37/50/Add.1 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Turkey - Note by the Secretariat
Document Type: Final Report
Date: 2017 Dec
Session: 37th Regular Session (2018 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-22700(E)
Human Rights Council Thirty-seventh session
26 February–23 March 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Turkey
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, on his mission to Turkey from 27 November to 2 December 2016. During his
visit, the Special Rapporteur was given access to locations of deprivation of liberty
throughout the country and was able to conduct confidential interviews with detainees of
his choosing, for which he expresses his appreciation to the Government of Turkey.
United Nations A/HRC/37/50/Add.1
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Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Turkey*
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Legal framework ........................................................................................................................... 3
A. International and regional level ............................................................................................ 3
B. National level ........................................................................................................................ 4
III. Assessment of the situation ........................................................................................................... 5
A. General observations ............................................................................................................ 5
B. Torture and ill-treatment ....................................................................................................... 6
C. Conditions of detention ......................................................................................................... 8
D. Safeguards and prevention .................................................................................................... 10
IV. Conclusions and recommendations ............................................................................................... 16
A. Conclusions .......................................................................................................................... 16
B. Recommendations ................................................................................................................. 18
* Circulated in the language of submission only.
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I. Introduction
1. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment, Nils Melzer, conducted a visit to Turkey, at the invitation of the
Government, from 27 November to 2 December 2016.
2. During his visit, he met high-level officials of the Ministries of Foreign Affairs,
Justice and the Interior (including the Turkish National Police and the General Command of
the Gendarmerie) in Ankara, magistrates of the Constitutional Court and the Court of
Cassation, the Public Prosecutors of Ankara and Diyarbakır, a representative of the Human
Rights and Equality Institution of Turkey, members of the Council of Forensic Medicine in
Istanbul, and representatives of administrative, judicial and security services of the areas he
visited (Ankara, Diyarbakır, Şanlıurfa and Istanbul). He also met with representatives of
United Nations agencies and of the diplomatic community, with civil society organizations,
activists, lawyers and doctors, and with victims of torture.
3. The Special Rapporteur expresses his sincere appreciation to the Government of
Turkey for renewing the invitation extended to his predecessor to visit the country, despite
the volatile security situation and the various political challenges. In particular, the Special
Rapporteur wishes to thank the Ministry of Foreign Affairs for its excellent cooperation, for
its efforts to facilitate meaningful official meetings, and for granting access to detention
facilities in full compliance with the terms of reference for fact-finding missions by special
procedures mechanisms.
4. The Special Rapporteur shared his preliminary findings with the Government at the
conclusion of his visit. He expresses his appreciation for the responses provided by the
Government to his preliminary observations on 17 December 2016,1 and in particular for
the measures taken in response to his observations as announced by the Government during
the interactive dialogue with the Human Rights Council of 2 March 2017.
5. Due to maximum duration of five working days imposed by the Government in
respect of visits by special procedure mandate holders (most States grant 10–14 working
days), the Special Rapporteur was unable to conduct a thorough analysis of all areas of
relevance to his mandate, and focused primarily on torture and ill-treatment alleged to have
occurred in the contexts of the failed coup attempt in July 2016 and the escalating violence
in the south-east of the country. As a consequence, important issues of interest, such as the
extracustodial use of force by the police and security forces, the situation of irregular
migrants, of residents of psychiatric clinics and of other particularly vulnerable populations,
gender-based violence, and the issue of the death penalty, could not be examined with
sufficient rigour. While fully acknowledging the logistical and administrative burden that
such visits represent for the host State, the Special Rapporteur strongly encourages the
Government to favourably reconsider the said time constraints for future visits by special
procedure mandate holders so as to ensure comprehensive and objective reporting on all
issues of mutual interest.
II. Legal framework
A. International and regional level
6. Turkey is a party to the main United Nations human rights treaties prohibiting
torture and other cruel, inhuman or degrading treatment or punishment, including the
International Covenant on Civil and Political Rights and its Optional Protocols, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
1 Press release on the Special Rapporteur’s preliminary observations, of 17 December 2016. Available
at www.judiciaryofturkey.gov.tr/Press-Release-on-the-Preliminary-Observations-of-Nils-MELZER-
the-UN-Special-Rapporteur-on-Torture.
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Punishment and its Optional Protocol, the Convention on the Rights of the Child and the
Convention on the Elimination of All Forms of Discrimination against Women.
7. At the regional level, Turkey is a member of the Council of Europe and is a party to
the Convention for the Protection of Human Rights and Fundamental Freedoms (the
European Convention on Human Rights) and its Protocols Nos. 2–12, and to the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment and its Protocol No. 2.
B. National level
8. The Constitution was adopted in 1982 and has been revised numerous times, with
the aim — among other things — of putting in place new mechanisms for safeguarding
human rights, namely the Ombudsman Institution and a system for individual applications
to the Constitutional Court. Since the Special Rapporteur’s visit, constitutional amendments
in favour of a presidential system have been adopted, through a national referendum held
on 16 April 2017.
9. In its article 17, the Constitution enshrines the right to be free from torture and other
ill-treatment and the right not to be subjected to penalties or treatment incompatible with
human dignity. In its article 19, it provides for the right to liberty and security of the person
and the immediate notification of the next of kin in cases of arrest or detention.
10. Moreover, article 90 of the Constitution gives priority, in cases of conflict, to
international human rights treaties concluded by Turkey over national law, and specifies
that such treaties carry the force of law.
11. The Criminal Code of Turkey, of 2004,2 criminalizes torture and defines it as a
serious crime. Pursuant to articles 94–96, any public official who acts towards a person in a
manner incompatible with human dignity, which causes that person to suffer physically or
mentally or to lose the ability to act according to his or her own will, or which dishonours
or insults a person, is to be punished by imprisonment for a period ranging between 3 and
12 years (art. 94), with up to life imprisonment in aggravated cases (art. 95). The Special
Rapporteur welcomes the abolishment of the statute of limitations with regard to the
offence of torture, by an amendment passed in April 2013.3
12. The Code of Criminal Procedure4 provides for additional safeguards against torture
and ill-treatment. Article 147 prescribes legal standards for the interviewing of suspects,
which are aimed at the prevention of torture and ill-treatment and which include
notification of charges, the right to legal counsel, the right to remain silent, notification of
the arrest to next of kin, and the obligation to record every interview in writing, or to make
an audio and video recording in the case of individuals suspected of acts of terrorism.
13. In addition, the exclusionary rule enshrined in article 148 provides that confessions
obtained through any bodily or mental intervention that impairs the free will, such as
misconduct, torture, the administering of medicines or drugs, physical coercion or threats,
shall not be used as evidence and shall not serve as a basis for evidence in any proceedings.
In article 206 (2) (a) it is reiterated that any evidence that has been unlawfully obtained
shall not be admissible in court, and in article 217 (2) it is confirmed that criminal charges
may only be proven on the basis of evidence that was obtained lawfully.
14. An additional safeguard is the temporal limitation of custody by the police or the
gendarmerie. Generally, the authorized period of custody is a maximum of 24 hours.5 For
2 Law No. 5237 of 2004. 3 Law No. 6459, art. 9. 4 Law No. 5271 of 2004, available at
https://www.unodc.org/res/cld/document/tur/2005/turkish_criminal_procedure_code_html/2014_Cri
minal_Procedure_Code.pdf and at www.mevzuat.gov.tr/MevzuatMetin/1.5.5271.pdf. 5 Code of Criminal Procedure, art. 91 (1); and Regulation on Apprehension, Detention and the Taking
of Statements, of 2005, sect. 1.
