US Human Rights Report: Turkish gov’t violates laws prohibiting arbitrary arrest, detention

The Turkish government has not always observed the requirements of law that prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of arrest or detention in court, said a report by the US State Department.

The State Department released its 64-page Turkey 2017 Human Rights Report on Friday, according to which the Turkish Ministry of Justice reported that as of July 15, 169,013 persons had been subjected to some type of “criminal procedure” (e.g., questioning, investigation, detention, arrest, judicial control or a ban on travel) under the state of emergency. Of these, a total of 55,665 were arrested on terror-related grounds following a July 2016 coup attempt, according to official figures. Many were reportedly detained for alleged ties to the Gülen movement or the Kurdistan Workers’ Party (PKK), often with little due process or access to the evidence underlying the accusations against them.

The report said the Turkish government alleged that individuals who used the ByLock messaging application were members of the Fethullah Terror Organization (FETO), a (derogatory) term the government has applied to the Gülen movement. On September 26, the Supreme Court of Appeals ruled that the use of ByLock constituted prima facie evidence of membership in “FETO.”

Turkish authorities believe ByLock is a communication tool among alleged followers of the Gülen movement. Tens of thousands of people, including civil servants, police officers, soldiers, businessmen and even housewives, have either been dismissed or arrested for using ByLock since a failed coup attempt on July 15, 2016.

Based on an examination of the history of the ByLock application, including its alleged modification by suspected Gülen-linked staff working in an intelligence department of the National Police, the Appellate Court found that evidence of the use of ByLock was sufficient to sustain the convictions of two former judges who had filed appeals.

By contrast in late December the Ankara prosecutor’s office paved the way for the release of approximately 1,000 detainee by ruling that they had been detained solely due to the presence of ByLock on their mobile phones, which it assessed had been unwittingly placed on their devices by a separate application.

The section of the report on “Arbitrary Arrest or Detention” continued as follows: 

Under the state of emergency, detainees could be held without charge for up to 14 days. There were numerous accounts of persons, including foreign citizens, waiting beyond 14 days to be formally charged. Bar associations reported that detainees occasionally had difficulty gaining immediate access to lawyers, both because government decrees restricted lawyers’ access to detainees and prisons– especially those not provided by the state–and because many lawyers were reluctant to defend individuals suspected of ties to the 2016 coup attempt. The HRA reported that in terrorism-related cases, authorities often did not inform defense attorneys of the details of detentions within the first 24 hours, as stipulated by law. It also reported that attorneys’ access to the case files for their clients was limited for weeks or months pending preparations of indictments, hampering their ability to defend their clients.

Human rights observers noted that in most cases, authorities provided an attorney where a defendant could not afford one. Judges also may limit a lawyer’s access to the investigation file, should the judge decide the case is confidential. Defense lawyers’ access to their clients’ court files for a specific catalogue of crimes (including crimes against state security, organised crime, and sexual assault against children) may be restricted until the client is indicted.

The continuing state of emergency provided the government with expanded authorities to detain individuals for up to 30 days without charge and deny access to counsel for up to five days. A January 23 decree decreased the maximum detention period to 14 days. Authorities could hold suspects without access to counsel for up to 24 hours. An October 2016 state of emergency decree re-established that detainees could be held for 24 hours without access to legal counsel; it remained in place at year’s end. Decrees give prosecutors the right to suspend lawyer-client privilege and to observe and record conversations between accused persons and their legal counsel. The Human Rights Joint Platform reported that the renewed 24-hour attorney access restriction was arbitrarily implemented.

“Private attorneys and human rights monitors reported irregular implementation of laws protecting the right to a fair trial, particularly with respect to attorney access.

Multiple bar associations claimed their lawyers were hesitant to take cases, particularly those of suspects accused of PKK or Gülen ties, because of fear of government reprisal, including prosecution, against them. Government intimidation of defense lawyers also at times involved non-terror-related cases. In October police detained six lawyers working on a case that involved 301 victims of the 2014 Soma mining disaster for alleged membership in terrorist organizations.

