Rıza Türmen

The ECHR, makes a distinction between torture and mistreatment. In torture, the motives for forcing the accused to confess are looked at, but in mistreatment, they are not. In addition, the degree of pain they cause to a suspect are also different On the morning of March 5, Mustafa Balbay, a columnist for the daily Cumhuriyet, was arrested along with Neriman Aydın and brought to the Ankara police department’s counter-terrorism branch. After giving testimony, they were sent to the Istanbul courthouse in Beşiktaş at noon. The detainees were questioned by the prosecutor and then received a check-up.

Balbay’s interrogation at the prosecutor’s office lasted for 10 hours. The two suspects were delivered to another court around 12:30 a.m. Balbay faced the 14th high criminal court at 3 a.m. If we assume that he was taken in around 4 or 5 a.m., this means he did not sleep for 22 or 23 hours. The judge on call gave 15-minute breaks and the questioning went on for six hours.

The European Court of Human Rights, or ECHR, makes a distinction between torture and mistreatment. In torture, the motives for forcing the accused to confess are looked at, but in mistreatment, they are not. In addition, the degree of pain they cause to a suspect are different. In mistreatment, a certain pain threshold is at issue.

What torture and mistreatment have in common is they cannot be justified under any circumstances. The seriousness of the crime does not justify torture or mistreatment.

In a case where Ireland sued British authorities for torturing Irish Republican Army, or IRA, terrorists, the ECHR stated that in order to determine whether or not a suspect had been mistreated, the physical or mental impact of the alleged mistreatment and its duration, along with the gender, age and health of the suspect, should be considered.

The ECHR in this case examined five interrogation methods applied on IRA terrorists, including deliberate sleep deprivation. The other four techniques were keeping suspects in a standing position in front of a wall, putting a sack over their heads, exposing them to high volumes of noise and keeping them hungry and thirsty. The court ruled that British authorities were guilty of mistreatment. England has since banned these types of interrogation methods.

Sleep deprivation and deception are banned

According to the ECHR verdict, the techniques applied by the British authorities cause physical and mental pain as well as acute psychiatric discomfort, even though they do not do physical damage to the body.

As can be deduced from the court’s decision, deliberate sleep deprivation may be a form of mistreatment. However, legal channels in Turkey should be tried before taking such a complaint to the ECHR.

Article 148 in the Code of Criminal Procedure bans mistreatment, torture, the deliberate creation of fatigue, deception and the use of force or threats, and says that statements of a suspect or accused should be given of their own free will. It also says that testimonies obtained through unlawful means cannot be used as evidence, even if they were taken with consent.

Unlawful testimonies

Another issue is the admission of depositions obtained as a result of mistreatment as evidence. Testimonies taken in an unlawful manner are certainly banned by the ECHR. They are evaluated as part of the violation of the right to a fair trial as stated in Article 6 of the Human Rights Convention, or HRC. Whether they are supported by other evidence or not is unimportant.

If the ECHR decides that Article 3 of the HRC has been violated during an interrogation, it also reaches a verdict on the violation of the right to a fair trial if such testimonies are approved. However, even if there is no violation of Article 3, in some cases, statements obtained through force may be in violation of Article 6. In interrogations, universal law should be obeyed for the sake of conducting the judicial process in a sound and healthy way.



Rõza Türmen is a former judge of the European Court of Human Rights, or ECHR, and a columnist for the daily Milliyet in which this piece appeared Friday. It was translated into English by the Hürriyet Daily News & Economic Review's staff

The U.S. State Department has issued its 2008 Human Rights Report. Human rights records of the United States are self-evident. So we may say, "The United States should focus on the human rights violations they commit first and then should criticize others." In fact, China is getting furious about the criticism and published a counter-report on human rights violations by the United States. This report was released the day after that of the United States. Each country may criticize the track records of other countries. This is good. Human rights are a universal concept beyond the sovereignty sphere of states. Violation of the human rights of people living in a country by the state itself is the subject area of the international community. Each member of this community may ask the subject state to put an end to the violation of human rights. Besides, the reciprocity principal is not valid either. Human rights violations by a state don’t justify those of another state.

