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WRITTEN SUBMISSION OF NEIL HICKS, SENIOR PROGRAM

COORDINATOR, LAWYERS COMMITTEE FOR HUMAN RIGHTS

I. INTRODUCTION

 Chairman Smith and members of the commission, thank you for

inviting me to testify today. I appreciate the opportunity to be a part

of this hearing and to share with you our perspective on these important issues. The Lawyers Committee for Human Rights is an independent, non-governmental organization. Since 1978, the Committee

has worked to protect and promote fundamental human rights,holding

all governments accountable to the standards contained in the International Bill of Human Rights and related international human rights

instruments. In its efforts to provide workable solutions to human

rights problems, the Lawyers Committee brings a principled legal

focus drawn on international norms.

 The Lawyers Committee for Human Rights has been engaged in

an active program of human rights promotion in Turkey since January 1996. During that period, we have visited the country on at least

nine occasions, developed close working relationships with local human rights organizations and lawyers, carried out large numbers of

interviews with individuals involved in human rights promotion in

Turkey, observed proceedings in trials and issued reports and statements about human rights issues.

 We are enthused by the dynamism and courage of Turkish human

rights advocates, and by the richness of the public debate about human rights issues. We are however perplexed by the lack of progress

in implementing substantial human rights reform, pledged on a number of occasions by successive governments. We are especially concerned that over the last 6 months we have seen a steady worsening

in human rights conditions in Turkey, which has only intensified in

the weeks since the detention of Kurdish guerilla leader Abdullah

Ocalan. These hearings are taking place at a difficult time for human

rights in Turkey, and indeed a time of great political uncertainty. It

is our firm belief that building respect for human rights and the rule

of law is an essential pre-requisite for Turkey to emerge as the strong

stable democracy so many of its people crave it to be.

II. A RECORD OF UNFULFILLED PROMISES AND RECENT

DETERIORATION IN HUMAN RIGHTS CONDITIONS.

When then-Prime Minister Mesut Yilmaz traveled to the United

States in December 1997 he promised American leaders that 1998

would be a year of human rights in Turkey and stressed that his government was committed to reform in penal procedure law; to revising

laws which penalize non-violent expression (under which human

rights activists continue to be prosecuted and convicted); and to providing effective safeguards against torture.

Almost without exception these promises remain unfulfilled. While

we recognize that the Prime Minister was speaking only as the leader

of a minority coalition government, it must be noted that successive

Turkish Governments have failed in their promises to implement farreaching reforms in human rights conditions in Turkey. Torture, unfair trial and restrictions on non-violent freedom of expression remain widespread problems, as the recent State Department Country

Reports on Human Right Practices recognizes.
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THE ADMINISTRATION OF JUSTICE

There is evidence to suggest that instead of seeing progress in human rights in 1998, in the latter part of that year, and in the first

months of 1999, human rights conditions are deteriorating. The most

compelling evidence of official ambivalence to reform, and the death

knell for Prime Minister Yilmazs promised progress in the administration of justice, came in October 1998 with the issuing of Regulations on Apprehension, Police Custody and Interrogation.

These regulations are a major setback for human rights in Turkey,

removing safeguards designed to protect pre-trial detainees from torture which had been included in a February 1998 circular issued by

Prime Minister Yilmaz. Significantly, this circular was never published in the Official Gazette and was therefore never fully enforced.

The regulations, in contrast, which were signed by the ministers of

justice and the interior, were published immediately in the Gazette.

According to reports in the Turkish press, they resulted from the opposition to the measures in the February circular from the police and

the security forces.

 The regulations reinforced abusive pre-trial detention procedures

which proposed reforms in the Penal Procedure Codeplaced before

the parliament by the Yilmaz government but never enacted into lawhad been designed to remove. The October regulations specifically

removed powers, conferred on prosecutors in the February circular,

to visit detention centers at any time, without giving prior notice to

the police. They also withdrew prosecutors powers to listen in on

restricted police radio frequencies so that prosecutors would know

when detentions had occurred. Currently, abuses occur when members of the security forces exercise their wide-ranging powers to detain suspects without warrant, and sometimes without even informing prosecutors for several days.

The regulations removed clarified the fact that detained suspects

in state security prosecutions can be denied the right of access to

counsel until after the detainees appearance before a judge, which

may take between four to 7 days. This is a clear violation of international fair trial standards, and means that in practice many state

security suspects are coerced into making incriminating statements

which become the major evidence against them, without benefiting

from advice of counsel. The right of access to counsel during the early

part of detention is also an important safeguard against torture.

