"The situation of human rights in Turkey
should be
kept on the agenda of the Council of
Europe"
A NEW EUROPEAN
REPORT ON TURKEY
The situation of human rights in Turkey continues to
be one of the main concerns of the Council of Europe. Recently, on
January 20, 1992, the Committee on Legal Affairs and Human Rights of
the the Parliamentary Assembly of the Council of Europe adopted a
comprehensive report exposing human rights violations in this member
country and, in a draft resolution, called on the Turkish authorities
to take many urgent measures for respecting human rights.
The report was prepared by two rapporteurs, Mrs Mrs
Lentz-Cornette (Luxembourg, Christian Social Party) and Mrs Mrs
Baarveld-Schlaman (The Netherlands, Socialist) following their visit to
Turkey in July 1991.
The said report was also taken note by the Political
Affairs Committee on January 24, 1992.
Although it had to be discussed at the February 1992
plenary meeting of the Parliamentary Assembly, the discussion was
reported to a further date as a result of the insistent demands of the
Turkish parliamentarians. Besides, a part of the Turkish media
qualified this report as "a new proof of the European hostility against
Turkey."
We are reproducing below a slightly abridged text of
the Report on the situation of human rights in Turkey:
1. Introduction
It is already more than 5 years ago that the
Assembly adopted its Resolution 860 (1986) on the situation in Turkey
in which it instructed its ~Political Affairs and Legal Affairs
Committees to continue to follow developments closely". In fact, since
the military intervention of 12 September 1980, these two committees
had studied carefully the developments in Turkey. Their delegations or
rapporteurs visited Turkey on several occasions and presented numerous
texts which the Assembly adopted between October 1980 (Recommendation
904) and April 1985 (Resolution 840). After the adoption of Resolution
860, the Committee on Legal Affairs and Human Rights continued to
follow very closely the human rights situation in Turkey. It considered
and discussed several papers of its rapporteurs and held hearings on
trade union rights during the mini-session in Istanbul on 30 June 1986,
and a major hearing in Paris on 7 September 1987 at the proposal of the
European Trade Union Confederation. It organised another major hearing
on human rights in general in Paris on 16 January 1990. After that
hearing it was decided - with the approval of the Bureau - to instruct
the rapporteurs of the two committees to visit Turkey. This visit was
originally scheduled to take place at the end of August 1990, because
of the Gulf crisis and war/ it was postponed several times. It now took
place from 21 until 28 July 1991.
We reported orally to our committees on this visit
during the September 1991 part-session and were instructed to submit to
them a written report, in time for its subsequent presentation to the
Assembly at the February 1992 part-session.
2. Our official visit to Ankara, Diyarbakir and Istanbul
2.1. During our visit we had talks with MM. Giray,
Kalemli [a former member of the Committee on Legal Affairs and Human
Rights] and Seker, Ministers for Foreign Affairs, the Interior and
Justice respectively, the Ambassadors of the Netherlands and of the EEC
to Turkey, members of the parliamentary delegation to the Council of
Europe, the vice-president of the Grand National Assembly, the Chairman
of the Parliamentary Human Rights Committee (which has a kind of
ombudsman function with advisory powers) and a number of other members
of parliament. We met professors, journalists, representatives of
women's organisations and, when in Ankara, visited the Human Rights
Foundation where victims of torture are being treated. In all three
towns we met lawyers and national and local representatives of the
Turkish Human Rights Association, some of whom had to travel many hours
by bus to come and see us. When in Diyarbakir we had a long
conversation with the super governor, responsible for law and order in
the whole of south east Turkey where the state of exception applies.
2.2. A meeting with President Özal was planned for
Saturday 27 July but had to be cancelled because of a short period of
hospitalisation of the President.
2.3. In all we met an impressive number of persons
and for conciseness' sake we shall not mention them by name in our
report. Some of them may, in fact, prefer that their names are not
revealed.
.....
3. The political situation
3.1. After their intervention in 1980, the military
carried out the return to democracy like a military operation. In fact,
democracy was restored in 1983 in accordance to schedule after a new
Constitution had been adopted by referendum in 1982. The newly created
Motherland Party emerged as the great winner of the parliamentary
elections of 1983. Much of its success and victory were due to its
founder and leader, Turgut Özal. Whilst the former political leaders
and parties were discredited or excluded from political life, Mr Özal
appeared to a large part of the Turkish population as the right person
to lead the country. A charismatic, self-made man, not belonging to the
former political “clique”, trusted by the military yet without being
their own candidate, combining traditional Moslem ideas with a modern
business-like approach, Özal was the person with whom many Turks could
identify themselves. No doubt it was because of Özal that the
Motherland Party obtained a majority of seats in the Grand National
Assembly and kept this majority until the parliamentary elections of 20
October 1991.
3.2. Mr Özal became Prime Minister in 1983 and, in
1987, succeeded Mr Evren as President of the Republic. Even as
President he very much remained the leader of his party rather than the
impartial head of State who does not interfere in day to day
government, stands above the parties and represents the whole of the
population at home and the state abroad. It is said that Özal's
favouritism towards his own relatives cost himself and his party much
of its previous popularity. Özal's market oriented policies had brought
fast economic growth. Unfortunately his government showed itself
incapable to check rampant inflation, reduce social injustices and find
adequate solutions for the ever more serious problems in the
south-eastern provinces (Kurdistan) which will be dealt with in more
detail in the next chapter.
3.3. The functions and powers of the Turkish
President are mainly described in Article 104 of the Constitution of
1982 which was inspired by the French model. Yet the powers of the
President may seem more impressive than they in reality are and may be
considerably reduced by a hostile parliament. Some of our interlocutors
expressed concern about the powers of the National Security Council.