The Turkey section of the report is thick

Turkey’s section of the report is 62 pages, almost a small book. It is a black book, including serious criticisms of Turkey. Everything is in it, whatever you want: restrictions applied by security forces, pressures on non-Muslims and Alevis, violence against women and corruption, etc. One can hardly say the criticisms are not right. We read similar criticisms in other reports released by the European Union, the Council of Europe, foreign and Turkish human rights associations. So, instead of refusing these reports and getting angry about, it is better to benefit from them.

We may group criticisms under a few categories. A long list of people killed by security forces is given in the report. So many incidents indicate security forces apply disproportional force in the absence of a threat against them.

The European Commission organized a seminar titled "Use of force by security forces" on Feb. 26-27 in Ankara. National and international experts examined relevant laws and implementations, and made recommendations at the panel. That shows the EU has similar concerns cited in the report prepared by the United States.

A rise in cases of torture, beatings and abuse by security forces is being stated in the report claiming that security forces committed unlawful killings; the number of arrests and prosecutions in these cases was low compared with the number of incidents, and convictions remained rare.

Lighthouse case and Erdoğan

About detentions, the report reads that terror convicts under arrest can usually not use the assistance of lawyers and that several detainees in the Ergenekon crime gang investigation were exposed to long periods of arrest.

Reservations about the independence of the judiciary are also mentioned in the report. Remarks of the Justice Minister about a person on trial, "I don’t allow anyone to name my state a ’murderer,’" is being evaluated as giving instructions to the Judiciary.

The report asserts that the government continues restrictions on freedom of press. Practices of Article 301 in the Turkish Penal Code and pressures on press members are being criticized. In the news report on corruptions by "charity" organizations, The Lighthouse case in Germany that has ties with the ruling party, the report says Prime Minister Recep Tayyip Erdoğan issued statements fiercely criticizing the press and businessmen.

The overall picture after reading this report is not heart-warming. We see what kind of a Turkey we are living in, a country where any kind of human rights are being violated, nondemocratic implementations are part of a daily life, women are killed for nothing, minorities are being discriminated and corruption is rampant.

It is not necessary for the United States to write a report to realize that Turkey needs a thorough political change. Living in Turkey is enough. But it is striking to see all these in a single report.



Rıza Türmen is a columnist for the daily Milliyet in which this piece appeared yesterday. It was translated into English by the Hürriyet Daily News & Economic Review's staff

Every day we come across new methods of interference into people’s privacy. You are being bugged. And records of your conversations are kept. Just like in the ’1984’, George Orwell's novel

Every single voice except very low whispers were recorded. Impossible it was to know whether or not you were being spied on at any minuteÉ But it could be known that they were tapping everyone. After all, they could access to your phone lines. You had to survive by knowing that every single thought you voiced would be eavesdropped. After a while, this habit became an instinctÉ

This is not about today’s Turkey. This is just an excerpt from George Orwell wrote in his novel "1984". In the book he wrote in 1949, Orwell tells about a totalitarian country where people live in fear of being tipped off to the "Thought Police" all the time. Eavesdropping techniques in 1949 were not as developed as they are today.

But it is thought-provoking that some parts of the book resemble the situation in modern day Turkey. Every day we come across new methods of interference into people’s privacy. As the legitimacy of phone tapping is being discussed, we face eavesdropping of a venue this time. You are being bugged. And records of your conversations are kept. Just like in the "1984". Then, if needed, they are broadcast on YouTube. Orwell’s imagination couldn’t go this far.

There shouldn’t be any crime contingent on complaintsRegardless of your angle, serious violation of privacy is at issue if it is considered a crime in the Penal Code. According to the Code of Criminal Procedure, even if there is a court order, voices or images in houses cannot be recorded. But the Penal Code, against the law, penalizes individuals keeping the records of others with imprisonment from six months to three years. And the broadcast or publication of such information on the Internet is yet another crime. However, prosecutors cannot take action without a complaint since such crimes are contingent upon complaints. This is an odd situation.

