On November 24, 2014, the Government of Turkey submitted a draft bill of 43 articles to the Presidency of the Turkish Parliament in order to amend the Law on the Powers and Duties of the Police.
This bill, also known publicly as the “Homeland Security Bill”, includes numerous provisions that impose grave dangers on the fulfillment of human rights and personal security. Below is an assessment that showcases in the light of current practices how the draft bill in question could result in violations of human rights and fundamental freedoms.
POLICE IS GRANTED ARBITRARY SEARCH AND SEIZURE MANDATE
The planned amendment (1) to Article 4 of the Law on the Powers and Duties of the Police (LPDP), when combined with the existing revision passed in 2007, will have abolished all the safeguards against search, seizure and arrest that have been introduced in the Constitution of Turkey and the Turkish Criminal Proceedings Law (CPL).
Article 4 in question is among the provisions amended in June 2007, only after less than two years of the CPL’s entry in force. With this amendment in 2007, the Police was granted an arbitrary power to stop individuals and vehicles based on “personal experience and impression regarding the current situation”, which could make all the safeguards granted for arrest and pre-trial detention meaningless in CPL.
Stop and search power for the police was introduced in the Turkish criminal justice system only in 2007 to overcome the Constitution providing only possibilities for restriction of freedom in case of arrest and in pre-trial detention.. The practice since then has already substantiated the concerns stating that the stop and search powers were not one of the defined preventive measures by CPL but a precautionary police measure, which was claimed that by the nature of the definition also covered the search power, and therefore the search measure undertaken in this way would undermine all safeguards introduced in the CPL. Since then, police has arbitrarily stopped and searched individuals. Now, with the bill in question, this unlawful practice will be covered up legally.
Searching individuals by the power of the verbal order of the ranking police officer is a direct violation of Article 20 of the Constitution which states that neither the person nor the private papers, or belongings of an individual shall be searched nor shall they be seized without an order of a judge or upon a written order of the agency authorized by law (prosecutor or the superior of the police officer) in cases where delay is prejudicial. The pending amendment would thus make void the safeguards against unlawful search under Article 119 of CPL. According to CPL, the search warrant must state explicitly the followings: the conduct that constitutes the ground for the search, the identity of the individual to be searched, the address of the dwelling or the place to be searched the time limitation of the warrant. The identities of the performing officers must be clearly stated in the record of the search. Also in cases where the public prosecutor is not available, at least two witnesses should be present. The attorney of the individual shall not be prevented from being present during the search.
However, with the amendment to Article 4 of LPDP it will become possible to search individuals and / or their belongings without complying with these safeguards, which once had been required by the CPL.
POLICE IS GRANTED ARBITRARY “RESTRAINT” MANDATE
The prospective amendment to Article 13 of the LPDP will extend the mandate of the police to include restraint. Article 13, in parallel with Article 90 of CPL, regulates the authority of the Police to apprehend. With the prospective amendment, a new ground for arrest as “putting their of own life or other persons’ lives at risk” will be added . However, the current regulation already gives authority to the Police for the arrest of the suspects when caught red-handed or in cases where delay is prejudicial and there is strong evidence, signs and indications that the suspects have committed or attempted the crime in question.
With the intended amendment, the authority of the police to apprehend will be extended to “restraint”, a power which should not be conferred in the criminal procedures. This new power will pave the way for the restraint and detention of individuals who exercise their right to assembly, or simply whomever raise an objection to the Police for any reason. The amendment confers the police a new measure which reads as follows: “Depending on the nature of the act or the circumstances, the Police can place the suspects under protection or remove them away”, added before the existing provision that states, “The police apprehends the suspects and performs the necessary legal procedures”. By this amendment, there is a risk that the freedom of expression will be open to arbitrary limitations. When considered the illegal and unregistered arrest practice of the Police in cases where the Government authorities are protested, it is evident that this new authority will cause the mass blockade of the society by the hands of the Police. This amendment will legalize the unlawful practices that have already been applied to the citizens who protested by simply showing a shoebox from the balcony of his home or by shouting at the electoral convoy during the Presidential Elections in 2014.
Needs to be noted that Article 90 of CPL already confer the Police an authority to apprehend in cases where delay is prejudicial and if there is no immediate possibility to obtain permission from the public prosecutor or the superiors cannot be reached immediately.
Nonetheless, the extended authority will bypass the judicial control and will legitimize the existing illegal and unregistered arrest and detention practices.
