Preliminary Observations on official visit to Turkey by Mr. Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, 26-30 November 2012

Ankara, 30 November 2012

1. Introduction

At the invitation of the Government of Turkey, I conducted an official visit to this country from 26 to 30 November 2012. I travelled to Ankara and Diyarbakir, as well as held informal meetings with the civil society in Istanbul prior to the start of the official visit. The United Nations Country Team in Turkey provided assistance in the logistical preparation of this visit.

I would like to express my gratitude to the Government of Turkey for extending an invitation to my mandate, as well as for the cooperation provided during the preparation and conduct of this visit. I was impressed by the openness and willingness to engage that I encountered in all my meetings. During this week, I had the opportunity to meet with the Human Rights Presidency of the Prime Ministry, the Minister of Justice, high-level officials at the Ministry of Foreign Affairs, Ministry of Justice, Ministry of Interior, Ministry of Family and Social Policies, and Presidents of the Human Rights Inquiry Commission and Uludere Sub-Commission at the Turkish Grand National Assembly.  I held meetings also at the Court of Cassation and with the High Council for Judges and Prosecutors, as well as visited the Sincan prison. In Diyarbakir, I met the Deputy Governor of Diyarbakir, and high-level officials of the Provincial Gendarmerie Command and the Provincial Security Directorate. In addition, I held meetings with the United Nations Resident Coordinator and Country Team, European Union Delegation in Turkey, Council of Europe Programme Office, as well as a wide range of domestic and international non-governmental organisations, academics, judges, lawyers, and families of victims.

My visit focused on respect for the right to life in Turkey in law and in practice, as well as on efforts to prevent unlawful killings and to ensure accountability and redress in such cases.

A detailed report on my findings and recommendations will be presented at the 23rd session of the United Nations Human Rights Council in 2013. The observations and recommendations presented today are preliminary and will be examined and developed further in the future report.
 
The last visit by the mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions to Turkey took place in 2001. In her report, my predecessor highlighted a number of positive developments and challenges related to the right to life in Turkey. Since her visit, many positive changes have occurred, and although significant challenges remain, Turkey has made, and is in the process of taking, decisive steps to ingrain a culture of human rights.  Many of her recommendations have been implemented. The remaining challenges by and large relate to placing the security of individuals, as opposed to State security, first.

The significant progress that has been achieved in respect of many aspects of human rights in general and the right to life in particular needs to be recognised unequivocally. Since the beginning of the century Turkey has moved away from the dark days of the 1990s, and has to a large extent managed to consolidate these gains. Instances of extrajudicial executions and related practices such as torture and enforced disappearances are to be measured on a completely different scale. As will be highlighted throughout the report, a wide range of initiatives and institutions have been put forward to improve the overall human rights situation, which, if fully implemented, will represent significant strides to address the remaining concerns about the right to life.

Turkey is deeply engaged especially with the European regional human rights system, and increasingly also with the mechanisms of the United Nations. Also noteworthy are the domestic initiatives to incorporate international human rights norms on the national level.

In addition to the encouraging developments that will be highlighted below, I wish to state that I had the opportunity to visit the prison of Sincan and was impressed by the very high standards that are maintained. Another breakthrough has been the abolition of the death penalty for all crimes in 2004.

However, the number of violations of the right to life remains of serious concern, both in terms of recent killings and failures of accountability for past violations.

The Government of Turkey is in the process of providing me with disaggregated data on killings, and I look forward to receiving in full that important information and to compare that with the information provided by other sources in my final report.

During the meetings held this week, the following types of alleged unlawful killings have been brought to my attention as having emerged in Turkey: killings during both terrorist acts and counter-terrorism operations; killings resulting from excessive use of force by security forces; deaths in custody and as a result of torture; suspicious suicides of conscripts and security officers; killings by unidentified perpetrators; honour killings and domestic violence, resulting in particular in the killings of women  and Lesbian, Gay, Bisexual, and Transgender individuals; killings of journalists and human rights defenders; killings of religious minorities; and deaths from landmines and explosive remnants.