Atilla Olgaç had served in Cyprus Peace Operation in 1974. Thirty-eight years later, one fine day, he leaned back, narrowed his eyes, swaggered a little and said that during the military operation, he killed 10 people, one of whom was a 19-year-old Greek captive whose hands were tied. When his words gave rise to a great trouble in Greek part of Cyprus and in Athens, he said "I was writing a scenario, I confused the scenario with the reality." And he swore that what he said was not real. Then, one of the academics from Eastern Mediterranean University said, "I knew him. During the operation, he was peeling potatoes in the kitchen."

Turkey did the right thing this time. The prosecutor’s office launched an inquiry into Olgaç on the grounds of war crime. Which one is real among Olgaç’s statements will be understood after the end of an inquiry or a trial if needed. The problem has two legal aspects: results of Olgaç statements in relation to the law of war and the law on human rights.

In terms of the law of war, murder of a war captive is an explicit war crime. The third article of the 1949 Geneva Conventions is related to the treatment against prisoners of war.

According to the third article of the convention, states in war are liable to treat the prisoners of war humanely. The same article bans violence against prisoners of war, which may threaten their lives. Those who disregard the ban are war criminals.

Like genocide or crimes against humanity, war crimes are also considered as crimes committed against the basic values of humanity and the whole international society. Thus, states do not have a right whether or not to accept war crimes as a crime.

He must be heard in Turkey

All states have liabilities in relation to such crimes. In line with modern international criminal law, states have universal judicial power on these crimes.

In other words, a state can try a war criminal if it catches him, regardless of whether the criminal is its own citizen or whether the crime was committed in its own territory. If the inquiry about Olgaç requires his trial, he will be heard in Turkey. Military law has some articles that will form the basis of the trial.

War crimes are under the authority of International Criminal Court established in the Hague. However, Olgaç’s being heard there is difficult. Turkey is not a party to the Rome Convention, which established the international criminal court.

Even if it becomes a party, the court’s authority is restricted to events that occur after the country becomes a party to the convention. Moreover, the authority of the court is complementary to the authority of international judiciaries.

Inquiry must be in full force

If the other nine people, whom Olgaç claimed that he killed, are not soldiers but civilians, then another war crime in relation to these people will come into the agenda. In terms of law on human rights, there is a right to file a suit against Turkey in the European Court of Human Rights, or ECHR. This can be a suit filed against Turkey by Greek Cypriot Administration or a suit filed by the families of the murdered people.

But according to a verdict delivered in May 2001 by the ECHR concerning the fourth application made by the Greek Cypriot administration about 1485 missing persons, Turkey has not sufficiently investigated the case and violated the Article 2 of the European Convention on Human Rights. If the case, which will be filed now, has the same characteristic with the former case, it will be rejected by the ECHR. On the other hand, families of the murder victims can make individual applications. Turkey is responsible for the acts of Turkish soldiers.

Because the events in both of the cases occurred before 1987, however, the date when Turkey accepted the right for individual application, ECHR rejects the complaint that Turkey is responsible for the deaths. It only investigates whether Turkey conducts an effective inquiry or not.

Thus, the inquiry launched by the prosecutor’s office is important. It should be carefully carried out in full force to prevent any criticism that it is ineffective. Olgaç threw a stone inside the well and the extraction of this stone will take so much time and need so much effort.


Mr. Rıza Türmen is the columnist for daily Milliyet in which this piece appeared on Friday. It was translated into English by the H rriyet Daily News & Economic Review.

How bizarre it is that in a country where no one listens to each other yet everyone monitors phone calls of others or at least people have such concerns. But privacy is one of the pillars of human rights. Individuals as the subject of human rights law are entitled to have their private spheres where the state is not allowed. The privacy has immunity. The state is obliged not only to intervene in the privacy but also to provide immunity for the individual’s privacy. This is one of the key criteria separating a democratic state from an authoritarian state. Through monitoring phone calls, the state interferes with personal privacy. Strangers whom you don’t know at all know every single detail about you, from your sexual life, to your diseases, from your relations with friends to food you eat. And you have no knowledge about any of these. For the justification of such a serious interference, the monitoring must base on dead serious reasons and rock-solid assurances. If there is general fear of being wiretapped assurances are vital. 