One may remember that it was the NSC which took over all power from the
government and the Grand National Assembly in 1980. It is, no doubt,
more important than may appear from the provisions in the Constitution.
It is composed of the Prime Minister, the Chief of the General staff,
the Ministers of Defense, Interior and Foreign Affairs, the Commanders
in Chief of the Army, Navy and Airforce, and the Commander of the
Military Police. Its agenda is drawn up by the President of the
Republic and it has consultative powers.
3.4. In the general elections of 1987, the ANAP
(Motherland Party) obtained 64,9% of the seats in Parliament. This
result is, however, very flattering as the electoral system is very
favourable to the large political parties and in particular to the
largest. There is for instance a 10% threshold and the ANAP obtained
this high number of seats with only 36,3% of the votes cast. After the
general elections of 20 October 1991 the breakdown of seats in the
Grand National Assembly is as follows:
True Path Party 178, Motherland Party 115, Social
Democrat Populist Party 88, Prosperity Party 62, Democratic Left Party
7.
3.5. When we visited Turkey the date for general
elections had not yet been fixed. It was not even certain whether such
election were to take place under the existing electoral law or whether
this law would be modified beforehand. In this respect we describe the
situation in Turkey as we found it to be in July 1991, during our
visit, but we shall discuss the new political situation, which resulted
from the general elections, in Chapter 14.
4. The situation in south-east Turkey
4.1. The south-eastern region of Turkey is made up
of 11 provinces and has a common borderline with Syria, Iraq and Iran.
Its highly important strategic and tense position became even more
evident during the Gulf crisis and war. The main town in this region is
Diyarbakir where the super governor responsible for law and order in
the whole area has his headquarters. The region is very rich. It
possesses a certain number raw materials and produces 95% of Turkey's
oil production but the average income is about half of the average
income of a Turkish citizen. A number of dams have recently been
constructed to increase the production of electricity. The population
is made up of Kurds who are in many respects different from the
population in other parts of Turkey. The Kurdish people has a long
history and a remarkable culture and folklore. The number of Kurds is
estimated at about 12 millions, many of whom living in other parts of
Turkey, especially in the large towns in the West.
4.2. The Kurdish language is an Indo-European
language which was spoken for more than 2 500 years. Many Kurdish words
are quite similar to Dutch or German. “I am happy that I am a Turk" was
one of the famous expressions of Atatürk. His policy and the policy of
his successors was to unite Turkey and the common denominator of all
people living in Turkey was the Turkish language in which - it was said
- everything could be expressed. As a consequence of this policy the
Kurdish language was prohibited and every expression of Kurdish
identity was harshly sanctioned. Thus the driver of a petrol lorry,
which happened to be painted in red, yellow and green - the colours of
Kurdistan - was beaten up by the police and punished with six months'
imprisonment. Until recently those who used the Kurdish language were
risking heavy prison sentences. Last spring, the interdiction to speak
Kurdish in private or in the street was ended but it is still not
possible to speak Kurdish in public meetings, public buildings, the
radio and television etc. The use of Kurdish in writing remains
entirely prohibited. Thus, when we were there, we were told that the
police had forced shopkeepers in Diyarbakir to remove any signs in
Kurdish from their shops. When we met with the Governor we asked him
why cassettes with Kurdish songs had been confiscated. The reply was,
that the cassettes had been confiscated, because no turnover tax had
been paid.
4.3. Faced with a categoric refusal for recognition
of their identity and a lack of tolerance, there was increasing
unsatisfaction, unrest and - recently - revolt. Many people living in
the area feel that the policies pursued by the central government are
unfair and ignore that it is only a small group which actually takes up
the arms against Ankara. The PKK (Workers' party of Kurdistan) started
as a Marxist party but became increasingly aggressive and violent.
Practically all terrorist acts committed in the region are committed by
members of PKK. The government reacted with equal violence and with
large scale measures to intimidate the population which was forced to
evacuate important areas along the borders and elsewhere and to
concentrate in a number of villages. Shepherds are no longer allowed to
go into the mountains and as a result their sources of income are
disappearing. In every village a village guard was appointed who gets a
gun and a salary of one million Turkish pounds from the central
government and whose task it is to protect the village against the PKK.
4.4. Under these circumstances one can easily
understand that the region is slowly sliding towards an awful civil war
which might still be avoided if the population were to be granted a
number of cultural and linguistic rights and if the area would allowed
to enjoy some kind of autonomy within the Turkish Republic. There are a
number of Council of Europe member states (Denmark, Finland, Italy,
Portugal, Spain, Switzerland etc.) which granted considerable autonomy
to certain regions and there is no reason why Turkey could not do the
same for Kurdistan. When in Diyarbakir we met a great number of
reasonable and moderate people who did reject the terrorism à la PKK
and would still be prepared to co-operate with such a peaceful solution.
4.5. Unfortunately everything points into the
direction of more violence and an escalation of terrorism on the one
hand and counter-attacks of the government forces on the other.
Statistics given by the Minister of the Interior indicate that, from
1986 until July 1991, 437 policemen or military and 576 civilians had
been killed. In addition the terrorists had kidnapped 1 144 persons,
mainly children. On the other hand from 1987 until July 1991,
government forces killed 1 273 terrorists.
