IHD SPECIAL REPORT:
TESTIMONIES, INTERVIEWS, FORCED INFORMANT-MAKING THROUGH METHODS OF COERCION AND THREAT, AND ABDUCTION CASES
According to applications filed before the Human Rights Association (IHD) and news reports published by the press; many people, notably university students, journalists, and activists have recently been forced to testify off-the-record and attempts have been made to turn them informants. Those who have refused such attempts were either subjected to enforced disappearance after being abducted or imprisoned having been charged with “membership in an illegal organization,” or were released after a while following their abduction having been subjected to various forms of torture and ill-treatment.
When such related complaints are analyzed, it is observed that persons who introduce themselves as police officers first attempt to get together with the mentioned individuals saying that they would like “to have a conversation, to become friends” then threaten these individuals, who take part in these meetings but refuse their requests, with their families, businesses, health conditions, and private lives; sometimes threatening them with detention or arrest, and sometimes with death.
Detainees at detention centers are forced to testify off-the-record before any legal testimony taking procedure without the presence of a lawyer having been taken into interview rooms periodically. Detainees are intimidated by the threat of getting arrested or being followed by the police at all times and will not be left alone even if they are released.
Such arbitrary practices sometimes end up in the abduction of the person, subjection to torture and ill-treatment, insult and threats; persons are abducted blind-folded by people unknown to them having been forced into a vehicle, they are battered for days on end only to be set free in a desolate place. There are, however, people who have been abducted and not heard from again.
In some of the abduction cases, images of the moment of abduction are present while there are eyewitnesses in some others. The common denominator of these cases are black Volkswagen Transporter vans with dark screens. These cases commonly observed in Ankara following the military coup d’état attempt of 15 July 2016 remind the public of JİTEM (Gendarmerie Intelligence and Anti-Terror Unit) which was an in-state paramilitary structure and a different version of the counter-guerilla where the perpetrators of enforced abductions by Toros brand white vehicles in many places in Turkey, notably the Eastern and Southeastern Anatolia Regions, during the 1990s nested. They also call in mind thousands of people who were murdered during such abductions.
The applications filed before IHD’s Ankara, Istanbul, Izmir, and Diyarbakir branches in 2018 have been specially examined and summarized in the appendices to the present report. According to the data collected, 14 individuals filed applications before the Istanbul Branch, while 7, 19, and 4 individuals filed applications before the Diyarbakir, Izmir, and Ankara branches respectively. The Documentation Unit at IHD Headquarters, on the other hand, ascertained 23 separate cases through the press other than the ones filed before its branches. It has also been seen that only one application lodged before its headquarters was about abduction and disappearance, and the relatives of this person informed that the person in question was found later on but this information was not shared with the press for the person’s safety of life. Other applications were about forcing individuals to become informants through coercion and threats, threats in custody, and short-term abductions to scare them off while in all cases the prohibition of torture and ill-treatment was violated.
These arbitrary practices also account for the repercussions of repressive policies implemented by the state especially upon the declaration of SoE. They constitute more than one offense including threat, insult, torture, deprivation of liberty of the person, and misfeasance in office as well. Further, Article 77 of the Turkish Criminal Code prescribes that “if the act of deprivation of liberty of person is systematically committed in line with a plan against a segment of the society with political, philosophical, racial, or religious motives” it constitutes a “crime against humanity.”
Within the scope of criminal complaints filed before public prosecutors’ offices, however, non-prosecution decisions are mostly taken without ever conducting sufficient investigation and examination on the grounds that the perpetrator(s) could not be identified and preventive measures to enable the safety of life of the person are not taken either.
While the applications filed before IHD and printed in the press correspond to a little portion of such practices, individuals sometimes cannot share what they went through even with their families and hide the incident out of fear and think that they may accordingly protect their safety of life. There are individuals who want to leave Turkey and live abroad having abstained from initiating legal proceedings because of such fears.
Yet, all these practices violate the right to liberty and security of person enshrined in Article 19 of the Constitution, Articles 3 and 9 of the Universal Declaration of Human Rights, Article 9 of the United Nations International Covenant on Civil and Political Rights, and Article 5 of European Convention on Human Rights. While the Constitutional Court defines “the right to liberty and security of person as a fundamental right which guarantees that the state cannot interfere with the liberty of individuals arbitrarily,” the European Convention on Human Rights refer to it as the most significant right in a democratic society.