Judicial independence, which is a core principle of Turkish law, is

threatened in practice. Most glaringly, the presence of a serving military officer as a member of the judicial panel in State Security Courts

conflicts with the right to trial before an impartial, independent tribunal required in international law. State Security Courts try civilians accused of crimes against the state, including individuals accused of non-violent actions. Many prosecutions in such courts appear

politically motivated, such as those brought against leaders from the

political Islamic movement like Recep Tayyep Erdogan the mayor of

Istanbul, and non-violent political leaders associated with the Kurdish

issue, such as the leaders of the Peoples Democracy Party, (HADEP).

Human rights advocates such as Akin Birdal, chairman of the nongovernmental Human Rights Association, have been brought to trial

before State Security Courts as a result of statements or publications

criticizing the governments human rights practices.
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The willingness to countenance change, and even to promote reform, in SSC structures and procedures which fail to meet international standards is widely shared among many influential groups and

individuals in Turkish society. These include, the organized bar, leading human rights organizations, leading parliamentarians, some ministers and some judges and prosecutors with extensive SSC experience. It is then remarkable and perplexing that change has not come.

There can be no doubt that SSCs, whatever their proponents may

claim for their efficacy in the fight against terrorism or drug-trafficking, serve a primarily political purpose which is inimical to the rule of

law. SSCs are simply too open to abuse by those in Turkish society

who would ensure their continuing hold on power by resort to authoritarian repressive measures. It is regrettable that objectionable

aspects of the SSC proceduresespecially as regards the role of the

prosecutor, pre-arraignment detention periods and the right of access to counselwere re-enforced in the October 1998 Regulation on

Apprehension, Police Custody and Interrogation, indicating a negative trend in official policy toward this problematic area.

Turkey has a well developed system of criminal law staffed by able

lawyers, judges and prosecutors. Given the damage to the rule of law

inflicted by the existence of these exceptional courts, it is difficult to

believe that the cause of justice would not be better served by their

abolition, and by the integration of the function of the SSCs into the

regular penal court structures. Few, if any, changes to existing courts

and penal procedure would be necessary in order to carry out this

reform.

Also problematic is the undue executive influence over the appointment of civilian judges because of the dominant role played by the

minister of justice in the Supreme Council of Judges and Prosecutors, which oversees judicial appointments. The periodic practice of

the powerful National Security Council of issuing instructions to

the judiciary about threats to the state is hardly consonant with the

principle of judicial independence. Such instructions are followed by

increased prosecutions against those groups identified as threats,

even when such elements may be non-violent political activists associated with causes unpopular with the military establishment.

An immediate challenge to the credibility of U.S. human rights

policy, and to Turkeys commitment to the rule of law and respect for

human rights, is posed by the capture of rebel leader Abdullah Ocalan.

Mr. Ocalan must be accorded a fair trial, which will require the removal of the military officer from the judicial panel in the State Security Court that is scheduled to try him. As a further guarantee of

procedural fairness, his lawyers must be permitted to carry out their

professional duties free of interference, harassment or intimidation.

IMPUNITY

A similar pattern can be discerned in the governments record of

prosecuting members of the security forces implicated in gross violations of human rights such as extra-judicial killing and torture. A

climate of impunity for human rights abuse in the security forces is

an enormous obstacle to improving Turkeys human rights record. In

1998, in the few cases where prosecutions and convictions of police

officers had occurred, such convictions were reversed on appeal. In

the Manisa case, for example, in which ten police officers are accused
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of the torture of a group of high school students in 1996, a richly

merited conviction for torture imposed by an appeal court was reversed by the trial court at a hearing on January 29, 1999 attended

by Lawyers Committee trial observers. The ten police officers remain

at liberty and on active duty, with no indication that they will be

called to account by the justice system in the near future. A further

appeal to a higher court may take years.

In other high-profile cases convictions have been overturned on

appeal. On July 17, 1998 the High Court of Appeals in Ankara overturned the convictions of five police officers implicated in the beating

death of journalist Metin GoÿAE4ktepe in 1996. On December 24,

1998, the convictions of five police officers in the beating death of

Baki Erdogan were also overturned on appeal.

Structural obstacles and problems of attitude and mentality interfere with the process of holding members of the security forces accountable for their involvement in gross violations of human rights.