4.6. To this one must add a number of extrajudicial
executions on which no figures are available. For instance, at midnight
on 5 July 1991, three weeks before we arrived in Diyarbakir, Mr Aydin,
President of the People's Labour Party (HEP) and member of the Turkish
Human Rights Association was taken away by four men and on 8 July found
assassinated at the roadside some 60 km away. According to his wife, Mr
Aydin recognised the armed men as police officers and went along with
them to go to police headquarters to be interrogated. However the
Minister of the Interior denied that the police or any security forces
were involved. Prior to his assassination Mr Aydin had been on trial at
the State Security Court in Ankara for giving a speech in Kurdish at
the annual meeting of the Human Rights Association in October 1990. He
had served two months imprisonment in connection with that charge.
4.7. Mr Aydin's funeral on 10 July 1991, was
attended by thousands of people. When the police fired into the crowd,
three persons were killed. Many others were injured through bullet
wounds or by jumping down a wall in the panic caused by the shooting.
During and after these incidents the police arrested more than 350
persons. Until now it has not been clarified who is responsible for the
killing of Mr Aydin and who gave the order to start the shooting at his
funeral.
4.8. The Aydin incidents, unfortunately, are only
examples. Many others are reported. On 18 June 1991, the car of one of
the members of the Human Rights Association in Diyarbakir was
completely destroyed by a bomb and another explosion destroyed the
local office of the association. These and other acts are attributed to
the police.
4.9. The PKK seems to have the support of some of
Turkey's neighbours who are keen to encourage subversion in its
south-eastern provinces. Syria is said to train on its territory
Kurdish teenagers who are kidnapped by the PKK and then return as
guerilla fighters to Turkish soil. In accordance with recent
informations, the Iraqi Government is arming and supplying the PKK in
retaliation for Turkey's close co-operation with the allied forces
during the Gulf war.
5. Freedom of expression - the media
5.1. Freedom of expression is guaranteed in Article
26 of the Constitution but is sub-ordonated to a number of restrictions
and conditions which —grosso modo— correspond to those of Article 10 of
the European Convention on Human Rights. In application of the
Anti-Terrorism Act, which we shall discuss in more detail below, crimes
of conscience no longer exist and as a result many journalists have
since been released from prison. Some of them had been more than ten
years in prison. In its bulletin of 18 June 1991 on freedom of
expression in Turkey, the Helsinki Watch Committee provides the names
of 21 released journalists but the actual number may be much higher. It
is reported that, in 1990, there were 294 violations of free expression
which included the confiscation, banning or other censorship of 98
separate issues of newspapers and magazines. There were 568 charges
brought against journalists in 1990 listed in the bulletin which based
itself on information provided by the Turkish Human Rights Association.
In 12 incidents journalists were beaten by the police which raided the
offices of 7 journals. On several occasions, the police shut down
newspaper printing presses as well. There is no official censorship in
Turkey but journalists and editors know very well that they must be
very careful and impose a strict censorship upon themselves if they
want to be left unimpeded. The number of incidents reported is simply
too high to be able to speak of a really free press.
5.2. Nowadays radio and, especially, television play
an enormously important role and Turkey is no exception in this
respect. Radio and television are very much under control by the state
and the government uses its dominating position to its advantage as was
shown in the recent election campaign where the Motherland party, its
leaders and Ministers, clearly were granted much more time than the
opposition parties.
6. Trade union rights
6.1. The 1982 Constitution provides for the right to
form and to join trade unions and the rights of trade unions themselves
in its Articles 51 to 54. These articles have been further elaborated
in the Trade Unions Act No. 2821 and the Collective Agreements, Strikes
and Lockouts Act No. 2822 of 5 May 1983. The Turkish Constitution and
these two acts were translated by the Council of Europe in its two
official languages and reproduced as working documents. Unfortunately
it was not possible to include the trade unions in our meetings and
discussions. The present chapter is therefore not based on our own
findings and experience.
6.2. During the hearing on trade union rights in
Paris on 7 September 1987 members were informed about the trial against
the Trade Union Confederation, DISK, and its leaders. The Assembly has
always been concerned about this trial before the Military Court of
Istanbul which had started shortly after the military takeover in 1980.
In fact, when a delegation of the Assembly visited Turkey in early
1982, its members attended a session of the court in this mass trial
which took place in a sports hall in the outskirts of Istanbul. The
court gave its final verdict only on 23 December 1986 in which it
confirmed the dissolution of DISK and its 28 affiliated organisations,
confirmed the confiscation of their property by the state and sentenced
264 of its leaders to prison sentences of up to ten years. 1 209 of its
leaders were found not guilty. President Basturk, who had served a part
of his prison sentence but not all of it had been temporarily released
and allowed to take part in the hearing where he made a great
impression. In the meantime he had been elected as a member of the
Grand National Assembly and did therefore not have to return to prison.
The criticisms which were expressed in respect of the DISK trial
concerned the allegations of torture of the DISK leaders especially
during the interrogation period, numerous violations of the right to a
fair trial, the verdict itself which was - at least partly - based on
facts which would not be considered criminal in other Council of Europe
member states but which were so in accordance with provisions of the
Turkish Penal Code which date from 1936 and had been taken from the
Penal Code of Mussolini. There is also the fact that those who had been
acquitted were not granted any compensation for the period pending
trial.
6.3. When DISK was suspended in 1980, 29 trade
unions which were active in 24 different sectors of economic life
adhered to this huge confederation which represented some 580.000
workers. The week before we arrived the Cassation Court squashed the
decisions of the military courts and declared that DISK was not
pursuing unconstitutional aims or had carried out illegal activities.
Its leaders were acquitted and the confederation was to be put again in
the possession of its assets, evaluated at some 1.5 billion Turkish
Lira (some 20 milliard French francs). On 9 September last it resumed
its activities.