Particularly, Article 148 of the Code of Criminal Procedure regulates the prohibited procedures in testimony-taking and interviews. As per this article, the statements of the suspect or the accused should be based on his/her free will. Physical or mental interventions like ill-treatment, torture, drugging, exhaustion, deception, coercion or threats, utilization of some tools cannot be undertaken. Unlawful benefits cannot be promised. Testimonies taken by means of prohibited procedures cannot be admitted as evidence even if they are given by one’s consent. Testimony taken by law enforcement without the presence of counsel cannot be predicated upon the facts of the court’s ruling unless they are verified by the suspect or defendant before the judge or the court. When the necessity to re-take the testimony of the suspect about the same incident emerges, this procedure can only be undertaken by the public prosecutor.
Those who are detained or invited for a talk or abducted should know that their right to liberty and security of person prescribed by law is violated by these persons identifying themselves as police officers, that their testimonies cannot be taken without their legal counsels, that the practice of “interview” is not defined by the Code of Criminal Procedure and is completely arbitrary, that methods of coercion and threat are implemented within attempts to turn them into informants, these correspond to the above-mentioned offenses, and that they should file criminal charges against such practices.
Turkey has not signed the United Nations International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly of the UN on 20 December 2006 and entered into force on 23 December 2010 having been signed by 88 countries as of 19 April 2011. Under Article 1 of the Convention “No one shall be subjected to enforced disappearance. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for enforced disappearance.” Yet, if the competent authorities do not take the necessary measures a new enforced disappearance case may be added to the previous cases.
In spite of the fact that IHD lodges applications and files petitions before the Ministry of the Interior, governors’ offices, and the Grand National Assembly of Turkey’s (GNAT) Human Rights Committee asking them to identify the perpetrators and to put an end to such practices within the scope of applications filed before it, these applications are generally rendered inconclusive on such grounds as perpetrators could not be reached, the allegations were only limited to the complainants’ statements, and there was no evidence. The same also holds true when filing criminal complaints about these incidents. Such responses account for another revelation of the fact that the policy of impunity in Turkey has become a matter of culture.
Republican People’s Party (CHP) Vice-Chairperson and Istanbul deputy Sezgin Tanrıkulu tabled a parliamentary question on 25 April 2017 seeking information about the abduction allegations concerning a total of 7 persons, 1 being before the failed coup d’état of 15 July and 6 being after the coup attempt, but this motion was left unanswered. Further, IHD announced on 27 May 2017 that it referred the cases of 11 people who had been abducted and had not been heard from again to the United Nations Working Group on Enforced or Involuntary Disappearances. Thereupon, Human Rights Watch (HRW) sent a letter to Minister of Justice Abdülhamit Gül stating that Turkey had a “shameful” history of enforced disappearances and it was vital that the Turkish authorities demonstrate their commitment to upholding the absolute prohibition on enforced disappearances and take urgent action to eradicate any practice of holding people in unacknowledged detention.
When the data collected in IHD’s 2017 report and balance sheets are taken into consideration, it has been ascertained that 9 persons were subjected to enforced disappearance under custody while 131 persons, 5 of whom were children, were threatened by law enforcement officers that suggested becoming informants for them.
As the IHD Headquarters notified the United Nations Working Group on Enforced or Involuntary Disappearances about the situation of many persons who were forcibly abducted and were not heard of again, some of these individuals were released afterwards while some were imprisoned, and some who could not endure the torture they were subjected to committed suicide. IHD closely follows the fate of these individuals.
Law Enforcement Monitoring Commission
The European Union in its progress reports of 2005-2015 prepared within the scope of Turkey’s membership process stated that there was a need for a monitoring system for the law enforcement. The aim was to design a legal framework for the establishment of a new complaints system regarding the Turkish police and gendarmerie through the “Independent Police Complaints Commission and Complaints System for the Turkish National Police and Gendarmerie General Command” twinning project signed between the Republic of Turkey’s Ministry of Interior and United Kingdom’s Home Office and went into force on 6 February 2007. To this end, the Law Enforcement Monitoring Commission was founded by Law No. 6713 on the Establishment of Law Enforcement Monitoring Commission having been published in the Official Gazette No. 29717 on 20 May 2016.
