Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders in Turkey

Fordham International Law Journal, Dec 1998

In September 1997, Fordham Law School's Joseph R. Crowley Program in International Human Rights and the Lawyers Committee for Human Rights ("Lawyers Committee") undertook a two-year project to study Turkey's State Security Court system and to evaluate it against international fair trial standards. This special report is an amalgamation of their findings.

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Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders in Turkey

FORDHAMINTERNATIONALLAWJOURNAL Fordham International Law Journal Lawyers Committee for Human Rights - 1998 Article 9 Rights Defenders in Turkey Joseph R. Crowley Program In September 1997, Fordham Law School’s Joseph R. Crowley Program in International Human Rights and the Lawyers Committee for Human Rights (”Lawyers Committee”) undertook a two-year project to study Turkey’s State Security Court system and to evaluate it against international fair trial standards. This special report is an amalgamation of their findings. JUSTICE ON TRIAL: STATE SECURITY COURTS, POLICE IMPUNITY, AND THE INTIMIDATION OF HUMAN RIGHTS DEFENDERS IN TURKEY Report of the Joseph R. Crowley Program/Lawyers Committee for Human Rights: Joint 1998 Mission to Turkey.* INTRODUCTION In recent years, Turkey's human rights record has emerged as a critical issue in its relations with its allies in Europe and North America. The Turkish government has been criticized for serious violations of human rights ranging from restrictions on * The Lawyers Committee for Human Rights/Crowley Program Joint Delegation to Turkey benefitted from the contributions, support, and advice of many individuals and organizations. First, we are indebted to the scores of lawyers, prosecutors, judges, and other informed individuals who have met and consulted with the delegation during our visit and the drafting of this report. Second, several Turkish human rights organizations and professional associations have been helpful to us in our work. These include the Human Rights Foundation, the Human Rights Association, the Organization of Human Rights and Solidarity for Oppressed People (Mazlum Der), and the Contemporary Lawyers Association. The bar associations of Istanbul and Diyarbakir have been particularly helpful to our work, serving as co-hosts of the joint delegation and providing much advice and hospitality at other times. The bar associations of Adana, Ankara, Adiyaman, Batman, Izmir, and Malatya, and the Union of Turkish Bar Associations have also assisted us. The wisdom and counsel of lawyers Senal Sarihan and Sezgin Tanrikulu have been particularly valuable to the joint delegation and to the Lawyers Committee in its work over the past few years. We are grateful to all of the above. None of the above individuals or organizations bears any responsibility for the views and opinions expressed here. The Turkish government has been unfailingly cooperative and helpful in facilitating our access to officials and in providing comments on our work, some of which are reflected in this report. We have particularly appreciated the comments of Prof. Dr. Hikmet Sami Turk, now Minister of Justice, and the helpfulness of Dr. Serif Unal, Director General for International Cooperation at the Ministry of Justice and Namik Tan, Counsellor at the Embassy of Turkey to the United States in Washington, D.C. The Directors of the Crowley program would like especially to thank Dean John Feerick and the Fordham Law School alumni for supporting the work of the Crowley program; Robert Quinn, the 1998-1999 Crowley fellow, who invested countless hours preparing this report for publication; and Michael Posner, Executive Director of the Lawyers Committee for Human Rights, for his willingness to collaborate on this project. speech and association to the use of torture.' To its credit, the government has expressed a commitment to improving its human rights record, despite difficult domestic problems including violent confrontation with the Kurdish Workers Party ("PKK") in ,southeastern Turkey.2 Reflecting this commitment, Turkey has ratified a number of important human rights treaties including the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention" or "Convention") and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture").' Notwithstanding the government's expressed commitment to ending abuses and its international obligations to do so, serious human rights violations persist. Although this report documents a number of these violations directly, it focuses on obstacles within the Turkish legal system to the improvement of Turkey's human rights record more generally. These obstacles include the existence of specialized political courts, police impunity for human rights violations, and the harassment of lawyers and human rights advocates who seek to hold the state accountable for these violations. Turkey's State Security Courts (or "SSCs") comprise a system of special courts operating throughout Turkey, the jurisdiction of which is limited to political offenses and serious criminal offenses deemed threatening to the State. A number of features of the State Security Court system raise questions regarding the availability of a fair trial to defendants tried within the system. For example, the participation of a military judge on every State Security Court panel undermines the independence of the courts, particularly given the -nature of the court's jurisdiction and the role of the military in enforcing Turkey's strict Anti-Terror Law. In addition, the SSCs are governed by special procedures that afford fewer protections for defendants than do procedures in Turkey's ordinary criminal courts. In particular, suspects accused of political crimes within the jurisdiction of SSCs are subject to extended periods of incommunicado detention during which they may be tortured. Though the systematic use of torture is well-documented, police responsible for such acts are rarely held accountable. Finally, lawyers representing defendants in the State Security Courts are often subject to intimidation and harassment, sometimes undermining the effectiveness of their defense. In September 1997, Fordham Law School's Joseph R. Crowley Program in International Human Rights4 and the Lawyers 4. The Joseph R. Crowley Program in International Human Rights ("Program" or "Crowley Program") at Fordham University School of Law promotes teaching, scholarship, and advocacy in international human rights law. Principal elements of the Program include an annual fact-finding mission to an area of the world with significant human rights concerns, a student outreach project involving students in course work, research and human rights internships, both domestically and abroad, and a speaker series, bringing many of the world's foremost experts in the field onto campus, stimulating dialogue and promoting scholarship. The Crowley Program approaches its work in these areas in light of Fordham Law School's commitment to public service, its widely recognized strength in the field of international law, and its close proximity to the world's leading centers for human rights advocacy. For more information about the Crowley Program, visit its website at <http://www.fordham.edu/law/centers/crowley/ home.htm>. Committee for Human Rights5 ("Lawyers Committee") undertook a two-year project to study Turkey's State Security Court system and to evaluate it against international fair trial standards. The project included extensive study of Turkish law and procedure, including a review of previous reports by the Lawyers Committee and other international and Turkish non-governmental organizations, and information provided by the Turkish government, among other sources. In May and June 1998, an eleven person delegation 6 spent two weeks visiting ten cities in Turkey.7 During the mission, delegation members interviewed lawyers, prosecutors, judges, government officials, and torture victims and observed hearings in both State Security Courts and ordinary penal courts.8 This report documents our investigation, summarizes our findings, and sets out our recommendations to the Turkish government.9 The report is divided into three major parts. Part I addresses the right to a fair trial in the State Security Courts. Following an overview of the State Security Court system, this Part analyzes problems with the independence of the SSCs, particularly the participation of a military judge, and then proceeds chronologically through the trial process. It addresses the role of the prosecutor in securing a fair trial, with particular focus on the prosecutor's relationship with the police and with defense 5. Since 1978, the Lawyers Committee for Human Rights ("Lawyers Committee") has worked to protect and promote fundamental human rights. Its work is impartial, holding all governments accountable to the standards affirmed in the International Bill of Human Rights. Its programs focus on building the legal institutions and structures that will guarantee human rights in the long term. Strengthening independent human rights advocacy at the local level is a key feature of the Lawyers Committee's work. For more information about the Lawyers Committee, visit their website at <http:// www.lchr.org>. 6. The members of the delegation from the Crowley Program were Professors Tracy Higgins and Martin Flaherty (Co-Directors, Crowley Program), Michael Sweeney (Crowley Program Fellow), Marko Maglich, Ayako Nagano, Kysseline Jean-Mary, Joan Xia, Nnennaya Okezie, and Dyanna Pepitone (Crowley Program Scholars). The representatives of the Lawyers Committee were Neil Hicks and Tigran Eldred. The delegation benefitted from the help of seven very able interpreters: Muge Kinacioglu, Ayliz Baskin, Aykut Kazanci, Tolga Ozalun, Dilek Kurban, Ayse Artun, and Pinar Erdogdu. 