Lawyer Sarıca: UN report reveals CPT's unlawfulness 

2024-07-29 10:42:13


	 

	ISTANBUL - Rezan Sarıca, lawyer of Asrin Law Office, pointed out that the UN Committee Against Torture's report on Turkey shows that the CPT does not act in compliance with international standards and said: “The voice we expected from the CPT came from the UN.” 

	 

	The 56th session of the United Nations (UN) Human Rights Council (HRC), which started in Geneva, Switzerland on June 18, ended on July 26. Twenty non-governmental organizations from around the world participated in the sessions of the UN Committee Against Torture (CAT) between July 16-17-18 and presented their reports on rights violations. The Association of Lawyers for Freedom (ÖHD), Society and Law Research Foundation (TOHAV), Media and Law Studies Association(MLSA) and The World Organization Against Torture (OMCT) from Turkey made a 49-page presentation. 

	 

	The report, which included violations of rights in prisons, refugees and migrants, and violations against freedom of the press, included the “absolute” isolation of PKK Leader Abdullah Öcalan, who has not been heard from for 41 months, and other prisoners Veysi Aktaş, Ömer Hayri Konar and Hamili Yıldırım in İmralı. After the presentations, the committee asked for Turkey's defense on the lack of news from İmralı and the ban on lawyer and family visits. During the sessions, the Turkish delegation did not acknowledge the existence of a special practice, but admitted the existence of İmralı isolation in its defense. 

	 

	Abdullah Öcalan's lawyer Rezan Sarıca, who attended the sessions on behalf of TOHAV, answered our questions about the details of the report submitted to the UN sessions, the discussions on the İmralı isolation and Turkey's attitude towards the isolation.  

	 

	What kind of a preparatory phase did the report you submitted to the committee as civil society organizations go through and what was included in the report, especially about İmralı?

	 

	Together with the 4 non-governmental organizations of which we are members, we carried out a 4-month study starting in February. Of course, the core of the issue here was the violations against the prohibition of torture, but since all kinds of events and developments affect the prohibition of torture, it was necessary to present the human rights picture in Turkey. All of them are actually interconnected. One of the most important sections here was undoubtedly the section on the conditions of Mr. Abdullah Öcalan and our other clients in İmralı Prison. Cases of torture in other prisons, violations related to isolation, crimes or torture in the field of civil society, restrictions on freedom of expression, pressures and restrictions on lawyers and civil society organizations, We presented our reports to the UN Committee against Torture, presenting a general picture of the regression in the field of human rights in Turkey in general, especially the violence used by the police during press statements or demonstrations, detentions and subsequent ill-treatment processes, and the severe situation of ill prisoners. 

	 

	Apart from the reports you prepared, were there any other reports on Turkey prepared by other civil society organizations?

	 

	 

	Sure... There were over 20 civil society organizations. More than 20 reports were submitted to the committee. This was also important in terms of showing how serious a problem human rights in Turkey are facing. Other non-governmental organizations present there reiterated the many cases of torture and human rights violations in Turkey. 

	 

	 

	What did you discuss in your presentations during the sessions and in your meetings with the rapporteurs after the sessions?

	 

	We stated that Turkey does not comply with universal principles.

	 

	Even though we had a limited time in our presentations, we wanted to emphasize the isolation system in İmralı to the rapporteurs again, because the conditions in which Mr. Abdullah Öcalan is held in İmralı are carried out under a regular and continuous state of emergency regime. We stated that none of the international conventions, the Constitution in Turkey and international mechanisms are valid and have no effect on İmralı. For example, despite the UN Human Rights Committee's decision on behalf of Mr. Öcalan and our other clients that Mr. Öcalan should be allowed to meet with his lawyers immediately without any restrictions, Mr. Öcalan is still not allowed to meet with his lawyers. In other words, we stated that the law has no effect there and that Turkey insists on not complying with universal principles and values. In this regard, we asked the rapporteurs, “Is İmralı prison a place outside the control of the law?” Again, we said the rapporteurs, “There is an absolute prohibition of torture in İmralı”, the recommendations of both the UN and the Council of Europe have been accepted by all countries, rules and decisions have been taken that minimum communication facilities must be provided in an absolute manner, but despite this, we have not heard from him for 3 years and 4 months, and we asked what is the definition of this situation of not hearing. Again, we asked the rapporteurs if there is any other example where only 5 lawyer visits can be made in 13 years, and then we stated that the only place in the world where no news can be received today may be İmralı prison and that this situation is a black hole in terms of the international legal system. 

