Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Report on the visit made by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for the purpose of providing advisory assistance to the national preventive mechanism of Turkey
Report to the State party * , **
II.National preventive mechanism4
III.Main obstacles faced by the national preventive mechanism4
I.List of places of deprivation of liberty visited by the Subcommittee10
II.List of government officials and other persons with whom the Subcommittee met11
1.From 6 to 9 October 2015, in accordance with its mandate, set forth in the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment undertook its first visit to Turkey.
2.The Subcommittee was represented by Mari Amos (head of the delegation), Hans-Jörg Bannwart, Aisha Shujune Muhammad and June Caridad Pagaduan Lopez.
3.The Subcommittee was also assisted by two human rights officers from the Office of the United Nations High Commissioner for Human Rights.
4.The objective of the visit was to provide advisory services and technical assistance to the national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Turkey, in accordance with article 11 (b) (ii) and (iii) of the Optional Protocol. The visit was intended to assist in strengthening the capacity and mandate of the national preventive mechanism. The visit was also aimed at assisting the mechanism in an evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment in Turkey.
5.During its visit, the Subcommittee met with officials from the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Family and Social Policies, the Ministry of Interior, the Ministry of National Defence, the Ministry of Health and the Ministry of European Union Affairs. The Subcommittee also met with the human rights institution of Turkey (designated as the national preventive mechanism of Turkey), the ombudsman institution of Turkey, the Deputy Prime Minister and parliamentarians, as well as with civil society (see annex II).
6. One of the primary purposes of the visit was to provide the mechanism with advisory services and technical assistance. Thus, a number of meetings were held with the mechanism members in order to discuss the functioning and working methods of the mechanism, as well as to explore ways to strengthen and increase its effectiveness, as explained below. To observe how the mechanism applied its working methodology, the Subcommittee also visited, together with the mechanism, two places of deprivation of liberty that were chosen by the mechanism (see annex I). During those joint visits, Subcommittee members adopted the role of observers, while members of the mechanism led the visits.
7.The Subcommittee appreciates the cooperation extended by the authorities of Turkey in facilitating the visit, in compliance with the State party’s obligations under the Optional Protocol. The Subcommittee is also grateful for the assistance extended in arranging the necessary meetings so that the Subcommittee could better understand the legal, structural and institutional framework of the national preventive mechanism.
8.To that end, the present report sets out recommendations and observations to the State party, in accordance with article 11 (b) (iv) of the Optional Protocol.
9. The Subcommittee requests that the State party reply within six months of the date of transmission of the present report, giving an account of the actions taken and a road map for full implementation of its recommendations.
10.The present report will remain confidential until such time as the State party decides to make it public.
11. The Subcommittee therefore recommends that the State party request for this report to be published, as other States parties to the OPCAT have done. The Subcommittee further requests that it be notified of the State party ’ s decision in this regard.
12.The Subcommittee wishes to draw the State party’s attention to the Special Fund established in accordance with article 26 of the Optional Protocol. Recommendations contained in reports that have been made public can be used by the State party as a basis for applying for funding from the Special Fund for specific projects.
13.In addition, in accordance with its mandate, as set forth in article 11 (b) (ii) and (iii) of the Optional Protocol, the Subcommittee will address a separate confidential report to the national preventive mechanism of Turkey.
II.National preventive mechanism
14.Turkey ratified the Optional Protocol on 27 September 2011. The State party subsequently designated, by means of a cabinet decree published on 28 January 2014, the then recently established human rights institution of Turkey as its national preventive mechanism. The national human rights institution of Turkey is a public entity with a mandate to protect and promote human rights, including through the reception of individual complaints. The institution is governed by the members of its human rights advisory board and supported by a staff of experts and associate experts.
15.Because Law No. 6332 of 2012 on the human rights institution of Turkey precedes the institution’s reception of its national preventive mechanism mandate, it does not expressly define the institution’s role as a national preventive mechanism. Discussions to revise the law had been ongoing at the time of the Subcommittee’s visit. However, up to that point, no single legislative instrument had outlined the mechanism’s structure, conditions of membership and activities.