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certain offences specified by law, the period of custody can be extended to 48 hours, and
for terrorism-related offences it may be extended to a maximum of four days.6
15. The suspicion that an individual may have committed torture is specifically listed as
a reason for arrest (art. 100 (3) (a) (4)), regardless of the risk of abscondment or of the
destruction of evidence.
16. Article 2 (2) of the Law on the Execution of Sentences and Security Measures
provides that cruel, inhuman, degrading or humiliating treatment may not be used in the
execution of sentences and security measures.
17. Law No. 6458 on Foreigners and International Protection includes a provision on
subsidiary protection for individuals in danger of being subjected to torture if returned to
their country of origin or habitual residence (i.e. on non-refoulement).
18. Law No. 2559 on the Powers and Duties of the Police was significantly revised in
March 2015 through the adoption of Law No. 6638, which introduced, in particular,
enhanced police powers to conduct searches, to use weapons, to wiretap, to detain
individuals without a warrant and to remove demonstrators from scenes of protest, and
which also provided for a significant reform of the gendarmerie.
19. Law No. 6332, of 21 June 2012, established the National Human Rights Institution
of Turkey. On 20 April 2016, the National Human Rights Institution of Turkey was
replaced by the Human Rights and Equality Institution of Turkey, which is mandated to
carry out “activities for protecting and improving human rights, ensuring the right to equal
treatment of persons, preventing discrimination in enjoying rights and freedoms
recognized by law and acting in accordance with these principles, effectively combating
torture and ill-treatment and functioning as the national prevention mechanism in this
regard”.7
III. Assessment of the situation
A. General observations
20. The Special Rapporteur is of the view that, in principle, the institutions, Constitution
and legislation of Turkey provide sufficient institutional and legislative safeguards against
torture and ill-treatment.
21. Turkey experienced several military coups between the 1960s and the 1990s, and
torture and other forms of ill-treatment, particularly in the context of security operations,
have been a long-standing problem. After the taking of power by the Justice and
Development Party (AKP) in 2002, and until mid-2015, reports of torture and other forms
of ill-treatment significantly decreased.
22. In particular, the Special Rapporteur commends the introduction, between the late
1990s and 2007, of safeguards for the prevention of torture and other forms of ill-treatment
— including limitations on the duration of custody, prompt access to legal counsel, the
mandatory medical examination of detainees, tighter standards for the recording of arrests
and detentions and for the taking of statements, and the installation of audiovisual recording
systems in many detention and interview rooms of counter-terrorism departments. The
Special Rapporteur is also encouraged by the lifting in 2013 of the statute of limitations for
the offence of torture. He also especially welcomes the express commitment of the
Government to a zero-tolerance policy on torture, as consistently emphasized by all
officials of the Government during their dialogue with the Special Rapporteur.
23. Nevertheless, the Special Rapporteur notes with concern that there seemed to be a
serious disconnect between declared government policy and its implementation in practice.
6 Code of Criminal Procedure, art. 91 (3) and art. 251 (5); and Regulation on Apprehension, Detention
and the Taking of Statements, sect. 14. 7 Law No. 6701, art. 1.
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Most notably, despite persistent allegations of widespread torture and other forms of ill-
treatment, made in relation both to the immediate aftermath of the failed coup of 15 July
2016 and to the escalating violence in the south-east of the country, formal investigations
and prosecutions in respect of such allegations appear to be extremely rare, thus creating a
strong perception of de facto impunity for acts of torture and other forms of ill-treatment.
24. In the aftermath of the failed coup, on 20 July 2016, the Government of Turkey
declared a state of emergency, derogated from both the European Convention on Human
Rights and the International Covenant on Civil and Political Rights, and adopted a series of
decrees with the force of law (kanun hükmünde kararname (KHK)) extensively interfering
with the human rights of persons suspected to be associated with the coup plotters or the
Gülenist movement. In particular, in the period between the failed coup and the Special
Rapporteur’s visit, approximately 100,000 public officials had been suspended or
dismissed, and more than 40,000 individuals had been arrested, including military and
police officers, judges, prosecutors, human rights defenders, journalists, lawyers and health-
care personnel. Since the Special Rapporteur’s visit, many more such arrests have
reportedly taken place.
25. While fully recognizing the difficult circumstances that Turkey is facing in the
presence of multiple threats against the security of the State, the Special Rapporteur stresses
the need for urgent action on the part of the Government with a view to ensuring the strict
compliance of all State officials with existing laws and safeguards for the prevention,
investigation and prosecution of torture and other cruel, inhuman or degrading treatment or
punishment.
B. Torture and ill-treatment
1. Arrests and detentions in the aftermath of the failed coup d’état of 15 July 2016
26. According to numerous consistent allegations received by the Special Rapporteur, in
the immediate aftermath of the failed coup, torture and other forms of ill-treatment were
widespread, particularly at the time of arrest and during the subsequent detention in police
or gendarmerie lock-ups as well as in improvised unofficial detention locations such as
sports centres, stables and the corridors of courthouses. More specifically, the Special
Rapporteur heard persistent reports of severe beatings, punches and kicking, blows with
objects, falaqa, threats and verbal abuse, being forced to strip naked, rape with objects and
other sexual violence or threats thereof, sleep deprivation, stress positions, and extended
blindfolding and/or handcuffing for several days. Many places of detention were allegedly
severely overcrowded, and did not have adequate access to food, water or medical
treatment. Also, both current and former detainees alleged that they had been held
incommunicado, without access to lawyers or relatives, and without being formally
charged, for extended periods lasting up to 30 days.
27. Medical examinations conducted by the forensic expert accompanying the Special
Rapporteur indicated that physical signs consistent with allegations of ill-treatment were
visible only in a limited number of cases, most probably due to the time that had elapsed
between the alleged abuse and the visit of the Special Rapporteur. However, many
detainees showed signs of anguish, distress and psychological trauma consistent with their
allegations, and, in some cases, mental disturbances, such as depression and post-traumatic
stress disorder requiring psychological or psychiatric support.
28. Within approximately two weeks of the failed coup, once detainees had been
transferred to regular detention facilities, conditions and treatment appear to have improved
significantly. Most detainees arrested in relation to the failed coup stated that, apart from
occasional verbal threats and insults, they were no longer subjected to torture or ill-
treatment.
2. Arrests and detentions related to violence in the south-east
29. The south-eastern regions of Turkey have been marked by violence between State
authorities and the armed Kurdistan Workers’ Party (PKK) since the 1980s. Following the
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breakdown of the government-initiated peace process in July 2015, there has been an
escalation of violence in the region. The situation deteriorated further after the attempted
coup of July 2016. Most notably, the state of emergency decrees apply not only to offences
related to the failed coup, but to all terrorist offences, including those occurring in the
context of the violence in the south-east.