What about the other’s situation?
There is another side of the story. What about the privacy of the other person who is on the phone with the person being monitored? There is neither rightful reason nor court permission to eavesdrop this other person. The subject in the case which the Constitutional Court has reached the decision already and the subject in another one pending for ruling is how firm the assurances, provided by the state for interference with the privacy, are. With an amendment in the law, a Telecommunication Communication Directorate was formed to monitor the eavesdropping activities of the National Intelligence Organization, or MİT, the Security Directorate and the Gendarmerie Commandership. All three institutions are parts of the executive.

The director is appointed by the prime minister. Therefore, both the monitored and the monitoring organization are controlled by the executive body. Can you expect an independent and neutral performance of duty from this organization? For this reason, the Constitutional Court’s decision overruling the appointment of the director by the prime minister is in place.

But there are elements that have not been annulled in the law. The MİT, Security Director and Gendarmerie Commandership have representatives at the Telecommunication Communication Directorate according to the law. In other words, both the monitoring and the monitored are within the same institution. Can people already having fears of being eavesdropped believe that such an organization is able to give assurance against the state’s intervention in privacy? If Turkey, however, had been signed the Act of Data Protection and Privacy, it wouldn’t have faced the aforementioned problems in the first place. Forty-one of 47 states in Europe signed this agreement. Armenia, Azerbaijan, Russia, San Marino, Turkey and Ukraine do not have yet a signature on it. Is Turkey less sensitive for the protection of privacy than the European states? Besides, the act does not ban monitoring phone calls, only seeks some sort of assurances.

A control mechanism is a must
The act’s addition protocol proposes formation of an independent control mechanism in the state structure, with the authority of filing an investigation and of interference. If the law is breached, the control mechanism brings this to the attention of the judicial bodies as it hear complaints of individuals whom their personal data in the hands of others.

If Turkey had had such a mechanism by signing the said act, none of the problems we have mentioned above would’ve occurred. Technology develops quickly and monitoring phone calls are without doubt getting easier. The problem here is applying technology without hurting any individual rights. And this is provided by the legal system. In line with technological developments, responsibility of the judiciary to ensure individual rights and freedoms is increasing. If the law cannot fulfill this task, democracy will be harmed severely.

We are witnessing a human tragedy right before our very own eyes. Israel is barbarically killing civilians in the Gaza Strip. There is no way to remain silent in the face of such a massacre. Just as it is, protests against Israel are getting spread around the world. The way to put an end to this inhumane situation is a political solution. In foreign policy, however, it is not easy to unite humanly thoughts with the requirements of real politics. An example is the U.N. Security Council Resolution Number 1860 adopted on Thursday. The resolution’s main points:

1. Calls both Israel and Hamas for an immediate and durable cease-fire. However, this is achievable only if other conditions are satisfied.

2. Stresses the urgency of and calls for an immediate, durable and fully respected cease-fire leading to the withdrawal of Israeli forces from Gaza in a certain period of time.

3. Welcomes the initiatives aimed at creating and opening humanitarian corridors and other mechanisms for the sustained delivery of humanitarian aid.

4. Condemns all acts of violence and terror directed against civilians and all acts of terrorism. In other words, both Israel and Hamas are being condemned.

5. Calls upon member states to intensify efforts to ensure lifting the Israeli blockade over Gaza and the sustained reopening of the crossing points.

6. Calls upon member states to intensify efforts to prevent illicit trafficking in arms and ammunition through underground tunnels from Egypt to Gaza. This is something Israel critically dwells upon.

Babacan’s vote
The council adopted Resolution 1860 (2009) by a vote of 14 in favor with the United States abstaining. The United States abstinent was a surprise to all sides. The draft resolution penned by Britain and supported by France was submitted after talks between the Arab League and the United States. Despite that the United States abstaining could be explained by the influence of the Israeli lobby in the United States.