16.However, according to practice, a particular anti-torture and mistreatment unit within the human rights institution acts as the national preventive mechanism, with the ability to undertake regular visits to places of detention, to prepare and deliver reports of those visits to relevant authorities and the public, and to examine and evaluate reports of other monitoring bodies.In addition, under the powers of a human rights institution, the anti-torture unit has the authority to request information and documentation from all persons, public agencies and organizations and to establish a committee of imminent persons to conduct on-site examinations and inquiries into matters under its jurisdiction.The mechanism may also make non-binding comments on draft and existing legislation. However, it has not yet produced an annual report and, without a specific legislative text on the mechanism, does not have a legal mandate providing that an annual report should be submitted to Parliament.
17.The Subcommittee notes that the national preventive mechanism is faced with several obstacles hindering the full and effective implementation of its tasks, which this report will address in the next chapter, together with recommendations to the State party.
III.Main obstacles faced by the national preventive mechanism
18.While the State party is free to determine the institutional format of its national preventive mechanism, it is imperative that such a mechanism is fully compliant with the Optional Protocol, as reflected in the guidelines on national preventive mechanisms of the Subcommittee. It is also crucial that the functional and operational independence of the mechanism are guaranteed, with due consideration to the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).
19.A striking weakness in the current functioning of the national preventive mechanism is the absence of a separate legislative text regulating its functions and its mandate, and providing it with the institutional and operational independence, power and authorities that are set out in part IV of the Optional Protocol and the mechanism guidelines of the Subcommittee. This significantly limits the effectiveness of the mechanism, including as regards the follow-up to its recommendations with the authorities. The Subcommittee also notes that the Code of Criminal Procedure of the State party does not explicitly authorize the mechanism to access the files of detainees, including those awaiting trial, such as detainee and incident registers and medical files.
20.The Subcommittee also notes the national preventive mechanism’s primary focus on monitoring functions while other mechanism functions, such as advocacy, awareness-raising, commenting on existing and draft legislation, and capacity-building are underdeveloped. This may result in part from the lack of specific legislation providing the mechanism with such authority and with the corresponding human resources for carrying out outward-facing mechanism functions, in addition to its visiting mandate.
21. While the institutional format of the national preventive mechanism is left to the State party ’ s discretion, it is imperative that the State party enact legislation that guarantees a mechanism that is in full compliance with the Optional Protocol and the mechanism guidelines of the Subcommittee. The Subcommittee recommends that the State party review the Code of Criminal Procedure and other relevant legislation so that, if necessary, it may be amended to harmonize it with the mechanism ’ s legal framework and enable the mechanism to effectively fulfil its preventive mandate under the Optional Protocol. In addition, the Subcommittee considers it crucial that the State party ensure the full, effective and meaningful participation of the different political parties represented in Parliament and civil society organizations with relevant expertise on torture prevention throughout the process of drafting the mechanism law and reviewing related legislation.
22. The Subcommittee wishes to emphasize the importance that the national preventive mechanism be granted, by means of this legislation, core mechanism functions, such as:
(a) The power to regularly examine the treatment of persons deprived of their liberty in all places of detention, as defined in article 4 of the Optional Protocol, including prompt, regular and unhindered access to all information relating to persons deprived of their liberty deemed relevant by the mechanism, in accordance with article 20 (b) of the Optional Protocol;
(b) The mandate to issue recommendations to the relevant authorities;
(c) A corresponding duty on the part of the concerned authorities to enter into a dialogue with the mechanism on follow-up to its recommendations.
The mechanism ’ s legal framework should also provide for the outward-facing functions of the mechanism, such as submitting proposals and observations on existing and draft legislation, advocacy, awareness-raising and capacity-building, and require a separate budget line in the State budget for the funding of the mechanism, in order to ensure its continuous financial and operational autonomy. Moreover, it should outline privileges and immunities of mechanism members and those who contribute to the mechanism, including experts and civil society, while guaranteeing protection for persons who provide information to it.
