Preliminary observations of the Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Turkey (14-18 March 2016)

Introduction

A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances concluded a five-day official visit to Turkey. The visit took place from 14 to 18 March 2016. The delegation was composed of the Chair of the Working Group, Ms. Houria Es-Slami, Vice-Chair Mr. Bernard Duhaime and Mr. Henrikas Mickevicius, member of the Working Group.

This is the second time that the Working Group visited Turkey after the first visit in 1998 during which it issued a number of recommendations, some of which are still valid today.

At the outset, the Working Group wishes to thank the Government of Turkey for extending an invitation to visit the country, and for the efforts made before and during the visit, in particular by the Ministry of Foreign Affairs, to facilitate its undertaking.

The Working Group also wishes to thank the Office of the Resident Coordinator in Turkey, the United Nations Country Team in Turkey, as well as the United Nations Office of the High Commissioner for Human Rights, for their support.

During its visit, the Working Group visited Ankara, Istanbul and Diyarbakir. The Working Group met with the General Public Prosecutors’ Office of the Supreme Court of Appeal, the Constitutional Court, the Deputy Under-Secretary of the Ministry of Foreign Affairs, the Deputy Under-Secretary of the Ministry of Justice, the Deputy Under-Secretary of the Undersecretariat of Public Order and Security, the General Staff, the General Commandership of Gendarmerie, the Security General Directorate, the Grand National Assembly of Turkey Human Rights Committee, the Head of the Forensic Medicine Department in Istanbul, and the Chief Prosecutor and the Vice-Governor in Diyarbakir.

The Working Group met a number of relatives of disappeared and also held several meetings with civil society organizations and lawyers.

Over the years, the Working Group has transmitted 202 cases to the Government of Turkey, of which 79 are still outstanding. The cases with the Working Group mainly relate to disappearances occurred between 1992 and 1996 in the South-East.

The Working Group welcomes that the Government of Turkey takes seriously its engagement with the Working Group in order to seek clarifying the outstanding cases. 

Below are a number of preliminary and non-exhaustive observations and recommendations on a number of issues, which will be developed further in the country visit report to be presented to the Human Rights Council in September 2016.

Legislation

Turkey is not a party to the International Convention on the Protection of All Persons from Enforced Disappearances (ICED). The Working Group encourages the Government to promptly become a party to it without reservations and with the express recognition of the competence of the Committee on Enforced Disappearances provided for in articles 31 and 32 of the Convention.

The ratification should be accompanied by implementing legislation making enforced disappearances an autonomous crime in the Penal Code consistent with the definition given in the 1992 Declaration on the Protection of All Persons from Enforced Disappearance (the Declaration) and punishable by appropriate penalties that take into account its extreme seriousness. The legislation should also cover the various modes of criminal liability, including in relation to any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. It should also expressly provide for the application of command or superior individual criminal responsibility for such crime. In addition, it should expressly provide that it is a continuous crime to which amnesties, immunities or statute of limitations cannot be applied. The inclusion of an autonomous crime of enforced disappearance in domestic criminal legislation, though, should not be dependent on or conditional to the ratification of ICED.

The Working Group welcomes the modification of article 90 of the Constitution according to which international human rights treaties ratified by Turkey prevail over national legislation in case of conflict.

Truth

The Working Group, in its General Comment on the right to the truth in relation to enforced disappearance, stated that the right to the truth “means the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, and the circumstances of the disappearance, and the identity of the perpetrator(s)” (A/HRC/16/48, para. 39).

The Government should adopt immediately a comprehensive policy to search for all of those who disappeared. Those involved in such processes should not be involved in any way in past disappearances. In this regard, one step to be promptly taken in the process of search is to thoroughly investigate all identified burial sites, as already recommended by a number of international human rights bodies. These sites should also be adequately preserved.

The Working Group emphasizes that access to archives is essential to secure the rights to truth and justice. Turkey should develop a comprehensive plan for a system to preserve all existing records and documentation relating to human rights violations, including enforced disappearances. Access to archives, including those of military, the Gendarmerie, security and intelligence services, should be guaranteed to families for the purpose of the search of their loved ones as well as to judicial authorities for the purpose of investigation.

The Working Group appreciates that the Council of Forensic Medicine of the Ministry of Justice has significantly increased its capacity and resources, including by establishing nine regional centers throughout the country. The Working Group hopes that this increased capacity will serve to improve the quality of investigations in cases of enforced disappearances.

Justice

The Declaration requires that the State guarantees to victims of enforced disappearance an effective remedy that includes a thorough and impartial ex officio investigation with a view to identifying those allegedly responsible for the disappearance and imposing the appropriate penalties.

The Working Group received information on a number of cases related to enforced disappearances on which trials have been conducted. Most, if not all, have concluded with acquittals due to the absence of sufficient evidence or to the application of statute of limitations. Some are still ongoing.