30. The Special Rapporteur received numerous testimonies of torture and other forms of
ill-treatment of both male and female individuals suspected of being members or
sympathizers of the PKK and other groups affiliated with the Kurdish insurgency. The
Special Rapporteur also met with individuals suspected of affiliation with Islamic State in
Iraq and the Levant (ISIL). Most instances of ill-treatment were alleged to have been
inflicted upon apprehension and arrest, as well as during transit to the detention location,
predominantly by the special operations teams of the police or by the gendarmerie. Ill-
treatment was also alleged to have occurred during interrogations in the early hours and
days of detention in holding cells. The methods of torture and other forms of ill-treatment
were reported to have included severe beatings, kickings, punches, verbal assaults, threats
of sexual violence, prolonged stress positions and handcuffing, and being deprived of
adequate access to water, food and sleep. One individual reported having been raped with
objects.
31. Reportedly, the ill-treatment occurring in relation to the failed coup largely ceased a
few weeks after the coup. However, torture and ill-treatment in relation to the violence in
the south-east was alleged to be widespread in the initial phase of custody and
interrogation. The Special Rapporteur received consistent reports that, in that context, the
aim of torture and ill-treatment was to coerce victims to confess or to denounce others from
a list of names and photographs of suspected members of terrorist organizations. Many
inmates reported that they had been arrested on the basis of false accusations or
denunciations made against them under torture. Physical ill-treatment was generally
reported to have ceased after transfer to a regular detention facility. However, occasional
abuse and degrading treatment allegedly continued, including verbal assaults and threats,
slaps, and invasive body searches, as well as male guards sexually threatening or harassing
female detainees during transfers and denying them privacy during medical examinations.
3. Solitary confinement
32. The Special Rapporteur heard numerous allegations that a great number of high-
ranking military officers, Supreme Court judges, prosecutors, and other civil servants
arrested for reasons related to the failed coup, as well as high-ranking members of pro-
Kurdish political parties, had been held in prolonged solitary confinement. The Special
Rapporteur was unable to confirm those allegations due to the time constraints imposed on
his visit. Nevertheless, he wishes to recall that prolonged (of more than 15 days) or
indefinite solitary confinement contravenes the absolute prohibition of torture and other
cruel, inhuman or degrading treatment or punishment. Moreover, because of the prisoner’s
inability to communicate with the outside world, solitary confinement also gives rise to
situations conducive to other acts of torture or ill-treatment.
4. Strip searches and invasive body searches
33. The Special Rapporteur notes with concern that invasive body searches have
frequently been alleged to have been conducted in a disrespectful manner both on the
inmates themselves and on visitors. Body searches on inmates are reportedly also
performed upon arrival in the prison, before and after transfers or other temporary exiting
of the premises such as for medical treatment, and sometimes even inside the detention
centres and cells, without prior warning or apparent justification. The frequency of such
searches is reported to have increased significantly since the failed coup in July 2016.
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34. The Special Rapporteur appreciates the clarifications made by the Government in
relation to the practices, in its press release of 17 December 2016,8 and recognizes that
there may be situations when such searches are required. However, given that any such
search creates an inherently delicate situation marked by a significant risk of abuse, body
searches should be avoided and, to the extent possible, less intrusive measures for detecting
the entry of illegal objects should be used. Whenever body searches are unavoidable,
authorities must be particularly careful to ensure that they are conducted in a respectful
manner, consistent with the person’s human dignity, with the right to privacy, and with the
absolute prohibition of cruel, inhuman or degrading treatment.
C. Conditions of detention
1. Overview
35. At the time of the visit, Turkey was reported to have 373 penitentiaries and detention
facilities9 with an approximate capacity of 180,000 inmates,10 1,264 police stations with
1,197 lock-ups, 2,012 custodial areas in the internal security units of the gendarmerie, and
303 lock-ups under 81 provincial public security branch offices, with a total of 52,000
guards.11
36. The attempted coup and the subsequent mass arrests reportedly led to an influx of
42,083 detainees12 into the detention system, taking the prison population in Turkey up to
203,255 (which is ordinarily around 150,000, including 51,000 persons detained for
terrorism-related offences and 2,255 persons detained in connection with organized
crime).13 By a decree of 17 August 2016, approximately 44,000 inmates were released to
accommodate the new arrivals. Nevertheless, the massive influx of detainees led to
overcrowding in many facilities and significantly increased the proportion of pretrial
detainees. The Special Rapporteur took note of the latest figures provided by the Ministry
of Justice in June 2017 indicating that Turkish prisons were holding more than 224,878
individuals, which further compounded the risk of overcrowding.14
37. In the course of his visit, the Special Rapporteur visited the Sincan prison complex
in Ankara, including its F-type high security section and its female detention facilities, the
D-type high-security and E-type closed prisons in Diyarbakır, including the male, female
and juvenile sections, the counter-terrorism police holding cells in Şanlıurfa, two police
stations in Esenler, Istanbul, and the closed No. 9 prison in the Silivri Penitentiaries
Campus in Istanbul.
38. In general, the facilities visited were purpose-built detention centres, and in terms of
infrastructure were adequately equipped. Overall, conditions of detention were found to be
satisfactory or, at least, acceptable in the circumstances, save for the particular problems
observed under the headings below.
2. Overcrowding
39. All the facilities visited, except the Silivri Penitentiaries Campus in Istanbul, were
significantly overcrowded, with occupancy ranging from 125 per cent to more than 200 per
8 Press release on the preliminary observations of the Special Rapporteur, available at
www.judiciaryofturkey.gov.tr/Press-Release-on-the-Preliminary-Observations-of-Nils-MELZER-the-
UN-Special-Rapporteur-on-Torture.
9 Figure as per the Special Rapporteur’s meeting with a representative of the General Directorate of
Prisons and Detention Houses on 28 November 2016.
10 Figure as at 18 February 2016, provided by the General Directorate of Prisons and Detention Houses.
11 Figures as per the Special Rapporteur’s meeting with a representative of the General Directorate of
Prisons and Detention Houses on 28 November 2016.
12 Figure as at 4 January 2017, provided by the Ministry of Justice to the Parliamentary Coup
Investigation Commission.
13 Figures as per the Special Rapporteur’s meeting with a representative of the General Directorate of
Prisons and Detention Houses on 28 November 2016.
14 See www.cte.adalet.gov.tr.
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cent of the actual capacity. In some institutions, the overcrowding appeared to have resulted
from the mass arrests after the failed coup. In other locations, overcrowding appears to have
been persistent for several years, particularly in the women’s block of the Diyarbakır E-
type detention facility.15
40. According to the authorities, the overcrowding was largely the result of the
intensification of the violence in the south-east since July 2015, and of the massive influx
following the attempted coup in July 2016. In order to absorb this influx, several new
penitentiaries were being constructed. While the Special Rapporteur welcomes the
authorities’ efforts to alleviate the overcrowding through the construction of new detention
facilities, he also encourages the Government to consider alternative law enforcement
measures to deprivation of liberty.
3. General conditions of detention
41. The overcrowding observed negatively affected various aspects of the general
conditions of detention, including access to work, training, recreational and cultural
activities, and visits and phone calls with family members and lawyers, all of which are
important for the well-being and rehabilitation of inmates.
42. While distance learning was available to all inmates, the Special Rapporteur is
particularly concerned about the lack of schooling and insufficient access to recreational
activities for juvenile pretrial detainees whom he visited in the juvenile section of the E-
type closed prisons in Diyarbakır. Also, adult inmates under high-security regimes were not
allowed to work at all.
43. The Special Rapporteur welcomes the fact that, with the exception of persons in
police custody, yards were accessible to all inmates and open for most of the day in all the
detention centres he visited.
44. In most of the facilities visited, cells and common areas were cold. According to
consistent testimonies from inmates, although the physical heating infrastructure seemed
adequate, the heating reportedly was turned on only during the night.