7. The cities were Adana, Ankara, Adiyaman, Batman, Diyarbakir, Istanbul, Izmir, Manisa, Mardin, and Urfa. 8. A detailed itinerary listing the mission interviews is attached in Appendix One. 9. A version of this report entitled Obstaclesto Reform: Exceptional Courts, PoliceImpunity and Persecution of Human Rights Defenders in Turkey is available from the Crowley Program in International Human Rights and the Lawyers Committee for Human Rights. attorneys. It then describes in some detail the right to counsel and obstacles to effective representation by defense counsel in State Security Courts. Finally, this Part addresses the use of coercive interrogation procedures by the anti-terror police and the use of coerced testimony in SSC proceedings. Part II elaborates on the problem of coercive investigation techniques by documenting the existence of a climate of impunity for police who engage in torture and other serious violations of human rights. Part II begins by noting that torture of individuals held in detention continues to be one of the most serious human rights problems in Turkey. It then reviews jurisdictional hurdles to prosecution of police for torture, the most important of which is a much-criticized law requiring bureaucratic review and approval to prosecute any civil servant accused of a crime. Part II also addresses other obstacles including reluctance on the part of prosecutors to pursue these cases, understaffing of prosecutors' offices, police interference with the collection of evidence such as forensic evidence of torture, and a reluctance on the part of the court to convict and impose appropriate sentences. Part III addresses the separate but related problem of the harassment and intimidation of lawyers and human rights advocates. This Part begins by examining the harassment and unfair prosecution of lawyers, a problem that further compromises the fairness of proceedings in State Security Courts by undermining the effectiveness of counsel in such proceedings. It then addresses the regulation and intimidation of human rights advocates, particularly the use of the Anti-Terror Law to restrict their freedom of speech and association. Because much of the work of defense lawyers and human rights advocates is deemed threatening to the Turkish state, these individuals may become defendants themselves in the SSC system, thereby facing detention and the possibility of torture, conviction, and imprisonment. This report concludes with a list of recommendations to the Turkish government for addressing the problems and improving its human rights record. A. Introduction The right to a fair trial is fundamental to a broad set of human rights in that a properly functioning justice system protects individuals from the unlawful and arbitrary denial of basic rights and freedoms.10 In light of its importance, international standards defining the right to a fair trial require states to safeguard the fairness of procedures beginning from the moment of arrest and detention through trial and the final stages of the judicial process. Hence, the right to a fair trial implicates a wide range of personnel and procedures connected with the criminal justice system. This Part examines the right to fair trial in Turkey's State Security Courts as measured against Turkey's obligations under international law. SSCs are a part of a system of special courts in Turkey designed to adjudicate political and serious criminal cases deemed threatening to the security of the state. SSCs have existed since 1973, when the legislature created them in accordance with then-governing 1962 Turkish Constitution.1 ' In 1976, the Constitutional Court annulled the law creating the SSCs, ending the SSC jurisdiction for a time. The SSC system was restored in the 1982 Turkish Constitution, itself the result of a military takeover of the civilian government. 12 The current Turkish Constitution specifically provides for SSCs, describing them as special courts "established to deal with offences against ,the indivisible integrity of the State with its territory and nation, the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and offences directly involving the internal and external security of the State."' 3 Currently, there are eight SSCs in Turkey, some with multi1999] pie chambers. 4 Each SSC is comprised of a president, two full members, two substitutes, and a prosecutor. The president, one full member, and one substitute must be civilians. The other full member is a military judge. 5 SSCs differ from regular courts in a variety of ways; these differences regard the number ofjudges, the use of special judges, the use of special prosecutors, the use of special procedures, and reliance on a special investigative arm of the security forces. The structure and scope of activity of the SSCs raise serious questions in light of Turkey's obligation under international law to protect a defendant's right to a fair trial. This right, however, depends not only on the conduct of the trial but also on the totality of the criminal justice system. 16 The fairness of the SSC trials therefore can only be assessed by taking into consideration every stage of the process from initial detention, through investigation, to the eventual court proceedings.1 7 In assessing the right to fair trial in the SSCs, this Part considers several of the component elements of that right at each of these stages. After reviewing Turkey's obligations under international law, this Part addresses the role of judicial independence in the SSC system, especially the structural foundation of the SSCs in the Turkish Constitution and the procedures for appointing both military and non-military judges to the SSCs. This Part next considers the prosecutor's role in collecting and presenting evidence and in safeguarding the rights of defendants, including those detained for pre-trial interrogation. It then addresses the right to counsel in connection with the extended period of incommunicado detention and the role of defense counsel in the SSC system. Finally, this Part focuses on the period of pre-trial detention in state security cases, the role, of coercive interrogation techniques during this period, and the use of torture-induced testimony in SSC proceedings. B. Turkey's Obligations Under InternationalLaw The primary international instrument ratified by Turkey and bearing on the right to fair trial is the European Convention. 8 Article 5 of the European Convention sets out standards governing the pre-trial detention phase of a proceeding. Article 6 contains standards for a fair hearing. These standards, which are binding in Turkish and international law,1 ° include the following rights. " Protection from the arbitrary deprivation of the right to liberty and security of person. 20 * The right to be informed promptly of the reasons for arrest and any charges.21 " The right to be brought promptly before a judicial authority and to trial within a reasonable time. 22 * The right to challenge the lawfulness of detention before a court (habeas corpus). 23 " The right to compensation for wrongful imprisonment.24 " The right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. 25 " Presumption of innocence. 26 * Due process safeguards including defendants' rights to be informed in detail of the case against them.2 7 * The right to adequate time and facilities and to legal assistance in preparing a defense. 8 " Defendants' right to present witnesses on their behalf and to examine prosecution witnesses.2 9 Although comprehensive, this list is not fully exhaustive with respect to the requirements of fairness in criminal proceedings. For example, the right to counsel appears expressly in Article 6(3), which deals with the rights of defendants in criminal trials. 30 The European Court of Human Rights ("European Court" or "Court") has also held that this right is implicit in both the Article 5(3) right of the detained person to be "brought promptly before a judge" and the Article 5(4) right of detained persons to "take proceedings" of habeas corpus.3' The European Court has also found additional features implicit in the right to counsel, including the right to communicate with counsel,3 2 and confidentiality in lawyer-client relations. 33 Although not without limits, 34 these features of the right to counsel are applicable to FORDHAMITERNATIONALLAWJOURNAL Turkey under the European Convention and are of particular importance because domestic Turkish law does not require the state to provide lawyers for defendants in the SSCs. The European Convention permits a state party to derogate from certain obligations "in time of war or other public emergency threatening the life of the nation."3 5 Turkey has so derogated from its obligations under the European Convention, including obligations relating to fair trial, citing the threat to the nation caused by internal terrorist activity, principally aligned with Kurdish-separatist factions including the PKK. Between 1990 and 1992, Turkey derogated from Articles 5, 6, 8, 10, 11, and 13 of the European Convention.16 Since 1992 it has reported its derogation solely from Article 5.37 Neither the European Court nor the European Commission on Human Rights ("European Commission" or "Commission") has questioned Turkey's stated grounds for derogation. In its 1996 decision in Aksoy v. Turkey, for example, the Commission simply ruled that "[i]n view of the grave threat posed by terrorism in this region, the Commission can only conclude that there is indeed a state of emergency in South-East Turkey which threatens the life of the entirety of the proceedings, has deprived the accused of a fair hearing. See Murray v. United Kingdom, Eur. Ct. H.R. judgment of Feb. 8, 1996, 1 Reports of Judgments and Decisions 30, 54-55, 63 (1996-I). The issue of the lawfulness of a restriction, therefore, is determined by the effect on the particular individual's trial, not by the legality or the illegality of the measures in the domestic law. The Court has observed that "even a lawfully exercised power of restriction is capable of depriving an accused, in certain circumstances, of a fair procedure." Murray, at 55, 65. The Court has found several restrictions permissible. For example, in a case-in • which the defendants were accused of terrorist offenses, the Court found permissible a three or four-week initial ban on visits by lawyers to arrested persons; a requirement of prior notice to the authorities for visits; the separation of lawyer and client by glass paneling; and a ban on defense lawyers tape recording visits with detained clients. The Court has required, however, that paper correspondence between defense lawyers and detained clients be permitted without delay or interruption, although judicial supervision is permissible. See Kr6cher & M61ler v. Switzerland, App. No. 8463/78, 26 Eur. Comm'n H.R. Dec. & Rep. 24, 53-54, 15 (1981). In Campbell & Fell v. United Kingdom, the Court stated that "there may be security considerations which would justify some restriction on the conditions for visits by a lawyer to a prisoner." Campbell & Fell v. United Kingdom, 65 Eur. Ct. H.R. (ser. B) at 45-46, 1 13 (1982 ). In one case, for example, there was a question of risk that evidence might be suppressed. See Can v. Austria, 95 Eur. Ct. H.R. (ser. A) (1985). The point was not discussed in depth because a settlement was reached in the case. 35. European Convention, supra note 3, art. 15(1), at 233. 36. See 33 Y.B. EUR. CoW. ON H.R. 14 (1990). 37. See 35 Y.B. EUR. CoNv. ON H.R. 16 (1992). Despite Turkey's declared derogation, the Court has not shrunk from finding violations of Article 5 in complaints brought before it under the right of individual petition provided for in Article 25 of the European Convention.3 9 The Court has repeatedly based its decisions in these cases on findings that the particular measures have not been "strictly required by the exigencies of the situation" as required under Article 15(1), which deals with derogation in time of war or other public emergency.4" The Court has dealt with complaints on a case-by-case basis rather than finding a systemic failure of pre-trial detention procedures in SSC cases.4 ' The Court has also taken a very broad view of fair-trial guarantees. The Court has emphasized that in assessing fair-trial issues, it is important to look at the entire process to determine the point at which various component rights are implicated. Similarly, the Commission has stated that Article 6 rights "must be guaranteed throughout the process, 4 2 rather than at a particular stage in them. Turkey has also ratified both the U.N. Convention Against Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("European Torture Convention"). s Both of these treaties absolutely prohibit torture during criminal interrogation and require 38. Aksoy v. Turkey, Eur. Ct. H.R. judgment of Dec. 18, 1996, 26 Reports of Judgments and Decisions 2260, 2304, 179 (1996-VI) (Commission report). 