6.4. The criticisms raised during and after the
Paris hearing concerning the legal situation in respect of trade unions
may be summarised as follows:
- Article 52, Section 1 of the Constitution deprives
trade unions from pursuing "political activities". This provision may
give the impression that trade unions are deprived of their very raison
d'être. On the other hand Article 37, paragraph 2 of the Trade Unions
Act provides that professional activities, undertaken with a view to
safeguarding and to promoting social and economic rights and interests
of members, are not to be viewed as "political activities' in the sense
of the Constitution. Thus, if one reads the Constitution in that way,
trade unions may be free to discharge their mandate in accordance with
their specific mission which is to improve the social and economic
status of workers.
- Turkish law exhaustively enumerates and thereby
limits the sectors of activity where Trade Unions Act and employers
associations may be set up (Article 60 of the Trade Unions Act).
Millions of workers including teachers, civil servants and personnel of
religious organisations are deprived from setting up or joining trade
unions.
- The provision of Article 14, paragraph 14 of the
Trade Unions Act in which it is provided that a person shall be
required to have actually worked for a period of 10 years before being
able to become a trade union leader.
- Article 12 of the Collective Agreements etc. Act
provides that more than 50% of the workers in the place of work have to
be members of the union as a condition for the union to be recognised
as a negotiating body.
- The limits on the right to strike (see Article 54
of the Constitution and Article 25 of the Collective Agreements etc.
Act).
- All the limits imposed on the right to conclude
collective agreements (Constitution, Articles 52 and 53 and Collective
Agreements Act, Articles 9, 11 and 12).
- The detailed and far-going powers which are given
to the public authorities to control and supervise the administration
and the finances of trade unions. In many respects Turkish trade union
legislation is contrary to the provisions and spirit of the European
Social Charter and some of the ILO conventions. In the Declaration made
when accepting Article 25 of the Human Rights Convention Turkey
declared that, for the purpose of the competence attributed to the
Human Rights Commission Articles 33, 52 and 135 of the Constitution
must be understood as being in conformity with Articles 10 and 11 of
the Convention. It may be recalled that Article 11 of the Convention
grants the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade
unions for the protection of one's interests.
7. Police custody and detention pending trial
7.1. In Turkey, most of the cases of torture (see
Chapter 8) are reported to take place during the period of police
custody. The length and the conditions of police custody are therefore
of great importance. In as far as its length is concerned, it was
reduced from 15 days to 48 hours for individual crimes and from 90 to
15 days for those accused of collective crimes. These 15 days may be
doubled in the provinces in the South-East in which an official state
of emergency exists. Collective crimes are all those crimes which are
committed by two or more persons. Before the end of the detention
period a detainee must be brought before a judge. In theory lawyers and
family members up to the third degree may freely visit a detainee
during this period while others may do so after having obtained
permission from the public prosecutor. However, in practice, this
period of police custody is completely incommunicado. A detainee may
receive a visit by his lawyer or lawyers up to a maximum of three.
Normally, however, he does not have a lawyer and, if he has one, the
lawyer need not be informed of his arrest. Even if all this is the
case, the lawyer may not possess a power of attorney which the police
requires but, as he cannot visit his client, the detainee will not be
able to sign this power of attorney. In addition, detainees may
communicate with their lawyers and family only in the presence of a
police officer.
7.2. It is clear that under these circumstances
anything may happen during police custody. Significant in this respect
is the case of a 36 years old Swiss woman who was arrested last May in
Istanbul and kept in the police prison of Gayrettepe where the
Consul-General visited her. Apparently she did not dare to tell him
anything about the conditions of her detention. It was only later that
she told her advocate that she had received electric shocks and had
been beaten on her head [Tessiner Zeitung, 8 June 1991.]
7.3. The Committee on Legal Affairs and Human Rights
is now studying the replies from national parliamentary delegations,
including the reply from Turkey, to a questionnaire on detention
pending trial which was sent out early in 1991. The results of this
comparative study may be highly interesting and show the needs for
common European criteria for the length and conditions of detention
pending trial including police custody. They may possibly result in the
proposal to draw up an additional protocol to the Human Rights
Convention (11th additional Protocol) on which work already started in
a governmental expert committee on human rights.
8. Torture
8.1. Ever since the late seventies, when Amnesty
International started to report that torture was "widespread and
systematic", torture has been a matter of great concern to members of
our Assembly. In fact it may be considered as one of the main human
rights problems persisting in Turkey today, which nearly all of our
interlocutors admitted. We therefore considered that torture was the
most important item of our visit and we raised it frequently and
consistently during our discussions. Yet, although practically all of
those we met pronounced themselves against torture, we experienced that
they often found excuse and comprehension in the case of torture of
terrorists. We had talks with leading politicians, lawyers and
representatives of human rights associations who declared themselves to
be fully against torture. Apart from the fact that it is inhuman,
immoral and illegal, they realise that it tarnishes Turkish reputation
abroad, that it may turn the tortured person into an enemy of the state
who will be seeking for vengeance later, and that it is unreliable and
ineffective as a means of interrogation. The Constitutional Court
already declared that testimonies made before the police have
insufficient proof.
8.2. As a large majority of torture cases are
reported to take place in police stations and prisons, the length and
the conditions of police custody are of enormous importance. The Human
Rights Association, which has many practising lawyers among its
members, reported to us that there are some 500 people arrested in
Istanbul every month and estimated that about 150 of them were
tortured. The methods used are simple and well-known. They include
beating on all parts of the body, Palestinian hanging and electric
shocks. A detainee may be put in an old car tire to be rolled around or
he may be forced to undress and to lay down; subsequently ice will be
put on his body and an electric fan may be blowing air on him.