45. The majority of facilities visited, with the exception of the police holding cells, had
adequate ventilation or an adequate supply of fresh air, as well as sufficient natural and
artificial light in the cells.
46. For all inmates charged with or convicted for terrorist-related offences, family visits
and phone calls have been reduced — to two visits and two phone calls each month — and
have been put under systematic surveillance. Ordinary criminals continue to be entitled to
four one-hour visits each month, as well as to more extensive telephone rights.
4. Separation of pretrial detainees from convicts, and of male, female and juvenile
inmates
47. While a strict separation between male, female and juvenile inmates was maintained
in all the institutions visited, pretrial detainees and convicts were often intermingled in the
same cells and blocks. Separation was made on the basis of the type of crime, with most
detainees charged with or convicted of terrorist-related offences held separately from
others. Occasionally, adolescent girls were found being held in blocks for female adults.
The Special Rapporteur recommends that the Turkish authorities introduce separation
between pretrial detainees and convicts in all its prison facilities.
5. Medical care, sanitary conditions and nutrition
48. While access to health care is guaranteed in principle, the overcrowding prevalent in
most detention facilities seems to have had a negative impact on prompt and adequate
access to medical care.
15 At the time of the Special Rapporteur’s visit on 29 November 2016 the detention centre was operating
at an occupancy of 1,481 inmates, whereas its capacity is for 1,035 inmates.
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49. Thus, in the large facilities visited, the number of and/or hours of attendance of
general practitioners was insufficient for the number of inmates. This shortcoming was
even more acute in regard to dental care, which frequently could not be provided in
accordance with the detainees’ needs. Psychiatric and/or psychological support was often
not available at all or was not provided as a routine preventive measure. For example, the
D-type closed prison in Diyarbakır had only one general practitioner and one dentist for a
population of over 1,000 inmates.
50. While medical equipment and supplies were generally found to be adequate in the
detention facilities, and treatment was provided free of charge, the Special Rapporteur
received allegations that inmates with medical conditions requiring transfer to hospital were
only transferred in groups, once a sufficient number of detainees requiring such transfer had
been reached, thus making prompt access to the required medical care problematic.
51. While adequate treatment and isolation of contagious diseases seemed to be
provided when required in individual cases, there seemed to be no specific programmes for
the management of contagious diseases, HIV/AIDS or drug addiction, all of which
frequently occur in detention facilities.
52. Sanitary and hygienic conditions observed in the facilities were generally
satisfactory, though they were also affected by the predominant overcrowding. Often, 20 to
30 detainees had to share one toilet and one shower, without sufficient hot water for each
detainee.
53. Nutrition appeared to be sufficient in all detention centres visited, both in terms of
the quantity and quality of food provided and in terms of protein and vitamin content. Also,
inmates had access to sufficient quantities of drinking water.
6. Situation in police holding cells
54. The Special Rapporteur is seriously concerned about the conditions of detention in
police holding cells. Such cells are designed to hold detainees for a few hours, or at most
for one or two days, but are clearly not adequate for holding detainees for longer periods.
This has raised serious problems, in view of the extension of the duration of police custody
to 30 days. The Special Rapporteur therefore appreciates the Government’s announcement
during the interactive dialogue with the Human Rights Council on 2 March 2017 that, in the
meantime, the extension is reduced to seven days, and urges its complete revocation
without delay.
55. In the police stations visited, holding cells generally had only barred doors, and were
often under 24-hour video surveillance, thus depriving inmates of the most basic degree of
privacy. In some places, constant bright lighting caused inmates to lose their sense of time.
Cells generally had no windows and were too small to hold inmates for more than a few
hours, and sometimes detainees were held in groups of 20–30 persons in shared rooms of
clearly inadequate size. Detainees shared toilet and shower facilities outside their cell,
which could only be accessed upon request. In some facilities, inmates reported that their
cells had not been heated at all until heaters were finally installed shortly before the Special
Rapporteur’s visit. In some instances, mattresses and covers were allegedly only provided a
few days before the Special Rapporteur’s visit, and the facilities had visibly been freshly
painted.
56. Detainees in police stations had no access whatsoever to a yard, sunlight and fresh
air, which may be acceptable for a few hours, but clearly is not for periods exceeding 48
hours.
D. Safeguards and prevention
1. Emergency decrees and derogations from regional and international treaties
57. Following the failed coup, the Government declared a state of emergency and
notified the Council of Europe on 22 July 2016 that it was derogating from the European
Convention on Human Rights, without specifying any particular provisions. With effect
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from 2 August 2016, it also derogated from the International Covenant on Civil and
Political Rights, as permissible under article 4, in regard to articles 2, 3, 9, 10, 12, 13, 14,
17, 19, 21, 22, 25, 26 and 27.
58. Turkey also adopted a series of decrees with the force of law significantly affecting
the human rights and procedural guarantees of individuals, groups and organizations
suspected of being involved with the attempted coup, with the Gülenist movement or in
other activities perceived to be related to terrorism.
59. In July 2017, the Turkish Cabinet extended the state of emergency for a further three
months.
60. While the Special Rapporteur recognizes the imperative for Turkey of protecting its
citizens and institutions and its right to take extraordinary measures in times of emergency,
he is mindful that derogations from international treaties may not “exceed those strictly
required by the exigencies of the actual situation”.16
61. With regard to the International Covenant on Civil and Political Rights, the Special
Rapporteur is particularly concerned by the derogation from article 10 (on humane
treatment and human dignity), article 2 (3) (on effective remedies) and article 14 (on fair
trial). The Human Rights Committee has noted that while article 14 is not included in the
list of non-derogable rights of the Covenant, “the guarantees of fair trial may never be made
subject to measures of derogation that would circumvent the protection of non-derogable
rights”. The Committee concluded that “deviating from fundamental principles of fair trial,
including the presumption of innocence, is prohibited at all times”.17
62. The mass arrest, dismissal or suspension of civil servants, including judges,
prosecutors and other representatives of the judiciary, has entailed major setbacks and
delays in the administration of justice in Turkey.18
2. Prolonged detention without access to counsel or to judicial review
63. It is during the first hours and days after arrest that the risk of torture and other
forms of ill-treatment is the highest. The right to have access to a lawyer promptly after
apprehension and at all stages of the investigation process constitutes an effective safeguard
against such abuse.
64. Of particular concern to the Special Rapporteur is Decree Law No. KHK/667,19
adopted on 22 July 2016, which extended the maximum duration of detention without
charge or judicial review to 30 days (art. 6 (a)),20 and which severely curtailed access to
lawyers for detainees suspected of posing a risk to public security, or of exchanging
information with a terrorist organization (art. 6 (d)). It provides for officials to be present
and/or to make audio and video recordings of meetings between detainees and their
lawyers, and to seize any documents exchanged or kept during those meetings. In addition,
interviews and meetings between counsel and client may be limited upon the public
prosecutor’s orders. Legal professionals who are themselves suspected of having supported
the attempted coup may be removed from legal counsel duties (art. 6 (g)).
65. Furthermore, after the adoption of the decree dated 25 July 2016, No. KHK/668,21
the period of custody without access to a lawyer was extended to up to five days (art. 3
16 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
paras. 65–67.
17 See Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts
and tribunals and to a fair trial, para. 6.
