MODOS DE OPERACIÓN

Amendments to the Code of Criminal Procedures, called the CMUK, which was the subject of public debate in 1992 and 1993 was on the agenda also in 1994. The CMUK which has not prevented torture, remained only “an indicator of respect for human rights” used by authorities when they were hard pressed. Many negative examples witnessed during the year showed once more that the CMUK, which was put into force on 1 December 1992 did not prevent torture, did

(*) _{The following people were members of the Human Rights Supreme Consultancy Board within the}

Ministry of State responsible for human rights: “Toktamış Ateş, Aysel Çeliker, Korkmaz Alemdar, Ekrem Aksoy, Tekin Akıllıoğlu, Okan Hasan Aktan, Füsun Arsala, Mehmet Aydın, Aysel Aziz, Süheyl Batum, Lütfi Doğan, Hüsnü Göksel, Cahit Talas, Tahir Hatipoğlu, Nevzat Helvacı, Yakup Kepenek, Ioanna Ku-çuradi, Yaşar Nuri Öztürk, Maksut Mumcuoğlu, Rıfat Önsoy, Ilhan Tekeli and Kamil Turan.” Holding a press conference on 27 September, Azimet Köylüoğlu disclosed that a Human Rights Supreme Consul-tancy Board had been established. He said: “This board will guide the government in determining and re-arranging its policies on human rights and for overcoming difficulties in this field.”

not bring any important changes to the judicial system and was an attempt to appease public opinion (especially abroad).

The CMUK, (*) _{consisting of 31 fundamental articles, may be considered a positive}

document from certain aspects because it generally concretizes arrest conditions, partially pre- vents arbitrary arrests, shortens the detention period and gives the authority to extend this pe-riod to a judge, enables a defendant to have an access to her/his lawyer, secures for lawyers the right to examine investigation documents, enumerates forbidden interrogation methods, deter-mines interrogation methods and gives a defendant the right to remain silent and to raise objections against continuation of her/his arrest. Nevertheless these positive aspects should not mislead us. The amendments to the law do not cover the political investigations during which torture cases occur most frequently. This discrimination alone is an indicator that the law is not capable of preventing torture. Article 31 of the law says that most of these amendments will not be applied to crimes under the competence of the SSCs. Thus, an extraordinary judicial order was created and two separate legal regimes were systematized in the same country.

Though the aim of these amendments is to remove human rights abuses, Article 31 of the law constitutes a move further away from this aim, as human rights violations mostly occur with defendants under the jurisdiction of the SSCs, and torture and prohibited interrogation methods are mostly practised in the Emergency State Region. By means of the law, human rights violations and prohibited interrogation methods during interrogations under the juris-diction of the SSCs and in the Emergency State Region were legalized and torture was brought under a legal umbrella. Article 31 of the law took much of the force out of the positive amend-ments. The law did not introduce an important measure to end torture. The detention period was not shortened decisively. In addition, former detention periods foreseen for crimes in the Emergency State Region and under the scope of the SSCs remained the same. Under the law, the detention period for ordinary crimes may be extended to 8 days in certain cases, whereas, between 1973 and 1980, this period was a maximum of 7 days. This situation shows that the present law cannot even match the standards used 20 years ago. The 8-day detention period is in contravention of Article 5/3 of the European

(*) _{Amendments made on the CMUK (the Law No. 3842) are briefly as follows: Detention periods will}

decrease to 24 hours for individual crimes, and to 4 days for collective crimes. This period may be extended for an additional 4 days by the decision of a judge for collective crimes. The detention period will be 15 days for crimes under the jurisdiction of the SSCs and 30 days in the Emergency State Region, as it was before. Lawyers will be able to be present at every stage of an investigation. A defendant may have access to a lawyer during interrogation. A defendant’s right to have a lawyer during interrogation and to demand legal assistance from his/her lawyer can not be rejected. Testimonies of defendants below 18 will be received in the presence of a lawyer without regard to their demands. Bar association will secure a law-yer for any defendant who is unable to hire one. However, these provisions are not valid for those detained because of crimes falling under the jurisdiction of the SSCs. Testimony which is taken under torture, ill-treatment or by means of certain physical or psychological intervention breaking down will-power, is not valid. This will be applied for all crimes without discrimination. While being interrogated by either secu-rity officers or prosecutors, a defendant will be made aware of “the offences s/he is charged with” and of “his/her rights including the right to remain silent”. These will not be applied for cases under the jurisdic-tion of SSCs. Periods under arrest will be no more than 6 months during the preliminary interrogation stage and no more than 2 years for crimes entailing prison sentences up to 7 years during the trial stage. On the other hand, for crimes entailing sentences of more than 7 years’ imprisonment, a judge will decide whether the period under arrest will continue or not. In that sense, arrested individuals may be released on bail if the judge approves. These provisions do not include cases under the jurisdiction of SSCs.

Convention on Human Rights which guaran-tees that persons apprehended shall immediately be brought before a judge.