This should be seen against the backdrop of the unresolved legacy of the 1990s, as witnessed by the uncovery of some of the mass graves dating from that era.

In this statement, I will focus on a limited number of violations that raised particular concern. I will continue examining the situations of all reported cases in view of their possible incorporation in my future report in 2013.

Any analysis of Turkey’s human rights record should take into account the country’s challenges to fight terrorism, which in itself poses serious threats to the right to life, also of innocent civilians. I encourage the authorities to confront this scourge in compliance with international human rights standards.

2. Violations of the Right to Life by State Actors

I received information on various manifestations of violations of the right to life by State actors in Turkey. In these preliminary conclusions, I would like to draw attention to two main areas of concern in this regard.
 
            Deaths resulting from excessive use of force

I have been alerted to deaths resulting from the excessive use of force by law enforcement officials in the context of inter alia arrest and demonstrations.  The international standards on the use of lethal force by law enforcement officers – for example during arrest and demonstrations – stipulate that lethal force may only be used as a last resort in order to protect life.  That is, the principles of necessity and proportionality apply, and the only objective can be the saving of lives. 

In Turkey, the relevant legal provisions are contained in the Law to Fight Terrorism, No. 3713 as amended in 2006, the Law on the Duties and Powers of the Police, No. 5681 of 2007, and the Law on the Organisation, Duties and Powers of the Gendarmerie, No. 2803.

These relatively recently adopted provisions grant the police and security forces vague and therefore potentially wide powers to use force, beyond those permitted under international law. Specifically, article 16 (c) of the Law on the Duties and Powers of the Police appears to legitimize the use of lethal force against, inter alia, a suspected thief escaping. Although proportionality is mentioned, the omission of the required objective of protecting life and the ambiguity of the “stop warning” result in a dangerously large power grant. In the Law to Fight Terrorism, additional article 2 fails to stipulate that the use of firearms directly and unhesitatingly against the target should be as a last resort in order to protect life. In both laws, these omissions open the way for unlawful killing.

It should also be noted that so-called “less than lethal” weapons such as pepper spray and teargas can constitute lethal force if their use results in death. The lawfulness of such use is regulated by the same principles of proportionality and necessity as any other weapons. I heard cases of death caused by excessive use of these weapons by security forces during demonstrations. To the extent that the weapons have been used not to save life but to maintain public order, these cases may be instances of unlawful killing.

            The Incident in Uludere, December 2011

Of great concern is also the events at Uludere/Roboski on 28 December 2011, when Turkish military jets bombed and killed 34 civilians, about half of them apparently children. The fact that the public is, one year later, no closer to an understanding of these tragic events reinforces the concerns expressed below about impunity. The absence of a transparent public enquiry further aggravates the situation. I have met the President of the Uludere Sub-commission at the Turkish Grand National Assembly (TGNA) and take note of the information on the finalisation of the Sub-commission’s report due on 15 December 2012.  At the same time, the closed nature of the enquiry and the limited nature of its mandate point to the need for further action.

3. Violations of the Right to Life by non-State Actors: Honour killings and violence against women

In my future report, I will elaborate on a wider range of reported violations of the right to life in Turkey by non-State actors. In the meantime, in this statement I would like to focus on the worrying level of violence against women, including honour killings.

Honour killings and other deaths related to violence against women remain a concern and a reality. Although an official authority in Diyarbakir stated that only one honour killing had occurred in the past three years in the municipality, it appears that the numbers in rural areas may still be high. One human rights organisation reported that nine women were victims of honour killings in Turkey in 2011. The Government provided me with statistics that recorded 35 honour killings in the first nine months of 2012. Another human rights organisation reported knowledge of 30 women who had sought emergency assistance so far this year, after their family councils had cut them off as a conviction of their “crime” and in preparation of the punishment. The organisation reported 40 such cases for 2011.