18 According to information provided on 4 January 2017 by the Ministry of Justice to the Parliamentary
Coup Investigation Commission.
19 Decree on measures to be taken under state of emergency, available at
www.venice.coe.int/webforms/documents/?pdf=CDL-REF(2016)061-e.
20 Reiterated in art. 3 (a) of Decree Law No. KHK/668.
21 Decree law on measures to be taken under the state of emergency and arrangements made on certain
institutions and organizations, available at www.venice.coe.int/webforms/documents/?pdf=CDL-
REF(2016)061-e.
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12
(m)), and if the investigation may be compromised, the defence counsel’s right to examine
the case file can be restricted by a decision of the prosecutor (art. 3 (l)). While the Special
Rapporteur notes that no statement is to be taken from a suspect while he or she is held
without access to counsel (art. 3 (m)), this provision exposes suspects de facto to
incommunicado detention and, thus, makes them particularly vulnerable to torture and other
forms of abuse. Moreover, prolonged incommunicado detention can even constitute a form
of ill-treatment in and of itself.22
66. The Special Rapporteur regrets that some of those provisions have been made
permanent. Thus, article 3 of Decree Law No. 676, dated 29 October 2016, added the
possibility of being detained without access to a lawyer, albeit only for 24 hours, to article
154 of the Code of Criminal Procedure (Law No. 5271), and limitations on confidential
contacts between detainees and their counsel were introduced in Law No. 5275 on the
execution of penalties and security measures. Consequently, Decree Law No. 684, dated 23
January 2017, removed the ban on lawyers’ access to their clients in the first five days of
the detention period. The Law on the Fight Against Terrorism (counter-terrorism law)23
restricts access to a lawyer for suspects detained for terrorist offences for the first 24 hours
in detention at the request of a prosecutor and by the decision of a judge, but specifies that
the suspect may not be interrogated during that period (art. 10 (b)).
67. On 23 January 2017, Decree Law No. 684 reduced the maximum duration of
detention without charge or judicial review from 30 days (as introduced through Decree
Law No. 667) to seven days, which can be extended upon request of the prosecutor for
another seven days if deemed necessary. While the Special Rapporteur sincerely welcomes
this important first step, he urges the Government of Turkey to normalize the situation as
soon as possible by further reducing the duration of police custody to a maximum of 24 to
48 hours, as stipulated in the Code of Criminal Procedure.
3. Counter-terrorism law and decree framework
68. The main domestic legal provisions regarding terrorism and terrorist offences are
contained in the counter-terrorism law24 and the relevant articles of the Criminal Code. The
definition of “terrorist offender” in article 2 of the counter-terrorism law was amended in
2006 and is rather broad and vague, as is the definition of “terrorism” in article 1. Concerns
have been raised that this law may be used for politically motivated prosecutions of
political opponents, human rights defenders and journalists, in particular for alleged
“membership of a terrorist organization”.25
69. The Special Rapporteur is particularly concerned by a new law that was published
on 14 July 2016 (Law No. 6722),26 which grants counter-terrorism forces a perceived, albeit
overturnable, de facto immunity from prosecution for acts carried out in the course of their
operations in the south-east. More specifically, under the new law, which applies
retroactively, the executive authorities must give permission before any soldiers or civilians
taking part in counter-terrorism operations can be prosecuted for any offences committed
while carrying out their duties, thus rendering investigations into allegations of torture or
ill-treatment by the security forces involved more difficult, if not impossible.
4. Complaint and investigation procedures
70. In principle, prosecutors can and must investigate all allegations of torture or ill-
treatment ex officio, regardless of an individual complaint. All complaints that are received
must be followed up by the Public Prosecutor. Complaints may be brought by the victims
themselves, or their family or lawyer, by civil society organizations, or by a monitoring
mechanism such as the Ombudsman Institution. According to the General Directorate of
22 See General Assembly resolution 68/156 (para. 27).
23 Law No. 3713, adopted in 1991 and amended in 1995, 1999, 2003, 2006 and 2010. Available at
www.ecoi.net/file_upload/1226_1335519341_turkey-anti-terr-1991-am2010-en.pdf.
24 Ibid.
25 United Nations country team submission for the 2015 universal periodic review of Turkey (para. 37).
26 Available from www.resmigazete.gov.tr/eskiler/2016/07/20160714.htm.
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13
Prisons and Detention Houses, individual complaints are the most important mechanism in
place for the investigation of torture and ill-treatment, and a hotline has been put in place
for families to lodge complaints. 27 In addition, officials reportedly screen open source
material, such as reports by non-governmental organizations and media pieces, for
allegations of ill-treatment, which is then treated like an individual complaint.
71. However, throughout his visit, the Special Rapporteur received consistent
allegations pointing to a near-complete absence of complaints being submitted, transmitted
or investigated by officials. In interactions with inmates, lawyers and civil society
organizations, the Special Rapporteur was informed that most victims of torture or other
forms of ill-treatment did not file complaints with the authorities for fear of retaliation
against them or their families, and due to a deep distrust in the independence of the
prosecution and the judiciary and — consequently — in their willingness or ability to
adequately investigate and adjudicate claims. Moreover, many of those who had filed
formal complaints reported that no follow-up had been undertaken by the prosecution and
the judiciary.
72. Since 2012, the Constitutional Court has been able to receive direct complaints from
individuals about violations of their fundamental rights and freedoms as guaranteed in the
Constitution and the European Convention on Human Rights and its Protocols, provided
that no effective remedy had been given by lower courts. Complaints of torture can also be
lodged directly with the Constitutional Court if the prosecutor fails to initiate an
investigation into torture allegations received.
73. The Special Rapporteur was informed that the Constitutional Court had received
approximately 121,000 complaints in total since the introduction of this mechanism, and
that it continued to receive approximately 20,000 individual complaints per year. Since the
failed coup, the number of complaints had increased significantly, amounting to 69,752
individual petitions in 2016 alone. 28 By the time of the Special Rapporteur’s visit, the
Constitutional Court had reportedly issued 38 judgments finding a violation of the
prohibition of torture (3 in 2014, 10 in 2015, and 25 in 2016).29
5. Lack of effective investigations into torture allegations, and impunity
74. The low number of investigations and prosecutions initiated in response to
allegations of torture and ill-treatment seemed grossly disproportionate to the alleged
frequency of such violations, indicating insufficient determination on the part of the
responsible authorities to take such cases forward.
75. The Ankara Chief Public Prosecutor’s Office, for example, advised that, from
1 January 2016 to 1 December 2016, only 24 law enforcement officers had come under
suspicion of having committed torture, without a single one of those cases leading to an
indictment.30 While about half of those cases were still pending, several of them had been
dismissed for lack of grounds for legal action or for lack of jurisdiction. Of seven cases of
suspected deliberate injury (not amounting to torture) in the same time period, only one had
led to an indictment. Given the large number of allegations and of public reports about the
prevalence of torture and other forms of ill-treatment in the immediate aftermath of the
failed coup, it is troubling to see that, in one of the areas most affected by the attempted
coup, only a handful of allegations appear to have been registered by the Prosecutor’s
Office. Moreover, while the information available to the Special Rapporteur does not allow
for any detailed review of individual cases, it appears disconcerting that, out of 31
suspected cases of torture or deliberate injury by law enforcement officers, only one single
case would actually lead to the indictment and prosecution of the alleged perpetrator.