Apparently, Turkey is satisfied with the resolution, considering Foreign Minister Ali Babacan’s remarks following a "Yes" vote and the adoption. Both Israel and Hamas rejected Resolution 1860, however. So it couldn’t be effective for a cease-fire. Skirmishes continue in Gaza and people continue to die in Gaza.

It is easy to see why Israel turned down the resolution. Israel wants to keep up the attacks until they get what they want. But to see why Hamas rejected the decision is rather difficult. With this, Hamas makes humanitarian aid to the Palestinian people in Gaza impossible. Besides, if Hamas complies with the resolution, Israel will be the one engaging in attacks unilaterally and will, therefore, be subjected to international pressure more. Resolution 1860 revealed a few facts as well. First of all, the Islamic and the Arab countries have no consensus over Hamas. Syria, Iran, Qatar and Libya support Hamas as others seem not much complaining about a blow on Hamas.

Secondly, the solution to the issue of who will represent the Palestinian people is the prerequisite of a durable solution. Thirdly, an effective control by Egypt to prevent arm trafficking from Gaza is necessary. Egypt has failed in arm trafficking so far. Then there should be an international surveillance.

New roles for Turkey
And lastly it seems that unless the Obama administration shows that the United States does not support every move of Israel and seeks a radical change in U.S.-Israel relations, prevention of Israel from lopsided attacks for security reasons is difficult. Since clashes continue in Gaza, the issue will be taken up at the Security Council in the upcoming days again. But this time, the council will discuss Gaza in the frame of the seventh chapter of the U.N. law and focus on measures to bring peace and calm to the region. Turkey, in the meantime, may have new active roles in international arena.



Rıza Türmen is a former judge at the European Court of Human Rights, or ECHR, and a columnist for the daily Milliyet in which this piece appeared yesterday. It was translated into English by the H rriyet Daily News & Economic Review's staff.

The study titled "Being Different in Turkey: Those who are made to be like others based on religion and conservatism" revealed the fact that laics, especially living in Anatolia, feel pressure of the religious-conservative circles and discriminated. Scientists conducted the study have the impression that "Pressure and discrimination applied to different identities are in accord with the activities of communities and functions of the staff appointed by the Justice and Development Party, or AKP, in the Anatolian cities. And that causes concerns about Turkey’s future."

On the other side, it is the fact that in Turkey, particularly in big cities, people who choose to live an Islamist-conservative way of life feel pressured too. The problem is how people having different identities and living in different worlds will live together.

Living without understanding
At some period, the concept of "constitutional patriotism" associated with the German philosopher Jürgen was seen as a magic formula for living together in Turkey. =According to this, fundamental principles in a democratic constitution that are agreed by all will help cohabitation of people from different backgrounds in the same country. Such a constitutional agreement is a required pre-condition, but not enough.

Constitutional patriotism may allow different people living together, but it is not adequate to establish communication between individuals. People with different identities will look at each other, but not have any communication. How will they live together without understanding each other?

Main axis of cohabitation is the independence of Turkish people and their being individuals and the subject. In other words, independent from communal ties one should be able to decide over his own life story. This is at the same time is the issue of modernization of Turkish society. Progress in democracy is closely related to this. People in Turkey are living either in religious or secular communities.

Every community has its own codes and has no contact with the "other" if the other is not a member. Such a social structure causes polarization and constant tension inevitably. Man getting individualized is free to choose a life of pious. In modern societies public sphere allows people having different ways of life to cohabit.

The next step required is individual’s accepting and recognizing the "other" as an individual and to have contact with him. French philosopher Emmanuel Levinas derives the primacy of his ethics from the experience of the encounter with the "other," going beyond one’s own presence and being aware of the "other."

What is distinctive with the "other" is his face. Communication is possible only through face-to-face encounters. Connection does not eliminate the differences between individuals. On the contrary, communication maintains being different. Getting to know the "other," accepting his presence means going beyond one’s self and reaching out to the "other."

It means feeling responsible one’s self to the "other" without expecting anything in return. Levinas’ thought is important for the prevention of selfishness stems from individualism. His way of thought suggests loving people only because they are humans and feeling responsible for the other.

