Ali Yıldız*
Impunity is the exemption or protection from penalty or punishment. In the context of human rights law, impunity arises when those who commit serious human rights violations go unpunished. “In Turkey, impunity is neither a new problem nor an aberration, but, rather, it is the norm when a rights violation is committed against individuals by state officials,” said a report titled “Impunity: An Unchanging Rule in Turkey” by The Arrested Lawyers Initiative. Taking that statement as a point of departure, it would not be inconceivable to argue that in the history of Turkey, no senior official has meaningfully been held to account for his or her involvement in serious human rights abuses.
Factors such as the sanctity of the state in the mind of many public servants, the ever-present state propaganda that suggests Turkey is besieged by real and perceived enemies from within and without and entrenched official denialism about the existence of torture constitute the core of the issue that eventually enables a culture of impunity and legitimization of torture among the ranks of law enforcement. It gives broad latitude and even license to potential perpetrators of misdeeds and malicious acts while on duty. What caused impunity take root in Turkey was a set of legal and administrative regulations that served as a cover for the perpetrators.
Bar associations’ duty to protect human rights
According to the Law on Attorneyship, bar associations and their executives shall defend, safeguard and promote the rule of law and human rights. Bar associations in Turkey are organized on a provincial basis, and there are 80 bar associations representing more than 160,000 lawyers. Bar associations have extensive financial and human resources yet appear feeble and reluctant to uphold human rights in political cases, in particular those involving torture, to ensure freedom from torture and from the long-standing culture of impunity in Turkey.
According to the literature, two interrelated methods, namely, shaming (rhetorical coercion) and combatting the narrative, may be used by civil society to force governments to improve their policies with regard to their obligation on the prohibition of torture. In the Turkish case, however, despite their sizable resources, it is not possible to say that bar associations in Turkey use these methods meaningfully.
Shaming vs. zero-tolerance rhetoric
For decades Turkish governments have ostensibly espoused a firm commitment to “zero tolerance to torture.” Although human rights organizations often published reports documenting torture, bar associations and their umbrella organization – the Union of Turkish Bar Associations – have never used public shaming to expose public institutions and individuals who are responsible for torture.
There’s no need to go the distant past. Since a failed coup in Turkey in 2016 following which the Turkish government launched a massive crackdown on non-loyalist citizens under the pretext of an anti-coup fight, constant reports of maltreatment and torture have come to public attention. For instance, one of the post-coup victims, teacher Gökhan Açıkkollu, died in police custody after being subjected to days-long torture. He was denied proper medical care while under custody although he had a chronic disease. He died in a packed cell at the İstanbul Police Department.
Although the Turkish government blanketly denies all torture allegations, even the government-controlled Constitutional Court has delivered judgments proving that individuals were subjected to torture in police departments across the country. The most recent of those judgments were delivered upon complaints of victims who were tortured in Afyon, Antalya and Zonguldak provinces. In addition, according to reports by the Human Rights Association and the Turkish Human Rights Foundation, in the first 11 months of 2021 alone, 415 people were tortured across the country.
These are not isolated incidents; torture has been widespread in Turkey since 2016. “There has been an increase in kidnapping, torture and ill-treatment in custody, with the aim of exerting pressure on people, punishing, intimidating and forcing them to confess, which started with the state of emergency and has increased in recent years,” a joint statement by a coalition of Turkish NGOs said, referring to a two-year-long state of emergency imposed in Turkey in the aftermath of the coup attempt. Yet we have not heard any condemnation or effort at shaming from bar associations in these provinces. The problem is not limited to these bar associations; it is not an isolated case and to the contrary suggests a general pattern.
Combatting the ‘terrorist propaganda’ narrative
Turkish authorities resort to blanket denial regarding any credible torture allegation, calling it “terrorist propaganda.” This is often very effective for discouraging media outlets from covering torture reports. It also dissuades politicians and human rights organizations from speaking out about torture. What is worse, some journalists, lawyers and human rights defenders have faced prosecution on charges of spreading terrorist propaganda after exposing incidents of torture.
Since the government’s narrative remains uncontested, it is unlikely that any improvement will be made that would ensure torture complaints are effectively investigated and that suspects in police or gendarme custody are treated in a humane manner. The chief contours of combatting the reigning political narrative should be underlining principles upholding the universal principle that torture is wrong and evil, that there is no justification or exception to torture in any circumstance, that it is unconstitutional and against Turkey’s international obligations. The next step is to document the facts in torture cases and tell the real stories of the victims in the public sphere.
It is also a fact that bar associations have not done enough in this regard. The efforts of the Ankara Bar Association between 2018 and 2021 under the presidency of Erinç Sağkan would be an exception, though. During his tenure Sağkan and his team at the bar’s Human Rights Center did an exceptional job in documenting and exposing incidents of torture. The most notable of those efforts was a report on the enforced disappearance of seven people allegedly carried out by Turkey’s National Intelligence Organization (MİT) and a report on the torture of former Turkish diplomats at the Ankara police department.
However, as soon as Sağkan’s tenure ended, the Ankara Bar Association’s policy towards acts of torture changed dramatically. The new president, Kemal Koranel, censored and prevented the publication of a report on alleged torture at the Ankara police department in January 2022, among the victims of which were several lawyers. Human Rights Center Chairman Rıza Türmen, a former judge at the European Court of Human Rights, and as well as six other lawyers who were executives of the center resigned over this censorship. The lawyers said it was no longer possible to engage in human rights work with the new administration of the bar. According to several lawyers and human rights groups, the reason for the policy shift of the new administration was the victims’ alleged affiliation with the faith-based Gülen movement, which the government accuses of masterminding the coup attempt in July 2016 and labels a “terrorist organization,” although the movement strongly denies involvement in the coup attempt or any terrorist activity.
This is why Sağkan, the new president of the Union of Turkish Bar Associations, should establish a human rights center within the union through which the fight against torture can be conducted as effectively as it was during his presidency of the Ankara Bar Association.
* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.
