Committee of Ministers: Interim Resolution CM/ResDH(2008)69

Datum	080918
Sprache	English

Resolution about: Execution of the judgments of the European Court of Human Rights

Actions of the security forces in Turkey

Progress achieved and outstanding issues
(Follow-up to Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43)

Adopted by the Committee of Ministers (CoM) on 18 September 2008, at the 1035th meeting of the Ministers' Deputies

175 judgments and decisions in the cases against Turkey were listed in Appendix II. In these cases the European Court of Human Rights (the "Court") found that there had been numerous violations of the Convention such as Article 2 of the European Convention of Human Rights (the "Convention") concerning the Right to Life, Article 3 of the Convention concerning the prohibition of ill-treatment and Article 13 of the Convention concerning the Right to effective domestic remedies. In another 69 cases involving similar complaints friendly settlements had been reached.

The CoM noted that all these violations resulted from various structural problems.

These problems and measures taken by the Turkish Government were presented as (summary by DTF)

Assessment of the Committee of Ministers

Improvement of procedural safeguards in police custody

Encouraging the Turkish authorities to pursue their efforts in ensuring effective implementation of the Turkish legislation with a special focus on the recommendations of the CPT;

• (CoM) DECIDES to close the examination of this issue as the necessary legislative framework is now in place;

Improvement of professional training of members of security forces

Noting further that the Turkish authorities have assured the Committee that they will continue with their efforts to ensure that members of security forces receive initial and in-service training on human rights with a specific focus on the Convention and the Court’s case-law;

• (CoM) DECIDES to close the examination of this issue;

Giving direct effect to the Convention requirements

Noting with interest the amendment introduced in June 2007 in “the Law on the duties and legal powers of the police” which now provides that the police are not entitled to use force unless confronted with resistance and that the use of force should be proportionate, be directed to break the resistance, and be increased gradually;

Noting also the detailed instructions given to the gendarmerie with the aim of ensuring that its members comply with the Convention standards in their daily practice and, in particular, use force no more than strictly necessary;

Recalling the Turkish authorities’ repeated commitments before the Committee that the measures taken shall be applied in compliance with the Convention standards by virtue of Article 90 of the Turkish Constitution giving direct effect to the Convention, as well as their undertaking that the implementation of these measures shall strictly be supervised;

• (CoM) DECIDES to close the examination of this issue;

Law on Compensation

of the Losses Resulting from Terrorism and from the Measures taken against Terrorism

Recalling that the “Law on Compensation” of 27 July 2004 provides a possibility to obtain, directly from the administration, compensation for pecuniary damages caused to natural and legal persons as a result of terrorist activities and operations carried out in combating terrorism during the period of July 1987 to December 2006 with a possibility of judicial review of decisions taken in this respect;

Noting with satisfaction that it appears from a substantial number of sample decisions furnished by the Turkish authorities in the above case that persons who have sustained damage in cases of denial of access to property, damage to their property or death or injury can successfully claim compensation by using the remedy offered by the Compensation Law and that therefore the Committee decided to close its examination of this case at its 1028th meeting (June 2008) (see, CM/ResDH(2008)60);

Noting that the effectiveness of the Compensation Law was confirmed by the Court in its decision of 12 January 2006 in the case of İçyer (No. 18888/02) where it found that “the provisions of the Compensation Law are capable of providing adequate redress for the Convention grievances of persons who were denied access to their possessions in their places of residence”;

• (CoM) DECIDES to close the examination of this issue;

Enhanced accountability of members of security forces

Recalling that the precondition for administrative authorisation required for the investigation of accusations of torture and ill-treatment has been lifted following the amendments introduced in January 2003 to Law No. 4778 on the Prosecution of Civil Servants;

Noting that, with respect to the prosecution of serious crimes other than torture and ill-treatment, there are examples of decisions of courts and prosecutors where prosecutions had been initiated against members of security forces without administrative authorisations having been sought;

Noting however that the amended Turkish legislation appears to have lifted the requirement of administrative authorisations only with respect to allegations of torture and ill-treatment but that it continues to exist with respect to other allegations of serious crimes,

Noting also that highest ranking members of security forces enjoy the special procedures of prosecution applicable to judges;

• (CoM) URGES the Turkish authorities to take the necessary legislative measures to remove any ambiguity regarding the fact that the administrative authorisation is no longer required to prosecute not only for torture and ill-treatment but also any other serious crimes and to ensure that members of security forces of all ranks could be prosecuted without an administrative authorisation;

