Country of origin information report Turkey March 2007

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11.08 The USSD 2005 report noted that:
“The law prohibits arbitrary arrest and detention; however, the government at times did not observe these prohibitions… During the year police routinely detained demonstrators... Police detained dozens of members of the DEHAP on several occasions... Police continued to detain and harass members of human rights organizations and monitors…The government continued to detain persons, particularly in the southeastern province of Batman, on suspicion of links to Hizballah… Detainees were generally allowed prompt access to family members.” [5b] (Section 1d)
11.09 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Turkey from 7 to 14 December 2005 and their report issued on 6 September 2006, noted that:
“The obligation to notify without delay a relative of the detained person was, as a rule, being complied with. In most cases, the notification was made shortly after deprivation of liberty and, in some cases the detained person was given the opportunity himself to speak to his relatives. Moreover, the procedures related to the notification were properly recorded in the custody follow-up form (including the name and signature of the official giving the notification, the date and time at which notification was given, and the signature of the detained person confirming the fact that detention had been notified). However, in a few cases, allegations of delays in notification were received, as well as of absence of feedback to the detainee (whether notification had indeed been made or when).” [13a] (Paragraph 22, section 2)
Detention for questioning prior to formal arrest
11.10 The EC 2005 report stated that:
“Article 141 of the Constitution limits the length of pre-trial detention by providing for the right to be judged within a reasonable time. Under Article 91 of the Criminal Procedure Code, a person who has been arrested shall in general be brought before a court within twenty four hours; in exceptional cases, this period may be extended to a maximum of four days. A person who has been remanded in custody awaiting trial may be detained, under Article 102 of the Criminal Procedure Code, for up to six months if accused of a minor offence and two years if accused of a serious offence; in exceptional cases, this period may be extended to three years.” [71d] (p105-106)
11.11 As outlined in the January-February 2005 issue of Newspot which is the online Journal of the Directorate General of Press and Information under the Office of the Prime Minister of Turkey:
“According to the new law [the new Penal Procedural Law (CMUK)], suspects cannot remain in police custody for more than 24 hours. Those arrested and brought to court will not be handcuffed. Police will inform individuals taken into custody of their legal rights. Prosecutors will have the right to extend the period of detainment for a consecutive three days, if gathering evidence is difficult… Detainees suspected of crimes which stipulate punishment for less than two years will no longer be imprisoned for the duration of the trial.” [36d] On 27 May 2005, the Turkish Daily News reported that the parliamentary General Assembly had passed a bill that amended the Criminal Procedures Law (CMK), effective from 1 June 2005. “The maximum time in custody before appearing in a relevant court will be 24 hours. Suspects facing charges carrying a fine or prison sentence of less than a year will not be detained beyond arrest and booking.” [23ah]
Warrants/Court Summonses
11.12 The USSD 2005 report noted that:
“Warrants issued by a prosecutor are required for arrests unless the suspect is caught in the commission of a crime. Depending on the charges, persons charged with a crime can be held for up to 48 hours, excluding transportation time, before being arraigned by a judge. There is a functioning bail system. After arraignment, the judge may release the accused upon receipt of an appropriate assurance, such as bail, or order detention if the court determines that the accused is likely to flee the jurisdiction or destroy evidence.” [5b] (Section 1d)
11.13 The Norwegian Country of Origin Information Centre ‘Report of fact-finding mission to Turkey (7-17 October 2004)’ related that:
“According to Mr. Islambay, law enforcement authorities are required to report to the Public Prosecutor on each case-inquiry. This report – Fezleke – contains all information available on the case, such as the type of the crime, names of witnesses, victims, suspects, date of the crime and so on… According to Mr. Islambay, the attorney is entitled to receive a copy of the documents from the Prosecutors Office and would thus have access to this subject index if verification was required… A person claiming to have been summoned to criminal proceedings or to commencement of sentence should be able to give documentary evidence of that… Both Mr. Islambay and Mr. Turan claimed that persons on the run could not get access to en [sic] (authentic) warrant. He or she (or the attorney) would get a copy of the document at the earliest after detention.” [16] (p22- 23)
Right to legal advice
11.14 As outlined in the EC 2005 report:
