The crime of torture is regulated in Article 94 of the Turkish Penal Code (TPC), titled “Torture”. The article regulates the basic and aggravated forms of crime and the amount of punishment. In addition, if acts of torture are committed systematically and in line with a plan against a part of the society with political, philosophical, racial, or religious motives, a crime against humanity as set out in Article 77 of the TPC will occur.

The prohibition of torture, included in the category of crimes against humanity, is mentioned among the fundamental rights of the individual in international law documents. Article 5 of the Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Likewise, Article 3 of the European Convention on Human Rights, titled “Prohibition of torture”, includes the provision of “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

According to the findings of the Turkish Human Rights Association Documentation Unit, at least 980 people were subjected to torture or ill-treatment in detention places from January to November (2022). In this context, 310 prisoners complained that they were tortured or ill-treated in prisons. Unfortunately, it is seen that these practices have become routine during the state of emergency.

Prevention of torture is of vital importance in terms of protecting the right to life and securing the right to freedom and security in a democratic state of law. There is no statute of limitations for the torture.  Torture should be investigated without waiting for a complaint due to its serious violation of human rights.

However, Turkish judicial authorities take the torturers under protection instead of calling them to account for the torture. Especially during the state of emergency, it was implemented as a state policy. With the State of Emergency Decree, an immunity shield was brought to those who carried out the torture acts. After the state of emergency, while acts of torture continue, responsible public officials are protected by the judiciary. The latest example of this is Abdulkadir Türkyılmaz, a police officer working in the Anti-Terror Branch of the Ankara Police Department. Access to news and tweets containing allegations of torture by Abdulkadir Türkyılmaz was imposed by the court[1].

Türkyılmaz came to the fore with his confession that he tortured some soldiers after the July 15 coup attempt and his use of violence against MP Ömer Faruk Gergerlioğlu in front of his family. In the investigation launched after the complaints made against Türkyılmaz, he admitted that he had “ill-treated” some soldiers, including senior commanders, in the heat of the coup d’etat and that he had hung a colonel from his leg in the pot.  However, Türkyılmaz said that he did not regret his acts.

Abdulkadir Türkyılmaz had applied to the court to have removed the news of torture. Ankara 6 Magistrates Court decided to remove the tweets as well as the news. In this context, with the 102-page decision of the Court; In total, access to 2071 URLs were banned.

As seen in the case of Abdulkadir Türkyılmaz, torture, a crime against humanity and having no statute of limitations, has turned into an administrative practice under state control. Instead of fighting against torture, measures are taken to prevent the disclosure and prosecution of torturers.

Arbitrary and non-compliant attitudes and behaviors adopted by the law enforcement officers with the encouragement and support of the government during the state of emergency caused those incidents to grow day by day. The main reason why state-sponsored torture has become an administrative practice is the armor of irresponsibility provided for torturer public officials by the emergency decree laws. Even though the state of emergency ended, state of irresponsibility continues with the secret support of the state. At this point, the judicial authorities have an important role in the continuation of irresponsibility and in the non-accountability of the perpetrators. While the judicial authorities should act ex officio and do what is necessary to punish the criminals in order to prevent torture, it is seen that the judicial authorities sometimes shield the perpetrators and protect them with “decisions of non-prosecution” and sometimes “decisions on the access ban to torture news”.

However, it should be kept in mind that acts of torture, which are crimes against humanity, will always be the subject of investigation since there is no lapse of time. At this point, the decision of non-prosecution of the torturers by the court of the Palace regime will never save the perpetrators. When justice comes back, the torture files will be taken off the shelves without exception. Therefore, although taking a decision of non-prosecution or a decision to block access is a refuge in the Erdogan regime, even these decisions themselves will be a guide in determining torturers.

In addition, it should not be forgotten that, since the public officials systematically committed acts of torture against certain segments of the society, especially the members of the Gülen Movement, with the State of Emergency process, their trials would be within the scope of crimes against humanity in Article 77 of the Turkish Penal Code.