8.3. We learned that torture has very deep emotional
and traditional roots. It is used as a measure of discipline, to
intimidate the detainee and as an interrogation method. It forms part
of a mentality, of the way in which a civil servant respects his
fellow-citizens. No doubt many Turks consider it as part of the
criminal sanction. We were told that an ordinary Turkish father whose
son is assassinated will expect, if not require, that the police
tortures the murderer. In many Turkish families it is common that a
husband beats his wife, a father his children. Why shouldn't the police
do the same with criminals? Here we should mention that it is not only
men but that there are many cases reported in which women are tortured
as well. In fact women may be more vulnerable and there are even more
ways to ill-treat and to humiliate them then there are in the case of
men.
8.4. Torture is prohibited by law and in Article 17
of the Constitution as well as in a number of international treaties to
which Turkey subscribed. There are ministerial instructions to the
police that torture can not be tolerated but these instructions have
not had a great impact and the practice of torture continues, possibly
with more sophisticated and hidden methods than in the past.
8.5. Mr Kalemli, then Minister of the Interior, told
us that, during the period 1 January 1989 and 15 December 1989, 508
cases of torture allegations were brought to Turkish courts and that 15
policemen were convicted to prison sentences. From 1 January to 12
November 1990, 906 incidents relating to maltreatment by government
officials were brought to the attention of the judiciary. 354 cases
were filed with the courts. Thirty-two officials were convicted and the
judicial procedure on the cases of 450 officials were in process.
8.6. Among lawyers and advocates of human rights
these figures are considered with much scepticism. It was observed that
the convictions were mainly suspended and conditional sentences and
that a police officer - especially after the adoption of the
Anti-Terrorism Act - was in a much stronger (legal) position than his
victim. A policeman who is accused of torture is not arrested or even
suspended in his functions and his case will first be considered by a
committee of civil servants. If necessary the State will pay the fees
of three lawyers to defend him. It is clear that these privileges may
not incite any police officer to abstain from torturing a detainee if
he feels like it.
8.7. When in Ankara we visited the apartment of the
Human Rights Foundation, a private organisation, which treats torture
victims. We were much impressed by its work. Last year the foundation
treated 40 torture victims. This year the number would be even higher.
On 2 August last, the foundation opened another centre in Izmir in the
presence of Mr Espersen, President of the International Center for the
rehabilitation of torture victims in Denmark and a member of the
Assembly.
8.8. What to do to fight the awful practice of
torture? The political will, of both government and parliament, is by
far the most important element to fight torture. Among the legal
measures to be taken are the repeal or at least amendment of the
Anti-Terrorism Act, to which we will return later. The length of police
custody should be more reduced and practical measures must be taken
that an arrested person can immediately receive visits from his nearby
relatives, his doctor and his advocate. No interrogations should be
carried out any more by the same police officer who arrested him.
8.9. A delegation of the Council of Europe Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment visited Turkey from 9-21 September 1990 and from 29
September-7 October 1991. During its first visit the committee went to
eight during its second visit to twelve different prisons,
interrogation centres and police headquarters. Unfortunately the
information gathered by the committee is confidential and so are the
reports prepared on these visits which are transmitted to the Turkish
Government only. We much hope that Turkey will follow the examples of
Austria, Denmark and the United Kingdom which decided to make public
the reports drawn up by the torture committee on its visits to these
countries in 1990.
9. Death penalty
In November 1990 the number of cases in which the
death penalty may be pronounced was reduced from 29 to 16 offences
listed in the Turkish Penal Code. There has been no execution since
1984 and - as a hopeful consequence of this - Turkey might be able to
adhere to the 6th Additional protocol to the Human Rights Convention
abolishing capital punishment. The fact that any death penalty needs
the ratification of the Grand National Assembly, which used to be very
reluctant to give its authorisation on the past, no doubt contributes
to this positive development. The Anti-Terrorism Act (see Chapter 10
below) provides that all the 25 of death penalties pronounced before 8
April 1991 are to commuted into 10 or 20 years imprisonment depending
on the offence committed.
10. The Anti-Terrorism Act
10.1. On 12 April 1991 the Grand National Assembly
enacted Act No. 3713 to fight terrorism. No doubt this Act has a number
of positive aspects. It commuted all death sentences pending into
prison sentences and permitted the conditional release of 43 000
convicts out of 46 000, many of whom may be considered as political
prisoners. At the same time Articles 141, 142 and 163 of the Penal Code
were repealed. These articles concerned activities "with the purpose of
establishing domination of a social class over other social classes" or
"overthrowing any of the established basic economic or social orders of
the country", communist and anti secular activities and propaganda.
10.2. On the other hand, the Anti-Terrorism Act has
been under heavy attack by politicians, lawyers and human rights
organisations such as the Turkish Human Rights Association, Amnesty
International and Helsinki Watch. Their concerns include first of all
the definition of terrorism given in Article 1 of the Act which, in
their opinion, is so broad that any two persons who press for changes
in the economic or social system, even without committing any violent
act, may be covered by its wording. Yet, it is fair to mention the
opinion expressed by Professor Ozbudun at the Antalya Conference (3-5
October 1991) that a careful reading of this article clearly shows that
only acts perpetrated by means of "coercion, force and violence,
intimidation, duress or threat'" would fall within the scope of its
definition. The peaceful activities of associations seeking to change
the social, economic or constitutional system could therefore not be
prosecuted under the Anti-Terrorism Act.
10.3. The Act limits the rights of persons charged
with terrorism to freely contact their lawyers and restricts prisoner
conditions and privileges for any convicted terrorist. It exempts
police officers who have taken confessions from detainees to testify in
court and makes it more difficult to convict police officers who have
tortured detainees. Moreover it limits the freedom of the press and the
right to hold meetings and demonstrations. Those who are critical of it
consider that the Anti-Terrorism Act is as restrictive as the articles
of the Penal Code it sought to replace.