39. Since 1995, the European Court has found violations of Article 5 of the European Convention against Turkey in the following cases: Mitap and Mfiftfioglu v. Turkey, Eur. Ct. H.R. judgment of Mar. 25, 1996, 6 Reports ofJudgments and Decisions 402 (1996-I); Yagci & Sargi v. Turkey, 319 Eur. Ct. H.R. (ser. A) (1995); Mansur v. Turkey, 319 Eur. Ct. H.R. (ser. A) (1995); Aksry, at 2264, 3; Sakik and Others v. Turkey, Eur. Ct. H.R. judgment of Nov. 26, 1997, 58 Reports of Judgments and Decisions 2609, 2628, Holding 2, 5, 7 (1997-VII); Kurt v. Turkey, Eur. Ct. H.R. judgment of Apr. 25, 1998, 74 Reports ofJudgments and Decisions 1152, 1197, Holding 5 (1998-Il). 40. Aisling Reidy et al., Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey, 15 NETH. Q. HUM; RTS. 161, 162 (1991). 41. For a full discussion of the challenges facing the mechanisms illustrated by Turkey's and other nations' near-permanent state of emergency, see Oren Gross, "Once More Unto the Breach": The Systemic Failureof Applying the European Convention on Human Rights to EntrenchedEmergencies, 23 YA.LE J. ITrr'L L. 436 (1998). "that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceed44 ings. Beyond the binding international treaties ratified by Turkey, other international instruments are relevant to a consideration of the right to fair trial before SSCs. The U.N. Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment 4 5 amplifies and reinforces the due process rights and pre-trial detention safeguards contained in the European Convention. Similarly, the U.N. Basic Principles on the Independence of the Judiciary4 6 (or "Principles on Lawyers") establish more detailed standards in the area of judicial independence, while the U.N. Basic Principles on the Role of Lawyers47 elaborate the right of access to counsel provided for in the binding treaty documents. Although not treaties, these instruments represent an authoritative set of internationally-recognized standards adopted by consensus by the U.N. General Assembly. 48 In each of these instruments, states are exhorted to implement the principles therein and in so doing bring practices in every country closer to the standards envisaged in the Universal Declaration of Human Rights4 9 and the treaties derived from it, including the European Convention. 1999] C. State Security Courts andJudicialIndependence State Security Courts fulfill a powerful function within the Turkish State as described in the ringing rhetorical language of the Turkish Constitution. The 1982 Constitution stipulates countering threats to the integrity of the eternal Turkish Nation and motherland as the reason for its promulgation.50 The preamble of the 1982 Constitution, which, according to Article 4, shall not be amended nor shall its amendment even be proposed, proclaims the absolute supremacy of the will of the nation. The preamble further asserts that "no protection shall be afforded to thoughts and opinions contrary to Turkish National interests, the principle of the existence of Turkey as an indivisible entity with its State and territory, Turkish historical and moral values, or the nationalism, principles, reforms and modernism of Ataturk." 51 In the 1982 Constitution, the interests and integrity of the Turkish State clearly take priority over the rights and liberties of its citizens. Indeed, a recent report by rapporteurs of the Council of Europe Parliamentary Assembly called attention to the negative impact on human rights in Turkey of the language of the 1982 Constitution. The report stated: A basic concern of the Assembly, however, is still not being addressed. The Turkish Constitution, adopted under military rule in 1982 leaves room for (although it does not necessarily entail) conceptions of the relationship of the State to the individual which are authoritarian and not compatible with the oCnouHncuimlaonf ERuigrhotps.e5's2 Statute and the European Convention The rapporteurs recommended adjustment to the language of the preamble as one possible way to address concerns about the authoritarian slant of the Constitution. 53 In the context of constitutional language emphasizing the primacy of the state, the establishment of SSCs as special courts with jurisdiction over cases of a political nature has proven highly problematic. The removal of political cases from courts of general jurisdiction to the SSCs has led to an institutional bias within the SSCs in favor of security at the expense of individual liberty. After all, the very existence of SSCs is justified by the threat to the state posed by the crimes comprising their jurisdiction. As a result, the SSC system has lost the necessary balance between security and liberty that is found in the European Convention and in much other international human rights law.5 4 In sum, the SSC has become a primary instrument for repression in Turkey. The military-enshrined in the Constitution as the guardian of the State, endowed with executive power through the National Security Council, and with judicial power through the presence of a military officer on the judicial panel in the SSC-is both the interpreter and enforcer of what are described in the Constitution as "Turkish historical and moral values" or the "will of the nation. 55 2. Judicial Independence and Military Judges The international community generally disapproves of courts in which military judges exercise jurisdiction over civilians because the independence of such courts cannot be guaranteed.5 6 This subsection reviews the characteristics of the State 54. For example, in Brogan and Others v. United Kingdom, the European Court remarked on the need, inherent in the European Convention system, for a proper balance between the defense of the institutions of democracy in the common interest and the protection of individual rights. Brogan and Others v. United Kingdom, 145 Eur. Ct. H.R. (ser. B) at 27, 48 (1989 ). 55. TuRK.CONST. pmbl. Indeed, just as in a theocracy where priestly rulers interpret the requirements of the deity and thus determine law and its application, in Turkey the military guardians interpret what the sacred state requires in terms of obedience from its citizens. The objection on human rights grounds to theocracy is not, after all, that such a system of political authority derives from God. Rather, it is that in such a system power falls into the hands of an unaccountable group of rulers who claim special authority to derive law from sacred texts. In Turkey, the military establishment, which includes military judges, has a constitutionally established special prerogative to interpret the commands of the secular deity of the Turkish nation. 56. See, e.g., Independence and Impartiality of theJudiciary,Jurors and Assessors and the Independence of Lawyers: Report of the Special Rapporteur,U.N. ESCOR, 51st Sess., Provisional Agenda Item 10, 34, U.N. Doc. E/CN. 4/1995/39 (1995) (report of Mr. Dato Param Cumaraswamy of Malaysia, Special Rapporteur of the United Nations Commission on Human Rights, submitted on February 6, 1995) . Security Courts that bear on the question of the independence of such courts, specifically the participation of a military judge. The military judges' presence on a SSC panel violates the requirement of an independent tribunal in two important ways. First, both the manner and term of appointment for military judges create dependence on the military establishment. Second, the participation of military judges in criminal procedures against civilians represents a conflict of interest due to the role of the military in domestic law enforcement. The independence of a tribunal depends in part on procedures governing the manner of appointment of judges, their term of office, and limitations on their transfer and removal from office.5 7 A review of the procedure for the appointment and removal of military judges in SSCs reveals that the military strongly influences each stage of the process. Pursuant to the Military Legal Service Act,58 the Secretary of Defense and the Prime Minister appoint military judges by decree, subject to the approval of the President. Although the appointment procedure must take into account the opinion of the Court of Cassation and the Ministry of Justice, a special committee of military members effectively controls the process. 59 The committee is composed of the personnel director and legal advisor of the General Staff, the personnel director and legal advisor of the staff of the branch of the military in which the candidate is serving, and the Director of Military Judicial Affairs at the Ministry of Defense. SSCjudges are appointed to a four-year term.60 For military judges, reappointment depends on the committee's evaluation of the judge's performance and ability. In evaluating the aptitude of military judges to serve on SSCs, the committee members must review assessment reports drawn up by the Minister of Justice and the Secretary of Defense. 61 The Minister of Justice and Secretary of Defense also determine the advancement of military judges in salary, rank, and seniority.6 2 Militaryjudges are therefore subject to oversight by their military superiors, even while sitting on SSCs.6 Whether this evaluation and appointment process actually affects the decision of a military judge in a particular case is not dispositive of the question of judicial independence. The degree to which the interests of the military influence a case may be indiscernible to an objective review. Nevertheless,judges who face reevaluation and reappointment every four years must feel the pressure of those superior officers evaluating them. Moreover, their presence creates the appearance of partiality, thereby undermining public confidence in the integrity of the system. The military judges' continuing accountability to their superior officers after their tenure on the SSCs poses perhaps an even greater threat to their independence on the bench. The military judge's subsequent career advancement and future assignments depend upon evaluation by military superiors. Thus, the legal decisions that military members of the SSCs render may well determine their professional future whether or not they remain on the bench. For example, a ruling viewed by superiors as against the military's interest could subject a judge to reassignment in a less desirable position, a loss of status, career frustration, and even disciplinary measures. Such possibilities undermine the capacity for independent judgment of the military members of SSC tribunals. The second important threat to the independence of the SSCs stems from the connection between the interests of the military and the nature of SSC jurisdiction.64 The State Security Courts have jurisdiction over crimes threatening the integrity of 61. See id. Additional Section 7 (translated in Incal, at 1559, 29). 62. See id. 63. See, e.g., id. §§ 18(1), 29, 38 (translated in Incal at 1560, 29) . 