27 As communicated to the Special Rapporteur in a meeting on 28 November 2016.
28 Figures provided by the Constitutional Court via the Permanent Mission of Turkey.
29 Figures as per the Special Rapporteur’s meeting with representatives of the Constitutional Court on
28 November 2016.
30 Statistics received from the Ankara Chief Public Prosecutor’s Office, via the Ministry of Foreign
Affairs, on 1 December 2016.
A/HRC/37/50/Add.1
14
76. In a meeting with representatives of the Ministry of the Interior, the Special
Rapporteur was informed that only five “serious allegations” had been received regarding
torture and ill-treatment, and that investigations had been conducted and disciplinary
measures implemented. 31 It remained unclear whether or not any other (i.e. less than
“serious”) allegations had been received, for which no investigation had been initiated, and
whether or not criminal sanctions had been imposed in any of the five cases.
77. The Special Rapporteur welcomes the deliberations on the prohibition of torture in
several cases that have been transmitted to him by the Court of Cassation. In particular, he
welcomes the verdict of the Court in November 2013 whereby a landmark decision against
eleven Turkish officials was upheld in the case of Engin Çeber, who had been tortured to
death while in custody in 2008.32 The Special Rapporteur also welcomes other verdicts of
the Court of Cassation, which either overturned lower court judgments that, contrary to the
evidence presented, did not find State officials guilty of torture,33 or which upheld such
decisions if compliant with the evidence and the law.34
78. However, the Special Rapporteur believes that, in the light of the great number of
allegations of torture and ill-treatment having resulted from the present situation in Turkey,
failure to investigate and prosecute a significant number of State officials for torture or ill-
treatment strongly indicates insufficient determination on the part of the responsible
authorities to actually live up to the Government’s official policy of zero tolerance on
torture.
79. The Special Rapporteur has not been made aware of any cases in which, in
accordance with articles 148, 206 and 217 of the Code of Criminal Procedure, evidence
obtained under torture has been excluded from subsequent legal proceedings.
80. The Special Rapporteur urges the Government to remind the relevant judicial
authorities of their duty to investigate and prosecute all public officials suspected of
committing, ordering, condoning or covering up torture or other ill-treatment, including in
situations where they knew or ought to have known that torture was about to be, was being,
or had been committed.
6. Lack of review of emergency decrees and related human rights violations
81. The decrees with the force of law (kanun hükmünde kararname) that were
introduced following the failed coup have imposed sweeping security measures and have
deviated significantly from the usual procedural and administrative guarantees. Article 9 of
the first decree, No. KHK/667, for example, states that “legal, administrative, financial and
criminal liabilities shall not arise in respect of persons who have adopted decisions and
fulfil their duties within the scope of this Decree Law”, and article 10 adds that “stay of
execution cannot be ordered in cases brought as a result of the decisions taken and acts
performed within the scope of this Decree Law”. By means of article 37 of the subsequent
decree law, No. KHK/668, this lack of liability is extended to all decisions and measures
adopted “with a view to suppressing the coup attempt and terrorist actions performed on 15
July 2016”.
82. In accordance with the above-mentioned provisions and with article 148 (1) of the
Constitution, the Constitutional Court decided in a landmark ruling on 9 August 2016 that it
was not competent to review the emergency decrees, thereby effectively depriving
individuals who had suffered violations of their rights and freedoms under the decrees of
any remedy.
83. The Commission for Examination of the State of Emergency Procedures was created
on 23 January 2017 by Decree Law No. KHK/685 to review applications relating to
measures taken within the scope of the decree laws, and in particular applications relating
31 The meeting took place on 28 November 2016.
32 Decision No. 2013/26551 of the Court of Cassation in case No. 2013/13411.
33 Decision No. 2014/1575 of the Court of Cassation in case No. 2013/1182; and decision
No. 2015/12301 of the Court of Cassation in case No. 2014/35857.
34 Decision No. 2014/5503 of the Court of Cassation in case No. 2013/18602.
A/HRC/37/50/Add.1
15
to dismissals and suspensions from the civil service as well as to closure of organizations.
Since the Special Rapporteur’s visit, the Constitutional Court has reviewed a number of
cases and has concluded that it is not competent to receive the complaints because legal
remedies have not been exhausted. The Constitutional Court has therefore referred the
thousands of cases related to measures taken under the emergency decree laws to the newly
established Commission.35
84. While the Special Rapporteur welcomes, in principle, any mechanism designed to
review measures taken under the decrees, the composition of the Commission may raise
legitimate questions regarding its independence and impartiality, given that the majority of
its members will be appointed by the Government.36 The Special Rapporteur notes that
allegations of torture and ill-treatment could not be reviewed by the Commission. Concerns
have also been raised that the Commission may be considered as an additional domestic
remedy that has to be exhausted before individuals or institutions can have their cases
reviewed by the Constitutional Court (and possibly later by the European Court of Human
Rights).
85. Lastly, the Special Rapporteur is troubled by a document that appears to have been
issued by the Prosecutor’s Office in Trabzone on 5 January 2017, stating that there were no
grounds to investigate and prosecute a torture complaint resulting from measures taken
under the state of emergency decrees, due to the immunity effectively given to State
officials under those decrees. While the Special Rapporteur was unable to verify the
authenticity of that document and, therefore, cannot prejudge its accuracy, the alleged
content of the decision would appear to be consistent with the situation observed by him of
perceived de facto impunity for torture and other forms of ill-treatment at the hands of State
officials.
7. Lack of monitoring of detention locations
86. In Turkey, several bodies, both international and national, are allowed or even
mandated to inspect locations where people are deprived of their liberty.
87. At the international and regional level, as Turkey is a signatory to the European
Convention on Human Rights and the Optional Protocol to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, monitoring visits may
be conducted by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment and the Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as by the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The
Special Rapporteur welcomes the visit to Turkey by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment, in September
2016, and commends the excellent cooperation shown by the Turkish authorities during his
own visit to the country.
88. At the domestic level, public prosecutors may inspect detention centres, under
article 92 of the Code of Criminal Procedure; police stations and holding cells are subject to
inspections by governors, mayors and civil inspectors; the Human Rights Inquiry
Committee of Parliament may visit penal institutions within the scope of parliamentary
audit; and the Monitoring Boards for Prisons and Detention Centres37 may also conduct
visits. In addition, the Ombudsman Institution38 and the newly established Human Rights
and Equality Institution of Turkey may conduct on-site monitoring of detention locations in
Turkey, and may receive complaints from detention houses.
35 See www.anayasa.gov.tr/icsayfalar/duyurular/detay/65.html.
36 The seven-member Commission will be appointed by the Prime Minister (three members), the
Minister of Justice (one member), the Minister of the Interior (one member) and the High Council of
Judges and Prosecutors (two members).
37 See CAT/C/TUR/4, paras. 242–244.
38 Entered into force on 29 June 2012, following the constitutional amendments of 2010.
A/HRC/37/50/Add.1
16
89. The Special Rapporteur is concerned, however, that the numerous national bodies
that are formally mandated to monitor detention locations do not appear to function
properly in practice, and thereby fail to assume their crucial role in contributing to the
prevention of torture and ill-treatment throughout Turkey.