According to the United Nations, if an independent monitoring system (law enforcement complaints system) is duly built, not only does it enable internal and legislative monitoring but also it fills in a significant gap in providing accountability for the law enforcement. According to the Council of Europe, a law enforcement complaints system should be regarded not as an alternative to criminal procedure or claims for damages but as something supplementary to them. However, the Law Enforcement Monitoring Commission which was introduced to our legal system through Law No. 6713 does not seem to achieve the results aimed for the independent monitoring system. The shortcoming at this point reveals itself particularly in the fact that the commission was given insufficient authority and its independence could not be secured. Further; the failure of the commission to organize in a country-wide scale, its limited number of staff, and the fact that the public is virtually unaware of its existence also prevent achieving the expected results from the monitoring mechanism.
GNAT Human Rights Inquiry Committee
The committee does not have a sub-committee to inquire human rights violations by security and intelligence officers. Moreover, when the committee’s reports within the 26th Legislative Period are taken into consideration, it was seen that there were no documents showing any monitoring activity for the law enforcement. IHD sees in the Committee’s responses that it sent official letters seeking inquiries from the Ministry of Interior and relevant public offices following IHD lodged applications before it. The committee, however, does not have an effective position with regards to prevention.
Human Rights and Equality Institution of Turkey
Human Rights and Equality Institution of Turkey (Türkiye İnsan Hakları ve Eşitlik Kurumu –TİHEK) was established by Law No. 6701 that went into force having been published in the Official Gazette No. 29690 dated 20 April 2016. The primary tasks of the institution include fighting against discrimination and securing equality, serving as the national prevention mechanism regarding torture and ill-treatment, and to contribute to the prevention and promotion of human rights. The institution performs its task as the national prevention mechanism within the framework of the provisions set forth in the “Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment” (OPCAT).
The resolutions and reports in TIHEK’s website present neither application-based nor ex officio inquiries into incidents referred to in the present report. Further, TİHEK officials indicated that the applications lodged before it by IHD on ill-treatment allegations mostly taking place in prisons were not eligible for inquiry on the grounds that such applications could only be lodged by real persons who were the actual victims in the said incidents. IHD, thereupon, communicated to TIHEK the fact that its applications should be inquired ex officio. In other words, one can argue that TIHEK does not perform its task as the national prevention mechanism either.
GNAT Security and Intelligence Committee
The Security and Intelligence Committee was founded within the meaning of Article 12 of Law No. 6532 on Amendments to the Law on State Intelligence Services and the National Intelligence Organization dated 17 April 2014 and under additional Article 2 amended to Law No. 2937 on State Intelligence Services and the National Intelligence Organization dated 1 November 1983. The committee is in charge of analyzing the reports penned on security and intelligence activities conducted by the Under-secretariat of the National Intelligence Organization, Directorate General of Security, Gendarmerie General Command, and the Financial Crimes Investigation Board and reporting them to the GNAT Speaker’s Office and is also tasked to monitor them. It should at the same time develop recommendations to protect the safety of personal data collected within the scope of security and intelligence services along with the rights and freedoms of persons.
It is seen that the committee started its activities within the 27th Legislative Term by 1 November 2018 but it only analyzed the 2017 Report on State Intelligence Services and Security and Intelligence Activities and did not engage in any other monitoring activity.
CONCLUSION AND RECOMMENDATIONS
- Persons who face threats, coercion, and enforced abduction should know that all these practices are in violation of the right to liberty and security of the person and the prohibition of torture and ill-treatment, should not submit to such coercive methods, should not participate in prohibited interrogation and testimony procedures, and should initiate all legal processes particularly filing criminal complaints against officers who engaged in such attempts before prosecutors’ offices.
- Notably chief public prosecutors’ offices, Ministry of the Interior, GNAT Human Rights Inquiry Committee, Ombudsman’s Office, Human Rights and Equality Institution of Turkey, and human rights boards at governors’ offices should undertake their founding purposes and should follow such violations ex officio to contribute to the effective undertaking of judicial and administrative investigations.
- The Law Enforcement Monitoring Commission founded under the Ministry of the Interior should initiate its activities in line with the criteria put forth by the UN and the CoE and should guarantee the accountability of law enforcement.
- Security and intelligence units should conduct their activities as prescribed by law, should put an end to collecting evidence from persons through methods of coercion and threats, and the GNAT Security and Intelligence Committee should establish a sub-committee to inquire the illegal activities of intelligence organizations.
HUMAN RIGHTS ASSOCIATION
 http://webftp.gazi.edu.tr/hukuk/dergi/20_4_5.pdf Also see: https://rm.coe.int/opinion-of-the-commissioner-for-human-rights-thomas-hammarberg- concern/16806daa54
*Cover image: https://www.coe.int/en/web/commissioner/-/international-day-of-the-victims-of-enforced-disappearance?desktop=false