23.The issue of independence, while a sensitive one, is a fundamental concern for the Subcommittee. In this regard, the Subcommittee notes with concern (a) the lack of known selection criteria for the membership of the national preventive mechanism, (b) appointments being made largely at the discretion of the executive branch with little outreach to the public and civil society, and (c) the lack of a pluralist and multidisciplinary approach to representation on the mechanism. The Subcommittee reminds the State party that its current practice is not in conformity with the mechanism guidelines of the Subcommittee and the Optional Protocol, as members of the mechanism are not selected through an open, transparent and inclusive process.
24.The fact that 9 of the 11 members of the board of the human rights institution are selected either by the President of Turkey or by the Council of Ministers has led to a perception of interdependence, a significant obstacle to the public and to civil society, which has also been raised as a barrier to collaboration. Moreover, the lack of public consultation on the establishment of the national preventive mechanism has caused scepticism among civil society, with whom the mechanism should smoothly collaborate. In addition, the absence of a clear distinction between the mechanism and the institution as regards their board members, staff and functioning threatens the mechanism’s institutional and functional independence.
25. The Subcommittee therefore recommends that the State party establish a transparent and competitive appointment procedure and consult with civil society organizations and other stakeholders with expertise in the field of torture prevention prior to the selection of mechanism members. The State party should ensure that candidates of different backgrounds may be considered for membership in the mechanism, in line with article 18 (2) of the Optional Protocol.
26. The Subcommittee also recommends that the State party clearly separate the mandate of its national human rights institution from that of the national preventive mechanism or identify segregated mechanism functions within the institution that can be performed completely autonomously, in line with the mechanism guidelines of the Subcommittee.
27. The Subcommittee encourages the enactment of legislation, as elaborated in paragraph 22, that ensures the institutional and functional independence of the mechanism, with due consideration to the Paris Principles.
Visibility and cooperation
28.The Subcommittee has observed that there is limited cooperation and interaction between the relevant authorities and the national preventive mechanism. While some authorities referred to cooperation with the human rights institution in Turkey, this seems to have been more often in relation to its function as a national human rights institution rather than its function as a national preventive mechanism. The Subcommittee notes that many authorities referred to the institution and the mechanism indiscriminately, which indicates a lack of clear understanding of the specific mandate of the mechanism and its distinct role from that of the institution. The Subcommittee considers the mechanism to be largely invisible within the institution, which may have a detrimental effect on the mechanism’s efficiency. Without a separate legislative mandate, specified mechanism tasks, specifically allocated resources and systematic cooperation with other national and international stakeholders, it is difficult to perceive the mechanism as its own entity.
29.The Subcommittee notes that a variety of bodies monitor places of deprivation of liberty in the State party, including the mechanism, the ombudsman institution, the Parliamentary Human Rights Committee, the prison monitoring boards of the Ministry of Justice and the Human Rights Department within the General Command of the Gendarmerie. The overlap between bodies monitoring the same institutions could risk creating a duplication of work, which should be avoided in order to use resources efficiently. It also risks creating confusion on the part of authorities in charge of places of detention as well as personnel working therein as to the mandate and identity of the mechanism. In addition, this overlap reduces the effectiveness of the work undertaken by the mechanism and may lead to incoherent results due to parallel monitoring.
30.The Subcommittee has observed that, apart from occasional joint visits, there is no regular interaction or systematic cooperation between these bodies and the mechanism. The result is that the efforts undertaken for the prevention of torture are largely ad hoc and irregular in nature, lacking any overall strategy, systematized follow-up and coordination. The Subcommittee wishes to stress that the absence of a platform for coordination is not reflective of the State party’s zero-tolerance policy on torture and could be an indicator of a lack of a coherent and well-defined national strategy to prevent torture and ill-treatment.
31.The Subcommittee notes that several stakeholders, including civil society, have requested that the mechanism be more participatory. As it stands, the mechanism does not actively involve civil society actors in its work and does not fully benefit from the expertise of other bodies, such as the sharing of human rights mandates by the provincial human rights boards.
32.At the time of its visit, the Subcommittee observed that the mechanism had not yet produced an annual report. Moreover, the Subcommittee has received feedback that the authorities do not proactively discuss mechanism reports. As a result, the mechanism is not well known by government stakeholders, civil society and the public.