90. For example, the Human Rights and Equality Institution of Turkey, established in
April 2016 to replace the National Human Rights Institution of Turkey,39 has been taking
up its duties with considerable delay. Apart from monitoring equality and human rights in
general, the Human Rights and Equality Institution of Turkey is the designated organization
for the national preventive mechanism 40 as detailed in the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. However, at the time of the visit, no commissioners had been appointed to the
institution, which, despite having several working-level staff, remained unable to assume its
decisive preventive role of carrying out regular, independent and objective inspections of
all places of detention in Turkey.
91. Other monitoring mechanisms were experiencing a change of personnel at the time
of the Special Rapporteur’s visit, with the former Ombudsman having been relieved of his
duties. The Special Rapporteur welcomes the appointment of a new Ombudsman by
Parliament in November 2016. The prison monitoring boards, which had been criticized for
their lack of impartiality, had been dismantled by decree after the July 2016 coup, and at
the time of the visit had not yet been reconstituted. Moreover, civil society organizations
reportedly were not allowed to monitor detention centres and other places of deprivation of
liberty.
8. Forensic medical examinations and documentation of torture
92. Professional forensic examinations and documentation about allegations of torture
and ill-treatment as well as about deaths in custody are a crucial component in any effective
investigation and in the prosecution of such allegations. The Istanbul Protocol (the Manual
on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment) and the Minnesota Protocol (the Model Protocol for a
Legal Investigation of Extralegal, Arbitrary and Summary Executions) provide fundamental
tools for guiding such documentation and investigations.
93. The Special Rapporteur and his accompanying forensic expert observed that general
medical examinations appeared to be routinely performed upon arrest and after arrival at
detention centres. Examinations were reportedly conducted by medical personnel without
any specific training in documenting signs of physical and psychological abuse, and did not
involve any psychological assessments, thus entailing an increased risk of deficient
descriptions, documentation, and interpretations of traumatic injuries.
94. The forensic medical examination by specialists of inmates who show signs of
physical or psychological trauma, with photographs, in accordance with the Istanbul
Protocol, does not appear to be a routine procedure. Occasionally, such examinations have
allegedly been delayed until the visible signs of the trauma have disappeared.
95. In cases of death in custody, autopsies were reportedly systematically performed, but
it was not possible to assess whether or not they were carried out in accordance with
international minimum standards, and in particular, the Minnesota Protocol. Numerous
interlocutors mentioned that, according to official records, a number of detainees suspected
of being affiliated with the Gülenist movement had committed suicide in custody, although
there was no confirmation of this cause of death by independent autopsies.
96. Since the failed coup of July 2016, several forensic experts have been arrested and
detained, including the director of the Council of Forensic Medicine, and pursuant to
Decree Law No. 679 of 6 January 2017, numerous forensic specialists and other Ministry of
Justice personnel have been dismissed or suspended from their positions. According to
allegations received by the Special Rapporteur and his forensic expert, official forensic
39 Established in Law No. 6332 of 21 June 2012.
40 By Cabinet decree dated 9 December 2013.
A/HRC/37/50/Add.1
17
services have been under pressure from authorities not to properly document abuse, and
forensic examinations have either not been conducted in line with the Istanbul Protocol or
have not been conducted at all. For example, forensic experts would allegedly be asked to
assess a roomful of detainees in the space of a few minutes, without being able to conduct
individual examinations and confidential interviews. Requests made by detainees and their
families for examinations by independent physicians have allegedly been denied.
97. The Special Rapporteur is very concerned about the alleged interference of the
authorities with the independence of the forensic services and with the proper
implementation of their mandate, which makes the proper documentation and effective
investigation of torture and ill-treatment difficult if not impossible and contributes further
to impunity for abuse.
IV. Conclusions and recommendations
A. Conclusions
98. The Special Rapporteur expresses his sincere appreciation to the Government
of Turkey for the excellent cooperation afforded during his visit, and for the efforts of
the representatives of the Ministry of Foreign Affairs to facilitate and organize
meaningful official meetings.
99. The Special Rapporteur also thanks the United Nations Resident Coordinator
in Turkey and his Office for the support provided before and throughout his visit.
100. The Special Rapporteur fully acknowledges the extreme volatility of the
security situation prevalent in Turkey during the time of his visit, and the right and
duty of the Government to take security measures to protect its citizens from acts of
violence and political overthrow. However, just as much as there can be no
justification for acts of terrorism and violent overthrow, there can also be no
justification, under any circumstances, for acts of torture and other cruel, inhuman or
degrading treatment or punishment, or for any form of impunity for such acts.
101. To the best of his personal judgment and conviction, based on numerous
credible and consistent allegations and other information received from various
independent sources, and having consulted extensively with the Turkish authorities,
the Special Rapporteur has come to the following main conclusions regarding the
prevalence of torture and other cruel, inhuman or degrading treatment or
punishment in Turkey at the time of his visit and during the months preceding it:
(a) In the immediate aftermath of the failed coup of 15 July 2016, torture
and other forms of ill-treatment were widespread, particularly at the time of arrest
and of preliminary detention in police or gendarmerie lock-ups or in unofficial
detention locations. This initial phase, marked by arbitrariness, and most of the ill-
treatment, ceased after approximately two weeks, when most detainees were
transferred to regular places of detention;
(b) In relation to the violence in the south-east, torture and ill-treatment
continues to be widespread in the initial phase of custody and interrogation and is
aimed primarily at coercing suspects to confess or to denounce other suspects of
terrorist offences. As a result, numerous arrests are made on the basis of unreliable
accusations or denunciations made under torture;
(c) The small number of investigations reported by the authorities, whether
ex officio or upon complaint, is in no way proportionate to the persistent allegations of
torture and other ill-treatment received by the Special Rapporteur. The majority of
victims reported that they had not filed formal complaints for fear of retaliation
against them and their families, and because of their distrust in the independence of
the prosecution and the judiciary and, consequently, in the willingness or ability of the
prosecution and the judiciary to adequately investigate and adjudicate their claims.
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18
When formal complaints had been filed, there had allegedly been no follow-up by the
responsible authorities;
(d) The sweeping security measures taken by the Government in response to
the failed coup of 15 July 2016 have resulted in a general sense of intimidation and
distrust in many segments of the population, preventing not only inmates and their
families, but also civil society, lawyers, doctors and many State officials from initiating
or participating in any procedure that may be perceived — rightly or wrongly — as
opposing or criticizing the Government, including, most notably, the documentation
and investigation of alleged acts of torture and other ill-treatment;
(e) Recently passed legislation and statutory decrees, some of which have
been partly repealed in the meantime, created an environment conducive to torture
and other forms of ill-treatment, most notably:
(i) The extension of the period of custody without judicial review to 30 days;
(ii) The extension of the period without access to a lawyer to five days;
(iii) The denial of confidential exchanges between inmates suspected of
terrorist crimes and their lawyers;
(iv) The introduction of immunity from criminal prosecution — albeit
overturnable — for counter-terrorist forces operating in the south-east.
(f) The suspension or dismissal of thousands of judges, prosecutors and
other officials has caused severe delays in the processing of individual judicial and
administrative cases and complaints;
(g) Due to dismissals and to delays in administrative appointment processes,
the Human Rights and Equality Institution of Turkey, which also exercises the
function of the national preventive mechanism as detailed in the Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, currently cannot carry out regular, independent and objective
inspections of all places of detention in Turkey;
(h) Except for police holding cells, which are clearly inadequate for holding
inmates for more than 24 to 48 hours, conditions of detention are generally
satisfactory or, at least, acceptable in the circumstances. The most important source of
shortcomings was the prevalent overcrowding (ranging from 125 to 200 per cent of
the capacity), which negatively affected access to work, training, recreation, medical
care and visits and contact with family members and lawyers, all of which are
important for the well-being and rehabilitation of inmates.
