I. INTRODUCTION
1) On 20 May 2019, an arrest warrant was issued for 249 Turkish diplomats who were dismissed under Emergency Decrees. On 26 May 2019, member of the Turkish Parliament, Ömer Faruk Gergerlioğlu announced through his social media accounts that “there are claims of torture in Ankara Police Headquarters.” In the following hours and days, claims of “beating to unconsciousness, harassment and forcing to watch those who were being tortured, the fact that acts of torture that were incompatible with human dignity were inflicted in at least four cases, the acts were performed by persons coming to Ankara Police Headquarters from outside who identified themselves as MIT (Turkish intelligence); a diplomat who was beaten to unconscious was hospitalized; doctors did not write any report regarding the incident; the torture continued and it was openly stated that it would get worse; attempts were made to get statements through torture” appeared on the media.
2) When the lawyers to victims applied to the Ankara Bar Association, Center for Attorney Rights, Penal Institution Board and Center for Human Rights of the Ankara Bar Association prepared a report by making interviews with the victims and their lawyers. The report which was published on 28 May 2019 has fully verified the torture incident claimed by the victims and their lawyers.
3) This report includes a summary of the report published by the Ankara Bar Association as well as domestic and international legal framework concerning torture and a consolidated list of state officials who are suspected to have ordered, facilitated, carried out concealed the torturing of former Turkish diplomats at Ankara Police HQ.
II. SUMMARY of THE REPORT of ANKARA BAR ASSOCIATION (dated 28 May 2019)
4) A panel comprising members of Penal Institutions Board, Center for Human Rights, and Center for Attorney Rights who visit the Investigation Department of Financial Crimes held a meeting in a closed room with the six persons whose names had been reported regarding the claims of ill-treatment and torture, and statements were officially recorded and signed in the company of the persons who suffered ill-treatment and torture. (The names of the persons interviewed are kept confidential in this report.)
5) Established by the written statements and as a result of the interviews, the findings regarding the claims of ill-treatment and torture are as follows:
a. All the six persons who were interviewed stated that they had been taken to meetings under the pretext of “interviews” where they were forced to become informants and suffered threats and insults. All the six persons who were interviewed stated that they were taken out for an interview more than once, they were put under psychological stress during the interview, and they could identify the persons who carried out the interviews if they saw them.
b. 5 of the 6 persons who were interviewed stated that they suffered ill-treatment and torture outside the interviews. One person with whom an interview was held stated that he did not personally suffer ill-treatment and torture but heard about the claims of ill-treatment and torture from the persons with whom he shared a cell and from other persons when they were taken together to the Criminal Judgeship of Peace during the time extension procedures. No discrepancy was found between the names of persons whom this person heard to have suffered ill-treatment and torture and the names of the persons who declared that they suffered ill-treatment and torture.
c. According to the common statements of the five persons who stated that they had suffered ill-treatment and torture; these persons were taken out of their cells where they were held in custody (one on Saturday night, another the night between Saturday and Sunday, and the other three Sunday night), they were taken to the section on the ground floor of Ankara Provincial Police Headquarters Investigation Department of Financial Crimes (one person said he was taken without handcuffs, while four said they were handcuffed in the back), they were put in through a door with the sign “No Entrance” on it on the narrow hallway at the entrance of the department, the persons who put them in the dark room left, the persons whose faces they could not identify because of the dark first forced them against the wall, blindfolded them (The uncuffed person stated that he was the first to be handcuffed in this room), then forced them to kneel, made them crawl for a while, hit them on the head with truncheons, threatened that they would be raped unless they talked, and the persons in the dark room brushed truncheons on their bodies.
d) After these events, the three persons said they were stripped completely naked, one said he was stripped waist down, one said his trousers were stripped half down; and then four persons, the completely and waist-down naked ones, were handcuffed in the back, put in fetus position, had truncheons brush their anal areas; they were subjected to threats and insults all the while; they were given one to two minutes after which they were told as follows:
“We now move into the next stage” and a substance which they thought to be oil or lubricant was poured on their anal areas and truncheons were brushed around their anal areas. In addition, 1 person stated that they tried to take his trousers off, which they managed to lower halfway, he forced them back up, and he was tortured by having the truncheon brushed over his body and clothes.”