	 

	 

	Systematic “disciplinary penalties” are cited as an obstacle to lawyer and family visits, was this issue also brought up during the sessions? 

	 

	 

	We also tried to elaborate on Turkey's claims against these denials because disciplinary bans on lawyers are cited as justifications. However, these processes should have been carried out in a legitimate and transparent manner, but we told the rapporteurs that this was not the case. In other words, as lawyers, we cannot be informed about these processes, the files are being conducted illegally in secret. We are constantly forced to make attempts and applications based on assumptions. In this respect, Mr. Öcalan and our other clients there cannot benefit from their lawyer visits. Not only are they not allowed to visit, but their right to defense is also restricted in this way.  Of course, we also stated that in the CPT report published in 2020, it was determined that these disciplinary decisions were based on deceptive and political reasons. In this sense, we stated that we are looking for an interlocutor who will find a legal solution to the İmralı system.

	 

	 

	 

	
		The rapporteurs directly asked the Turkish delegation about Mr. Öcalan's conditions. They stated that there has been no news from him since March 25, 2021, that meetings with his lawyers have been cut off, and that no information has been received despite all diplomatic efforts.


	 

	 

	Finally, we stated that 'aggravated life imprisonment' is contrary to the prohibition of torture and that there is an ECHR decision on this issue. However, we said that Turkey has not taken steps in accordance with the ECHR decision. The UN committee itself, in its fifth periodic report, made a recommendation to eliminate the structural problems of 'aggravated life imprisonment'.  We also stated that despite this recommendation, the ECHR judgment and the monitoring process of the Committee of Ministers, the structural problem persists. In fact, in its action plans submitted to the Committee of Ministers, Turkey clearly states that it will not abolish these legal regulations. We expressed how Mr. Öcalan embodies the mission of peace, what kind of potential he has if he plays his role, and that this is essential for the establishment of a democratic peaceful legal order. We also had the opportunity to present in writing the connections of the Kurdish issue with Turkey's state policies and the consequences of the isolation system on society today. 

	 

	In connection with your presentations, what were your observations about the approach of the rapporteurs' offices to the events in İmralı? Was there a point about İmralı that the rapporteurs emphasized?

	 

	The rapporteurs asked Turkey questions on many issues. Because a very large bag of human rights violations was put in front of them. Our impression is that the rapporteurs had read and understood these problems. Because they asked detailed questions in that context.

	 

	 

	One of the important questions and evaluations was undoubtedly the conditions of Mr. Öcalan. The rapporteurs directly asked the Turkish delegation about Mr. Öcalan's conditions. In other words, they stated that Mr. Öcalan was staying in İmralı with 3 other people, only one of whom was serving a life sentence. They stated that there has been no news from them since March 25, 2021, that communication with his lawyers has been cut off, and that no information has been received despite all diplomatic efforts. The Committee also asked to understand the situation regarding the 'life imprisonment sentence', for which the ECHR has ruled an Article 3 violation. They asked a direct, open and concrete question: 'Why are the families and lawyers not being allowed to meet with them?' Likewise, they asked clarifying questions such as 'Is there a solution being considered for life imprisonment, i.e. arrangements that do not allow for conditional release, and what kind of solution is being considered? 

	 

	You said that the relevant rapporteur offices are aware of the rights violations in the country, especially the current isolation in İmralı. Could you elaborate a little more?

	 

	Yes, they are. For example, another rapporteur stated that he had the opportunity to visit Turkey many times before, but that many conditions were not in line with CPT recommendations and international standards. He stated that the conditions of 'aggravated life imprisonment' and 'life imprisonment' prisoners were very important for him and that this had increased by 40 percent in recent years. In this respect, he stated that he would like to know the scope of prisoners' rights to complain, their rights to visit their lawyers and their rights to meet with other institutions. He asked, 'What kind of measures should be taken so that the conditions are improved, their contact with the outside world is increased and they have the opportunity to be released on conditional release? He said that conditional release is very important in this respect. In other words, direct questions were asked about 'what solutions do you think about' in terms of lifting the conditions of isolation and ending life imprisonment. They also asked about the CPT's latest report, which was included in the 2019 visit, and 'what is being considered in terms of improving transparency'.  

	 

	What was the response of the Turkish delegation to these questions of the rapporteurs? 

