Original HRC document

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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 détat 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.

A/HRC/37/50/Add.1

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.

A/HRC/37/50/Add.1

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.

A/HRC/37/50/Add.1

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 Governments

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:

A/HRC/37/50/Add.1

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 suspects 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

21

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.