Inasmuch as they represent worrying trends in their own right, honour killings should also be understood in the broader context of violence against women. A non-governmental organisation reported that in 2011, over one hundred women were killed due to domestic violence. This is in line with the Government’s figure of 107 “intentional homicides (domestic)” in the first nine months of 2012.

Despite the alarming numbers, civil society and the Ministry of Family and Social Policies should be commended for Law No. 6284 of 8 March 2012, on the Protection of the Family and Prevention of Violence Against Women. If there is a genuine commitment to protecting lives, the Government must prioritize a strong effort to monitor implementation of this new law and official authorities must demonstrate utmost openness to civil society groups’ role in this regard.

Along these lines, the establishment of a National Action Plan and an increasing number of domestic violence shelters throughout the country is also a positive development, as well as the implementation of extensive training programmes for police and other first responders. I commend the advocacy of civil society groups that contributed to the drafting of these texts, as well as the Ministry’s receptiveness to their involvement. Such cooperation is vital to the creation of laws and policies that protect the right to life. I also commend Turkey’s ratification this year of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”).

Although the 2005 revisions to the Penal Code emphasise the seriousness of crimes of violence against women, I am disappointed that article 82, which stipulates crimes punishable by aggravated life imprisonment, refers in paragraph k to custom killings (using the term “töre”) rather than honour killings (“namus”). Organisations promoting women’s rights pointed to this discrepancy as an opening for judicial manipulation and referenced instances where courts found honour killing does not fall under “custom” and therefore is not covered by article 82 (k). I note that this is a concern also expressed previously by United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) and the United Nations Human Rights Committee.

Finally, I underline the importance of strengthening the protective function of the Ministry and its related programmes, including the adequate resourcing of shelters and the creation of contingency plans and support services for women leaving shelters. I call upon law enforcement units to ensure proper implementation of protection orders and sensitivity training.

4. Impunity

Numerous interlocutors have described impunity as the major challenge concerning the right to life and echoed the sentiments expressed by one of the people interviewed, to the effect that: “We have a culture of not punishing”. The challenge needs to be addressed with regard to both the crimes committed in the 1990s, and more recent killings.

            Killings in the 1990s and mass graves

A number of interlocutors whom I met evoked the legacy of the 1990s, on which reports indicate thousands of unresolved execution-type killings, deaths in custody and enforced disappearances by suspected State perpetrators, as well as execution-type killings suspected to have been committed by the PKK.

Only a handful of trials have been conducted regarding this period. There seems to be political reluctance to engage with the issue, and time – in the form of the increasing age of potential suspects and witnesses, and deteriorating evidence as well as the statute of limitations – may soon close the door on much-needed accountability for this dark period in the country’s history. Shedding light on the killings of the 1990s, and taking all necessary measures to bring to justice all perpetrators, should constitute an imperative objective of the current authorities.

My attention was drawn to the current process of discovery of mass graves in Turkey. The majority of them are believed to date back to the period after 1980 and contain the remnants of individuals forcefully disappeared from detention, and of illegal militants. While some excavations took place recently, I would like to stress the importance of political will to establish truth and justice with regard to these graves, as well as ensure a proper and transparent process of investigation into them, based on the conduct of excavations in conformity with the United Nations Minnesota Protocol.

            Ineffective investigations and lengthy proceedings

Impunity for more recent killings manifests itself in slow or inadequate investigations and prosecutions into cases where life has been lost. This is widely believed to be the result of a lack of political will to hold State officials accountable. It is exacerbated by a deferential approach to the executive by prosecutors, shortcomings in the independent and effective functioning of the judiciary, inadequate forensic services and a lack of an independent complaints mechanism about the conduct of the law enforcement agencies. With regard to evidence used for investigations, my attention was drawn in particular to the need to strengthen the capacity of crime scene investigations and proper collection of evidence, as well as challenges related to the impartiality of reports provided by the Government-affiliated Forensic Medicine Institute and their late delivery.

