FOR EDUCATIONAL USE ONLY 22 Fordham Int'l L.J. 2129 Fordham International Law Journal June, 1999 Special Report *2219 JUSTICE ON TRIAL: STATE SECURITY COURTS, POLICE IMPUNITY, AND THE INTIMIDATION OF HUMAN RIGHTS DEFENDERS IN TURKEY Copyright (c) 1999 Fordham University School of Law Report of the Joseph R. Crowley Program/Lawyers Committee for Human Rights: Joint 1998 Mission to Turkey [FNa1] INTRODUCTION In recent years, Turkey's human rights record has emerged as a critical issue in its relations with its allies in Europe and North America. The Turkish government has been criticized for serious violations of human rights ranging from restrictions on *2130 speech and association to the use of torture. [FN1] To its credit, the government has expressed a commitment to improving its human rights record, despite difficult domestic problems including violent confrontation with the Kurdish Workers Party (“PKK”) in southeastern Turkey. [FN2] Reflecting this commitment, Turkey has ratified a number of important human rights treaties including the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention” or ‘Convention ‘) and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”). [FN3] Notwithstanding the government's expressed commitment to ending abuses and its international obligations to do so, serious human rights violations persist. Although this report documents a number of these violations directly, it focuses on obstacles*2131 within the Turkish legal system to the improvement of Turkey's human rights record more generally. These obstacles include the existence of specialized political courts, police impunity for human rights violations, and the harassment of lawyers and human rights advocates who seek to hold the state accountable for these violations. Turkey's State Security Courts (or “SSCs”) comprise a system of special courts operating throughout Turkey, the jurisdiction of which is limited to political offenses and serious criminal offenses deemed threatening to the State. A number of features of the State Security Court system raise questions regarding the availability of a fair trial to defendants tried within the system. For example, the participation of a military judge on every State Security Court panel undermines the independence of the courts, particularly given the nature of the court's jurisdiction and the role of the military in enforcing Turkey's strict Anti-Terror Law. In addition, the SSCs are governed by special procedures that afford fewer protections for defendants than do procedures in Turkey's ordinary criminal courts. In particular, suspects accused of political crimes within the jurisdiction of SSCs are subject to extended periods of incommunicado detention during which they may be tortured. Though the systematic use of torture is well- documented, police responsible for such acts are rarely held accountable. Finally, lawyers representing defendants in the State Security Courts are often subject to intimidation and harassment, sometimes undermining the effectiveness of their defense. In September 1997, Fordham Law School's Joseph R. Crowley Program in International Human Rights [FN4] and the Lawyers *2132 Committee for Human Rights [FN5] (“Lawyers Committee”) undertook a two-year project to study Turkey's State Security Court system and to evaluate it against international fair trial standards. The project included extensive study of Turkish law and procedure, including a review of previous reports by the Lawyers Committee and other international and Turkish non-governmental organizations, and information provided by the Turkish government, among other sources. In May and June 1998, an eleven person delegation [FN6] spent two weeks visiting ten cities in Turkey. [FN7] During the mission, delegation members interviewed lawyers, prosecutors, judges, government officials, and torture victims and observed hearings in both State Security Courts and ordinary penal courts. [FN8] This report documents our investigation, summarizes our findings, and sets out our recommendations to the Turkish government. [FN9] The report is divided into three major parts. Part I addresses the right to a fair trial in the State Security Courts. Following an overview of the State Security Court system, this Part analyzes problems with the independence of the SSCs, particularly the participation of a military judge, and then proceeds chronologically through the trial process. It addresses the role of the prosecutor in securing a fair trial, with particular focus on the prosecutor's relationship with the police and with defense *2133 attorneys. It then describes in some detail the right to counsel and obstacles to effective representation by defense counsel in State Security Courts. Finally, this Part addresses the use of coercive interrogation procedures by the anti-terror police and the use of coerced testimony in SSC proceedings. Part II elaborates on the problem of coercive investigation techniques by documenting the existence of a climate of impunity for police who engage in torture and other serious violations of human rights. Part II begins by noting that torture of individuals held in detention continues to be one of the most serious human rights problems in Turkey. It then reviews jurisdictional hurdles to prosecution of police for torture, the most important of which is a much-criticized law requiring bureaucratic review and approval to prosecute any civil servant accused of a crime. Part II also addresses other obstacles including reluctance on the part of prosecutors to pursue these cases, understaffing of prosecutors' offices, police interference with the collection of evidence such as forensic evidence of torture, and a reluctance on the part of the court to convict and impose appropriate sentences. Part III addresses the separate but related problem of the harassment and intimidation of lawyers and human rights advocates. This Part begins by examining the harassment and unfair prosecution of lawyers, a problem that further compromises the fairness of proceedings in State Security Courts by undermining the effectiveness of counsel in such proceedings. It then addresses the regulation and intimidation of human rights advocates, particularly the use of the Anti-Terror Law to restrict their freedom of speech and association. Because much of the work of defense lawyers and human rights advocates is deemed threatening to the Turkish state, these individuals may become defendants themselves in the SSC system, thereby facing detention and the possibility of torture, conviction, and imprisonment. This report concludes with a list of recommendations to the Turkish government for addressing the problems and improving its human rights record. *2134 I. THE RIGHT TO A FAIR TRIAL IN TURKEY'S STATE SECURITY COURTS A. Introduction The right to a fair trial is fundamental to a broad set of human rights in that a properly functioning justice system protects individuals from the unlawful and arbitrary denial of basic rights and freedoms. [FN10] In light of its importance, international standards defining the right to a fair trial require states to safeguard the fairness of procedures beginning from the moment of arrest and detention through trial and the final stages of the judicial process. Hence, the right to a fair trial implicates a wide range of personnel and procedures connected with the criminal justice system. This Part examines the right to fair trial in Turkey's State Security Courts as measured against Turkey's obligations under international law. SSCs are a part of a system of special courts in Turkey designed to adjudicate political and serious criminal cases deemed threatening to the security of the state. SSCs have existed since 1973, when the legislature created them in accordance with then-governing 1962 Turkish Constitution. [FN11] In 1976, the Constitutional Court annulled the law creating the SSCs, ending the SSC jurisdiction for a time. The SSC system was restored in the 1982 Turkish Constitution, itself the result of a military takeover of the civilian government. [FN12] The current Turkish Constitution specifically provides for SSCs, describing them as special courts ‘established to deal with offences against the indivisible integrity of the State with its territory and nation, the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and offences directly involving the internal and external security of the State.‘ [FN13] Currently, there are eight SSCs in Turkey, some with multiple*2135 chambers. [FN14] Each SSC is comprised of a president, two full members, two substitutes, and a prosecutor. The president, one full member, and one substitute must be civilians. The other full member is a military judge. [FN15] SSCs differ from regular courts in a variety of ways; these differences regard the number of judges, the use of special judges, the use of special prosecutors, the use of special procedures, and reliance on a special investigative arm of the security forces. The structure and scope of activity of the SSCs raise serious questions in light of Turkey's obligation under international law to protect a defendant's right to a fair trial. This right, however, depends not only on the conduct of the trial but also on the totality of the criminal justice system. [FN16] The fairness of the SSC trials therefore can only be assessed