	 

	Turkey's two-day answers were public. Only the Justice Ministry official talked about what is written in the book in the legislation regarding 'aggravated life imprisonment', 'life imprisonment' and 'term imprisonment'. They repeated the article of the law, namely that those sentenced to aggravated life imprisonment stay in solitary confinement, that they are entitled to one hour of ventilation and sports, and that they are entitled to family and phone calls every 15 days. At the same time, they also mentioned the phrase 'they cannot be taken outside under any circumstances'. But the committee rapporteurs asked what the rate and number of those sentenced to aggravated life imprisonment and convicts were.

	 

	The ministry official stated that Mr. Öcalan was sentenced to aggravated life imprisonment by the Ankara 2nd State Security Court (DGM) when they came to Mr. Öcalan's conditions. They stated that he stayed in İmralı with 3 other people and the sentence was executed there. Then they stated that they had to act in accordance with the regime there, that if they violated the regime, disciplinary penalties could be imposed and even visits could be banned, and that the disciplinary board had the authority in this regard. They went on to say that there was a 3-month family ban, which was finalized in April, and a 6-month ban on lawyers, which was finalized at the beginning of May, and that the appeal against the ban on lawyers was rejected and finalized. 

	 

	The number of detainees and convicts sentenced to aggravated life imprisonment has been asked in some of your previous applications, but you have not received an answer. Turkey seems to be hesitant to disclose this number. Did they respond during the sessions?

	 

	They refrained from giving this number, they only expressed a rate. In other words, they only stated that the rate of convicts sentenced to aggravated life imprisonment was 1.24 percent. They did not give the exact number here either. Because they did not give this number in the previous ministerial committee process either. 

	 

	Doesn't the Turkish delegation's response imply, in a way, an acceptance of the isolation? 

	 

	Actually, there is an acceptance of isolation in the ministry's response. In other words, they could not say that there is no isolation. It could not be stated in that environment that there is no isolation. From this point of view, the Turkish delegation was actually unable to express isolation, and was contented with only expressing a few situations in the legislation and the latest ban. 

	 

	The authorities' response to the applications made by legal and non-governmental organizations against the ongoing absence of news from İmralı was that there was no isolation. Why didn't Turkey repeat this claim during these sessions?

	 

	Because if it had been said that 'there is no isolation' or if it could have been defensible, we would have been able to share information about the disciplinary penalties that started in September 2018 and that at least 22 disciplinary penalties have been imposed one after the other that we know about. When we go back from there, we could have talked about the bans on mass execution judgeships under the State of Emergency that started in 2016. Likewise, considering that there has been a review and audit process in the last 4-5 years, the bans on lawyers in Turkey in the last 4-5 years could have been mentioned. However, mentioning these would also have different handicaps. In other words, it would have been admitted that there is such a systematic system that violates the principle of torture. In terms of not being able to state that there is no isolation and not being able to defend the conditions in İmralı, the response was not sufficient and convincing, and incomplete. 

	 

	So how did the Turkish delegation's answers resonate with the rapporteurs?  Were these responses convincing?

	 

	 

	
		The UN's concluding observation report on Turkey was the voice we expected from the CPT. The fact that the UN has taken such a stance against the CPT's silence on İmralı shows that the CPT is not acting in accordance with international standards.   


	 

	In fact, the incomplete contradiction we have been talking about has reappeared with many different questions as the questions were not answered. This time the rapporteurs felt the need to directly ask about the conditions in İmralı again. Because they raised a question over the answer. The rapporteurs said that the ECHR's ruling on Article 3 was not sufficiently addressed and that they were waiting for concrete examples of the dispute. The rapporteurs stated that they wanted to see how the article, which recognizes the supremacy of international conventions, is met in practice. In this regard, they asked whether the 3-month family and 6-month lawyer bans on Öcalan were one-offs. Or 'Was it a successor to previous sentences, and if it was a successor, how long can Öcalan or any other convict go without seeing a lawyer if there are no visits in between? When one sentence was over, was another one given afterwards?’. It was then stated that lawyer visits are an important measure against torture. They wanted to know which law and regulation allowed these restrictions. They asked whether this situation complies with international standards and asked for clarification. Previously, they were also asked how the Nelson Mandela Rules, the recommendations regarding the situation of prisoners, are implemented. However, this time we did not see any answer from the Turkish delegation regarding these more detailed and concrete problems. In other words, these questions of the rapporteurs were not answered and passed over. Regarding the question on the Nelson Mandela Rules, it was enough to say that 'all of these rules have been incorporated into our legislation'. In response to the rapporteurs' questions, they also stated that the rule of law exists and that international conventions are valid in case of conflict with the law. However, these statements were also eviscerated by not answering the questions.

