TURKEY HUMAN RIGHTS PRACTICES, 1993

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From: newsdesk_aps_nl at apsf.aps.nl (newsdesk at aps.nl)
Subject: TURKEY HUMAN RIGHTS PRACTICES, 1993   PART 4B


TURKEY HUMAN RIGHTS PRACTICES, 1993   part 4b

Source:  U.S.  Department of State

From: kendal at nucst9.neep.wisc.edu (Kendal)
Date: 4 Feb 1994 21:46:06 GMT
Distribution: world


     d.  Arbitrary Arrest, Detention, or Exile

In order to take a person into custody, a prosecutor must issue
a detention order, except in limited circumstances, as when a
person is caught in the act of committing a crime.  The
detention period for those charged with common, individual
crimes is 24 hours.  Those detained for common, collective
crimes may be held for 4 days, and the detention period may be
extended for an additional 4 days.  Under the CMUK, suspects
are entitled to immediate access to an attorney and may meet
and confer with the attorney at any time.  In practice,
attorney access under the CMUK improved for detainees charged
with common crimes.

Persons detained for individual crimes which fall under the
Anti-Terror Law must be brought before a judge within 48 hours,
while those charged with crimes of a collective, political, or
conspiratorial nature may be detained up to 15 days in most of
the country and up to 30 days in the 10 southeastern provinces
under a state of emergency.  There is no guaranteed attorney
access under law.  The decision concerning access to counsel in
such cases is left to the independent prosecutor, who routinely
denies access, usually with the explanation that it would
prejudice an ongoing investigation.  The Justice and Interior
Ministries generally have not intervened in prosecutors'
decisions or police actions denying access to counsel.
Although the Constitution specifies the right of detainees to
request speedy arraignment and trial, judges have ordered a
significant number of persons detained indeterminately,
sometimes for years.  While many cases involved persons accused
of violent crimes, it is not uncommon for those accused of
nonviolent political crimes to be kept in custody until the
conclusion of their trials.


By law, a detainee's next of kin must be notified "in the
shortest time" after arrest.  Once formally charged by the
prosecutor, a detainee is arraigned by a judge and allowed to
retain a lawyer.  After arraignment, the judge may release the
accused if he presents an appropriate guarantee, such as bail,
or order him detained if the court determines that he is likely
to flee the jurisdiction or destroy evidence.

The detention of large numbers of people occurred on several
occasions in 1993, including the demonstrations on August 14
and 15 in Digor, Kars province, and Malazgirt, Mus province
(see Section 1.a.).  In most such cases, the majority of
detainees are subsequently released without charges being
filed.

In the southeast there were several mass roundups of ethnic
Kurds in the wake of a crime.  For example, after a night
watchman was killed in Adana in August, within 24 hours, police
arrested large numbers of ethnic Kurds (estimates range up to
500).  Police charged them under the Anti-Terror Law so the
CMUK did not apply, enabling police to hold them in
incommunicado detention for 15 days without access to a judge
or lawyer (though they were released earlier).  Some detainees
alleged they were tortured.  All were subsequently released
without being charged.

There is no external exile, and Turkey's internal exile law was
repealed in 1987.  In 1990, however, under decree 430, the
Government granted the southeast regional governor the
authority to "remove from the region," for a period not to
exceed the duration of the state of emergency, citizens under
his administration whose activities (whether voluntary or
forced) "give an impression that they are prone to disturb
general security and public order."  Although there were no
known instances of the use of this broad authority in 1993,
human rights monitors and residents of towns in the southeast
report credibly that officials continued to rely on
"administrative transfers" to remove government employees
thought liable to "create trouble."

     e.  Denial of Fair Public Trial

The judicial system is composed of general law courts, state
security courts, and military courts.  Three martial law courts
also remained, remnants of the 1980 military coup.  Most cases
are prosecuted in the general law courts, which include the
civil, administrative, and criminal courts.  Appeals are heard
either by the High Court of Appeals or the Council of State.
There is a constitutional court as well.  Provincial
administrative boards established under the Anti-Terror Law
decide whether cases in which state officials are accused of
misconduct should be heard in criminal court.  Military courts,
with their own appeals system, hear cases regarding infractions
of military law by members of the armed forces.  In December
the Military Court prosecutor ordered the arrest of two
television journalists, who hosted a program on military
deserters and draft dodgers on a private station, arrested for
encouraging people to evade compulsory military service.  The
journalists, who stated that the views they presented were
those of their guests, were being tried in military court as of
the end of the year.  This was the first time that civilians
have been arrested on the order of a military prosecutor and
tried in a military court while Turkey was under civilian rule.