64. In extraordinary situations such exceptional measures may be necessary, but they must be temporary and courts must scrupulously provide all the fair trial guarantees of international law. See GeneralComment 13, supra note 16. The Turkish SSC system does not satisfy these conditions. For example, the Turkish SSC system is not temporary. The SSCs have operated for over a decade and a half. the Turkish State, of which the Turkish military is the ultimate guarantor under the 1982 Constitution. In fulfilling this function, the military has extended its operation to both ordinary law enforcement and politics. As to the former, the military functions in connection with, and sometimes in lieu of, ordinary police to enforce the Anti-Terror Law in certain regions of the country. As to the latter, both the coup of 1980 and the military's overt role in forcing the Islamic Refah (Welfare) Party from power in 1997 indicate an ability and willingness to override the democratic process. Under the circumstances, the presence of military judges on the SSCs seriously undermines the ability of SSCs both to adjudicate fairly cases involving violations of laws that the military helps to enforce and to protect the rights of individuals deemed by the military to be threatening to the state. These concerns have been expressed by both the European Commission and the European Court. Both the Commission and the Court have found that the presence of a military judge on SSC panels violates a defendant's right to an independent and impartial tribunal. For example, in Incal v. Turkey,6 5 the European Commission found that the Turkish SSCs violated Article 6(1)66 of the European Convention. The Commission is of the view, under the current legislation on the composition of the National Security Courts, the manner of appointment and assessment of military judges raises a number of questions and may cast doubt on the image of independence which they should project. The Commission notes in this regard that military judges are accountable to their commanding officers in their capacity as military officers. [Moreover,] [t]he fact that a military judge participates in criminal proceedings against a civilian, in cases not in any way involving the internal order of the armed forces, highlights the unusual nature of these proceedings and can also be regarded as an intervention by the armed forces in a non-military judicial domain, that is, a domain which should remain, in a democratic country, above any suspicion of de65. Incal v. Turkey, Eur. Ct. H.R. judgment of June 9, 1998, 78 Reports ofJudgments and Decisions 1547 (1998-IV). 66. Article 6(1) states, "In the determination of his civil rights and obligations of any criminal charge against him, everyone is entitled to a fair and' public hearing... by an independent and impartial tribunal." European Convention, supra note 3, art. 6(1), at 228. pendence or partiality. 67 The European Court also found that the presence of a military judge on the SSC's panels violates the European Convention's guarantee of an independent and impartial tribunal. Noting that the military judges sitting on the SSCs are still soldiers and thereby under the control of the executive, that their military superiors assess and discipline them and determine their career, and that their term of office is only four years and renewable, the Court found that an applicant "could legitimately fear that because one of the judges... was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case."6 8 3. Judicial Independence: The Appointment and Promotion of Non-Military Judges and Prosecutors The Turkish Constitution guarantees judicial independence of non-military judges in a variety of ways. The Constitution states that "U]udicial power shall be exercised by independent courts on behalf of the Turkish Nation."6 " It insulates the judiciary from outside influence by prohibiting orders or instructions relating to the exercise ofjudicial power from any authority and any legislative debate concerning a pending trial, and it provides that the legislative and executive branches must implement court decisions without alteration or delay.7" The Constitution also provides judges with security of tenure7 1 andputs the bur67. Incal v. Turkey, Eur. Ct. H.R. judgment ofJune 9, 1998, 78 Reports ofJudgments and Decisions 1547, 1587, 74-75 (1998-IV) (Commission report). 68. Id. at 1573, 72. 69. TURK. CONST. art. 9. 70. Id. art. 138. Article 138 states that: Judges shall be independent in the discharge of their duties; they shall give judgement in accordance with the Constitution, law, and their personal conviction conforming with the law. No organ, authority, office, or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, or send them circulars, make recommendations or suggestions. No question shall be asked, debate held, or statement made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial. Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution. Id. 71. Id. art. 139. Article 139 states that: Judges and public prosecutors shall not be dismissed, or retired before the age 0" CC U .0 0 U .0UE E UO C~ *~ cG zr m , - 5 :. W w APPENDIX TWO TRIAL OBSERVATION REPORTS: THE DIYARBAKIR PRISON KILLINGS INTRODUCTION From May 22 to June 5, 1998, the Joseph R. Crowley Program in International Human Rights ("Crowley Program") and the Lawyers Committee for Human Rights ("Lawyers Committee") conducted a fact-finding mission in Turkey that focused, interalia,on the prosecution of security officers for alleged violations of human rights. One of the most important prosecutions is the trial of sixty-five police officers and gendarmes for the deaths of ten inmates of Diyarbakir E-Type Prison ("Diyarbakir Prison Case").' Although the killings took place on September 24, 1996, the case was still pending as of May 17, 1999. On June 5, 1998, a member of the delegation observed a hearing in the case. A second Lawyers Committee delegation observed a hearing on January 29, 1999. Below are the trial observation reports of each delegation, followed by a brief assessment of the significance of their observations to the broader issue of police impunity. The reports are intended to provide the reader with a sense of how the procedural obstacles to effective redress of police abuse in Turkey, analyzed in the main report, are manifested in an important impunity case. I. TRIAL OBSERVATION AND INTERVIEWS Each of the two following accounts includes interviews with lawyers litigating the case, as well as observations of the hearings themselves. A. June 5, 1998 Hearing2 On June 5, 1998, we arrived at the court building at approximately 9:30 a.m. There was no unusual commotion outside the courthouse, although we later learned that several members of the victims' families had been denied entrance to the building. 1. For a complete summary of the facts of the case, see notes 225-39 and accompanying text in the main report. 2. Marko Maglich of Fordham University School of Law with a translator represented the Crowley Program/Lawyers Committee delegation at the June 5, 1998 hearing. We saw no journalists. The hearing was scheduled to begin at 10:00 a.m., but was delayed. We entered the offices of the Diyarbakir Bar Association, located inside the judiciary building, and spoke with victims' lawyers while we waited for the case to be called. 1. Interviews with the Victims' Lawyers We met with Sezgin Tanrikulu, Tahir El~i, and Fethi Gfinfis, who represent the victims and their families. They briefly reported on what had happened in the previous hearing and since, and on what they expected in this hearing. The lawyers told us that at the last hearing autopsy photographs had been shown to forensic doctors. The victims' lawyers at the time had requested a copy of a videotape of autopsies that had been performed on the bodies of the victims. The videotape is an important piece of evidence because when the bodies of the victims were brought to the morgue, the forensic specialist refused to work overtime to perform the autopsies. As a result, non-forensic medical staff performed the autopsies and the procedures were videotaped. Mr. Tanrikulu told us that the tape is fifteen minutes and fifteen seconds long. The victims' lawyers requested a copy of the tape to enable them to have an independent forensic expert review it. Although the court denied the request, it granted an alternative request to have the court send the tape to forensic experts for review. The lawyers expected one topic of the hearing to be the report of the forensic experts, although they had not yet seen the report. They were informed that as of June 4, the day before the hearing, the report had not yet reached the court. According to the lawyers, the court told them that it had taken a long time to get the video to the forensic doctors, delaying the report. As it happened, the court faxed the report to the Diyarbakir Bar Association office during our meeting with the lawyers. The report arrived one-half hour before the scheduled starting time of the hearing. Although the hearing was delayed an hour, the lawyers still had only one and one half hours to review and consider the report. The report had been requested on April 24, 1998, one and one half months earlier. Moreover, the report was only one page in length. It stated no cause of death for any of the victims. Mr. Tanrikulu commented that a professional autopsy was not necessary to see from the pictures that brain trauma was the cause of all the deaths. He noted that the doctors stitched up the dead victims' heads to stop their bleeding. The report gave no reason for the failure to determine and include an official cause of death. We retained a copy of the one-page report. The lawyers expected a second topic in the hearing would be the ongoing effort to locate defendants in order to obtain their testimony. The court had not been able to locate five of the defendants and therefore had been unable to obtain testimony from them. The court had written to four or five other defendants to invite them to testify at courts in the cities in which they were now posted. Seven prison guards had been invited to testify at the day's hearing.3 The victims' lawyers said that these seven guards were "the last important witnesses to be heard" because the court had denied a request to bring transferred prisoners from Gaziantep to testify. The court had also denied a request to compel the defendants to appear in court during the hearings. The third topic for the hearing to consider was a reply from prison management to a court request for an explanation of prison visitation procedures. The victims' lawyers argue that, following standard prison practice on the day of the killings, prison officials did not inform the prisoners generally that they were to receive visitors until an hour before the visit and did not specifically identify the individual prisoners that actually had visitors until ten minutes before the prisoners were called to meet them. The victims' lawyers contend that this standard practice belies the defense's theory that a pre-planned prisoner riot precipitated the violence. We noted that the prosecutor's indictments against the defendants do not allege murder. The indictments charge that the police and gendarmes "abused their duty" in "causing death by injury in a way that the perpetrators cannot be determined and in a manner exceeding the limits of necessity and without intention to kill."4 Given the nature of the charge, we asked Mr. 3. Under the laws protecting civil servants, criminal defendants who are civil servants are not required to appear in court. Moreover, under the Law to Fight Terrorism, security forces accused of crimes while on duty may remain on active duty pending determination of the charges. 