Bringing a prosecution against a member of the security forces requires first that the plaintiff gains approval for the prosecution from

an administrative board. This additional hurdle, created by an antiquated 1913 Ottoman Law, (the Law on the Procedure for the Investigation of Civil Servants), causes a delay of months or years before a

case is brought to court, and deters many meritorious proceedings

from ever being initiated. For cases that do progress to trial, the trials themselves last for years, and accused police officers almost invariably remain at liberty, free to interfere with witnesses and to

intimidate plaintiffs. Lawyers working on behalf of victims or their

families face hostility and intimidation from members of the security

forces. For example, at a hearing in Aydin in the Baki Erdogan case

in May 1998, at which police officers were convicted by a penal court,

off duty police officers who had packed into the courtroom started

beating lawyers, journalists and members of the victims family to

show their displeasure with the decision.

Over and above these procedural problems, prosecutors are often

reluctant to press charges against members of the security forces, or

to vigorously pursue a prosecution. For example, in a verdict of the

European Court for Human Rights in 1997, Aydin vs. Turkey, the

Court noted that the deferential attitude of the prosecutor toward

members of the security forces was a particularly serious shortcoming in the investigation.

In its meetings with prosecutors throughout Turkey, the Lawyers

Committee has observed that many of them are highly skeptical of

the claims that detainees are routinely tortured and abused, believing such claims to be politically motivated. Where medical evidence

of torture exists, prosecutors have asserted that it is self-inflicted.

More fundamentally, some prosecutors simply believe that they are

on the same side as the security forces in a fight against extremism

and terrorism, and in such circumstances are not willing to turn

against their allies. Such attitudes, which are not universally shared

by prosecutors, fuel conflict and undermine the rule of law.

PERSECUTION OF LAWYERS AND HUMAN RIGHTS ADVOCATES

The cases of lawyers and human rights advocates prosecuted for

defending human rights and the rule of law, and cases of human rights

organizations blocked from carrying out their legitimate function, are
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at the heart of the Lawyers Committees work on Turkey program.

Such cases are important for three reasons: they derive from the continued existence of laws that contravene international human rights

standards, on one hand by criminalizing peaceful expression of opinions, and on the other by denying due process to detainees facing

criminal charges;

Turkish human rights advocates perform an essential function as

independent monitors of Turkeys observance of international human

rights norms and as conduits of information to the international community;

They exemplify the damaging, but still common, official attitude

that Turkey can overcome problems caused by international criticism

of its human rights record by silencing those who expose human rights

violations, rather than by tackling the source of the problemthe prevalence of violations.

The Lawyers Committee is currently campaigning for the reopening of the local branch of the Turkish Human Rights Association in

the city of Diyarbakir, the largest city of the troubled south-eastern

Anatolian region which was closed in May 1997. The Diyarbakir

branch of the Human Rights Foundation was closed in June 1998,

just 4 days after opening, but was able to reopen in early August after

international pressure. The Urfa branch of the Organization of Human Rights and Solidarity for Oppressed People, Mazlum Der, which

was the sole monitoring organization with an office in the southeast

was closed in December 1998. The Lawyers Committee is also calling

for the dismissal of charges against 25 lawyers in Diyarbakir, accused

of support for terrorism. The prosecution, which has little evidentiary foundation, has been in progress since 1993 and seems designed

to deter lawyers from representing unpopular political suspects and

from reporting on human rights problems in the southeast to international bodies like the European Court of Human Rights or Amnesty International.

Public attitudes toward human rights are influenced by the way in

which human rights advocates and defense lawyers for unpopular

political defendants are treated by the authorities. As long as human

rights advocates are prosecuted for their non-violent human rights

activities, the message is clear: human rights activists are subversives,

and the ideals of human rights are undesirable. The atmosphere has

been further poisoned by many incidents in which lawyers have been

identified with their politically unpopular clients and subjected to

physical attack, arrest, and wrongful prosecution for carrying out their

professional duties.