[1] https://aktifhaber.com/gundem/iskenceci-polis-abdulkadir-turkyilmaz-izlerini-silmeye-calisiyor-2071-haber-ve-tweet-icin-erisim-engeli.html

A. GENERAL ASSESSMENT OF THE COMMITTEE’S DECISION

The United Nations Human Rights Committee reached an important decision on unlawful detention, poor prison conditions and violation of the right to a fair trial in the Mukadder Alakuş file numbered 3736/2020, which we discussed in our previous article.  the Committee particularly emphasized in its assessment about the applicant that taking some acts as the basis for the arrest and conviction as evidence of membership in a terrorist organization which is not defined as crimes or prohibited under domestic law, such as using the ByLock messaging program, having a Bank Asya account, and attending a peaceful meeting, is a violation of rights.

Shortly after this important decision, the UN Human Rights Committee announced another important violation decision of the same nature.  The committee has made important determinations and has found significant violations in the decision of Gökhan Açıkkollu dated 30/11/2022 and numbered 3730/2020. Gökhan Açıkkollu, who was a teacher at that time, was detained after the coup attempt on 15 July and died as a result of the torture and ill-treatment he suffered while in custody. the prosecutor’s office decided not to prosecute in the investigation conducted regarding Açıkkollu’s death,. After the decision of non-prosecution, Gökhan Açıkkollu’s wife, Mümine Acikkollu lodged an application to the United Nations Human Rights Committee in order to detect violations of Gökhan Açıkkollu’s right to life and the investigation process after his death.

The Committee has made the following determinations and evaluations regarding the Applicant’s claims that:

• Unlawful detention of Gökhan Açıkkollu without any evidence that he is a member of an armed terrorist organization
  • Gökhan Açıkkollu’s death as a result of torture and ill-treatment while in custody
  • In the investigation process initiated after Gökhan Açıkkolu’s death, the decision of non-prosecution was given without an adequate and effective investigation.
  • Individual application to the Constitutional Court is not an effective domestic remedy for this kind of application.

B. MATTERS OF THE COMMITTEE

a.   The Constitutional Court and Exhaustion of Domestic Remedies

7.4 Following its jurisprudence[10], the Committee notes that the European Court of Human Rights has expressed concern as to the effectiveness of the remedy of an individual complaint to the Constitutional Court in cases concerning pre-trial detention, due to the non-implementation, by lower courts, of the Constitutional Court’s findings in two cases in which the Constitutional Court had found violations of the applicants’ rights. The European Court has also noted that it would be for the Government to prove that the remedy of an individual complaint to the Constitutional Court is effective, both in theory and in practice, in cases concerning the right to liberty and security.[11]11 The Committee finds that, in the circumstances of the author’s case, and in light of the authority of the Constitutional Court’s judgements by lower courts in recent cases, the State party has not shown that an individual complaint before the Constitutional Court would have been effective, in practice, to challenge the lawfulness of her husband’s detention and subsequent death in custody.

b. Gökhan Açıkkollu’s Death As A Result Of Torture And İll-Treatment While In Custody

8.1 The Committee has considered the communication in the light of all the information submitted to it by the parties, as required under article 5 (1) of the Optional Protocol.

8.2 The Committee notes the State party’s derogation under article 4 of the Covenant, which came into effect after the events giving rise to this communication, on 2 August 2016, after declaring a nationwide state of emergency (paras 1.2 and 4.1 supra). The Committee notes that a fundamental requirement for any measure derogating from the Covenant is that it is be limited to the extent strictly required by the exigencies of the situation in accordance with the principle of proportionality. The Committee further recalls that the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation.[12] The Committee recalls that article 4 (2) of the Covenant explicitly prescribes that no derogation may be made from articles 6 and 7.[13] Although article 9 of the Covenant is not included in the list of non-derogable rights under article 4 (2), the Committee recalls that the fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances. The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary.[14]

8.3 The Committee notes the author’s claims under articles 6 and 7 of the Covenant, that despite the authorities’ knowledge of her husband’s health problems, when he was in custody, her husband was subjected to torture and ill-treatment which resulted in his death. It also notes the author’s claim that she and her family suffered mental anguish and inhuman treatment due to the failure of the State party to properly investigate the death of her husband. The Committee takes note of the State party’s argument that the author’s husband was provided with adequate medication and regularly examined, and that, as indicated in the autopsy reports, he died from a heart attack without any indication that he was subjected to torture or ill-treatment. It also notes the State party’s submission that the investigation into the author’s husband’s death was duly conducted, in compliance with international standards and protocols, and based on tangible evidence.