10.4. Terrorism is indeed a serious threat to the
Turkish population and republic and it is clearly on the increase.
Although most acts of terrorism take place in the south-eastern
provinces, terrorist organisations remain active in other parts of the
country as well. Some Assembly members will remember Professor Aksoy,
former dean of the Ankara Bar Association and member of the Committee
on Legal Affairs and Human Rights, who was assassinated in January
1990, and hardly a week goes by without a number of terrorist acts
being reported. Thus at least 16 persons died on 16 August last at the
anniversary of the campaign for independence of Kurdistan. In the week
of 10 October, at least 5 police officers lost their lifes in Istanbul.
(Former) generals and senior police officers are frequently victims of
terrorist acts.
10.5. We understand that the Turkish republic must
take efficient measures to protect itself and its population against
the scourge of terrorism. We doubt however that the approach of the
Anti-Terrorism Act is the right one.
11. The courts
When the law is evident and complete the task of a
judge is simply to apply the law. However, when legal texts are unclear
or incomplete a judge must "interpret", that is to say try to give the
right meaning to these texts. This may be a very responsible and
difficult task and requires legal background and moral courage. It is
of course impossible to generalise but we got the impression that the
Turkish judiciary has a good reputation, that it is functioning
properly and plays its role which is so essential for the rule of law
and the respect of fundamental rights and freedoms. Some of the higher
courts are not afraid to take decisions against the government's will.
Thus, after 11 years of legal proceedings, the Trade Union
Confederation, DISK, was considered not to be illegal. In July last,
the Constitutional Court, annulled two parts of the Anti-Terrorism Act
but, on the other hand, declared that the Turkish Communist Party is
unconstitutional. After revocation of Articles 141 and 142 of the Penal
Code it looked like the Communist Party could, finally, take up its
activities as a normal political party. However, the Constitutional
Court considered it to be violating Article 14 of the Constitution and
declared the Communist Party to be illegal.
12. Turkey and the European Convention on Human Rights
12.1. Turkey ratified the Convention already in 1954 but one knows that
ratification can only be fully effective if it is accompanied by the
declarations under Article 25 (Right to individual petition) and
Article 46 (compulsory jurisdiction of the Court on Human Rights)
without these optional declarations the application of the rights and
freedoms listed in the countries will remain the sole responsibility of
national authorities, with the exception of interstate applications.
These are provided under Article 24 and the governments of Denmark,
France, Netherlands, Norway and Sweden availed themselves of this
possibility on 1 July 1982. The applicant governments alleged
violations of six different articles in the Convention between 12
September 1980 (the date of the military intervention) and the
introduction of their applications which were declared admissible by
the Commission and ended in a friendly settlement on 7 December 1985.
No doubt many were disappointed by the outcome of the applications. Yet
the fact that the Turkish Government recognised the right to individual
application on 28 January 1987 must be seen as a direct result of this
outcome. The recognition, initially made for a period of three years,
was renewed in 1990 when Turkey also recognised the compulsory
jurisdiction of the European Court of Human Rights. These are highly
important and courageous decisions which enable Turkish citizens or
private organisations to bring any alleged violations of the Human
Rights Convention before its Strasbourg organs.
12.2. Unfortunately, the declaration by which the
Turkish Government accepted the right to individual application under
Article 25 was accompanied by a number of statements which had the aim
of considerably reducing the conditions under which applications might
be introduced. The declaration was registered by the Secretary General
who informed the Turkish Government that such registration in no way
prejudged the decision as to their admissibility which would have to be
taken by the competent body, that is the European Commission of Human
Rights. The Committee on Legal Affairs and Human Rights studied the
declaration in detail with help of a consultant experts who,
surprisingly enough, arrived at the conclusion that it was acceptable.
12.3. In its decision of 4 March 1991 the Human
Rights Commission considered three applications against Turkey which
concerned events which had occurred in Cyprus in July 1989. One of the
statements made by the Turkish Government concerned a restriction
ratione loci stating that applications could only be made for events
which had taken place on the territory at which the Turkish
Constitution applied. The Commission rejected this restriction and
declared that violations committed elsewhere by Turkish authorities
could also be the subject of individual applications. In the opinion of
the Commission a territorial restriction such as had been made by the
Turkish Government was therefore not admissible. This does however not
imply that the remaining part of the Turkish declaration would no
longer be valid either.
12.4. Since 1987 a number of individuals availed
themselves of the opportunity to introduce applications against Turkey.
Some of these applications, in the meantime, were declared admissible.
Thus, on 10 October 1991, the Commission declared admissible the
applications submitted by members of "Dev-Yol" which raise problems
under Article 5 para. 3 (reasonable length of detention on remand) and
Article 6 para. 1 (reasonable length of criminal proceedings, fair
trial before an independent and impartial tribunal) On 11 October last
the Commission declared partly admissible the applications made by
certain members of the Turkish Communist Party who allege violations of
Articles 6, 9, 10 and 11 combined with Article 14 (freedom of thought,
expression- and peaceful assembly) and Article 3 (prohibition of
torture, inhuman and degrading treatment or punishment).
13. Conclusions
13.1. As a member of the Council of Europe Turkey
obtained rights and obligations under international law. The Preamble
and Article 1 of the Statute of the Council of Europe impose on its
member states the full and undivided respect of fundamental rights and
freedoms. The Assembly has an obligation to draw the attention to human
rights violations irrespective where in Europe they occur. In respect
of Turkey there is reason for great concern, especially as the
situation in its south-eastern provinces is concerned.
