Atty. Fikret Duran / HRD (Human Rights Defenders)
Allegations of torture have always been on the agenda in Turkey. The practices of the junta administration after military coups and the torture that took place in the Eastern and Southeastern Anatolian regions in the 1990s are still in our memories. Just when we thought those days were behind us, the last 5 years in Turkey have once again become a period where allegations of torture have peaked.
The government declared a State of Emergency by turning the July 15 coup attempt into an opportunity to establish an authoritarian regime. Then it started issuing decrees suspending rights and freedoms. Going further, it announced that it had suspended the European Convention on Human Rights. Torture and ill-treatment filled the void left by the law. The country’s dirty past found a new life in the body of the AKP government. Although the State of Emergency ended on July 19, 2018, it has now become a de facto situation.
The sports hall of the Ankara Police Department is a common point in the accounts of many torture victims. Although the dates of detention, ages, professions, and genders of the victims change, their stories remain the same; Palestinian hanging, beating, rape, threats, starvation, and many other inhumane crimes. They state that the walls are stained with blood up to human height. There are 4 more similar addresses in Ankara where torture is applied.
The fact that torture crimes were systematically committed, especially after July 15, was reflected in the reports of both the European Commission’s Committee for the Prevention of Torture and the UN Human Rights Commissioner for the Prevention of Torture. Human rights organizations and bar associations operating at national and international levels also have reports in this direction. In the latest Turkey report of the Council of Europe’s Committee for the Prevention of Torture dated August 5, 2020, it is reflected that state officials in commanding positions approved torture, and even worse, sometimes gave torture instructions to their subordinates, describing the types of torture.
Government officials display a hypocritical attitude instead of preventing torture and punishing its perpetrators; while encouraging torture on one hand, they have turned the phrase ‘zero tolerance for torture’ into a slogan on the other. However, to date, no effective investigation has been conducted regarding torture and ill-treatment crimes committed by public officials.
Although the government denies allegations of torture and ill-treatment with empty slogans, it is possible to read between the lines of the official data disclosed by the Ministry of Justice about the real dimensions of torture and ill-treatment, especially carried out by law enforcement. The Ministry announced that 163,000 investigations were conducted in 2018 on the allegation of ‘resisting an officer on duty’. It is known that hastily preparing a ‘resisting an officer’ file by law enforcement to suppress complaints of torture and ill-treatment is a commonly used method. When the situation is read in reverse, it can be said that 163,000 cases of torture and ill-treatment occurred in the country in 2018 alone.
The crime of torture is predominantly carried out in detention centers and law enforcement vehicles. Torture in police departments is followed by torture in prisons, refugee accommodation centers, and unknown centers through abductions.
It is understood that the most important reason for torture to intensify from the moment of deprivation of liberty until the person is brought before a judge is the desire to produce crime and evidence through torture.
With torture;
Modern criminal law systems reach the suspect from evidence. If there is no evidence, there is no crime, and since there is no crime, no accusation can be made. By turning the criminal law system upside down, as in the Medieval inquisition trials, an innocent person is asked to confess to a crime.
Definition of torture
Any action that causes the victim to suffer physically and mentally, affects their perception and willpower, and causes them to be humiliated is defined as torture. Torture and ill-treatment may vary according to the victim’s age, health condition, social status, and gender. Although the treatment that many people who somehow cross paths with the police or gendarmerie are subjected to actually falls within the scope of the prohibition of torture or ill-treatment, due to the lack of belief that this crime committed by law enforcement will be punished, or due to insufficient awareness, the situation is tolerated without resorting to complaints.
The ECHR considers torture and ill-treatment crimes under the same heading as ‘Absolute prohibition’ without distinction. This clear stance of the international court has been influenced by states resorting to psychological violence instead of physical violence to achieve their goals in order to avoid being subject to allegations of torture. In many violation decisions given by the ECHR, psychological actions targeting mental integrity are also considered within the scope of torture, not limited to physical beating, coercion, or torment. There is a transition between physical and psychological torture. Therefore, any distinction between the two is artificial. Just as physical torture has psychological damages, psychological torture can also have physical damages.
