Kurdish political movement’s strong criticism of the Turkish government’s approach to the siege of the Syrian Kurdish city of Kobani (Ayn al-Arab) by the armed extremist group Islamic State (also known as ISIS).

Senior government figures have spoken of the need to increase penalties against protesters who throw gasoline bombs (Molotov cocktails), and to increase police powers to use lethal force against protesters wielding gasoline bombs.

“The government’s legitimate concern about violent protest should not be a blank check for police powers,” Sinclair-Webb said. “Parliament should amend the bill so that people are protected from arbitrary state action as well as public violence.”

Concerns About the Draft Law
Turkey has a track record of abusive policing, with serious human rights violations occurring regularly during police operations. These include violations of freedom of assembly, unjustified use of lethal force and other excessive use of force, and cases of torture and other prohibited ill-treatment of detainees. These violations have led to repeated criticism and concern from regional and international human rights bodies as well as from nongovernmental groups such as Human Rights Watch. Against this background, the rapid expansion of vague or broad police powers, and the moves to sideline the supervisory role of prosecutors and judges in the exercise of those powers, is particularly alarming.

The main concerns with the draft law lie in three areas: increased police powers without appropriate safeguards, increased powers for provincial governors and deputy governors to direct police investigations, and increased penalties against protesters.

Wider Search Powers
When police stop vehicles for identity checks under the existing provisions of the Law on Police Powers and Duties, the bill would grant wider powers to search people and vehicles without appropriate oversight. Current law requires authorization by a judge or prosecutor, but the draft law would bypass that authority, permitting a senior police officer to authorize searches in writing or verbally, then to submit the search warrants to a judge within 24 hours for after-the-fact approval.

The change would increase the likelihood of arbitrary police searches of cars and people and would allow police to routinely conduct such searches without prior approval from a judge or prosecutor, Human Rights Watch said. The amendment contains no limitations as to particularly time sensitive situations (such as imminent destruction of evidence) or other compelling reasons to be established as justification for not waiting to seek authorization. Nor does the amendment contain a requirement to give the person searched or the owner or person in charge of the vehicle written documentation about the search, which they can use to challenge arbitrary searches. The police’s submission of a warrant for approval after a search has taken place is meaningless as a check against arbitrary abuse.

Preventive Detention
Under a related amendment in the draft bill, police would have the authority to detain a person without a warrant for up to 24 hours for certain crimes committed individually and to detain people for 48 hours “when the spread of violent incidents poses a serious threat to public order during mass incidents.” The 14 crimes for which this authority would apply include assault, murder, theft, violent protest, and crimes under the Anti-Terror Law. When it comes to crimes committed during “mass incidents,” the scope of the power to detain is poorly articulated, without limiting the authority to cases in which people are caught committing acts of violent protest or against whom there is reasonable evidence to indicate specific offending behavior.

As the police would require no prosecutorial or judicial permission under this provision, it leaves open the possibility that someone could be detained if the police think they might commit a crime, amounting to preventive detention, Human Rights Watch said. The law already gives the police a wide scope to detain or remove an individual who poses an identifiable threat to the public, and based on experience with policing in Turkey, this new provision could be used to legitimize and make routine such practices as mass detentions during demonstrations.

Broader Scope for Police Use of Firearms
Perhaps the most problematic provision in the bill extends the right of the police to use a firearm against an individual who “attacks or attempts to attack workplaces, residences, public buildings, schools, hostels, places of worship, vehicles or against open or confined places where there are individuals or crowds by using a Molotov [petrol bomb], explosive, burning, combustible, suffocating, injurious or similar weapon.” While the provision indicates that the police should use a firearm “with the aim of rendering the attack ineffective and to the degree necessary to render it ineffective,” it lacks sufficient safeguards stipulating that the use of lethal force should be a last resort to protect life.

The United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, Christof Heyns, expressed concern about inadequate safeguards of use of lethal force by Turkish police following a November 2012 visit to Turkey. A key recommendation of his report concerned the use of force:

96. The laws regulating the use of force by law enforcement officers (Law No. 2559 on the Duties and Powers of the Police; Law No. 2803 on the Organization, Duties and Powers of the Gendarmerie, and related regulation) should be brought in line with international standards. Both proportionality and necessity are crucial components of these standards. The terms “necessity” and “proportionality” in these texts should reflect their interpretation under international law: lethal use of force may be made only as a last resort to protect life. Regulations on the stop warning procedure and on the proportionate use of less lethal weapons should be promulgated and conform to these standards.

The changes in the bill would move Turkey further away from Heyns’ recommendations, Human Rights Watch said.

Increased Penalties Against Protesters
The draft bill includes increased penalties for engaging in violent protest or protest deemed to be "propaganda for terrorist organizations.” Among the problematic elements of these measures, a revision to the Anti-Terror Law (article 7/2) provides for a three to five-year prison sentence for anyone “who conceals or partially conceals their face during a demonstration or public assembly that turns into propaganda for a terrorist organization.” The existing sentence is one to five years. The increase of the minimum sentence means that the accused would automatically be placed in pretrial detention for concealing their face to avoid identification, even if there is no evidence that they have participated in violent activities.

Increased Powers for Provincial Governors
The draft law proposes giving the highest administrative officer of a province, the governor, authority to assume powers that rightly belong to the prosecutorial authorities. The draft bill states that: “Where necessary and where there is a need for urgent measures, a governor can give direct orders to the police chief or public officials to shed light on a crime and to find the perpetrators of the crime.” The provision makes it obligatory for all public officials to comply with such orders.

Because governors are part of the executive branch and are directly appointed by the government in Ankara, allowing them to order police “to shed light on a crime” opens the door to governors directing police investigations, Human Rights Watch said. It would violate the norm under which decisions about the investigation of crimes should the responsibility of prosecutorial authorities and supervision by the judiciary, not political bodies.