Joint Press Statement on the Forensic Institute
The criticism of the Forensic Institute (ATK) made out of scientific concern because the Justice Ministry considers it as a structure for bureaucratic assignments have so far been seen as political criticism and not given the necessary importance.
It has to be taken care that this evaluation is not restricted to the "ill and disabled prisoners" not being treated or released; a point on the agenda of the public in recent days.
This problem is of vital importance and has to be solved immediately, but the question is broader.
In short, today we want to speak about:
- the damage of the Forensic Institute to the impartiality and independence of the judiciary and the right to a fair trial,
- its disability to work because of a broken structure and workload,
- the completely unrealistic notion of "hierarchy of scientific competence" created because of the Institution's existence,
- some subjects which the State Supervision Council that the State President wants to act has to evaluate during its inspection.
- ATK, the greatest expertise institution concerning forensics in Turkey, today has lost its reliability, the most important precondition for an expertise.
- The reports prepared without support from universities, the indispensable source for forensics, scientists and scientific research cannot scientifically and judicially be accepted.
- For the respect in the judiciary and society's confidence in justice it is important that independent institutions evaluate the adequacy and competence of experts and expertise institutions. The fact that ATK continues with expertise is shattering the confidence in justice deeply.
- This situation may not continue and the organization of forensics in Turkey has to be reviewed fast, rebuilt according to scientific data gaining an autonomous and independent nature.
For the effectiveness, productivity and reliability of the State Supervision Council this phase has at all stages to be open for contributions of professional organizations on the subject. We respectfully inform the public that all concerned organizations, mainly the Turkish Medical Association (TTB) and the Association of Forensic Experts (ATUD) with all their experience in forensics and with our manpower are ready to participate in the supervision process of ATK.
TURKISH MEDICAL ASSOCIATION
UNION OF WORKERS IN HEALTH AND SOCIAL SERVICES
ASSOCIATION OF FORENSIC EXPERTS
HUMAN RIGHTS FOUNDATION OF TURKEY
HUMAN RIGHTS ASSOCIATION
ASSOCIATION OF CONTEMPORARY JURISTS
RECOMMENDATIONS FOR STRUCTURING FORENSICS
1. THE FORENSIC INSTITUTE IS AN IMPORTANT OBSTACLE FOR FAIR TRIAL AND PRODUCES THE RESULT OF INTERFERENCE OF THE ADMINISTRATIVE/POLITICAL STRUCTURE OF THE MINISTRY OF JUSTICE INTO TRIALS
The Forensic Institute is based on Law 4810 on the Forensic Institute and Article 64/3 of the Code of Criminal Procedures (CMK) stating that "FOR CERTAIN SUBJECTS IN LAW OFFICIAL EXPERTS WILL BE APPOINTED WITH PRIORITY".
The term official expert contravenes the independence and impartiality of the judiciary and is dedicated to violate the right to fair trial.
Official experts means "State expert". If it is claimed that trials are conducted independently and in the name of the "nation" the code of criminal procedures should by no means include the term "OFFICIAL EXPERT". First of all, this term has to be removed from Article 64/3 CMK.
In the past the handling of execution (of sentences) or the "periodic" needs of the Ministry of Justice resulted in mass decisions of "suspension of execution" and "withdrawal of suspension". This shows that the intervention can become an open and heavy violation of rights and freedoms, in particular of the right to life.
Terms created in legal provisions such as "elements of the crime", "aggravating reasons" or "limits of suffering" ("lasting psychological damage", "life threatening" etc.) are dictated on the institution according to the crime and penalty policy of the executive and (used to) intervene in the judiciary with broad reporting.
2. THE FACT THAT COURTS AND PUBLIC INSTITUTIONS TAKE THE REPORTS OF THE FORENSIC INSTITUTE AS A BASIS DOES NOT MEET THE CONDITION OF "SCIENTIFIC ADEQUACY".
Not the views, the scientific or academic adequacy in the reports of the civil servants but the fact that they prepared the reports as civil servants makes the reports be accepted as prior ranking. While many valuable experts can certainly be found in this institution this basic condition either removes the possibility of checking the reports, the right of the parties to ask for an expertise opinion and independent and impartial reporting or makes them worthless.
The function of forming an administrative "professional and public" opinion, which for instance was realized in the High Health Council (Yüksek Sağlık Şûrası), is not deemed right and necessary for the Forensic Institute.
Article 62 and following Articles in the CMK have to include the condition of "scientific adequacy".
3. THE EXISTING STRUCTURE AND ORDER OF ASSIGNMENT TO THE INSTITUTION LEADS TO DIRECT INTERVENTION OF THE JUSTICE MINISTRY IN TRIALS AND PREVENTS TO SOLVE THE WORKLOAD
According to Law 4810 the Forensic Institute is directly bound to the Justice Ministry. This is an invitation for the Justice Ministry to enter judicial activities.
If the institution is reformed in this status it must first of all be AUTONOMOUS. Therefore, the institution has to be organized outside the Justice Ministry.
Its budget has to be included in the general budget and must be increased.
Its manners of direction have to be independent of the administration, like the Central Bank or other autonomous councils.
For the election of experts or formation of organs such as the general assembly universities that are the direct source of expertise in forensics and expert professional organization must have a word.
The expert councils have to be removed and their work has to be transferred to expert councils formed by universities or education - research hospitals closest to the courts according to the phenomenon in question.
On objection expert councils formed by universities or education - research hospitals identified by the court have to be given the duty; in order to overcome contradictions between expertise opinions or in case of scientific opinions that cannot be understood the experts have to be called to a hearing.