Critics claimed the detentions were spurious and instead aimed at silencing attorneys working on a politically sensitive case. According to the Arrested Lawyers Initiative (which tracks legal news in the country), more than 570 lawyers have been arrested in the country since the attempted coup and another 1,400 were under prosecution as of December 22. Prior to the 2016 coup attempt, human rights groups alleged that authorities frequently denied detainees access to an attorney in terrorism-related cases until security forces had interrogated their clients. The HRA noted anecdotal improvements in this area during the year.

Although the law prohibits holding a suspect arbitrarily or secretly, there were numerous reports that the government did not observe these prohibitions. Human rights groups alleged that in areas under curfew or in “special security zones,” security forces detained citizens without official record, leaving detainees at greater risk of arbitrary abuse. For example, on November 12, Şanlıurfa counterterrorism police detained Mahmut Öngör, the brother of the HRA’s Adana branch chairman, İlhan Öngör. The family alleged it was not notified of his detention for three days and that Öngör was tortured during the first several days of his 11-day detention.”

Pretrial Detention: An August 25 state of emergency decree increased from five to seven years the maximum time that a detainee could be held pending trial, including for crimes against the security of the state, national defense, constitutional order, state secrets and espionage, organized crime, and terrorism- related offenses. The length of pretrial detention generally did not exceed the maximum sentence for the alleged crimes. For other major criminal offenses tried by high criminal courts, the maximum detention period remained two years with the possibility of three one-year extensions, for a total of five years.

The trial system does not provide for a speedy trial, and hearings in a case were often months apart. In the case of the opposition Cumhuriyet newspaper, 19 journalists and employees–including editor in chief Murat Sabuncu, multiple columnists, and a cartoonist–were first detained in October 2016 on terrorism- related grounds widely viewed as politically motivated. Most remained in pretrial detention until July 24, when the hearings for five of the defendants took place, followed by the hearings for the sixth and seventh in September. In October and December, hearings for the remaining detainees took place. At year’s end the group’s prosecution continued, and four individuals remained in detention.”

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Detainees’ lawyers may appeal pretrial detention, although the state of emergency imposed limits on their ability to do so. The country’s judicial process allows a system of lateral appeals to Criminal Courts of Peace that substitutes appeal to a higher court with appeal to a lateral court. Lawyers criticized the approach, which rendered ambiguous the authority of conflicting rulings by horizontally equal courts.

In cases of alleged human rights violations, detainees have the right to apply directly to the Constitutional Court for redress while their criminal case is proceeding. Nevertheless, a backlog of cases at the Constitutional Court slowed proceedings, preventing expeditious redress.

The Office of the UN High Commissioner for Refugees (UNHCR) noted that detention center conditions varied and were often challenging due to limited physical capacity and increased referrals. Refugee-focused human rights groups alleged that authorities prevented migrants placed in detention and return centers from communicating with the outside world, including their family members and lawyers, creating a situation of impunity and the potential for refoulement.

Turkey survived a controversial military coup attempt on July 15, 2016 that killed 249 people. Immediately after the putsch, the Justice and Development Party (AKP) government along with President Recep Tayyip Erdoğan pinned the blame on the Gülen movement.

Fethullah Gülen, who inspired the movement, strongly denied having any role in the failed coup and called for an international investigation into it, but President Erdoğan — calling the coup attempt “a gift from God” — and the government initiated a widespread purge aimed at cleansing sympathizers of the movement from within state institutions, dehumanizing its popular figures and putting them in custody.

Turkey has suspended or dismissed more than 150,000 judges, teachers, police and civil servants since July 15. On December 13, 2017 the Justice Ministry announced that 169,013 people have been the subject of legal proceedings on coup charges since the failed coup.

Turkish Interior Minister Süleyman Soylu announced on April 18, 2018 that the Turkish government had jailed 77,081 people between July 15, 2016 and April 11, 2018 over alleged links to the Gülen movement.

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