	 

	Following the sessions, the committee published its concluding observations report on Turkey. In the report, which includes rights violations and recommendations, especially the evaluations on the isolation in İmralı stood out. What can you say about this report?

	 

	When we examine the observation report, we see that there are important findings and recommendations. In fact, it has been revealed that the questions asked by the rapporteurs about torture cases were not adequately answered. This is due to the information and findings put forward by us and civil society organizations. Here, the findings and subsequent recommendations made by the committee on İmralı are very important for us. Because the conditions in İmralı today have been determined by the committee, in fact by the UN, to be in violation of the 'prohibition of torture', to be incompatible with international law and standards, and to be worrying due to the severe continuation of the conditions. This is an important situation as an attitude of rejection by an international mechanism in an international mission.  

	 

	 

	In this sense, it is also seen that it is demanded and recommended that the situation of not being able to receive news from İmralı be ended immediately, that lawyers be included in the legal process and that their visit rights be fulfilled. At the same time, it is also recommended that the life imprisonment sentence be ended and made compatible with human dignity and international court decisions. Now the voice we wanted to hear from the CPT has come from the UN in a way. It is an international finding and the recommendations for its abolition are very concrete. The fact that such an attitude has come from the UN against the CPT's silence on İmralı actually shows that the CPT does not act in accordance with international standards and does not act in accordance with international conventions. When we evaluate these results from Turkey's point of view, we can see that even though during the sessions they stated that they prioritize the rule of law and international conventions, the committee rapporteurs were not convinced by this, as they stated that these conditions were unacceptable.  

	 

	So, in the light of this report, what will be the process for Turkey in the coming period?

	 

	There will be a monitoring process for one year after the committee's session. The committee will continue its dialogues with Turkey regarding the fulfillment of the findings and recommendations. However, the UN has made it clear in its report that the conditions in İmralı are unacceptable. It has become clear that the İmralı isolation system is no longer legally sustainable. In this respect, we would like to ask Turkey to prioritize the rule of law, even with what it has expressed in the sessions, to end the torture conditions in İmralı as soon as possible, to implement the law, all fundamental rights and freedoms, to fulfill the visit rights of lawyers in particular on a regular basis and to receive healthy news from our clients as soon as possible. I would like to state that we expect Turkey to respond immediately to these recommendations of the UN and to end this system in İmralı. On the other hand, we should also note that the conditions in İmralı have not been discussed sufficiently. In this respect, both the society and the leading opinion leaders, intellectuals, writers, lawyers, bar associations and non-governmental organizations have a great responsibility. In other words, these findings of the UN should be brought to the forefront and international resolutions should be disseminated to end these conditions in İmralı. In other words, both the observation report of the UN committee and the previous UN Human Rights Committee's cautionary decision on İmralı are obvious. These resolutions need to be highlighted in order to end the current system. 

	 

	Besides the UN Sessions, at what stage are your other international initiatives on İmralı? 

	 

	In addition to participating in the UN CAT sessions, we also had the opportunity to meet one-on-one with 5 special rapporteurs. These are mechanisms outside the committee in question. These are; Special Rapporteur against Torture, Special Rapporteur on the Independence of Lawyers, Special Rapporteur on Human Rights Defenders, Special Rapporteur on the Right to Assembly and Demonstration, and Special Rapporteur on Freedom of Expression, and we had the opportunity to meet with them separately. From our perspective, the first 3 rapporteurs are directly related to the isolation in İmralı and the level of torture there. In fact, we had made a direct application to these special rapporteurs two months ago regarding the conditions in İmralı, both in terms of torture and the violation of the right to defense, and the ban on lawyers and their deprivation of due process. With our special application, we had the opportunity to meet with these rapporteurs and conveyed the current situation in İmralı. The situation presented by the rapporteurs; The statement was that the conditions in İmralı were definitely not in line with international standards, that the current conditions were alarming with a finding of torture, and that Turkey’s actions were unacceptable in terms of lawyers not being able to do their jobs, not being included in the processes, and not being able to fulfill the right to defense. They stated that they would examine this within the scope of their working procedures and periods, also because an application had been made to them on this issue, and that they would take some steps accordingly within the scope of their own authorities. In addition to meeting with international civil society organizations, institutions and individuals defending human rights and law, we are also including the UN’s special rapporteurs in this process. These rapporteurs will also examine our applications.