e) The five persons who said they had been subjected to ill-treatment and torture were asked whether the persons who performed the ill-treatment and torture were one of the persons whose face they saw and voice they heard in the Investigation Department of Financial Crimes and they replied that these were different persons. When asked if they used any expression that might reveal their identity, four of the persons said no such expression was used but one stated that he heard them say, “We came from outside; we’re a professional team.”
f) The five persons who said they had been subjected to ill-treatment and torture stated that they were accompanied by a police officer during the daily examination of the doctor and they could not tell the doctor about what they experienced because they feared for and were worried about their safety of life.
g) One person who said he was subjected to ill-treatment and torture stated that before the ill-treatment and torture defined as the second stage one person asked him whether he was married and when he said he was he was told “Look, you won’t be able to sleep with your wife and you’ll wake up at night and cry.”
h) One person who said he was subjected to ill-treatment and torture stated that he got bruises on his knees due to the crawling (the bruises were seen and photographed by the visiting commission) and declared to the doctor on his first examination the day after the torture, but when the doctor verbally declared that he had written in the report as bruises the female officer who was present during the examination panicked, got hold of her mobile phone, and wrote something to someone, and he was then taken out of the room and he was not shown the completed version of the report and they were later transferred to the Criminal Judgeship of Peace for procedures of extending detention time, and the same doctor wrote in the report that there was no mark of battery or coercion in the examination they were taken after the extension decision, and he had no idea about the fate of the other report.
i) One person who said he was subjected to ill-treatment and torture stated that he was told before they started ill-treatment and torture that “We rape with truncheons here; you must’ve heard about it. It’s all true,” and then he was subjected to the ill-treatment and torture explained above.
k) One person who said he was subjected to ill-treatment and torture stated that he did not say anything to his friends when he returned to the cell after the experience; all he could say was that there was torture, and then he went to sleep; when he wanted to go to the toilet when he woke up he passed out; 112 medical team came in, checked his blood pressure and then left; he also passed out in the morning after the events; and he had not slept for 48 hours.
l) One person who said he was subjected to ill-treatment and torture stated that when they were taken before the Criminal Judgeship of Peace he said to the Criminal Judge of Peace that he had been subjected to ill-treatment; the judge answered, “Is it just you? Why doesn’t anyone else have it;” whereupon another person who stated that he had been subjected to ill-treatment and torture said, “I’ve subjected to torture too.” Two persons in the same trial stated that the judge said, “I’m not a doctor; this isn’t my job; Go tell it to the doctor.”
RECOMMENDATIONS of ANKARA BAR ASSOCIATION (Summary)
6) Ankara Bar Associations madfethe recommendations as follows:
a.The law enforcement officers who carried out the investigation into the detainees should be suspended from the investigation so that torture and ill-treatment against the detainees can be prevented;
b. Necessary instructions must be submitted for examination procedures to be conducted in accordance with the Istanbul Protocol;
c. All the suspects kept in custody in Ankara Provincial Police Headquarters Investigation Department of Financial Crimes must be brought before the prosecutor’s office immediately without getting their statements completed at the police headquarters;
d. An investigation must be launched ex-officio for the identification of the persons who committed the crime of torture; an effective investigation must be conducted so that material facts can be revealed and any spoliation of evidence can be forestalled; units and members of Provincial Gendarmerie must be used as per Articles 160/2 and 164 of the CMK no. 5271, and units and members of the police must not be appointed directly in this investigation;
e. All the raw camera footages must be collected immediately starting with those of the different places of detention where the suspects were kept at Ankara Provincial Police Headquarters, the camera footages that show the entrances and exits of the Investigation Department of Financial Crimes as well as all the camera footages inside the Investigation Department of Financial Crimes, and the moments when the detained suspects were being taken away for interviews and torture so that the suspect law enforcement officers can be identified; because it is known that camera recordings were previously erased after their preservation for 30 days in similar applications due to claims of law enforcement officers’ battery and torture against both attorneys and suspects, legal obligations must be fulfilled for all pieces of evidence to be collected and protected;
f. the staff who were assigned to the said operations must be suspended until the investigation into claims of torture and ill-treatment is completed;
g. Considering the fact that a judge who learns about a claim of torture and ill-treatment is obliged to act and that the Criminal Judge of Peace did not take any action although the persons declared to him that they were subjected to torture, the Criminal Judge of Peace who issued an extension on detention period must be identified and necessary legal action must be taken against him.
