The Public Statement on Turkey by the European Committee for the Prevention of Torture

Antonio Tanca ¹

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1. On 15 December 1992 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter referred to as the CPT) issued the first public statement in the four year history of their investigations. This is certainly not the first time that the thorny question of compliance with human rights was raised with respect to Turkey at an international level. Both governmental and non-governmental international organizations (such as the EC and the Council of Europe's Parliamentary Assembly, as well as Amnesty International and Helsinki Watch), and even states (such as the US, which produces the State Department Annual Report on Human Rights in the World) have repeatedly issued alarming reports on this subject, with the objective of engaging world public opinion. One might therefore wonder in what way the CPT public statement differs from the others.

The text of the statement, and the circumstances under which it was issued, show at least two novel elements. The first one concerns the facts upon which it is based: not upon mere allegations, but rather on the findings resulting from inspections conducted by the CPT itself. All CPT findings are buttressed by concrete evidence (such as that contained, for example, in their statement at paragraphs 17-20). Secondly, the statement does not exhibit the characteristics of a `political condemnation': one can infer from the text itself that it is the outcome of an unbroken dialogue between the CPT and the Turkish authorities. It was issued in a `constructive spirit' (paragraph 37), with a view to pursuing, in cooperation with the Turkish authorities, the most suitable means for eliminating certain practices.

2. Under Article 10, paragraph 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter referred to as the European Convention),

if a Party fails to cooperate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members, to make a public statement on the matter.

The CPT decision on Turkey was taken in the aftermath of two ad hoc visits made by the CPT to that country in the Autumn of 1990 and 1991. After these visits, it had become clear that the measures recommended by the CPT, which concerned the strengthening of legal safeguards against torture and other forms of ill-treatment in police establishments, as well as the activities of two specific anti-terrorist departments, had not been satisfactorily implemented. In fact, complaints and allegations of ill-treatment by individuals persisted and continued to reach the CPT throughout 1992. The periodical visit carried out in December 1992 confirmed that the situation had not improved.

The CPT felt it necessary, on this occasion, to depart from the `general philosophy' underlying the Convention, according to which, for an effective protection of individuals from torture or other kinds of ill-treatment, more can be obtained by discreet contacts than by public exposure or denunciations. This philosophy is based on Article 3 of the European Convention, according to which in `the application of this Convention the Committee and the competent national authorities of the Party concerned shall cooperate with each other'. The resort to a public statement must be explained in the light of the conclusions reached by the CPT. Public exposure could probably represent an extra tool in the hands of those sectors of the Turkish public opinion and authorities who really want these practices to come to an end. The need to cooperate with the Turkish authorities is in any event stressed time and again: the statement should facilitate the efforts of both parties to improve the situation. In any case, the views adopted by the CPT, albeit formally addressed to Turkey, will certainly have an impact on the entire European system for the protection of human rights.

3. The statement emphasizes in its last paragraph that `it would have been counterproductive from the standpoint of the protection of human rights for it to have refrained - as it was requested to do by the Turkish authorities - from making this public statement' (paragraph 37). Under Article 10, paragraph 2 of the European Convention, the decision to make a public statement must be taken by the Committee with a two-third majority. Before the actual issuing of the statement, however, the Party concerned must have the opportunity to make known its views. The Committee must then decide whether it considers itself satisfied with the Party's explanations, or whether it wants to proceed with the statement. Is the two-third majority also necessary for the decision to set in motion the procedure? If this was the case the statement issued by the CPT does not so indicate. Nor can any useful pointers be derived from the CPT Rules of Procedure: both Rule 24 (concerning voting procedures) and Rule 44 (concerning public statements) are silent on the matter. A double decision taken by special majority is, in my opinion, necessary. The CPT's competence to issue a public statement is to be defined as `exceptional', insofar as it departs from the general custom of confidentiality (Explanatory Report, paragraph 74). Hence, the rule should be interpreted in such a way as to afford the Party concerned the highest possible level of guarantee.

In the present case, of course, the contents of the views expressed by Turkey are not known. The Turkish authorities certainly asked the CPT not to issue the statement (as it can be inferred from paragraph 37), but nothing is said about the observations put forward by them, or the reasons why the CPT judged them to be unsatisfactory. It is beyond question, however, that the decision was not taken because of Turkey's failure to cooperate, but rather because of its refusal to improve the situation in the light of the Committee's recommendations (Article 10, paragraph 2).

4. Other reports concerning member States of the European Convention have been published in the past, at the request of the Party concerned (e.g. the reports concerning Austria, the United Kingdom, Malta, Denmark, Sweden, France and Switzerland). Turkey, for its part, did not ask for the publication of the first two reports (whose contents are briefly sketched in the CPT's statement). One may wonder whether, had Turkey accepted to publish them, this would have prevented the issuing of the statement. Under the strict terms of the European Convention it does not seem to be the case. A public statement is issued only under the strict conditions set forth by Article 10 paragraph 2 of the European Convention. It cannot be assumed that the decision not to publish a report may amount to a failure to cooperate or to improve the situation. Under Article 11, paragraph 2, a report may be published only at the request of the Party concerned. Yet, it is difficult to dismiss the feeling that, at least indirectly, the publication of the two reports would have had an impact on Turkish public opinion. This in turn would presumably have triggered a series of reactions rendering the issuing of a public statement unnecessary.