Before this law, lawyers already were able to meet defendants in the preliminary stage of an investigation in accordance with a Circular of the Prime Ministry promulgated in 1990. Crimes under the scope of the SSCs were included in this Circular. The right to access to a lawyer which had been granted by the Circular to all defendants, including those under the competence of the SSCs was withdrawn by this law, thus resulting in a step backwards. Disre-garding the universal principles of judicial procedures, the legislation has handed over deter-mining the characteristics of the crime, and responsibility and authority, to police. Handing over of this judicial function, which had previously been carried out by prosecutors and judges, to police leads to unavoidable arbitrary applications by police.

Detainees are left to the supervision of officers who have been applying torture as an interrogation method for years. “To have access to a lawyer, to secure that a lawyer is present during interrogation and to provide legal aid for defendants” is not enough to prevent torture. Without changing the staff who over the course of many years became used to inflicting torture, it is difficult to believe that these measures will prevent torture. With the amendments, a discri- mination was created between political and ordinary crimes, the right of political offenders to a fair trial was disregarded and the principle of “equality” was ignored. However, Articles 5 and 6 of the European Convention on Human Rights give everybody a “right to defence and a fair trial”. Even if only on paper, the 1982 Constitution provides the right to defence for everybody. Thus, the amendments lag behind the 1982 Constitution.

Under Article 29 of the law, the number of crimes under the scope of the SSCs was reduced. However, in this provision there is an attempt to cover up an important fact. It is mis- leading to think that the number of the crimes under the scope of the SSCs has actually dec-reased. In the amendments, certain cases such us smuggling and fictitious exports were ex-cluded from the scope of the SSCs. When considering other crimes said to have been excluded from the scope of the SSCs, we are faced with another picture. Article 1 of the “Law to Fight Terrorism” is still in effect and many crimes excluded from the scope of the SSCs are nonethe-less considered to be terror crimes under the “Law to Fight Terrorism”. This means that a piece of writing, a speech or a leaflet found in a flat may easily be taken up under the “Law to Fight Terrorism”. Thus, a defendant may be tried by a SSC, may be kept in detention for 15 days (30 days in the Emergency State Region), will not be allowed to have access to her/his lawyer, and her/his relatives will not be notified. S/he may even be arbitrarily and unnecessarily arrested and kept under arrest for years.

Incidents witnessed during 1994, illustrated weakness and failures of the CMUK. It did not prevent torture which has been an outstanding problem of Turkey for years. Torture cases and claims, deaths in detention, and complaints made by many organizations, particularly bar associations about negative applications which continued after 1 December 1992, the date when the law was promulgated in the Official Gazette and entered into force, made it evident that the amendments did not secure any improvement. The CMUK remained ineffective not only in the prevention of torture but also in preventing deaths because of torture, and it did not bring any decrease in torture cases.

The failure of the CMUK was not limited to the political cases under the jurisdiction of the SSCs and in the Emergency State Region. The amendments to the CMUK were mostly ignored in ordinary judicial investigations. Provisions which favour defendant, particularly those enabling

lawyers to be present during interrogation, were disregarded by security of-ficers. Lawyers registered to the Istanbul Bar Association revealed 12 torture cases in judicial investigations in August, and lodged official complaints to prosecution office. Special provi-sions foreseen for the investigations concerning defendants below 18 years (for example; inter-rogation in the presence of a lawyer, informing of families regardless their demands) were not obeyed. The lawyers who insisted on the implementation of the CMUK provisions were exposed to attacks and insults by security officers.

The Istanbul Bar Association disclosed that some lawyers in an effort to earn more money made agreements with police which provided them to be always called to police stations during interrogations and this was a misuse of the CMUK. The complaints to the Istanbul Bar Association claimed that such kinds of lawyers did not in fact go to the police stations, but merely signed statements by police in their own offices and shared the money with police offi-cers. Indicating that a lawyer who was present during an interrogation was paid TL 245,000 (in 1994) for each case, Istanbul Bar Association Secretary General Uğur Yetimoğlu said: “We launched an investigation about 5 lawyers since they misused the law.”

In spite of all its deficiencies and failure in preventing torture, the CMUK incurred the wrath of security officers and certain circles. In an effort to sway public opinion, these circles alleged that the CMUK protected criminals and thus the rate of crimes had increased. Many authorized or unauthorized people, from officers in police stations to the Ministry of Interior, were involved in this effort. For example; replying to a parliamentary question submitted by Kahramanmaraş Deputy Ahmet Dökülmez to the Chairpersonship of the National Assembly in March, Interior Minister Nahit Menteşe said: “The number of judicial crimes increased con- siderably after the Law No. 3842, which amended some articles of the CMUK, had been put into force. While the number of the judicial cases was 71,284 in the first 8 months of 1992, this figure rose to 112,487 in the same period of 1993. This means a 57.8 percent increase.” He ans-wered a question about the effect of the CMUK on torture cases, as follows: “In 1992, the num-ber of alleged torture cases was 8 and the number of personnel against whom investigations were launched was 31. After the CMUK was put into force, the number of claims on torture cases decreased to 3.”

Then Justice Minister Seyfi Oktay, who replied to a similar parliamentary question by Ahmet Dökülmez on the same days said that 224 trials had been launched concerning torture and ill-treatment cases in the 6-month period before 1 December 1992, when the CMUK entered into force, and 287 trials had been launched in the following 6 months.