	 

	You also met with CPT officials during the month. What would you like to say about the CPT’s current stance?

	 

	Since the CPT is the most important institution monitoring İmralı, we inform them about all current situations and try to meet with them as much as possible. These meetings do not take the form of dialogue. They mostly take the form of conveying the conditions in İmralı and reflecting our existing concerns to them. However, there is a situation that the CPT has recently put forward. In other words, the situations it puts forward actually express a sense of being stuck.

	 

	What kind of a stuck situation is this?

	 

	They recently had an interview with a news agency. Both their statements here and what they tried to express in the interviews indicate that the conditions in Imrali are unacceptable, but our demands that they do their part more effectively on this issue do not find much response. Because if they did, the conditions in Imrali would not continue like this. We have tried to explain the Azerbaijan issue for years. The state of emergency-like practices in Imrali and the conditions that are against the prohibition of torture, and the fact that this has become a systematic regime cannot be considered normal. It is not a correct assessment for the CPT to consider this normal. When it crosses this line and reaches the correct assessment, it can also explain its observations on the conditions in Imrali in the international arena and even add its latest report, which has not been published for over a year and a half, to that statement itself. In the latest example of Azerbaijan; what we said was implemented step by step by the CPT. How will we explain this discriminatory attitude? The conditions in İmralı, as we said, cannot reach that point because the CPT regards them as normal, but it is very clear that this also ensures the continuation of the isolation in İmralı.

	 

	 

	
		It is clear from the interviews that there is no need to be hopeless. We need to be hopeful. These are signs of how much we can expand the civil area. I think we can defend a democratic legal order and human dignity and bring this backward order to a democratic order.


	 

	You have recently had contacts with many civil society organizations and politicians in Paris. What was the approach of these institutions regarding the İmralı isolation?

	 

	Yes, we have recently held meetings with many civil society organizations in Paris. Some of the results that emerged from there also reveal that we need to re-evaluate this picture. At the same time, the meeting we had with French senator Pascal Sodelli on this issue and his views on this issue were also valuable. He revealed that he sees Mr. Öcalan as a ‘political prisoner’, that Mr. Öcalan’s position is important and that universal solidarity needs to be built on this issue. So, it is clear from these meetings that there is no need to be hopeless. We need to be hopeful. These are signs of how much we can expand the civil area. I think we can defend a democratic legal order and human dignity and transform this backward order into a democratic order. A universal struggle against isolation shows that international solidarity can yield results.

	 

	The civil society organizations that have made valuable efforts are already known, but apart from that, it should be stated once again that bar associations, bar association unions and civil society organizations that support human rights, as well as intellectual writers and journalists in society, have not been able to give a sufficient reaction on this issue.

	 

	You stated that institutions in Turkey have not been able to give a sufficient reaction on this issue. What is the role of this lack of reaction in the ongoing isolation in İmralı?

	 

	If a truly holistic and broad-ranging reaction defending human rights could have been given, the conditions in İmralı today and the order in Turkey that is devoid of general law would not be like this. For example, the Paris Bar Association made a decision from the administration and made statements regarding the conditions in İmralı, the prohibition of torture, the prohibition of visiting their lawyers and the lack of news from them. They stated that they shared that the current situation was worrying and sent a letter protesting this to the Ministry of Justice. Now, while the Paris Bar Association feels the need to defend human rights, law and international agreements, the silence of the Istanbul Bar Association or the Union of Bar Associations on this issue is an unacceptable situation.

	 

	Even talking about the isolation in İmralı today is a problem. In fact, the mainstream media has completely censored this issue, and the associations are prohibited from making statements on this issue. The ÖHD and many other institutions recently applied to the Istanbul Bar Association, but the statement they were going to make was blocked by the police and they were not allowed to make it. Again, the attitude of the Minister of Justice during his meeting with the mothers is obvious. Here is the video the Minister of the Interior shared about the young people in Mersin, where he brought Mr. Öcalan to the agenda. There is a suppression on this issue, in other words, a state of not wanting this issue to be touched. However, the root of the problem stems from this. The source of the bans, torture cases and this order devoid of law in Turkey stems from the isolation system in İmralı and the silence towards it. We think that this needs to be seen and opposed within a broader framework.

	 

	MA / İbrahim Irmak