4. Note that there is a separate case against the prison guards where the indictment alleges "injury," a different crime. The victims' lawyers stressed in an earlier meet1999] Tanrikulu what was the prosecution's theory of the case and whether the prosecution accepted the defense's theory that the violence had been precipitated by a pre-planned prisoner riot and resulting fight between inmates and security forces. In response, Mr. Tanrikulu first noted that the question of whether any initial disturbance had occurred is irrelevant to the question of whether excessive force was intentionally used on prisoners after any disturbance had been quelled. Mr. Tanrikulu then explained that the prosecutor's office, despite being legally responsible for the investigation, did not conduct an independent inquiry and had relied entirely upon police and gendarme reports, which, not surprisingly, minimized the officers' responsibility. 5 2. Trial Observation We met with the lawyers for about an hour and one half. The case was called around 11 a.m. It took some time to climb the stairs and pass through a hallway into the courtroom because the police were searching those entering. Police officers searched us twice. A group of German nationals was not allowed to enter with their bags "by order of the head of the court." They had no translator, so our interpreter translated the police officers' instructions to them. While waiting to enter the courtroom we spoke with two young lawyers interning with the Diyarbakir Bar Association. They told us that the police normally try to prevent people from observing such trials and that they are especially resistant to the interns attending. The interns told us that they can usually maneuver their way in. We entered the courtroom and seated ourselves in the gallery, with a direct and unobstructed view of the proceedings. The court was the Diyarbakir Third Heavy Penal Court. ing with the delegation that the procedural maneuvers that allowed the various cases to be severed also allowed inconsistent charges against the different defendants in an incident in which it appeared that the guards, police, and gendarmes acted together. 5. The delegation previously obtained copies of the gendarmes' reports. These consisted of virtually identical statements by different defendant-gendarmes, taken by two gendarme investigators and one police investigator. The reports are short, lack detail, and contain clear misstatements of fact. For example, the reports refer to the imprisoned victims as the "arrested and convicted," while the victims were in fact pretrial detainees. The reports also assert that the victims had not been beaten on the head, while the autopsy pictures clearly show gaping wounds in the backs of the victims' heads. The gallery where we sat was raised up from the floor of the court. It raked up at a sharp angle, so that when we took our seats we looked downward on the proceedings. The gallery had about twelve rows of finished white stone benches. It was quite full when we entered, but two people moved back to give us seats in the center of one of the forward rows. Below and facing us sat the three judges behind a judicial bench raised from the courtroom floor. The chief judge sat in the center. One of the other two judges was a woman. To the left of the judges on the same level sat the public prosecutor.6 A relief bust of Mustafa Kemal Atatfirk, the father of modern Turkey, surveyed the scene from the center of the high marble wall, above the chief judge. Below and before the public prosecutor, Fethi Gfinfis sat in the lead victims' lawyer chair. In front of him were twelve other victims' lawyers. Directly opposite the victims' lawyers sat the two defense lawyers, Ziya Ozmen and Selim Karakoyun. No defendants were present in court. The bailiff called the names of four or five prison guards who were witnesses, but none were present. The bailiff then called as a witness, Serafettin Cammur, who entered the courtroom and took his place facing the judge. At first, the judge conducted his own questioning. Responding, Cammur testified that he knew some of the accused because of their popularity and high rank. He told the court that he had worked the night shift and slept in the prison guest house, near the prison on the night of September 23, 1996. He left the prison in the morning of September 24, but returned in the afternoon between 2:30 and 3:00 in the afternoon, even though it was his day off. He stayed in the prison for one hour. Cammur testified there were crowds around the prison, as well as gendarmes. He had heard that gendarmes had entered the prison, but did not see them himself. Cammur told the court that he himself saw ambulances going in and out of the prison and that he saw people carrying out the injured. Cammur testified that later that night he had learned that there had been fatalities. The judge asked if Cammur knew whether prisoners had been transferred from the prison and when any trans6. Our other trial observations in Turkey had, by this time, made us familiar with this arrangement. In Turkey, the prosecutor-considered part of the court-sits on an equal level with the judges, while the defense or victims' lawyers sit below. 1999] fer had occurred. Cammur responded that he had been told that there had been a prisoner transfer, but that he did not know what time it had occurred. When asked by the judge if he had "heard anything," Cammur testified that he heard an argument between prisoners and police. He further testified that he did not see the argument. The chief judge then turned to the victims' lawyers to submit questions.7 Mr. Tanrikulu stated to the court that Cammur had previously told investigating gendarmes that he had not only heard, but also seen the events surrounding the alleged confrontation between prisoners and police. Mr. Tanrikulu asked the court to explore the apparent discrepancy between the witness' testimony and his prior statement. 8 The judge then asked the witness what he had seen, to which Cammur responded that he had seen "a few things ... people coming in and out." He testified that he had not seen any bodies close up. Victims' lawyers pressed by confronting Cammur with a photo of the split head of a victim and asking how he could "hear" dead bodies. Victims' lawyer Tahir Elgi questioned why Cammur was at the prison on his day off. Cammur responded that he was there because he had been staying in the prison guest house. Cammur insisted that he had not been called to report to the prison. He added that even in an emergency, he would not have been called to the prison on his day off. At this point, defense lawyer Ziya Ozmen leapt to his feet and asserted that the deaths resulted from an argument or altercation. The judge asked whether the witness knew of police hitting the victims. The witness replied that he only knew of deaths and injuries and not who had inflicted them. 7. The normal procedure in Turkey is for lawyers to question witnesses through the judge; they would propose a question and the judge would ask it. Sometimes the lawyers would propose a question and the judge would pursue a line of questioning in that area. Occasionally, however, lawyers would address the witness directly. The witness faced the bench throughout, his back to us. 8. Police reports and statements from defendants argue that the victims died from injuries sustained during a fight with prison officers. The victims' lawyers contend that the fatal beatings took place in a separate room, outside the corridor where the original confrontation took place, and after the victims were bound and subdued. This contention is consistent with statements made by guards and other prisoners to the victims' lawyers outside the courtroom. However, because of obstacles to producing witnesses and to using witness testimony in civil servants' trials, the victims' lawyers have not been able to introduce any direct testimony supporting their version of events. The chief judge and the lawyers probed further inconsistencies between Cammur's prior statement and his testimony. They confronted him with his earlier statement that he had actually seen some of the events. He responded that he had seen the injured being taken out from far away. Fethi Ginfis asserted the area was not large enough for the witness to have seen from far away. "It's not an airport!" said Gfiniis-a statement the chief judge put into the record. Gfinils criticized the court and prosecutor for the delays and lack of resolution in the case and for reports that victims' families and the public had been denied access to the current hearing. Gfinfis stated that some victims' family members had been detained trying to attend. He complained that only foreigners and lawyers had been allowed in the courtroom even though the court had not declared the hearing closed to the public. (Observers in the gallery that we spoke with told us that they were lawyers, legal interns, or policemen, along with the German nationals). In response, the chief judge said witnesses' and families' protection were the prosecutor's responsibility. The prosecutor, who had been silent to this point in the hearing, said nothing.9 Mr. Gfinils also asked why only one of the seven called witnesses had come. The chief judge replied that the court had written to all seven, and to the defendants, but had received no reply. The chief judge read out the prison authorities' letter on visitation procedures and the forensic report on the videotaped autopsy. Mr. Gfinfis argued that these, along with the fact that the prisoners took no hostages indicated that, contrary to the defense's contention, there was no organized rebellion. He pointed out that even the one-page report revealed gaping head wounds. He emphasized that the wounds were in the same spot on each victim. He argued that the killers had all hit at the same target and that this was not consistent with the kind of wounds that they would have sustained in a fight with the security forces. He asserted that the victims had been taken out of the corridor 9. The delegation noted the apparent lack of participation by the prosecutor in the hearing. The prosecutor sat silently throughout. He did not question the witness. When the chiefjudge told the victims' lawyers that the safe passage of the families and the public into the courthouse was the prosecutor's responsibility, the prosecutor sat quietly, covering his mouth and looking down-a posture that he had adopted for much of the hearing. 1999] and beaten. Mr. Tanrikulu made three requests. He asked that the video of the autopsy be shown in court, that the court provide enough security so that the public and victims' families could get from the street to the courtroom, and that the court order the arrest of the defendants. Defense counsel' countered that the Turkish Penal Code prohibited detention of the accused during the trial, on the grounds that if they were found not guilty, the state would not compensate them."