by Abdullah Bozkurt
The Turkish government has not only disregarded major criticism directed at the most controversial article of state of emergency decrees, which provides blanket immunity and broad impunity for public officials in torture and ill-treatment cases, but has further expanded that provision to grant a thick armor to civilians and paramilitary groups as well.
This is all part of Turkish President Recep Tayyip Erdoğan’s grand scheme to ensure his survival by building paramilitary forces from thugs and organized crime syndicates in the event the military and police force, the two main security organizations in Turkey, fail to shore up his rule. He has been preparing a doomsday scenario where he would unleash armed thugs to wreak havoc to suppress his critics and opponents when push comes to shove. That is why he doesn’t give a damn about the growing criticism from international organizations and Turkey’s allies. He would rather play the game of scorched-earth policy to the end.
Let’s look at the road markers of the new Turkey under Erdoğan’s oppressive rule. When he staged the coup attempt that was doomed to fail from the beginning with only 1 percent mobilization, Erdoğan used that as a pretext to declare emergency rule to bypass Parliament and set his opponents up for mass persecution. Although the Gülen movement has borne the brunt of Erdoğan’s wrath, the crackdown went way beyond that to include many from all walks of life. It helped Erdoğan transform the military, judiciary and police, among other institutions of the state, into partisan tools in the hands of the Turkish president, who filled government positions with hard-core Islamists and neo-nationalists following the mass purge.
Erdoğan also brought back torture in detention and prison facilities to send a chilling message of fear across the board. Decree-law No. 667, which was issued on July 22, 2016, stated in its Article 37 that “legal, administrative, financial and criminal liabilities of persons who have adopted decisions and executed decisions or measures with a view to suppressing the coup attempt and terrorist acts carried out on July 15, 2016 and the ensuing actions; who have taken office within the scope of all kinds of judicial and administrative measures; and who have adopted decisions and fulfilled relevant duties within the scope of the decree-laws promulgated during the period of the state of emergency shall not arise from such decisions taken, duties and acts performed.”
In other and simpler words, no public official bears any legal, administrative, financial or criminal responsibility if s/he is considered to be performing duties as seen by the government. In its report of Oct. 25, 2016 titled “A Blank Check: Turkey’s Post-Coup Suspension of Safeguards Against Torture,” Human Rights Watch (HRW) stated that this article “sends a clear signal to police officers and other officials that they can abuse detainees and violate their rights without fear of legal or other consequences.”
The Erdoğan government, which invoked derogations from treaty-based human rights obligations such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), clearly and blatantly disregarded provisions in both treaties that protected fundamental human rights even under emergency rule such as no torture or ill treatment of detainees. Therefore, HRW and many others asked the Turkish government to abolish Article 37 in order to put an end to the impunity of public officials.
On Dec. 2, 2016 EU Commissioner for Human Rights Nils Muižnieks regretted that one of the first measures taken by the Turkish government was “to give administrative, legal and criminal immunity to State agents enforcing emergency decrees.” He underscored that “impunity has been a nefarious influence throughout Turkey’s recent history.”
The Parliamentary Assembly of the Council of Europe (PACE), in its resolution adopted on April 5, 2017, also expressed that “the Assembly is appalled by the adoption of the 2016 Law on the legal protection of security forces involved in fights against terrorist organisations, which could encourage impunity.” PACE urged Turkish authorities to repeal Article 37 on the legal protection of security forces involved in the fight against terrorist organizations. It also asked Turkey to “ensure that effective investigations into allegations of unlawful acts are carried out so as to guarantee that those responsible are held accountable for unlawful acts, including for ill- treatment, excessive use of force or any other abuse of power.”
Unfortunately, what was most feared came true as shown in a report by the Stockholm Center for Freedom (SCF) that documented several cases where public prosecutors cited Article 37 as a reason not to pursue any investigation into allegations of torture and ill treatment in detention and prison facilities. For example, a victim identified as Abdullah B., who had been arrested in an investigation into the Gülen movement in Trabzon, filed an official complaint with the Trabzon Chief Public Prosecutor’s Office saying that he and his two-month-pregnant wife had been beaten, ill treated and threatened in detention. In January 2017 public prosecutor Eşref Aktaş “decided not to prosecute” the complaint by referring to decree-law No. 667. Aktaş concluded that police officers have no criminal liability in connection with the performance of their duties and that they cannot be prosecuted under the said decree.
In another example documented by SCF, torture victims in Zonguldak province told police officers who tortured them that they would launch legal action against them. But the police officers replied that they were acting on the orders of the chief public prosecutor, saying: “Chief Public Prosecutor Hüsnü Hakan Yağız said, ‘If they can walk, that’s enough.’ Thanks to the state of emergency, you cannot do anything to us.” Unfortunately, some torture cases even went well beyond the if-they-can-walk-that-is-enough criterion, and some victims were seriously injured and died during torture. Teacher Gökhan Açıkkollu and noncommissioned officer Önder Irmak lost their lives due to the torture and ill treatment they faced in custody at the Istanbul Police Department.
As if the impunity of public officials were not enough, decree-law No. 696, which was issued on Dec. 25, 2017, brought a new amendment to Article 37 by adding a paragraph which stated that “regardless of an official title or duties or the lack thereof, people who played a role in the suppression of a failed coup attempt on July 15, 2016 and subsequent events and terrorist activities will be exempt from criminal, administrative, financial and legal liability.” In other words, vigilante violence was encouraged by the government as long as people are combatting what the government describes as “terrorist groups.” This is quite unprecedented in terms of allowing a militia army to organize itself and act with impunity when they are considered to be fighting Erdoğan’s enemies.
Following the backlash, the government tried to downplay the significance of this new amendment by saying that the immunity is limited to the night of the coup when people took to the streets against coup plotters. But as SCF documented very clearly, the prior provision was extensively used by public prosecutors to drop investigations into torture and ill-treatment allegations against police and other officials long after the coup was suppressed. The new provision would also be applied similarly, despite claims to the contrary by some government officials.
In fact, Burhan Kuzu, a professor of constitutional law and Erdoğan’s close advisor, posted a message on Twitter saying that “with No. 696 we have given judicial immunity to civilians. To sum up: If a July 15-like coup attempt or a terror attack takes place, citizens who prevent this treason will be protected legally.” If the past precedent has any bearing on how prosecutors will interpret this new provision, one can naturally conclude that it will be expanded to include incidents way beyond the night of the failed coup. That is exactly what the Erdoğan government is trying to build in Turkey: a culture of violence to sustain the empire of fear by rewarding vigilantism and thuggish behavior.
This also shows that the Erdoğan government is not amenable to influence or suggestions from allies or international organizations that have been trying to engage with Ankara to improve the situation of human rights in Turkey. Erdoğan rather enjoys poking his fingers into the eyes of human rights advocacy organizations and groups. It is time to swiftly mobilize international legal instruments to contain this regime and hold the Erdoğan government accountable for rights violations under the international treaties to which Turkey is a party. Perhaps the EU and the United States can also invoke unilateral mechanisms to punish the perpetrators in Turkey, where they act with complete impunity and immunity. The world has to show Erdoğan that he cannot have a free ride on these massive violations of human rights that have a spillover effect on other countries.