Training of judges and prosecutors

Welcoming the ongoing training activities for judges and prosecutors initiated by the Turkish authorities, in particular on the Convention and the Court’s case-law, as well as the training activities carried out within the context of the Academy of Justice in the form of seminars, conferences and study-visits;

Noting with satisfaction that training on the Convention and the Court’s case-law has now become a part of the curriculum in the initial training of judges and prosecutors at the Academy of Justice;

• (CoM) DECIDES to close the examination of this issue;

Practical impact of the measures taken

Noting the statistical information provided with regard to the number of investigations, acquittals and convictions of crimes of torture and ill-treatment between 2003 and the first nine months of 2007;

Noting with interest that the statistical information provided can be interpreted as indicating a slight decrease in the number of investigation files opened since 2003 into allegations of torture and ill-treatment;

Regretting however that no information was made available to the Committee with regard to the number of investigations, convictions and acquittals concerning serious offences other than torture and ill-treatment allegedly committed by members of security forces;

Noting the examples provided of indictments lodged with criminal courts and decisions of those courts demonstrating that allegations of abuses by members of security forces are prosecuted and their criminal accountability is established;

• (CoM) STRONGLY ENCOURAGES the Turkish authorities to actively pursue their “zero tolerance” policy aimed at total eradication of torture and other forms of ill-treatment, as well as their efforts to ensure that the domestic authorities carry out effective investigations into alleged abuses by members of security forces;

• URGES the Turkish authorities to provide detailed statistical information regarding the number of investigations, acquittals and convictions into alleged abuses with a view to demonstrating the positive impact of the measures taken so far;

Conclusions of the Committee of Ministers

• (CoM) DECIDES to pursue the supervision of the execution of the present judgments until the Committee has satisfied itself that all outstanding general measures have been adopted and their effectiveness in preventing new, similar violations has been established;

• (CoM) DECIDES to resume consideration of these cases, as regards outstanding general measures, at its third DH meeting in 2009.

Appendix I

Important regulations and (to some extent) translation of legal text can be found in this section)

Length of detention in police custody

According to the Code of Criminal Procedure (which came into force on 1 June 2005), the length of detention in police custody shall not exceed 24 hours from the moment of arrest (plus, a maximum period of 12 hours during which a suspect is being brought before a judge) (see Article 91 of the Code). In organised crimes or crimes committed collectively, the detention period shall not exceed 48 hours. In such crimes, the total detention period can be extended to 4 days by a decision of a public prosecutor. After the elapse of 4 days, the accused should be heard by a judge, who is authorised to extend the detention period for further 3 days (this period also applies to crimes committed in areas where a state of emergency is declared) (Article 251§5).

Right to a lawyer

A suspect or an accused shall have the right to a lawyer before being questioned (in private) and during his/her questioning (Articles 147 and 154 of the Code of Criminal Procedure). The provisions of the new Code provide that no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the Code of Criminal Procedure). The new Code also prohibits the statements obtained under torture, ill-treatment or any methods such as medication, tiring, deception or use of physical force or duress to be used as evidence.

A suspect prosecuted under the Anti-terrorism Law (No. 3713) might be restricted to see his/her lawyer in the first 24 hours of custody by a decision of a judge following a request made by a public prosecutor. However, if such a decision is taken, the suspect shall not be interrogated during the first 24 hours (Article 10 of Law No. 3713).

Furthermore, the legal representative of a suspect shall have the right to have access to the investigation file and to obtain documents. The exercise of this right might be restricted by a decision of a judge if it puts the conduct of the investigation into jeopardy (Article 10 of the Regulation).

Medical examinations

Article 9 of the new Regulation provides the following rules relating to medical examinations:

- All apprehended persons shall be subject to medical examination at the time of their apprehension.
- When a detainee is transferred to another detention area or a decision is taken to prolong the detention period or when a detainee is released, a medical examination shall be carried out before he or she is brought before the judicial authorities.
- Any detainee whose health deteriorates or whose health situation appears to be suspicious while in custody shall immediately be examined by a doctor and be treated if necessary.
- The police officer who interrogates a detainee or carries out the investigation against him or her should not be the same person who brings the detainee to the medical examination unless there is a lack of personnel in the detention premises.
- When requesting a medical examination of a detainee, members of security forces should indicate in writing to the medical team whether such examination is requested at the beginning of custody or upon release.
- Three copies shall be made of medical reports to be prepared on the entry of a detainee. One copy will remain in the medical file, one copy will be given to the detainee and one copy will be kept in the investigation file. Three copies shall be made of medical reports to be prepared following a decision given to prolong the custody period or the transfer of a detainee or his or her leaving custody. One of these copies will remain in the medical file and two copies will be sent to the relevant public prosecutor in a sealed envelope who shall keep copy in the investigation file and submit the other one to the detainee or to his or her representative. Medical personnel should take the necessary precautions to preserve confidentiality.
- If a doctor finds that torture (Article 94 of the Criminal Code), aggravated torture (Article 95 of the Criminal Code) or torment (Article 96 of the Criminal Code) has been inflicted on the detainee, he or she should immediately report the situation to the public prosecutor. The public prosecutor shall take the necessary steps to make sure that a further medical examination be carried out in accordance with Articles 7 and 8 of Regulation on Physical and Genetic Examinations and Identification in Criminal Procedures.

Monitoring of custody records and detention premises by public prosecutors

With the coming into force of the Code of Criminal Procedure, public prosecutors are now authorised to monitor detention premises, in particular cells and interrogation rooms. Public prosecutors are also responsible for monitoring the state of detainees, the reasons for their detention and the length of their detention and all other relevant information in the custody records. Public prosecutors shall note their findings in the custody register (Article 92).

Members of security forces are also under an obligation to ensure that detention premises comply with the standards as enshrined by the Regulation (Article 26).

In a Circular (No.3) issued by the Minister of Justice on 01/01/2006 the authorities have been reminded of their obligations under the Convention and of the case-law of the Court, as well as domestic law provisions, concerning the right to liberty and security and procedural safeguards in police custody. It is emphasised in the Circular that the necessary measures should be taken rapidly in case the detention facilities are found to be below the standards described in the Regulation. Public prosecutors are requested to fill out a form (a sample of which is attached to the Circular) concerning the monitoring of detention facilities and are asked to return the forms to the Ministry of Justice four times in a year so that they can be presented to the Human Rights Coordination Council attached to the Prime Minister’s Office.

Legal framework regarding the use of force by the police

The Turkish authorities informed of the changes introduced on 2/6/2007 to Law No. 2559 on the duties and legal powers of the police, which now provides that the police are not entitled to use force unless confronted with resistance. According to the amended Article 16 of the law, the use of force should be directed to break the resistance and should be proportionate. The use of force could be increased gradually, depending on the nature and level of the resistance confronted with (i.e. the police shall first use physical force, then will interfere with other devices (such as tear gas, truncheon etc) and, as a last resort only, the police shall use firearms). The police shall warn the person(s) resisting that they will use force if they continue resisting. However, if the circumstances of the resistance so require, the police might use force without warnings. The police shall consider and decide the level of the force that they will use; including the devices they will use to break the resistance. The police are entitled to legitimate defence in cases of attacks directed against them or to third persons. The police are entitled to use weapons in self-defence, in cases where they cannot neutralise resistance by physical force or other devices or in order to secure an arrest, detention or in cases of flagrante delicto. In those situations the police shall issue a stop order before using a firearm. The police are entitled to use a firearm without hesitation to person(s) attempting to use a firearm against them within the limits of neutralising the danger.

Direct effect given to the Convention

Concerning the direct effect given by prosecutors and judges to the Convention, the Minister of Justice issued a series of Circulars on 01/06/2005 drawing the attention of the former to the newly enacted legislation, as well as the shortcomings identified by the Court in its judgments against Turkey. Recalling Turkey’s obligations flowing from the Convention, the Minister referred, in particular, to the following:

Administrative authorisation to prosecute

As regards the requirement of administrative authorisation to prosecute serious crimes allegedly committed by members of security forces, Law No. 4483 on Prosecution of Civil Servants came into force on 2/12/1999 replacing the Law of 1914. The new law lays down the procedures applicable concerning the authorisation to be given in order to bring proceedings against civil servants for the crimes committed during the performance of their duties. However, Article 2 of the law provides for the exceptions to this rule. Accordingly, no administrative authorisation shall be required in the below situations in the prosecution of a civil servant:

• Investigations and prosecutions of civil servants who are subject to special procedures of investigation and prosecution because of the nature of their duties or because of the nature of the crime at issue;
• Situations of flagrante delicto requiring severe punishment;
• Disciplinary proceedings;

As a forth exception, the below paragraph was added to Article 2 by Law No. 4778.