13.2. No doubt Turkey took a number of positive
measures in favour of human rights in the recent past. They include
internal measures but also measures at international level, both of
which are enumerated in the draft resolution we are submitting together
with this report, but there are still reasons for concern. Some of the
measures taken are of a cosmetic rather than of a real value. Terrorism
and counter-violence are on the increase, and the country may be on the
brink of civil war in its south-eastern provinces.
13.3. In the draft resolution we submit a number of
tentative proposals which, we hope, may contribute to improving the
human rights situation in Turkey. Of course we very much hope that what
Mr Giray, then Minister for Foreign Affairs, told a news conference on
21 September 1991, will one day become true: "Turkey will be number one
among countries that have no human rights problems ... We are about to
become a totally clean human rights champion". He also said that
“Ankara had made rapid progress in human rights in the past eight years
because it was under constant supervision by the outside world".
13.4. It appears that Turkey's police has become
increasingly arrogant and disdainful of foreign interference, stating
that it was not to be taken seriously given the fact that the West
needed Turkey anyway for its importance and strategic position.
13.5. Our Assembly, a political body, owes its
authority to giving the highest priority to upholding human rights and
parliamentary democracy. It will therefore want to continue supporting
the numerous democratic and progressive forces in Turkey which
sincerely defend individual rights and freedoms. For these reasons we
recommend that the Assembly's Political Affairs Committee and its
Committee on Legal Affairs and Human Rights keep Turkey on their
agenda.
14. The new political situation
14.1. As a result of the outcome of the general
election, which we mentioned in paragraph 3.4., a coalition was formed
between the True Path Party and the Social Democrat Populist Party. Mr
Demirel, who has been many times Prime Minister until 1980 - when he
was ousted by the military - became Prime Minister again, Professor
Inönü Vice-Prime Minister. The coalition holds 266 of the 450 seats of
the Grand National Assembly which is however insufficient to change the
Constitution.
14.2. We have noted with great satisfaction
the wish to modify the Constitution and the many very positive
statements in the governmental declaration on subjects which are of
particular concern to us in the present report. They include, among
others:
- a shortening of the duration of police custody;
- the education of the police in relation to human
rights and freedoms;
- improved rights of detainees to see their parents
and lawyers;
- elimination of torture;
- arrested persons will be given the right to refuse
to give testimony unless their lawyer is present;
-restrictions on the rights of trade unions and of
political parties are to be reduced;
- more freedom of the media;
- more autonomy for the universities;
- review of the Anti-Terrorism Act.
143 Finally we would like to quote paragraph 20 of
the "principles of democratisation" of the new Turkish coalition
Government which reads as follows: that "The legal and practical
shortcomings, obstacles and limitations our citizens are facing in the
freedom of expression, in the protection and development of their
ethnical, cultural and linguistic identity will be eliminated in
accordance with the spirit of the Charter of Paris to which Turkey is a
party and within its national integrity."
This paragraph could mean the beginning of true cultural identity and
freedom for the Kurdish population in south-eastern Turkey.
Extracts from the Draft Resolution
- Turkey is an important country with a population
of some 58 million people, its economy is growing fast but the
developments outlined above are clearly of great concern to the
Assembly. Unfortunately the south-eastern provinces are lagging behind
in many respects: economic development, respect for human rights etc.
The situation in south-eastern Turkey is rapidly deteriorating and
becoming very grave indeed.
- The Assembly warmly welcomes the very positive
approach towards fundamental rights and freedoms in the declaration of
the new coalition government in Turkey and the statement made by Mr
Çetin, the new Minister for Foreign Affairs who, on 26 November 1991,
before his colleagues of the Committee of Ministers of the Council of
Europe, declared that "we shall lift all the legal and constitutional
hurdles for democracy and human rights in Turkey".
- It calls on the Grand National Assembly and the
Government of Turkey:
i. to show the political will to change the attitude
towards force in general and torture in particular;
ii. to do whatever they can to prevent torture;
iii. to review the Anti-Terrorism Act of 12 April
1991;
iv. to reduce the maximum period under which
detainees may be held in police custody, improve its conditions and
make sure that, during such custody, there are no more legal and
practical obstacles for detainees to be visited by their close
relatives, lawyers or medical doctor;
v. to improve the training of the police;
vi. to fully respect the identity, freedoms and
rights of the Kurdish population in South-East Turkey;
vii. to lift the existing restrictions on trade
unions.
- The Assembly also calls on the Government of
Turkey:
i. to follow the examples of Austria, Denmark and
the United Kingdom and to make public the reports of the visits which
the European Committee for the Prevention of Torture paid to Ankara,
Diyarbakir and Istanbul in September 1990 and September-October 1991;
ii. to reconsider, in the light of recent
jurisprudence of the European Commission on Human Rights, the
reservations it made when accepting and renewing the right to
individual petitions under Article 25 of the Human Rights Convention;
iii. to strictly apply the principle, laid down in
paragraph 2 of Article 6 of the European Convention on Human Rights
that "Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law;
iv. to improve its control of the police and of
police-stations;
v. to put an end to the state of exception in the
south-eastern provinces .
- Finally the Assembly appeals to Turkey (and to all
those Council of Europe states which have not yet done so) to ratify
the following Protocols to the European Convention on Human Rights:
i. No. 4 on securing certain rights and freedoms
other than those included in the Convention and in Protocol No. 1
(1963; ETS No. 46);
ii. No. 6 on the abolition of the death penalty
(1983; ETS No. 114);
iii. No. 7 adding certain additional rights to the
Convention (1984; ETS No. 117);
iv. No. 9 introducing the possibility for individual
applicants to bring their case before the Court of Human Rights (1990;
ETS No. 140).