By this way, unregistered and non-supervised restraints, arrests and detentions will become options and it will become possible to detain individuals in other places than the detention rooms and the safeguards for detention as set by Article 93 of CPL (2) will be nullified.
It has been reported by the human rights organizations that in recent years the Police has shifted the methods for ill treatment and torture following the establishment of standards for detention and apprehension centers. It is therefore evident that this new regulation will help the Police to create informal detention centers in line with the current tendency of taking the ill treatment and torture away from the monitored detention centers towards the streets and police vehicles under the so called ‘proportionate use of force/ pacifying the suspects’.
THE AMENDMENT PAVES THE WAY FOR TAKING STATEMENTS UNDER COERCION AND WITHOUT THE PRESENCE OF AN ATTORNEY
The current Article 15 of LPDP states that, “During the investigation police summons the individuals whose statements are deemed necessary and asks them any necessary questions”. With the bill in question the following statement is added to the Article, “Police is authorized to take the statements of the complainant, victim or witness at their residences or workplaces. Procedures and principles as regards the implementation and scope of this paragraph are to be determined by the Ministry of Interior”.
According to the criminal justice law, only judges and prosecutors are granted the authority to take statements. Police can take statements of the complainant or the suspect during the preliminary proceedings, once authorised by the public prosecutor. The authority of the police to take statements is exceptional. With the intended amendment this exceptional authority is being transformed into a common practice and it becomes possible to take statements outside of the public institutions, with neither supervision nor the presence of an attorney.
With this intended regulation, it will be possible to take statements outside the scope of the safeguards introduced under Article 147 of CPL. One can see more clearly the possible perils of this new regulation when considered that even the statements taken at the police detention centres are tainted by serious violations of human rights. It has become a common practice that shady, unreal and fabricated statements are being forced from individuals, and nearly no day passes without the images and videos of ill treatment and torture under police custody being reflected in the media.
The use of prohibited methods in statement taking such as– exhausting, deception, compulsion, threat, ill treatment and torture- as introduced under Article 148 of CPL (4) will increase once the statements are taken at personal premises with no technical surveillance capacity.
Given the current allegations against police brutality and harassment, and the impunity of such crimes, it is expected to witness new human rights violations -especially against vulnerable groups such as women, children and LGBTI people- once this new regulation that allows the Police into the personal premises is legalized. It will not be possible to document for trial the violations committed by the Police at the personal premises.
Last but not least, leaving the witnesses or complainants, who would testify against the crimes committed by the Police, alone with the Police with no surveillance would definitely hamper the impartiality of the investigation. It should also be considered that this would mean the intimacy rights for women and children who have been victims of sexual harassment or assault will be breached twice.
LEGAL GROUNDS ARE ESTABLISHED FOR THE USAGE OF CHEMICAL SUBSTANCES AGAINST DEMONSTRATORS
With the amendment in question, to Article 16 of LPDP, usage of “tinted water” is added among the measures that the Police could resort to within the framework of the authorized ‘use of force’. Therefore, legal grounds to inject chemical substances in the pressurized water used at the public demonstrations will become legal.
Legal usage of chemical tint cannot be accepted considering its possible harmful effects on the public heath. Legalizing the usage of such chemicals would result in depriving individuals of the possibility to seek compensation for the damages caused by such substances and an impunity enjoyed by the police as identical to the experience with the pepper gas. Usage of such materials is considered to be equal to the usage of chemical weapons.
LEGAL LICENSE FOR THE POLICE TO KILL
With the new amendment, non-lethal instruments such as slingshots, marbles and Molotov cocktails will be considered as weapons and the Police will be granted licence to use weapons in response, which means to kill the individuals who participate in demonstrations where such instruments are used.
According to the new amendment, the Police:
“d) is entitled to use firearms with an aim to and in sufficient degree to neutralize the attacks or attempts to attack against themselves or others or to workplaces, residences, public buildings, schools, dormitories, sanctuaries, vehicles, open or closed public spaces, being directed by injurious weapons such as Molotov cocktails, explosives and combustibles, asphyxiates or others.
With this amendment in question, the authority of the police to use weapons is extended contrary to the Constitution and the European Convention of Human Rights (ECHR). This amendment, contrary to Article 17 of the Constitution (5) and the ECHR, grants the Police the licence to kill during public demonstrations.