° Defense counsel further asserted that the victims had no grounds for claiming that a prisoner riot leading to the incident was "impossible." Defense counsel also objected to the German nationals taking notes because they had no translators and could obviously not understand the proceedings. To this, the chief judge replied that they were permitted to take notes. The court then took a recess to consider the lawyers' other requests. Outside the courtroom during the recess, lawyers told us that hundreds of people, including members of the public and victims' relatives, had been waiting across the street from the judiciary building because they had been denied admission to the hearing. The police had reportedly detained some of them, but subsequently released them when lawyers intervened. The lawyers speaking to us said that two or three relatives of the victims had been able to enter the courtroom. When the hearing resumed, two more victims' lawyers were present on the left. The chiefjudge reported that the court was unable to locate one of the defendants to invite him formally to appear in court. Although the chief judge then noted that under Turkish Penal Procedure Code section 223, defendants normally are required to appear, the court did not order their appearance. The chief judge stated into the record that the court had determined that it needed autopsy reports for each victim and that it needed to know what had happened to the clothes that the defendants had been wearing at the time. He also rejected the victims' request to have the defendants arrested. The chief 10. While most or all of the victims had been in long-term pre-trial detention when they were killed, their arrests were for crimes within State Security Court jurisdiction and this Turkish Penal Code protection therefore did not apply to them. judge then announced the date of the next hearing and adjourned the court. As the court adjourned, the mother of one of the victims who had been seated with the victims' lawyers stood up and-speaking in Kurdish-began asking the court for her rights. Someone near us in the gallery who spoke Kurdish translated her words to us. According to that person, she said to the court, "If we don't get results in this court, we will go to the European Court," meaning the European Court of Human Rights. As we gathered our belongings to leave the courtroom, a man in sunglasses approached us and asked who we were and what we were doing. Upon our asking him the same, he told us that he was from the police. We asked whether he was on duty. He told us he happened to be on duty, but had only come to the hearing out of curiosity. We asked him about the reports that victims' relatives had been denied access to the hearing. He said, 'You got in, didn't you?" When we pressed him, he told us no one had prevented the families from getting into court. The officer visibly chafed under our questions, and we ended the interview. After the hearing, we went to the airport in Diyarbakir for our return flight to Ankara. 3. Interview with Defense Lawyers On the afternoon ofJune 5, 1998, on the return flight from Diyarbakir to Ankara, we saw two of the defense lawyers from the hearing, Ziya Ozmen and Selim Karakoyun. We formulated some questions in the hope of interviewing them. Upon landing, we approached them. They offered us a car ride from the airport into the city, which we accepted. This ride gave us the opportunity to interview them briefly regarding the case and to record observations that they wanted to make regarding the human rights issues that the delegation was investigating. The defense lawyers spoke of the facts of the case as they saw them, as well as the roles of the lawyers involved. They first said that the intervention of the special police unit at the prison was warranted because the governor's permission was granted. The lawyers were referring to a special anti-terror police unit that had been ordered into the prison and, according to the victims' families and lawyers, had participated in the violence against prisoners. In the. case.of a riot, they said, the police may 1999] . enter the prison with the governor's permission. They said that the police had entered to "split communication between parts of the prison." Regarding the prosecution, the defense lawyers said that the job of the judiciary was to find those guilty of a charged crime. If a perpetrator could not be found, there should be no conviction.11 Implying that other prisoners killed the victims, the defense lawyers said that those who died were all informants who after their arrest had provided information to the police about alleged "illegal organizations." The lawyers buttressed this assertion by claiming that every subsequent search of the prison had turned up makeshift weapons-such as knives made from forks, spoons, iron bars, and radiators-illegal documents, and evidence of communications in and out of the prison. The defense lawyers said that they did not have this evidence, but that it was documented by the court and the prosecutor should have it. We asked them about the reliability of the police's internal investigation in this case. They said that the investigations were reliable because the police were obligated to follow specific procedures in such investigations. The defense lawyers had a number of criticisms of the victims' lawyers. The defense lawyers stressed that only the victims' lawyers saw inconsistencies between the testimony and prior statement of the day's one witness. The defense lawyer's seemed to imply that the victims' lawyers were improperly basing their position on matters outside of the court record. The defense lawyers also criticized the victims' lawyers for seeking the death penalty in a case where the individual perpetrators are not identifiable. Finally, the defense lawyers criticized the victims' lawyers for requesting that the defendants be detained. Explaining why they traveled from Ankara for the case, the defense lawyers explained that they had to come in from Ankara because no Diyarbakir lawyer would defend members of the security forces. They also said that a large number of lawyers were listed as victims' lawyers in this case, while the two of them toiled alone for the defendants. 12 When questioned about any dangers 11. We note here that facts as presented in the trial have not yet identified the specific officers alleged to have done the killings. 12. There are 83 lawyers of record for the victims. to lawyers representing members of the security forces, the defense lawyers said that they did not themselves feel intimidated. They knew of one lawyer, Sadik Tokucoglu, however, who was shot on his way to Izmir to participate in such a case. The defense lawyers also noted that their clients felt much pressurefor the defendants Diyarbakir is a hostile environment where no lawyers would defend them and everyone assumed their guilt. The defense lawyers expressed an underlying distrust of human rights activists in general. Mr. Karakoyun told us that in police trials, human rights activists tend to sabotage the proceedings. Both Karakoyun and Ozmen said that the activists' tactics were to appeal to conscience in order that judicial principles would be undermined. They felt that terrorist and political defendants "held all the power in their hands." They asserted that Turkish human rights organizations are tools for illegal organizations such as the Kurdistan Workers' Party ("PKK"). They felt that the Human Rights Association does "politically motivated work." The defense lawyers also felt that foreign criticism of Turkey's human rights record was unfair. They reminded us, in a pointed comparison to the United States, that there had been no judicial executions in Turkey since 1980.1' With respect to the independence of the judiciary, the lawyers emphasized the immunity of judges and prosecutors from both criminal and civil actions for acts undertaken in a judicial capacity. They felt that decisions on transferring judges and prosecutors, however, are made on a political basis. We told the defense lawyers that our delegation had spoken with several prosecutors. We then asked the defense lawyers about the role of the prosecutor in cases involving alleged police abuses. They told us that the prosecutor represents the victims, in the name of the government. They spoke of the prosecutor's investigative role and noted that defendants in this case had been interviewed in the prosecutor's office. With respect to the prosecutor's apparent passivity at the day's hearing, the lawyers told us that only the victims' lawyers were probing the witness's purportedly inconsistent prior statements because only the vic13. As this report goes to press, Turkish authorities must decide whether to end this defacto moratorium and allow a June 29, 1999 sentence of execution to be carried out on Abdullah Ocalan, leader of the outlawed Kuridstan Worker's Party ("PKK"). See Turkey: Will OcalanDie?; ECONOMIST, July 3, 1999, at 41. 1999] tims' lawyers saw these inconsistencies. They asked why the prosecutor would probe an inconsistency that he did not see. The interview was brief-about an hour-but we were able to ask some of the questions that we had formulated on the flight to Ankara. Karakoyun and Ozmen seemed pleased to have a chance to report their opinions on the Diyarbakir proceedings. B. January 29, 1999 Hearing"4 1. Interviews with Victims' Lawyers The evening before the hearing, January 29, 1999, we interviewed three of the lawyers representing the victims' and their families, Sezgin Tanrikulu, Mustafa Ozer, and Emin Oktar. These lawyers believe that this case, which has now gone on for two and one-half years, is being deliberately delayed. They report that there have been seven or eight different judges assigned to the case and that the prosecutor has been less than diligent in pursuing the testimony of witnesses. Often a hearing will last less than a quarter of an hour because the witnesses do not attend, a file is lost, a report has not arrived, etc., and then another month goes by before another hearing is scheduled. In this case, because of the poor job done by the prosecutor in the initial investigation as well as the bureaucratic confusion of the administrative council process, the witnesses have never officially been interviewed in any detail. This means that their testimony is being taken for the first time two and one half years after the killings occurred. Many of the witnesses are no longer working in the region and must be interviewed in remote areas by judges and prosecutors unfamiliar with the case. This does not seem to be a process well-calculated to disclose the truth of what happened. With a reluctant judge and prosecutor and two and one half years of delay, ascertaining what happened in this case will be very difficult. The victims' lawyers were very pessimistic about any prospects for improvement in the climate of impunity enjoyed by members of the security forces. They were not surprised that a court in Manisa had recently reinstated its decision to acquit police accused of torture there. They noted that the chief prosecu14. The members of the second Lawyers Committee delegation were Prof. Tracy Higgins of Fordham University School of Law, Sam Scott Miller, of the law firm of Orrick, Herrington and Sutcliffe, and a translator. tor in Manisa had previously been in Diyarbakir. According to the victims' lawyers, it is no accident that those judges and prosecutors who can be relied upon to protect the interests of the state end up in the controversial cases. 