Eight state security courts, composed of five members--two
civilian judges, one military judge, and two prosecutors--try
defendants accused of crimes such as terrorism, drug smuggling,
membership in illegal organizations, and espousing or
disseminating ideas prohibited by law as "damaging the
indivisible unity of the State."  Their verdicts may be
appealed only to a specialized department of the High Court of
Appeals dealing with crimes against state security.

The Constitutional Court examines the constitutionality of
laws, decrees, and parliamentary procedural rules.  However, it
may not consider "decrees with the force of law" issued under a
state of emergency, martial law, or in time of war.

The Constitution requires that judges be independent of the
executive in the discharge of their duties and provides for the
security of their tenure.  The High Council of Judges and
Prosecutors, which is appointed by the President and includes
the Minister of Justice, selects judges and prosecutors for the
higher courts and is responsible for oversight of those in the
lower courts.  The Constitution also prohibits state
authorities from issuing orders or recommendations concerning
the exercise of judicial power.  In practice, the courts
generally act independently of the executive.

Defendants normally have the right to a public trial, and,
under the Constitution, can only be proven guilty by a court of
law.  By law, the bar association must provide free counsel to
indigents who make such a request to the court.  Costs are
borne by the association, although the bar association
complained in 1993 that the funds promised them by the State
for the increased workload resulting from the CMUK's
implementation had not been forthcoming.  There is no jury
system; all cases are decided by a judge or panel of judges.

Defense lawyers generally have access to the independent
prosecutor's files after arraignment and prior to trial (a
period of several weeks).  In cases involving violations of the
Anti-Terror Law and a few others, such as insulting the
President or "defaming Turkish citizenship," defense attorneys
may be denied access to files which the State claims deal with
national intelligence or security matters.

In 1993 state security courts predominantly handled cases under
the Anti-Terror Law.  The State claims these courts were
established to try efficiently those suspected of certain
crimes.  In fact, however, the law provides that those accused
of crimes falling under the jurisdiction of these courts may be
detained twice as long before arraignment as other defendants.
These courts may hold closed hearings and may admit testimony
obtained during police interrogation in the absence of
counsel.  According to government figures, 3,792 people were
detained under the Anti-Terror Law, and 811 people are serving
sentences for violations of its provisions.

The Constitutional Court, upon examination of the
constitutionality of several provisions of the Anti-Terror Law,
(1) streamlined procedures and reduced the average fines
imposed on the press from billions of Turkish lira to millions
(approximately T.L. 14,000 to $1); (2) returned the assets and
properties of the Turkish Confederation of Revolutionary
Workers Unions (DISK) on January 27, 1993; (3) struck down a
provision which had permitted the monitoring of meetings
between prisoners involved in acts of violence and their
lawyers; and (4) annulled a provision which limited to three
the number of lawyers permitted to follow a given case in the
state security court.  In September the court struck down the
law under which the Government was entitled to issue certain
decisions by decree.  Shortly thereafter, upon application of
opposition parties, the Court annulled several government
decrees, including one promulgated several weeks earlier to set
up a human rights undersecretariat.  In July the court closed
the HEP on the charge that it advocated separatism (see Section
2.a).

At the start of 1993, three Martial Law Courts remained of
those established after the 1980 coup.  They were engaged in
completing old cases.  On December 27, Parliament passed a bill
which ended the Martial Law Courts and transferred their
remaining cases to civilian courts.  Figures provided by the
Government indicate that 22 cases continued in the three
martial law courts as of the end of September.