Delay in judicial proceedings continues to constitute one of Turkey’s long-standing challenges, also in terms of accountability in cases of violations of the right to life. The Turkish authorities I met are aware of this problem, and I commend them for various recent steps taken with the aim of reducing the length of proceedings, including inter alia through enacting the Third Judicial Reform Package and increasing the number of judges at the Court of Cassation.

While proceedings are lengthy and ineffective, the application of the statute of limitations for unlawful killings offences further aggravates the climate of impunity. The statute of limitations for investigation of murders in the previous Penal Code (Law No. 765) provides in principle that crimes, committed before 2005, lapse after 20 years. In the present Turkish Penal Code, for crimes where the penalty is an aggravated life sentence, the whole investigation has thirty years to run before being timed out. In the meantime, genocide and crimes against humanity may still be prosecuted after that period, and I have been told a similar provision will soon be made for torture-related offences through the Fourth Judicial Reform Package.  The combination of slow investigations and the statute of limitations provides fertile ground for impunity. The statute of limitations should be lifted for all crimes related to violations of the right to life.
 
            De facto immunity of public officials

While I was assured that administrative permission for prosecutors is no longer required when they bring cases against law enforcement officers or other public officials in terms of Law No. 4483, many members of the public seem to think this is still the case, and prosecutors provide a lack of such permission as a reason why prosecutions do not occur. This lack of clarity is especially concerning as it blocks effective access to the justice system and accountability of public officials.

            Reprisals

Witnesses, victims’ families and human rights organisations are often subjected to reprisals and thus dissuaded from pressing charges or continuing with cases. The low conviction rate in Turkey is another disincentive to lodge complaints.

The main pattern of reprisal reported to me is the practice of filing counter-charges against the relatives of the victim or organisation,  claiming that the person violently resisted arrest or a police order. Counter-charge cases often proceed much more swiftly than the investigation into the victim’s original complaint. Interlocutors reported experiences of a higher penalty being sought under the counter-charge than for the original trial involving killing.

The case of Baran Tursun, fatally shot by the police in 2007, has been brought to my attention in this regard, with reports on the numerous counter-cases launched against his family. I have heard similar cases of unwillingness of the witnesses to testify due to pressure to renounce testimonies and fear of reprisal. I was also told of physical threats or coercion of family members or non-governmental organisations not to call for investigation or trial. Witnesses also cannot take advantage of effective witness protection programmes, which need further improvement.

One of the significant indicators of a culture that protects the right to life is the openness with which human rights advocates may work. Such a pattern of reprisals and other forms of pressure when individuals or organisations seek accountability for unlawful killings raises serious concerns in this regard.

On the other side of the coin, the fact that in some cases Government officials who have been involved in or are suspected of having been involved in serious human rights violations are promoted serves as a further disincentive to people to seek justice through official channels.

            Prosecutorial discretion

Related to the point mentioned about an emphasis on the security of the State over the security of the individual is the fact that prosecutions for the wrongs of the past, where they take place, are often for crimes against the State, not crimes against individuals. For example, the current prosecution of the surviving leaders of the 12 September 1980 military coup, Kenan Evren and Tahsin Sahinkaya, is not for deaths in custody, murder and torture, but for overthrowing the Parliament and constitutional order in a military coup. On the other hand, PKK leader Abdullah Öcalaan was also not prosecuted for murder, but for rising against the State. In such cases there is no specific accountability for violations of the right to life. Such an omission sets a concerning precedent of impunity for killings.

In this regard, I have heard cases where law-enforcement officials, as well as non-State actors, committed violations of the right to life but were charged with other offences than killing, resulting in light sentences.