To see full report click here
III. NATIONAL & INTERNATIONAL LEGAL FRAMEWORK on TORTURE
7) Under article 17 and 38 of the Constitution of Turkey, ‘Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence. The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his/her consent. No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity(Art.17), No one shall be compelled to make a statement that would incriminate himself/herself… or to present such incriminating evidence (Art 38§5)’.
8) Turkey is also party to:
- the European Convention on Human Rights (ECHR),
- the International Covenant on Civil and Political Rights (ICCPR),
- the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment,
- the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,
- the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT),
under these treaties Turkey is obligated to prevent torture and cruel, inhuman or degrading treatment or punishment.
9) The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment of February 10, 1984, which Turkey signed and ratified in 1988, defines torture in Article 1 as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
10) Article 24 of the Regulation on Apprehension, Detention and Questioning stipulates the principles as follows:
- Statement of the suspect must depend on his or her free will. In a way to prevent this, physical or psychological interventions like ill-treatment, torture, medication, tiring out, deceiving, forcing or threatening, using some tools cannot be made.
- An unlawful promise cannot be given.
- The statements which are obtained through prohibited methods cannot be used as an evidence even if they are given voluntarily.
- When there is a need to take statement of the suspect because of the same event, it can be done only by the prosecutor.
- Nobody shall be forced to make a statement or provide an evidence which blaming himself/herself or his relatives designated in the Law.
11) Under the Turkish Penal Code, torture, torment and ill-treatment arestipulated as a crime. Articles 94, 95 and 96 of the Turkish Penal Code, lists the legal sanctions and criminal measures against torture as follows:
ARTICLE 94: (1) A public officer who performs any act towards a person that is incompatible with human dignity, and which causes that person to suffer physically or mentally, or affects the person’s capacity to perceive or his ability to act of his own will or insults them shall be sentenced to a penalty of imprisonment for a term of three to twelve years. (2) If the offense is committed against: a) a child, a person who is physically or mentally incapable of defending himself or a pregnant woman; or b) a public officer or an advocate on account of the performance of his duty, a penalty of imprisonment for a term of eight to fifteen years shall be imposed. (3) If the act is conducted in the manner of sexual harassment, the offender shall be sentenced to a penalty of imprisonment for a term of ten to fifteen years. (4) Any other person who participates in the commission of this offense shall be sentenced in a manner equivalent to the public officer. (5) If the offense is committed by way of omission there shall be no reduction in the sentence.
ARTICLE 95: (1) Where the act of torture causes (in the victim): a) a permanent impairment of the functioning of any one of the senses or an organ; b) a permanent speech defect; c) a distinct and permanent scar on the face; d) a situation which endangers a person’s life; or e) the premature birth of a child, where the victim is a pregnant woman, the penalty determined in accordance with the above article shall be increased by one half. (2) Where the act of torture causes (in the victim): a) an incurable illness or if it has caused the victim to enter a vegetative state; b) the complete loss of functioning of one of the senses or organs; c) the loss of the ability to speak or loss of fertility; d) a permanent disfigurement of the face; or e) the loss of an unborn child, where the victim is a pregnant woman, the penalty determined in accordance with the article above shall be doubled. (3) Where an act of torture results in the breaking of a bone, the offender shall be sentenced to a penalty of imprisonment for a term of one to six years according to the effect of the broken bone on his ability to function in life. (4) Where an act of torture causes the death of the victim, the penalty to be imposed shall be aggravated life imprisonment.
ARTICLE 96: (1) Any person who performs any act which results in the torment of another person shall be sentenced to a penalty of imprisonment for a term of two to five years. (2) If the offense is committed against: a) a child, a person who is physically or mentally incapable of defending himself or a pregnant woman; or b) a public officer or an advocate on account of the performance of his duty, a penalty of imprisonment for a term of eight to fifteen years shall be imposed. Where the acts falling under the above paragraph are committed against: a) a child, a person who is physically or mentally incapable of defending himself or a pregnant woman; or b) a direct ascendant, direct descendant, adoptive parent or spouse, a penalty of imprisonment for a term of three to eight years shall be imposed. There is no statute of limitations for inhuman treatment such as torture.