2. Trial Observation This hearing was one in a series of evidentiary hearings in the trial of the police and gendarmes accused of beating ten prisoners to death. On the morning of the hearing, we met victims' lawyer Sezgin Tanrikulu at his office and went to the court house with him. At 9:30 a.m., the security at the court was somewhat higher than we have seen outside the southeast region but did not seem particularly heavy. We spoke with journalists and explained our interest in the case. The press attention in Diyarbakir was substantially less than that in both Manisa and in Afyon, where a hearing in the trial of police accused of killing Metin Goktepe had taken place two days before.'" We made a point of connecting this case with the Afyon and Manisa cases regarding the impunity question. The cases do not seem to be so linked in the minds of those monitoring the impunity issue outside this region. Around 10:00 a.m., the case was called. As we entered the courtroom, we were searched and filmed by police and by journalists. The judge took care of some administrative details and then began to report on witness testimony that had been taken at a different location by anotherjudge. Two witnesses had been interviewed in this manner. Five testified in court this day. The witnesses all reported similar variations on the same story, depending on where they had been located in the prison during the incident. They reported that it was visitation day and that this cell block was to be the third to meet visitors. On the way to the visitation center, the prisoners began talking with other prisoners in other cell blocks, apparently in violation of prison rules. Although the guards warned them not to do this, 15. This delegation also observed a trial in Manisa, as well as the one in Diyarbakir, in a five-day trial observation mission to Turkey in January 1999. The full report on the Manisa trial is available from the Lawyers Committee for Human Rights and from the Joseph R. Crowley Program in International Human Rights at Fordham University School of Law. 1999] one witness acknowledged that this was not particularly unusual behavior. The prisoners were confrontational, and one of them hit the chief guard. After that, a fight erupted. At this point, the guards closed the gates to block off the corridor. The trapped prisoners forced the fifth gate open and asked their friends in other cell blocks to give them extra clothes. Sezgin Tanrikulu later explained that this suggested that the prisoners expected that they might be beaten and wanted the extra layers of clothes to protect themselves from truncheon blows. The fight among the prisoners and guards continued until the guards were ordered to leave the area. The director of the prison and the chief prosecutor called for reinforcements and the police and gendarmes were sent in. The next involvement of the guards was to carry the wounded from the detention center. Those who testified had either carried prisoners themselves or seen others doing so. They admitted that most of the wounded had to be carried. The judge asked about the location of the wounds, and they said they were all over their bodies, especially on their heads. One of the witnesses said that he fainted because of the sight of all the blood. The wounded were carried to the visitation room. This room is where the victims' lawyers allege that nine of the victims were killed, though none of the witnesses mentioned this fact today. One of the witnesses paused before answering critical questions such as "Did you see what happened after the security forces were let in?" A Turkish observer later expressed the opinion that the witness had paused to convey to observers that he was being compelled to lie under the circumstances. This story was repeated by all of the witnesses with some variations depending on their individual situations. The judge appeared to the delegates to be reasonably even-handed and conscientious in his questioning. This observation was later confirmed by the lawyers for the victims. They felt that he accurately recorded the testimony when he summarized it for the court reporter. Nevertheless, the judge did not pursue certain obvious questions such as whether the "injured" detainees were still alive at the time that they were removed. There was no mention of anyone who had been killed, only injured. Also, the judge did not show any of the photographs of the victims to the witnesses. It seems that this action would have been relevant and useful as they testified about the appearance of the victims and the extent of their injuries. Following the testimony, the victims' lawyers made several requests. They asked that the defendants be arrested-none are currently-and they asked that the witnesses be shown pictures of the victims when they are questioned. The evidentiary status of the photographs is still in question. They also asked that the doctor responsible for sending the prisoners to the hospital be indicted. They requested an investigation of the crime scene and to be provided a copy of the Ministry ofJustice investigator's report on the testimony of one of the witnesses. Finally, during the course of his argument, one of the victims' lawyers compared this case to Goktepe and Manisa as a test of Turkey's resolve to prosecute human rights violators. The defendants' lawyers responded, arguing that the doctor should not be charged, that the defendants should not be arrested, and that the photographs should not be used in evidence. We were not able to speak with the defense lawyers as they are based out of Ankara and left immediately following the hearing. According to the victims' lawyers, the theory of the defense seems to be that there was a riot in the prison and that this force was necessary, though perhaps unfortunate. The victims' lawyers also believe that the defense lawyers mean to imply that the prisoners may have attacked one another. This is consistent with the comments of these lawyers to other delegation members observing an earlier hearing. Interestingly, the defendants' lawyers also specifically objected to the comparison of this case to Goktepe and Manisa. They said that, unlike those cases in which the victims were presumably innocent, this case involved a prison riot. Hence, the actions of the police were justified here. Note, however, that the prisoners here had not been convicted of any crime. They were imprisoned pending their trial. The only distinction between their status and that of the accused police and gendarmes in this case is that the police and gendarmes are free and remain on duty. The hearing lasted approximately two hours. After the testimony and the lawyers' arguments, the court recessed briefly, and we left the courtroom. As we left, we were again filmed by press and police. After about ten minutes, the court reconvened. The judge announced that the motions to arrest the defendants and to charge the doctor were denied at least for now. A ruling on the photographs and the other motions was postponed. By the time we left the court, security had increased considerably. Outside the courtroom, there were police overseeing and filming our exit. Outside the building, there were many more police and police vehicles, and they seemed to be restricting foot traffic around that courthouse. The police continued to videotape us as we proceeded out of the courtroom, through the courthouse, outside and across a parking lot, where we entered our car and drove away. II. ASSESSMENT The Diyarbakir Prison Case involves the prosecution of police officers accused of gross violations of human rights. It has garnered local and international attention as a test case for the Turkish government's commitment to hold members of the security forces accountable for their actions. To date, the Turkish government has a poor record in this regard, though it notes that more police are facing trial than in the past. The case is a stark example of how the judicial system can fail victims of official abuse. Public prosecutors, under a legal duty to investigate and prosecute crimes fully, look no further than the version of events supplied by the police's internal interviews. Defendants fail to appear in court. Witnesses from the security forces cannot be compelled to appear. Inmates who witnessed the incident have been transferred to prisons in other towns, and the court continues to deny them permission to travel to Diyarbakir to testify. Some testimony from these ostensibly unavailable witnesses is taken in the remote locations in which they are now imprisoned. Judges and prosecutors unfamiliar with the case take that testimony without even the benefit of the case file. Victims' lawyers are not present because the expense and danger are prohibitive. The trial has been subject to numerous debilitating delays and postponements. For example, after nearly two years of hearings, the court does not yet have autopsy reports. It was not until the June 5, 1998 hearing that the court acknowledged the need for autopsy reports on each victim. Delays continue while the court and lawyers await forensic evidence of obvious materiality. The witnesses' and defendants' unavailability has also caused numerous delays. In each of the two hearings that we observed, the court denied motions to arrest the defendants. Only one of seven "invited" guard-witnesses appeared at the June hearing. The testimony of the others was postponed. Seven months later, five more appeared. During the period in which they failed to appear, the absent guards were living and working in Diyarbakir, where the court is located. We saw examples of two other problems that seem to undermine attempts to prosecute alleged police impunity in Turkey: the victims' lawyers' lack of access to potential evidence, and prosecutors' and judges' failure to investigate and prosecute the alleged crimes fully. As to evidence, the lack of important witness testimony created a number of problems in the two hearings. At the June hearing, when lawyers questioned the six guards' failure to appear, the court could only respond that they had sent the guards "invitations" and that the latter had simply failed to respond. Even the witnesses that the court does schedule fail to appear. More postponements result. Eventually, the witnesses appear and contribute their pieces of the story, and a meager factual picture emerges piecemeal as months of litigation turn into years. Other witnesses-the transferred prisoners-never appear in Diyarbakir to give their eyewitness accounts. The court has denied them permission to come. Earlier in the mission, delegates had reviewed the court's denials. The court gave no 'explanation except that the law permitted them to deny the motions. The defendants were conspicuously absent from both hearings, as they have been throughout the trial. This absence protects the defendants from being identified by witnesses. Moreover, in both hearings, the court denied motions to arrest the defendants. The defendants remain on active duty and in a position to influence the testimony of others. In the June hearing, the defense argument against arresting the defendants was that the Turkish Penal Code prohibited arrest on the ground that the defendants' loss of freedom would be uncompensable should the court find them not guilty. The transferred prisoners, meanwhile, are