Based on numerous human rights reports, court records, and victim testimonies, it is possible to categorize the types of torture and ill-treatment practiced in Turkey under the following headings:
Blunt trauma: Punching, kicking, slapping, banging the head against the wall, falanga, beating, hitting with a stick or baton, striking with a gun butt or handle, pushing and shoving, knocking to the ground
Positional torture: Palestinian hanging, prolonged restriction of movement, forced standing, compelled to maintain a certain position, forced to perform specific movements
Asphyxiation: Covering the mouth using wet or dry methods, choking to induce breathlessness
Harsh environments: Forcing to stay in airless, humid, crowded, dirty, extremely hot or cold environments, exposure to bright light, keeping in darkness, not allowing windows to be opened, exposure to noise
Deprivation of food and drink: Starving or dehydrating, providing poor/spoiled food, forcing to eat with handcuffed hands, compelling to drink water spilled on the floor
Trampling: Crushing fingers, arms or legs with feet
Sexual assault: Rape, sexual harassment, molestation, violence directed at sexual organs
Poor detention conditions: Solitary confinement, overcrowded cells, holding in cells that do not meet health and hygiene standards, providing insufficient food, violation of the right to health, arbitrary disciplinary punishments
Deprivation of needs: Sleep deprivation, not allowing bathing for long periods, denying toilet access, preventing victims from identifying with each other, depriving of light and time perception by covering the head or blindfolding, depriving of time perception by keeping lights on 24 hours in a windowless room,
Humiliation: Spitting, stripping naked, shouting, swearing, insulting, public humiliation, strip searches, all kinds of privacy violations, forcing to wear uniform clothing
Pouring cold water
Threats: Threatening the victim or their relatives with death or rape, mock executions, threatening with more torture
Threatening with dogs
Psychological torture techniques: Playing good cop/bad cop roles, forcing betrayal, learned helplessness, exposing to ambiguous situations or contradictory messages
Attacks on values: Cursing and insulting sacred values and spiritual personalities
Behavioral pressure: Using excessive force during arrest and detention, handcuffing behind the back someone who voluntarily came to the police station
Forcing to witness torture of others: Making them watch/listen to torture and ill-treatment of others, forcing to watch/listen to the rape of others
Deprivation of medical treatment: Not providing treatment, withholding medication, exposing to infectious or epidemic diseases
What should victims of torture and ill-treatment do?
Although the government wants to provide assurance to torturers through regulations that would mean ‘immunity from prosecution’ in violation of the Constitution and international conventions, it is clear that they will not succeed in this. Torturers seem to think they will profit from this encouragement. However, examples in world legal history say the opposite. Torture and ill-treatment are crimes that target all of humanity. Therefore, the international community is establishing international monitoring mechanisms to combat torture comprehensively. Since there is no statute of limitations, complaints can be made after the effect of trauma and the atmosphere of fear have ended. Even if the domestic legal landscape consists of a formal procedure that needs to be completed, justice can be established when grievances are brought to international courts. As long as the allegations can be properly evidenced and the causal link between torture and torturers can be correctly established.
What should torture victims pay attention to in order to achieve results in international courts?
- The place, date, and time of torture should be recorded,
- Torture acts should be noted in detail,
- Evidence that can prove torture should be preserved: Doctor’s report, camera footage, photographs, clothing, witness names, transfer vehicle license plate, etc. can be considered as evidence and findings that can be used for proof. Since a long time passing will make it difficult to prove the crime, it will be beneficial to preserve any kind of evidence that can be used for proof.
- The name and surname, duty and rank of the torture perpetrator should be noted, if these are unknown, descriptive information that can help identify them should be noted: Height, weight, hair style, hair color, eye color, skin color, distinctive features on the face, dialect if any, whether there are tattoos, signs of drunkenness, or any other details that can help with identification.
- From the beginning of the detention process, if possible, a request should be made to meet with a private lawyer, or if not, with a lawyer to be requested from the CMK service. The torture and ill-treatment suffered should be explained to the lawyer, and a record should be made.
- The lawyer should be asked to contact organizations such as the Bar Association, Medical Association, Human Rights Associations to seek assistance.
- The torture experienced during a doctor’s examination should be reported to the doctor and requested to be included in the report. If the doctor ignores this statement, steps should be taken to be examined by a private doctor. Independent organizations such as the Medical Association can also be asked for help in this matter. If there are visible signs of torture, yet the doctor issues a report stating “there are no signs of battery or force”, a complaint should be filed against the doctor, and the report should be challenged and nullified.