“The new Code of Criminal Procedure and the Regulation on Apprehension, Detention and Statement Taking provide for arrested persons to be informed of their rights, including their right to free legal counsel. Legal representation was already compulsory for juveniles accused of criminal offences. The new Code widens the scope of compulsory legal representation by providing that representation by legal counsel is to be mandatory for all offences punishable by more than five years’ imprisonment. Of those accused of serious criminal offences, the number asking for a lawyer increased substantially between 2003 and 2005. However, there are reports that the police and gendarmerie continue to discourage detainees from requesting legal assistance.” [71d] (p17)
11.15 The EC 2005 report further noted that, “Article 147 of the Code of Criminal Procedure provides that detainees must be reminded of their right to have a defence lawyer present and that a lawyer may be appointed by the Bar Association. Bar associations have reported a 100% increase in the appointment of lawyers for accused persons since the entry into force of the new Code.” [71d] (p106)
11.16 The USSD 2005 report noted that:
“According to a number of local bar associations, attorney access for detainees improved during the year, but varied widely across the country. In some parts of the country, bar association representatives estimated that up to 70 percent of detainees consulted with attorneys, while in other areas only 5 percent did so. The Human Rights Association [HRA] also observed an increase in the percentage of detainees consulting with attorneys but maintained that the vast majority of detainees did not exercise this right. HRA claimed police often intimidated detainees who asked for attorneys, for example by telling them a court would assume they were guilty if they consulted an attorney during detention. Detainees were generally allowed prompt access to family members.” [5b] (section 1d)
11.17 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Turkey from 7 to 14 December 2005 and their report issued on 6 September 2006, noted that:
“New Criminal and Criminal Procedure Codes, as well as a revised version of the Regulation on Apprehension, Detention and Statement Taking, entered into force on 1 June 2005. These texts have consolidated improvements which had been made in recent years on matters related to the CPT’s mandate. It is more than ever the case that detention by law enforcement agencies (police and gendarmerie) is currently governed by a legislative and regulatory framework capable of combating effectively torture and other forms of ill-treatment by law enforcement officials. Authorised police/gendarmerie custody periods are now relatively short (24 or, in some cases, 48 hours, with a possible extension to a maximum of four days as regards ‘collective’ offences), and detained persons are entitled to notify a third party of their situation and to have access to a lawyer, as from the outset of their custody.” [13a] (section 1 Preliminary remarks paragraph 12)
11.18 The CPT 2006 report further noted that:
“From both the delegation’s discussions with detained persons and its own on-site findings, it would appear that progress continues to be made as regards the implementation in practice of the safeguards against ill-treatment provided for by law (notification of custody, access to a lawyer, etc). Further, the time-limits on custody were being respected and, with a few exceptions, custody registers were properly completed (a notable achievement given the amount of data which should now be recorded in those registers).” [13a] (section 3 paragraph 21)
11.19 The CPT 2006 report continued:
“As already indicated, all criminal suspects have, as from the outset of custody, the right of access to a lawyer (including free legal assistance, private detainee-lawyer consultations and the possibility for lawyers to be present when statements are taken). The appointment of a lawyer has long been obligatory if the suspect is a minor. This obligation to appoint a lawyer has now been extended to all persons detained who are suspected of an offence punishable by a maximum sentence of at least five years imprisonment. The information gathered during the December 2005 visit confirmed that there had been a significant increase in the number of persons enjoying access to a lawyer whilst in police custody, including in cases where the assistance of a lawyer was not obligatory. In fact, most criminal suspects had received the visit of a lawyer during their period of custody (contrary to the situation observed during earlier visits, when access to a lawyer was the exception, not the rule). Not surprisingly, this had led to an exponential increase in requests for legal aid, which were taken care of by the local Bar Associations.” [13a] (paragraph 23)
11.20 The CPT 2006 report further noted that:
“However, the delegation heard allegations to the effect that law enforcement officials still do on occasion delay access to a lawyer, so as to enable the person detained to be informally questioned without the presence of a lawyer, prior to the taking of a formal statement (in the lawyer’s presence). The CPT must once again recommend that all necessary steps be taken to ensure that the right of access to a lawyer for persons in police/gendarmerie custody, as guaranteed by law, is fully effective in practice as from the outset of custody.” [13a] (paragraph 23)