AI: Justice Delayed and Denied in Turkey
Covering various aspects of the criminal justice system with its observed drawbacks in practice, the AI report listed a seven -point recommendation to the Turkish government.
Amnesty called on Ankara to fully and promptly investigate allegations of torture or other ill-treatment, end all use of evidence extracted under torture or other ill-treatment in court, ban incommunicado detention, ensure the principle of "equality of arms" and the right to an effective defense, end prolonged pre-trial detention and protracted criminal proceedings and address the failure of courts to conduct thorough and impartial retrials after European Court of Human Rights rulings.
"One area of concern - the focus of this report - is criminal proceedings against people charged under anti-terrorism legislation" said the introduction section of the report adding, "Such individuals are tried in special Heavy Penal Courts, which replaced the State Security Courts after they were abolished in June 2004.
"Amnesty International is concerned about a pattern of unfair trial procedures, in particular in relation to people who were charged under previous legislation and whose trials began in the State Security Courts, but for whom the legislative changes and continuation of their cases in the special Heavy Penal Courts have not resulted in justice."
The report focuses on people charged between early 1993 and the end of 2004 whose cases are still ongoing and is based largely on research carried out in Turkey in 2005 and 2006, including the observation of trials before the special Heavy Penal Courts.
Amnesty collected a sample of cases from lawyers in Istanbul, Ankara, Izmir and Diyarbakır and the report itself includes five cases from amongst this sample which, says AI, illustrates the concerns raised in full detail and makes mention in footnotes of other cases.
The report highlights the following violations of fair trial rights:
* Lack of safeguards during interrogation in the recent past: incommunicado detention (including denial of access to legal counsel) and inadequate medical examinations
* Failure to investigate allegations of torture or other ill-treatment in police or gendarmerie custody
* Continuing use of statements allegedly extracted under torture or other ill-treatment as evidence for prosecution and in on-going trial proceedings
* Denial of equality of arms and of the right to an effective defence
* Extremely prolonged pre-trial detention(2) in violation of the right to trial within a reasonable time or to release from detention
* Protracted criminal proceedings, in violation of the right to be tried without undue delay
* Failure of courts to conduct thorough, impartial and de novo examination of evidence and its application to law in retrials of cases following European Court of Human Rights rulings which have found Turkey in violation of fair trial provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
Amnesty International considers that as an urgent priority, a systematic review of all pending criminal proceedings should be undertaken to determine all those cases where there are allegations that, during interrogation in the course of the initial investigation, statements by defendants or witnesses were illegally extracted through torture or other ill-treatment.
The organization recommended that the Turkish authorities should then drop all cases where the main evidence against the defendant rests on "confessions" alleged to have been illegally extracted under torture or other ill-treatment.
Recommendations
In its recommendations section, Amnesty International called on the government of Turkey to institute immediate measures to ensure compliance with international standards for fair trial:
Fully and promptly investigate allegations of torture or other ill-treatment
* Fully and promptly investigate allegations of torture or other ill-treatment, in compliance with the UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In particular:
* undertake an investigation wherever there are indications that torture or ill-treatment might have occurred, even in the absence of an express complaint
* ensure that the investigation is conducted by competent and impartial experts, who are independent of the suspected perpetrators and the agency they serve. For example, an investigation into allegations of torture or other ill-treatment perpetrated by police officers cannot be conducted by other police officers
* stop basing decisions to pursue or drop investigations into allegations of torture or other ill-treatment on frequently deficient medical reports, but take evidence from all those concerned and arrange prompt on-site inspections and specialist medical examinations
* give detainees immediate access to independent, impartial and competent medical and psychiatric experts, for examinations that should be conducted in private under the control of the medical expert and outside the presence of security or other government officials, and with all necessary equipment for the medical investigation of different forms of torture and ill-treatment
* put into effect the "zero tolerance for torture" policy by taking urgent steps to combat the climate of impunity enjoyed by members of the security forces by ensuring that, if enough admissible evidence is gathered, suspected torturers are prosecuted in a fair trial.
End all use of evidence extracted under torture or other ill-treatment in court
* ensure that the courts investigate all allegations that evidence has been obtained by torture or other ill-treatment
* ensure that any evidence elicited as a result of torture or other ill-treatment is excluded at trial in compliance with Article 148(1) of the Turkish Criminal Procedure Code (Article 135(a) of the former CPC, applying to all detentions prior to 1 June 2005) and Article 15 of the UN Convention against Torture
* review all pending criminal proceedings to determine all cases where there are allegations that statements by defendants or witnesses were illegally extracted through torture or other ill-treatment
* drop all pending criminal cases where the main evidence against the defendant rests on "confession"-based evidence alleged to have been illegally extracted through torture or other ill-treatment.
Ban incommunicado detention
* incommunicado detention should not be allowed under any circumstances, particularly as it often facilitates the use of torture or other ill-treatment
* repeal a June 2006 amendment to the Law to Fight Terrorism (Article 9(b) of Law 5532) permitting restriction of access to legal counsel in the first 24 hours of detention.
Ensure the principle of "equality of arms" and the right to an effective defence
Ensure that prosecution and defence are treated before the courts in a way that gives them a procedurally equal position during the course of the trial and an equal position to make their case ("equality of arms"). This includes ensuring the right to adequate time and facilities to prepare a defence. In particular:
* repeal further June 2006 amendments to the Law to Fight Terrorism (Articles 9(d) and 9(e) of Law 5532) limiting the right to an effective defence and imposing restrictions on the right to confidential meetings between lawyer and client
* take measures to ensure that, where necessary, defendants enjoy the right to be assisted by qualified interpreters at all stages in the investigation and during court hearings
* ensure the defendant's right to call and examine witnesses. In particular, take steps to end the practice of courts ruling arbitrarily to reject legitimate requests by defence lawyers for prosecution witnesses (and defence witnesses) to be brought to court to testify and to be cross-examined
* ensure that the prosecutor is not seated with the judges but on a par with the defence.
End prolonged pre-trial detention and protracted criminal proceedings
* ensure respect for the rights of all persons charged with a criminal offence to trial without undue delay
* ensure that all persons detained pending completion of criminal proceedings are tried within a reasonable time, or released pending trial if the time deemed reasonable in the circumstances is exceeded
* revise the not-yet-enforced law which sets a 10-year maximum period of pre-trial detention for persons being tried by the special Heavy Penal Courts (Criminal Procedure Code Articles 101(2) and 252(2)), so that it is consistent with Turkey's obligations to ensure completion of criminal proceedings within a reasonable time
Address failure of courts to conduct thorough and impartial retrials after European Court of Human Rights rulings
* ensure that a thorough and impartial retrial takes place, including de novo examination of all evidence and its application to law, and recall of all witnesses to testify and to be cross-examined by both prosecution and defence
* consistent with respect for the right to the presumption of innocence, ensure that persons awaiting retrial on criminal charges are not automatically detained
* take steps to allow all cases in which the European Court of Human Rights finds a violation of fair trial principles the right to retrial in Turkey, lifting the present denial of retrial to those whose cases were pending at the Court on 4 February 2003. (II /YE)
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