12) The right to life and the prohibition of torture impose a positive obligation on State parties to the ECHR and ICCPR, as well as a negative one. The ECtHR has affirmed, in the case of Marguš v. Croatia, that:
“the obligation of States to prosecute acts such as torture and intentional killings is thus well established in the Court’s case-law. The Court’s case-law affirms that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State’s obligations under Articles 2 and 3 of the Convention, since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed under Articles 2 and 3 of the Convention, and render illusory the guarantees in respect of an individual’s right to life and the right not to be ill-treated. The object and purpose of the Convention, as an instrument for the protection of individual human beings, require that its provisions be interpreted and applied so as to make its safeguards practical and effective.”
13) Under Turkish law, public prosecutor is the chief of any criminal investigation. As chiefs of criminal investigations, public prosecutors command police, gendarmerie, customs protection and coast guard on issues and actions pertaining to criminal investigations. According to Article 6 of the By-Law on Judicial Law Enforcement, investigation shall be taken primarily by the judicial law enforcement upon orders and directives of a public prosecutor. Judicial law enforcement shall immediately fulfill orders of a public prosecutor related to judicial matters.
14) Prosecutors are also responsible for protecting the rights of suspects detained within the scope of their investigations. As per Article 161 § 5 of the Code of Criminal Procedure No. 5271, titled “Powers and Responsibilities of Public Prosecutors”, “Public officials who misuse or neglect their duties stemming from the body of law, or duties required of them according to provisions of law, as well as superiors and officers of the security forces who misuse or neglect to execute oral or written orders or directives of public prosecutors, shall be sua sponteprosecuted by public prosecutors.”
15) Article 13 of the By-Law on Judicial Law Enforcement of which title is ‘Supervision of judicial law enforcement services’ is as follows:
Chief Public Prosecutors and Public Prosecutors;
a) always supervise the judicial acts done by judicial law enforcement officers in order for effective and efficient execution of judicial law enforcement services.
b) when needed, by examining the investigation file at the related judicial law enforcement unit, may order the completion of the deficiencies of the investigation and may also order that investigation file and the parties of the investigation, as they actually stand, should be brought to the Chief Public Prosecutor’s Office.
Chief public prosecutors and public prosecutors, as requirements of their judicial duties,inspect detention cells that detainees will be held, if exist, questioning rooms, current situation of those persons, duration of the detention and all relevant acts and records about the detention and record the results in the register of persons under custody.
16) Article 26 of the Regulation on Apprehension, Detention and Questioning, chief prosecutors and the prosecutors who they charge with and chiefs of law enforcement officers are responsible from the inspection of jails and interrogation rooms. The relevant article is as follows:
Article 26: By relevant units of the law enforcement officers, inspections are carried out to maintain fitness of jails and interrogation rooms to standards.
As a requirement of their judicial responsibilities, chief prosecutors and the prosecutors who they charge with oversee the jails in which the detainees are kept, if exists interrogation rooms, the situation of these people, reasons and duration of their detention, all relevant records and proceedings about the detention; and record the results to the Book of Registration of People in the Jail.
17) Under Article 6 of the Regulation on Judicial Law Enforcement Officers, ‘the chief judicial law enforcement officer has the authority to supervise, inspect, plan, when needed, to take other administrative measures and to determine the distribution of tasks with regard to the law enforcement officers in order for the effective and efficient execution of law enforcement services.’ Article 3 of the mentioned Regulation sets forth that the chief law enforcement officer is provincial director of security and district director of security within the General Directorate of Security.
18) As per Article 13 of the By-Law on Judicial Law Enforcement and Article 26 of the By-Law on Arrest, Detention and Interrogation, chief public prosecutors and public prosecutors appointed by them shall inspect actions of judicial law enforcement, units of service and custody, and detention centers. According to Organizational Circular of the Chief Public Prosecutor’s Office in Ankara dated 06 March 2019, Deputy Chief Public Prosecutor Ilhan Ayaz is personally responsible to undertake such inspections, assign inspectional tasks to other prosecutors and oversee their implementation.
19) Under article 9 of the Regulation on Apprehension, Detention and Questioning, “When any findings showing that ‘the torture’ prescribed in article 94 of the Turkish Criminal Code No 5237, ‘the aggravated torture on account of its consequences’ prescribed in article 95 of the mentioned Code or ‘the torment’ prescribed in article 96 of the mentioned Code has been committed are noticed during the medical examination, the doctor immediately notifies the public prosecutor of this situation… It is essential that the doctor and the person who will be examined should be alone together in the context of the doctor-patient relationship.”