There are various reasons for the almost complete lack of accountability for cases of enforced disappearances. First of all, given the absence of express legislation making enforced disappearance an autonomous crime, acts of enforced disappearances are investigated and prosecuted under other crimes (e.g. murder, forced abduction or arbitrary deprivation of liberty), which is already a problem in terms of the specific investigation which is needed in cases of enforced disappearances. This may be one of the reasons why “lack of evidence” is adduced as the reason for the acquittal in many cases. Another reason may be that the burden of proof seems to be put on relatives rather than the evidence being collected through a detailed and thorough investigation by the authorities, as the Working Group heard a number times during the visit. In addition, the crimes under which cases of enforced disappearances are prosecuted are subjected to the statute of limitations of 20 years.

Furthermore, the Working Group has perceived a palpable lack of interest to seriously investigating, prosecuting and adjudicating these cases, as if going forward with them would harm the interest of the State, which should be instead preserved. Finally, a number of the cases relating to enforced disappearances have been often transferred for “security reasons” to other courts (sometimes geographically very distant), with all the obvious consequences in terms of delays and effectiveness of the proceedings – in addition from preventing the participation of families to the trials, thus limiting their access to justice. The combination of all these factors makes a conviction for acts of enforced disappearances virtually impossible.

The Working Group is also concerned at the information that military officers allegedly responsible of gross human rights violations in the past are not only still on duty but have been promoted, including to high rank positions. A thorough vetting process in the military and security apparatus is highly needed in this regard. 

The Working Group reiterated in many occasions that impunity for enforced disappearances is a source for new violations in the future. The State should take decisive actions in this regard. The success of Turkey’s judicial efforts will require strong determination to come to terms with the past as well as a change of mindset in many State institutions, including prosecutors and judges. There is generally little confidence in judges and prosecutors, notably in relation to their impartiality and independence.
The Working Group was informed by the authorities that the cases in which the European Court of Human Rights found Turkey in violation of the European Convention on Human Rights notably for lack of effective investigation - including those relating to enforced disappearances that ended with an acquittal - can be reopened and looks forward to seeing the results of the new investigations and trials.

The Working Group received information on arrests, threats and intimidation of human rights defenders and lawyers working on enforced disappearances cases; sometimes they have even been threatened during the hearings in Court. It reminds that, in accordance with articles 13(3) and (5) of the Declaration, all involved in the investigation on cases of enforced disappearance are protected against ill-treatment, intimidation or reprisal and that steps shall be taken to ensure that any such act on the occasion of the lodging of a complaint or during the investigation procedure is appropriately punished.

Reparations

All victims of enforced disappearances and their relatives have the right to full reparation, which includes compensation, satisfaction, restitution, rehabilitation and guarantees of non-repetition, as provided for in article 19 of the Declaration.

The Working Group received little information on reparation programs for relatives of the disappeared and observed that reparation is linked with the positive outcome of a related judicial case. The Working Group recommends that the Government develops with urgency a national reparation programs which include social and psychological support for victims.

The Working Group recommends that any policy that is adopted in the area of reparation, truth and justice takes a gender perspective. In particular, the Working Group recommends the Government to follow the standards developed in its General Comments on women affected by enforced disappearances (A/HRC/WGEID/98/2).

The Working Group also stresses the importance of State-sponsored memorials as well as the State’s support for civil society remembrance initiatives. 

Other issues

There are other issues that the Working Group will examine, among others, in the final report to be presented to the Human Rights Council. These include: allegations of disappearances of migrants and/or refugees transiting through Turkey; non-refoulement of refugees to countries where they may be exposed to enforced disappearances; definition of terrorism-related criminal offences; issues related to the independence of prosecutors and judges; measures extending the length of pre-trial detention and custody periods; witness protection; the impact of enforced disappearances on women; the status, competence and mandate of the Ombudsman and of the National Human Rights Institution.

Conclusion

Turkey needs to come to terms with past disappearances. And it needs to do so in a comprehensive manner, fully addressing them. This should be the result of a clear State policy fully recognizing what happened and dealing with all aspects related to enforced disappearances, namely truth, justice, reparation, memory and guarantees of non-repetition. Enforced disappearance cannot be considered as an issue of the past. It is a continuous crime until the fate and whereabouts of every disappeared person is clarified. Reluctance to come to terms with the past may be the source of further violations in the future, especially taking into account the current environment. 

Important challenges remain to comprehensively address past enforced disappearances and prevent their recurrence in the future: enforced disappearance is not introduced yet in the legislation as an autonomous crime; there are virtually no cases of judicial accountability; the fate and whereabouts of many disappeared persons is still unknown; and many of the burial sites have not been investigated yet.

While the Working Group fully acknowledges the serious security challenges that Turkey is currently facing, it is at the same time concerned at the increasingly worrisome situation in the South-East of the country and its wide impact on human rights.

The Working Group stresses the need to undertake a thorough and impartial investigation into all allegations of human rights violations in the context of the current security operations, including of families not being able to have access to the bodies of their killed loved ones or of bodies being disposed of.

The Working Group reiterates its willingness to continue its constructive dialogue with the Turkish authorities and offers its unreserved support for the full implementation of the Declaration.