33. The Subcommittee deems it crucial that the State party first of all set out a clear and coherent vision of its approach to torture prevention, a vision that takes into account the best practices and other experiences accumulated by the various national bodies that monitor human rights and places of detention. This analysis should:
(a) Provide a road map for how all such stakeholders can contribute to the work of torture prevention in the State party;
(b) Help determine, together with the mechanism and relevant stakeholders, how overlapping mandates and duplication of efforts may be avoided, and which institutional configuration would be the most effective and efficient structure for the prevention of torture in the State party;
(c) Clearly define the roles of the mechanism, public authorities, civil society and international cooperation and how they relate to each other;
(d) Encourage and support cooperation and synergy between the various actors in order to enhance the overall effectiveness and efficiency of the mechanism.
34. The Subcommittee recommends that the State party:
(a) Take steps to assist the national preventive mechanism in making its mandate and work better known, presenting it to the authorities, including those in charge of places of deprivation of liberty outside the penitentiary system, such as the Ministry of Health and the Ministry of Family and Social Affairs, with a view to strengthening cooperation;
(b) Reorganize the institutional structure of the human rights institution in Turkey in order to differentiate between the functions of its national human rights institution and its national preventive mechanism;
(c) Contribute to making the work of the mechanism more visible by, for example, supporting public-awareness campaigns, producing and distributing materials on the mandate and activities of the mechanism in various languages to detention personnel, detainees and civil society, and by informing the judiciary, lawyers and the general public on the mandate of the mechanism.
35. The Subcommittee also recommends that the State party ensure that its national preventive mechanism is recognized as a key component in the country ’ s system for prevention of torture and ill-treatment. In this regard, it is recommended that the mechanism ’ s outward-facing role be increased, including its engagement with civil society and with institutions having related human rights mandates in order to seek possible synergies, including in the context of monitoring psychiatric hospitals, immigration detention centres, houses for the elderly and orphanages.
36. The Subcommittee encourages the State party to introduce, together with the mechanism, an institutional forum for the discussion of, and follow-up to, mechanism visit reports. It is recommended that the State party facilitate the publication of all reports produced by the mechanism and ensure that it produces an annual report that is translated and transmitted to the Subcommittee, bearing in mind article 23 of the Optional Protocol and paragraph 29 of the mechanism guidelines of the Subcommittee, both of which relate to the obligation of States parties to publish and widely disseminate the mechanism ’ s annual reports. The State party is also encouraged to reflect on such reports and to incorporate the issues they raise in its policy planning.
Coverage of places of detention
37.One important limitation on the work of the national preventive mechanism is its limited geographic reach. The Subcommittee is aware that there are significant monitoring gaps for places of deprivation of liberty in Turkey, given the absence of regional offices of the mechanism and given its lack of sufficient travel budget and capacity to undertake visits to cover some 10,000 places of detention estimated by the State party.
38. The Subcommittee recommends that the State party develop a full list of the types of places where persons are deprived of their liberty, in accordance with article 4 of the Optional Protocol, and ensure that the capacity of the mechanism be increased to reflect the number of places of deprivation of liberty within its mandate, including social-care institutions, military detention centres and immigration detention centres throughout the territory of the State party. To that end, a new mechanism law should ideally provide for the establishment of regional offices in the seven regions of the State party, and the mechanism should be adequately resourced to be able to draw on outside expertise, as necessary, in order to address the limitations on its geographic reach.
39.The Subcommittee is concerned that the mechanism lacks capacity to carry out preventive work comprehensively, including visits, follow-up visits, advocacy, training activities and public engagement, especially taking into account the inadequate in-house medical, psychological and other expertise, such as in the areas of social work, security, pedagogy and issues related to children. As of October 2015, the mechanism was composed of 11 members, 15 experts and a number of junior and associate experts, mainly lawyers, all of whom were also involved in functions related to the national human rights institution. The Subcommittee notes with concern that all members of the mechanism work on a part-time basis, which limits their ability to undertake their mechanism functions. In addition, the Subcommittee is particularly concerned that the strict financial regulations applicable to the mechanism severely limit its ability to recruit additional staff in order to diversify its in-house expertise. Moreover, the Subcommittee is concerned that the lack of a separate budget and its own premises and office space adversely affects the financial and operational independence of the mechanism.