• Investigations and prosecutions to be initiated under Articles 243 and 245 of the [former] Criminal Code and Article 154 § 4 of the [former] Code of Criminal Procedure (These articles concerned the crimes of torture and ill-treatment and were replaced by Articles 94 and 95 of the new Criminal Code. Article 154§4 gave authority to public prosecutors to launch proceedings against members of security forces in cases where they fail to carry out the orders and requests of public prosecutors. Article 161 of the new Code of Criminal Procedure confirms the authority of public prosecutors to launch proceedings against members of security forces. However, for prosecutions to be brought against governors and provincial governors, the provisions of Law No. 4483 shall apply. Highest ranking members of security forces shall be prosecuted in accordance with the provisions applicable for judges).

The official statistics

Statistical material which the Turkish Government provided were presented at the end of Appendix I. The single table presenting the data is confusing, because the number of cases are not specified as cases of investigation or court cases (trials). Likewise there is no indication as to whether the accused members of the security forces are suspects or defendants. Column two of the table in Appendix I had two figures

• investigation files
• accused personnel

In the following table these figures are separated as the number of accused and investigations (columns at the end).

year	indicted	no prosecution	sentenced	acquittal	accused	investigations
2003	2333	1153	862	1375	5588	2612
2004	1824	1230	462	1631	5173	2413
2005	1052	1005	459	1870	4277	1721
2006	831	1216	1921	146	4443	1965
2007 (Sept.)	426	1068	139	590	3722	1421
Sum	6466	5672	3843	5612	23203	10132

From these figures one might conclude that in 4.75 years there were 10,132 complaints against 23,202 suspects (members of the security forces suspected of having ill-treated or tortured detainees). If all the official complaints forced prosecutors to launch an investigation, they (or others) decided against prosecution in 5,672 (cases or against suspects?) and indicted (in) 6,466 (cases or against suspects?). The sum of 12,138 does neither correspond with the number of suspects or the number of investigations. Likewise, if you add the figures on indicted (people?), decisions against prosecution, convictions and acquittals you end up with a figure of 21,593 that does not correspond with the figure on suspects.

Further figures similar to the ones prepared for the Committee of Ministers were presented in the Turkish parliament; see English article in BIA. More figures that to some extent make a comparison possible can be found in Turkish in the newspaper Taraf. Link to the article Based on the article the following list can be compiled:

year	victims	perpetrators	files	no pros.	investigations	indicted
2006	3962	6018	1996
2007	3339	6735	1901
Sum	7301	10886	4662	2644 cases	3969 cases	614 cases
				6397 officers		1223 officers

In parliament figures were presented for the years 2006 and 2007. The list found in the resolution only includes the first nine months of 2007. But this is not the only obstacle for a comparison. The list in the resolution (termed CoM list) does not mention the number of victims that the Minister of Justice (termed Justice M.). The term closed files is equal to the term no prosecution in the list above

Source	victims	accused officers	closed files	involved officers	indictments	involved officers
CoM list		8165	2284			1257
Justice M.	7301	10886	2644	6397	614	1223

Conclusions

Apart from uncertainties on the accuracy of the data provided by the Turkish Government one must be very optimistic to follow the conclusion of the Committee of Ministers stating that torture and ill-treatment is on the decline. The number of victims was 3,962 in 2006 and 3,339 in 2007 according to the statement of the Minister of Justice in parliament, but looking at the list submitted to the Committee of Ministers one can only say that the number of indicted security personnel decreased between 2003 and 2007.

Earlier resolutions of the Committee of Ministers included more detailed lists. The number of victims of torture and ill-treatment were presented as

year	investigations started	pending cases	sum
2003	1306 victims	1694 victims	3000
2004	1382 victims	1909 victims	3291
2005	1296 victims	2339 victims	3635

This means that if the number of victims in both categories (investigation launched and pending cases) are added the number of victims in 2007 was higher than in 2003 and there was a constant rise between 2003 and 2006.

Further conclusions could be:

• In two years 7,301 people complained about torture or ill-treatment
• Suspicion fell on 10,886 members of the security forces
• In just 614 cases (out of 3,969; unclear what happened to the remaining 693 of 4662 cases) a total of 1,223 (out of 10,886) officers were indicted; two thirds of the investigations ended by decision not to prosecute.
• In other words: just 15.5% of investigated cases resulted in court cases involving 11.2% of the alleged perpetrators

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Footnotes