8.4 The Committee recalls that the State party remains responsible for the life and well-being of its detainees, and that the duty to protect the life of all detained individuals includes providing them with the necessary medical care and appropriate regular monitoring of their health.[15] Loss of life occurring in custody, in unnatural circumstances, creates a presumption of arbitrary deprivation of life by State authorities, which can only be rebutted on the basis of a thorough, prompt and impartial investigation that establishes the State’s compliance with its obligations under article 6.[16] The Committee further recalls that it is the duty of the State party to afford everyone protection as may be necessary against acts prohibited by article 7, such as torture and ill-treatment, which may seriously affect the physical and mental health of the mistreated individual, and could also generate the risk of deprivation of life.[17] When confronted with allegations of torture and ill-treatment, it is incumbent on the State party to produce evidence refuting the allegations that its agents are responsible and showing that they applied due diligence in protecting the detainee through a prompt and impartial investigation applying the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The Committee similarly recalls that prosecutions of potentially unlawful deprivations of life should be undertaken in accordance with relevant international standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful Death, and must be aimed at ensuring that those responsible are brought to justice, promoting accountability and preventing impunity, and drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations.[18]

8.5 In the present case, the Committee observes that the State party has provided two autopsy reports concluding that (i) the author’s husband did not die due to a traumatic effect or from poisoning; (ii) the colour changes in skin tissue and features of sternal and rib fractures observed are possibly due to the revitalization operations; and (iii) he died as a result of an acute myocardial infarction. It also observes that the State party provides the public prosecutor’s decision of non-prosecution stating that “there is no suspicious situation regarding the information and findings that require the presence of an external factor considered to have an effect of contribution to the death of Gökhan Açikkollu”. However, the Committee observes that both the decision of non-prosecution and the autopsy report dated 23 November 2016 noted the author’s and her brother’s statements raising concern that torture might be occurring.[19] The Committee also notes that the State party has not provided any information regarding the discrepancies in the author’s husband’s medical reports whilst in custody, which in several cases confirmed injuries to his ribs, near to his neck, on his back, his psychological depression and symptoms of dizziness and sweating. It notes that the State party did not establish that the allegations of the author’s husband during a medical examination on 3 August 2016, that he had been exposed to physical and psychological trauma while in detention, were promptly, impartially and thoroughly investigated.[20] It also observes that the State party did not investigate either the doctors’ assessment in their report that the injuries observed in the author’s husband’s neck were “possibly due to old trauma”. The Committee considers that, based on the information available to it on file, although the authorities were aware of the allegations of torture, it is not apparent that any ex officio investigation was conducted, in compliance with the Istanbul Protocol, on the basis of these allegations, the apparent signs on the author’s husband’s body and the medically reported psychological symptoms. The Committee considers that, in the circumstances of the present case, and in particular in light of the State party’s inability to effectively explain either the visible signs of mistreatment that were witnessed on a number of occasions or to establish that serious investigations were carried out, due weight should be given to the author’s claims. The Committee concludes that the State party failed to observe due diligence in protecting the author’s husband from torture and ill-treatment, and ultimately in protecting his life whilst in detention, considering his known pre-existing health problems, in breach of articles 6 and 7 of the Covenant.