40. The Subcommittee reminds the State party that the provision of adequate financial and human resources constitutes a legal obligation under article 18 (3) of the Optional Protocol. The national preventive mechanism should b e adequately resourced so that it may increase its support staff and equip its members with the required capabilities and professional knowledge to enable it to carry out its visiting programme in all regions of the State party. It is recommended that, after receiving an assessment of needs by the mechanism, the State party provide enough resources to enable the mechanism to conduct follow-up visits and fulfil its other essential mandated functions under the Optional Protocol. Likewise, t he State party ’ s provision of resources should enable the mechanism to diversify its membership , including through the recruitment of professionals with medical, psychological and other related expertise. In this regard, the State party should consider mak ing membership in the mechanism a full-time and remunerated position in order to allow the mechanism to carry out its activities in accordance with the Optional Protocol. Moreover, the Subcommittee recommends that the State party apply its civil service regulations flexibly to the mechanism, or exempt it altogether, in order to allow the mechanism to recruit additional staff, strengthen cooperation with civil society and draw on external independent, adequately remunerated and trained professionals with relevant expertise.
41. Article 18 (1) of the Optional Protocol, as supported by paragraph 8 of the mechanism guidelines of the Subcommittee, also requires mechanisms to have complete financial and operational autonomy. This implies that a mechanism designated within a national human rights institution should enjoy such autonomy not only from the State party that designated it but also from the larger institution in which it is housed. The Subcommittee therefore recommends that the State party ensure that the funding provided to the mechanism is made through a separate line in the national annual budget referring specifically to the mechanism and ensure that the mechanism has its own infrastructure and is based in its own premises.
42. The Subcommittee also recommends that the Stat e party facilitate joint training of members and staff of the national preventive mechanism in order to enhance its ability to efficiently fulfil, collectively and individually, its functions as provided in the Optional Protocol. Such training should cover interview techniques, visiting procedures and skills to detect signs and risks of torture and ill- treatment, in order to develop mechanism working methods and a comprehensive visiting methodology that will highlight instituti onal and systematic challenges, including those affecting vulnerable populations in places where persons are deprived of their liberty, as well as training on other preventive activities, as elaborated above in paragraph 39.
43. The Subcommittee wishes to be informed, as a matter of priority, about the steps taken by the State party to provide the mechanism with adequate human and financial resources to allow for its complete financial and operational autonomy.
44.The Subcommittee recalls that the prevention of torture constitutes an ongoing and wide-ranging obligation of the State party, which is achieved in part by the establishment and operation of an efficient national preventive mechanism.
45. The Subcommittee therefore requests that the State party keep the Subcommittee informed on an annual basis of any legislative and policy changes and other relevant developments regarding the mechanism, in order that the Subcommittee might continue to assist the State party in fulfilling its obligations under the Optional Protocol.
46.The Subcommittee emphasizes that its visit provides Turkey with an ideal opportunity to demonstrate its goodwill and readiness to fulfil its international obligations under the Optional Protocol, including in the context of negotiations on chapter 23 (“Judiciary and fundamental rights”) of the State party’s European Union accession process. In this respect, the Subcommittee regards its advisory visit and the present report as the commencement of a constructive dialogue with the State party. The Subcommittee stands ready to assist Turkey in fulfilling its obligations under the Optional Protocol, in particular by the provision of technical assistance and advice, in order to achieve the common goal of prevention of torture and ill-treatment in places of deprivation of liberty in the State party.
47. The Subcommittee therefore encourages the State party to promptly take advantage of the Subcommittee ’ s advisory function, in line with article 11 (b) of the Optional Protocol, as soon as such advice and assistance is needed. In addition, and further to paragraph 11 of the present report, the Subcommittee recommends that the State party make this report public, believing this in itself to be a preventive measure. Further, the Subcommittee recommends that the State party distribute this report to all the relevant g overnment departments and institutions.