5. The introductory part of the statement (paragraphs 1-3) briefly mentions the reasons underlying the decision to act under Article 10 paragraph 2 of the European Convention, and the procedure followed, which underscores the unbroken dialogue between the CPT and the Turkish authorities. The findings of the two ad hoc visits (paragraphs 4-11) as well as the periodic visit (paragraphs 17-20) are then summarized with an assessment of the measures taken by the Turkish authorities in response to the CPT recommendations (paragraphs 12-16). The decision to set in motion the procedure under Article 10 paragraph 2 of the European Convention was however taken in October 1992, before the periodic visit had been made. The negative conclusions reached by the CPT as a result of the three visits (paragraphs 21-25) are followed by a number of suggestions regarding improvements in the legislation and in the training of police officers (paragraphs 26-36).

The main conclusion reached by the CPT is that the practice of submitting persons in police custody to torture or inhuman or degrading treatment remains widespread in Turkey (paragraph 21). However, it is emphasized that such practices are employed in order to extract confessions or to put under pressure people under suspicion in relation to terrorist and certain other kinds of criminal offences (mainly arms and drug dealing). This explains why these practices are confined to persons in police custody, and do not occur (as acknowledged by the CPT) in prisons, gendarmerie stations and psychiatric establishments (paragraphs 22-25). Hence, for a relatively well-defined range of cases, certain techniques are considered effective methods for obtaining evidence and are routinely employed. This is rendered possible by legislation allowing, for certain offences, periods of incommunicado police custody for up to 15 or even 30 days.

6. It appears very clearly, from the spirit and the contents of the statement, that its purpose is not a mere condemnation of Turkey's behaviour. The CPT's insistence on cooperating with the Turkish authorities is only one indicator of its broader perspective. The CPT is not so much concerned with verifying in abstracto the compatibility with international standards of certain practices, or of the internal legislation which permits them (an abstract definition of torture or inhuman or degrading treatment or punishment is absent from the text of the European Convention). Rather, the CPT directly ascertains the actual resort to such practices and, when this is found to be the case, actively recommends to the authorities concerned the most suitable means to eradicate them. The dialogue between the CPT and the authorities concerned is therefore continuous: on the basis of its findings the CPT makes certain suggestions. It also intervenes on the implementation of its suggestions.

The measures recommended in the statement may in fact be classified into two categories: those concerning legislative improvements (paragraphs 27-29), and those which one might define as practical (paragraph 26). However, the CPT also asserts that

it can legitimately be advanced that attacking the root of the problem of torture and ill-treatment involves not so much changing laws as transforming mentalities. This process is required not simply amongst police officers but throughout the criminal justice system (paragraph 36).

The latter goal is of course much more difficult to achieve. One may hope that the publication of the statement can be a first step towards encouraging greater control by Turkish public opinion over certain State powers, which might lead, in turn, to a change in the mentalities.

7. What was the actual effect of the statement, and what are its likely developments? I am not aware, at the moment, of the Turkish reaction. The fact, however, that the statement was public and was issued in a constructive spirit, will presumably not provoke a negative reaction. It will hopefully lead to a gradual implementation of the recommendations (both legislative and practical) made by the CPT.

The legislative measures to be taken were in fact already suggested in the reports issued after the first ad hoc visits. They mainly concerned the introduction of formal safeguards against torture or ill-treatment by police authorities: shortening of the maximum periods of custody by the police or gendarmerie; notification of a person's custody to his next of kin or a third party of his choice; access to a lawyer; medical examination of detained persons; a code of practice for the conduct of interrogations (paragraph 8). The statement however also contains an assessment of the state of the legislation in Turkey, particularly of recently introduced statutes, welcoming the introduction of additional safeguards, but deploring the persistence of lacunae and loopholes in crucial areas (paragraphs 27-29).

The legislative improvements suggested by the CPT tend precisely to eliminate the legal grounds which render possible the resort to torture or other kinds of ill-treatment. Thus, if long periods of uncontrolled police custody allow not only for suspects to be subjected to torture, but also for the signs left by this treatment to heal or disappear, legislation intended to reduce such delays would strike at the very root of the problem.

However, legislative safeguards alone would not be sufficient if they are not integrated with other measures which are more `practical'. These measures are clearly spelled out in paragraph 26 of the statement, and mainly concern the intensification of education on human rights matters and professional training for law enforcement officials (there was already in fact an arrangement to send a number of police officers to be trained in other European countries). The institution of effective and independent monitoring mechanisms which could ensure `managerial control and supervision of law enforcement officials' is also recommended, as well as the adoption of guarantees for the effective independence of forensic institute doctors, whose medical examinations should be broadened in scope.

Finally, the administration of justice and public order fall within the very centre of state sovereignty. It is worth noting that it is rare to find an international supervisory mechanism which states have so jealously preserved as a matter for purely domestic control. This is a striking and deeply innovative feature of the CPT's activities.

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1 University of Florence.

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