What kind of a Turkey?
I believe economic development and urbanization will bring individualization as well. However, the state has some duties in this direction such as following policies encouraging individualism not being involved in communities and providing institutional support to communication between individuals. All these require an understanding of democracy based on freedom of the individual and cultural diversity.

Settlement of a culture accepting the "other" and having contact with the "other" mostly depends on the education system. We need a brand new view point beginning with elementary school and teachers trained accordingly.

What kind of a Turkey we want to live in? Is it a Turkey where we have respect for the "other" or a Turkey where the "other" is forced to be united under "we," who will otherwise be eliminated in the process?



Rıza Türmen is a former judge of the European Court of Human Rights, or ECHR, and a columnist for the daily Milliyet, in which this piece appeared yesterday. It was translated into English by the Hürriyet Daily News & Economic Review's staff.

The issue has turned into a mess by consecutive statements released and decisions expressed by the Supreme Board of Election, or SBE, and the Council of State following the ruling of the Constitutional Court about the closure of municipalities in areas with the population of less than 2,000. There are, however, a few sides to the issue:

1. Contradiction between the decisions of the Constitutional Court, the Council of State and the SBE. The starting date for raising objections to the results of the census is clearly stated as March 22, 2008 in the Constitutional Court’s decision, which is the law’s enforcement date. The Council of State on the other hand says that they learned that regions have a right to object to the court’s reasoned decision, after the court’s announcement. Therefore, the starting date should be Dec. 6, 2008, the date of the announcement. The SBE has announced they will follow the Council of State’s decision.

The problem is not to determine which view is right. The problem is that the Constitutional Court’s decisions being binding. Article 153 in the Constitution envisages that the court’s decisions are binding for the decisions of judicial bodies as well. Article 138 states that judges will rule in accordance with the Constitution. And the Constitutional Court is the body to determine what is appropriate. If the court had not announced a starting date for objections, the Council of State could have had an interpretation domain. But the date is specified. Therefore, even if the Council of State disagrees with it, it should follow the decision. The law state begins in the judiciary at first.

Importance of anti-thesis
2. The statement of Haşim Kılıç, chief justice of the Constitutional Court: Have you ever heard of the chief justice of the high court in the United States or in Germany issuing a statement and justifying their decision? The role of the judge is limited with the reasoned decision of the court. The judge speaks through the reasoned decision or the anti-thesis he or she writes. The channel of expression is not TV cameras, but the decision reached by the judge. But if there is a necessity of making a statement on behalf of the court, it should naturally reflect the views of the all members of the court. The view of "I am making this statement for the majority and this is not of interest to those who are against the decision," is not convincing. First of all, the statement is being issued on behalf of the Constitutional Court. Therefore it concerns all judges. Besides, the decision is a whole its reason and counter-view.

Split occurs
3. Reliability of the judiciary: the statements of the chief justice and of eight members of the court afterward have revealed the split in the judiciary, weakened the reliability of the judiciary in the public eye. This is, I think, the biggest drawback created by the current situation.

Reliability of the judiciary is "sine qua non" in order to fulfill the task. Reliability means making people believe and trust in independence and neutrality of fair justice. It also means believing in judges’ moral standards and trusting that they are not in power struggle among themselves and not acting in any other way but to protect the Constitution and democracy. Reliability of the judiciary means that it remains outside political controversies. To believe in justice is important in terms of the people complying with the legitimacy of the decisions, though they are not agree with the decisions all the time.

They should have resolved inside
For this reason, disputes among or inside judicial bodies should have been resolved inside.

4. Prime Minister Recep Tayyip Erdoğan’s statement: Mr. Prime Minister’s statements about the judiciary casts the shadow of politics over the judiciary. He creates the impression of an either pro-government or anti-government judiciary. But the judiciary is neither. This has happened again.

Neutrality and reliability of the judiciary in a country is a ground where the law state and democracy reside on. We should pay utmost attention not turn this ground into a mess.

Rıza Türmen is a former judge at the European Court of Human Rights, or ECHR, and a columnist for the daily Milliyet in which this piece appeared yesterday. It was translated into English by the Hürriyet Daily News & Economic Review’s staff