List of places of deprivation of liberty visited by the Subcommittee
Ankara Sincan T Type Prison
Ankara Police Department
List of Government officials and other persons with whom the Subcommittee met
Numan Kurtulmuş, Deputy Prime Minister
Ministry of Justice
Hilal İbrahim Dizman, Head of the Department for Foreign Relations, Directorate General for Prisons and Detention Houses
Hacı Ali Açıkgül, Head of the Department for Human Rights, Directorate General for International Law and Foreign Relations
Oner Aydın, Rapporteur Judge
Ministry of Foreign Affairs
Hasan Ulusoy, Director General for Multilateral Political Affairs, Deputy Directorate General for the Council of Europe and Human Rights
Yonca Gündüz Özçeri, Deputy Director, Deputy Directorate General for the Council of Europe and Human Rights
Togan Oral, Head of the Department for Human Rights, Deputy Directorate General for the Council of Europe and Human Rights
Buket Kabakçı, Head of the Department for the Council of Europe, Deputy Directorate General for the Council of Europe and Human Rights
Ministry for European Union Affairs
Çağri Çakır, Coordinator of the Department for Political Affairs, Ministry for European Union Affairs
Cemre Artan, European Union Affairs Expert
Ministry of Health
Esra Alataş, Head of Department for Public Health, Directorate General for Public Health
Olcay Peri, Medical Doctor, Directorate General for Public Health
Uğur Ortaç, Assistant Health Expert, Directorate General for Public Health
M. Kemal Çetin, Medical Doctor, Directorate General for Health Services
Murat Yıldırım, Medical Doctor, Directorate General for Health Services
Mustafa Emre Yatman, Head of the Department for Common Health Services and Doctor, Public Hospitals Agency
Ministry of Family and Social Policies
Ercüment Işık, Deputy Head of Department, Department of European Union and Foreign Affairs
Mesut Demirtaş, Deputy Head of Department for Social Rehabilitation Services, Directorate General for Child Services
Deniz Samyeli Güneş, Unit Coordinator at Maintenance Services for Persons with Disabilities, Directorate General for Persons with Disabilities and Elderly Services
Bülent Karakuş, Social Worker and Unit Coordinator, Directorate General for Persons with Disabilities and Elderly Services
Ministry of Interior
Ramazan Seçilmiş, Deputy Head of Department, Department of European Union Affairs and Foreign Relations
Uğur Tuncer, Assistant Expert for European Union Relations, Department of European Union Affairs and Foreign Relations
Önder Bakan, Head of Department for Support Services, Directorate General of Migration Administration
Hasan Basari Karakuş, Coordinator of Centres, Directorate General of Migration Administration
Tuğçe Er, Assistant Expert at Coordination Centres, Directorate General of Migration Administration
Ahmet Küçükikiz, Assistant Expert at the Department for Foreigners, Directorate General of Migration Administration
Büşra Pekşen, Assistant Expert at the Department for Foreigners, Directorate General of Migration Administration
Havva Tuğba Saygın, Assistant Expert at the Department for Foreigners, Directorate General of Migration Administration
Ebubekir Kurt, Assistant Expert in the Department for the Protection of Victims of Trafficking in Persons, Directorate General of Migration Administration
Hasan Hüseyin Gümüş, Police Officer at the Department for International Protection, Directorate General of Migration Administration
Ismail Mermer, Department of Legal Consultancy, Turkish National Police
Oğuz Yurdaer, Department for the Fight against Terrorism, Turkish National Police
Ismet Yüzügüllü, Department of Public Order, Turkish National Police
Doğan Özer, Department of Frontiers, Turkish National Police
Ahmet Özkurt, Head of Department for Foreign Relations and Human Rights, General Command of Gendarmerie
Serhat Demiral, Section Head of the Department for Human Rights, General Command of Gendarmerie
Ministry of National Defence
Yasin Akdeniz, Section Head, Department of Military Justice
Members of Parliament
II.National preventive mechanism
Hikmet Tülen, President
Aydin Bingöl, Vice President
Mehtap Karaburçak Tuzcu
Yusuf Şevki Hakyemez
Muzaffer Şakar, Expert
Ekin Bozkurt Şener, Expert
Mehmet Elkatmış, Ombudsman
Servet Alyanak, Judge
Mustafa Aydın Ertunç, Expert
Başak Manav, Assistant Expert
And additional staff