It is worth underlining that, since the amendment to LPDP passed in 2007 increasing the authority of the Police to use firearms, the number of deaths caused by weapons fired by the Police has been 175, according to the data accumulated by the Human Rights Foundation of Turkey. While the number of casualties caused by the Police increases on a daily basis, impunity also becomes a daily practice – as seen from the infamous case of Ali İsmail Korkmaz. It is evident that the number of police causalities will increase sharply once the licence to kill is added to the existing judicial reflex to protect the perpetrators when they are members of the police force.
POLICE IS GRANTED UNLIMITED AUTHORITY TO WIRETAP UNDER THE HEADING OF “INTELLIGENCE / PREVENTIVE WIRE-TAPPING”
The amendments to Supplementary Provisions of LPDP reassigns some of the authority as regards intelligence gathering, which is set down under the Law for the National Intelligence Organization of Turkey, to the intelligence division of the Police Force. Also with the said provisions, Article 5 of the Law on Organization, Powers and Duties of Gendarmerie will be amended to grant unlimited and arbitrary wire-tapping authority to the intelligence unit of the Gendarmerie. Such wire-tapping justified with an abstract and uncontrollable reasoning as “preventing the possible crimes” abolishes the notions of personal security and intimacy rights. In other words, the wire-tapping is no longer a method to obtain evidence for committed crimes but serves as a measure for the police to keep suspects of possible crimes under surveillance, which can also be used to fabricate evidence when needed. Nonetheless, to avoid wire-tapping being used against governmental authorities, it is obliged that all wire-tapping be submitted to the control of the Prime Ministry Inspection Board and the Homeland Security and Intelligence Commission of the Grand National Assembly of Turkey. This practice would allow the disclosure of personal recordings of individuals, without their knowledge or consent, to the attention of the legislative and executive authorities with no control of the jurisdiction.
POLICE IS GRANTED THE AUTHORITY TO TAKE INDIVIDUALS INTO PROTECTIVE CUSTODY
The new paragraph 4 added to Article 91 of CPL (6) entitles the Police with the authority to take individuals into protective custody with written or verbal command of the superiors. The custody period is set at 24 hours for the crimes listed, and maximum 48 for the mass demonstrations that include acts of violence. The draft bill suggests that the public prosecutor will only be notified by the end of this duration and the person in custody will either be released or will be brought before a judge, depending on the decision of the prosecutor.
This regulation also lists “prostitution” and “illegal meetings, demonstrations and marches” among the reasons for protective custody. This means that any kind of meeting, press release or demonstration that the Police or the governmental authorities deem inappropriate will result in pre-authorisation to detain the participants, which will deteriorate the freedom of expression and all rights connected to it.
Consequently, the Police will be allowed to detain unionists, students, women and youth claiming that they are to organise a press release or a demonstration rally. This would of course hamper the freedom of expression beyond repair.
Considering the fact that Turkish Criminal Code does not define prostitution as a crime (there only exists the crime of solicitation of prostitution), introducing the crime of prostitution among the causes for protective custody will bring new forms of interference into private life. By this way, any inter-sex gathering, including mixed student residences and any sexual intercourse that does not take place in a matrimonial setting, will be subject to possible police intervention. Also it is highly predictable that LGBTI persons who are already exposed to police brutality on a regular basis will now be taken into arbitrary and unregistered police custody, based on the authority vested into the Police with this Article in question.
CUSTODY PERIOD IS EXTENDED
The bill amends the supplementary clauses of LPDP and the Law on Organization, Powers and Duties of Gendarmerie in order to extend the maximum duration for custody period. Assignment of the particular judges of the Ankara Assize Court for custody decisions taken by the law enforcement officers hampers the principle of natural judge. This practice would pave the way for the judge selected by the Government to adopt decisions preferred by the Government.
RIGHT TO ASSEMBLY IS BANISHED IN PRACTICE, AGGRAVATED SENTENCE FOR THOSE WHO COVER UP THEIR FACES TO PROTECT AGAINST GAS
The intended amendment to Articles 23 and 33 of the Law on Meetings and Demonstrations, no. 2911, includes slingshots and marbles among the category of firearms and therefore those who carry such instruments or those who cover up (conceal) their faces to protect themselves from (pepper) gas will be subject to aggravated sentence of 2.5 years to 4 years, with no possibility to suspend the sentence (7). However, under the current settings the sentences for such crimes start from 6 months. Raising the bar to 2.5 years will mean imprisonment for anyone who participates in a demonstration and covers up his / her face, either partially or fully, even if it is for self protection due to the usage of (pepper) gas by the Police.