SUGGESTIONS FOR U.S. POLICY

There is deep-seated resistance to human rights reform in powerful areas of the Turkish state power structures. The U.S. Government must continue to insist that the Turkish authorities continue to

strive to make the progress to which they are committed in the human rights field. Such progress must properly be seen as a pre-condition to further developments in the positive relationship between the

U.S. and Turkish Governments. Regrettably, the Turkish Government as a whole is not committed to human rights reform, despite

honorable efforts in this regard by several government leaders.
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The Lawyers Committee welcomes the emphasis that was given by

Assistant Secretary Shattuck and other administration officials in

recent years to encouraging the Turkish Government to repeal laws

that criminalize non-violent speech. Removing the obstacles that currently impede the work of Turkish human rights organizations will

enhance the capacity of Turkish society to resolve its own human

rights problems. Before remedies can be found, the Turkish Government must permit an open and frank national debate about human

rights issues. Turkish Government officials should be encouraged to

make good on promises to reform speech laws.

The recent State Department Country Report on Turkey was comprehensive and well-researched. However, it can be faulted for straining in some places, notably in the introductory section, to put a favorable gloss on troubling human rights problems. For example, the report

talks of ageneral recognition, including by the government, that the

countrys human rights performance is inadequate and needs to be

brought in line. Regrettably, there is no such general recognition;

powerful elements within the Turkish Government remain resistant

to human rights reform. The report also glossed over shortcoming

with regard to respect for the principle of the independence of the

judiciary by asserting that the government respects the Constitutions

provisions for an independent judiciary. Challenges facing the Turkish Government in its obligation to comply with rulings of the European Court of Human Rights were also given insufficient weight in

the report. The court has ruled, for example, that the presence of a

military officer compromises the independence of State Security

Courts. As yet, no step has been taken to remove the military officer,

although SSC trials are continuing. Such omissions and evasions send

an unhelpful message to the Turkish Government that it will not be

held accountable for continuing to fail to abide by its international

obligations in the human rights field.

We strongly urge U.S. Government officials including the highest

levels, to continue to press for specific reforms in Turkeys human

rights practice. In doing this, the U.S. Government is not exerting

illegitimate outside influence on Turkish domestic affairs. Rather,

the U.S. Government will be supporting policies that are most likely

to contribute to political stability and to a peaceful resolution of

Turkeys internal political problems.

The alternative to reform is a return to repression. Such a policy

will only fuel continuing violent conflict over the Kurdish question

and, if directed against non-violent Islamist political movements, could

provoke a violent reaction from religious extremists. These are both

gloomy scenarios which the U.S. Government must do all in its power

to persuade its ally to avoid. We call on the U.S. Government to urge

the Turkish Government to take practical steps to implement the following recommendations:

RECOMMENDATIONS

THE ADMINISTRATION OF JUSTICE

The State Security Courts should be abolished and their functions

transferred to the existing penal courts, operating under the existing

code of criminal procedure. (Recognizing that this root and branch
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reform my be too much to ask for in the present uncertain political

circumstances, we offer the following recommendations addressing

different aspects of the administration of justice.)

Military judges should be removed from the judicial panel in all

cases in which civilians are the defendants. As the European Court of

Human Rights has noted the presence of a serving military officer

among the judges violates the European Conventions guarantee of

an independent, impartial tribunal.

Executive influence over the Supreme Council of Judges and Prosecutors should be removed in order to better ensure the separation of

powers and the independence of the judiciary, as required in the Constitution. The role of the Minister of Justice as a member of the council should be reviewed, with a view to decreasing his influence over

the process of appointing, promoting, transferring and disciplining

judges and prosecutors.

Prosecutors should be empowered to take independent action to

carry out their full function as envisaged in Turkish law, including

fulfilling their obligation to safeguard the wellbeing of suspects during pre-arraignment detention. Additional resources should be provided to prosecutors to enable them to carry out their duties in full.

The security forces power of detention should be strictly controlled.

They should have no power to detain on their own authority except

where the detainee presents an immediate danger to others, or where

a detainee is discovered in the act of committing a crime.

All detainees regardless of the gravity of the offense of which they

are accused should be granted access to legal counsel within 48 hours.

Defendants must be given adequate access to legal advice during interrogation by the security forces or the prosecutor, which often occurs within the first few days of detention.

Lawyers representing defendants in SSC cases should be permitted free access to their clients, unless exceptional circumstances require some restriction of this right. Such restrictions must be for good

cause, should be regulated by a judge and should be for the minimum

possible duration. They must never be of a nature to detract from the

underlying fairness of the proceedings.

Lawyers representing defendants in SSC cases should not be subjected to any form of intimidation or harassment because of their work

as defense lawyers.

In all cases, relatives should be informed within 24 hours that an

immediate family member has been taken into detention.