8.6 Whilst recalling that it is not incumbent on the Committee to evaluate facts and evidence and conclusions reached in the investigation, it considers that the State party has not demonstrated that a thorough and impartial investigation into the allegations of torture and the death of the author’s husband took place, justifying on what basis several witness statements of co-detainees were not considered during the investigation or why his allegations of torture prior to his death were not effectively investigated at the time. The Committee further observes the uncertain conclusions in one autopsy report regarding his rib fractures suggesting that “it is possible that this happened during the revitalization operations”, which ignores the signs of injuries and allegations of torture reported prior to his death. The Committee concludes that the failure of the State party’s authorities to investigate promptly and thoroughly the circumstances of Gökhan Açikkollu’s death effectively denied a remedy to the author and her children, and amounted to mental suffering in violation of their rights under article 7.

c.     Arbitrary Detention and Investigation Process

8.7 The Committee notes the author’s claims under articles 9 and 14 of the Covenant, that her husband was arbitrarily arrested and detained in the absence of evidence of his links to the coup attempt, and that the supposed evidence of his use of the Bylock application could not serve as a sufficient basis to place him in custody and was obtained unlawfully. It further notes the author’s allegations that: (a) her husband was never informed of the charges brought against him; (b) he was unable to appoint a lawyer; (c) his defense statement was never taken; (d) he was never presented before a judge during his 13 days in detention, and; (e) he was presumed guilty despite the absence of proof against him. The Committee notes the State party’s argument that the author’s husband was immediately informed of the reasons for his arrest and of the charge of membership of a terrorist organization brought against him, based on his use of the Bylock application and possession of a Bank Asya account, which constitute decisive and legally collected evidence of the criminal offense of membership in FETO. It takes of the State party’s submission that the charges were also based on a witness statement, which the author’s husband recognized in his statement, and that during the period of his pre-trial detention, which complied with the law on the state of emergency, he was able to meet with his lawyers.

8.8 The Committee notes that the author has not claimed that her husband’s detention was unlawful by virtue of the decree laws under the state of emergency. The question before the Committee is therefore to consider whether his detention was arbitrary. The Committee recalls that the notion of “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality and that remand in custody on criminal charges must be reasonable and necessary in all circumstances[21]. The Committee observes that the State party submitted in its initial observations that the charges brought against the author’s husband were based on the crucial evidence of his use and installation of a Bylock application and ownership of a Bank Asya account, and clarified in its second observations that he was taken into custody based on witness statements. Nevertheless, it notes that the State party has not provided any documentation, such as the alleged witness statements, an arrest warrant, detention order, conversation records on the Bylock application, or any proof regarding the evidence purportedly justifying detention of the author’s husband. It also takes note that the State party has not provided comments on the letter from the Ministry of Education reinstating the author’s husband as a teacher. Furthermore, the Committee notes that the judgements of the Constitutional Court, referred to by the State party, ruling that the use of Bylock application can be relied on as sole or decisive evidence of the criminal offense of membership of FETO, were published after the arrest and detention of the author’s husband. In this sense, the Committee considers that the State party has not provided information as to how, at the time of the arrest and detention of the author’s husband, the judicial authorities had sufficient information on the nature of Bylock to conclude that the application was used exclusively by members of FETO for the purposes of internal communication, which could justify his detention.[22] The Committee further recalls that persons arrested for the purpose of investigating crimes that they may have committed or for the purpose of holding them for criminal trial must be promptly informed of the crimes of which they are suspected or accused.[23] The Committee notes that the State party has not submitted any documentation such as the detention order, arrest warrant or transcripts of judicial proceedings, in order to substantiate its claim that the author’s husband had been promptly informed of the reason for his arrest or the charges against him. It further notes that the State party has not provided any information on the questions posed to him during the investigation or record of the interview dated 27 July 2016, which it claims to have conducted. In these circumstances, the Committee considers that the State party has not established that the author’s husband was promptly informed of the charges against him and the reason for his arrest, nor substantiated that his detention met the criteria of reasonableness and necessity. It recalls that a derogation under article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary.[24] The Committee therefore finds that the author’s husband’s detention amounted to a violation of his rights under article 9 (1) and (2) of the Covenant.

8.9 Having found a violation of articles 6, 7, 9(1) and 9(2) of the Covenant, the Committee decides not to separately examine the author’s claims of a violation of articles 14(2), (3)(b) and (d).