20) Under article 4 of the Regulation on Apprehension, Detention and Questioning, the head of detention and holding cell is an officer who is responsible for the protection of the rights of suspects and who is assigned by the related chief or commander of station, unit or boat or chief of bureau with a view to reading out the rights of the persons that are detained or held, keeping records and ensuring to act in compliance with the laws.
21) According Article 279 of the Turkish Penal Code, any public officer who fails to report of an offence (which requires a public investigation and prosecution), or delays in reporting such offence, to the relevant authority, after becoming aware of such offence in the course of his duty, shall be sentenced to a penalty of imprisonment for a term of six months to two years.
IV. CRIMINAL LIABILITIES: Consolidated list of public servants who should be held accountable
21) Under legislations and facts mentioned above:
a. Ankara Chief Public Prosecutor Yüksel KOCAMAN, public prosecutor Yildirim Kemal ZOHRE who is conducting the concerning investigation are obliged to supervise actions of the judicial law enforcement officers under Article 161§5 of the Code of Criminal Procedure No. 5271 and Article 13 of the By-Law on Judicial Law Enforcement,
b. Ankara Chief Public Prosecutor Yüksel KOCAMAN, Deputy Chief Prosecutor İlhan AYAZ, public prosecutor who has the victims detained Yıldırım Kemal ZÖHRE, Director of Ankara Provincial Security Directorate Servet YILMAZ (who is the chief judicial law enforcement officer in Ankara) were obliged to inspect interrogation rooms, custody, and detention centers, detention cells, situation of people who are kept these places under Article 13 of the By-Law on Judicial Law Enforcement, Article 26 of the By-Law on Arrest, Detention and Interrogation, and Organizational Circular of the Chief Public Prosecutor’s Office in Ankara dated 06 March 2019,
c. The head of detention and holding cell in Ankara Financial Crimes Investigation Unit was obliged to protect the rights of suspects who are held in the detention unit he is responsible for under article 4 of the Regulation on Apprehension, Detention and Questioning.
d. Forensic doctor who carried out examination of the victims was obliged to carry an adequate medical examination by ensuring the victims privacy in compliance with the Istanbul Protocol and notify immediately their complaints and his / her observations to Public Prosecutor under article 279 of the Turkish Penal Code and article 9 of the Regulation on Apprehension, Detention and Questioning,
e. Peace Criminal Judge whom the victims report their complaints on torture they were exposed was obliged to report it to the relevant authorities under article 279 of the Turkish Penal Code.
22) Therefore,
a. Ankara Chief Public Prosecutor Yüksel KOCAMAN,
b. Deputy Chief Prosecutor İlhan AYAZ,
c. Director of Ankara Provincial Security Directorate Servet YILMAZ,
d. Public prosecutor Yıldırım Kemal ZÖHRE,
e. Head of detention and holding cell in Ankara Financial Crimes Investigation Unit (Unidentified Suspect 1)
f. The forensic doctor (Unidentified Suspect 2) who neglected his / her duty of reporting torture, and issued a report contrary the facts,
g. Peace Criminal Judge (Unidentified Suspect 3) who neglected his / her duty of reporting torture crime though was told on torture by the victims,
have criminal liabilities for torture crimes of which victims are six former Turkish diplomats.
23) Moreover,
a. Supervisors in Financial Crimes Investigation Unit in Ankara Provincial Police Directorate Murat BAYRAK and Mustafa AYAN
b. The chief of the bureau conducting the investigation (Unidentified Suspect 4) are primarily responsible from torture crime of which victims are six former Turkish diplomats.
24) Finally,
a. Chair of the 2nd Chamber of the Council of Judges and Prosecutors (CJP), Mehmet YILMAZ,
b. Chief of CJP’s inspection board, Yunus Nadi KOLUKISA who are responsible for inspection of judges and prosecutors, and the chief judicial law enforcement officer have criminal liability for neglecting their duty.
To Download the report as pdf, click: Report on criminal liabilities with regard to torture incident took place in Ankara Police Headquarters between 20 and 31 May 2019. – The Arrested Lawyers Initiative
This report will be updated as more information is obtained concerning unidentified suspects.
As of 31st May 2019, 27 individuals including those subjected to torture have been arrested, while remaining ones were released.
To see the full report dated 28 May 2019 of Ankara Bar click here
This is the updated version.
Categories: Reports, Torture and Impunity