- The allegation of torture should be recorded in the prosecutor’s statement or in the minutes of the interrogating judge. If the statements are not recorded, the lawyer should be requested to make a note.
- If the Public Prosecutor does not initiate an investigation ex officio, a petition of complaint should be written to the prosecutor’s office, presenting the torture allegations. In international courts, states often argue that “the allegation was not expressed or complained about despite the presence of a lawyer during the statement, therefore the claim does not reflect the truth.” For this reason, it is important to report the allegation to official authorities. Those who could not complain due to fear or trauma can file a criminal complaint even after these situations have passed. If the tortured person has died, their relatives can file a complaint.
- If the prosecutor’s office issues a decision of non-prosecution, the decision should be appealed. If the appeal is rejected, it is important to bring the complaint before the Constitutional Court. In recent years, it is observed that the Constitutional Court has not been making decisions that protect human rights, especially regarding “the state’s national security policies”, and has a negative attitude towards individuals except for a few token decisions. Therefore, it would be appropriate to simultaneously bring complaints to international courts such as the ECHR and UN.
What are the international organizations that torture victims can apply to?
European Court of Human Rights
To get results from an ECHR application, it is important to have exhausted domestic legal remedies. Despite “very significant regressions in the protection of democracy, rule of law, and human rights values in Turkey, the ECHR constantly points to the Constitutional Court to prevent cases from coming to it, and strictly seeks the condition that domestic legal remedies have been exhausted in the applications it receives. Therefore, it is important that domestic legal remedies, including individual application to the Constitutional Court”, have been exhausted, starting from the criminal complaint. It should also be remembered that European Court of Human Rights proceedings require a struggle that demands patience lasting many years.
The European Court of Human Rights accepts torture allegations if there is concrete evidence. In other words, it does not consider the mere claim “I was tortured” as sufficient. As details are forgotten over time, making proof more difficult, it is important to submit evidence and findings that will help prove the victimization along with the application.
United Nations Application
The Human Rights Committee, the Committee Against Torture, and the Special Rapporteur on Torture within the United Nations are among the important alternatives for bringing torture victimization to international authorities. UN committees apply the requirement of exhausting domestic remedies flexibly, not strictly, when there is de facto impossibility as in the case of Turkey.
The Special Rapporteur on Torture has the authority to take action and request information from the relevant state in case of an urgent appeal due to risks such as corporal punishment, restriction contrary to international standards, prolonged detention, solitary confinement, harsh detention conditions, denial of access to medical examination and adequate treatment facilities, the possibility of being sent to a country where there is a risk of torture, and excessive use or threat of force by officials.
Among the conditions for applying to the “United Nations and the European Court of Human Rights” is that the same issue has not been previously brought before another international judicial authority. An application cannot be made to both institutions on the same issue.
Universal Jurisdiction
Universal jurisdiction, which exceptionally extends the traditional jurisdiction arising from state sovereignty, is an effective method used to ensure that cruel crimes against the international community do not go unpunished. With universal jurisdiction, the state is granted jurisdiction based on the subject of the crime, regardless of where the crime was committed and the nationality of the perpetrator and victim. If a torture victim lives in another country, it is possible to prosecute the torturers when they submit their complaints and evidence to the judicial authorities of the country they live in. There are many examples where serious human rights violations and cruel crimes against all humanity have been punished through the effective use of universal jurisdiction.
Procedure precedes substance.
As the great jurist Cevdet Pasha said, ‘procedure takes precedence over substance.’ This means that ‘procedure comes before substance.’ Even if you are right in your case, you may lose it due to a procedural rule you overlooked. Therefore, it is important to decide where and when to apply, prepare the application petition, and determine the evidence that will prove the claim. Since torture is among the crimes that the international community fights against collectively, many NGOs and volunteer organizations operating nationally and internationally provide legal support to torture victims. These organizations also employ expert healthcare professionals and lawyers. In applications to international organizations, the victim faces the state with all its power and resources. It is important for torture victims to seek legal aid from these organizations to avoid having to fight this long and financially burdensome struggle alone.
Source: Human Rights Defenders