Even in cases where the perpetrator was charged with killing, I received information that sentences are in some cases significantly reduced because of “unjust provocation,” under article 29 of the Penal Code. Other times, judges apparently reduce the sentence because of “good conduct” of the defendant during legal proceedings. According to interlocutors, there is a tendency to apply these reductions in particular in cases of violence against women, Lesbian, Gay, Bisexual, and Transgender individuals, or offences perpetrated by law-enforcement officials. This suggests that these crimes may be taken less seriously by the judiciary.

As a final point, I would like to recall the findings and recommendations of the Special Rapporteur on the independence of judges and lawyers, subsequent to her visit to Turkey in 2011 (see A/HRC/20/19/Add.3). One of the areas of concern identified in that report was the close connection of the judiciary to the executive, and in particular the prosecutors, which puts into question the independence and impartiality of the decision-maker. This issue was expressed by numerous individuals with whom I spoke this week and has obvious implications for accountability in the context of the right to life. My impression from discussion with officials is that this point is well understood, as is the need for changes in this regard.

5. The Role of Human Rights Mechanisms

A wide range of initiatives, on the domestic as well as international level, has been undertaken to improve the situation described. In some cases international and domestic mechanisms are combined. In an important development, citizens now have the right of individual application to the Constitutional Court in Turkey on the basis of violations of their human rights and fundamental freedoms, including under the European Convention on Human Rights, and international law takes precedence over national law in case of conflict.

            Domestic institutions

Turkish Human Rights Institution

The Law on the Turkish Human Rights Institution was adopted in the Parliament on 21 June 2012. The creation of a national human rights institution (which will replace the Human Rights Presidency) is potentially an important step forward in upholding human rights, including the right to life. By most accounts a strong team of eleven members of the board has been appointed. However, the process of establishing the Institution has been criticised on a number of grounds, such as insufficient civil society involvement and dependence on the Prime Ministry, including in the appointment of members and budget structure. Because of this lack of independence, there is concern that the Institution may not comply with the Paris Principles, which may affect the Institution’s legitimacy.

It is up to the appointed members to show they can overcome these shortcomings. The President of the Institution, who is to be elected shortly from among the members, should be an individual with a high level of commitment to human rights, who enjoys public support across traditional divides.

Ombudsman

The creation of an Ombudsman’s office is a potentially important addition to the range of institutions available to the public to pursue complaints against public officials whilst having regard to human rights. Winning the trust of the public will have to be high on the list of priorities of the recently appointed Ombudsman, Mr. Mehmet Nihat Omeroglu.  Sceptics are quick to point out that Mr. Omeroglu is a former judge of the Court of Cassation and among those who ruled that murdered journalist Hrant Dink had “insulted the Turkish nation”.

A structural shortcoming is that the mandate of the Ombudsman does not cover acts solely of military nature of the Turkish Armed Forces. There is a risk that these acts may be interpreted widely to remove the military further from human rights scrutiny.

Department of Human Rights in the Ministry of Justice

This new department in the Ministry of Justice is responsible for ensuring Turkey’s effective implementation of and compliance with the judgments of the European Court of Human Rights. The Department is strengthened by the appointment of international lawyers as staff advisors to missions in a number of capitals of relevance to human rights and the United Nations system.

Other institutions

Parliamentary committees and sub-committees focus on lengthy trial proceedings, and will also investigate the rights of conscripts, including the issue of suicide among them.

Mechanisms for complaints against law enforcement officers will be established. It will be important that these bodies function independently.

The Constitution of Turkey

Article 17 of the Constitution provides that everyone has the right to life. However, a range of sometimes unqualified exceptions to this general principle are then made in the rest of the article. It would be more in line with international standards to provide that everyone has a right against arbitrary deprivations of the right to life.

            International Treaties

In a significant step, Turkey ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on 2 August 1988 as well as the Optional Protocol to CAT on 27 September 2011. This means that a national preventative mechanism should be established. I have been told that this mechanism is currently under discussion; timely follow-up on this obligation is important.