A new crime is set by the amendment to paragraph b of Article 33. With this amendment the act of “participating in demonstrations wearing emblems and signs of a terrorist organization”, which is regulated under Article 7 of the Anti-terror Law, will now also be included in Law no. 2911. This would result in imprisonment of such individuals for 6 months to 3 years even if they are not charged for terror crimes.
The revision to paragraph 2 of Article 7 of the Anti-terror Law extends the term of imprisonment from one to five-years to 3 to 5 years for anyone “who conceals or partially conceals their face during a demonstration or public assembly that turns into propaganda for a terrorist organization.” It is also stated that the minimum term of imprisonment cannot be less than 4 years for those who use coercion or violence. As a result, individuals who participate in the commemorations for Deniz Gezmiş and Mahir Çayan will now have to face a minimum 3 years of sentence, which is above the limit for suspension, and will thus be sent directly to prison. Considering that the freedom of expression is largely at stake in Turkey, the upcoming increased sentences will make it impossible to enjoy this fundamental right.
PRE-TRIAL DETENTION BECOMES THE COMMON RULE FOR THE DEMONSTRATORS
The draft bill adds the crimes under Article 33 of Law on Meetings and Demonstrations and under paragraph 3 of Article 7 of the Anti-terror Law to the catalogue crimes under the paragraph 3 of Article 100 of Criminal Proceedings Law. With this revision, crimes regulated in these articles will now be included in the scope of the “ catalogue crimes” within the meaning of Article 100 of CPL. This means, ordering pre-trial detention for those who participate in meetings and demonstrations will become the common rule whereas releasing them pending trial will become exceptional (8).
Considering the fact that even the current state of Article 100 of CPL is being publicly criticized for impeding personal freedoms and security, and that there are numerous court decisions adopted by the Turkish Constitutional Court and ECHR against the current legislation, aggravating rather than abolishing three paragraphs of the current Article will pave the way for summary execution of individuals who exercise their fundamental rights and freedoms. After this regulation, anyone who participates in a demonstration will be placed in pre-trial detention, which will be followed by conviction for justifying detention pending trial. It is evident that this regulation, which seriously hampers the right to freedom and security, is against the Constitution and the ECHR.
LAW FOR PROVINCIAL ADMINISTRATIONS IS AMENDED TO TRANSFER THE JUDICIAL AUTHORITY TO PROVINCIAL ADMINISTRATIONS AND LAW ENFORCEMENT AUTHORITIES
The intention of the Government to reorganize the judicial acts as law enforcement practices is best reflected in the proposed amendments (paragraphs G, H and I) to Article 11 of the Law on Provincial Administrations.
With this amendment in question the governors and district governors will be entitled to serve as “the chief of judicial police”, which will result in replacement of “prosecutors”. By this way, governors and district governors, who are directly subordinated to the political authority, will supervise criminal investigations and preliminary inquiries, and will execute the powers vested in the prosecution office. Governors will be entitled to derogate the human rights with the excuse of “breach of the public peace”. Anyone who disobeys the derogation of rights will be sentenced. All governors will be entitled to act as governors of state of emergency. Even more, they will be able to execute judicial functions such as leading investigations for uncovering crimes.
It will be only a fool’s errand to mention about the Constitution or the constitutional safeguards in a regime where the Police force is vested with such an extraordinary array of powers.
NEW REGULATIONS DISCRIMINATING AND HUMILIATING WOMEN
There are two other regulations in the draft bill that need to be underlined since they directly affect women. The first is the prospective amendment (Article 31, Chapter 4) to the Law on Population Registration. In this section, which regulates the civil registry and the usage of surname, married women are still being obliged to use their husband’s surname. This regulation is a direct violation of the decisions of ECHR and resolutions of the Committee of Ministers of the Council of Europe.
The second revision to be mentioned is Article 33 of the draft bill that introduces the concept of “public morality” among the conditions, e.g. public order, for naturalization. The justification of this revision is a direct reflection of the conservative, religious and male-dominant stance that targets the female body, which is consequently unacceptable for women. The said justification is exactly as follows: “With this amendment it is intended to prevent the naturalization of foreigners seeking for Turkish citizenship if they had committed actions against public morality before marriage”.
Questions needed to be answered are: who will define what the scope and definition of “actions against public morality” are; what are the possible actions against public morality for men; or will only women be scrutinized on their morality? Will these measures include virginity tests or will the length of their skirts become a ground for decision? It is evident on every possible ground that this regulation, which humiliates women and targets the female body, should be withdrawn immediately.