Enhanced measures to safeguard detainees against torture during

pre-trial detention must be enacted. Evidence shown to be extracted

by coercive, illegal measures must be excluded from the file. Records

of all members of the security forces coming into contact with detainees should be scrupulously maintained, and be available to detainees

and their legal representatives.

IMPUNITY

1. Public prosecutors rather than provincial administrative boards

in the State of Emergency regions should have the sole authority to

initiate prosecution of security forces alleged to have violated the law.
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Amend the Temporary Law on the Procedure for Investigation of

Civil Servants such that public prosecutors rather than provincial

administrative boards have direct authority and responsibility to investigate and prosecute crimes by security force members, whether

they are acting in their administrative or their judicial capacities.

Promote efforts to educate prosecutors regarding the prevalence of

torture and Turkeys obligations under international law to provide

effective redress of such claims.

3.Create independent procedures for recording every torture claim

that is made to a prosecutor and the eventual disposition of the claim.

4.Increase prosecutorial resources either through the creation of a

judicial police force directly under the control of prosecutors or by

other appropriate means designed to ensure effective, timely, and

independent investigation and prosecution of torture claims.

5. Where credible evidence exists implicating members of the security forces in human rights violations, those officers should be immediately removed from duty pending trial. Care should be taken to

avoid conflicts of interest in the investigation of fellow officers by

members of the security forces.

6. Require that physicians involved in the examination of detainees receive adequate forensic training to identify the sometimes subtle

signs of torture; strengthen measures to protect physicians who report torture from harassment and intimidation; permit detainees to

obtain medical examinations from independent physicians and require that such reports be admissible as evidence of torture or coercion.

7. Require systematic recordkeeping in places of detention, indicating the name of the detainee; location and duration of detention;

and identity of all examining officers. Adoption of the recommendations concerning access to counsel can be expected to improve the

accuracy of such recordkeeping.

8. Implement all recommendations in the Council of Europes Committee for the Prevention of Tortures Public Statement on Turkey

of December 6, 1996, including reviewing past sentences of officers

convicted under Articles 243 and 245 of the Penal Code to determine

with these articles should be amended and strengthened.

PROTECTING AND PROMOTING RESPECT FOR THE WORK OF

LAWYERS & HUMAN RIGHTS ADVOCATES

1. Expeditiously resolve pending prosecutions against attorneys and

human rights advocates and immediately dismiss those cases in which

no illegal activity has been proven. Dismiss charges against 25 lawyers on trial incase no. 1993/658 before Diyarbakir State Security

Court No. 3.

2. Curtail prosecution of attorneys and human rights advocates for

their legitimate professional and political activities as protected under Article 10 of the European Convention, and elaborated by the

U.N. Declaration on the Right and Responsibility of Individuals,

Groups and Organs of Society to Promote and Protect Universally

recognized Human Rights and Fundamental Freedoms, and the U.N.

Basic Principles on the Role of Lawyers.
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3. Curtail the practice of administrative closure of organizations

based on their legitimate political and professional activities as protected under Article 11 of the European Convention and elaborated

by the Defenders Declaration; reopen those organizations that have

been closed based on such activities.

4. Promote a climate of respect and cooperation among judges, prosecutors, and defense attorneys by educating all three groups concerning their respective roles and responsibilities within the criminal justice system. Particular attention must be paid to eliminating the

widespread identification of defense lawyers with the causes of their

clients.

5. Take all necessary steps to protect the safety of lawyers both

inside and outside the court room from those who threaten them based

on their representation of unpopular clients, whether or not such

threats are directly state-sponsored.

6. Take all necessary steps to protect the safety of human rights

advocates from those who would threaten them based on their work,

whether or not such threats are directly state-sponsored.
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LETTER FROM THE TURKISH AMBASSADOR TO CHAIRMAN

CHRISTOPHER H. SMITH, DATED MARCH 8, 1999
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COMMISSION INITIATIVES ON THE PROPOSED ISTANBUL

OSCE SUMMIT
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LETTER TO SECRETARY OF STATE WARREN CHRISTOPHER

DATED NOVEMBER 23, 1996
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LETTER TO SECRETARY OF STATE MALELEINE ALBRIGHT,

DATED JULY 15, 1997
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RESPONSE FROM ASSISTANT SECRETARY BARBARA LARKIN,

DATED 8/13/97
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H. CON. RES. 179, INTRODUCED BY MR. SMITH,

DATED OCTOBER 29, 1997
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