Notably, Turkey is not yet a party to the new International Convention for the Protection of All Persons from Enforced Disappearance, nor has it acceded to the Rome Statute. These undertakings would strengthen Turkey’s commitment to human rights generally and the right to life in particular.

6. Conclusions

A number of very promising and positive current and future interventions related to the right to life in Turkey have been outlined. The ultimate test will lie in their effective implementation and coordination.

There is an urgent need to end impunity for past and ongoing violations of the right to life by both State and non-State actors – not only in the pursuit of justice for victims and their families, but also as a message to the domestic public and international community that violations of the right to life will not be tolerated.  

7. Recommendations

1. There can be no justification under any circumstances for acts of terrorism, nor for human rights violations in the name of counter-terrorism measures. All groups, including the PKK, engaged in terrorism should cease such activity with immediate effect.
2. Turkey should consider that an independent body which enjoys wide public support and representation should be set up to investigate unaccounted political killings and make recommendations regarding possible prosecutions and other measures to promote transitional justice and a culture of accountability. The process of setting up such a body and determining its mandate (including how far into history it should go) should likewise be open, transparent and inclusive. There are strong arguments to be made for the period of the 1990s and the allegations around the existence of mass graves to be included.
3. In the meantime, Turkey should consider that an independent forensic investigation into identified mass graves in the South East of the country should be conducted in accordance with the Minnesota Protocol.  This is made all the more urgent by the statute of limitations, since the expiry period currently is in principle 20 years, and many of the violations in the 1990s occurred in 1993 and 1994.
4. Irrespective of this, Turkey should consider that while the statute of limitations does not apply to crimes of genocide and crimes against humanity and now torture, the system should also provide that other violations of the right to life do not expire.
5. Turkey should consider that an independent and prompt public and transparent investigation into the Uludere/Roboski incident should be undertaken as a matter of great priority.
6. Turkey should consider that article 82 (k) of the Penal Code should be understood to include honour killings under “custom.” “Unjust provocation” should not be accepted as a defence or sentence reduction for such crimes, and neither should good conduct during trial serve as mitigation. 
7. Turkey should consider that steps should be taken to reverse and stop the trend of reprisals against those who lodge complaints.
8. Turkey should consider that a stronger and effectively implemented protection programme is required to provide witnesses, victims and their families, and other parties that feel threatened (such as journalists) with a safe haven.
9. Turkey should consider that care should be taken to ensure that the envisaged complaints units for the police and other security forces function in an independent way.
10. Turkey should consider that the laws dealing with the use of force by law enforcement officers (Law on the Duties and Powers of the Police No. 5861, and Law on the Organisation, Duties and Powers of the Gendarmerie No. 2803) should be brought in line with the international standards (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials). Both proportionality and necessity are integral components of these standards and must be balanced only against the saving of life. Lethal force may be used only to protect life. These standards should be part and parcel of the training of all law enforcement officers.
11. If it is indeed correct to say that law enforcement officials may be tried without administrative authorisation, Turkey should make this fact more widely known and prosecutors should immediately cease the practice of continuing to require such authorisation.
12. Turkey should examine the extent to which the legal framework for the Turkish Human Rights Institution (THRI) should be brought into conformity with the Paris Principles. Consideration should be given to include a reference to the THRI in the Constitution.
13. Turkey should consider that the Government should develop a comprehensive human rights plan, involving public participation, in line with the 1993 Vienna World Conference on Human Rights.
14. Turkey should consider ratifying the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute.
15. Turkey should consider various ways in which it can engage more closely with the United Nations human rights system, in addition to its engagement with the regional European system and the Organization for Security and Cooperation in Europe. Further mandates that could be considered for country visit include the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. Follow-up on the recommendations of the experts who visited the country should be prioritized. This includes implementation of the recommendations made by the Special Rapporteur on the independence of judges and lawyers, as well as earlier recommendations by the Special Rapporteur on violence against women, its causes and consequences and the Special Rapporteur on the promotion and protection of human rights while countering terrorism.