Draft Order
- The Assembly, a political body, owes its authority
to the fact that it gives the highest priority to upholding human
rights and parliamentary democracy. It desires to fully support all the
numerous democratic forces in Turkey and those who have the earnest
will to protect fundamental rights and freedoms. Therefore, it
instructs its Political Affairs Committee and its Committee on Legal
Affairs and Human Rights to continue to follow developments closely.
- It moreover invites its Committee on Legal Affairs
and Human Rights to continue its study of the conditions of detainees
pending trial in Turkey, including the rights of access of lawyers to
their clients, and to submit its conclusions to the Assembly as soon as
possible.
THE RIGHTS OF MINORITIES
The Parliamentary Assembly of the Council of Europe
adopted on February 5, 1992 a recommendation as regards the rights of
minorities.
The votes by the Turkish members of the Assembly
showed once more the contradictions of the Turkish regime on the
minority questions. As the deputies from the Correct Way Party
(DYP), the Motherland Party (ANAP) and the Welfare Party (RP) were
voting against the recommendation, two deputies from the Social
Democrat Populist Party (SHP), Ismail Cem and Ercan Karakas, voted for;
another deputy from the same party, Istemihan Atalay, abstained.
During the debate on the draft recommendation;
Bülent Akarcali (ANAP) opposed to the text as follows: “I consider the
presentation of this report to be untimely. In politics, it is not
enough to defend good causes alone; it is necessary, even imperative,
to do it in a convenient period. I think that it is not at all a
convenient period to adopt this report.”
The recommendation, adopted by 98 votes against 31,
reads:
• History has transformed the continent of Europe
into a mosaic of peoples, who differ according to language, culture,
customs and traditions and religious practice.
The mixing and overlapping of these peoples is such
that it is impossible to define their geographical boundaries fully and
exclusively. The national frontier which emerged from two world wars
did not achieve this. Nor will those of the future, whatever form they
take.
In a democratic state there can be no second-class
citizens: citizenship is the same for all. The first and last guarantee
of this equality of rights and duties lies in scrupulous respect for
human rights on the part of states and in the ratification by them of
the European Convention on Human Rights.
• Within this common citizenship, however, citizens
who share specific characteristics (cultural, linguistic, religious
etc.) with others may wish to be granted and guaranteed the possibility
of expressing them.
• It is these groups sharing such specific features
within a state that the international community has called
"minorities", since the first world war, without that term denoting any
inferiority whatever in this or that field.
• There is an urgent need for international
decisions and commitments which can be rapidly implemented in the area
concerned. Peace, democracy, freedoms and respect for human rights in
Europe are at stake.
• The different intergovernmental organs of the
Council of Europe will soon be required to give their opinions to the
Committee of Ministers, so as to enable the latter to conclude its work
on the draft Charter for Regional or Minority Languages. The Assembly
is aware of certain weaknesses already noted in this draft. However, as
it does not wish to delay matters, the Assembly recommends that the
Committee of Ministers conclude its work as quickly as possible and
that it do its utmost to ensure the rapid implementation of the Charter.
• The Assembly has taken note of the terms of
reference given to the Steering Committee for Human Rights by the
Committee of Ministers. Under those terms of reference, consideration
is to be given to the proposal for a convention for the rights of
minorities. However, although it contains an excellent definition of
the rights to be guaranteed, the proposed convention appears to be
deficient on the question of supervisory machinery. Thus, the Assembly
considers it preferable and urgent to elaborate an additional protocol
to the European Convention on Human Rights and it welcomes the fact
that the Austrian Minister submitted the draft of such a protocol to
his colleagues at the meeting of the Committee of Ministers on 26
November 1991.
• In addition, although this can in no way
substitute for a legal instrument, the Assembly recommends the drawing
up and rapid adoption by the Committee of Ministers of a declaration
setting out the basic principles relating to the rights of minorities,
on which there is already international consensus.
The Assembly considers that such a declaration
should serve as a basic reference against which applications for
membership of the Council of Europe can be judged and which would
underpin the positions adopted by the Council of Europe and the
activities of the mediating body proposed below.
• In its Order No. 456 (1990), the Assembly decided
to play a mediating and conciliating role in conflicts involving
minorities whenever it was asked to do so. In order to strengthen this
Council of Europe role, the Assembly recommends that the Committee of
Ministers give the Council a suitable mediation instrument, associating
the highest competent authorities at international and national level.
This body would have power to do three things:
i. To observe and record: this
would involve constant monitoring of changes in the situation of
minorities in all the European states;
ii. To advise and forestall: it
would also have the task of taking timely action to help states and
minorities to define the rules governing their relations before open
conflict developed;
iii. To discuss and mediate: in
cases of open conflict, it would be expected to draw on its
international backing and own achievements in making on-the-spot
efforts to reconcile the parties to the dispute and to find lasting and
peaceful solutions to the problems which oppose them.
In view of the extreme urgency of the proposed
measures, the Assembly requests the Committee of Ministers to implement
this recommendation before 1 October 1992.
RESTRICTION ON CHILDREN RIGHTS
According to the daily Hürriyet of December 27,
1991, the Ankara Government put three reserves to the Convention
on Children Rights, adopted by the United Nations. These reserves put
restrictions on the rights of the children belonging to ethnic
minorities. These restrictions have also been approved by the Legal
Affairs Committee of the National Assembly.
The articles which were not adopted by Ankara
concern:
- using in the media the language of the children
belonging to a minority,
- developing their culture of origin,
- recognizing the equality and tolerance between
children of different ethnic origins.