Just like it is accepted for other physicians the right of the TTB for "deontological" control has to be accepted for staff of the institution and decisions of the high honour council immediately have to be put in practice.
We are under the impression that the existing state makes a rectification so difficult that it is almost impossible. In this situation the institution has to be dissolved and reorganized on the basis of universities and local and national councils that are in contact with each other.
For instance, Istanbul Forensic Institute has directly to be bound to State universities in Istanbul, its area of duty has to be confined to a geographical region for which it can meet the workload.
The branches of the Forensic Institute have to be removed from the courtyards and like all other health units must be established outside the location and administrative control. The Directories of Forensic Institute Branches and the Groups' Presidencies have to be related to universities with Forensics as subject for main studies.
In provinces without faculties of medicine forensic experts have to work at State hospitals and provide service by conducting the necessary consultations with experts of other branches. Consultations of a higher degree should be taken from faculties of medicine from the closest universities.
The equipment and staff of the Forensic Groups' Presidencies has to be transferred to the service of the faculty in that province.
It has to be stipulated by law that the courts predominantly consider local expertise opinions, for the payment of fees to the experts legal provisions have be made among the Ministries of Finance - Justice - Health and the Council for Higher Education.
4. THE STATE SUPERVISION COUNCIL FIRST HAS TO LISTEN TO US
Supervision and recommendations made without consulting us, who for years have inspected and evaluated the work of the Forensic Institute on all levels, and without taking our reports and suggestions into account will stay away from grasping the problem.
WHAT MUST BE DONE WITH URGENCY
In implementing Article 16 of the Law on Execution of Sentences and Article 104 of the Constitution university reports are sent for new tests to the Forensic Institute although there is no legal requirement and experts working at universities are considered official experts according to Article 64/3 CMK. The experts at the Forensic Institute are no "scientific, academic or administrative superiors" to universities. This practice must be stopped immediately.
To end this practice no provisions are needed, it is possible with a written order of the Ministry of Justice.
The exercise of Article 16 CMK is not a "judicial" activity of the Republican Prosecutor. Concerning these activities the Ministry of Justice can directly instruct the Offices of the Chief Republican Prosecution and for these duties the chief prosecutors are the administrative superiors of the prosecutors.
For this reason the Justice Minister immediately has to issue a notification, stop the transfer of prisoners with serious health problems to the Forensic Institute, and take the reports of university hospitals as the basis.
A different attitude will make the Justice Minister responsible for violations of basic rights, disablements and deaths.
With the present workload of the present expert councils of the Forensic Institute they cannot fulfil their other duties. Until the structural measures have been taken courts and prosecutors should not send work to the Institute and it has to be ensured that they turn to universities in their region that have expert branches meeting their needs.
HEALTH PROBLEMS IN THE PRISONS:
According to the 2008 report of the Human Rights Association (HRAHuman Rights Association ) 306 prisoners were known to be ill from applications to the HRA. The report calls 16 of them seriously ill. According to the data of the documentation centre of the HRFTHuman Rights Foundation of Turkey there are 34 seriously ill prisoners still in the prisons. The number of cases in applications to the Turkish Medical Association (TTB) is 86. Five patients with cancer and risk of live have been registered. This data only refers to cases the HRA and TTB were informed about and what the HRFT found in the daily press and its own sources for information. These restricted figures alone show what serious dimensions the health problem in the prisons has reached.
In seven months seven prisoners lost their lives because of health problems. In addition, five prisoners committed suicide.
With the death of prisoner İsmet Ablak who died because of cancer in 2009 the number of people that lost their lives because of health problems they got in prison rose to seven.
The death of İsmet Ablak, suffering from cancer, who waited for a long time for a report of the Forensic Institute on his health situation and died not having got out of prison, turned the attention to people dying in prison because of various illnesses and those awaiting death.
On 19 August 2008 State President Abdullah Gül lifted the prison sentence on Necmettin Erbakan, former President of the closed Welfare Party because of "constant illness". Until today seven defendants in the Ergenekon trial were released because of "health problems". Besides Arif Doğan the journalist Ayşe Asuman Özdemir, Deputy Chairman of the Workers' Party, Ferit İlsever, retired General Şener Eruygur, retired General Hurşit Tolon, Prof. Dr. Erol Manisalı, Dean of Uludağ University Prof. Dr. Mustafa Yurtkuran were the seven people released because of health problems including two generals.
Because of the discussions in public on the decision 4083 of the 3rd Expert Council of the Forensic Institute on İbrahim Şahin dated 27.06.2003 and the forensic report on the convict in the Susurluk case and defendant in the Ergenekon case, İbrahim Şahin the Justice Ministry was forced to make a written press statement on 16.01.2009. The release of Cavit Çağlar, diagnosed "panic attack" and the release of Dinç Bilgin on behalf of his eye disease were never discussed.
During protective service, diagnosis and treatment physicians have to act on the principle of just acting towards all individuals and are aware that prisoners have the "right to receive medical care". These rights have become part of our national law in the Regulation on Rights of Patients that was prepared in 1998 in consideration of international texts.
THE RIGHT OF PRISONERS TO EQUALLY BENEFIT FROM THE RIGHT TO HEALTH IS A BASIC HUMAN RIGHT UNDER THE PROTECTION OF THE STATE. However, it can be seen that this protection is not granted in the frame of equality and in the unequal implementation the Forensic Institute is used as a tools according to the conditions needed.