still detained nearly three years later, many of them still awaiting trial on the charges against them in State Security Courts. The fact that the law provides such a double standard seems to be complemented by a sense that the victims here deserve the inferior treatment that they received. The defense lawyers' objection to arresting the defendants, and the court's yielding to it, revealed an easy acceptance of this double-standard. In the second hearing, the defense lawyers distinguished the Manisa and Goktepe cases on the very ground that the Diyarbakir victims were prisoners, implying that they deserved such treatment. The observed hearings also underscored the importance of in-court testimony as opposed to testimony collected at remote locations. The victims' lawyers, denied much of the evidence to support their version of events, were nevertheless able to discredit the guards' version by impeaching the one witness who did appear in June. The fact that one witness presented this opportunity highlights the potentially debilitating effect of the continued absence of other witnesses. Not only do missing witnesses represent missing pieces of the story, but also they protect the official story by precluding opportunities to challenge it. Unequal access to evidence is an additional handicap for the victims' lawyers. For example, the defendants' lawyers reported that weapons and documents were discovered in searches of the prison. To date, none of this evidence has been made available to the victims' lawyers. Moreover, the defendants and their colleagues have direct access to the prison, calling into question the integrity of evidence turned up in those searches. The victims' lawyers, by contrast, are afraid to enter the prison to interview witnesses or search for evidence. They say that the opportunities are rife for the security forces to find some pretext to detain the lawyers if they venture into the prison. Cases such as that pending against twenty-four Diyarbakir lawyers (some of whom represent the victims in this case) would seem to support these fears. Put to such disadvantage, the victims' lawyers are reduced to implying by circumstantial proof that some story other than that presented by the defense exists. In the first hearing, these lawyers tried to use the prisons' visitation policy to cast doubt on the defense and prosecution theory that the deaths resulted from a riot. The victims referred to the one-page autopsy indicating identical head wounds to question the defendants' assertion the blows were random. Meanwhile, witnesses who might have provided positive proof of a different scenario remain absent from the courtroom because, as the court said, the law permits their absence. The prosecutor has refused to make an independent inquiry beyond the story as presented by the police in their internal investigation. Defense lawyers note that investigating officers are bound by certain procedures in questioning their colleagues and that guards were interviewed in the prosecutor's office. The security forces' statements in the record, however, are short and lacking in detail. Moreover, we observed no willingness on the prosecutor's part to probe in-court witnesses beyond their own previous statements. This responsibility is left to the victims' lawyers. In both hearings, the chief judge appeared fair in his questioning. He allowed the victims' lawyers to probe the witnesses and recorded the proceedings faithfully. As the delegation at the January hearing observed, however, he omitted some obvious questions. Moreover, he denied the victims' evidentiary motions without explanation, again and again. In Turkey, the standard of proof for criminal conviction is guilt to a moral certainty. The victims' lawyers have been denied the use of evidence to support affirmatively their version of events and are limited to challenging the occasional witnesses' inconsistent statements and employing circumstantial proof such as the visitation policy to cast some doubt on the official story. Under these circumstances, it is difficult to see how the victims' lawyers can meet the burden of proof for conviction. No one denies that the additional witnesses exist. It is only the lawful refusal to allow them to testify at trial and, in the case of security officers, the lawful refusal to compel their appearance, that impose these fetters on the victims. These, in combination with the prosecutor's lack of diligence, may prove fatal to the victims' case. If the prosecution fails for these reasons, the victims may be denied the effective remedy required by international law. As the European Court of Human Rights said in Aksoy v. Turkey, the right to an effective remedy includes a "thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the 10. For a full discussion of the right to fair trial in international law, focusing in particular on the provisions of the International Covenant on Civil and Political Rights ("ICCPR"), see LAwYERS COMMITTEE FOR HUMAN RIGHTS, WHAT IS A FAIR TRIAL?: A BASIC GUIDE TO LEGAL STANDARDS AND PRACTICE (Oct . 1995 ). 11. See Law No. 1773 ( 1973 ) (Turk.) passed in accordance with Article 136 of the 1962 Turkish Constitution . 12. The State Security Courts (or "SSCs") have been controversial in Turkey throughout their existence. The Turkish National Bar Association opposed their establishment and continues to support their abolition . 13. TuRK.CONST. art. 143 ( 1982 ). 14. SSCs are located in Ankara, Istanbul, Izmir, Diyarbakir, Adana, Konya, Trabzon, and Van. : 15. TuRK . CONST. art. 143; Law No. 2845 on the Creation and Rules of Procedure of the State Security Courts §§ 3, 5 (Turk.) (translated in Incal v . Turkey, Eur. Ct. H.R. judgment of June 9, 1998 , 78 Reports ofJudgments and Decisions 1547 , 1558 , 28 (1998- IV)). 16. For example, in the ICCPR, to which Turkey is not a state party, but which may be regarded as the primary international instrument in this area , General Comment No. 13 identifies issues regarding the appointment ofjudges and the independence of the judiciary as falling within the coverage of Article 14 of the covenant . See International Covenant on Civil and Political Rights, Dec. 16 , 1966 , art. 14 , 999 U.N.T.S. 171 , 176 - 77 , 6 I.L.M. 368 , 372 - 73 ( 1967 ) [hereinafter ICCPR]; Compilation of General Comments & Recommendations Adopted by the Humans Rights Treaty Bodies , Hum. Rts. Committee, 21st Session , 1984 , U.N. Doc . HRI/GEN/1/Rev.1 at 14 ( 1994 ) [hereinafter General Comment 13] (dealing principally with fair trial questions). 17. As will be discussed below, such an approach has been followed by the European Court of Human Rights ("European Court" or "Court") in its jurisprudence pertinent to this area, under Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention" or "Convention") . See European Convention, supra note 3, arts. 5-6 , 213 U.N.T.S. at 226-28. 27. Id . art. 6 ( 3 ) (a ), at 228. 28. Id . art. 6 ( 3 ) (b), (c ), at 228. 29. Id . art. 6 ( 4 ), at 228. 30. Id . art. 6 ( 3 ), at 228; see Artico v. Italy , 37 Eur. Ct. H.R. ( ser. A) at 15 -16, 33 ( 1980 ). 31. See European Convention, supra note 3 , art. 5 ( 3 ), ( 4 ), at 226; see Artico, at 15 - 16, 33 . 32. -See Campbell & Fell v . United Kingdom , 65 Eur. Ct. H.R. (ser. B) at 41 , 1 99 ( 1982 ). 33. See S v. Switzerland , 220 Eur. Ct. H.R. ( ser. A) ( 1992 ). It may be noted that the Court, in the case of S v. Switzerland, cited the United Nations' Standard Minimum Rules for the Treatment of Prisoners (1955) in support of its conclusion that the right of confidential communication with lawyers is a basic requirement of a fair trial and hence is implicit in Article 6. Article 93 of the Standard Minimum Rules states that a prisoner is entitled to receive visits from his legal adviser ... and to prepare and hand to him[, and to receive,] confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official . StandardMinimum Rulesfor the Treatment of Prisoners ,First U.N. Congress on the Prevention of Crime and the Treatment of Offenders , E.S.C. Res . 663C, U.N. ESCOR , 24th Sess., Supp . No. 1 , at 11, U.N. Doc . E/3408 ( 1957 ), amended by E.S.C. Res . 2076 , U.N. ESCOR 62d Sess ., Supp . No. 1 , at 35, U.N. Doc . E/5988 ( 1977 ). 34. The European Convention permits restrictions on the right of counsel for good cause. The question in each case is whether the restriction, in the light of the 42 . W v. Switzerland, App. No. 9022 /80, 33 Eur. Comm 'n H.R. Dec . & Rep . 21 , 37 , 6 ( 1983 ) (emphasis added). 43. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment , Nov. 26 , 1987 , Europ. T.S. No. 126 [hereinafter European Torture Convention]. 44. Id .; Convention Against Torture, supra note 3 , art. 15 . 45. G.A. Res . 43 /173, U.N. GAOR , 43d Sess., Annex , Supp. No. 49 , at 298, U.N. Doc . A/43/49 ( 1988 ). 46. The U.N. Basic Principles on the Independence of the Judiciary was adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985, and was endorsed by General Assembly Resolution 40 /32 of November 29, 1985 and Resolution 40 /146 of December 13, 1985 . See G.A. Res . 40 /32, U.N. GAOR , 40th Sess., Supp . No. 53 , at 204, U.N. Doc . A/40/53 ( 1985 ); G.A. Res . 40 /146, U.N. GAOR , 40th Sess., Supp . No. 53 , at 254, U.N. Doc . A/ 40/53 ( 1985 ) [hereinafter PrinciplesonJudiciary] . 47. The U.N. Basic Principles on the Role of Lawyers was adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana in 1990, and welcomed by the General Assembly in Resolution 45/121 of December 14 , 1990 . See G.A. Res . 45 /121, U.N. GAOR , 45th Sess., U.N. Doc . No. A/ CON. 144/28 ( 1990 ) [hereinafter Principleson Lawyers] . 48. See CHRISTOPHER L. AVERY & AMNESTY INT'L, A GUIDE TO THE UNITED NATIONS BODY OF PRINCIPLES FOR THE PROTECTION OF ALL PERSONS UNDER ANY FORM OF DETENTION OR IMPRISONMENT ( London 1989 ). 49. Universal Declaration of Human Rights, G.A. Res . 217A, U.N. GAOR , 3d Sess., at 135, U.N. Doc . A/810 ( 1948 ) [hereinafter Universal Declaration]. 1. SSCs and the 1982 Constitution: Problems of Special Jurisdiction 50. See Tum . CONST. pmbl. 51. Id . 52. Andras Barsony & Walter Schwimmer, Honouringof Obligationsand Commitments by Turkey: Report to the Committee on the Honoringof Obligationsand Commitments by Member States of the Councilof Europe,Doc . No. 8300 28 ( Jan . 15, 1999 ) ( visited June 26 , 1999 ) <http://stars.coe.fr/doc/doc99/edoc8300. htm> (on file with the Fordham International Law Journal) . 53. See id. 31 . 57. See id.; Findlay v. United Kingdom, Eur. Ct. H.R. judgment of Feb. 25 , 1997 , 30 Reports ofJudgments and Decisions 263 , 281 - 82 , 73 (1997-I) ; General Comment 13 , supra note 16, § 3 . 58. See Military Legal Service Act , Law No. 357 , Section 16 , §§ 1 , 3 (Turk.) (translated in Incal v . Turkey, Eur. Ct. H.R. judgment ofJune 9 , 1998 , 78 Reports ofJudgments andDecisions 1547 , 1560 , 29 (1998-IV)). 59. Id . 60. See id. Additional Section 8 (translated in Incal, at 1560 , 29) ( "Members of the National Security Courts belonging to the Military Legal Service, shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal advisor attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defense.").


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Joseph R. Crowley Program. Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders in Turkey, Fordham International Law Journal, 1998,