B. Recommendations
102. The Special Rapporteur firmly believes that there is no better deterrent to
torture and other cruel, inhuman or degrading treatment or punishment than the
unambiguous expression and determined implementation of a strong national will to
prevent, investigate, prosecute and punish such abuse. The Turkish authorities have
the ability to prevent torture; they have proven this over the past decade and they
consistently and unequivocally expressed their continued commitment in that respect
throughout the visit. It is in a spirit of respect and support of the Government’s
declared policy of zero tolerance for torture, therefore, that the Special Rapporteur
offers the following recommendations to the Government of Turkey:
103. First and foremost, on the policy level, the Special Rapporteur appeals to the
Government to publicly reinforce its zero tolerance policy on torture, to take all
legislative and administrative measures to implement that policy, and in particular to
unequivocally make it clear to State officials at all levels that they are expected and,
indeed, obliged to report and investigate all allegations of torture and to bring
perpetrators to justice.
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19
104. Regarding the national legal framework, the Special Rapporteur recommends
that the Government:
(a) Consider terminating the declared state of emergency, and ending its
derogations from the International Covenant on Civil and Political Rights and the
European Convention on Human Rights, as soon as practically possible;
(b) Ensure that provisions introduced under the decrees (kanun hükmünde
kararname) during the state of emergency are not unduly perpetuated or entered into
regular legislation;
(c) Amend the Law on the Fight Against Terrorism so as to ensure that it
may not be employed for politically motivated prosecution of peaceful dissent and of
criticism of the Government;
(d) Reduce the maximum duration of police/gendarmerie custody to 24 to 48
hours, as stipulated in the Code of Criminal Procedure, including for terrorism-
related offences.
105. With a view to ensuring conditions of detention in accordance with the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), the Special Rapporteur recommends that the Government:
(a) Urgently adopt measures to reduce overcrowding, including through the
more extensive use of alternatives to incarceration (such as bail and electronic
surveillance for pretrial defendants, and probation and early release for convicts), and
to the extent possible and appropriate, by reviewing current sentencing policies and
providing for alternative, non-custodial penalties, in particular for lesser offences, and
by providing the judicial authorities with the resources required to accelerate
proceedings;
(b) Ensure adequate access to work, training, education and recreation for
all offenders, including terrorism-related convicts, with a view to establishing a penal
system aimed at rehabilitating and reintegrating offenders and ensuring their physical
and mental health;
(c) Ensure the separation of pretrial inmates from convicts;
(d) Ensure the prioritization of alternatives to detention for all juvenile
offenders and, in exceptional circumstances where detention is necessary, ensure their
detention in separate rehabilitation facilities that meet their specific needs as children,
and ensure their continued schooling and recreational activities;
(e) Ensure the daily presence, in cooperation with the public health services,
of a sufficient number of qualified medical health staff, including psychiatric,
psychological and dental specialists, to perform the medical examination on detainees’
entry to the institution, to carry out regular check-ups, including routine analytical
blood and urine tests and thorax radiology (by mobile units), and to provide prompt
medical assistance to all persons deprived of their liberty despite temporary
overcrowding;
(f) Ensure that general prison staff receive adequate training on how to deal
with particularly vulnerable categories of detainees and how to identify first signs of
potential mental illness;
(g) Ensure that the medical registration forms currently used are adapted so
that they meet the recommendations of the Istanbul Protocol;
(h) Ensure the adoption and implementation of special health programmes
to address situations that occur frequently in detention facilities, such as the spread of
contagious diseases, or inmates with a drug addiction or with HIV/AIDS.
106. Regarding the prevention of torture and ill-treatment, and safeguards, the
Special Rapporteur recommends that the Government:
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20
(a) Repeal provisions of the kanun hükmünde kararname that may increase
the risk of persons being subjected to torture and other cruel, inhuman or degrading
treatment or punishment;
(b) Ensure prompt access to legal counsel of the suspect’s choosing from the
moment of apprehension and through all stages of the criminal proceedings, including
for detainees suspected of terrorism-related offences or arrested under the state of
emergency and the kanun hükmünde kararname;
(c) Ensure the confidentiality of interactions between lawyers and their
clients, including for individuals suspected of terrorism-related offences or arrested
under the state of emergency and the kanun hükmünde kararname;
(d) Terminate all incommunicado detention and detention in unofficial
detention locations, including during times of emergency;
(e) Ensure that statements or confessions taken from persons deprived of
their liberty, other than those made in the presence of a judge and with the assistance
of legal counsel, have no probative value in proceedings against that person; and that
confessions and testimonies that may have been obtained through torture or other ill-
treatment are not admitted as evidence in any proceedings;
(f) Improve the forensic medical capacity and infrastructure within places
of detention, and ensure the full independence of all forensic medical staff, their
unhindered access to all detainees on the basis solely of the detainees’ individual
medical needs, and their ability to examine alleged victims of torture and ill-treatment
freely and without supervision;
(g) Ensure adequate training of all health professionals involved with
detainees, including specifically on the forensic assessment and documentation of
torture and other ill-treatment, in accordance with the Istanbul and Minnesota
Protocols;
(h) Ensure that photographic documentation of trauma injuries becomes an
obligatory routine practice and provide all medical services with adequate equipment
for this purpose;
(i) Ensure and facilitate regular, effective and independent monitoring of all
institutions or locations where individuals may be deprived of their liberty, by
national and local bodies such the national preventive mechanism, by international
and regional bodies and by specialized civil society organizations;
(j) Ensure the full institutional, political and financial independence,
impartiality and professionalism of the national preventive mechanism, and the
compliance of the national human rights institution with the principles relating to the
status of national institutions for the promotion and protection of human rights (the
Paris Principles).
107. Regarding prompt, thorough and impartial investigations, the Special
Rapporteur recommends that the executive and judicial authorities:
(a) Ensure prompt, thorough and impartial investigation and prosecution of
all alleged offences involving torture or other cruel, inhuman or degrading treatment
or punishment, including those reported to have been committed in the aftermath of
the failed coup of July 2016 and in the context of the ongoing violence in the south-east
of the country;
(b) Ensure that investigations are launched ex officio, without any need for
formal complaints by victims, prosecutors or investigative magistrates, whenever
there are reasonable grounds to suspect torture or ill-treatment;
(c) Ensure that perpetrators of torture or other cruel, inhuman or
degrading treatment or punishment are held criminally responsible and that adequate
penal sanctions and disciplinary measures are imposed on convicted perpetrators.
A/HRC/37/50/Add.1
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108. Regarding sexual and gender-based abuse, the Special Rapporteur
recommends that the Government:
(a) Ensure that all detainees remain under the direct supervision of guards
and law enforcement officers of the same gender at all times, including during
transfers;
(b) Ensure that no guards, law enforcement officers or other persons of the
opposite gender, except for close family members or the required medical personnel,
are present during body searches, strip searches and any other physical examinations;
(c) Ensure that medical examinations and consultations of all detainees are
conducted in full confidence, without the supervision of guards and law enforcement
officers;
(d) Include the examination and investigation of sexual and gender-based
violence into the standard examination of torture and cruel, inhuman or degrading
treatment or punishment in accordance with the criteria of the Istanbul Protocol.