Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders in Turkey
Fordham International Law Journal
Lawyers Committee for Human Rights
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.*
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,
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/
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://
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
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
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.
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
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
" 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
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
). 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,
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
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.
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,
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
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),
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.
71. Id. art. 139. Article 139 states that:
Judges and public prosecutors shall not be dismissed, or retired before the age
zr m , - 5 :.
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
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
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
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
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
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'
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.
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.
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'
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
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
enter the prison with the governor's permission. They said that
the police had entered to "split communication between parts of
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
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.
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
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.
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
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.
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
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
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'
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
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.").